Per Napton, Judge.
This action was brought by the widow of Michael Connor to recover the statutory' penalty of $5,000 damages for the death of her husband, caused by the negligence and unskillfulness of the officers, servants, agents and employees of the defendant.
The defense was that the plaintiffs husband was a brakesmau at the time of the accident, and that the collision which overturned the cars, was not the result of any negligence.
The testimony of the plaintiff on the trial tended to show the following state of facts: The gravel train of the defendant, which was in charge of the plaintiff’s husband, as head brakesman, was backing up a switch, to allow a regular train to pass, and while running round a curve, ran over a cow, precipitating several of the flat cars down an embankment. Connor was on the car farthest from the locomotive, or the front car, as the train was running, and was killed. There was proof to show that the train was going at the rate of twenty-five or thirty miles an hour, though the engineer, or temporary engineer, stated that there was no steam on, and it was running on a descending grade at about five or six miles an hour.
There was also proof that the engine was at the time in charge of a fireman, the engineer being in the caboose adjoining, and that he was incompetent and had been subsequently discharged for incompetency.
On motion of plaintiff’s counsel, the court instructed the jury as follows: 1st. If the jury believe from the evidence that the injuries from which Michael Connor died, were received without fault or negligence on his part; and that the injuries from which he died resulted from, or were occasioned by, the negligence of employees of the defendant while running, conducting or managing the locomotive or train of cars [289]*289on which said Connor was at the time of receiving said injury, then they will find for plaintiff; 2nd. Negligence, as used in the foregoing instructions, consists in the doing of some act with reference to the running, managing or conducting of said locomotive or train of cars by the officers, agents, servants or employees of defendant, which a reasonable, prudent man would not do, or in the omission by them to do some act with respect thereto, which a reasonable, prudent man would not omit to do.
On behalf of defendants, the court instructed the jury as follows: 1st. It is admitted by the pleadings, that at the time of his death, Michael Connor was an employee of defendant and acting in the capacity of brakeman; 2nd. Unless the jury find from the evidence that Michael Connor died from an injury or injuries resulting from, or occasioned by the negligence or uuskillfulness of some officer, agent, servant or employee of defendants whilst running, conducting or managing a locomotive, car or train of cars of defendants, then they ought to find for defendants. 3rd. Even if the jury find that at the moment of the injury, the engine driving the train on which Michael Connor was killed, was being managed and conducted by an employee of defendants, who was not a skillful engineer, still the jury ought not to find for plaintiffs on that account unless they further find from the evidence that Michael Connor died from an injury or injuries resulting from or occasioned by the unskillfulness of such employee. 7th. In this cause the presumption of law is, that the employees of defendant performed their duties skillfully and carefully, and the plaintiff cannot recover unless it is proved affirmatively that the death of Connor resulted from, or was occasioned by, negligence or unskillfulness on the part of some officer, agent, servant or employee, who at the time was running, conducting or managing the locomotive, or train of cars on which the injury occurred.”
The following instructions asked by the defendants, were refused by the court: “ 4th. From the simple fact of an accident and injury resulting in the death of Michael Connor, [290]*290no presumption of negligence or unskillfulness can arise. On the contrary, the presumption would be, that the accident resulted from misadventure or inevitable fate, or other cause for which the defendants would not be liable. Hence, in this case the plaintiff cannot recover in the absence of affirmative and positive proof that Michael Connor died from an injury or injuries resulting from or occasioned by the negligence or unskillfulness of the officer, agent, servant or employee of defendant, who was at the time of the injury running, conducting or managing the locomotive or train of cars of defendant. 5th. If the jury believe from the evidence, that Michael Con-nor, as head brakeman, had the charge and control, and was running, conducting and managing the train of cars at the time of the accident and injury which resulted in his death, they will find for defendant. 6th. Plaintiff cannot recover on account of any negligence or unskillfulness of the other brakeman who was braking on the train at the time of the injury which resulted in the death of Connor.
There was a verdict and judgment for plaintiff.
Prom the pleadings, evidence and instructions in this case, it is clear that the case was tried on a construction of the second section of the act concerning damages, given by this court in the case of Schultz vs. Pac. R. R., 36 Mo., 13.
