Dissenting Opinion.
GANTT, J.This is an action for damages growing out of personal injuries alleged to have been suffered by the plaintiff through the negligence of defendant, a railroad company organized under the laws of this State and operating a railroad from the corner of Sixth and Locust streets in the city of St, Louis to Meramec Highlands, a point on the Meramec river in St. Louis county in this State.
The petition alleges that plaintiff was a conductor and employee of defendant on said railroad on January 27, 1898, and on said day one Jesse B. Horn was also an employee of said railroad company as motor-. *82neer of car number 318 of which plaintiff was Conductor; that said car was propelled by electricity; that in operating said car it was the custom when a ear reached the eastern terminus of said road at Sixth and Locust streets in St. Louis to change the operating machinery so as to return said car westwardly over the tracks on which it had come; that the motorneer would bring his car to a standstill and turn off the electric current from the machinery. The conductor then would release the rope which held the trolley-pole to the wire, alight from his car, pull down the trolley-pole from the overhead wire, and by means of a rope which was attached to one end of the' trolley-pole move the trolley-pole around to the opposite end of the car, and again by releasing the rope, raise the trolley-pole to the overhead ‘wire, and while the conductor was so engaged the motorneer was required to keep the power or electric current turned off so that the car would remain stationary, but that at the time and on the day mentioned in the petition, while plaintiff as conductor was carrying the trolley-pole around to the opposite or east end of said car, Horn, the motorneer, negligently failed to withhold the electric current from the machinery, but did, without the knowledge of plaintiff and while plaintiff was reversing the trolley-pole, so arrange the machinery as to admit of the entrance of the electric current from the overhead wire into the machinery of the car and while the said car was thus arranged the plaintiff, unaware of this negligent act of Horn,. raised the trolley-pole to the overhead wire, thus connecting the car with the overhead wire and immediately the electric current, by reason of the negligent act of Horn as aforesaid, entered the machinery of the car and caused it to suddenly bound forward with great force and violence against and upon plaintiff, whereby plaintiff was knocked and forced upon and against the platform of another of defendant’s cars, then and there stand*83ing upon the track in front of said car; that his right hand was crushed and mashed so that he has lost the use of it permanently; that his right leg was crushed and disabled forever; from all of which injuries he is permanently disabled, to’ his damage in the sum of twenty-three thousand dollars.
The answer contains first, a general denial, second, a plea of contributory negligence, and third, the following special defense:
“Said defendant, further answering said petition, states that it was on the occasion in question, is now, and has been for a long time, a street railroad corporation only, organized and existing under the laws of the State of Missouri for the purpose only of operating, and it was, has been and is only operating a street railroad by electricity for the carriage of passengers, and said railroad company was neither or-, ganized nor incorporated for operating a railroad by steam, nor has it ever operated a railroad by steam, nor was it on the occasion in question, nor did it then nor has it at any time since, operated any other than a street railroad for the carriage of passengers on its said line beginning at or near Sixth and Locust streets in said city of St. Louis and running in a westerly direction over various streets in said city to the western boundary of said city. That on the occasion in question the agents and employees of defendant named in plaintiff’s petition and charged with negligence in the performance of their duties, to-wit, James B. Horn, motorman, and ----Hogan, were the fellow-servants of the plaintiff in and about the operation of the car of which the said plaintiff was conductor, and which was one of the cars that the said defendant used in the operation of its said street railroad on its line of street railroad aforesaid, and said defendant further says that the said plaintiff, by virtue of his employment as fellow-servant of said Horn and Hogan, assumed the risk on his part of any neg*84ligence on the part of said agents or employees of defendant, or either of them, as fellow-servants of him, the said plaintiff, and that if/on the occasion in question, the plaintiff was injured in consequence of any negligence of either said Plorn or said Hogan, the said plaintiff by virtue of his said employment and by virtue of the said Horn and Hogan being his fellow-servants in the operation of said car at the place where he was injured and on the occasion in question, assumed the risk of said negligence by virtue of the nature and character of' his, the said plaintiff’s employment by said defendant, and said defendant is not liable to said plaintiff for any injury caused on the occasion in question by any negligence, if any, which the said Horn or the said Hogan was guilty of, causing the injuries complained of by said plaintiff in his petition. ’ ’
Plaintiff replied denying- all- the new matter set up in the answer.
