BOND, J".
The plaintiff had judgment for $2,500 as damages for the death of her husband. The defendant appealed and assigns for error the refusal of the court to sustain its demurrer to the entire evidence.
The record shows that the scene of the accident for which this suit is brought was Bismark, a station on the line of the defendant’s railroad, from which it ran a local freight train north to the city of St. Louis, and where it had provided two side tracks east of its main track for switching purposes and making .up trains. The time of the accident was the eleventh of December, 1897. It was caused by the wheels of an engine passing over the body of the deceased, who was then a brakeman in the employ of defendant and had been coupling cars which were to constitute the local freight train, after doing which he left the track on which the coupling had been made and traversed a distance of about eight feet to the eastern track, where in some unexplained manner he was caught under the wheels of an engine and tender passing south on said eastern track for the purpose of making room for the movement of the cars which had been attached to the local freight train. The engine in question was moved by a “wiper” at the request of two brakemen, who were engaged in making up the local freight train. The duties of this “wiper” were to wipe the engine, put out its fires, remove the ashes and cinders, and provide it with coal, water and sand, so that it should be ready for use. It was not his duty to move the engine about the yards and switches. The only authority of the “wiper” to move the engine was an inferable one, to alter its position when that should be necessary to extinguish fires communicated to the cross-ties by his work in cleansing the engine. All other movements of the engine over the switches and yards were required to be made by the “engine hostler,” who was an engineer employed for that purpose by defendant and given authority over the “wiper.” Prior to the accident the work of [606]*606the “wiper” on the engine in question had been completed and it was stationary on the eastern track, steamed up and ready for use, and the “wiper” in question was watching it and another engine also in his charge on the same track. The “engine hostler” was in the south end of the yard at the time. There is no evidence that he was requested to move the engine, nor that he gave any direction so to do to the “wiper.” The foregoing is the substance of the evidence in this record touching the nature and circumstances of the transaction which caused the death of plaintiff’s husband.
1. Our conclusion is that the learned circuit judge erred in refusing to sustain the demurrer to the evidence interposed by defendant at the close of the evidence produced on the trial. To move the engine a few feet to prevent the burning of the cross-ties of the track if they became ignited in the process of the performance of the duties of the 'wiper” in putting out fires of the engine and dumping cinders and ashes therefrom, was a service naturally incident to what might happen in the full discharge of the duties imposed on him by defendant. On the other hand, to move the engine over the side tracks or switches for the convenience of other employees engaged in making up trains, was a service wholly foreign and disconnected with the duties imposed by defendant on -the “wiper” of engines, and was specifically intrusted by it to a person having the qualifications of an engineer and termed “engine hostler.” As there is no substantial evidence in this record that this latter service was ever performed by the “wiper” of the engine in question at any other time than the occasion of the accident for which this action is brought, it can not be said that on this particular occasion he was acting in the course of his employment by defendant, and as it is not claimed that he then acted under the direction of his immediate superior, the “engine hostler,” or any other person authorized to add to the duties which the defendant had employed [607]*607him to perform, it follows that his movement of the engine at the request of two brakemen engaged in making up another train was an act outside and beyond the scope of the agency intrusted to him, and wholly unathorized by defendant. For mishaps so occurring, causing damage, the principal incurs no liability. These principles are elementary and need not be further elaborated.
2. It is insisted by the learned counsel for respondent that the Fellow Servant Act authorizes a recovery in this ease, even if it be conceded that the “wiper” was not acting within the course of his employment when the injury was occasioned. This motion is not in accord with the petition, nor with the position assumed on the trial, the language of the petition being that the injury complained of was caused by the act of a servant of defendant in the attempted discharge of “the service for which he was employed.” The act invoked to sustain the point now made by respondent is to-wit: “That every railroad corporation owning or operating a railroad in this State shall be liable for all damages sustained by any agent or servant thereof while engaged in the work of operating such railroad by reason of the negligence of any other agent or servant thereof. Provided, that it may be shown in defense that the person injured was guilty of negligence contributing as a proximate cause to produce the injury.” E. S. 1899, sec. 2873. Prior to the adoption of the foregoing section (Act of February, 1897), the common-law rules governing the liability of the principal of master for the torts or negligences of his agent or servant, 'existed in full vigor in this State. By that system of laws a person could only incur responsibility for his own acts or those done by his authority, express or implied. When the primary responsibility of parties for their own acts was extended so as to cover the acts of others, it was upon the sole ground that the immediate actors were the representatives as agents or servants of the party sought to be charged, [608]*608wbo was consequently deemed to have done those things himself which he did through another qui facit per aliurn facit per se. Upon this maxim alone the doctrine of respondeat superior was builded, which defined the responsibility of the principal or master as to third parties as embracing all acts done in the course of an employment given to his agents or servants. The only limitation fixed to this responsibility by the common law was that which exempted the principal or master from responsibility to his own agents or servants for injuries caused by a fellow servant engaged in the same grade and department of labor, the ground of this exception being that the risk of such injuries was assumed by taking an employment to which it was naturally incident. This exception constituted the only distinction between the liability of the principal or master to his own employees and to strangers, or the world at large. The trend of legislation in England and many of the States evinces a purpose to do away with this distinction in some measure and as to certain employments, and in pursuance of that design, notably, the States of Iowa and Kansas, have enacted statutes similar to the one above quoted. With this knowledge of the object in the mind of the Legislature we turn to the foregoing act to discover the method and extent of its accomplishment. By the language of the act a railroad corporation operating in this State is made liable to its agents or servants for all damages sustained
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BOND, J".
