Indianapolis Traction & Terminal Co. v. Kinney, No. 21,149.

Docket NºNo. 21,149.
Citation85 N.E. 954, 171 Ind. 612
Case DateOctober 27, 1908
CourtSupreme Court of Indiana

171 Ind. 612
85 N.E. 954

INDIANAPOLIS TRACTION & TERMINAL CO.
v.
KINNEY.

No. 21,149.

Supreme Court of Indiana.

Oct. 27, 1908.


Appeal from Circuit Court, Marion County; H. C. Allen, Judge.

Action by Thomas J. Kinney, by next friend, William Kinney, for personal injuries, against the Indianapolis Traction & Terminal Company. Judgment for plaintiff for $3,500, and defendant appeals. Reversed, with instructions to grant a new trial.

[85 N.E. 955]


F. Winter and W. H. Latta, for appellant.
Elliott & Elliott and Geo. W. Galvin, for appellee.

HADLEY, J.

Appellee was an employé of appellant. He and five others were employed to do service as common laborers, as a gang, in repairing and constructing tracks for the defendant, a street car corporation. He claims that his injury was caused by the negligent act of John Wilson, another employé of appellant, and who was at the time foreman of said gang. The gang was taken by Wilson to a flat car standing on a siding, to unload some steel rails. The plaintiff was ordered by Wilson to bring an implement from the tool car. In the plaintiff's absence Wilson superintended the placing of some skids on the side of the flat car, down which to slide the rails, and upon plaintiff's approach to the car Wilson ordered him to step up and, with the implement he had, turn the rails off the car onto the skids. In obedience to the order plaintiff turned a rail off, which when it dropped onto the skids, one of the latter slipped off the car, and caused the rail to drop upon and injure the plaintiff. The complaint is in a single paragraph, and rests on the second clause of section 7083, Burns' Ann. St. 1901 (section 8017, Burns' Ann. St. 1908), known as the “Employer's Liability Act.” It is alleged: “That while so employed, on the 15th day of June, as aforesaid, this plaintiff was directed and instructed by one John Wilson, a foreman of the work gang, who had power and control over said plaintiff, and to whose orders and directions he was bound to conform, and did conform. *** That said Wilson directed the construction of, and saw to the placing of, certain skids for the movement of said rails from said car, but in such a careless and negligent manner as to make them unsafe and dangerous to use. *** The falling of said skids was caused wholly and entirely by the negligence and carelessness of said defendant, and of said John Wilson in the erection of said skids, and by the negligence and carelessness of said defendant and John Wilson in not furnishing sufficient men to handle, control, and carry the irons at the time being moved, etc. *** That at the time of said accident said plaintiff was

[85 N.E. 956]

obeying orders of said Wilson, to whose orders by reason of his employment he was bound to conform, and did conform. ***” Knowledge of the unsafe and dangerous condition of the skids on the part of the defendant and Wilson, it is averred, and on the part of the plaintiff, denied. There was no demurrer to the complaint. The answer, so far as material in this appeal, was the general denial. There was a verdict and judgment for appellee, and, appellant's motion for a new trial having been overruled, it appeals.

The errors assigned call in question the sufficiency of the complaint and the overruling of the motion for a new trial. The court instructed the jury, over appellant's objection, in substance, if they found from the evidence that the plaintiff was in the employ of the defendant, and under the direction of another employé of the defendant in charge of the work, and if such other employé or superintendent negligently constructed or placed the skids, if plaintiff had no knowledge, or means of knowledge, of such condition, and while performing the work he was directed to perform by said boss or superintendent said skids fell by reason of said negligence, and injured the plaintiff, then they should find for the plaintiff, unless the plaintiff himself was negligent. The complaint and instruction each presents the same question, and assumes that the employers' liability act applies to the facts stated. Is appellee correct in this assumption? Appellant, in maintaining the negative, contends: First, that the statute referred to contravenes the fourteenth amendment to the federal Constitution, in that it denies to the appellant the equal protection of the law in its capacity as an employer. This question received the consideration of the court in Railway Company v. Montgomery, 152 Ind. 1, 49 N. E. 582, 69 L. R. A. 875, 71 Am. St. Rep. 301, and has been before the court in a number of cases since. Railroad Co. v. Hosea, 152 Ind. 412, 416, 53 N. E. 419; Railroad Co. v. Lightheiser, 168 Ind. 438, 78 N. E. 1033;Bedford Quarries Co. v. Bough, 168 Ind. 672, 80 N. E. 529, 14 L. R. A. (N. S.) 418. But in no subsequent case has any reason been suggested to impair our confidence in the rule as laid down in the Montgomery Case, on this point; and, being satisfied therewith, we deem it unprofitable to repeat the reasons for such holding.

