Charles A. (Charles Andrew) Ray.

# Negligence of imposed duties, carriers of passengers online

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 Font size liy the coimnon law, the cause of action which accrued to the intestate in that state is extinguished by his death. By the law ■of that state no right exists in tlie personal representatives to recover for such injury, and if this action can be maintained under the provisions of the act of 1847 or 18-19, it must be upon the ground that our statutes have an extraterritorial force. The fact that the intestate was a citizen of this state at the time of the injury is entirely immaterial in the decision of this question. A general or public act is a universal i-ule that regards the whole WariH V. Neio York <£• N. E. R. Co. 3 New Eng. Rep. 408, 143 Mass. 301, 58 Am. Rep. 138. See also Le Forest v. Toimmt, 117 Mass. 109, 19 Am. Kep. 400; W hit ford v. Panavia R. Co. 23 N. Y. 465, 3 Bosw. 67: Crowley V. Panama R. Co. 30 Barb. 99; McCarthy v. Chicago, R. 1. d: P. R. Co. 18 Kan. 46. *Needham v. Orand Trunk R. Co. 38 Vt. 294. 648 ACTIONS AGAJ.WST OAKIMKKS^ — COXTIJSUKD. comiiiniiity, but its operation is limited to the state 1)V M'liicli it was enacted. ... A cause of action which by the rules of the common law is extingnished by the death of the party, is by such death fully discharged, ujdess it survives by force of some statute law of the state where it accrued." In a Rhode Island case' the action was to subject the defend- ant corporation to liability under a statute of Massachusetts. ' The liability is imposed by section 2V'>. That section provides that if a pers(jn is injured by collision with the engines or cars of a railroad corporation at a crossing, sucli as is described in section 163, and it appears that it neglected to gi\e the signals required by section 103, and that such neglect contributed to the injur}^, the corpo]-ation shall be lialtle in case the life of the person so injured is lost, to damages recoverable hy the executor or admin- istrator of the deceased, in an action of tort, as provided in section 212, unless it is shown that in addition to a mere want of ordinary care, the person injured was at tlie time of the collision guiltj- of gross and willful negligence, or was acting in violation of law. and that such gross and willful negligence or uidawful act con- tributed to the injury. Section 212 sul»jects railroad corporations to liability where, 1)y reason of their carelessness, the life of a passenger or of a ])erson being in the exercise of due diligence, and nota ])assenger or in their eniplovinent, is lost. 'Fhe [)ro vision for such case is that the t)lfending corporation may be punished by fine or indictment, or sued for damages in an action of tort, the fine imposed or the damages recovered, according as one or the other remedy is |)ursucd. to be not less than $500 nor moi'e tlian$5,000, the damages, in case the cor})oration is civilly |)i-osecuted, '•to be assessed with reference to the degree of cul])a1)ility of the corporation or (»f its si'i"\ants oi- agent>,*' Phe fine is to be paid "to the e.\ecut(jr or administrator toi- the use of the widow and children of the deceased in e(|ual moieties; or. if there are no cliildi'i'ii. to the u>c of the widow, or if no widow, to the use of the next of kin;"' and in ca>e of a civil action, which is to be brought by the executor or administi'atoi". the damages recovered are to go in the same manner. Tin - I'cmedy. whether criminal or civil, is to be prosecuted w itliiii a year aftei- the injury. WJUlli/ V. ye The requiiviiH'iit of sfcetion \('u> is, that every locomotive shall be furnished ^itli a Itcll and steam whistle, and that the hell shall be rung or the whistle sounded at the distance of at least eighty rods from every grade crossing, and be kept ringing or sounding, continuously or alternately, until the engine has passed. The claim is that the injury to the intestate resulted from an omission to ring the bell or sound