There was substantial evidence tending to prove the allegations of the petition as to the manner in which the injury to plaintiff occurred. Plaintiff also offered and read' in evidence the articles of incorporation of defendant showing it was organized under the general railroad laws of this State known as article 2, chapter 42, Revised Statutes 1889, and evidence, showing its proceedings as such to condemn 'lands for a right of way in St. Louis county. Also-evidence of the extent and nature of his injuries.
At the close of plaintiff’s case the defendant prayed and the court gave an instruction that under the pleadings and evidence the verdict must be for defendant, and thereupon plaintiff took a nonsuit with leave to move to set the same aside, and afterwards and within four days moved the court to set aside said nonsuit, and among other things assigned as error the giving of said instruction, which motion the *85.court overruled, and thereupon plaintiff perfected his appeal in due form to this court.
I.
This record requires a construction by this court of the scope and effect to be given to an act of the Legislature of this State, approved February 9, 1897, and commonly known *as the Fellow-Servant act.
It is entitled “An Act to define the liabilities of railroad corporations in relation to damages sustained by their employees, and to define who are fellow-servants and who are not fellow-servants, and to prohibit contracts limiting liability under this act.”
The first section is as follows:
“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.”
By sustaining the demurrer to plaintiff’s evidence ■the trial court obviously held that defendant was operating a street railroad and that the above quoted statute had no application to street railroads; in short that the words, “every railroad corporation owning or operating a railroad in this State, do not mean “every railroad,” but those only which own or operate steam railroads and the word “railroad,” must be restricted to those only who operate their cars in •trains and by steam as the motive power.
That the words of the act “every railroad corporation” are broad enough in themselves to include street and electric railroads, as well as steam railroads, will not be denied; that they are plain, unam*86biguous and comprehensive enough to include all railroads can not be doubted. Prima facie the act applies to street railroads as well as any and all other railroads. [Bloxham v. St. Ry. Co., 29 L. R. A. 507.]
The rule of construction is that where a law is clearly expressed it is the duty of the court to adhere to the literal expression unless such construction would lead to a palpable absurdity.
Thus in Smith v. State, 66 Md. 215, a married woman was sued jointly with her husband and she pleaded specially her disability of coverture, to which plaintiff demurred. This brought the. Act of 1872 of that State before the court for construction, which provided that “any married woman may be sued jointly with her husband on any bond,” etc. The contention was that the act did not apply to official bonds, but said the court: “Whatever latitude may, at one time, have been assumed by courts in the construction of statutes, the more recent cases have established the rule that when the language of a legislative enactment is clear and unambiguous, a meaning, different from that which the words plainly imply, can not be judicially sanctioned. [Citing Green v. Wood, 7 Adolp. & E. 185; Woodbury v. Berry, 18 Ohio 462; United States v. Ragsdale, Hemp. 497; Bosley v. Mattingly, 14 B. Mon. 89.] When the Legislature says she may be sued on any bond executed jointly with her husband, can the judicial department of the government undertake to say that the lawmakers meant she shall not be sued on some bonds executed jointly with her husband? Such a determination could only be reached by a species of judicial legislation not sanctioned by an authority, and extremely dangerous if once established as a precedent.”
In Woodbury v. Berry, 18 Ohio 458, the Supreme Court came to the conclusion that certain words had by accident or oversight been omitted from an- act, but notwithstanding this they say, “ita lex scripta esL *87The language as it stands is clear, explicit and unequivocal.” “It is our legitimate function to interpret legislation, but not to supply its omissions.” [Citing Sedgwick on Stat. and Const. Law, 231.]
