Sams v. St. Louis & Meramec River Railroad

73 S.W. 686, 174 Mo. 53, 1903 Mo. LEXIS 277

• Court: Supreme Court of Missouri
• Decided: April 1, 1903
• Status: Published

Opinions

YALLIANT, J.

Suit for damages' for personal injuries.

The petition states that the defendant is a railroad corporation owning and operating a railroad from a point named in the city • of St. Louis to a point named in St. Louis. county, and is engaged in carrying passengers and freight, by means of cars propelled by steam and electricity; that on each car the defendant has two employees, a motorneer whose station is on the front platform where he manipulates the machinery through which the electric power is applied, and a conductor who has certain other duties to perform. There 'was also at the time and place of the accident a third employee of the defendant, whom the plaintiff calls a car dispatcher, whose station was at the eastern terminus of the road, who had authority to direct the movements of the car and to command the motorneer and conductor'’in reference thereto; that upon the occasion in •question the plaintiff was the conductor on one of these cars, one Horn was the motorneer, and Hogan the car dispatcher; that Horn was without skill or training; that on January 27, 1898, at the eastern terminus of the road at Sixth and Locust streets in St. Louis, while the plaintiff in the due discharge of his duties as conductor was on the ground in front of the ■car, in the act of shifting the trolley to reverse the direction, the car, through the negligence and lack of skill •of the motorneer and the negligence of the car dispatcher, was suddenly projected against the plaintiff, crushing him against another car which was standing on the track and inflicting on him great bodily injuries. Specifications of the conduct of the motorneer and car dispatcher constituting the alleged negligence are set •out in the petition, as likewise are the particulars of the injuries suffered by the plaintiff.

The answer was a general denial, contributory negligence of the plaintiff, and a special plea that defendant was a street railroad corporation organized for tiie purpose and engaged in the business only of conducting a street railroad, that the plaintiff, the motorneer and the car dispatcher were fellow-servants employed in operating the car, and therefore defendant was not liable to plaintiff for the negligence of his fellow-servants.

The reply was a géneral denial.

On the trial plaintiff introduced in evidence the charter of the defendant; by which it appeared that defendant was incorporated as an ordinary railroad company under article 2, chapter 42, Revised Statutes 1889 (now chap. 12, R. S. 1899), also evidence showing that it had claimed and exercised the right of eminent domain to condemn private property for a part of its right of way outside of the city, that its road in the city was in the city streets and of the same character as ordinary street railroads, whilst in the country it was partly of that character and partly of the character of the ordinary steam railroads; that the cars of defendant were moved by electricity under the ordinary trolley system and for the carrying of passengérs only, except that defendant had one car, propelled in like manner as its passenger cars, which was used to carry the United States mails, and one-half of it was arranged to carry freight, Or express packages and was so used; that from its eastern terminus at Sixth street, west to Forty-first street, the road was used jointly for the same purpose by defendant and a street railway company called int the evidence, The Suburban.

The car on which plaintiff was conductor was an ordinary street car and was being used as such like the cars of the Suburban company operating over the same road, only the defendant’s car was red and the Suburban’s yellow. There was evidence tending to show that Hogan, the car starter, had authority to direct the conductor and motorneer when to start, and that his authority to regulate the time space between cars applied not only to the starting at the eastern terminus but extending -all along the line, and that in that matter the conductors and motorneer were ordered to obey him; that if his orders were disobeyed he would report the offender who was therefor liable to be suspended. There was no evidence to support the charge that the motorneer was inexperienced or deficient in skill. The evidence as to the accident tended to show, as follows:

