
    Hoodmacher v. Lehigh Valley Railroad Company, Appellant.
    
      Negligence — Railroads—Death—Right of action — Parties—Conflict of laws.
    
    An action for damages for injuries causing death being entirely statutory must be brought by the person to whom the right is given by the statutes of the state where the cause of action arose.
    In an action against a railroad company to recover damages for the death of a trainman, where it appears that the negligence which was the proximate cause of the accident began in Pennsylvania and continued until the accident occurred in New Jersey, and it also appears that the injured man was brought back to Pennsylvania where he died as the result of his injuries, the action is properly brought in Pennsylvania by the widow for the benefit of herself and child.
    Argued April 12, 1906.
    Reargued April 15, 1907.
    Appeal, No. 118, Jan. T., 1906, by defendant, from judgment of O. P. Luzerne Co., May T., 1902, No. 762, on verdict for plaintiff in case of Mary E. Hoodmacher and Florence M. Hoodmacher, widow and minor child of George B. Hoodinacher, v. Lehigh Valley Railroad Company.
    Before Mitchell, C. J., Fell, Mestrezat, Potter and Elkin, JJ.
    Affirmed.
    Trespass to recover damages for death of plaintiff’s husband. Before Halsey, J.
    At the trial it appeared that the deceased, a flagman, was injured by an explosion of a locomotive belonging to the defendant, at Bloomsbury, New Jersey, on May 15, 1901. The evidence tended to show that the company had failed properly to inspect and repair the locomotive at the company’s roundhouse in Easton, Pennsylvania.
    Verdict and judgment for plaintiff for $7,000. Defendant appealed.
    
      Error assigned was in refusing binding instructions for defendant.
    
      J. B. Woodioawd, of Woodward, Darling c& Woodward, and H. W. Palmer, for appellant.
    The case should not have gone to the jury because the accident happened in New Jersey, and the suit was brought in the name of the parties to whom the right of action is given in Pennsylvania: Usher v. West Jersey R. R. Co., 126 Pa. 206.
    
      John T. Lenahan, with him Charles Orion Stroh, for appellees.
    This case is ruled by Derr v. Lehigh Valley R. R. Co., 158 Pa. 365.
    The doctrine of liability contended for by us, under the Derr case, is in line with the following cases from other states: VanDoren v. Penna. R. R. Co., 93 Fed. Repr. 260; The Strabo, 90 Fed. Repr. 110; Lindstrom v. International Nav. Co., 117 Fed. Repr. 170; Heaven v. Pender, L. R. 11 Q. B. Div. 503; R. R. Co. v. Derby, 55 U. S. 468.
    May 24, 1906 :
   Opinion bt

Me. Chief Justice Mitchell,

This case is ruled by Usher v. West Jersey R. R. Co., 126 Pa. 206, in which it was held that an action for damages for injuries causing death, being entirely statutory, must be brought by the person to. whom the right is given by the statutes of the state where the cause of action arose. In the syllabus of that case, the expression is that the action must be brought by the person to whom the right is given by the statutes of the state where the injuries were inflicted.” For the facts in that case the expression is entirely accurate, for the injuries and the death both occurred in New Jersey. But the more general expression, the state where the cause of action arose,” is the better one. The learned judge below appears to have been misled by the assumption that an exception to this principle has been established in Derr v. Lehigh Valley R. R. Co., 158 Pa. 365. But no such question arose in thát case, for the decedent, for whose death the action was brought, died in Pennsylvania, and, if an action lay at all, it was in this state and under our statute. In that case the injuries were received in New Jersey and the action was sought to be sustained by showing that the negligence, which was the proximate cause, began in this state and continued till the injuries were actually inflicted. A nonsuit was sustained for the failure of evidence on this point. “ Unless a negligent act or omission in Pennsylvania,” said McCollum, J., “ which was directly responsiSr the injury received in New Jersey, is shown by the evi5"fi|ge, there is no question of jurisdiction to be considered. If fhe "evidence is insufficient to warrant an inference of such 'ligence the nonsuit must be sustained.”

'h the present, as in the Derr case, the plaintiff based the "'right of recovery on the evidence of the initial negligence of the defendant in this state which continued and became part of the proximate cause of the death. In this case the jury so d. But this view overlooks the fact that in the present Isífhat is nob a controlling element. In the Derr case, as lady said, the death occurred in this state, and if the proxii<*ause was negligence also occurring in this state, the con-of the statute, giving the widow a right of action, ícfc'áll have been met. But here, the essential condition of the state, is lacking. No matter how great the neg-

the defendant, nor where it began or continued, ,%hl|rqh!ras no cause of action to anybody until an injury was 1 .feheí'vÁdf,'. As soon as the decedent was injured he had a com-right of action, which was transitory and enforceable í^ '^iiyí'cljínmon-law jurisdiction where defendant could be iserV^i'i' ^ut when he died wdthout having brought suit, his tigiw^ied with him, there was no survivorship to anyone. By stdtiif£§?arnew right arose, derivative in its nature and not maintálÍ|«^|,when if he had lived he could not have recovered, y'amMcldiel ess, a new right, resting entirely on statute, and veile^wtelparty to whom it is given by the statute of the gin which it arose.

decedent having died in New Jersey, if there had ítutó jb. that state providing for a new action, there woqjq. right in anyone anywhere, but the statute b at to the decedent’s representatives, they, and th"assert it. beérfn¡

Judgmq'^^^|i,s'ed’,

On petitr&hi&^p-ggument it was shown that decedent after the accid'$&< tW Jersey was brought back to Easton Hhw&r*'*'1

¥0h|t^é’h^r^rñ:^. ír.- dnif n Aaa?foj¡i ÍS§Jlc;i This caí© píe& In flowing opinion was delivered by l" toril 29, 1907: and on the first argument was argued here on the theory that the initial negli, of the defendant occurred in this state, and continued am came part of the proximate cause of the accident in New Jed Owing to this view of the case, the fact was not disclosed the deceased, though injured in New Jersey, had been bro home and died in this state. The judgment was, there! reversed under the authority of Usher v. West Jersey R. R. Co., 126 Pa. 206. It being now shown to the court that the death occurred in Pennsylvania, the case is directly Derr v. R. R. Co., 158 Pa. 365, and was properly broug the widow for the benefit of herself and child.

The order heretofore made reversing the judgment court below, is now rescinded, and the judgment is affi:  