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

• Decision Date: 22 March 1910
• Citation: 142 Wis. 154,125 N.W. 464
• Court: Wisconsin Supreme Court
• Parties: KILEY v. CHICAGO, M. & ST. P. RY. CO.

142 Wis. 154

125 N.W. 464

KILEY

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

Supreme Court of Wisconsin.

March 15, 1910.

March 22, 1910.

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

Action by Michael Kiley against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 138 Wis. 215, 120 N. W. 756.

Greene, Fairchild, North & Parker and Charles E. Vroman (C. H. Van Alstine, of counsel), for appellant.

Minahan & Minahan, for respondent.

WINSLOW, C. J.

This is an action against a railway company, brought by one of its employés to recover damages for the loss of his eye, occasioned by the negligent act of his co-employés while they were engaged in constructing a wire fence along the right of way. A general demurrer to the complaint was overruled, and that ruling affirmed by this court in 138 Wis. 215, 119 N. W. 309, 120 N. W. 756. Since that decision the action has been tried before a jury, and a special verdict returned finding that: (1) The staple which injured plaintiff's eye was thrown out of the post by reason of the wire being pulled or moved by plaintiff's co-employé, one Charapata; (2) a man of ordinary intelligence and prudence in Charapata's position ought to have reasonably anticipated that, by pulling or moving said wire without notifying plaintiff that he was about to do so, some such injury would result to plaintiff; (3) Charapata was guilty of negligence in so moving or pulling said wire without first notifying the plaintiff that he was about to do so; (4) a man in plaintiff's position should not have reasonably anticipated that a staple might be thrown out and cause him injury by the handling of the wire by the man next to him as the work was ordinarily carried on; (5) plaintiff's damages were $2,000. The defendant, both by answer and by motion made at the opening of the trial, expressly made the contention that it was not liable, because chapter 254 of the Laws of Wisconsin for 1907, under which the action is brought, violates the fourteenth amendment to the Constitution of the United States, in that it deprives the defendant of property without due process of law, and denies to the defendant the equal protection of the laws. After the rendition of the verdict the defendant moved for judgment in its favor notwithstanding the verdict, also that the court set aside the affirmative answers to the first four questions of the verdict and substitute negative answers therefor, and render judgment for the defendant thereon, all of which motions being denied, judgment for the plaintiff was rendered on the verdict, and the defendant appeals.

As will appear from the foregoing statement, the jury upon trial of the action found exactly the state of facts alleged in the complaint, and the defendant upon this appeal makes no claim of error, save the claim that chapter 254 of the Laws of 1907 is void because it violates the provisions of the fourteenth amendment to the federal Constitution. The same claim was fully argued, considered, and rejected upon the former appeal, and the result is conclusive, not only upon the trial court, but upon this court. Whether right or not, the conclusion then reached formed the law of this case, and when the same question was again presented, the court below could rightly do but one thing; i. e., follow the former decision. Any other holding would have been error. Ellis v. Northern Pacific Ry. Co., 80 Wis. 459, 50 N. W. 397, 27 Am. St. Rep. 44;Keystone Lumber Co. v. Kolman, 103 Wis. 300, 79 N. W. 224. Such being the case, it is obvious that no error can now be predicated upon the action of the trial court. Perhaps we might well affirm the judgment upon the doctrine of res adjudicata without further remark; but, inasmuch as another case involving the same question has been submitted at the present assignment, we have reexamined the questions raised, and deem it proper to state again our conclusions upon the federal questions involved.

The fundamental question is the question of classification. If the law can only be viewed as a classification of laborers or employés, based upon the peculiar risks which men who operate trains necessarily meet, and which are not met by men who are employed by firms or corporations engaged in other occupations, then it may be admitted for the sake of the argument that the classification attempted in this law is indefensible, because in that case it should have been confined to those employés who meet such peculiar risks, namely, those engaged in or about the operation of trains, while the law (with two exceptions to be noticed later) in fact includes all classes of employés, many of whom meet no peculiar risk, but only the same risks which the employés of ordinary business concerns are daily meeting. It is not denied that a number of courts have condemned similar laws upon this very ground, notably the courts of Iowa and Minnesota, and it may be admitted that such was, for a time at least, the prevailing doctrine. It is to be noted that this court in the Ditberner Case, 47 Wis. 138, 2 N. W. 69, repudiated this doctrine, and upheld a law similar to the present law, in that it covered all employés, on the ground that it was a valid exercise of the reserve power given to the Legislature to alter or repeal corporate charters. However, this court took a different view of the present statute when this case was here upon demurrer. It viewed the law as a law classifying railways common carriers, regulating their relations with their employés, and subjecting them to peculiar obligations and duties towards such employés. The law was sustained on the ground that it was entirely proper, and in fact a universally recognized principle, that railway carriers should be, and generally must be, subjected to special legislation affecting them alone; that this is so, not only on account of the unique dangers involved in the business, but as well on account of its public nature and the vast importance to the public at large of the careful conduct of the business, not merely in the handling of trains, but in the performance of well-nigh every act which an employé performs which is necessary to the carrying on of the business. Railway carriers from their very nature must, in large measure, be governed by laws peculiar to themselves, and such has been the character of railway legislation since the business began. The question is whether the regulation of their relations with their employés is within this general principle or not.

It was noticed in one of the opinions upon the former appeal that, while the federal act which attempted to abolish the co-employé doctrine as to interstate carriers was held void in the Employer's Liability Cases, 207 U. S. 463, 28 Sup. Ct. 141, 52 L. Ed. 297, because it covered intrastate commerce, still it was broadly intimated in the opinion that, if the act applied to the District of Columbia and the territories only, it could not be questioned. This act attempted to impose on every common carrier a liability to any employé for damages resulting from the negligence of any of its officers, agents, or employés; thus it will be seen that it applied in terms, not merely to employés who are moving trains, but to all employés, and thus seems to be subject to the same objection as to improper classification which is now made to the Wisconsin statute. Since the former opinion in the present case was rendered, the question of the constitutionality of the federal act as applied to the District of Columbia and the territories has been brought before the United States Supreme Court in El Paso & N. E. R. Co. v. Gutierrez, 215 U. S. 87, 30 Sup. Ct. 21, 54 L. Ed. 106, and the law has been held constitutional. It is true that the point now raised is not discussed in the opinion, but the decision certainly stands as a direct holding that a law making a common carrier liable for injuries to any employé resulting from the negligence of a co-employé is a valid law. While the fourteenth amendment only inhibits states from depriving personsof life, liberty, or property without due process of law, the same inhibition is placed upon the United States by the fifth amendment, and both state and national Legislatures are governed by the principle that there can be no discrimination in the laws except such as is based upon just and proper classification. Without attempting again to review the authorities which were reviewed upon the former appeal, we are content to rest this branch of the case upon the principle before stated, namely, that railway carriers, on account of the public character of their business, may properly be classified so far as their relations with their employés are concerned, whether such employés are moving trains or not, and may be made subject...