The road was a double track, ending at Sixth street on Locust. The mode of operating was, .the cars would come east on the south track, the machinery would be reversed without turning the cars, and they would be passed over a switch to the north track, on which they would return west. The car came in a little late, and Hogan, the car-starter, spoke angrily to the motorneer, asking him where he had been.. The car stopped, the conductor stepped off to reverse the trolley, passing on the south - side holding the cord. Hogan was standing on the north side, and, seeing that the rear trucks of the car had not cleared the switch, motioned or called to the motorneer to move up. The motorneer as if in obedience to -that direction set the apparatus to receive the electric current but the car did not move, owing to the fact (which neither the motorneer 'nor Hogan seemed to have noticed) that at that moment the conductor was in the act of reversing the trolley, and therefore the connection of the machinery with the wire- overhead was broken. The motorneer, still seeming not to see what the conductor was doing, took off the controller, leaving the apparatus open to receive the current, and started to the other end of the car where he was to stand when going west. His duty under the circumstances was to have closed the machine against the admission of the current until the conductor had readjusted the trolley, but this he neglected to do, and on the instant the trolley touched the wire the car shot forward and crushed the plaintiff against one of the Suburban cars which was standing on the track and inflicted on him great injuries.

At the close of the plaintiff’s evidence the court at the request of the defendant gave an instruction to the effect that the plaintiff was not entitled to recover. Thereupon he took a nonsuit with leave, and his motion to set the. same aside having been overruled, he brings this appeal.

I.

There is nothing in the case to justify a conclusion that the car-starter was a vice-principal of the defendant. He had a certain duty to perform, and in that his word was the word of the master to his fellow-servants, and if they refused to obey him in that particular they were, on being reported to the manager, liable to be suspended. But each of the other servants had his peculiar duty to perform and in which his word' was' that of the master. The conductor by word or signal to the motorneer orders him to start or stop the car, and if he should refuse to obey and the fact was reported to the manager, doubtless he would be disciplined. And there may be events in the operation of the car when the motorneer may be in duty bound to give orders to the conductor which he is to obey. But it would never be contended that the conductor and motorneer were not fellow servants. And so, is a car-starter who has no more authority than this man had, the fellow servant of the conductor and motorneér. Although the motorneer in seeming obedience to the order of the car starter did a negligent act,' yet the car-starter did not order him to do what he did. The order was to move the car forward so as to clear the switch. That was a proper thing to do and could have been done in a proper manner. The argument is made that the order should not have been given at the instant the conductor was in the act of readjusting the trolley. Assuming as we should, that the ear-starter saw what the conductor was doing when he gave the order, still the order did not mean that the motorneer should move the car with the trolley off, which would have been impossible, but that he should do it in a proper way. The negligence was in the act of the motorneer attempting to execute the orders without looking to see what the conductor was doing, and in removing the controller and starting to the other end of the car without closing the apparatus against the current which he was bound to- know would pass into the machinery as soon as the trolley should touch the wire. We do not perceive any negligence in the act of the car-starter, 'but undoubtedly the act of the motorneer was negligence, and if the defendant is liable to the plaintiff for the negligence of his fellow-servant, the trial court erred in giving the instruction which forced the nonsuit. This brings us to the main question in the case.

II.

■ The General' Assembly passed an act which was approved February 9, 1897,- the first section of which, being now section 2873, Revised Statutes 1899, is, “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.”

The question is, does that statute apply to the defendant which claims to be a corporation owning or operating a street railroad and to its servants engaged in the work of operating such Street railroad?

a. Appellant’s first point is that the defendant is not a street railroad corporation, bnt that it is a railroad corporation in the fullest sense of the word, possessing all the corporate powers as such. The defendant’s charter in evidence shows that to be the fact. To this point appellant’s main argument is addressed. It is urged that not only has the defendant such corporate powers granted by its charter, but that it has asserted them in court, has been permitted to exercise the right of eminent domain; that in a suit which reached this court it was heard to say that it was a railroad corporation of general powers and duties, as such that it could not be restricted, nor could it, by contract, restrict itself to the carrying of passengers only. [Railroad v. Kirkwood, 159 Mo. 239.] And the argument i,s pressed that defendant can not be heard to claim the rights, yet deny the liabilities of a general railroad corporation. Referring to the case just cited, Railroad v. Kirkwood, in which this defendant asserted its powers as a general railroad corporation and resisted the effort of the city of Kirkwood to restrict it to the dimensions of a street railroad company, we find that this court did not sustain the company in its assertion, but on the contrary the court, per Gantt, J., said: “We think the facts in evidence constituted plaintiff, so far as the city of Kirkwood is concerned, a street railway with the right to transport passengers only. ’ ’

