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EMPLOYERS' LIABILITY-COMPENSATION LAW-LIABILITY WITHOUT Fault-DUE PROCESS OF Law-CONSTITUTIONALITY OF STATUTEIves v. South Buffalo Railway Company, Court of Appeals of New York (copy of opinion furnished by State reporter).—This case came before the court of appeals on an appeal from a decision by the supreme court sustaining the validity of chapter 674 of the Acts of 1910. (124 N. Y. Supp. 920.) This law required employers in designated dangerous employments to compensate their workmen for injuries befalling them in the course of employment, resulting merely from the risk of the employment, and without regard to the negligence of the employer. (For the text of the law see Bulletin No. 90, pp. 713, 714; Bulletin No. 91, pp. 1100-1102.) The plaintiff Ives was a brakeman in the employment of the railway company named, and was injured without negligence, but solely by reason of the necessary risks of his employment. The company resisted his claim to compensation under the law on the ground that the law was unconstitutional, denying equal protection of the law in contravention of the provisions of the fourteenth amendment, and violating the right of trial by jury guaranteed by the constitution of the State. From a decision in the plaintiff's favor in the supreme court the company appealed, securing a reversal of the judgment of the lower court on grounds that appear in the following opinion, which was delivered by Judge Werner on March 24, 1911, all judges concurring. Judge Werner said:

In 1909 the legislature passed a law (ch. 518) providing for a commission of 14 persons, 6 of whom were to be appointed by the governor, 3 by the president of the senate from the senate, and 5 by the speaker of the assembly from the assembly, “to make inquiry, examination and investigation into the working of the law in the State of New York relative to the liability of employers to employees for industrial accidents, and into the comparative efficiency, cost, justice, merits and defects of the laws of other industrial States and and countries, relative to the same subject, and as to the causes of the accidents to employees.” The act contained other provisions germane to the subject and provided for a full and final report to the legislature of 1910, if practicable, and if not practicable, then to the legislature of 1911, with such recommendations for legislation by bill or otherwise as the commission might deem wise or expedient. Such a commission was appointed and promptly organized by the election of officers and the appointment of subcommittees, the chairman being Senator Wainwright, from whom it has taken the name of the “Wainwright commission,” by which it is popularly known. No word of praise could overstate the industry and intelligence of this commission in dealing with a subject of such manifold ramifications and of such far-reaching importance to the State, to employers and to employees. We can not dwell in detail upon the many excellent features of its comprehensive report, because the limitations of time and space must necessarily confine us to such of its aspects as have a necessary relation


to the legal questions which we are called upon to decide. As the result of its labors the commission recommended for adoption the bill which, with slight changes, was enacted into law by the legislature of 1910, under the designation of article 14-a of the labor law. This act is modeled upon the English workmen's compensation act of 1897, which has since been extended so as to cover every kind of occupational injury. Our commission has frankly stated in its report that the classification of the industries which will be immediately affected by the present statute is only tentative, and that other more extended classifications will probably be recommended to the legislature for its action.

The statute, judged by our common-law standards, is plainly revolutionary. Its central and controlling feature is that every employer who is engaged in any of the classified industries shall be liable for any injury to a workman arising out of and in the course of the employment by a necessary risk or danger of the employment or one inherent in the nature thereof; * provided that the employer shall not be liable in respect of any injury to the workman which is caused in whole or in part by the serious and willful misconduct of the workman.” This rule of liability, stated in another form, is that the employer is responsible to the employee for every accident in the course of the employment, whether the employer is at fault or not, and whether the employee is at fault or not, except when the fault of the employee is so grave as to constitute serious and willful misconduct on his part. The radical character of this legislation is at once revealed by contrasting it with the rule of the common law, under which the employer is liable for injuries to his employee only when the employer is guilty of some act or acts of negligence which caused the occurrence out of which the injuries arise, and then only when the employee is shown to be free from any negligence which contributes to the occurrence. The several judicial and statutory modifications of this broad rule of the common law we shall further on have occasion to mention. Just now our purpose is to present in sharp juxtaposition the fundamentals of these two opposing rules, namely, that under the common law an employer is liable to his injured employee only when the employer is at fault and the employee is free from fault; while under the new statute the employer is liable, although not at fault, even when the employee is at fault, unless this latter fault amounts to serious and willful misconduct. The reasons for this departure from our longestablished law and usage are summarized in the language of the commission as follows:

“First, that the present system in New York rests on a basis that is economically unwise and unfair, and that in operation it is wasteful, uncertain and productive of antagonism between workmen and employers.

