yond the instalments of wages due up to the date of the trial, refusing to charge, as requested by plaintiff, that he was "entitled to the full benefit of his contract, which is the present value of the money agreed to be paid and the articles to be furnished under the contract for the period of his life, if his disability is permanent," etc. This court held (p. 10) that the Circuit Court had erred in restricting the damages as mentioned and in declining to instruct the jury in accordance with plaintiff's request; citing Vicksburg &c. R. R. v. Putnam, ubi supra, and quoting the reference to the "present value of a life annuity"; and also citing (p. 13) Schell v. Plumb, 55 N. Y. 592, and making the following quotation from the opinion of the Court of Appeals of New York in that case: "Here the contract of the testator was to support the plaintiff during her life. That was a continuing contract during that period; but the contract was entire, and a total breach put an end to it, and gave the plaintiff a right to recover an equivalent in damages, which equivalent was the present value of her contract."

That where future payments are to be anticipated and capitalized in a verdict the plaintiff is entitled to no more than their present worth, is commonly recognized in the state courts. We cite some of the cases, but without intending to approve any of the particular formula that have been followed in applying the principle; since in this respect the decisions are not harmonious, and some of them may be subject to question. Louis. & Nash. R. R. v. Trammell, 93 Alabama, 350, 355; McAdory v. Louis. & Nash. R. R., 94 Alabama, 272, 276; Central R. R. v. Rouse, 77 Georgia, 393, 408; Atlanta & W. P. R. R. Co. v. Newton, 85 Georgia, 517, 528; Kinney v. Folkerts, 78 Michigan, 687, 701; 84 Michigan, 616, 624; Hackney v. Del. & Atl. Tel. Co., 69 N. J. Law, 335, 337; Gregory v. N. Y., Lake Erie & West. R. R., 55 Hun (N. Y.), 303, 308; Benton v. Railroad, 122 N. Car. 1007, 1009; Poe v. Railroad, 141 N. Car. 525,

Statement of the Case.

241 U. S.

528; Johnson v. Railroad, 163 N. Car. 431, 452; Goodhart v. Pennsylvania R. R., 177 Pa. St. 1, 17; Irwin v. Pennsyl vania R. R., 226 Pa. St. 156; Reiller v. Pennsylvania R. R., 238 Pa. St. 1, 7; McCabe v. Narragansett Lighting Co., 26 R. I. 427, 435; Houston & T. C. R. R. v. Willie, 53 Texas, 318, 328; Rudiger v. Chicago &c. R. R., 101 Wisconsin, 292, 303; Secord v. John Schroeder Co., 160 Wisconsin, 1, 7. See also St. Louis, I. M. & S. Ry. v. Needham (C. C. A. 8th), 52 Fed. Rep. 371, 377; Balt. & Ohio R. R. v. Henthorne (C. C. A. 6th), 73 Fed. Rep. 634, 641.

Judgment reversed and the cause remanded for further proceedings not inconsistent with this opinion.

CHESAPEAKE & OHIO RAILWAY COMPANY v. GAINEY, ADMINISTRATOR OF DWYER.

ERROR TO THE COURT OF APPEALS OF THE STATE OF

KENTUCKY.

No. 453. Submitted April 19, 20, 1916.—Decided June 5, 1916.

Minneapolis & St. Louis R. R. v. Bombolis, ante, p. 211, followed to the effect that the Seventh Amendment does not apply to actions brought in the state courts under the Federal Employers' Liability Act. Chespeake & Ohio Ry. v. Kelly, ante, p. 485, followed to the effect that in estimating the amount of damages recoverable under the Employers' Liability Act, the interest bearing capacity of a present award must be considered; and the whole loss sustained by the beneficiaries during the period that the benefits cover cannot be inIcluded in the verdict without rebate or discount. 162 Kentucky, 427, reversed.

THE facts, which involve the application of the Seventh Amendment to cases in the state court under the Employers' Liability Act, the construction of that act, and the validity of a judgment thereunder, are stated in the opinion.

Mr. E. L. Worthington, Mr. W. D. Cochran, Mr. LeWright Browning and Mr. P. K. Malin for plaintiff in error.1

Mr. R. S. Dinkle and Mr. Watt M. Prichard for defendant in error:

Complaint that certain phraseology used in the measure of damage instruction was misleading is without merit, because it is evident that plaintiff in error was not prejudiced thereby.

Present cash value theory is not correct in principle and has never been sanctioned by the Supreme Court of the United States or lower Federal courts. C. & O. Ry. Co. v. Kelly's Admr., 160 Kentucky, 296.