That essential differences exist between railroads and street railroads is recognized by the learned counsel for appellant in their briefs. They review the cases and texts cited in the briefs for respondent and cite many in their own briefs, showing the recognized differences, and mark the points that distinguish the one kind from the other, but they answer all that those law-writers say on the subject, by saying that this is not a street railroad company, it is a railroad company in the broadest sense of the term, because its charter so declares, because it was incorporated under article 2, of chapter 42, Revised Statutes 1889 (same chapter 12, Revised Statutes 1899), and not under article 8 of the'same chapter under which street railroad companies at that date were usually incorporated, and they say, referring to a corporation organized under article 8: “When a corporation, so organized, and actually confining itself to the technical street railway business, is sought to be held amenable to the fellow-servant act, it will be time enough for this court to decide that question.”

The argument of the learned counsel for appellant proves this proposition, viz.: the defendant having by its charter acquired and assumed all the rights and privileges appertaining to a general railroad corporation as such, is bound to assume.also all the duties and burdens imposed by law on a general railroad corporation as such. If, therefore, our fellow-servant statute imposes on all railroad corporations, having the charter powers given in article 2, chapter 12, Revised Statutes 1899, liability for injury to any one of its servants through the negligence of his fellow-servant, and if the statute so construed is constitutional, then this defendant is liable in this case. And so it would be, if that were the law, regardless of the particular business the corporation was engaged in at the time or of the hind of work the injured servant and his fellow-servant were doing. If the corporation on its own account was erecting a depot building and a carpenter engáged in the work was injured through the negligence of another carpenter in the same work, both being employees of the company, the company on that theory would be liable. In such case it would not avail the company, when sued, to say, “We were not at that time engaged in an operation peculiar to a general railroad corporation, we were building a house, conducting the work in manner like any other house-builder would do, and our employees were not subject to any greater or different risk than other carpenters in like work,” for, to all that, on appellant’s theory, the conclusive answer would be, “Your charter determines your character and fixes your relation to the fellow-servant statute.” But that can not be the law. Our fellow-servant act itself draws a distinction which appellant’s argument overlooks. • It does not impose the liability on railroad corporations because they are railroad corporations, nor does it apply to them without reference to the business in which they are in fact engaged, nor to their employees in every capacity.

The language of the statute is: “Every railroad corporation owning or operating a railroad in this State shall be liable for all damages sustained by any agent or servant thereof engaged in the work of operating such railroad by reason,” etc. Thus we see that by the very words of the statute the liability is not imposed on railroad corporations, guia railroad corporations, but on concerns that own and operate railroads in this State, and the liability is not for damages sustained by. any servant of the company, but only by a servant engaged in the work of operating such road. From this it is clear that the lawmakers had in mind the kind of work in which the men whom they aimed to protect were engaged. The peculiar character of the work of operating a railroad was, to the minds of the ■lawmakers, the reason for making a peculiar class of the men engaged in that work and affording them relief not afforded to other hired servants, and imposing on their employers a liability not imposed on other masters. It is the peculiar character of the work that justifies the statute in the eyes of the Constitution', and it is upon that ground alone that its validity has been upheld. It is the condition and not the theory that justifies the law. This law applies to a master who as a matter of fact owns and operates a railroad, and to a servant who as a matter of fact is engaged in its work of operating that railroad; it applies to no other master — to no other servant.

The business in which the corporation was engaged may have been such that its charter did not authorize, still when the attempt is made to bring the act within the scope of this statute the question is, not what was the company authorized to do, but what in fact was it doing and in what work was the injured servant engaged? The charter gives no answer to those questions; it is conclusive evidence of what the company had a right to do, but it is no evidence of what in fact it was doing. Whether under its charter defendant could lawfully engage in the street railroad business is a question between the State and the defendant ; it is not in this case.

