127 Ky. 276 | Ky. Ct. App. | 1907
Lead Opinion
Affirming.
Spencer Melton was a carpenter in the service of the Louisville & Nashville Railroad Company, and on March 2, 1905, was engaged in building a coal chute on the railroad tracks near Howell, Ind., working under a foreman named Shrode. In building the coal chute it became necessary to set up some bents, weighing about 1,200 pounds each, and 22 feet long. To raise up the bents they used a pulley, block, and tackle. The bent was raised by the hands pulling on the rope. The pulley was fastened to a square beam by an iron chain similar to those used for locking a wagon. The bent was too heavy for the men to carry it up at once. They would surge upon the rope, and thus lift it a little, and then, after catching their breath, would surge again. To prevent the bent from going back when thus lifted up, Melton, by the direction of the foreman, got a piece of timber and propped the bent, to hold it at the height to which it had been raised when the men made a surge. The foreman had a similar piece of timber and propped the bent on the opposite side from Melton. While they were thus engaged in raising the bent, the chain, which held the pulley broke, the bent fell, catching Melton under it, and smashing him down upon other timbers, fracturing one leg at the knee, the other at the hip-, breaking the ribs-on one side, and also breaking his back. By reason of his injuries he was paralized from his waist down. The bowels and bladder have to be moved with an instrument. His virility is destroyed. He has no feeling in the right leg, or use of it, and the left is but little better. He was then
The action was brought under a statute of Indiana, which, so far as material, is as follows:
“An act regulating liability of railroads-and other corporations, except municipal, for personal injury to persons employed by them, fixing the rules of evidence which shall govern in such cases, and providing that the decisions or statutes of other states shall not be pleaded or proven as a defense in this state; provided further, that its provisions shall not apply to any injuries sustained -before it takes effect, nor in any manner any suits or legal proceedings pending at.the time it takes effect, and declaring an emergency.
“Approved March 4, 1893.
Section 1. Be it enacted by the General Assembly of the state of Indiana, that every railroad or other corporation except municipal operating in this state, shall be liable in damages for personal injury suffered by any employe while in its service, the employe so injured being in the exercise of due care and diligence, in the following cases:
“First: When such injury is suffered by reason of any defect in the condition of ways, works, plants,*285 tools and machinery connected with or in nse in the business of such corporation, when such defect was the result of negligence on the part of the corporation, or some person entrusted by it with the duty of keeping such way, works, plant, tools or machinery in proper condition.
“Second: "Where such injury resulted from the negligence of any person in the service of such corporation, to whose order or direction the injured employe at the time of the injury was bound to conform and did conform.
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“See. 4. In case any railroad corporation which owns or operates a line extending into or through the state of Indiana and into or through another or other states, and a person in the employ of such corporation, a citizen of this state, shall be injured as provided in this act, in any other state where such railroad is owned or operated, and a suit for such injury shall be brought in any of the courts of this state, it shall not be competent for such corporation to plead or prove the decisions or statutes of the state where such persons shall have been injured as a defense to the action brought in this state.”
Laws 1893, p. .294, c. 130.
It is insisted for the railroad company that the act is unconstitutional in this: that it applies to corporations and does not apply to individuals whose employes may be injured. The Supreme Court of Indiana has construed the statute only to apply to railroad companies. It is held that it applies to all persons, whether natural or artificial, operating a railroad, and that it does not apply to any other business. The United States Supreme Court has affirmed the constitutionality of the statute, basing
It is earnestly insisted that, while the act is constitutional under these rulings as to those operating a railroad, it cannot be held cons-titutionál as to a carpenter; that the State may not establish a rule for carpenters in the service of a railroad, and another rule for carpenters in the service of other people. We are unable to see the force of this distinction. A railroad cannot be run without bridges. Bridges cannot be build without carpenters. The work of' a bridge carpenter on a railroad is perhaps no less perilous than the work of an operative on one of its trains-. Coal tipples are no less essential to the operating of a railroad than bridges, because the engines cannot be operated without coal. The construction of a coal tipple is therefore essential to the operating of a railroad. As has-been well said, the Legislature cannot well provide for all subjects in one act. Legislation must necessarily be done in detail, and an act regulating railroads violates no constitutional provision because it is made to apply only to railroads'. Indianapols, etc., R. R. Co. v. Kane (Ind.) 80 N. E. 841; Schoolcrafts Adm’r v. L. & N. R. R. Co., 92 Ky. 233, 13 Ky. Law Rep. 517, 17 S. W. 567, 14 L. R. A. 579; Chicago, etc., R. R. Co. v. Stahley, 62 Fed. 363, 11 C. C. A. 88; Callahan v. Railroad Co., 170 Mo. 473, 71 S. W.
