Murray's Admx. v. Louisville & N. R. R.

Opinion of the? Court by Judge Hobson

Affirming

John- Murray was a locomotive engineer in the service of the Louisville & Nashville Railroad: Company *339 pulling a train southward from Bowling Green. While he wa.s running under orders, he came suddenly, in the night, upon some cars standing on the main track. A collision ensued, in which he was killed instantly, in the state of Tennessee. This- suit was brought in the Warren circuit court by his administratrix to recover for his death. There was no averment in the pleadings of the plaintiff or of the defendant as to what the law of Tennessee is, and no proof was introduced on the trial by either party on the subject. At the conclusion of the evidence, the court instructed the jury peremptorily to find' for the defendant. This was done, and, the plaintiff’s petition having been dismissed, she appeals.

The proof on the trial showed that the cars in question had been placed on a side track, but that the side track sloped toward the point where the cars were found, and that in some way the cars had started and run out of the siding down on the main track, where they were when Murray’s train ran into them. The fact that the ears were on the track is sufficient to make out for Murray a prima facie case of negligence on the part of the master, as he was running in obedience to his orders, and manifestly the master did not furnish him a safe place to work. The facts shown therefore were sufficient to take the case to the jury, if it had not appeared that the accident took place in Tennessee. In Thompson on Negligence, section 6991, the rule is thus stated: ‘ ‘ The law of the place of the injury controls in an action for wrongful death, and the right to recover and the amount of the recovery are governed by the lex loci, and not by the lex fori. These statutes have no- extraterritorial effect. If the death of the deceased and the act which caused it occurred beyond the territorial limits of the state- where the suit is brought, an *340 action for wrongful death will not lie under the statute of that state, whether such act and death took place in another state or upon the high seas. It does not alter the case- in this respect that both parties were citizens of the state where suit is brought, or that the wrongdoer was a corporation chartered by that state, or that the injury was occasioned by negligence which was a breach of a contract entered into in that state, or that the corporation whose wrongful act inflicted the injury was chartered both in the state where the death occurred and in the state where the suit was brought, or that the person injured was. brought into, the state before his deah, and there died.” See, to same effect, 8 Cyc. 885; 13 Cyc. 314; Wharton on Conflict of Laws, section 480d.

Murray was instantly killed. Here the whole matter occurred in Tennessee. Until the contrary is alleged and proved, the courts of this state will presume that the common law is yet in force- in a sister state. Cope v. Daniel, 9 Dana, 415 ; Johnson v Bank of U. S., 2 B. Mon. 310 ; Miles v. Collins, 1 Metc. 311 ; Honore v. Hutchings, 8 Bush, 692 . At common law the cause of action for an injury to the person died with the person, and no action could be maintained to recover for death. Eden v. Lexington and Frankfort B. B. Co., 14 B. Mon. 204 . As it must be presumed that the common law is still in force in Tennessee, and as no right of action existed at common law to recover for the death of a person, and as. Murray was killed in Tennessee, where under the record it must be presumed that the common law is still in force, it follows, that the circuit court properly held that no action could be maintained in Kentucky to recover for his death without proof of what the law in Tennessee is. It is true that since the pas sage, of Lord Campbell’s, act in England, stat *341 utes have been passed in this- country in nearly all of the states, allowing a right of action in such cases. These statutes differ very much in their terms. As to who are fellow, servants- or to whom the recovery shall go, or by whom the action may be maintained, or what is necessary to be shown to- entitle the plaintiff to recover, the rules differ very much in the different • states. The court therefore cannot intelligently proceed in such a case as this, unless it knows the statute of the state- regulating the matter.

It is insisted that it should be presumed, in the absence of proof to the contrary, that the statute of another state is the same- as the statute- of this state, and that, as the plaintiff may recover under the laws of this state on the facts shown, it should be presumed that he might recover under the laws of Tennessee-. It is said that this court so laid down the rule in Chesapeake, etc., R. R. Co. v. Venable, 111 Ky. 41 , 63 S. W. 35 , 23 Ky. L. R. 427, but in that case Venable was not killed. That was an action which might be maintained at common law. In this case the plaintiff has no right of action at common law, and can only sue by virtue <of a statute. The Kentucky Statutes have no extraterritorial effect, and therefore do- not apply to the case. While it is presumed that the common law prevails in a sister state, it is not presumed that the statutes of a sister state are the same as the- statutes- of this state. To so hold would be to require us to presume that the Legislature of other states meets at the same time as the Legislature of Kentucky, and changes the laws of those states simultaneously with the changes that' are made in Kentucky. Judicial presumption rests on the truth as shown by the usual course of things, but they are not indulged' as to matters which cannot possibly be true. Moss v. Rowland, 3 Bush, 505 ; Klenke v. *342 Noonan, 118 Ky. 436 , 81 S. W. 241 ; Arnett v. Pinson (Ky.) 108 S. W. 853 ; Wharton on Conflict of Laws, section 781a

Judgment affirmed. Petition for rehearing by appellant overruled.