If, therefore, a corporation and its servants, who' as a matter of fact are engaged only in operating a street railroad, are not covered by the fellow-servant statute, then the fact that the ■ charter of the corporation authorizes it to own and operate a trunk line commercial railroad will not bring them within the statute, nor estop the corporation from showing the fact. The facts of this case afford an illustration of this principle. The evidence shows that from Sixth to Forty-first street, a distance perhaps of three miles, through a densely populated portion of the city, this defendant operated its cars over the same tracks over which the Suburban company operated its cars, and the cars of both companies were operated in the same manner; the only means by which the cars of one company could be distinguished from those 'of the other, was that the defendant’s cars were red while those of the Suburban company were yellow. It was against a yellow car that this car of defendant’s was crushed, inflicting the injuries on the plaintiff. It could just as well have been the yellow car that was crushed against the other, and the conductor of the yellow car injured by the negligence of that motorneer. And suppose that had been the case, could we say that the Suburban company was not liable because its charter called for a street railway, while the defendant in like circumstances was liable because its charter called for a regular commercial railroad? "Where there are two concern engaged in precisely the same business, and both conducting it in precisely the same manner, a statute which would undertake to impose a liability on the one and not on the other, could not be sustained in the face of either our State or our Federal Constitution.

The defendant’s charter is not decisive of this ease.

_ b. The question- remaining to be considered is, does the fellow-servant statute apply to concerns operating street railroads and to their servants engaged in that work?

In pursuing this inquiry we must keep in mind the fact that we are dealing with an act of class legislation that marks off certain employers of men and imposes on them a liability for injuries to their servants under certain circumstances which is not. imposed on other masters, and we must remember that there is a reason that justifies that class discrimination, and that ■a case to fall within the operation of the statute must come within its reason.

It is conceded that the term “railroad” when used in a statute does not always include in its meaning a street railroad. The-learned counsel for appellant in their brief say: “For some purpose the law recognizes several species of railroads and railroad companies, and recognizes a distinction between a ‘railroad’ and a ‘street railroad.’ Statutes using the general term ‘railroad’ may or. may not apply to a ‘street railroad.’ ” That is undoubtedly the law, and,-therefore, when the word “railroad” is used in a statute, if we want to know if it is intended to embrace in its meaning a street railroad, we must look at the connee-. tion in which it is used. -j,

In support of the contention that street railroads are included in the scope of the fellow-servant statute we are referred to St. Louis Bolt & Iron Co. v. Donohoe, 3 Mo. App. 559, and Koken Iron Works v. Railroad, 141 Mo. 228.

Those two cases decide that the statute giving contractors and materialmen a mechanic’s lien on the property of railroad companies for their labor and materials entering into the construction of the roads, applies to street railroad companies. Although the mechanic’s lien law is to some extent class legislation, yet the lines circumscribing the class or classes embraced within it are by no means as closely drawn as in the statute now in question. There was no reason seen in those cases for a legislative policy that would give a mechanic or materialman who should contribute to the building of an ordinary commercial railroad a lien for the value of his work or materials, and not give a like remedy to men who should build or furnish materials to build a street railroad.

In the first of those cases, the court per Bakewell,, J., said: “It is also a fact, that acts of the Legislature may be passed, and that sections of certain laws are to be found in which railroads are spoken, of, and when it is quite clear, nevertheless, that street railroads are not meant.” But after recognizing that such distinctions existed, the court, with reference to the mechanic’s lien statute then in hand, said: “We can see no reason for giving the remedy provided in this act in the case of one railroad which would not equally apply to every other railroad. ’ ’ That is to say, that the reason upon which that statute was founded was in every way as applicable to one kind of railroad as to another. In the second of those two cases, Koken Iron Co. v. Railroad, which was also a mechanic’s lien case, this court referred to the first case with approval and per Barclay, J., said: “When we bring into view the various statutes affording liens for materials or labor furnished for the improvement of land, and consider the broad objects sought by such legislation, it seems clear that street railroads were not intended to be exempt from liability to respond to such lien claims in a proper case.”

