Petitioners are the minor children of Jack R. Francis who was killed while riding as an interstate passenger on one of respondent's trains. They brought this suit, acting through their general guardians, to recover damages on account of his death. Jurisdiction in the federal court was founded on diversity of citizenship. The trial judge submitted to the jury only the question of respondent's wanton negligence. The error alleged is his refusal to submit to the jury the issue of ordinary negligence. The jury returned a verdict for respondent. The Circuit Court of Appeals affirmed. 10 Cir., 162 F.2d 813.
The Circuit Court of Appeals held that Utah law creates a right of action in the heirs for the wrongful death of the decedent and that the action is distinct from any which decedent might have maintained had he survived. But the court held that the action is maintainable only where the decedent could hv e recovered damages for his injury if death had not ensued. In this case the decedent, an employee of respondent, was riding on a free pass not in connection with any duties he had as an employee but as a passenger only. The Circuit Court of Appeals therefore held as a matter of federal law that respondent would not have been liable to decedent for damages caused by ordinary negligence, relying on Northern Pacific R. Co. v. Adams, 192 U.S. 440, 24 S.Ct. 408, 48 L.Ed. 513. It concluded that respondent had the same defense against the heirs. We granted the petition for a writ of certiorari to reexamine the relationship between local law and federal law respecting the liability of interstate carriers under free passes.
In Van Wagoner v. Union Pac. R. Co., Utah, 186 P.2d 293, 303, decided after the petition for certiorari in the present case was filed, the heirs sued to recover damages for the death of the decedent in a grade-crossing accident. The court held that a defense of contributory negligence which would have barred recovery by the decedent likewise bars the heirs. In view of this ruling by the Utah Supreme Court we cannot say that the Circuit Court of Appeals committed plain error in holding that respondent had the same defenses against petitioners as it would have had against the decedent. Yet it requires such showing of error for us to overrule the lower courts in their applications of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. See Palmer v. Hoffman, 318 U.S. 109, 118, 63 S.Ct. 477, 482, 87 L.Ed. 645, 144 A.L.R. 719; MacGregor v. State Mutual Life Assur. Co., 315 U.S. 280, 62 S.Ct. 607, 86 L.Ed. 864; Steele v. General Mills, 329 U.S. 433, 439, 67 S.Ct. 439, 442. Cf. Wichita Royalty Co. v. City Nat. Bank, 306 U.S. 103, 59 S.Ct. 420, 83 L.Ed. 515.
The free pass in the present case stated that 'the user assumes all risk of injury to person or property and of loss of property whether by negligence or otherwise and absolves the issuing company * * * from any liability therefor.' In Northern Pacific R. Co. v. Adams, supra, a similar provision in a free pass was sustained as a defense to an action brought under an Idaho statute by the heirs of a passenger. That was in 1904. The Adams decision was soon followed by Boering v. Chesapeake Beach R. Co., 193 U.S. 442, 24 S.Ct. 515, 48 L.Ed. 742. Then in 1906 came the Hepburn Act which under pain of a criminal penalty prohibited a common carrier subject to the Act from issuing a 'free pass' except, inter alia, to 'its employees and their families.' 34 Stat. 584, 49 U.S.C. § 1(7), 49 U.S.C.A. § 1(7). Thereafter in 1914 the Court held that the rule of the Adams case was applicable under the federal statute and that the 'free pass' was nonetheless a gratuity though issued to an employee of the carrier. Charleston & W.C.R. Co. v. Thompson, 234 U.S. 576, 34 S.Ct. 964, 58 L.Ed. 1476. Kansas City So. R. Co. v. Van Zant, 260 U.S. 459, 43 S.Ct. 176, 67 L.Ed. 348, followed in 1923 and hl d that the liability of an interstate carrier to one riding on a 'free pass' was determined not by state law but by the Hepburn Act. The Court said, 260 U.S. at page 468, 43 S.Ct. at page 177, 67 L.Ed. 348, 'The provision for passes, with its sanction in penalties, is a regulation of interstate commerce, to the completion of which the determination of the effect of the passes is necessary. We think, therefore, free passes in their entirety are taken charge of, not only their permission and use, but the limitations and conditions upon their use; or to put it another way, and to specialize, the relation of their users to the railroad which issued them, the fact and measure of responsibility the railroad incurs by their issue, and the extent of the right the person to whom issued acquires, are taken charge of.'