Bradford Construction Co. v. Heflin , 88 Miss. 314 ( 1906 )

Whitfield, C. J.,

delivered the opinion of the court.

The chief contention in this case is that the construction company was a railroad corporation, within sec. 193 of the constitution, in operating the train in question. The argument, broadly stated, is about this: That sec. 193 of the constitution of 1890 can only be upheld, as not violative of the constitution of the United States, upon the ground that the business of railroad corporations, in operating their trains, is inherently dangerous, and that this inherent danger furnishes the chief basis for distinguishing between the employes of railroad corporations and the employes of other corporations, the nature of whose business is not inherently dangerous; that this was the ground of the decision ' in the Ballard case, 81 Miss., 555 (s.c., 34 South. Rep., 533); 62 L. R. A., 407; 95 Am. St. Rep., 476; that the true intent and meaning' of said sec. 193, looking to its spirit, and not to its letter, is that the words “railroad corporation” in that section should be made to embrace any person or any corporation, whether chartered as a railroad corporation or not, while it may be actually operating, at the time of any alleged injury, railroad trains; that we are not to look at the name of the corporation, or even at its charter, as determinative as to whether such corporation falls within or without sec. 193 of the constitution, but that we are to look solely to the character of the employment, in which the employes of the corporation are engaged at the time of the injury, and that that is the determining feature, to wit, what the nature of the employment is, and not what the character or duties of the employer are, as set out in the charter of such employer- and that, if this is not the true test, then said sec. 193 violates the fourteenth amendment of the constitution of the United States, because under any other construction it would be made to apply to employes of railroad corporations whilst acting alone as common carriers of freight and passengers — that is, to railroad corporations, treated as commercial railroads, as the judicial phrase sometimes goes — and fails to protect the employes of other so-called railroad corporations, such as logging railroads, railroads used in connection with mines and lumber corporations, and various other enterprises.

It is said that a mining corporation, or a lumber corporation, which builds its own private railroad for use in connection with its lumber or coal business, is engaged in a railroad business as inherently dangerous, though it may be in a less degree, as a railroad corporation proper, a commercial railroad, and that, unless the employes of the former are protected by said sec. 193, said section is violative of the fourteenth amendment of the constitution of the United States. On this ground the counsel for the plaintiff assail said sec. 193, as interpreted in the Ballard case, as violative of the fourteenth amendment of the constitution of the United States for the reasons set out above. Curiously enough, the counsel for the railroad company also assail said sec. 193 as unconstitutional, in their reply to counsel for plaintiff, on the ground that the Ballard case did not go far enough, insisting that in the Ballard case the court ought to have held that the employes of railroad corporations meant the employes of railroad corporations while engaged as common carriers in transportation of passengers or freight, and could never apply to such employes of railroad corporations proper, if only they should happen to be engaged in the construction of a new road, or in the transportation of coal or gravel from mines or pits owned or leased by such railroad corporation proper; and, further, counsel contend that the court, in the Ballard case, should go further and declare that the employes of railroad corporations engaged as common carriers in the transportation of freight and passengers meant only, in said sec. 193, such employes of such railroad corporations as were actually engaged, at the time of the injury, in the operation of the cars, in the running of the trains, etc., and not any such employes as were not so engaged- — as, for example, telegraph operators, station agents, etc., or the employes of such railroad corporations' engaged in the construction of any work not connected in any way with the actual operation of the railroad trains — and because the Ballard case did not do that, because the Ballard case did not go on beyond what was strictly in the case, and decide these two points altogether out of the case, the railroad counsel complain, and desire to have said sec. 193 declared violative of the fourteenth amendment of the United States constitution. In short, counsel for the railroad company are aggrieved because the court did not in the Ballard case go beyond the points of decision, and write obiter dicta; and counsel for plaintiff are aggrieved because the court in the Ballard case, also, did not write obiter dicta in expanding along their line of thought the opinion beyond anything called for by the case made by the facts. It would seem unnecessary to remind counsel so eminent as those engaged on both sides in this cause, that a court could scarcely do a more unwise thing than to go a step not required by the case made by the facts in any cause that may arise. Certainly it is the object of this court not to write obiter dicta in any case.

