Swoboda v. Union Pacific Railroad Company
| Decision Date | 10 June 1910 |
| Docket Number | 16,080 |
| Citation | 127 N.W. 215,87 Neb. 200 |
| Parties | FRANK SWOBODA, APPELLEE, v. UNION PACIFIC RAILROAD COMPANY, APPELLANT |
| Court | Nebraska Supreme Court |
APPEAL from the district court for Douglas county: ABRAHAM L SUTTON, JUDGE. Affirmed.
AFFIRMED.
N. H Loomis, Edson Rich, James E. Rait and E. H. Crocker, for appellant.
Smyth Smith & Schall, contra.
This case involves a construction of section 3, ch. 21, Comp. St. 1909, adopted in 1907, commonly called the "Employer's Liability Act." One of the departments of defendant's shops in the city of Omaha is known as the blacksmith shop. Plaintiff was employed therein as a helper. He and another helper, Carl Gall, were operating a steam hammer weighing about 500 pounds, in flattening iron washers. Gall was operating the hammer by means of levers. Plaintiff stood in front of the hammer, placing and removing the washers on a steel die of the hammer. One blow was required to flatten each washer. As the hammer lifted, plaintiff would remove the flattened washer with his hand, and replace another for the next stroke of the hammer. The negligence alleged is that Gall, who was controlling the hammer, carelessly and negligently caused it to descend while plaintiff's right hand was thereunder, and while plaintiff, in the exercise of due care and in the performance of his duties, was endeavoring to remove from the plate a washer theretofore placed by him thereon. The evidence shows that the washers then being made were for general use by defendant in the repair of its engines and cars; that when cars or engines are being repaired and a bolt goes through a piece of wood, one of these washers is always placed at the head of the bolt; that the shop in which plaintiff was working employs about 135 men; that there are 29 blacksmiths who work the forges, 4 driving hammers, 5 bolt machines, 2 shears, about 22 furnaces in operation, 9 power hammers, and 2 similar to the one in question. The foremen of the shop, when asked what they did in the way of repairing iron work on cars, answered: "Every article which is made of metal; we repair every article of iron or steel; do the necessary repairing or make new where it is ordered"; that when engines are to be repaired they are taken to the machine shop and stripped down to the base, and whatever is necessary to be repaired on the engines is sent to the blacksmith shop, "and we repair those things and take them back to the machine shop and put them back on the engine"; that any part of the iron work or metal parts of an engine that get out of repair are sent to that shop to be repaired; that they also do the repairing of iron work on freight cars, box cars, passenger cars and engines, and also construct new parts of cars and engines.
The defenses relied upon are that the work upon which plaintiff was engaged at the time of his injury was not "construction" or "repair work," as such words are used under the employer's liability act; that plaintiff's injuries were received by and through the carelessness of his fellow servant contributing thereto; that the employer's liability act, under which plaintiff is seeking to recover, is violative of section 1 of article 14 of amendments to the constitution of the United States; and that "said act by its provisions makes railroad companies liable for injuries to employees resulting from the negligence of fellow servants and co-employees when such injured employees are injured in construction and repair work not involving the dangers and hazards peculiar to the business of constructing, maintaining, and operating railroads, when no such liability is attached by the state of Nebraska to other employers for similar hazards, thereby depriving railroad companies of the equal protection of the laws accorded to all other litigants, persons, or corporations within the state of Nebraska, and violating that part of section 1 of the fourteenth article of amendments to the constitution, which provides 'no state shall make or enforce any law, * * * nor deny to any person within its jurisdiction the equal protection of the laws." From a judgment in favor of plaintiff, defendant appeals.
Section 3, ch. 21, Comp. St. 1909, provides: "That every railway company operating a railway engine, car or train in the state of Nebraska shall be liable to any of its employees, who at the time of injury are engaged in construction or repair work, or in the use and operation of any engine, car or train for said company, * * * for all damages which may result from negligence of any of its officers, agents, or employees, or by reason of any defects or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, ways or works." Counsel for defendant in their brief clearly state their position as follows: "The defendant contends that this statute affects only such employees as are injured through a risk or hazard incident and peculiar to the business of constructing, repairing and operating railroads, and that, while the statute on its face is broad enough to cover other employees, if extended beyond railroad hazards, it is violative of the fourteenth amendment to the constitution of the United States for the reason that the state of Nebraska cannot impose burdens or restrictions upon railroad companies with reference to personal injuries unless all employers are equally affected by the statute in cases where the injuries arise in the same manner."
Authorities are not wanting to sustain defendant's contention. They are cited and ably presented in defendant's brief. But the clear weight of authority and the better reasoning is the other way. It would be interesting to review the authorities, but that has been so ably done by the supreme court of the United States, and other courts, in the cases cited below, that we shall not enter into a general review of the cases.
In Missouri P. R. Co. v. Mackey, 32 L.Ed. 107 (127 U.S. 205, 8 S.Ct. 1161) the syllabus reads: (1) "The law of Kansas making a railroad company liable to an employee for the negligence or mismanagement of other employees or agents of the same company is not in conflict with the fourteenth amendment to the constitution of the United States, in that it deprives the company of its property without due process of law, and denies to it the equal protection of the laws."
(2) "Legislation which is special in its character is not obnoxious to the last clause of the fourteenth amendment, if all persons subject to it are treated alike, under similar circumstances and conditions, in respect both of the privileges conferred and the liabilities imposed."
Instruction number 8 given by the court below, and complained of by defendant here, was evidently taken from the opinion in this case. The instruction in almost identical language is quoted by Mr. Justice Field, and approved.
In Tullis v. Lake Erie & W. R. Co., 175 U.S. 348, 44 L.Ed. 192, 20 S.Ct. 136, the court say: "Considering this statute as applying to railroad corporations only, we think it cannot be regarded as in conflict with the fourteenth amendment." The opinion by Mr. Chief Justice Fuller then reviews a number of the cases on the subject among them Peirce v. Van Dusen, 78 F. 693, which, considering the prominence of the judges who decided it, we will briefly refer to. The opinion was by Harlan, Circuit Justice, and associated with him were Circuit Judges Taft (now President) and Lurton (now associate justice of the supreme court). The third...
To continue reading
Request your trial