Strottman v. St. Louis, Iron Mountain & Southern Railway Co.

DISSENTING OPINION.

LAMM, J.

— Strottman was a locomotive engineer-in defendant’s employ in charge of a locomotive engine pulling a freight train on defendant’s track and' going south from DeSoto, on the 22d day of October,. 1902. Plaintiff, his widow, sued for damages as for his wrongful death and recovered below. Prom that judgment, defendant appealed here. The cause, assigned to Division Two, was argued and submitted there — subsequently coming into Banc, was reargued and resubmitted. The conclusion reached by Brother Burgess, to whom the case fell, is that the judgment should be> reversed without remanding. This result is so at variance with my views of the law and justice of the case-that I am constrained (as one under bonds to give a *272reason for the faith in him) to make the following observations :

I. At a rock ent on a crooked track, by a railroad bridge spanning Big Biver, Strottman’s engine, southbound in the night time, going thirty miles an hour on a down grade, collided “head on” with an engine pulling one of defendant’s north-bound freight trains a few miles south of De Soto. By this collision he was so scalded and otherwise hurt that, after a little while, he died. He confessedly pulled out of De Soto under orders from his master entitling him to a clear track at the point of collision, unless his running orders were countermanded or subsequently varied before reaching that point. These orders were not countermanded or varied by the master, and the case may proceed on the assumption that Strottman was abbíit his master’s business, in the line of duty, doing what the master told him to do and in the way he was told to do it, without negligence on his part, and resting with confidence on the implied promise of the master to use reasonable •care to keep him safe from harm by giving him a clear track, i. e., a reasonably safe field of operations. Similarly the north-bound freight was running under orders from the same master entitling it to a clear track at the point of collision, unless its running orders were subsequently varied, and varied in time to be effective in taking its right to a clear track from it.

If there was nothing more to the case than that the master, under the foregoing hypothesis, set two trains in motion from opposite points of the compass on a single track, headed towards each other, and allowed the one to hurl itself against the other, the master creating the condition, knowing the result to be inevitable and the trainmen being kept in ignorance of the snare spread for their feet in the condition so created, then no one would contend that such a master would not be liable to his servants for injuries *273from the resulting collision, because no master may plead ignorance of the physical law that two imponderable bodies cannot occupy the same space at the same time. A master may not launch forth trains in that way and then fold his arms and go to sleep, leaving trainmen, who confided their lives to his due care, as certainly brought face to face with death or injury as that two and two make four. If that be the law then trainmen are of all men most miserable. ’Tis not so written in the law. The servant does not assume such a risk as that. He assumes the usual and ordinary risks incident to his master’s business, but not a risk springing from the master’s negligence. The assumption of risks, at root, rests in contract. The servant may be said to impliedly agree to assume the risks necessarily or naturally incident to the business he undertakes. They are known to him, or may be known to him by the exercise of ordinary care, and he is allowed to assume them. But the master cannot contract against his own negligence, for that would be contrary to the policy of our law. By necessary implication there is read into every contract of employment the agreement of the master that he will exercise due care to keep his servants (when in the line of duty) from death or injury. The master, then, assumes that duty towards his servant; and the risks assumed by the servant are those only that are left over and above (and when) the duty of the master to exercise due care has been reasonably performed. [Charlton v. Railroad, 200 Mo. l. c. 433; Curtis v. McNair, 173 Mo. 270, and cases cited.]

That the train-dispatcher and trainmen are not fellow-servants, that the voice and the act of the train-dispatcher under the foregoing hypothesis are the voice and act of the master is the settled law of this State. [Smith v. Railroad, 92 Mo. 359.] That ease *274has been cited and followed by many others adopting and approving its reasoning, and applying that reasoning to the circumstances held in judgment in each specific case.

II. But the case at bar goes beyond the foregoing hypothesis. The master in this case, distinguishing between a train-dispatcher and a telegraph operator, claims it came up to high-water mark in exercising due care when it telegraphed an order to its servant, the telegraph operator at Blackwell Station, to stop the north-bound train and require it to take the siding at Blackwell — no matter whether that order was delivered or not. The contention of defendant is that the full duty of the master was performed when an order was conceived in the mind of the train-dispatcher at De Soto requiring the north-bound train to lay out at a certain station, Blackwell, to await Strottman’s train, thereby providing a clear track to pass, and when that order was put in concrete form as a dispatch by defendant’s train-dispatcher, was handed or communicated to the operator in the dispatcher’s office and by him transmitted to the operator at Blackwell Station by telegraph in time for the master’s servant at Blackwell (said operator, who was also station agent there), to set his signal board or semaphore to stop the north-bound freight and in time, when stopped, to deliver to the conductor of that train the master’s order to take siding there and clear the track.

