•WiNSLOW, O. J.
This is an action against a railway company brought by one of its employees to recover damages for the loss of his eye, occasioned by the negligent act of his co-employees while they were engaged in constructing a wire fence along the right of way. A general demurrer to the complaint was overruled, and that ruling affirmed by this court in 138 Wis. 215, 119 N. W. 309, 120 N. W. 756. Since that decision the action has been tried before a jury and a special verdict returned finding that (1) the staple which injured plaintiff’s eye was thrown out of the post by reason of the wire being pulled or moved by plaintiff’s co-employee, one Oharapata; (2) aman of ordinary intelligence and prudence in Charapata’s position ought to have reasonably anticipated that, by pulling or moving said wire without notifying plaintiff that he was about to do so, some such injury would result to plaintiff; (3) Oharapata was guilty of negligence in so moving or pulling said wire without first notifying the plaintiff that he was about to do so; (4) a man in plaintiff’s position should not have reasonably anticipated that- a staple might be thrown out and cause him injury by the handling of the wire by the man next to him as the work was ordinarily carried on; (5) plaintiff’s damages were $2,000.
The defendant, both by answer and by motion made at the opening of the trial, expressly made the contention that it was not liable, because ch. 254 of the Laws of Wisconsin for 1907, under which the action is brought, violates the XIVth amendment to the constitution of the United States, in that [156]*156it deprives tbe defendant of property without due process of law and denies to tbe defendant tbe equal protection of tbe laws. After tbe rendition of tbe verdict tbe defendant moved for judgment in its favor notwithstanding tbe verdict, ■also that the court set aside tbe affirmative answers to tbe first four questions of tbe verdict and substitute negative answers therefor and render judgment for tbe defendant thereon, all of which motions being denied, judgment for tbe plaintiff was rendered on the verdict, and tbe defendant appeals.
As will appear from tbe foregoing statement, tbe jury ■upon trial of the action found exactly tbe state of facts alleged in the complaint, and tbe defendant upon this appeal makes no claim of error save tbe claim that cb. 254 of tbe Laws of 1907 is void because it violates tbe provisions of the XIVtb amendment to tbe federal constitution. Tbe same claim was fully argued, considered, and rejected upon tbe former appeal, and tbe result is conclusive not only upon tbe trial court but upon this court. Whether right or not, tbe •conclusion then reached formed the law of this case, and when tbe same question was again presented tbe court below ■could rightly do but one thing, i. e. follow the former decision. Any other bolding would have been error. Ellis v. N. P. R. Co. 80 Wis. 459, 50 N. W. 397; Keystone L. Co. v. Kolman, 103 Wis. 300, 79 N. W. 224. Such being tbe case, it is obvious that no error can now be predicated upon tbe ■action of tbe trial court. Perhaps we might well affirm tbe judgment upon tbe doctrine of res adjudicada, without further remark; but, inasmuch as another case involving tbe same question has been submitted at tbe present assignment, we have re-examined tbe questions raised and deem it proper to ■state again our conclusions upon tbe federal questions involved.
Tbe fundamental question is tbe question of classification. If tbe law can only be viewed as a classification of laborers [157]*157or employees based upon the peculiar risks which, men who-operate trains necessarily meet and which are not met by men who are employed by firms or corporations engaged in other occupations, then it may be admitted for the sake of the argument that the classification attempted in this law is indefensible, because in that case it should have been confined to-those employees who meet such peculiar risks, namely, those-engaged in or about the operation of trains, while the law (with two exceptions to be noticed later) in fact includes all classes of employees, many of whom meet no peculiar risk,, but only the same risks which the employees of ordinary business concerns are daily meeting. It is not denied that a number of courts have condemned similar laws upon this-very ground, notably the courts of Iowa and Minnesota, and it may be admitted that such was, for a time at least, the prevailing doctrine. It is to be noted that this court in Ditberner v. C., M. & St. P. R. Co. 47 Wis. 138, 2 N. W. 69, repudiated this doctrine and upheld a law similar to the present law, in that it covered all employees, on the ground that it was a valid exercise of the reserve power given to the legislature to alter or repeal corporate charters. EEo-wever, this-court took a different view of the present.statute when this case was here upon demurrer. It viewed the law as a law classifying railway common carriers, regulating their relations with their employees and subjecting them to peculiar obligations and duties towards such employees. The law . was sustained on the ground that it was entirely proper, and in fact a universally recognized principle, that railway carriers -should be, and generally must be, subjected to special legislation affecting them alone; that this is so, not only on account of the unique dangers involved in the business, but as well on account of its public nature and the vast importance to the public at large of the careful conduct of the business, not merely in the handling of trains, but in the performance of well-nigh every act which an employee performs [158]*158wbieb is necessary to tbe carrying on of the business. Railway carriers from their very nature must, in large measure, be governed by laws peculiar to themselves, and such has been the character of railway legislation since the business began. The question is whether the regulation of their relations with their employees is within this general principle or not.