The defendant also insisted that the act cannot he enforced in this State, because it provides that the decisions and statutes of other states shall not be read or considered in the courts of Indiana. It is said that the statutes of Indiana are only considered in this State by comity, and that it will not be enforced in this State when the courts of Indiana do not treat the Kentucky statutes and decisions with like comity. The section in question has been held unconstitutional by the courts of Indiana. Baltimore & Ohio S. W. R. Co. v. Reed, 158 Ind. 25, 62 N. E. 488, 56 L. R. A. 468, 92 Am. St. Rep. 293. But, aside from this, when the plaintiff wa;s injured at Howell, Ind., a cause of action accrued to him; and this cause of action which there accrued to him he is seeking to enforce by this action. The rights of the parties must depend on the facts as they then existed. The cause of action which Melton then had the courts of Kentucky will enforce. We have no doubt the courts of Indiana do the same as to a cause of action accruing here. But, if they did not, the fact that they did not administer justice would be no reason why this court should deny justice to a litigant here. No reason of public policy exists why the courts of this State should be closed to a citizen of this State seeking to enforce a meritorious cause of action.
The proof on the trial on behalf of the plaintiff showed that the chain was not the proper one for the work in which it was used, that it was supplied by the foreman, and that he had ordered the men to use it. The proof also showed that the chain was a de
The court, among other things, instructed the jury as follows: “(1) The court instructs the jury that
These instructions are in accord with the statute.
' It is earnestly insisted that the verdict is palpably excessive and the result of passion and prejudice on the part of the jury. In a case like that before us, where a young and healthy man has been made a complete- wreck, so that life must be to him a burden, a living death, a much larger verdict may be sustained than in a case where the person is killed. The plaintiff was capable of earning something like $3 a day. He was in the morning of life, and might reasonably expect to increase his earning capacity as he rose in his business. But, in view of his expectation of life, at what he had then been making, the verdict is not so excessive as to strike one at first blush as the result of passion and prejudice, when we consider the suffering that he endured and his helpless condition at the trial, when medical skill had done all that it could do for him. In other states a number of verdicts much larger have been sustained
There was no substantial error in the admission or rejection of evidence The persons admitted as experts were qualified' to testify as such. The weight of their evidence was for the jury. On the whole record, we see no error to the prejudice of defendant’s substantial rights.
Judgment affirmed.
Rehearing
On Rehearing
We are unable to see that the Indiana statute as construed in the opinion is in violation of the fourteenth amendment to the Constitution of the United ' States, or that any right guaranteed thereby is denied by the decision in this case. We endeavored to show this in the original opinion. We are also unable to see that the conclusion we reached is not in keepng with the construction of the statute by the Supreme Court of Indiana. Our conclusion is sustained by the following cases in other states' under similar statutes: Georgia, etc., R. R. Co. v. Miller, 90 Ga. 571, 16 S. E. 939; Railroad Co. v. Koehler, 37 Kan. 463, 15 Pac. 567; Georgia, etc., R. R. v. Hicks, 95 Ga. 301, 22 S. E. 613; Campbell v. Cook, 86 Tex. 630,
The petition is overruled.
Dissenting Opinion
Dissenting Opinion by
I find myself unable to concur in the opinion affirming the judgment in this case, and the duty I owe myself, as well as that due the appellant, constrains me, much against my natural inclination, to state the reasons for dissenting from the conclusion reached by a majority of my Brethren.
