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say that such guide should be used as a guard."

"No. 18. The defendant claims that there was on said machine at the time in question a fence or guide which could be adjusted by the operator thereof, and that the plaintiff could and should have adjusted said guide or fence so as to leave no more of said knives exposed than was necessary to cut the material being used. In determining the plaintiff's conduct in this regard you have the right to take into consideration the way such machine was usually and ordinarily operated, the device which was furnished, if there was one to cover the portion of the knives between the material and the edge of the table and any other facts or circumstances in the case, bearing thereon."

Elmer E. Stevenson, of Indianapolis, and J. H. Edwards, of Mitchell, for appellant. George H. Voigt, of Jeffersonville, and Evan B. Stotsenburg and John H. Weathers, both of New Albany, for appellee.

SPENCER, J. [1] Appellee recovered judgment for $2,000 in the court below in an action against appellant to recover damages for personal injuries sustained by him by reason of the alleged violation of section 8029. Burns 1908, generally known as the "Factory Act." In prosecuting an appeal to this court appellant seeks to have sections 80218047, Burns 1908, declared "unconstitutional, void and invalid," and particularly insists that section 8029, supra, is invalid for uncertainty, in that the language thereof makes it the duty of the owner, his agent, superintendent, or other person in charge of a manufacturing establishment, where such machinery as that on which appellee was injured is operated, to have the same "properly guarded." When the language, "shall be properly guarded," is considered in connection with the other language of that section, and the other sections of the act in question, it is clear that it means a safeguard to protect the life and limbs of employés engaged about dangerous and hazardous machinery and mechanical appliances, where such can be so guarded without impairing their usefulness. What the size or shape of such guard shall be is not specifically stated in the statute which requires only that it shall be proper, and the term "proper" as thus used means fit, suitable, appropriate. The statute is not subject to the criticism of appellant. State v. Louisville, etc., R. Co., 96 N. E. 341; Booth v. State, 100 N. E. 563; Kirchoff v. Hohnsbehn Creamery Co., 148 Iowa, 508-512, 123 N. W. 210.

in each paragraph of complaint being a violation of statutory requirements, there could be no assumption of risk. The doctrine of assumption of risk does not apply to a case where the injury occurs by reason of the negligent nonobservance of a positive and fixed duty enjoined by a statute. Cleveland, etc., R. Co. v. Powers, 173 Ind. 105-114, 88 N. E. 1073, 1076, and cases cited; Indianapolis, etc., R. Co. v. Waddington, 169 Ind. 448, 82 N. E. 1030; Island Coal Co. v. Swaggerty, 159 Ind. 664-667, 62 N. E. 1103, 65 ̊N. E. 1026; 26 Cyc. 1180. "The failure to perform any duty imposed either by a statute or an ordinance is negligence per se." bash R. Co. v. Beedle, 173 Ind. 437, 442, 90 N. E. 760; Pennsylvania Co. v. Hensil, 70 Ind. 569-574, 36 Am. Rep. 188; King v. Laycock Power House Co. (1910) 46 Ind. App. 420423, 92 N. E. 741.


[3, 4] It is next urged that the first and second paragraphs of complaint are insufficient to withstand the demurrer, for the reason that it is not directly alleged that the failure of appellant to guard its machine The first paragraph alleges, in substance, that was the proximate cause of appellee's injury. in the operation of the woodworker (jointer machine) there is danger that, while the person operating the same runs the wood over the knives, it would be thrown back sudden

ly, and the hand of the operator be thereby brought in contact with the knives; that a proper guard could have been placed on the machine without interfering with its proper operation; that such guard would have protected the knives and prevented any injury from the aforesaid danger; that appellant, in violation of the statute, negligently failed to provide such guard and the machine was without such guard; that while appellee was operating the machine and holding a piece of wood on the table of the same and running it over the knives the wood was suddenly thrown back by the operation of the machine, thereby causing appellee's hand to come in contact with the knives and be thereby injured; that, if such guard had been placed on the machine, his hand would not have come in contact with the knives; that the injury was caused by the negligence of appellant in failing to provide the machine with such guard.

