tion Law of 1913-1914, sustained as con-, other employees. Each of them goes stitutional against attacks based on the directly to his stand in the morning and due process and equal protection clauses thence to his home in the evening, and of the 14th Amendment in New York C. his duties consist of keeping a display R. Co. v. White, 243 U. S. 188, 61 L. ed. of papers, magazines, candies, and other 667, L.R.A.1917D, 1, 37 Sup. Ct. Rep. small articles in proper order, selling 247, Ann. Cas. 1917D, 629, 13 N. C. C. A. them across the counter, keeping an ac943, after several amendments, was fur- count of sales, and turning in the colther amended by chapter 634 of the lections. The only other employees with Laws of 1918, which added to the list whom a salesman comes in contact [508] of hazardous employments in § 2 a new are the inspector and the chauffeur who subdivision or group, as group 45,-the brings supplies from the truck, either second to be so designated,-reading as down to the subway or up to the elefollows: "Group 45. All other employ-vated platform, and passes them across ments not herein before enumerated car- the counter to the salesman. ried on by any person, firm or corporation in which there are engaged or employed four or more workmen or operatives regularly, in the same business or in or about the same establishment, either upon the premises or at the plant or away from the plant of the employer, under any contract of hire, [507] express or implied, oral or written, except farm laborers and domestic servants."

The present writ of error raises the question whether the Compensation Law, as thus extended, if construed and applied so as to impose upon plaintiff in error a liability for compensation in the case of defendant in error Himan Krinsky, is in contravention of either of the cited constitutional provisions.

The singularity of the facts makes a somewhat particular statement necessary to a clear understanding of the argument. Plaintiff in error, Artemas Ward, under the name of Ward & Gow, leases from the Interborough Rapid Transit Company advertising and vending privileges upon various subway and elevated railway lines in the city of New York, and carries on the business of disposing of advertising space in the cars and on station platforms, and selling periodicals and various articles of merchandise in booths located upon the platforms. In the latter department, which alone requires mention, there are 307 employees, including executives, office workers, news-stand inspectors, who travel singly over the different elevated and subway lines to inspect displays and see that the sales booths are properly kept, chauffeurs who drive trucks transporting merchandise from headquarters down town in Manhattan to the different subway and elevated stations, 18 porters for loading and unloading the trucks at headquarters, and various others, among them 125 news-stand salesmen, each of whom is stationed at a booth in a subway or elevated railway station, and whose work is separate from that of

Krinsky was one of these salesmen, stationed in a booth at a subway station in the Bronx. The booth was a steel structure 12 feet long, 8 feet wide or high, 2 feet deep, located against a wall 10 feet from the edge of the platform. In order to keep the booth and its contents free from dust, and his hands in a proper condition of cleanliness, water was kept for convenience in the booth, in a pail furnished by the employer, to be emptied by Krinsky when necessary, and replenished with water obtained from a washroom, two flights of stairs above the train level. He was in the habit of emptying the water in the morning upon the tracks of the subway and replenishing the supply before starting business. One morning in February, 1919, while thus emptying the water as usual, Krinsky was struck upon the side of the head by an approaching train, his skull was fractured, and he sustained disabling personal injuries which the Industrial Commission found were accidental, and arose out of and in the course of the employment.

An award of compensation made by the commission was affirmed by the appellate division of the supreme court (193 App. Div. 557, 184 N. Y. Supp. 443), and its judgment was affirmed without opinion by the court of appeals. The record was remitted to the appellate division, which made the order and judgment of the court of appeals its own, and to it, as custodian of the record, the present writ of error was directed.

