ST. LOUIS, IRON MOUNTAIN, & SOUTHERN RAILWAY COMPANY, Plff, in Err., v. E. L. HESTERLY, Administrator of the Estate of W. B. Hesterly, Deceased.

This is an action for personal injuries resulting in the death of the plaintiff's intestate. There are two counts, the first for the pecuniary loss to the next of kin, laid at $5,000, the other for the injury and pain suffered by the intestate, laid at $25,000. The death was caused by a defect in a car on which the intestate was a brakeman, the car being part of a train running from Van Buren, Arkansas, to Coffeyville, Kansas. The jury found a verdict for the plaintiff for $2,000 on the first count, and for $10,000 on the second. The supreme court of the state sustained the judgment on condition of a remittitur of $5,000; this was entered and judgment was rendered for $7,000. At the trial the defendant asked for a ruling that the plaintiff could not recover damages for pain under the second count, which was denied, subject to exception. The supreme court treated the request as intended to raise the question whether the employers' liability act of Congress of April 22, 1908, chap. 149, 35 Stat. at L. 65, U. S. Comp. Stat. Supp. 1911, p. 1322, displaced the state law, as undoubtedly it was; stated that the suit was not based upon that act, and held that the act of Congress was only supplementary, and that the judgment could be upheld under the state law. 98 Ark. 240, 135 S. W. 874.

The plaintiff contends that the claim of right under the law of the United States, and against that under the law of the state, was not presented with clearness enough to save it. But as the supreme court held the question sufficiently raised and decided it, that objection is not open here. San Jose Land & Water Co. v. San Jose Ranch Co. 189 U. S. 177, 180, 47 L. ed. 765, 768, 23 Sup. Ct. Rep. 487; Eau Claire Nat. Bank v. Jackman, 204 U. S. 522, 533, 51 L. ed. 596, 604, 27 Sup. Ct. Rep. 394.

The same answer may be given to the suggestion that the defendant is estopped having pleaded contributory negligence, and thus having relied upon the state law. Moreover, the plaintiff, not the defendant, had the election how the suit should be brought, and as he relied upon the state law, the defendant had no choice, if it was to defend upon the facts. Whether the defendant could have defeated the first count also on the ground that the plaintiff was suing upon a statute of one jurisdiction, whereas the action could be maintained only on that of another, need not be decided, since the defendant asks reversal of only so much of the judgment as rests on the second count. Hence it is unnecessary to consider whether the principle of Union P. R. Co. v. Wyler, 158 U. S. 285, 39 L. ed. 983, 15 Sup. Ct. Rep. 877; or that of Missouri, K. & T. R. Co. v. Wulf, 226 U. S. 570, 577, 57 L. ed. , 33 Sup. Ct. Rep. 135, should be applied. See further, Troxell v. Delaware, L. & W. R. Co. 227 U. S. 434, 442, 57 L. ed. ——, 33 Sup. Ct. Rep. 274; Northern P. R. Co. v. Slaght, 205 U. S. 122, 131, 51 L. ed. 738, 741, 27 Sup. Ct. Rep. 442; United States v. Dalcour, 203 U. S. 408, 423, 51 L. ed. 248, 251, 27 Sup. Ct. Rep. 58.

Coming to the merits, it now is decided that the act of Congress supresedes state laws in the matter with which it deals. Second Employers' Liability Cases (Mondou v. New York, N. H. & H. R. Co.) 223 U. S. 1, 53-55, 56 L. ed. 327, 347, 348, 38 L.R.A.(N.S.) 44, 32 Sup. Ct. Rep. 169; Missouri, K. & T. R. Co. v. Wulf, 226 U. S. 570, 576, 57 L. ed. ——, 33 Sup. Ct. Rep. 135; Michigan C. R. Co. v. Vreeland, 227 U. S. 59, 67, 57 L. ed. ——, 33 Sup. Ct. Rep. 192. The act deals with the liability of carriers, while engaged in commerce between the states, for defects in cars. § 1. In the case of death, the only action is one for the benefit of the next of kin. § 1. Michigan C. R. Co. v. Vreeland, 227 U. S. 59, 67, 68, 57 L. ed. ——, 33 Sup. Ct. Rep. 192; American R. Co. v. Didricksen, 227 U. S. 145, 149, 57 L. ed. ——, 33 Sup. Ct. Rep. 224; Gulf, C. & S. F. R. Co. v. McGinnis, 228 U. S. 173, 175, 57 L. ed. ——, 33 Sup. Ct. Rep. 426. Therefore the ruling of the state court was wrong. The amendment of April 5, 1910, chap. 143, § 2, 36 Stat. at L. 291, U. S. Comp. Stat. Supp. 1911, p. 1325, in like manner allows but one recovery, although it provides for survival of the right of the injured person. The amendment, however, does not apply to this case, as the death occurred in August, 1909.

Judgment reversed.