It is further argued by defendant’s learned counsel that the telegraph operator at Blackwell and Strottman were fellow-servants. Assuming, as they do, that this contention will be allowed as sound, the next step in the evolution of their argument is that under the Fellow-Servant Act of 1897 (R. S. 1899, secs. 2873-2876) the right to recover damages for injuries received at the hands óf a fellow-servant is, ex vi termini, restricted to the injured party alone; and that *275such right is not transmitted to the widow or other personal representatives of the injured party in ease the injury result in death. To round out their contention, they argue that the Fellow-Servant Act of 1897 does not piece out and may borrow no aid from section 2865 of the Damage Act, which has been in our statutes for over half a century, and which provides that in case an injured party may maintain an action against a wrong-doer, if death had not ensued, then such cause of action survives or is transmitted after death, and that a tortfeasor is subject to an action for damages, notwithstanding the death of the person injured. It is argued that, fellow-servants not being within the purview of the old Damage Act, such act gave no right of action against the master because of the injury of one servant by another who was his fellow-servant; that there being no such right of action as that under the old act, it, as a matter of course, was not transmitted by the old act;. that if it did not exist it could not be said to survive or pass over to any one else. Therefore, when the Fellow-Servant Act of 1897 changed this condition of things in part and only gave a right of action against the master in favor of one of its injured servants for the negligent act of a fellow-servant, that right of action, being a new right of action for personal injuries, came within- the common law maxim, Actio personalis moritur cum persona, and could not be transmitted to the widow or personal representative under the provisions of the old Damage Act, but could survive or be transmitted only by the grace and power of a new legislative act, which act, they say, was supplied in 1905. Therefore, they say, to sum up, that the petition alleges and the facts show the neglect of the operator at Blackwell to carry out the orders of-his master was the proximate cause of the injury to Strottman, i. e., he suffered at the hands of his negligent fellow-servant; and that while he, if *276he had lived, had a right of action under the Act of 1897 against his master, yet when he died the action perished because the law creating it did not keep it alive, and the old Damage Act, section 2865, does not apply.

Were Strottman and the operator at Blackwell fellow-servants? If so, is there substance in the foregoing contentions? If there is, the case is at an end; if not, the judgment should be affirmed.

III. What light is thrown on the case by the Damage Act of 1905 (Laws 1905, p. 135) ? If that act related to and covered only one subject, to-wit, the keeping alive (after the death of the injured party) of a cause of action arising in favor of such party against the master for injuries caused by the negligence of a fellow-servant, then there would be great force to the insistence that in the legislative mind such cause of action, up to that time, did not survive, and that the new Act of 1905 created the right of .survival. But when it appears, as it does, that the Act of 1905 makes drastic changes in the old Damage Act in many vital particulars and that other reasons for the passage of the act are writ large on its face, the force of such insistence is somewhat spent elsewhere. When we consider, further, that acts of the Legislature not infrequently overlap each other and are not infrequently passed as declarative of existing laws or as supplemental to such laws, as cumulative or auxiliary, or to clear up supposed obscurities or remove supposed incongruities or to parry the supposed impending danger of some certain feared judicial construction, the force of the insistence in hand is still further spent elsewhere. When we consider that this court in the Rinard case, infra, and the Powell case, infra, itself assumed that the right of action created under the Act of 1897, was transmitted, it is sensible to conclude that the Legislature assumed the same thing, and the force *277of the insistence is entirely spent elsewhere. [See Higgins v. Railroad, 197 Mo. l. c. 313.]

Bnt if it be conceded ont and ont, arguendo, that the Act of 190'5 will bear only the construction that, in the legislative mind, such cause of action did not survive under then existing laws, yet that concession ought not to be held as determinative of the point; and this for the very good reason that the construction of laws under our scheme of government is with the courts — not with the Legislature; and courts are not bound by a legislative construction, if erroneous, any more than by a legislative act, if invalid. The ideal harmony that should lie and play about the triune-head of the executive, the legislative and the judicial departments of the government, as a halo or nimbus, is not to be rudely or lightly blown away, disturbed or dissipated. Therefore, courts lend a willing ear to legislative construction of existing law — this out of decent and due regard for the high dignity of legislative power in a self-governing people. But, when all is said and the last word spoken, courts may not ignore, discard or surrender their duty to construe the law, because the Legislature has construed it — they may be instructed but not bound by that construction.

Deeming legislative construction (even if one may be fairly deduced), as an incident to judicial construction but not a controlling or determinative one, it may be put aside and, in the logical evolution of the case, we reach the question whether the Fellow-Servant Act of 1897 and section 2865 of the old Damage Act must be construed together, the new act as supplemental to the old, each pertaining to the same subject-matter and tlxe new creating a situation and liability upon which the old act, as a general rule of law, 'is operative. That question will receive consideration in the next paragraph of this opinion. And to avoid misunderstanding, it will do to say that its determination in *278favor of defendant should not, of itself, result in a reversal of this ease; and this in view of other applicable principles of law to be hereinafter pointed out.

IV. Section 2865 of the old Damage Act is a general law, engrafting into our system a new principle, and reads: “Whenever the death of a person shall be caused by a wrongful act, neglect or default of another, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, then, and in every such case, the person who or the corporation which would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured.”

Section 2873 (Act of 1897) is as follows: “That 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.”

If these two sections had been passed as parts of one act and had become simultaneously operative as law, it would be put beyond all question that the cause of action sued on in this case survived; because section 2865 says if a party be injured and death ensues, the cause of action survives, provided the injured party himself had a cause of action, and section 2873, seizing the matter at that point, and going on with it, declares that a fellow-servant has a cause of action against a master for injuries received at the hands of a negligent fellow-servant; ergo, if the injured party, a fellow servant, had a right of action *279under section 2873, it survives under the hypothesis in hand by the express mandate of section 2865.

