Louisville & N.R. Co. v. Melton

• Decision Date: 19 November 1907
• Citation: 127 Ky. 276,105 S.W. 366
• Parties: LOUISVILLE & N. R. CO. v. MELTON.
• Court: Kentucky Court of Appeals

105 S.W. 366

127 Ky. 276

LOUISVILLE & N. R. CO. v. MELTON.

Court of Appeals of Kentucky.

November 19, 1907

Appeal from Circuit Court, Hopkins County.

"To be officially reported."

Action by Spencer Melton against the Louisville & Nashville Railroad Company, for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

Benjamin D. Warfield and Waddill & Dempsey, for appellant.

Gordon Gordon & Cox and Clay & Clay, for appellee.

HOBSON J.

Spencer Melton was a carpenter in the service of the Louisville &amp Nashville Railroad Company, and on March 2, 1905, was engaged in building a coal chute on the railroad tracks near Howell Ind., working under a foreman named Shrode. In building the coal chute it became necessary to set up some bents, weighing about 1,200 pounds each, and 22 feet long. To raise up the bents they used a pulley, block, and tackle. The bent was raised by the hands pulling on the rope. The pulley was fastened to a square beam by an iron chain similar to those used for locking a wagon. The bent was too heavy for the men to carry it up at once. They would surge upon the rope, and thus lift it a little, and then, after catching their breath, would surge again. To prevent the bent from going back when thus lifted up, Melton, by the direction of the foreman, got a piece of timber and propped the bent, to hold it at the height to which it had been raised when the men made a surge. The foreman had a similar piece of timber and propped the bent on the opposite side from Melton. While they were thus engaged in raising the bent, the chain which held the pulley broke, the bent fell, catching Melton under it, and smashing him down upon other timbers, fracturing one leg at the knee, the other at the hip, breaking the ribs on one side, and also breaking his back. By reason of his injuries he was paralyzed from his waist down. The bowels and bladder have to be moved with an instrument. His virility is destroyed. He has no feeling in the right leg, or use of it, and the left is but little better. He was then a healthy young man, weighing 145 pounds. Now he weighs 116 pounds. His suffering for six or eight weeks was very intense, and since then, while he has not suffered so much, he is never free from pain. The pain in his back is continuous. He was treated in sanitariums at Chicago, St. Louis, and Evansville, as well as by local doctors at his home. The testimony of the physicians show that his injuries are permanent. In this suit brought by him to recover for his injuries, the jury found for him and fixed his damages at $22,000. The court entered judgment upon the verdict, and the railroad company appeals.

The action was brought under a statute of Indiana, which, so far as material, is as follows:

"An act regulating liability of railroads and other corporations, except municipal, for personal injury to persons employed by them, fixing the rules of evidence which shall govern in such cases, and providing that the decisions or statutes of other states shall not be pleaded or proven as a defense in this state; provided further, that its provisions shall not apply to any injuries sustained before it takes effect, nor in any manner any suits or legal proceedings pending at the time it takes effect, and declaring an emergency.

Approved March 4, 1893.

Section 1. Be it enacted by the General Assembly of the state of Indiana, that every railroad or other corporation except municipal operating in this state, shall be liable in damages for personal injury suffered by any employé while in its service, the employé so injured being in the exercise of due care and diligence, in the following cases:

First: When such injury is suffered by reason of any defect in the condition of ways, works, plants, tools and machinery connected with or in use in the business of such corporation, when such defect was the result of negligence on the part of the corporation, or some person entrusted by it with the duty of keeping such way, works, plant, tools or machinery in proper condition.

Second: Where such injury resulted from the negligence of any person in the service of such corporation, to whose order or direction the injured employé at the time of the injury was bound to conform and did conform.

* * *

* * *

Sec. 4. In case any railroad corporation which owns or operates a line extending into or through the state of Indiana and into or through another or other states, and a person in the employ of such corporation, a citizen of this state, shall be injured as provided in this act, in any other state where such railroad is owned or operated, and a suit for such injury shall be brought in any of the courts of this state, it shall not be competent for such corporation to plead or prove the decisions or statutes of the state where such persons shall have been injured as a defense to the action brought in this state."

Laws 1893, p. 294, c. 130.

It is insisted for the railroad company that the act is unconstitutional in this: that it applies to corporations and does not apply to individuals whose employés may be injured. The Supreme Court of Indiana has construed the statute only to apply to railroad companies. It is held that it applies to all persons, whether natural or artificial, operating a railroad, and that it does not apply to any other business. The United States Supreme Court has affirmed the constitutionality of the statute, basing its judgment upon the construction of the statute given by the Supreme Court of Indiana. Railroad Co. v. Montgomery, 152 Ind. 1, 49 N.E. 582, 69 L.R.A. 875, 71 Am.St.Rep. 301; Tullis v. Railroad Co., 175 U.S. 348, 20 S.Ct. 136, 44 L.Ed. 192; Railroad Co. v. Lightheiser (Ind.) 78 N.E. 1033; Indianapolis, etc., R. R. v. Houlihan, 157 Ind. 494, 60 N.E. 943, 54 L.R.A. 787; Bedford Quarries Co. v. Bough (Ind.) 80 N.E. 529.

It is earnestly insisted that, while the act is constitutional under these rulings as to those operating a railroad, it cannot be held constitutional as to a carpenter; that the state may not establish a rule for carpenters in the service of a railroad, and another rule for carpenters in the service of other people. We are unable to see the force of this distinction. A railroad cannot be run without bridges. Bridges cannot be built without carpenters. The work of a bridge carpenter on a railroad is perhaps no less perilous than the work of an operative on one of its trains. Coal tipples are no less essential to the operating of a railroad than bridges, because the engines cannot be operated without coal. The construction of a coal tipple is therefore essential to the operating of a railroad. As has been well said, the Legislature cannot well provide for all subjects in one act. Legislation must necessarily be done in detail, and an act regulating railroads violates no constitutional provision because it is made to apply only to railroads. Indianapolis, etc., R. R. Co. v. Kane (Ind.) 80 N.E. 841; School-crafts Adm'r v. L. & N. R. R. Co., 92 Ky. 233, 17 S.W. 567, 14 L.R.A. 579; Chicago, etc., R. R. Co. v. Stahley, 62 F. 363, 11 C.C.A. 88; Callahan v. Railroad Co., 170 Mo. 473, 71 S.W. 208, 60 L.R.A. 249, 94 Am.St.Rep. 746; Railroad Co. v. Callahan, 194 U.S. 628, 24 S.Ct. 857, 48 L.Ed. 1157; Railroad Co. v. Ivey, 73 Ga. 504.

The defendant also insisted that the act cannot be enforced in this state, because it provides that the decisions and statutes of other states shall not be read or considered in the courts of Indiana. It is said that the statutes...