For convenience, the last may be disposed of first. The constitutionality of the act is not assailed. That it is likely to be upheld finally is fairly to be inferred from the several opinions in Howard v. Ill. Cent. Ry., 207 U. S. 463, 28 Sup. Ct. 141, 52 L. Ed. 297, though a different view appears to have been entertained by the Supreme Court of Connecticut. Hoxie v. Railway, 82 Conn. 352, 73 Atl. 754. See El Paso & N. E. R. Co. v. Gutierrez, 215 U. S. 87, 30 Sup. Ct. 21, 54 L. Ed. -. In the Howard Case, the court held that Congress had the power, under the clause of the Constitution authorizing it to regulate commerce among the several states, to define the duties and liabilities of master and servant when engaged in interstate com

of this custom and appreciated the peril in- | cident thereto, then he should be held to have assumed the risk. Possibly, had such an instruction been requested, it should have been given, for if refrigerator cars with protruding bolts were customarily used on the road to plaintiff's knowledge, and concerning which he knew the danger, it might well be held that, in the exercise of reasonable care, he must have ascertained the condition of the car he rode on at the time of the acci- | dent. This would be the only ground for so holding, and in the instruction given it was clearly stated that, if in the exercise of ordinary care he might have known of the protruding bolt and have appreciated the danger, he must fail. So that whether the knowledge charged be from the understand-merce. Until the approval of this act, at ing of a custom or direct information, the rule is in harmony with the instruction, and, had defendant desired that the law be more specifically applied to the proof, counsel should have so requested. In the absence of such request, there was no error.

2. Evidence was received, subject to objection, showing that, as part of the train, a car load of eggs was being transported from Ellsworth, Minn., through this state to Chicago, Ill., and that several other car loads of freight were being taken to the latter place and other points in Illinois. After all the evidence had been 'introduced, defendant moved that the jury be directed to return a verdict in its favor, for that, among other things, plaintiff at the time of receiving the injury was employed in the operation of a railway train engaged in interstate commerce, and recovery could only be had under an act of Congress approved April 22, 1908 (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. Supp. 1909, p. 1171]). Thereupon plaintiff moved that all the evidence of interstate shipments introduced subject to objection be stricken from the record. The court having intimated that defendant's motion must fail because of not having pleaded that the injury was received while connected with a train engaged in interstate commerce, defendant filed an amendment to its answer raising that issue. Plaintiff moved to strike this amendment because filed too late and the matter alleged did not constitute a defense. This motion was sustained, as, also, was the motion to strike the evidence. An instruction to direct a verdict in defendant's favor because of it being engaged in interstate commerce at the time of the accident was requested and refused.

It will be noted that the rulings raise the following questions: (1) Was evidence tending to show that defendant was engaged in interstate commerce admissible in the absence of anything in the answer so asserting? (2) If not, did the court err in striking the amendment so pleading from the files? (3) In either event, can the right created by the so-called employer's liability act

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least, the statutes of the state defining the liability of railway companies to their employés were valid and enforceable (Sherlock v. Alling, 93 U. S. 99, 23 L. Ed. 819), and so continue when engaged in interstate commerce. A state statute, when covering a matter within the powers of Congress and necessarily conflicting with an act of that body, must give way to the federal statute. The rule is tersely stated in the case last cited: "The power to prescribe these and similar regulations necessarily involves the right to declare the liability which shall follow their infraction. Whatever, therefore, Congress determines either as to regulation or the liability for its infringement is exclusive of state authority." Gulf, C. & S. F. R. Co. v. Hefley, 158 U. S. 98, 15 Sup. Ct. 802, 39 L. Ed. 911; Interstate Com. Comm. v. Detroit, etc., Ry., 167 U. S. 642, 17 Sup. Ct. 986, 42 L. Ed. 309. See Western Union Tel. Co. v. James, 162 U. S. 654, 16 Sup. Ct. 934, 40 L. Ed. 1106.

But there is nothing in the petition in the case at bar to indicate whether the cause of action is predicated on the state or federal statutes, and we have no occasion to inquire to what extent, if at all, the statutes of this state eliminating the fellow-servant rule have been superseded by the federal statutes. For the purposes of this case, it may be conceded that the facts bring it within the terms of the federal statute, and that plaintiff must recover thereon, if at all. The petition stated a cause of action thereunder, and, unless it can be said that federal courts have exclusive jurisdiction in the enforcement of rights created or declared in advancement of those previously existing, there is no ground for interfering with the judgment entered. The matter of jurisdiction is not touched in the act of Congress, and it is now well settled that state courts may exercise concurrent jurisdiction with the federal courts in all cases arising under the Constitution, laws, and treaties of the United States, unless exclusive jurisdiction has been conferred, expressly or by necessary implication, on the federal courts.

