226 F. 23 | 7th Cir. | 1915
(after stating the facts as above).
Moreover, this contract of employment clearly contemplated that the deceased might be sent anywhere. His release inured to the benefit of any railroad for injuries sustained in any state. Its validity as a defense in an action in tort is governed by the law of the place of injury. Smith v. A., T. & S. F. Ry. Co., 194 Fed. 79, 114 C. C. A. 157. And, as Colorado has no statutory provision relating thereto, the federal courts, interpreting the common law, would, in any event, enforce the release as a bar to an action for damages arising from the negligence in Colorado of the railroad’s employes.
The declaration in the instant case is clearly based on section 1509, and not on section 1508. It specifies pecuniary loss. The ad damnum exceeds the maximum penalty. Both owning and operating companies were made defendants, although the operating company alone is subject to the penalty for negligence of its employés. As numerous cases cited in the Frederic Case show, the general rule that penal statutes will not be enforced in courts of another jurisdiction has been expressly applied to statutes of this kind.
The distinction between the penalty and the compensation statutes is pointed out in the Frederic Case, supra. While the Supreme Court of Colorado does not seem to have expressly passed upon the point, we are of the opinion that whether section 1509 be held to create a new cause of action, or merely to abrogate, in favor of widow and children, the common-law rule that death of the party injured terminates the remedy for a tort, no action can be maintained thereunder, in view of the express limitations contained therein, when, as in the instant case, the deceased by his own act had prevented a cause of action from arising in his lifetime. Northern Pacific Railway Co. v. Adams, 192 U. S. 440, 24 Sup. Ct. 408, 48 L. Ed. 513. See 28 Harvard Law Review, 802.
Judgment affirmed.