Opinion op the court by
JUDGE DuRELLE
Affirming.
Appellee brought suit against appellant railroad company, alleging that he was a brakeman in the employ of' the company, which was the owner of and engaged in ojierating a line of railroad from Scottsville, Ky., to Gallatin, Tenn., and that, while he was so emjiloyed, by reason of the gross negligence of the company in suffering the ties of its roadbed at a place in Sumner county, Tenn., to become rotten and defective, the rails spread under the weight of the cars, a car was derailed, and appellee thrown violently to the ground and injured', for which he sought damages.
[46] One Weber filed a petition and bond, seeking the removal of the suit to the United States circuit court for the district of Kentucky, upon the ground that at decretal sale under order of the United States circuit court for the middle district of Tennessee, some six years prior to the injury, he became, and still was, the sole owner of the Chesapeake and Nashville Railroad; that the amount involved was more than $2,000; and that he (the petitioner) was a citizen of New York, and appellee was a citizen of Kentucky. The circuit court refused to remove the case, and, we think, properly, as Weber had nothing- whatever to do with the controversy in this case. He was not a party, no relief was sought against him, and, so far as this record discloses, it was entirely immaterial to him whether appellee recovered judgment or not.
The company answered, denying the averments of negligence, and pleading contributory negligence, which was denied by the reply. The trial having resulted in a. verdict and judgment for appellee, the company urges numerous grounds for reversal.
A ground insisted on with some degree of earnestness is that the demurrer should have been sustained, because the pleading shows that the injury was received in Tennessee, and there is no allegation concerning the pleasure of damages which, under the Tennessee law, ought to be applied by the jury. In support of this proposition, Bruce’s Adm’r v. Railroad Co., 83 Ky., 174, is cited. It is admitted that that case was upon a cause of action given by the Tennessee statute, and sought a recovery not allowed by the common law. The existence and nature of the Tennessee statute under which that suit was brought were specially set up in the petition, and so the question here raised was not presented in that case. The court there [47] said in an opinion by Judge Lewis: “There is no doctrine better settled than that common láw actions, transitory in their nature, will lie in this State, if process be served here on the defendant, although the cause of action arose in another State; and this rule has, from the beginning, been applied as well to actions ex delicto as to those ex contractu; for, in the case of Watts v. Thomas, 2 Bibb, 458, it was held that an action for assault and battery committed in the State of Indiana, then a territory, would undoubtedly lie in a court of this State.” It was contended in that case that, as the cause of action was not a common law right, the rule stated did not apply, but the court held that in that respect there was-no distinction between a common-law right and a statutory right. No question was made or decided as to the necessity for pleading1 the law of the State under which the right of action arose. Whatever may be the rule as ro statutory rights, it is well settled that it is unnecessary to plead or prove the law of a foreign State unless it differs from the lex fori. Where a party seeks to recover or defend under a foreign law, such law must be pleáded and proved like any other fact; but -in the absence of averment and proof, the rule is that foreign States, whose -system of jurisprudence is derived from the same source as our own, are presumed to be governed by the same law. So, in Watts v. Thomas, referred to in the Bruce case, the question w7as whether for an assault and battery in the Indiana Territory an action would lie in a court of this State; and it was held, on the authority of Mostyn v. Fabrigas, 1 Cowp. 161, that it tvould lie. No question was made of pleading or proof of the law of the Indiana Territory. The rule is thus stated in Brimhall v. Van Campen, 8 Minn., 13 (Gil. 1); 82 Am. Dec., 118: “The statute and common law of our sister States are facts to-[48] be proved, as any other facts in a cause, by the party who seeks to take advantage of any difference that may exist between such laws and our own. Our courts can take judicial notice of,no law but our own and those enacted by the federal government. In the absence of proof concerning the law's of other States, the courts presume they are the same as our own, and decide accordingly.”
