Jarvis v. Hitch

• Decision Date: 26 June 1903
• Docket Number: 20,151
• Court: Indiana Supreme Court
• Parties: Jarvis, Receiver of the Louisville, Evansville & St. Louis Consolidated Railroad Company, v. Hitch

67 N.E. 1057

161 Ind. 217

Jarvis, Receiver of the Louisville, Evansville & St. Louis Consolidated Railroad Company, v. Hitch

No. 20,151

Supreme Court of Indiana

June 26, 1903

From Gibson Circuit Court; O. M. Welborn, Judge.

Action by Oscar Hitch against George T. Jarvis, receiver of the Louisville, Evansville & St. Louis Consolidated Railroad Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court, under clause two of § 1337j Burns 1901.

Reversed.

M. W Fields, J. D. Welman and W. L. Taylor, for appellant.

L. C Embree, for appellee.

OPINION

Monks C. J.

This action was brought under the fourth subdivision of § 1 of the act of March 4, 1893 (Acts 1893, [161 Ind. 218] p. 294, § 7083 Burns 1901) by appellee to recover damages for a personal injury received by him while in the service of appellant by reason of the alleged negligence of a person in the service of said appellant who had "charge of a locomotive engine upon a railway." A trial of said cause resulted in a verdict and judgment in favor of appellee.

The errors assigned call in question the action of the court in overruling appellant's demurrer to the complaint, appellant's demurrer to the second paragraph of reply, and appellant's motion for a new trial.

The fourth subdivision of said § 7083, supra, reads as follows: "That every railroad or other corporation, except municipal, operating in this State, shall be liable for damages for personal injuries suffered by any employe while in its service, the employe so injured being in the exercise of due care and diligence, in the following cases: * * * (4) where such injury was caused by the negligence of any person in the service of such corporation who has charge of any signal, telegraph office, switch yard, shop, roundhouse, locomotive engine or train upon a railway."

We are satisfied that the complaint was sufficient to withstand the demurrer for want of facts, and that the court did not err in overruling the same.

The controlling question presented by the record is whether or not the machine alleged in the complaint to be a "locomotive engine" was such within the meaning of said fourth subdivision. It appears from the evidence that appellee and others in the service of appellant were engaged in repairing a certain trestle on appellant's line of road, and were using a pile-driver for that purpose. This machine consisted of a steam-engine placed on a flat car at one end, and the driver used in raising the hammer placed at the other end of the flat car, and all forming one machine. The engine was used to lift the hammer and let it drop on the pile and drive it down. There was a sprocket-wheel on the axle under the boiler, and a chain running from the engine to said wheel, by means of which said machine and the cars belonging to it were moved from place to place on the track. When driving a pile the chain was taken off of the sprocket-wheel. The following is a correct cut of the machine as shown by the record:

[SEE EXTENSION STEAM PILE-DRIVER, TYPE NO. 1 IN ORIGINAL]

