well knew of the broken, defective, and dan- | complaint is that this death was caused by tho gerous condition of said engine No. 161 at the derailment of the engine, which took place be time the said Hugh M. Munro was so ordered to run the same upon and over said railway, notwithstanding which the said defendant corporation did negligently and carelessly furnish to said Hugh M. Munro said engine with the said broken and imperfect pilot plow attached thereto to run over and upon its said line of railway.

cause the plow was out of 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.'

"That while said Hugh M. Munro was "Third. The court erred further in charg running said engine in performance of his ing the jury as follows: Many states have duty as such engineer and pursuant to the different laws. The law in this state until reorders of said defendant corporation, and becently was that only $5000 could be given in a fore daylight on said 10th day of January, case of death. It has lately been increased 10 1888, near Gray Cliff, in said territory of Mon- $10,000.' tana, the said engine struck an accumulation of snow and ice which said defendant had carelessly and negligently allowed to accumu late upon its said railway track, and the pilot plow of said engine, by reason of its broken, loose, and imperfect condition aforesaid, did ride upon said accumulation of snow and ice, thereby derailing said engine and throwing the same from said railway track, whereby the said Hugh M. Munro was instantly killed.

"That the law of the territory of Montana governing actions for recovery of damages for causing death was on the 10th day of January, 1888, and now is sections 13 and 14 of title II of said chapter 1 of the first division of Code of Civil Procedure of the territory of Montana; which said sections of said law of said territory are in the words and figures following, viz:

"Section 13. A father, or, in case of his death or desertion of his family, the mother, may maintain an action for the injury or death of a child, or a guardian for the injury or death of his ward.

Fourth. The court erred further in charg. ing the jury as follows: 'If you believe from all the evidence in the case that the plaint!!! 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 "all [194 circumstances 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 refus ing 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 Section 14. Where the death of a person a snowplow in advance of the trains running not being a minor is caused by the wrongful east from Livingston during storms of this act or neglect of another, his heirs or personal character, and that unless, further, the accirepresentatives may maintain an action for dam-dent occurred by reason of the negligent and 193]ages 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 ac tion under this and the preceding section such damages may be given as under all the circumstances of the case may be just."

careless failure of the defendant to send such snowplow in advance, they will find for the defendant.'

"Eighth. The court erred further in refus ing 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

The case was removed to the Circuit Court of the United States for the District of Minnesota, where an answer was filed by the defend-engine, the iron bolts and rods of which were ant, denying the averments of the complaint, and alleging that the death of Munro was caused solely by his negligence and careless ness, 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 is sued out. The errors assigned are 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.'

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 from the track, the jury will find for the defendant.'

Messrs. Jas. McNaught, A. H. Garland and H. J. May, for plaintiff in error: Allegations of negligence, where the action is brought by an employé, must be more "Second. The court erred further in charg-specific than when a passenger is plainuff, ing the jury as follows: 'The charge in this and though a general charge of negligence

Wherever, by either the common law or the statute law of a state, a right of action has be come fixed and a legal liability incurred, that liability may be enforced and the right of action pursued in any court which bas jurisdic tion of such matters and can obtain jurisdic-action. tion of the parties.

| notably, Rorer on Interstate Law-seem to av Dennick v. Central R. Co. of N. J. 103 U. S. | *down this rule, but the authorities [198 11 (26: 439); Herrick v. Minneapolis & St. L. R. cited generally fail to sustain it. Co. 31 Miun. 11, 47 Am. Rep. 771.

ing in such a law repugnant either to good morals or natural justice, or prejudicial to the interests of our own citizens.'