There was no substantial error in the measure of damage instruction, as a consideration of it as a whole shows clearly that the jury were limited to finding the "pecuniary loss" to the dependent beneficiary.

If errors were in the measure of damage instruction, same were invited by plaintiff in error and were not properly preserved as ground of error either under the state practice or the practice of this court. L. & N. Ry. Co. v. Woodford, 153 S. W. Rep. 722; 156 Kentucky, 398; Patterson v. Moss, 97 S. W. Rep. 397; 30 Ky. L. R. 10; L. & N. Ry. Co. v. Wilkin's Guardian, 136 S. W. Rep. 1024; L. & N. Ry. Co. v. Simrall's Admr., 127 Kentucky, 55; 104 S. W. Rep. 1011; Loughridge v. Baugh, 118 S. W. Rep. 321; Burdette v. Mullin's Exr., 110 S. W. Rep. 855; Ill. Central Ry. v. Skaggs, 240 U. S. 66.

MR. JUSTICE PITNEY delivered the opinion of the court.

This was an action under the Employers' Liability Act of Congress of April 22, 1908, as amended April 5,

1 See note on p. 212, ante.

1910 (c. 149, 35 Stat. 65; c. 143, 36 Stat. 291). It was brought to recover damages for the death of Richard Dwyer, caused by the negligence of the railroad company, while he was in its employ in interstate commerce. The sole beneficiary was decedent's widow, who originally qualified as administratrix and brought the action, but has died since the allowance of the present writ of error.

Laying aside a contention based upon the Seventh Amendment to the Federal Constitution, which has been disposed of in Minneapolis & St. Louis R. R. v. Bomboiis, ante, p. 211, the only question raised relates to the method adopted in ascertaining the damages. The jury returned a verdict for $16,000. On appeal to the Kentucky Court of Appeals it was insisted that this amount was grossly excessive, and was the result of erroneous instructions to the jury. It was contended that the verdict of $16,000 if placed at interest would yield an annual income greater than the amount the widow would have received had she lived, and would yet leave her the principal to dispose of at the time of her death. The court overruled this contention, on the authority of Ches. & Ohio Ry. v. Kelly's Admx., 160 Kentucky, 296, where the same court held that in such a case the whole loss is sustained at the time of intestate's death, and is to be included in the verdict without rebate or discount. A reading of the opinion of the Court of Appeals in the present case (162 Kentucky, 427) makes it evident that it was only upon this theory that the court was able to reach a conclusion sustaining the verdict. Since we have held, in Ches. & Ohio Ry. v. Kelly, Admx., this day decided, ante, p. 485, that the theory is erroneous, it results that the judgment here under review must be

Reversed and the cause remanded for further proceedings not inconsistent with this opinion.

SPOKANE & INLAND EMPIRE RAILROAD COMPANY . CAMPBELL.

ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE
NINTH CIRCUIT.

No. 325. Argued April 26, 1916.-Decided June 12, 1916.

In an action under the Employers' Liability Act brought by an engineer of an interstate electric road, for injuries resulting from a collision the jury found a general verdict for plaintiff; and, in accordance with the practice of the State, made special findings that the violation by plaintiff of orders received before starting was the proximate cause of the collision and that immediately before the collision the brakes on the train were insufficient to enable him to control the speed of the train. Held that:

On the record the jury must have found that the defective air brakes were a proximate cause of the collision.

Under the Safety Appliance Act, if the equipment was defective or out of repair the question of whether it was attributable to the company's negligence or not is immaterial.

An electric interstate road is not exempted from the requirements of the Safety Appliance Act because its terminals run over street railways. Spokane &c. v. United States, ante, p. 344.

The fact that an employee may have violated an order does not take him from the protection of the Safety Appliance Act; if, as an actual fact, the brakes were defective and such defectiveness was a proximate cause of the injury.

Proof that an employee violated an order is not proof that he did so wilfully; and where wilfulness is not found such violation is only negligence and not a departure from the course of employment.

The right of an employee of an interstate carrier by rail to recover for an injury depends upon the Acts of Congress, to which all state legislation affecting the subject-matter yields.

Where the contributory negligence of the injured employee and the defendant's violation of the Safety Appliance Act are concurrent proximate causes the Employers' Liability Act requires the former to be disregarded.

Quare whether under the conformity act (Rev. Stat. 914) the Federal trial court is required to adhere to the state practice gov. erning the effect of a general verdict and special findings.

217 Fed. Rep. 518, affirmed.