The first of those cases was decided a good many years ago when the only street railroads in the city were horse railroads, and it was a horse railroad that the court was discussing. The court saw no difference between a horse railroad and an ordinary commercial railroad so far as the mechanic’s lien law was concerned, and we see none, but if that case is authority for construing the fellow-servant statute to include street railroads it would be equivalent to saying that the reason upon which the fellow-seervant statute is founded applies as well to horse railroads as to other railroads.

Appellants’ cause in this court has not lacked for ability and industry of counsel. They have favored us with three separate briefs, showing zealous research and learning, yet they have given us on this point reference to only those two cases. They refer also to section 1163, Revised Statutes 1899: “The term ‘railroad corporation’ contained in this chapter shall be deemed and taken to mean all corporations, companies or individuals now owning or operating or which may hereafter own or operate, any railroad in this State.”

But that section of the statute does not reach this question.

It is conceded that the defendant is a railroad corporation and that it is operating a railroad, but the contention is that the kind of railroad it is operating is not the kind referred to in the fellow-servant statute. The section just quoted throws no light on that subject. We have a statute, section 1953, Revised Statutes 1899, making it a felony to place an obstruction upon, or to tear up, a railroad track, with intent to obstruct the passage of a car or cars thereon, and under that statute men have been convicted with the affirmance of this court for attempting to blow up with dynamite a passenger car on a street railroad. [State v. Brennan, 164 Mo. 487; State v. Northway, Id. 513.]

It is also made a misdemeanor (sec. 1956) to throw a stone or other missile into or at a train or car or locomotive, and our St. Louis Court of Appeals has held that the offense was committed by throwing a stone at a car on a street railroad. [State v. Lang, 14 Mo. App. 247.]

Although those are penal statutes and therefore to be strictly construed, yet with the strictest construction is impossible to see any sound reason why they should not apply to persons maliciously threatening the lives and safety of passengers in a street car as well as in a car on any other railroad. The danger against which those statutes were aimed was not that which might result from mismanagement within, but from felonious assault without. The danger to the life of the passenger from such source in the street car is exactly of the same nature as that to the life of the passenger on the car of a commercial railroad; the difference, if any, is only in degree, and such difference is not obvious.

But neither the mechanic’s lien law nor the penal statutes just quoted rest for their constitutionality on such narrow grounds as does the fellow-servant act — grounds that were earnestly contested until the question was finally decided.

The foregoing are the only Missouri decisions to which our attention has been drawn that can be said to bear on the question at all, and they are clearly distinguishable from the case at bar.

Before persons or corporations can be marked out for class legislation there must be in them or in their business or property some peculiar characteristic that, in the judgment of the lawmakers, justifies the distinction. [State v. Loomis, 115 Mo. 307.] An act of class legislation, to stand in the face of the Constitution, must include all who belong to the class, not all who bear similarity in some characteristic to those included, but all who can not be distinguished from them in that particular characteristic which justifies the act. And it must include none who do not belong to the class, for if the Legislature must resort to the peculiarity of the business in which corporations operating steam railroads are engaged to find justification for the act in the eyes of the Constitution, it must limit the act to those in whose business is the same peculiarity found. When the validity of such an act is in question the courts will look into the nature of the class to see if it possesses peculiar features which might reasonably call for legislative action, but beyond that they will not interfere with the policy of the Legislature.

In the statute we are now considering the Legislature has marked out railroad corporations owning or operating railroads, and their employees engaged in the operation of their railroads, and has made a law applicable to them as a class. We must look into the nature of the business thus distinguished and ascertain what there is in it that justifies the act and what object the Legislature had in view in making the law; then if we find that the street railroad business is of the same nature and the men engaged in that business are within the class intended by the Legislature we must decide this case in appellant’s favor.

