ascertain his condition, and the doctrine of imputed or implied notice has no application to such a case.

"If a passenger voluntarily becomes intoxicated, the law does not impose the duty on the common carrier to place a guard over such passenger to prevent him from injuring himself in a place of danger. If a passenger, however, while in such condition as averred, does place himself in a place of peril, then before the company can be held liable if an injury results therefrom it must be proven that the agents or servants operating the train knew that fact-not that they should have known it because of any duty by law imposed on the company to watch such passenger-but the actual fact of such perilous position must be brought home to 78 the knowledge of the servants operating such train. The company was not bound to have its servants at the rear platform of the coach on which Carr was sitting at Mulkeytown for the reason that it owed him no such duty, as he had not indicated any intention of alighting there, and in fact he did not intend to do so": St. Louis etc. R. Co. v. Carr, 47 Ill. App. 353.

"We think, however, if a passenger is in need of special assistance, either from sickness or other misfortune, and this fact is known to the employés of the carrier, it is their duty to render it; but they are not required to anticipate such wants or needs. The trial court therefore erred by inserting into the instructions given to the jury the idea that it was incumbent upon the employés of the appellant to observe the condition of the passengers in order to see whether or not they needed assistance. This thought is embraced in the use of the expression 'or was apparent' in the instructions after stating the duty of the employés of appellant if appellee's health was known to them. As said before, if the employés of the railroad knew that the appellee was in feeble health, and needed assistance, it was their duty to render her such reasonable help as lay in their power in order that she might alight from the car in safety. But they owed her no duty of observation to ascertain her condition, and therefore the expression or was apparent' should have been omitted": Illinois Cent. R. Co. v. Cruse, 29 Ky. Law Rep. 914, 96 S. W. 821. See, also, Strand v. Chicago etc. R. Co., 67 Mich. 380, 34 N. W. 712.

Other errors are assigned in the giving and refusing of instructions, but we think these questions are fully covered by our former opinion. As there stated, the issues in this case are: First, was the deceased intoxicated? Second, did

the servants of the appellant have actual notice of his condition? Third, was the place where the deceased was permitted to alight from the car a reasonably safe place to land a person in his condition? And fourth, was the act of the appellant or its servants in suffering and permitting the deceased to leave the car at that particular time and place and in his then condition the natural and proximate cause of his death? If the jury 79 should find all of these issues in favor of the respondents they would be entitled to a verdict, and the mere fact that the deceased fell into the lake from the platform or trestle by reason of his intoxication-if he did so fall-would not of itself preclude a recovery, as the appellant was bound to anticipate such negligence on his part. Such we believe to be the law as laid down in the former opinion, and that opinion is the law of this case.

The judgment of the court below is reversed, and the cause is remanded for a new trial.

Fullerton, Dunbar, Crow and Mount, JJ., concur.

A Railway Company is not Required to accept as a passenger a person who is incapable of taking care of himself by reason of intoxication; but if it does accept him as a passenger it owes him the duty of exercising such care as may be reasonably necessary for his safety: See the note to Illinois Cent. R. R. Co. v. Smith, 107 Am. St. Rep. 299; Price v. St. Louis etc. Ry. Co., 75 Ark. 479, 112 Am. St. Rep. 79; Benson v. Tacoma Ry. & Power Co., 51 Wash. 216, post, p. 1096. As to the liability of the railway company for the death of an intoxicated passenger after he has been put off the train, see Haug v. Great Northern Ry. Co., 8 N. D. 23, 73 Am. St. Rep. 727; Cincinnati etc. Ry. Co. v. Marrs, 119 Ky. 954, 115 Am. St. Rep. 289.

ANUSTASAKAS v. INTERNATIONAL CONTRACT COM

PANY.

[51 Wash. 119, 98 Pac. 93.]

GUARDIAN AD LITEM-Failure to Appoint.-The fact that a guardian ad litem is not properly appointed for minors in an action brought by them and their mother for wrongful death does not authorize a nonsuit if the complaint states a cause of action in her favor. (p. 1090.)

