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U.S. Supreme Court

McGovern v. Philadelphia & Reading Ry. Co., 235 U.S. 389 (1914)

McGovern v. Philadelphia & Reading Railway Company

No. 430

Argued November 30, 1914

Decided December 14, 1914

235 U.S. 389


Where appellants, plaintiffs below, had a verdict on the first trial which was set aside on motion for new trial on which the district court discussed questions arising under treaties and ruled adversely to plaintiffs, and on the second trial the court ruled adversely to plaintiffs under the federal statute, this Court will presume that the court also considered the treaty questions, and a direct appeal will lie to this Court based on the construction and application of the treaty.

In deciding Maiorano v. Baltimore & Ohio Railroad Co., 213 U. S. 268, which came here on writ of error from the state court, this Court simply accepted the ruling of the state court that a nonresident alien could not maintain an action for death of a relative under the state statute, as being the construction by the highest court of the that statute.

After reviewing the rulings of many jurisdictions in regard to the right of nonresident aliens to maintain actions for death of relatives under statutes giving the right, held that the weight of authority in this country and in England is that alienage is not a condition affecting right of recovery under the Federal Employers' Liability Act.

Quaere whether under the favored nation provision in the existing treaty with Great Britain and the express provision in the treaty with Italy permitting Italian aliens, nonresident in the United States, to maintain actions in the courts of the United States and of the states, a citizen of Great Britain has a treaty right to maintain an action for the death of a relation under the Federal Employers' Liability Acts of 1908 and 1910.

In this case, held that, in view of the conflict of evidence as to the circumstances under which the intestate was killed, the question of assumption of risk was properly presented to the jury.

Where there has been a verdict for plaintiff and it has been set aside on the ground that plaintiff has not capacity to sue, and on the second chanrobles.com-red

Page 235 U. S. 390

trial a verdict directed for defendant on that ground, the circuit court of appeals cannot reverse and direct judgment on the original verdict even if the plaintiff waive a jury trial; the case must be sent back for new trial.

Judgment based on 209 F.9d 5 reversed.

The facts, which involve the construction of the Federal Employers' Liability Acts of 1908 and 1910 and the right of nonresident aliens to maintain actions thereunder, and also questions involving rights under the favored nation clause of the treaty with Great Britain, are stated in the opinion. chanrobles.com-red

Page 235 U. S. 397