170 Ind. 370 | Ind. | 1908
Appellee, as administratrix of the estate of Martin Hassett, deceased, recovered a judgment of $6,500 against appellant for the wrongful death of said decedent, while in its employ. The cause was tried upon two paragraphs of complaint, and the sufficiency of these paragraphs is the first question presented for our decision.
The second paragraph of amended complaint averred the appointment of appellee as such administratrix by the Miami Circuit Court; that appellant is a corporation operating a line of railroad through the states of Indiana and Illinois; that on October 13, 1905, decedent was in appellant’s employ as conductor of an extra freight-train in service at Newell, Illinois, and, having completed his day’s work at about 6:10 o ’clock p. m., was 'en route to the roundhouse at Tilton, Illinois, for the night; that an extra freight-train on the Cairo division of the “Big Four” had on said day been made up in the yards of the Wabash Railroad ■Company, and at 6 o’clock p. m. started for Mt. Carmel, pulled by engine No. 444, in charge of George Maloney, fifteen minutes ahead of an extra work-train, and pulling slowly up the hill toward Tilton, stopped one-half mile east of the yard office to cross over and take the Big Four tracks which began at that point; that appellant’s engine, No. 825, had been switching in the Danville yards, and was following said freight-train up the hill, on the way to the Tilton roundhouse for the night, and was then and there in charge and control of a foreman named Crabill, in appellant’s employ; that decedent’s work-train was following about five minutes after engine No. 825; that upon signal Crabill stopped said engine near the caboose of the extra freight-train ; that engine No. 825 was a big freighter, was not protected by lights, had no light on the back of the tank, and its bulk hid the signal lights on the caboose of said extra freight; that engine No. 835 was backing tank first and pulling decedent’s extra work-train, with the caboose next to the engine, followed by other cars; that engine No. 835
The fourth paragraph of the amended complaint contains the same general facts, and avers specially that Maloney was in appellant’s employ as engineer and Crabill as engine foreman, and that by reason of a curve in the track it became and was their duty, under the rules of appellant then in force, to send out a flagman with stop signal to a sufficient distance to insure full protection, and said flagman by proper signals should have flagged an approaching train, or placed two torpedoes on the rail of the track to
state creating a right of action for death caused by negligence. Baltimore, etc., R. Co. v. Jones (1902), 158 Ind. 87; Baltimore, etc., R. Co. v. Reed (1902), 158 Ind. 25, 56 L. R. A. 468, 92 Am. St. 293; Jackson v. Pittsburgh, etc., R. Co. (1895), 140 Ind. 241; Cincinnati, etc., R. Co. v. McMullen (1889), 117 Ind. 439, 10 Am. St. 67; Burns v. Grand Rapids, etc., R. Co., supra.
In the case of Midland Steel Co. v. Citizens Nat. Bank (1904), 34 Ind. App. 107, 112, the following allegation as to the common law of another state was held to be sufficient: “ ‘That at the time said note was executed as aforesaid, and at the time it was indorsed and taken by this plaintiff as aforesaid, and for many years prior thereto, and up to the present time, it was and is the common and unwritten law of the state of Pennsylvania,’ ” etc. In Crandall v. Great Northern R. Co. (1901), 83 Minn. 190, 86 N. W. 10, 85 Am. St. 458, it was alleged that, at the time the injury occurred, “it was the law of North Dakota that,” etc., and the allegation was held sufficient. On the other hand, in the case of Phinney v. Phinney (1859), 17 How. Pr. 197, an allegation, that “under the laws of Spain” a person.became seized of a certain estate, was held insufficient. The court in this connection said: “This kind of statement involves a mere conclusion or inference, in which the plaintiff, it will readily be seen, may be greatly mistaken. They, in effect, express an opinion of the law, and ask the court blindly to adopt it, without giving the court necessary materials to test its correctness. Foreign laws as well as private wills are mere facts, and, like other facts, must be set forth and proved. It is for the court, and not the parties, to determine their legal effect when produced.” See, also, Rothschild v. Rio Grande, etc., R. Co. (1891), 13 N. Y. Supp. 361, 59 Hun 454. In Templeton v. Sharp (1889), 10 Ky. Law 499, 9 S. W. 696, the allegation, that, “according to the law” of California, was held to be but the statement of a legal conclusion, and gave merely the opinion of the pleader. The supreme court of New Jersey said, of an attempt to plead a foreign statute, that “the
These Ohio decisions were based upon a statute permitting actions for death occasioned by a wrongful act in another state to be enforced there only where such other state allowed the statutes of Ohio of a like character to be enforced in its courts. The reciprocity policy of Ohio was thus embodied in a positive statute. The English rule is to the same effect. 22 Am. and Eng. Ency. Law (2d ed.), 1379.
The doctrine of reciprocity is a fair and reasonable principle to govern the conduct of independent nations in affording relief to aliens through their courts. The people
The judgment is reversed with directions to sustain appellant’s demurrer to the amended second and fourth paragraphs of complaint, and to grant appellee leave to amend.