MISSOURI PAC. RY. CO. v. LARUSSI, 161 F. 66

SEAMAN, Circuit Judge. The record in this case is comparatively brief, except in the assignment of errors, 51 in number. In the oral argument, however, all contentions for reversal were fairly embraced under four propositions, and reference to the various assignments in detail is not needful. We have considered all the questions raised, but confine the discussion to those advanced in the argument— with the third and fourth propositions grouped together — namely:

(1) That the “action should have been dismissed because contrary to the public policy” of Illinois; (2) that it was error to instruct the jury to find in favor of the plaintiff upon the question (raised by plea) of the intestate’s residence;. (3) that “no negligence of the defendant was established,” either under the general rule applicable to such case of master and servant, or “within the terms of the Kansas fellow servant act.” 1.

The plaintiff recovered judgment for damages arising out of the injury and death of the intestate, in Kansas, caused by alleged negligence of the defendant in its operation of trains; and it is conceded, not only that the Kansas statute provided (in conformity with the Lord Campbell act) for recovery thereupon, but that like provision then existed in Illinois, as the law of the forum. Thus the alleged cause of action rests on the Kansas statute, and its creation thereunder is unquestionable,' if the proof establishes actionable negligence.

Objection is raised to its enforcement in the federal court,’ sitting in Illinois, upon the ground that the analogous statutory provision in Illinois above referred to (section 1, c. 70, 1 Starr & C. Ann. St. 1896;

section 1, c. 70, Hurd’s Rev. St. 1905) was qualified by an amendment of the succeeding

section (section 2) in 1903— after the date of the injury and death in question — wherebj'- the amount of damages recoverable was increased, and a proviso inserted “that no action shall be brought or prosecuted in this state to recover damages for a death occurring outside the state.” Hurd’s Rev. St. 1905, c. 70, § 2.

The contention is, in substance, that this proviso amounts to departure from the original statutory policy of the state, so that the provisions for the cause of action, in Kansas and Illinois, respectively, are inconsistent or nonconcurrent, and that such cause of action arising in the one state is not enforceable in the other, even in the federal court — citing Texas & Pacific Railway Co. v. Cox, 145 U. S. 593, 604, 605, 12 Sup. Ct. 905, 36 L. Ed. 829; Northern Pacific R. R. v. Babcock, 154 U. S. 190, 198, 14 Sup. Ct. 978, 38 L. Ed. 958; Stewart v. Baltimore & Ohio R. R. Co., 168 U. S. 445, 448, 18 Sup.

Ct. 105, 42 L. Ed. 537. The amendment referred to is without force in the case at bar, as we believe, irrespective of the question whether its terms authorize the

interpretation sought, to bar suit upon a pre-existing cause of action. The general doctrine is established, as applicable as well to this statutory cause of action, that a liability is enforceable in the federal forum, having jurisdiction of subject-matter and parties, whenever “a right of action has become fixed and a legal liability incurred,” either-under the common law or under a state statute not penal in its nature. Dennick v. Railroad Co., 103 U. S. 11, 18, 26 L. Ed. 439; 10 Notes U. S. Rep. 8; Huntington v. Attrill, 146 U. S. 657, 674, 13 Sup. Ct. 224, 36 L. Ed. 1123.

As stated both in the Cox and the Babcock Cases, supra, cited by the plaintiff in error, this rule is one of general law and regarded as settled by the Dennick Case. Upon the death of the intestate, if caused as averred, the right of action accrued under the Kansas statute, and its enforcement in the trial court, in a suit there instituted, appears to be authorized under the above-mentioned doctrine, subject only to the jurisdictional requirements. Whether such enforcement may be subjected to the further test mentioned in Texas & Pacific Railway Co. v. Cox, 145 U. S. 593, 605, 12 Sup. Ct. 905, 908, 36 L.

Ed. 829 — namely, that “the statute oí the state in which the cause of action arose is not in substance inconsistent with the statutes or public policy of the state in which the right of action is sought to be enforced” — is a question not involved, here for solution, as the terms of the statute in Illinois creating the cause of action are substantially identical with those of the Kansas statute. Both provide alike to remove the common-law bar and establish a cause of action for a tort (committed in the state) which causes death.