It was not disputed in the state courts, nor is it questioned here, that in the merchandising department of plaintiff in error there were more than four "workmen or operatives" within the meaning of second group 45 of 8 2 of the Compensation Law. Evidently the porters were [509] such, and clearly were "engaged in the same business" with the salesmen, for they loaded the trucks which car

Under the due process of law clause, plaintiff in error contends that the validity of compulsory workmen's compensation acts depends upon the inherently hazardous character of the occupations covered; that a legislative declaration that a certain employment is hazardous is not conclusive; and that to impose upon the employer, as is said to be done in this instance, a liability to make compensation to any employee out of hundreds whose occupations are nonhazard

ried the merchandise from the central de-, the legislature intended the Compensapot to the booths. The appellate division tion Law, as amended, to apply to an held that the salesmen, although not employee in Krinsky's situation, precise"workmen or operatives," nevertheless ly as if it were so declared in the words were within the protection of the statute. of the statute. Our function is confined Reference was made to the definition of to determining whether, as so construed "employee" in subdivision 4 of § 3, and as applied to the concrete facts of amended by Laws 1916, chap. 622, and the case, the statute contravenes the limLaws 1917, chap. 705, so as to include itations imposed by the 14th Amendanyone in the service of an employer ment upon state action. whose principal business is that of conducting a hazardous employment, construed in previous decisions as bringing within the protection of the statute all employees accidentally injured in the performance of duties incidental to the prosecution of a business defined as hazardous, even though such duties were not a part of the characteristic process or operation forming the basis of the group (Dose v. Moehle Lithographic Co. 221 N. Y. 401, 405, 117 N. E. 616, 16 N. C. C. A. 633; Spang v. Broadway Brew-ous, because four or more workmen or ing & Malting Co. 182 App. Div. 443, 169 N. Y. Supp. 574; Joyce v. Eastman Kodak Co. 182 App. Div. 354, 170 N. Y. Supp. 401); and it was held that since this rule applied to all the other groups defined in § 2, it must be applied in respect to second group 45. That the view of the court of appeals was substantially the same appears not only from its affirming the judgment of the appellate division without questioning its reasoning, but from the opinion delivered by the court of appeals itself in a case decided at the same time with this (Europe Addison Amusements, 231 N. Y. 105, 131 N. E. 750). Europe was conductor of a famous band of musicians who, after a military service with the American Forces in France, went upon a concert tour throughout the United States, under employment by Addison Amusements, Inc. With the band of sixty-five pieces there were four or more workmen or operatives employed to accompany it, arrange platforms, chairs, and scenery, handle baggage, etc. Europe himself, although an employee, was not among those described as "workmen [510] or operatives," nor engaged in hazardous work, ordinarily so-called. During an intermission in the program of a concert he was stabbed and killed by a drummer of the band. The court of appeals, sustaining the Industrial Commission and the appellate division, held that he was within the protection of second group 45. In the exercise of our appellate jurisdiction we are bound by the construction of the state law adopted by its court of last resort; hence, for present purposes it must be taken as settled that

operatives may happen to be regularly employed in the same business, or in or about the same establishment, although not brought into contact with the injured employee, and where, to use the words of counsel, "his injury was the consequence not of any hazard inherent in his employment, but of gross personal negligence, or incredible folly that would have brought injury to any person in any occupation whatever," is so altogether unreasonable as to be wanting in due process. The argument rests upon the curious misconception that the legisla-, ture [511] regarded the workmen or operatives as the sole source of danger to those engaged in the same business with them; and upon the assumption, equally untenable, that the occupation of a salesman at a subway station, protected ordinarily by the comparative security of a steel booth, but called upon at times, in the line of duty, to go into the moving throngs of passengers and into close proximity to the rails upon which locomotives and trains are moving, is free from inherent hazard to the salesman.

That Krinsky's injuries arose out of and in the course of his employment was found by the commission, whose findings and decision were affirmed by both courts, and must be conclusive upon us unless ascertained to be without support in the evidence, including any reasonable inference that may be drawn from it.

