Cain v. Southern Ry. Co.

• Decision Date: 10 March 1911
• Docket Number: 1,604.
• Citation: 199 F. 211
• Parties: CAIN v. SOUTHERN RY. CO.
• Court: U.S. District Court — Eastern District of Tennessee

199 F. 211

CAIN v. SOUTHERN RY. CO.

No. 1,604.

United States Circuit Court, E.D. Tennessee, Northern Division. ^[1]

March 10, 1911

Pickle Turner & Kennerly, of Knoxville, Tenn., for plaintiff.

Jourolmon Welcker & Smith, of Knoxville, Tenn., for defendant.

SANFORD District Judge.

1. The first ground of the motion for new trial must be overruled. I am of the opinion that the Employers' Liability Act of April 22, 1908, c. 149, 35 Stat. 65 (U.S. Comp. St. Supp. 1911, p. 1322), upon which the first count of the declaration is based, is not subject to the broad construction placed upon it by the defendant, but on the contrary is limited by the express terms of section 1 to common carriers while engaged in interstate or foreign commerce, and to injuries received by their employes while 'employed by such carriers in such commerce,' and that being so limited it is not subject to the constitutional objections which rendered void the original Act of June 11, 1906 (34 Stat. 232, c. 3073 (U.S. Comp. St. Supp. 1911, p. 1316)), as held in The Employers' Liability Cases, 207 U.S. 463, 28 Sup.Ct. 141 52 L.Ed. 297, but is, on the contrary, a constitutional and valid regulation of such commerce within the doctrine of those cases. The constitutionality of the Act of 1908 has been upheld by the Federal Courts in well-considered opinions in Watson v. Railway Co. (C.C.) 169 F. 942, and Walsh v. Railroad Co. (C.C.) 173 F. 494, and by the Supreme Court of Iowa in Bradbury v. Railway Co., 149 Iowa, 51, 128 N.W. 1. I cannot regard as sound the contrary view expressed by the Supreme Court of Connecticut in Hoxie v. Railway, 82 Conn. 352, 73 A. 754, 17 Ann.Cas. 324.

2. I have carefully considered the second ground of the motion in reference to the amount of the verdict.

It is clear that under the Act of 1908, which was in force at the time this accident occurred in 1909, in case of an injury resulting in the death of an employe, no provision was made for the survival of the right of action of the injured employe himself. Fulgham v. Railroad Co. (C.C.) 167 F. 660; Walsh v. Railroad Co., supra. And see, by analogy, Chesapeake & O. Ry. Co. v. Dixon, 179 U.S. 131, 135, 21 Sup.Ct. 67, 45 L.Ed. 121; North. Pac. Ry. Co. v. Adams (C.C.A., 9) 116 F. 324, 54 C.C.A. 196. Such survival of the injured employe's right of action was expressly provided for by section 2 of the later amendatory Act of April 5, 1910 (36 Stat. 291, c. 143 (U.S. Comp. St. Supp. 1911, p. 1325)). This, however, cannot enlarge the measure of recovery in the present case, which must be controlled entirely by the provisions of the Act of 1908.

I also think it clear that under the Act of 1908, before the amendment of 1910, in an action brought for the statutory beneficiaries to recover damages for the death of an employe, the recovery is limited to the pecuniary injury or loss sustained by the beneficiaries from the death of the deceased, and that the measure of damages is compensation for the loss of such pecuniary benefit as could have been reasonably expected to the beneficiaries, as of legal right or otherwise, from the continued life of the deceased, excluding all consideration of punitive elements, loss of society, wounded feelings of the survivors and suffering of the deceased. See, in part, Fulgham v. Railroad Co., supra; and by analogy, Baltimore & P.R. Co. v. Mackey, 157 U.S. 72, 92, 15 Sup.Ct. 491, 39 L.Ed. 624; In re Humboldt Lbr. Mfrs. Ass'n (D.C.) 60 F. 428; The Dauntless (D.C.) 121 F. 420; Hirchkovitz v. Railroad Co. (C.C.) 138 F. 438; Swift & Co. v. Johnson (C.C.A., 8) 138 F. 867, 71 C.C.A. 619, 1 L.R.A. (N.S.) 1161; Chicago, P. & S.L.R. Co. v. Wooldridge, 174 Ill. 330, 51 N.E. 701; 8 Am. & Eng. Enc. Law (2d Ed.) 914; 13 Cyc. 362.

Thus, in Baltimore & P.R. Co. v. Mackey, supra, it was held that under a statute of the District of Columbia providing that one causing the wrongful or negligent death of another should be liable to an action of damages for such death, to be assessed 'with reference to the injury * * * resulting to the widow and next of kin of such deceased person,' it was not error to charge the jury that in estimating the damages they might take into consideration the age of the deceased, his health, strength and capacity to earn money, as disclosed by the evidence, who his family were and of what they consisted, and from all the facts and circumstances make up their minds how much the family probably lost by his death, that is, how much they had a reasonable expectation of receiving if he had not been killed.

However it would seem under the weight of authority, that the value of a father's services in attention to and care and superintendence of his children and family and in the education of his children, of which they are deprived by his death, is also to be...