1093.)

ALIENS. The Plea of Alienage is not favored in law. (p.

DEATH.-A Nonresident Alien Widow may Maintain an Action in Washington for the wrongful death in that state of her husband. (p. 1093.)

Am. St. Rep., Vol. 130-69

Roberts & Hulbert and Ballinger, Ronald, Battle & Ten nant, for the appellant.

Edward Brady, for the respondents.

119 RUDKIN, J. This action was instituted by the widow and minor children of G. K. Anustasakas, deceased, to recover. damages for his death caused, as is alleged, by the neglect of the defendant. At the close of the plaintiffs' testimony the court granted a nonsuit, but afterward set aside the nonsuit and granted a new trial. From the latter order this appeal is taken.

There is nothing in the record to indicate the particular grounds upon which either motion was granted, but in support of the nonsuit the appellant contends: (1) That the guardian ad litem for the minor respondents was not properly appointed; (2) that there was no proof of negligence on the 120 part of the appellant; (3) that the deceased assumed the risk; (4) that the deceased was guilty of contributory negligence; and (5) that nonresident aliens have no right of action to recover damages for death by wrongful act or neglect under our statute.

The fact that the guardian ad litem was not properly appointed for the minors, if such be the fact, would not authorize a nonsuit, as the complaint stated a cause of action in favor of the widow at least, unless her alienage would defeat a recovery, a question we will discuss later.

The next three questions may be considered together. It appears from the testimony that the deceased met his death while in the employ of the appellant, and that death resulted from injuries received from a cave-in, in a ditch in which he was working. In view of a retrial of the action, we deem it unnecessary to discuss the facts further than to say that under the testimony the questions of negligence, contributory negligence, and assumption of risk, were so clearly for the jury that we are constrained to believe that the nonsuit must have been granted on other grounds: Christianson v. Pacific Bridge Co., 27 Wash. 582, 68 Pac. 191, and cases there cited; Hilgar v. Walla Walla, 50 Wash. 470, 97 Pac. 498, 19 L. R. A., N. S., 367.

The remaining question is, Can a nonresident alien maintain an action to recover damages for death by wrongful act or neglect under our statute? The courts of Pennsylvania, Wisconsin, and Indiana have decided this question in the negative: Deni v. Pennsylvania R. Co., 181 Pa. 525, 59 Am. St. Rep. 676, 37 Atl. 558; McMillan v. Spider Lake Sawmill

& Lumber Co., 115 Wis. 332, 95 Am. St. Rep. 947, 91 N. W. 979, 60 L. R. A. 589; Cleveland etc. R. Co. v. Osgood, 36 Ind. App. 34, 73 N. E. 285.

The federal courts sitting in Pennsylvania, from necessity, follow the decisions of the local courts: Zeiger v. Pennsylvania R. Co., 151 Fed. 348, affirmed in 158 Fed. 809, 86 C. C. A. 69. In Brannigan v. Union Gold Min. Co., 93 Fed. 164, the United States circuit court for Colorado followed the Pennsylvania 121 decisions in construing the Colorado statute, and we are informed that the United States circuit court for this state, in a case not reported, followed the Wisconsin decision in construing our statute. Woodward v. Michigan etc. R. Co., 10 Ohio St. 121, Texas & Pac. R. Co. v. Richards, 68 Tex. 375, 4 S. W. 627, St. Louis etc. R. Co. v. McCormick, 71 Tex. 660, 9 S. W. 540, 1 L. R. A. 804, De Harn v. Mexican Nat. R. Co., 86 Tex. 68, 23 S. W. 381, and Mexican Nat. R. Co. v. Jackson, 89 Tex. 107, 59 Am. St. Rep. 28, 33 S. W. 857, 31 L. R. A. 276, cited by appellant from the courts of Ohio and Texas, are not in point here, as they simply hold that the statutory right of action will not be enforced by the courts of another state. However, this rule is by no means universal: Stewart v. Baltimore & O. R. Co., 168 U. S. 445, 18 Sup. Ct. Rep. 105, 42 L. ed. 537.

