tion, if it had been given, would have in-the jury as to the need of further evidence of formed the jury that plaintiffs were not en- the acceptance of the deed. titled to recover under the second paragraph of complaint and the evidence introduced thereunder, because the second paragraph of complaint was superseded by the amended and supplemental complaint. This proposition has been disposed of herein before. Tendered instruction No. 11 would have told the jury that the appropriation proceedings, and the resulting damages paid to appellees, were "all that can be awarded them therefor," and "you cannot in this action award them any damages on account thereof." Appellant's instruction No. 51⁄2 asked the court to inform the jury that appellant was As we have before stated, the court's innot required to construct a farm crossing over struction so limited the damages recoverable that part of appellant's right of way acquired as to exclude any damages properly chargeby the condemnation proceedings. The con- able to said condemnation proceedings. This tract, if established, is broad enough to re-observation also applies to tendered instrucquire the construction and maintenance of a tion No. 14. crossing which would enable appellees to pass over the right of way, although the same be widened. This instruction was properly refused. [14] Tendered instruction No. 16 was properly refused, because it would have informed the jury that the covenant providing for this crossing did not run with the land. And substantially the same thing may be said of tendered instruction No. 17. [15] Tendered instruction No. 18 is objectionable in that it would have told the jury "there is no evidence in this case" under which defendant is obliged to construct or maintain a crossing; and it is erroneous for the further reason that its other provisions are not addressed to any issue in the case, because it is not claimed by appellees that any duty is imposed upon the defendant simply by reason of the fact that they own property on both sides of the road, and it ignores the issue as to the covenant in question. [11] Appellant's tendered instruction No. 6 was intended to instruct the jury that a statutory right to cross the right of way did not impose upon appellant the duty of building and maintaining a crossing, and this instruction is said to have been tendered in view of instruction No. 7, given at the request of appellees. As we have construed instruction No. 7, it does not inform the jury that plaintiffs are entitled to recover for an interruption of their statutory right to cross; and therefore it created no occasion for the giving of instruction No. 6, requested by appellant. [12] Appellant's seventh tendered instruction was asked on the theory that except for Tendered instructions 19 and 20, if given, such instruction the jury was at liberty to would have informed the jury that, notwithassess damages against appellant for a standing the agreement between appellees' change of the grade of the railroad. The in- predecessors in title and the railroad comstruction given did not permit the jury to pany that the railroad company would mainassess any such damages, but limited recov-tain a farm crossing over the strip of land in ery to the loss of the use of the farm by rea- question, "there is no evidence before you son of the destruction of the original cross-in this case that the plaintiffs," the Kearnses, ing and the cost of the construction of the new overhead crossing to conform with the changed grade. There was no occasion for giving the seventh tendered instruction. Tendered instruction No. 9 asked that the jury be informed that use and occupation of the original right of way before the execution of said deed will prevent plaintiffs' re covery, notwithstanding the covenant in said deed. We have heretofore disposed of this proposition. have in any way succeeded to the rights of their remote grantors, and hence are not en titled to recover. The defendant was not en titled to have the jury so positively instructed as to the nature and effect of the evidence. Tendered instruction No. 21 has no applica tion to the issues in this case. [16] Tendered instruction No. 22 requests that the jury be informed that in the appropriation proceedings all damages were assessed which were incident to the appropriation proceedings. As stated in this tendered instruction, such a declaration would have confused the jury as to its right of recovery for the crossing provided for in the covenant. [13] Tendered instruction No. 102, if given, would have informed the jury that its verdict must be for the defendant unless the preponderance shows that the deed in Tendered instruction No. 23 is as follows: controversy was accepted by the railroad company. The court by other instructions "The right of the plaintiff to recover damtold the jury that, if the preponderance of ages from the defendant in this case, in event the evidence showed that the railroad com- you find