Rudiger v. Chicago, St. P., M. & O. R. Co. (N.S.) dial one, and should be construed, not strictly, but so as to advance the remedy, and suppress the supposed wrong and injustice existing under the former condition of the law. The legislature doubtless had in view the result ensuing from such wrongful act, neglect, or default, and, if it had been intended that the action should not be maintained when caused by a wrongful neglect or default occurring in this state if the consequence or death occurred outside of the state, it seems reasonable to suppose that they would have expressly so provided. In many cases arising under similar acts, it has been held that the action could not be maintained if the fatal injury occurred outside of the jurisdiction of the state in which the statute relied on was enacted; that, if it appears that the injury occurred outside of the state, and it did not appear that the law of such state gave such a remedy, there could be no recovery. 1 Shear. & R. Neg. § 131; Cooley, Torts, § 266, and cases in notes; Whitford v. Railroad Co., 23 N. Y. 465; Debevoise v. Railroad Co., 98 N. Y. 377. But in New York it is now settled that the action may be maintained in a state other than where the injury occurred, if the statutes of such state conferred substantially the same remedy as the statutes of the latter state. And in Dennick v. Railroad Co., 103 U. S. 11, it was held that the right of action, under such a statute, in the absence of contrary provisions, is transitory, and may be asserted in any circuit court of the United States having jurisdiction of the subject-matter and the parties; and that where A. died in New Jersey, from injuries received in that state, for which, if death had not ensued, the party inflicting them would have been liable for damages, and the statute of that state provided that in case of death such action might be brought against the party by the personal representative of the deceased, a recovery by an administratrix of A., appointed in New York, was sustained; the action having been commenced in the state court of that state, and removed to the circuit court of the United States by reason of the diverse citizenship of the parties. In that case the stat R. Cas. Louisville & N. R. Co. v. Bernard. ute law of both states and their public policy were substantially identical. The object and effect of the proviso to our statute was to render the action local, and limit it to cases where death was caused by acts committed or occurring within the state, without regard to whether the death occurred within or without it. The foundation of the action is obviously the wrongful or negligent act or default which caused the injury, and which is in contravention of the law of the state. This, as we have said, is the substantive ground of action. De Ham v. Railroad Co. (Tex. Sup.) 23 S. W. Rep. 381; Hegerich v. Keddie, 99 N. Y. 267; McCarty v. Railroad Co., 18 Kan. 46; Needham v. Railroad Co., 38 Vt. 294. Reliance was placed upon a casual remark by FIELD, J., in Railroad Co. v. Whitton, 13 Wall. 270, 285, that it is undoubtedly true the right of action exists only by virtue of the statute, and only in cases where the death was caused within the state. The liability of the party, whether a natural or artificial person, extends only to cases where, from certain causes, death ensues within the limits of the state." The question we have been considering was not involved in that case, and the remark was obiter. For the reasons stated, we cannot allow it to control our judgment as to the proper construction of the statute. The order overruling the demurrer is correct. The order of the circuit court is affirmed. 66 (Court of Appeals of Kentucky, Nov. 19, 1896.) Injuries to Trespasser.*-Recovery cannot be had by a trespasser for injuries received in an attempt to board a moving freight train, because a brakeman, in preventing him, without undue violence, from doing so was the cause of his injuries. *See note at end of case. Louisville & N. R. Co. v. Bernard. (N.S.) APPEAL from Simpson county circuit court. Reversed. J. A. Mitchell, H. W. Bruce and Wm. Lindsay, for appellant. Goodnight & Roark, for appellee. LEWIS, J. Appellee, accompanied by eight or ten boys and young men, he being then about full grown, went from Franklin, where they resided, to Woodman, a town about eight miles distant on line of appellant's road, where there was a colt show and picnic. But, failing to return on the afternoon passenger train, they, about nightfall, walked towards Franklin to a water tank one and a half miles from Woodman, in order to ride upon a freight train, arrival of which they awaited three hours. As that train, after taking water, was standing appellee attempted to board a car, upon which was an oil tank, but was prevented by one of the brakemen; and, either in his effort to get down, or being shoved by the brakeman, he fell, and a car wheel ran onto him, partly tearing the flesh from one of his heels, and otherwise so injured him that he was confined at his home, unable to do work for several months, besides suffering considerable pain. According to his statement, which was corroborated by two