The second paragraph contains allegations similar to those of the first paragraph, and further avers that appellant nas provided the machine in question with "a guard consisting of a board, attached to the table of [2] Appellant contends that the court erred said machine with a screw and placed on in overruling its demurrer to each of the par- said table in such position that it would cover agraphs of complaint for the reason that, the said aperture" through which the knives statute being void, "neither paragraph of the protruded, but "that to make said guard a complaint states a cause of action under the proper one, and one that would safely common law as it is shown by the facts al- guard said knives and prevent injury from leged that the plaintiff assumed the risk; the danger aforesaid, it should then and the conditions and dangers being well known there have been provided with a spring to him." But we have seen that the statute to hold said guard against the material

being sawed and to completely cover said | when it can be done without interfering with aperture above said knives the instant such its proper operation and for such master to material was removed; that said guard with violate the provisions of such act is neglisuch spring would then and there have guard-gence on his part. It is no defense for the ed said knives and prevented any injury from the danger aforesaid."

Each paragraph alleges facts sufficient to show that the failure to guard the machine properly was the proximate cause of the injury, and there was no error in overruling the demurrer on that ground. It is further insisted, however, that the second paragraph of complaint is defective because it is "ambiguous and uncertain if not repugnant." In our opinion it is not subject to this criticism, and states a good cause of action.

[5, 6] Appellant earnestly endeavors to show error in overruling its motion for judgment on the answers to interrogatories. In determining this question we must be guided by the following rules laid down by this court: "A general verdict will not be defeated by isolated facts disclosed by answers to interrogatories, unless such, facts are shown to be so repugnant and contradictory to the general verdict that both cannot be true under any conceivable state of facts provable under the issues." Indiana R. Co. v. Maurer, 160 Ind. 25-27, 66 N. E. 156, 157. "In determining this question we cannot look to the evidence, but only to the complaint, answer, and general verdict, and the answers of the jury to the interrogatories." Consolidated Stone Co. v. Summit, 152 Ind. 297-300, 53 N. E. 235, 236.

No purpose can be served by setting out the 191 interrogatories and answers in this opinion, but it is sufficient to say that no such conflict between the general verdict and the answers to interrogatories is shown as would warrant the striking down of the general verdict, especially in view of appellant's statement "that facts are found in the answers to the interrogatories in this case that are favorable to appellee."

[7] Under the motion for a new trial herein, the next question presented for consideration is the sufficiency of the evidence. That there is a conflict in the evidence is apparent, but it is not the province of this court to weigh the same. When there is legal evidence tending to support a verdict, the finding of the jury concludes the question. Continental Life Ins. Co. v. Yung (1888) 113 Ind. 159, 15 N. E. 220, 3 Am. St. Rep. 630; Evansville, etc., R. Co. v. Harrington (1882) 82 Ind. 534.

[8] Appellant next contends, and discusses in its brief, that the court erred in submitting to the jury instructions numbered 9, 11, 15, 16, 18, and 24 at the request of appellee, and in refusing instructions numbered 1, 5, 14, 18, and 19 tendered by appellant. Instruction No. 9 is as follows: "The Factory Act which requires certain machinery, such as saws, planers, and sharpers, to be guarded, makes it the imperative duty of the master or person coming within its pro

master to say that a factory inspector examined the machine and directed a certain device to be used as a guard. I instruct you that, where a master is by said statute required to furnish a guard, the only way that the master can escape liability is to secure a proper and sufficient guard and furnish such machine with it. The fact, if it be a fact, that other manufacturers are using an imperfect and insufficient guard, is no justification or excuse for such master to violate such statute. The master is bound to know and comply with the requirements of such guard statute." If this instruction stood alone, it would hardly suffice to say that it referred only to the kind of guard appellant was required to furnish, but it does not purport to cover all the facts necessary to recovery by appellee, and, the subject of contributory negligence being fully and completely covered in other instructions given, we cannot say that it is such error as would warrant a reversal.

