Illinois Cent. R. Co. v. Doherty's Adm'r

• Decision Date: 23 April 1913
• Citation: 155 S.W. 1119,153 Ky. 363
• Parties: ILLINOIS CENT. R. CO. v. DOHERTY'S ADM'R.
• Court: Kentucky Court of Appeals

155 S.W. 1119

153 Ky. 363

ILLINOIS CENT. R. CO. v. DOHERTY'S ADM'R.

Court of Appeals of Kentucky.

April 23, 1913

Appeal from Circuit Court, McCracken County.

Action by John Doherty, as administrator of Joe Doherty, deceased against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Trabue Doolan & Cox, of Louisville, Wheeler & Hughes, of Puducah and Blewett Lee and C. L. Sivley, both of Chicago, Ill., for appellant.

F. N Burns and Hendrick & Crice, all of Paducah, for appellee.

SETTLE J.

This action was instituted in the court below against the appellant, Illinois Central Railroad Company, by the appellee, John Doherty, as administrator of the estate of his brother, Joe Doherty, deceased, to recover of it damages for the death of the latter which occurred at Central City, this state, while he was in its employ as a car repairer, and, as alleged in the petition, resulted from the negligence of appellant's yard foreman in failing to provide him a reasonably safe place to work; it being also alleged that the decedent, by order of the yard foreman and because of his promise to guard and protect him from injury, went under one of appellant's cars standing on a yard side track for the purpose of repairing a defective brake thereof, and that while the decedent was performing the work required of him the foreman, instead of protecting him from injury as he promised to do, negligently permitted another car, operated by a locomotive in charge of one of appellant's engineers, to be moved against the one the decedent was repairing which caused it to run over his body and kill him. It was further alleged in the petition that the appellant was at the time of the decedent's death and is now a common carrier engaged in interstate commerce; that the decedent, when killed, was in the appellant's employ and "assisting it in carrying on interstate commerce," and that the car he was repairing when killed was being put in order for use by appellant in transporting freight from one state to another, and "had been used and was being used, and was to be used by defendant in carrying on interstate commerce." The answer of appellant denied that the decedent's death was caused by the negligence of its yard foreman complained of, or that of any of its servants, and pleaded contributory negligence on the part of the decedent, which plea was controverted by the appellee's reply. The trial resulted in a verdict awarding appellee $16,000 damages, and from the judgment entered on that verdict this appeal is prosecuted.

Only such of the numerous errors assigned for the new trial moved for by appellant in the circuit court as we regard material will be considered on the appeal.

Appellant's first complaint is that the trial court erred in overruling its demurrer to the petition; it being claimed that the petition failed to state a cause of action. That is, it is argued by its counsel, that although the petition rests the right of recovery upon the provisions of the act of Congress approved April 22, 1908, entitled "An act relating to the liability of common carriers by railroad to their employés in certain cases," it does not state a cause of action as it is not therein alleged that the decedent left surviving him any one of the beneficiaries named by that act in whose behalf a recovery can alone be had. The act in full is as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, that every common carrier by railroad while engaging in commerce between any of the several states or territories, or between any of the states and territories, or between the District of Columbia and any of the states or territories, or between the District of Columbia or any of the states or territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employé, to his or her personal representative for the benefit of the surviving widow or husband and children of such employé; and, if none, then of such employés parents; and, if none, then of the next of kin dependent upon such employé, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such common carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.

"Sec. 2. That every common carrier by railroad in the territories, the District of Columbia, the Panama Canal zone, or other possessions of the United States shall be liable in damages to any person suffering injury while he is employed by such carrier in any of said jurisdictions, or, in case of the death of such employé, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employé, and, if none, then of such employés parents; and, if none, then of the next of kin dependent upon such employé, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves or other equipment.

"Sec. 3. That in all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employé or where such injuries have resulted in his death, the fact that the employé may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employé: Provided, that no such employé who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employés contributed to the injury or death of such employé.

"Sec. 4. That in any action brought against any common carrier under or by virtue of any of the provisions of this act to recover damages for injuries to, or the death of, any of its employés, such employé shall not be held to have assumed the risk of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employés contributed to the injury or death of such employé.

"Sec. 5. That any contract rule, regulation or device whatsoever, the purpose or intent of which shall be to enable any common carrier to exempt itself from any liability created by this act, shall to that extent be void: Provided, that in any such action brought against any such common carrier under or by virtue of any of the provisions of this act, such common carrier may set off therein any sum it has contributed or paid to any insurance, relief benefit, or indemnity that may have been paid to the injured employé or the person entitled thereto on account of the injury or death for which said action was brought.

"Sec. 6. That no action shall be maintained under this act unless commenced within two years from the day the cause of action accrued.

"Sec. 7. That the term 'common carrier' as used in this act shall include the receiver or receivers or other persons or corporations charged with the duty of the management and operation of the business of a common carrier.

"Sec. 8. That nothing in this act shall be held to limit the duty or liability of common carriers or to impair the rights of their employés under any other act or acts of Congress, or to affect the prosecution of any pending proceeding or right of action under the act of Congress entitled 'An act relating to liability of common carriers in the District of Columbia and territories, and to common carriers engaged in commerce between the states and between the states and foreign nations to their employés,', approved June eleventh, nineteen hundred and six."

Act April 22, 1908, c. 149, 35 Stat. 65, 66 (U. S. Comp. St. Supp. 1911, pp. 1322-1325).

It will be observed that the act places certain restrictions upon the right of the common carrier engaged in interstate commerce to plead or prove assumption of risk on the part of the servant injured or killed, while in its service in interstate commerce, deprives it of the right to plead or prove that his injury or death was caused by the negligence of a fellow servant, or that he was guilty of contributory negligence, except for the purpose of diminishing the damages in proportion to the amount of negligence attributable to such employé.

It will also be observed that the right of action given by the act to the personal representative of the decedent against the railroad carrier in whose service he was killed in interstate commerce by the negligence of its officers, agents, or employés is for the benefit, first, of the surviving widow or husband and children of the decedent; and, if none, second, his parents; and, if none, third, the next of kin dependent upon the decedent.

It is clear that the act does not, like the Kentucky statute applicable to similar cases, allow a recovery merely to compensate the estate of the decedent for his death and the consequent destruction of his power to earn money, but provides that only those naturally or actually dependent upon the decedent shall take the benefit of the recovery. It therefore expressly limits the right of recovery to cases in which only the person or persons sustaining pecuniary loss by the decedent's death are entitled to be compensated,...