I concur in the view that the defendant is not an insurer of the competency of the engineer, and that the employer discharges his duty when proper care is exercised in the employment and selection of the servant.
ON REHEARING.
McAlvay, J.In an opinion written and handed down in this case when it was first before this court, a majority of the justices concurred in a reversal. Ante, 268. Then, as now, the question of importance in the case was the construction of section 3 of Act No. 100, Pub. Acts 1905. Errors of minor importance which were pointed out in the former opinion need not be again discussed. They were not discussed upon the reargument. The question upon the *278construction of the statute is whether by its enactment the common-law rule,that only reasonable care and diligence in ascertaining the qualifications of the engineer are required to relieve from the charge of negligence, has been changed; in other words, whether the enactment was intended to and did impose upon the employer any other or further duty relative to hiring the engineer designated, than rested upon him before it became a law. This provision was first enacted in 1899. (Act No. 57, Pub. Acts 1899.) This act was amended in 1905; many provisions being added. No change was made in section 3 under discussion. The act of 1899 made the violation or omission to comply with any of its provisions a misdemeanor, punishable by fine or imprisonment, or both. By the law of 1905 the same penalties attach for failing to comply with any of its provisions, after reasonable notice given by the State miné inspector. An examination of the entire statute, its positive requirements and its penal provisions, confirms us in the opinion that by it a positive and continuing duty was imposed upon the mine owner or mine operator, and he was made in that respect the insurer of the competency and trustworthiness of the engineer permitted to operate the cages and hoisting devices in all mines in this State. The contrary construction makes this section of no force or effect. It is a remedial statute and should be construed liberally and beneficially. Such construction, however, need not be invoked to discern the plain intent of the legislature to abrogate the common-law rule of reasonable care and diligence and to impose an absolute duty upon the employer.
Since the former opinion reversing this case was filed, a very interesting case decided by the United States Supreme Court has been published, which may be considered as sustaining our reasoning in this case. St. Louis, etc., R. Co. v. Taylor, 210 U. S. 281. The Federal statute construed related to certain drawbars required on freight cars, used in interstate commerce by *279railroads, being the safety appliance act of 1893 (27 U. S. Stat. 531). The court said:
“ The plaintiff in error raises another question which, for the reasons already given, we think is of a Federal nature. The evidence showed that drawbars which, as originally constructed, are of standard height, are lowered by the natural effect of proper use; that, in addition to the correction of this tendency by general repair, devices called ‘shims,’ which are metallic wedges of different thickness, are employed to raise the lowered drawbar to the legal standard; and that, in the caboose of this train, the railroad furnished a sufficient supply of these shims, which it was the duty of the conductor or brakeman to use as occasion demanded. On this state of the evidence the defendant was refused instructions, in substance, that, if the defendant furnished cars which were constructed with drawbars of a standard height, and furnished shims to competent inspectors and trainmen, and used reasonable care to keep the drawbars of a reasonable height, it had complied with its statutory duty, and, if the lowering of the drawbar resulted from the failure to use the shims, that was the negligence of a fellow-servant, for which the defendant was not responsible. In deciding the questions thus raised, upon which the courts have differed (St. Louis R. Co. v. Delk, 158 Fed. 931, 86 C. C. A. 95), we need not enter into the wilderness of cases upon the common-law duty of the employer to use reasonable care to furnish his employé reasonably safe tools, machinery, and appliances, or consider when and how far that duty may be performed by delegating it to suitable persons for whose default the employer is not responsible. In the case before us the liability of the defendant does not grow out of the common-law duty of master to servant. The congress, not satisfied with the common-law duty and its resulting liability, has prescribed and defined the duty by statute. We have nothing to do but to ascertain and declare the meaning of a few simple words in which the duty is described. It is enacted that ‘ no cars, either loaded or unloaded, shall be used in interstate traffic which do not comply with the standard.’ There is no escape from the meaning of these words. Explanation cannot clarify them, and ought not to be employed to confuse them or lessen their significance. The obvious purpose of the legislature was to supplant the qualified duty of the com*280mon law with an absolute duty deemed by it more just. If the railroad does, in point of fact, use cars which do not comply with the standard, it violates the plain prohibitions of the law, and there arises from that violation the liability to make compensation to one who is injured by it. It is urged that this is a harsh construction. To this we reply that, if it be the true construction, its harshness is no concern of the courts. They have no responsibility for the justice or wisdom of legislation, and no duty except to enforce the law as it is written, unless it is clearly beyond the constitutional power of the lawmaking body. It is said that the liability under the statute, as thus construed, imposes so great a hardship upon the railroads that it ought not to be supposed that congress intended it. Certainly the statute ought not to be given an absurd or utterly unreasonable interpretation, leading to hardship and injustice, if any other interpretation is reasonably possible; but this argument is a dangerous one, and never should be heeded where the hardship would be occasional and exceptional. It would be better, it was once said by Lord Eldon, to look hardship in the face rather than break down the rules of law; but, when applied to the case at bar, the argument of hardship is plausible only when the attention is directed to the material interest of the employer to the exclusion of the interests of the employé and of the public. Where an injury happens through the absence of a safe drawbar, there must be hardship. Such an injury must be an irreparable misfortune to some one. If it must be borne entirely by him who suffers it, that is a hardship to him. If its burden is' transferred, as far as it is capable of transfer, to the employer, it is a hardship to him. It is quite conceivable that congress, contemplating the inevitable hardship of such injuries, and hoping to diminish the economic loss to the community resulting from them, should deem it wise to impose their burdens upon those who could measurably control their causes, instead of upon those who are, in the main, helpless in that regard. Such a policy would be intelligible, and, to say the least, not so unreasonable as to require us to doubt that it was intended, and to seek some unnatural interpretation of common words.”
