American Railroad Company of Porto Rico v. Ann Elizabeth Birch, No. 224

CourtUnited States Supreme Court
Writing for the CourtMcKenna
Citation32 S.Ct. 603,56 L.Ed. 879,224 U.S. 547
Decision Date13 May 1912
Docket NumberNo. 224
PartiesAMERICAN RAILROAD COMPANY OF PORTO RICO, Plff. in Err., v. ANN ELIZABETH BIRCH and Ernest Victor Birch

224 U.S. 547
32 S.Ct. 603
56 L.Ed. 879
AMERICAN RAILROAD COMPANY OF PORTO RICO, Plff. in Err.,

v.

ANN ELIZABETH BIRCH and Ernest Victor Birch.

No. 224.
Submitted April 24, 1912.
Decided May 13, 1912.

Messrs. N. B. K. Pettingill and F. L. Cornwell for plaintiff in error.

[Argument of Counsel from pages 547-549 intentionally omitted]

Page 549

Mr. Willis Sweet for defendants in error.

[Argument of Counsel from pages 549-551 intentionally omitted]

Page 551

Mr. Justice McKenna delivered the opinion of the court:

Action for damages for the death, through the alleged negligence of plaintiff in error, of the husband and father of defendants in error, who are, respectively, deceased's widow and son.

The action was originally brought by Ann Elizabeth Birch. A demurrer was filed to the complaint, which was sustained in part, and the court directed counsel 'to so amend the complaint as to show whether or not the plaintiff is the sole heir of the deceased, or, if she sues for the benefit of certain other heirs, then the complaint must specifically state the name of said other heirs, and state under what law the said action is brought.'

An amended complaint was filed, alleging that the deceased, Francisco Abraham Birch, was, when killed, at his post of duty as brakeman on a train of the railroad which was running through the city of Aguadilla at a high rate of speed, and contrary to an ordinance of the city, in conse-

Page 552

quence of which speed and a defect in one of the wheels of the car the body of the car left the tracks and was thrown to the ground, crushing the deceased beneath it, and thus causing instant death.

It is alleged that a proper inspection of the wheels would have disclosed the defect in it, and, further, that if the train had been running within the limits of the requirements of the law, the train might and would have been stopped before the accident occurred.

At the time of his death, it is alleged, that the deceased was forty-seven years of age, was receiving $42 per month, was a skilled and efficient railroad employee, and was in vigorous health and strength. And it is alleged that his death was caused without negligence on his part, and while he was in the faithful discharge of his duty.

It is declared that the 'action is based upon an act of Congress entitled, 'An Act Relating to the Liability of Commor Carriers by Railroad to Their Employees in Certain Cases,' approved April 22, 1908.' [35 Stat. at L. 65, chap. 149, U. S. Comp. Stat. Supp. 1911, p. 1322.]

It is alleged that Ernest Victor Birch was poor in health and frail in body, and was dependent upon deceased for support.

Damages were prayed at $10,000.

The railroad company denied the specific allegations against it of speed and failure to inspect the wheels, alleged that they were inspected, and that no defects were visible or could be ascertained. It also put in issue the allegations of the complaint in regard to Ernest Victor Birch.

The answer alleged that no administration proceedings had been had on the estate of deceased, and that neither of the plaintiffs has been declared his heir, as required by law. It is also alleged that Ernest Victor Birch was over the age of twenty-one years, and that deceased was under no legal obligation to support him.

The case was tried to a jury upon evidence conflicting

Page 553

upon certain of the issues. There was no conflict as to the circumstances of the accident, the death of Birch in the line of duty, and that the accident was caused by a broken wheel, and that the train was not equipped with air brakes, but only with the ordinary hand brakes. There was conflict as to the speed of the train and as to whether the engineer in charge of the locomotive could see signals to stop, or whether he disregarded them.

The instructions of the court, so far as material, will be noticed presently in considering the assignments of error.

These assignments are: (1) The court erred in overruling the demurrer; (2) in denying the motion to dismiss the action and direct verdict on the ground that it had not been brought by the personal representative of the deceased, as required by the statute upon which it was based; (3) in holding that the heirs could sue in their own names; (4) in refusing to give the following: 'That the court instruct the jury that the Federal act with regard to safety appliances has no application to the question at bar.' And (5) in refusing to instruct the jury as follows:

'That they [the plaintiffs in action] are entitled to recover the actual compensation that they would have received if he [the deceased] had not been killed, and that would be limited to the purchase of an annuity for his recognized period of life.'