It has always been held in this state that section 23 of the Bill of Rights, in spirit and meaning, did not forbid the making of such classification of subjects, for legislative purposes, as are demanded by reasons of economy, convenience, and the best interests of the public, and it is found that any such classification can be made as will treat all alike and bring within its influence all who are under the same conditions. To illustrate: It would be found burdensome, wasteful, and even impracticable for our cities of the smaller class to be compelled to maintain the expensive municipal machinery found necessary to the successful government of our larger cities. The constitutionality of the employers' liability statutes is upheld on the ground that the inclusion of railroads only is a proper classification, because it relates to the peculiar hazards inherent in the use and operation of railroads, and refers to the character of the employment, and not to the employer. Railroad Co. v. Lightheiser, 168 Ind. (1906) 438, 78 N. E. 1033;Quarries Co. v. Bough, 168 Ind. (1906) 671, 80 N. E. 529, 14 L. R. A. (N. S.) 418;Johnson v. Railway Co., 43 Minn. 222, 45 N. W. 156, 8 L. R. A. 419;Railway Co. v. Haley, 25 Kan. 35; Potter v. Railroad Co., 46 Iowa (1877) 399. The peculiar and superlative dangers to which employés are necessarily exposed in the running of trains form the basis of such classification, and it is not therefore material whether the employer in railroad service is a corporation, partnership, or an individual. The liability is the same in one case as in the other. Railroad Co. v. Lightheiser, 168 Ind. 438, 464, 78 N. E. 1033. To separate railroading from all other kinds of business is not an unconstitutional discrimination, because no other business is beset with so many and severe dangers as those encountered by employés, in preparing for, and during, the movement and operation of railroad trains. Railroad Co. v. Houlihan, 157 Ind. 494, 60 N. E. 943, 54 L. R. A. 787. Such classification cannot be arbitrarily made. There must exist some good and natural reason for it. We said in Bedford Quarries Co. v. Bough, 168 Ind. 671, 674, 80 N. E. 529, 14 L. R. A. (N. S.) 418, touching this subject: “Such legislation must not only operate equally upon all within its class, but...