It is argued that the evidence show's that appellee was not injured by the defective ties, but by a defective running-board on the top of a car which was not derailed. There was considerable conflict of testimony, and some evidence tending to show that appellee may have jumped from the car on which he was, as the car which left the track went over upon the opposite side of the road from that on which appellee was found. This1, however, was a question peculiarly for the jury, and was properly submitted to them under -the instructions. Nor do we think the case presented was such as would justify a peremptory instruction.
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Opinion op the court by
JUDGE DuRELLE
Affirming.
Appellee brought suit against appellant railroad company, alleging that he was a brakeman in the employ of' the company, which was the owner of and engaged in ojierating a line of railroad from Scottsville, Ky., to Gallatin, Tenn., and that, while he was so emjiloyed, by reason of the gross negligence of the company in suffering the ties of its roadbed at a place in Sumner county, Tenn., to become rotten and defective, the rails spread under the weight of the cars, a car was derailed, and appellee thrown violently to the ground and injured', for which he sought damages.
[46] One Weber filed a petition and bond, seeking the removal of the suit to the United States circuit court for the district of Kentucky, upon the ground that at decretal sale under order of the United States circuit court for the middle district of Tennessee, some six years prior to the injury, he became, and still was, the sole owner of the Chesapeake and Nashville Railroad; that the amount involved was more than $2,000; and that he (the petitioner) was a citizen of New York, and appellee was a citizen of Kentucky. The circuit court refused to remove the case, and, we think, properly, as Weber had nothing- whatever to do with the controversy in this case. He was not a party, no relief was sought against him, and, so far as this record discloses, it was entirely immaterial to him whether appellee recovered judgment or not.
The company answered, denying the averments of negligence, and pleading contributory negligence, which was denied by the reply. The trial having resulted in a. verdict and judgment for appellee, the company urges numerous grounds for reversal.
A ground insisted on with some degree of earnestness is that the demurrer should have been sustained, because the pleading shows that the injury was received in Tennessee, and there is no allegation concerning the pleasure of damages which, under the Tennessee law, ought to be applied by the jury. In support of this proposition, Bruce’s Adm’r v. Railroad Co., 83 Ky., 174, is cited. It is admitted that that case was upon a cause of action given by the Tennessee statute, and sought a recovery not allowed by the common law. The existence and nature of the Tennessee statute under which that suit was brought were specially set up in the petition, and so the question here raised was not presented in that case. The court there [47] said in an opinion by Judge Lewis: “There is no doctrine better settled than that common láw actions, transitory in their nature, will lie in this State, if process be served here on the defendant, although the cause of action arose in another State; and this rule has, from the beginning, been applied as well to actions ex delicto as to those ex contractu; for, in the case of Watts v. Thomas, 2 Bibb, 458, it was held that an action for assault and battery committed in the State of Indiana, then a territory, would undoubtedly lie in a court of this State.” It was contended in that case that, as the cause of action was not a common law right, the rule stated did not apply, but the court held that in that respect there was-no distinction between a common-law right and a statutory right. No question was made or decided as to the necessity for pleading1 the law of the State under which the right of action arose. Whatever may be the rule as ro statutory rights, it is well settled that it is unnecessary to plead or prove the law of a foreign State unless it differs from the lex fori. Where a party seeks to recover or defend under a foreign law, such law must be pleáded and proved like any other fact; but -in the absence of averment and proof, the rule is that foreign States, whose -system of jurisprudence is derived from the same source as our own, are presumed to be governed by the same law. So, in Watts v. Thomas, referred to in the Bruce case, the question w7as whether for an assault and battery in the Indiana Territory an action would lie in a court of this State; and it was held, on the authority of Mostyn v. Fabrigas, 1 Cowp. 161, that it tvould lie. No question was made of pleading or proof of the law of the Indiana Territory. The rule is thus stated in Brimhall v. Van Campen, 8 Minn., 13 (Gil. 1); 82 Am. Dec., 118: “The statute and common law of our sister States are facts to-[48] be proved, as any other facts in a cause, by the party who seeks to take advantage of any difference that may exist between such laws and our own. Our courts can take judicial notice of,no law but our own and those enacted by the federal government. In the absence of proof concerning the law's of other States, the courts presume they are the same as our own, and decide accordingly.”
