Where appellants, plaintiffs below, had a verdict on the first
trial which was set aside on motion for new trial on which the
district court discussed questions arising under treaties and ruled
adversely to plaintiffs, and on the second trial the court ruled
adversely to plaintiffs under the federal statute, this Court will
presume that the court also considered the treaty questions, and a
direct appeal will lie to this Court based on the construction and
application of the treaty.
In deciding Maiorano v. Baltimore & Ohio Railroad
Co., 213 U. S. 268
which came here on writ of error from the state court, this Court
simply accepted the ruling of the state court that a nonresident
alien could not maintain an action for death of a relative under
the state statute, as being the construction by the highest court
of the that statute.
After reviewing the rulings of many jurisdictions in regard to
the right of nonresident aliens to maintain actions for death of
relatives under statutes giving the right, held
weight of authority in this country and in England is that alienage
is not a condition affecting right of recovery under the Federal
Employers' Liability Act.
whether under the favored nation provision in
the existing treaty with Great Britain and the express provision in
the treaty with Italy permitting Italian aliens, nonresident in the
United States, to maintain actions in the courts of the United
States and of the states, a citizen of Great Britain has a treaty
right to maintain an action for the death of a relation under the
Federal Employers' Liability Acts of 1908 and 1910.
In this case, held
that, in view of the conflict of
evidence as to the circumstances under which the intestate was
killed, the question of assumption of risk was properly presented
to the jury.
Where there has been a verdict for plaintiff and it has been set
aside on the ground that plaintiff has not capacity to sue, and on
Page 235 U. S. 390
trial a verdict directed for defendant on that ground, the
circuit court of appeals cannot reverse and direct judgment on the
original verdict even if the plaintiff waive a jury trial; the case
must be sent back for new trial.
Judgment based on 209 F. 975 reversed.
The facts, which involve the construction of the Federal
Employers' Liability Acts of 1908 and 1910 and the right of
nonresident aliens to maintain actions thereunder, and also
questions involving rights under the favored nation clause of the
treaty with Great Britain, are stated in the opinion.
Page 235 U. S. 397
MR. JUSTICE McKENNA delivered the opinion of the Court.
Action in trespass under the Railroad Employers' Liability Act
of Congress of April 22, 1908, 35 Stat. 65, c. 149, as amended
April 5, 1910, 36 Stat. 291, c. 143, brought against the railway
company, which, it is alleged, caused by negligence the death of
Peter McGovern, one of its employees. Plaintiff was duly appointed
administratrix of the estate of McGovern, and brought the action in
behalf of his surviving parents, who are citizens of Great Britain
McGovern was not married, was twenty-four years old, and was in
the habit of making regular contributions to the support of his
parents. The facts of the killing are not now in dispute, the
principal question in the case being whether, under the act of
Congress, and action can be maintained for the benefit of
There were two trials of the action. At the first trial,
plaintiff obtained a verdict. On motion of the railway company, the
court, being of opinion that the action could not be maintained for
the benefit of nonresident aliens, granted a new trial. 209 F. 975.
On the second trial, the railway company submitted to the court for
its affirmance the following propositions, among others: (1) the
parents of McGovern, being nonresident aliens, have no right under
the act of Congress for which the action might be maintained, and
therefore a verdict should be directed in favor of the company; (2)
under all of the evidence in the case, a verdict should be for the
company. The court affirmed the propositions and directed a verdict
for the company. The jury returned a verdict accordingly, and
judgment was duly entered for the railway company. This writ of
error was then sued out.
It is suggested, rather than urged, that the case is not
properly here on direct appeal. But the right of direct
Page 235 U. S. 398
appeal is based on the ground, among others, that the
construction and application of the treaty between the United
States and Great Britain and Ireland are involved in the case, the
favored nation clause of which gives the residents and citizens of
Great Britain and Ireland the same rights as those of Italy, and
that, by a treaty between the latter and the United States, its
citizens are entitled to exactly the same rights as citizens of
this country in the courts of this country, although the citizens
of Italy may be residing abroad.
In its first opinion in the case, the district court discussed
at length the question arising upon the treaty, and held adversely
to plaintiff. We must presume, therefore, that the court considered
the treaties as elements in its decision upon the right of McGovern
to recover for the benefit of the parents of the deceased. This
Court therefore has jurisdiction.
We need not, however, discuss the treaties. The view we take of
the statute makes such course unnecessary. But see Maiorano v.
Baltimore & Ohio R. Co., infra.
Section 1 of the Act of Congress provides that every common
carrier by railroad, while engaged in interstate commerce,
"shall be liable in damages to any person suffering injury while
he is employed by such carrier in such commerce, or, in case of the
death of such employee, to his or her personal representative for
the benefit of the surviving widow or husband and children of such
employee, and if none, then of such employee's parents . . . ,"
the carrier or its agents being negligent or its
instrumentalities being defective due to its negligence.
Seaboard Air Line v. Horton, 233 U.
, 233 U. S.
In ruling upon the statute, the district court considered that
the reasoning in Deni v. Penna. R. Co.,
181 Pa. 525, and
in Maiorano v. Baltimore & Ohio R. Co., 213 U.