from a preponderance of the evidence pany used and occupied the strip described that all the material allegations of either paragraph of the complaint have been proven therein said deed under the terms of said deed, by, is such damages as a preponderance of the that was sufficient to make binding upon the evidence shows it would cost to construct a railroad the covenant in the deed. The giv-crossing across the right of way of the defending of instruction 101⁄2 would have confused ant conveyed under said deed from the Sweet (128 N.E.) sers to the Chicago, St. Louis & Pittsburgh struction, or construct the crossing at its own Railroad Company, but not the building of such expense in discharge of that portion of the crossing across the strip of land which the de- judgment. In considering this question, we fendant acquired from the plaintiffs by the ap- find that the complaint did allege the cost of propriation proceedings in 1909; and in addition the construction of a proper crossing and such sum as it would cost to construct a cross-sought to recover such amount. An issue was ing across such right of way as above stated the made upon this allegation, and the jury's verplaintiffs would be entitled to recover such sum, if any, as shown by a preponderance of the dict was based upon this issue. The judg evidence as would compensate them for the ment followed the verdict, and in addition loss of the use and enjoyment of that part of thereto granted the option above mentioned. such land, the use and enjoyment of which is [18] Furthermore, the option granted to cut off, if you find from the evidence that it is construct a proper crossing at appellant's excut off by reason of the destruction of such pense in lieu of the payment of cash, alcrossing, if you find such crossing was de- though not mentioned in the issues or the stroyed." verdict, was entirely favorable to appellant, This would have limited plaintiffs' right of granted that it was otherwise obligated to recovery, so far as the cost thereof is con- build at its own expense, and, if there was cerned, to the cost of construction of a cross-error in the insertion of this option in the ing over the original right of way, and would judgment, it was favorable to appellant, benot have permitted a recovery for an exten- cause appellant if this portion of the judgsion of the overhead crossing made neces-ment be stricken out still remains liable unsary by the additional right of way. der the issue, verdict, and judgment to discharge said judgment by cash payment. The motions to modify were properly overruled. [17] We do not so understand the force and effect of such covenant. In our opinion such covenant is not subject to such limited con[19] Appellant asserts the verdict of the struction. It was beyond question intended jury does not assess damages against defendthat thereby the grantees were to be afforded ant on account of its failure to construct a an overhead crossing from one side of appel- suitable crossing, but simply finds that the lant's right of way to the other, and to hold cost of construction will be $2,400, which is that appellant had complied with this agree-not an assessment of that amount. ment by constructing an overhead crossing Fairly considered, the verdict does assess covering only the original right of way and leaving appellees there suspended over an excavated grade from 15 to 25 feet deep would involve an absurdity, especially as the condemnation proceedings did not in any way affect appellees' rights under this covenant. Appellant filed a motion in arrest of judgment upon the first paragraph of complaint, and a separate motion upon the entire complaint, based upon the assumed fact that neither the first paragraph nor the entire complaint states facts sufficient to constitute a cause of action. Having held that the first paragraph of complaint was sufficient as against demurrer based on the same reasons, nothing further need be said upon the motion in arrest. Appellant filed three motions to modify and correct the judgment. The appellant alleges there was no issue made under which appellees were entitled to recover "the cost of a proper and suitable farm crossing," therefore, there was no basis for a verdict naming the cost of such a crossing; and appellant says that therefore the judgment wherein it provides for the recovery of such costs goes beyond the issues. Appellant further says that the judgment fails to follow the verdict, in that the judg ment attempts to give rights and impose obligations not embraced within the verdict wherein the judgment provides an option in appellant to either pay in cash the amount stated in the verdict as the cost of such con $2,400 damages against appellant for its fail ure to construct. It is true that the verdict describes this amount as being the jury's idea of the cost of such construction, but this does not destroy its effect as a verdict in damages for failure to construct. Finding no error, the judgment below is affirmed. (73 Ind. App. 511) WESTERN UNION TELEGRAPH CO. v. BUSHNELL. (No. 10503.) (Appellate Court of Indiana, Division No. 1. June 23, 1920.) 