the whistle as required. It will be seen that the statute creates an entirely new cause of action, giving the executor or administrator of the deceased power to prosecute it; not however in his representative capacity, since he is empow- ered to prosecute, not for the benefit of the estate, but for the use of certain designated persons. The <[uestion is whether an exe- cutor or administrator, appointed in Rhode Island, shall be taken to have the right to prosecute the action in the courts of Rhode Island. Similar questions, arising under somewhat similar stat- utes, have been differently decided by dilferent trilumals. There is in Khode Island a statute sul)jecting railroad corpora- tions to liability for ne^gligence resulting in death, ' but it differs materially from the Massachusetts statute especially in that it has none of the penal features of that statute. For this reason the court did not think it necessary to decide whi<-h of the two sets of cases above cited lays down the true doctrine; for it seems to be well settled tlxat each of the states will be left by the others solely to itself to give effect to its penal legislation.'^ That the liability imposed by the Massachusetts statute is penal is very clear. The damages are directed "to be assessed with reference to the tlegree of culpability of the corporation or of its servants or agents,'- and to the amount of at least $500. These directions clearly show a positive purpose. So likewise, confirm- atorily at least, does the dii-eetion that the recovery shall not be prevented by contributory negligence unless it be gross or willful. One of the remedies given Ijy section 212 is an indictment, the fine prescribed in case of conviction being not less than$500 nor more than \$5,000. The same i-emedy is given by section 213 if 'Pub. Stat. R. I. chap. 204, i^g 15-18. U:'. 491; St"cckman v. Terre llaAitc d- I. R. Co. 15 Mo. App. 503. * Demi let: V. Central R. Co. if New Jerseg, 103 U. S. 11, 26 L. ed. 439. ACTION OUT OK J L'KISi »ICTU).N SVHKUK IN.JUKY OCCUKKKD. 651 In Missouri,' J//'. Just ice Tiiujiij^son, delivering the opinion, ^vitl^out referonce to that of Vaivter v. J\[if<80uri Pao. M. Co. 84 Mo. GT9, supposed heretofore to decide the contrary, says : ''The • question is now, we believe, presented for the first time in this state. The decisions presented, in other states are shown to be conflicting. TJiese statutes are of recent origin. The question of tlieir extraterritorial force has presented itself to various courts of the Union as a question of first impression; and, reasoning on var- ious grounds, for the most part of a technical nature, they have arrived at difi'erent conclusions. In this conflict of authority, we are quite at liberty to adopt the view which seems best to consist with the policy of our legislation, and with that S2)irit of comity which ought to subsist between difl'ereut states of the Union. We accordingly hold that this action Avas well brought." When the courts are asked to enforce a rio-ht oiven under a local statute, and it is made to appear that the act complained of was connnitted out of the state, and it is shown that the laws of that state are similar to the local statutes giving the remedy, the duty of taking jurisdiction wt)uld be indicated, if the local courts will recognize the action as ti-ansitory.'-' Courts of admii-alty in the United States have iurisdiction of toi'ts connnitted on thehisrh seas without reference to the iiationality of the vessel on which they are committed, or tliat of the parties to them. Such juris- "diction will, in the discretion of the court, be declined in suits between foreigners, where it appears that justice will be as well done by remitting the parties to their home forum. But the jurisdiction will not be declined where the suit is between for- eigners who are subjects of ditferent governments, and therefore have 710 common forum. ^ The rule seems to be that where there is a right of action either at common law or given by statute, and a legal liability has been incurred, it may be enforced, and the right of action may be pur- ^Stoeckman v. I'e.rre Haute & 1. R. Co. 15 Mo. App. 503. ^Cincinnati, II. tfc D. R. Co. v. McMnllen, 117 Ind. 489; St. Louis, I. M. & S. E. Co.Y. McCormick, 1 L. R. A. 804, 71 Tex. 660; Siallknecht v. Penn- sylvaniaR. Co. 53 How. Pr. 305; Selma R. d B. R. Co. v. Lnci/, 43 Ga. 461, 49 Ga. 106; Western & A. It. Co. v. Strong, 53 Ga. 461; Stoeckman v. Terre Haute d- 1. R. Co. 15 Mo. App. 503. 