This Court has repeatedly held that a state may impose upon a
railway company liability to an employee engaged in train service
for an injury inflicted through the negligence of another employee
in the same service.
A state also has power to modify or abolish the common law rule
of contributory negligence, and provide by statute that damage to
an employee of a railroad company shall only be diminished by
reason of his contributory negligence in proportion to the amount
of negligence attributable to him.
Prior to the enactment by Congress of the Employers' Liability
Act, the state were not debarred from legislating for the
protection of railway employee engaged in interstate commerce.
Page 224 U. S. 542
The fact that a state statute imposing liability on railway
companies for injuries to employees covers acts of negligence in
respect to subjects dealt with by the Federal Safety Appliance Act
does not amount to an interference with interstate commerce.
The Railway Liability Act of Nebraska of 1907 is not
unconstitutional as depriving a railway company of its property
without due process of law, or denying it equal protection of the
law, or as interfering with interstate commerce.
A corporation of one state, which only becomes a corporation of
another by compulsion of the latter so as to do business therein,
is not a corporation thereof, but remains, so far as jurisdiction
of federal courts is concerned, a citizen of the state in which it
was originally incorporated. Southern Railway Co. v.
Allison, 190 U. S. 326
The facts, which involve the constitutionality of the statute of
Nebraska of 1907 imposing liability on railway corporations for
injury to employees, are stated in the opinion.
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
Alleging himself to be a citizen of Nebraska, and averring that
the railway company was a citizen of Missouri, Castle sued the
railway company to recover for injuries received by him while in
the service of the railway company as a brakeman upon a freight
train operating in the State of Nebraska, the injury having been
occasioned through the negligence of a co-employee. The right to
recover under such circumstances was based upon a Nebraska statute
adopted in 1907, consisting of two sections which are now §§ 3 and
4 of chapter 21 of the Compiled Statutes of Nebraska. The first
section made every railway company liable to its employees who, at
the time of the injury,
Page 224 U. S. 543
were engaged in construction or repair works or in the use and
operation of any engine, car, or train for said company, for all
damages which may result from the negligence of its officers,
agents, or employees, or by reason of any defects or insufficiency
due to its negligence in its cars, engines, appliances, machinery,
track, roadbed, ways, or work. The second section provided that
contributory negligence shall not be a bar to recovery where the
negligence of the injured employee was slight and that of the
employer was gross in comparison, but that damages shall be
diminished in proportion to the amount of negligence attributable
to the injured employee. In its answer, the railway company
admitted that it was then, and was at all of the times mentioned in
the petition, "a railroad corporation organized and existing under
and by virtue of the laws of the State of Missouri," and set up
that the injury to the plaintiff was caused by the negligence of a
fellow servant or co-employee, and was also the result of the
contributory negligence of the plaintiff. The validity of the
second section of the statute was challenged because it deprived
"of the defense of contributory negligence accorded to all other
litigants, persons or corporations, within the State of Nebraska,"
and because the statute established and enforced against railroads
a rule of damages not applicable to any other litigant in similar
cases whereby the privileges and immunities of the company as a
citizen of the United States within the jurisdiction of the State
of Nebraska were abridged and it was denied the equal protection of
the laws, in violation of the Fourteenth Amendment. The repugnancy
of the statute to the commerce clause of the Constitution was also
averred on the ground that
"the plaintiff, at the time he received the injuries complained
of, was engaged as an employee of an interstate railroad engaged in
commerce between the states of Missouri, Kansas, and Nebraska,"
and the statute of Nebraska
"attempts to regulate and
Page 224 U. S. 544
control as well as create a cause of action and remedy, imposing
upon the defendant company a liability inconsistent with and
repugnant to the action of the Congress of the United States on
At the trial, the company excepted to the refusal of the court
to give instructions embodying its contentions respecting the
invalidity of the statute, and also excepted to the giving of
certain instructions which were antagonistic to those contentions.
From a judgment entered upon a verdict of a jury in favor of the
plaintiff, this direct writ of error was sued out.
Defendant in error moves to affirm the judgment under
subdivision 5 of Rule 6. The motion, we think, should prevail,
since the questions urged upon our attention as a basis for a
reversal of the judgment have been so plainly foreclosed by
decisions of this Court as to make further argument
This Court has repeatedly upheld the power of a state to impose
upon a railway company liability to an employee engaged in train
service for an injury inflicted through the negligence of another
employee in the same service. Missouri Pacific Railway Company
v. Mackey, 127 U. S. 205
Minneapolis & St.L. Ry. Co. v. Herrick, 127 U.
