87 N.J.L. 651 affirmed in part and reversed in part.
The case is stated in the opinion.
MR. JUSTICE McREYNOLDS delivered the opinion of the court:
By stipulation, these causes were tried together before the same
jury and upon the same testimony. Michael
Page 244 U. S. 361
Tonsellito, an infant seventeen years old, suing by his father,
James Tonsellito, as next friend, and relying upon the Federal
Employers' Liability Act, obtained a judgment for personal injuries
suffered while employed by plaintiff in error -- Number 239. These
injuries, he alleged, resulted from negligence in constructing and
maintaining its roadbed and in starting a locomotive without giving
him a reasonable opportunity to climb thereon. James Tonsellito
recovered for himself on account of expenses incurred for medical
attention to his son and loss of the latter's services -- Number
240. Both judgments were affirmed by the Court of Errors and
Appeals. 87 N.J.L. 651.
Reversal is asked in the cause instituted by Michael Tonsellito
because (1) he was not engaged in interstate commerce when injured;
(2) no negligence by the railroad was shown; (3) he assumed the
risk, and (4) he was a mere volunteer when the accident occurred.
We think there was adequate evidence to justify submission of all
these matters to the jury, and we are unable to say the charge
contains material error. Both state courts have sustained the
judgment; there are no special circumstances demanding comment, and
it seems enough to announce our conclusion.
Great Northern Ry.
Co. v. Knapp, 240 U. S. 464,
240 U. S. 466;
Erie R. Co. v. Welsh, 242 U. S. 303.
The Court of Errors and Appeals ruled, and it is now maintained,
that the right of action asserted by the father existed at common
law, and was not taken away by the Federal Employers' Liability
Act. But the contrary view, we think, is clearly settled by our
recent opinions in
New York Central R. Co. v. Winfield,
ante, 244 U. S. 147, and
Erie R. Co. v. Winfield, ante, 244 U. S. 170.
There, we held the act "is comprehensive and also exclusive" in
respect of a railroad's liability for injuries suffered by its
employees while engaging in interstate commerce.
"It establishes a rule or regulation which is intended to
operate
Page 244 U. S. 362
uniformly in all the states as respects interstate commerce, and
in that field it is both paramount and exclusive."
Congress having declared when, how far, and to whom carriers
shall be liable on account of accidents in the specified class,
such liability can neither be extended nor abridged by common or
statutory laws of the state.
The judgment in Number 239 is
Affirmed.
In Number 240, the judgment below is reversed and the cause
remanded for further proceedings not inconsistent with this
opinion.
Reversed.
MR. JUSTICE Brandeis concurs in the result announced in No.
240.