Following this case, and ruled by it, the United States circuit court of appeals for the eighth circuit (sitting at *281St. Louis), on August 22, 1908, in two cases, Judge "Van Devanter speaking for the court, held:
“ The safety appliance law of congress, in the situations in which it is applicable, imposes upon a railway company an absolute duty to maintain the prescribed coupling appliances in operative condition, and is not satisfied by the exercise of reasonable care to that end.” United States v. Atchison, etc., R. Co., 163 Fed. 517; United States v. Denver, etc., R. Co., 163 Fed. 519.
If it be argued that the Taylor Case, supra, is distinguishable from, and not applicable to, the case at bar, for the reason that in the Taylor Case it was possible always to know the height of the drawbars, but in the ease at bar it would be impossible to tell when a competent and trustworthy engineer had lapsed from the required standard, as far as this particular case is concerned, the argument is answered by the record, which shows that no attempt has ever been made to comply with the requirements of the statute, and generally that it is a question of the degree of diligence required, to know that the engineer keeps up to statutory standard, a matter for legislative and not judicial consideration. .Relative to the clear, simple, and easily understood words of this statute under discussion, it may also well be said:
“ There is no escape from the meaning of these words. Explanation cannot clarify them and ought not to be employed to confuse them or lessen their significance. The obvious purpose of the legislature was to supplant the qualified duty of the common law with an absolute duty deemed by it more just.”
If an absolute duty is imposed by this statute, then from the violation of its plain prohibitions there arises a liability to make compensation to one who is injured thereby.
It is claimed that this act of 1905 is borrowed from or founded upon the Pennsylvania statute. Whether or not this is so does not appear. In construing a section claimed to be similar to the one in question, the supreme court of *282Pennsylvania held that the statute has not changed the common-law rule that only reasonable care and diligence in ascertaining the qualifications of the engineer is required to relieve from the charge of negligence. Mulhern v. Coal Co., 161 Pa. 270. A comparison of these statutes will be instructive. The Pennsylvania law provides:
“An engineer placed in charge of an engine, whereby persons are hoisted or lowered in any mine, shall be a sober and competent person and not less than twenty-one years of age.” Act No. 170, Laws 1885, art. 12, rule 18.
Óur statute reads:
“ That only a competent and trustworthy engineer shall be permitted to operate the cages and hoisting devices in all coal mines of this State.” Section 3, Act No. 100, Pub. Acts 1905.
These statutes are not similar. The Pennsylvania statute makes no change whatever in the common-law rule of reasonable care and diligence. The word “ employé” might be substituted for ‘ ‘ engineer ” in the first line without changing its legal effect. In case of the injury of a miner by reason of the negligence of this engineer, the doctrine of assumed risk would apply, if it appeared that the employer has used reasonable care and diligence in his selection. The Michigan statute prohibits the employment of any except a competent and trustworthy engineer. Only such an one shall be permitted to operate the cages, etc. From these words we derive our construction that a duty is imposed, from the violation of which a liability arises to compensate the person injured thereby.