The plaintiff had judgment for $2,500 as damages for the death of her husband. The defendant appealed and assigns for error the refusal of the court to sustain its demurrer to the entire evidence.
The record shows that the scene of the accident for which this suit is brought was Bismark, a station on the line of the defendant’s railroad, from which it ran a local freight train north to the city of St. Louis, and where it had provided two side tracks east of its main track for switching purposes and making .up trains. The time of the accident was the eleventh of December, 1897. It was caused by the wheels of an engine passing over the body of the deceased, who was then a brakeman in the employ of defendant and had been coupling cars which were to constitute the local freight train, after doing which he left the track on which the coupling had been made and traversed a distance of about eight feet to the eastern track, where in some unexplained manner he was caught under the wheels of an engine and tender passing south on said eastern track for the purpose of making room for the movement of the cars which had been attached to the local freight train. The engine in question was moved by a “wiper” at the request of two brakemen, who were engaged in making up the local freight train. The duties of this “wiper” were to wipe the engine, put out its fires, remove the ashes and cinders, and provide it with coal, water and sand, so that it should be ready for use. It was not his duty to move the engine about the yards and switches. The only authority of the “wiper” to move the engine was an inferable one, to alter its position when that should be necessary to extinguish fires communicated to the cross-ties by his work in cleansing the engine. All other movements of the engine over the switches and yards were required to be made by the “engine hostler,” who was an engineer employed for that purpose by defendant and given authority over the “wiper.” Prior to the accident the work of [606]*606the “wiper” on the engine in question had been completed and it was stationary on the eastern track, steamed up and ready for use, and the “wiper” in question was watching it and another engine also in his charge on the same track. The “engine hostler” was in the south end of the yard at the time. There is no evidence that he was requested to move the engine, nor that he gave any direction so to do to the “wiper.” The foregoing is the substance of the evidence in this record touching the nature and circumstances of the transaction which caused the death of plaintiff’s husband.
1. Our conclusion is that the learned circuit judge erred in refusing to sustain the demurrer to the evidence interposed by defendant at the close of the evidence produced on the trial. To move the engine a few feet to prevent the burning of the cross-ties of the track if they became ignited in the process of the performance of the duties of the 'wiper” in putting out fires of the engine and dumping cinders and ashes therefrom, was a service naturally incident to what might happen in the full discharge of the duties imposed on him by defendant. On the other hand, to move the engine over the side tracks or switches for the convenience of other employees engaged in making up trains, was a service wholly foreign and disconnected with the duties imposed by defendant on -the “wiper” of engines, and was specifically intrusted by it to a person having the qualifications of an engineer and termed “engine hostler.” As there is no substantial evidence in this record that this latter service was ever performed by the “wiper” of the engine in question at any other time than the occasion of the accident for which this action is brought, it can not be said that on this particular occasion he was acting in the course of his employment by defendant, and as it is not claimed that he then acted under the direction of his immediate superior, the “engine hostler,” or any other person authorized to add to the duties which the defendant had employed [607]*607him to perform, it follows that his movement of the engine at the request of two brakemen engaged in making up another train was an act outside and beyond the scope of the agency intrusted to him, and wholly unathorized by defendant. For mishaps so occurring, causing damage, the principal incurs no liability. These principles are elementary and need not be further elaborated.
