the light of the attending circumstances." To the same effect is the language of the court in McDonald v. Snelling, 14 Allen (Mass.), 290.

Bringing the case before us to the test of these principles it presents no difficulty. The proximate cause of the death of Scheffer was his own act of selfdestruction. It was within the rule in both these cases a new cause, and a sufficient cause of death. The argument is not sound which seeks to trace this immediate cause of the death through the previous stages of mental aberration, physical suffering, and eight months' disease and medical treatment to the original accident on the railroad. Such a course of possible or even logical argument would lead back to that "great first cause least understood," in which the train of all causation ends.

The suicide of Scheffer was not a result naturally and reasonably to be expected from the injury received on the train. It was not the natural and probable consequence, and could not have been foreseen in the light of the circumstances attending the negligence of the officers in charge of the train.

His insanity, as a cause of his final destruction, was as little the natural or probable result of the negligence of the railway officials as his suicide, and each of these are casual or unexpected causes, intervening between the act which injured him and his death.

Judgment affirmed.

§ 145. Statute necessary to recovery. A father brought action to recover damages for the death of his minor son killed by alleged negligence while in the employment of defendant company at $2 per day. He sued to recover wages at that rate during the minority of the deceased about four years. There was no statute providing for such a case. Held, that the plaintiff could not recover. Sullivan v. Union, etc., R'y Co.,* 1 McC., 301; 2 Fed. R., 447. § 146. Such statute constitutional.— A state statute giving damages for the negligent killing of a human being is not in conflict with that provision of the federal constitution conferring upon congress the power to regulate interstate commerce, even though such statute applies to the killing of a person on a vessel navigating an interstate water-way- the killing being within the jurisdiction of the state. Sherlock v. Alling, 3 Otto, 99. § 147. Death on high seas Statute inapplicable.- It was alleged that the plaintiff and his wife took passage upon the steamer Eastport, owned by the defendants, at Empire City, Oregon, for San Francisco. On the voyage the steamer struck a rock and settled down into the water. The plaintiffs entered a surf-boat by direction of the master. Plaintiff's wife was precipitated into the sea and drowned. Action was brought under section 377 of the Code of Civil Procedure of California, which provides that, “when the death of a person 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." The answer admits, but alleges that while the steamship was proceeding on her voyage and on the high seas the steamship was, by the perils of the sea, forced upon a rock, whereby the ship was wrecked and the death of plaintiff's wife occurred without knowledge of defendant. Other facts were alleged designed to bring the case within the provisions of section 4283 of the Revised Statutes of the United States. Held, on demurrer, that, as the death occurred upon the high seas, beyond the legislative jurisdiction of the state, the statute was inapplicable, and the plaintiff could not recover. Armstrong v. Beadle,* 5 Saw., 484; 8 Rep., 35.

§ 148. Suit in state other than the one giving cause of action.— An action for negligently killing a person, though statutory, is transitory, and is enforceable in any court acquiring jurisdiction by proper service of process. Hence a New York administrator may sue in New York for damages for the death of his intestate in New Jersey, the action being conferred by the New Jersey law. Dennick v. Railroad Co., 13 Otto, 16.

§ 149. Quære, whether an action for damages, authorized by state statute, would be maintainable in a state other than that in which the cause of action arose. Hagen v. Kean,* 3 Dill., 124.

§ 150. The plaintiff's intestate, a resident of the city of New York, came to her death in Jersey City, New Jersey, through the negligence of the defendant company. The plaintiff was granted letters of administration upon her estate by the surrogate of New York county. A New Jersey statute provided that whoever should negligently cause the death of another