The section referred to, is as follows : "§ 2. Whenever any person shall die from an injury resulting from or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee, whilst running, conducting or managing any locomotive or train of cars, or of any master, pilot, engineer, agent or employee, whilst running, conducting or managing any steamboat or any of the machinery thereof, or of any driver of any stage coach or other public conveyance, whilst in charge of the same as a driver, and when any passenger shall die from any injury resulting from or occasioned by any defect or insufficiency in any railroad or any part thereof, or in any locomotive or car, or in any steamboat or the machinery- thereof, or in any stage coach or other public conveyance, the corporation, individual [291]*291or individuals in whose employ any such officer, agent, servant, employee, master, pilot, engineer or driver shall be at the time such injury is committed, or who owns any such railroad, locomotive, car, stage coach or other public conveyance at the time any injury is received resulting from or occasioned by any defect or insufficiency above declared, shall forfeit and pay for every person or passenger so dying, the sum of five thousand dollars, which may be sued for or recovered ; first, by the husband or wife of deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased; or, third, if such deceased be a minor and unmarried, then by the father and mother,who may join in the suit, and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor. In suits instituted under this section, it shall be competent for the defendant for his defense, to show that the defect or insufficiency named in this section was not of a negligent defect or insufficiency.”
The next succeeding sections are as follows : "§ 3.
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Per Napton, Judge.
This action was brought by the widow of Michael Connor to recover the statutory' penalty of $5,000 damages for the death of her husband, caused by the negligence and unskillfulness of the officers, servants, agents and employees of the defendant.
The defense was that the plaintiffs husband was a brakesmau at the time of the accident, and that the collision which overturned the cars, was not the result of any negligence.
The testimony of the plaintiff on the trial tended to show the following state of facts: The gravel train of the defendant, which was in charge of the plaintiff’s husband, as head brakesman, was backing up a switch, to allow a regular train to pass, and while running round a curve, ran over a cow, precipitating several of the flat cars down an embankment. Connor was on the car farthest from the locomotive, or the front car, as the train was running, and was killed. There was proof to show that the train was going at the rate of twenty-five or thirty miles an hour, though the engineer, or temporary engineer, stated that there was no steam on, and it was running on a descending grade at about five or six miles an hour.
There was also proof that the engine was at the time in charge of a fireman, the engineer being in the caboose adjoining, and that he was incompetent and had been subsequently discharged for incompetency.
On motion of plaintiff’s counsel, the court instructed the jury as follows: 1st. If the jury believe from the evidence that the injuries from which Michael Connor died, were received without fault or negligence on his part; and that the injuries from which he died resulted from, or were occasioned by, the negligence of employees of the defendant while running, conducting or managing the locomotive or train of cars [289]*289on which said Connor was at the time of receiving said injury, then they will find for plaintiff; 2nd. Negligence, as used in the foregoing instructions, consists in the doing of some act with reference to the running, managing or conducting of said locomotive or train of cars by the officers, agents, servants or employees of defendant, which a reasonable, prudent man would not do, or in the omission by them to do some act with respect thereto, which a reasonable, prudent man would not omit to do.
On behalf of defendants, the court instructed the jury as follows: 1st. It is admitted by the pleadings, that at the time of his death, Michael Connor was an employee of defendant and acting in the capacity of brakeman; 2nd. Unless the jury find from the evidence that Michael Connor died from an injury or injuries resulting from, or occasioned by the negligence or uuskillfulness of some officer, agent, servant or employee of defendants whilst running, conducting or managing a locomotive, car or train of cars of defendants, then they ought to find for defendants. 3rd. Even if the jury find that at the moment of the injury, the engine driving the train on which Michael Connor was killed, was being managed and conducted by an employee of defendants, who was not a skillful engineer, still the jury ought not to find for plaintiffs on that account unless they further find from the evidence that Michael Connor died from an injury or injuries resulting from or occasioned by the unskillfulness of such employee. 7th. In this cause the presumption of law is, that the employees of defendant performed their duties skillfully and carefully, and the plaintiff cannot recover unless it is proved affirmatively that the death of Connor resulted from, or was occasioned by, negligence or unskillfulness on the part of some officer, agent, servant or employee, who at the time was running, conducting or managing the locomotive, or train of cars on which the injury occurred.”
The following instructions asked by the defendants, were refused by the court: “ 4th. From the simple fact of an accident and injury resulting in the death of Michael Connor, [290]*290no presumption of negligence or unskillfulness can arise. On the contrary, the presumption would be, that the accident resulted from misadventure or inevitable fate, or other cause for which the defendants would not be liable. Hence, in this case the plaintiff cannot recover in the absence of affirmative and positive proof that Michael Connor died from an injury or injuries resulting from or occasioned by the negligence or unskillfulness of the officer, agent, servant or employee of defendant, who was at the time of the injury running, conducting or managing the locomotive or train of cars of defendant. 5th. If the jury believe from the evidence, that Michael Con-nor, as head brakeman, had the charge and control, and was running, conducting and managing the train of cars at the time of the accident and injury which resulted in his death, they will find for defendant. 6th. Plaintiff cannot recover on account of any negligence or unskillfulness of the other brakeman who was braking on the train at the time of the injury which resulted in the death of Connor.
