59

the service of the appellant at the time of , as aforesaid.” A penalty was provided in the injury.

said ordinance for the violation of each of The evidence shows that appellee was, at said provisions. The evidence of appellee the time of his injury, in the employ of the shows that each of the provisions of said appellant as a passenger engineman, anů was ordinance was violated as alleged in the comstanding between the west-bound main track plaint. The failure, on the part of the appeland the

the east-bound main track of ap- lant and those in charge of said train at the pellant's road, where he had gone, as he time of appellee's injury, to observe or comtestified, to take charge of his engine when ply with any one or all of the requirements it backed down to be connected with appel- of said ordinance was negligence per se and lant's passenger train, which was over an appellant was liable to appellee for any injury hour late. It is clear from the evidence that of which such negligence was the proximate he was actually engaged in appellant's ser- cause, provided he was not guilty of contribvice when injured. Reno's Employers' Lia- tory negligence. Baltimore & 0. S. W. Ry. bility Acts (2d Ed.) p. 27; Dresser's Employ- C. v. Peterson Ad., 156 Ind. 361, 367–372, ers' Liability Acts, $ 13, and cases cited. The N. E. 1044, and cases cited; Pittsburgh, etc., jury found in answer to the interrogatories Ry. Co. v. Lightheiser, 163 Ind. 247, 256, 71 that said engine and car that ran against ap- N. E. 218, 660. pellee and injured him was not in charge of

It appears from the evidence that appelJerry Miller, as claimed by appellant, and

lant's railroad at the passenger station in that said engine was in charge of said Gra

the city of Logansport consisted of two main ver as engineman. The evidence showed

tracks between Second and Fifth streets, that Engineman Graver was in the service of

one being the north or west bound main appellant as such engineman when appellee

track for trains coming from the east and was injured, and that he was running his

going west, while the second was the east or engine backward, pushing the mail car that south bound main track for trains coming injured appellee. No person was on said en- from the west and going east or south; gine, when so pushing said mail car back

appellant's passenger station was located at ward, except said Graver and his fireman.

and across the south end of Fourth street, Appellee testified that said Graver was in but on the north side of the north or west charge of said engine. The record does not bound track and about 16 feet therefrom ; sustain appellant's contention that there was that south of these two main tracks was a no evidence that the Engineer Graver was in side track, connected with the south or east charge of said train. Moreover, if said En

bound main track at a point about opposite gineman Graver had only been in charge of the east end of the passenger station and the locomotive engine, as alleged in the com- running west parallel with said main track plaint and testified by appellee this would beyond Second street; west of Third street bring the case within the terms of said there was a cross-over connecting said fourth subdivision. Labatt, Master & Sery- two main tracks, the same being used to shift ant, vol. 2, pp. 2037, 2038, 2039; Id. p. 2037,

trains or parts of trains from one main track note 12; Fairman v. Boston & Albany Ry. to the other. On the morning appellee was Co., 169 Mass. 170, 177, 47 N. E. 613; Mc injured he ran his engine from the roundCord v. Commell (1896) H. L. Appeal Cases, house to the restaurant just west of the 57.

passenger station on the west-bound main At the time of appellee's injury there was track, his engine being headed to the west. in force in the city of Logansport an ordi- He left his engine in charge of the fireman nance which contained four provisions, as fol- and went into the restaurant to get a lunch. lows: (1) “It shall be unlawful for any per- Before 3:05 a. m., when his train was due, son to run any locomotive or car at a greater

he went upstairs in the passenger station to speed than six miles per hour within the city

get his orders, which were issued by the limits." (2) "It shall be the duty of the en- train dispatcher. His orders not being ready, gineer or other person having charge of any he returned to the restaurant. Later he and locomotive within the limits of said city to his conductor returned to the train dispatchring the bell before starting such locomotive er's office for their running orders and reeither forward or backward and to continue