; Tullis v. Lake Erie & W. Railway
Company, 175 U. S. 348
Chicago, K. & W. R. Co. v. Pontius, 157 U.
, and Mondou v. New York, N.H. & H. R.
Co., 223 U. S. 1
Obviously the same reasons which justified a departure from the
common law rule in respect to the negligence of a fellow servant
also justify a similar departure in regard to the effect of
contributory negligence, and the cases above cited, in principle,
are therefore authoritative as to the lawfulness of the
modification made by the second section of the statute under
consideration of the rule of contributory negligence as applied to
railway employees. The decision in the Mondou
sustaining the validity of the Federal Employees' Liability Act,
Page 224 U. S. 545
forecloses all question as to the authority possessed by the
State of Nebraska by virtue of its police power to enact the
statute in question, and to confine the benefits of such
legislation to the employees of railroad companies, and as, at the
time the plaintiff received the injuries complained of, there was
no subsisting legislation by Congress affecting the liability of
railway companies to their employees, under the conditions shown in
this case, the state was not debarred from thus legislating for the
protection of railway employees engaged in interstate commerce.
the Mondou case, supra,
and Chicago, M.
& St.P. R. Co. v. Solan, 169 U. S. 133
The circumstance that the Nebraska statute covers acts of
negligence of railroad companies in respect to their cars, roadbed,
machinery, etc. -- subjects dealt with by the Safety Appliance Act
of March 2, 1893, 27 Stat. 531, c. 196, does not afford any
substantial ground for the contention that the statute is invalid
insofar as it imposed liability for an injury to an employee
arising from the negligence of a co-employee.
In the argument at bar, a contention is made which was seemingly
not presented in the court below nor alluded to in the assignments
of error, viz.,
that, although originally incorporated
under the laws of the State of Missouri, the railway company had,
in law and in fact become a domestic corporation in Nebraska under
the constitution and laws of that state, and was such domestic
corporation when this suit was instituted, and, in consequence, the
diversity of citizenship essential to the jurisdiction if the
circuit court was wanting. In support of the contention, an
allegation of the petition is quoted to the effect that the railway
company owned and operated its road as well in the State of
Nebraska as in the other states, and reference is made to a
provision of the Constitution of Nebraska -- § 8, art. XI,
Comp.Stat. 1905, pp. 74, 75 -- denying to a railroad corporation
Page 224 U. S. 546
under the laws of any other state or of the United States, and
doing business in Nebraska, the power to exercise the right of
eminent domain, or to acquire the right of way or real estate for
depot or other uses until it shall have become a body corporate,
pursuant to and in accordance with the law of the state. Two
decisions of the Supreme Court of Nebraska are cited, in one of
which (State ex Rel. Leese v. Missouri Pac. Ry. Co.,
Neb. 164, 165), it is said it was decided that, because of
consolidations with domestic companies, the Missouri Pacific
Company had become a domestic corporation in the State of Nebraska,
and could therefore "acquire a right of way," etc. As to the other
(Trester v. Mo. Pac. Ry. Co.,
23 Neb. 243-249), the
contention appears to be that the railway company was held to be a
domestic corporation by force of the constitutional provision
heretofore referred to. In the face, however, of the clear
admission made in the answer of the railway company as to the
existence of diverse citizenship, we cannot assent to the soundness
of the claim now made based on the contentions referred to.
Certainly, in the absence of any issue on the subject, weight
cannot be attached to the decision in 25 Neb., and it is consistent
with the constitutional provision to infer that the railway
company, if it became a domestic corporation of Nebraska, did so by
compulsion of the Nebraska statutes on the subject. Indeed, the
contention is adversely disposed of by Southern Ry. Co. v.
Allison, 190 U. S. 326
cited in Patch v. Wabash R. Co., 207 U.
. In the Allison
case, the Court, among
other cases, referred approvingly to Walters v. Chicago, B.
& Q. R. Co.,
104 F. 377, where it was held that a
corporation originally created by the State of Illinois, although
made by the law of Nebraska a domestic corporation of that state,
was nevertheless a citizen of Illinois.