Murray's Adm'x v. Louisville & N.R. Co.

• Decision Date: 21 May 1908
• Citation: 132 Ky. 336,110 S.W. 334
• Parties: MURRAY'S ADM'X v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

110 S.W. 334

132 Ky. 336

MURRAY'S ADM'X v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

May 21, 1908

Appeal from Circuit Court, Warren County.

"To be officially reported."

Action by John Murray's administratrix against the Louisville &amp Nashville Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

B. F Proctor, G. H. Herdman, J. G. Covington, and Greene & Van Winkle, for appellant.

Benjamin D. Warfield and Sims, Du Bose & Rodes, for appellee.

HOBSON J.

John Murray was a locomotive engineer in the service of the Louisville & Nashville Railroad Company pulling a train southward from Bowling Green. While he was 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 cars 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 6 Thompson on Negligence, § 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 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 death, and there died." See, to same effect, 8 Cyc. 885; 13 Cyc. 314; Wharton on Conflict of Laws, § 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...