In Bradbury v. Wagenhorst, 54 Pa. St. 180, the statute required a copy of . the instrument sued on to be filed with the clerk before judgment should be entered. It was contended that there was no necessity for a copy of claims since the mechanic’s lien law required a bill of particulars to be filed in order to make a lien but the court answered, “Whatever may have been the legislative thought, no ambiguity, exists in what they have said, and when the words of a statute are plainly expressive of an intent, the interpretation must be in accordance therewith.”
So in Bennett v. Worthington, 24 Ark. 487, it was urged that the statute of limitations ought not to run during the time the courts were closed on account of the war between the States, but the Supreme Court held that as no such exception was included in the statute, the court could not enforce the equity in behalf of plaintiff, saying, “The correct rule to be extracted from the authorities is, that where the will of the Legislature is clearly expressed, the courts adhere to the literal expression of the enactment without regard to consequences, and every construction derived from a consideration of its reason and spirit should be discarded.”
At the time this law was enacted there was a general provision in our statutes defining the term “railroad corporation,” as follows:
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.”
*88But it is plausibly and-.ably contended that in the various laws of this State governing railroad corporations, the word “railroad” has a well-defined and clearly-understood meaning and is never confounded with “street railroad,” and various sections of the general railroad law are cited to show that they have no reference to street railroads. That there are many provisions of the various acts in regard to railroads which do not apply to street railroads may be and is conceded, but the statement of counsel is entirely too broad when they assume that those laws do not apply at all to street railroads, as an examination of the decisions of this court will clearly demonstrate.
In Koken Iron Works v. Railroad, 141 Mo. 228, it was contended by the defendant, a street railway company, that sections 6743, 6744, 6747, 6754 and 6756, - Revised Statutes 1889, giving a lien for work and material upon the roadbed, depots, rolling stock, station-houses, etc., did not in terms and were never intended by the Legislature -to embrace street railways, but. this court held adversely to its contention saying, “Undoubtedly, much of the language of that law is applicable to railroads operated by steam. Those were the roads to which the act was chiefly designed to apply. But the general terms of the law are also susceptible of application to street railroads, and we find nothing in any part of the enactment to indicate that such application is not intended. . . . Laws of this nature should receive a fair and rational interpretation, and full effect be given to the remedial purpose that constitutes their spirit.”
"The St. Louis Court of Appeals had previously given- those sections the same interpretation in St. Louis Bolt & Iron Co. v. Donohoe, 3 Mo. App. 559, in which Judge Bakewele, speaking for the court, says: “It is 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 where *89it is quite clear, nevertheless, that street railroads are not meant. But we do not see how these facts affect the question here. A. street railroad or horse railroad is none the less a- railroad, because the Baltimore & Ohio road is also a railroad; and where the Legislature cites the term without limitation, it will be taken to use it in its broadest sense, unless it appears from the face of the enactment that it meant-to restrict the word.to one class of railroads or the other.”
But again. Section 1953, Eevised Statutes 1899, makes it a crime to obstruct any railroad, and this court in the cases of State v. Brennan, 164 Mo. 487, and State v. Northway, 164 Mo. 513, held that the term “railroad” was broad enough to include cable and electric street railroads.
The same conclusion was reached by the Supreme Court of' California upon an altogether similar criminal statute (People v. Stites, 75 Cal. 570), and the identical point was again affirmed in Price v. State, 74 Ga. 378, and Com. v. McCaully et al., 2 Dist. Rep. (Pa.) 63. [Milvalle Bor. v. Railroad, 131 Pa. St. 1.]
In Gyger v. Railroad, 136 Pa. St. 104, the Supreme Court of Pennsylvania laid down a very satisfactory rule, to-wit, that “railway” and “railroad” are synonymous and in all ordinary circumstances are to be treated as without distinction, and when either of them is used in a statute and the context requires that a particular kind of road is intended, that kind will be held to be the subject of the statutory provision, but if the context contains no such indication and either of the words are used in describing the subject-matter, the statute will be held applicable to every species of road embraced within the general sense of the word used.