[9] Instruction No. 11 is not subject to the objections urged against it by appellant. By this instruction the jury was properly informed that if the machine was not properly guarded, and appellee knew that fact, and with such knowledge continued to work on and about the machine, he would not necessarily be guilty of contributory negligence. The instruction further contained this language: "If you find that the plaintiff while using ordinary care and prudence was injured upon said machine * because said machine was not guarded in the particular alleged in the complaint if it was not guarded, and if you find that the defendant was required to so guard the machine, and you find that it could have been guarded without interfering with its proper operation, then your verdict should be for the plaintiff, although you should find that the plaintiff knew that such machine was not properly guarded." This instruction was not erroneous.

[10] Instructions 15, 16, and 18, given as tendered by appellee, may be considered together. They each call the jury's attention to the claim of appellant that there was a guide or fence on the machine which might have been used as a guard, and that there was another device furnished as a guard. The manner of the use of either as a guard and whether either was a proper guard, the conduct of appellee in the use of the machine with either as a guard, and the requirement of appellant to furnish a proper guard were all matters on which, under the issues, it was proper to instruct the jury. Instruction No. 24 is as follows: "If you should find from the evidence that guards similar to the one used on the machine referred to were in other manufacturing establishments, such

liability, if you find that the guard used was [ as to make it so appear at first blush, this not a proper one, and that a proper one court will require that it be pointed out could be used without interfering with the wherein the record so discloses to such exproper operation of said machine." This tent as to induce the belief that the jury was was not erroneous under the facts disclosed actuated by prejudice, partiality, or corrupby the record. tion."

[11] Of the instructions tendered by appellant and refused by the court No. 1 undertakes to tell the jury that what is a proper guard may be determined by finding if the guard on the machine was similar to those in use by others; that the use of such a guard would then be ordinary care. This instruction seems to be an adroit effort to di

rect the jury to determine ordinary care by comparative means. It was properly refused. Instructions 5 and 14 are subject to the same criticism.

We find no reversible error in the record.
Judgment affirmed.

(180 Ind. 245)

PITTSBURGH, C., C. & ST. L. RY. CO. v.
STATE. (No. 22,248.)1

(Supreme Court of Indiana. June 3, 1913.)

[12] Instruction 18 would tell the jury that a guard to be proper would require the approval and indorsement of "a consider-length, exclusive of platforms, and equipped able proportion of careful, prudent, skillful, considerate, and experienced persons in the line of business" of appellant, and that before the failure to adopt such suggested guard would be negligence it should command the commendation of the concensus of the careful, prudent, skillful, intelligent persons in the same line of business as appellant. We cannot subscribe to this being the law.

No. 19 told the jury, in effect, that in determining what was a proper guard it should be guided by conditions as they existed at the time of the accident. This subject was fully and fairly covered by the instructions given.

[13] No. 39 undertakes to minutely and specifically describe the use of a "guide" as a guard to cover the knives, and charges that its use by appellee in the manner described was contributory negligence. This instruction is so prolix, verbose, and tedious as to make it wearisome and confusing. It was properly refused.

Act March 1, 1911 (Acts 1911, c. 60), making it unlawful for common carriers by railroad to use any caboose or car used for like purposes unless it is at least 24 feet in with two four-wheeled trucks, and providing that, when any such caboose or car in use when the act became effective is brought to any, shop for repairs, it shall be unlawful to vided, is not an interference with and does again put it into use unless equipped as pronot place a burden upon or regulate interstate commerce, since it lays no restraints on commerce itself nor its subjects, nor on any instrumentality of commerce by the manner of construction, or use, but is directed at the form of the instrumentality as to a matter as to which Congress has not acted, and hence it is not superseded by the federal laws. Cent. Dig. §§ 8, 76-86, 100; 'Dec. Dig. §§ 10, [Ed. Note.-For other cases, see Commerce, 58.*]


The police power is of very wide scope and may extend even to the taking and destruction of property, without infringing on the due process of law clauses of either the state or federal Constitutions, if it has some just relation to the protection of the public health, welfare, morals, or safety.