The right of recovery in the case at bar rests alone on the statute of Kansas — is “governed by the lex loci, and not by the lex fori.” Northern Pacific Railroad v. Babcock, 154 U. S. 190, 199, 14 Sup. Ct. 978, 981, 38 L. Ed. 958. As the law of Illinois concurs in this policy in creating the cause of action, the test referred to is met, if applicable; and whether the remedial provisions in Kansas and Illinois are alike or unlike is immaterial under either view. Stewart v. Baltimore & Ohio R. R. Co., 168 U. S. 445, 418, 18 Sup. Ct. 105, 42 L. Ed. 537.

Assuming, therefore, that jurisdiction of the parties was acquired, cognizance in the trial court of the subject-matter was governed by the federal law, with rights to be administered in conformity with the rule of general jurisprudence as above stated, unaffected by any special rule or statute of Illinois, either authorizing or inhibiting suit in the local courts upon such causes of action arising outside the state, except such statute of limitation as may be applicable thereto. So the proviso incorporated in

section 2 of the Illinois statute, in reference to a foreign cause of action, which leaves unmodified the rule and policy of the Rord Campbell act adopted in

section 1, is inapplicable to the case at bar, as we believe, whether this concurrence with the Kansas statute in creating like cause of action is needful or immaterial. Nor is it necessary to ascertain whether a like rule prevails in Kansas and Illinois as to enforcement of foreign rights of action. 2.

The plaintiff below was both a citizen of Illinois and administrator of the estate of the deceased under adjudication and appointment in the probate court of Cook county, 111.; and his authority to sue is challenged by pleas averring that the deceased was not “a resident of or domiciled in the state of Illinois” and had no property or effects therein, and that he was a resident of Kansas at the time of his death, and an administrator of his estate had been appointed and qualified in Kansas on May 25, 1903.

Support for this plea rests alone on the stipulated facts that Arquilli (deceased) was employed in trackwork, “was working, boarding, and lodging in Wilson county,” where “some of his wearing apparel” and earnings were kept, and such belongings came into the possession of an administrator appointed in Kansas. It is undisputed, however, that he was theretofore living and working in Chicago for a considerable period, and made remittances from there to his wife in Italy; and his transfer to and presence in Kansas is fairly attributable to the engagement there as railroad laborer merely for the time being.

The adjudication of the probate court of Cook county is presumptive of the existence of one or the other of the statutory grounds therefor, with either of which the Kansas facts relied upon are in no wise inconsistent, so that no evidence appears for impeachment of such proceedings in the probate court. We are of opinion that the trial court committed no error in its instruction to the jury accordingly. 3. The objection that actionable negligence was not established as the cause of death is urged under these contentions: (

a) That the doctrine “res ipsa loquitur” is not applicable, because the intestate was not riding on the train in the relation of passenger, but as a servant of the company; (

b) that the “Kansas fellow servant act” is not applicable to such case; and (

c) that' the plaintiff is not entitled to the benefits of such act, in any view, for want of notice of the injury, as required by an amendment in 1903. The first-mentioned contention is untenable, as we believe, in the view in which it is pressed in the argument, namely, that the carrier is not liable for an injury to the servant thus riding to or from his work, without proof of negligence on the part of the carrier other than the mere fact of the collision of trains, although it be assumed that the statute of Kansas imposes liability for the negligence of fellow servants.

Under the common-law rule of liability, the distinction is well settled by the authorities between the case of a passenger and that of a servant on the train, in the proof required to charge such liability for injury arising from collision or other accident, and that “the fact of an accident carries with it a presumption of negligence on the part of the carrier,” in favor of the injured passenger, while no such presumption is raised in favor of the injured employé, who must prove affirmatively that the employer was negligent.

This rule is distinctly recognized and stated as resting, in the one instance upon the breach of the contract to carry the passenger safely, and in the other upon the relation of master and servant, with its assumption by the latter of risk for negligence of fellow servants, the frequent cause of such happenings; hence the burden cast on the employé to prove negligence for which the master is chargeable in such case. Patton v. Texas & Pacific Railway Co., 179 U. S. 658, 663, 21 Sup. Ct. 275, 45 L. Ed. 361, and cases cited.

Whether such rule of distinction is applicable to the case of an employé (as in the present instance), injured or killed by collision of trains, during his conveyance by the employer, pursuant to contract, from his place of work to a lodging place, in the absence of controlling statutory provisions, is a question not free from difficulty, in the light of the various authorities, but its solution is not deemed needful, in view of our conclusions upon the effect of the Kansas statutes referred to.