But such hypothesis, it is argued, does not fit the facts of the case because the two sections were not passed as parts of the same law — the one being an elder and the other a younger legislative utterance; and the controlling question in the case, then, may be stated this way: Are these two legislative utterances to be construed, under recognized canons of construction, as cognate parts of the same body of law, in pari materia, the one passed in view of the existence' of the other, the one piecing out the other by supplementary enactment, and the intendment of the one illuminated by the intendment of the other when placed side by side? Or are they independent statutes, bearing no relation to each other, each solitary, each moving in its own orbit, having no consociation and each to be construed as if the other did not exist? Is the eye of the law blind to the one when the other crosses the field of its vision?

The general principles of law bearing upon and controlling the foregoing questions, it is apprehended, are not new or in doubt. They have been crystallized into the form of precepts, and if we are to be quickened by those precepts, they should be diligently kept in mind as expounded and laid down. For example, in State v. Pitts, 51 Mo. l. c. 135, it was said: “As illustrative of the intention of the lawmaking power, light may be thrown on the subject by reference to analogous legislation.”

In Railroad v. Shacklett, 30 Mo. l. c. 557, it was said: “But when it is doubtful whether the property proposed to be taxed falls within the terms of description used by the law, it is altogether consistent with the rules of construction to resort to other statutes, more specifically appropriate to the subject, for the purpose *280of ascertaining the intention of the Legislature in the ' enactment of the general statute.”

In Dowdy v. Wamble, 110 Mo. l. c. 283, it was said : “There are few guides to construction more useful than that which directs attention to the prior condition of the law to aid in determining the full legislative meaning of any statutory change thereof.”

In Gabriel v. Mullen, 111 Mo. l. c. 123, it was said: “In construing any statute it is proper and often useful to consider the state of the law existing at its enactment as casting light on the intended scope of the change made by it.”

In Macke v. Byrd, 131 Mo. l. c. 690, it was said: “All provisions of law on one topic should be considered in determining the meaning of any particular portion thereof, . . . and such a construction should be given to the latter as will keep all the provisions of law on the same subject in harmony, and give effect to all, when possible.”

In State v. Summers, 142 Mo. l. c. 596, it was said: “Besides,' the statute under review is in jpari materia with the statute relating to dramshops and to druggists, .... and they are to be construed together as though they constituted but one act. This must be done since the litigated statute forms with the others a whole system of which it forms a part. Even cognate statutes, though not- strictly in pari materia, may be invoked and referred to in order to elucidate the legislative intent. [Sutherland, Stat. Const., secs. 283, 284; Ex parte Marmaduke, 91 Mo. l. c. 257.] ”

At one time in the history of this State, the prosecution of crimes by information was strange to our system of criminal procedure. With the statutory law in this fix, a code of criminal procedure was moulded by an aggregation of legislative enactments passed at different times. At a certain period the right to proceed by information in the prosecution of a crime *281was grafted into the Constitution, and subsequently into the statutes. These later acts were silent on the right of appeal on the part of defendant when convicted of a crime under an information, the right of appeal being apparently restricted, by the dry letter of' existing statutes, to a conviction on an indictment. The question then arose whether an appeal (a purely statutory right) would lie from a conviction on an information. It was held it would not. [State v. Brown, 153 Mo. 578.] Subsequently the same point came up in State v. Thayer, 158 Mo. 36 ; considering the old as-well as the new statutes, deeming them welded into a. harmonious whole and to be construed together, in holding that a right of appeal existed (p. 39), the court, said: “This construction, flowing ex vi termini from the text of the statute, must prevail unless in the history of the legislation and the circumstances of the introduction of these two methods of prosecution into-our code, some reason be found for a different construction.” Again, coming back to the point and speaking of the ruling in the Brown case, which was disapproved (pp. 43-44), the.court said: “This ruling was based solely on section 4277, Revised Statutes 1889, now section" 2936, supra, treated independently and without any consideration of section 4062, Revised Statutes 1889, now section 2482, supra. But when these two sections are considered together in their proper relation to and bearing upon each other, and construed in connection with the code of criminal procedure, of which they form constituent parts, in the light of the circumstances attendant upon their introduction into that code as disclosed by their legislative history, the conclusion, it seems to us, is irresistible, that an appeal does lie for the defendant from a conviction in the circuit court of misdemeanor on information.”

