(Specially concurring). I specially concur in the affirmance of this case, because the majority of the court does not agree with my personal views on the classification in the statute (section 1645, Hemingway's Code; chapter 215, Laws of 1912, amending section 1985, Code of 1906), and because the majority of the court does not agree with my view that moving the car by means of pinch bars in the manner described in Judge ANDERSON'S opinion constitutes a use of lever power within the meaning of the statute, and because I cannot bring my mind to accept the opinion of the dissenting judges as to the meaning of this statute. It is true that if I voted my views for reversal and joined with the dissenting judges it would result in a reversal of the judgment, but in my opinion a judge should not join in a vote of reversal unless a majority of the court agree on the rule of law applicable to and controlling the decision of the case. A judge may rightfully vote to affirm a case, although each judge voting to affirm may vote so to do for a different reason, because the ruling of the trial judge should stand until the majority of this court disagrees with him. In order that my position may be understood and combatted on a suggestion of error, if it is wrong, I will set it forth in a concurring opinion, and a convincing suggestion of error will receive a cordial welcome.
The statute before the amendment of 1912 (section 1985, Code of 1906) provided:
"In all actions against railroad companies for damages done to persons or property, proof of injury inflicted by the running of the locomotives or cars of such company shall be prima-facie evidence of the want of reasonable skill and care on the part of the servants of the company in reference to such injury. This section shall also apply to passengers and employees of railroad companies." *Page 738
This statute was upheld by the United States supreme court as being constitutional in the case of Mobile, J. K.C.R. Co. v.Turnipseed, Adm'r, 219 U.S. 35, 31 S. Ct. 136, 55 L. Ed. 78, 32 L.R.A. (N.S.) 226, Ann. Cas. 1912A, 463, affirming, M., J. K.C.R. Co. v. Hicks, 91 Miss. 273, 46 So. 360, 124 Am. St. Rep. 679 in which this court upheld the classification of the statute as then written on the theory that the operation of railroads was so inherently dangerous and different from other businesses as to warrant a separate classification for them. See, also, Easterling Lumber Co. v. Pierce, 235 U.S. 380, 35 S. Ct. 135, 59 L. Ed. 279. It will be noted from the above section 1985, Code of 1906, that there was nothing said with reference to how the locomotives or cars were propelled. If the injury was inflicted by the running of locomotives or cars, then the presumption of want of reasonable skill and care arose without reference to the motive power which moved the cars and seemingly applied to every kind of movement of a car.
The legislature in 1912, by chapter 215, Hemingway's Code, section 1645, amended the statute, section 1985, Code of 1906, to read as follows:
"In all actions against railroad corporations (and all other corporations, companies, partnerships and individuals using engines, locomotives, or cars of any kind or description whatsoever, propelled by the dangerous agencies of steam, electricity, gas, gasoline or lever power, and running on tracks), for damages done to persons or property, proof of injury inflicted by the running of the engines, locomotives or cars of any such railroad corporations (or such other corporation, company, partnership or individual) shall be prima-facie evidence of the want of reasonable skill and care of such railroad corporation (or such other corporation, company, partnership or individual), in reference to such injury. This section shall also apply to passengers and employees of railroad corporations (and of such other corporations, companies, partnerships and individuals)," *Page 739
The amendments are indicated by the parentheses (which parentheses, of course, are not in the statute itself). I think that resorting to the familiar rule of interpreting statutes by a consideration of the old law, the mischief and the remedy, that it was the intention of the legislature to apply the provisions contained in the above parentheses to other corporations than railroads as a reasonable ground of classification, and that it did not intend to change the law as it formerly stood as applied to railroads themselves. But as a majority of the court does not agree with this view, I feel that I am compelled to surrender it, and construing the statute as though it had originally stood as it now stands, I think we are bound to hold that the cars and engines must be propelled by the agencies described in the statute, and that these agencies, coupled with the running on tracks, constitute a classification, and we cannot ignore the provision of the statute, "propelled by the dangerous agencies of steam, electricity, gas, gasoline or lever power," and, as I see it, the opinion of the dissenting judges makes the presumption arise without reference to the agencies actually used, but apply these words as descriptive of the person or corporation; and this I think cannot be done without destroying the constitutionality of the statute. The statute to be constitutional, in my view of the law, requires that the classification have reference to the operation or the business being done, and may not be applied merely to persons of a particular name or a particular description.
In the case of Southern Railway v. Greene, 216 U.S. 400, 30 S. Ct. 287, 54 L. Ed. 536, 17 Ann. Cas. 1247, the supreme court of the United States dealt with this subject of classification, and in 216 U.S. at page 417, 30 S. Ct. 291, 54 L.Ed. page 541, said:
"It remains to consider the argument made on behalf of the state of Alabama, that the statute is justified as an exercise of the right of classification of the subjects of taxation, which has been held to be entirely consistent *Page 740 with the equal protection of the laws guaranteed by the Fourteenth Amendment. It is argued that the imposition of special taxes upon foreign corporations for the privilege of doing business within the state is sufficient to justify such different taxation, because the tax imposed is different, in that the one imposed on the domestic corporation is for the privilege of being a corporation, whereas the one on the foreign corporation is for the privilege of such corporation to do business within the state. While reasonable classification is permitted, without doing violence to the equal protection of the laws, suchclassification must be based upon some real and substantialdistinction, bearing a reasonable and just relation to the thingsin respect to which such classification is imposed; and classification cannot be arbitrarily made without any substantial basis. Arbitrary selection, it has been said, cannot be justified by calling it classification. Gulf, C. S.F.R. Co. v. Ellis,165 U.S. 150, 155, 165, 17 S. Ct. 255, 41 L. Ed. 666, 668, 671;Cotting v. Kansas City Stock Yards Co. (Cotting v.Goddard), 183 U.S. 79, 22 S. Ct. 30, 46 L. Ed. 92; Connolly v.Union Sewer Pipe Co., 184 U.S. 540, 559, 22 S. Ct. 431, 46 L. Ed. 679, 689." (Italics ours.)
The prima-facie statute is a wholesome piece of legislation, and I am unwilling to place upon it any construction which shall endanger its constitutionality. All statutes should receive a construction, where the language permits it, that will make the statute constitutional.
I think that the operation of the car in the manner indicated in Judge ANDERSON'S opinion was an operation by means of lever power within the meaning of the statute. The operation of cars on railroad tracks by means of pinch bars has existed, I think, throughout railroad history and will doubtless be continued in the future. This pinch bar is within every definition of a lever. A point of the pinch bar is placed under the wheel of the car, another point is placed upon the track, the bar having *Page 741 a long handle by means of which a man of ordinary weight and strength can so multiply his man power as to move a heavily loaded freight car on a level track, and even with the necessary help such loaded car can be moved upgrade. A car may also be controlled and moved by means of manipulation of the brakes, especially coupled with the force of gravity. By releasing the brake a car may be set in motion, and the motion may be checked and suspended by application of the brake. The brake is operated on the principle of the lever as the definitions of the dictionaries and the explanation of lever operation in any treatise on physics will show. The legislature was not, in my opinion, confining its thought and attention to hand cars. In fact, the old hand cars had been practically abandoned on all of the leading railroads prior to the enactment of the statute. The legislature must be assumed to know of the current practices and conditions of industry, including the full operation of all railroads and their instrumentalities, and the statute here involved, being a remedial statute, ought to receive a liberal construction rather than a restricted one. I cannot believe that the legislature intended to make the statute a more restricted one as applied to railroads than it was under the Code of 1906.