The injury for which appellee sued in this action was caused by the negligence of the person who had charge of said machine. If said machine was not a locomotive engine within the meaning of said fourth subdivision, the case must be reversed. Said employers' liability act was adopted by the legislature of this State in 1893, and said fourth subdivision of the first section thereof, so far as a right of action is given for injury caused by the negligence of persons in charge of "any signal, * * * locomotive engine or train upon a railway" is substantially the same as the fifth subsection of the English employers' liability act of 1880. As the English employers' liability act was enacted in 1880, the meaning given the words "locomotive engine" in said fifth subsection thereof by the courts of that country before the adoption by the legislature of this State of said fourth subdivision in 1893 is persuasive, if not controlling, in determining the meaning of the words "locomotive engine" in said fourth subdivision of § 7083, supra. City of Laporte v. Gamewell, etc., Co., 146 Ind. 466, 469, 35 L. R. A. 686, 58 Am. St. 359, 45 N.E. 588; Commonwealth v. Hartnett, 3 Gray (Mass.) 450, 451; Pratt v. American Bell Tel. Co., 141 Mass. 225, 227, 5 N.E. 307, 55 Am. Rep. 465; Ryalls v. Mechanics' Mills, 150 Mass. 190, 191, 193, 22 N.E. 766, 5 L. R. A. 667, 669, 670, and note on page 667; Mellor v. Merchants' Mfg. Co., 150 Mass. 362, 363, 23 N.E. 100, 5 L. R. A. 792, 793; Mobile, etc., R. Co. v. Holborn, 84 Ala. 133, 134, 4 So. 146; Kansas City, etc., R. Co. v. Burton, 97 Ala. 240, 12 So. 88; Birmingham R., etc., Co. v. Allen, 99 Ala. 359, 371, 13 So. 8, 20 L. R. A. 457, 460; Colorado Milling, etc., Co. v. Mitchell, 26 Colo. 284, 289, 58 P. 28; Mitchell v. Colorado Milling, etc., Co., 12 Colo.App. 277, 281, 55 P. 736; Sagers v. Nuckolls, 3 Colo.App. 95, 32 P. 187; Interstate Commerce Commission v. Baltimore, etc., R. Co., 145 U.S. 263, 284, 12 S.Ct. 844, 36 L.Ed. 699; McDonald v. Hovey, 110 U.S. 619, 628-630, 4 S.Ct. 142, 28 L.Ed. 269, and cases cited; Missouri Pac. R. Co. v. Haley, 25 Kan. 35, 53; Reno, Employers' Liability Acts (2d ed.), § 3; Dresser, Employers' Liability, § 3, p. 27; Endlich, Interp. of Stat., § 371; Sutherland, Stat. Constr., § 333; Black, Interp. of Laws, 160-162. See, also, Board, etc., v. Conner, 155 Ind. 484, 496, 58 N.E. 828, and authorities cited; Hilliker v. Citizens St. R. Co., 152 Ind. 86, 88, 52 N.E. 607.

It was said by this court in City of Laporte v. Gamewell, etc., Co., supra, at page 469: "It is a familiar rule that where a clause is taken from the constitution or statute of another state it will be deemed to have the meaning given it by the courts of that state."

In Commonwealth v. Hartnett, supra, at page 451, it was said by the court: "It is common learning, that the adjudged construction of the terms of a statute is enacted, as well as the terms themselves, when an act, which has been passed by the legislature of one state or country, is afterwards passed by the legislature of another * * * for if it were intended to exclude any known construction of a previous statute, the legal presumption is that its terms would be so changed as to effect that intention."

The Colorado employers' liability act of 1893 was copied from the Massachusetts act of 1887, and the supreme court of Colorado, in Colorado Milling, etc., Co. v. Mitchell, supra, at page 289, said: "This is the construction given by the supreme court of Massachusetts to their act of 1887, from which our act was copied; and our legislature presumably adopted the act with the construction that had been given it by the courts of that state."

It was held by the Supreme Court of the United States, in Interstate Commerce Commission v. Baltimore, etc., R. Co., supra, and in McDonald v. Hovey, supra, that when congress adopts the language of an English statute, the federal courts will presume that it had in mind the construction given by the English courts, and intended to incorporate it into the statute. In Interstate Commerce Commission v. Baltimore, etc., R. Co., supra, at page 284, that court said: "But so far as relates to the question of 'undue preference,' it may be presumed that congress, in adopting the language of the English act, had in mind the constructions given these words by the English courts, and intended to incorporate them into the statute. McDonald v. Hovey, 110 U.S. 619, 28 L.Ed. 269, 4 S.Ct. 142."

A statute of Iowa concerning the liability of railroads to its employes, enacted in 1869, was afterwards adopted by the legislature of Kansas, and the supreme court of Kansas in Missouri Pac. R. Co. v. Haley, supra, said concerning the same, at page 53: "As our state has adopted the statute from Iowa, the judicial construction given to it in that state follows it to this state. Bemis v. Becker, 1 Kan. 226."

The meaning of the term "locomotive engine," as used in said English employers' liability act was decided in 1883 by the Queen's Bench Division in Murphy v Wilson, 48 L. T. N. S. 788, 52 L. J. Q. B. D. 524, 525. In that case Murphy sued to recover compensation for personal injury caused to him while in the service of Wilson & Son, as he alleged, by reason of the...