In an action by the representatives of a railroad employee
against the company to recover damages for the death of the employs
caused by an accident while in its employ, which is tried in a
different state from that in which the contract of employment was
made and in which the accident took place, the right to recover and
the limit of the amount of the judgment are governed by the
lex
loci, and not by the
lex fori.
A railroad company is bound to furnish sound machinery for the
use of its employee, and if one of them is killed in an accident
caused by a defective snow-plough, the right of his representative
to recover damages therefor is not affected by the fact that, some
two weeks before he was sent out with the defective machinery, he
had discovered the defect, and had notified the master mechanic of
it, and the latter had undertaken to have it repaired.
Some alleged errors in the charge of the court below are
examined and held to have no merit.
The plaintiff below, who was the administrator of the estate of
Hugh M. Munro, sued in the District Court of the fourth Judicial
District of Minnesota to recover $25,000 damages for the killing of
Munro on the 10th day of January, 1888 at or near a station known
as Gray Cliff, on the Northern Pacific Railway, in the Territory of
Montana. The complaint contained the following allegations:
Page 154 U. S. 191
"That on the said 10th day of January, 1888, the said Hugh M.
Munro, now deceased, was in the employ of the said defendant
corporation within the Territory of Montana in the capacity of
locomotive engineer, for hire and reward by the said defendant
paid, and that the duty of running a locomotive engine upon said
defendant's line of railway within said territory was by said
defendant assigned to said Hugh M. Munro on the said 10th day of
January, 1888, and the defendant directed and ordered the said Hugh
M. Munro to run a certain locomotive engine, the property of said
defendant, known as engine 'No. 161,' over and upon its said
railway in said territory; that prior to and at the time the said
orders were so presented to said Munro, there had been, and then
was, a severe snowstorm in progress, and defendant's line of
railway over and upon which said Munro was so ordered to run said
engine was covered with drifting snow theretofore accumulated
thereon, and then fast accumulating, notwithstanding which the said
defendant corporation did willfully, improperly, negligently, and
carelessly refuse and neglect to send a snow plow ahead of said
engine No. 161 to clear the snow and ice from said defendant's said
track, which had accumulated and was accumulating thereon by reason
of said storm, so as to render the passage of said engine No. 161
safe and proper."
"That there was attached to the forward part of said engine No.
161 a certain attachment known as a 'pilot plow,' an appliance
constructed thereon for the purpose of clearing the railway of snow
and ice accumulated thereon and render safe the passage of the
engine to which said plow was attached over and upon said railway
of defendant."
"That on the said 10th day of January, 1888, the said defendant
corporation knowingly, willfully, negligently, and carelessly
allowed to be and remain upon said engine No. 161, attached thereto
as aforesaid, a certain pilot plow the iron braces, bolts, and rods
of which were broken, imperfect, and insufficient, by reason of
which condition the said plow was loose and insufficiently secured
to the pilot of said engine, allowing the said pilot to raise up
and ride over obstructing
Page 154 U. S. 192
snow and ice instead of cutting through the same, as was the
intention of its construction, rendering the running of said engine
upon said railway dangerous, and that the said defendant well knew
of the broken, defective, and dangerous condition of said engine
No. 161 at the time the said Hugh M. Munro was so ordered to run
the same upon and over said railway, notwithstanding which the said
defendant corporation did negligently and carelessly furnish to
said Hugh M. Munro said engine, with the said broken and imperfect
pilot plow attached thereto, to run over and upon its said line of
railway."
"That while said Hugh M. Munro was running said engine in
performance of his duty as such engineer and pursuant to the orders
of said defendant corporation, and before daylight on said 10th day
of January, 1888, near Gray Cliff, in said Territory of Montana,
the said engine struck an accumulation of snow and ice which said
defendant had carelessly and negligently allowed to accumulate upon
its said railway track, and the pilot plow of said engine, by
reason of its broken, loose, and imperfect condition aforesaid, did
ride upon said accumulation of snow and ice, thereby derailing said
engine and throwing the same from said railway track, whereby the
said Hugh M. Munro was instantly killed."