paired. Testimony was adduced by the plaintiff tending to show that the necessary repairs had not been made, and that at midnight on This opinion of the supreme court of Minne. the 9th, when the engineer was called upon 10 Bota is in accord with the rule announced by take charge of the engine, the *condi [200 Chief Justice Marshall in The Antelope, 23 U. tion of the plow was quite as defective as it S. 10 Wheat. 66 [6: 268]; In referring to that had been some two weeks before, when the encase in Teras & P. R. Co. v. Cox, 145 U. S. gineer had made his report of its condition to 593 [36: 829], the court said, "the courts of the foreman. On the other hand, the defendant no country execute the penal laws of another. offered testimony which tended to show that But we have held that that rule cannot be in the repairs had been made. It was proven that, voked as applied to a statute of this kind, which at the time Munro was called upon to take merely authorizes a civil action to recover charge of the engine, on the night of the 9th, damages for a civil injury." The rule thus the round-house was so full of steam that the enunciated had been adopted in previous cases, engine could not have been critically examined and has since been approved by this court. by him. The presence of this steam was due to Smith v. Condry, 42 U. S. 1 How. 28 [11: 35]; the fact that there was no heating apparatus in The China v. Walsh, 74 U. S. 7 Wall. 53, 64 the round-house, and, therefore, steam [19: 67, 71]; Dennick v. Central R. Co. of N. J. allowed to escape therein, in order to prevent 103 U. S. 11 [26: 439]; National Scam Nav. the engines from freezing. There was some Co. v. Dyer (The Scotland"), 105 U. S. 24, 29 evidence that the effect of the defective pilot [26: 1001, 1003]: Huntington v. Attrill, 146 U. | plow would be to throw the train from the S. 670 [36: 1128]. Indeed in Teras & P. R. track wheneverthe engine struck an accumulaCo. v. Cor, supra, Mr. Chief Justice Fuller,tion of snow which had been in any way imspeaking for the court, said: "The question, pacted, the resistance of the snow having the however, is one of general law, and we regard effect of pushing the defective plow up and it as settled in Dennick v. Central R. Co. of N. thus derailing the engine. On the other hand, J." there was other evidence that such a result 199] *The contract of employment was could not have followed from the defect in the made in Montana, and the accident occurred plow. in that state, while the suit was brought in Minnesota. We think there was no error in holding that the right to recover was governed by the ler loci, and not by the lex fori.

The fifth error assigned is the refusal to instruct the jury to find a verdict for the defend

ant.

was

Under this condition of proof it is clear that the instruction was rightfully refused. The obligation of the employer to furnish to his employé sound implements is established Hough v. Teras & P. R. Co. 100 U. S. 213, 213 [25: 612, 615]; Union Pac. R. Co. v. Suyder, ante, p. 597. And the fact that the engineer, The evidence tended to show that Munro was when called upon at midnight on the 9th to an engineer in the employ of the railroa I com- perform duty, took the engine out under the pany at the town of Livingston; that, as such conditions surrounding it in the roundhouse, engineer, he was driving engine No. 161 some implies no assumption by him of the risk of time in the latter part of December; that whilst defective machinery. The proof showed, or driving the engine he discovered that an appli- tended to show, that notification by the enance known as the "pilot-plow," which was gineer to the foreman and master mechanic of attached to the engine, was out of order, and the existence of the defect was given some ten in a dangerous condition. The purpose of such or twelve days before the accident, and that at a plow is to push the snow from the track, and the time there was an impression created in if not properly braced, as stated by one of the Munro's mind that it was to be remedied. It witnesses, it is likely to "rise up and ride over also shows that work of this character was the drift, instead of going through it, and the usually done in the shops at Livingston, over natural result would be to throw the engine which the foreman presided and in which the trucks from the tracks." After Munro discov-engine lay when the notice was given. From ered that the plow was defective, he called the attention of the foreman of the shop and master mechanic to its condition. On or about the 24 of January, Munro was taken sick and did not pursue his occupation until January 9, when he reported for duty. At about twelve o'clock that night, while a severe snow storm was raging, Munro was sent for, by messenger, to take out a passenger train. The train was delayed in getting away from Liv. ingston, and left that place about two o'clock in the morning drawn by engine No. 161, with Munro in charge as engineer. At a place called Gray Chiff the engine, in passing through a cut, capsized, and Munro was killed.

the time of the notice up to the time when the engineer was called upon to use the engine he was not on duty, but was absent on sick leave, As the employé had *given notice of the [201 defect to the proper officer whose duty it was to make the repairs, and the impression had been conveyed to him that these would be made, he had a right to assume that they had been made, and to act upon that assumption. The mere fact of his taking the engine out at midnight under the circumstances did not of itself, unsupported by other proof, imply an assumption by him of the risk resulting from the dangerous and defective condition of the attachment to the engine. Hough v. Texas & P. R. C. 100 U. S. 225 [25; 617].

