For personal injuries Spencer Melton recovered a judgment against the plaintiff in error in the Circuit Court of Hopkins County, Kentucky. The Court of Appeals affirmed the judgment (127 Kentucky, 276), whereupon this writ of error was prosecuted.
Melton, a carpenter, was injured on March 21, 1905, while in the employ of the railway company. He was one of a construction crew, composed of a foreman and six men, who usually did what is described as bridge carpentering. On the date mentioned the crew was engaged, alongside the track of the railway company at Howell, Indiana, in constructing the foundation of a coal tipple at which the engines might coal. A bent or frame of timber, composed of heavy pieces fastened together, and intended to be used as part of the foundation of the tipple, which was lying flat upon the ground, was being raised for the purpose of placing it in the foundation. The lifting was accomplished by means of a block and tackle. A pulley was fastened by an iron chain to an upright piece of timber, and through the pulley a rope passed, which was attached at one end to the bent, so that on hauling on the rope at the other end the bent or frame
Melton was a resident of Hopkins County, Kentucky, and he there commenced this action. The right to recover was based upon the charge that the injury was occasioned through the furnishing by the corporation of unsafe tools to do the work of raising the bent. Besides generally controverting the cause of the injuries, as alleged, the answer of the company set up the defenses of contributory negligence and assumption of the risk. Thereafter Melton was allowed to file an amendment to his petition. By the amendment it was substantially alleged that he was injured without any fault on his part, and solely owing to a defect in the condition of the works or tools connected with or in use in the business of the defendant, and that such defect was the result of negligence on the part of the foreman, who was the person entrusted with the duty of keeping such tools or works in a proper condition, and the accident was also charged to have been caused by the negligent orders of the foreman, to whose directions Melton was bound to conform. The sufficiency of the facts alleged to entitle to recovery was expressly based upon the provisions of the first and second subsections of § 1 of an act of the legislature of Indiana of March 4, 1893, known as the Employers' Liability Statute, reading as follows:
"First. When such injury is suffered by reason of any defect in the condition of ways, works, plants, tools and machinery connected with or in use in the business of such corporation, when such defect was the result of negligence on the part of the corporation, or some person entrusted by it with the duty of keeping such ways, works, plant, tools or machinery in proper condition.
"Second. Where such injury resulted from the negligence of any person in the service of such corporation, to whose order or direction the injured employe at the time of the injury was bound to conform, and did conform."
The court, on the motion of the railway company, having required Melton to determine whether to rely upon the common law or the statute, he elected to base his right to recover on the statute. Thereupon the railway company answered the amended petition, and therein stated as follows:
"Defendant says that the said Indiana statute pleaded cannot and does not apply to the facts of this case, and plaintiff cannot rely thereon, and that under the law of Indiana, as to the character of work then in hand, the plaintiff was a fellow servant with the said foreman of the construction crew for whose negligence the defendant is not liable."
Before trial, permission being granted, the railway company by an additional amendment defended on the ground that the Indiana statute relied upon, if held applicable to the facts alleged, was repugnant to the constitution of Indiana and to the equal protection clause of the Fourteenth Amendment. The averments on this subject were
On the trial counsel for the railway company offered as evidence of the common law of the State of Indiana on the subject of fellow-servants the opinions of the Supreme Court of Indiana in the following cases: New Pittsburg Coal & Coke Co. v. Peterson, filed October 31, 1893, 136 Indiana, 398; Southern Indiana R.R. Co. v. Harrell, filed October 9, 1903, 161 Indiana, 689; Indianapolis & G. Rapids Transit Co. v. Foreman, filed January 29, 1904, 162 Indiana, 85.
At the close of the evidence for plaintiff, and also upon the conclusion of all the evidence, the railway company unsuccessfully moved the court to peremptorily instruct the jury to find in its favor for the following reasons:
"1. There is no evidence of actionable negligence proven.
"2. The Indiana statute upon which this action is based does not apply to the facts proven.
