Wells v. Davis. to the injury of local creditors. It is held everywhere, however, that a cause of action of the class here under consideration is not assets of the estate of the deceased, is not subject to the claims of creditors of the deceased, and is for the exclusive benefit of the persons designated as beneficiaries under the law which gives the right. [Jones v. K. C. Ry. Co., 178 Mo. 1. c. 541; Miller v. Hoover, 121 Mo. App. 568; Kelly v. Railroad, 141 Mo. App. 490; Voris v. Railroad, 172 Mo. App. 125; Dennick v. Railroad, 103 U. S. 11; Railroad v. Babcock, 154 U. S. 190; Pearson v. Railroad, 286 Fed. 429; 24 C. J. p. 1130, sec. 2703.] l. By the same authorities, and generally, it is held that the statute creating such a right of action makes the personal representative the trustee of an express trust. The power and the duty to enforce the right rest upon the personal representative, whoever he may be, and "he does so, not for the use of the estate in general, but for the use of the beneficiaries named; he is, in effect, created by the statute a trustee of an express trust for the use of the widow and next of kin." [Jones v. Railway, supra, 1. c. 541.] The cause of action here arises under the Federal Act, and the party plaintiff is designated by the same law. The act supersedes all other laws upon that subject. [Second Employers' Liability Cases, 223 U. S. 53; St. Louis Railroad Co. v. Seale, 229 U. S. 156; Seaboard Air Line Ry. v. Horton, 233 U. S. 492.] “The laws of the United States are laws in the several states, and just as much binding on the citizens and courts thereof as the state laws are. The United States is not a foreign sovereignty as regards the several states, but is a concurrent, and, within its jurisdiction, paramount sovereignty. Legal or equitable rights, acquired under either system of laws, may be enforced in any court of either sovereignty competent to hear and determine such kind of rights and not restrained by its constitution in the exercise of such jurisdiction." [Claflin v. Houseman, 93 U. S. 1. c. 136-7, cited and quoted in Second Employers' Liability Cases, 223 U. S. 53.] Wells v. Davis. "The nation, on those subjects on which it can act, must necessarily bind its component parts." [McCulloch v. Maryland, 4 Wheat. 316.] In Hogarty v. Phila. Ry. Co., 245 Pa. St. 443, the court after summing up the holdings of the Supreme Court of the United States in the Second Employers' Liability cases, continuing, said the holding was: "That the provisions of the statute supersede the laws of the State in so far as the latter cover the same field,' that this piece of legislation must be heeded by all courts, that in its enforcement by state courts the act in question is 'not to be treated as a foreign statute,' but as one ‘establishing a policy for all,' and, finally that the policy thus established is ‘as much the policy of Connecticut (the state from which the appeal was taken) as if the act emanated from its own legislature.'"' The Pennsylvania court, referring to the case before it, further said, 1. c. 452, that "since the Supreme Court of the United States has decided that this statute must be treated by State courts, in each instance, as though an act of their own Legislature, for all practical purposes it is a Pennsylvania Statute." In respect of the nature of the cause of action, and of the official character or trust relation of the person by whom it must be prosecuted, both are created and controlled by the Federal Act, which is the law upon that subject in force in Arkansas-the only law on that subject which can be in force in that state, or in this State. Section 1163 cannot be held to govern so as to exclude a case founded upon a cause of action under a law which thus supersedes the law of the other state where the cause of action arose, and is not a law foreign to either state. Section 1163 is regarded as inapplicable to exclude the right to sue, because it expresses a policy to allow the representative to sue upon this class of causes of action whenever such a cause of action has accrued within any of the other state or territorial jurisdictions of the United States, and the Federal Act is controlling as an expression of the constitutional power of Congress to Wells v. Davis. create the right of action, and to confer it upon whom it saw fit. The cause of action is not for the benefit of the estate. The representative does not hold it in his strict representative capacity as representing all the persons interested in an estate; but, being the representative, he becomes by virtue of the Act the trustee of a statutory express trust. The money he may recover is not to be administered, but is to be distributed, and not according to the law of the state of his appointment, or the order of a probate court, but in accordance with the Act. These various considerations are discussed in numerous cases. [Boulden v. Railway, 205 Pa. 264; Fugate v. Moore, 86 Va. 1045; Purple v. Whitehed, 49 Vt. 187; Connor v. Railroad, 28 R. I. 560; Voris v. Railroad, 172 Mo. App. 125; Pearson v. Ry. Co., 286 Fed. 429; McCarty v. Railroad, 62 Fed. 437; Stewart v. Railroad, 168 U. S. 445.] The question is one of determination of the legal status of the plaintiff for the purposes of this suit. By "the supreme law of the land" the cause of