57 Ind. App. 202 | Ind. Ct. App. | 1914
The amended complaint in this ease alleges in substance the following facts: Appellee is a corporation organized under the laws of Indiana, and for the past eight years has been engaged in operating lines of railroad in Indiana from Indianapolis to Fort Wayne by way of Anderson, Muneie and Marion, and from Indianapolis to Logansport, Peru and Fort Wayne by way of Noblesville, Tipton and Kokomo, in all about 200 miles. Its roads are built on the usual grade and of the usual gauge, ties and rails that are used in the construction of railroads where the motive power used is steam. The lines of road are not built on the public highways, but are constructed over rights of way owned by appellee, and through private property and farms, without reference to highways. Appellee has passenger depots at the main towns along its lines, where it maintains ticket offices. It also has freight and express depots at important points, receives freight and express matter and ships same. Appellee has regular, scheduled, through trains that are very heavy and of great carrying capacity, accommodating one hundred or more passengers, which are scheduled to and do run at a speed of from twenty-five to seventy-five miles per hour. Each train consists of one or more cars, and appellee has carried over its lines for the past eight years large freight and express cars loaded with merchandise, live stock, gravel, broken stone and drainage tile. The trains carrying broken stone, gravel and tile are composed of from one to six or seven cars. All passenger and freight traffic is carried on by appellee for revenue and it operates its system as a commercial railroad. The motive power used by appellee is electricity, produced at its power station at Anderson, Indiana. In order to keep its power system in repair, and efficient, appellee had a line car and a crew of
Appellee’s demurrer to the complaint was sustained, and judgment rendered that appellant take nothing and appellee recover costs.
The question presented and contended for by appellant in his brief is that the Employer’s Liability Act, §8017 Burns 1914, Acts 1893 p. 294, applies to employes of interurban railroads, and that the complaint states a cause of action within its provisions. That question alone is considered, although many alleged infirmities in the complaint are presented by appellee’s counsel, even though it might be held that the Employer’s Liability Act, supra, has application. These we need not consider in view of the conclusion we have reached.
The history of the legislation authorizing the construction of steam, railroads, as well as street and interurban railroads is proper to be considered upon the question of the application of the Employer’s Liability Act presented, and the intention of the legislature with respect thereto. 1 R. S. 1852 p. 409 contains an act for the “incorporation of railroad companies”. Later and while said act was in force, an act was passed for the “incorporation of street railroad companies.” Acts 1861 (s. s.) p. 75, §§4143-4152 R. S. 1881, which as amended (Acts 1897 p. 163, Acts 1897 p. 201, Acts 1899 p. 230, Acts 1901 p. 119) now appears as §§5450-5458 Bums 1901. Interurban railroad companies are organized under this act as later amended and extended. In 1865 (Acts 1865 p. 63, 2 R. S. 1876 p. 755) it was provided that any street railway company “operating such road within any of the incorporated towns or cities of the State, and desiring to extend their road beyond such town or city limits, on any State or county road, or other public highway, may do so after procuring the consent of the Board of County Commissioners of such county.” By an act of the legislature approved March 29, 1879 (Acts 1879 p. 175, §4, §4155
This law remained in force in so far as it affects the question now involved until 1891 (Acts 1891 p. 109, §5454 Burns 1894), when an act was passed providing that every “company organized under the provisions of this act and owning and operating a street railroad within any city having a population of one hundred thousand * * * shall permit the use of its track or tracks by any incorporated suburban passenger railway company from the corporate limits of such city or town to some central point in such city or town” on the payment of compensation, etc. The provisions of this act are substantially repeated in the act approved March 2, 1899 (Acts 1899 p. 230, §5454 Burns 1901), in which, however, the entering company was called an interurban company instead of a suburban company, the privileges being conferred in cities of from 35,000 to 49,000 population.