"* * * *"
"That the law of the Territory of Montana governing actions for
recovery of damages for causing death was on the 10th day of
January, 1888, and now is, sections 13 and 14 of title 2 of said
chapter 1 of the first division of Code of Civil Procedure of the
Territory of Montana, which said sections of said law of said
territory are in the words and figures following,
viz.:"
"SEC. 13. A father, or, in case of his death or desertion of his
family, the mother, may maintain an action for the injury or death
of a child, or a guardian for the injury or death of his ward."
"SEC. 14. Where the death of a person not being a minor is
caused by the wrongful act or neglect of another, his heirs or
personal representatives may maintain an action for
Page 154 U. S. 193
damages against the person causing the death, or if such person
be employed by another person who is responsible for his action,
then also against such other person. In every action under this and
the preceding section, such damages may be given as under all the
circumstances of the case may be just."
The case was removed to the Circuit Court of the United States
for the District of Minnesota, where an answer was filed by the
defendant denying the averments of the complaint and alleging that
the death of Munro was caused solely by his negligence and
carelessness, and not by the negligence of the defendant or any of
its servants or employees.
There was a verdict and judgment below in favor of the plaintiff
for $10,000. To review that judgment, this writ of error is sued
out. The errors assigned are as follows:
"First. The court erred in charging the jury as follows:"
" Did it fail to discharge any duty which the law imposed upon
it for the safety of its employee, the plaintiff's intestate? If it
did, and if such negligence was the cause of the death of the
engineer, Munro, then the plaintiff is entitled to recover."
"Second. The court erred further in charging the jury as
follows:"
" The charge in this complaint is that this death was caused by
the derailment of the engine, which took place because the plow was
out of repair as described, or at least that the defendant had not
used reasonable care in clearing its track, and that when the
engineer, in that condition, arrived at this cut, two miles from
Gray Cliff, the snow had accumulated to such an extent that the
engine was thereby derailed, and that it was this negligence which
caused the death."
"Third. The court erred further in charging the jury as
follows:"
"Many states have different laws. The law in this state until
recently was that only $5,000 could be given in a case of death. It
has lately been increased to $10,000."
"Fourth. The court erred further in charging the jury as
follows:"
"If you believe from all the evidence in the case that the
plaintiff is entitled to recovery, then it is for you to determine
what compensation you will give for the death of the plaintiff's
intestate. The law of Montana limits it to such an amount as you
think would be proper under all circumstances
Page 154 U. S. 194
of the case, and that is the law which will govern in this
case."
"Fifth. The court erred further in refusing to give to the jury
the following request tendered by defendant's counsel: 'You, the
jury, are instructed to find a verdict for the defendant.'"
"Sixth. The court erred further in refusing to give to the jury
the following request, tendered by defendant's counsel: 'The laws
of Minnesota limit the amount of damages to be recovered in this
case to five thousand dollars.'"
"Seventh. The court erred further in refusing to give to the
jury the following request, tendered by defendant's counsel:"
" The court instructs the jury that unless they find that it was
customary for defendant company to send a snow plow in advance of
the trains running east from Livingston during storms of this
character, and that unless, further, the accident occurred by
reason of the negligent and careless failure of the defendant to
send such snow plow in advance, they will find for the
defendant."
"Eighth. The court erred further in refusing to give to the jury
the following request, tendered by defendant's counsel:"
" The court instructs the jury that unless they find that the
defendant carelessly and negligently furnished to the deceased
engineer a plow attached to his engine the iron bolts and rods of
which were broken, imperfect, and insufficient, and that by reason
of which condition the said plow was loose and insufficiently
secured to the pilot of said engine, and that when the said engine
struck the snow at the cut, as testified to, the pilot plow of said
engine, by reason of its said broken, loose, and imperfect
condition, did ride upon the accumulated snow and ice at said cut,
and that thereby the said engine was thrown from the track, the
jury will find for the defendant. "
Page 154 U. S. 196
MR. JUSTICE WHITE, after stating the case, delivered the opinion
of the Court.
For convenience, we shall consider the various assignments of
error without regard to their numerical order.
The third, fourth, and sixth assignments involve the same
question, and may be decided upon together.
