Norton, Judge,
delivered the opinion of the court.
This is an action instituted by plaintiff as the wife of Joseph Proctor, for the recovery of five thousand dollars damages, under the provisions of Wagn. Stat., 519, § 2.
The petition alleges that Joseph Proctor, who was the husband of plaintiff, was, on the 19th of March, 1878, in the employ of defendant as engineer, having the charge of an engine going west on defendant’s road, propelling a train of cars ; that on said day a locomotive engine, with a train of cars thereto attached, bound east, belonging to defendant and operated on its said road by the agents and servants of the defendant and under its management, was by said agents and servants of defendant so carelessly, negligently and unskillfully run that said eastern bound train, without any fault of said Proctor, ran into and threw from the track the locomotive in charge of said Proctor, killing him instantly; for which plaintiff, as the widow of said Proctor, asks judgment for $5,000 damages under said section two.
There was a trial and judgment for plaintiff, according to the prayer of the petition, from which defendant appeals.
On the trial the defendant objected to the introduction of any evidence. 1. Because there is no cause of action stated in the petition; 2. Because the plaintiff seeks to recover in this cause on account of the death of her husband, Joseph Proctor, who was an employee of defendant at the time of his death, which was occasioned by the negligence or carelessness of co-employees of defendant ; 3. Because the plaintiff, as the widow of an employee of defendant, is not entitled to recover on account of the death of said employee, occasioned by the negligence or carelessness of co-employees of defendant. 4. Because there is no allegation in said petition that the employees of defendant, through whose negligence or carelessness said Joseph Proctor is alleged to have been killed, were not sober, careful, skillful men, nor that defendant did not exercise due and proper care in the selection of said employees.
These objections were overruled, to which action of the court the defendant excepted.
[118] The point presented for our determination involves the construction of Wagn. Stat., 519, § 2, especially as to whether, under the words “ any person ” in said section, a fellow-servant whose death is occasioned by the negligence of a fellow-servant, without fault of the master, is, or was intended to be included. The determination of this point will be decisive of this case.
Before proceeding to its consideration it may be preliminarily observed that it is well established law, both in England and this country, that a common master or employer cannot be held liable for injuries received by a servant or employee in consequence of the negligence or unskillfulness of a fellow-servant or co-employee, unless in the employment of such negligent and unskillful servant he has failed to exercise due care and diligence, or has retained him in his service after notification or knowledge of his incompetency. This rule rests for its support on reasoning which commends itself to the judgment of all, and has been dictated by the highest motives of public policy, and has been so universally sanctioned by the highest authority that a departure from it cannot be allowed unless it is made by a plain legislative warrant. Chief Justice Shaw in case of Farwell vs. Boston and Worcester R. R. Cor., (4 Metc. 49,) says: “When several persons are employed in the conduct of one common enterprise or undertaking, and the safety of each depends much on the care and skill with which each other shall perform his appropriate duty, each is an observer of the conduct of the others ; can give notice of any misconduct, incapacity or neglect of duty, and leave the service, if the common carrier will not take such precautions and employ such agents as the safety of the whole party may require. By these means the safety of each will be much more effectually secured than can be done by a resort to the common employer for indemnity, in case of loss by the negligence of each other.” The liability which the rule imposes on the master if he fails to use due care in the employment of competent servants, or his failure to discharge incompetent servants after knowledge of their incompe'teney has been brought home to him, tends to secure the employment of those only who are skilled and competent to perform all ihe duties growing out of the common employment. [119] The freedom of the master under the rule from liability for injuries received by one servant because of the negligence of a fellow servant tends to keep in the service of the master only those who are diligent, faithful and skillful in the performance of every duty to be performed in the common employment. By its operation, the interests of both employer and employee are promoted. It has not only this scope, but if the common undertaking consists in the operation of a railroad, the safety of the traveling public is most likely to be secured by it. A principle of the law thus salutary in its effects upon all who come within the operation of it should not be relaxed or departed from, unless by clear and express legislative direction.