What, now, are the answers — addressing ourselves to the precise question here involved — to be made to the contention of counsel for the appellee that the Bradford Construction Company, in operating this train, was a railroad corporation, within the meaning of said sec. 193, for the reasons set out above ? The pleadings in the case treat the Gulf & Ship Island Hailroad Company and the Bradford Construction Company as separate corporations. They are so dealt with throughout the whole course of the trial in the court below. It appears that the Bradford Construction Company is a corporation chartered under the laws of West Virginia. It is authorized to own a railroad. It is not authorized to operate one. An individual may own a railroad. Almost any sort of an association of persons may own a railroad, and may own it without operating it. Ownership of a railroad may exist for many purposes other than the transportation of freight and passengers. The ownership and operation of a railroad are things as wide apart as the poles. A careful consideration of the methods by which railroad corporations and construction companies are chartered by the laws of West Virginia will show that the methods are wholly distinct, and that the Bradford Construction Company was chartered in West Virginia as a construction company, and not as a railroad corporation, in any proper legal sense of the words. The well-known usual powers granted in charters for construction companies are wholly different from those usually granted to railroad corporations properly known as such — chartered as such. It is so exceedingly plain that the Bradford Construction Company is not a railroad corporation that that matter cannot be seriously discussed; and it must be stated that learned counsel for plaintiff do not. so insist. They hesitate, of course, to claim that, as chartered, it is a railroad corporation; but their ingenious insistence is that in this particular case the Bradford Construction Company is, while operating the train in question, under the circumstances shown in the record, to be treated as if it were a railroad corporation, within the meaning of said sec. 193, or, to put it a little differently, their precise contention is, since, as they say, the Bradford Construction Company was doing work which was railroad work — precisely the same sort of work in all respects as to danger and otherwise, which the Gulf & Ship Island Railroad would have done if it had been constructing this track — that therefore, looking to the nature of the employment, the dangerousness of the work being done by employes handling a train on the track, etc., the Bradford Construction Company is to be treated, in this instance, as if it were a railroad corporation. If this test were adopted, undoubtedly every logging railroad, every railroad running to a mine, every railroad of whatever size or character, owned or operated by any sort of partnership, association of persons, or even by any private individual, would necessarily have to be held as a railroad corporation, within the meaning of said sec. 193, merely and only because the nature of the work done by its employes was of a like sort of dangerousness with that performed by the employes of railroad corporations proper. No such contention can possibly be sustained by any true reasoning, regard being had to the history of our said sec. 193. The argument is rather one for what the said sec. 193 of the constitution ought to have declared the law to be than what it did declare the law to be.

What is the plain and simple history of the adoption of this section? We set it forth fully in the Ballard case as follows: “Sec. 193 of the constitution of 1890 was adopted after the decision of the United States supreme court in Missouri R. R. Co. v. Mackey, 127 U. S., 205 (8 Sup. Ct., 1161; 32 L. ed., 107), in 1888, and was manifestly intended to authorize legislation along the lines held constitutional in that case — that is to say, to abolish the fellow servant rule in the case of employes of railroad corporations whose business was known to be inherently dangerous — and the purpose of the last clause of sec. 193 was to extend the remedies therein provided for to any other class of employes of corporations or persons whose business was, like that of railroads, inherently dangerous, or whose business was so different from the business of other corporations or persons as to furnish the basis for a classification of the business of such corporations or persons, under which their employes might be permitted to sue without reference to the fellow servant rule, while the employes of corporations or persons not having that sort of business could not so sue; in other words, to permit a classification based on ‘some difference bearing a reasonable and just relation to the act in respect to which the classification is proposed.’ Ellis' case, 165 U. S., 150 (17 Sup. Ct., 255; 41 L. ed., 666). The use of the word ‘class’ in the last clause of see. 193 of the constitution of 1890 clearly indicates that it was not the purpose of the section to extend its provisions to all employes of all persons or corporations, but only to such employes of persons or corporations as operated businesses between which and the businesses of all other persons or corporations there exists some difference— some substantial difference — such as would be held a warrant for a classification conferring upon such employes of the first class, and denying to employes of the latter class, the benefits of sec. 193 of the constitution. The thought was that a classification might be made, giving to the employes of some corporations and of some persons the right to recover, and denying it to the employes of all other corporations or persons, provided that classification was based upon some distinctive difference between the kinds of business conducted by the one set of corporations or individual employers and the others. Section 193 was itself a special classification of railroad employes, based on the known hazardous character of the operation of railroad cars. It was the direct product of the Mackey case, supra. It is not, therefore, to be supposed that the last clause of the section meant any more than that there might be other classifications of the employes of corporations or individual persons, based also on some distinguishing difference in the nature of the businesses. We do not understand the supreme court of the United Staes, in its many decisions on this subject, to mean that the dangerousness of a particular business would be the only basis for distinguishing between the businesses of corporations or individual employers in the classification, but rather that any substantial difference between particular businesses which would serve as a reasonable basis for a classification, allowing the enrployes in the one case to recover, and in the other case not, is sufficient.”