In 1874 Kansas enacted a fellow-servant law applicable to railroad corporations alone, and very similar to our Act of 1897. The constitutionality of the act was contested upon the ground that it was class legislation, but the Supreme Court of the United States in Railroad v. Mackey, 127 U. S. 205, in deciding the question, said: “But the hazardous character of the business of operating a railway would seem to call for special legislation with respect to railroad corporations, having for its object the protection of their employees as well as the safety of the public. The business of other corporations is not subject to similar dangers to their employees, and no objections, therefore, can be made to the legislative act on the ground of its making an unjust discrimination.” There was no question in that case as to the application of the statute to any other than a corporation operating an ordinary commercial railroad. What is there said of the peculiar hazard of the business to justify the statute, refers to commercial railroads.

In 1887 Minnesota enacted a fellow-servant statute of which ours is almost a literal copy. The Supreme Court of that State, in June, 1895, had for decision the very question now before us, in Funk v. St. Paul City Ry. Co., 61 Minn. 435. As the decision of that court construing its statute was rendered nearly two years before our statute, in almost the same words, was enacted, we may presume that our Legislature was aware of the interpretation that court put upon it. That court in two able opinions in the case held the statute did not include street railroads. The court, per Btjok, J., said: “It is a matter of common knowledge that street cars operated by cable or electricity are more readily managed than those operated by steam, where long passenger and freight trains, with their weight and momentum, are not so easily controlled. Street cars are generally run separately, rarely with more than two or three coupled together, and there is but little danger of collision. They do not run so rapidly, their movements are easily and quickly checked, and the roadbeds are constructed upon level or graded streets, without deep cuts, and generally lighted. Nor do street railways carry freight. The greatest railroad hazard and danger of personal injury to railroad employees arises from operating freight trains. . . . Especially is the danger in coupling freight cars entirely absent.” And in the same opinion it is said: “If ive were to hold that the term ‘railroad’ in the law of 1887 applied to street railways because the word is broad enough to cover all roads constructed of iron or steel rails for wheels of cars to run upon, we see no reason why it should not be so construed whenever found in other legislation of this State.” Then the court goes on to mention some of the requirements of other statutes in that State referring to railroads which it is manifest were not designed to apply to street railroads. And the same is true of our statutes in general relating to railroads. In a separate concurring opinion by Mitchell, J., in that case, it is said: ‘ ‘ The difference in conditions affecting the risks to which employees are exposed is sufficiently substantial to authorize the Legislature to make the law applicable to ordinary commercial railroads alone, and furnishes, in my judg-. ment, ample reason for concluding that they so intended, and that they used the word ‘railroad’ in its ordinary popular sense, and in the sense in which they themselves had generally used it .in other statutes.”'

We have felt justified in quoting at length from the opinions in that case because they were dealing-with precisely the same question that is now before us and construing a statute of their own which we afterwards copied. That is the only case to which we- have been referred where the question as to whether street railroads were included in a fellow-servant act like ours, was decided, but there are many cases, referred to in the briefs of counsel, arising under other statutes, in which the distinction between railroads and street railroads are drawn, and the general doctrine runs through them all that the term “railroad” does not include “street railroad” unless so expressed or necessarily understood from the context; that as a rule, the term means ordinary commercial railroads only, and it is the exception when it means street railroads.

Ill Arkansas they have a statute authorizing a city to grant the right of way through its streets “to any railroad company,” but the statute requires the railroad company to pay the property-owners the damages they may sustain thereby. In Williams v. City Electric Street Ry. Co., 41 Fed. 556, it was decided that the provision of the .statute requiring damages to the property to be paid did not apply to the owners of a street railroad. The court, per Card-well, J., said: ‘ ‘.The 'difference between street railroads and railroads for general traffic is well understood.”

