The following opinion was filed April 24, 1909:
Winslow, C. J.(concurring)'. "While I heartily agree with the opinion of the court in this case, I deem it proper, in view of the importance of the case, to add a few words of my own in order to express in my own way the grounds upon which I understand the decision to be based.
The main contention of appellant is that the law is unconstitutional because not confined to -those employees who are actually engaged in operating trains or incurring risks pecul- ' iar to the railroad business. The claim is that there can be no classification except a classification of employees based upon the character of the risk incurred. There is doubtless much authority which justifies this claim. Such was unquestionably the controlling idea when laws of this nature first made their appearance on the statute books. Many such laws were confined by their terms to injuries resulting from hazards peculiar to the railroad business, and some were upheld only because the courts were able to construe them as intended only to cover injuries resulting from such hazards. "Whether the last-named courts would now feel required to so *258construe sucb laws in order to sustain their constitutionality may be doubtful. I think not, and for this reason:
Railway corporations engaged in the business of common carriers have been classified and subjected to peculiar and special legislation from the earliest times, and properly so. Their situation and the peculiar character of their business and its relation to the public safety demand special legislation. This law, therefore, in classifying railway carriers and subjecting them to different liabilities, only follows many other laws whose constitutionality never has been questioned. Viewed in the light of a classification of railway carriers rather than as a classification of employees or dangers, there seems to me no reason why it should not be sustained without difficulty. Railway carriers conduct a business unique in its dangers, both to their employees and to the public, and are charged with unique liabilities to the entire public. These are considerations which suggest or demand special and peculiar legislation; and this legislation may well be along the linos of an increased liability for the negligence of their own employees, not only in the operation of trains but in all the railway business.
From the fence repairer to the locomotive engineer, practically every railway employee is doing something upon which depends not only the successful operation of the railroad but the safety of the passengers who ride over it. The fence repairer in the present case was engaged in assisting in making travel over the road safe from the danger of collision with animals. He was performing a duty to the public with which the railroad is charged. The man repairing fences on a farm is performing no such duty. Herein lies the distinction between the two acts, and herein lies, also, the reason which calls for special legislation requiring higher care on the part of the railway company in the selection of all of its employees, and imposing greater liability for the acts of employees than is required of an ordinary employer.
*259In a word, it is proper to subject railway carriers to a higher degree of liability for the-neglect of their servants, not simply because the business has peculiar dangers, but because it bears a peculiar relation to the safety of the public which no other business bears, and hence greater diligence in the selection of its employees may justly be demanded and enforced by means of a law imposing a heavier liability than that imposed on ordinary employers. This principle was, I think, fully recognized in the Employers’ Liability Cases, 207 U. S. 463, 28 Sup. Ct. 141, where the federal law which attempted to make an interstate railway carrier liable to any of its employees for injuries resulting from the negligence of co-employees, notwithstanding slight contributory negligence, was under consideration. It is true that the law was held void, but only on the ground that it covered intrastate commerce as well as interstate commerce, and hence was beyond the power of Congress to enact. Otherwise the law, which covered by its terms all employees, was practically approved. Mr. Justice White, who wrote the opinion of the court, says that if the law applied to the District of Columbia and the territories only it could not be questioned, because the legislative power of Congress over these regions is plenary and not dependent on the interstate commerce clause of the constitution. Mr. Justice Moody, in his dissenting opinion, says:
“It is rather startling to hear that in enacting laws applicable to common carriers alone Congress has made a capricious and arbitrary classification. Erom time immemorial the common law has set apart those engaged in that business as a peculiar class, to be governed in many respects by laws peculiar to themselves.”
Thus it is seen that the supreme court of the. United States, in treating of a law substantially identical with the law before us, regarded it as a law classifying railway carriers and not as a law classifying laborers. In this view I can see no difficulty with the main provision of the law, which makes *260railway carriers liable to an employee wbo may be injured by the negligence of a co-employee. It is a classification of railway carriers wbicb is reasonably suggested, if not de^ manded, not merely by the peculiar risks incurred by the employee, but by the highly important duties which the railway companies and their employees are in duty bound to perform for the safety of the public.
As to the exclusion of shop and office employees a different question arises. It is undoubtedly true there may be classification among employees, if the circumstances of the employment are so far different as to suggest the propriety of classification. As a general rule, shop and office employees are in less danger from the negligence of their co-employees, and perform duties less directly connected with the safety of the traveling public, than train employees and construction or repair gangs. The legislature deemed the difference in duties sufficient to exclude shop and office employees from the provisions of the law, and the court would not be justified in holding that the legislature was wrong in its judgment.
Upon a motion for a rehearing there was a brief for the appellant by H. O. Fairchild, attorney, and Burton Sanson and G. S. Van Alstine, of counsel, and a brief for the respondent by Mmahan & Mmahan.
The motion was denied March 9, 1909.