Illinois Cent. R. v. Porter

Citations

• 207 F. 311
• 125 C.C.A. 55
• 1913 U.S. App. LEXIS 1630

Syllabus

<p>1. Death (§ 52*)—Employer’s Liability Act—Death—Declaration.</p> <p>Under Act April 5, 1910, c. 143, § 2, 36 Stat. 291 (U. S. Comp. St. Supp. 1911, p. 1325), amending Employer’s Liability Act April 22, 1908, c. 149, 35 Stat. 65, by adding section 9, providing that a right, of action given an injured employe should survive to his personal representative for the benefit of the same relatives for whose pecuniary loss recovery is provided by section 2, a declaration under such act for the alleged wrongful death of an employe, for tho benefit of his parents or next of kin, should allege that they suffered pecuniary loss by reason of his death.</p> <p>[Ed. Note.—For other cases, see Death, Cent. Dig. § 69; Dec. Dig. § 52.*]</p> <p>2. Appeal and Error (§ 193*)—Review—Questions Not Raised at Trial-Employer’s Liability Act — Declaration — Allegation of Pecuniary Loss.</p> <p>Where, in an action for death of an employe, under Employer’s Liability Act April 22, 1908, c. 149, 35 Stat. 65, as amended by Act April 5, 1910, c. 143, § 2, 36 Stat. 291 (U. S. Comp. St. Supp. 1911, p. 1325), by adding section 9, for the benefit of his parents or next of kin, the declaration failed to contain an averment of pecuniary loss, but no objection was taken on that ground by demurrer or at the trial, and no motion was made in arrest of judgment for that reason, and the evidence in fact showed pecuniary loss to decedent’s father, the defect was not fatal.</p> <p>[Ed Note.—Foi ether cases, see Appeal and Error, Cent. Dig. §§ 1226-1238, 1240; Dec. Dig. § 193.*]</p> <p>3. Master and Servant (§ 288*)—Death oe Servant—Fellow Servants—Negligence—Assumed Risk.</p> <p>Decedent, with fellow truckmen, was engaged in loading interstate freight from a warehouse into one of defendant’s cars. As decedent was about to enter the car with his truck, he encountered a truck inside the car about to come out, and in order to avoid collision swung his truck to one side off the apron extending from the warehouse p