finding a waiver by defendants of any defect in the capacity of the widow of the deceased to prosecute a wrongful death claim under the Jones Act on behalf of herself and her children, and suggesting that a surrogate court’s designation of the widow as her husband’s testamentary executor was not required for her to qualify as his “personal representative” under the Act
How later courts described this case
- finding a waiver by defendants of any defect in the capacity of the widow of the deceased to prosecute a wrongful death claim under the Jones Act on behalf of herself and her children, and suggesting that a surrogate court’s designation of the widow as her husband’s testamentary executor was not required for her to qualify as his “personal representative” under the Act
- describing the burden as "featherweight”
- court accepted 20% contributory negligence factor from first trial and limited retrial to question of damages
Written by the judges who cited it.
The opinion
GEE, Circuit Judge
(concurring):
Believing our opinion to be as mandated by the Supreme Court’s precedents on sufficiency of evidence in FELA and Jones Act matters 1 and in all other respects correct, I concur. However we may view these holdings, 2 we must apply them.
. See Gibson v. Elgin, J & E Ry., 246 F.2d 834, 837 (7th Cir.), cert. denied, 355 U.S. 897 , 78 S.Ct. 270 , 2 L.Ed.2d 193 (1957) (“Under the recent decisions of the United States Supreme Court in F.E.L.A. cases, speculation, conjecture and possibilities suffice to support a jury verdict.”)
. 9 Wright & Miller, Federal Practice and Procedure: Civil 554-5, note 80.