1. Commerce 28-Route of transmission determines whether telegram is interstate. The transmission of intelligence by wire, being commerce, is governed by the act of Congress regulating the same, where the route of such transmission lies in more than one state, though the point of origin and the point of destination are within the same state. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Commerce.] 2. Commerce 8(7) Penalty imposed by state statute not recoverable where telegram was interstate. Where telegram sent to a point in the same state was transmitted by a route lying partly without the state, and where in so doing the telegraph company used the only route availa For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes ble, the sender, on the company's failure to de- | interstate commerce. Appellee filed a demurliver the message, could not recover the penalty imposed by Burns' Ann. St. 1914, §§ 5780, 5781, the transmission of such telegram being interstate commerce, and the state statute therefore being inapplicable. 3. Commerce 28-Telegram to point in same state not required to be sent by route wholly within the state, where route lying partly without is more expeditious. rer to each the second and third paragraphs of said answer, which was overruled as to the second paragraph and sustained as to the third. The issues were closed by a reply in denial to said second paragraph. The cause was submitted to the court for trial without the intervention of a jury, resulting in a finding and judgment in favor of appellee. Appellant filed a motion for a new trial, which was overruled, and now prosecutes this appeal on an assignment of errors, which requires a consideration of the questions hereinafter determined. A telegraph company in transmitting a message which has both its origin and destination within the state is not required, in order to avoid subjecting itself to the penalty imposed by Burns' Ann. St. 1914, §§ 5780, 5781, to transmit [1] Appellant contends that the court erred message wholly within the borders of the state, even if it is possible to do so, where it might in overruling its motion for a new trial. It be sent, in a safer and more practical and ex-bases this contention on the grounds that the peditious way in the course of its business, by a route which lies partly without the state. decision of the court is not sustained by sufficient evidence and is contrary to law. As pertinent to this contention, we note that the Appeal from Circuit Court, White County; undisputed evidence shows that on December J. P. Wasson, Judge. Action by Will S. Bushnell against the Western Union Telegraph Company. Judgment for plaintiff, and defendant appeals. Reversed with instructions to grant new trial. Edwin P. Hammond, Dan W. Sinns, William V. Stuart, Charles H. Stuart, and Allison E. Stuart, all of LaFayette, and Francis R. Stark, of New York City, for appellant. L. D. Carey, of Monticello, for appellee. BATMAN, J. This action was instituted by appellee to recover from appellant the statutory penalty, provided by section 5780 and 5781, Burns 1914, for failure to deliver a telegram, sent by appellee from Monticello, Ind., to his son at Gary, Ind. Appellant filed an answer in three paragraphs, the first being a general denial. The second paragraph avers, in substance, among other things, that appellant had no means within the state of Indiana of transmitting said message from Monticello to Gary, and that it was necessary to route the same through a point outside the state of Indiana in transmitting the same from the former to the latter point; that because of such fact said message was transmitted from its office at Monticello, Ind., to its office at Chicago in the state of Illinois, and was thence transmitted to its office at Gary, Ind.; that by reason of such facts it was transmitted in interstate commerce, and was subject wholly to the act of Congress of the United States (24 Stat. 379) in that regard. The third paragraph avers, in substance, that the sending of the message in question by the way of Chicago, Ill., as described above, was the usual and most direct method of transmitting messages between the points named, and that appellant had no other means as practical or expeditious for that purpose. It then concludes with the same averments as the second paragraph with reference to the transmission of such message in 13, 1917, appellee delivered a message to appellant, at its office in Monticello, Ind., to be transmitted to his son by wire at Gary, Ind.; that appellant transmitted said message by sending it by wire from Monticello to Chicago, Ill., from which point it was transmitted by wire to Gary, Ind.; that appellant in so transmitting said message used the only means of communication available, and in its transmission was required to relay it to a point