The construction contended for of the second section of Wagn. Stat., 519, commonly known as the Damage Act, involves arelaxation of this rule, and would be a departure from the reasoning which sustains and upholds it. If, as is conceded in this case, the deceased, if he had lived and not died from the injury, would have had no right of action against the defendant, the giving of a right of action to his wife, where none existed before, is to that extent an infringement upon the reason of the rule.
diving to the words “ any person,” as used in the second section, a literal import, and not considering them in connection with the evident purpose of the legislature, nor reading the section in which they occur in connection with sections 8 and 4, the construction contended for is alone maintainable. This method, however, of construing a statute is not to be adopted. When particular words or particular clauses of a statute are of doubtful import, they should be considered in connection with the entire statute, and in such cases, when such words or clauses literally construed would produce a conflict in the act or lead to absurd conclusions, they may be restricted or enlarged in their operation so as to cause each part of it to harmonize with every other part.
It is conceded by ail that the third section of the act was only designed to transmit a right of action, which but for the section would have ceased to exist, or would have died with the person ; in other words, that under section three whenever a person dies [120] from such wrongful act of another as would have entitled the party to sue had he lived, such cause of action may be maintained by certain representatives of the deceased, notwithstanding the death of the party receiving the injury. It creates no new cause of action but simply continues or transmits the right to sue, which the party whose death is occasioned would have had, had he lived. It is not only a right transmitted, but it is restricted by limitations as to the persons who are to enjoy the right, the time within which it is to be enjoyed and the amount of damages to be recovered. Section 4 provides that all damages accruing under section B shall be recovered by the same parties and in the same manner as is provided in section 2, and in every such action the jury may give'damages not exceeding five thousand dollars. This section, in connection with section 2, designates the parties to whom this right is transmitted, and also the time within which it is to be exercised.
It is not pretended that section 3 transmits a right of action where a fellow-servant comes to his death by negligence of a fellow-servant, when it is not shown that the master acted without due care in the employment of such fellow-servant, or retained him after he had been informed of his incompetency. Nor is it contended that; under section 2 or any other section of the act the legislature has changed the common law rule as to the liability of the master to the servant himself, for an injury occasioned by the wrongful or negligent act of his fellow-servant.
The position assumed is, that under section 2, if a servant shall die from an injury resulting from or occasioned by the negligence * * * of any officer, agent, servant, whilst running, conducting or managing any locomotive, car or train of cars, his representative may sue and recover $5,000 of the master, although such servant, had he survived the injury, no matter how serious, could not have maintained any action at all against the master.
This conclusion is reached from the language used in the act— “when any person shall die,” &c. It is true that these words, in their literal signification, are comprehensive enough to include a servant or employee, and to these terms their plain and natural [121] import should be given, unless absurd consequences follow, and inconsistencies in the act are brought to light by such meaning.
Adopting the construction insisted upon by plaintiff, and a servant injured by a fellow-servant while operating a locomotive or train of cars, although he may be maimed, mangled and disfigured, and may suffer for an indefinite period of time the most excruciating tortures, can have no action against the master or employer ; yet if he die, his representative may recover of the employer $5,000. Under the view of plaintiff, the right to sue is not a transmitted right, but an original right, arising or appearing for the first time at the instant of the death of him or her through whom .the right is derived. The very face of the second section is at war with any other idea than that the right to sue was intended to be a transmitted right, and not an original right. This is shown by the character of the parties authorized to sue. They must be first, either the husband or wife of the deceased ; second, if there be no husband or wife, or he or she fails to sue in six months after the death, then the minor child or children of the deceased; or third, if such deceased be a jninor and unmarried, then by the father and mother, or if either be dead, then the survivor.
It manifestly appears from these provisions — for they apply to the injuries alluded to in section 8, as well as to those in section 2 — that it must have been in the mind and intention of the legislature only to confer upon rhe above classes of persons the right to sue in cases where the husband, wife or child could have sued, had not death been the result of the injury.
