v. Central R. Co., 103 U. S. 11, 26 L. Ed. 439, it was held that the general language of the wrongful death statute itself was sufficient to take in a foreign personal representative, without more. It so happened, however, that in both cases the statutory provision empowering foreign personal representatives to sue in the jurisdiction. of the statute was broad enough to cover an action on that statute. The action in one case was by a Colorado personal representative, on the Kansas wrongful death statute, brought in Kansas. In the other case it was by a New York personal representative, on the New Jersey wrongful death statute, brought in New York. The Cutler Case was subsequently qualified by the case of Limekiller v. Hannibal, etc., R. Co., 33 Kan. 83, 5 Pac. 401, 52 Am. Rep. 523, where it was held that, if the foreign personal representative had no right of action in the jurisdiction of his appointment on the wrongful death statute thereof, he could not sue on the statute out of which the obligation sought to be enforced arose. In this case, however, the statute of Ohio empowering foreign personal representatives to sue therein is broad enough to cover an action on the wrongful death statute. The general language of that statute, therefore, should be held broad enough to include a foreign personal representative. An authority to this effect, in addition to the Cutler and Dennick Cases, is the case of Jeffersonville R. Co. v. Hendricks, 41 Ind. 49.

But it is urged by defendant's counsel that it has been held by the Supreme Court of Ohio that a foreign personal representative cannot sue on the wrongful death statute of that state. Of course, if this is true, this construction of that statute is binding upon us. The case relied on is Woodard v. M. S. & N. I. R. Co., 10 Ohio St. 121. This case, however, did not involve a construction of the Ohio statute, much less did it involve the question whether a foreign personal representative could sue on the Ohio wrongful death. statute in Ohio. It was an action in Ohio by an Ohio personal representative on the Illinois wrongful death statute. It is true that it is said in the statement of facts preceding the opinion that the Illinois wrongful death statute and foreign personal representative statute were both very similar to the like statutes of Ohio, and there is a basis, therefore, for claiming that the decision is an indirect construction of the Ohio statutes. It is certainly no more. But this decision was rendered before the Civil War, when wrongful death litigation was in its infancy. It is the pioneer case involving the question involved herein. The court was not at the proper standpoint in which to construe the Illinois statute correctly. The standpoint from which one views a thing often makes. a very great difference whether he sees correctly. The proper standpoint from which to have construed the Illinois statutes. was from the bench of an Illinois court, just as here the proper standpoint from which to construe the Ohio statute is from the bench of an Ohio court. The Ohio Supreme Court construed the Illinois statutes from its own bench. The danger in so doing was that it would think that the only way in which plaintiff's action

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could be sustained would be by giving the Illinois wrongful death statute an extraterritorial effect, which could not be done lawfully. And the opinion shows that the court did so think. The real ground of the opinion is that, inasmuch as the Illinois statute could not lawfully impose a duty or trust on an Ohio personal representative, it did not intend to do so. The court did not consider whether the Illinois statute should be construed as giving the Ohio personal representative a right of action in Illinois, and, because it did so, whether he should not be permitted to bring an action in Ohio. Had the case before it been an action on the Ohio wrongful death statute by a Kentucky personal representative, it cannot be said from this opinion that it would have been held that the action could not be maintained. Judge Thompson had just such a case before him in the case of Popp v. Cincinnati & C. R. Co. (C. C.) 96 Fed. 465, save that plaintiff was an Indiana personal representative, and it was held that he had a right to bring the action. Indeed, defendant's Ohio counsel expressly concedes that plaintiff could have brought an action in the state of Ohio to recover damages for the death of his intestate. He directs attention to the fact that in the Dennick Case it was held that the New York personal representative might bring an action on the New Jersey wrongful death statute, and that the right so to do was not limited, as the lower court had held, to a new Jersey personal representative. He then adds: "We have never questioned this proposition, and don't now. The administrator appointed in Kentucky can bring suit in Ohio upon this same cause of action."