There was no conflict of evidence as to the fact that the plow was defective some two The first assignment of error is, we think, weeks before the accident, when Munro so without merit. The language of the charge stated to the foreman and master mechanic, complained of is: "Did it [the defendant cobut there was a conflict upon the question|pany ] fail to discharge any duty which the law whether or not it had been subsequently re-imposed upon it for the safety of its employé, 154 U. S. U. S., BOOK 38

60

961

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." Separated from the context this general language might have misled, but when considered in proper connection with the rest of the instruction given, it could not have done so.

| which the plaintiff relied. Indeed, although the petition charged negligence on the part of the defendant in failing to send a snowplow ahead of the train, the action, as stated in the complaint, was predicated upon the defect in the machinery, or pilotplow-the failure to send the snowplow being alleged as a mere incident or remote cause of damage. And this distinction was elucidated with great [203 clearness in the charge of the court. It now here indicated that there could be any liability on the part of the defendant arising from the failure to send a snowplow ahead of the train, as a distinct and substantive cause of action. It referred to the failure to send a snowplow ahead of the train merely as the reason why it was necessary to have the pilot plow attached to the engine. The court said: "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 of repair as described, or at least that the defendant had not used reasonable care in clearing its tracks, and that when the engineer with the engine 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 on the part of the defendant that caused the death." In other words, throughout the whole charge, the court instructed the jury that the liability, if any, must result from the defective condition of the machinery or pilotplow of the engine; and where it referred to the failure to send a snowplow ahead of the train as an act of negligence, treated it as negligence giving rise only remotely, and not proximately, to the injury; the proximate cause being the defec tive machinery, and the remote the accumulation of snow, which rendered the use of the engine unsafe because of the defect in the pilot plow attached thereto.

The eighth error assigned was to a refusal of the court to give the following charge: "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 insuflicient, 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 tes tified 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 from the track, the jury will find for the defendant." The charge which the court gave was substantially as requested, and correctly stated the law. It was as follows: "The court instructs you that un less you find that the defendant negligently and carelessly furnished to the deceased engineer a plow attached to his engine, the iron bolts and 202] rods of which were broken, *imperfect, and insufficient, and by reason of said imperfect condition, when the engine struck the snow at the cut, as testified to, the engine and tender were derailed by reason thereof, which caused the accident in question, then the defendant would be entitled to a verdict. The claim is that the snow had accumulated to such an extent in that cut that when the engine struck it, the plow being in the condition in which it was, it was unable to clear the track, the accumulation of snow being so great, and that, as described by some witnesses, it rode up and threw the engine off the track from the fact that the front trucks of the engine could not ride over it. I instruct you that unless the cause of this derailment and the throwing over of the engine was the imperfect condition of THE COVINGTON & CINCINNATI [204 this plow, that it could not clear the cut from the snow which had accumulated there, but the engine was thrown over and thereby death ensued-unless this is found to be true to the satisfaction of the jury, the defendant would be entitled to a verdict." We can see no material variance between the charge requested and the charge which was given.

Judgment affirmed.

Mr. Justice Jackson not having heard the argument, took no part in the decision of this cause.

BRIDGE COMPANY, Plf. in Err.,

v.

COMMONWEALTH OF KENTUCKY.

(See S. C. Reporter's ed. 204-223.)

Bridge connecting states of Ohio and Kentucky -power of state to regulate toll-interstate

commerce.

The seventh error assigned is to the refusal of the court to instruct the jury "that unless they find that it was customary for defendant 1. The Kentucky law of 1890 fixing rates of toll

company to send a snowplow 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 snowplow in advance, they will find for the defendant." This instruction was, of course, justly refused, because it implied that the defendant was entitled to a verdict, if, contrary to its custom, it had not sent a snowplow in advance of the train, without reference to the defective condition of the pilotplow, which was the cause of action upon

and fare over the bridge of The Covington & Cincinnati Bridge Co., spanning the Ohio river and connecting the states of Ohio and Kentucky. NOTE.-A8 to power of Congress to regulate commerce, see note to Gibbons v. Ogden, 6: 23, and to Brown v. Maryland, 6: 678.

Congress; how far exclusive, see note to Gloucester
As to interstate commerce; regulation of: power of
Ferry Co. v. Pennsylvania, 29: 158.

Asto power of Congress to control commerce; state statute when invalid as being a regulation of commerce; drummers; vessels; railways; telegraph companies; state tax on commerce, when invalid, see pote to Harmon v. Chicago, 37: 216.

the jurisdiction of the commonwealth of Kentucky this side of the said center."

is an attempted regulation of commerce which it, said bridge, nor in anywise to acknowledge is not within the power of the state to make. 2. A state has no power to regulate tolls upon a bridge connecting such state with another state; Congress alone has such power.

On March 20, 1850, this act of confirmation was amended by the legislature of Ohio by

4. Whether two states can, in the absence of legis-granting the company "power to enter upon lation by Congress, fix, by reciprocal action, the rates of toll and fare over a bridge connecting such states, this court does not decide in this

case.

