Gunn v. Minneapolis St. P. & S. S. M. Ry. Co.

• Decision Date: 12 July 1916
• Citation: 158 N.W. 1004,34 N.D. 418
• Court: North Dakota Supreme Court
• Parties: GUNN v. MINNEAPOLIS ST. P. & S. S. M. RY. CO.

34 N.D. 418

158 N.W. 1004

GUNN

v.MINNEAPOLIS ST. P. & S. S. M. RY. CO.

Supreme Court of North Dakota.

July 12, 1916.

Syllabus by the Court.

The business of running trains, keeping the tracks in repair, and other similar work connected with the use and operation of railroads, belongs to that class of work which may be called railroad work proper, and is of a peculiarly hazardous nature, and for that reason may be placed by statute in a class by itself for the purposes of regulation without violating the provisions of the Constitutions which guarantee the equal protection and the uniform operations of the laws and freedom from the deprivation of liberty and property without due process of law.

The unloading of freight trains is work which is directly connected with the operation of the railroad, and belongs to the class which may be termed railroad work proper.

The true test of unlawful statutory discrimination is whether all who are similarly situated are similarly treated, and whether those who are similarly situated are hindered or prevented in their competition with one another.

Where an evil exists which justifies regulation, a statute which seeks to prevent the same is not necessarily invalid because it does not bring all classes of business within its provisions.

Section 4804 of the Compiled Laws of 1913, which provides that “every common carrier shall be liable to any of its employés * * * for all damages which may result from the negligence of any of its officers, agents or employés,” etc., is constitutional when applied to a railroad employé who is injured through the negligence of a fellow servant while unloading freight from a car which is on the main track of the railroad, and is being unloaded so that the car may be sent out again in the same or in another train a few hours later.

Appeal from District Court, Divide County; K. E. Leighton, Judge.

Action by John M. Gunn against the Minneapolis, St. Paul & Sault Ste. Marie Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.John E. Greene and Palda, Aaker & Greene, all of Minot (Alfred H. Bright and John L. Erdall, both of Minneapolis, Minn., of counsel), for appellant. E. R. Sinkler and D. C. Greenleaf, both of Minot, for respondent.

BRUCE, J.

This is an action to recover damages occasioned to a railroad employé through the carelessness of a fellow servant in allowing a feed grinder to fall upon him and while unloading freight from a railroad car at about 8 o'clock at night and in order that it might proceed on its journey the next morning, and which car was standing on the main track of the railroad, the engine having left and gone to a station some ten miles distant in order to get water. A verdict was rendered for the plaintiff, and from the judgment entered thereon the defendant appeals.

The only point argued by counsel for appellant on this appeal is that the evidence conclusivelyshows that the plaintiff was injured through the negligence of his fellow servant, Vandervoight, and that section 4804 of the Compiled Laws of 1913, which takes this defense away from railway companies, is not applicable to the case at bar. The statute in question provides that:

“Every common carrier shall be liable to any of its employés, or in case of the death of an employé, to his personal representative, for the benefit of his widow, children or next of kin, for all damages which may result from the negligence of any of its officers, agents or employés, or by reason of any defect or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, ways or works.”

This act was passed in 1907, and is section 1 of chapter 203 of the Laws of that year.

Counsel's chief reliance is placed upon the language which is used in case of Beleal v. Northern Pacific Railway Co., 15 N. D. 318, 108 N. W. 33, and the cases collected in the note thereto in 11 Ann. Cas. 924, and in which case this court held that the act did not apply to or protect a laborer who was engaged in cutting ice from the Sheyenne river and loading it into cars for the use of the company; the ice being conveyed by means of a shute to the cars and from a platform which was constructed on the bank of the river. Counsel for appellant argues that under the decision above quoted a railway company is only liable and the act only applies where the employé is engaged in operating the railway and is exposed to the peculiar dangers attending that business. He maintains that the employment of the plaintiff was not of that nature or class, and that under the decision above quoted, the extrahazardous situation which is incident to such operation is necessary to save the statute from the taint of class legislation. His whole brief and argument indeed is centered around the following quotation from the Beleal Case, and wherein this court said that:

“There can be no doubt that the business of running trains, keeping the tracks in repair, and other similar work connected with the use and operation of railroads-that class of work which may be called railroad work proper-is of a peculiarly hazardous nature, and for that reason may be properly placed in a class by itself to that extent, for the purpose of imposing on the masters a greater liability to the employés so engaged, and giving to the latter greater rights against the masters in case of injury, than in other occupations * * * such a classification is proper because the peculiar nature of the work furnishes a proper basis therefor. The statute in question, however, taken literally, as respondent would have us do, purports to put railroad corporations in a class by themselves, simply because they are such corporations and imposes upon them a liability from which other corporations under like circumstances are exempt, and extends to employés of a railroad, regardless of the nature of their work, certain rights which other laborers engaged in the same kind of work do not enjoy. Take this case as an illustration. There are many other companies besides railroad companies which lay up ice in large quantities for use in their business. If an ice company or a meat packing concern had had this force of men at work at the same time and place and with the same apparatus, and the injury had been inflicted under the same circumstances, the master would not have been liable for the negligence of the plaintiff's fellow servant. The liability of the ice company or the packing house as a master would be less than that of the railroad company, and the employé of the latter would have more means of redress for his injury than the employé of some other kind of corporation. There is absolutely no difference in the nature of the work, or in the relative situation or condition of the master and the employé, between a railroad company and any other company gathering ice for its use.”

The writer of this opinion, speaking for himself alone, entertains some doubt as to the correctness of the criterion of class legislation which is announced in the quotation above referred to. But be this as it may, the Beleal Case and the case at bar are by no means parallel in their facts, but on the other hand involve totally different relations.

It is conceded in the Beleal Case:

“That the business of running trains, keeping the tracks in repair and other similar work connected with the use and operation of railroads-that class of work which may be called railroad work proper-is of a peculiarly hazardous nature and for that reason may be properly placed in a class by itself.”

And can we say that the unloading of freight trains which are...