Moffett v. Baltimore & O.R. Co.

• Decision Date: 19 November 1914
• Docket Number: 1254.
• Citation: 220 F. 39
• Court: U.S. Court of Appeals — Fourth Circuit
• Parties: MOFFETT v. BALTIMORE & O.R. CO.

220 F. 39

MOFFETT v. BALTIMORE & O.R. CO.

No. 1254.

United States Court of Appeals, Fourth Circuit.

November 19, 1914

This act was brought in the Northern District of West Virginia in pursuance of the federal Employers' Liability Act to recover damages for death resulting from negligence of defendant. It appears that on December 27, 1910, Cecil J Cain (sometimes called Cecil J. Moffett) was a brakeman in the employ of the Baltimore & Ohio Railroad Company on extra train No. 990 west, which consisted in part of a number of empty coal cars being transported by the defendant from the state of Pennsylvania, through West Virginia, to some point in another state southwest of West Virginia. On December 27 1910, the extra train collided with a certain other train of the defendant, on the Ohio River division of the defendant in the state of West Virginia, and Cecil J. Cain was then and there by reason of such collision instantly killed. It is alleged that the death of plaintiff's decedent resulted from the negligence of certain employes of the defendant other than Cecil J. Cain, and the proximate cause of his death was the negligence of such other employes, and the decedent was, at the time of his death, in the line of his employment and at his post of duty, and was guilty of no negligence contributing to his death.

On December 23, 1911, James A. Moffett, administrator of the estate of Cecil J. Cain, brought suit in the then Circuit Court against the Baltimore & Ohio Railroad Company, and on April 2, 1912, filed his declaration. On January 25, 1913 the plaintiff amended his declaration, alleging in substance the age, mental capacity, health, and character of the decedent, and the fact that he left surviving him his parents, and that the said Cecil J. Cain contributed to the comfort, support, and care of his parent, his mother, Sophia Moffett, to the amount of $100 per month, and that the parents of the decedent were dependent upon him for their maintenance and support, and that by his death they lost his support, and that they would be prevented, by his death, from receiving from his wages and earnings the contributions which they had received, and which they would continue to receive for their support and maintenance during their natural lifetime, and during the lifetime of the decedent, had he not been killed.

Demurrers to the original and amended declaration were overruled. The defendant pleaded not guilty to the amended declaration, to which plea plaintiff replied generally, and issue thereon was joined. Several special pleas were filed by the defendant. Plea No. 2 sets up an alleged release claimed to have been executed by James A. Moffett and Sophia Moffett, in consideration of $1,000. Plaintiff replied generally, and issue thereon was joined. To special pleas Nos. 3, 4, and 5 plaintiff replied generally, and issue thereon was joined.

The stipulations signed by the defendant admit all the material facts in relation to the employment of the plaintiff's decedent; that both he and the defendant at the time of the death of the decedent were engaged in interstate commerce; that the plaintiff's decedent was guilty of no negligence contributing to his death; that he was at his post of duty and in the line of his employment; that the proximate cause of his death was the negligence of the defendant. It appears that plaintiff's decedent was killed on December 27, 1910; that decedent left surviving him no widow or children, but did leave surviving him his father and his mother, Sophia Moffett; that decedent was a young man of good habits, industrious, in perfect health, educated, and that at the time of his death he was earning an average of $53.27 per month, and that he contributed practically all his earnings to the support of his mother, who, at the time of decedent's death was about 40 years of age; that decedent's mother was divorced from her former husband, and that on November 26, 1893, she married James A. Moffett, with whom she resided during all the time since her marriage; that she and her husband, James A. Moffett, reared and educated the said Cecil J. Cain.

Sophia Moffett, the mother of Cecil J. Cain, testified that after her son, the decedent, arrived at the age of 21, and up to the time of his death he always contributed to her support and maintenance, and that, while she was only partly dependent upon him for her support, she looked to him, and always expected money from him; that he spent very little of his wages on himself, and gave her his money. The mother also testified that her husband, James A. Moffett, was not at that time engaged in any business; that she had no profession nor any way of supporting herself other than housekeeping; that Cecil J. Cain was 21 years old on August 15, 1910; that he had been employed as a brakeman by the defendant railroad company 3 months and 13 days before the time of his death. The defendant proved by Sophia Moffett that she had a small tract of land in Kentucky, given her by her father when she was married to Mr. Cain. On cross-examination Mrs. Moffett testified that she derived no benefit or income from this property. James A. Moffett, the husband of Sophia Moffett, was 53 years of age in August, 1913.

The plaintiff claimed the right to recover damages against the defendant under sections 2 and 9 of the federal Employers' Liability Act, for the benefit of the mother of the decedent. The defendant claimed that because, upon examination of plaintiff's witnesses, it was shown that the mother of the decedent was not wholly dependent upon him for her support, the defendant was not liable. At the trial of the case, after the plaintiff had offered all his evidence, the defendant moved to exclude the same, and direct a verdict in its favor. This motion was granted, and the court directed the jury to return a verdict for the defendant, and judgment was entered accordingly. The plaintiff excepted, and the case comes here on writ of error.

V. B. Archer, of Parkersburg, W.Va. (Lewis N. Tavenner, of Parkersburg, W. Va., on the brief), for plaintiff in error.

B. M. Ambler, of Parkersburg, W.Va. (J. W. Vandervort, W. W. Van Winkle, and Mason G. Ambler, all of Parkersburg, W. Va., on the brief), for defendant in error.

Before PRITCHARD, KNAPP, and WOODS, Circuit Judges.

PRITCHARD Circuit Judge (after stating the facts as above).

Among other things, it is contended by the defendant in error (who will hereinafter be referred to as defendant) that 'there was no evidence that the decedent was a bachelor, or that he left no widow or child. ' In view of the provisions of the statutes, it was necessary to allege and prove that the deceased left no widow or children surviving him in order to entitle plaintiff in this instance to recover. Garrett v. Louisville & N.R. Co., 197 F. 715, 117 C.C.A. 109; Michigan Central Railroad Co. v. Vreeland, 227 U.S. 59, 33 Sup.Ct. 192, 57 L.Ed. 417, Ann. Cas. 1914C, 176; American Railroad Co. v. Didricksen, 227 U.S. 145, 33 Sup.Ct. 224, 57 L.Ed. 456.

While it is true that there was no direct evidence that the decedent was not married and had no children, yet there was proof that he was about 21 years of age and resided with his mother; that his average wage was $53.27 per month. His stepfather, in testifying as to the contributions that he made to his mother after he became of age, among other things, said:

' * * * He was always giving his mother; he was a mother's boy, and always giving to her. At any and all times he had anything to give he would give it to his mother.' Counsel for defendant made the following admissions:

' * * * That this young man was strong, able-bodied, and healthy, and in good health at the time of this occurrence; that he was an industrious and active man, and that he was of the age stated by his mother; that he was employed by the railroad company, commencing in September and running through September, October, November, and December, as will be shown by the record; and that he was a faithful and industrious man in his employment with the company.'

Defendant also made the following admissions:

'The defendant admits, as a matter of fact, as though proven in this case, that the decedent, Cecil

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