or three of his companions, he had placed one foot upon the box of a car wheel, the other upon an iron bar under the car, and grasped with both hands an iron rod or rail, which extended along the side of the oil-tank car, in the effort, and was about to spring upon top of it, when the brakeman, without speaking to him, loosened his grasp upon the rod and shoved him down. The brakeman, however, testifies he merely put his hands upon appellee's arms, and forbade his getting on the car, when he desisted. That the purpose of appellee and his companions in going to the water tank was to get a free ride back to Franklin, with or without permission of the conductor in charge of the freight train, is plain. No one of them spoke to the conductor, or was seen by him, for he was in the caboose at the R. Cas. Louisville & N. R. Co. v. Bernard. rear end of the train which was composed of 25 or 30 cars, and, therefore, 200 or 300 yards long. Besides, though it was stationary five or six minutes while taking water, neither appellee nor any of his companions attempted to get aboard the train until it was about to start, or was actually starting. It is true he, while admitting on cross-examination, that he did not. have permission of the conductor to ride on the train, stated in a general way he got permission from the brakeman. But that statement is utterly inconsistent with his previous one that nothing was said by either himself or the brakeman at the time he was shoved or made to get off the box of the car wheel. Besides, he knew that, if any other brakeman had given such permission, it was in violation of the rules of the company, and in disregard of authority of the conductor who had charge of the train; for, if he and his companions had intended to pay their fare, they would have gone to the caboose, where the conductor was, and whom they seemed to carefully avoid. The evidence is satisfactory to us that, when appellant attempted to get upon the oil-tank car, he was, in law and fact, as the lower court in instructions to the jury correctly assumed him to be, a trespasser, and as such he must be treated by this court, in determining the relative rights and duties of the parties to this litigation. The lower court, upon the state of facts as we have substantially stated them, instructed the jury to find for plaintiff in the action if they believed defendant, through its agents and servants, in charge of and operating the train of cars, by negligence, threw or evicted the plaintiff therefrom while it was in motion, and he was injured thereby, unless they should further believe plaintiff himself was guilty of negligence, which contributed to the injury to such an extent as that, but for his own negligence, the injuries would not have occurred. The jury was further instructed they might, in addition to compensatory damages, find punitive damages, in case they believed the plaintiff was injured by gross negligence of defendant, acting through any Louisville & N. R. Co. v. Bernard. (N. S.) servant in charge of or operating its train. There is nothing in this case tending to show the brakeman, or other servant of appellant, was guilty of gross negligence, and consequently the jury was not authorized to, nor ought they to have been instructed they might, find punitive damages. Nor do we think the facts in this case authorized submission for consideration of the jury of any other question than is contained in the folfowing instruction, asked for appellant, but refused: "The court instructs the jury that the plaintiff, Bernard, in attempting to ride upon defendant's freight train, was a trespasser; and if the jury believe, from the evidence, that, at the time the plaintiff was hurt, the brakeman used no more force than was necessary to prevent the plaintiff from getting on said train, then, in such event, the jury must find for defendant. It is undoubtedly a first and well-established rule, heretofore recognized by this court, that, even though a person be a trespasser upon a railroad train, the employees of the company are not justified in forcibly expelling him therefrom while the train is in motion, or in using undue or brutal means for the expulsion. The reason for that rule is that the ordinary result of expelling a person from a train while in motion is bodily injury to him, danger of which is very little or very great according to the speed at which it is running. But in this case the trespasser had not actually boarded the train, clandestinely or otherwise, but was simply attempting to get upon one of the cars; and it is not unfair to assume that, if the motion of the train had so recently begun, or was so slow as that appellee could safely climb upon it, which he says he would have done if not prevented, the brakemen was not guilty of any degree of negligence in loosening his grasp on the iron rod, whereby he was compelled to desist, or even in shoving him off the hub of the car axle, unless in doing so, he used more force than was necessary, or did it in a brutal manner. For all the witnesses agree the train had moved but a short distance, and none of them put the rate of speed at more than four or five miles an |