In this case, Anna Elizabeth Haist, a minor, was the real plaintiff, and by amendment to the complaint, by leave of the court, T. N. Eobertson was .her next friend who represented and cared for her" interest in the suit which had been brought for her. There was no error in the allowance of the amendment by the substitution of T. N. Eobertson as next friend, instead of the foreign guardian, H. E. Burnham. In discussing this question, the supreme court’ of the United States, in Morgan v. Potter, 157 U. S. 198, said: Ut is the infant, and not the next friend, who is the real and proper party. The next friend, by whom the suit is brought on behalf of the infant, is neither technically nor substantially the party, but resembles an attorney, or a guardian ad litem, by whom a suit is brought or defended in behalf of another.” This is the doctrine of the more modern decisions on this question. Whittem v. State, 36 Ind. 214; George v. High, 85 N C. 113.
Though the suit was brought by a foreign guardian, who was not qualified to sue in this state, the court ought not to have dismissed it, the infant being the real and proper plaintiff, but did right in appointing some one as next friend to look after her interest in the suit, who was qualified to sue for her. Hoskins v. White, 13 Mont. 70; Young v. Young, 3 N. H. 345; Johnson v. Blair, 126 Pa. St. 49; Tate v. Mott, 96 N. C. 19.
Did the circuit court have jurisdiction of the subject-matter of this suit? The plaintiff, Anna Elizabeth Haist, was a minor, residing in the state of Nebraska, and brought this suit to recover damages alleged to have been caused by the negligence of. the defendant in the state of Louisiana, by the killing of William Haist, her father. That William Haist, the father, was killed in the state of Louisiana, while acting as fireman on defendant’s train, without any negligence upon his part, in a collision between a freight train and a passenger train on defendant’s railway, about fofir miles from Howcott, in Rapides Parish, is clear from the evidence in the case. That that .collision was caused by the negligence of the servant or servants of the defendant on the defendant’s train is equally clear from the,proof in the case. A right of action therefore accrued to the said Anna Elizabeth Haist. It was brought in Hot Spring county, Arkansas. The action is transitory. Chicago, St. Louis & New Orleans Ry. Co. v. Doyle, 60 Miss. 977. Will the. courts of Arkansas enforce such rights of action as this arising in the state of Louisiana by virtue'of her láws? It is not a question whether the laws of Arkansas have any extra-territorial force.
Counsel for appellant contend that -the acts of Arkansas and the acts of Louisiana, giving the right of action for the wrongful killing of a human being are so dissimilar that such right accruing under the Louisiana statute can' not be enforced in the courts of Arkansas. But it seems to us “quite evident that the two statutes are of similar import. They are founded upon the same principles, are aimed at the same evil, construct the same kind of action, and give it for the benefit of the samp class of individuals. In both the utter failure of redress at common law where the injury ended in death was the injustice for which a remedy was enacted; and in both the new action was given for the benefit of those who had suffered an injury as the consequence of the wrong. This fundamental agreement in the main and substantial characteristics of the two statutes is not affected by the differences of detail which the demurrer points out.” Wooden v. Western N. Y. & P. P. Co., 13 L. R. A. 461; Stoeckman v. Terre Haute, etc., R. Co., 15 Mo. App. 509; Stewart v. B. & O. R. Co., 168 U. S. 448; St. L., I. M. & So. Ry. Co. v. Brown, 62 Ark. 254. Public policy in this state is hot violated by the enforcement of. the Louisiana statute in our courts.
The laws of Louisiana read as follows:
“Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it; the right of this action survives, in case of death, in favor of the minor children and widow of the deceased, or either of them, or in default of these in favor of the surviving father and mother, or either of them, for the space of one year from the death". The survivors above mentioned can also recover the damages sustained by them by the death of the parent or child, or husband or wife, as the case may be.” Civil Code, art. 2315.
The Arkansas statutes (Sand. & H. Dig.) read as follows:
“Sec. 5908. For wrongs done to the person or property of another an action may be maintained against the wrongdoers, and such action may be brought by the person injured, or, after his death, by his executor or administrator against the wrongdoer, or, after his death, against his executor or administrator, in the same manner and with like effect in all respects as actions founded on contracts.
