Oliver v. Northern Pac. Ry. Co.

• Decision Date: 05 February 1912
• Docket Number: 1,569.
• Parties: OLIVER v. NORTHERN PAC. RY. CO.
• Court: U.S. District Court — District of Washington

196 F. 432

OLIVER v. NORTHERN PAC. RY. CO.

No. 1,569.

United States District Court, E.D. Washington, Northern Division.

February 5, 1912

Nuzum &amp Nuzum and W. H. Plummer, for plaintiff.

Edward J. Cannon, for defendant.

RUDKIN District Judge.

On the 4th day of January, 1911, John A. Oliver, a porter in charge of a Pullman car attached to an eastbound passenger train of the defendant company, was killed at Cheney, Wash., by a rear-end collision. On the 18th day of January following his surviving widow and two minor children commenced an action in the state court to recover damages for his death, which was alleged to have been caused through the wrongful act and neglect of the defendant. The case was thereafter removed to this court on the ground of diversity of citizenship, and a trial was had. The sole issue presented at that trial was the construction and validity of the following provision contained in the contract of employment, entered into between the deceased porter and the Pullman Company:

'I will obey all rules and regulations made or to be made for the government of their own employes by the corporations or persons over whose lines of railroad the cars of said the Pullman Company may be operated while I am traveling over said lines in the employment or service of said the Pullman Company; and I expressly declare that while so traveling I shall not have the rights of a passenger with respect to such corporations or persons, which rights I do expressly renounce; and I hereby, for myself, my heirs, executors administrators or legal representatives, forever release acquit and discharge any and all such corporations and persons from all claims for liability of any nature or character whatsoever on account of any personal injury or death to me while in said employment or service.' At the close of the testimony the defendant moved the court to instruct the jury to return a verdict in its favor, and the court intimated that the motion thus interposed should be granted. The plaintiffs thereupon moved the court to dismiss the action without prejudice, and, after discussion, the latter motion was granted, in so far as any right of action under the federal Employers' Liability Act was concerned, the judgment as entered contained the following reservation or saving clause:

'It is hereby ordered, adjudged, and decreed that the plaintiffs have and take nothing by their action herein, and that the defendant have judgment for its costs and disbursements herein, upon the express condition that this judgment shall not be a bar or in any manner interfere with an action subsequently instituted under the federal Employer's Liability Act by the personal representative of John A. Oliver, deceased, for the benefit of his widow, Mamie E. Oliver, and the minor children, Madjie L. and Oracie A. Oliver. * * *

'It is further ordered, adjudged, and decreed that this judgment shall not operate as a bar of an action brought by the personal representatives of the deceased for the recovery of damages for the wrongful death of the deceased brought under and by virtue of the federal Employer's Liability Act of April 22, 1908, but that this judgment shall be a complete bar to any other action growing out of the death of the deceased.'

The grounds upon which this judgment was entered are not now material, perhaps, except in so far as the ruling of the court is embodied in the judgment entry, but by way of explanation I might add that the court was then and is still of opinion that there could be no recovery in that case; first, because the action was not prosecuted in the name of the personal representatives as required by the federal Employer's Liability Act; second, because there was no testimony offered at the trial tending to show that the relation of master and servant existed between the deceased porter and the defendant company; and, third, because, independently of the act of Congress, the release set forth in the answer was a full and complete defense to the action.

Thereafter the present action was instituted directly in this court by the personal representative of the deceased to recover damages for his death under the federal Employer's Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U.S. Comp St. Supp. 1911, p. 1323). The answer again interposed the release to the Pullman Company as a defense, and pleaded the former judgment in bar. At the close of the testimony the defendant again moved the court to direct a verdict in its favor, but it appearing that the right of recovery depended solely upon questions of law, and that the only question for the consideration of the jury in any event was the measure or amount of damages, a ruling on the motion was reserved for future consideration by consent of counsel, and the cause was submitted to the jury. A verdict in favor of the plaintiffs was returned for the sum of $12,500, and the defendant has interposed a motion for judgment notwithstanding the verdict in conformity to the practice prevailing in the local courts. Two questions are presented by this motion: First. Was the deceased porter employed by the defendant...