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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.


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<r York .(• .V. E. R. Co. 5 L. li. A. MA. 16 1? 1. :}88.
'^MftHP. Pub. Stat. clKi). n-.» ijt- 1«58. 212, 218.

A«T1.»X (II:t of JLK1&1UCT10X Will KK IN.IlliY OCCUKKKD. 041>

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:'<m. V. Greex, 17 Mass. 515, 540; ll'/nt v. Powiud, 9 Vt. 411, 417; ScoviUe

V. Canfield, 14 Johns. 838; Brigham v. (Hanin, 31 Wis. 607,616, 11 Am.

Kpp. Q2n: First ^^at. Bank of Plymouth v." l^-ke, 33 Md. 488: Ilalsey v.

McLm/,. 12 Allen, 438; Derncknon v. SmM, 27 N. J. L. 166; Bird v.

Hat/dfn. 2 Abb. Pr. N, S. 61.


the injury be mortal. It \\oiild seem that where death ensues
there is provision only for a civil action, hut the provision is part
and parcel of legislation which has its penal purpose thus clearly
stamped upon it.

The conclusion is that an action founded on tlie provision is not
maintainable in Rhode Island. A remedy given by a statute of
another state cannot be enforced in a state whose laws deny or do
not give such right of action, whether the laws of the latter state
affect the right or only the remedy.'

Other courts hold that such actions are .-Aaintainable when the
statutes of the state where the injury occun-ed, and where suit is
brought, are similar and give the right of actic/u.^ A cause of
action given by the statute of one state may be enforced by the
courts of another state, where the statutes of the latter give a like
right under the same facts.^ Itights which have accrued under
the laws of a foreign state are treated as valid rights everywhere,
whether they are of common law or statutory origin.* The ground
of decision in the two last cited cases is, tiiat the cause of action
accrued imder a statute which, notwithstanding some minor dif-
erences was substantially the same as a statute of the state in wliich
the action was brought. A recent JSTew Jersey decision^ rests on
that and more general grounds of comity. The liabiUty in ques-
tion in each of said three cases, however, was remedial, not penal,
the rule of liability being no more exacting than it would have
been in favor of the deceased if he had survived, and the damages
recoverable being recoverable as compensation.

' Texas & P. R. Co. v. Richards, 68 Tex. 37").

''Dehevoise v. New York, L. E. & W. R. Co. 98 N. Y. oTT; Wextern. dt A. R.

Co. V. Strong, 52 Ga. 461; liruee v. Cincinnati R. Co. 83 Kv. 174; Hyde v.

Wabash, «. L. <b R R. Co.Qi Iowa, U\; Morris v. Chicago, R. I. & P.

R Co. 65 Iowa, 727; Chicago, St. L. d- N. 0. R. Co. v. Doyk, 60 Miss.

"Tems cfc P. R. Co. v. Richards, 68 Tex. 375.
*Jiurnsv. Grand Rapids d- /. R. Co. 12 West. Rep. 688. 113 Ind. 169: Jef-

fersonviUe R. Co. v. Hendricks, 26 Ind. 228; Jrffrrsontine, M. & I. R. Co.

V. Hendricks, 41 Ind. 48; Burns v. Grand liaj)ids cfc 1. R. Co. 12 West.

Jlep. 688, li;'. Ind. 169; Knight v. West Jersey R. Co. 108 Pa. 250: lUinoi:*

Cent. R. Co. v. Cruduit_ (53 Miss. 291; Willis v. Missouri Pac. R. Co. 61

Tex. 432; McDonald v. Mallory, 77 N. Y. 546; IJennick v. Centred R. Co.

of Nein Jersey. 103 I'. S. 11, 26 L. ed. 439; Leonard v. Columbia Steam

JVav. Co. 84 'N. Y. 48. 38 Am. Hei>. 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.


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."'


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'


'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. ('<ix]i(iri, 6 New. Eng. Hep. 429, 80 Me. 234: Dennick v. New Jer-

xn'i Cent. K. Co. 10:J U. S. 11. 26 ]j. ed. 4:59; Shcddv. Moran. 10 111. App.

'^Glin V. lliKli/eH, 9 .lohns. 67; Sniith v. Bull, 17 Wend. o2i{; y^/.vte?' v. Wright^

2 Hill, 320; Johmoii v. Daltoii, 1 Cow. r»48. Contra, Mohny v. Bows, 8

Abb. Pr. 316; Wells, Jurisdiclion of Courts, 110.
■Great WcHtern R. Co. v. Miller, 19 Mich. 30r,.
* Berry \. Monlmnnery ifc M'. P. Ji. ('<>. 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<ilit. and w ithont it the
other would l)e utterly nn»>'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. ' '


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.