Second, that it is satisfactory to none and tolerable only to those employers and workmen who practically disregard their legal rights and obligations, and fairly share the burden of accidents in industries.

“Third, that the evils of the system are most marked in hazardous employments, where the trade risk is high and serious accidents frequent.

"Fourth, that, as matter of fact, workmen in the dangerous trades do not, and practically can not, provide for themselves adequate accident insurance, and, therefore, the burden of serious accidents falls on the workmen least able to bear it, and brings many of them and their families to want."

This indictment of the old system is followed by a statement of the anticipated benefits under the new statute as follows: “These results can, we think, be best avoided by compelling the employer to share the accident burden in intrinsically dangerous trades, since by fixing the price of his product the shock of the accident may be borne by the community. In those employments which have not so great an element of danger, in which, speaking generally, there is no such imperative demand for the exercise of the police power of the State for the safeguarding of its workers from destitution and its consequences, we recommend, as the first step in this change of system, such amendment of the present law as will do away with some of its unfairness in theory and practice, and increase the workman's chance of recovery under the law. With such changes in the law we couple an elective plan of compensation which, if generally adopted, will do away with many of the evils of the present system. Its adoption believe, be profitable to both employer and employee, and prove to be the simplest way for the State to change its system of liability without disturbance of industrial conditions. Not the least of the motives moving us is the hope that by these means a source of antagonism between employer and employed, pregnant with danger for the State, may be eliminated."

This quoted summary of the report of the commission to the legislature, which clearly and fairly epitomizes what is more fully set forth in the body of the report, is based upon a most voluminous array of statistical tables, extracts from the works of philosophical writers and the industrial laws of many countries, all of which are designed to show that our own system of dealing with industrial accidents is economically, morally and legally unsound. Under our form of government, however, courts must regard all economic, philosophical and moral theories, attractive and desirable though they may be, as subordinate to the primary question whether they can be molded into statutes without infringing upon the letter or spirit of our written constitutions. In that respect we are unlike any of the countries whose industrial laws are referred to as models for our guidance. Practically all of these countries are so-called constitutional monarchies in which, as in England, there is no written constitution, and the Parliament or law-making body is supreme. In our country the Federal and State constitutions are the charters which demark the extent and the limitations of legislative power; and while it is true that the rigidity of a written constitution may at times prove to be a hindrance to the march of progress, yet more often its stability protects the people against the frequent and violent fluctuations of that which, for want of a better name, we call public opinion.

With these considerations in mind we turn to the purely legal phases of the controversy for the purpose of disposing of some things which are incidental to the main question. The new statute, as we have observed, is totally at variance with the common-law theory of the employer's liability. Fault on his part is no longer an element of the employee's right of action. This change necessarily and logically carries with it the abrogation of the "fellow-servant" doctrine, the “contributory negligence" rule, and the law relating to the employee's assumption of risks. There can be no doubt that the first two of

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these are subjects clearly and fully within the scope of legislative power;

and that as to the third, this power is limited to some extent by constitutional provisions.

The “fellow-servant” rule is one of judicial origin engrafted upon the common law for the protection of the master against the consequences of negligence in which he has no part. In its early application to simple industrial conditions it had the support of both reason and justice. By degrees it was extended until it became evident that under the enormous expansion and infinite complexity of our modern industrial conditions the rule gave opportunity, in many instances, for harsh and technical defenses. In recent years it has been much restricted in its application to large corporate and industrial enterprises, and still more recently it has been modified and, to some extent abolished, by the labor law and the employers' liability act.