It was noticed in one of the opinion^ upon the former appeal that while the federal act which attempted to abolish the co-employee doctrine as to interstate carriers was held void in the Employers’ Liability Cases, 207 U. S. 463, 28 Sup. Ct. 141, because it covered intrastate commerce, still it was broadly intimated in the opinion that, if the act applied to the District of Columbia and the territories only, it could not be questioned. This act attempted to impose on every common carrier a liability to any employee for damages resulting from the negligence of any of its officers, agents, or employees. Thus it will be seen that it applied in terms not merely to employees who are moving trains, but to all employees, and thus seems to be subject to the same objection as to improper classification which is now made to the Wisconsin statute.
Since the former opinion in the present case was rendered, the question of the constitutionality of the federal act as applied to the District of Columbia and the territories has been brought before the United States supreme court in El Paso & N. E. R. Co. v. Gutierrez, 215 U. S. 87, 30 Sup. Ct. 21, and the law has been held constitutional. It is true that the point now raised is not discussed in the opinion, but the decision certainly stands as a direct holding that a law making a common carrier liable for injuries to any
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•WiNSLOW, O. J.
This is an action against a railway company brought by one of its employees to recover damages for the loss of his eye, occasioned by the negligent act of his co-employees while they were engaged in constructing a wire fence along the right of way. A general demurrer to the complaint was overruled, and that ruling affirmed by this court in 138 Wis. 215, 119 N. W. 309, 120 N. W. 756. Since that decision the action has been tried before a jury and a special verdict returned finding that (1) the staple which injured plaintiff’s eye was thrown out of the post by reason of the wire being pulled or moved by plaintiff’s co-employee, one Oharapata; (2) aman of ordinary intelligence and prudence in Charapata’s position ought to have reasonably anticipated that, by pulling or moving said wire without notifying plaintiff that he was about to do so, some such injury would result to plaintiff; (3) Oharapata was guilty of negligence in so moving or pulling said wire without first notifying the plaintiff that he was about to do so; (4) a man in plaintiff’s position should not have reasonably anticipated that- a staple might be thrown out and cause him injury by the handling of the wire by the man next to him as the work was ordinarily carried on; (5) plaintiff’s damages were $2,000.
The defendant, both by answer and by motion made at the opening of the trial, expressly made the contention that it was not liable, because ch. 254 of the Laws of Wisconsin for 1907, under which the action is brought, violates the XIVth amendment to the constitution of the United States, in that [156]*156it deprives tbe defendant of property without due process of law and denies to tbe defendant tbe equal protection of tbe laws. After tbe rendition of tbe verdict tbe defendant moved for judgment in its favor notwithstanding tbe verdict, ■also that the court set aside tbe affirmative answers to tbe first four questions of tbe verdict and substitute negative answers therefor and render judgment for tbe defendant thereon, all of which motions being denied, judgment for tbe plaintiff was rendered on the verdict, and tbe defendant appeals.
As will appear from tbe foregoing statement, tbe jury ■upon trial of the action found exactly tbe state of facts alleged in the complaint, and tbe defendant upon this appeal makes no claim of error save tbe claim that cb. 254 of tbe Laws of 1907 is void because it violates tbe provisions of the XIVtb amendment to tbe federal constitution. Tbe same claim was fully argued, considered, and rejected upon tbe former appeal, and tbe result is conclusive not only upon tbe trial court but upon this court. Whether right or not, tbe •conclusion then reached formed the law of this case, and when tbe same question was again presented tbe court below ■could rightly do but one thing, i. e. follow the former decision. Any other bolding would have been error. Ellis v. N. P. R. Co. 80 Wis. 459, 50 N. W. 397; Keystone L. Co. v. Kolman, 103 Wis. 300, 79 N. W. 224. Such being tbe case, it is obvious that no error can now be predicated upon tbe ■action of tbe trial court. Perhaps we might well affirm tbe judgment upon tbe doctrine of res adjudicada, without further remark; but, inasmuch as another case involving tbe same question has been submitted at tbe present assignment, we have re-examined tbe questions raised and deem it proper to ■state again our conclusions upon tbe federal questions involved.
