Indianapolis Union Ry. Co. v. Waddington

• Decision Date: 11 December 1907
• Docket Number: No. 21,106.,21,106.
• Citation: 82 N.E. 1030,169 Ind. 448
• Parties: INDIANAPOLIS UNION RY. CO. et al. v. WADDINGTON.
• Court: Indiana Supreme Court

169 Ind. 448

82 N.E. 1030

INDIANAPOLIS UNION RY. CO. et al.

v.WADDINGTON.

No. 21,106.

Supreme Court of Indiana.

Dec. 11, 1907.

Appeal from Circuit Court, Hamilton County; Sam. R. Artman, Special Judge.

Action by Elmer E. Waddington, administrator of John H. Heckman, against the Indianapolis Union Railway Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

See 81 N. E. 1179.

Kane & Kane, Baker & Daniels, F. Winters, W. F. Christian, and W. H. Latta, for appellants. C. F. Remy, J. W. Donaker, and Shirts & Fertig, for appellee.

GILLETT, J.

Appellee brought this action against the Indianapolis Street Railway Company and the Indianapolis Union Railway Company to recover for the alleged negligent killing of his decedent, John H. Heckman.

The first question for our consideration arises upon the motion of appellee to dismiss the appeal from the Appellate Court to this court, on the ground that the act of March 9, 1907 (Acts 1907, p. 237, c. 148), has deprived us of jurisdiction. Section 1 of that act relates to cases which may be appealed directly to the Supreme Court, and the fourteenth clause of that section gives this court jurisdiction in cases “wherein the amount of money in controversy, exclusive of interest and costs, on the judgment of the trial court, exceeds $6,000.” Section 2 provides that the clerk shall, upon the taking effect of the act, docket in the Supreme Court all cases then pending in the Appellate Court, not ready for distribution, the jurisdiction of which is by said act conferred upon the Supreme Court. Then follows this proviso: “That all cases other than those herein mentioned shall remain in the Appellate Court, and be heard and finally determined by said Appellate Court as though this act had not passed.” It may be admitted that it was competent for the General Assembly to cut off this court's jurisdiction on appeal from the Appellate Court. We are of opinion, however, that this is not the effect of said act as applied to cases of the class in question, which were ready for distribution at the time the law took effect. A repealing clause is subject to construction, the same as any other provision of statute. Arnett v. State ex rel., 80 N. E. 153, 8 L. R. A. (N. S.) 1192; 26 Am. & Eng. Ency. of Law, 720. Even an express declaration of a repeal will not be given that effect when it is apparent that the Legislature did not so intend. We observe, in the first place, that as applied to cases in which more than $6,000 is in controversy upon the judgment the statute continues the legislative policy of this state for many years to give this court final jurisdiction for the purposes of review of this class of cases. What reason could there be, therefore, for permitting certain cases of this class to be conclusively determined by the Appellate Court? A construction is to be preferred which carries out the general policy; thus leaving all interests unimpaired. 26 Am. & Eng. Ency. of Law (2d Ed.) 758; Taylor v. Strayer, 167 Ind. 23, 78 N. E. 236;State v. Kates, 149 Ind. 46, 48 N. E. 365. In determining whether it was the legislative purpose by the repealing clause absolutely to repeal subdivision 3 of section 10 of the act of 1901 (page 567, c. 247), the fact must not be lost sight of that section 17 of the latter act provides that, if a cause be appealed to the Supreme Court from the Appellate Court, “the judgment of the division of the Appellate Court is thereby vacated.” We would, therefore, have the startling consequence, as applied to cases which had been decided by the Appellate Court and were pending on appeal in this court at the time the act of 1907 took effect, that, if the provision for repeal were literally followed, there would not even remain the judgment of the Appellate Court, so that, whatever might have been the judgment of the latter court, the judgment of the trial court would have to prevail; the fact being that the act of 1907 had deprived us of jurisdiction, while section 17 of the act of 1901 had operated to vacate the judgment of the Appellate Court. It cannot be presumed that such a result was contemplated by the Legislature, when it added the repealing clause to the act of 1907. Therefore we are led seriously to doubt the proposition that said clause should be given an unrestricted operation. But we do not rest our conclusion on the above consideration. The proviso of section 2 provides that distributed cases of the class in question “shall be heard and finally determined by said Appellate Court as though this act had not been passed.” Looking at the question from this viewpoint, it appears that, if the situation stood as to such cases as though the act of 1907 had not been passed, that court never did possess the power of final determination. The word “final,” therefore, appears to have been used, as it frequently is in reference to judgments, as denoting the essential character of the judgment, and not the mere consequences thereof. 19 Cyc. 532. If the Appellate Court is to hear and determine the case as if the act of 1907 had not been passed, it follows that said court has never had, and therefore is still without, the power to render a judgment which shall be final, using that word in the sense of conclusive. Counsel for appellee find themselves constrained to argue as to the proper construction of the act as one of an ambiguous character, but, in view of the considerations above suggested, we can but regard such implied admission as leading to the conclusion that, so long as it is a matter of construction, such consequences should be avoided. “Statutes will be construed in the most beneficial way which their language will permit to prevent absurdity, hardship, or injustice, to favor public convenience, and to oppose all prejudice to public interest. The considerations of evil and hardship may properly exert influence in giving a construction to a statute when its language is ambiguous or uncertain and doubtful.” Sutherland, Statutory Construction, § 34. The motion to dismiss is overruled.

