Louisville & Nashville R. R. v. Melton

105 S.W. 366, 127 Ky. 276, 1907 Ky. LEXIS 125

• Court: Court of Appeals of Kentucky
• Decided: November 19, 1907
• Status: Published

Opinions

Opinion op the Court by

Judge Hobson

Affirming.

Spencer Melton was a carpenter in the service of the Louisville & 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 paralized 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 employe while in its service, the employe 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 nse 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 employe at the time of the injury was bound to conform and did conform.

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“See. 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 employes 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 Sup. 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 cons-titutionál 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 build 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'. Indianapols, etc., R. R. Co. v. Kane (Ind.) 80 N. E. 841; Schoolcrafts Adm’r v. L. & N. R. R. Co., 92 Ky. 233, 13 Ky. Law Rep. 517, 17 S. W. 567, 14 L. R. A. 579; Chicago, etc., R. R. Co. v. Stahley, 62 Fed. 363, 11 C. C. A. 88; Callahan v. Railroad Co., 170 Mo. 473, 71 S. W. , 60 L. R. A. 249, 94 Am. St. Rep. 746; Railroad Co. v. Callahon, 194 U. S. 628, 24 Sup. Ct. 857, 48 L. Ed. 1157; Railroad Co. v. Ivey, 73 Ga. 504.

The defendant also insisted that the act cannot he 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 of Indiana are only considered in this State by comity, and that it will not be enforced in this State when the courts of Indiana do not treat the Kentucky statutes and decisions with like comity. The section in question has been held unconstitutional by the courts of Indiana. Baltimore & Ohio S. W. R. Co. v. Reed, 158 Ind. 25, 62 N. E. 488, 56 L. R. A. 468, 92 Am. St. Rep. 293. But, aside from this, when the plaintiff wa;s injured at Howell, Ind., a cause of action accrued to him; and this cause of action which there accrued to him he is seeking to enforce by this action. The rights of the parties must depend on the facts as they then existed. The cause of action which Melton then had the courts of Kentucky will enforce. We have no doubt the courts of Indiana do the same as to a cause of action accruing here. But, if they did not, the fact that they did not administer justice would be no reason why this court should deny justice to a litigant here. No reason of public policy exists why the courts of this State should be closed to a citizen of this State seeking to enforce a meritorious cause of action.

The proof on the trial on behalf of the plaintiff showed that the chain was not the proper one for the work in which it was used, that it was supplied by the foreman, and that he had ordered the men to use it. The proof also showed that the chain was a defective one of its kind, and that this might have been discovered by an ordinary examination' of it. The broken .link has been brought to this court with the record, and an examination of it indicates that the iron was not properly welded when the link was made. The plaintiff also. showed that a chain of long links like this, when put around a square sill, is much more liable to pull in two at the corners of the sill, where the strain would tend to pull the link open, than it would be if the chain was stretched straight and a direct strain put upon it. The only expert who testified on the trial stated that the chain had a strength of 6,000 pounds;-that the rule was that a chain would have a strength 6 times as great if the strain was steady and 16 times as great if it came by jerks. The weight of the bent here was greater than one-sixth of the strength of the chain, and in lifting the bent they put much more strain upon the chain than the weight of the bent, because, the rope being at an acute angle to the bent, a large part of the power went against the ground at the foot of the bent. In addition to this, the strain being by jerks, a much stronger chain was required, especially at the corners of the sill the strain would be great. It is apparent, from an examination of the link brought here, that the link pulled open. There was therefore proof that the master did not furnish the servant a reasonably safe appliance, and that by reason of the insufficiency of the appliance, the servant received the injuries sued for. The court properly refused to instruct the jury peremptorily to find for the defendant, and submitted the question of negligence to the jury.

The court, among other things, instructed the jury as follows: “(1) The court instructs the jury that if they believe from the evidence that the injury received by plaintiff, if any, was suffered by reason of any defect in the condition of works or tools connected with or in use in the business of the defendant, and that such defect, if any, was the result of negli-, gence on the part of the defendant’s foreman of a construction crew with which plaintiff was working, and who was a person intrusted by the defendant with the duty of keeping such tools or works in a proper condition, and that plaintiff was at the time he received such injury in the service of the defendant, and was at the time in the exercise of due care and diligence, then the law is for the plaintiff, and the jury shall so find. (2) If the jury shall believe from the evidence that the injury to plaintiff, if any, resulted from the negligent orders, if any, of the foreman of the construction crew with which plaintiff was working, such foreman being then in the service of the defendant, and that plaintiff at the time was bound to conform and did conform to the orders or directions of such foreman, and the plaintiff ■himself was at the time an employe of the defendant, in its service, and was himself at the time in the exercise of due care and diligence, then the law is for the plaintiff, and the jury will so find. * :V ’* (5) The court instructs the jury that they cannot in any event find for plaintiff, because they may believe from the evidence that the ’ chain with which the hitch was made was not reasonably safe, if they shall believe from the evidence such condition was unknown to defendant’s foreman, W. C. Shrode,- and would not have been discovered by him by the exercise of ordinary care in time to have prevented the injury.”

These instructions are in accord with the statute. The foreman ordered the men to use the chain. He ordered them to lift the bent with the block and tackle. He ordered Melton to get a piece of timber and prop the bent, and when Melton was obeying his order, in his presence and under his personal supervision, the bent fell, by reason of the breaking of the chain, and injured him. We cannot see how the jury could have been misled in any way by the instructions. The real question in the case was whether the chain was defective, or an improper appliance; and the court by the fifth instruction told the jury that they could not in any event find for the plaintiff, on the ground that the chain was not reasonably safe, if Shrode did not know its condition and could not have discovered it by ordinary care. The instructions asked by the defendant, so far as they were proper, were embraced in those given by the court.

' It is earnestly insisted that the verdict is palpably excessive and the result of passion and prejudice on the part of the jury. In a case like that before us, where a young and healthy man has been made a complete- wreck, so that life must be to him a burden, a living death, a much larger verdict may be sustained than in a case where the person is killed. The plaintiff was capable of earning something like $3 a day. He was in the morning of life, and might reasonably expect to increase his earning capacity as he rose in his business. But, in view of his expectation of life, at what he had then been making, the verdict is not so excessive as to strike one at first blush as the result of passion and prejudice, when we consider the suffering that he endured and his helpless condition at the trial, when medical skill had done all that it could do for him. In other states a number of verdicts much larger have been sustained for injuries not so serious as those proved here. Texas, etc., R. Co. v. Kelly, 34 Tex. Civ. App. 21, 80 S. W. 1073; Fonda v. St. Paul City Ry. Co., 77 Minn. 336, 79 N. W. 1043; Pittsburgh, etc., Ry. Co. v. Simons, (Ind.) 79 N. E. 911; Scullin v. Wabash R. Co., 184 Mo. 695, 83 S. W. 760; Alberti v. New York, etc., R. Co., 118 N. Y. 77, 23 N. E. 35, 6 L. R. A 765; Retan v. Lake She re, etc., Ry Co., 94 Mich,. 146, 53 N. W. 1094; Smith v. Whittier, 95 Cal. 279, 30 Pac. 529; Phillips v. London R. R. Co., 42 L. T. R. 6.

There was no substantial error in the admission or rejection of evidence The persons admitted as experts were qualified' to testify as such. The weight of their evidence was for the jury. On the whole record, we see no error to the prejudice of defendant’s substantial rights.

Judgment affirmed.