Tbe fundamental question is tbe question of classification. If tbe law can only be viewed as a classification of laborers [157]*157or employees based upon the peculiar risks which, men who-operate trains necessarily meet and which are not met by men who are employed by firms or corporations engaged in other occupations, then it may be admitted for the sake of the argument that the classification attempted in this law is indefensible, because in that case it should have been confined to-those employees who meet such peculiar risks, namely, those-engaged in or about the operation of trains, while the law (with two exceptions to be noticed later) in fact includes all classes of employees, many of whom meet no peculiar risk,, but only the same risks which the employees of ordinary business concerns are daily meeting. It is not denied that a number of courts have condemned similar laws upon this-very ground, notably the courts of Iowa and Minnesota, and it may be admitted that such was, for a time at least, the prevailing doctrine. It is to be noted that this court in Ditberner v. C., M. & St. P. R. Co. 47 Wis. 138, 2 N. W. 69, repudiated this doctrine and upheld a law similar to the present law, in that it covered all employees, on the ground that it was a valid exercise of the reserve power given to the legislature to alter or repeal corporate charters. EEo-wever, this-court took a different view of the present.statute when this case was here upon demurrer. It viewed the law as a law classifying railway common carriers, regulating their relations with their employees and subjecting them to peculiar obligations and duties towards such employees. The law . was sustained on the ground that it was entirely proper, and in fact a universally recognized principle, that railway carriers -should be, and generally must be, subjected to special legislation affecting them alone; that this is so, not only on account of the unique dangers involved in the business, but as well on account of its public nature and the vast importance to the public at large of the careful conduct of the business, not merely in the handling of trains, but in the performance of well-nigh every act which an employee performs [158]*158wbieb is necessary to tbe carrying on of the business. Railway carriers from their very nature must, in large measure, be governed by laws peculiar to themselves, and such has been the character of railway legislation since the business began. The question is whether the regulation of their relations with their employees is within this general principle or not.
It was noticed in one of the opinion^ upon the former appeal that while the federal act which attempted to abolish the co-employee doctrine as to interstate carriers was held void in the Employers’ Liability Cases, 207 U. S. 463, 28 Sup. Ct. 141, because it covered intrastate commerce, still it was broadly intimated in the opinion that, if the act applied to the District of Columbia and the territories only, it could not be questioned. This act attempted to impose on every common carrier a liability to any employee for damages resulting from the negligence of any of its officers, agents, or employees. Thus it will be seen that it applied in terms not merely to employees who are moving trains, but to all employees, and thus seems to be subject to the same objection as to improper classification which is now made to the Wisconsin statute.
Since the former opinion in the present case was rendered, the question of the constitutionality of the federal act as applied to the District of Columbia and the territories has been brought before the United States supreme court in El Paso & N. E. R. Co. v. Gutierrez, 215 U. S. 87, 30 Sup. Ct. 21, and the law has been held constitutional. It is true that the point now raised is not discussed in the opinion, but the decision certainly stands as a direct holding that a law making a common carrier liable for injuries to any employee resulting from the negligence of a co-employee is a valid law. While the XIVth amendment only inhibits states from depriving persons of life, liberty, or property without due process of law, the same inhibition is placed upon the United [159]*159States by the Vtb amendment, and both state and national legislatures are governed by the principle that there can be no discrimination in the laws except such as is based upon just and proper classification. "Without attempting again to review the authorities which were reviewed upon the former appeal, we are content to rest this branch of the ease upon the principle before stated, namely, that railway carriers, on account of the public character of their business, may properly be classified SO' far as their relations with their employees are concerned, whether such employees are moving trains or not, and may be made subject to liabilities and obligations greater than those imposed upon other employers of labor.
As to the provision exempting shop and office employees from the operations of the act, a different question arises. This is undoubtedly classification, or rather subclassification, of employees. Subclassification of a class is entirely permissible, but, like all other classification, it must be based upon real distinctions germane to the purpose of the law and ■suggesting at least the propriety of substantial difference in legislation. On the other hand, the question whether there is room or necessity for classification is one resting primarily with the legislature, and no court is justified in declaring ■classification baseless unless it can say without doubt that no one could reasonably conclude that there is any substantial difference justifying different legislative treatment. State v. Evans, 130 Wis. 381, 110 N. W. 241; Servonitz v. State, 133 Wis. 231, 113 N. W. 277. Nor is classification to be condemned by the courts because the situation of certain individuals in one class may not differ materially from the sitriation of certain individuals in another class. Such is frequently the ease. It is the class, considered broadly as a •class, which must possess the distinguishing differences of situation calling for different legislation, not every individual in the class. State v. Evans, supra.
Bearing these well-established rules in mind, we still find [160]*160ourselves unable to say tbat the classification which, exempts-shop and office employees from the provisions of the law passes the bounds of reason. Speaking generally of the shop and office employees as a class, they are in less danger from, the negligence of co-employees, and perform duties less directly and vitally- connected with the public safety, than train employees and track repairers, who constitute a very large percentage of the other class, and we cannot say that the differences are not such as would justify a reasonable mind in-concluding that they suggest the propriety of substantial difference in legislative treatment.
We deem it unnecessary to again discuss any other objections made to the law. We are content to leave all other objections as they were left by the former discussion.
•By the Court — Judgment affirmed.