[228 U.S. 559, 560] Messrs. E. C. Field, H. R. Kurrie, and John D. Black for plaintiff in error.
Mr. Morse Ives for defendant in error.
Mr. Justice Lurton delivered the opinion of the court:
This is a personal-injury case. The plaintiff, Haynes L. Hackett, was a yard switchman in the employ of the railroad company. While engaged in switching cars in the yard of the company at Monon, Indiana, on February 4, 1907, he was injured through the negligence of another servant of the company who was his immediate superior as yard foreman. He brought this action in the supreme court of Cook county, Illinois, and recovered a judgment for $30,000, for the loss of both legs. This was affirmed by the appellate court of Illinois, which was the highest court of the state to which the case could be carried.
The plaintiff's declaration contained thirteen counts. A demurrer to the first count was sustained and it was [228 U.S. 559, 561] dropped out of the case. The remaining counts were based upon the Indiana act of March 4, 1893 (Acts 1893, p. 294), and particularly the fourth paragraph thereof. The demurrer to these courts was overruled, and the plea of not guilty was entered, upon which issue was joined.
The Indiana statute provides that 'every railroad or other corporation, except municipal, operating in this state, shall be liable for damages for personal injuries sustained by any employee while in its service, the employee being in the exercise of due care and diligence, in the following cases.' One of the cases described was this: 'When such injury was caused by the negligence of any person in the service of such corporation who has charge of any signal, telegraph office, switch yard, shop, roundhouse, locomotive, engine, or train upon a railway.'
Shortly stated, the case alleged was that the plaintiff, while assisting in the switching of certain cars from one track to another, was, through the negligence of the yard foreman, then in control and directing the operation, thrown violently and negligently from one of the cars and run over. The plaintiff in error claimed in the state court that the Indiana statute upon which the action was brought was invalid as a denial to railroad companies of the equal protection of the law guaranteed by the 14th Amendment. This objection was denied, and the ruling is assigned as error.
The constitutionality of the act has been upheld by this court in Tullis v. Lake Erie & W. R. Co. 175 U.S. 348 , 44 L. ed. 192, 20 Sup. Ct. Rep. 136, and in Louisville & N. R. Co. v. Melton, 218 U.S. 36 ,-L.R.A.(N. S.) -, 54 L. ed. 921, 30 Sup. Ct. Rep. 676.
It is, however, contended that neither of the cases cited brought before this court the precise question here presented, namely, that the act violates the 14th Amendment, because upon its face it applies to 'any employee,' thereby embracing in one classification those employees subjected to the hazards incident to the actual [228 U.S. 559, 562] operation of railway trains with those in other branches of the service not so subjected, and, therefore, not within the reason for the classification. Upon this assumption it is claimed that the act is one which cannot be upheld as valid as to one class of employees and invalid as to the other, embraced within the single classification, and must therefore be condemned as wholly invalid under the rule applied by this court in Employers' Liability Cases (Howard v. Illinois C. R. Co.) 207 U.S. 463 , 52 L. ed. 297, 28 Sup. Ct. Rep. 141. But this argument overlooks the fact that the act in question is an act of state legislation, and that its construction is a matter for the state courts of Indiana. If the supreme court of Indiana has construed the act as not extending to any class of railroad employees except those whose occupation connects them in some way with the movement of trains where they are exposed to the hazards incident to the operation and movement of trains and engines, and the act as thus construed and applied is a valid enactment, we must accept that as the proper interpretation of the act. The single duty of this court would then consist in determining whether the act as thus construed violated the equality clause of the 14th Amendment of the Constitution of the United States.
In repeated decisions the Indiana supreme court has construed the act as one which cannot be invoked by any class of railroad employees not engaged in some branch of service where they are subjected to the hazards incident to the movement of trains or engines, and held that, as thus limited, the act is valid; Richey v. Cleveland, C. C. & St. L. R. Co. 176 Ind. 542, -- L.R.A.(N.S.) --, 96 N. E. 694; Bedford Quarries Co. v. Bough, 168 Ind. 671, 14 L.R.A.(N.S.) 418, 80 N. E. 529; Indianapolis Traction & Terminal Co. v. Kinney, 171 Ind. 612, 23 L.R.A.(N.S.) 711, 85 N. E. 954; Cleveland, C. C. & St. L. R. Co. v. Foland, 174 Ind. 411, 91 N. E. 594, 92 N. E. 165. Thus the Indiana court, in Pittsburgh, C. C. & St. L. R. Co. v. Rogers, 168 Ind. 483, 81 N. E. 212, said:
In Indianapolis Traction & Terminal Co. v. Kinney, 171 Ind. 612, 23 L. R.A.(N.S.) 711, 85 N. E. 954, the court said:
That the act, as thus construed and upheld by the highest court or Indiana, does not contravene the equal protection clause of the 14th Amendment, is settled by the two decisions of this court cited above. But we do not intimate that the act, if construed as applicable to all employees of a railroad company, would be in contravention of that clause.