The foregoing general propositions, stated . in *282other forms and steadily applied by this court in the construction of statutes, enacted at different dates, might be fortified by a wealth of illustrations; but enough has been said for the present purpose, which is to show that the Damage Act of 1897 and the old Damage Act must be construed together to effectuate the purpose of the Legislature, when that purpose is once ascertained by construction. The statutes are strictly in pari materia, and consociated. They relate to damages bottomed on a negligent or wrongful act, whereby individuals are injured; and the phase of this case now under exposition may be completed by borrowing the language of Elliott, J., in Humphries v. Davis, 100 Ind. l. c. 284. That learned judge there said: “A statute is not to be construed as if it stood solitary and alone, complete and perfect in itself, and isolated from all other laws. It is not to be expected that a statute which takes its place in a general system of jurisprudence shall be so perfect as to require no support from the rules and statutes of the system of which it becomes a part, or so clear in all its terms as to furnish in itself all the light needed for its construction. It is proper to look to other statutes, to the rules of the common law, to the sources from which the statute was derived, to the general principles of equity, to the •object of the statute, and to the condition of affairs existing when the statute was adopted. [Citing authorities.] ‘Construction has ever been a potent agency in harmonizing the ■operation of statutes, with equity and justice. ’ Statutes are to be so construed as to make the law one uniform system, not a- collection of diverse and disjointed fragments. When this principle of construction is adopted, ‘an enactment of to-day has the benefit ■of judicial renderings extending back through centuries of past litigation.’ [Bishop, Written Laws, sec. 242b.] ‘A statute,’ says'the author just referred to, *283‘must be construed equally by itself and by tbe rest ■of the law. The mind of the interpreter, if narrow, will stumble.’ ‘The completed doctrine, resulting from •a bringing together of its parts, is that all laws, written and unwritten, of whatever sort and at whatever different dates established, are to be construed together, contracting, expanding, limiting, and extending one another into one system of jurisprudence, as nearly harmonious and rounded as it can be made without violating unyielding written or unwritten terms.’ [Bishop, Written Laws, sees. 113a, 86.] ”

In the application of the foregoing propositions to the construction of section 2865 and section 2873, Revised Statutes 1899, let us look to the history of the. law, to the benefit to be advanced, to the mischief to be struck down, to the existing state of judicial construction of the old Damage Act at the date of the new •act, and thereby determine the legislative purpose.

Under the old Damage Act it was held, in 1865, that fellow-servants were within its scope, and that the master was liable for the negligence of co-employees inter sese. [Schultz v. Railroad, 36 Mo. 13; Connor v. Railroad, 59 Mo. 285.] This construction of the ■statute remained the law of this State for eleven years and until 1876 (Proctor v. Railroad, 64 Mo. 112), when the doctrine was exploded; and since the Proctor ease it has been the accepted doctrine that the old Damage Act created no right of action against the master in favor of a servant injured by a fellow-servant, and did mot create a right of action at all; it simply transmitted one that already existed at common law. [Strode v. Railroad, 197 Mo. l. c. 625, et seq., and cases cited.] It may not be amiss to recur to the reason underlying the assault on the doctrine of the Schultz case: The true grounds for that assault were first stated by Nap-ton, J., in a dissenting opinion in the Connor case. It was there pointed out that the purpose of the old *284statute was not to create or establish any new rules of liability to the party injured, where he was alive and entitled to- his action, but that the purpose of the statute was to strike down the common law doctrine that a cause of action for personal injuries died with the injured party. It was said'in that dissenting opinion : ‘ The cardinal rule in the construction of a statute is to look mainly at the intent of the law, the defect or grievance proposed to be remedied, and the means provided to effect such remedy. The common law axiom, that actio personalis moritur cum persona, was the mischief which the Legislature wished to abolish, and at the same time to point out the survivors who should have the right of action. The distinction between the right of action in passengers and employees, and the cases in which the one or the other might maintain actions, were not in the mind of the Legislature in framing this enactment. They were looking in a different direction. . . . There was no intention of establishing any new rules of liability for damages to the party injured, where he was alive and entitled to his action, but simply to extend the benefit of that liability to certain members of the family of the injured person, when death resulted from the injury.” And in the Proctor case it was said: “It [the Damage Act] creates no new cause of action but simply continues or transmits the right to sue, which the party whose death is occasioned would have had, had he lived.”

If, then, it be conceded as established (which we assume) that the life and purpose of the old Damage Act were to cut up root and branch the common law doctrine that a cause of action for personal injuries died with the death of the party injured, how comes it that we are confronted with the ghost of that dead and buried doctrine in the present case? Having held that the doctrine was legislated out of life, how comes *285it that the stone which the Legislature rejected, like the stone the builder rejected, becomes the chief stone of the corner now — how comes it that when the Legislature in 1897 created a new cause of action for personal injuries by changing another common law rule, to-wit, the rule that a master is not liable for injuries arising to an employee from negligence between co-employees, the dead common law doctrine is invoked to destroy the transmission and survival of the new cause of action created by statute? Might not the Legislature very well approach .the passage of the new law with the profound (and rightful)- conviction that, since the right of action for personal injuries survives under existing law, all the Legislature had to do was to create a new liability of that same class and character and it would survive because the common law barrier in the way of its survival had been swept away by positive and general statutory law, under the continued and uniform construction of this court?