4

128 NORTHWESTERN REPORTER.

833; Raisler v. Oliver, 97 Ala. 714, 12 South. | ence and functions from the state laws is 238, 38 Am. St. Rep. 215; Wilcox v. Luco, no reason why it should not afford relief; 118 Cal. 642, 45 Pac. 676, 50 Pac. 758, 62 because it is subject also to the laws of the Am. St. Rep. 306, 45 L. R. A. 582; Schuyler | United States, and is just as much bound to Nat. Bank v. Bollong, 24 Neb. 827, 40 N. W. 414; Bletz v. Columbia Nat. Bank, 87 Pa. 92, 30 Am. Rep. 345; Brinckerhoff v. Bostwick, 88 N. Y. 60; People v. Welch, 141 N. Y. 273, 36 N. E. 328, 24 L. R. A. 117, 38 Am. St. Rep. 793; 11 Cyc. 996. .

In the case first above cited, the Supreme Court, speaking through Bradley, J., said: "The general question, whether state courts can exercise concurrent jurisdiction with the federal courts in cases arising under the Constitution, laws, and treaties of the United States, has been elaborately discussed, both on the bench and in published treatises, sometimes with a leaning in one direction and sometimes in the other; but the result of these discussions has, in our judgment, been, as seen in the above cases, to affirm the jurisdiction, where it is not excluded by express provision or by incompatability in its exercise arising from the nature of the When we consider the particular case. structure and true relations of the federal and state governments, there is really no just foundation for excluding the state courts from all such jurisdiction. The laws of the United States are laws of the several states, and just as much binding on the citizens and The courts thereof as the state laws are. United States is not a foreign sovereignty as regards the several states, but is a concurrent and, within its jurisdiction, paramount sovereignty. Every citizen of a state is a subject of two distinct sovereignties, having concurrent jurisdiction in the state; concurrent as to places and person, though distinct as to subject-matter. 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. Thus a legal or equitable right acquired under the state laws may be prose cuted in the state courts, and also, if the parties reside in different states, in the federal courts. So rights, whether legal or equitable, acquired under the laws of the United States, may be prosecuted in the United States courts, or in the state courts, competent to decide rights of the like character and class; subject, however, to this qualification, that, where a right arises under a law of the United States, Congress may, if it see fit, give to the federal courts exclusive jurisdiction. This jurisdiction is sometimes exclusive by express enactment and sometimes by implication. If an act of Congress gives a penalty to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some act of Congress, by a proper action in a state court.

recognize these as operative within the state as it is to recognize the state laws. The two together form one system of jurisprudence, which constitutes the law of the land for the state; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent.”

An illustration of the exercise of exclusive jurisdiction by the federal courts will be found in Copp v. Ry., 43 La. Ann. 511, 9 South. 441, 26 Am. St. Rep. 198, 12 L. R. A. 725, where a plea to the jurisdiction of the state court was sustained on the ground that the act of Congress on which the action for In damages was based directed that it be brought in the United States courts. Hoxie v. Ry., supra, the Supreme Court of Connecticut reached the conclusion that by fair implication the act of Congress excludes jurisdiction of the state courts, and, in any event, the state court was under no obligation to enforce the rights therein created. The last point appears to have been considered as though involving a question of comity merely, regardless of the convenience and propriety of enforcing all rights and redressing all wrongs within the jurisdiction of the local courts.

The prevailing rule is that, where a cause of action accrues by virtue of the statute of any state, the action may be maintained in any other state if not contrary to the public policy or law of the place where the suit is brought. Boyce v. Railway, 63 Iowa, 70, 18 N. W. 673, 50 Am. Rep. 730; Morris v. Railway, 65 Iowa, 727, 23 N. W. 143, 54 Am. Rep. 39. See cases collected in note to Reeves v. Railway, 70 L. R. A. 513. In such cases, the law of the place where the right was acquired or the liability incurred will govern as to the right of action, while all that pertains merely to the remedy will be controlled by the law of the state where the action is brought. Herrick v. Railway, 31 Minn. 11, 16 N. W. 413, 47 Am. Rep. 771.