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32 practice notes
  • Chicago, M. & St. P. Ry. Co. v. Westby, 3,146.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 12, 1910
    ...Lavallee v. St. Paul, Minneapolis & Manitoba Ry. Co., 40 Minn. 249, 251, 41 N.W. 974; Indianapolis Traction & Terminal Co. v. Kinney, 171 Ind. 612, 85 N.E. 954, 956, 957, 23 L.R.A.(N.S.) 711; Bedford Quarries Co. v. Bough, 168 Ind. 671, 674, 80 N.E. 529, 533, 14 L.R.A.(N.S.) 418; Sams v. St......
  • Stoll v. Pacific Coast S.S. Co., 1,241.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
    • April 28, 1913
    ...Railway Co. v. Castle, 172 F. 841, 97 C.C.A. 124; Peirce v. Van Dusen, 78 F. 693, 24 C.C.A. 280, 69 L.R.A. 705; Traction Co. v. Kinney, 171 Ind. 612, 85 N.E. 954, 23 L.R.A. (N.S.) 711; Mobile, etc., R.R. Co. v. Turnipseed, 219 U.S. 35, 31 Sup.Ct. 136, 55 L.Ed. 78, 32 L.R.A. (N.S.) 226, Ann.......
  • Jordan v. City of Logansport, No. 21,709.
    • United States
    • Indiana Supreme Court of Indiana
    • July 5, 1912
    ...v. Lehman, 170 Ind. 408, 417-421, 83 N. E. 714, 84 N. E. 769, 15 Ann. Cas. 849, and cases cited; Indianapolis, etc., Co. v. Kinney, 171 Ind. 612, 616, 617, 85 N. E. 954, 23 L. R. A. (N. S.) 711;Town of Longview v. City of Crawfordsville, 164 Ind. 117, 121-124, 73 N. E. 78, 68 L. R. A. 622, ......
  • Indianapolis Traction & Terminal Co. v. Mathews, No. 21,711.
    • United States
    • Indiana Supreme Court of Indiana
    • January 31, 1912
    ...73 N. E. 188;Ft. Wayne, etc., Co. v. Parsell, 168 Ind. 223, 230, 79 N. E. 439, and cases cited; Indianapolis, etc., R. Co. v. Kinney, 171 Ind. 612, 622, 85 N. E. 954, 23 L. R. A. (N. S.) 711, and cases cited; Chicago, etc., Co. v. Barker, 169 Ind. 670, 676, 677, 83 N. E. 369, 17 L. R. A. (N......
  • Request a trial to view additional results
37 cases
  • Chicago, M. & St. P. Ry. Co. v. Westby, 3,146.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 12, 1910
    ...Lavallee v. St. Paul, Minneapolis & Manitoba Ry. Co., 40 Minn. 249, 251, 41 N.W. 974; Indianapolis Traction & Terminal Co. v. Kinney, 171 Ind. 612, 85 N.E. 954, 956, 957, 23 L.R.A.(N.S.) 711; Bedford Quarries Co. v. Bough, 168 Ind. 671, 674, 80 N.E. 529, 533, 14 L.R.A.(N.S.) 418; Sams v. St......
  • Stoll v. Pacific Coast S.S. Co., 1,241.
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
    • April 28, 1913
    ...Railway Co. v. Castle, 172 F. 841, 97 C.C.A. 124; Peirce v. Van Dusen, 78 F. 693, 24 C.C.A. 280, 69 L.R.A. 705; Traction Co. v. Kinney, 171 Ind. 612, 85 N.E. 954, 23 L.R.A. (N.S.) 711; Mobile, etc., R.R. Co. v. Turnipseed, 219 U.S. 35, 31 Sup.Ct. 136, 55 L.Ed. 78, 32 L.R.A. (N.S.) 226, Ann.......
  • Jordan v. City of Logansport, No. 21,709.
    • United States
    • Indiana Supreme Court of Indiana
    • July 5, 1912
    ...v. Lehman, 170 Ind. 408, 417-421, 83 N. E. 714, 84 N. E. 769, 15 Ann. Cas. 849, and cases cited; Indianapolis, etc., Co. v. Kinney, 171 Ind. 612, 616, 617, 85 N. E. 954, 23 L. R. A. (N. S.) 711;Town of Longview v. City of Crawfordsville, 164 Ind. 117, 121-124, 73 N. E. 78, 68 L. R. A. 622, ......
  • Indianapolis Traction & Terminal Co. v. Mathews, No. 21,711.
    • United States
    • Indiana Supreme Court of Indiana
    • January 31, 1912
    ...73 N. E. 188;Ft. Wayne, etc., Co. v. Parsell, 168 Ind. 223, 230, 79 N. E. 439, and cases cited; Indianapolis, etc., R. Co. v. Kinney, 171 Ind. 612, 622, 85 N. E. 954, 23 L. R. A. (N. S.) 711, and cases cited; Chicago, etc., Co. v. Barker, 169 Ind. 670, 676, 677, 83 N. E. 369, 17 L. R. A. (N......
  • Request a trial to view additional results

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