3. A bridge across waters between two states and

connecting such states, is an instrument of inter

commerce.

state commerce and traffic across it is interstate [No. 1025.] Argued Jun. 26, 29, 30, 1894. Reargued April 15, 1894. Decided May 26, 1894.

IN ERROR to the Court of Appeals of the State of Kentucky, to review a judgment of that court, affirming the judgment of the criminal court of Kenton county, in that state, adjudging the defendant, The Covington & Cincinnati Bridge Company, guilty of the offenses charged in an iudicament against that company, for collecting illegal tolls upon the bridge of that company across the Ohio river between the states of Kentucky and Ohio, and imposing a fine upon defendant. Reversed, and case remanded for further proceedings.

any lands in the city of Cincinnati, from lowwater mark in the Ohio'river northwardly, not exceeding one hundred feet in width, to Front street, and appropriate the same" for passageways and abutments, etc.

amended by the legislature of Kentucky by The original act of incorporation was the following amongst other subsequent acts: 1. By act of February 23, 1856. authority was given to increase the capital stock from $300,000 to $700,000, with power in the city of Covington to subscribe for and purchase $100,000.

2. By act of February 6, 1858, the company was authorized to issue preferred stock [207 under certain restrictions, such stockholders to receive dividends of 6 per cent.

3. By act of February 5, 1861, the capital stock was increased to $1,000,000, one half of such amount in preferred stock, and to pledge the revenues of the company for the payment of dividends upon such preferred stock to the extent of 15 per cent per annum.

4. By act of January 21, 1855, the capil Statement by Mr. Justice Brown: stock was increased to $1,250,000, the addiThis was an indictment found by the grand | tional $250,000 being preferred stock, the jury of Kenton county, Kentucky, against the holders of which should enjoy all the beneats, defendant Bridge Company for demanding privileges, and immunities to which the holdand collecting illegal tolls, refusing to sellers of the existing stock were entitled. tickets at the rates required by law, and for failing to keep an office for the sale of tickets at its bridge in said county.

By the sixth section of this act the legisla ture reserved the right to change, alter, or amend the original charter, "but not so as to abridge or injure legal or equitable rights acquired thereunder."

5. By act of February 25, 1865, the above sixth section was repealed.

6. By Act of Congress of February 16, 1885, the bridge was declared to be a lawful structure and post road for the conveyance of the mails of the United States. 13 Stat. at L. 431.

The Covington & Cincinnati Bridge Company was incorporated under an act of the legislature of Kentucky, approved February 17, 1846, the third section of which required the confirmation of the act by the state of Ohio, before the corporation should open its books 206] for subscription; *and the cighth section of which declared that "the president and directors shall have the right to fix the rates of toll for passing over said bridge, and to col- The bridge was completed and opened for lect the same from all and every person or per-travel January 1, 1867. sons passing thereon, with their goods, carriages, or animals of every description or kind; provided, however, that the said company shall lay before the legislature of this state a correct statement of the costs of said bridge, and an annual statement of the tolls received for passing the same, and also the cost of keep ing the said bridge in repair, and of the other expenses of the company; and the said presi-toll, fare, or compensation greater than, or in dent and directors shall, from time to time, reduce the rates of toll, so that the net profits of the said bridge shall not exceed fifteen per cent per annum, after the proper deductions are made for repairs and charges of other descriptions."

On March 31, 1890, the legislature of Kentucky passed another act amendatory of the act of incorporation, and out of which this prosecution arose, providing that it should be unlawful for any person or corporation to charge, collect, demand, or receive for passage over the bridge spanning the Ohio river, cou. structed under such act of incorporation, any

excess of, certain rates prescribed by the act, which were much less than the directors bad fixed upon under the eighth section of the act of incorporation. The second section provided that the company should sell passage tickets over their bridge at these rates, entitling the holder to passage either way over said bridge; and by the third section, the company was required to keep an office within the county of Kenton constantly open *for the sale of [208 such tickets; and keep conspicuously posted a schedule of the tolls fixed in pursuance of the act.

By an act of the legislature of Ohio, enacted March 9, 1849, this company was made a body corporate and politic of that state, "with the same franchises, rights, and privileges, and subject to the same duties and liabilities," as were specified in its original incorporation; and with a further proviso that "nothing herein contained shall be construed to take away the The company failing to conform to this last jurisdiction of this state to the center of the I mentioned act, this indictment was filed May