Statement of the Case.

damages against the person causing the death, or if such person be employed by another person who is responsible for his action, then also against such other person. In every action under this and the preceding section such damages may be given as under all the circumstances of the case may be just."" The case was removed to the Circuit Court of the United States for the District of Minnesota, where an answer was filed by the defendant, denying the averments of the complaint, and alleging that the death of Munro was caused solely by his negligence and carelessness, and not by the negligence of the defendant or any of its servants or employés.

There was a verdict and judgment below in favor of the plaintiff for $10,000. To review that judgment this writ of error was sued out. The errors assigned were as follows:

"First. The court erred in charging the jury as follows: 'Did it fail to discharge any duty which the law imposed upon it for the safety of its employé, the plaintiff's intestate? If it did, and if such negligence was the cause of the death of the engineer, Munro, then the plaintiff is entitled to recover.'

"Second. The court erred further in charging the jury as follows: The charge in this complaint is that this death was caused by the derailment of the engine, which took place because the plow was out repair as described, or, at least, that the defendant had not used reasonable care in clearing its track, and that when the engineer in that condition arrived at this cut, two miles from Gray Cliff, the snow had accumulated to such an extent that the engine was thereby derailed, and that it was this negligence which caused the death.'

"Third. The court erred further in charging the jury as follows: Many States have different laws. The law in this State until recently was that only $5000 could be given in a case of death. It has lately been increased to $10,000.'

"Fourth. The court erred further in charging the jury as follows: If you believe from all the evidence in the case that the plaintiff is entitled to recover, then it is for you to determine what compensation you will give for the death of the plaintiff's intestate. The law of Montana limits it to such. an amount as you think it would be proper under al' circum

VOL. CLIV-13

Argument for Plaintiff in Error.

stances of the case, and that is the law which will govern in this case.'

"Fifth. The court erred further in refusing to give to the jury the following request tendered by defendant's counsel: 'You, the jury, are instructed to find a verdict for the defendant.'

"Sixth. The court erred further in refusing to give to the jury the following request tendered by defendant's counsel: The laws of Minnesota limit the amount of damages to be recovered in this case to five thousand dollars.'

"Seventh. The court erred further in refusing to give to the jury the following request tendered by defendant's counsel: The court instructs the jury that unless they find that it was customary for defendant company to send a snow-plow in advance of the trains running east from Livingston during storms of this character, and that unless, further, the accident occurred by reason of the negligent and careless failure of the defendant to send such snow-plow in advance, they will find for the defendant.'

"Eighth. The court erred further in refusing to give to the jury the following request tendered by defendant's counsel: 'The court instructs the jury that, unless they find that the defendant carelessly and negligently furnished to the deceased engineer a plow attached to his engine, the iron bolts and rods of which were broken, imperfect, and insufficient, and that by reason of which condition the said plow was loose and insufficiently secured to the pilot of said engine, and that when the said engine struck the snow at the cut, as testified to, the pilot plow of said engine, by reason of its said broken, loose, and imperfect condition, did ride upon the accumulated snow and ice at said cut, and that thereby the said engine was thrown upon the track, the jury will find for the defendant.'"

Mr. James McNaught, Mr. A. H. Garland, and Mr. H. J. May for plaintiff in error.

The issue the defendant was obliged to meet in the case at

Argument for Plaintiff in Error.

bar under the pleadings was, that the defendant had negli gently furnished the plaintiff with an engine with a defective "pilot-plow," and that this defect in the pilot-plow was rendered dangerous by failure of defendant to keep its track clear from snow and ice. It was not contended by plaintiff either that the defective pilot-plow could have occasioned the accident except in conjunction with the accumulation of snow and ice, or the accumulation of snow and ice on the track could have occasioned it except in conjunction with the defective pilot-plow. They were inseparably joined both in the complaint and in the evidence.