tional Law, Cent. Dig. 88 771, 778; Dec. Dig. [Ed. Note.-For other cases, see Constitu$320.*]

3. CONSTITUTIONAL LAW (8 70*)-POLICE It is next contended that there is reversiPOWER-REASONABLENESS OF LEGISLATION. ble error in the admission and exclusion of While the wisdom or expediency of legcertain evidence. We have carefully ex- islation under the police power is as a rule amined the record on these points and no-courts, such legislation must not be unreasona matter for the Legislature and not for the where find that evidence was admitted able. which was erroneous and harmful; that in each instance where evidence was excluded on questions and answers stricken out of depositions the same subject-matter was covered by the same witnesses, and the questioned evidence seems to have gone to the jury in a proper manner.

[Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. §§ 129-132, 137; Dec. Dig. § 70.*1


Before courts will interfere with legis-
lation under the police power, it must be so
unreasonable that it is plain that no circum-

[Ed. Note.-For other cases, see Constitu

[14] Lastly, it is insisted that the dam-stances could justify it. ages awarded are excessive. The rule laid down by this court in Cleveland, etc., R.

Co. v. Harrison (1912) 98 N. E. 729-731, on this subject is applicable here: "In such case where liability is determined,


tional Law, Cent. Dig. §§ 129-132, 137; Dec. Dig. § 70.*1


Where a law cannot be shown to be in conflict with the Constitution by argument deduced from its language or from matters of which a court can take judicial notice, it must stand, as expert or other testimony is not admissible to impeach the legislative determination and show that the act is arbitrary or un

the question as to the amount of damages to be awarded is a matter to be determined by the triers of the fact, under the supervision of the trial court, and, unless the record discloses that the amount is so grossly excessive *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexe>>

reasonable; the validity of legislative acts be-
ing necessarily one of law and not of fact.
[Ed. Note. For other cases, see Constitu-
tional Law, Cent. Dig. §§ 43-45; Dec. Dig. 8


Samuel O. Piskens and Owen Piskens, both of Indianapolis, for appellant. Thomas M. Honan, Atty. Gen., and Thomas H. Branaman, Deputy Atty. Gen., for the State.

MYERS, J. Appellant was charged by af



Act March 1, 1911 (Acts 1911, c. 60) fidavit with the violation of sections 1, 2, § 2, prohibiting the use by common carrier rail- and 3 of the act of March 1, 1911 (Acts 1911, roads of cabooses less than 24 feet in length, p. 92). Section 1 applies the provisions of exclusive of platforms, or equipped with less the act to any corporation, person, or perthan two four-wheeled trucks, and section 3, providing that, when any such cabooses in sons "while engaged as common carriers in use when that act became effective is sent to the transportation of passengers or any shop for repairs, it shall be unlawful to property within this state to which the reguagain put it into use, unless it is equipped as lative powers of this state extend." Section provided in section 2, is not unconstitutional, since the court cannot know that a longer 2 prescribes the kind of caboose which shall car with adjustable and oscillating four-wheel- be used after June 1, 1914; and section 3 ed trucks instead of four rigid wheels will not provides that: "Whenever any such caride more comfortably or with more safety, boose cars or other cars now in use by such and hence cannot say that the act is unreasonable. common carriers as provided by section 1 herein shall after this act goes into effect, be brought into any shop for general repairs, it shall be unlawful to again put the same into the service of such common carrier within this state unless it be equipped as provided in section 2 of this act." Other following sections define the exceptions, the powers, and duties of the Railroad Commission in respect to the matter, and provide the penalty.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. § 743; Dec. Dig. § 229.*]


If Act March 1, 1911 (Acts 1911, c. 60) § 5, authorizing the Railroad Commission to limit or prescribe the maximum height of cabooses upon railroads and, for good cause shown, to grant railroads a reasonable extension of time to comply with the provisions of that act, and section 7 authorizing such commission to investigate the conditions and efficiency of cabooses in use on railroads and, if found advisable, to authorize railroad companies to construct cabooses safe and convenient for employés and the traveling public, in lieu of complying with the provisions of that act relative to the size and construction of cabooses, authorize the suspension of laws without the authority of the General Assembly in violation of Const. art. 1, §§ 25 and 26, or delegate legislative power to the Railroad Commission in violation of articles 3 and 4, they are separable from and do not render invalid sections 2 and 3 requiring cabooses to be at least 24 feet in length, exclusive of platforms, and to be equipped with two fourwheeled trucks.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. § 58-66, 195; Dec. Dig. § 64.*] 8. CONSTITUTIONAL LAW (§ 42*)-DETERMINATION OF VALIDITY OF STATUTES-PARTIES WHO MAY ATTACK.

A party convicted of violating Act March 1, 1911 (Acts 1911, c. 60) § 2, prohibiting the use of cabooses, on common carrier railroads, less than 24 feet in length or not equipped with two four-wheeled trucks, and section 3 providing that cabooses sent to any shop for repairs shall not again be put into use unless equipped as provided in section 2, could not complain that other provisions of that act, independent of and separable from sections 2 and 3, were invalid.

The charge in the affidavit, in substance, is that on and prior to July 5, 1911, appellant owned and had in use on its line as a corporation and common carrier a certain numbered caboose car, resting on four wheels, and 18 feet and 6 inches in length, exclusive of the platforms on each end, on which date it was sent to the shops of appellant in the state of Indiana for general repairs, and after having been repaired was on August 22, 1911, owned by and put into service on appellant's lines in the state of Indiana, and continuously thereafter used in such service, and was not as so used at least 24 feet in length, exclusive of the platforms, and was not equipped with two four-wheeled trucks. All exceptions of the statute are negatived.

There was a motion in writing to quash

for several reasons, all attacking the constitutionality of the act, and various sections of it on various grounds, which motion was overruled and exception to the ruling reserved. Appellant then filed a special plea that the facts alleged do not constitute a public offense, and alleging like other facts to those alleged in the motion to quash. A demurrer to this plea for want of facts to consti[Ed. Note.-For other cases, see Constitu-tute a defense was sustained, and appellant actional Law, Cent. Dig. §§ 39, 40; Dec. Dig. §. 42.*]

cepted, and upon a plea of not guilty appellant was tried and found guilty and a fine

Appeal from Criminal Court, Marion Coun- of $100 imposed, and over motion for a new ty; Joseph T. Markley, Judge.

The Pittsburgh, Cincinnati, Chicago & St. Louis Railway Company was convicted of a violation of law by the use of a caboose not permitted by Acts 1911, c. 60, and it appeals. Affirmed.

trial on the grounds that the finding is contrary to law, and not sustained by sufficient evidence, and over motion in arrest of judgment for the reasons set out in the special plea, judgment was entered.

As the validity of the law is the sole ques

as regulating, interstate commerce, even though the right of control extends to all the instruments of such commerce (Hall v. De Cuir, 95 U. S. 497, 24 L. Ed. 547), for the reason that this act does not lay any restrictions on commerce itself, or the objects of commerce, nor on an instrumentality of commerce by the manner of construction or the manner of its use, but is directed at the form of the instrumentality as to a matter as to which Congress has not seen fit to act. We are unable to perceive how it might affect it even incidentally and is not such legislation as is superseded by the federal laws. Pittsburgh, etc., Co. v. State, 172 Ind. 147, 166, 167, 87 N. E. 1034 and cases cited; Pittsburgh, etc., Co. v. State, 99 N. E. 801; Chicago, etc., Ry. Co. v. Arkansas, 219 U. S. 453, 465, 31 Sup. Ct. 275, 55 L. Ed. 290; New York, etc., Ry. Co. v. New York, 165 U. S. 628, 632, 17 Sup. Ct. 418, 41 L. Ed. 853; Smith v. Alabama, 124 U. S. 465, 480, 8 Sup. Ct. 564, 31 L. Ed. 508.

tion presented, it is not necessary to consider | ence with, or as placing a burden upon, or any other question, except to say that the admissions and evidence show appellant to be a common carrier engaged in interstate commerce, and that the value of the particular car when it went into the shops was $380, and when repaired $442, and that the salvage in making the caboose correspond to the act of 1911 would be $185; that appellant has 251 like cars like employed as the car in question, and that like cars have been in use by appellant 15 years, and that it would now cost approximately $1,150 each to construct the cars to conform to the requirements of the act of 1911, with a salvage of $185; that the timber in the present car would be valueless, and only the iron portions and the cupola usable; that 50 of the cars in use cost approximately, when built, $470, and the remainder $875 each, and the average cost when new was $666 and the average value now $442; that compliance with the act of 1911 would not add to the safety or comfort or health of the trainmen; that they have as much ventilation as a car required by the act; that the only difference from the present cars would be in the length and the additional set of trucks, and the car would not be as strong as the cars at present constructed and in use, and that as now constructed they are stronger than the 60,000 pound capacity freight cars. There was no objection to or contradiction or rebuttal of this evidence.

[1] We have stated the matter fully in order to present appellant's position fairly, and the question is, Does the evidence overcome the presumption, or is evidence admissible to controvert the presumption? It is the contention of appellant that the act is in violation of section 8 of article 1 of the federal Constitution as a regulation of commerce "among the states." It is contended by the state that the act will be construed as applying only to operations in the state, and does not purport to be a regulation of interstate commerce, and that as a police power, which may effect interstate commerce incidentally, is supreme until and unless the particular subject is taken cognizance of by Congress, and that the character of caboose as to length and wheel base has not been the subject of federal concern. If the subject of the length and wheel base of caboose cars has been taken cognizance of, and the length and wheel base fixed, we should be bound to recognize the sole jurisdiction of the subject as in Congress, even though the car was at the time engaged in intrastate traffic, but in conjunction with interstate traffic or commerce. Southern Ry. Co. v. Railroad Commission, 100 N. E. 337, and cases cited.

The serious question is the attack made upon the act as being in violation of the due process of law clause of the federal and state Constitutions on the ground of its being unreasonable and resulting in the destruction of a large amount of property, which would be in effect taken and actually destroyed without just reason and without any good purpose to be subserved in the public interest under the guise of being a police regulation. In answer to this the state contends that a police regulation is not a denial of due process of law. Pittsburgh, etc., Ry. Co. v. State, 99 N. E. 801; Pittsburgh, etc., Ry. Co. v. State, 172 Ind. 147, 162–163, 87 N. E. 1034; Chicago, etc., Ry. Co. v. Arkansas, 219 U. S. 453, 465-466, 31 Sup. Ct. 275, 55 L. Ed. 290; New York, etc., Ry. Co. v. New York, 165 U. S. 628, 632, 17 Sup. Ct. 418, 41 L. Ed. 853. Also that the state Constitution applies only to the taking of specific property by virtue of the right of eminent domain. Hanly v. Sims, 175 Ind. 353, 93 N. E. 228, 94 N. E. 401; State v. Richcreek, 167 Ind. 217, 223, 77 N. E. 1085, 5 L. R. A. (N. S.) 874, 119 Am. St. Rep. 491, 10 Ann. Cas. 899; Levy v. State, 161 Ind. 251, 256, 68 N. E. 172; Parks v. State, 159 Ind. 211, 220, 64 N. E. 862, 59 L. R. A. 190.

[2] The police power is of very wide scope, and the extent to which it may go has not and cannot be defined, and its application in a proper case is not inimical to the federal Constitution, but it must also be recognized that property or property rights may not be destroyed under the guise of the police power or so-called police regulation unless it appears that it has or can have no just relaThe acts of Congress and the Interstate tion to the protection of the public health, Commerce Commission have not embraced welfare, morals, or safety. Unless this nethe specific subject either of length of ca- gation affirmatively appears by the act or boose cars or their wheel bases, and we re- its history in enactment, the police power gard the act of the state as not an interfer-extends even to the taking and destruction

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