[228 U.S. 680, 681] Mr. Morse Ives for plaintiff in error.
[228 U.S. 680, 682] Mr. James C. McShane for defendant in error.
Mr. Justice McKenna delivered the opinion of the court:
This writ of error is directed to review a judgment of the supreme court of the state of Illinois, affirming a judgment in an action brought by Gertrude V. Claffy, against plaintiff in error, for the violation of 7 of a statute of the state, entitled, 'An Act Providing for the Protection and Safety of Persons in and about the Construction, Repairing, Alteration, or Removal of Buildings, Bridges, Viaducts, and Other Structures, and to Provide for the Enforcement Thereof.' Laws of 1907, p. 312.
Section 7 reads as follows:
If elevating machines or hoisting apparatus are used within a building in the course of construction, for the purpose of lifting materials to be used in such construction, the contractors or owners shall cause the shafts or openings in each floor to be inclosed or fenced in on all sides by a substantial barrier or railing at least 8 feet in height . . . .'
Section 9 gives a right of action for a wilful violation of or failure to comply with any provisions of the act to the person injured, or, in case of loss of life, to his widow, lineal heirs, adopted children, or persons dependent upon him, for damages so sustained.
Gertrude V. Claffy, widow of Charles F. Claffy, brought suit against plaintiff in error and one Henry Erickson for causing the death of her husband through violation of the act. The defendants filed separate demurrers to the [228 U.S. 680, 685] declaration, which were overruled. An additional count was filed by the plaintiff in the action which set out with detail the cause of action. The defendants answered, and, upon a trial to a jury, a verdict of $10,000 was returned against defendants. A new trial was granted as to Erickson, and $ 2,500 of the amount found remitted, and a judgment entered against plaintiff in error here for the sum of $7,500. It was sustained by the supreme court of the state. Subsequently, Gertrude V. Claffy having died, her administratrix, defendant in error here, was substituted as appellee in the supreme court.
The facts are these: Plaintiff in error was the owner of a large building in the course of construction in Chicago, and Erickson was the contractor for its erection. The deceased was employed by the plumbing contractor, and, in the course of his employment, was working in the building.
In the building there was an elevator or hoist, operated through a shaft or opening, for the purpose of lifting materials to be used in the construction of the building. It was not inclosed or fenced in as required by 7 of the act. Deceased was at work upon a pipe immediately alongside of the shaft, and accidentally fell into and down through it a distance of six stories.
The contention of plaintiff in error is here, as it was in the state courts, that 7 and 9 of the act violate the 14th Amendment to the Constitution of the United States in that they deny to him the equal protection of the laws. He specifies as grounds of his contention that the classification of the statute is based upon minute rather than general distinctions, that it does not bring within its purview all of those who are in substantially the same situation and circumstances, in that it distinguishes between openings required for hoisting or lowering materials to be used in construction and stairways and elevator shafts. Section 7, counsel says, 'requires that but one of these classes be barricaded; namely, those openings used [228 U.S. 680, 686] for hoisting materials to be used in construction.' And, asserting the purpose of the act to be to protect those lawfully on the premises against danger from falling materials, he adds, 'that in a case like this, use cannot be made the test. Danger is the thing;' and hence concludes that the classification of the statute, not having relation to its purpose, is arbitrary.
That danger is the test may be conceded, but there may be degrees of it, and a difference in degree may justify classification. Mutual Loan Co. v. Martell, 222 U.S. 225, 236 , 56 S. L. ed. 175, 180, 32 Sup. Ct. Rep. 74, Ann. Cas. 1913 B, 529. Who is to judge of the danger, whether absolutely considered or comparatively considered? Is it a matter of belief or proof? If of belief, we should be very reluctant to oppose ours to that of the legislature of the state, informed, no doubt, by experience, of conditions, and fortified by presumptions of legality, and confirmed, besides, by the opinion of the supreme court of the state. Laurel Hill Cometery v. San Francisco, 216 U.S. 358, 365 , 54 S. L. ed. 515, 518, 30 Sup. Ct. Rep. 301; Adams v. Milwaukee, 228 U.S. 572 , 57 L. ed. --, 33 Sup. Ct. Rep. 610. If of proof, there is none in the record. There are assertions by counsel, and considering alone the openings necessary for hoisting machinery and the openings for stairs and other openings, an employee or materials can be imagined as falling through one of them with the same ease as he or the materials can through the others. But other things must be taken into account. The setting of the openings must be considered, the varying relations of the employees to them, and other circumstances. The legislation cannot be judged by abstract or theoretical comparisons. It must be presumed that it was induced by actual experience, and New York, it is said, had been induced by a like experience to enact like legislation. If it be granted that the legislative judgment be disputable or crude, it is, notwithstanding, not subject to judicial review. We have said many times that the crudities or even the injustice of state laws are not redressed by the 14th Amendment. [228 U.S. 680, 687] The law may not be the best that can be drawn, nor accurately adapted to all of the conditions to which it was addressed. It may be that it would have been more complete if it had gone farther and recognized and provided against the danger that all uninclosed openings in a building might cause, and should not have distinguished between hoists inside of a building and those outside; but we do not see how plaintiff in error is concerned with the omissions. It is not discriminated against. All in its situation are treated alike. What the statute enjoins, it enjoins not only of plaintiff in error, but of all similarly situated. What it does not enjoin, plaintiff in error cannot complain of. 'The Constitution does not require that all state laws shall be perfect, nor that the entire field of proper legislation shall be covered by a single enactment.' Rosenthal v. New York, 226 U.S. 260, 271 , 57 S. L. ed. --, 33 Sup. Ct. Rep. 27.
Counsel attacks other sections of the statute 'to show,' as he says, that 'the whole scheme of the statute is based upon those 'minute distinctions' condemned in the Mondou and Ellis Cases ( 223 U.S. 1 , 56 L. ed. 327, 38 L.R.A.(N.S.) 44, 32 Sup. Ct. Rep. 169; 165 U.S. 150 , 41 L. ed. 666, 17 Sup. Ct. Rep. 255), and, secondly, to demonstrate, if we can, that, as we urged in the state court, so much of the act is unconstitutional that all must fall.' The state court did not yield to the contention nor its asserted consequences. Nor can we yield to it. Its foundation is based on the distinction made between buildings in cities and buildings in villages ( 6); the distinction between houses exclusively for private residences and other constructions as to the strength of the supports for joists ( 2 and 3); the distinction between the protection required for men working upon swinging and stationary scaffolds used in the construction, alteration, repairing, removing, cleaning, or painting of buildings, and that given to advertising agents. (Sections 1 and 5.) Sections 2 and 3 must fall, it is contended, because of the exception of private residences; section 6, because of its limitations to cities; sections 1 and 5, because they discriminate be- [228 U.S. 680, 688] tween the indicated classes. It is enough to say of these contentions-(1) of the asserted discrimination in 1 and 5, plaintiff in error cannot complain, and, so far as it is made a criticism of the statute, we are not concerned with it; (2) of the distinction made by the other sections, they are within the power of classification which the legislature possesses.