Munos v. Southern Pac. Co., 17.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Citation: 51 F. 188
• Docket Number: 17.
• Parties: MUNOS et al. v. SOUTHERN PAC. CO.
• Decision Date: 01 January 1892

51 F. 188

MUNOS et al.
v.
SOUTHERN PAC. CO.

No. 17.

United States Court of Appeals, Fifth Circuit.

January 1, 1892.

Millard Patterson, C. N. Buckler, J. A. Buckler, and John Mitchell, for plaintiffs in error.

Henry J. Leovy and Joseph Paxton Blair, for defendant in error.

Before LOCKE, District Judge, and PARDEE and McCORMICK, Circuit judges.

PARDEE, Circuit Judge.

This suit was commenced March 20, 1891, to recover damages for the death of a parent, alleged to have been caused [51 F. 189] by defendant's negligence, in the territory of New Mexico, on February 17, 1888. The suit was instituted under article 2308 of the Compiled Laws of New Mexico of 1884, as follows:

'Whenever any person shall die from any injury resulting from, or occasioned by, the negligence, unskillfulness, or criminal intent of any officer, agent, servant, or employe, whilst running, conducting, or managing any locomotive, car, or train of cars, or of any driver of any stagecoach or other public conveyance, whilst in charge of the same as driver and when any passenger shall die from any injury resulting from, or occasioned by, any defect or insufficiency in any railroad, or any part thereof, or in any locomotive or car or in any stagecoach or other public conveyance, the corporation, individual, or individuals in whose employ any such officer, agent, servant, employe, engineer, or driver shall be at the time such injury was committed, or who owns any such railroad, locomotive, car, stagecoach, or other public conveyance at the time any injury is received resulting from or occasioned by any defect or insufficiency above declared, shall forfeit and pay, for every person or passenger so dying, the sum of five thousand dollars, which may be sued for and recovered-- First, by the husband or wife of the deceased; or, second, if there be no husband or wife, or if he or she fails to sue within six months after such death, then by the minor child or children of the deceased; or, third, if such deceased be a minor, and unmarried, then by the father and mother, who may join in the suit, and each shall have an equal interest in the judgment; or, if either of them be dead, then by the survivor. In suits instituted under this section, it shall be competent for the defendant or his defense to show that the defect or insufficiency named in this section was not a negligent defect or insufficiency.'

Article 2316 of said Compiled Laws and a subsequent section of the original act provided as...