Heckman came to his death in a collision between a street car of the Indianapolis Street Railway Company and a freight train of the Indianapolis Union Railway Company, which occurred at the intersection of the latter's tracks with East street, in the city of Indianapolis. The street runs north and south, and the steam railway tracks cross it at right angles. On the day in question the street car, which was running north, came into collision with a locomotive (No. 11) attached to several freight cars, which was going west on the north track of the steam railroad. Heckman, who was a brakeman of the Indianapolis Union Railway Company, and as such was riding on said locomotive, jumped therefrom, and was killed, by reason of the fact that the street car was struck by another locomotive (No. 4) which, with a train of cars, was running east on the south track of said company. The case was tried on the ninth and tenth paragraphs of the complaint, and resulted in a verdict and judgment against both of said appellants. We shall not attempt to set out all of the averments of the ninth paragraph of complaint, but only so much thereof as is relevant to the objections which appellants severally urge against it. It is therein charged that the street railway company's servants who were in charge of said street car knew that trains of the Union Railway Company passed over said crossing at frequent intervals, and could by the exercise of reasonable care have seen said locomotives approaching before going upon the tracks; that the street railway company negligently permitted its said car to enter upon said tracks without sending the conductor thereof or any other person in front of said car to ascertain whether locomotives or cars were approaching as required by an ordinance of the city of Indianapolis approved February 9, 1901, and in full force and effect on the 26th day of November, 1902 (the day of the collision). The ordinance referred to is then set out. It is further charged that the Indianapolis Street Railway Company negligently failed to make reasonable or proper investigation in order to ascertain whether locomotives or trains were approaching said crossing, and negligently ran said street car on and upon said tracks and crossing and in front of engine No. 4; that the servants of said street railway company in charge of said car knew, or by the exercise of reasonable care and diligence could have ascertained and known, before attempting to cross said tracks, that the locomotive and train approaching from the east would strike and collide with said car, and that, if said collision occurred, there would be danger of a collision with the train coming from the west; that the brake on said street car was worn out and out of repair, and, when the servants in charge of said car discovered the approach of said locomotive No. 11, the brake on said car, by reason of its said worn and defective condition as aforesaid, failed to work, and they were unable to stop said car, but negligently ran the said car upon the tracks and crossing of said steam railway, and the said car struck and came into collision with engine No. 11, and the front end of said street car was turned to the west; that at or about the time of said collision Heckman, who was in a position of peril on account of such impending collision, in order to avoid the danger, jumped to the ground on the south side of said locomotive; that at that time, without the knowledge of said decedent, said locomotive No. 4, in charge of an engineer and conductor, the servants of the Indianapolis Union Railway Company, was being run backward at a high and dangerous rate of speed- that is to say, at the rate of more than four miles per hour, to wit, at the rate of eight miles per hour, in violation of an ordinance of said city “approved March 12, 1866, which is, and was at the time of the injury of said decedent...