American Car & Foundry Co. v. Inzer

• Decision Date: 08 December 1908
• Docket Number: No. 6,170.,6,170.
• Citation: 86 N.E. 444
• Parties: AMERICAN CAR & FOUNDRY CO. v. INZER.
• Court: Indiana Appellate Court

86 N.E. 444

AMERICAN CAR & FOUNDRY CO.

v.INZER.

No. 6,170.¹

Appellate Court of Indiana, Division No. 2.

Dec. 8, 1908.

Appeal from Circuit Court, Clark County; H. C. Montgomery, Judge.

Action by Mary Inzer, administratrix, against the American Car & Foundry Company. From a judgment for plaintiff, defendant appeals. Affirmed.

M. Z. Stannard and Ward H. Watson, for appellant. G. H. Voigt, for appellee.

ROBY, J.

Action by administratrix for damages resulting from death of John A. Inzer, which is alleged to have been caused by the negligent operation of a train of cars by defendant, the appellant herein. A demurrer to the amended complaint was overruled, trial had by a jury, verdict returned in plaintiff's favor for $2,500, with answers to 168 interrogatories. Defendant moved for judgment on the said answers and for a new trial, both of which motions were overruled. Judgment was rendered on the verdict. Errors relied upon for reversal are (1) overruling demurrer to complaint; (2) motion for judgment on answers to interrogatories; (3) motion for a new trial, 13 separate errors being enumerated under the last head.

Appellant by filing additional citations of authority seeks to present the question of the constitutionality of the law under which the action is brought. Rule 22 (55 N. E. v) provides that no alleged error or point not contained in appellant's original brief shall be raised afterwards. These citations are therefore insufficient, and no constitutional question is presented or decided. It is necessary, however, to determine whether Bedford Quarries v. Bough, 168 Ind. 671, 80 N. E. 529, 14 L. R. A. (N. S.) 418, declares the employer's liability act (Burns' Ann. St. 1901, § 7083), inapplicable to the appellant company. That case decides the act is violative of the fourteenth amendment of the federal Constitution, in so far as it imposes upon corporate employers burdens which are not imposed upon individual employers. The act as applied to railroads is upheld, but the case does not decide that only railroads as such are within the purview of the act, but that the Legislature intended it to apply to “railroad hazards.” The character of the employment must be the test by which to determine its applicability, and not the character of the employer. KLine v. Minn. Iron Co., 93 Minn. 63, 100 N. W. 681; Bedford Quarries Co. v. Bough, supra. “One rule of liability cannot be established for railway companies merely as such, and another rule for employers under like circumstances and conditions. *** Neither would it relieve the act from the imputation of class legislation that it applies alike to all railroads. It has sometimes been loosely stated that special legislation is not class, ‘if all persons brought under its influence are treated alike under the same conditions.’ But this is only half the truth. Not only must it treat all alike, under the same conditions, ‘all who are brought within its influence,’ but in its classification it must bring within its influence all who are under the same conditions. Therefore if a distinction is to be made between railway corporations and other employers as respects their liability to their employés, it must be based upon some difference in the nature of the employment, and can only extend to cases where such difference exists.” Bedford Quarries Co. v. Bough, supra. Similar language was used in Johnson v. St. Paul, etc., R. Co., 43 Minn. 222, 45 N. W. 156, 8 L. R. A. 419;Jemming v. Great Northern R. Co., 96 Minn. 302, 104 N. W. 1079, 1 L. R. A. (N. S.) 696. Analogous statutes of other states applying to “railroads” have been upheld because their manifest purpose was to give their benefits to employés engaged in the hazardous business of operating railroads. Akeson v. Ch., etc., R. Co., 106 Iowa, 54, 75 N. W. 676; Mo. Pac. R. Co. v. Haley, Adm'r, 25 Kan. 53. A consideration of the reasoning of the foregoing cases shows that the appellee was within the statute. Clearly it was a railroad hazard which caused the death. In Pierce v. Iowa Cent. R. Co., 73 Iowa, 140, 34 N. W. 783, a person employed in a railway car shop recovered for an injury caused by the negligent moving of a train while on a ladder leaning against one of the cars of the train. Other cases deciding what are “railroad hazards” are collected in a note to Jemming v. Great No. R., 96 Minn. 302, 104 N. W. 1079, 1 L. R. A. (N. S.) 697. The statute under which this...