Fort Worth gazette. [volume] (Fort Worth, Tex.) 1891-1898, 1893-06-11

that Henry Rcit WAS employed M fireman
ugoh one uf It's locomotives, such contract
% employment hriug made IN this state;
lhni one 49, Pulley was pmulovpd us can.
uuctur, one Henry Moore ~ engineer ana
Que Jhmes Miller as brakeman un another
ol npncurus trains, Auch contracts OF en-.
lholmcnt huNlng been made M this stutps
ihat ON the 10Th ~ August 1880 said Ilruty
hyli WAS Killed by the gross negligence or
Niu miller IN leaving one NJ the switches ON
9pWlccs track opcn at Wymcwuo1 IN the
Indian Territory, whereby the engine upon
Mlieh Bglt was riding was there dcruhcd
ana he thereby received the injuries frnm
which he died on the next day In the slate
81 Texas. The petition also CHARGES neg
iHtneo On the part Of appellee Ia compelling
u.s., ,s v,inpln{ys' lncludng MILLER, To labor an
uhirhsonahlo time without rest ur sleep.
nni nsslgus tbs as onc of the reasons why
MILLER went To sleep on his post OF duty
and neglected To close tho switch nt Tie
proper time. Appellant is alleged To hc The
ialhet aud only surviving parent NJ gpid
Henry Belt, who was never married, Mud
there Is II general allegation that he Is the
onlN person surviving who mad ~ has any
Interest In the life or service OF decreased.
To This petition appellee flrd special OK.
opilons as follows; "Aud Tor special rX.
says that the plnlutir AYERS and oharC4
That TIE injury which WINS inflicted In ana
upon Henry Holt aud which cDHsrl his
death Mas Inflicted In the Indian Terri.
tory aud beyond the limits ~ the state
oI IeNus. ami therefore muller tho terms
gt PLAINTIFFS petition ihls court has 40 luris.
t0's petition that the injury occurred bc-
You'd the limits Of the stute uf Texas and
falls 10 aver that there was any law Ia
tuue az the time said Injury occurred Ia
the Indian Territory. giving damages tn
plaintiff on account OF the injuries tu Henry
l!vll. ANA " there was such q law what
that law was, and to show thut this court
has Jurisdiction To enforce the syuuc go
Plaintiff ayers that Defendant fnilcd to roni.
ply with It's contract With Henry BELT. but
does not aver whether said contract was Va
writing Nprlul md fuilptl ftt altYtk
plaintin has amy right To sue defendant
on account Of breach on Its part NJ It's
contract with Henry Belt, These exceptions
We're sustained by the court below aud np.
pellnnt declining TO amend. II was adjudgcd
that he take nothing hy his suit, aud from
this Judgment this appeal Is prosecuted.
OPINION.
We Iudlclally know that on May .. 1870
the congress of the tuited States rnacird
a law adopting certain SECTIONS Of Mans,
ilcld's digest " the statutes NJ Arkansas
as the law IN force In The lnlmn Territory
among which was chapter ~, relating 10
plendings ana practice. supplement 10 u, s.
ot the United States, volume /, pp. 1894,
We must therefore also take judicial huoWl-
Arkansas so adopted. AppuloH W. SWul.
forth. this day decided by u.s. ritlng
lnlley's administrator, W, Chuhh, 10 Graft,
2sii Bird W. The Commonwealth, - d.
500 Grernenf on Evidence 400, ! Whar
~ !2n on Evidence ISIS i''' on h''a'"'o'
In the chapter Of the Arknusaa statute
ndOnted AZ above. under the aul.hpnd 1t
what causes or action survive. ma action for
an injury resulting Ia death X clearly given.
Manshrll's Digest OF the statutes VI Arkuu-
sas, 40 aud sc, Tue provisions Of tue
Arkansas statute relating to this question
are set forth 40 length In the opinion lu
the ease OF hallway VI. Mccormick n
Texas go We are VI opinion thnt 1t was
the intention II congress To adopt this ppr-
tlon Of the Arkansas stntutps M the law
In the Indian Territory, aud u was not lu.
tenhsl 10 rurilue The act To such portions "
this chapter MS related To plrudlnpS aud
practice when given u restricted cunslruc-
lion. II had been previously provided hy
congress when establishing q court for the
Indian Territory that 1.-THE practice plend
hgs and forms Of proceedings M Uvll
causes shall conform as near ~ may he 70
the practice plealmgs aud forms Of pro-
cerdlngs existing AZ inc time IN Ike causes
IN tho courts u record IN the Etnic Of
Arkansas nny rule NJ court To the contrary
Notwithstanding see yet " March !.