There was a verdict and judgment for plaintiff.
Prom the pleadings, evidence and instructions in this case, it is clear that the case was tried on a construction of the second section of the act concerning damages, given by this court in the case of Schultz vs. Pac. R. R., 36 Mo., 13.
The section referred to, is as follows : "§ 2. Whenever any person shall die from an injury resulting from or occasioned by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee, whilst running, conducting or managing any locomotive or train of cars, or of any master, pilot, engineer, agent or employee, whilst running, conducting or managing any steamboat or any of the machinery thereof, or of any driver of any stage coach or other public conveyance, whilst in charge of the same as a driver, and when any passenger shall die from any injury resulting from or occasioned by any defect or insufficiency in any railroad or any part thereof, or in any locomotive or car, or in any steamboat or the machinery- thereof, or in any stage coach or other public conveyance, the corporation, individual [291]*291or individuals in whose employ any such officer, agent, servant, employee, master, pilot, engineer or driver shall be at the time such injury is committed, or who owns any such railroad, locomotive, car, stage coach or other public conveyance at the time any injury is received resulting from or occasioned by any defect or insufficiency above declared, shall forfeit and pay for every person or passenger so dying, the sum of five thousand dollars, which may be sued for or recovered ; first, by the husband or wife of deceased; or, second, if there be no husband or wife, or he or she fails to sue within six months after such death, then by the minor child or children of the deceased; or, third, if such deceased be a minor and unmarried, then by the father and mother,who may join in the suit, and each shall have an equal interest in the judgment; or if either of them be dead, then by the survivor. In suits instituted under this section, it shall be competent for the defendant for his defense, to show that the defect or insufficiency named in this section was not of a negligent defect or insufficiency.”
The next succeeding sections are as follows : "§ 3. Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is not such as Avould (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, then and in every such case, the person who, or the corporation which,would have been liable if death had not ensued, shall be liable to an action for damages, notAvithstanding the death of the person injured.” •
"§4. All damages accruing under the last preceding section shall be sued for and recovered by the same parties and in the same manner, as provided in the second section of this chapter, and in every such action the jury may give such damages as they may deem fair and just, not exceeding five thousand dollars, with reference to the necessary injury resulting from such death, to the surviving parties Ayho may be entitled to sue,'and also having regard to the mitigating and aggravating circumstances attending such wrongful act, neglect or default.”
[292]*292As the construction given to this second section of the damage act in Schultz vs. Pac. R. R., has never been before this court since the decision of that case, so far as I am aware, and as my convictions are very well settled that the critical analysis of that section by the learned judge who delivered the opinion of the court in that case, and the conclusions to which he arrived on such examination, are totally at variance with the true intent and meaning of the act, it is proper to explain my reasons for these convictions. In doing so, I speak for myself only and with the highest respect for the abilities and learning of the judges who have expressed a different opinion.
The cardinal rule in the construction of a statute is to look mainly at the intent of the law, the defect or grievance proposed to be remedied, and the means provided to effect such remedy. The common law axiom, that “actio personalis moritur cum, persona,” was the mischief which the legislature wished to abolish, and at the same time to point out the survivors who should have the right of action. The distinctions between the right of action in passengers and employees, and the cases in which the one o.r the other might maintain actions, were not in the mind of the legislature in framing this enactment. They were looking in a different direction ; and the use of the term “person,” in the first clause of the section, and the term “ passenger ” in the second, and of both “passenger or person” towards the conclusion, was merely a blunder of the draughtsman, who, disregarding all the rules of punctuation, and delighting apparently in obscure, complicated and tautological phraseology, seems, suddenly, after half completing the section, to have dropped in the word “ passenger” at the very place where it ought to have been omitted, and left it out at the very place where it should have been inserted in order to have carried out the real design of the act. The word “person,” if carried through the section would have answered, or the words “ person or passenger'” in all the clauses would have created no confusion or doubt.
[293]*293There was no intention of establishing any new rules of liability for damages to the party injured, where he was alive and entitled to his action, but simply to extend the benefit of that liability to certain members of the family of the injured person, when death resulted from the injury. Had any such design been entertained, it was a simple and easy task to be accomplished in plain, clear and unmistakable language.
Those who are engaged in the interpretation of statutes, or of wills, or of written instruments of any description, are fully apprised of the necessity which frequently arises of disregarding words, or transposing them, in order to carry out the primary and leading design of the paper, whether it be an act of a legislative body, or the will or deed or contract of a private person. Qui hœret in litera, hœret in cortice.