These assignments are reducible to three propositions, to wit: (1) the capacity of plaintiffs to sue, (2) the application of the safety-appliance law, and (3) the measure of damages. Their discussion requires a consideration of the employers'...

To continue reading

Request your trial
95 practice notes
  • N. States Power Co. v. Comm'rs, No. 6665.
    • United States
    • United States State Supreme Court of North Dakota
    • May 31, 1941
    ...it seems unnecessary, or unwise, or requires the performance of acts that appear to the court to be useless. American R. Co. v. Birch, 224 U.S. 547, 32 S.Ct. 603, 56 L.Ed. 897;United States v. Plowman, 216 U.S. 372, 30 S.Ct. 299, 54 L.Ed. 523;State ex rel. Linde v. Taylor, 33 N.D. 76, 156 N......
  • Ivy v. Security Barge Lines, Inc., No. 76-4130
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 4, 1978
    ...similar language in the Federal Employers' Liability Act, 45 U.S.C. § 51. In American Railroad Co. of Porto Rico v. Birch, 1912, 224 U.S. 547, 32 S.Ct. 603, 56 L.Ed. 879, the widow and son of a deceased railroad worker brought an action as sole beneficiaries, and the lower court held that t......
  • Armburg v. Boston & M.R.R.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 12, 1931
    ...Industrial Accident Commission, 251 U. S. 259, 40 S. Ct. 130, 64 L. Ed. 258, 10 A. L. R. 1181. See, also, American Railroad Co. v. Birch, 224 U. S. 547, 32 S. Ct. 603, 56 L. Ed. 879. It does not appear to have been suggested in any of these decisions that railroads were not subject to state......
  • Schultz v. Union Pac. R. Co.
    • United States
    • California Court of Appeals
    • May 27, 1953
    ...S.Ct. 827, 86 L.Ed. 1129. Since a suit requires the appointment of a personal representative (American R. R. Co. [of Porto Rico] v. Birch, 224 U.S. 547, 32 S.Ct. 603, 56 L.Ed. 879), which is ordinarily allowed to sue only in the state of his appointment (see Code Civ.Proc. § 1913), refusal ......
  • Request a trial to view additional results
95 cases
  • N. States Power Co. v. Comm'rs, No. 6665.
    • United States
    • United States State Supreme Court of North Dakota
    • May 31, 1941
    ...it seems unnecessary, or unwise, or requires the performance of acts that appear to the court to be useless. American R. Co. v. Birch, 224 U.S. 547, 32 S.Ct. 603, 56 L.Ed. 897;United States v. Plowman, 216 U.S. 372, 30 S.Ct. 299, 54 L.Ed. 523;State ex rel. Linde v. Taylor, 33 N.D. 76, 156 N......
  • Ivy v. Security Barge Lines, Inc., No. 76-4130
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • December 4, 1978
    ...similar language in the Federal Employers' Liability Act, 45 U.S.C. § 51. In American Railroad Co. of Porto Rico v. Birch, 1912, 224 U.S. 547, 32 S.Ct. 603, 56 L.Ed. 879, the widow and son of a deceased railroad worker brought an action as sole beneficiaries, and the lower court held that t......
  • Armburg v. Boston & M.R.R.
    • United States
    • United States State Supreme Judicial Court of Massachusetts
    • September 12, 1931
    ...Industrial Accident Commission, 251 U. S. 259, 40 S. Ct. 130, 64 L. Ed. 258, 10 A. L. R. 1181. See, also, American Railroad Co. v. Birch, 224 U. S. 547, 32 S. Ct. 603, 56 L. Ed. 879. It does not appear to have been suggested in any of these decisions that railroads were not subject to state......
  • Schultz v. Union Pac. R. Co.
    • United States
    • California Court of Appeals
    • May 27, 1953
    ...S.Ct. 827, 86 L.Ed. 1129. Since a suit requires the appointment of a personal representative (American R. R. Co. [of Porto Rico] v. Birch, 224 U.S. 547, 32 S.Ct. 603, 56 L.Ed. 879), which is ordinarily allowed to sue only in the state of his appointment (see Code Civ.Proc. § 1913), refusal ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT