William Wheeler Thornton.

A treatise on the Federal employers' liability and safety appliance acts, and on the federal statutes on hours of labor, including Interstate commerce commission's rules and diagrams for equiments of cars online

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192; 40 So. Rep. 280.

••Coflfey, etc., Co. v. Carter, 66
Kan. 565; 70 Pac. Rep. 635.

•» Fajardo v. New York Cent R.
Co. 84 N. Y. App. Div. 354.

■* Chesapeake A Ohio Ry. Co. y.
Dwyer, 162 Ky. 427; 172 S. W. 918;
Cox V. Wilmington, etc., Ry. Co.
4 Penn. 162 (Del.) 53 Atl. Rep. 569.

*' Consolidated Store Co. v. Mor-
gan, 160 Ind. 241; 66 N. E. Rep.
696; Chicago, etc., R. Co. v. DriscoU,
207 HI. 9; 69 N. E. Rep. 620; but
see Hewill v. East, etc., Co. (Mich.)
98 N. W. Rep. 992.

•* Cameron, etc., Co. v. Anderson,
98 Tex. 156; 81 S. W. Rep. 282;
McCoullough V. Chicago, R. I. A
P. Ry. Co. 160 Iowa 524; 142 N. W.
67; Cain v. Southern Ry. Co. 199
Fed. 211.

Mortality tables may be based on
the expectancy of life. Mix v. Ham-
burg, etc., Co. 85 N. Y. App. Div.
475; 83 N. Y. St. 322; Knott v.



Peterson, 125 la. 404; 101 N. W.
Rep. 524; Ft. Worth, etc., R. Co. v.
Linthicum, 33 Tex. Civ. App. 375;
77 S. W. Rep. 40. See § 174

» Halverson v. Seattle El. Co. 35
Wash. 600; 77 Pac. Rep. 1058;
Barnes v. Columbia Lead Co. 107
Mo. App. 608; 82 S. W. Rep. 203;
American R. Co. v. Birch, 224 U. S.
547; 32 Sup. Ct. 603; 56 L. Ed. 879.

•• Reed v. Queen Anne R. Co. 4
Penn. (Del.) 413; 57 Atl. Rep. 529;
Houston, etc., R. Co. v. Turner, 34
Tex. Civ. App. 397; 78 S. W. Rep.
712 (jury to consider whether a less
sum presently paid would compen-
sate her). Kenney v. Seaboard Air
Line Ry. Co. 165 N. C. 99; 80 S. E.
1078, with which compare Louisville
A N. R Co. V. Stewart, 156 Ky. 550;
161 S. W. 557, modified 157 Ky. 642;
163 S. W. 755.

But it has been held that the wid-
ow's recovery for pecuniary loss can-
not exceed the probable earnings of
the deceased. Chesapeake & Ohio
Ry. Co. V. Dwyer, 162 Ky. 427; 172
S. W. 918.

»» Illinois Central R. Co. v. Doher-
ty, 153 Ky. 363; 155 S. W. 1119;



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DAMAGES.



247



of deceased evincing a probable support are admissible.** If
the suit is for the loss of a wife, the husband being the
beneficiary, the fact of his remarriage cannot be shown.'*
The jury must determine the amount of the loss, and to do
this may apply their own observation, experience and knowl-
edge to the circumstances of the case ;*® but they must con-
fine themselves to the evidence.*^ The expectancy of the
life of the deceased may be shown ;•* but to show this the
longevity of the father or mother of the deceased cannot be
shown.** If the beneficiaries are dependent upon the de-
ceasedy then their expectancy in life may be shown.** The
fact that the deceased father may have become impoverished
if he had lived, and thus a burden to his children, need not
be considered by the jury.** It cannot be shown what would
be the cost of an annuity bond on the deceased's expectancy
of life which would be sufficient to produce an annual in-
come equal to his annual income at the time of his death.**
In case of the death of a parent leaving a minor child, the
child's loss of care, education, support and moral training
is a subject for the jury's consideration ;*^ and it may also be



McCouIlough V. Chicago, R. I. 4: P.
Ry. Co. 160 Iowa 524; 142 N. W. 67:
Standard, etc., Co. v. Munaey, 33
Tex. Civ. App. 416; 76 S. W. Rep.
031; Cheeap^kke k O. Ry. Co. v.
Dwyer, 157 Ky. 590; 163 S. W. 752.

••Gulf, etc., R. Co. V. Brown, 33
Tex. Civ. App. 269; 76 8. W. Rep.
794.

••International, etc., Ry. Co. v.
Boykin (Tex. Qv. App.) 85 S. W.
Rep. 1163: St. Louis, etc., R. Co.
V. Cleere (Ark.) 88 8. W. Rep. 995
(a wife remarrying).

•• Denver, etc., R. Co. v. Gunning,
33 Colo. 280; 80 Pac. Rep. 727;
Utah, etc., Co. v. Diamond, etc., Co.
26 Utah, 299; 73 Pac. Rep. 524.

••Cleveland, etc., R. Co. v.
Drumm, 32 Ind. App. 547; 70 N. £.
Rep. 286.

•* Coflfeyville, etc., Co. v. Carter,
65 Kan. 565; 70 Pac. Rep. 635;
Haines v. Pearson, 100 Mo. App.
551; 75 8. W. Rep. 194; Jones v.



Kansas City, 178 Mo. 528; 77 S.
W. Rep. 890.

••Hinsdale v. New York, etc, R.
Co. 81 N. Y. App. Div. 617.

•<The Dauntless, 121 Fed. Rep.
420.

•• Stemples v. Metropolitan St. Ry.
Co. 174 N. Y. 512; 66 N. E. Rep. 1117.

•« Hinsdale v. New York, etc., R.
Co. 81 N. Y. App. Div. 617.

The pectmiary damages cannot be
vitiated to an amount which at inter-
est, would, together with the principal,
yidd the decedent's defendant an
annual income equal to the amount
he would otherwise have received
during the period of his life expect-
ancy. Chesapeake & Ohio Ry. Co. v.
Dwyer, 157 Ky. 590; 172 S. W. 918;
Chesapeake & Ohio Ry. Co. v.
Kelley, 160 Ky. 296; 169 S. W. 736.

•'Ganoche v. Johnson, etc., Co.
116 Mo. App. 596; 92 S. W. Rep.
918; Beaumont, etc., Co. v.Dil-
worth, 16 Tex. Ct. Rep. 257; 94 S.



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248



FEDERAL, EMPLOYERS' LIABILITY ACT.



shown in defense that he had abandoned it;®* or his solici-
tude for its moral training.** In case of the death of a minor
child, the value of his services until maturity may be re-
covered ;^®® and it may be shown that he was obedient, indus-
trious and economical.^®^ But it should be observed that the
damages to the child are not limited to those which accrued
during his minority.^®* If a parent is the beneficiary, then
damages may be awarded for reasonable expectation of the
parent of benefits that might have accrued for the services
of the deceased child ;^®* but not for grief or anguish to
the parent nor for sufferings of the child.^®* The parent
when dependent on the child is entitled to recover more
than nominal damages.^®' The amount of property left by
the deceased is not a subject of inquiry,^®' nor the pecuni-
ary resources of the widow or next of kin or their unfor-
tunate condition.^®^ Declarations of the deceased concerning
efforts of his children to get his property away from him are



W. Rep. 352; Texas, etc., R. Co. v.
Green, 16 Tex. Ct. Rep. 133; 95 S. W.
Rep. 694; McCouIloujgh v. Chicago,
R. I. & P. Ry. Co. 160 Iowa 524;
142 N. W. 67.

^Beaumont, etc., Co. v. Dil-
worth, mpra,

» St. Louis, etc., R. Co. v. Mathias
(Ark.) 91 S. W. Rep. 763.

JM Cumberland, etc., Co. v. Ander-
son, 89 Miss. 732; 41 So. Rep. 263;
McCoullough V. Chicago, R. I. & P.
Ry. Co. 160 Iowa 524; 142 N. W.
67.

"* Anthony, etc., Co. v. Ashby,

198 ni. 562; 64 N. E. Rep. 1109;
Stempels v. Metropolitan St. Ry.
Co. 174 N. Y. 512; 66 N. E. Rep.
1117; St. Louis, etc., Ry. Co. v.
Haist, 71 Ark. 258; 72 S. W. Rep. 893;
McCoullough V. Chicago, R. I. & P.
Ry. Co. 160 Iowa 524; 142 N. W. 67.

>«* Galveston, etc., Ry. Co. v.
Puenta, 30 Tex. Civ. App. 246; 70
S. W. Rep. 362.

»M Chicago, etc., R. Co. v. Beaver,

199 ni. 34; 65 N. E. Rep. 144; Corbett
V. Oregon, etc., R. Co. 26 Utah, 449;
71 Pac. Rep. 1065; Draper v. Tucker,



69 Neb. 434; 95 N. W. Rep. 1026;
Garrett v. Louisville & N. R. Co.
197 Fed. 715; 117 C. C. A. 109, but
not loss of the son's society and com-
panionship. American R. Co. v.
Didricksen, 227 U. S. 145; 33 Sup.
Ct. 224; 57 L. Ed. 456. In this last
case it was held error to say to the
jury that they might "take into
consideration the fact that they
[the beneficiaries] are the father and
mother of the deceased, and the fact
that they are deprived of his society
and any care and consideration he
might take of them or have for them
during his life," especially as there
was no allegation of any such loss,
nor evidence relating to the subject
or from which its pecuniary value
would have been estimated.

*•* Corbett v. Oregon, etc., Ry.
Co. supra,

*^ Bowerman v. Lackawanna Min-
mg Co. 98 Mo. App. 308; 71 8. W.
Rep. 10^. The burden is not on the
iMntiff to show that the deceased
would have contributed to the
parents' support. Raines v. Southern
Ry. Co. (N. C.) 85S. E. 294.

iM Chicago, etc., R. Co. v. Holmes,
68 Neb. 826; 94 N. W. Rep. 1007.

"» Pittsburg, etc., R. Co. v. Kin-
mare, 203 III 388; 67 N. E. Rep. 826.



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DAMAGES.



249



not admissible."® The physical condition of the beneficiary
cannot be shown;"* nor loss of society"® and grief. "^
**What the measure of damages should be depends to a
great extent upon the relationship of the survivors to the
deceased and the pecuniary loss sustained by them by reason
of his death. The widow and children are naturally de-
pendent upon him to a greater extent than any other rela-
tive and entitled to support from the husband and parent.
For this reason they would no doubt be entitled to a larger
compensation than other relatives. Next to them the par-
ents are more dependent upon a son than any others, as
there is not only a moral, but a legal, duty on the part of a
child to contribute toward the support and maintenance of
his parents when they are unable to support themselves.
The provisions for the benefit of relatives other than those
before mentioned is not unlimited, as the act expressly
provides only for such next of kin as were * dependent' upon
the deceased. The amount of recovery must naturally de-
pend to a very great extent upon the contribution by the
deceased to those for whose benefit the action is prosecuted
by the personal representative. If the deceased contrib-
uted nothing toward the support of the next of kin and he
leaves no widow, children, or parents surviving him there
can be no recovery, because they sustained no pecuniary
loss by reason of his death. "^^^ There can be no recovery



»" Brown V. Southern Ry. Co. 65
S. C. 260; 43 S. E. Rep. 794.

»• Seattle, etc., Co. v. Hartless,
144 Fed. Rep. 379; contra, Evarts
V. Santa Barbara, etc., R. Co. 3
Cal. App. 712; 86 Pac. Rep. 830;
Emery v. Philadelphia, 208 Pa. St.
492; 57 Atl. Rep. 977; Fidelity, etc.,
Co. V. Buisard, 69 Kan. 330; 76 Pa.
St. 832; Texa«, etc., R. Co. v. Green,
15 Tex. Ct. Rep. 133; 95 S. W. Rep.
694; Texarkana, etc., R. Co. v.
Fugier, 16 Tex. Ct. Rep. 724; 95 S.
W. Rep. 563.

