The New York court in the present case and the New Jersey court in Winfield v. Erie R.R. Co., 88 N.J.L. 619, hold that the act relates only to injuries resulting from negligence, while the California court in Smith v. Industrial Accident Commission, 26 Cal.App. 560, and the Illinois court in Staley v. Illinois Central R.R. Co., 268 Ill. 356, hold that it has a broader scope and makes negligence a test, — not of the applicability of the act, but of the carrier's duty or obligation to respond pecuniarily for the injury. Second Employers' Liability Cases, 223 U.S. 1, 53-55; St. Louis, Iron Mountain Southern Ry. Co. v. Hesterly, 228 U.S. 702; St. Louis, San Francisco Texas Ry. Co. v. Seale, 229 U.S. 156; Taylor v. Taylor, 232 U.S. 363; Chicago, Rock Island Pacific Ry. Co. v. Devine, 239. Page 149 239 U.S. 52; Texas Pacific Ry. Co. v. Rigsby, 241 U.S. 33, 41; Northern Pacific Ry. Co. v. Washington, 222 U.S. 370; Erie R.R. Co. v. New York, 233 U.S. 671; Southern Ry. Co. v. Railroad Commission, 236 U.S. 439. In our opinion the latter view is right and the other wrong. Whether and in what circumstances railroad companies engaging in interstate commerce shall be required to compensate their employees in such commerce for injuries sustained therein are matters in which the Nation as a whole is interested and there are weighty considerations why the controlling law should be uniform and not change at every state line. Baltimore Ohio R.R. Co. v. Baugh, 149 U.S. 368, 378-379. It was largely in recognition of this that the Employers' Liability Act was enacted by Congress. Second Employers' Liability Cases, 223 U.S. 1, 51. It was drafted and passed shortly following a message from the President advocating an adequate national law covering all such injuries and leaving to the action of the several
1915 Term. Chicago, R. I. P. R. Co. v. Devine, 239 U.S. 52; affirmance of judgment for plaintiff affirmed. Seaboard Air Line R. Co. v. Koennecke, 239 U.S. 352; affirmance of judgment for plaintiff affirmed.
But that contention cannot be sustained; for we are unable to say that every question that appellants have brought here for decision is so clearly not debatable and utterly lacking in merit as to require dismissal for want of substance.Micas v. Williams, 104 U.S. 556. Wabash R. Co. v. Flannigan 192 U.S. 29, 38. Deming v. Carlisle Packing Co., 226 U.S. 102, 105, 107. Erie R. Co. v. Solomon, 237 U.S. 427. Chicago, R.I. P. Ry. Co. v. Devine, 239 U.S. 52, 54. Sugarman v. United States, 249 U.S. 182. Quong Ham Wah Co. v. Industrial Comm'n., 255 U.S. 445, 448-449. Zucht v. King, 260 U.S. 174, 176. Roe v. Kansas, 278 U.S. 191. Seaboard Air Line Ry. v. Watson, 287 U.S. 86, 92.
The ground of the alternative motion to affirm the judgment of the Supreme Court is that the writ was taken for delay only and presents no substantial question for review. It should be granted if the questions on which the decision depends are so wanting in substance as not to need further argument. Rule 6, § 5; Missouri Pacific Ry. Co. v. Castle, 224 U.S. 541, 544; Chicago, Rock Island Pacific Ry. Co. v. Devine, 239 U.S. 52, 54; City of Boston v. Jackson, 260 U.S. 309. A single question is presented, which arises as follows: The plaintiffs in error, as resident taxpayers, filed a complaint in the Circuit Court challenging the validity of a consolidated school district which had been organized by the merger of several smaller districts, and praying that the defendants in error, as its officers, be enjoined from further maintaining schools or erecting school buildings therein, or issuing bonds thereof.
Having disposed thus of the grounds presented for dismissing the writ of error, we come to the alternative prayer for affirmance. Under paragraph 5 of Rule 6 of this Court, when the questions presented on such a motion are found by the Court, in view of our previous decisions, to be so wanting in substance as not to need further argument, we dispose of the case. Chicago, Rock Island Pacific Ry. Co. v. Devine, 239 U.S. 52, 54; Missouri Pacific Ry. Co. v. Castle, 224 U.S. 541, 544. The plaintiff in error comes to this Court because, as it says, the statute of 1918 of the Commonwealth, by which the trustees took over and are now operating the railway, impairs the obligation of the contract of lease of its property in the tunnels and subways to the railway company, and so violates the contract clause of the Federal Constitution. It further contends that the imposition of a tax merely to aid a private corporation, as in the Act of 1918 complained of, is not for a public purpose, and taxes collected therefor from it is taking its property without due process of law.