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should be liable to an action for damages, to be brought by the personal representative of the deceased, and the amount recovered to be for the benefit of the widow and next of kin, etc. The plaintiff brought suit against the defendant under this statute. The defendant moved to dismiss the complaint, because the plaintiff and administratrix in the state of New York had no power or authority, by virtue of the statute of New Jersey, to sue for and recover damages for the death of the intestate. Held, that the statutes of another state cannot impart to a New York administrator powers which the New York statutes do not confer. He is the creation of the local law, and, until additional authority is derived by virtue of an additional appointment, he has only the power which the local law confers. The court say: The right which the plaintiff is supposed to have received by the statute of New Jersey is not a right to any property which are the assets of the deceased or her estate, but is a right to sue as trustee of a fund which may be obtained for the next of kin - a position in which she is not placed by the law under which she was appointed. In order to execute such a trust the trusteeship must have been conferred, and the only title which the plaintiff has acquired to this trusteeship is by virtue of her appointment as administratrix by the surrogate under the laws of New York. Its laws do not confer upon the representatives of deceased persons any power to obtain damages for injuries resulting in death which the deceased received in another state." (Citing Richardson v. N. Y. Central R. Co., 98 Mass., 85; Woodward v. Michigan Southern R. Co., 10 Ohio St., 121.) Mackay, Adm'x, v. Ceutral R. Co.,* 4 Fed. R., 617.

§ 151. In admiralty.-The widow and son of a hand killed on a steamboat by the negligence of the engineer may recover therefor against the owners of the vessel. The Highland Light, Chase's Dec., 150.

§ 152. Where a vessel injures a woman so as to cause her death her husband may in admiralty recover against the vessel damages for the injury thereby done to him. Sea Gull, Chase's Dec., 145.

§ 153. Libel by the administrator of a child poisoned by the carelessness of officers of the vessel. Claimants excepted to the libel. Held, per Blatchford, J.: "I think that the libel is one for breach of contract, and that the cause of action survived to the administrator, and may be sued for in rem, in like manner as if the deceased had sustained an injury short of death through the negligence of those in charge of the vessel, and in breach of the contract of carriage, and had sued in rem therefor. (Chamberlain v. Chandier, 3 Mason, 242; Crapo v. Allen, 1 Spr., 184; Steamboat New World v. King, 16 How., 469; The Washington, 9 Wall., 513; The Aberfoyle, 1 Blatch. C. C., 360; The Pacific, id., 569.) The breach is alleged to have occurred during the running of the contract, and before the running of the voyage. The exceptions to the libel are disallowed." The City of Brussels, 6 Ben., 370.

§ 154. The United States district court, sitting in admiralty, has jurisdiction of an action begun by a wife to recover damages for the negligent killing of her husband, who was employed on the vessel when killed. Coggans v. Helmsley,* 23 Int. Rev. Rec., 384.

§ 155. A district court of the United States, sitting in admiralty, will not be prohibited from acting upon a libel for damages against a vessel for negligently killing several seamen in a collision, and the court may estimate the damages sustained by the killing. Ex parte Gordon, 14 Otto, 515; Ex parte Ferry Company, id., 519.

§ 156. A man fell into the Willamet river, Oregon, and was drowned by the negligence of those in charge of the ferry-boat on which he was riding. Held, that an action for negligently causing his death could not be maintained in the federal court sitting in admiralty. Holmes v. Oregon, etc., R. Co., 5 Fed. R., 75, 523. S. P., In re Long Island, etc., Co., 5 Fed. R., 599. § 157. Although by the common law, and apparently also by the civil law, no action will lie to recover damages for the death of a human being, in admiralty, a libel by a father to recover damages for the loss of the services of his minor son, killed in a collision, will be sustained. The Garland,* 20 Am. Law Reg. (N. S.), 742; 16 West. Jur., 35.

§ 158. suit by administrator.- Where a statute confers upon an administrator the right to recover for the loss of life occasioned by the wrongful act, neglect or default of another, if such loss of life is occasioned by a collision upon navigable waters the administrator may proceed in admiralty by libel in rem. Ibid.

159. When must be brought by administrator.- By the statute of Illinois the personal representative of one whose death is caused by the wrongful act of another is given a right of action. In a petition of a widow for pecuniary compensation for the wrongful death of her husband, it was averred that deceased had died without children or next of kin, and that she was his widow and personal representative. Held, that the words " personal representa- \ tive," properly construed, mean "the executor or administrator." (Citing Chicago v. Mayor, 18 Ill., 349; Boutiller v. S. P. Milwaukee, 8 Minn., 97; Western, etc., R. Co. v. Strong, Sup. Ct. Georgia, 1874; Woodward v. Michigan, etc., R. Co., 10 Ohio St., 121; Whitford v. Panama R. Co., 23 N. Y., 465.) And that, as plaintiff does not allege that she had taken out letters of administration, thereby becoming the executor or administrator of her deceased husband, she

could not maintain an action in her own name, even though she was the beneficiary of the sum which the personal representative might recover. Hagen v. Kean,* 3 Dill., 124.