'Bernhard v. Creene, 3 Sawy. 330; The Noddlehurn, 12 Sawv. 133; The Bel- genland, 114 U. S. 355, 29 L. ed. 152; Ben. Adm. § 383."' 0o2 ACTIONS AGAINST CAKHIKKS CO.NTIM" KI), sued in any court Avliicli luis jni'isdictiou of the subject-matter and can obtain juri.-;diction ot tlie parties.' (!!oui"ts will entertain ju- risdictidn of actions for personal injuries connnitted abroad, when both oi" cither of the ])arties are citizens (»f tlie United States.* As to torts connnitted in foi-eig-n countries the jurisdiction of state courts is undoubted, l)ut its exei'cise is only a matter of com- ity; and wliere it appears that our courts are resorted to for the purpose of adjudicating upon mere personal torts, committed aliroad, tlie court may properly decline to pro(*eed further. ^ An action may be brouo-lit, with process in the usual way, by a citizen of (-Jeorgia against the Montgomery & West Point R. Co. even though tlie cause of action originated in Alabama.* It has been held that where a suit Avas brought in Georgia for the killing of the plaintiffs husl^and in Alabama, it conld not be maintained because by the statute of Alabama the right of action is given to the personal rejjresentative. " Uut if the company doing the in- jury in Alabama is a Georgia coi'poration and the suit is brought by a Georgia administrator, the action will lie. * The plaintiff was injured by carelessness of defendant while riding in the cars of the defendant, situate in Xew York. It was held that the action was properly brouglit in ^^c\v Jersey.' >j I t'i). Mlio may Bring ,'iction in Foreign JitriS' (iictioTb. 'riiej'c are cases whei"i> the question of the party who may sue is simply a (piestion of remedy, and therefore determined by the laM' of th(! forum. Whether an infant shall sue by guardian or next fi'ieiid, and Mhether an assignee shall sue in his owimameor ^ Alley V. ('. 39 Ga. .'5.")4, ■'Selma, II. li- JJ. /.*. Ct. v. Lmri/, 49 Ca. 100. "Central R. Co. v. Suoiut, 73 Ga. 651; Cooley, Toils, 312. ■>Acl:erHon v. Hric /.'. Co. 31 N. .1. L. 309. WHO .M.vv iJiiixif AurroK is ioimoh.x ,11 icisinciniN. ij'yA tliat of his ussi^Mior and the like, iiiv clcarlv (|iu'sti(»iis of proced- ure only, Imt where the inattei' is not of form siiriply. ])iit of ri^-lit, the remedy must follow tlic law of the ri<>;lit. Where one section of a foreii;n statnte merely imposes a liahiHty hnt confcis no right, and another section confers the i-i'atory ;ind inell!ectivc. and tojojether they give the i-iglit to the party who is to enforce the i-ight and name the party entitled to the benefit, and they give all these to- gether, the [)lain words constitute one ground, to wit, an action to be enforced as given, and not ca]>able of being split up ii\to different rights with varying remedies accoi-ding to the trilmnals in which they may chance to be asserted; there the (juestion of the party Avho may sue is not of form merely, but of right: and un- doubtedly the action could be; mai:it;iined in the foreign state bv a personal representative, and an action brought by another ])artv in another jurisdiction would not oust the right of tiie legal partv in tiu' place where the cause of action arose. ' An action mav be maintained in one state by the personal repre- sentatives of one killed by the negligent act of a common carriei- in another state, to recover from the caia-ier damages resultiui; from such negligence, where the cause of action survives to "the personal representatives by the statute of the state where the suit is brought." When a state statute gives a remedy for a death caused bv neo - ligence and provides that the action shall be brought bv the rep- resentatives of deceased, the personal representative appointed i)i another state may bring the action in the state where he was ap- pointed.' An action Mnll lie in New York upon the Now Jersey statute for a death occurring in ISTew Jersey through the negli- gence of a New Jersey cor])oration at the suit of a l^ew York administrator; the fund i-ecovered to be distributed according to the jS'ew Jersey law.