The plaintiff's intestate was an engineer in the employ of the
defendant corporation in the Territory of Montana, and the accident
by which he lost his life occurred there. The law of the Territory
of Montana at the time provided as follows:
"Where the death of a person not being a minor is caused by the
wrongful act or neglect of another his heirs or personal
representatives may maintain an action for damages against the
person causing the death, or if such person be employed by another
person who is responsible for his action, then also
Page 154 U. S. 197
against such other person. In every action under this and the
preceding section, such damages may be given as under all the
circumstances of the case may be just."
Section 14, Title II, Chapter I, first division of the Code of
Civil Procedure of the Territory of Montana.
Under the law of Minnesota, when the death occurred, the limit
of recovery in case of death was $5,000, but at the time of the
trial of the case in the court below, this limit had been increased
to $10,000 by amendment of the Minnesota statutes.
The question which those assignments of errors present is was
the amount of damage to be controlled by the law of the place of
employment and where the accident occurred, or by the law of the
forum in which the suit was pending? In the case of
Herrick v.
Minneapolis & St. Louis Railway Company, reported in 31
Minn. 11, which involved the question of whether the courts of
Minnesota would enforce and apply to a suit in that state, for a
cause of action originating in Iowa, a law of the State of Iowa
making railroad corporations liable for damages sustained by its
employees in consequence of the neglect of fellow servants, the
court said:
"The statute of another state has, of course, no
extraterritorial force, but rights acquired under it will always,
in comity, be enforced if not against the public policy of the laws
of the former. In such cases, the law of the place where the right
was acquired or the liability was incurred will govern as to the
right of action, while all that pertains merely to the remedy will
be controlled by the law of the state where the action is brought.
And we think the principle is the same whether the right of action
be
ex contractu or
ex delicto."
"The defendant admits the general rule to be as thus stated, but
contends that as to statutory actions like the present, it is
subject to the qualification that to sustain the action, the law of
the forum and the law of the place where the right of action
accrued must concur in holding that the act done gives a right of
action. We admit that some text writers -- notably, Rorer on
Interstate Law -- seem to lay
Page 154 U. S. 198
down this rule, but the authorities cited generally fail to
sustain it."
"* * * *"
"But it by no means follows that because the statute of one
state differs from the law of another state, therefore it would be
held contrary to the policy of the laws of the latter state. Every
day our courts are enforcing rights under foreign contracts where
the
lex loci contractus and the
lex fori are
altogether different, and yet we construe these contracts and
enforce rights under them according to their force and effect under
the laws of the state where made. To justify a court in refusing to
enforce a right of action which accrued under the law of another
state because against the policy of our laws, it must appear that
it is against good morals or natural justice or that for some other
such reason the enforcement of it would be prejudicial to the
general interests of our own citizens. If the State of Iowa sees
fit to impose this obligation upon those operating railroads within
her bounds, and to make it a condition of the employment of those
who enter their service, we see nothing in such a law repugnant
either to good morals or natural justice or prejudicial to the
interests of our own citizens."
This opinion of the Supreme Court of Minnesota is in accord with
the rule announced by Chief Justice Marshall in
The
Antelope, 10 Wheat. 66. In referring to that case
in
Pacific Railway v. Cox, 145 U.
S. 593, the Court said:
"The courts of no country execute the penal laws of another. But
we have held that that rule cannot be invoked as applied to a
statute of this kind, which merely authorizes a civil action to
recover damages for a civil injury."
The rule thus enunciated had been adopted in previous cases, and
has since been approved by this Court.
Smith v.
Condry, 1 How. 28;
The
China, 7 Wall. 53,
74 U. S. 64;
Dennick v. Railroad Co., 103 U. S. 11;
The Scotland, 105 U. S. 24,
105 U. S. 29;
Huntington v. Attrill, 146 U. S. 670.
Indeed, in
Railroad Co. v. Cox, supra, MR. CHIEF JUSTICE
FULLER, speaking for the Court, said "The question, however, is one
of general law, and we regard it as settled in
Dennick v.
Railroad Co."
Page 154 U. S. 199
The contract of employment was made in Montana, and the accident
occurred in that state, while the suit was brought in Minnesota. We
think there was no error in holding that the right to recover was
governed by the
lex loci, and not by the
lex
fori.