"• New York C. & St. L. R. Co. v.
Niebd. 214 Fed. 952.



^^^ Contra, Evarts v. Santa Bar-
bara, etc., R. Co. supra; Brickman
V. Southern R. Co. 74 S. C. 306;
54 S. E. Rep. 553; Parker v. Crowell,
etc., Co. 115 La. 463; 39 So. Rep. 445;
Kelley v. Ohio, etc., R. Co. 58 W.
Va. 216; 52 S. E. Rep. 520.

"*Fithian v. St. Louis & S. F.
Ry. Co. 188 Fed. 842; Duke v. St.
Louis & S. F. R. Co. 172 Fed. 684;
192 Fed. 306; 112 C. C. A. 564;
American R. Co. v. Birch, 224 U. S.
547; 32 Sup. a. 603; 56 L. Ed. 879;
McCoullough V. Chicago, R. I. & P.
R. Co. 160 Iowa 524; 142 N. W. 67.



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250



FEDERAL. EMPLOYERS* LIABILITY ACT.



of punitive damages, all consideration of punitive elements
being excluded ;*" nor for funeral expenses."*

§174. Use of annuity tables. — ^In determining the
amount of damages, annuity tables may be resorted to where
the action is brought by the personal representative, but not
if the action be a continuation of the one brought by the
deceased. These '* tables may be considered by the jury in
ascertaining the compensation the plaintiff is entitled to
receive for the pecuniary injuries sustained by the widow
and children by reason of the death of the intestate; but
the jury may also consider the state of health of the in-
testate, his age, habits, occupation, and the likelihood of
his being able to work during the period of his expectancy
of life.''"'

§ 175. Interest. — ^Interest cannot be added by the jury or
court upon the amount due, because the statute does not
provide for it ;"• nor can interest be allowed on the verdict,
even though a state statute provides for it."^

§ 176. Damages not part of the estate. — Aa the amount
recovered is for the benefit of the beneficiaries it forms no
part of the estate,"® and cannot be taken to pay its debts."*



'"Michigan Central R. Co. v.
Vreeland, 227 U. S. 59; 33 Sup. Ct.
192; 57 L. Ed. 417; American R. Co.
V. Didricksen, 227 U. S. 145; 33 Sup.
Ct. 224; 57 L. Ed. 456; Cain v. South-
cm R. Co. 199 Fed. 211; St. Louis,
etc., R. Co. V. Geer (Tex. Civ. App.)
149 S. W. 1178.

"* Collins V. Pennsylvania R. Co.
163 App. Div. 452; 148 N. Y. Supp.
777.

Where counsel said to the jury
that the verdict asked was not a very
serious matter to a railroad company,
"taking from them a few coppers,
but it means a good deal to the plain-
tiff," his statement was held to ex-
ceed the limit of legitimate advocacy.
Caverhill v. Boston & M. R. Co.
(Vt.) 91 Atl. 917.

The photograph of the deceased
cannot be used to show his physical



condition. Smith v. Lehigh, etc.,
R. Co. 177 N. Y. 379; 69 N. E. Rep.
729

"'» Walsh V. New York, N. H. A H.
R. Co. 173 Fed. 494. Note 84, p. 236.

"« Central R. Co. v. Sears, 66 Ga.
499; Cook v. New York, etc., R. Co.
10 Hun. 426.

"^ Norton v. Erie R. Co. 163 App.
Div. 468; 148 N. Y. Supp. 771.

"« Taylor v. Taylor, 232 U. S. 363;
34 Sup. Ct. 350; 58 L. Ed. 638; Mc-
Coullough V. Chicago, R. I. A P. Ry.
Co. 160 Iowa 524; 142 N. W. 67;
Gottlieb V. North Jersey St. Ry. Co.
72 N. J. L. 480; 63 Atl. Rep. 339;
Cleveland, etc., R. Co. v. Osgood,
34 Ind. App. 34; 73 N. E. Rep. 285.

