Levy v. Steiger
124 N.E. 477
Mass.
1919
Check Treatment
De Courcy, J.

The plaintiffs were injured in a collision between an automobile, in which they were riding as guests, and a car driven by the defendant. Although the parties are residents of this Commonwealth, the accident occurred in the town of East Providence in the State of Rhode Island, The judge of the Superior Court ruled that the Massachusetts St. 1914, c. 553, was applicable to the cases on trial; and accordingly instructed the jury that the defendant had the burden of showing contributory negligence on *601the part of the plaintiffs. The defendant’s exception to this ruling and instruction raises the single question before us.

It is elementary that the law of the place where the injury was received determines whether 'a right of action exists; and that the law of the place where the action is brought regulates the remedy and its incidents, such as pleading, evidence and practice. Davis v. New York & New England Railroad, 143 Mass. 301. Hoadley v. Northern Transportation Co. 115 Mass. 304. While there may be cases where it is difficult to decide whether a particular enactment relates to procedure or to substantive rights, it was settled in Duggan v. Bay State Street Railway, 230 Mass. 370, where its construction and constitutionality were in question, that this “due care” statute, so called, is one of procedure. As the court expressly said, in construing the statute, with a view to determining its constitutionality (page 377): “These two parts of the statute do not undertake to change the substantive law of negligence in any respect. The tribunal hearing the case must still be satisfied on all the evidence that the plaintiff was in the exercise of due care and did not by his own acts of omission or commission help to produce his injury, and that the defendant was negligent.” And again (page 380): “The present statute simply affects procedure and the burden of proof. It does not work any modification of fundamental rights.” See also Miller v. Flash Chemical Co. 230 Mass. 419, 422; Chicago Terminal Transfer Railroad v. Vandenberg, 164 Ind. 470, 488; Sackheim v. Pigueron, 215 N. Y. 62. In Lemieux v. Boston & Maine Railroad, 219 Mass. 399, relied on by the defendant, it was expressly stated: “ By the common law of Vermont, as proved at the trial, an employee assumes not only the risks ordinarily incident to his employment but such unusual and extraordinary risks as he knows and comprehends. And the burden is on him to prove as part of his case that he did not know and comprehend the danger., [Citing cases.] This affects the right of action, and does not relate merely to the matter of evidence or procedure. Morrisette v. Canadian Pacific Railway, 76 Vt. 267.”

Exceptions overruled.