The fifth error assigned is the refusal to instruct the jury to
find a verdict for the defendant.
The evidence tended to show that Munro was an engineer in the
employ of the railroad company at the Town of Livingston; that, as
such engineer, he was driving engine No. 161 sometime in the latter
part of December; that while driving the engine, he discovered that
an appliance known as the "pilot plow," which was attached to the
engine, was out of order and in a dangerous condition. The purpose
of such a plow is to push the snow from the track, and if not
properly braced, as stated by one of the witnesses, it is likely to
"rise up, and ride over the drift instead of going through it, and
the natural result would be to throw the engine trucks from the
tracks." After Munro discovered that the plow was defective, he
called the attention of the foreman of the shop and master mechanic
to its condition. On or about the second of January, Munro was
taken sick, and did not pursue his occupation until January 9th,
when he reported for duty. At about 12 o'clock that night, while a
severe snowstorm was raging, Munro was sent for by messenger to
take out a passenger train. The train was delayed in getting away
from Livingston, and left that place about two o'clock in the
morning, drawn by engine No. 161, with Munro in charge as engineer.
At a place called Gray Cliff, the engine, in passing through a cut,
capsized and Munro was killed.
There was no conflict of evidence as to the fact that the plow
was defective some two weeks before the accident, when Munro so
stated to the foreman and master mechanic, but there was a conflict
upon the question whether or not it had been subsequently repaired.
Testimony was adduced by the plaintiff tending to show that the
necessary repairs had not been made, and that at midnight on the
9th, when the engineer was called upon to take charge of the
engine, the condition
Page 154 U. S. 200
of the plow was quite as defective as it had been some two weeks
before, when the engineer had made his report of its condition to
the foreman. On the other hand, the defendant offered testimony
which tended to show that the repairs had been made. It was proven
that at the time Munro was called upon to take charge of the engine
on the night of the 9th, the roundhouse was so full of steam that
the engine could not have been critically examined by him. The
presence of this steam was due to the fact that there was no
heating apparatus in the roundhouse, and therefore steam was
allowed to escape therein in order to prevent the engines from
freezing. There was some evidence that the effect of the defective
pilot plow would be to throw the train from the track whenever the
engine struck an accumulation of snow which had been in any way
impacted, the resistance of the snow having the effect of pushing
the defective plow up and thus derailing the engine. On the other
hand, there was other evidence that such a result could not have
followed from the defect in the plow.
Under this condition of proof, it is clear that the instruction
was rightfully refused. The obligation of the employer to furnish
to his employee sound implements is established.
Hough v.
Railway Co., 100 U. S. 213,
100 U. S. 218;
Union Pacific Railway Co. v. Snyder, 152 U.
S. 684. And the fact that the engineer, when called upon
at midnight on the 9th to perform duty, took the engine out under
the conditions surrounding it in the roundhouse implies no
assumption by him of the risk of defective machinery. The proof
showed, or tended to show, that notification by the engineer to the
foreman and master mechanic of the existence of the defect was
given some ten or twelve days before the accident, and that at the
time there was an impression created in Munro's mind that it was to
be remedied. It also shows that work of this character was usually
done in the shops at Livingston, over which the foreman presided
and in which the engine lay when the notice was given. From the
time of the notice up to the time when the engineer was called upon
to use the engine, he was not on duty, but was absent on sick
leave. As the employee had
Page 154 U. S. 201
given notice of the defect to the proper officer whose duty it
was to make the repairs, and the impression had been conveyed to
him that these would be made, he had a right to assume that they
had been made, and to act upon that assumption. The mere fact of
his taking the engine out at midnight, under the circumstances, did
not of itself, unsupported by other proof, imply an assumption by
him of the risk resulting from the dangerous and defective
condition of the attachment to the engine.
Hough v. Railway
Co., 100 U. S.
225.
The first assignment of error is, we think, without merit. The
language of the charge complained of is:
"Did it [the defendant company] fail to discharge any duty which
the law imposed upon it for the safety of its employee, the
plaintiff's intestate? If it did, and if such negligence was the
cause of the death of the engineer, Munro, then the plaintiff is
entitled to recover."