In Eailroad v. Philadelphia, 89 Pa. St. 210, it was held that the word, “railroad” .applied to street railways.
*90Indeed, as pointed ont by Judge Bakewell in St. Louis Bolt & Iron Co. v. Donohue, supra, the first street railroads constructed in the city of St. Louis were constructed under the then existing general railroad corporation laws of this State and it was not until 1866 that the general act concerning corporations was passed authorizing the formation of manufacturing and business companies for the purpose of constructing horse railroads. In Illinois an act passed in 1855 whilst horse railroads were in existence in Illinois giving certain powers to “railroads” was held to include “horse” as well as “steam” railroads. [Chicago v. Evans, 24 Ill. 52.]
These cases sufficiently indicate that it is not accurate to state that the word “railroad” always refers to steam railroads and that when street railways are to be included they are specifically named as such; on the contrary the great weight of authority is that if the context contains no such indication, a statute containing the word “railroad” will be held to include every species of railroad which. is embraced within the general sense of that word.
Looking now more closely to the act we find it is a short remedial act of four sections only, and not a word is in it to indicate that it was the intention of the Legislature to restrict it to steam railroads operating long trains. Being remedial the universal rule is that it should receive a liberal construction to cure the evil which it was intended to remedy. “The old lav, the mischief and the remedy must be kept in mind.” Prior to the enactment of this statute, the course of decision vas that a master in this State was not liable to his servant for injuries occasioned by the negligence of his fellow-servant. For many years counsel endeavored to get this court to change this rule, but the answer was that this was a legislative function; that it was the duty of the court to declare, not to make, the law. It is within the knowledge of all *91of us that this ruling occasioned the passage of this law.
But Counsel urge that the reason of the law would exclude its application to street railways because they say “in the operation of the car two persons only were employed, a conductor and a motorman, and the reason for changing the law was- that steam railroads had a large number of employees operating freight and passenger cars in trains, and there resulted a consequent want of opportunity on the part of the employees to observe and watch their co-employees in the same service and thus discover their negligence and an opportunity 'to quit the service if these negligent co-employees were not discharged.” Doubtless this was one of the reasons, but it can not be that it was the only one, because if it was, if an employee as a fireman closely associated in the same cab with an engineer was injured by the negligence of the latter, it could be urged with the same plausibility that being so closely associated they did not fall within the reason which prompted the passage of the act, to-wit, that they had no opportunity to watch the conduct of each other. There is no such exception written in the law. Under its terms an employee injured by the negligence of another servant of the same company would not be turned out of court because his employment brought him so closely in contact with him that he could observe his conduct. If a fireman or engineer, then, can recover for injuries occasioned by the other whose duties call them together on the same cab, how can it be maintained that a motorman or conductor, operating at different ends of the same car, is not equally entitled to be protected from the negligence of the other ? Moreover, since the application of electricity and the operation -of cars, by cables, it is not true that only one car can be operated, but frequently it occurs that two and three cars are connected in the same train. Neither can it be said that the high *92rate of speed.of steam cars makes it necessary to apply .a different rule, as the modern electric car easily makes from eighteen to twenty-five miles an hour. It is true that the Supreme Court of Minnesota, a-tribunal whose opinions and judgments entitle it to our highest respect, attached great importance to these considerations in Funk v. St. Paul City Ry. Co., 61 Minn. 435. It is proper to remark, moreover, that the Minnesota court based its opinion upon an additional reason. On page 439 of the report it is said: “It is claimed by appellant’s counsel, and not denied by the' counsel for respondent, and such we believe to be the fact, that on February 24,. 1887, when the general law of that year was passed, there were no cable or electric street railways in existence in this State. If so, what was the legislative intent in using the word railroad’ in the law of 1887, to be deduced from the whole and every part of the statute taken together, upon the subject of railroads? When the words of a statute are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and the object and remedy in view. [Potter’s Dwar. St. 194, note 13.] What was the mischief felt which resulted in the passage of this law? Was it a danger known, or one unknown? We must assume that it was dealing with, and acting upon, existing facts within its knowledge. Of course, if the language used was entirely free from ambiguity, and broad enough to include unknown things which might spring into existence in the future, they would be deemed to come within, and be subject to, the evident meaning of the. terms used. ’ ’
Much weight is given by both the learned judges who filed opinions in that case to the fact that in the previous legislation in that State the word “railroad” •had not been applied to street railways. It must be .’apparent that the first reason given, to-wit, that at the time the Minnesota Fellow-Servant Act was passed, *93to-wit, in 1887, there was no such thing as a cable or electric car in Minnesota, could have no force in interpreting our Act of 1897, which was enacted years after our cities and towns in Missouri were gridironed with both systems of street railroads, and therefore our Legislature could not be charged with legislating in ignorance of the character- of such roads, neither has our Legislature nor have our courts made the distinction between “railroads” and “street railroads” that the learned jurists discovered in Minnesota, as we have already shown, and while the history of railroad legislation-in that State may have justified the conclusion reached by that court, the facts upon which that adjudication was bottomed do not and did not exist in Missouri when the Act of 1897 under consideration was passed.
The statute before us has been construed by the St. Louis Court of Appeals in the case of Stocks v. St. Louis Transit Company at the October term, 1902, of said court, and held to apply to street railways,, citing with approval, Rafferty v. Central Traction Co., 147 Pa. St. 579; City of Clinton v. Street Ry. Co., 37 Iowa 61.
Bland, J., in Stocks v. Transit Co., supra, referring to the contention that by using the word “railroad,” this act must be construed with reference to our general railroad act, pertinently remarks: “The Act of 1897 is not a railroad act, and is not in pari materia with any of the general laws of the State concerning railroads, and for this reason can not be interpreted by them. It is a fellow-servant act, intended for the benefit of the employees of railroad corporations, and designed to place them on the same footing as to the right to recover damages caused by the negligence of their co-employees. The act confers on a class of employees of railroad corporations a right of action which they did not have before and we can see no sound *94reason for confining the benefits of the act to but one class of railroad employees.”
Bnt it is earnestly insisted that-in construing this act we must bear in mind that this is class legislation, and to sustain the constitutionality of the act we must be convinced, in applying it to street railways, that they fall within the reason of the statute, otherwise the act is unconstitutional. This is a grave contention, because if sound it must result tin our holding, not only that the language of this act does not include street railways, but that it would not be in the power of the Legislature even by using the words “street railways” to make them amenable to its provisions.
To sustain their position the learned counsel have recourse to the opinion of the Supreme Court of the United States sustaining the constitutionality of the fellow-servant act of Kansas, in Railway v. Mackey, 127 U. S. 205, in which it is said in justification of, that law against the charge of unnatural and unreasonable classification, that “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 legislation on the ground of its making an unjust discrimination.”
The fellow-servant act applicable to railroads only has been upheld by the same court for a similar reason in Railroad v. Ellis, 165 U. S. 150. And in the various States adopting a like statute. [Lavallee v. Railroad, 40 Minn. 249; Johnson v. Railroad, 43 Minn. 222; Powell v. Sherwood, 162 Mo. 605; Cambron v. Railroad, 165 Mo. 543; Railroad v. Herrick, 127 U. S. 210.
Because the courts in sustaining these acts have pointed to the peculiar hazards to which railroad em*95ployees are exposed to defend the statutes against the charge of unjust discrimination, it is assumed that a fellow-servant act applicable to street railways would be unconstitutional because the employees of such corporations are not subjected to all the hazards that beset employees of steam railroads. It is admitted that employees in the operation of street railroads, especially those engaged in operating cars on which electricity is the motive power, are exposed to great hazards, but it is said they are not the peculiar hazards which attend the operation of steam railroads, and therefore they do not, and if the argument is sound can not, come within the same class as employees of steam railroads. We can not subscribe to this contention. In our opinion it was entirely competent for the Legislature to have enacted a general fellow-servant law which would have applied to all masters and servants, and it was also within its power to enact this law governing the liability of railroads to their employees and to include therein, as we hold they did do, the employees of all railroads, street and electric railroads as well as steam railroads.
It is not to be questioned that in the exercise of its general remedial and police powers the Legislature may enact laws for the health and safety of our citizens, and when a given subject is within its power, the extent to which it is to be exercised is within the discretion of the Legislature. It is within the common knowledge of us all that at the time this act was passed nearly all the street railways in this State were being operated by electricity, and those that were not were rapidly being converted into electric roads; that this motive power was exceedingly hazardous and dangerous. It is not insisted that it would not be wise and humane legislation to throw around the employees operating these cars the same, protection that is given an operative on a steam railroad, but only that the *96general words do not include them, and if they did they are not in the same class.
To this we answer that when it is conceded that their avocation subjects them'to perils from the negligence of their fellow-servants, it is not for this or any other court to say to the Legislature, you shall not enlarge -the class so as to include the employees of all railroads, but shall restrict it to steam railroads alone. In a word, we hold that an act of the Legislature is not to be declared void unless the violation of the Constitution is so manifest as to leave no room for doubt. [Ogden v. Saunders, 12 Wheat. 213; Sinking-Fund Cases, 99 U. S. 700; State v. Layton, 160 Mo. 499.] As said by the Supreme Court of Ohio, in State v. Nelson, 39 N. E. 24: “The appliances and construction of cars, and in fact all kinds of machinery are continually changing, and it is within the exclusive authority of the G-eneral Assembly, in the exercise of its police power, to determine by general laws what, if any, regulations are required for the protection of the health, safety, and comfort of the operatives.” Because the Supreme Court of the United States and this court and all other courts now hold the fellow-servant act applicable to railroads is not unconstitutional classification because the business is hazardous, it by no means follows that this class should not include all railroads; on the contrary the classification would seem less objectionable when it includes in it all who are subjected by their employment to similar hazards, albeit not exactly the same. We hold that a construction of the act before us which makes it applicable to the employees of street railways would not render it unconstitutional.
In view of the remedial character of this act, the absence of anything in any portion of the act indicating a purpose to restrict it to steam railroads, and the decisions in this State which have applied certain-general provisions of our railroad laws alike to street *97railways. and steam railways, and because the plain unambiguous words of the act are broad enough to include street railways, we hold that the act means what it says, and that street railroads are liable in the same manner as steam railroads to their employees for the negligence of their co-employees or fellow-servants.
II.
But were this not so, in our opinion the defendant in this case would still be liable for the reason that it is a railroad corporation organized under the general railroad laws of this State with all the powers and subject to all the liabilities of any other railroad corporation. The evidence shows beyond question that it was incorporated under and by virtue of article 2, chapter 42, Revised Statutes 1889, for the purpose of c.onstructing, maintaining and operating a standard-gauge railroad for public use in the carriage of persons and property, and '“to be constructed from a point in the city of St. Louis in a general southwesterly direction through or near the towns of Maple-wood, Old Orchard, Tuxedo Park, Webster G-roves and Kirkwood to a point on or near the Meramec river within the limits of St. Louis county.”
It further appears that by virtue of its charter it exercised the right of eminent domain in condemning a right of way under and by virtue of the powers conferred upon steam railroads in this State.
There was also evidence that it carried express and the United States mail between St. Louis ahd Kirkwood. It is true that the motive power employed by defendant is electricity, but all the cases agree that the motive power is not a determining feature in distinguishing a street railway from a general railroad which carries both freight and passengers. So that *98we have a case in which the corporation has elected to take its charter under the general railroad law of the State and has voluntarily placed itself in the class of roads to which it concedes the Act of 1897 properly and necessarily applies. But defendant argues that because it only carries passengers over that part of its road which lies along and in the streets of St. Louis, and by express permission in the streets of Kirkwood, it should to that extent be regarded only as a street railroad, but we do not think its contention is tenable. It is still a railroad, notwithstanding the city of St. Louis and other municipalities would not permit it to run its freight trains over their streets. These cities are empowered by the Constitution and general laws to exclude it from their streets, and if it has entered into conventions with them whereby it denies itself in those localities the right to carry freight on condition that it may operate cars on their streets for passengers only, it has not thereby changed the charter which alone authorizes it to exist as a corporation and thus relieved itself of its obligation to State laws. It- remains a railroad corporation operating a railroad in this State and falls within both the language and spirit of the Act of 1897. Can it be that if this accident and injury had occurred to plaintiff on defendant’s line out in St. Louis county defendant would be heard to say under its charter that it was not a railroad within the meaning of the Act of 1897? Assuredly not. But it would in that case still be the same railroad that 'runs into and delivers its passengers in the city of St. Louis. It is one corporation and operating one railroad and it is not subject to a different liability in the city from what it is in the country. In our opinion it is clearly within the provisions of the Act of 1897 and the circuit court erred in holding otherwise.
It is said, however, the liability is not impo'sed “on railroad corporations because railroad corpora*99tions, but on concerns that own and ^operate railroads,” and that therefore the charter of this defendant does not determine its liability, but how can that affect the defendant’s liability when it is confessedly both a “railroad corporation,” to which this act in terms applies, and at the same time owns and is operating a railroad, by every test known to the law.
We fully agree that the servant who can avail himself of the protection of this statute must be one engaged in the work of operating such road.
In Callahan v. Merchant’s Bridge Terminal Railroad Company, decided at this term, by the Court in Bane, 170 Mo. 473, we held that this right was not limited to those who are engaged in running trains, but to those employees also whose work is dirdctly essential to enable trains to run, and in so doing we were fully ■supported by the decisions of the Supreme Court of Kansas in Railroad v. Pontius, 52 Kans. 264, and of the Supreme Court of the United States affirming that mew in Pontius v. Railroad, 157 U. S. 209. [Stubbs v. Railroad, 85 Mo. App. 192.]
It may be well to note that, the Supreme Court of the United States, in enumerating the grounds upon which it sustained the Kansas law, noted that it applied “to tall railroad corporations without .distinction,” and so does the Act of 1897. So that we have not a case where some corporation other than a railroad or some person is operating a railroad, but we have a case within the exact language of the act, to-wit, a “railroad corporation, owning and operating .a railroad in this State,” and the servant who is suing was a servant engaged in operating such railroad, and was hurt by another servant engaged in operating the .said railroad, and the question is, shall the act of the Legislature, made for identically such a case, be enforced, or shall we turn the plaintiff out of court simply because the car which said employees were operating was not operated by steam- and was not one of a *100long train or that said railroad company was permitted to run only passenger cars' in the streets of St. Louis and Kirkwood by the ordinances of said cities, the right having been conferred on said muhicipalities by our Constitution and general statutes to allow said company to run its trains within the corporate limits or to deny it that right? In the case supposed of the Suburban car crushed against the car on which plaintiff was employed, we have no doubt whatever that the conductor of the Suburban car could recover against the defendant for the negligent act of the servant and we also agree, as already said, that the Suburban or any other street railway company under the unrestricted terms of this act is a railroad and liable to one of its servants who is engaged in the operation of its road by another servant of said company. In our opinion the judgment should be reversed and the cause remanded for a new trial in accordance with the views we have expressed.
Brace and Burgess, JJ., concur in my views.