The intent of the statute is that this trustworthy and competent engineer who is permitted to operate these cages shall, while his duties call him to do this work, be an engineer in fact as well as by profession, and not at the same time be performing the duties of a fireman or of any other employe, thereby being absent from his engine and having his mind burdened and distracted from the work *283of caring for the lives and safety of the men he lifts from and lowers into the mine. In the case at bar, and the companion case which was reargued at the same time, the so-called engineers were firemen. They were employed as firemen, and during the “shifts’’when they were permitted to operate the cages were working as firemen at the boilers, from which work, in both instances when these accidents occurred, they were called to operate the cages. In the case at bar, the boiler room contains a battery of sis boilers and is separate from the engine room. The fireman Saunders, when notified that the parties were ready to go down, said: “As soon as I throw this fire on.” He did this, and then went to the engine room. Plaintiff and the man with him went into the cage and called: “All right,” and signaled with their lamps. The cage shot up 30 or 40 feet to the top of the tipple, and automatically emptied the men upon the rock dump.
There can be no question in what capacity these men were employed. The testimony of defendant’s principal witness, the chief engineer of the mines, who hired Saunders, shows:
“ In the daytime we had three men — head and tail fireman and the engineer. At night the head fireman [Saunders] shovels coal into the furnaces and looks after the steam. If a man wanted to go down, the head fireman would be called from the boilers to the levers.”
The record shows that but one engineer was hired at this mine who could be classed as a “competent and trustworthy engineer.” He worked in the daytime, when only coal was handled, and operated the cages like magic, as defendant’s counsel has stated it. The miners, for the protection of whose lives and interests this law was enacted, were turned over to a fireman to practice upon. The testimony of defendant’s chief witness who hired Saunders shows further that he did not know how to operate the cages and run the engines at the time he was hired, nor until three months afterwards, when, this *284witness says, "I showed him how to operate the cages and run the engines.” He was first put on as assistant fireman for three months, and then advanced to head fireman. While it is true that this witness stated that the one man he inquired of concerning Saunders’ qualifications' said that he had previous experience as an engineer, and had run a locomotive, yet the testimony of this witness shows that he was not a competent and trustworthy engineer when hired and was not accepted or treated as such, and the general superintendent testifies that there never was a regular engineer on the night shifts. The defense in this case does not claim, either in the record or upon the argument, that Saunders ever was an engineer. It is urged that he was simply an employé and was referred to only as such. This is referred to for the purpose of showing that defendant has absolutely disregarded the provisions of this statute. In fact, the whole testimony of the chief engineer shows that in his opinion an engineer was not necessary to perform this work, that it needed but very little experience by any ordinary man, and that the operator need have no knowledge as to the construction of, or technical knowledge concerning, engines. Whatever may be the differences of opinion as to the continuing duty of the employer relative to the competency of the engineer, all of the members of this court will agree that the statute requires that only a competent and trustworthy engineer may be hired to do this work. It follows, therefore, if our conclusion as to the record made by defendant is correct, that defendant did not comply with the statute in that regard, and is liable for damages resulting therefrom.
Further discussion of the question is not necessary. The legislature has thrown certain safeguards around the health, lives, and interests of coal miners. The business at best is extrahazardous. The legislation was required and not unreasonable. With the extra burden which it may possibly put upon the owner or operator, the courts, have nothing to do. Upon the legislature such responsi*285bility rests. Our duty ends with ascertaining and declaring the legislative intent.
We add this to the former opinion in the case, and, for the reasons herein and therein given, hold that the court below was in error, and that the judgment should be reversed, and a new trial ordered.
Blair, C. J., and Moore and Brooke, JJ., concurred with McAlvay, J. Ostrander, J.When this case was first presented in this court (ante, 268), the question being the meaning and effect of the words, ‘‘that only a competent and trustworthy engineer shall be permitted to operate the cages and hoisting devices in all the coal mines in this State,” a majority of the Justices concurred in saying that :
“The legislative intent in providing for the protection of the lives of miners is clearly expressed in this section. The intention is not to allow the employment of any man, and put him at this work to learn his trade as an engineer, but that the man put at this work must be then a competent and trustworthy engineer. Plaintiff had a right to rely upon the performance of this duty by his employer. It is not a question of the care used by the defendant in its selection, if the person selected was not ‘ a competent and trustworthy engineer,’ for the reason that under the statute such is the only selection provided for. This is not an insurance that accidents will not occur, but an insurance that the employé selected is within the class designated by the statute.”