At the same session of the General Assembly another act was passed covering the subject-matter of street railroads in cities the population of which exceeded 100,000 (Acts 1899 p. 260, §§5458c, 5458d Burns 1901), containing provisions similar to those contained in the act of March 5, 1891. In this act (§5458d, supra) the entering company is referred
In 1903 several important statutes were enacted, including the following: An act enlarging somewhat the powers conferred by the Act of March 11, 1901. Acts 1903 p. 92, §5675 Burns 1914. An act amending the consolidation act of 1901. Acts 1903 p. 181, §5690 Burns 1914. An act providing for drinking water and water closets on interurban cars running more than eighteen miles. Acts 1903 p. 250, §5684e Burns 1914. An act compelling the fencing of interurban and suburban railways. Acts 1903 p. 426, §5707 Burns 1914. An act providing for the crossing by “any street railroad company” with its “street railroad, interurban street railroad or suburban street railroad” of the tracks and right of way in this State of any railroad company. Acts 1903 p. 125, §5666 Burns 1914. This crossing act gave to steam railroad companies no reciprocal right to cross interur
The word “railroad” was extended in the various railroad subsidy acts to include “every kind of street railroad, suburban street railroad or interurban street railroad”. Acts 1903 p. 233, §5465 Burns 1908. An act was also passed authorizing any company organized under the several railroad laws, but operating or intending to operate as an interurban electric or street railway, to convert itself into an interurban or street railway with the unanimous consent of its stockholders, and on payment of the regular incorporation fees. Acts 1903 p. 271, §5219 Burns 1914. In 1905 provision was made regarding the manner in which “any interurban or street railway company” may obtain authority to build or extend its line on a county highway. Acts 1905 p. 521, §36, §7684 Burns 1914. The Railroad Commission Act also expressly provides that it shall not apply to street or interurban railroads except in certain specified respects. Acts 1907 p. 454, §5551 Burns 1914.
In 1907 several acts were passed relating to street railroads. Among them were the following: An act to compel any company operating “a line of interurban street rail
It is clear that the legislature by its enactments since 1861 has recognized a distinction between steam railroads and interurban railroads. In the first instance, although the steam railroad act was in full force and effect, it was deemed necessary to have an act enabling the incorporation of street railroad companies. Later, when the growth and development of business required the extension of street railroads until they became interurban railroads, legislative authority was deemed necessary, although the act for the incorporation of steam railroads was in full force and effect. The line of distinction has been very clearly kept in view throughout all the years of the existence of interurban railroads. Every privilege conferred, and every duty imposed on interurban railroads has been by legislative enactment, although in most instances kindred privileges and kindred duties had prior thereto been conferred on steam railroads. In every act of the legislature where it is intended that the privilege extended, or duties imposed upon steam railroads shall apply alike to interurban or street railroads, it has been stated, so that it is clear that the legislature had in mind at all times the inherent differences which exist, and that therefore separate and distinct legislation was necessary.