If the suit is instituted by the husband for the death of the wife, he would be required to allege and prove the fact that at the time the injury was received, occasioning the death, he was her husband, before he would be entitled to recover. This would be the initial and necessary step, in the casej for he might prove by a thousand witnesses the death and the occasion of it, yet it would avail him nothing unless the relationship of husband and wife-was established. If the words “any person” in the act are to be construed as including servants, then the inconsistent if not absurd conclusion follows that although under the common law [122] rule the master has committed no wrong against the servant, has violated no law, and done nothing which imposes upon him a legal liability to answer in damages an action brought by the servant himself, yet upon his death a cause of action which never before had an existence, is at once developed and brought to light, and is lodged in the representatives of the deceased. Not only is the above conclusion involved in the construction contended for ,by plaintiff, but also the further conclusion that the party receiving the injury, if he lives, say one year, may himself sue and recover, for the injury inflicted upon him, damages in any amount which the jury trying the case may give' under the facts of the case, and if death afterwards ensues from the injury, his representatives may sue under section 2 of the statute, and recover an additional sum of $5,000, thus holding the party liable in two actions to two different parties for the same wrong.
Inasmuch, therefore, as the literal meaning of the words “ any person,” as contended for by plaintiff, is at war with the evident intent of the act, and develop the incongruities and inconsistencies above referred to, we think they should be restricted in their literal meaning, if by so restricting them the various sections are made to harmonize in their intent, and reasonable instead of unreasonable conclusions made to follow.
Restricting the meaning of the words “ any person,” and making them apply only to such persons as are included in section 3, accomplishes this result and relieves the whole question of all difficulty, and makes sections 2 and 3 harmonious in intent. If the statute should be thus read, the representatives of such a, person as is described in section 3, dying from an injury received while the railroad was being operated, either from the carelessness of the servants engaged in operating it, or in case of a passenger, from an injury received because of defective road or machinery, would be entitled to recover $5,000 as damages liquidated by the terms of the act, the only difference between sections 2 and 3, being, that 'when the death is occasioned by any of the means specified in section 2, the representative to whom the right of action is transmitted- shall recover $5,000, no more and no less ; whereas, under sections 3 and 4, the representative to whom the [123] right of action is transmitted, may recover from one cent to $5,000. In the one class of transmitted rights, the law absolutely fixes the amount at $5,000. In the other the amount of damages is left to the discretion of the jury, to be fixed at any sum not exceeding $5,000, according to the circumstances of the case.
In the case of Rohback vs. Pac. R. R. Co., the words “ any person,” in a similar statute to the one now before the court, were restricted in their meaning and held to include any person, except a servant or employee of the road, and the same license is allowed in this case as was properly taken in that case.
It is, however said, as opposed to the view expressed herein, that the second clause of the second section creates a cause of action which did not exist before, in providing that in the event of the death of any passenger occasioned by any defect or insufficiency in any railroad or any part thereof, or in any locomotive or car, the corporation in whose employ any such officer or agent shall be at the time the injury is received, or who owns any such railroad, locomotive or car, at the time the injury is committed, shall forfeit and pay the sum of five thousand dollars.
It is said that under'this clause the owner of such railroad lo-’ comotive or car, may be sued, as contradistinguished from the corporation in whose employ the officer, agent or servant was at the time the injury was committed, which could not be done at common law.
We think that this view is erroneous, and that the word “ owner” in this section is used in the sense of proprietor, operator or owner, at the time being when the injury is received. To give it any other meaning would be equivalent to denying any remedy, and would render the remedy intended to be provided, absolutely unavailable. In order that this may appear, it needs but a careful reading of the section, and to read it correctly so as to reach the true meaning, it must be transposed. Transposing the section, it will read thus : “ Whenever any person shall die from any injury resulting from or occasioned by the negligence unskillfulness or criminal intent of any officer, agent, servant or employe, whilst running, conducting or managing any locomotive, [124] .car, or train of cars, * * * the corporation in whose employ any such officer, agent or employe shall be at the time such injury is committed, shall forfeit and pay for every such person so dying the sum of five thousand dollars ; 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 orear, the corporation who (which) owns any such railroad, locomotive or car, at the time such injury is received, resulting from or occasioned by any defect or deficiency above declared, shall forfeit and pay for every passenger so dying, the sum of five thousand dollars.”