1851, volume 1, supplement 20 revised stat
uics Of the United STATE, paec JI2i aud
N n had only been The Intention 10 apply |
the forms Of plcadinrs In the Arkansas
courts 10 these courts We rec no Necessity |
for again adopting this chapter. no. The !
only ease " which we arr nwnre that pit !
iudrs 10 this question ~ halfway ", Nc |
tcrmlp its decision. We then llllclnlly !
know that the next ~ Kin Of Henry belt |
had right u ncfion Ia the Indian Terri /
tory. where The ininry was inflicted under /
The law there in force. This right Of /
action. however, has teen held IN this state I
10 be- given 10 be glyen by statute 20 dis |
similar IL ~ provision, 10 9nf mat onr |
Hallway ". Mccormick supra, We feel I
ourselves bound by this decision, although " |
is absence We would probably nave lrflru |
AZ different conclusion. Hallway ". Cox, |
lll u. g. 6nl We therefore cannot under. |
take Ia enforce the cnuse " action given |
appellant by the law IN force ~ nc ihllHu |
Territory. aud II will be uetNsYhiy Tot us /
10 inquire Whether or not he also has a 1
right Of action under the slntutfs OF thls |
state. and we are u opinion mai ms must
h. answered In the negative. II IL admitted |
that the injury which causrd iiie ds---l 1
Was received IN the Indian I0rlioif. u
It j. contended that the fact thnt VI" &C..
rcnsed. AZ well NJ the srrynnt who caused
the injury were employed In this siutT,
and that the appellee was chartered ~ inns
state and operates lis fula ny onirfA ".
c,ntetnplatlon Is equivalent 10 INJECTING the
iniury here hut We cannot concur ia uhs
view Of the Ian.
II will not be commended mat hocause n
nntu1lh person resides 10 ms siair. whn
,,@.s INTO d foreign country mud there kllia
anofhof Will give the heirs ~ the one Aluih
q reht u actlOn for ils drath pnlrf gnt
statute why, then. should ihf iact tnll
shs death was caused hy the agent ~ one
~ onr citizens IN such foreign c0pntiy gre
sueh right The principal SHOULD noi PC
ma 10 a higher degree of responsibility for
~ y, s,t donq nv his sgeft than u u had been
TrHf l,y himself The sane reasoning hp-
niirs 10 n principal witch u O eoirufhtPu.
II n true II can be said fhaf II ailiflre
= ~ a ~ been negligent 90 The stale ar Texas
=, would NOT lave employed hhifr, aul n
Il had not employed Miller BE- Mpuld ny
nave rome into the Indian Ifuit9fg WIN
na.' ~ trains. aud n BE- bad NOT Como
~ he indian Territory be- NQlli NOT have
ssiirn asleep aud left the switch open nnn
Il ~ Ind not left tie switch nl"n hsit
" ~ ", ,,,i have beru Killed. auh fhAi ihffe.
49, ,ha ffsi cause Of the death 81 kiuaifi
n 'rsfasi hui VIZ think tli, wulli ~ 20
tey IA fsr 10 LAY the foundation i9f @ NV
W It mn. nroflnate cause was ihe nNGhT
ne. 49,, - Miller 10 having the switch orfnl
- M VA done ia tle Indian l"ripit
sad 10 iris We must look 10 lrtiulis w
s'',',rar.rsy The law upon this pufsuqn'
S..i,.t fr,us he drclsinns ~ W. uialtf
s.,,d fhets l. fairly stated ia SHERMAN z
iieincld On Neglifeuce, fourth salllyu 80
~" =, H. rn1stfded a. giving riEht 81
,,,,t.n mon lntnries which ofeur y1iflhr
~ the juris6iriioa " Tho STATE ea&e'lns 'nf