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the service of the appellant at the time of as aforesaid." A penalty was provided in the injury.
The evidence shows that appellee was, at the time of his injury, in the employ of the appellant as a passenger engineman, and was standing between the west-bound main track and the east-bound main track of of appellant's road, where he had gone, as he testified, to take charge of his engine when it backed down to be connected with appellant's passenger train, which was over an hour late. It is clear from the evidence that he was actually engaged in appellant's service when injured. Reno's Employers' Liability Acts (2d Ed.) p. 27; Dresser's Employers' Liability Acts, § 13, and cases cited. The jury found in answer to the interrogatories that said engine and car that ran against appellee and injured him was not in charge of Jerry Miller, as claimed by appellant, and that said engine was in charge of said Graver as engineman. The evidence showed that Engineman Graver was in the service of appellant as such engineman when appellee was injured, and that he was running his engine backward, pushing the mail car that injured appellee. No person was on said engine, when so pushing said mail car backward, except said Graver and his fireman. Appellee testified that said Graver was in charge of said engine. The record does not sustain appellant's contention that there was no evidence that the Engineer Graver was in charge of said train. Moreover, if said Engineman Graver had only been in charge of the locomotive engine, as alleged in the complaint and testified by appellee this would bring the case within the terms of said fourth subdivision. Labatt, Master & Servant, vol. 2, pp. 2037, 2038, 2039; Id. p. 2037, note 12; Fairman v. Boston & Albany Ry. Co., 169 Mass. 170, 177, 47 N. E. 613; McCord v. Commell (1896) H. L. Appeal Cases, 57.
At the time of appellee's injury there was in force in the city of Logansport an ordinance which contained four provisions, as follows: (1) "It shall be unlawful for any person to run any locomotive or car at a greater speed than six miles per hour within the city limits." (2) "It shall be the duty of the engineer or other person having charge of any locomotive within the limits of said city to ring the bell before starting such locomotive either forward or backward and to continue the ringing of the bell during the entire time such locomotive or train is in motion while passing through any portion of said city." (3) "Any locomotive engine, railroad car, or train of cars running in the nighttime on any railroad track in said city shall have and keep while so running, a brilliant and conspicuous light on the forward end of such locomotive engine or train of cars." (4) "And shall have and keep some sufficient signal light in charge of some competent person, who shall remain upon the rear end of such locomotive engine, car or train of cars whenever the same shall be backing on any track
said ordinance for the violation of each of said provisions. The evidence of appellee shows that each of the provisions of said ordinance was violated as alleged in the complaint. The failure, on the part of the appellant and those in charge of said train at the time of appellee's injury, to observe or comply with any one or all of the requirements of said ordinance was negligence per se and appellant was liable to appellee for any injury of which such negligence was the proximate cause, provided he was not guilty of contribtory negligence. Baltimore & O. S. W. Ry. C. v. Peterson Ad., 156 Ind. 364, 367-372, 59 N. E. 1044, and cases cited; Pittsburgh, etc., Ry. Co. v. Lightheiser, 163 Ind. 247, 256, 71 N. E. 218, 660.
