
    Earl Ives, Plaintiff, v. The South Buffalo Railway Company, Defendant.
    (Supreme Court, Erie Special Term,
    September, 1910.)
    Constitutional law — Mature, adoption and interpretation — Construction, operation and enforcement—Who may raise constitutional questions: Deprivation of life, liberty or property without due process of law — Imposing liability where there is no fault: Privileges and immunities of citizens of the United States and of the several States and equal protection of the laws — Discriminating against persons employed in occupations deemed dangerous.
    The provisions of chapter 674 of the Laws of 1910, inserting into the Labor Law a new article which imposes upon an employer liability to pay compensation, upon a fixed scale that includes compensation for injuries resulting in death, to a servant injured in the course of employment in one of the employments designated by the statute as especially dangerous, notwithstanding the freedom" from fault or negligence of the employer, are not unconstitutional:
    First, in depriving the employer of his property without due process of law and denying to him the equal protection of the laws by discriminating against those who are engaged in the dangerous employments specified in the statute.
    Second, in imposing liability upon employers for injuries that happen without their fault.
    In an action against an employer under said statute, to recover compensation for such injuries, the defendant may not be heard to complain that the statute limits the amount that may be recovered against it for injuries resulting in death and is, for that reason, in contravention of section 18 of article 1 of the State Constitution.
    Demurrer to defendant’s answer.
    Thomas C. Burke, for plaintiff.
    Charles B. Sears, for defendant.
   Pound, J.

The answer challenges the constitutionality of chapter 674, Laws of 1910, entitled, “An act to amend the labor law, in relation to workmen’s compensation in certain dangerous employments.” This chapter applies only to workmen engaged in manual or mechanical labor in certain employments declared by the act to be dangerous by reason of inherent, necessary, or substantially unavoidable risks to life or limb, in which it is deemed necessary to establish a new system of compensation for accidents to workmen. § 215.

Among such employments is included, “ 6. The operation on steam railroads of locomotives, engines, trains, motors or cars propelled by gravity or steam, electricity or other mechanical power, or the construction or repair of steam railroad tracks and roadbeds over which such locomotives, engines, trains, motors or cars are operated.” § 215.

Plaintiff brings himself squarely under the provisions of this act by alleging facts that establish, as admitted by the answer, that, while employed by defendant as a switchman, he was injured in the prosecution of his work, without negligence on the part of the defendant and “ without serious or wilful misconduct” on his part, but solely by reason of a necessary risk or danger of his employment, or one inherent in the nature thereof. § 217.

Prior to the enactment of the statute above cited, he would have been without remedy. By virtue of its provisions he is entitled to recover, according to a fixed scale of compensation, without establishing that the employer is at fault in any way. § 219 a.

The plaintiff, demurs to the answer, on the ground that it is insufficient in law on its face.

This act is based on the Workmen’s Compensation Act of England, and its enactment is due to the fact that the common law affords no available remedy for injuries occasioned by industrial accidents not attributable to the negligence of the employer.

Defendant maintains that, under our system of constitutional government, the incorporation into our law of the English law of workmen’s compensation is beyond the powers of the Legislature. First, because the act in question deprives the defendant of liberty and property without due process of law, and denies it the equal protection of the laws, in contravention of the fourteenth amendment of the United States Constitution and article 1, section 6, of the Constitution of this State. Second, because it violates the right of trial by jury guaranteed by article 1, section 2, of the Constitution of this State. Third, because it limits the amount recoverable in actions to recover damages for injuries resulting in death in contravention of article 1, section 18, of the Constitution of this State.

It has well been said by Mr. Justice Brown of the Supreme Court of the United States, writing the opinion of the court in Holden v. Hardy, 169 U. S. 366, 387, that While the cardinal principles of justice are immutable, the methods by which justice is administered are subject to constant fluctuation, and the Constitution of the United States, which is necessarily and to a large extent inflexible and exceedingly difficult of amendment, should not be so construed as to deprive the States of the power to so amend their laws as to make them conform to the wishes of the citizens as they may deem best for the public welfare without bringing them into conflict with the supreme law of the land.”

