Morisette v. Canadian Pac. Ry. Co.

• Citation: 76 Vt. 267,56 A. 1102
• Parties: MORISETTE v. CANADIAN PAC. RY. CO.
• Decision Date: 17 February 1904
• Court: Vermont Supreme Court

56 A. 1102

76 Vt. 267

MORISETTE

v. CANADIAN PAC. RY. CO.

Supreme Court of Vermont. Orleans.

Feb. 17, 1904.

Exceptions from Orleans County Court; Haselton, Judge.

Action by Arthur Morisette against the Canadian Pacific Railway Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Argued before TYLER, MUNSON, START, WATSON, and STAFFORD, JJ.

J. W. Redmond and E. A. Cook, for appellant. F. E. Alfred and W. W. Miles, for appellee.

STAFFORD, J. The plaintiff was a brakeman upon one of the defendant's freight trains, and claimed to have been injured through the negligence of the company in maintaining a switch too near the track, so that when he was attempting to mount a moving car he struck against it and was knocked off. The accident occurred in the Province of Quebec, and the declaration, treating the law of the province as matter of fact, alleges that the defendant, as employer of the plaintiff, owed him the care and oversight which the good father of a family owes to his children, and was bound to guard him even against his own mistakes and thoughtlessness; that neither assumption of risk nor contributory negligence constituted a bar to the right of recovery, but operated only to reduce the damages. The defendant objected to any and all evidence of the law of Quebec, upon the ground that, as it was alleged in the declaration, it was "in direct conflict with the law of Vermont, and related, not to the right of action, but solely to the remedy." The objections stated were overruled, an exception was allowed, and the plaintiff introduced evidence in support of his allegations. Under this exception the defendant in this court presents the objection that the plaintiff should not have been permitted to make good his declaration touching the law of the province on the subject of contributory negligence, because he had also alleged that the plaintiff was in fact wholly free from fault; that, having made the latter allegation, he was bound to prove it This question is not raised by the objection and exception, and is not considered.

It is next objected that evidence as to the law of contributory negligence was inadmissible because it related, not to the right of action, but only to the remedy. But we think it related clearly to the right of action. By the law of Vermont it was a bar; by the law of Canada, as the evidence in question tended to show, it was not a bar.

It is further objected that the Canadian law, as alleged, although neither criminal norpenal, is so different from ours that we ought not to administer it. Comity does not require us to take up and enforce the law of a foreign state which is contrary to pure morals, or to abstract justice, or to enforce which would be contrary to our own public policy. The law we are considering is not claimed to be open to either of the first two objections, but is claimed to be open to the third, because it is so different from the law of Vermont. Some states have adopted this view, declining to administer foreign laws unless closely analogous to their own. Mexican National Ry. Co. v. Jackson, 89 Tex. 107, 33 S. W. 857, 31 L. R. A. 276, 59 Am. St Rep. 28; Anderson v. M. & St. P. Ry. Co., 37 Wis. 321; Richardson v. N. Y. C. R. Co., 98 Mass. 85. But we believe the sounder opinion is that a court should not, in otherwise proper cases, refuse to adopt and apply the law of a foreign state, however unlike the law of its own, unless it be contrary to pure morals, or abstract justice, or unless the enforcement would be of evil example, and harmful to its own people, and therefore inconsistent with the dignity of the government whose authority is invoked. Judged by that test the ruling was correct. Herrick v. Minneapolis, etc., Co., 31 Minn. 11, 16 N. W. 413, 47 Am. Rep. 771; Higgins v. R. Co., 155 Mass. 180, 29 N. E. 534, 31 Am. St. Rep. 544; Dennick v. R. Co., 103 U. S. 11, 26 L. Ed. 439: McLeod v. R. Co., 58 Vt. 727, 6 Atl. 648; Chicago & E. I. R. Co. v. Rouse, 178 Ill. 132, 52 N. E. 951, 44 L. R. A. 410.

It was still further objected that in the circumstances of this case a resort to our tribunals was so needless and so embarrassing that the county court should have refused to entertain the complaint. See Western Ry. Co. v. Miller, 19 Mich. 306; Gardner v. Thomas, 14 Johns. 134, 7 Am. Dec. 445. The defendant is a Canadian corporation. The plaintiff is a resident of Canada, and there the accident occurred. The courts of the dominion were open to the plaintiff. The witnesses could there have been compelled to attend and testify in person. A view could have been ordered, if necessary, and the governing law would have been determined by judges without the necessity of a tedious and perplexing trial by jury to settle the law as a question of fact Without saying what might or ought to have been done if a motion to this effect had been made at the outset of the case, we do not feel at liberty at this time and under this exception to say that the proceeding should have been dismissed. The exception was merely to the admission of evidence concerning the law of Canada on the ground that the case was governed by the law of Vermont—a position that cannot be sustained. Morrisette v. Pacific Ry. Co., 74 Vt. 232, 52 Atl. 520.

The court found that the plaintiff, although not an engineer, was "a practical railroad man," upon evidence "that he had had experience as a yardman and brakeman and in operating various switches, and had knowledge of what a switch rod is, what its connections are, and how it works in connection with the switch to move the rails so as to change the track"; and thereupon permitted him to testify that he knew of no reason why the switch in question, which stood between the main line and the siding, could not have been set on the other side of the main track and on the other side of the platform, in what the plaintiff claimed would have been a safer place. To this the defendant excepted, and still urges that only an engineer could be an expert upon such a question. We cannot accede to this view. An engineer's opinion might, indeed, be of more value, but one having the plaintiff's experience might properly be found, and we must suppose was found, by the court, to be better able than men in general to form an opinion upon the subject. He might be able to see at once some objection to the proposed change which the unexperienced man could not see; and, if he could in fact see no objection, it would be some evidence that none existed. Indeed, it might be strong evidence that no very obvious objection existed. If other objections did exist, which only an expert of wider experience and more thorough training could understand or discover, the field was open to the defendant, and was in fact entered and improved by it.

The plaintiff claimed that when he was struck by the switch, or the lantern on top of the switch, he was in this position: His feet on the stirrup at the bottom of the side of the car, his hands "hold of the grab-iron." The defendant claimed that the relative positions of the stirrup and grab-iron were such that he could not in that way have swung out far enough from the car to have been struck. It also claimed that, if the accident did occur in that way, the risk was obvious, and was assumed. The accident happened April 3, 1900. On January 2, 1901, Mr. Cook, one of the plaintiff's counsel, visited the place, and watched a long freight train draw in upon the same siding, and observed the cars in respect to grab-irons and stirrups and their distance from each other. He had been in the habit of noticing in the same respects the cars that had been passing over the road for several years, and testified that these were of the same general character as those. The plaintiff was with Mr. Cook on January 2d, and his testimony was that the cars in the train which they watched were, in part at least, such as he had had to operate through the years of his service, and such as were in the train at the time he was injured. Upon this basis Mr. Cook was permitted to testify to the distance between the grab-iron and the stirrup on the cars in that train,...