The object of judicial tribunals is to carry out the intent; and if such intent can be clearly gathered from the whole instrument or act, it must be carried out, though to effect this a literal interpretation must be rejected or a restricted meaning be given to words or contiguous parts of the instrument, or sections of the law on the same subject be referred to.
Now the 3rd section of this act is upon the same subject, and has in view the same general' object, though in the second section the remedy is confined to certain public institutions, (if we may call them so) whether corporations or not, established to afford facilities to the traveling public; and the third is designed to furnish redress for injuries occasioned by individuals who are not engaged in business of that character. Hence a discrimination is made in regard to damages; in the former case fixing it definitely ; in the latter leaving it to juries according to the facts and circumstances of the case. But the 3rd section clearly announces the object of the legislature, which was to give no new cause of action, to legislate into existence no new grounds of recovery; but to give to certain representatives of a dead man a right of action, which did not before exist in such representatives, where the man if living would have had one, and in no other case.
[294]*294Another leading maxim in the interpretation of statutes, is to reject an interpretation which conflicts with the views of the legislature apparent in the enactment, and leads to such consequences as it would be disrespectful to the legislature to suppose were designed. This is in truth a mere variation of the first principle named, which requires the intention to be carried out, though at a sacrifice of words.
The interpretation of the second section advanced in the Schultz case, enlarges the rights of the employees under the first clause, and abolishes the distinction between them and passengers, but destroys their rights under the second clause, where passengers only are named, and where the employees of the company, under the law as it existed before the passage of the act, were conceded to have a right of action, and where passengers also clearly had always a right of action apart from any legislative enactment. This seems strange in a law supposed and asserted to have had in view a change of the law as established in the case of McDermott vs. Pac. R. R. (30 Mo., 115.) Now in that case, and in all the cases that have followed (and they have been numerous) the right of an employee (as well as passenger) to recover for injuries occasioned by defective machinery, etc., is conceded. But adopting the literal interpretation of the second section, as given in the case of Schultz, as the word “ passenger” alone is used in the second clause, this right of the employee is destroyed, so far as his representative is concerned, in the event of his leath. "Was this the design of the legislature ? Clearly not. Had the word person,” or the words “ person or passenger,” been used throughout, from the beginning to the end of the section, the whole purpose of the act would have been evident and unambiguous.
But there are other difficulties in this interpretation, which I am unable to reconcile with what is assumed to be the object of the legislature. An employee of a railroad company, who is crippled to any conceivable extent, is not supplied with any remedy; but if he is killed outright, his wife or children or parents are entitled to $5,000. What motive [295]*295could prompt a legislature to such discrimination ? It looks like a premium for homicide. Why should they allow a man’s wife or children $5,000, where the husband or father is killed, and refuse to allow him anything when deprived of arms or legs, or both, and a hopeless, helpless cripple, and a mere incumbrance on his family ? In the one case the family are deprived of the services of the head; but in the other, in ad-. dition to this deprivation, they have the burthen and expense of maintaining for life a helpless, perhaps bed-ridden cripple. I am unable to see any reason for such discrimination, and therefore am unwilling to impute to the legislature any intention of making it.
The doctrine first advanced by this court in the McDermott case, has been reviewed and sanctioned in various decisions since, and especially in the case of Gibson vs. Pac. R. R., (46 Mo., 163) in which Judge Wagner has collated all the English and American authorities, and declared it to be the settled law of the State, It had been asserted in the case of Rohback vs. Pac. R. R., (43 Mo., 192) and is re-asserted in Harper vs. Indianapolis & St. Louis R. R. (47 Mo., 567.)
If the legislature think it wise to abolish the distinction between passengers and employees, they will surely make no distinction in favor of the representative of the injured party and against the party himself. If abolished as to one, it will be abolished as to both. So far, in my judgment, they have left this branch of the law of negligence as they found it, and in the act concerning damages, had not in view the alteration of any responsibility of companies or individuals engaged in providing accommodations for public travel, but simply designed to extend a pre-existing responsibility to certain representatives of the injured party, in case of his death. It was not designed to change the law of contributory negligence, any more than it was intended to abolish the distinction between passengers and employees.
The fifth instruction in this case should have been given, if modified so as to hold the company responsible, notwithstanding Connor was conductor and- manager of the train, [296]*296if the company had been guilty of negligence in employing an unskillful engineer, or allowing sucli engineer to turn over the engine to a fireman who was not qualified to manage it, and the damage Resulted from the conduct of the engineer or fireman. There was evidence on this point.
In my opinion, however, the pleadings will have to be amended. The judgment is reversed and the cause remanded.