There never was a wiser building than the writing of this sec. 193. New abler lawyers ever lived than had a hand in the drafting of that section. That great jurist and statesman, the late Senator George, is well known to have been its author. The purpose he, and those associated with him, in framing this section, had in mind, was not to provide, in a section in the organic law of the land, a remedy for all employes of all corporations, or of all persons, but to go slowly, surely, and safely, by providing only such remedy as the supreme court of the United States had already said might be provided without violating the fourteenth amendment of the constitution of the United States — to abrogate, as far as safely might be done, the absurdities of the fellow servant doctrine. They did not wish to be “hoisted by their own petard,” by framing a section which would be wholly stricken down by that great court; for, knowing the decisions of that court up to that time, as we particularly pointed them out in the Ballard case, they knew that the United States supreme court had in the Mackey case, supra, sanctioned legislation giving to the employes of railroad corporations proper — such railroads as are sometimes known as “commercial railroads,” engaged in the transportation of freight and passengers — remedies denied to such employes of other corporations. They knew that that classification had been vindicated upon the ground that the business of such corporations was inherently dangerous. They knew that they might, therefore, follow in the footsteps of the United States supreme court in going that far; and they went that far, for that reason; and they went no farther, for that very wise reason. And so, as we said in the Ballard case, if it be only correctly and carefully read, the whole scope and purpose and spirit of said sec. 193 of our constitution is to give the remedies therein given to the employes of railroad colorations proper, such as are engaged in the transportation of freight and passengers, and to such railroad corporations alone. It might be wise to extend such remedies to the employes of any business, or any corporation, or any partnership, or any association of persons, owning logging railroads, or lumber railroads, and the like; but all that (so far as what was actually done by the constitution makers is concerned) they left, and they expressly left, by the last clause of the section, to be enacted or not enacted by the legislature as the developments of the future might show to be wise and best. They gave the legislature the fullest power to deal with all other classes of corporations. They limited the relief which they granted within the bounds which we have indicated for the wise reason which we have stated. The relief they gave was very, very great. The instances in which injuries occur on logging or lumber railroads and the like are as nothing in comparison with the multitudinous instances in which injuries are daily happening to employes of railroads engaged in the transportation of freight and passengers. They were dealing with the great, paramount, supreme need of the situation. They chose to make the relief granted as to that supreme need safe, by making it stand out, to itself, upon the basis of the distinction vindicated by the supreme court of the United States. They declined to imperil that great relief by attempting to fill a section of the constitution with the infinite details that would obtain in a thousand other forms of relief, wise as it may be, in its time, but left to its time, and to the legislature of its time. That is what they intended, and what we are to ascertain is just their intent, in what they did; not what might have wisely been intended, but what in that one section (193) they did intend. There are many decisions from other states supporting most abundantly our view as to the true construction in this regard. We cite a few of them below: Griggs v. Houston, 104 U. S., 553 (26 L. ed., 840); Williams v. Northern Lumber Co. (C. C.), 113 Fed. Rep., 385; McKivergan v. Lumber Company (Wis.), 102 N. W. Rep., 332; Palangio v. Wild River Lumber Co., 86 Me., 315 (29 Atl. Rep., 1087) ; Beeson v. Busenbark, 44 Kan., 673, 675 (25 Pac. Rep., 48; 10 L. R. A., 839).

In the McKivergan case the facts and holding .were these: “Kev. St. 1898, sec. 1816, which is a part of chapter 87, concerning railroads, makes every railroad company liable for damages sustained by employes caused by the negligence of other employes. Other provisions of the chapter relate exclusively to railroad corporations doing the usual business of a public or commercial railroad. Thus provision is made for equality of transportation rates, for the furnishing of cars on demand, for the maintenance of guards and fences, and for subservience to regulations for the shipment of grain, carrying of live stock, etc. The power of exercising the right of eminent domain is also given to railroads included within the purview of the chapter. Section 1861 defined the phrase ‘railroad corporation’ as embracing any company, corporation, or person, managing or operating a railroad, whether as owner, contractor, mortgagee, assignee, or receiver. Held,, that sec. 1816, notwithstanding sec. 1861, embraces within its provisions only railroads engaged in a general railroad business for the carriage of passengers and freight, and has no ajiplication to a private railroad operated in connection with a logging and lumber business.” And that case expressly repudiates the case of Roe v. Winston, 86 Minn., 77 (90 N. W. Rep., 122), which announces a contrary construction of the Wisconsin statute by the Minnesota supreme court.

