The right of a father to maintain an action for the death of his child, does not exist at common law, and as the plaintiff’s son was killed in the State of Indiana, the plaintiff’s right of action, if any exists, must arise under the laws of that State. Our own statute can have no application, and can be resorted to only for the purpose of showing that the foreign statute under which the plaintiff’s right of action is claimed, is not repugnant to the public policy of this State, as declared by the legislature.
The point is made by counsel for the defendants, and argued with great earnestness, that statutes giving a right of action for negligently causing the death of a person, are penal in their nature, and are only a part of the police regulations of the .State which enacts them. If these assumptions are time, it necessarily follows that actions founded on such statutes are local, and can be entertained only in the local tribunals. Interstate comity does not extend to the enforcement of the penal and police regulations of other States, and. if the statutes in question are of that nature, it is clear that the present action can not be maintained. We are cited to some decisions which seem to support the view urged by counsel. The contrary doctrine, however, is held in the most recent adjudications of courts of the highest authority, and we therefore feel warranted in holding the law to be, that actions of this character are transitory, and that where the right of action has become fixed and the legal liability incurred, the defendant may be prosecuted in any court to whose jurisdiction he can be subjected, provided the statute is not inconsistent with the public policy of the State in which the liability is sought to be enforced. Among the more recent decisions in which this doctrine is held are Dennick v. Railroad Co. 103 U. S. 11, and Leonard v. Columbia Steam Nav. Co. 84 N. Y. 48. As the statutes of this State provide a similar remedy in case of the death of a person by the negligence of another, there is nothing in the right claimed in this case repugnant to our own public policy, and we accordingly see no reason why it may not be enforced in the courts of this State.
In the instructions to the jury, however, there are errors for which the judgment, in our opinion, should be reversed. In the plaintiff’s first instruction and in the modification of the defendants’ third instruction, the court held, as a matter of law, that constructing the derrick in question, and afterward using it, were not matters pertaining to the same line of employment, and that the defendants’ foreman in doing the former and the deceased, the latter, were not fellow servants. Whether these two duties belonged to the same line of employment, so as to constitute the foreman and the deceased fellow servants, was a question of fact, and should have been submitted to the jury as such, under proper instructions.
The evidence shows that the foreman and the deceased were employed, with others, to hoist certain barrels of sawdust to the upper part of defendants’ ice house. This hoisting was to be done by horse-power, by the use of a pulley and rope. In order to use these appliances a post was run up from the scaffolding, already erected about the building, and across this a plank was spiked so as to extend some distance beyond the edge of the platform, thus furnishing an arm from which to suspend a pulley. This structure, called by the witnesses a derrick, was erected by the foreman at the time, out of materials previously furnished by the defendants. The deceased and his fellow servants who were to assist in hoisting barrels of sawdust were present, and the evidence tends to show that the deceased assisted the foreman in its erection.
It is undoubtedly the duty of an employer, where he undertakes to supply his employes with machinery and other appliances to be used by them in the prosecution of his business, to exercise reasonable care and prudence in supplying such as will be safe and suitable for the purpose for which they are to be used. But whether that is the undertaking of the employer in any given case, is a question of fact to be determined from the circumstances. He may undertake to provide the machinery and appliances themselves, or only the materials out of which they are to be constructed, leaving their construction to the same employes who are to use them when constructed. Thus, for example, a person employing others to erect a building, might undertake, on his own part, to put up and supply all the scaffolding necessary to be used in the progress of the work, and in that case be doubtless would be liable for injuries ' to his employes resulting from defects in the scaffolding which reasonable care and prudence would have obviated. But if his undertaking is merely to supply the materials out of which the employes erecting the building may put up their own scaffolding, his duty would only extend to the use of reasonable care and prudence in the choice of materials and the selection of his servants. We had occasion to consider this question in Holton v. Daly, 4 Bradwell, 25, where an instruction identical in principle with those given in this case, was held to be erroneous. The reasoning adopted in the opinion in that case is equally applicable here.
It may also be observed that in the modification of the defendants’ third instruction, there is an attempted definition of “ fellow servants in the same line of employment ” with the deceased, which in our opinion is inaccurate, and may have had a tendency to mislead the jury. They are there defined to be “ those persons who were, at the time of the accident, engaged in doing some part of the work of which the deceased was engaged in doing some other part” The particular work in which the deceased was engaged, and of which he was doing a part, at the time of - the accident, was that of hoisting the barrels of sawdust to the upper part of the ice house. The foreman, who had already erected the appliance by means of which the work was being done, was not engaged in doing any part of that particular work, but was some little distance away, standing at his nail-keg. The jury may have understood the instruction as limiting them to the consideration of the mere work of hoisting the barrels, and to the persons who, at the instant of the accident, were doing parts of that work. This was tantamount to holding, as matter of law, that erecting the bearing on which to hang the pulley, and using the pulley in the defendants’ business were not, and could not, belong to the same line of employment.
For the errors in the instructions, the judgment will be reversed, and the cause remanded.
Judgment reversed.