Joseph McKenna

“ But this distinction between the parties to sue and the parties to be benefited by the suit makes clear the purposes of Congress. To this purpose we must yield. Even if we could say, as we cannot, that it is not a better provision than to give the cause of action to those in relation to the deceased. ”

“ 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. ”

“ An employers' liability act existed there at the time of the enactment of the national act, which gave a cause of action, if the conditions of liability existed, to the widow of the deceased or to his children or dependent parents. The national act gives the right of action to personal representatives only. ”

“ 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 Commor Carriers by Railroad to Their Employees in Certain Cases,' approved April 22, 1908.' [35 Stat. at L. 65, chap. 149, U.S.C.omp. Stat. Supp. 1911, p. 1322.]
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. ”

“ But the words of the act will not yield to such a liberal construction. They are too clear to be other than strictly followed. They give an action for damages to the person injured, or, 'in case of his death, . ”