If this is so, then why can he not maintain this action in Kentucky? The only possible ground for his not having the right to do so is that the cause of action is not transitory. But as to that, there can be no question. In the Dennick Case it was held not only that the New York personal representative had a right of action on the New Jersey wrongful death statute, but he had a right to bring his action in New York, and hence that the cause of action was transitory. There was a time, perhaps, when it was an open question whether the cause of action on a wrongful death statute was transitory, and it was held in some jurisdictions that, in order for it to be so, it was essential that there be a substantially similar statute in the foreign jurisdiction. In Ohio the decision in the Woodard Case, which was really based upon the proposition that an Ohio personal representative had no right of action on the Illinois wrongful death statute, seems to have been treated as holding that a right of action on a wrongful death statute of a foreign jurisdiction was not transitory and enforceable in Ohio unless there was an express statute in that state permitting its enforcement there. It would seem that it was upon such idea that section 6134a of Bates' Annotated Statutes of Ohio was passed, which provides that a right to maintain an action and recover damages for a death caused by wrongful act, neglect, or default in another state, territory, or foreign country, given by a statute thereof, may be enforced in Ohio "in all cases where such other state, territory or

foreign country allows enforcement in its courts of the statute of this state of the like character, but in no case shall the damages exceed the amount authorized to be recovered for a wrongful neglect or default in this state causing death." But I think it safe to say that in no jurisdiction where it is an open matter would it now be held that the cause of action is not transitory, or that it is essential that there be a substantially similar statute in the foreign jurisdiction in which the wrongful death statute is sought to be enforced in order to the enforcement there. The correct rule on the subject is thus stated by Minor on Conflict of Laws, p. 492:

"The present tendency of the more recent decisions is to advance still further towards liberality, and to throw open the courts to litigants whose cause of action has arisen in other states and under the laws thereof, even though not actionable at common law, or not actionable if it had arisen in the forum, provided the enforcement of the lex delicti would not seriously contravene the established policy of the forum. The presumption is in favor of the right to sue, and the burden rests upon the party objecting to show that the enforcement of the 'proper law' would be inconsistent with the domestic policy."

This is the federal position, as evinced by the Dennick and subsequent cases decided by the Supreme Court. Under it, it seems to me that the only limitations upon the right to sue in the foreign jurisdiction is the existence of a statute in such jurisdiction prohibiting it, or the absence there of adequate machinery of procedure. The fact that Ohio has a different rule has no relevancy to this case. This is not a suit in Ohio on a foreign wrongful death statute. It is a suit in Kentucky on the Ohio statute. There is no statute in this state prohibiting such a suit. Its machinery of procedure is adequate to the enforcement of the right. If then, as is thus conceded, plaintiff had a right to have brought an action in Ohio, there is no possible reason for his not having a right to bring this action.

Counsel for defendant suggest as a reason why plaintiff should not be allowed to maintain this action that it is liable to another action by an Ohio personal representative. I do not think there is any such liability. If the plaintiff had brought this action in Ohio, it could not be claimed that thereafter another action could have been maintained against him there by a domestic personal representative. The fact that he has brought it in Kentucky can make no difference. Counsel for defendant rely on the case of Sanbo v. Union Pac. Coal Co. (C. C.) 130 Fed. 52. That was an action in Colorado by a Colorado personal representative on the Wyoming wrongful death statute. It was held that the action could not be maintained. The ground upon which it was so held was that under the Wyoming statute the amount recovered was a fund to pay debts. It was conceded that, if the statute had been like the Ohio statute, the action could have been maintained.

My conclusion, therefore, is that under the Ohio statute plaintiff had a right to have brought his action in Ohio, and, having that right, he had a right to bring it in Kentucky, irrespective of the Stewart Case.

The motion for arrest of judgment is therefore overruled.