action was given and the right of action thereon was vested in the personal representative. The particular person to be the representative was left to be appointed under the law of the state. When so appointed the representative becomes vested with all the rights given under the Federal Act, which, in all respects except the formal selection of the particular individual to be the representative, has become the law of the state of the appointment. This conclusion is clearly within the reasoning of this court in Sells v. Railroad, 266 Mo. 155, and in Thompson v. Railroad, 262 Mo. 468. In Sells v. Railroad, it was said in the concurring opinion by GRAVES, J., at page 189: "This statute of the Federal Government placed persons engaged in interstate commerce into a class to themseives and created a right of action in case of death. As to persons falling within the class, this Federal law took the place of State statutes dealing with the same subject-matter. As to this class of persons it pro tanto repealed the State statutes. Such State statutes became Wells v. Davis. as ineffective, both as to rights and remedies, as they would have been had they been specifically repealed by the State.' "" When Section 1163 was enacted the power of Congress had not been exercised upon this subject, but the power existed. When exercised it resulted in a law which took the place of the laws of the State covering the same subject. Section 1163 was enacted as an enabling statute, responsive to a policy then pursued severally by the states upon a certain subject. It ought not to be construed narrowly as a disabling statute in its relation to a law, universal and exclusive in effect upon that subject, to that extent taking the place of the laws of the states, enacted in the exercise of a power which always existed, and establishing a uniform policy in respect of right and of remedy. Upon this assignment we rule against defendant. II. The remaining assignment is that the court erred in overruling the plaintiff's demurrer to the evidence at the close of the evidence, with which, defendant connects certain questions related to the allegations of the petition, and the primary instruction given for plaintiff. The freight train, of which Floyd Wells was fireman, reached Woolsey, Arkansas, at 6:20 in the morning. There were twenty-five or thirty cars in this train. The crew had received orders for this train to take the side track at Woolsey, to permit the passage of a north-bound passenger train due at that place at 6:55 A. M. The freight train, headed south, was pulled onto the switch track a few feet west of the main line track. It was stopped by the engineer, when clear of the main line, pursuant to a signal given by the brakeman at the rear, but the engineer testified he did not know by what margin he was clear of the switch. No one was about the engine or front of the train except Wells, the fireman, and Bryson, the engineer. The engine had two sets of grates under the fire box. Beneath each set of grates there was a pan to receive the cinders and ashes when the grates were shaken. The grates could be shaken by the use of a shaker-bar in the Wells v. Davis. cab of the engine. The pans below, tapering down, hopper-fashion, held the cinders until they might be released at a place where there was no danger of their setting out fire. There was a hinged lid or false bottom to these pans. It was the duty of the fireman to shake the grates, and also to empty the pans. In emptying the pans the fireman stands upon the ground on the left side of the engine, and opens the bottom of the pan with a bar, and where they do not fall out, uses the bar to poke and loosen them. This engine had four driver wheels on each side. One pan was reached just to the rear of the rear driver wheel. The other pan was reached by inserting the bar between the two rear drive wheels, or by inserting the bar through the spokes of the next to the rear drive wheel. The only witness testifying to what occurred at the time and at the immediate place was Bryson, the engineer, who was called by the plaintiff. According to his testimony, after the freight train had stopped on the side track, Wells inquired if there was time to clean the grates and empty the pans. Being told there was, Wells shook the grates from the cab. He then descended to the ground on the east or left side of the engine, taking with him the shaker-bar. He went to work on the rear pan, using the shaker-bar to loosen the cinders and ashes. He then stood at the back or north side of the rear drive wheel.. Bryson also descended from the cab, took the clinker-hook and proceeded to the front pan to empty it. Wells succeeded in removing the ashes from the rear pan more rapidly than did Bryson from the front pan. When the ashes from the rear pan filled the space between the bottom of the pan and the ground, and it became necessary to move the engine in order that the cinders remaining might be let out, Wells so advised Bryson, and inquired whether he should move the engine himself, or whether Bryson would do so. Bryson answered that he would move it. Thereupon, Bryson says, Wells stepped back from the side of the engine three or four feet, and stood holding with his left hand one end of the shakerbar, the other end resting upon the ground. Wells had |