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 <jf the widow and next of kin, and although a closely sim-
ilar statute in the state where the action is brought gives a right
to sue in such case expressly and exclusively to the widow if there
be one, for the benefit of herself and children. The statute of
the state where the action is brought has no exterritorial force
wliich can produce rights from the occurrence in the foreign
state.* Where the statute of the foreign state expressly directs
the action to be brouglit in the name of the personal representa-
tive of the deceased, the established rule is that statutory remedies
are to l)e strictly pursued ; and when the legislature has com-
manded one form, the court cannot say that another would serve
the purpose ec^ually well. This is peculiarly true w^here, in a state
giving a right of action, the administration of law and equity is
not only in separate forms but by separate tribunals. "Where no
peison but the adnjinistrator has been clothed with the right no
other person can sustain the action. *

§ 180. Rule of Damages in Actions for Death
from J\^egligenc6.

As the English statute did not give a new right of action, but
simply continued the same right in the personal representative,
that the deceased would have had for the injury, had he survived,
the release of the action or a recovery during his life would end
tlie right to claim damages, for the statute provides a new prin-
ciple only as to the assessment of damages. ^ This question, how-
ever is variously decided under the special statutes of the states,
as in Iowa it is decided that a new right is given in the event

^mJier V. Wed Jersey R. Co. 4 L. R. A. 261, 126 Pa. 206; Whitford v. Pan-
ama R. Co. 23 N. Y. 484; Woodard v. Michigan S. & N. 1. R. Co. 10
Ohio St. 121; Richardson V. JS'eic York Cent. R. Go. 98 Mass. 85; State v.
Pittsburgh & G. R. Co. 45 Md. 41; Selma, R. & D. R. Co. v. Lacy, 43 Ga.
461; Anderson v. Milwaukee & St. P. R. Co. 37 Wis. 321; McCarthy v.
Chicago, R. I. & P. R. Co. 18 Kan. 46.

* Books V. Danville, 95 Pa. 166.

^Read v. Great Eastern R. Co. L. R. 3 Q. B. 555, explaining Blake v. Mid-
land R. Co. 18 Q. B. 93.


death is instantaneous. * It is held to he a new right of action in
New York, and compensatory only for pe(niniarv lo^s. *

In an action by an administrator to rec«jver damages for the
death of his intestate alleged to have been caused by defendant's
negligence, evidence that deceased was taken care of between the
injury and his death bv the defendants was held to have been
properly excluded. The injured party during his lifetime, it was
said, could recover for the bodily suffering. His personal repre-
sentatives after his death cannot. If tlie defendants therefore
could show in an action by the administrator, in mitigation, the
payment of money, it will be but just that the personal represen-
tatives should be permitted to show the bodily suffering of the
deceased, because the money might have been paid in considera-
tion of these sufferings. The result would be to bring into an
action of this kind an element of damages entirely improper.' In
Littlewood v. Neio York, 89 X. Y. 24, the language of the court
simply indicated that proving a settlement by the deceased might
be in bar.

In Tennessee the old right survives, including the right to a
recovery for pain and sutfering, and also a new right for pecuni-
ary loss to the next of kin.* Contributory negligence either of
the deceased or of the beneliciary under the statute is a cause of

Pecuniary loss is the foundation for the recovery." And the gen-

^Connersv. Burlington, C. d- M. R. Go. 71 Iowa. 490,

"Quin V. Moore, 15 N. Y. 435.

'Murray v. Usiier, 46 Hun, 404,

.^Nashville & C. B. Co. v. Prince, 2 Heisk. 580.

^Kdly y.Hendric, 26 Mich. 255; Michigan Cent. R. Co. v. Compau, 35 Mich.
468; Pittsburgh, Ft. W. & C. R. Co. v. Vining, 37 Ind. 518; Htirst v. De-
troit City R. Co. 84 Mich. 539; BeUcfontaine R. Co. v. Snyder, 24 Ohio
St. 670; Williams v. Texas & P. R. Co. 60 Tex. 205; Wright v. Maiden &
M. R. Co. 4 Allen, 289; Baltimore & 0. R. Co. v. Fryer, 30 Md. 47.

*Union Pac. R. Co. v. Dunden, 37 Kan. 1; Houston & T. C. R. Co. v. Cow-
ser, 57 Tex. 293; Rockford, R. I. & St. L. R. Co. v. Delaney, 82 111. 198;
Pennsylvania R. Co. v. Zebe, 33 Pa. 318; Ewen v. Chicago & N. W. R. Co-
38 Wis. 614; Donaldson v. Missimppi d; M. R. Co. 18 Iowa, 280; Hutch-
ins V. St. Paul, M. & M. R. Co. 44 Minn. 5; Van Brunt v. Cincinnati, J.
& M. R. Co. 78 Mich. 530; Kelly v. Central R. Co. 5 McCrary, 653; Mis-
souri Pac. R. Co. v. Henry, 75 Tex. 220; Gilligan v. New Yo7-k- dt H. R. Co.
1 E. D. Smilii, 453; TomlinHon v. Derby, 43 Conn. 562; Matthews v. Mis-
souri Pac. II. Co. 26 Mo. App. 84.


Online LibraryCharles A. (Charles Andrew) RayNegligence of imposed duties, carriers of passengers → online text (page 75 of 90)