200 F. 922 | 8th Cir. | 1912
(after stating the facts as above).
“That this act shall not he construed to repeal or change the existing iaws relating to the right of the person injured * * * to maintain an action against the employer.”
In Lange v. Union Pacific R. Co., 126 Fed. 338, 62 C. C. A. 48, this court held that the act of 1901 did not repeal the act of 1893. It was there said that:
“The conditions, limitations and procedure of the act of 1893 are in tlieir nature applicable to like causes arising under the act of 1901, which in effect is merely an extension and enlargement of the field of operation.”
It is true that in the Lange Case the negligence alleged came within oné of the provisions of the act of 1893, but the holding of the court that the act of 1901 in no way repealed the act of 1893 would leave the conditions upon which the liability of the master depended under the act of 1893 in full force as to the liability provided in the act of 1901. In other words, the court held that the two acts must stand together,, the latter act simply enlarging the liability of the master. It was also held in the Lange Case that the failure to give the notice required by the act of 1893 was fatal to the case, because the liability of the master was conditioned upon the giving of the notice.
In Simerson v. St. Louis & S. F. R. Co., 173 Fed. 612, 97 C. C.
“Tlie motion for a directed verdict at tlie close of the proof, on whatever ground it may hare been argued, raised a question of law whether giving full force and effect to all the facts proven a cause of action had been made out under the law.”
In Denver & R. G. R. Co. v. Wagner, 167 Fed. 75, 92 C. C. A. 527, a case in this court, it was held that a petition for death of a passenger under the statutes of New Mexico giving a right of action to the surviving widow of a person killed by wrongful act which failed to allege notice to the carrier served within the territory, as required by Laws of New Mexico 1903, p. 51, c. 33, amending the statute under which the action was brought, was fatally defective. It was also held in this case that a motion for a directed verdict would effectually raise this question for the reason that the request for a directed verdict suggests that, under the law and undisputed evidence applied thereto, the plaintiff is not entitled to recover.
Under the authority of the cases cited, we are of the opinion that the motion for a directed verdict raised the question of the right of the plaintiff to recover, and that for a failure to give the notice required by the statute the verdict should have been directed for the defendant.
!t results that the judgment of the court below must be reversed, and a new trial ordered.