As has been seen, he was charged with the sale of a stock of merchandise belonging to the employer, and for this purpose was stationed in a booth placed upon the platform of a subway station, about 10 feet from the tracks. There

they may happen to fall-upon the particular injured employees or their dependents; and to this end to require that the employer-he who organizes and directs the enterprise, hires the workmen, fixes the wages, sets a price upon the product, receives the gross proceeds, pays the costs and the losses, and takes for his reward the net profits, if anyshall make or secure to be made such compensation as reasonably may be prescribed, to be paid in [513] the event of the injury or death of one of those employed, instead of permitting the entire risk to be assumed by the individuals immediately affected. In general, as in the New York law, provisions for compulsory compensation are made to apply only to those employed in hazardous occupations, where it may be contemplated by both parties in advance that sooner or later some of those employed probably will sustain accidental injury in the course of the employment, but where nobody can know in advance which particular employees, or how many, will be the victims, or how serious will be the injuries. New York C. R. Co. v. White, 243 U. S. 188, 202, et seq., 61 L. ed. 667, 674, L.R.A.1917D, 1, 37 Sup. Ct. Rep. 247, Ann. Cas. 1917D, 629, 13 N. C. C. A. 943; Mountain Timber Co. v. Wash

was evidence showing that he had sole responsibility for the care and display of this merchandise, which, of course, he was to sell to the passing throngs of train passengers, and was required to keep the booth, the stock, and his own person in a cleanly condition. The employer supplied a container for water to be used for the latter purpose, and naturally this was kept in the booth, emptied and replenished by Krinsky as occasion required. He was not instructed how this should be done, and the state commission and courts reasonably might infer that he was at liberty to do it in the most convenient and expeditious mode. To say, as is suggested, that he was constrained to close and lock the booth, leave it and go up two flights, either by elevator or staircase, in order to empty the water, with consequent interruption of business in the meantime (thirty minutes, according to the evidence), when the same object could be accomplished [512] in a few moments and without closing the booth by stepping 10 feet across the platform to the edge of the track and there emptying the water, relying upon a volunteer assistant to bring a fresh supply, would be to place a strained and unreasonable construction upon the scope of implied duties. True, he might have avoided the partic-ington, 243 U. S. 219, 239, 243, 244, 61 ular hazard that overtook him had he L. ed. 685, 697-699, 37 Sup. Ct. Rep. 260, chosen the tedious journey two flights up Ann. Cas. 1917D, 642, 13 N. C. C. A. 927; and down again, instead of the half- Arizona Employers' Liability Cases dozen steps across the platform to the (Arizona Copper Co. v. Hammer), 250 edge of the track. Whether, in the hur-U. S. 400, 420, 422-426, 63 L. ed. 1058, ry and bustle of a subway crowd, the 1066, 1067, 1069, 6 A.L.R. 1537, 39 Sup. nature of Krinsky's duties required or Ct. Rep. 553. permitted him to follow the slower course, or even that it involved less probability of personal injury than the one habitually adopted, are questions upon which the commission and the state courts are peculiarly fitted to draw correct inferences. Certainly, we are not warranted in holding that the findings are without support in the evidence.

A sufficient vindication of compulsory Workmen's Compensation and Employers' Liability Acts, as it has seemed to this court, is found in the public interest of the state in the lives and personal security of those who are under the protection of its laws; from which it follows that, when men are employed in hazardous occupations for gain, it is within the power of the state to charge the pecuniary losses arising from disabling or fatal personal injury, to some extent, at least, against the industry, after the manner of casualty insurance, instead of allowing them to rest where

That there was inherent hazard in Krinsky's occupation is conclusively shown by the fact that, in the course of it, he received a serious and disabling personal injury arising out of it. That the event might have been foreseen is demonstrated by the way in which it occurred, not to speak of the fact that the legislature actually foresaw it and made provision for it, long before it occurred. Hence there was no undue deprivation of the liberty or property of plaintiff in error, or his right to acquire property in lawful business, in the act of the legis lature which required him to take warning and make provision against the event which afterwards in fact occurred.