Is the foregoing not a reasonable view? To my mind it is. Look at the result of a contrary view. The new act provides that the party injured has a right of action. Is it a thinkable proposition that a legislature taking such a legislative step as that would permit a servant to sue the master for personal injuries received through the negligence of a fellow-servant and with one and the same breath would intentionally deny or fail to give that right to his widow, or orphan children? Is it justice to the legislative branch of the government to suppose that it did not tenderly hold in mind the widow and the fatherless? The Supreme Court of Iowa, in reasoning out the same proposition, in the same kind of case, in Philo v. Railroad, 33 Iowa l. c. 51, said: “It cannot be presumed that the lawmakers would secure to employees of railroads a remedy for injuries, not resulting in death, but for the greater injuries whereby life is destroyed, they would *286make no provision; thus securing to the employee himself compensation for the lesser injury, but denying to his family, who are dependent upon him for support, compensation for the loss they sustain in his death. "We cannot suppose the Legislature that enacted the law was either so short-sighted or heartless as to intend any such result from its provisions. The construction we adopt accords with the language and spirit of Rev., sec. 4111, which makes the perpetrator of an act, resulting in death, liable for the injury, etc.,” and the views of that court seem sensible and applicable to the case at bar.

Again: The Damage Act of 1897 put no limitation of time whatever on the right to sue. Is that act, therefore, to be so construed as that an injured party is under no restriction of time, or that we must go to the common law to find the period of limitation? Clearly not. It seems clear that the whole body of the existing statutes should be searched, and when the general statutory rule of limitations governing that class of cases was found, it would control. Again: Let us make a not insupposable case by way of hypothesis. Suppose there was a general statute that all property of whatever description should be assessed for taxable purposes. Suppose thereafter the Legislature passed a law that cats and dogs and the franchises of public service corporations should be deemed and taken as property to all intents and purposes. After the passage of such a law could it be contended that cats and dogs and franchises were not taxable property, when by reading the two statutes together it clearly appears that by the new act they became property and thereby passed under the yoke of all burdens incident to property as property?

Let us take another fairly supposable case. Suppose when section 2865 was enacted an amendment had been offered to th¿ effect that its general words *287should be restricted by a proviso, thus: “Provided, that the right of survival and transmission hereby created shall not apply to any new right of action created by any new law thereafter passed by any subsequent Legislature.” Is it thinkable that such proviso could have found lodgment in a legislative mind quickened by the leaven of the need of general remedial legislation and bent on breaking away from a common law rule unsuited to the times and which had outlived its usefulness? Or suppose when the Act of 1897 was passed it was proposed to inject into section 2873 a proviso, reading thus: “Provided, that when such injured fellow-servant is so seriously injured that he dies, then the purposes of this law are fully subserved, his widow may not sue and his action dies with his death.” Can we believe that the General Assembly of 1897 would have entertained such a proposition as that? And yet, in effect, by construction, we now read into section 2865 of the old Damage Act the proviso supposed, and read into section 2873 the proviso supposed.

Construing these laws as dovetailing into and piecing out each other and becoming a harmonious part of one harmonious and interdependent system, and applying the rules of construction hereinbefore developed, it seems we ought not to try to escape from the conclusion that when Strottman was given a cause of action under the new act, that cause of action survived under then existing law, even on the view that the question of fellow-servants is in the case.

While the exact point made by defendant and herein considered relating to the Fellow-Servant Act has not hitherto been made, pressed or decided in this court, yet it is not without significance that in at least two cases since the Act of 1897 was passed (Powell v. Sherwood, 162 Mo. 605; Rinard v. Railroad, 164 Mo. 270) it has been held, in effect, that it makes no differ*288•enee in a death, case whether a servant received his injuries at the hands of a negligent fellow-servant or other officer or agent or employee of the railroad company; and the personal representative was allowed to recover for the death of such injured party regardless •of such questions in those cases. Neither must it he •overlooked that if the theory of the appellant is sustained, viz.: That the right of action existing in Strottman under the Fellow-Servant Act (had he lived) was not transmitted to his widow under the provisions of the old Damage Act — then by that holding we strike •down the reasoning underlying the affirmance of a long line of cases for deaths caused by a negligent violation of imposed statutory or ordinance duty.

For example, take section 1102, Revised Statutes 1899 — the bell-and-whistle statute. It is there provided that “said corporation shall be liable for all •damages which any person may thereafter sustain at such crossing when such bell shall not be rung or such whistle sounded as required by this section.” The ■statute stops with the creation of the liability. No persons are named who are entitled to the remedy and. neither does the statute provide that a right of action for the negligent death of a’ person would survive, and yet this court has gone to the old Damage Act. and reading the two together, has always held the widow, the husband or the minor children, as the case may be, may sue. [See, for example, Kenney v. Railroad, 105 Mo. 270; Crumpley v. Railroad, 98 Mo. 34.] Precisely the same condition of things obtains in regard to section 1103. That section makes a railroad corporation liable for damages from its neglect to construct •a road-crossing or erect sign-boards of a character pointed out. It says the damages may be “recovered in the name of the parties injured. ’ ’ There is not a word in the section relating to a survival of the cause of action if the negligence results in death; and yet this *289court steadily held that the old Damage Act may be looked to for the right of survival. [King v. Railroad, 98 Mo. 235.] The same may be said of every action this court has sustained in behalf of a widow, a husband or minor children where the cause of action was the negligent death of a person through the violation of some ordinance duty relating to speed, vigilant watch, or the well-manning of moving cars in towns, etc. In each of these instances the right of survival has been applied to negligent deaths caused by the violation of ordinance duty, i. e-., the old Damage Act has been applied and its penalties have been recovered for such violations. The same thing is true of violations of the statute in regard to fire-escapes and kindred violations ■of laws passed from time to time. Were all these der eisions erroneous in either directly holding or assuming that the old Damage Act, creating once for all the right of survival in this class of cases, applied to any death caused by the negligent violation of either a statutory or common law duty, no matter whether the statute creating the liability sprang into existence before or after the passage of the Damage Act in 1855*? And yet if we hold that the liability created under the Fellow-Servant Act in favor of an injured fellow-servant does not survive by virtue of the old Damage Act, we plow up the foundations upon which all those decisions, in principle, rest. As pointed out by the respondent’s counsel, the true, guiding doctrine is announced in McQuade v. Railroad, 200 Mo. l. c. 157, where Brace, J., says for the court: The right of action given by statute is for negligence — not for negligence as defined by the common law, but as well for negligence that may arise from a failure to discharge a duty imposed by a statute or municipal ordinance. The statute makes no distinction, and we can make none. It contains no such limitation as is contended *290for, and we cannot put such a limitation upon its comprehensive terms.”

