Kiley v. Chi., M. & St. P. Ry. Co.

• Decision Date: 05 February 1909
• Citation: 119 N.W. 309,138 Wis. 215
• Parties: KILEY v. CHICAGO, M. & ST. P. RY. CO.
• Court: Wisconsin Supreme Court

138 Wis. 215

119 N.W. 309

KILEY

v.CHICAGO, M. & ST. P. RY. CO.^d1

Supreme Court of Wisconsin.

Jan. 5, 1909.

Dissenting Opinion Feb. 5, 1909.

Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.

Action by Michael Kiley against the Chicago, Milwaukee & St. Paul Railway Company. From an order overruling a demurrer to the complaint, defendant appeals. Affirmed.

For concurring opinion see, 120 N.W. 756.

Marshall, J., dissenting.

Plaintiff brings this action for the recovery of the damages alleged to have been suffered by reason of the loss of an eye and the physician's and nursing bills incurred as the result of an injury, which he claims was due to the negligent and careless manner in which other employés of the defendant performed their duties. On July 2, 1907, plaintiff was engaged with other employés of the defendant in the construction of a wire fence along the defendant's right of way. The company's foreman had directed them to take certain wire off an old fence. The wire was held in place by staples, and these were to be pulled out. Plaintiff was advancing toward a fence post with a hammer, intending to pull out the staples, when two of the other employés, by pulling upon the wire, pulled a staple out of the post. The staple flew into the air, struck plaintiff in his right eye, and blinded him. The action is brought under chapter 254, p. 495, Laws 1907. The court overruled defendant's demurrer to the complaint. This is an appeal from the order of the court overruling the demurrer, and allowing the defendant to answer within 20 days upon the usual terms.Greene, Fairchild, North & Parker and H. O. Fairchild (Burton Hanson, of counsel), for appellant.

Minahan & Minahan, for respondent.

SIEBECKER, J. (after stating the facts as above).

Plaintiff's right to recover on the alleged cause of action is founded on the provisions of section 1816, St. 1898, as amended by chapter 254, p. 495, Laws 1907. There is no claim that the facts alleged in his complaint constitute a cause of action against the defendant at common law, or under section 1816, St. 1898, as it stood prior to its amendment by chapter 254, p. 495, Laws 1907. The lower court sustained the complaint upon the ground that section 1816, St. 1898, in its amended form is valid. The defendant avers that the amended statute creates liabilities and imposes burdens which are forbidden by sections 1, 9, 13, 22, art. 1, of the state Constitution, and by the fourteenth amendment to the federal Constitution. The alleged obnoxious provisions of the statute were added by the amendatory act, which is embraced in chapter 254, p. 495, Laws 1907. It is therefore contended, if this act is invalid, that the provisions of section 1816, St. 1898, as it stood prior to such amendment, are still in force as the law on the subject. The provisions of chapter 254, p. 495, Laws 1907, are assailed as invalid legislation upon several grounds.

It is first contended that the enacting part of this chapter and subdivisions 1, 2, and 9 must be read together, and that when so considered the act is unconstitutional because it denies to railroad companies equal protection and due process of law. These provisions are:

“Every railroad company shall be liable for damages for all injuries, whether resulting in death or not, sustained by any of its employés, subject to the provisions hereinafter contained regarding contributory negligence on the part of the injured employé.”

“(1) When such injury is caused by a defect in any locomotive, engine, car, rail, track, roadbed, machinery or appliance used by its employés in and about the business of their employment.

(2) When such injury shall have been sustained by any officer, agent, servant or employé of such company, while engaged in the line of his duty as such and which such injury shall have been caused in whole or in greater part by the negligence of any other officer, agent, servant or employé of such company in the discharge of, or by reason of failure to discharge his duty as such.”

“(9) The provisions of this act shall not apply to employés in shops and offices.”

