Speer v. M. K. & T. Rly. Co.

23 Kan. 571

Opinion

The opinion of the court was delivered by

Brewer, J.:

The petition filed in the lower court avers, that on the 16th day of January, 1877, the plaintiff was in the service of the defendants as a brakeman on a running train on defendants’ railroad track, at a certain division thereof, in the country south of the state of Kansas, and while so engaged he was injured at said time and place in his person and health, by and through the negligence of the defendants, their servants and agents, without any fault on his part, and so forth. Issues were joined on these averments. At the trial of said cause, an objection was made by the defendants to the giving of any evidence, on the ground that the petition did not state facts sufficient to constitute a cause of action. This objection the court below sustained, and gave-judgment to the defendants for costs. Of this ruling and decision the plaintiff in error complains, and brings the case on this point into this court for review.

While the petition does not distinctly name the Indian territory as the place of the injury, yet the fact so appeared, and the arguments of counsel are based upon that as a fact. We shall proceed upon that assumption. The petition charges negligence on the part of the defendants, negligence in the condition of the track, in the management of the train, and in the employment of an unfit and incompetent engineer, conductor, etc. It is very full and specific; indeed, the main criticism we should place upon it is, its unnecessary repetition and prolixity. Beyond question it would have been sufficient under repeated rulings, if it had charged the injury to have been done within the limits of this state. (Dow v. K. P. Rly. Co., 8 Kas. 642; U. P. Rly. Co. v. Milliken, 8 Kas. 647; K. P. Rly. Co. v. Little, 19 Kas. 267; U. P. Rly. Co. v. Young, 19 Kas. 488.) Doubtless, also, it would have been sufficient if it had alleged that the civil law prevailed at the place of the injury. Wharton, in .his work on Negligence, § 720, says:

“Hence we understand the rulings of the Roman jurists and their successors, that the employer, by the nature of his contract, (conductor omnia secundum, legem conductions facere debet,) is bound to the servant to supply the latter with proper materials for work, and to surround him with such guards as will enable the work to be safely performed by the servant. If, through the employer’s negligence, in this respect, the servant is injured, the master is liable to the servant to make good the damage.”

In this the civil and the common law accord. (Wharton on Negligence, §§208 and.209.) The specific objection is, that the place of the injury being the Indian territory, a body of land set apart for Indian occupation, there is no allegation that either plaintiff or defendants had license or legal authority to enter that territory, or engage in the running of railroad trains through it, or that there was any law in force within its limits either giving a cause of action for such a wrong, or furnishing a remedy therefor, or prescribing a rule of damage.

We do not think the objection well taken. We are not to presume that any party is a wrong-doer in going into or being within any state or territory of the United States. We know that the Indian territory is set apart for the occupation of Indians, because we take judicial knowledge of the laws and treaties of the United States, and in those treaties we find express reservation of a right to license the building and running of a railroad through that territory. (Treaty between the United States and the Creek Indians, of July 19, 1866, 14 U. S. Stat., p. 787, art. 5; treaty between the United States and the Choctaws and Chickasaws, 14 U. S. Stat., p.771, art. 6.)

Now the petition, by alleging that the defendant had had, .for a long time prior to this injury, knowledge of the defective condition of this track, and had failed to repair it, shows a long-continued occupation. Perhaps, also, we may take judicial knowledge that for years prior thereto the defendants had been running trains out of this state and into and through that territory. Indeed, the struggle between two railroad corporations to first complete a track to the south line of the state, for the sake of securing a right of way through the Indian country, is a part of the general history of the state. At any rate, we know that a railroad of many miles in length is not built in a day. Hence, from its very continuance, we may presume that such building and running of a line of railroad by the defendants was with the knowledge and assent of the general government, which by express treaty stipulation had power to license and permit it; so that whether we rest upon general presumptions, or upon any matters of which we may take judicial knowledge, we must hold that defendants were guilty of violating no law in building or running a railroad through the Indian country.

So far as regards the law in force in that country, we may also resort to presumptions. “ The general rule is, that in the absence of proof to the contrary, the court will presume that the laws of a foreign state are precisely like the laws of the state in which the court is held. That is to say, the laws of a country to whose courts a party appeals for redress, furnish in all cases, prima facie, the rule of decision; and if either party wishes the benefit of a different rule or law, 'as, for instance, lex domicilii, lex loci contractus, or lex loci rei sitas, he must aver and prove it.” (Tyler on Usury, p. 85; Monroe v. Douglas, 5 N. Y. 447.) Or, as said by Judge Valentine, in his opinion in the case of Dodge v. Coffin, 15 Kas. 285: “ In the absence of anything showing the contrary, we presume that the laws of other states are substantially the same as our own;” and in support of this, he cites a number of authorities. See also Hynes v. McDermott, N. Y. Common Pleas; 19 Am. Law Reg. (N. S.) 219; O’Rourk v. O’Rourk, Sup. Ct. Mich., reported in 9 Reporter, p. 471. Now if the cause of action is one which, if arising within this state, would spring solely from some special and local statute, and not independent of statute from general law, it may perhaps be that there would be no presumption of a similar statute in the foreign jurisdiction, and that a special averment of its existence would be essential. But that is not this case, and therefore calls for no determination at present. Here, the act complained of is one which, independent of any local statute, and by virtue of general law, both civil and common, gives-to the injured party a right of action. It is an act which, by the plainest principles of natural justice, entitles the sufferer to compensation; and that such an act, wherever done, creates a cause of action, we are to presume. Perhaps it may be better stated to say that we are to presume that no local enactment exists to deprive a party of a cause of action to which natural justice would otherwise entitle him. If the charge were that defendant had taken and appropriated to his own use the property of plaintiff, must the petition also allege that the law of the state where this wrong was done forbids such wrong ? We think not; the existence of a local law which countenances such a wrong, or denies relief therefor, is matter of defense. Nay, more: we think that if it were affirmatively shown that the act was done in a locality in which there was-and had been no organized government, and no body of law ever put in force, that a party coming into our courts would be entitled to relief in accordance with the law and policy of this state.

Without pursuing this line of thought further, we hold that, prima fade, a cause of action was stated, and that the district court erred in sustaining the objection.

The judgment of the district court will be reversed, and the case remanded for further proceedings in accordance with the views herein expressed.

All the Justices concurring.