"•In re Williams Est. 130 Iowa
553; 107 N. W. Rep. 608; Western
R. Co. V. Russell, 144 Ala. 142;
39 So. Rep. 311.



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DAMAGEa 251

Thus, damages occasioned to his employer by the deceased
cannot be set oflf against the amount recoverable for his
death.""

§177. Amount of damages— Illustrations.— I can give
only a few illustrations of the amount of damages recovered
under this statute prior to 1910, with the courts' de-
cisions. Thus where a brakeman of 24 years, earning $80
to $85 per month, having a life expectancy of thirty-nine
years and six months, whose health before the injury was
good and afterwards poor, suflfered severe pain at the time
of the accident, and four or five days had his right arm
amputated two inches below the elbow, it was held that a
verdict for $15,000 should be reduced to $12,000."^ In an-
other case the deceased employee was 29 years of age at
his death, and had a life expectancy of 36 years, if he had
been in normal health. He married when 20 years of age,
and during the succeeding nine years, though apparently
industrious, he had spent several thousand dollars of his
wife's estate and all he himself had made, and left an estate
of only $250. Before he was married he taught school, and
after marriage did hauling, stacked lumber in a sawmill,
worked on a farm a year, and then began breaking on de-
fendant railway, contributing to his wife and five children
an average of $34 per month. During his married life he
had been confined in a hospital with a bronchial cough. One
of his lungs was dead, and testimony showed that that fact
would greatly shorten his life. The jury gave a verdict for
$17,545, but the court cut it down to $6,000.^ In another
case of instantaneous death, where no allowance was made
for suflfering, and where the deceased had been guilty of
such contributory negligence as would have barred a recov-
ery but for the statute, a verdict for $10,000 was reduced
to $7,500.^ Where an employee had both legs cut off at the

*»WeBtem R, Co. v. Ruasell, >Duke v. St. Louk, etc., R. Co.

#»pro. 172 Fed. 684.

"» Bradbury v. Chicago, R. LAP. « Cain v. Southern R. Co. 199 Fed.

Ry. Co. 149 Iowa, 61 ; 128 N. W. 1. 211, 213.



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252 FEDERAL. EMPLOYERS* LIABILITY ACT.

knees, and during the five hours he lived suflPered great
pain, and mental anguish in contemplation of death, con-
tinually begging persons near to pray for him, a verdict for
$10,000 for pain and mental anguish he suffered was re-
duced to $5,000.* A freight conductor was killed in the
yards by reason of his own negligence while on his way to
enter his caboose, his train having just been made up. His
negligence consisted in his failure to observe or heed the
signals of a switch engine, and in walking down the track
ahead of it. No negligence on the part of the defendant
railway was shown, and on that ground the verdict was set
aside. But the court said that a verdict of $35,000 was
excessive even though the defendant had been negligent.*
An engineer left a widow and four children. The youngest
child was six years old and mentally afflicted. The jury
returned a verdict for $11,885, giving to the widow and
three older children each an equal amount and to the
youngest $4,465. It was held that the amount awarded the
youngest child was not excessive.* $20,000 for widow and
child beneficiaries has been held not excessive.* A common
laborer, 23 years old, remained with and assisted his par-
ents until a few months before his death. Out of his first
month's wages he sent $10 to his father because of the lat-
ter 's needs. The parents worked on the farm, but did not
own it. It was held that there was not such a failure of
proof of pecuniary loss to the parents that the defendant
was entitled to either a judgment because of a verdict for
$2,000 or a new trial.^ Where the evidence only showed
the mere fact that contributions had been made to his par-
ents by the deceased son in some amount by paying for his
board and room for two years or more, the parents being

• St. Louis, etc., R. Co. v. Hesterly, • Southern Ry. Co. v. Vaughn
98 Ark. 240; 135 S. W. 874, but (Tex. Civ. App.) 164 S. W. 885.
reversed on other points. St. liouis, Contra, where a brakeman was eam-
etc., R. Co. V. Hesterly, 228 U. S. ing only SlOO per month. Gulf C.
702; 33 Sup. Ct. 703; 57 L. Ed. 1031. & S. F. Ry. Co. (Tex. Civ. App.)