It appears from the evidence that appellant's railroad at the passenger station in the city of Logansport consisted of two main tracks between Second and Fifth streets, one being the north or west bound main track for trains coming from the east and going west, while the second was the east or south bound main track for trains coming from the west and going east or south; appellant's passenger station was located at and across the south end of Fourth street, but on the north side of the north or west bound track and about 16 feet therefrom; that south of these two main tracks was a side track, connected with the south or east bound main track at a point about opposite the east end of the passenger station and running west parallel with said main track beyond Second street; west of Third street there was a cross-over connecting said two main tracks, the same being used to shift trains or parts of trains from one main track to the other. On the morning appellee was injured he ran his engine from the roundhouse to the restaurant just west of the passenger station on the west-bound main track, his engine being headed to the west. He left his engine in charge of the fireman and went into the restaurant to get a lunch. Before 3:05 a. m., when his train was due, he went upstairs in the passenger station to get his orders, which were issued by the train dispatcher. His orders not being ready, he returned to the restaurant. Later he and hi his conductor returned to the train dispatcher's office for their running orders and received the same. Thereupon they returned to the restaurant and remained there until the arrival of their train from Columbus, Ohio, at 4:38 a. m., about 1 hour and 30 minutes late; said train coming in on the west-bound main track. The engine, which had a headlight burning on its west or forward end, and the mail car, were cut off from said train and run west on said main track to the cross-over track, and then shifted to the east-bound main track and backed east and stopped on said east-bound main track, clearing the east line of Third street. While said engine and mail car were standing there, appellee's fireman backed his en
gine, which had a headlight burning on its west or forward end, to the eastward on the west-bound main track to be coupled to his train, and passed said engine and mail car, at which time and while appellee's engine was still going east said engine and mail car also backed east, the mail car in front, on the east-bound main track, and the northeast corner of said mail car struck appellee, who was standing between the west and east bound main tracks, 50 or 60 feet west of the west end of his train and 90 or 100 feet west of the passenger station, knocked him down, and run over and crushed his right leg and his ankle and foot on his left leg, so that his right leg was afterwards amputated 7 inches below the knee. Appellee testified that it was about 4:20 or 4:25 a. m. when he and his conductor received their running orders; that the weather was very cold, it being 3 or 4 degrees above or below zero; that upon the train .being announced he came out of the restaurant and went in a southwest direction around the west end of his train, standing on the west-bound main track, and went between the two main tracks to the place where he was injured; that appellant's tracks are level, with planking between the rails and between the tracks; that when he passed his train the engine and mail car had been cut off and run west on said west-bound main track; that he went to said place to examine the frost cocks on his engine "when she got there," and to see that the engine was in proper shape; that the frost cocks were on both sides of the engine, but he went between the tracks to examine the left-hand frost cock; that he could not very well examine the frost cocks while in the engine, because he could not see them; that when the frost cocks freeze up it is impossible to get water into the boiler; that he had received a letter from the superintendent of motive power three or four days after Christmas directing him to examine the frost cocks of his engine before leaving. It was very dark when he was injured. "You could not see anything hardly." He was facing northwest, looking for his engine. He could see the red light on the tank of his engine from where he was standing. "I was waiting for her to come down. Of course, I was not expecting anything else coming down the track, because of a rule of the company's. I saw the red light on the tank until an object got in front of me that other engine come there. There was no man nor any lights of any kind on the end of the mail car that struck me. 'I don't think the bell on the engine that was pushing the mail car that struck me was ringing at or immediately before the time. the car struck me. If it had been ringing, I think I would have heard it. I was looking and listening at the time, and did not hear it." Said mail car pushed by said engine was moving about 10 or 12 miles an hour. The distance between the two main tracks was 7 or 8 feet. The mail car pro
jected over the rail about 2 feet, leaving a space between the two cars of about 3 or 4 feet. "I had no notice or knowledge of the approach of said mail car until just about the time it struck me I saw it. It was so close that I could not get out of the way." We cannot say that the evidence of the appellee did not authorize the jury to find that the negligent acts of those in charge of said locomotive and train in violating the provisions of said ordinance was the proximate cause of appellee's injury. sense of sight and hearing was good. He looked and listened, but did not see or hear the approaching engine and mail car. They were approaching him at a speed of from 10 to 12 miles an hour. At the same time his engine was backing east on the westbound main track to be coupled on the westbound train. The mail car was being pushed in the darkness without ringing the bell on the engine and without a signal light in charge of a competent person upon the rear or east end of said mail car. Under the circumstances it cannot be said that there was no evidence that the violation of the ordinance above set out was the proximate cause of appellee's injury. The jury by the general verdict so found, and, as there was evidence to sustain such finding, under the well-settled rule we cannot disturb the same.
Appellant insists that appellee was off his engine in violation of a rule of the company when he was injured, and was therefore guilty of contributory negligence. The violation of a rule of the employer will not prevent a recovery by him, unless the violation of such rule proximately contributed to his injury. Appellee testified that he was at the place where he was injured for the purpose of examining the frost cocks of his engine when it backed up; that he had been directed by the superintendent of motive power to examine them before leaving. Whether or not he was guilty of contributory negligence in so being where he was when he was injured was a question for the jury, and it was properly submitted to them for determination, and we cannot say, from an examination of the evidence, that there was not evidence to sustain the finding that he was not guilty of contributory negligence, even if the burden of proof as to said issue were on him, instead of appellant. Appellant invokes the "look and listen rule," applicable to travelers at railroad crossings; but that rule does not apply in all its strictness to railroad employés, whose employment requires them to remain on or about the track. Baltimore, etc., Ry. Co. v. Peterson, Adm'r, 156 Ind. 364, 374, 59 N. E. 1044.
