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The requirement of section 163 is, that every locomotive shall be furnished with a bell and steam whistle, and that the bell 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 empowered to prosecute, not for the benefit of the estate, but for the use of certain designated persons. The question is whether an executor 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 statutes, have been differently decided by different tribunals.
There is in Rhode Island a statute subjecting railroad corporations to liability for negligence 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 which of the two sets of cases above cited lays down the true doctrine; for it seems to be well settled that 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 degree 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, confirmatorily at least, does the direction that the recovery shall not be prevented by contributory negligence unless it be gross or willful. One of the remedies given by section 212 is an indictment, the fine prescribed in case of conviction being not less than $500 nor more than $5,000. The same remedy is given by section 213 if the injury be mortal. It would seem that where death ensues there is provision only for a civil action, but the provision is part and parcel of legislation which has its penal purpose thus clearly stamped upon it.
'Pub. Stat. R. I. chap. 204, SS 15-18. *Com. v. Green, 17 Mass. 515, 540; Hunt v. Poronal, 9 Vt. 411, 417; Scorille
v. Canfield, 14 Johns. 338; Brigham v. Claflin, 31 Wis. 607, 616, 11 Am. Rep. 623; First Nat. Bank of Plymouth v. Price, 33 Md. 488; Halsey v. McLean, 12 Allen, 438; Derrickson v. Smith, 27 N. J. L. 166; Bird v. Hayden, 2 Abb. Pr. N. S. 61.
The conclusion is that an action founded on the 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 inaintainable when the statutes of the state where the injury occurred, and where suit is brought, are similar and give the right of action. 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.' Rights which hare 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, that the cause of action accrued under a statute which, notwithstanding some minor diferences was substantially the same as a statute of the state in which the action was brought. A recent New Jersey decision rests on that and more general grounds of comity. The liability 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.
i Teras & P. R. Co. v. Richards, 68 Tex. 375. Dehervise v. Nero York, L. E. & W. R. Co. 98 N. Y. 377; Western & A. R.
Co. v. Strong, 52 GA. 461; Bruce v. Cincinnati R. (0.83 Ky. 174; Hyde v. Wabash, St. L. & P. R. C0.61 Iowa, 441; Morris v. Chicago, R. I. & P. R (0.65 Iowa, 727; Chicago, St. L. d: N. 0. R. Co. v. Daryle, 60 Miss.
977. * Terus & P. R. Co. v. Richards, 68 Tex. 375. *Burns v. Grand Rapids & I. R. Co. 12 West. Rep. 688, 113 Ind. 169; Jef:
ferson rille R. (o. v. Hendricks, 26 Ind. 229; Jeffersonville, M. & 1. R. Co. v. Hendrickx, 41 Ind. 48; Burns v. Grand Rapids d 1. R. Co. 12 West. Rep. 688, 113 Ind. 169; Knight v. Wext Jersey R. Co. 108 Pa. 250: Illinois Cent. R. Co. v. Crudup, 63 Miss. 291: Willis v. Missouri Pac. R. Co. 61 Tex. 432; McDonald v. Mallory, 77 N. Y. 546; Dennick v. Central R. Co. of New Jersey, 103 L'. S. 11, 26 L. ed. 439: Leonard v. Columbia Steam Nao. Co. 84 N. Y. 48, 38 Am. Rep. 491; Stoeckman v. Terre llaute & I.
R. Co. 15 M. App. 50%.
In Missouri,' Mr. Justice Thompson, delivering the opinion, without reference to that of Vater v. Missouri Pac. R. Co. 84 Mo. 679, 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. These statutes are of recent origin. The question of their extraterritorial force has presented itself to various courts of the Union as a question of first impression; and, reasoning on various grounds, for the most part of a technical nature, they have arrived at different 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 spirit of comity which ought to subsist between different states of the Union. We accordingly hold that this action was well brought."
When the courts are asked to enforce a right given under a local statute, and it is made to appear that the act complained of was committed 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 would be indicated, if the local courts will recognize the action as transitory." ('ourts of admiralty in the United States have jurisdiction of torts committed on the high seas without reference to the nationality of the vessel on which they are committed, or that of the parties to them. Sneh jurisdiction 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 foreigners who are subjects of different governments, and therefore have no common forun. 3
The rule seems to be that where there is a right of action either at common law or given by statute, aud a legal liability has been incurred, it may be enforced, and the right of action may be pur
Stoeckman v. Terre Haute & 1. R. Co. 15 Mo. App. 503. *Cincinnati, I. & D. R. Co. v. VcMullen, 117 Ind. 439; St. Louis, I. M. & S.