*NeU V. Idaho, etc., R. Co. 22 153 S. W. 651.
Idaho 74; 126 Pac. 331. ^ Lundeen v. Great Northern Ry.

• Louisville & N. R. Co. v. Stewart Co. (Minn.) 160 N. W. 1088.
(Ky.) 174 S. W. 744.



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DAMAGES. 253

working people between 50 and 60 years of age, a verdict
for $5y000 was held unsupported by the evidence.®

§ 178. Contributory negligence reducing the amount of
recovery. — The statute expressly provides that **the fact
that the employee may have been guilty of contributory
negligence shall not bar a recovery, but the damages shall be
diminished by the jury in proportion to the amount of neg-
ligence attributable to such employee.''® It will thus be seen
that contributory negligence does not prohibit a recovery,
but it does reduce the damages otherwise recoverable. The
meaning of the statute is that where the casual negligence is
partly attributable to the employee and partly to the car-
rier, he can recover only a proportional amount, bearing the
same relation to the full amount as the negligence attribut-
able to the carrier bears to the entire negligence attribut-
able to both.^*^ Thus where a freight conductor was negli-
gent in failing to see that the switch of the siding, on which
his train had entered, was closed, and the engineer of the
passenger train following was also negligent in not discov-
ering that the switch was open, in time to have stopped his
train, it was held proper for the court to tell the jury the
deceased was guilty of contributory negligence, and that the
jury, after having found the amount of damages to which
his next of kin would be entitled in the absence of his con-
tributory negligence, they should abate that sum by the
amount they should find represented his proportionate con-
tributory negligence. ** Manifestly,'' said the Circuit Court
of Appeals, **to give eflPect to the act, it is essential that the
relative amounts caused by the negligence of the respective

' McCoullough y. Chicago, R. I. k contributory neglect, and a failure

P. Ry. Co. 160 Iowa, 524; 142 N. W. to do so is a reversible error. Illinois

67. $10,000 for loss of right arm. Central Ry. Co. v. Nelson, 203 Fed.

Plaintiff earning $125 per month, and 957; Carpenter v. Kansas City Ry.

60 years old. Knapp v. Great North- Co. (Mo. App.) 175 S. W. 234.

em Ry. Co. (Minn.) 153 N. W. 848. Contributory negligence reduces the

* Section 3 of statute. damages. Kenney v. Seaboard Air

^« Norfolk, etc., R. Co. v. Earnest, Line Rv. Co. 165 N. C. 99; 80 S. E.

229 U. S. 114; 33 Sup. Ct. 654; 57 1078; La Mere v. Ry. Transfer Co.

L. Ed. 1096; Seaboard A. L. Ry. Co. 125 Minn. 526; 145 N. W. 1068;

V. Tilghman, 35 Sup. Ct. 653, revers- Bowers v. Southern Ry. Co. 10 Ga.

ing 167 N. C. 163; 83 S. E. 315, 1090. App. 367; 73 S. E. 677; Jones v.

It is the duty of the court, on Kansas City So. Ry. Co. (La.) 68

request, to give concrete instructions So. 401; Rains v. Southern Ry. Co.

defining the acts which amount to (N. C.) 85 S. E. 294.



