Denver & R. G. R. Co. v. Warring

• Decision Date: 07 May 1906
• Citation: 86 P. 305,37 Colo. 122
• Parties: DENVER & R. G. R. CO. v. WARRING.
• Court: Colorado Supreme Court

86 P. 305

37 Colo. 122

DENVER & R. G. R. CO. v. WARRING.

Supreme Court of Colorado

May 7, 1906

Rehearing Denied July 2, 1906.

Appeal from District Court, La Plata County; James L. Russell Judge.

Action by Belle Warring, as administratrix, etc., against the Denver & Rio Grande Railroad Company. From a judgment for plaintiff defendant appeals. Affirmed.

Wolcott, Vaile & Waterman and Reese McCloskey, for appellant.

B. W Ritter and J. C. Petheridge, for appellee.

STEELE J.

Warring was employed by the Denver & Rio Grande Railroad Company as a brakeman on one of the company's freight trains during the month of March, 1901. He lost his life in a wreck occurring on that portion of the road situated in New Mexico. At the time of his death he was a resident of Durango, in this state. His widow, the appellee here, was appointed administratrix of his estate by the county court of La Plata county on October 24, 1901, and on November 4, 1901, brought this action, claiming that it was by reason of the negligence of the company that her intestate lost his life. The complaint charges the company with negligence, and alleges that it negligently and carelessly failed to provide for the proper inspection of its track, and carelessly and negligently railed to cause any examination to be made of the hillside, or of the boulders, rocks, cliffs, or ledges thereon, and carelessly and negligently failed to take any precaution to prevent the falling or precipitating of rock, boulders, or earth upon said truck, and carelessly and negligently suffered and permitted a large and heavy rock, which had become loosened and was about to fall, to remain in a dangerous and unsafe position on said hillside about 350 feet distant from the center of defendant's track, which rock and the dangerous and insecure position of the same was in plain view of said track, and could have been known to the defendant in the exercise of reasonable care. From a judgment in the sum of $5,000, the company has appealed.

The points mainly relied upon by the appellant to reverse the judgment are: (1) The laws of New Mexico do not confer a right of action for the death of Warring under the circumstances disclosed by the complaint. (2) The plaintiff has no legal capacity to sue. (3) There was no proof of actual negligence on the part of appellant. (4) Error in the giving and refusing of instructions.

The plaintiff introduced sections 3214, 3215, 3216, and 3218 of the Compiled Laws of New Mexico as the basis of her right of action. Counsel for appellant contend that the Supreme Court of New Mexico has held that section 3214 does not apply to common carriers, and that section 3213 does apply, and that actions brought under 3213 must be brought in the name of the beneficiary mentioned in the statute, and not by the personal representative. In the case of Romero v. A., T. & S. F. R. Co., 11 N. M. 679, 72 P. 37, the court did hold that section 3214 does not apply to common carriers, but that section 3213 does apply to common carriers, and that for causes of action arising under such section the legal representatives were not authorized to bring or maintain actions. We think that counsel for appellee is wrong in his contention that section 3214 applies as well to railway companies as to any other person or corporation, and we feel that we are bound by the construction placed upon the statutes of New Mexico by the Supreme Court of that territory. But we are of opinion that sections 3216 and 3218 of the Compiled Laws of New Mexico authorize this action by the representative of the deceased. Section 3216 is as follows: 'Sec. 3216. Every corporation operating a railway in this territory shall be liable in a sum sufficient to compensate such employé for all damages sustained by any employé of such corporation, the person injured or damaged being without fault on his or her part, occurring or sustained in consequence of any mismanagement, carelessness, neglect, default or wrongful act of any agent or employé of such corporation while in the exercise of their several duties, when such mismanagement, carelessness, neglect, default or wrongful act of such employé or agent could have been avoided by such corporation through the exercise of reasonable care or diligence in the selection of competent employés or agents, or by not overworking said employés, or requiring or allowing them to work an unusual or unreasonable number of hours; and any contract restricting such liability shall be deemed to be contrary to the public policy of this territory and therefore void.' Section 3218 provides, in substance, that a cause of action arising under this section shall be brought by the personal representative of the deceased.

Counsel for appellant, we think, place too narrow a construction upon section 3216. The right is not general, but is limited to injuries occurring through mismanagement, carelessness, neglect, default or wrongful act of agents or employés, only when such mismanagement, carelessness, neglect, default or wrongful act could have been avoided by such corporation through the exercise of reasonable care or diligence in the selection of competent employés or agents, or by not overworking said employés or allowing them to work an unusual or unreasonable number of hours. But we cannot place such construction upon the statute. We do not think the company can escape liability by showing that its employés are competent, or have not been overworked, or have not worked an unusual or unreasonable number of hours. The statute, it seems to us, requires not only that the company should select competent employés and provide reasonable hours for them to work, but should employ and select a sufficient number of competent employés to properly guard their track and inspect their machinery and appliances. We are therefore of opinion that the company is liable for damages to its employés under section 3216, if it should appear that a reasonable inspection of the company's tracks and the hillsides beyond its track would have prevented the injury, and that under that section it is necessary for the company to not only select competent employés but to also select a sufficient number thereof to properly perform the duties assigned them.

The laws of New Mexico require actions of this character to be brought in the name of the personal representative of the deceased. In this state the personal representative has no right of action. In New Mexico the proceeds of any judgment obtained must be distributed to the heirs of the deceased, as designated by statute. In Colorado the action accrues to the heirs, according to the preferences fixed by statute. Because of this difference between the statute of the place where the injury resulting in death occurred and the statute of the place where the action is brought, counsel insist that the action cannot be maintained by an administrator appointed in this state. It is now established by the overwhelming weight of authority that a statute creating a cause of action for the damages sustained by the relatives or next of kin of the deceased is not penal, and that the cause of action is transitory, and may therefore be enforced in any state or country whose public policy is not opposed to the recognition and enforcement thereof. Wharton on Conflict of Laws, 1114. It is also 'established, both upon reason and authority, that the fund recovered is to be distributed to the persons entitled to it under the statute of the place where the cause of action arose, rather than to the persons who would be entitled according to the statute of the forum.' Wharton on Conflict of Laws, 1129.

Counsel for appellant say 'that a domestic administrator can never maintain a suit in his forum unless the following conditions exist: (a) The lex loci gives the right of action to the personal representative. (b) The lex fori permits a domestic administrator to collect, account for, and distribute the fund as a part of the administration of the estate of his decedent.' It will be conceded that the action must be brought by the person designated in the statute of the place where the injury occurred, and not by the person designated by the law of the forum. There is a decided conflict of authority upon the question, and we shall not undertake to review the cases. Wharton has this to say upon the subject: 'While the weight of authority makes the existence of a similar statute of the forum a condition of jurisdiction of a cause of action arising under the statute of another state or country, the statute of the forum is invoked only for the purpose of removing any objection, based upon the public policy of the forum, to entertaining the action, and never, at least unless it expressly or by necessary implication extends to extraterritorial torts, for the purpose of creating a cause of action based upon a tort occurring outside of the forum. * * * The action must be brought by and in the name of the party designated by the statute of the state or country in which the cause of action arose, even though a similar statute of the forum provides that the action shall be brought by some other party. Thus, if the statute of the state or country where the cause of action arose provides that the action shall be brought directly by the beneficiaries, or some one of them, that provision prevails notwithstanding that the statute of the forum provides that the action shall be brought by the personal representative. Conversely, if the statute of the state or country where the cause of action arose provides that the action shall be brought by the personal representative, it must be brought by such representative, even though the statute of the forum provides that it shall be brought directly by the...