In Griggs v. Houston, the supreme court of the United States held that a construction company was not a railroad company within the meaning of secs. 1166, 1167 of the code of Tennessee of 1858, visiting penalties upon a railroad company injuring any person or animal by reason of failing to observe precautions marked out by the statute. In Williams v. Lumber Co., from the United States circuit court for Minnesota, whose state supreme court holds a contrary doctrine, it was held that sec. 2701 of the general statutes of Minnesota of 1894, providing that any railroad corporation owning or operating a railroad in Minnesota should be liable for all damages, etc., did not apply to a logging railroad built and operated for private purposes, and not as a common carrier. We quote the observations of that court at page 385 to show that it would be immaterial whether there were any other railroad corporations in our state when said sec. 193 was adopted or not, if it be clear that it was not the intent of said sec. 193 to embrace any others. Undoubtedly, if there were others then in existence, such as logging and lumber railroads, the fact that they are not mentioned in said sec. 193 is the strongest kind of evidence that they were not intended to be included within its scope; on the contrary, if there were none in existence, then, it would still depend, as it seems to us, upon the fact as to whether the constitution makers, at the time thpy adopted the section, then intended to embrace such others within the scope of said section. The language of Justice Loctiren is as follows: “It is said by counsel for defendant that it cannot apply to a railroad of this kind, because there was no such railroad in operation at the time of the passage of the act in 1887, and therefore it could not have been considered by the legislature. I do not know what the fact is as to that. My impression is that counsel is right as to the fact that there was no such railroad in operation at the time in this state; but I -am not sure, and will not assume, whether that is the fact or not. The language in this statute indicates that it was not intended to include roads of this kind. But, if it were the fact that these railroads were in existence in the state, as they are now, then the presumption would be still stronger that they were not intended to be included in that act, for the reason that the language of the act would exclude them; and, if they were in operation, it must be presumed that the fact was known to the members of the legislature at that time. The fact that language was used that would ordinarily exclude would be stronger evidence that they were intended to be excluded than if there were no such railroads in operation at the time, and therefore they were not considered. I think it is true that an act may take effect upon business that was not carried on at the time when the act was passed, if the language of the act is such that it will include that kind of business, although the same was not known at the time. But it seems to me that the language of this statute- does not include railroads of this kind. Therefore I feel constrained to hold that the ordinary doctrine with respect to negligence on the part of the fellow servants applies in this case, and that such negligence is a part of the risk taken by the employe, and cannot be imputed to the employer.”

In Palangio v. Lumber Co., it was held that a railroad constructed and operated by a manufacturing corporation in its private business was not a railroad corporation within the meaning of sec. 141, ch. 51, of the revised statutes of Maine, which made railroad companies liable to pay laborers employed by contractors under certain conditions. The court said: “Surely it is impossible to regard such á corporation as a railroad company. It does not possess one of the distinguishing characteristics of a railroad company. True, the company has constructed a roadbed upon its own land, upon which it had placed sleepers and iron rails for the transportation of its own lumber from its own lands. . But this no more makes it a railroad company, within the meaning of the law, than the construction of a camp in which- to feed and lodge its laborers would make it a hotel' company. An individual can lay a railroad track upon his own land for his own use, without obtaining a railroad charter, and without thereby making himself a railroad company; and so can a lumbering corporation.

