Every person, receiver or corporation owning or operating a railroad within this state shall be liable in damages for injury to, or the death of, any person in its employ, resulting from the negligence, in whole or in part, of said owner or operator, or of any of the officers, agents or employees thereof, or by reason of any defect or insufficiency, due to its negligence, in whole or in part, in its cars, engines, appliances, machinery, track, roadbed, works or other equipment.

An action for negligently causing the death of an employee as above provided shall be maintained by the executor or administrator for the benefit of the employee's surviving widow or husband and children; or if none, then his parents; or if none, then the next of kin dependent upon said deceased. The amount recovered may be distributed as provided by law. Any contract or agreement made in advance of such injury with any employee waiving or limiting any right to recover such damages shall be void.

This provision shall not be construed to affect the provisions of Section Two of Article Twenty-Two of this constitution, being the article upon Schedule.

ANNOTATIONS

Compiler's notes. — New Mexico Const., art. XXII, § 2, referred to in the last paragraph of this section, provides that the Federal Employers' Liability Act (45 U.S.C. §§ 51 to 60) shall remain in force in this state to the same extent as it was in the New Mexico territory, until otherwise provided by law.

Except for the Morstad case (catchlined "Section abrogates common law fellow servant doctrine"), the cases annotated under this section were decided under the Federal Employers' Liability Act. However, according to the New Mexico supreme court in Bourguet v. Atchison, T. & S.F.R.R., 65 N.M. 200, 334 P.2d 1107 (1958), the Federal Employers' Liability Act is set out in this section and N.M. Const., art. XXII, § 2. Accordingly, the cases have been placed under this section.

Cross references. — For general wrongful death action against public conveyance businesses, see 41-2-4 NMSA 1978.

For statute on injury to employees from defective equipment, see 63-3-23 NMSA 1978.

Section abrogates common law fellow servant doctrine as to railroads. Morstad v. Atchison, T. & S.F. Ry., 1918-NMSC-031, 23 N.M. 663, 170 P. 886.

Jurisdiction of federal district courts not curtailed. — Congress has not curtailed, withdrawn or denied jurisdiction of United States district courts by limiting right of removal. Bourguet v. Atchison, T. & S.F.R.R., 1958-NMSC-148, 65 N.M. 200, 334 P.2d 1107.

Duty to assume jurisdiction over these federal rights. — State court having jurisdiction to enforce rights similar to those created by an act of congress has mandatory duty to assume jurisdiction over federally created rights. Bourguet v. Atchison, T. & S.F.R.R., 1958-NMSC-148, 65 N.M. 200, 334 P.2d 1107.

Power in congress to force jurisdiction. — Congress, under supremacy clause of federal constitution, has power to force jurisdiction upon courts of the states where constitution of the state or legislature of the state has limited such jurisdiction. Bourguet v. Atchison, T. & S.F.R.R., 1958-NMSC-148, 65 N.M. 200, 334 P.2d 1107.

What constitutes negligence is federal question. — What constitutes negligence under Federal Employers' Liability Act is a federal question and does not vary in accordance with differing conceptions of negligence applicable under state and local laws for other purposes, and federal decisional law formulating and applying concept governs. Bourguet v. Atchison, T. & S.F. Ry., 1959-NMSC-005, 65 N.M. 207, 334 P.2d 1112.

Test of a jury case is simply whether proofs justify with reason conclusion that employer negligence played any part, even the slightest, in producing injury or death for which damages are sought. It does not matter that from the evidence jury may also with reason, on grounds of probability, attribute result to other causes, including employee's contributory negligence. Bourguet v. Atchison, T. & S.F. Ry., 1959-NMSC-005, 65 N.M. 207, 334 P.2d 1112; Rogers v. Missouri Pac. R.R., 352 U.S. 500, 77 S. Ct. 443, 1 L. Ed. 2d 493, reh'g denied, 353 U.S. 943, 77 S. Ct. 808, 1 L. Ed. 2d 764 (1957).

Test whether employer is liable for providing defective or improper tools is not whether employer knew them to be unsafe, but whether it exercised reasonable care and diligence to make them safe. Bourguet v. Atchison, T. & S.F. Ry., 1959-NMSC-005, 65 N.M. 207, 334 P.2d 1112.

No assumption of risk doctrine. — Every vestige of doctrine of assumption of risk has been eliminated. Bourguet v. Atchison, T. & S.F. Ry., 1959-NMSC-005, 65 N.M. 207, 334 P.2d 1112.

Employee need not request help first time he does job. — Defendant cannot escape liability because of plaintiff's failure to ask for additional help in performing assigned work for first time. Bourguet v. Atchison, T. & S.F. Ry., 1959-NMSC-005, 65 N.M. 207, 334 P.2d 1112.

Am. Jur. 2d, A.L.R. and C.J.S. references. — 32B Am. Jur. 2d Federal Employers' Liability and Compensation Acts § 5 et seq.; 27 Am. Jur. 2d Employment Relationship §§ 263 et seq., 393.

Validity of provisions denying right of action for simple negligence, 36 A.L.R. 1400.

Constitutionality of statutes imposing absolute liability on private persons or corporations, irrespective of negligence or breach of a specific statutory duty, for injury to person or property, 53 A.L.R. 875.

Employer's liability for negligence of an assistant procured or permitted by his employee without authority, 25 A.L.R.2d 984.

Defect in appliance or equipment as proximate cause of injury to railroad employee in repair or investigation thereof, 30 A.L.R.2d 1192.

Duty of railroad company towards employees with respect to close clearance of objects alongside track, 50 A.L.R.2d 674.

Surface of yard, duty of railroad company to prevent injury of employee due to, 57 A.L.R.2d 493.

Contributory negligence of railroad employee in jumping from moving train or car to avoid collision or other injury, 58 A.L.R.2d 1232.

Liability of master for injury or death of servant inflicted by fellow servant on master's premises where injury occurs outside working hours, 76 A.L.R.2d 1215.

Recovery of prejudgment interest in actions under the Federal Employers' Liability Act or Jones Act, 80 A.L.R. Fed. 185.

Excessiveness or adequacy of award of damages for personal injury or death in actions under Federal Employers' Liability Act (45 USCS § 51 et seq.) - modern cases, 97 A.L.R. Fed. 189.

30 C.J.S. Employers' Liability § 1 et seq.; 74 C.J.S. Railroads § 370.