It therefore follows that the right of action created in favor of Strottman by the Fellow-Servant Act (had he lived) survived to his widow by the Damage Act.

Y. In the foregoing paragraph this case has not only been considered from the narrow standpoint that the telegraph operator at Blackwell was a fellow-servant of Strottman, the engineer; but it has been considered as if there was no such a thing known to our jurisprudence as the “departmental theory” — a designation used for want of a better — as if there was no duty resting upon the master to provide a reasonably safe field of operations for his servant and entitling that servant to a right of action for the violation of that duty. We come now to view the case with these broader propositions lodged in it; and, it is submitted, that as the widow had a right of action for the death of her husband under the' narrow hypothesis considered in paragraph four, so, too, she has a right of action. under the broader propositions now to be considered.

Speaking of the departmental doctrine, it must be by no means considered as a “departed” doctrine. It may not grow or thrive in unfriendly ground, where there is no Paul to plant or Apollos to water, as is abundantly indicated by excerpts from the opinions of eminent judges, quoted by Brother Burgess in his opinion. But it will do to say that the theory underlying the departmental doctrine, under one name or another, has become a component part of the jurisprudence of this State. For instance, Lanning was a member of a dock crew whose duty it was to unload coal from the cars on a railroad dock and to move the cars back and forward for the purpose of cleaning up the dock. While engaged in this duty and pinching forward a car on the dock, an engineer, whose duty it *291was to put tlie cars of coal on the dock and pull the empty cars away, so negligently ran his locomotive up the incline of the dock, by giving no signal, etc., that Lanning was injured. Thereupon he sued and recovered judgment. The case came here and was considered by us In Banc so late as 1906. [Lanning v. Railroad, 196 Mo. 647.] The personnel of this court was the same then as now, except the term of Brace, C. J., has expired and our Brother Woodson (who tried the case, nisi) has come upon this bench. In the disposition of that case we all concurred; and it was there said by Gantt, J.: “The defendant Gahagan was an engineer in the employ of the company, in charge of an gine, and worked under the direction of a yard-master by the name of Bottsford. Gahagan had nothing to do with the dock work except to push cars in on the dock and pull them out with his engine. The foreman of the dock crew had no control whatever over the ■ movement of the company’s engines. Plaintiff and defendant Gahagan were thus employed in widely different departments, ‘each looked to a different individual as the master’s representative for directions in Ms work, and had no practical connection with the superior who guided and supervised the acts and conduct of the other.’ In Sullivan v. Railroad, 97 Mo. 113, it was held.by this court that a track-walker on the railroad is not a fellow-servant with the locomotive engineer, or fireman of a passenger train, and in Condon v. Railroad, 78 Mo. 567, it was ruled that a car-repairer at a station and a trainman were not fellow-servants within the meaning of the rule that exempts the company from liability to a servant for injuries occasioned by the negligence of another servant. And in Hall v. Railroad, 74 Mo. 298, it was held a section foreman and switchman were not fellow-servants, and in Dixon v. Railroad, 109 Mo. 413, a quarry laborer under orders of a foreman, who had control of the quarry and rep*292resented the company there, was not a fellow-servant, with the trainmen on a passenger train. In view of these decisions we think that the workmen so distantly related to each other in the service of a common master as plaintiff and Gahagan were, were not fellow-servants within the meaning of the rule which exempts the master from liability for' injuries inflicted by a fellow-servant upon a fellow-servant. It would serve no good purpose to enter upon a general discussion or attempt to enumerate the cases in which employees of a common master are held to be or not to be fellow-servants. In our opinion the reason of the rule forbids its application to the facts in this case,” etc.