If- the employé thus in course of such conveyance under agreement with his employer, a common carrier, is relieved by the statute from the common-law rule of assumed risk for negligence of fellow servants in such service, no ground exists for the above-mentioned distinction, under that rule, between the obligation of the carrier to the employe thus carried and its obligation to the passenger under his contract for transportation. As stated in the early and leading case of Stokes v. Saltonstall, 13 Pet. (U. S.) 181, 191, 10 L. Ed. 115, and frequently approved (3 Notes U. S.

Rep. 810), the undertaking 'for carriage is “that so far as human care and foresight can go he will transport them safely.” The prima facie breach arising from the accident is alike in both cases, and thus “the happening of an injurious accident” fas in a passenger case, Gleeson v. Virginia Midland R. Co., 140 U. S. 435, 443, 11 Sup. Ct. 859, 35 L.

Ed. 458), is “prima facie evidence of negligence on the part of the carrier,” and casts the burden of proof upon the carrier “to show that its whole duty was performed.” We are satisfied, therefore, that proof of the collision unexplained authorizes recovery for the death of an employé so riding on the train, unless the Kansas statute is without force under the circumstances.

The statute known as the “Employer’s Liability Act,” adopted in Kansas in 1874 (section 1, c. 93, p. 143, Raws 1874; paragraph 1251, Taylor’s 1889 Compilation of General Statutes), reads as follows: “Every railroad company organized or doing business in this slate shall be liable for all damages done to any employé of such company in consequence of any negligence of its agents, or by any mismanagement of its engineers or other employes to any person sustaining such damage.” This provision was upheld and construed, in Missouri Pac. Ry. Co. v.

Haley, 25 Kan. 35, 53, to embrace “only those persons more or less exposed to the hazards of the business of railroading”; and it is plain that the employé in question was within such definition of service and exposure. The contention that he was not entitled to its benefits, because not engaged in the operation of the train, is without merit, under the denial of such distinction in Union Pac. Ry. Co. v. Harris, 33 Kan. 416, 418, 6 Pac. 571, and in subsequent decisions reviewed in Missouri, K. & T. Ry. Co. v. Medaris, 60 Kan. 151, 55 Pac. 875.

While the last-mentioned decision is cited in support of the contention, it is applicable only for its recognition of the rule as above slated. Both facts and ruling are clearly distinguished in the opinion from the circumstances of the present case. In reference to the Iowa cases, cited as supporting the contention, it is sufficient to remark, as stated in Union Pac. Ry. Co. v. Harris, supra, that the statute construed in these recent decisions is materially changed from its original provision, adopted in Kansas, and the rulings thereunder furnish no aid for the construction sought here of the Kansas statute.

We are impressed with no view which excludes the employé in question from the benefits of the act, either under its terms or in any

interpretation by the Supreme Court of Kansas brought to our attention.

The remaining objection raised against such benefit is predicated on an amendment of this employer’s liability act, adopted in 1903 (Laws 1903, p. 599, c. 393), in a proviso as follows: “That notice in writing of tlie injury so sustained, stating tbe time and place thereof, shall have been given by or on behalf of the person injured to such railroad company within ninety days after the occurrence of the accident.” This proviso was adopted in 'March, to go into effect July 1, 19D3, while the injury and death in question occurred April 26, 1903.

Whether it would require notice to be given by a person injured prior to the date so fixed for the amendment to become operative needs no determination in the present case, under our view of its terms as inapplicable to recovery by representatives for an injury causing death. As notice cannot be given “by or on behalf” of the deceased, and the representatives entitled to recover damages are not “the person injured,” it is obvious that no provision is expressly made for notice in such cases.

The purpose of the requirement in cases of alleged injury is well recognized — that timely notice be given to enable the party charged with negligence to investigate the facts, of which he may not otherwise be fairly advised — and the just inference is that notice of injuries causing death was not within the reasonable purpose and requirement of the proviso, and thus excluded from its terms. In any view of the requirement, however, the statute must be strictly construed, as no notice is needful at common law, and we are of opinion that the trial court rightly overruled the objections thereunder.

The judgment of the Circuit Court appears to be well supported and free from reversible error, and is affirmed.