* Where like statutes exist, most states re- ' Usher v. WestJermj li. Co. 4 L. R. A. 261, 126 Pa. 206. WRciley v. New York & JS' E. R. Co. 6 L. R. A. 719. 16 R. I. 388. ■'■Leonard V. Columbia Steam Nav. Co. 84 N. Y. 48; ASmi(h v. Bulf, 17 Wend 323; Whitford v. Panama R. Co. 23 N. Y. 465; Storv, Confl. L. §:< .-)38 553; Bissell v. MicMgan S. & N. I. R. Co. 22 N. Y.' 258; MeCorniick v.' Penymjlmnia Cent. R. Co. 49 N. Y. 303; Home Im. Co. v. Peniifa/lvania R. Co. 11 Hun, 182. *Dennick v. Neio Jersey Cent. R. Co. 103 U. S. 11, 26 I. ed 4o9- Coolev Torts, 313. ' ' 654 ACTIONS AGAINST CAKKIKKS — CONTINLKD. cognize the right to take out auxiliary letters of adiiiiiustration to the letters granted in the jurisdiction where the injury occurred.' L. died in Kansas, from injuries there, iov wliich it is claimed that, if death had not ensued, the Missouri Pacilic Eailway Com- pany, the party inflicting them, would have heen lial)le to an ac- tion for damages. The statute of that state provides that an action may be brought against the party by the personal representative of the deceased. The widow, ai)pointed under tlie laws of Nebraska admmistratrLx of L., brought in the circuit court of that state a suit against the railway conipaii}^, and the suit was main- tained, the right of action not l)eing limited by the statute to a personal representative of the deceased appointed in Kansas, and amenable to her jurisdiction. It was held that the distribution of money, if recovered by the widow from the railway company, might be enforced by the courts of oS'ebraska in the manner pre- scribed by the statute of Kansas." ]^o court in the state of j^ew York has jurisdiction of an action by a nonresident against a foreign corporation on a cause of action which did not arise within the state. The appointment of a non- resident as an administrator in the state of ]^ew York does not authorize him to sue as a resident of the state, under 'New York Code of Civil Procedure, § 1T80. ' An action by a widow for the death of her husband, occasioned in Arkansas, in whicli state, in the absence of administration, she can sue as the sole heir of the husband, and where exemplary damages are not allowed, cannot be maintained in Texas, where such damages are allowed, and where the widow of a man killed is the dii-ect and immediate beneficiary, under the statute, suing in her own right, and where the period of limitation is different; especially when an administrator has been appointed in Arkansas pending the action, but was discharged and the administration closed to avoid a plea in abatement on that ground. Although a cause of action is given by the statutes of both states for wrong- fully causing death, they are not sufficiently similar to warrant the courts of one state in enforcing the statute of the other.* ^Jeffersonri/le, if. & 1. 11. Co. v. Hendricks, 41 Ind. ■i^\ Hartford & N. H. IL Co. V. Andrews, 30 Conn. 2VS. •'Mmoun Pac. R. Co. v. Lexois, 2 L. R. A. 67, 24 Neb. 848. ^Robinson v. Ocean Sleam Nav. Co. 2 L. R. A. 636, 112 N. Y. 315. *Sl. Lords, T. M. & S. R. Co. v. McOormick, 1 L. R. A. 804, 71 Te.\. 660. KULE OF DA.MaGKS IN .U IKiNS FOK DEATH FROM NliGLIGENOE. 655 A widow cannot maintain an action in lier own name to recover (lamages for tlie deatli of lier Imsband in anotlier state under the statute of the foreign state which expressly directs the action to be bruuglit l)y the administrator, although it is for the ultimate benefit