The evidence shows clearly that Munro had full knowledge of the storm, of the general condition of the track, and that his means of knowing of the necessity of sending a snow-plow ahead of his train were as full and complete as the defendant's. He had been on this particular run for a number of years, he was a capable engineer, familiar with the country, and he knew that no snow-plow had been sent ahead of his train. It is an established rule on this subject that a servant who has a reasonable opportunity to inform himself of defects, is presumed, by remaining in the company's employ to have assumed the risk of them. Pierce on Railroads, 379; Thompson on Negligence, 1008.

Upon the pleadings and upon the evidence, or upon either or both, the question of negligence on the part of the company in not sending a snow-plough in advance of the train or in allowing the snow and ice to accumulate upon its track should be eliminated from the case as an independent factor upon which plaintiff could recover.

So it is insisted that the law upon the facts of this case is decidedly with the road, without going over distinctly and separately the different errors specified in the record, and the court should have directed the jury to find for the road as requested by it. The case when examined in the light of the authorities, is sufficiently discussed upon its merits, and there is left but one more proposition to place before the

court.

The trial court erred in refusing to instruct the jury, as

Opinion of the Court.

asked by the road, "that the laws of Minnesota limit the amount of damages to be recovered in this case to $5000." Instead of that the court told the jury the recovery should be estimated under the laws of Montana, where Munro was killed.

It seems this action could have been brought in either Montana or Minnesota. The party had his selection as to the forum; that being so, it is but right and proper he should have only the remedy afforded by the law of the forum of his selection. Wharton, Conflict of Law, 88 479, 747-754; Gould's Pleading, 104-112, 131, et seq.; Story, Conflict of Law, §§ 556, et seq.; Nonce v. Richmond & Danville Railroad, 33 Fed. Rep. 429.

If the party can take advantage of a remedy afforded in Minnesota, he must certainly take that remedy with the burdens ordinarily attached to it in that State. Mostyn v. Fabrigas, 1 Smith's Ldg. Cas. 340, and Eng. and Am. notes.

Mr. Reuben C. Benton and Mr. Frank Healy for defendant in error.

MR. JUSTICE WHITE, after stating the case, delivered the opinion of the court.

For convenience, we shall consider the various assignments of error without regard to their numerical order.

The third, fourth, and sixth assignments involve the same question, and may be decided upon together.

The plaintiff's intestate was an engineer in the employ of the defendant corporation in the Territory of Montana, and the accident by which he lost his life occurred there. The law of the Territory of Montana at the time provided as follows:

"Where the death of a person not being a minor is caused by the wrongful act or neglect of another his heirs or personal representatives may maintain an action for damages against the person causing the death, or if such person be employed by another person who is responsible for his action, then also

Opinion of the Court.

against such other person. In every action under this and the preceding section such damages may be given as under all the circumstances of the case may be just." (Section 14, title II, chapter I, first division of the Code of Civil Procedure of the Territory of Montana.)

Under the law of Minnesota, when the death occurred, the limit of recovery in case of death was $5000, but at the time of the trial of the case in the court below this limit had been increased to $10,000 by amendment of the Minnesota statutes.

The question which those assignments of errors present is, was the amount of damage to be controlled by the law of the place of employment and where the accident occurred, or by the law of the forum in which the suit was pending? In the case of Herrick v. Minneapolis & St. Louis Railway Company, reported in 31 Minnesota, 11, which involved the question of whether the courts of Minnesota would enforce and apply to a suit in that State for a cause of action originating in Iowa a law of the State of Iowa making railroad corporations liable for damages sustained by its employés in consequence of the neglect of fellow-servants, the court said:

"The statute of another State has, of course, no extraterritorial force, but rights acquired under it will always, in comity, be enforced, if not against the public policy of the laws of the former. In such cases the law of the place where the right was acquired, or the liability was incurred, will. govern as to the right of action; while all that pertains merely to the remedy will be controlled by the law of the State where the action is brought. And we think the principle is the same, whether the right of action be ex contractu or ex delicto.

"The defendant admits the general rule to be as thus stated, but contends that as to statutory actions like the present, it is subject to the qualification that, to sustain the action, the law of the forum and the law of the place where the right of action accrued must concur in holding that the act done gives a right of action. We admit that some textwriters - notably, Rorer on Interstate Law-seem to lay