This was an action by Albert L. Babcock, as administrator of Hugh M. Munro, deceased, against the Northern Pacific Railroad Company, for damages for the death of said Munro. The jury found a verdict for plaintiff, and judgment was entered thereon. Defendant brought error.
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: [154 U.S. 190, 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.
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 employes.
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:
James McNaught, A. H. Garland, and H. J. May, for plaintiff in error.
R. C. Benton, for defendant in error.
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:
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. Railway Co., reported in 31 Minn. 11, 16 N. W. 413, 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 employes in consequence of the neglect of fellow servants, the court said:
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 Railroad Co. v. Cox, 145 U.S. 593 , 12 Sup. Ct. 905, 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, 64; Dennick v. Railroad Co., 103 U.S. 11 ; The Scotland, 105 U.S. 24 , 29; Huntington v. Attrill, 146 U.S. 670 , 13 Sup. Ct. 224. 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.' [154 U.S. 190, 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 some time 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 2d 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 2 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 con- [154 U.S. 190, 200] dition 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 employe sound implements is established. Hough v. Railroad Co., 100 U.S. 213 , 218; Railway Co. v. Snyder, 152 U.S. 684 , 14 Sup. Ct. 756. 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 10 or 12 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 employe had [154 U.S. 190, 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. Railroad 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 employe, 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, [154 U.S. 190, 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 [154 U.S. 190, 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.
Mr. Justice JACKSON, not having heard the argument, took no part in the decision of this cause.