COWEN et al. v. RAY, 108 F. 320

After the foregoing statement of- the case, G-ROSSOUP, Circuit Judge, delivered the, opinion of the court, as follows: The liability in this case is controlled by the following Indiana legislation:

Section seven thousand and eighty-three of the Revised Statutes of Indiana, which reads as follows: “That every railroad or other corporation, except municipal, operating in this state, shall be liable for damages for personal injury suffered by any employe while in its service, the employe so injured being in the exercise of due care and diligence, in the following cases: * * * Fourth: Where such injury was caused by the negligence of any person in the service of such corporation who has charge of any signal, telegraph office, switch yard, shop, round-house, locomotive engine or train upon a railway, or where such injury was caused by the negligence of any person, co-employe, or fellow servant engaged in the same common service of any of the several departments of the service of such corporation, the said person, co-employe, or 1'ellow-servant, at the time acting in the place, and performing the duty of the corporation in that behalf, and the person so injured obeying or conforming to the order of some superior at the time of such injury, having authority to direct.” Also

Section seven thousand and eighty-five (a part of the same Act) which reads as follows: “The damages recoverable under this act, shall be commensurate with the injury sustained unless death results from such injury; when, in such ease, the action shall survive and he governed in all respects by the law now in force as to such actions.” The general law in force was

Section two hundred and eighty-five, and provides: “When the death of one is caused by the wrongful act or omission of another, the personal representatives of the former may' maintain an action thoroior against the latter, if the former might have maintained an action, had he lived, against the latter for an injury for the same act or omission”; * * ::: and limits the damages to ten thousand dollars.

Though the answer avers that the appellee elected to take the benefits provided for by the contract with the relief department, and to waive the bringing of any suit for damages, it shows, upon further reading, that the appellee refused, as administratrix, to sign any release. Upon the answer, taken as a whole, it is apparent that, while willing to accept the one thousand dollars, as widow and beneficiary, she declined, as administratrix, to waive the right of action arising under

section two hundred and eighty-five of the Revised Statutes of Indiana. But though it has been ruled by the Supreme Court of Indiana, Railroad Co. v. Hosea, 152 Ind. 412, 53 N. E. 419, that an acceptance of benefits by the beneficiary is not a bar to a recovery by the ad-ministratrix for the use of the child of the deceased, under

section two hundred and eighty-five, it is insisted that the case now under consideration is to be determined, not by this ruling, but by the law of Maryland; and our attention is called to the fact that, by its own terms, the contract with the relief department is to be governed, in its construction and effect, by the laws of the state of Maryland. We can not concur in this view.

The statute of Indiana, as construed by the Supreme Court of Indiana, gives a right of action to. .the administratrix for the use of the children, notwithstanding the contract for benefits, or the acceptance of benefits by the appellee, as beneficiary. The statute differentiates her right, as administra-trix, from her interest, as beneficiary.

As administratrix, she has not consented that her right of action, conferred by the laws of Indiana, shall be governed by the law's of Maryland; and it is for the state within whose limits the negligent act is done to prescribe when, and under what circumstances, a cause of action resulting in death shall arise against a person or corporation operating within its limits. Nor is the acceptance'of benefits by tbe Eeal Estate and Improvement Company of Baltimore a discharge of this right of action of the administratrix. The assignment was to secure a loan.

Any payment made on account- of the relief contract to the extent of the unpaid portion of the loan, could, in a proper way, be claimed by the assignee. But there was no assignment by Bay of his right to sue for injuries resulting from the railroad company’s negligence, nor by the administratrix of her right to sue under

Section twro hundred and eighty-five. Nor upon the main issue is there, in our opinion, any error in the decree of the Circuit Court. There can be no question that, so far as the record discloses, Kay acted in the exercise of due care and diligence. Jumping from an engine at the moment it is about to collide with another train, under the circumstances disclosed, can not be held to be contributory negligence. The proof of negligence on the part of the appellants is equally clear. One of two things is apparent: Either the

schedule upon which the train ran did not, considering all possibilities, provide sufficient time for the siding of the freight train at Berlinton; or the brakeman, despatched with the torpedoes and signals, negligently failed to comply with the rules. In case of the former, liability could not be disputed. In case of the latter, although the brakeman may be regarded as a fellow servant of Ray, liability exists, if the brakeman falls within the persons enumerated in paragraph four of

Section seven thousand and eighty-three of the Revised Statutes of Indiana. . We are of the opinion that the brakeman was, within the meaning of that statute, a person in the service of the appellants, having charge of a signal. The rule of the company, framed to meet the emergency that came into existence, made it the duty of the fireman, or in case he was engaged, the brakeman, to go forward the stipulated distances, place the torpedoes and give the signal. It is not necessary to inquire why the fireman did not go.

The engineer, in command over the fireman, unq. .‘stionably determined that he should not go, and despatched instead the brakeman. From that moment, and for that occasion, the brakeman was in charge of the signal. Upon his discretion and fidelity depended the proper giving of the signal. His negligence, therefore, under the statute, was, constructively, the negligence of the appellants. The decree will be affirmed.