"3. In so far as the terms of the Indiana statute apply to the facts proven, they are unconstitutional and void. They are discriminatory against defendant and deny it the equal protection of the law. They are violative of the constitution of Indiana and of section 1, article 14, of the Constitution of the United States, being section 1 of the Fourteenth Amendment thereto.
"4. The said Indiana statutes were not intended to be enforced out of the State of Indiana, and are against the policy of the State of Kentucky and not enforcible in a Kentucky forum."
The railway company in its request for instructions, which were refused, and to which refusals it excepted,
"14. The court erred in applying the Indiana statute to the facts of this case. The court erred in enforcing the Indiana statute in a Kentucky forum.
"15. The court erred in upholding and applying the Indiana statute pleaded in this case, when same in so far as applicable to the facts proven in this case is unconstitutional and void. It is discriminatory against defendant, and denies it the equal protection of the law. It is violative of the constitution of the State of Indiana and of section 1 of article 14 of the Constitution of the United States, which guarantees to defendant the equal protection of the law."
The court below held that the Supreme Court of Indiana had construed the statute as applicable both to persons and corporations operating railroads. It further held that the statute embraced the case in hand because Melton came within the category of persons injured in the operation of a railroad, as "the construction of a coal tipple is . . . essential to the operation of a railroad." As thus construed the repugnancy of the statute to the equal protection clause of the Constitution of the United States was considered. It was decided that for the purpose of abrogating or modifying the common law doctrine of fellow-servant it was competent for the law-making power of a State, without offending against the equal protection clause, to classify railroad employes because of
"We are unable to see the force of this distinction. A railroad cannot be run without bridges; bridges cannot be built without carpenters. The work of a bridge carpenter on a railroad is perhaps no less perilous than the work of an operative on one of its trains. Coal tipples are no less essential to the operation of a railroad than bridges, because the engines cannot be operated without coal. The construction of a coal tipple is therefore essential to the operating of a railroad. As has been well said, the legislature cannot well provide for all subjects in one act. Legislation must necessarily be done in detail, and an act regulating railroads violates no constitutional provision because it is made to apply only to railroads. Indianapolis &c. R.R. Co. v. Kane, 80 N.E. Rep. 841; Schoolcrafts, Adm., v. L. & N.R.R. Co., 92 Kentucky, 233; Chicago &c. R.R. Co. v. Stahley, 62 Fed. Rep. 363; Callahan v. R.R. Co., 170 Missouri, 473, 194 U.S. 628; R.R. Co. v. Ivy, 73 Georgia, 504."
The railway company asked a rehearing for the sole purpose of a reconsideration of what was referred to as the very important Federal question involved, viz., "the unconstitutionality of the Indiana statute, as applied to the facts of this case." The court permitted the question whether a rehearing should be granted to be orally argued, and, after such argument, in a brief opinion denied the request. Two members of the court, however, dissented, on the ground that the statute as construed was repugnant to the equal protection clause of the Fourteenth
We primarily dispose of a motion to dismiss, which is rested upon the ground that the Federal question relied upon has been so conclusively foreclosed by prior decisions of this court as to cause it to be frivolous, and therefore not adequate to confer jurisdiction. The contention may not prevail, even although it be admitted that a careful analysis of the previous cases will manifest that they are decisive of this. We say this because, for the purpose of the motion to dismiss, the issue is not whether the Federal question relied upon will be found upon an examination of the merits to be unsound, but whether it is apparent that such question has been so explicitly foreclosed as to leave no room for contention on the subject, and hence cause the question to be frivolous. That this is not the case here we think results from the following considerations, a, because analysis and expounding is necessary in order to make clear the decisive effect of the prior decisions upon the issue here presented; b, because the division in opinion of the lower court as to whether the statute as construed was repugnant to the equal protection clause of the Fourteenth Amendment suggests that the controversy on the subject here presented should not be treated as of such a frivolous character as not to afford ground for jurisdiction to review the action of the court below; and, c, because while an examination of the opinions of state courts of last resort will show that there is unanimity as to the power consistently with the equal protection of the law clause to classify railroad employes actually engaged in the hazardous work of moving trains,
Coming to the merits, we at once premise that we are not concerned with the construction affixed by the court below to the Indiana statute, unless it be that that construction offends against some Federal right properly asserted and open to our consideration. In the argument at bar on behalf of the railway company two rights of this character are insisted upon. First, it is said that the court below, in applying the statute, has caused it to embrace a class of employes which the statute did not include, and thereby gave it a wrongful construction, in violation of the full faith and credit clause of the Constitution of the United States. Second, that in any event the statute as construed is repugnant to the equal protection clause of the Fourteenth Amendment. We separately dispose of these propositions.