Before the court assesses damages, it will make two preliminary observations: (1) Recovery is limited to actual pecuniary loss; there may be no award for consortium. 46 U.S.C.A. § 688; 45 U.S.C.A. § 51; Chicago Rock Island Pacific Railroad Co., v. Devine, 239 U.S. 52, 36 S.Ct. 27, 60 L.Ed. 140; Belzoni Hardwood Lumber Co. v. Langford, 127 Miss. 234, 89 So. 919, 18 A.L.R. 1406; Berry v. St. Louis-San Francisco R.R. Co., 324 Mo. 775, 26 S.W.2d 988. (2) In the case of the deceased seamen whose heirs are seeking damages, the court award is in excess of and in addition to the $5,000 war risk insurance policy which has been paid. With respect to decedents Firth and Webb, no war risk insurance policy is involved.
Willgues v. Penn. R. Co., 298 S.W. 817; Shaw v. Railroad, 282 S.W. 423. (13) Recovery may be had for full pecuniary damages actually sustained. Devine v. Railroad, 239 U.S. 52. (14) Care, attention, labor and assistance rendered by deceased are proper elements of damage. Jenkins v. Wabash R. Co., 302 U.S. 737. (15) The Federal statute does not fix the limit as to the amount of damages; that question is left largely to the jury.
Damages are limited only to pecuniary loss of beneficiaries, including (1) present pecuniary value of lost contributions from all legitimate sources, (2) present pecuniary value of lost services of husband to wife, (3) present pecuniary value of lost education for children, and (4) present pecuniary value of lost care, counsel and training, for children. Chesapeake Ohio R.R. Co. v. Russo, 91 Ind. App. 648, 163 N.E. 283; Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 57 L.Ed. 417; Am. R. Co. v. Didricksen, 227 U.S. 145, 57 L.Ed. 456; Gulf, etc., R. Co. v. McGinnis, 228 U.S. 173, 57 L.Ed. 785; N.C.R. Co. v. Zachary, 232 U.S. 248, 58 L.Ed. 591; Norfolk, etc., R. Co. v. Holbrook, 235 U.S. 625, 59 L.Ed. 392; Chesapeake, etc., R. Co. v. Gainey, 241 U.S. 494, 60 L.Ed. 1124; Chesapeake, etc., R. Co. v. Kelly, 241 U.S. 485, 60 L.Ed. 1117; Devine v. Chicago, etc., R. Co., 266 Ill. 248, 239 U.S. 52, 60 L.Ed. 140. There is no error in measure of damages adopted.
In St. Louis-S. F. Ry. Co. v. Cauthen, 112 Okla. 256, 241 P. 188, certiorari denied, 270 U.S. 656, 70 L.Ed. 784, this court held that when a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury, and it is only where the facts are such that all reasonable men must draw the same conclusions from them that the question of negligence is ever considered one of law for the court. With reference to instructing a verdict in favor of defendant, it was held in Chicago, R.I. P. Ry. Co. v. Devine, 239 U.S. 52, 60 L.Ed. 140, that a contention that the trial court should have instructed a verdict in favor of the defendant on the ground that there was no evidence tending to show either negligence or that the company or that the deceased at the time of the particular transaction from which the injury arose was engaged in interstate commerce, is too lacking in substance to prevent the granting of a motion to affirm, where what is really involved is a mere dispute concerning the weight of conflicting tendencies of proof. In Pederson v. Delaware, L. W. R. Co., 229 U.S. 146, 57 L.Ed. 1125, it was held that the Federal Employers' Liability Act governs instances where the causal negligence is that of a fellow servant engaged in interstate commerce for injury to an employee while engaged in interstate commerce, and with reference to the request for a directed verdict in favor of defendant said:
See Flanders v. Georgia Southern F. R. Co., 68 Fla. 479, 67 South. Rep. 68. What was said by this Court in the above cause as to the applicability of the Federal law on the subject of employers liability it is unnecessary to repeat here. It is sufficient to say that it was there held that the exclusive remedy for injuries received by railroad employees while engaged in interstate commerce is under the Federal Employers Liability Act. See Chicago R.I. P. Ry. Co. v. Devine, 239 U.S. 52, 36 Sup. Ct. Rep. 27; Chicago R.I. P. Ry. Co. v. Wright, 239 U.S. 548, 36 Sup. Ct. Rep. 185; Wabash R. R. Co. v. Hayes, 234 U.S. 86, 34 Sup. Ct. Rep. 729. "Section 6 of the Federal Employers Liability Act provides that no action shall be maintained thereunder unless begun within two years from the date the cause of action accrued.