ceived the same. Thereupon they returned the ringing of the bell during the entire time to the restaurant and remained there until such locomotive or train is in motion while the arrival of their train from Columbus, passing through any portion of said city.” Ohio, at 4:38 a. m., about 1 hour and 30 (3) "Any locomotive engine, railroad car, minutes late; said train coming in on the or train of cars running in the nighttime west-bound main track. The engine, which on any railroad track in said city shall have had a headlight burning on its west or forand keep while so running, a brilliant and ward end, and the mail car, were cut off conspicuous light on the forward end of such from said train and run west on said main locomotive engine or train of cars." (4) "And track to the cross-over track, and then shiftshall have and keep some sufficient signal ed to the east-bound main track and backed light in charge of some competent person, east and stopped on said east-bound main who shall remain upon the rear end of such track, clearing the east line of Third street. locomotive engine, car or train of cars when- While said engine and mail car were standever the same shall be backing on any track ing there, appellee's fireman backed his engine, which had a headlight burning on its jected over the rail about 2 feet, leaving a west or forward end, to the eastward on the space between the two cars of about 3 or 4 west-bound main track to be coupled to his feet. "I had no notice or knowledge of the train, and passed said engine and mail car, approach of said mail car until just about at which time and while appellee's engine the time it struck me I saw it. It was so was still going east said engine and mail car close that I could not get out of the way.” also backed east, the mail car in front, on the We cannot say that the evidence of the apeast-bound main track, and the northeast pellee did not authorize the jury to find corner of said mail car struck appellee, who that the negligent acts of those in charge was standing between the west and east of said locomotive and train in violating bound main tracks, 50 or 60 feet west of the the provisions of said ordinance was the west end of his train and 90 or 100 feet west proximate cause of appellee's injury. His of the passenger station, knocked him down, sense of sight and hearing was good. He and run over and crushed his right leg and looked and listened, but did not see or his ankle and foot on his left leg, so that his hear the approaching engine and mail car. right leg was afterwards amputated 7 inches They were approaching him at a speed of below the knee. Appellee testified that it was

from 10 to 12 miles an hour. At the same about 4:20 or 4:25 a. m. when he and his con- time his engine was backing east on the westductor received their running orders; that the bound main track to be coupled on the westweather was very cold, it being 3 or 4 degrees

bound train. The mail car was being pushed above or below zero; that upon the train in the darkness without ringing the bell on .being announced he came out of the restau- the engine and without a signal light in rant and went in a southwest direction

charge of a competent person upon the rear around the west end of his train, standing

or east end of said mail car. Under the ciron the west-bound main track, and went be- cumstances it cannot be said that there was tween the two main tracks to the place where no evidence that the violation of the ordihe was injured; that appellant's tracks are nance above set out was the proximate cause level, with planking between the rails and of appellee's injury. The jury by the genbetween the tracks; that when he passed

eral verdict so found, and, as there was evi. his train the engine and mail car had been

dence to sustain such finding, under the cut off and run west on said west-bound main well-settled rule we cannot disturb the same. track; that he went to said place to examine

Appellant insists that appellee was off his the frost cocks on his engine “when she got engine in violation of a rule of the company there," and to see that the engine was in

when he was injured, and was therefore proper shape; that the frost cocks were on guilty of contributory negligence. The violaboth sides of the engine, but he went be

tion of a rule of the employer will not pretween the tracks to examine the left-hand vent a recovery by him, unless the violation frost cock; that he could not very well ex

of such rule proximately contributed to his amine the frost cocks while in the engine, injury. Appellee testified that he was at the because he could not see them; that when

place where he was injured for the purpose the frost cocks freeze up it is impossible to

of examining the frost cocks of his engine get water into the boiler; that he had re

when it backed up; that he had been directed ceived a letter from the superintendent of

by the superintendent of motive power to motive power three or four days after Christ

examine them before leaving. Whether or mas directing him to examine the frost cocks

not he was guilty of contributory negligence of his engine before leaving. It was very

in so being where he was when he was injurdark when he was injured. “You could not