Appellant also contends that, as the evidence shows that appellee was in the employ of appellant as engineman from 1874 until January, 1901, when he was injured, he cannot recover in this action because the employers' liability act of 1893 impairs the obligation of said contract, and is therefore in
violation of the provisions of the state and federal Constitutions which prohibit the enactment of laws which impair the obligation of contracts. There was no evidence of any contract between appellant and appellee, except that appellee entered the service of appellant in 1874 as a passenger engineman, and continued in said service until his injury in January, 1901. So far as the evidence shows, there was no express agreement between appellant and appellee, at the time he entered appellant's service or since, except such as might be implied from his entering said service. It may be said, therefore, as was said on the former appeal: "It does not appear that there was any such definitive agreement between the parties for the future as would warrant the assertion that any contract right of appellant had been impaired."
In the course of his testimony, and in explaining the character of his injury, appellee exhibited his injured foot, and testified that it was stiff at the ankle joint, and by movements of the foot showed the effects of the injury upon his ability to use it. Appellant insists that the court erred in permitting this to be done, because appellant was thereby deprived of its ability to present a complete record-citing Consolidated Stone Co. v. Summit, 152 Ind. 297, 305, 53 N. E. 235; Westervelt v. National Paper Co., 154 Ind. 673, 681, 57 N. E. 552. Appellant was not deprived of any substantial right by the action of the court, and the record is complete. Said cases are not in point here. This court has held that such an exhibition of the injured limb was not error. Indianapolis, etc., Co. v. Parker, 100 Ind. 181, 199, 200, and authorities cited; Citizens', etc., Ry. Co. v. Willobey, 134 Ind. 563, 570, 33 N. E. 627; Louisville, etc., Ry. Co. v. Wood, 113 Ind. 544, 548-551, 14 N. E. 572, 16 N. E. 197.
There was no error in admitting in evidence the Carlisle Tables of Mortality. Louisville, etc., Ry. Co. v. Miller, 141 Ind. 533, 562, 563, 37 N. E. 343, and authorities cited.
Appellant says in its statement of points, in objecting to instructions, that "General instructions in negligence cases, which tell the jury that the plaintiff is entitled to recover, if they find from the preponderance of evidence that the material allegations of the complaint are proven, and which omit to say what the material allegations of the complaint are, which must be established to entitle the plaintiff to recover, are erroneous, because they leave it to the jury to determine questions of law and questions of fact." It has been held by this court that such instruction is not erroneous. Southern, etc., Ry. Co. v. Peyton, 157 Ind. 690, 700, 61 N. E. 722. The mere failure of a court to state the issues in the instructions to the jury is not reversible error. If a party desires a full and specific instruction as to what the issues are, it is incumbent on him to prepare such an instruction and present the same to the court at the proper time, with a proper re
quest that it be given. If he fails to do this, he has no ground to complain that the court did not so state the issues to the jury. Elliott's Appellate Procedure, §§ 735, 736; Elliott's General Practice, § 896: Gillett's Criminal Law, §§ 906, 915; 2 Thompson on Trials, §§ 2338, 2339, 2341; Krack v. Wolf, 39 Ind. 88.