$160. For minor shipped as whaler.— If a minor leave the service of his father and proceed to a strange port, where, representing himself as of full age, he is shipped by the defendants for a whaling voyage, during which he perishes, the father cannot maintain an action for the loss of his services and society unless the defendants, when they shipped him, knew that he was a minor. Cutting v. Seabury, 1 Spr., 522.

§ 161. Action by insurance company against murderer of policy-holder.- An insurance company obliged to pay the amount of a policy on the life of A., who was murdered by B., has no cause of action against B. for his illegal and tortious act whereby the company were compelled to pay the policy. Insurance Co. v. Brame, 5 Otto, 754; Mobile Ins. Co. v. Brame, 17 Alb. L. J., 84; 10 Ch. L. N., 411 (§§ 128-30).

§ 162. By the common law, actions for injuries to the person abate by death, and the code of Louisiana, which gives an action in favor of the minor children and widow of the deceased, and, in default of these relatives, in favor of the surviving father and mother, cannot include an insurance company desirous of maintaining a suit for damages against the murderer of a person whose life was insured in such company. Ibid.

§ 163. Under Tennessee statute.- An action was brought against a contractor for damages sustained by the widow and children of a person killed while on the pilot or bumper of a locomotive. The claim was founded on sections 1166 and 1167 of the code of Tennessee. Held, that the sections of the code touching the liability which railroad companies incur by failing to observe certain precautions in running their trains did not apply to contractors engaged in constructing a railroad. The jury is properly instructed to find for the defendant where, if the verdict should be against him, the court should set it aside and grant a new trial. Griggs v. Houston,* 14 Otto, 553.

§ 164. Recovery for expenses, etc., no bar to action for death. The fact that the plaintiff had recovered, in a previous action, damages for the loss of the services of a boy who was killed, and for what expenses had been incurred, and for loss of time of plaintiff and wife, by reason of the accident, did not preclude recovering in a second suit for damages from loss of prospective benefits which might have been derived by the continuance in life of the boy. Barley v. Chicago & A. R. R. Co.,* 4 Biss., 430.

§ 165. Damages - Averments.- Where a statute giving an action for the negligent killing of a human being proceeds upon the theory that if the person had lived he would have added so much to his personal estate, which the law would have given on his death intestate to his widow and next of kin, and that the person or company negligently killing such person must reimburse the widow and next of kin for what they have lost, held, that the damages are largely discretionary with the jury, and it need not appear that the widow or next of kin, claiming damages, had a right to receive support from the deceased. Railroad Co. v. Barron,* 5 Wall., 90.

§ 166. At common law no action lay for causing death of a person. But in 1853 the legislature of Illinois passed an act giving a right of action wherever death is caused by the wrongful act of a person or corporation, where, if death had not ensued, the person injured would have had the right to sue. The action must be brought by the personal representatives of the deceased, and the amount recovered shall be for the exclusive benefit of the widow and next of kin, to whom the jury may give such damages, not exceeding $5,000, as they shall deem a fair and just compensation for the pecuniary injuries resulting from such death to the wife and next of kin. But in a suit by the next of kin they are not required to aver in their declaration the specific nature of the pecuniary damages which they have suffered by reason of the killing of the deceased. Barron v. Illinois Central R. Co.,* 1 Biss., 412.

§ 167. The Texas statute of 1860 relating to actions for the death of a person is not repealed by section 30 of the Texas constitution of 1869 the former giving compensatory damages merely, while the latter relates to exemplary damages. Gohen v. Texas Pac. R. Co.,* 2 Woods, 346.

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SUMMARY

III. CARRIERS.

[See CARRIERS.]