To the cases cited by Brother Gantt in the Lanning case, as sustaining the departmental doctrine, we may add Moore v. Railroad, 85 Mo. 588, where it was held that a car-repairer and the crew of the engine that ran into the car the repairer was working on were not fellow-servants; also Smith v. Railroad, 92 Mo. 359, holding (as said) that a train-dispatcher and the trainmen were not fellow-servants; Dixon v. Railroad, 109 Mo. 413, holding that a laborer whose duty it was to couple small cars in use to haul rock up. an incline across the track, the rock to be crushed and used as ballast for the road, was. not a fellow-servant with the engineer of a passenger train; and Tabler v. Railroad, 93 Mo. 79; holding that a master mechanic and wrecking-master was not a fellow-servant of a bridge carpenter. In Relyea v. Railroad, 112 Mo. 86, the defendant was held liable under the departmental theory, and that theory was formulated as follows: “They are co-servants who are so related and associated in their work that they can observe and have an influence over each other’s conduct and report delinquencies to a common correcting power; and they are not co-servants who are engaged in different and distinct departments of work.” In Schlereth v. Railroad, *293115 Mo. 87, this court held, per Burgess, J., that a locomotive engineer and track-repairer are not fellow-servants. In Swadley v. Railroad, 118 Mo. 268, it was held that a track-repairer was not a fellow-servant with the train crew of a regular freight or passenger train. In Keown v. Railroad, 141 Mo. 86, it was held that the foreman of a street car line and a gripman on one of the cars were not fellow-servants.

In the light of our repeated adjudications, it must be held that the departmental theory must not be put to one side. Unquestionably the Legislature so understood the law, as declared by this court; because in the Act of 1897, whereby fellow-servants were defined, the departmental theory received legislative recognition in the proviso made a part of section 2875, as follows: “Provided, that nothing herein contained shall be 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.” Under the Act of 1897 and the new Damage Act of 1905 the question we are considering cannot long continue a live one in railroad litigation, and we may close its consideration (for the purposes of this case) by referring to the remarks of Gantt, J., in Parker v. Railroad, 109 Mo. l. c. 379, viz.: “The main and only difficulty has been to satisfactorily determine , at all times whether the employment was a common service, and the employees fellow-servants within the meaning of the rule. And after due consideration we are of the opinion that, unsatisfactory as it may seem, the rule itself must remain general, its application specific, as the cases arise. This rule, to exempt the master, requires the servants shall be employed by a common master and the servants must be employed in the same common employment.”

While it is true, in a loose sense, that a telegraph *294operator and an engineer may be said to be engaged in a general way in running a train, yet in final analysis there is no more common employment in a distinct definite branch of work between an engineer of a train and a telegraph operator than there is between a train-dispatcher and an engineer, between a track-walker and an engineer, between a car-repairer and an engineer, or between a track-repairer and an engineer; because, in a broad sense, there is a common employment between each and all, i. e., to assist in running trains; and, therefore, if there is no relation of fellow-servant between the parties mentioned, as has been held, then it may well be held, by the same token, there is no such relation between an engineer and a telegraph operator.

Finally: The departmental theory has received exposition in connection with the principle of law that the duty devolves upon a master to use due care to provide for his servant a reasonably safe field of operation. It has been held that this is a duty the master cannot delegate; and that, to whomsoever it is entrusted, that person becomes the alter ego of the master in the eye of the law. This view of the law, entertained in many cases, has been elaborated in two very late ones: Jones v. Railroad, 178 Mo. 528, decided In Banc; and Smith v. Fordyce, 190 Mo. 1, decided in Division.

In the Jones case, through the negligence of servants, whose duty it was to set the brakes on cars not in immediate use and left by them standing on a side track, these cars (in a not unusual windstorm) escaped from the side track, and ran upon the main track, and Jones, an engineer of a regular ■ train on the main track, was killed in a collision with the escaped cars. In that case this court, per Valliant, J., with whom Brack, Gantt and Fox, JJ., concurred, said: “The proposition that the burden is on the plaintiff to prove *295his case is conceded, and that the presumption is in the defendant’s favor in the beginning, follows as a ■corollary. It is also beyond dispute that there are ■dangers incident to the business of operating a locomotive on a railroad, even when the business is conducted with due care on the part of both master and ■servant; that of such dangers, the servant assumes the risk, and if he is injured through an accident that is incident to the business, without fault of the master, he cannot recover. Proof, therefore, of the mere fact that the servant was injured in the master’s service is not sufficient to make out a prima-facie case for the plaintiff. To that extent, the authorities cited in the brief for appellant sustain those propositions. But when cars are found running loose and unattended on the main track at a time and place when and where they are liable to cause the wreck of a regular train, it cannot be said that the danger so incurred is one ■of the usual and ordinary hazards incident to the business. It is not a usual and ordinary occurrence in a prudently managed business for cars to be found running loose in that manner; it does not ordinarily occur unless some one has neglected his duty, and it is not, therefore, a risk assumed by the servant.' And since it is an occurrence not likely to happen in the orderly course of business, when it does happen and a servant is injured in consequence, it calls for an explanation. TTpon whom does the burden of making the explanation devolve? It devolves either on the injured servant ■or on the master. If it was the duty of the injured servant to attend to those cars on the side track, to ■see that they did not escape, then the burden of making the explanation devolved upon him. But if he had nothing to do with securing the cars in their position ■on the side track, if his duty related only to the operation of the locomotive engine, then there is no explanation due from him.