Appellant complains of an instruction that appellee, "under the circumstances developed by the evidence in this case, was required to exercise such care as persons of ordinary care and prudence would exercise under like circumstances." There was no error in giving said instruction. 1 Labatt, Master & Servant, § 329; Board, etc., v. Bonebrake, 146 Ind. 311, 317, 318, 45 N. E. 470; 4 Thompson on Negligence, p. 52, § 3769; 1 Shearman & Redfield on Negligence, p. 127, § 87. several acts of negligence are sufficiently alleged in a complaint, it is not true, as claimed by appellant, that all of such acts must be proven to entitle the plaintiff to recover; but a recovery will be justified, if it is established that the injury complained of was the result of one or more of said acts of negligence. Chicago, etc., Ry. Co. v. Barnes, 164 Ind. 143, 149, 73 N. E. 91, and cases cited. In appellant's statement of points it is said that "the instructions given by the court of its own motion and at the request of appellee are indefinite, uncertain, and inapplicable to the evidence." It is not stated in the points how or in what respect any one of said instructions is indefinite, uncertain, and inapplicable to the evidence. Such an objection, like objections to evidence on the ground that the same is incompetent, immaterial, irrelevant, and does not tend to prove or disprove any issue in the case, are too general and indefinite to present any question. It is not sufficient to state in a point that the instructions given are erroneous, or that they are uncertain, indefinite, or inapplicable to the evidence, without pointing out why each instruction is erroneous, or how and in what respect the same is indefinite or uncertain, and citing authorities, if any, in support thereof. American Food Co. v. Halstead, 165 Ind. 633, 634, 635, 76 N. E. 251; Liggett v. Firestone, 102 Ind. 514; 26 N. E. 201; Smith v. McDaniel, 5 Ind. App. 581, 583, 32 N. E. 798. While a discussion or elaboration of a point is not proper in the statement of points, mere general statements, without specific and definite reasons specifically applied, present no question for decision.
Over the objection of the appellant the. court permitted counsel for appellee to read the interrogatories to the jury and discuss the evidence in respect to the same. This action of the court was not erroneous. It was proper for counsel for appellee to read and comment upon the interrogatories, and to array the evidence necessary to be considered in answering the same. Gresley v. State, 123 Ind. 72, 75, 24 N. E. 332; South
ern, etc., Ry. Co. v. Fine, 163 Ind. 617, 622, 623, 72 N. E. 589. Appellant, however, contends that counsel for appellee told the jury how to answer the interrogatories. The bill of exceptions shows that one of the counsel for appellee spoke of 8 interrogatories of the 133 submitted to the jury. If counsel for appellee told the jury how to answer any one of said 8 interrogatories, appellant was only entitled to have the jury sufficiently admonIshed without delay that such statement should not be considered. Counsel for appellant made no request for such admonition, but moved the court to take the case from and discharge the jury. This motion was properly overruled. As the court afterwards instructed the jury to answer the interrogatories according to the preponderance of the evidence, appellant has no just ground of complaint. Southern, etc., Ry. Co. v. Fine, 163 Ind. 622-624, 72 N. E. 589.
It is a settled rule of law that courts will not disturb a verdict on the ground of excessive damages, unless the damages are so excessive as to indicate that the jury acted from prejudice, partiality, or corruption. Indiana Car Co. v. Parker, 100 Ind. 181, 196, and cases cited; Louisville, etc., Ry. Co. v. Miller, 141 Ind. 533, 566, 37 N. E. 343; Woollen's Trial Procedure, §§ 4409, 4411. Under this rule we cannot say the damages assessed are excessive.