Even where the cause of action arises in a foreign country, suits may be maintained in our courts, though jurisdiction can be declined; but this is seldom done unless from fear of inability to do full justice through Mason v. lack of knowledge of the laws of the place where the cause of action arose. The Blaireau, 6 U. S. 240, 2 L. Ed. 266; Roberts v. Dunsmuir, 75 Cal. 203, 16 Pac. 782; Great Western R. Co. v. Miller, 19 Mich. 305; Cofrode v. Gartner, 79 Mich. 332, 44 N. W. 623, 7 L. R. A. 511; Evey v. Railway, 81 Fed. 294, 26 C. C. A. 407, 38 L. R. A. 387; 11 Cyc. 663. The reasons which induce state courts to exercise jurisdiction of causes of action arising in a foreign country or under legislation of another state

gence in any case where the violation of such common carrier of any statute enacted for the safety of employés contributed to the injury or death of such employé.

"Sec. 4. That in any action brought against any common carrier under or by virtue of any of the provisions of this act to recover damages for injuries to or the death of any of its employés, such employé shall not be held to have assumed the risks of his employment in any case where the violation by such common carrier of any statute enacted for the safety of employés contributed to the injury or death of such employé."

should be quite as persuasive in favor of to have been guilty of contributory negliassuming jurisdiction over causes of action arising under the statutes of the United States, with this in addition, that these are the laws of the very people the jurisdiction of whose courts is invoked. See 11 Cyc. 996. If a cause of action has become fixed and a legal liability incurred, the doors of the courts of this state should not be closed to the prosecution of such cause of action, regardless of whether the same may have arisen under the statutes of another state, an act of Congress, or the laws of a foreign country, unless to enforce it would be contrary to the laws or public policy of the state or complete justice probably could not be done. Unless the act of Congress should be construed to confer exclusive jurisdiction on the federal courts, or the mode of procedure is such that the state courts cannot safely undertake to enforce the liability defined, there seems no ground for declining to exercise a jurisdiction fully approved by the authorities. The statute is silent concerning jurisdiction; but it is said that the rules of practice prescribed therein and the direction as to who shall be the beneficiaries thereunder are so inconsistent with the state laws as to indicate the congressional intent that redress may be had in the federal courts alone. In order to dispose of this objection, it will be necessary to set out the main provisions of the act:

"Sec. 1. That every common carrier by railroad while engaging in commerce between any of the several states and territories, or between the District of Columbia or any of the states or territories and any foreign nation or nations, shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce, or, in case of the death of such employé, to his or her personal representative for the benefit of the surviving widow or husband and children of such employé; and if none, then of such employé's parents; and if none, then of the next of kin dependent upon such employé, for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employés of such carrier, or by reason of any defect or insufficiency due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment."

"Sec. 3. That in all actions hereafter brought against any such common carrier by railroad under or by virtue of any of the provisions of this act to recover damages for personal injuries to an employé, or where such injuries have resulted in his death, the fact that the employé may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employé: Provided, that no such employé

"Sec. 6. That no action shall be maintained under this act unless commenced within two years from the day the cause of action accrued."

If

It is manifest from the mere reading that this act effects quite as important a change in the trial of such causes in the federal courts as would be possible in the state courts. Thus the federal decisions are harmonious on the proposition that the negligence of complainant which contributes proximately to the injury will defeat the recovery of damages therefor. So, too, in the absence of local statutes, the fellow-servant doctrine and that of assumption of risks have been broadly applied in all federal courts. Hereafter all of these rules are to be modified or eliminated where the injuries are such as contemplated in the above act. inconvenience and confusion would result from an attempt to enforce the acts in the state courts, like consequences will be the outcome of a similar undertaking in the courts of the United States. Let us examine the several sections and ascertain the alleged inconsistencies which are said to preclude the maintenance of actions based thereon in the state courts. No one, we apprehend, would say that the state courts are not competent to entertain suits by the persons authorized by section 1 to recover damages or to distribute those recovered as specified. Under the statutes of this state, the suit is prosecuted in the name of the administrator where death is alleged to have resulted from wrongful act, and anything recovered distributed as personal property among the heirs. It goes to the surviving spouse and children if any there are, and, if not, to the parents of the deceased precisely as under the federal statute. In event there are neither spouse and children nor parents of deceased, the remoter heirs are entitled thereto under the state statute, while under this act the damages go to the next of kin dependent upon deceased. As the state statute must give way to that of Congress, no inconsistency is involved. All essential is that effect be given the latter as though the former were not on the statute book. Nor can it be said that this involves an interference by Congress with the distribution of

He | 3. SALES (§ 17*)-PARTIES TO TRANSACTION— RIGHT TO RECEIVE PRICE.