“Sec. 5911. Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who, or company or corporation which, would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to a felony.
“Sec. 5912. Every such action shall be brought by, and in the name of, the personal representatives of such deceased person, and if there be no personal representatives, then the same may be brought by the heirs at law of such deceased person; and the amount recovered in every such action shall be for the exclusive benefit of the widow and next of kin of such deceased person, and shall be distributed to such widow and next of kin, in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate; and, in every such action, the jury may give such damages as they shall deem a fair and just compensation, with reference to the pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person. Provided, every such action shall be commenced within two years after the death of such person.”
Did the complaint state facts sufficient to constitute a cause of action ? It was not necessary that it should set out the Louisiana statute in haec verla in pleading the statute. To set out the substance and effect of the statute was sufficient. Hanley v. Donoghue, 116 U. S. 1, 7; Louisville, N. A. & C. Ry. Co. v. Shires, 108 Ill. 628; Stacy v. Baker, 1 Scam. 418; Consolidated Tank Line Co. v. Collier, 148 Ill. 266.
Is the verdict. sustained by the evidence ? The conductor. Farrar, was asleep or dozing when his train passed Howcott, where it ought to have been run on to the side track to let the approaching passenger train pass. The engineer of the freight train disregarded his duty, and failed to sidetrack at Howcott. Consulting his watch, which was 50 or 60 minutes slow, he had concluded that he had time enough to reach Antoine, the next station ahead, before the passenger would reach it, and, disregarding his duty under this mistake as to the time, he ran by Howcott without stopping, and without any signal from the conductor. This was evidently negligence on the part of the engineer which contributed to the collision between the passenger train and the freight train, which collision caused the death of William Haist. But William Haist was a fellow servant with the engineer, and could not recover if the negligence of the engineer alone caused the injury. But did the negligence of the conductor, Farrar, contribute to the collision of the trains, and is the company liable for the combined negligence of the conductor and the engineer ? It is held under the decisions in Louisiana that, if injury is caused by the combined negligence of a fellow servant and a vice principal on a railroad, the railroad company is liable, and that a conductor personates the company, and is a vice principal..' ■
It was the duty of the condu,ctop..to/-see to it that all the employees under him understood and discharged their duties. He and the engineer both had time tables, and knetv when and where to stop. The trains were running on time. He, the conductor,'had means of signaling the engineer, and of stopping the train by the brakes and brakeman at his command, when necessary. He knew, or ought to have known, when the freight train passed Howcott, and, knowing that the passenger was on time and would soon be at Howcott, and that it was all-important that his train should be sidetracked there to prevent the fatal collision which occurred a few miles further on, it was his duty to have his train side-tracked at Howcott to await the passing of the passenger. As he was asleep at Howcott, and made no effort to have the freight stop there, it does seem that there can be no question that he was not in the discharge of a plain and very important duty, and that his negligence contributed to the collision which deprived the'fireman, William Haist, of his life; and, being a vice principal, the company is liable.
Was there error of law in the court's instructions to the jury? They are as follows:
The court, on plaintiff's request, gave the following instructions :
"1. If you believe, from the evidence, that Wm. Haist was in the employ of defendant as fireman on a locomotive drawing one of its freight trains on one of its tracks or lines of railroad, in the state of Louisiana, on the 7th day of February, 1899; that while in such employ, the locomotive or train on which he was serving came into collision with a passenger train of defendant, or an engine drawing it, and that he was thereby killed, or so badly injured that he died in a short time thereafter; (b) that the freight train on which he was serving should have been sidetracked at Howcott, so as to let the passenger pass it, and that if it had been so sidetracked, the collision would not have occurred; (c) that the conductor knew that Howcott was the proper place to take the sidetrack with his freight train, and let the passenger train pass it, but that he was negligently asleep, dozing or inattentive when Howcott was reached, and so failed to know when it was reached, and thereby negligently permitted the freight train to go ahead on the main track, and thereby caused the collision; (d) that under the unwritten law of the state of Louisiana,' as it is and then was, the conductor of a railroad train in that state represents or personates, the railway company, and.that the company is liable under said law for any damages or injury caused to its other employees on the train by or through such conductor’s negligence or inattention in conducting the train; (e) that under and by provision of the statute law of the state of Louisiana, as it is and then was, any person who by any act whatever causes damages to another is bound to repair the damage, and that the right of action therefor survives in case of death in favor of the minor children or widow of deceased who survive him, and that such survivors have also the right to recover the damages sustained by them by the death of the deceased; (f) that said William Haist left no widow, but left the plaintiff, Anna Elizabeth Haist, as his only child and heir at law, whose mother was then dead; (g) that he contributed to plaintiff’s support, and that plaintiff is a minor, and was damaged by his death— you should find for the plaintiff.”