In the minority opinion, attention is directed to a contention made in behalf of the plaintiff to the effect that if the person operating the cages was in fact incompetent and untrustworthy, either or both, plaintiff was entitled to recover, because it was not a good defense for defendant to show that it had no notice or knowledge of such incompetency. With respect to this, three of the justices expressed the opinion that the effect of the statute was *286not to make the employer an insurer of the competency and trustworthiness of an engineer. In the majority opinion, from which the quotation is made, is language which may be, and perhaps ought to be, interpreted as affirming the rule of responsibility of the employer which, is clearly and unmistakably stated in the opinion of Mr. Justice McAlvay, written since the reargument of the case. The manifest propriety of removing doubt, if doubt existed, concerning the force and effect of the majority opinion, was a sufficient reason for granting a rehearing. We have had the benefit of additional briefs, and of an oral argument and have re-examined the case. I have been and am now of opinion that the significant-word in section 3 of the statute is the word “engineer.”' It was the common-law duty of the employer to permit none but a competent and trustworthy person to operate-the cages, to exercise due care in selecting the person and due care in observing him after his selection. See Walkowski v. Consolidated Mines, 115 Mich. 629 (41 L. R. A. 33). The legislature sought to increase the margin of' safety by limiting the right of selection. It prescribed a. class from whom those permitted to operate the cages, shall be selected, and, in so doing, in some degree fixed a. status of capability, of efficiency, for the operators of cages in coal mines. If the qualifying words, “competent” and “trustworthy,” used in this statute, have a greater significance than they would have if used with the word “person” or “boy” or “man,” it is because of' their connection with the word “engineer.” Assuming,, as we must, that, in the absence of these qualifying words, the engineer employed must be both competent and trustworthy, the conclusion announced in the majority opinion, first delivered, is right, because there was testimony tending to prove that the man in charge of the hoisting device-at the time plaintiff was injured was not selected or employed as one of the statute class, that the master did not. test or measure him by a standard applicable to engineers.. *287The court below having directed a verdict for defendant, reversible error was, upon this theory, established. I am still of opinion that, for the reasons stated, the judgment should be reversed and a new trial ordered.
I do not, however, concur in the view that the master is made an insurer of the competency and trustworthiness of the engineer, and I think this case and the one of St. Louis, etc., R. Co. v. Taylor, 210 U. S. 281, distinguishable. The arguments in favor of a readjustment of the relations of master and servant in such wise that employés suffering injuries in the course of employment shall not, as often as they have done, bear the entire resulting hardships and burdens, appeal, it may be assumed, as well to judges as to others. Whether the burdens shall immediately rest upon the employer, or partly upon the employed, whether they shall be ultimately cast upon the whole community, or shall be insured against by contributions made by the employer and employed, are questions of policy, interesting indeed, but in no sense judicial. Assuming the power of the legislature to impose the burden, in a particular class of cases, upon the employer, whether it has exercised the power is a question of interpretation or of construction of the legislative enactment. Mere interpretation of this statute does not support the conclusion that such a burden is imposed. Undoubtedly the words employed are clear, their legal effect is not necessarily the one contended for by the plaintiff. It goes without saying that by the rules of the common law, which the courts are bound to apply, which by the terms of the Constitution itself are in force in this State, negligence on the part of the master, causing or contributing to the injury of the servant, must be established before a servant, not himself negligent, can require the master to indemnify him for injuries received in the course of the employment; and negligence, either of master or servant, involves some want of prudence, some failure to take care, resulting in what might have been, by due care, prevented. The stat*288ute here in question gives an injured employé no right of action against his employer. It is by force of a rule of the common law that in such cases one injured by failure to perform a statute duty, imposed upon another for his benefit, may have his action for a breach of the duty. His action is in essence, as it is in form, an action ex delicto — for a wrong, a tort. The term “duty,” in the law. of negligence, implies an obligation which the one who owes it can discharge. This is true whether the duty is oris not called a “positive duty” or a “nondelegable duty ” of the master.
I have attempted to show that section 8 of this statute does not need, in order to give it effect, the construction which is put upon it by Mr. Justice McAlvay. In any event, treated as a statute imposition of a duty for the benefit of the plaintiff, the duty can be measured only by common-law rules. Unlike the one considered in St. Louis, etc., R. Co. v. Taylor, supra, this statute furnishes no standard of performance. The essence of the reasoning of the court in that case is that the statute there in question created a legal standard with which equipment of cars was required at all times to conform. Companies were not commanded to use safe and trustworthy cars. The command was the positive one to at all times use standard cars and to use no others. The court declined to entertain a rule according to which the questions whether cars were reasonably up to the statute standard, and whether the railroad companies or their employés were responsible for deficiencies, should be determined by successive juries in successive actions. By what rule or standard shall a competent and trustworthy engineer be selected ? And by what rule shall the master discover that his engineer has become temporarily or permanently inefficient ? There is but one rule, and that is the rule of due care. Unless this rule may be employed, the master cannot discharge his statute obligation. In my opinion it is a rule of necessity; but, in any event, none other be*289ing declared, it is the rule implied by the legislation itself.
Grant and Montgomery, JJ., concurred with Ostrander, J.