2. It is insisted by the learned counsel for respondent that the Fellow Servant Act authorizes a recovery in this ease, even if it be conceded that the “wiper” was not acting within the course of his employment when the injury was occasioned. This motion is not in accord with the petition, nor with the position assumed on the trial, the language of the petition being that the injury complained of was caused by the act of a servant of defendant in the attempted discharge of “the service for which he was employed.” The act invoked to sustain the point now made by respondent is to-wit: “That every railroad corporation owning or operating a railroad in this State shall be liable for all damages sustained by any agent or servant thereof while engaged in the work of operating such railroad by reason of the negligence of any other agent or servant thereof. Provided, that it may be shown in defense that the person injured was guilty of negligence contributing as a proximate cause to produce the injury.” E. S. 1899, sec. 2873. Prior to the adoption of the foregoing section (Act of February, 1897), the common-law rules governing the liability of the principal of master for the torts or negligences of his agent or servant, 'existed in full vigor in this State. By that system of laws a person could only incur responsibility for his own acts or those done by his authority, express or implied. When the primary responsibility of parties for their own acts was extended so as to cover the acts of others, it was upon the sole ground that the immediate actors were the representatives as agents or servants of the party sought to be charged, [608]*608wbo was consequently deemed to have done those things himself which he did through another qui facit per aliurn facit per se. Upon this maxim alone the doctrine of respondeat superior was builded, which defined the responsibility of the principal or master as to third parties as embracing all acts done in the course of an employment given to his agents or servants. The only limitation fixed to this responsibility by the common law was that which exempted the principal or master from responsibility to his own agents or servants for injuries caused by a fellow servant engaged in the same grade and department of labor, the ground of this exception being that the risk of such injuries was assumed by taking an employment to which it was naturally incident. This exception constituted the only distinction between the liability of the principal or master to his own employees and to strangers, or the world at large. The trend of legislation in England and many of the States evinces a purpose to do away with this distinction in some measure and as to certain employments, and in pursuance of that design, notably, the States of Iowa and Kansas, have enacted statutes similar to the one above quoted. With this knowledge of the object in the mind of the Legislature we turn to the foregoing act to discover the method and extent of its accomplishment. By the language of the act a railroad corporation operating in this State is made liable to its agents or servants for all damages sustained “while engaged im, the work of operating such railroad which are caused by the negligence of any other agent or servant of such railroad.” The meaning of these terms is simple, clear and free from any ambiguity whatever. Eirst, they confine the right of redress to an action against a railroad corporation. Second, they limit the cause of action to injuries sustained while the sufferer was engaged in the work.of operating such railroad. Third, they hinge the right of recovery upon a showing of negligence on the part of another “agent or servant” of such [609]*609railroad corporation. By the'use of the words “agent or servant of such corporation,” in defining who must be the authors of the injury in order to give a right of action, the Legislature necessarily meant co-employees acting in the course of their employment. It did not use these words as merely matter of personal description of certain individuals. Eor the rule is universal that it is only in the relation of service that one can be the agent or servant of another, and outside the scope of that limitation there is no privity or responsibility on the part of the master for the action of the other. In short, it is not true that one is the servant of another outside of the scope of his authority as such. On this subject the general rule formulated by the decisions and approved by the text-writers is as follows: “Beyond the scope of his employment the servant is as much a stranger to his master as any third person, and the act of the servant not done in the execution of the service for which he was engaged can not be regarded as the act of the master.” Little Miami Railroad Co. v. Wetmore, 19 Ohio State 110. It is apparent that the Legislature simply used the words “agent or servant” in defining the causes of the damages recoverable, in their true and proper sense and meaning as defined by law. It is plain, therefore, that a fair and natural interpretation of the act under review recognizes the just principle that it is only for his own wrongs or those done in the course of an employment intrusted to others, that the master or principal can be held liable to any one. The view of the learned counsel for respondent that by the Eellow Servant Act the Legislature intended to fasten liability on a railroad corporation in favor of its injured employees beyond that which it would owe to strangers, and resting solely upon an injury inflicted by a person not at the time acting within the scope of any employment by the railroad company, nor by its authority, express or implied, is in our opinion wholly illog[610]*610ical and opposed to the rights of person and property which it is the design of government to protect from unlawful invasion. No such purpose is expressed by the terms in which the Legislature has seen fit to couch its will on this subject, and can not be imputed to it, without an unjustifiable reflection upon its wisdom and high purpose as a body of lawmakers.
Our conclusion is that under the state of this record there is no view of the law or facts upon which the recovery had by plaintiff can be upheld. The judgment is therefore reversed.
Judge Bland concurs; Judge Biggs dissents.