New Orleans Company v. Harris/Opinion of the Court
While employed in interstate commerce by plaintiff in error, a common carrier by railroad then engaging in such commerce, Van Harris a brakeman was run over by the tender of an engine moving in the yard at New Orleans, Louisiana-February 5, 1914. He died within a few minutes without regaining consciousness. Having qualified as administratrix, his mother (defendant in error), charging negligence and relying upon the federal Employers' Liability Act, sued for damages in a state court for Lauderdale county, Mississippi. A judgment in her favor was affirmed by the Supreme Court without opinion.

The declaration contained no averment of conscious pain or suffering by deceased. It alleged:

'That by reason of the negligence hereinabove set out, the      defendant railroad company is liable for the killing of said      Van Harris and the administratrix is given the right to sue      by the act of Congress, she therefore brings this, her suit,      and demands judgment against the defendant for the sum of ten      thousand dollars.'

It further charged that the dead son had been his mother's sole support but contained no reference to his widow.

One witness who claimed to have seen the accident gave evidence tending to show negligence by the railroad; but his presence at the scene was not left free from doubt and other eyewitnesses narrated the circumstances differently. Concerning deceased's contributions to his mother's support, she said he was her sole dependence, paid her house rent, gave her something to eat, looked after her, was regularly at work and would bring home $30 or $40 a month. Her statements are the only evidence concerning the son's marriage and widow. He duly married Mollie on an undisclosed date; after living together for six months he fell ill and she left; thereafter her whereabouts were unknown to him; she was alive at time of trial (October, 1914); he left no child. Nothing indicates a divorce proceeding. Answering 'Do you know whether Mollie ever married anybody else or not?' the witness replied: 'I don't know, sir; I hear them say she married.'

Upon request of the administratrix, the following instructions (among others) were given to the jury:

'No. 1. The court charges the jury for the plaintiff in this      case that under the rule of evidence in the state of      Mississippi all that is required of the plaintiff in this      case is to prove that injury was inflicted by the movement of      the defendant's train or engine and then the law presumes      negligence and then the burden of proof shifts to the defendant to prove all of the facts and circumstances      surrounding the injury and from those facts so shown      exonerate itself from all negligence.

'No. 2. The court charges the jury for the plaintiff that      under the rule of evidence under the Mississippi statutes      known as the prima facie statute all that the plaintiff need      prove to entitle her to a judgment or verdict is that the      defendant's engine or train caused the injury complained of      and then the plaintiff is entitled to a verdict at the hands      of the jury unless the defendant has shown all of the facts      surrounding the injury and from such facts has shown by a      preponderance of the evidence that its servants were not      guilty of negligence.

'No. 3. The court charges the jury for the plaintiff that if      you believe from the evidence that deceased was injured by      the running of defendant's engine, then the burden placed on      defendant by the prima facie statute cannot be met or      overcome by mere speculation or conjecture, but it devolves      on defendant the duty of showing by a preponderance of the      evidence all of the facts and circumstances surrounding the      injury and by such proof thus exonerate itself from      negligence.'

'No. 8. The court charges the jury for the plaintiff in this      case that if your verdict shall be for the plaintiff then it      should be in such sum as you may believe from the evidence      would fully compensate the deceased for his pain and      suffering, if any have been shown by the evidence, and the      value of his life reckoned according to the American      Mortality Table had the deceased survived and that such      amount or the measure of same is peculiarly within the      province of the jury reckoned as avove outlined. And that the      law does not require the plaintiff to prove the damages in      dollars and cents but the amount thereof is to be fixed by      the jury in all not to exceed the sum of ten thousand      dollars.'

The so-called 'Prima Facie Act' of Mississippi, set out below,  provides that in actions against railroads for damages proof of injury inflicted by an engine propelled by steam shall be prima facie evidence of negligence. Relying upon and undertaking to apply this statute, the trial court gave the quoted instructions, and in so doing, we think committed error.

The federal courts have long held that where suit is brought against a railroad for injuries to an employe resulting from its negligence, such negligence is an affirmative fact which plaintiff must establish. The Nitro-Glycerine Case, 15 Wall. 524, 537, 21 L. Ed. 206; Patton v. Texas & Pacific Railway Co., 179 U.S. 658, 663, 21 Sup. Ct. 275, 45 L. Ed. 361; Looney v. Metropolitan Railroad Co., 200 U.S. 480, 487, 26 Sup. Ct. 303, 50 L. Ed. 564; Southern Ry. Co. v. Bennett, 233 U.S. 80, 85, 34 Sup. Ct. 566, 58 L. Ed. 860. In proceedings brought under the federal Employers' Liability Act rights and obligations depend upon it and applicable principles of common law as interpreted and applied in federal courts; and negligence is essential to recovery. Seaboard Air Line v. Horton, 233 U.S. 492, 501, 502, 34 Sup. Ct. 635, 58 L. Ed. 1062, L. R. A. 1915C, 1, Ann. Cas. 1915B. 475; Southern Ry. v. Gray, 241 U.S. 333, 339, 36 Sup. Ct. 558, 60 L. Ed. 1030; New York Central R. R. Co. v. Winfield, 244 U.S. 147, 150, 37 Sup. Ct. 546, 61 L. Ed. 1045, Ann. Cas. 1917D, 1139; Erie R. R. Co. v. Winfield, 244 U.S. 170, 172, 37 Sup. Ct. 556, 61 L. Ed. 1057. These established principles and our holding in Central Vermont Ry. v. White, 238 U.S. 507, 511, 512, 35 Sup. Ct. 865, 59 L. Ed. 1433, Ann. Cas. 1916B, 252, we think make it clear that the question of burden of proof is a matter of substance and not subject to control by laws of the several states.

It was also error to give quoted instruction number eight. Since the deceased endured no conscious suffering he had no right of action; and possible recovery was limited to pecuniary loss sustained by the designated beneficiary. Garrett v. Louisville & Nashville R. R., 235 U.S. 308, 312, 35 Sup. Ct. 32, 59 L. Ed. 242; Ches. & Ohio Ry. v. Kelly, 241 U.S. 485, 489, 36 Sup. Ct. 630, 60 L. Ed. 1117, L. R. A. 1917F, 367.

The act makes the widow sole beneficiary when there is no child and only in the absence of both may parents be considered. The deceased left a widow and although they had lived apart no claim is made that rights and liabilities consequent upon marriage had disappeared under local law. Of course, we do not go beyond the particular facts here disclosed. In the circumstances, proof of the mother's pecuniary loss could not support a recovery.

The judgment below is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed. 

Notes

'1985 (1808). Injury to Persons or Property by Railroads Prima Facie Evidence of Want of Reasonable Skill and Care, etc.-In all actions against railroad corporations and all other corporations, companies, partnerships and individuals using engines, locomotives, or cars of any kind or description whatsoever, propelled by the dangerous agencies of steam, electricity, gas, gasoline or lever power, and running on tracks, for damages done to persons or property, proof of injury inflicted by the running of the engines, locomotives or cars of any such railroad corporations or such other corporation, company, partnership or individual shall be prima facie evidence of the want of reasonable skill and care of such railroad corporation, or such other corporation, company, partnership or individual in reference to such injury. This section shall also apply to passengers and employes of railroad corporations and of such other corporations, companies, partnerships and individuals.'