# Northern Pacific Company v. Babcock

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United States Supreme Court
154 U.S. 190
Northern Pacific Company v. Babcock
This was an action by Albert L. Babcock, as administrator of Hugh M. Munro, deceased, against the Northern Pacific Railroad Company, for damages for the death of said Munro. The jury found a verdict for plaintiff, and judgment was entered thereon. Defendant brought error.
The plaintiff below, who was the administrator of the estate of Hugh M. Munro, sued in the district court of the fourth judicial district of Minnesota to recover $25,000 damages for the killing of Munro on the 10th day of January, 1888, at or near a station known as Gray Cliff, on the Northern Pacific Railway, in the territory of Montana. The complaint contained the following allegations: 'That on the said 10th day of January, 1888, the said Hugh M. Munro, now deceased, was in the employ of the said defendant corporation, within the territory of Montana, in the capacity of locomotive engineer, for hire and reward by the said defendant paid, and that the duty of running a locomotive engine upon said defendant's line of railway within said territory was by said defendant assigned to said Hugh M. Munro on the said 10th day of January, 1888, and the defendant directed and ordered the said Hugh M. Munro to run a certain locomotive engine, the property of said defendant, known as engine 'No. 161,' over and upon its said railway in said territory; that prior to and at the time the said orders were so presented to said Munro there had been, and then was, a severe snowstorm in progress, and defendant's line of railway over and upon which said Munro was so ordered to run said engine was covered with drifting snow theretofore accumulated thereon, and then fast accumulating, notwithstanding which the said defendant corporation did willfully, improperly, negligently, and carelessly refuse and neglect to send a snow plow ahead of said engine No. 161 to clear the snow and ice from said defendant's said track, which had accumulated and was accumulating thereon by reason of said storm, so as to render the passage of said engine No. 161 safe and proper.
'That there was attached to the forward part of said engine No. 161 a certain attachment known as a 'pilot plow,' an appliance constructed thereon for the purpose of clearing the railway of snow and ice accumulated thereon, and render safe the passage of the engine to which said plow was attached over and upon said railway of defendant.
'That on the said 10th day of January, 1888, the said defendant corporation knowingly, willfully, negligently, and carelessly allowed to be and remain upon said engine No. 161, attached thereto as aforesaid, a certain pilot plow, the iron braces, bolts, and rods of which were broken, imperfect, and insufficient, by reason of which condition the said plow was loose and insufficiently secured to the pilot of said engine, allowing the said pilot to raise up and ride over obstructing snow and ice instead of cutting through the same, as was the intention of its construction, rendering the running of said engine upon said railway dangerous; and that the said defendant well knew of the broken, defective, and dangerous condition of said engine No. 161 at the 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.
'That while said Hugh M. Munro was running said engine in performance of his duty as such engineer, and pursuant to the orders of said defendant corporation, and before daylight on said 10th day of January, 1888, near Gray Cliff, in said territory of Montana, the said engine struck an accumulation of snow and ice which said defendant had carelessly and negligently allowed to accumulate 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 2 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.:
"Sec. 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.
"Sec. 14. 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 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 employes.
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 employe, 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 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.'
'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 $5,000 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 recovery, 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 would be proper under all 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 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 from the track, the jury will find for the defendant."
James McNaught, A. H. Garland, and H. J. May, for plaintiff in error.
R. C. Benton, for defendant in error.
[Argument of Counsel from pages 194-196 intentionally omitted]
Mr. Justice WHITE, after stating the case, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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