The distinction between steam railroads and interurban railroads thus recognized and followed by legislative enactment as shown herein has been uniformly recognized by the courts of this State where the question has been raised. An interurban railroad has been held to be entitled to construct its lines on public streets and highways across steam railroad tracks without obtaining the consent of, or paying compensation to the company owning such tracks. Chicago, etc., R. Co. v. Whiting, etc., R. Co. (1894), 139 Ind. 297, 38 N. E. 604, 47 Am. St. 264, 26 L. R. A. 337; Chicago, etc., R. Co. v. Hammond, etc., Electric R. Co. (1898), 151 Ind. 577,
An act authorizing interurban companies to condemn rights of way have been repeatedly upheld and enforced. Union Traction Co. v. Basey (1905), 164 Ind. 249, 73 N. E. 263; Consolidated Traction Co. v. Jordan (1905), 36 Ind. App. 156, 75 N. E. 301; Indianapolis, etc., Traction Co. v. Larrabee (1907), 168 Ind. 237, 80 N. E. 413, 10 L. R. A. (N. S.) 1003, 11 Ann. Cas. 695; Fort Wayne, etc., Traction Co. v. Fort Wayne, etc., R. Co. (1908), 170 Ind. 49, 83 N. E. 665,
The distinction between steam railroads and interurban railroads is clearly made in the case of Vandalia R. Co. v. Lafayette, etc., Traction Co. (1911), 175 Ind. 391, 94 N. E. 483, 485, where the question was directly raised. The steam railroad contended that the legislature had acted arbitrarily in conferring power upon interurban railroads to acquire rights of way over its tracks by condemnation. It was insisted that the interurban railroads had been given rights not conferred upon steam railroads, and therefore there was an unreasonable grant of power. In response to this contention the court says at page 398: “Such an intent is not manifest, and can not be presumed to aid appellant’s assault upon the statute in question. Other physical differences than these noted by appellant, and considerations of public interest, mark a line between steam railroads and interurban railroads, and the legislature at the time of considering the enactment, of the sections granting the right of the latter class of companies to cross the tracks of the former, must be presumed to have intended to adjust their relations in that respect with a view to promoting the public welfare, consideration of which is the primary authority in any case for delegating the sovereign power of eminent domain. That there is such an inherent difference between steam railroads on the one nand and those named in §5666, supra, and designated therein as ‘street railroads, interurban street railroads or suburban street railroads’, on the other, as justifies placing them in different classes for certain legislative purposes, is conceded by appellant to be settled. Chicago, etc., R. Co. v. Railroad Com., etc. (1910), 173 Ind. 469 [87 N. E. 1030, 90 N. E. 1011], and cases cited and reviewed.”
In the case of Indianapolis, etc., Transit Co. v. Foreman (1904), 162 Ind. 85, 66 N. E. 669, it was held that the complaint did not state a cause of action under the Employer’s
This court in passing upon the question directly, has held that subdivision 4 of the Employer’s Liability Act, supra, has no application to interurban railroads. In the case of Indianapolis, etc., Transit Co. v. Andis (1904), 33 Ind. App. 625, 72 N. E. 145, the question is considered and determined by the court. In that case it was said: “Moreover, we must assume that when the legislature passed the employers’ liability act of March 4, 1893, it was dealing with and acting upon existing facts within its knowledge. The mischief felt and intended to be remedied was then certainly known. It can not be assumed that the statute was passed before there was an apparent necessity for its enactment. When that act was passed, aside from street railroads in cities, steam railroads were the only railroads in operation generally, and the dangers arising from the operation of railroads were to a very large extent only such dangers as arose from the operation of steam roads. At that time there were few, if any, electric roads, as now known, in existence in this State. The reasons for changing the law relating to master and servant, as that act changed it, were at that time to be found in the many dangers to which the numerous persons engaged in operating steam railroads were exposed, and the many different departments of labor in which the workmen were employed. It is quite true that an electric railroad, as we now know such roads, might be called a railroad; but, as said in Bridge Proprietors v. Hoboken Co. [1863], 1 Wall. 116, 17 L. Ed. 571: 'It does not follow, that when a newly invented or discovered thing is called by some familiar word, which comes nearest to expressing the new idea, that the thing so styled is really the thing formerly meant by the familiar words. * * The track on which the steam cars now transport the traveler or his property is called a road, sometimes, perhaps generally, a railroad. The
In view of legislative enactments as well as the decided cases which have been cited, we are of the opinion that the language of the Employer’s Liability Act as it now stands, was not intended in the first instance and is not now broad enough to include employes of interurban railroads within its purview. The demurrer to the complaint was therefore rightly sustained. Judgment affirmed.
Note. — Reported in 105 N. E. 537. As to the rules for the construction of statutes, see 12 Am. St. 820. For a discussion of “street railways” distinguished from commercial railroads, see 4 Ann. Cas. 449; Ann. Cas. 1913 C 579. See, also, under (1) 36 Cyc. 1128, 1137, 1147, 1152; (2) 26 Cyc. 1370.