The law of contributory negligence has the support of reason in any system of jurisprudence in which the fault of one is the basis of liability for injury to another. Under such a system it is at least logical to hold that one who is himself to blame for his injuries should not be permitted to entail the consequences upon another who has not been negligent at all, or whose negligence would not have caused the injury if the one injured had been free from fault. It may be admitted that the reason of the rule is often lost sight of in the effort to apply it to a great variety of practical conditions, and that its effi- • cacy as a rule of justice is much impaired by the lack of uniformity in its administration. In the admiralty branch of the Federal courts, for instance, we have what is known as the rule of comparative negligence under which, when there is negligence on both sides, it is apportioned and a verdict rendered accordingly. In many of the States contributory negligence is a defense which must be pleaded and proved by the defendant, and in some States it has been entirely abrogated by statute. In our own State the plaintiff's freedom from contributory negligence is an essential part of his cause of action which must be affirmatively established by him, except in cases brought by employees under the labor law, by virtue of which the contributory negligence of an employee is now made a defense which must be pleaded and proved by the employer; and under the employers' liability act which provides that the employee's continuance in his employment after he has knowledge of dangerous conditions from which injury may ensue, shall not, as matter of law, constitute contributory negligence.

Under the common law the employee was also held to have assumed the ordinary and obvious risks incident to the employment, as well as the special risks arising out of dangerous conditions which were known and appreciated by him. This doctrine, too, has been modified by statute so that under the labor law and the employers' liability act the employee is presumed to have assented to the necessary risks of the occupation or employment and no others; and these necessary risks are defined as those only which are inherent in the nature of the business and exist after the employer has exercised due care in providing for the safety of his employees, and has complied with the laws affecting or regulating the business or occupation for the greater safety of employees.

We have said enough to show that the statutory modifications of the "fellow-servant” rule and the law of contributory negligence" are clearly within the legislative power. These doctrines, for they

are nothing more, may be regulated or even abolished. This is true to a limited extent as to the assumption of risk by the employee. In the labor law and the employers' liability act, which define the risks assumed by the employee, there are many provisions which cast upon the employer a great variety of duties and burdens unknown to the common law. These can doubtless be still further multiplied and extended to the point where they deprive the employer of rights guaranteed to him by our constitutions, and there, of course, they must stop, as we shall endeavor to demonstrate later on.

Passing now to the constitutional objections which are presented against the new statute, we will first eliminate those which we regard as clearly or probably untenable. The appellant [company] argues and the respondent (Ives) admits that the new statute can not be upheld under the reserved power of the legislature to alter and amend charters. It is true that the defendant in the case at bar is a railroad corporation, but the act applies to eight enumerated occupations or industries without regard to the character of the employers. They may be corporations, firms or individuals. Nowhere in the act is there any reference to corporations. The liability sought to be imposed is based upon the nature of the employment and not upon the legal status of the employer. It is, therefore, unnecessary to decide how far corporate liability may be extended under the reserved power to alter or amend charters, except as that question may be incidentally discussed in considering the police power of the State.

The appellant contends that the classification in this statute, of a limited number of employments as dangerous, is fanciful or arbitrary, and is, therefore, repugnant to that part of the fourteenth amendment to the Federal Constitution which guarantees to all our citizens the equal protection of the laws. Classification, for purposes of taxation, or of regulation under the police power, is a legislative function with which the courts have no right to interfere unless it is so clearly arbitrary or unreasonable as to invade some constitutional right. A State may classify persons and objects for the purpose of legislation provided the classification is based on proper and justifiable distinctions (St. John v. New York, 201 U. S. 633; Missouri Pac. Ry. Co. v. Mackey, 127 U. S. 205 [8 Sup. Ct. 1161); Minneapolis & St. L. Ry. Co. v. Herrick, 127 U. S. 210 [8 Sup. Ct. 1176); Chicago, K. & W. R. R. Co. v. Pontius, 157 U. S. 209), and for a purpose within the legislative power. There can be no doubt, we think, that all of the occupations enumerated in the statute are more or less inherently dangerous to a degree which justifies such legislative regulation as is properly within the scope of the police power. We need not look for illustration or authority outside of the labor law to which this new statute has been added. The whole of that law which precedes the latest addition is devoted to restrictions and regulations imposed upon employers in specified occupations or conditions for the conservation of the health, safety and morals of employees. These restrictions and regulations do not affect all employers alike in all occupations, nor are they designed to have that effect. The mandate of the Federal Constitution is complied with if all who are in a particular class are treated alike. (Missouri Pac. Ry. Co. v. Humes, 115 U. S. 512, 523; Barbier v. Connolly, 113 U. Š. 27; Soon Hing v. Crowley, 113 Ú. S. 703; Magoun v. Ill. Trust & Sav. Bank, 170 Ư. S. 283, 294; People ex rel. Hatch

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