In Iowa a statute made a judgment against “any railway corporation” for injury to persons or property, a lien superior to that of a mortgage. But it was held (Manhattan Trust Co. v. Sioux City Cable Ry. Co., 68 Fed. 82), that it did not apply to a street railroad company. Mr. Justice Shiras delivered the opinion of the court in which he said: “It can not be questioned, on the one hand, that a company engaged in operating street cars upon lines of rails laid down along the streets of a town or city, for the •transportation of passengers, is, in one sense, a railway corporation, nor, upon the other hand, that there is a marked and recognized distinction between street railway lines and those engaged in the general passenger and freight traffic of the country.”’

In Oregon a statute gave the right to condemn land to “all railway corporations,” but it was held that that did not include street railway companies. [Thomson-Houston E. Co. v. Simon, 20 Ore. 60.]

Iowa adopted a fellow-servant law applicable only to railroad companies in 1862 and the Iowa court has recognized the narrow constitutional ground on which the statute stands and has been careful to keep it on that ground. In Deppe v. Railroad, 36 Iowa 52, the court said: ‘ ‘ The manifest purpose of the statute was to give its benefits to employees engaged in the hazardous business of operating railroads. "When thus limited it is constitutional; when extended further it becomes unconstitutional.” The peculiar hazardous business of operating railroad trains, distinguished from other kinds of business, as the ground upon which the statute is founded, is emphasized in other eases in the same court. ■ [Schroeder v. Railroad, 41 Iowa 344; Stroble v. Railroad, 70 Iowa 555; Butler v. Railroad, 87 Iowa 206; Larson v. Railroad, 91 Iowa 81; Akeson v. Railroad, 106 Iowa 54.] Although the question of'the applicability of the fellow-servant statute to street railroads does not seem to have come before the Iowa court, yet what is said in those cases' as to the purpose of the statute leaves us to infer that it would place men engaged in operating street cars outside of the pale of that statute.

It is not the mere fact that men engaged in operating railroads are subjected to hazard that has called forth the legislative action, for men to whom no such protection is afforded are engaged in other kinds of business that are hazardous to as great or greater degree, as for example some kinds of mining, tunneling, etc., but it is the peculiar nature of the hazard incident to the railroad business that makes the foundation of this statute. Eeference to this peculiarity runs through all the cases sustaining the validity of the fellow-servant statutes. In Railroad v. Ellis, 165 U. S. 150, Mr. Justice Brewer said: “The business in,which they are engaged is of a peculiarly dangerous nature, and the Legislature, in the exercise of its police powers, may require many things to be done by them in order to secure life and property. Fencing of railroad tracks, the use of safety couplers and a multitude of other things easily suggest themselves.” In Lavallee v. Railroad, 40 Minn. 249, the court said: “ The ^frequency and magnitude of dangers to which those employed in operating railroads are exposed; the difficulty, sometimes impossibility, of escaping from them with any amount of care when they come; the fact that a great number of men are employed, co-operating in the same work, so that no one of them can know all the others, their competency, skill and care, so that he may be said to voluntarily assume the risk arising from want of skill or care by any one of the number — are 'a sufficient reason for applying the rule of liability on the part of the employer to the employee so employed different from that ordinarily applied between master and servant. But no just reason can be suggested why such difference should be founded, not on the character of the employment, nor of the dangers to which those employed are exposed, but on the character only of the employer.” In Johnson v. Railroad, 43 Minn. 222, the court was considering what employees were within'the scope of the fellow-servant statute, and said: “Therefore, after mature consideration, our conclusion is that, if any limitation is to be placed by the courts upon the application of this statute (and on constitutional grounds there must be) the only one which will furnish any definite or logical rule is to hold that it only applies to those employees who are exposed to the peculiar hazards incident to the use and operation of railroads, and whose injuries are the result of such dangers.”