On the other hand, the courts of Massachusetts, New York, Virginia, Illinois, Missouri, Georgia, Alabama, and Tennessee hold that alienage or non residence of the widow or minor children is no defense to actions of this kind: Mulhall v. Fallon, 176 Mass. 266, 79 Am. St. Rep. 309, 57 N. E. 386, 54 L. R. A. 934; Tanas v. Municipal Gas Co., 88 App. Div. 251, 84 N. Y. Supp. 1053; Pocahontas Collieries Co. v. Rukaes, 104 Va. 278, 51 S. E. 449; Kellyville Coal Co. v. Petraytis, 195 Ill. 215, 88 Am. St. Rep. 191, 63 N. E. 94; Philpott v. Missouri Pac. R. Co., 85 Mo. 164; Augusta R. Co. v. Glover, 92 Ga. 132, 18 S. E. 406; Luke v. Calhoun Co., 52 Ala. 115; Chesapeake etc. R. Co. v. Higgins, 85 Tenn. 620, 4 S. W. 47.

In speaking of the Pennsylvania decisions in Vetaloro v. Perkins, 101 Fed. 393, Colt, J., said: "The decisions of the court in both these cases rest largely upon the proposition that no case can be found in which Lord Campbell's act has been extended to nonresident aliens, and that the act has no extraterritorial force. This is hardly in accordance with the fact. A more correct statement, it seems 122 to me, would be to say that the English courts have never questioned the right of a nonresident alien to maintain an action in the common-law courts under Lord Campbell's act."

In Mulhall v. Fallon, 176 Mass. 266, 79 Am. St. Rep. 309, 57 N. E. 386, 54 L. R. A. 934, Holmes, C. J., said: "The question then becomes one of construction, and of construetion upon a point upon which it is probable that the legis lature never thought when they passed the act. In view of the decisions to which we have referred, we lay on one side as too absolute some expressions which are to be found in the English cases, and some of which are cited in Adam v. British & Foreign Steamship Co., 79 L. T., N. S., 31. Our different relation to our neighbors politically and territorially is a sufficient ground for a more liberal rule, at least as to inhabitants of the United States.

"One or two cases may be found where a general grant of a right of action for wrongfully causing death has been held to confer no rights upon nonresident aliens: Deni v. Pennsylvania R. R., 181 Pa. 525, 59 Am. St. Rep. 676, 37 Atl. 558; Brannigan v. Union Gold Min. Co., 93 Fed. 164. But compare Knight v. West Jersey R. R., 108 Pa. 250, 56 Am. Rep. 201. On the other hand, in several states the right of the nonresident to sue is treated as too clear to need extended argument: Philpott v. Missouri Pacific R. R., 85 Mo. 164; Chesapeake etc. R. R. v. Higgins, 85 Tenn. 620, 4 S. W. 47; Augusta Ry. v. Glover, 92 Ga. 132, 18 S. E. 406; Luke v. Calhoun County, 52 Ala. 115.

It is

"Under the statute the action for death without conscious suffering takes the place of an action that would have been brought by the employé himself if the harm had been less, and by his representative if it had been equally great, but the death had been attended with pain: Stats. 1887, c. 270, sec. 1, cl. 3. In the latter case there would be no exception to the right of recovery if the next of kin were nonresident aliens. It would be strange to read an exception into general words when the wrong is so nearly identical, and when the different provisions are part of one scheme. In all cases the statute has the interest of the employés in mind. on their account that an action is given to the widow or next of kin. Whether the action is to be brought by them or by the administrator, the sum to be recovered is to be assessed with 123 reference to the degree of culpability of the employer or negligent person. In other words, it is primarily a penalty for the protection of the life of a workman in this state. We cannot think that workmen were intended to be less protected if their mothers happen to live abroad, or less protected against sudden than against lingering death. In view of the very large amount of foreign labor employed in