APPEAL by the defendant, the Northern Pacific Railway Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Clinton on the 15th day of April, 1910, upon the verdict of a jury for $9,500, and also from an order entered in said clerk's office denying the defendant's motion for a new trial, and from a second order granting plaintiffs an extra allowance of costs.
This case was transferred to the Fourth Department from the Third Department.
Lewis E. Carr, for the appellant.
Thomas F. Conway, Thomas B. Cotter and Frank E. Smith, for the respondents.
The judgment and order should be reversed and a new trial granted, with costs to appellant to abide event, unless the plaintiffs stipulate to reduce the verdict to the sum of $5,000 as of the date of the rendition thereof, in which event the
judgment should be modified accordingly, and as modified, affirmed, without costs, and the order granting an extra allowance of costs should be reversed, without costs and amount thereof stricken from the judgment.
The action was for negligently causing a death, and was brought by the heirs of the deceased. The accident occurred between two and three o'clock in the morning of January 2, 1907, at Cold Spur station, in the State of Montana. The deceased was a freight conductor. On the night in question he had charge of an extra freight train going east. It was stopped at Cold Spur, a signal station, because the block signal was against it; the block to the east was not clear. The road was a single-track one, and the train stood on the main track between the two switches, at the ends of the siding. The next signal station east was Livingston. The next one to the west was Hoppers, four and a half miles from Cold Spur, and there was a two per cent down grade from Hoppers to Cold Spur. The extra freight was made up of thirteen cars, a dead engine, its own engine and a caboose. In the caboose, as the train stood at Cold Spur, were the conductor, a brakeman and the engineer and fireman of the dead engine. Two other engines had been pushing trains up the grade beyond Hoppers and were coupled together, and started down towards Cold Spur. When they passed Hoppers the signal there, by mistake, showed a clear block to Cold Spur. After the engines passed by, the operator at Hoppers, having discovered the mistake, notified the operator at Cold Spur that they were in the block, on their way down towards Cold Spur. The caboose was 600 to 700 feet inside that block. The operator at Cold Spur was unable to clear the block east of Cold Spur, so the extra freight could proceed on its way, and did not succeed until just before the accident occurred, and too late for the train to get out of the block. Upon getting the notice from the operator at Hoppers, the operator at Cold Spur at once went to the caboose and notified the men therein that the light engines were coming. The brakeman took a white light and a fusee and went back a few car lengths. The conductor told him not to flag the engines but to light a fusee and throw it out of the caboose, and that would be sufficient. There were six or seven minutes
before the accident and time enough for the brakeman to have gone back fifteen or twenty car lengths if he had hurried. The engines were running fifteen miles an hour, and when they saw the lights of the caboose and the fusee they tried to stop but could not because running so fast, and by reason of the brake on one of the engines being out of order. They struck the caboose and wrecked it, with five or six cars, and the conductor was killed.
The accident having occurred in Montana, the law of that State governed as to the liability of the defendant. ( McDonald v. Mallory, 77 N.Y. 546, 550, 551; Wooden v. W. N.Y. & P. R. R. Co., 126 id. 10, 14, 15.)
The statute law of a foreign State is a fact to be proved, like other facts going to make out a cause of action. (Pratt v. Roman Catholic Orphan Asylum,20 A.D. 352-354; affd., sub nom. Conklin ...