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254 FEDERAL EMPLOYERS* LIABILITY ACT.

parties should be declared, and we know of no fairer method
than that followed by the trial judge in the ease."^^ The
contributory negligence of the employee must be compared
with the entire negligence involved in the case and not
**with the negligence of the defendant*' alone. Thus where
the court told the jury that where the plaintiff was guilty
of contributory negligence the damages should be dimin-
ished in proportion to the amount of negligence attributable
to the plaintiff, which ''goes by way of diminution of
damages,'' it was held that no error was committed by the
use of the quoted words, but that the additional words ''as
compared with the negligence of the defendant were er-
roneous.'' "But for the use in the second instance of the
additional words," said the court, " 'as compared with the
negligence of the defendant,' there would be no room for
criticism. These words were not happily chosen, for to have
reflected what the statute contemplates they should have
read, 'as compared with the combined negligence of him-
self and the defendant.' We say this because the statutory
direction that the diminution shall be 'in proportion to the
amount of negligence attributable to such employee' means
and can only mean, that, where the casual negligence is
partly attributable to him and partly to the carrier, he shall
not recover full damages, but only a proportional amount,
bearing the same relation to the full amount as the negli-
gence attributable to the carrier bears to the entire negli-
gence attributable to both ; the purpose being to abrogate the
common law rule completely exonerating the carrier from
liability in such case, and to substitute a new rule, confining
the exoneration to a proportional part of the damages,
corresponding to the amount of negligence attributable to
the employee."" Under this rule, if the carrier is negligent

" Louiflville, etc., R. Co. v. Wene, L. Ed. 785; Pennsylvania R. Co. v.

202 Fed. 887: 121 C. C. A. 245: Sheeley, 221 Fed. 901.
lUinoiB Central R. Co. v. Porter, 207 Under this rule if the employee

Fed. 311; 125 C. C. A. 55. has suffered damages to the amount

1' Norfolk, etc., R. Co. v. Earnest, of $4,000, but he was guilty of one-

229 U. S. 114; 33 Sup. Ct. 054; 57 fourth of the entire negtigenoe in-



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DAMAGES.



255



in any degree, no negligence on the part of the employee,
however great, will defeat a recovery by him." But if the
injury is not caused by the negligence of the carrier, there
can be no recovery.** It must be remembered that the
statute expressly provides that contributory negligence does
not diminish the damages where the failure of the carrier
to comply with the Federal Safety Appliance Acts (or
Hours of Service Act) contributed to the injury.**



volved, he would be entitled to
recover $3,000. Peniuylvania R.
Ck>. y. Gou^ous, 208 Fed. 961;
126 0. 0. A. 39. See also NashviUe,
C. A St. L. Ry. Co. v. Henry, 158
Ky. 88; 164 S. W. 310; NaahviUe,
C. & St. L. Ry. Co. V. Banks, 156
Ky. 609; 161 S. W. 554; Grand Trunk
Western Ry. Co. v. Lindsay, 233
U. S. 42; 34 Sup. a. 581 ; 68 L. Ed. — .

"Pennsylvania Co. v. Cole, 214
Fed. 948; White v. Central Vermont
Ry. Co. 87 Vt. 330; 89 Atl. 618;
Seaboard Air Line Ry. Co. v. Moore,
193 Fed. 1022; 113 C. C. A. 668,
affirmed 228 U. S. 433; 33 Sup. Ct.
580; 57 L. Ed. 907; New York C.
A St. L. R. Co. V. Niebel, 214 Fed.
952.

i« Ellis V. Louisville, H. & St. L.
Ry. Co. 155 Ky. 745; 160 S. W. 512;
Louisville & N. R. Co. v. Wene,
202 Fed. 887; 121 C. C. A. 245;
Paulkey v. Atchison, T. A S. F. Ry.
Co. (Mo.) 168 S. W. 274; Cincinnati,
N. O. A T. P. Ry. Co. v. Swann,
160 Ky. 458; 169 S. W. 886; Miller
V. Midiigan Central R. Co. (Mich.)
152 N. W. 235; Nelson v. Northern
Pac. Ry. Co. (Mont.) 148 Pac. 238;
Day V. Kelly (Mont.) 146 Pac. 930;
Smith V. St. Louis A S. F. R. Co.
(Kas.) 148 Pac. 759.

"Grand Trunk Western Ry. Co.
V. Lindsay, 233 U. S. 42; 34 Sup. a.



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