Then, as to the motion for new trial. The main ground relied on is the refusal to give a peremptory instruction to the jury to find for the defendant at the close of all the evidence. It is urged that the defendant was entitled to such an instruction, because the cause of action was not transitory and enforceable in Kentucky. I have disposed of this contention in what I have had to say on the preceding motion. Then it is urged that the evidence was not sufficient to entitle plaintiff to have the cause submitted to the jury. The nature of the case was this: The defendant, on Labor Day in September, 1902, and for some time prior thereto, owned and was managing Beechwood Park, in or near the city of Ironton, Ohio. On that day the laboring men had a celebration in the park, to which the public were invited. The decedent, as one of the public, attended this gathering, and paid for admission, as did the rest, the receipts going to defendant. Whilst sitting under a black gum tree listening to the speakers at the band stand, and when hardly a breath of air was stirring, a large branch separated from the main body of the tree at its connection therewith and fell, striking her on the head and killing her instantly. The petition charged that the branch was dead, unsound, and rotten on top at and near its connection with the main body of the tree where it gave way, that this defective condition was patent and knowable by the defendant by the exercise of ordinary care, that it carelessly and negligently allowed the branch to remain upon said tree and failed to remove it, and that by reason thereof the injury complained of was occasioned.

As to the claim that the branch was dead, unsound, and rotten on top at and near the connection with the main body of the tree where it gave way, I think there was evidence tending to show that such was the case; at least, sufficient to justify the jury in passing upon the question. There was likewise evidence tending to show that it was patent to one who might have climbed the tree for the purpose of examining it and seeing if it were safe. The evidence. did not warrant the conclusion that it was patent to one examining the tree from the ground, and I so told the jury. The claim, then, that it was knowable by the defendant by the exercise of ordinary care, and that it negligently failed to remove it, depended upon whether a person of ordinary prudence, with such knowledge as he would have from an inspection of the tree from the ground-it is not denied that ordinary care required an examination of the tree from the ground-would not have climbed the tree for the purpose of making a more careful examination of this branch, would have discovered the defective condition of the branch by making such examination, and with such knowledge would have removed the branch and thereby have prevented the injury. I think that the evidence was such as to demand a submission of these questions to the jury for their determination. The evidence showed clearly that the tree was a large old tree; that it leaned towards the band stand somewhat; that the branch in question was 30 or 40 feet up in the

air, was a large one, being as much as 13 inches in diameter at its connection with the tree, and extended out almost horizontally from the tree for a distance of about 30 feet over the place where persons would be standing or sitting listening to the speaking from or exercises being carried on at the band stand; that a portion of the outer end had been broken off, and for a distance of one or two feet the outer end as left was dead, and that through the lap of the branch there were dead limbs. Then one witness testified, if I remember correctly, that there was a snag of a branch somewhere on the body of the tree from which a branch had formerly broken. Besides, there was the testimony of Baldwin, and perhaps two or three others, to the effect that a point some five or six feet from the body of the tree the branch in question had a swelled appearance, and a hole or defective place near the top that was apparent to one examining the branch from the ground. It is true that this testimony was contradicted by other witnesses, and that its value was affected by their further testimony that it was at this point the branch gave way, which is against the decided weight of the testimony; but still it was for the jury to say whether this defective condition was there or not, and, if so, to determine whether it would have any effect on the course of action of a person of ordinary prudence. On the other hand, the evidence was quite strong to the effect that apparently the branch was sound otherwise than as above stated. The bark and sap on the outside all around, except as to the place on top at and near the connection of the branch with the main body of the tree, was green, and the limbs and foliage constituting the lap of the branch was pretty generally green. But in view of all the evidence, I think there was room for difference of opinion amongst fair-minded men as to whether a person of ordinary prudence would not have climbed the tree to make a closer examination as to the safety of the branch, and would not have discovered the defective condition on top of the branch at and near its connection with the body, and removed the branch had he done This is a case where it seems to me that the following remarks of Mr. Justice Lamar, in the case of Grand Trunk R. Co. v. Ives, 144 U. S. 408, 12 Sup. Ct. 679, 36 L. Ed. 485, are particularly appropriate, to wit:

So.

"There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms 'ordinary care,' 'reasonable prudence,' and such like terms, as applied to conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in the case was such as would be expected of reasonably prudent men under a similar state of affairs. When a given state of facts is such that reasonable men may fairly differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury. It is only where the facts are such that all reason