The full faith and credit clause. The contentions as to this proposition rest upon the assumption that it has been conclusively settled by the Supreme Court of Indiana that the statute only changed the general rule prevailing in that State in respect to the doctrine of fellow-servant as to railroad employes actually engaged in the hazard of train service, and therefore did not include an employe engaged in the character of work which Melton was performing when injured, and that to give the statute a contrary meaning was to violate the full faith and credit clause. If, however, the premise upon which the proposition rests, and the legal deduction based upon that premise be for the sake of the argument conceded, the contention is, nevertheless, without merit, because of the
Further, even if, for the sake of the argument only, the failure to plead the full faith and credit clause, or to direct the attention of the court below to the fact that reliance was placed upon that clause, could be supplied upon the theory that as the cause of action was based upon an Indiana statute, by implication the due faith and credit clause was necessarily involved, nevertheless the contention would be without merit. This follows because, as pointed out in Finney v. Guy, 189 U.S. 335, 340, and Allen v. Allegheny County, 196 U.S. 458, 463, it is not true to say that necessarily in every case where the court of one State is called upon to determine the proper construction of a statute of another State, a question under the Constitution of the United States arises. Although the Indiana statute was at issue and its meaning was necessarily involved, the duty of construing it rested upon the court below. The general rule is that in the absence
The equal protection of the law clause. That the Fourteenth Amendment was not intended to and does not strip the States of the power to exert their lawful police authority is settled, and requires no reference to authorities. And it is equally settled — as we shall hereafter take occasion to show — as the essential result of the elementary doctrine that the equal protection of the law clause does not restrain the normal exercise of governmental power, but only abuse in the exertion of such authority, therefore that clause is not offended against simply because as the result of the exercise of the power to classify some inequality may be occasioned. That is to say, as the power to classify is not taken away by the operation of the equal protection of the law clause, a wide
It is beyond doubt foreclosed that the Indiana statute does not offend against the equal protection clause of the Fourteenth Amendment, because it subjects railroad employes to a different rule as to the doctrine of fellow-servant from that which prevails as to other employments in that State. Tullis v. Lake Erie & W.R.R. Co., 175 U.S. 348; Pittsburg &c. Ry. Co. v. Ross, 212 U.S. 560. But while conceding this the argument is that classification of railroad employes for the purpose of the doctrine of fellow-servant can only consistently with equality and uniformity embrace such employes when exposed to dangers peculiarly resulting from the operation of a railroad, thus affording ground for distinguishing them for the purpose of classification from co-employes not subject to like hazards or employes engaged in other occupations. The argument is thus stated: "Plaintiff in error does not question the right of the legislature of Indiana to classify railroads in order to impose liability upon them for injuries to their employes incident to railroad hazards, but it does insist that to make this a constitutional exercise of legislative power the liability of the railroads must be made to depend upon the character of the employment and not upon the character of the employer." Thus stated, the argument tends to confuse the question for decision, since there is no contention that the statute as construed bases any classification upon some supposed distinction in the person of the employer. The idea evidently intended to be expressed by the argument is, that although, speaking in a general sense, it be true that the hazards arising from the operation of railroads are such that a classification of railroad employes is justified, yet as in operating railroads some employes are subject to risks peculiar to such operation and others to risks which,
In Magoun v. Illinois Trust & Savings Bank, 170 U.S. 294, 296, while declaring that the power of a State to distinguish, select and classify objects of legislation was of course not without limitation, it was said, "necessarily this power must have a wide range of discretion." After referring to various decisions of this court, it was observed:
"There is therefore no precise application of the rule of reasonableness of classification, and the rule of equality permits many practical inequalities. And necessarily so. In a classification for governmental purposes there cannot be an exact exclusion or inclusion of persons and things."