R. Co. v. McCormick, 1 L. R. A. 804, 71 Tex. 660; Stallknecht v. Penn. sylvania R. Co. 53 How. Pr. 305; Sema R. & D. R. Co. v. Lucy, 43 Ga. 461, 49 Ga. 106: Western & A. R. Co. v. Strong, 52 G&. 461.; Stoeckman v.
Terre Haute &: I. R. Co. 15 Mo. App. 503. *Bernhard v. Creene, 3 Sawy. 230; The Noldlehurn, 12 Sawy. 132; The Bel.
genland, 114 C. S. 35.7, 29 L. ed. 152; Ben. Adm. § 282,
sued in any court which has jurisdiction of the subject matter and can obtain jurisdiction of the parties.' Courts will entertain jurisdiction of actions for personal injuries committed abroad, when both or either of the parties are citizens of the United States.'
As to torts committed in foreign countries the jurisdiction of state courts is undoubted, but its exercise is only a matter of comity; and where it appears that our courts are resorted to for the purpose of adjudicating upon mere personal torts, committed abroad, the court may properly decline to proceed further.'
An action may be brought, with process in the usual way, by a citizen of Georgia against the Montgomery & West Point R. Co. even though the cause of action originated in Alabama.' It has been held that where a suit was brought in Georgia for the killing of the plaintiff's husband in Alabama, it could not be maintained because by the statute of Alabama the right of action is given to the personal representative. But if the courpany doing the injury in Alabama is a Georgia corporation 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 New York. It was held that the action was properly brought in New Jersey.'
$ 179. Who may Bring Action in Foreign Juris
diction. There are cases where the question of the party who may sne is simply a question of remedy, and therefore determined by the law of the forum. Whether an infant shall sue by guardian or next friend, and whether an assignee shall sue in his own name or
Alley v. Caspari, 6 New. Eng. Rep. 429, 80 Me. 234; Dennick v. New Jer.
sey Cent. R. Co. 103 U. S. 11, 26 L. ed. 439; Shedd v. Moran, 10 Ill. App.
618. Glen v. Hodges, 9 Johns. 67; Smith v. Bul, 17 Wend. 323; Lister v. Wright,
2 Hill, 320; Johnson v. Dalton, 1 Cow. 548. Contra, Molony v. Doros, 8
Abb. Pr. 316; Wells, Jurisdiction of Courts, 110. Great Western R. Co. v. Miller, 19 Mich. 305. * Berry v. Montgomery & W. P. R. Co. 39 Ga. 554. * Selma, R. & D. R. Co. v. Lacey, 49 Ga. 106. Central R. Co. v. Swint, 73 Ga. 651; Cooley, Torts, 312. Ackerson v. Erie R. Co. 31 N. J. L. 309.
that of his assignor and the like, are clearly questions of procedure only, but where the matter is not of form simply, but of right, the remedy must follow the law of the right. Where one section of a foreign statute merely imposes a liability but confers no right, and another section confers the right, and without it the other would be utterly nugatory and ineffective, and together they give the right to the party who is to enforce the right and name the party entitled to the benefit, and they give all these together, the plain words constitute one ground, to wit, an action to be enforced as given, and not capable of being split up into different rights with varying remedies according to the tribunals in which they may chance to be asserted; there the question of the party who may sue is not of form merely, but of right; and undoubtedly the action could be maintained in the foreign state by a personal representative, and an action brought by another party in another jurisdiction would not oust the right of the legal party in the place where the cause of action arose.
An action may be maintained in one state by the personal representatives of one killed by the negligent act of a common carrier in another state, to recover from the carrier damages resulting 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 by negligence and provides that the action shall be brought by the representatives of deceased, the personal representative appointed in another state may bring the action in the state where he was appointed.' An action will lie in New York upon the New Jersey statute for a death occurring in New Jersey through the negligence of a New Jersey corporation at the suit of a New York administrator; the fund recovered to be distributed according to the New Jersey law. Where like statutes exist, most states re
* Usher v. West Jersey R. Co. 4 L. R. A. 261, 126 Pa. 206. ? O'Reiley v. New York & N. E. R. Co. 6 L. R. A. 719, 16 R. I. 388. 3 Leonard v. Columbia Steam Nav. Co. 84 N. Y. 48; Smith v. Bull, 17 Wend.
323; Whitford v. Panama R. Co. 23 N. Y. 465; Story, Confil. L. ES 538, 553; Bissell.v. Michigan S. & N. I. R. Co. 22 N. Y. 258; McCormick v. Pennsylvania Cent. R. Co. 49 N. Y. 303; Home Ins. Co. v. Pennsylvania
R. Co. 11 Hun, 182. *Dennick v. Nero Jersey Cent. R. Co. 103 U. S. 11, 26 L. ed. 439; Cooley,