Jones v. Railway Company , 98 S.C. 197 ( 1914 )

July 16, 1914. The opinion of the Court was delivered by This action was brought under the statute of this State, known as Lord Campbell's act (Civil Code, 1912, secs. 3955 to 3958), to recover damages for the alleged wrongful death of plaintiff's intestate, who was killed while in the service of defendant as a brakeman, by being knocked down and run over by some freight cars which he was attempting to uncouple. At the time of the accident the defendant and its said employee were both engaged in interstate commerce. The deceased was a young man, twenty years of age, who had never married. His father and mother were dead, but he left a brother and sister, for whose benefit the action was brought.

The Circuit Court held that the proof brought the case within the Federal Employers' Liability Act (35 U.S. Stat. at L. 65 ch.; 149 U.S. Comp. Stat. Supp. 1911, p. 1132), which superseded the State statute on the same subject, and that there was no evidence that either the brother or sister was dependent on deceased, and directed a verdict for defendant.

Appellant contends that, as the act of Congress gives a right of action in favor of dependent relatives, while the State statute gives the right in favor of relatives, whether dependent or not, the two statutes do not cover precisely the same field, and, therefore, the State statute was not superseded, in so far as it gives a right of action in favor of relatives who are not dependent. This is a misconception of the scope of the legislation of Congress. It deals with the liability of interstate carriers by railroads for injuries to their employees while both are engaged in interstate commerce. It creates and determines that liability. It is paramount and exclusive, and necessarily supersedes the State law upon that subject. Therefore, the liability of such carriers for such injuries must be tested solely by the act of Congress, which cannot be pieced out by the State law on the same subject. St. Louis etc.Ry. Co. v. Hesterly, 33 Sup. Ct. 703; 228 U.S. 702;57 L.Ed. 1031, and cases cited: Wabash R. Co. v. Hayes (U.S.), filed May 25, 1914, 34 Sup. Ct. 729, 234 U.S. 86;Erie R. Co. v. New York, 34 Sup. Ct. 756; 233 U.S. 671.

It is contended further that, even in this view of the law, the testimony required submission of the case to the jury, because there was testimony from which the jury might have found that the surviving brother was dependent on deceased. The only testimony which is relied upon to sustain that contention was that the brother, who is a farmer, resident in the State of Alabama, had been sick and unable to work for sometime, and was still so, at the time of the trial. But there was no testimony that deceased had ever contributed anything to his support or maintenance, or had, at any time or under any circumstances, ever given him anything, or rendered him any service of pecuniary value; nor was there anything in the testimony to warrant the inference that he would have done so, if he had lived. Indeed, there was no testimony that the surviving brother's condition or circumstances were such that deceased would probably have felt impelled by the ties of brotherly affection to render him any service or assistance of pecuniary value, if he had lived. There was, therefore, no reasonable ground for expecting any pecuniary benefit to the survivor from the continuance of the life of the deceased. Gulf etc. Ry. Co. v.McGinnis, 33 Sup. Ct. 426, 228 U.S. 173, 57 L.Ed. 785, and cases cited.

Judgment affirmed.