· Liabilities in carrying goods and passengers, § 168.- What necessary to overcome a prima facie case, § 169.-— Liability of carriers of passengers, § 170.— Must protect passengers from violence, § 171.- Master of vessel personally responsible, § 172.- Soldier whose term of service has expired, § 173.— Injury on sleeping-car, § 174.— Injury on bridge at St. Louis, § 175.-Road leased or in hands of a receiver, § 176.— Rights of colored persons, §§ 177, 181.— Discrimination on account of character or reputation of passengers, § 178.— Resisting attempt to expel from car, § 179.-Carrier's regulations; question for jury, § 180.— Riding on a free pass, § 182, 183.- Riding on cattle train, 184.- Freight trains, § 185.-Steerage passengers, §§ 186, 187.- Refusal to carry an exile back to his home; excessive damages, § 188.

§ 168. A contract to carry passengers differs from one to carry goods, in that for goods the carrier is liable at all events except the act of God and the public enemy, while as to passengers the carrier undertakes that he or his agent shall possess competent skill and will carry safely so far as human care and foresight can go. Stokes v. Saltonstall, §§ 189–191.

$169. To overcome a prima facie case against it, a carrier must prove competent skill, good habits, and sufficient qualifications in every respect possessed by its agents. Ibid.

§ 170. Carriers of passengers, although not insurers of the safety and lives of those they carry, nevertheless are bound to exercise the utmost knowledge, skill and vigilance to carry their passengers in safety. Dunlap v. Steamboat Reliance, S$ 192, 193.

§ 171. A carrier is bound to use the utmost care and vigilance in maintaining order and guarding his passengers against violence. And the rule is not relaxed by the fact that a body of soldiers, whose riotous and turbulent conduct cause the injury complained of, are carried under compulsion. Flint v. Norwich & N. Y. Transp. Co., §§ 194, 195.

§ 172. A master of a vessel is a common carrier, personally responsible as such for his conduct. White v. McDonough, §§ 196, 197.

⚫ § 173. Where the government contracts for the transportation by boat of soldiers, and the term of one of them expires en voyage, he does not ipso facto become a passenger on the boat so as to render the master liable for allowing him to be subjected to military discipline after his term expired. Ibid.

§ 174. Where a railway company is sued for an injury to a passenger in a sleeping-car, it is not error to refuse to allow it to show in defense that the sleeping-car was owned by another company, and in immediate charge of its servants, and that such other company alone issued tickets entitling passengers to ride in the sleeping-car. Pennsylvania Co. v. Roy, §§ 198–201. § 175. A railway company sold a ticket to St. Louis. Held, that it thereby contracted to deliver the passenger at St. Louis, and that it was liable to him, if he was injured in transit over the St. Louis bridge or through the tunnel, even though the train had been taken in charge by the bridge company, through the negligence of whose servants the injury was done. Keep v. Indianapolis, etc., R. Co., §§ 202, 203.

§ 176. A railway company cannot relieve itself of liability for a tort to passengers upon its road by leasing the same, or putting it in the hands of a receiver. And this is true even if the receiver is appointed in invitum. Railroad Co. v. Brown, §§ 204–207. § 177. Where the charter of a railway company provides that no one shall be excluded from the cars on account of color, a negro has a right to ride in any car provided for passengers by the company. Ibid.

§ 178. The plaintiff, who had purchased a first-class ticket over the defendant road, was not permitted to occupy a seat in the car known as the "ladies' car" on account of her alleged bad character and reputation for unchastity. The evidence showed that her manner, dress and conduct at the time were not offensive, and her demeanor chaste and modest. In an action against the company to recover damages for such exclusion, held, the plaintiff was entitled to recover; that while a carrier may rightfully exclude from the ladies' car a passenger whose condition or reputation is such as to render it reasonably certain that her conduct will be offensive to other passengers, yet for unchastity not affecting her general deportment she cannot be excluded. Brown v. Memphis, etc., R. Co., §§ 208-213.