ed was a question for the jury, and it was see anything hardly.” He was facing north- properly submitted to them for determinawest, looking for his engine. He could see

tion, and we cannot say, from an examination the red light on the tank of his engine from

of the evidence, that there was not evidence where he was standing. "I was waiting for to sustain the finding that he was not guilty her to come down. Of course, I was not ex

of contributory negligence, even if the burden pecting anything else coming down the track, of proof as to said issue were on him, instead because of a rule of the company's. I saw of appellant. Appellant invokes the “look the red light on the tank until an object got

and listen rule," applicable to travelers at in front of me that other engine come there.

railroad crossings; but that rule does not There was no man nor any lights of any kind

apply in all its strictness to railroad emon the end of the mail car that struck me. ployés, whose employment requires them to 'I don't think the bell on the engine that was

remain on or about the track. Baltimore, pushing the mail car that struck me was etc., Ry. Co. v. Peterson, Adm'r, 156 Ind. ringing at or immediately before the time 364, 374, 59 N. E. 1044. the car struck me. If it had been ringing,

Appellant also contends that, as the eviI think I would have heard it. I was look- dence shows that appellee was in the eming and listening at the time, and did not | ploy of appellant as engineman from 1874 hear it." Said mail car pushed by said en- until January, 1901, when he was injured, gine was moving about 10 or 12 miles an he cannot recover in this action because the hour. The distance between the two main employers' liability act of 1893 impairs the tracks was 7 or 8 feet. The mail car pro- | obligation of said contract, and is therefore in violation of the provisions of the state and quest that it be given. If he fails to do federal Constitutions which prohibit the en- this, he has no ground to complain that the actment of laws which impair the obligation court did not so state the issues to the jury. of contracts. There was no evidence of any Elliott's Appellate Procedure, SS 735, 736; contract between appellant and appellee, ex- Elliott's General Practice, $ 896: Gillett's cept that appellee entered the service of Criminal Law, $$ 906, 915; 2 Thompson on appellant in 1874 as a passenger engineman, Trials, $$ 2338, 2339, 2311; Krack v. Wolf, and continued in said service until his injury 39 Ind. 88. in January, 1901. So far as the evidence Appellant complains of an instruction that shows, there was no express agreement be- appellee, “under the circumstances developed tween appellant and appellee, at the time he by the evidence in this case, was required to entered appellant's service or since, except exercise such care as persons of ordinary such as might be implied from his entering care and prudence would exercise under like said service. It may be said, therefore, as circumstances." There was no error in giving was said on the former appeal: "It does not said instruction. 1 Labatt, Master & Serappear that there was any such definitive vant, $ 329; Board, etc., v. Bonebrake, 146 agreement between the parties for the future Ind. 311, 317, 318, 45 N. E. 470; 4 Thompson as would warrant the assertion that any con- on Negligence, p. 52, § 3769; 1 Shearman & tract right of appellant had been impaired.” Redfield on Negligence, p. 127, § 87. When

In the course of his testimony, and in ex- several acts of negligence are sufficiently plaining the character of his injury, appellee alleged in a complaint, it is not true, as exhibited his injured foot, and testified that claimed by appellant, that all of such acts it was stiff at the ankle joint, and by must be proven to entitle the plaintiff to removements of the foot showed the effects of

cover; but a recovery will be justified, if it the injury upon his ability to use it. Ap- is established that the injury complained of pellant insists that the court erred in per- was the result of one or more of said acts of mitting this to be done, because appellant negligence. Chicago, etc., Ry. Co. v. Barnes, was thereby deprived of its ability to pre- 164 Ind. 143, 149, 73 N. E. 91, and cases cited. sent a complete record-citing Consolidated In appellant's statement of points it is said Stone Co. v. Summit, 152 Ind. 297, 305, 53 that “the instructions given by the court N. E. 235; Westervelt v. National Paper Co., of its own motion and at the request of 154. Ind. 673, 681, 57 N. E. 552. Appellant was appellee are indefinite, uncertain, and innot deprived of any substantial right by the applicable to the evidence." It is not stated action of the court, and the record is complate. in the points how or in what respect any one Said cases are not in point here. This court of said instructions is indefinite, uncertain, has held that such an exhibition of the injur- and inapplicable to the evidence. Such an ed limb was not error. Indianapolis, etc., objection, like objections to evidence on the Co. v. Parker, 100 Ind. 181, 199, 200, and