Again considering the subject in Orient Ins. Co. v. Daggs, 172 U.S. 557, it was reiterated that the legislature of a State has necessarily a wide range of discretion in distinguishing, selecting and classifying, and it was declared that it was sufficient to satisfy the demand of the Constitution if a classification was practical and not palpably arbitrary.
In Minnesota Iron Co. v. Kline, 199 U.S. 593, a statute of Minnesota, providing that the liability of railroad companies for damages to employes should not be diminished by reason of accident occurring through the negligence of fellow-servants, was held not to discriminate against any class of railroads, or to deny the equal protection of the laws because of a proviso which excepted employes engaged in construction of new and unopened railroads. In the course of the opinion the court said (p. 598): "The whole case is put on the proviso, and the argument with regard to that is merely one of the many attempts to impart an overmathematical nicety to the prohibitions of the Fourteenth Amendment." These principles were again applied in Martin v. Pittsburg &c. R.R. Co., 203 U.S. 284, and the doctrines were also fully
And coming to consider the concrete application made of these general principles in the decisions of this court which have construed the statute here in question, and statutes of the same general character enacted in States other than Indiana, we think when rightly analyzed it will appear that they are decisive against the contention now made. It is true that in the Tullis case, which came here on certificate, the nature and character of the work of the railroad employe who was injured was not stated, and that reference in the course of the opinion was made to some state cases, limiting the right to classify to employes engaged in the movement of trains. But that it was not the intention of the court to thereby intimate that a classification if not so restricted would be repugnant to the equal protection clause of the Fourteenth Amendment, will be made clear by observing that the previous case of Chicago &c. R. Co. v. Pontius, 157 U.S. 209, was cited approvingly, in which, under a statute of Kansas classifying railroad employes, recovery was allowed to a bridge carpenter employed by the railroad company, who was injured while attempting to load timber on a car. And in the opinion in the Pontius case there was approvingly cited a decision of the Court of Appeals of the Eighth Circuit (Chicago, R.I. & P.R. Co. v. Stahley, 62 Fed. Rep. 362), wherein it was held that under the same statute an employe injured in a round-house while engaged in lifting a driving rod for attachment to a new engine could recover by virtue of the statute. All this is made plainer by the ruling in St. Louis Merchants' Bridge Terminal Ry. Co. v. Callahan, 194 U.S. 628, where, upon the authority of the Tullis case, the court affirmed a judgment of the Supreme Court of Missouri, which held that recovery might be had by a section hand upon a railroad who, while engaged in warning passersby in a street beneath
While, as we have previously said, it is true there are state decisions dealing with statutes classifying railroad employes sustaining the restricted power to classify which is here insisted upon, we do not think it is necessary to review them or to notice those tending to the contrary. They are referred to in the opinions rendered in the court below. Nor do we think our duty in this respect is enlarged because since the judgment below was rendered the court of last resort in Indiana (Indianapolis &c. Co. v. Kinney, 171 Indiana, 612, and Cleveland, C.C. & St. L. Ry. Co. v. Foland, decided April 20, 1910, and not yet reported) has, upon the theory that it was necessary to save the statute in question from being declared repugnant to the equality clause of the state constitution and the Fourteenth Amendment, unequivocally held that the statute must be construed as restricted to employes engaged in train service.