Separated from the context, this general language might have
misled, but when considered in proper connection with the rest of
the instruction given, it could not have done so.
The eighth error assigned was to a refusal of the court to give
the following charge:
"The court instructs the jury that unless they find that the
defendant carelessly and negligently furnished to the deceased
engineer a plow attached to his engine the iron bolts and rods of
which were broken, imperfect, and insufficient, and that by reason
of which condition, the said plow was loose and insufficiently
secured to the pilot of said engine, and that when the said engine
struck the snow at the cut, as testified to, the pilot plow of said
engine, by reason of its said broken, loose, and imperfect
condition did ride upon the accumulated snow and ice at said cut,
and that thereby the said engine was thrown from the track, the
jury will find for the defendant."
The charge which the court gave was substantially as requested,
and correctly stated the law. It was as follows:
"The court instructs you that unless you find that the defendant
negligently and carelessly furnished to the deceased engineer a
plow attached to his engine, the iron bolts and rods of which were
broken,
Page 154 U. S. 202
imperfect, and insufficient, and by reason of said imperfect
condition, when the engine struck the snow at the cut, as testified
to, the engine and tender were derailed by reason thereof, which
caused the accident in question, then the defendant would be
entitled to a verdict. The claim is that the snow had accumulated
to such an extent in that cut that when the engine struck it, the
plow being in the condition in which it was, it was unable to clear
the track, the accumulation of snow being so great, and that, as
described by some witnesses, it rode up, and threw the engine off
the track from the fact that the front trucks of the engine could
not ride over it. I instruct you that unless the cause of this
derailment and the throwing over of the engine was the imperfect
condition of this plow -- that it could not clear the cut from the
snow which had accumulated there, but the engine was thrown over,
and thereby death ensued -- unless this is found to be true to the
satisfaction of the jury, the defendant would be entitled to a
verdict."
We can see no material variance between the charge requested and
the charge which was given.
The seventh error assigned is to the refusal of the court to
instruct the jury
"that unless they find that it was customary for defendant
company to send a snow plow in advance of the trains running east
from Livingston during storms of this character, and that unless,
further, the accident occurred by reason of the negligent and
careless failure of the defendant to send such snow plow in
advance, they will find for the defendant."
This instruction was, of course, justly refused because it
implied that the defendant was entitled to a verdict unless,
contrary to its custom, it had not sent a snow plow in advance of
the train, without reference to the defective condition of the
pilot plow, which was the cause of action upon which the plaintiff
relied. Indeed, although the complaint charged negligence on the
part of the defendant in failing to send a snow plow ahead of the
train, the action, as stated in the complaint, was predicated upon
the defect in the machinery, or pilot plow, the failure to send the
snow plow being alleged as a mere incident, or remote cause of
damage. And this distinction was elucidated
Page 154 U. S. 203
with great clearness in the charge of the court. It nowhere
indicated that there could be any liability on the part of the
defendant arising from the failure to send a snow plow ahead of the
train, as a distinct and substantive cause of action. It referred
to the failure to send a snow plow ahead of the train merely as the
reason why it was necessary to have the pilot plow attached to the
engine. The court said:
"The charge in this complaint is that this death was caused by
the derailment of the engine, which took place because the plow was
out of repair as described, or at least that the defendant had not
used reasonable care in clearing its tracks, and that when the
engineer, with the engine in that condition, arrived at this cut,
two miles from Grey Cliff, the snow had accumulated to such an
extent that the engine was thereby derailed, and that it was this
negligence on the part of the defendant that caused the death."
In other words, throughout the whole charge, the court
instructed the jury that the liability, if any, must result from
the defective condition of the machinery or pilot plow of the
engine, and where it referred to the failure to send a snow plow
ahead of the train as an act of negligence, treated it as
negligence giving rise only remotely, and not proximately, to the
injury, the proximate cause being the defective machinery, and the
remote the accumulation of snow which rendered the use of the
engine unsafe because of the defect in the pilot plow attached
thereto.
Judgment affirmed.
MR. JUSTICE JACKSON, not having heard the argument, took no part
in the decision of this cause.