ground that the same is incompetent, imauthorities cited; Citizens', etc., Ry. Co. v. material, irrelevant, and does not tend to Willobey, 134 Ind. 563, 570, 33 N. E. 627;

prove or disprove any issue in the case, are Louisville, etc., Ry. Co. v. Wood, 113 Ind.

too general and indefinite to present any 544, 548–551, 14 N. E. 572, 16 N. E. 197.

question. It is not sufficient to state in a There was no error in admitting in evidence point that the instructions given are erthe Carlisle Tables of Mortality. Louisville,

roneous, or that they are uncertain, indef. etc., Ry. Co. v. Miller, 141 Ind. 533, 562, 563, inite, or inapplicable to the evidence, with37 N. E. 343, and authorities cited.

out pointing out why each instruction is erAppellant says in its statement of points, in

roneous, or how and in what respect the objecting to instructions, that “General in- same is indefinite or uncertain, and citing structions in negligence cases, which tell

authorities, if any,

if any, in support thereof. the jury that the plaintiff is entitled to re- American Food Co. v. Halstead, 165 Ind. cover, if they find from the preponderance of 633, 631, 635, 76 N. E. 251; Liggett v. Fireevidence that the material allegations of the

stone, 102 Ind. 514; 26 N. E. 201; Smith v. complaint are proven, and which omit to say

McDaniel, 5 Ind. App. 581, 583, 32 N. E. 798. what the material allegations of the com- While a discussion or elaboration of a point plaint are, which must be established to en

is not proper in the statement of points, title the plaintiff to recover, are erroneous, mere general statements, without specific and because they leave it to the jury to determine definite reasons specifically applied, present questions of law and questions of fact." It no question for decision. has been held by this court that such instruc- Over the objection of the appellant the . tion is not erroneous. Southern, etc., Ry. Co. court permitted counsel for appellee to read v. Peyton, 157 Ind. 690, 700, 61 N. E. 722. the interrogatories to the jury and discuss The mere failure of a court to state the the evidence in respect to the same. This issues in the instructions to the jury is not action of the court was not erroneous. It reversible error. If a party desires a full and was proper for counsel for appellee to read specific instruction as to what the issues and comment upon the interrogatories, and are, it is incumbent on him to prepare such to array the evidence necessary to be considan instruction and present the same to the ered in answering the same. Gresley v. court at the proper time, with a proper re- State, 123 Ind. 72, 75, 24 N. E. 332; South

from and discharge the jury. This motion Ind. 1, 49 N. E. 582, 69 L. R. A. 875, 71 Am.

Its validity could not be made by such com- be applied in construing—the expression "ev. panies on the ground that it embraced all ery railroad or other corporation operating corporations except municipal, and that there within this state,” as applied to railroads, were some corporations whose business would should, under the rule above stated, be ennot bring them within the reason of the clas- larged and expanded so as to include any sification; that is, that said employers' lia- person, company, or corporation engaged in bility act was capable of severance, and thus, operating a railroad in this state. This inby putting railroads in a class by themselves, terpretation is sustained by the title of said it might be sustained as to railroads, regard-act, which, under our Constitution, "shall emless of its constitutionality as to other cor- brace but one subject and matters properly porations. The classification of railroads by connected therewith, which subject must be themselves was held proper in the cases above expressed in the title." Under such a concited on account of the dangerous and hazard- stitutional provision the language of the act ous character of the business of operating should be construed in view of its title and railroads. This classification is based, not on its lawful purpose. 2 Lewis' Sutherland on the difference in employers, but upon a dit- Statutory Construction, $ 340; Cooley's Conference in the nature of the employment. As stitutional Limitations (7th Ed.) p. 202. was said in Indianapolis, etc., Ry. Co. v.