§ 179. An attempt was made to wrongfully expel a female passenger from the ladies' car. The passenger made an unsuccessful resistance, and this fact was set up as a defense to an action by the passenger for her wrongful exclusion. Held, that such resistance is no defense to an action; but where personal injuries are received unnecessary resistance may be consid

ered as mitigating the damages, where, but for the resistance, no injury would have been inflicted. Ibid.

§ 180. The jury are not the sole judges of the reasonableness of a carrier's regulation. They are, as in all questions of law and fact, to apply the facts of the particular case to the principles of law laid down by the court. Ibid.

§ 181. The plaintiff was a colored woman, who had purchased a first-class railroad ticket from Lexington, Kentucky, to Cincinnati, Ohio, and return. On her return she proposed to enter the "ladies' car," but was not permitted to do so. She brought suit in consequence. Held, that the company was bound to provide for a colored woman precisely such accommodations in every respect as were provided upon their train for white women. If they refused to give her such accommodations she had a right to say that she would not travel in the smoking-car. If she was deprived of the right which the law gave her, then the company is responsible to her in damages. Gray v. Cincinnati Southern R. Co., §§ 214, 215.

§ 182. A person who, in order to exhibit an invention to one of its officers, was furnished by a railway company with a pass allowing him to ride to the place where such officer was, is not a gratuitous passenger over the road. Not being such, he is not bound by stipulations upon the pass exempting the company from liability for negligence. Railway Co. v. Stevens, §§ 216-218.

§ 183. Plaintiff, while riding free of charge upon a railway, by invitation of the president of the company, in which he was himself a stockholder, was injured. The injury resulted from a collision with a locomotive which was upon the track contrary to orders. The driver of the colliding engine had acted in disobedience and disregard of these orders and thus caused the collision. Held, (1) that a railway company is responsible for injuries resulting from the negligence of its servants, even when they are acting in direct disobedience to official orders. (2) When carriers undertake to convey persons by the powerful but dangerous agency of steam, they should be held to the greatest possible care and diligence, and any negligence in the management of a railway, because of the grave responsibility of the trust, may be considered "gross" negligence. (3) The fact that plaintiff was a stockholder and riding in other than a regular passenger train is immaterial. (4) The duty of carriers to convey a passenger safely does not result alone from the consideration paid for the service; hence the fact of plaintiff's riding free is immaterial. Philadelphia & Reading R. Co. v. Derby, §§ 219, 220. § 184. A person traveling on a cattle train is entitled to the highest possible degree of care and diligence. Indianapolis, etc., R. Co. v. Horst, §§ 221-227.

§ 185. In an action for an injury while riding on a railway freight train, plaintiff, to show the peril with which the train was managed, may show the manner of changing cabooses. Ibid.

§ 186. Steerage passengers are entitled to the use of the steerage free from the risk or inconvenience of freight stored therein. And the storage of a pile of tin in the steerage, where the roll of the ship may cause it to fall upon passengers, is negligence, and one who is injured thereby may recover. The Oriflamme, §§ 228-232.

§ 187. Unless otherwise stipulated a steerage passenger is entitled to a berth. Ibid.

§ 188. Where a vigilance committee expelled a man from San Francisco, warning him on penalty of death not to return, held, that the fact that his return might provoke violence might justify a common carrier by vessel in refusing to accept him as a passenger to San Francisco; but that if such carrier accepted him and took him on board, he offering to pay his fare and conducting himself properly, then the carrier would have no right to transfer him from its boat to another in order to send him back to the starting point and prevent him from going to San Francisco. But while such transfer is technically a tort, the damages for it, $4,000, were held excessive, considering the humane motive which prompted the carrier to refuse to allow the man to go to San Francisco, and it was ordered that they be remitted to $50, each party to pay his own costs. Pearson v. Duane, §§ 233, 234. [NOTES.-See §§ 235-277.]

STOKES v. SALTONSTALL.

(13 Peters, 181-194. 1839.)

Opinion by MR. JUSTICE BARBour.

STATEMENT OF FACTS.- This is a writ of error to a judgment of the circuit court of the United States for the fourth circuit, and district of Maryland. It was an action on the case brought by the defendant in error against the plaintiff in error and Richard C. Stockton, to recover damages for an injury