“3. If from the evidence you find the facts and the law of Louisiana as stated in the foregoing instruction, then it makes no difference whether the injury or death of William Haist was or was not contributed to by any negligence or mistake of the engineer.”
“3. If you find for the plaintiff, your verdict should be for such a sum of money as you believe from the evidence would be a just and fair compensation for all the pecuniary injury suffered by her by reason of the injury and death of the said William Haist, and, in arriving at this sum, you may take into consideration such care, support vand sustenance, and such advantages and benefits in the way of training and education, both moral and intellectual, if any, as you may believe from the evidence she would receive from or through him if his injury and death, had not occurred.”
“4. If you find from the evidence that th.e conductor of the freight train personated or represented the defendant as vice principal, under the law of Louisiana, then.he was not a fellow servant of the fireman.” '
Defendant excepted, separately" to the' giving of each of paragraphs a, b, c, d, e, f and g, of plaintiff’s instruction numbered 1. It also objected to the giving of instructions 3, 3 and 4, and, its separate objections being overruled, exceptions were saved.
Defendant asked the following instructions, which were given:
“1. The court instructs the jury that the mere fact that the intestate, Haist, was killed in a collision on defendant’s road while he was engaged in his duties as fireman does not make the defendant liable to plaintiff in this suit for damages occasioned thereby; but the proof must show further, and show affirmatively, that the collision which caused his death was due to some negligence upon the part of the defendant.”
“12. The court instructs the jury that they are not at liberty to take the aggregate of any such amounts for any such years, nor a sum which, at interest, would yield such amounts; but the true measure of damages is the present value of such sum, judged by the number of years, that such contributions might be expected to continue, as shown by the proof.
“13. The court instructs the jury that, in assessing damages in a case of this kind, they are not assessed by way of penalty, or punishment, nor of sentiment, nor to compel the defendant to contribute to the support of a minor, but are allowed only upon the basis of such pecuniary loss as the proof shows the party in interest has sustained; and this is to be determined by the rules given y,ou in the previous instructions.”
We are of the opinion that there is no reversible errors in the instructions. Particular objection is urged to the instruction as to the measure of damages — that the jury might take into “consideration such care, support and sustenance, and such advantages and benefits in the way of training and education, both moral and intellectual, if any, as you may believe from the evidence she would receive from or through him if his injury and death had not occurred.” It is said there is no evidence in the record to warrant this instruction. It is shown that Wm. Haist, the deceased, was an honest, hard-working, square man and a good fellow. This, it seems, would warrant an inference that he would properly provide for his child, being governed by the natural inclination of an honest, hardworking and sober father, which the deceased was shown to be. He had provided for her care and keeping after her mother’s death, and it was shown that she was treated by her parents as a child ought to have been treated. As was said in Railway v. Sweet, 60 Ark. 559, “that was. enough. * * * The attributes of such a character being shown in the father, the law would presume them of some value to his children, until the contrary was made to appear.” Railway Co. v. Maddry, 57 Ark. 306; McIntyre v. N. Y. Cent. Ry. Co., 37 N. Y. 287; 1 Greenleaf, Ev. § 33. We think that the evidence shows that the verdict is not excessive. Finding no reversible error, the judgment is affirmed.