Said title reads "an act regulating liability Houlihan, 157 Ind. 494, 501, 60 N. E. 943,

of railroads and other corporations, except 54 L. R. A. 787: "The classification is made municipal, for injuries to persons employed by on the basis of the peculiar hazard in rail.

them.” The subject of this act as expressed roading, relates directly to the object to be ac- in the title, so far as railroads are concerned, complished, and applies to all employers is the regulation of their liability to their within the class. To separate railroading employés, regardless of whether they are from other business was not an unconstitu- operated by persons, companies, or corporational discrimination, because the dangers tions. The employers' liability act of Iowa (the basis of classification) do not arise from provided that "every corporation operating a the same sources." True, the employers! lia- | railway shall be liable for all damages sus. bility act of this state provides that "every

tained by any person, including employés of railroad or other corporation, except munic

such corporations, in consequence of the neg. ipal, operating in this state shall be liable lect of agents by any mismanagement of the for damages for personal injuries suffered engineers or other employés of the corporaby any employé," etc. But, in 2 Lewis' Suth- tion," etc. Code Iowa 1873, § 1307. The oberland on Statutory Construction, $ 347, it is jection made by appellant to the statute in said to be indispensable to a correct under

this case seems to have been made to said standing of a statute to inquire, first, what

Iowa statute in Bucklew v. Iowa Central Ry. is the subject of it—what object it is intend

Co., supra, decided in 1884, before the enacted to be accomplished by it. When the sub

ment of the statute in this state, where the ject-matter is once clearly ascertained, and

Supreme Court of Iowa said, on pages 610, its general intent, a key is found to its in

611, of 64 Iowa, page 107 of 21 N. W., "that tricacies. General words may be restrained

the business of operating a railroad is pecul

iarly hazardous and dangerous to employés to it, and those of narrower import may be

engaged in the operation of the road must be expanded to embrace it, to effectuate that in

admitted. Counsel have not called our attent. When that intention can be collected

tention to any business which is equally hazfrom the statute, words may be modified, al

ardous, and, as the statute is applicable to tered, or supplied, so as to obviate any re

all corporations or persons engaged in operatpugnancy or inconsistency with such inten

ing railroads, it seems to us that it does not tion. The subject-matter of the statute in

discriminate in favor of or against any one." question here, and its intent and purpose so

In Minnesota the statute provided that "ev. far as applicable to railroads, were to protect

ery railroad corporation owning or operating employés from the peculiar dangers and haz

a railroad in this state shall be liable for all ards in railroading. Union, etc., Ry. Co. v.

damages sustained by an agent or servant Houlihan, and cases cited supra. Under the

thereof by reason of the negligence of another decisions cited the character of the employers agent or servant,” etc. The Supreme Court is not a controlling factor. The statute is to in that state said, in Schus v. Powers-Simpbe given at least a reasonable interpretation,

son Co., 85 Minn. 447, 452, 453, 89 N. W. 68, one that will carry into effect the legislative

70, 69 L. R. A. 887, “that as the spirit and intent. As we have shown, the basis of the

purpose of the law was the protection of emclassification of railroads by themselves was

ployés of employers engaged in a hazardous the hazardous and dangerous character of the and dangerous work, though the literal lanemployment of operating railroads, and this

guage thereof limits its operation to railroad does not depend upon whether railroads are corporations, we hold that it applies to any operated by corporations or by one or more corporation or person engaged in operating persons.

a line of railroad, incident to which operaIf the character of the employer within the tion are the dangers and hazards to employés meaning of the statute is not important-and the Legislature intended to provide against." the nature of the employment is the test to The spirit and purpose of the statute must