Chicago, M. & St. P. Ry. Co. v. Westby

• Decision Date: 12 April 1910
• Docket Number: 3,146.
• Citation: 178 F. 619
• Parties: CHICAGO, M. & ST. R. RY. CO. v. WESTBY.
• Court: U.S. Court of Appeals — Eighth Circuit

178 F. 619

CHICAGO, M. & ST. R. RY. CO. v. WESTBY.

No. 3,146.

United States Court of Appeals, Eighth Circuit.

April 12, 1910

Syllabus by the Court.

The employer's liability law of South Dakota (Laws 1907, c 219) excepts from the general law of the state all common carriers and all their employes, subjects the former to and grants to the latter causes of action for injuries to the employes caused by the negligence of their fellow servants and for those to which their own negligence contributes while no such liabilities are imposed upon other employers and no such rights are granted to other employes. The fourteenth amendment to the Constitution forbids any state to 'deny to any person the equal protection of the laws ' Held:

(1) Legislatures of states for some sound reason of necessity or propriety inherent in the subjects of their legislation may classify those subjects and make laws applicable to one class that are inapplicable to another, but may not make such classifications arbitrarily.

(2) There are three indispensable conditions to a constitutional imposition by a state of liabilities or burdens upon and to a constitutional grant by a state of rights or privileges to the members of a class that other members of the state may not bear or enjoy:

(a) There must be such a difference between the situation and circumstances of all the members of the class and the situation and circumstances of all other members of the state in relation to the subjects of the discriminatory legislation as presents a just, natural reason for the difference made in their liabilities and burdens and in their rights and privileges.

(b) No one who does not belong to the class may be included therein, and all the members of the class must be treated alike.

(c) All who are in a situation and circumstances relative to the subjects of the discriminatory legislation indistinguishable from those of the members of the class must be brought under the influence of the law and treated by it in the same way as are the members of the class.

(3) The employer's liability law of South Dakota fulfills neither of these conditions and is violative of the prohibition of unequal laws contained in the fourteenth amendment because there is no sound reason of necessity or propriety for the difference of liabilities and rights it makes between the masters and servants in the class it forms and other masters and servants in the state in the same situation and circumstances relative to its subject-matter as the members of the class, and because it does not subject to its provisions all masters and servants who are in the same situation and circumstances relative to its subject-matter as the members of the class it forms.

The employer's liability act of South Dakota, which by its terms subjects every common carrier engaged in commerce in the state to liability for, and grants to every employe of every such carrier a cause of action for, injuries to the employe caused by the negligence of a fellow servant and for those contributed to by his own negligence, may not be limited by construction to a constitutional class, to common carriers using the agency of steam or other powerful agency and operating engines, trains, or other ponderous machinery and their servants engaged in hazardous and dangerous occupations and then sustained.

Where a part of a statute is constitutional and a part is unconstitutional, the former may be sustained in proper cases, while the latter fails.

Indispensable conditions of such a result, however, are that: (a) The constitutional part and the unconstitutional part are capable of separation so that each part may be read and may stand by itself, (b) the unconstitutional part is not so connected with the general scope of the law as to make it impossible, if it is stricken out, to give effect to the apparent intention of the Legislature in enacting the law, (c) the insertion of words or terms is not necessary to separate the constitutional part from the unconstitutional part and to give effect to the former alone.

Where the Legislature of a state has included in a law by general language numerous subjects or persons and has made no limitation or exception, the legal presumption is that it intended to make none, and it would be judicial legislation for a court to do so.

A statute of a state which includes by general language in a single class those within and those without the constitutional class may not be limited by judicial construction to the latter class and then sustained.

William G. Porter (Charles E. Vrooman, on the brief), for plaintiff in error.

A. B. Kittredge (Hans Urdahl and Edwin R. Winans, on the brief), for defendant in error.

Before SANBORN, Circuit Judge, and RINER and WILLIAM H. MUNGER, District Judges.

SANBORN Circuit Judge.

At about 9 o'clock in the morning on a bright day in December, as Martin Westby, a section foreman, was walking west on the northerly track of the Chicago, Milwaukee & St. Paul Railway Company at Madison, in South Dakota, one of its passenger trains, which was backing from the station in order to change engines, overtook and struck him. The plaintiff below was the widow and administratrix of his estate, and she brought this action and recovered a judgment for the benefit of herself and their minor children under the employer's liability act of February 20, 1907 (chapter 219 of the Session Laws of South Dakota for 1907), which provides:

'Section 1. That every common carrier engaged in trade or commerce in the state of South Dakota shall be liable to any of its employes, or in the case of his death, to his personal representative for the benefit of his widow and children, if any, if none, then for his parents, if none, then for his next of kin dependent upon him, for all damages which may result from the negligence of any of its officers, agents or employes, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, ways or works.

'Sec. 2. That in all actions hereafter brought against any common carrier to recover damages for personal injuries to an employe, or where such injuries have resulted in his death, the fact that the employe may have been guilty of contributory negligence shall not bar a recovery where his contributory negligence was less than the negligence of the employer, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employe. All questions of negligence and contributory negligence shall be for the jury.'

There are many specifications of alleged error in this case which involve grave questions of law; but the face of the record discloses an error which was probably inadvertently made, but from which there seems to be no escape. It is that the court struck out the testimony of Mr. Miller, a witness for the defendant and the conductor of the train that struck Westby, upon the issue whether or not that train was executing a switching movement when the accident happened. The materiality and importance of this testimony will appear from a brief statement of the pleadings, the course of the trial, and the charge of the court relative to this issue.

The administratrix alleged in her complaint, among other things, that Mr. Westby was one of the section foremen and yardmasters of the defendant, that he knew its rules, that rule 60 was that 'when a train is pushed by an engine, except when switching and making up trains in yards, a trainman must be stationed on the front of the leading car with proper signals so as to perceive the first sign of danger and immediately signal the engineer,' that it had always been the custom at Madison to obey this and other rules, that Westby relied upon this rule and the custom of obeying it, and while he was engaged in the discharge of his duty as section foreman the defendant backed the passenger train upon him without any trainman upon the leading car and struck him. The defendant in its answer denied all negligence on its part, and among other things denied that it had been the custom of its employes at Madison to obey rule 60, and that Mr. Westby relied upon the rule or upon any such custom, and averred that the rule was inapplicable to the train which struck him because it was switching, and that he was guilty of negligence which directly contributed to his death.

These facts were disclosed by the trial. The accident happened in the railroad yard at Madison where there were many railroad tracks. Among these were two called the 'Bristol-Madison track' and the 'Wessington Springs-Madison track,' which extended east and west, parallel to each other and about 14 feet apart from center to center, from a point about 600 feet east of Union avenue to a point several hundred feet west of that avenue. Union avenue crossed these tracks at right angles. One hundred and thirty-three feet west of it and on the north side of the tracks was a toolhouse, and about 1,300 feet east of it was the depot. The Bristol-Madison track was the northerly track, and there was a switch about 600 feet east of Union avenue over which passenger trains coming from the west on the Bristol-Madison track passed on to the Wessington Springs-Madison track to reach the depot.

Two passenger trains going east, one from Bristol on the Bristol-Madison track and one from Wessington Springs on the Wessington Springs-Madison track, were due at Madison about the time of the accident, and the Bristol-Madison train changed engines there. When that train arrived, the Wessington Springs train had not come in, and the Bristol train stopped about 30 feet west of Union avenue, and Westby who, with two sectionmen, was at work on a switch just...