, applied. I n the Deni
case, the Supreme
Court of Pennsylvania,
Page 235 U. S. 399
passing upon a statute of the state which permitted certain
named relatives to recover damages for death occurring through
negligence, held that the statute had no extraterritorial force,
and that plaintiff in the action was not within its purview, though
its language possibly admitted of the inclusion of nonresident
aliens. The Maiorano
case came to this Court on writ of
error to the Supreme Court of Pennsylvania, where the doctrine of
case was repeated and applied. This ruling was
simply accepted by this Court as the construction of the state
statute by the highest court of the state.
We concede some strength of persuasion to the Pennsylvania
decision, but to it may be opposed the ruling in other
jurisdictions. Mulhall v. Fallon,
176 Mass. 266;
Kellyville Coal Co. v. Petraytis,
195 Ill. 217;
Atchison, Topeka & Santa Fe Ry. v. Fajardo,
314. In the latter case and in Mulhall v. Fallon,
other cases are reviewed, including English and Canadian cases, and
it was concluded that the weight of authority in this country and
in England was that alienage is not a condition affecting a
recovery under acts such as that involved in the case at bar.
In Patek v. American Smelting Co.,
154 Fed.190, the
Circuit Court of Appeals for the Eighth Circuit passed on a statute
of Colorado which gave a right of action for wrongful death to
persons standing in certain relation to one whose death was caused
by the wrongful act of another. The court, after considering the
policy of the act as manifested in the legislation and reviewing
the cases under other statutes of like character, said:
"We think that the better reason, as also the greater weight of
adjudged cases, forbids that nonresident aliens be excluded, by
interpretation, from among the beneficiaries designated in the
We may refer to these cases for their reasoning without
reproducing it, and need not do much more than add that
Page 235 U. S. 400
the policy of the Employers' Liability Act accords with and
finds expression in the universality of its language. Its purpose
is something more than to give compensation for the negligence of
railroad companies. Even if that were its only object, we might
accept the distinction expressed in Mulhall v. Fallon,
between the duties imposed by a statute upon persons in
another state and benefits conferred upon them. Extraterritorial
application would naturally not be given to the first,
"but rights can be offered to such persons, and if, as is
usually the case, the power that governs them makes no objection,
there is nothing to hinder their accepting what is offered."
The rights and remedies of the statute are the means of
executing its policy. If this "puts burdens on our own citizens for
the benefit of nonresident aliens," as said by the district court,
quoting the Deni
it is a burden
imposed for wrongdoing that has caused the destruction of life. If
is to the prevention of this that the statute is directed. It is
for the protection of that life that compensation for its
destruction is given and to those who have relation to it. These
may be wife, children, or parents. The statute, indeed,
distinguishes between them, but what difference can it make where
they may reside? It is the fact of their relation to the life
destroyed that is the circumstance to be considered, whether we
consider the injury received by them or the influence of that
relation upon the life destroyed.
It is, however, contended by the railway company that the
deceased, McGovern, assumed the risk of his employment. This is
attempted to be supported by the facts in the case. The testimony
of plaintiff tended to show the following facts: McGovern was
killed by a train bound from New York to Philadelphia while he was
engaged in cleaning snow from the tracks of the railway company
when there were mist, smoke, and occasional flurries of
Page 235 U. S. 401
snow. At the place where the men were working were four main
lines of trackage. Shortly after 9 o'clock, the men were warned off
what was called track No. 4 by a call of the foreman to "look out"
or "heads up," in order to let a local train pass by.
McGovern and two others were working on track No. 2. There was
no call to them, the practice of the foreman being to designate the
track in his warning, the men on the other track continuing to
work. The foreman testified that he did not see the New York train
"because it was a bad morning, snowing, and the Norristown train
was a little bit slack, and there was steam and smoke and snow in
front of the New York train." The New York train gave no signal,
and no warning was given of it. It was testified that the watchman
had got his feet wet, and had gone to change his shoes. And it was
also in testimony that the Norristown train was slow, and the New
York train came fast, and that, while the men were attracted by the
first, the other rushed down upon them.
There was testimony by the railway company that the engine
whistled. One witness called it a "wicked whistle," and there was
also testimony that the men and McGovern directly were warned that
they were working in a dangerous place, and to be careful.
There was testimony that the watchman was not absent, and that
it was his duty to notify the workmen of approaching trains; that
the company, besides, have subforemen to direct the workmen; that
the men are "told to be careful" and to watch for themselves "and
depend upon the subforeman, of course. . . . No man should continue
working if he sees a train coming." It further appeared that the
place where the accident occurred was regarded as a dangerous
place, the tracks being in frequent use.
It is hence contended by the railway company that McGovern
assumed the risk of the situation, and that therefore
Page 235 U. S. 402
it was error for the district court to refuse to give an
instruction which presented that contention.
We have given the testimony in general outline, but enough to
show that what conflict there was in it was for the jury to judge
of and what deductions there were to be made from it were for the
jury to make. And the district court, being of this view, refused
to charge the jury, as we have seen, that McGovern had assumed the
risk of the situation. We cannot say that, as a matter of law, the
court was mistaken. We see no error therefore in its ruling.
Plaintiff in error contends that the district court should not
have ordered a new trial because she offered to waive her rights to
a trial by jury. This was not error.
Judgment reversed and cause remanded for new trial.