Counsel for appellant insists that Act March 4, 1893, p. 294, being section 7083 et seq., Burns' Ann. St. 1901 (the "Employers' Liability Act"), is in violation of the fifth amendment and the fourteenth amendment to the Constitution of the United States, because it deprives appellant of its property without due process of law; that said act violates the fourteenth amendment, because it denies to appellant the equal protection of the law, and abridges the privileges and immunities of appellant as a citizen of the United States. The fifth amendment to the Constitution of the United States operates in restriction of federal power, and has no application to the states, and therefore has no application to said act of 1893. Thorington v. Montgomery, 147 U. S. 490, 492, 13 Sup. Ct. 394, 37 L. Ed. 252; Brown v. New Jersey, 175 U. S. 172, 174, 20 Sup. Ct. 77, 44 L. Ed. 119, and cases cited; Capital City Dairy Co. v. Ohio, 183 U. S. 238, 245, 22 Sup. Ct. 120, 46 L. Ed. 171; Fall Brook Irr. Dist. v. Bradley, 164 U. S. 112, 158, 17 Sup. Ct. 56, 41 L. Ed. 369; Barron v. Baltimore, 7 Pet. (U. S.) 243, 247-252, 8 L. Ed. 672; 3 Rose's Notes on U. S. Reports, pp. 267-373, and cases cited; Barton v. Kimmerley, 165 Ind. 609, 610, 76 N. E. 250, and cases cited. Corporations are not citizens of the United States within the meaning of that part of the fourteenth amendment which provides that "no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Therefore, 78 N.E.-66
that provision of said amendment cannot affect the validity of said act of 1893. Orient Ins. Co. v. Daggs, 172 U. S. 557, 19 Sup. Ct. 281, 43 L. Ed. 552; 3 Rose's Supp. to Notes to U. S. Repts. p. 990; Waters-Pierce Oil Co. v. Texas, 177 U. S. 28, 45, 46, 20 Sup. Ct. 518, 44 L. Ed. 657. It has been held by this court that, while corporations are persons within the meaning of the fourteenth amendment of the Constitution of the United States that as applied to railroads said employers' liability act is not in violation thereof, nor in violation of the Constitution of this state. Pittsburgh, etc., Ry. Co. v. Montgomery, 152 Ind. 1, 49 N. E. 582, 69 L. R. A. 875, 71 Am. St. Rep. 301, and cases cited; Indianapolis, etc., Ry. Co. v. Houlihan, 157 Ind. 494, 60 N. E. 943, 54 L. R. A. 787, and cases cited. In Tullis v. Lake Erie Ry. Co., 175 U. S. 348, 20 Sup. Ct. 136, 44 L. Ed. 192, the Supreme Court of the United States held that, as applied to railroad corporations, said employers' liability act of this state was not in violation of the fourteenth amendment to the Constitution of the United States-citing Missouri Pacific Ry. v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161, 32 L. Ed. 107; Minn. & St. Louis Ry. Co. v. Herrick, 127 U. S. 210, 8 Sup. Ct. 1176, 32 L. Ed. 109; Chicago, etc., Ry. Co. v. Pontius, 157 U. S. 209, 15 Sup. Ct. 585, 39 L. Ed. 675; Pierce v. Van Dusen, 47 U. S. App. 339, 24 C. C. A. 280, 78 Fed. 693; Orient Ins. Co. v. Daggs, 177 U. S. 557, 19 Sup. Ct. 281, 43 L. Ed. 553, which sustained the constitutional validity of like statutes of other states. It has been uniformly held by the courts of last resort that such laws are constitutional. Mo. Pac. Ry. Co. v. Haley, 25 Kan. 35, 53, and cases cited; Union Pac. Ry. Co. v. Harris, 33 Kan. 298, 302, 6 Pac. 571; Johnson v. St. Paul Ry. Co., 43 Minn. 222, 45 N. W. 156, 8 L. R. A. 419; Herrick v. Minn., etc., Ry. Co., 16 N. W. 413, 31 Minn. 11, 47 Am. St. Rep. 771, 775, 776; Ditberner v. Chicago, etc., Ry. Co., 47 Wis. 138, 2 N. W. 69; Callahan v. St. Louis Ry. Co., 170 Mo. 473, 71 S. W. 208, 94 Am. St. Rep. 746, and cases cited, 60 L. R. A. 249; Powell v. Sherwood, 162 Mo. 605, 63 S. W. 485; Reno's Employers' Liability Acts (2d. Ed.) § 122, and cases cited; Dresser's Employers' Liability, §§ 29-33, and cases cited; 2 Labatt. Master & Servant, §§ 643, 644, 645, 646, and notes.