On March 2,1905, a carpenter’s force of the Louisville & Nashville Railroad Company were construct-' ing coal chutes near, but not upon, the tracks or roadway of the railroad company at the mines of the Ingle Coal Company, at or near Howell, Ind. The force consisted of seven laborers, including the foreman, one W. C. Shrode, and appellee, Melton. In raising, with an ordinary pulley, block, and tackle, a bent of timber weighing about 1,000 pounds from a partly horizontal to an upright position, the bent fell by reason of a latent defect in the welding of one of the links of a chain with which one of the
As Melton’s cause of action is rested upon the Indiana statute regulating the liability of corporations for injuries received by their einployes, the first question with which we are confronted is whether or not that act, as construed by the majority opinion, is constitutional, or whether, on the contrary; it is inimical to that provision in the fourteenth amendment oi the federal Constitution, which guarantees to all the equal protection of the law, or, as has been said, the protection of equal laws. As the act in question is fully set cut in the opinion of the court, it is not necessary to incorporate any part of it heie. It is deemed sufficient to say that it prescribes a different rule of liability for those employers who may be brought within its purview from that imposed by the laws of Indiana upon other employers for injuries oceuring to their employes, and unless it can be differentiated by a reasonable classification from those laws it must be held violative of the federal Constitution. ■
It is earnestly contended by counsel for áppellant that the Indiana court of last resort- has construed this act to be applicable only to those employers operating railroads, and, further, that it has limited its application to injuries occurring to employes
As said before, it is not permissible, under the federal Constitution, to impose arbitrarily upon one class burdens which are not imposed upon the community in general; nor may a Legislature arbitrarily impose a liability upon one class of employers which is not imposed upon others. Undoubtedly the State may regulate the liability of employers to their employes if the classification for regulation be based upon just and reasonable principles; but it may not arbitrarily select one class, whose liability is to be ascertained by rules more stringent than apply to employers generally doing a similar business. This principle has nowhere been more clearly and forcibly expressed than by the Supreme Court of the United States in G., C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 666, where the question we have in hand is discussed. In the opinion it is said: “But it is said that it is not within the scope of the fourteenth amendment to withhold from states the power of classification, and that if the law deals
Upon the same subject the Supreme Court, in Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 22 Sup. Ct. 431, 46 L. Ed. 679, said: “The difficulty is not met by saying that, generally speaking, the State, when enacting laws, may in its discretion make a classification of persons, firms, corporations, and associations in order to subserve public objects; for this court has held that classification ‘must always rest upon some difference which bears a reasonable and just relation to the act in respect to which the classification is proposed, and can never be made arbitrarily and without any such basis. * * * But
In view of the foregoing authority, the question recurs: Does the statute under discussion, as construed in this case, afford a reasonable or just classification when it establishes one rule of liability for injuries occurring.to all railroad employes, without regard to whether they are engaged in the hazard of railroad operation, leaving the liability of all other employers subject to a less stringent rule of liability? It is a matter of common knowledge that only a small pe-r cent, of a railroad corporation’s employes are engaged in its active operation. Outside of the men operating the railroad, there is a very large class of employes who are engaged in mere clerical work, and who have no more to do with the actual operation of the railroad as such than the clerks and bookkeepers of any mercantile establishment. Railroads employ many lawyers, surgeons, and clerks. Some of them keep large forces of men engaged in cutting cross-
The view I have expressed above is supported by very high authority. In thé case of Kline v. Minnesota Iron Co., 93 Minn. 63, 66, 100 N. W. 681, the Supreme Court of Minnesota, in construing a statute of that State identical in principle with the one under discussion, said: “This statute has been before the court in numerous cases, and we have uniformly held that it was intended by the Legislature to apply to 'railroad hazards,’ and not to railroads as such; that the character of the employment was the test to be applied in determining its validity, and not the character of the employer. It was first construed in Lavallee v. St. Paul, etc., R. Co., 40 Minn. 249, 41 N. W. 974, where it was held that, if the statute be held to apply to railroad corporations as such, it would be invalid and unconstitutional as class legislation, for it is beyond the power of the Legislature to single out a . particular class of employers and impose upon them a distinct rule of liability for personal injuries; but, if construed to apply to the character of the employment, the legislation was valid. It was accordingly held in that ease that the Legislature intended that it should apply to the hazards and dangers peculiar to the use and operations of railroads, and the decision there made has been followed in all subsequent cases.” In the ease of Deppe v. Chicago, etc., R. Co., 36 Iowa, 52, 55: “But if the statute be so construed as to apply to all persons in the employ of railroad corporations,
I cannot agree to the assumption that the Supreme Court of the United States, in Tullis v. Lake Erie & Western Railroad, 175 U. S. 348, 20 Sup. Ct. 136, 44
To show that the Supreme Court of Indiana was of opinion that the statute - under discussion, as construed by it and sustained by the Supreme Court of the United States, is identical with the statutes of Kansas and Iowa,, as construed by the Supreme Courts of those states, I copy the following excerpt from the opinion in Bedford Quarries Co. v. Bough, supra.; “The employer’s liability act of Kansas was the same as the Iowa act above set out (Mo. Pac. R. Co. v. Haley, Adm’r, 25 Kan. 35, 53), and the
Nor can I agree to tbe statement in the-opinion tbat Melton was engaged in tbe hazard of the operation of tbe railroad because be was building a coal chute and coal is necessary to tbe operation of a railroad. Tbe chute was entirely separated from tbe railroad’s right of way, and tbe carpenters who were building it were in no danger from anything done in its operation. Railroads, in order to be operated, must have cross-ties and ballast, and must have clerks, bookkeepers, and auditors to keep their accounts, lawyers to defend their suits, and telegraphers to dispatch their trains; but none of tbe men employed in these occupations can be said to be engaged in tbe hazard of the operation of tbe railroad.
Believing tbat tbe statute under which this suit was brought violates tbe equality clause of tbe federal Constitution, and is therefore void, I cannot concur in the opinion of tbe court.