St. Louis, I. M. & S. Ry. Co. v. Rodgers

• Decision Date: 26 April 1915
• Docket Number: (No. 336.)
• Parties: ST. LOUIS, I. M. & S. RY. CO. v. RODGERS.
• Court: Arkansas Supreme Court

176 S.W. 696

ST. LOUIS, I. M. & S. RY. CO. v. RODGERS.

(No. 336.)

Supreme Court of Arkansas.

April 26, 1915.

Appeal from Circuit Court, Clark County; Jacob M. Carter, Judge.

Action by Annie Rodgers, as administratrix, against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 167 S. W. 106.

Appellee, as administratrix of the estate of her husband, James Rodgers, deceased, instituted this suit against the appellant, to recover damages to the estate and the next of kin, alleging that on the 29th of May, 1913, James Rodgers was in the employ of the appellant as a brakeman on a train engaged in interstate commerce, and at the time of his death was acting as a brakeman on said train; that the train arrived at Gurdon from the south in the nighttime, and at a point about a half mile south of the depot, near what is known as the brickyard, the train men ran the caboose upon a sidetrack with such unusual force and at such a high and dangerous rate of speed that Rodgers, who was in the cupola of said caboose, where his duties required him to be, was thrown forward against the window in the caboose; that his head was driven through the glass and his throat cut; that he lingered in great agony until about an hour after his injury, when he died; that he left surviving him the appellee and two children; that appellee, as administratrix, for herself and children and for the benefit of the estate, brings this suit under the act of Congress of April 22, 1908, as amended April 5, 1910; that at the time of his death Rodgers was earning wages at the rate of $75 per month; that he was sober and industrious, and contributed all that he made to the support and maintenance of his family. She prayed for damages to the estate in the sum of $5,000 and to the next of kin in the sum of $6,000.

Appellant moved to require the appellee to elect between the cause of action for the benefit of the estate and the cause of action on account of the loss of pecuniary support. The motion was overruled, and appellant duly saved its exceptions.

The appellant answered, denying the material allegations of the complaint, and setting up the affirmative defenses of assumed risk and contributory negligence. The cause was submitted to the jury upon instructions, upon which we will comment in the opinion. There was a verdict in favor of the appellee in the sum of $2,000. After the verdict was read, and before the court had accepted it, both parties being present, the appellant asked the court to direct the jury to apportion the amount of the verdict between the two causes of action for deceased's pain and suffering and for pecuniary loss to the next of kin, so as to show what sum they found on each. The court refused to direct the jury to apportion their verdict, and appellant duly excepted.

From a judgment entered in favor of the appellee in the sum of $2,000, this appeal has been duly prosecuted. Other facts stated in the opinion.

E. B. Kinsworthy, T. D. Crawford, and R. E. Wiley, all of Little Rock, for appellant. McRae & Tompkins, of Prescott, for appellee.

WOOD, J. (after stating the facts as above).

We will consider the assignments of error in the order presented by appellant's counsel.

I. There was no error in refusing to require the appellee to elect between the cause of action for the benefit of the estate and that for the pecuniary loss to the widow and next of kin. K. C. So. Ry. Co. v. Leslie, 112 Ark. 305-327, 167 S. W. 83; St. L. & S. F. Ry. Co. v. Conarty, 106 Ark. 421, 155 S. W. 93.

II. There was no error in refusing to require the jury to apportion the award of damages, so as to show what sum they found on the cause of action for deceased's pain and suffering and the cause of action in favor of the deceased's widow and next of kin for their pecuniary loss.

In Gulf, etc., Ry. Co. v. McGinnis, 228 U. S. 173-176, 33 Sup. Ct. 426, 57 L. Ed. 785, it is said:

"Though the judgment may be for a gross amount, the interest of each beneficiary must be measured by his or her individual pecuniary loss. That apportionment is for the jury to return. This will, of course, exclude any recovery in behalf of such as show no pecuniary loss."

In St. L., I. M. & So. Ry. Co. v. Hesterly, 228 U. S. 702, 33 Sup. Ct. 703, 57 L. Ed. 1031, it is held that under the act only one recovery can be had. And in Taylor v. Taylor, 232 U. S. 363, 34 Sup. Ct. 350, 58 L. Ed. 638, it was held that the act under consideration supersedes all state statutes upon the subject covered by it, and that the distribution of the amount recovered in an action for the death of an employé is determined by the provisions of the federal statute and not by the state laws. See, also, Railway v. Hesterly, supra.

There is nothing in any of these decisions that requires that the jury, in returning their verdict, should apportion the damages between the two causes of action, showing the amount allowed for the deceased's pain and suffering and the amount allowed for pecuniary loss to the widow and next of kin. The statute and the amendment, as we construe it, does not require that there should be any such apportionment. It does require that there "shall be only one recovery for the same injury," and the personal representative is entitled to recover only for the benefit of those surviving relatives of the deceased employé who derived pecuniary assistance from him during his life, and who therefore were entitled to compensation for the pecuniary loss resulting to them from his death. As was said in the case of Railway Co. v. McGinnis, supra:

"The recovery must therefore be limited to compensating those relatives, for whose benefit the administrator sues, as are shown to have sustained some pecuniary loss."

The appellant did not ask the court to instruct the jury that it could find no damages in favor of the daughter of Rodgers, who was of age, and who was not shown to have been receiving any pecuniary assistance from her father. The request to apportion the verdict between damages for pain and suffering and damages for the pecuniary loss to the next of kin did not include such request. Appellant did not ask the court to make a ruling to this effect, and it is therefore not in an attitude to complain. No possible prejudice could have...