In May, 1913, Sam E. Leslie, administrator, brought this suit under the Federal Employers' Liability Act (35 Stat. 65), as amended April 5, 1910 (36 Stat. 291), against the Kansas City Southern Railway Company in the Circuit Court, Little River County, Arkansas, alleging that the injury and death of Leslie Old (March 24, 1913) resulted from its negligence, and demanding $10,000 for pain and suffering endured by deceased and $15,000 pecuniary damage to the wife and young child. The Company unsuccessfully sought to remove the case; there was trial to a jury and verdict for $25,000 without apportionment, a remittitur of $7,000, and a final unqualified judgment in favor of the administrator for $18,000, which the Supreme Court of Arkansas affirmed (112 Arkansas, 305). Three substantial assignments of error demand consideration.
The above-mentioned amendment of 1910 declares: "The jurisdiction of the courts of the United States under this Act shall be concurrent with that of the courts of the several States, and no case arising under this Act and brought in any state court of competent jurisdiction shall be removed to any court of the United States." Section 28, Judicial Code, effective January 1, 1912, specifies causes removable from state courts by non-resident defendants and concludes: "Provided, That no case arising under an act entitled `An act relating to the liability of common carriers by railroad to their employees in certain cases,' approved April twenty-second, nineteen hundred and eight, or any amendment thereto, and brought in any state court of competent jurisdiction shall be removed to any court of the United States." The language of both amendment and Judicial Code, we think, clearly inhibits removal of a cause arising under the Act from a state court upon the sole ground of diversity of citizenship. The same conclusion has been announced frequently by lower Federal courts. Symonds v. St. Louis &c. Ry., 192 Fed. Rep. 353, 356; Strauser v. Chicago &c. R.R., 193 Fed. Rep. 293, 294; Saiek v. Penna. R.R., 193 Fed. Rep. 303; Lee v. Toledo &c. Ry., 193 Fed. Rep. 685, 686; Ullrich v. N.Y., N.H. & H. Ry., 193 Fed. Rep. 768, 770; Hulac v. Chicago &c. Ry., 194 Fed. Rep. 747, 749; McChesney v. Illinois Central R.R., 197 Fed. Rep. 85, 87; De Atley v. Chesapeake & Ohio Ry., 201 Fed. Rep. 591, 596; Kelly's Adm'x v. Chesapeake & Ohio Ry., 201 Fed. Rep. 602, 605; Rice v. Boston & Maine R.R. Co., 203 Fed. Rep. 580, 581; Teel v. Chesapeake &
2. It is said the court below erred in approving the charge permitting recovery for pecuniary loss to widow and child and also for conscious pain and suffering endured by deceased in the brief period — less than two hours — between injury and his death. This point having been considered the right to recover for both these reasons in one suit was recently sustained. St. Louis, Iron Mtn. &c. Ry. v. Craft, 237 U.S. 648 [announced June 1, 1915].
It is further objected that as the declaration set up two distinct and independent liabilities springing from one wrong but based upon different principles, the jury should have been directed to specify in their verdict the amount awarded, if any, in respect of each. This objection must be overruled. Of course, in causes arising under this statute trial courts should point out applicable principles with painstaking care and diligently exercise their full powers to prevent unjust results; but its language does not expressly require the jury to report what was assessed by them on account of each distinct liability, and in view of the prevailing contrary practice in similar proceedings we cannot say that a provision to that effect is necessarily implied. As the challenged verdict seems in harmony with local practice and has been approved by the courts below the judgment thereon is not open to attack here upon the ground specified.
3. Complaint is also made of the following instruction — No. 10 — given at the administrator's instance: "If you find for the plaintiff, you should assess the damages at such sum as you believe from a preponderance of the evidence would be a fair compensation for the conscious
The judgment of the court below is reversed and the cause remanded for further proceedings not inconsistent with this opinion.