156 S.W. 579 | Tex. App. | 1913
Appellee was employed as a woodworker by appellant, a railway corporation, in its shops in the city of Houston, and on June 2, 1911, sustained personal injuries while in the performance of his duties. This action was for damages resulting from such injuries, and upon trial verdict and judgment was rendered in favor of appellee, from which this appeal is prosecuted.
Contributory negligence was pleaded, and the several issues thus raised by the pleadings and evidence were appropriately submitted in the court's charge, applying the provisions of the Employer's Liability Act of this state (Rev.Civ.St. 1911, arts. 6640-6652), which provide that contributory negligence will not bar a recovery, but the damages sustained by the employé shall be diminished in proportion to the amount of negligence attributable to him. It is urged the court erred in applying the provisions of such act, for the following reasons: (1) The Employer's Liability Act of this state applies only to employés suffering injury or death while engaged in operating a railroad, and not to employés killed or injured while working in repair shops, and since the evidence disclosed that appellee was injured while engaged as a woodworker in appellant's shops he was not within the protecting scope of the act. (2) If the act does apply to employés of that class, the same is nevertheless void, because it violates the equal protection clause of the fourteenth amendment to the federal Constitution; and (3) the act is further assailed as being obnoxious to the commerce clause of the federal Constitution (article 1, § 8, par. 3), which confers upon the national Congress the power to regulate commerce among the several states.
As to the first objection urged, an inspection of the act will disclose that it clearly embraces within the scope of its provisions employés such as appellee. Furthermore, it has been expressly so decided in Railway Co. v. Jenkins,
Inquiry into the question of whether or not the act violates the equal protection clause of the federal Constitution is foreclosed by numerous decisions. Discussion of this question would be fruitless, and we content ourselves with citing the authorities. See Railway Co. v. Jenkins, supra; Railway Co. v. Scott,
As we understand appellant's position assailing the constitutionality of the act as obnoxious to the commerce clause of the federal Constitution, it is that the state law does not limit its application to the regulation of the business of intrastate commerce, and since it applies equally to interstate commerce the act in so far undertakes to regulate interstate commerce and infringes upon the exclusive legislative jurisdiction delegated to the national Congress by the constitutional provision above noted; that this infringement upon the authority vested in the federal Congress renders the entire act void, as the constitutional portions are so interblended with the unconstitutional parts that they are incapable of separation. In the case of Howard v. Railway Co.,
"A further contention was stated in argument to this effect: That the federal Employer's Liability Act [Act April 22, 1908, c.
"First. Said state statutes regulating the relation of master and servant are applicable to those engaged in interstate commerce until Congress has acted. Sherlock v. Ailing,
"Second. It is elementary law that a statute attacked for unconstitutionality will always be sustained as to those portions not clearly unconstitutional, save in the event the unconstitutional portions and the constitutional portions are so intermingled as that they cannot be severed. The very federal Employer's Liability Act which was held unconstitutional, in so far as it purported to regulate intrastate commerce, was yet sustained as to the territories and the District of Columbia. E. P. N.E. Ry. v. Gutierrez,
A like question was presented to the Texarkana Court of Civil Appeals in Railway Co. v. Turner,
For the reasons indicated in the authorities next above cited and quoted, we overrule the third objection.
From what has been said, it follows that the court properly refused the special charge embodied in the fourth assignment.
Since preparing the foregoing opinion, our attention is called to an opinion rendered by the Galveston Court of Civil Appeals in Railway Co. v. Bright,
Affirmed.