159 N.W. 14 | N.D. | 1916
Plaintiff, widow of Michael Hein, deceased, sues under the state statutes governing recovery for death by wrongful act, §§ 8321-8323, Comp. Laws 1913. The complaint pleads acts of alleged negligence as having caused the death of Michael ITein.
The proof establishes that deceased came to his death through a collisi&n between two gravel trains both hauling gravel en route to Montana, but at the time within this state. At the close of the testimony the court denied a motion for a directed verdict of dismissal, based “On the ground that the undisputed evidence discloses that this case is one in which the Great Northern Company’s liability, if any, is controlled by the Federal statute known as the Employers’ Liability Law; and if liable, said company is only liable to the personal representative of the deceased, Michael Hein, and not to the plaintiff; and that the party plaintiff here is not the real party in interest, or a person having a cause of action against said defendant railroad company.” A verdict for $4,000 was returned.
Assignments based upon the denial of said motion test plaintiff’s right to maintain this action and sustain her recovery. Two questions necessary of decision are raised. 1. Does the Federal Employers’ Liability Act apply under the proof? 2. Can the benefit of Federal
The other question is in order, i. e., whether under the proof it is established that the deceased employee, at the time of his death, was operating an instrumentality engaged in interstate commerce, with re
The following is the syllabus in 157 Red. 616: “The mere hauling of an empty car from one state to another, even though it may be for the purpose of repairing a defect, is engaging in interstate commerce.”' 154 Red. 516, reads: “It is insisted, however, that these cars were not being used, but were chained together and on the way to the shop for repairs. It is true that they were not being used in the sense that they were loaded; so, also, it is true that they were on the way to the shops.. But it is equally true that they were cars that were used in moving interstate traffic, albeit at this particular time they were empty.”
It is true that these two decisions were rendered under the Safety Appliance Acts, but controlling principles are the same. If it was interstate commerce under one statute, it would be under the other, as each is in pari materia with the other. Such is the express holding in North Carolina R. Co. v. Zachary, supra. The opinion in that case reads: “There seems to be no clear evidence as to the contents of these-cars, and it is argued that, in the absence of evidence, it is as reasonable to infer that they were empty as that they were loaded; and that it was-incumbent upon the defendant to show that they contained interstate-freight. We hardly deem it so probable that empty freight cars would be hauled from the Virginia point to Spencer [N. O.]. But were it so-the hauling of empty cars from one state to another is, in our opinion,. interstate commerce within the meaning of the act” (Rederal Employers’ Liability Statute). Such is the view that has obtained with respect to empty cars in actions based upon the Safety Appliance Act of March 2d, 1893 (27 Stat. at L. 531, chap. 196, Comp. Stat. 1913, § 8605). Johnson v. Southern P. Co. 196 U. S. 1, 21, 49 L. ed. 363, 371,, 25 Sup. Ct. Rep. 158, 17 Am. Neg. Rep. 412; Voelker v. Chicago, M. & St P. R. Co. 116 Red. 867-873. And like reason applies as we think to actions founded upon the Employers’ Liability Act, which, indeed, is in pari materia with tihe other.” This is the express holding of the-
These holdings pass upon and expressly overrule respondent’s contention. They establish that when killed deceased was driving an engine hauling a train then engaged in interstate commerce and in law within the provisions of the Federal Employers’ Liability Act, and that it was immaterial where or how the gravel was to be used on arrival in Montana. It was a subject of interstate shipment, en route on an interstate train. This effectually answers, to the contrary, respondent’s contention that defendant, in hauling its own cars to repair its own railroad, was not engaged in interstate commerce, where interstate lines are traversed in so doing.
Under the admitted facts this case is controlled by the said Federal statutes. The state statutes sued upon are superseded, and have no application.
“The Federal act is said to be the supreme law of the land upon the subject of the liability of interstate carriers for injuries to their servants, and to supersede all state legislation of the same subject, although it does not abrogate in terms such legislation. Consequently, if the accident occurs under such circumstances as to make the Federal statute applicable, the plaintiff, as well as the defendant, is .bound by its terms. In such a case there can be no recovery under any state statute, even if the state statutes are more favorable to the plaintiff than the Federal act. If the Federal act applies, it is exclusive of other remedies, although the complaint may also set out a cause of action at common law or under some state statute.” From note to 47 L.R.A.(N.S.) 48, citing abundance' of authority sustaining it. Also see L.R.A.1916 A, 450, and note, and Zikos v. Oregon R. & Nav. Co. 179 Fed. 893.
As under the Federal act suit can be prosecuted only by the personal representative' of the deceased, this action by the wife individually, based upon the authority of the state statute thus superseded, is brought by a person not a real party in interest, and without right to maintain