The Illinois court held that upon the facts of this case the yard foreman through whose negligence the plaintiff Hackett was injured was in charge of a train within the meaning of the act. The train was in the yard. Its movements were under the foreman's control. The act for which the company was held liable under the statute was, said the Illinois court, quoting from Chicago, I. & L. R. Co. v. Williams, 168 Ind. 276, 76 N. E. 442, 'A negligent act, occurring at a time when the doer of the act is in charge or control of a train.' To hold that the operation in the yard of a company, of a train hauled by an engine, for the purpose of distributing its cars, is not an operation of a train or engine within the meaning of the Indiana act, and that the negligence of employees directing and controlling the movements of the train is not the negligence of one in charge of a train within the fair purpose and meaning of the act, would be to make the act meaningless as to the most dangerous class of work which falls to the lot of railroad employees.
We therefore conclude that the contention that the Illinois court erred, either in holding the act valid under the equal protection clause or in its application of the act to the facts of this case, is without merit.
It is then said that the Illinois court denied full faith [228 U.S. 559, 565] and credit to the judicial construction of this act by the Indiana court. The first answer to this is that there is no want of harmony between the construction and application of the act by the Illinois court and the interpretation and application of the act by the Indiana court, as indicated by the opinions of that court, cited above. A second and sufficient reason is that the plaintiff in error did not plead and prove any settled construction of the act by the Indiana courts. Many opinions of the Indiana court were put in evidence, though not in support of any formal plea of settled construction. Neither did the plaintiff in error specially set up any right or claim under the full faith and credit clause of the Constitution until it did so under its petition for a writ of error from this court. That was too late. Our right to review the judgment of the Illinois court arises under 709, Revised Statutes, U. S. Comp. Stat. 1901, p. 575, and is therefore limited to a Federal right specially set up by the party seeking to take advantage of it, and denied by the state court. In Louisville & N. R. Co. v. Melton, 218 U.S. 36 , -- L.R.A.(N.S .) --, 54 L. ed. 921, 30 Sup. Ct. Rep. 676, where a similar question arose touching an alleged departure of the Kentucky court from the interpretation placed by the Indiana court upon the statute of Indiana, this court said (p 52):
We conclude, therefore, that we are not concerned in the interpretation placed upon the Indiana act unless it be that that construction offends against some Federal right properly asserted and open to our consideration.
It is then assigned as error that the court below erred [228 U.S. 559, 566] in not holding that the Indiana statute had been superseded by the Federal employers' liability act of June 11, 1906. [34 Stat. at L. 232, chap. 3073, U. S. Comp. Stat. Supp. 1911, p. 1316.] It does appear in one or more of the counts of the plaintiff's declaration that the railroad company was engaged in operating a railroad extending into two or more states, and such was the evidence. The first count might be said to declare upon the liability of the company under the act of 1906. Upon that ground the case was removed to the circuit court of the United States. But that court remanded it to the state court. Thereupon defendant demurred to the first count and the demurrer was sustained. No exception was saved and no error assigned either in the state court or in this. In no other way was any claim set up or asserted under that Federal act, nor did the state court make any ruling as to the effect of that act upon the Indiana statute, and the judgment of the Illinois court was rested wholly upon the Indiana statute. Not having been specially set up in the state court and there passed upon, it is obvious that the point has not been saved.
But the act of Congress of June 11, 1906, had been held an invalid exercise of the power of Congress, this court saying:
That act was therefore as inoperative as if it had never been passed, for an unconstitutional act is not a law, and can neither confer a right or immunity nor operate to supersede any existing valid law. Norton v. Shelby County, 118 U.S. 425, 442 , 30 S. L. ed. 178, 186, 6 Sup. Ct. Rep. 1121; Ex parte Siebold, 100 U.S. 371, 376 , 25 S. L. ed. 717, 719. [228 U.S. 559, 567] The second employers' liability act, which avoided the faults of the first, was not passed until after the injury complained of. We pass by as not involved any question as to the extent to which that act operated to supersede the Indiana statute. The situation is not at all like that presented in Northern P. R. Co. v. Washington, 222 U.S. 370 , 56 L. ed. 237, 32 Sup. Ct. Rep. 160. There a perfectly valid act concerning the hours of service upon railroads engaged in interstate commerce had been passed. The mere postponement of its operation was held not to lessen its effect as a manifestation of the purpose of Congress to regulate a subject which might be the subject of state legislation only when Congress had been silent. The effect of this purpose to take control of the subject was held to supersede an existing state statute dealing with the same matter from the time of the passage of the act of Congress. No such purpose could be manifested by a void statute, since it was not law for any purpose.
We conclude that the judgment of the court below should be affirmed.