(dissenting). I repectfully dissent from the decision of the court. The majority are of the opinion that the lookout, signal-passing, and engineer relief duties of the firemen for inroad service of freight trains could be accepted by the legislature as having a significant or substantial relation to the objective sought, namely, railroad safety for the public and the crew. I disagree. In matters of public safety, as in other social relationships, there is such a thing as a law of diminishing returns.
While we should not permit a public carrier to fail or refuse to take every reasonable precaution to protect the public, there is a line of demarcation between reasonable and unreasonable requirements.
Here we are dealing with comparative safety, not absolute safety. Comparative safety is necessarily attended by factors of disadvantage which must be considered in the comparison. One of these factors is cost.
The cost of complying with state laws enacted to promote safety is an important element in determining whether the law is arbitrary and unreasonable. Missouri Pacific R. R. v. Norwood, (1931), 283 U. S. 249, 255, 51 Sup. Ct. 458, 75 L. Ed. 1010. The evidence discloses that it will cost the appellants in excess of $6,000,000 annually to comply with the provisions of this act in the state.
I think that this speculative advantage to safety through the retention of a fireman on a modern-day diesel car is so highly problematical and uncertain that the expenditure of this sum annually for that purpose out of the annual income for the Wisconsin area is unreasonable and arbitrary.
This is especially true where the industry is being subsidized by annual congressional appropriations granted pursuant to the Railroad Retirement Act.
Assuming the present firemen’s duties to be desirable in the interest of public safety, it does not appear from *660the record that a separate crew member is at all necessary to their performance. From my view of the testimony it would appear clear that such duties could be assumed by the conductor or head brakeman or shared between them.
In my opinion the trial court was correct in referring to the statutes in question when he stated in his opinion:
“They are essentially job statutes, rather than safety measures as was originally intended.”
However, the trial court drew a contrary conclusion and, in my view, inconsistent and erroneous.
I would hold sec. 192.25 (2), Stats., invalid and unconstitutional as an unreasonable and unlawful exercise of the police power and reverse that part of the judgment. I would affirm that part of the judgment which holds secs. 192.25 (4) and 192.25 (4a) unconstitutional and void.