The above method of reading the section is obviously the correct method, and we cannot see that it can be read in any other manner. Adopting this reading, and the owner of the defective railroad, locomotive or cars, at the time the injury is inflicted, from which death ensues, becomes liable to pay the sum of five thousand dollars.
The word “owner” in the act does not mean the absolute owner in whom the absolute right of property is invested, but means, and was evidently intended by the draftsmen of the act to mean the owner for the time being, the corporation for the time being, operating, controlling and managing the defective road, locomotive or car. No new right of action is created here, for the passenger, if he had been injured, and lived, could, at common law, have sued the owner for the time being, or the corporation operating and controlling the defective road, locomotive or car. Any other reading or construction of this section, so as to confine the right of action for the death of a passenger, occasioned by a defect in the road or locomotive or cars, agaiust the absolute owner of such railroad, locomotive or cars, would lead to the abolishment of the remedy, and the nullification of the act, so far as the remedy is concerned.
Let us test this by an example : A machinist in New York, engaged in the manufacture of locomotives and cars, hires or leases all the cars and locomotives to the Missouri Pacific Railroad Company which are necessary to operate the road for a period of twenty-five years, at an annual hiring. An injury is inflicted [125] upon a passenger from a defect in one of these locomotives, while being operated bjr this company, from which the passenger dies; if the representatives of the deceased are to sue the owner in New York, could he not reply and say that it was no fault of his which occasioned the injury; that the locomotive was perfect and complete when it left his hands for the use of the corporation, and that your statute has no extra-territorial vigor, and thus defeat a recovery? And if the corporation operating the locomotive and the owner of it at the time the injury was committed, were sued, would the corporation be allowed to answer the action by saying that che owner of the defective machinery lived in New York, and thus remit plaintiff to an action against him ? The refutation of such a proposition is found in the statement of it. Nor would it be an answer to say that the interest of the New York owner might be attached and sold ; for in twenty-five years his interest would perish in the use of it, and amount to nothing.
This reading of the section also conclusively refutes the interpretation or meaning given by plaintiff to the words “any person,” in the first clause of the second section.
According to the plaintiff’s interpretation of these words, the representatives of a fellow servant, injured by the negligence of a fellow servant, while engaged in running and operating the road, without any fault of the master, could sue and recover against the master five thousand dollars, although the servant, had he lived, could not have sued at all for the injury ; yet the representative of the servant whose death was occasioned by defective track or defective machinery, could not sue for and recover anything under the second section, although the servant, had he lived, could have sued the master and have recovered any damage which he may have sustained by reason of an injury inflicted upon him in consequence of a defective road or defective machinery used in operating it.
It seems to us to be a manifest misinterpretation of the second section to construe it so as to say that the legislature in the first clause intended to give the representatives of a servant, who would have had no cause of action had he lived, a right to sue and recover five thousand dollars, and in the second clause of the [126] same section denied to the representative of a servant, who would have had a cause of action had he lived, the right to sue and recover damages under that section. And the fact that in the second clause of this section, the legislature, by’ not extending the right, did deny the right of the representative of a servant, dying from an injury received from a defective road or machinery, to sue and recover under that section, is conclusive proof that they did not intend to include, under the term “any person,” a fellow servant injured by the negligence of a fellow servant, without fault of the master.
In the-case of Schultz vs. Pacific Railroad (36 Mo. 18), a different conclusion was reached from that herein announced. We do not think that the rule was correctly laid down in that case, and have arrived at the conclusions we have after careful deliberation, believing them to embody the true intent of the act, the construction of which was involved. (Potter’s Dwarris on Stat. 196, 217; 52 Pa. 391; Phillips vs. Saunders, 15 Ga. 518 ; Noe vs. The People, 39 Ill. 96.)
In addition to what is here said, we adopt the reasoning of a minority of the court in the case of Connor vs. Chicago, Rock Island & Pacific Railroad Company (59 Mo. 285). We think that the court committed error in overruling the objections of defendant to the evidence offered in support of the petition, and that it ought not to have been received for the reasons assigned by defendant, which are copied in a previous part of this opinion. The judgment is reversed, in which Judges Sherwood, Napton and Hough concur.