Men engaged in the operation of street railroads are exposed to hazards, but not to the peculiar hazards to which men engaged in operating ordinary commercial railroads are exposed, and which have made them a class for special legislation. In 1897 when this law was enacted there were still some street railroads in this State operated by horse power. If the law applies to street railroads at all it applies to street railroads of all kinds and if it applies to them now it applied to them when it was first enacted, and if so, then there was no difference in its application to the driver of a horse car and a brakeman on a freight train. There are employ-merits attended with even greater hazard than the operating of a railroad, but men engaged in those employments are not included in this class because the hazard is not of the same character. And there' are men in the employ of railroad corporations who are not within the class, because they are not engaged in operating the railroad. Thus the lines around the class are drawn and men who do not fill the description are not within those lines.

Running through all our statutes on the subject there is an obvious distinction shown between railroads and street railroads. No one can read article 2 of chapter 12, Revised Statutes 1899, and gather the idea that it has any reference to street railroads. Then follows article 3 which relates to street railroads only. The very fact of the frequent use of the term “railroad” in our statutes in such .connection as to indicate that the Legislature understood that it would be taken as a matter of course to mean an ordinary commercial railroad, shows that ’ the usual use of the word is with that meaning, and when some other' meaning is intended some additional word is used. Thus section 1180, Revised Statutes 1899: “It shall be the duty of every street railway company or corporation operating a street railway across the tracks of a railroad company to bring its cars to a full stop at least ten and not more than twenty feet before reaching the tracks of the railroad company. And it shall be the duty of the conductor, or some other employee of the street railway company, to go forward to the tracks of such railroad company for the purpose of ascertaining whether a train is approaching such crossing.” In that connection the word “railroad” is brought into sharp contrast with the words “street railway” and the Legislature took it for granted that any one reading the section would understand that “railroad” meant commercial railroad and therefore did not add any word of qualification or explanation.

In the Laws of 1897, page 96, is this fellow-servant law, in which the term, “every railroad corporation” is used, and, immediately following on the same page is another act in these words: ‘ ‘ The railroads of this State are required to carry peddling’ cars of watermelons or cantaloupes, strawberries,, blackberries and other perishable fruits,” etc. The word “railroads” in the latter act is used as unqualifiedly as the word “railroad” in the former, yet the lawmakers took it for granted that every one would know what*the word “railroad” meant. Then on the next page of the same book there is an act having in view the construction of a street railway and the term “street railway” is used.-

The title to article 2, chapter 12, is “Railroad Companies,” that to article 3 is “Street Railroads.”' Then comes article 4, “Railroad classification— Charges — Commissioners.” The first section of article 4 is: “All railroads in the State of Missouri are hereby' divided into three classes, to be known as class A, class B and class C.” Then follow definitions of the classes, and regulations as to charges for passengers and freight, duties of railroad commissioners, etc. Although the words of that statute are “all railroad corporations in the State of Missouri,” yet manifestly it does not include street railroads.

Article 7 of the same chapter which points out the procedure to be followed in condemning private property for public use, refers in general terms to “any road, railroad, telephone, telegraph or other corporation created under the laws of this State. ’ ’ There, not only is the term “railroad corporation” used in unlimited form, but it is followed by the still more general and comprehensive term, “other corporation created under the laws of this State,” yet no street railroad chartered under article 3 o*f that chapter has ever been accorded the right of eminent domain. The only right of way such corporation can obtain is by grant from the city over its streets or by grant from private owners. [Sec. 1187, R. S. 1899.]

There are many other sections of onr statutes referred to in the briefs of the learned counsel in which the term “railroad” or “railroad corporation”' is used without qualifying words, yet manifestly referring only to commercial railroads, but we will not now discuss them, because this opinion is already too long. In almost every instance where street railroads are intended in our statutes, “street railroads’'’ are named; in every instance where commercial railroads are intended the word “railroads” only is used.

The Fellow-Servant law of 1897 does not designate street railroads by name nor by any words necessarily indicating an intention to include them, and as such companies are neither within the letter nor'reason of the law, it does not apply to them.

This is the view the learned trial judge took of the law and he was correct.

The judgment is affirmed.

Robinson, C, J., Marshall and Fox, JJ., concur; Brace, Gantt and Burgess, JJ., dissent.