*296“The question of the negligence of a fellow-servant does not enter into this case, because, as was shown by the pleadings and proof, the statute law of Kansas makes the railroad company liable to a servant for the consequences of the negligence of a fellow-servant. But, even at common law, the negligence charged in this case was not the negligence of a fellow-servant. .It is the master’s duty to furnish the servant reasonably safe appliances and a reasonably safe field of operation. This duty, of course, in an extensive business the master cannot attend to in person, but must intrust to servants, but.the servants to whom it is intrusted act in the master’s place and perform his duty; and if they are negligent, it is his negligence. It is necessary to observe a distinction between performance, on the one hand, of the work for which the business is undertaken, and the furnishing, on the other, of the appliances and field of operation with which and in which to do the work; in the one, the servants are working for a common master; in the other, the master, either per se or per alium, is performing his duty to his servant. And whether he acts per se or per alium, if he fails to exercise reasonable care, he is negligent.

“It was the duty of the master in this case to use reasonable care to prevent those cars escaping, and, therefore, when they were found running loose, so as to imperil the life of the servant who was in the due performance of his duty, the presumption is that the master did not use reasonable care to hold his cars on the side track, and the burden is on him to prove that he performed his duty in this respect; it devolves on him to explain the occurrence. ’ ’

In the Smith ease there was a spur track from the main line of the Kansas City, Pittsburg & Gulf Railroad to a lead and zinc mine, known as the Bankers Mine, said railroad then being operated by F'orydee & *297Withers, receivers. The servants of Fordyce and Withers, as such receivers, placed a loaded car on this spur track so loaded with timbers for the mining company that its brake was hard to get at. The servants of the receivers so placing said car put a stick of wood under the wheel, and also testified they set the brake. There was evidence on the part of plaintiff that the brake on the car was not set. Presently the mining company desired to move this car and asked the railroad company to send a switch engine to perform that duty. But there was delay in sending the switch engine and crew, and the mining company through its superintendent and its own employees (as often had been done) undertook to move the car. They removed the stick of wood, and at once the car started to move down the track towards the main line. Being unable to work the brake on account of the way the car was loaded, they undertook to stop the car by blocking the wheels; but failing in that, the car escaped on to the main line and there came in collision with a car belonging to defendant on which Smith, one of defendant’s servants, was at work as a car-repairer. He was injured, sued and recovered. The case coming here,- it was assigned to Division Two, and on the doctrine of Jones v. Railroad, supra, the judgment was affirmed, Gantt, J., quoting liberally from the Jones case, adds: “It was clear that plaintiff, who had no notice of the placing of the car or that the brakes on it were left loose and unset, did not assume the risk of its running down on him while he was engaged in an apparently safe place repairing a car for defendant. The court committed no error in not holding as a matter of law that plaintiff assumed the risk of said loose car running down upon him.” [See, also, Koerner v. St. Louis Car Co., 209 Mo. 141.]

Now, apply the doctrine of those cases to the case at bar. The master was under the bounden duty to *298use reasonable care to furnish Strottman a reasonably safe field of operation. Whoever held that duty was not a fellow-servant, but held it for the master. When the master put two freight trains on a single track in motion towards each other in the night time, the field of operations, by that act of the master, became unsafe precisely as if the master had. allowed wild cars to escape to the main track. It was the duty of the master, then, to use reasonable care to avoid the danger it had created or allowed. That danger could not be avoided except one or the other of the conductors or engineers was notified. It is self-evident that no notice would- be availing that failed to reach one or the other of them. No- such notice ever reached either one or the other; and the collision, inevitable under the arrangement of the master, happened. Therefore, the duty of the master to provide a reasonably safe field of operations was violated, ergo, the master is liable. Who, let me inquire, represented this master in the one particular of providing a reasonably safe field of ■operations? Was it the train-dispatcher at DeSoto alone? If we hold that to be the law, then the duty -of the master was performed when its vice-principal, the train-dispatcher, wrote a dispatch and handed it •to-his messenger boy to deliver to the transmitting ■operator for transmission to the receiving operator at Blackwell station, though the dispatch was never sent. If we include the messenger boy as a vice-principal, a mere hand of the master, shall we say that the duty of the master was done when the messenger bpy handed the dispatch to the transmitting operator in the train-dispatcher’s office? If we do not adopt that view, but take another step and hold it was the ■duty of the master to see to it that that dispatch got on the wires and was headed towards Blackwell station, as we evidently would have to hold, then what reason -can be given for that holding other than that all these *299■things were successive steps towards notifying the engineer or conductor and changing the schedule of "those trains? And when we have held that the duty of the master was to take the first step, shall we not hold that it was the duty of the master to take the last step- — -a step which, if untaken, makes all of the other steps of no manner of account? The step of not only receiving that dispatch at Blackwell, hut of transmitting it to the engineer or conductor ? Look at it from Strottman’s standpoint.- He was entitled to due care front the master. That due care in this instance could only •arise when the conductor of his train or he, himself, received notice of a changed schedule, or the conductor •or engineer of the north-hound train received such notice. Whose voice would these trainmen listen for in such dilemma? Plainly the master’s voice. Through whose mouth only could the master’s voice speak to these doomed trainmen? Plainly only through the mouth of the telegraph operator at some station. That voice never spoke; and this master, whose duty it was to provide safe rules and regular schedules for running its trains, and special schedules for irregular trains, in this instance provided no such schedule and ■ought not to be heard to complain of a judgment against it for killing a faithful employee under such circumstances.

The judgment should be affirmed.

Gantt, C. J., and Valliant, J., concur in my views.