It is well established that statutes applicable solely to railroads do not deny to railroads the equal protection of the laws. A classification of “ dangerous employments ” for the purposes of the act must be upheld. Missouri Railway Company v. Mackey, 127 U. S. 205. But the act is attacked chiefly because it imposes liability without fault.

Our jurisprudence offers examples of legal liability without fault and the deprivation of property without fault being attributable to its owner. The law of deodands was such an example. The personification of the ship in marine law is another. Other examples are offered in the common law liability of the husband for the torts of the wife, or liability of the master for the acts of his servant. The Osceola, 189 U. S. 158; Chicago, R. I. & P. Ry. Co. v. Zernecke, 183 id. 582.

In the case' last cited, a statute making railroad companies liable for all damages inflicted upon the person of passengers while being transported over its road, except in cases where the injury arose through the criminal negligence of the person injured, was upheld, primarily, on the ground that the railroad company, being a domestic corporation of Nebraska, accepted with its incorporation the liability so imposed by the laws of that State and could not complain of it. But the court in its opinion cites with approval the opinion of the1 Supreme Court of Nebraska. That court said: “The legislation is justifiable under the police power of the state, so it has been held. It was enacted to make railroad companies insurers of the safe transportation of their passengers as they were of baggage and freight; and no good reason is suggested why a railroad company should be released from liability for injuries received by a passenger while being transported over its line while the corporation must respond for any damages to his baggage or freight.”

The Legislature may alter or repeal the common law. It may create new offenses, enlarge the scope of civil remedies and fasten responsibility for injuries upon persons against whom the common law gives no remedy. Bertholf v. O’Reilly, 74 N. Y. 504.

It would seem to follow that it might make those who employ workmen in dangerous callings insurers, to some extent, of the safety of such workmen.

The common law imposed upon the employee entire responsibility for injuries arising out of the necessary risks or dangers of the employment. The statute before us merely shifts such liability upon the employer.

That the Legislature has the power to deal with the question of employers’ liability on a basis other than fault is not clear beyond peradventure, but every presumption "is in favor of the constitutionality of the act; nor do I find its constitutionality so doubtful as to warrant this court in holding that such action is not within the constitutional powers of the Legislature.

I have examined the authorities cited by the learned counsel for the defendant. They merely point out the shifting character of the bonder line between statutes which are upheld by the court as being a legitimate exercise of the legislative power to pass all manner of necessary and wholesome acts for the protection and well-being of the public, although such acts may interfere with personal liberty and the right to do what one will with his own, and statutes which are held by the courts to interfere without warrant with the privilege of pursuing an ordinary trade or calling, and, therefore, to be unconstitutional and void.

In the case of Lockner v. New York, 189 U. S. 45, the prevailing and dissenting opinions contain a full discussion of the principles underlying the decision of such cases. The court held in that case that there is no reasonable ground on the score of health for interfering with the liberty of the person or the right of free contract by determining hours of labor in the occupation of a baker. The same court had already held, in Holden v. Hardy, supra,, that there was reasonable ground on the score of health for interfering with the liberty of the person and the right of free contract in determining hours of labor in the occupation of workmen in smelters. In the former case, the public good did not, in the judgment of the court, require the restrictive legislation; in the latter case, it did.

In the latter case, Hr. Justice Brown says that “ This court has not failed to recognize the fact that the law is to some extent a progressive science. * * "x" Classes of persons, particularly those engaged in dangerous or unhealthful employments, have been found to be in need of additional protection.”

As to the objection to the statute that it limits the amount recoverable in death cases, it is enough to say that it is .for the plaintiff to make the claim of unconstitutionality in this regard, as it is the plaintiff alone who is prejudiced thereby, and it does not lie in the mouth of the defendant to raise this objection to the statute.

Demurrer overruled, with costs, and judgment absolute for the plaintiff directed on the pleadings, with costs.

Judgment accordingly.  