quence of which speed and a defect in one of the wheels of the car the body of the car left the tracks and was thrown to the ground, crushing the deceased beneath it and thus causing instant death.

It is alleged that a proper inspection of the wheel would have disclosed the defect in it, and, further, that if the train had been running within the limits of the requirements of the law the train might and would have been stopped before the accident occurred.

At the time of his death, it is alleged, that the deceased was forty-seven years of age, was receiving $42 per month, was a skilled and efficient railroad employé and was in vigorous health and strength. And it is alleged that his death was caused without negligence on his part and while he was in the faithful discharge of his duty.

It is declared that the "action is based upon an act of Congress entitled 'An Act relating to the Liability of Common Carriers by Railroads to their employés in certain cases,' approved April 22, 1908."

It is alleged that Ernest Victor Birch was poor in health and frail in body, and was dependent upon deceased for support.

Damages were prayed at $10,000.

The railroad company denied the specific allegations against it of speed and failure to inspect the wheels, alleged that they were inspected, and that no defects were visible or could be ascertained. It also put in issue the allegations of the complaint in regard to Ernest Victor Birch.

The answer alleged that no administration proceedings had been had on the estate of deceased, and that neither of the plaintiffs has been declared his heir as required by law. It is also alleged that Ernest Victor Birch was over the age of twenty-one years, and that deceased was under no legal obligation to support him.

The case was tried to a jury upon evidence conflicting

upon certain of the issues. There was no conflict as to the circumstances of the accident, the death of Birch in the line of duty, and that the accident was caused by a broken wheel, and that the train was not equipped with air brakes, but only with the ordinary hand brakes. There was conflict as to the speed of the train and as to whether the engineer in charge of the locomotive could see signals to stop or whether he disregarded them.

The instructions of the court, so far as material, will be noticed presently in considering the assignments of error. These assignments are: (1) The court erred in overruling the demurrer; (2) in denying the motion to dismiss the action and direct verdict on the ground that it had not been brought by the personal representative of the deceased as required by the statute upon which it was based; (3) in holding that the heirs could sue in their own names; (4) in refusing to give the following: "That the court instruct the jury that the Federal act with regard to safety appliances has no application to the question at bar." And (5) in refusing to instruct the jury as follows:

"That they [the plaintiffs in action] are entitled to recover the actual compensation that they would have received if he [the deceased] had not been killed, and that would be limited to the purchase of an annuity for his recognized period of life."

These assignments are reducible to three propositions, to-wit: (1) the capacity of plaintiffs to sue, (2) the application of the safety appliance law, and (3) the measure of damages. Their discussion requires a consideration of the Employers' Liability Law, as the amended complaint is based on that law. Section 2 of the act provides as follows (35 Stat. 65, c. 149):

"That every common carrier by railroad in the Territories, the District of Columbia, the Panama Canal Zone, or other possessions of the United States shall be liable in damages to any person suffering injury while he is em

Opinion of the Court.

224 U.S.

ployed by such carrier in any of said jurisdictions, or, in case of the death of such employé, to his or her personal representative, for the benefit of the surviving widow or husband and children of such employé; and, if none, then of such employé's parents; for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.'

Section 3 excludes the defense of contributory negligence, but requires the damages to be "diminished by the jury in proportion to the amount of negligence attributable to such employé." But provides that contributory negligence is not to be attributable to the employé injured or killed "where the violation by such common carrier of any statute enacted for the safety of employés contributed to the injury or death of such employé." And by § 4 assumption of risk by the employé is also excluded in such

case.

Such part of the instructions of the court as are necessary to be considered in connection with the act are, as given by the court, in effect as follows:

(1) The action is brought under the Employers' Liability Act of Congress of April 22, 1908, which is in force in Porto Rico, the provisions of which are explained as set out above.

(2) The damages can only be compensatory, and the measure of them is what the plaintiffs or either of them necessarily lose in or by the death of their husband and father, and in measuring these damages the jury may take into consideration the age, health and expectancy of life of the deceased, his earning capacity, his character, his mode of treatment of his family and the amount contributed out of his wages to them for their support, and calculate from these facts the amount the jury, as reason

able and practical men, believe the plaintiffs lose because of the death. If the deceased was guilty of contributory negligence the damages should be diminished in proportion to such negligence, and if it be established by a preponderence of the evidence that the violation by the defendant of the law of Congress requiring safety appliances upon its trains and cars contributed to the death of the deceased, or was the proximate cause thereof, then the deceased cannot be held to have been guilty of contributory negligence nor to have assumed the risk, if the jury believe that the absence of safety appliances in and about the train contributed to or was the proximate cause of the injury.

The Employers' Liability Act expressly applies to Porto Rico. It is, however, contended that the Safety Appliance Act does not. To this contention appellees answer that it is made a part of the former act by the provision of § 3 of that act "that no employé who may be injured or killed shall be held to have been guilty of contributory negligence in any case where the violation by such common carrier of any statute enacted for the safety of employés contributed to the injury or death of such employé." A similar provision is made in § 4 as to assumption of risk. These opposing contentions present a serious controversy. It is, however, really doubtful if they arise on the record. The charge in the complaint is that the deceased came to his death by being crushed under the body of a car upon which he was acting as brakeman, and that his death was "caused by the negligence of the defendant in failing to cause a proper inspection of the wheels." of the car, which "inspection would have discovered the unsafe condition of the wheel in question." As a further ground of negligence it was charged that the train was running at a high rate of speed, and that if it had been running within the speed "requirements of the law, the same might and would have been stopped

before the accident occurred." To these charges the testimony was directed to sustain or deny. The amount of testimony as to contributory negligence and assumption of risk we should not think was worthy of attention if the court and counsel had not considered an instruction was called for in regard to them, and, it may be, that the question is presented of the application of the Safety Appliance Act to Porto Rico. However, we are not called upon to decide it, as we find a fatal defect of parties.

In the original complaint defendant in error alleged that she was the widow of the deceased. To this a demurrer was filed alleging as a ground that the complaint did not "state in what capacity" she sued. Thereupon an amendment was directed and made, as we have indicated. In the amended complaint she joined with her Ernest Victor Birch, alleging him to be the son and herself the widow of the deceased. By agreement of the parties the demurrer to the original complaint was considered as a demurrer to the amended complaint, and as such it was overruled.

The record shows that at the trial the plaintiffs presented, against the objection of the company, a certificate from the proper insular court "in which it was certified that the plaintiffs in the action were the legal heirs of the deceased." Subsequently the court, in passing on and overruling a motion of the company for direction of a verdict for it upon the ground that the suit was not "brought by any person authorized under the national Employers' Liability Act to bring suit," said "that the suit being brought under the act of Congress of April 22, 1908, it is properly brought in the name of the only persons for whose benefit any recovery could be had, and it is the opinion of the court that the words used in section two of the act in question, 'to his or her personal representative,' cannot be construed to mean that it is necessary, in cases where only the husband or wife could inherit and are the only survivors, that they be forced, in the absence of any estate