outside of the state of Indiana. There was evidence to sustain the finding that said message was never delivered. Based on the undisputed facts stated above, appellant contends that the transmission of such message was interstate commerce, and for that reason these sections of the statute on which appellee bases his cause of action have no application. It is well settled that the transmission of intelligence by wire, being commerce, is governed by the act of Congress regulating the same, where the route of such transmission lies in more than one state. Western Union Tel. Co. v. Bolling, 120 Va. 413, 91 S. E. 154, Ann. Cas. 1918C, 1036; Western Union Tel. Co. v. Lee, 174 Ky. 210, 192 S. W. 70, Ann. Cas. 1918C, 1026; Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1, 24 L. Ed. 708; Western Union Tel. Co. v. Texas, 105 U. S. 460, 26 L. Ed. 1067; Western Union Tel. Co. v. Pendleton, 122 U. S. 347, 7 Sup. Ct. 1126, 30 L. Ed. 1187. And this is true as a rule, although the point of origin and the point of destination of the message transmitted are within the same state. Kippel v. Western Union Telegraph Co., 106 Kan. 6, 186 Pac. 993, and cases there cited. For a time there was some question as to whether the act of Congress regulating interstate commerce had so far covered the field of legislation in that regard as to ren der the sections of the statute under which this action is brought inoperative, where the message involved was transmitted in such For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (128 N.E.) manner as to constitute interstate commerce. "The proposition that the act of 1910 must be narrowly construed so as to preserve the reserved power of the state over the subject in hand, although it is admitted that that power is in its nature federal and may be exercised by the state only because of nonaction by Congress, is obviously too conflicting and unsound to require further notice. We therefore consider the statute in the light of its text and, if there be ambiguity, of its context, in order to give effect to the intent of Congress as manifested in its enactment. As the result of doing so, we are of opinion that the provisions of the statute bringing telegraph companies under the Act to Regulate Commerce, as well as placing them under the administrative control of the Interstate Commerce Commission, so clearly establish the purpose of Congress to subject such companies to a uniform national rule as to cause it to be certain that there was no room thereafter for the exercise by the several states of power to regulate, by penalizing the negligent failure to deliver promptly, an interstate telegram and that the court below erred therefore in imposing the penalty fixed by the state statute." are applicable. We cannot concur in this delivery of goods shipped in interstate com- clusion is fully sustained. [3] We concur in appellant's contention that the trial court erred in sustaining appellee's demurrer to its third paragraph of answer. Not to do so would require that we hold, in effect, that a telegraph company must transmit a message, which has both its origin and destination within this state wholly within its boundaries, if it is possible to do so, although it might be sent in a safer and more practical and expeditious way, in the usual course of its business, by a route which lies partly without the state, or incur the penalty of the statute. The effect of such a holding would be to restrict such a commerce in the company to intrastate transmission of messages, where possible, regardless of its practicability, or the efficiency of the service rendered thereby. Such a restriction upon the right of such a company to engage in interstate commerce would be unwarranted. In the case of Western Union [2] Under the law as stated, we are clearly Tel. Co. v. Taylor (1914) 57 Ind. App. 93, 104 of the opinion that the undisputed facts N. E. 771, this court sustained a judgment show that the message in question in the in- for the statutory penalty provided for the stant was transmitted in interstate violation of section 5780, Burns' 1914. commerce, and that the sections of the stat-message in that case was filed for transmisute on which this action is based do not af- sion from Shoals, Ind., to Evansville, Ind., ford any ground for relief. It follows that but was sent by way of Cincinnati, Ohio. In the court erred in overruling appellant's mo- distinguishing that case from the case of tion for a new trial. Hanley v. Kansas City, etc., R. Co., 187 U. S. 617, 23 Sup. Ct. 214, 47 L. Ed. 333, this court said: case The "We do not think that case would control here. There is no showing that the route used by appellant in this case was the only route between Shoals and Evansville, or that it was a more practicable route than any other." (Our italics). Appellee in his effort to sustain the decision of the trial court has cited a number of cases, but an examination discloses that none are controlling, as they are either