There is no controversy raised as to the rights of persons under the provisions of the state and federal Constitutions guaranteeing to all persons the equal protection and due process of law. It is, however, contended that the Legislature had no power to impose on railroad corporations only the burdens and liabilities embraced in this statute, and thus to exempt all other corporations, persons, and associations from these burdens and liabilities. Appellant's chief contention is that this legislation is discriminatory against railroad companies, and violates both the state and federal Constitutions forbidding arbitrary and special legislation, and the constitutional guaranties of due process and equal protection of the laws. It is said that corporations are entitled to the rights of a person within these constitutional guaranties of liberty and equality, and that they are afforded the same protection as individuals against an invasion of these rights. They must be granted equal means and equal access to the courts for the protection of their rights, and the imposition of burdens, liabilities, and charges which are not imposed on all others under the same circumstances is forbidden. These rights of corporations were recently recognized in the case of Phipps v. Ry. Co., 133 Wis. 153, 113 N. W. 456. As declared in the opinion of the court in Covington, etc., Turnpike Co. v. Sandford, 164 U. S. 592, 17 Sup. Ct. 203, 41 L. Ed. 560: “It is now settled that corporations are persons within the meaning of the constitutional provisions forbidding the deprivation of property without due process of law, as well as a denial of the equal protection of the laws”--citing cases.

Since, then, the railroad company, which is the defendant, under these constitutional provisions is protected as an individual in its rights, the question recurs, Do the provisions of chapter 254, p. 495, Laws 1907, violate these rights? As this court stated in the Phipps Case: “When by statute a person, natural or artificial, is denied an equal remedy in the law or equal protection in the courts such statute is void [citing]. To this broad rule of equality of all persons before the law is the exception of the right under certain circumstances of proper classification, but this classification must be reasonable, and based upon certain rules which bear a just relation to the act in respect to which the classification is made [citing].” That such classification must be based upon substantial distinctions, be germane to the purpose, cannot rest on existing circumstances only, nor preclude additions to those included in the class, and must apply equally to all within, received full elaboration in that case, and the cases there collated, and need not be repeated here. The power of classification for legislative purposes has existed at all times as an incident of legislative power, and exists now, unless expressly forbidden by the Constitution. It is also well recognized that the necessity and propriety of such classification are to be determined by the legislative branch of the government, and cannot be disturbed when exercised within the limitations imposed. We must then determine whether the Legislature by this legislation has violated accepted rules of classification.

The statute imposes liabilities on railroad companies for all injuries sustained by any of its officers, agents, servants, or employés, while in the performance of their duties, which may be caused, in whole or in greater part, by the negligence of other officers, agents, servants, or employés, those working in shops and offices being excepted. It is strenuously urged that the imposition of these burdens and liabilities, on railroad companies only as a class, violates their right to the equal protection of the law, and that, being a classification based upon the character of the corporation, it furnishes no reasonable distinction or necessity for separating them into a class for purposes of legislation. To ascertain wherein distinction is made by the Legislature between railroad companies and individuals and other corporations and associations we must consider the nature and object of the regulation, as well as the provisions prescribing rules for the regulation of railroad companies as a class. The context of this statute shows that railroad companies are separated into a class for legislative regulation respecting their liability to their employés for injuries caused by its negligence or the negligence of other employés in the course of their employment. Is the railroad business distinguished in character from all other businesses so as to justify special regulation of it, as is done by this law? This we think must be answered in the affirmative. The business of operating a railroad differs from others in its nature, in its relation to the public, and in the peculiar dangers and hazards as regards its employés and the public. These characteristics clearly distinguish the railroad from any other business, and call for regulation to meet the conditions and exigencies peculiar to it, and such as are wholly inapplicable to any other business. The object of this law is to attain reasonable protection to its employés, and to secure the safety of the public. The Legislature seeks to attain this through the imposition of these unusual burdens and liabilities, thereby securing from railroad companies the exercise of a degree of care, in the selection of competent and careful employés for the conduct of the business, commensurate with the hazards and dangers to its employés and the insecurity of the public. Securing the safety of the public in addition to the protection of its employés, is an important feature which distinguishes a railroad business from any other, and is an important consideration in separating railroads into a class by...