CHESAPEAKE & OHIO RAILWAY COMPANY, Plff. in Err., v. JAMES R. GAINEY, JR.,de bonis non of the Estate of Richard Dwyer, Deceased.

241 U.S. 494

36 S.Ct. 633

60 L.Ed. 1124

JAMES R. GAINEY, JR.,1 Administrator de bonis non of the Estate of Richard Dwyer, Deceased.

No. 453.

Submitted April 19, 1916.

Decided June 5, 1916.

Messrs. E. L. Worthington, W. D. Cochran, Le Wright Browning, and P. K. Malin for plaintiff in error.

Messrs. R. S. Dinkle, George B. Martin, and Watt M. Prichard for defendant in error.

Mr. Justice Pitney delivered the opinion of the court:


This was an action under the employers' liability act of Congress of April 22, 1908, as amended April 5, 1910 (chap. 149, 35 Stat. at L. 65, chap. 143, 36 Stat. at L. 291, Comp. Stat. 1916, § 8862). It was brought to recover damages for the death of Richard Dwyer, caused by the negligence of the railroad company, while he was in its employ in interstate commerce. The sole beneficiary was decedent's widow, who originally qualified as administratrix and brought the action, but has died since the allowance of the present writ of error.


Laying aside a contention based upon the 7th Amendment to the Federal Constitution, which has been disposed of in Minneapolis & St. P. R. Co. v. Bombolis, 241 241 U. S. 211, 60 L. ed. ——, 36 Sup. Ct. Rep. 595, the only question raised relates to the method adopted in ascertaining the damages. The jury returned a verdict for $16,000. On appeal to the Kentucky court of appeals it was insisted that this amount was grossly excessive, and was the result of erroneous instructions to the jury. It was contended that the verdict of $16,000 if placed at interest would yield an annual income greater than the amount the widow would have received had she lived, and would yet leave her the principal to dispose of at the time of her death. The court overruled this contention, on the authority of Chesapeake & O. R. Co. v. Kelly, 160 Ky. 296, 169 S. W. 736, where the same court held that in such a case the whole loss is sustained at the time of intestate's death, and is to be included in the verdict without rebate or discount. A reading of the opinion of the court of appeals in the present case (162 Ky. 427, 172 S. W. 918) makes it evident that it was only upon this theory that the court was able to reach a conclusion sustaining the verdict. Since we have held, in Chesapeake & O. R. Co. v. Kelly, this day decided [241 U. S. 485, 60 L. ed. ——, 36 Sup. Ct. Rep. 630], that the theory is erroneous, it results that the judgment here under review must be reversed and the cause remanded for further proceedings not inconsistent with this opinion.


Death of Sarah Dwyer suggested, and appearance of James R. Gainey, Jr., administrator de bonis non of Richard Dwyer, deceased, as party defendant in error herein, filed and entered January 31, 1916.

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