not applicable or distinguishable. Our attention, however, is directed to the fact that the undisputed evidence shows that the dereliction of duty on the part of appellant, in failing to make the delivery, occurred at Gary, Ind. Based on this fact, appellee contends In the instant case the paragraph of anthat the sections of the statute in question swer under consideration alleges that the 4. Carriers 348(14)-Instruction as to risk of alighting after leaving regular stop held applicable to evidence. message in question was sent in the usual and most direct method of transmitting messages between the points named, and that appellant had no other means as practical or In an action for injuries to one who was expeditious for that purpose. The following struck by a passing street car after going becases cited by appellant support the conclu-hind the car from which he had just alighted, where there was evidence that he alighted from the car after it had left its regular stopping place, an instruction that if he alighted after the car left regular stopping place while it was in motion he took the risk was applicable to the evidence. (Per Nichols, J., McMahan, C. J., and Enloe, P. J.) sion we have reached. Western Union Tel. Co. v. Mahone, 120 Va. 422, 91 S. E. 157; Western Union Tel. Co. v. Lee, 174 Ky. 210, 192 S. W. 70, Ann. Cas. 1918C, 1026; Taylor v. Western Union Tel. Co., 199 Mo. App. 624, 204 S. W. 818; Bateman v. Western Union Tel. Co., 174 N. C. 97, 93 S. E. 467, L. R. A. 1918A, 803. The judgment is reversed with instructions to sustain appellant's motion for a new trial, and to overrule appellee's demurrer to appellant's third paragraph of answer, and for further proceedings consistent with this opinion. LAWS v. HAMMOND, W. & E. C. RY. CO. (No. 10216.) * (Appellate Court of Indiana. June 25, 1920.) 5. Carriers 303 (10)—Passing cars not at stopping place need not sound gong. A street car passing another car going in opposite direction is not required to sound a gong if the passing is not at a regular stopping place, and there is no reason to anticipate that some one might be passing from the rear of one car on the track in front of the other. (Per Nichols, J., McMahan, C. J., and Enloe, P. J.) Remy, J., dissenting. Appeal from Circuit Court, Laporte County; James F. Gallaher, Judge. Action by John Laws, by his next friend, Frances Laws, against the Hammond, Whit 1. Trial 295(1)—Instructions construed to-ing & East Chicago Railway Company. Judggether and with reference to evidence. ment for defendant, and plaintiff appeals. Affirmed. In considering alleged errors in instructions, each instruction must be considered in relation to the other instructions given and with reference to the evidence, and, if taken as a whole they fairly state the law applicable to the evidence, there is no reversible error. (Per Nichols, J., McMahan, C. J., and Enloe, P. J.) 2. Carriers 348 (6)-Instructions that plaintiff was negligent if he knew or could have known car was approaching held correct. In an action for injuries to a person who was struck by a street car just after passing behind car from which he had alighted, an instruction that if plaintiff knew that the car which struck him was approaching, or in the exercise of reasonable observation and care might have known it, and notwithstanding such knowledge proceeded on track in front of car, he could not recover, was correct. (Per Nichols, J., McMahan, C. J., and Enloe, P. J.) 3. Trial 296 (4, 5)-Instructions as to rule for stopping cars held correct, in view of the other instructions. Where the court had given an instruction that plaintiff had a right to rely on the known custom to stop a street car at that point, and to sound a gong before passing a car which had stopped, and he could rely thereon, further instructions that his right to rely on the custom did not relieve him from the duty to make reasonable exercise of his senses to learn of approach of the car, or to enter on the track on the assumption that he would not be struck by a car, were not erroneous, when read with other instruction. (Per Nichols, J., McMahan, C. J., and Enloe, P. J.) William J. Whinery, of Hammond, and Darrow & Rowley, of Laporte, for appellant. NICHOLS, J. This action by appellant to recover damages for personal injuries sustained on account of the negligence of appellee was commenced in the Lake circuit court, from which a change of venue was taken by appellee. Thereupon the cause was sent to the Porter circuit court, from which court a change of venue was taken by appellant, and the cause sent to the Laporte circuit court. The complaint, which is in one paragraph, was answered by a general denial. So much of the complaint as is necessary for this decision is as follows: On the 30th day of March, 1915, and for many years prior thereto, appellee was operating a street railway in the city of Ham mond. On said date appellee owned and oper- For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |