*259SEPARATE CONCURRING OPINION.
WOODSON, J.— This case was first argued and submitted in Division No. 2, and it was by that court transferred to Court In Bane, where it was again argued and submitted, prior to. the time the writer became a member of this court. The cause fell to the lot of Burgess, J., and he wrote an opinion therein, in which Fox and Graves, JJ., concur; but Gantt, C. J., and Yalliant and Lamm, JJ., dissented therefrom. This equal division of the judges necessitated my taking an interest in the case. The case was argued In Banc at this January call of the docket.
There has been so much said and written about this case that there remains but little, if anything, to be said upon the subject. All I can hope to do is to touch upon the salient points in the case, and briefly express my views thereof, without attempting to cover the entire ground, which has been so ably and exhaustively considered by the two opinions written herein; nor will I attempt to restate the facts of the case, because that has been admirably done by Burgess, J., in his opinion, which all concede to be a full and fair statement of the facts.
I. The defendant insists the plaintiff is not entitled to recover in this action, for the reasons:
First. Because Strottman, the deceased engineer, and the telegraph operator at Blackwell were fellow-servants, and that at common law the master was not liable for the injuries received by a servant in consequence of the negligence of a fellow-servant.
Second. Because the Act of 1897 (Laws 1897, p. 96), entitled, “Corporations, Railroads,” creates a cause of action only in favor of the injured employee, and does not transmit that cause of action to his widow or children in case of death.
*260This calls fox' a coxxstrixctioxx of that act, which reads as follows:
“Section 1. That every railroad corporation owning or operating a railroad in this State shall he liable for all damages sustained by any agent or servant ' thereof while engaged in the wort of operating such railroad by reason of the negligence of any other agent or servant thereof: Provided, that it may he shown in defense that the person injured was guilty of negligence contributing as a proximate cause to produce the injury.
“Sec. 2. That all persons engaged in the service of any sxxch railroad corporation doing business in this State, who are entrusted by such corporation with the authority of superintendence, control or command of other persons in .the employ or service of such corporation, or with the authority to direct any other servant in the performance of any duty of such servant, or with the duty of inspection or other duty owing by the master to the servant, are vice-principals of such corporation, and are not fellow-servants with such employees.
‘ * Sec. 3. That all persons who are engaged in the common service of such railroad corporation, and who while so engaged are working together at the same time and place, to a common purpose of same grade, neither of such persons being entrusted by such corporation with any superintendence or control over their fellow-employees, are fellow-servants with each other: Provided, that nothing herein contained shall he so construed as to make any agent or servant of such corporation in the service of such corporation a fellow-servant with any other agent or servant of such corporation engaged in any other department or service of such corporation.”
The first duty devolved upon us is to determine *261whether or not the engineer and the telegraph operator were fellow-servants at the time the former was killed.
This question has been so ably and exhaustively considered by Burgess and Lamm, JJ., in their respective opinions herein that there is but little remaining for me to say upon the subject-. I will, however, add a few observations to what has been said by them. I will first consider the proposition from a common law standpoint, and then view it in the light of the Act of 1897.
This precise question came before Division No. 2 of this court in the case of Edge v. Railroad, 206 Mo. 471. The facts in that case were as follows:
On August 17, 1903, the defendant was operating a single-track railway between Carthage, in this State, and Galena, in the State of Kansas, a distance of thirty or thirty-five miles. Carterville, Webb City and Joplin are on the road, and between Carthage and Galena. There were some eight or ten cars operated over said road, and 'the service was one about every thirty minutes. The company maintained a general office at Webb City, in which it employed two car-dispatchers, one named T. A. Harbaugh, and the other Lawrence Havens. The former served from sometime in the forenoon to three o’clock p. m., when he was relieved by the latter, who performed the duties of the position for the balance of the day. The company had some twelve or fifteen switches, or side tracks, between Carthage and Joplin, on which the cars going in opposite directions passed each other. At most, if not all, of those switches there was a telephone maintained and used by the defendant as its telephone system. These telephones were connected with the office -of the car-dispatcher at Webb City. The cars were numbered, and the mode of operating them was as prescribed by a rule of the-company, which is as follows: “(10). Cars must be run as closely to schedule time as pos*262sible, and each, conductor must communicate, by telephone, with the car-dispatcher at time of leaving car-house and at each passing point and terminal wherever there is a telephone, and must govern the movement of his car strictly by orders received from dispatcher, proceeding from station to station only on orders. He must not allow his car to go beyond any meeting point without orders, whether he meet another car or not. When the cars meet the conductor of the car first to arrive will report, and repeat orders, received, to both his own motorman and conductor of connecting car, and motorman of latter must not proceed until ordered or signaled so to do by his conductor. No extra car or work-car must leave car-house without reporting to and receiving orders from dispatcher, and all such cars must move only in accordance with orders received from dispatcher. Orders received at telephone must be repeated back to dispatcher and conductor should then keep his ear to ’phone for a moment to hear anything further that the dispatcher may have to say to him. Orders must not be shouted between passing cars. Each car must receive its own orders over ’phones unless both cars meet and are standing in front of ’phone when orders are given. When a telephone is out of order and orders cannot be obtained over it, both cars will proceed carefully to the nearest telephone and call for orders.” At the time of the injury plaintiff was in the employment of the defendant as a motorman, and had charge of car No. 30, which left Carthage at 2:10' of the afternoon of that day on its regular trip. Burén Moad was also an employee of the company, and was the conductor in charge of that, car at the time of the injury. When the car left Carthage, the conductor, Moad, called up the dispatcher and received orders to go to Morgan Station, which was a station about three miles from Carthage. The car arrived there on time, and the conductor called, *263by ’phone, the dispatchers for orders. After the car left Carthage, and before reaching Morgan, Harbaugh, one of the car-dispatchers, went off duty, but remained in the office, and Havens, the other dispatcher, answered the telephone at Morgan. The last order Harbaugh gave before going off duty was for car No. 29, which was en route from Galena to Carthage, and which had arrived at the station Motley, about five miles west of Morgan, to proceed to Morgan, which was a regular place where it should have met car No. 30.' That was the last order given by Harbaugh; and the first given by Havens, after coming on duty, was to Conductor Moad when he called in at Morgan. Moad, over the objections of defendant, testified that when he reached Morgan he called the dispatcher for orders, and that “Havens said, ‘Hello!’ and I said, ‘30 Morgan,’ and he says, ‘30 pass 29 at Syracuse; look out for 17 at Lakeside. I don’t know whether they are on the main track or not, but they are coming ahead of you, and you will then come on to Motley’; and I repeated the order back — said: ‘30 pass 29 at Syracuse; look out for 17 at Lakeside. Don’t know whether they are on the main track or not, but they are coming ahead of you, and come on to Motley.’ Havens said, ‘All right,’ or something like that.” He also testified that he then boarded his car and gave the signal to go ahead, and walked to the front of the car and repeated the order to the motorman, and he said: “All right; we’ll do it.” . . . . As soon as the signal was given the car proceeded toward Syracuse, which is a mile or so west of Morgan. After plaintiff’s car curved to the south and started back upgrade on the curve to the north, the power was turned on, and the car was going from twenty-five to thirty-five miles an hour. On the south side of the track of the Ropp land was a row of fruit trees, six or eight feet from the track, the limbs of which extended out to or near the *264passing cars. The plaintiff’s evidence tended to show that cars meeting each other on said track as it makes the curve to the north could not have been seen on account of said curve and said trees, on the day of the injury, by the motorman, if standing at his post of duty on the front end of the car, for a greater distance than 150 to 200 feet, while defendant’s evidence tended to show that it could have been seen from one hundred and fifty to nine hundred feet. About the time car No. 30 reached the top of the grade mentioned, and while going from twenty-five to thirty-five miles an hour,, car No. 29 came east from Motley, around the curve and from beyond the trees, at a rate of speed from twenty to thirty miles an hour. When No. 29 was first seen by plaintiff, the evidence, tended to-show it was somewhere between one hundred and fifty and two hundred feet away. He testified that he was looking down the track all the time, and as soon as he saw the car he reversed his car and attempted to apply the brake, but, believing a collision was inevitable, he leaped from the car and received the injuries complained of.
The plaintiff’s chief contention in that case was, that the car-dispatcher was a vice-principal of defendant company, and, as such, had full charge and control of the cars and the employees in charge thereof, as well as their movements; while upon the other hand, the defendant contended the dispatcher was a fellow-servant of plaintiff and was only delivering orders to the employees in charge of the cars, where to pass each other. In the discussion of that question the unanimous' court, speaking through Btjrgess, J., on page 490, said: “The undisputed facts are, the .ear-dispatcher, whose office was at Webb City, had not only control of the plaintiff, but he had control of all the conductors, and motormen, of all the cars and their operation.” Upon those facts the court held, and, in my *265judgment, properly so, that the car-dispatcher was a vice-principal, and that the company was liable for his negligence. But in disposing of the defendant’s contention, that the dispatcher was but a telephone operator, Judge Burgess, on page 497, said: ' “ ‘A distinction is to be drawn between mere telegraph operators and train-dispatchers, as well as the other employees of a railroad. A telegraph operator ordinarily is not invested with any control over the running of trains, and it has been held that a telegraph operator does not occupy the position of a train-dispatcher merely because he transmits or delivers orders for the movement of trains, and that his negligence cannot be said to be the negligence of the company.’ [12 Am. and Eng. Ency. Law (2 Ed.), 968.]” That enunciation of the law by Judge Burgess is sustained by the following’ cases, some of which are in addition to the authorities cited by him: McKaig v. Railroad, 42 Fed. 288; Railroad v. Clark, 57 Fed. 125, 16 U. S. App. 17; Railroad v. Camp, 65 Fed. 952, 31 U. S. App. 213; Railroad v. Frost, 74 Fed. 965, 44 U. S. App. 606; Price v. Railroad, 145 U. S. 651; Slater v. Jewett, 85 N. Y. 61; Dana v. Railroad, 23 Hun (N. Y.) 473; Monaghan v. Railroad, 45 Hun (N. Y.) 113; Reiser v. Railroad, 152 Pa. St. 38.
There is not a scintilla of evidence to be found in this record which tends to show that the telegraph operator at Blackwell had any authority or control whatever over the movement of defendant’s trains, or over any of its employees in charge thereof. Under this state of facts, according to the law as stated in the Edge case, supra, and the authorities before cited, the telegraph operator and Strottman were fellow-servants according to the common law rule. [Koerner v. St. Louis Car Co., 209 Mo. 141.]
We will next consider whether or not that relation between them was changed by the Act of 1897.
*266It cannot be logically contended that section two of that act constituted the telegraph operator a vice-principal of the defendant company, for the reason that it only declares those employees of the company to be vice-principals “who are entrusted by such corporation with the authority of superintendence,, control or command of other persons in the employ or service of such corporations, or with authority to direct any other servant in the performance of any duty of such servant, or with the duty of inspection or other duty owing by the master to the servant.” This record totally fails to disclose any authority whatever entrusted by the defendant to the telegraph operator at Blackwell to superintend, control or command any person in its employ, or to direct any such employee in the performance of his duty as such servant, or to perform any other duty owing by the master to the servant. In the absence of any such showing, it must be presumed that he had no such authority conferred upon Mm, and it must, therefore, be held that he was not a vice-principal of the defendant company. This conclusion seems to me to be almost self-evident.
The interpretation we have placed upon section two of said act is strengthened and made clearer by reading in connection with it section three of the act. The latter section declares “all persons who are engaged in the common service of such railroad corporations, and who while so engaged are working together at the same time and place, to a common purpose of same grade,” and not entrusted with any of the powers or duties stated in section two, to be fellow-servants. The evidence in this case is undisputed and conclusively shows that the telegraph (operator at Blackwell, and the engineer, Strottman, were, at the time the negligence complained of occurred, engaged in a common service — the movement and operation of defendant’s trains, and that they were worMng to*267gether at the same time and place, and to a common purpose of the same grade, and the forxner had no •authority or control, over the latter, as stated in section two. Section three of the act is but declaratory of the departmental doctrine so often considered by this court, and so fully and ably expounded by Gantt, C. J., in the case of Koerner v. St. Louis Car Co., supra.
n. Having determined in paragraph one of this opinion that the telegraph operator and Strottman were fellow-servants, it next becomes our duty to decide whether or not the cause of action given by the Act of 1897 to Strottman against the defendant survived to his widow after his death. The defendant contends that the cause of action was personal to Strottman and that it abated at his death. It is conceded by all parties that the Act of 1897 does not transmit the cause of action to the wife and children .where death ensues; but plaintiff insists that the cause of action created by that act, in favor of her husband, was transmitted to her by virtue of sections 2864 and 2865, Revised Statutes 1899'.
At common law the master was not liable to his servant for injuries received by him in consequence of the negligence of a fellow-servant; nor was that law changed by sections 2864 and 2865, Revised Statutes 1899. Neither he, if he had survived the injury, nor his widow or children, in case of his death, could recover damages for such injuries. By the latter section it was only intended to transmit a cause of action to the widow and children which existed in favor of the •deceased at the time of his death; but since the servant never at any time had- a cause of action against the master for injuries received through the negligence of a fellow-servant, this court has many times held that where death of the servant ensued there was no cause >of action to be transmitted to his widow and children, *268and for that reason they could not recover. [Proctor v. Railroad, 64 Mo. 112.]
Counsel for- plaintiff does not dispute the law to he as above stated; but contends most earnestly that when the Act of 1897, now section 2873, Revised Statutes 1899, was enacted, a cause of action in favor of the servant against the master for injuries received in consequence of the negligence of a fellow-servant, was created, and that where death ensued, that cause of action was transmitted to the widow and children by virtue of section 2865. In support of that proposition, counsel for plaintiff cite and rely upon that class of cases which hold that the cause of action created by statute or ordinance in favor of third persons against the master for injuries received through the negligent acts. of his servant survive and are transmitted by section 2865 to their widows and minor children. Among the cases cited are the following: Kenney v. Railroad, 105 Mo. 270; Crumpley v. Railroad, 98 Mo. 34; King v. Railroad, 98 Mo. 235; McQuade v. Railroad, 200 Mo. 157; Higgins v. Railroad, 197 Mo. 300; Jackson v. Railroad, 157 Mo. 621; Riska v. Railroad, 180 Mo. 168; Wendler v. House Fur. Co., 165 Mo. 541; Yale v. Gillham, 187 Mo. 393; Lore v. Mfg. Co., 160 Mo. 608.
It seems to me that that is a clear misconception of those eases. In my judgment they have no- application whatever to the case at bar. This error, evidently, grows out of an erroneous assumption that negligence constitutes a cause of action. Clearly, that is not true, because the cause of action is the violation of plaintiff’s rights which result in his injury, and the negligent acts are but the means by which those rights are infringed upon. And it is equally true that before negligent acts are actionable, there must be a legal duty resting upon one person in favor of another; and it is the negligent disregard of those legal *269duties which, violate those corresponding legal rights, and if as a result thereof an injury ensues, then a cause ■of action is given by the law to. the injured party. So, it is thus seen that it is the breach of that duty that violates the plaintiff’s rights and gives him a cause ■of action against the defendant; and it is wholly immaterial whether those correlative duties and rights are created and imposed by the commn law, or by a statute of the State, or by an ordinance of a city. If the defendant in person, or by his agent or servant, acting within the scope of his employment, negligently disregards any of those duties and thereby violates the rights of another, a cause of action is thereby ■created in his favor against the defendant for the injuries received in consequence of such negligence; and if the injuries result in the death of the party, the cause of action is transmitted by section 2865 to his widow and children.
This section is universal in its operation and embraces within its terms all persons whomsoever excepting fellow-servants. But it has been the universal ruling of this court ever since the decision in the case ■of Proctor v. Railroad, supra, was handed down, that section 2865 has no application to and did not transmit a cause of action from a servant who was killed by-the negligent acts of a fellow-servant to his wife and ■children, for the obvious reason that he had no cause of action against the master to be transmitted.
The mere fact that the Legislature in 1897 created a cause of action in favor of the servant, against the master, for injuries received in consequence of the negligence of a fellow-servant, is no warrant or justification for this court to write into that section of the statute a survival of that cause of action and a transmission of it to the widow upon the death of the husband when the Legislature has failed to do so.
If, at the time of the enactment of section 2865, *270the Legislature had in express terms provided that it should not apply to fellow-servants, then, I apprehend that it would not now he contended that such section would transmit a cause of action created by the Act of 1897 to the widow of the injured servant, yet that is just what this court has uniformly held the Legislature meant by the passage of that statute. [Proctor v. Railroad, supra.]
Clearly, these are the views entertained by the Legislature upon this question, because by an Act of April 13, 1905, it recognized the incompleteness of the Act of 1897, and it expressly provided that the cause of action thereby created in favor of the fellow-servant should survive and be transmitted to his widow and minor children in case of his death.
As neither the Act of. 1897 nor section 2865 transfers such a cause of action to the widow and children, I feel constrained to hold that the cause of action created by the Act of 1897 in favor of a fellow-servant did not survive his death, nor was it transmitted’ to his widow and children after his death.
III. It is finally insisted by plaintiff that even though it be conceded that Strottman and the telegraph operator were fellow-servants, and the cause of action ' given him by the Act of 1897 did not survive him, yet it is earnestly contended that she is entitled to recover in this case because her husband was not provided with a reasonably safe place in which to perform his duties to his master, and that in consequence thereof he was injured and killed.
If that contention was borne out by the record, then, unquestionably, the deceased, had he lived, would have had a good cause of action against the company, because it is the duty of the master to furnish the servant a reasonably safe place in which to work, and if it failed to discharge that duty and the result thereof was an injury to the servant, then he would have had *271a complete cause of action against the master, and in case of his death that cause of action would have survived and passed to his widow and children by virtue of section 2865:
In answer to that contention, it is sufficient to say, in the first place, that there is no such question presented by the record in the case: Not a word bordering upon that question is to be found in the petition, evidence or instructions to the jury; and, second, because there is no evidence in the case which remotely tends to prove that there was any inherent danger connected with the place where plaintiff was required to work beyond the ordinary dangers incident to such employment; but, upon the contrary, all the evidence conclusively shows that Strottman lost his life through the negligence of his co-employee in not delivering to him the order to side-track his train at Blackwell so as to permit the north-bound train to pass his at that point..
For the additional reasons herein stated,
I concurra the opinion written herein by Burgess, J.