It is argued that the evidence show's that appellee was not injured by the defective ties, but by a defective running-board on the top of a car which was not derailed. There was considerable conflict of testimony, and some evidence tending to show that appellee may have jumped from the car on which he was, as the car which left the track went over upon the opposite side of the road from that on which appellee was found. This1, however, was a question peculiarly for the jury, and was properly submitted to them under -the instructions. Nor do we think the case presented was such as would justify a peremptory instruction.
We are of opinion that the instructions correctly state the law on the question of ordinary and gross neglect. Appellee was entitled to recover for ordinary neglect, if proven, as those in charge of the repair of the roadbed were not -engaged in the same common employment with those engaged in running the train. In 2 Thomp. Neg., 985, it is said: '“It is the duty of railroad companies to keep their works and all portions of their track in such repair, and so watched and tended, as to insure the safety of-all who may lawfully be upon them, whether passengers or servants or others. They are bound to furnish a safe road, and sufficient and safe machinery and cars. The legal implication is that they will haA'e and keep a safe track, and adopt suitable instruments and means with which to carry on their business. They can provide all this by the use [49] of the requisite care and foresight, and if they fail to do so, they are guilty of a breach of duty, and are liable for the .consequences. . . . The supreme court of Pennsylvania has declared that a railroad company is under an obligation to keep a sound track for the safety of all persons who are transported over it, whether passengers or servants. This is deemed a. direct and immediate duty, the non-performance of which will not be excused by the remote negligence of its servants who fail to report its condition or put it in repair. If the substructure carrying the rails is suffered to lie until it has become rotten and unsafe, this is deemed negligence of the company itself, and not merely that of its servants. Casualty from such •a cause is not one of the ordinary perils which presumptively every one incurs who takes service with the company. It is not likened to the breaking of a rail from mere accident, or from some cause immediately traceable to the negligence of another employe.” So, as the master is charged with knowledge of the probable consequence of his acts, or of acts which he directs or of which he is cognizant, and as, with regard to the -rights of employes engaged in running the trains, he is supposed to haAre actual supervision of the cars of the roadbed, he is responsible for ordinary neglect in the procuring or maintenance of machinery and appliances. And ignorance of the condition of the roadbed, in a case where there was a duty to inquire, and proper inquiry v/ould lmTe procured information, is sufficient to constitute negligence. As indicated in the Volz Case, 95 Ky. 192, 24 S. W., 119, the right of the employe to have proper tools, appliances, and a reasonably safe place in which to work,' is a contract right in the employe, unless, with knowledge of the defects, or under cir[50] cumstances irom which the law charges him with knowledge, he continues in the employment. But it was not alleged in the petition either that appellee did not know of the defective roadbed, or that appellant did, or could by the exercise of reasonable diligence have known it. Under •the circumstances of this case, the defect being alleged in the roadbed, which, as brakeman, appellee was under no duty and had no opportunity to examine, we do not think it necessary to aver or prove that appellee did not know of the existence of the defect. But it is urged that an averment that the master knew of the existence of the-defect, or by the exercise of reasonable care could have known it, was essential, and that this defect was not cured by the pleadings, nor by a submission of that question to the jury by the instructions. The majority of the court, however, are of opinion that the maintenance of the roadbed in proper condition is a matter which, in law, is supposed to be under the personal supervision of the master, in so far as it affects the safety of the servants engaged in operating the train, and that therefore the averment that the company negligently permitted its cross-ties and roadbed to become rotten and defective is a sufficient averment to support the verdict. For the reasons given, the judgment is affirmed.
Whole court sitting.