It will be seen that while, by the terms of the statute, the employment of "four or more workmen or operatives regularly, in the same business or in or about the same establishment," etc., apparently is indicated as the basis of the new group, one rather frequently adopted in laws

of this character (Jeffrey Mfg. Co. v. Blagg, 235 U. S. 571, 574, etc., 59 L. ed. 364, 368, 35 Sup. Ct. Rep. 167, 7 N. C. C. A. 570; Middleton v. Texas Power & Light Co. 249 U. S. 152, 159, 63 L. ed. 527, 532, 39 Sup. Ct. Rep. 227),-in effect, by the construction adopted by the state court and binding upon us, the employees [514] brought within the compensation features of the act include not only the "four or more workmen or operatives," or others injured through contact with them, but any and all other employees in the same business who may suffer accidental and disabling injury arising out of and in the course of their employment, although due to incidental hazards not typical of the group.

The contention that, by this construction, second group 45 has been extended beyond the limit allowable consistently with due process of law, and "has been applied in this case to an employment with no inherent hazard whatever," rests upon an assumption of fact disproved by Krinsky's experience. Were it not so, the argument is self-destructive. The statute requires the employer to make or secure compensation for the disability or death of an employee only where it results from accidental personal injury arising out of and in the course of the employment. Where the employment is entirely free from inherent hazard to the employee, the statute imposes no responsibility upon the employer, hence cannot substantially interfere with his liberty or property, with or without "due process of law." Arizona Employers' Liability Cases (Arizona Copper Co. v. Hammer) 250 U. S. 400, 429, 63 L. ed. 1058, 1070, 6 A.L.R. 1537, 39 Sup. Ct. Rep. 553.

of security, a reasonable regulation in aid of the general scheme (New York C. R. Co. v. White, 243 U. S. 188, 208, 209, 61 L. ed. 667, 677, L.R.A.1917D, 1, 37 Sup. Ct. Rep. 247, Ann. Cas. 1917D, 629, 13 N. C. C. A. 943), does not increase the obligation. To the employer who insures, presumably the premiums will not exceed a reasonable estimate of the risk; to him who insures in the state fund, there is an assurance of equivalency in the public administration of the fund under §§ 90 et seq., of the law; especially the duty imposed upon the state board by § 95, to keep separate accounts as to each group, so as to determine equitable rates, to rearrange the groups by withdrawing any employment embraced in one group and transferring it wholly or in part to another, to set up new groups at discretion, to determine the hazards of the different classes composing each group and to fix the premiums therefor, based upon the total pay roll and number of employees in each class of employment, at the lowest possible rate consistent with the maintenance of a solvent insurance fund and the creation of a reasonable surplus and reserve. A similar system was sustained in Mountain Timber Co. v. Washington, 243 U. S. 219, 241-243, 61 L. ed. 685, 697, 698, 37 Sup. Ct. Rep. 260, Ann. Cas. 1917D, 642, 13 N. C. C. A. 927.

The fallacy of the argument for holding it arbitrary and unreasonable to impose upon the employer the burden of making compensation in employments where injury is improbable and difficult to be foreseen should be fairly apparent when it is pointed out that, in the absence of the statute, not a part but the entire loss consequent upon a disabling Reducing the argument by omitting or fatal injury arising out of and in the the extravagant statement that so plain-course of the employment would have to ly leads to absurdity, it may be outlined thus: that Krinsky's occupation was no more hazardous than that of millions of residents of the metropolitan district who daily make use of the subways and elevated railways in going to and from their work; that there had been no such accident among plaintiff in error's employees in twenty years of operation; and that it is unreasonably and unnecessarily burdensome to require the employer to either maintain compensation insurance at heavy annual premiums, or deposit securities with the state to guarantee pay ment of compensation benefits, where the probability of injury is so slight. The answer is [515] easy: To the selfinsurer no liability accrues except as disabling injuries actually occur; the giving

be assumed and borne by the disabled employee or his dependents, just as, under the statute, they still must bear all beyond the scheduled compensation. Yet they have no better opportunity to foresee the casualty than the employer, and (in the judgment of the legislature) less opportunity to make provision [516] against it. The common-law rule, requiring the employee to assume the risk, and to take account of it in advance when fixing the wages, recognized dimly that the cost of industrial accidents ought to be borne by the industry, but failed to effectuate such a purpose, partly for the very reason that the hazard could not be estimated by the individual in advance, nor the loss provided against without co-operation.