Appellant contends, however, that the statute in question violates said constitutional provision, because it only applies to corporations operating railroads, and not to persons engaged in operating railroads. Substantially the same objection was made in the case of Pittsburgh, etc., Ry. Co. v. Montgomery, supra, and this court, in that case, citing Bucklew v. Iowa Central Ry. Co., 64 Iowa, 611, 21 N. W. 103, and other cases above cited, held the law valid. The statute in question was not only held valid as to railroad companies in the Montgomery Case, supra, but it was also held that objection to
Its validity could not be made by such companies on the ground that it embraced all corporations except municipal, and that there were some corporations whose business would not bring them within the reason of the classification; that is, that said employers' liability act was capable of severance, and thus, by putting railroads in a class by themselves, it might be sustained as to railroads, regardless of its constitutionality as to other corporations. The classification of railroads by themselves was held proper in the cases above cited on account of the dangerous and hazardous character of the business of operating railroads. This classification is based, not on the difference in employers, but upon a difference in the nature of the employment. As was said in Indianapolis, etc., Ry. Co. v. Houlihan, 157 Ind. 494, 501, 60 N. E. 943, 54 L. R. A. 787: "The classification is made on the basis of the peculiar hazard in railroading, relates directly to the object to be accomplished, and applies to all employers within the class. To separate railroading from other business was not an unconstitutional discrimination, because the dangers (the basis of classification) do not arise from the same sources." True, the employers? liability act of this state provides that "every railroad or other corporation, except municipal, operating in this state shall be liable for damages for personal injuries suffered by any employé," etc. But, in 2 Lewis' Sutherland on Statutory Construction, § 347, it is said to be indispensable to a correct understanding of a statute to inquire, first, what is the subject of it-what object it is intended to be accomplished by it. When the subject-matter is once clearly ascertained, and its general intent, a key is found to its intricacies. General words may be restrained to it, and those of narrower import may be expanded to embrace it, to effectuate that intent. When that intention can be collected from the statute, words may be modified, altered, or supplied, so as to obviate any repugnancy or inconsistency with such intention. The subject-matter of the statute in question here, and its intent and purpose so
be applied in construing-the expression “every railroad or other corporation operating within this state," as applied to railroads, should, under the rule above stated, be enlarged and expanded so as to include any person, company, or corporation engaged in operating a railroad in this state. This interpretation is sustained by the title of said act, which, under our Constitution, "shall embrace but one subject and matters properly connected therewith, which subject must be expressed in the title." Under such a constitutional provision the language of the act should be construed in view of its title and its lawful purpose. 2 Lewis' Sutherland on Statutory Construction, § 340; Cooley's Constitutional Limitations (7th Ed.) p. 202. Said title reads "an act regulating liability of railroads and other corporations, except municipal, for injuries to persons employed by them." The subject of this act as expressed in the title, so far as railroads are concerned, is the regulation of their liability to their employés, regardless of whether they are operated by persons, companies, or corporations. The employers' liability act of Iowa provided that "every corporation operating a railway shall be liable for all damages sustained by any person, including employés of such corporations, in consequence of the neglect of agents by any mismanagement of the engineers or other employés of the corporation," etc. Code Iowa 1873, § 1307. The objection made by appellant to the statute in this case seems to have been made to said Iowa statute in Bucklew v. Iowa Central Ry. Co., supra, decided in 1884, before the enactment of the statute in this state, where the Supreme Court of Iowa said, on pages 610, 611, of 64 Iowa, page 107 of 21 N. W., "that the business of operating a railroad is peculiarly hazardous and dangerous to employés engaged in the operation of the road must be admitted. Counsel have not called our attention to any business which is equally hazardous, and, as the statute is applicable to all corporations or persons engaged in operating railroads, it seems to us that it does not discriminate in favor of or against any one."
far as applicable to railroads, were to protect In Minnesota the statute provided that "ev.
employés from the peculiar dangers and hazards in railroading. Union, etc., Ry. Co. v. Houlihan, and cases cited supra. Under the decisions cited the character of the employers is not a controlling factor. The statute is to be given at least a reasonable interpretation. one that will carry into effect the legislative intent. As we have shown, the basis of the classification of railroads by themselves was the hazardous and dangerous character of the employment of operating railroads, and this does not depend upon whether railroads are operated by corporations or by one or more persons.
If the character of the employer within the meaning of the statute is not important-and the nature of the employment is the test to
ery railroad corporation owning or operating a railroad in this state shall be liable for all damages sustained by an agent or servant thereof by reason of the negligence of another agent or servant," etc. The Supreme Court in that state said, in Schus v. Powers-Simpson Co., 85 Minn. 447, 452, 453, 89 N. W. 68, 70, 69 L. R. A. 887, "that as the spirit and purpose of the law was the protection of employés of employers engaged in a hazardous and dangerous work, though the literal language thereof limits its operation to railroad corporations, we hold that it applies to any corporation or person engaged in operating a line of railroad, incident to which operation are the dangers and hazards to employés the Legislature intended to provide against." The spirit and purpose of the statute must