The case of Beeson v. Busenbark is unanswerable, in our opinion, upon this particular proposition. In that case it was decided that a firm or partnership composed of private persons was not a railroad corporation within the meaning of sec. 1251 of the general statutes of 1889 of the state of Kansas. In this particular case the Kansas & Colorado Railroad Company engaged certain contractors to construct its road, which contractors sublet such construction to Beeson & Selden. Beeson & Selden were simply private persons constituting a partnership to construct railroads, and they employed and paid the trainmen that operated a train on the railroad so constructed, and Busenbark was injured whilst cleaning an ashbox under the engine of one train; another train operated by Beeson & Selden being backed against it and causing the injury. The contention was that Beeson & Selden were to be held as within the meaning of this act giving the employes of railroad companies remedies. The court say: “The statute of 181 I is to be construed strictly. It cannot apply to masters or employers not within its terms. Neither can it be construed to give protection to persons not in the employ of a railroad company. The statute has reference to servants and employes of railroads, not to servants and employes of other masters, companies, or corporations. The statute does not include partnerships, or persons in the employ of partnerships ; it does not include construction companies, or persons in the employ of construction companies; it does not include bridge companies, or persons in the employ of bridge companies, although such partnerships and companies construct railroads, build bridges, and do other public work. Statutes similar to the one referred to, changing the common-law rule between masters and servants, employers and employes, are in force in a number of the states of this country; but, with one exception, these statutes are all confined in their operation to railroad companies. The single exception, the Bhode Island statute, embraces only the cases of common-law carriers. I Am. & Eng. Ency. Law, 859 ; 24 Am. Law Bev. No. 2, 1890, p. 181. The legislature has full authority to extend the operation of the statute to all corporations, companies, masters, or employers of every occupation or business. It has not seen fit to do so. It might very properly have extended the operation of the statute to all partnerships, masters, or others engaged in the work of operating trains upon railroads, or in constructing railroads, or other like work. It has not done so. In various opinions of this court we have frequently held that the statute applied to persons engaged in the hazardous work of operating trains upon a railroad; but in all those cases we had reference to the employes of a railroad company organized in this state or of a railroad company doing business in this state. Railroad Co. v. Heley, 25 Kan., 35; Railroad Co. v. Mackey, 33 Kan., 298 (6 Pac. Rep., 291); Bucklew v. Railway Co. (Iowa), 21 N. W. Rep., 103. Again, we have held that when a railroad is being constructed, and is in the exclusive possession of, and operated by, a contractor for its construction, and the railroad company, at the time the injuries complained of are committed, has no control thereof, such company is not liable for the damages resulting from the operation of such railroad. Railway Co. v. Fitzsimmons, 18 Kan., 34; Railroad Co. v. Willis, 38 Kan., 330 (16 Pac., 728). If the statute of 1874 were extended so as to include the firm of Beeson & Selden and their employes, it must also be extended so as to include every firm, partnership,-contractor, or private person having servants or employes at work on the track or in the yard of a railroad company. Union Trust Co. v. Thomason, 25 Kan., 5; Railroad Co. v. Harris, 33 Kan., 416 (6 Pac. Rep., 571) ; Railroad Co. v. Koehler, 37 Kan., 463 (15 Pac. Rep., 567). The statute does not go so far. The courts construe laws, but do not make them.”

We have read, with great care, every authority cited by learned counsel for appellee, and we shall notice the chief ones as briefly as the limits of the opinion will allow. The two English cases referred to construe the English employer’s liability act, and were so decided manifestly because of the language of the áct. Mathew, J., in Cox v. Great Western Railway Co., 9 Q. B. D., 109, says: “The language of the act is that the plaintiff can only recover against his employers where he has sustained an injury ‘by reason of the negligence of a person in the service of the defendants who had the charge of any signal, points, locomotive engine, or train upon a railway.’ ” In other words, that act entitled, one to recover for the negligence of any person who had charge of a train upon a railway. Aiid so Pollock, B., in Doughty v. Firbank, made the same construction in 10 Q. B. D., 359. The very reason given by him for holding that railways owned by colliery owners and others were railway companies within the meaning of the English act is “that the word ‘employer’ includes a body of persons corporate or rmincorporated.” Section 193 distinctly and expressly uses the language “railroad corporations.” The case of McKnight v. Iowa Construction Co., 43 Iowa, 406, construes sec. 1307 of the code of Iowa of 1873, providing “that every corporation operating a railway shall be liable,” etc. It is true that the language in that case squarely sustains counsel for plaintiff; but we think the opinion is unsound on the ground on which it goes, but that the decision is right, and should be rested on the ground that the language “every corporation operating a railway” embraces a railroad corporation or any other corporation operating a railway.

Railroad Co. v. Phillips, 90 Ga., 829 (17 S. E. Rep., 82), is no authority for the position of appellee, but might furnish some sort of authority for holding the Gulf & Ship Island Railroad Company liable on the facts in this case. The case of Union Pac. R. R. Co. v. De Busk, decided by the Colorado supreme court and reported in 20 Pac. Rep., 752 (3 L. R. A., 350; 13 Am. St. Rep., 221), is to our mind a thoroughly unsatisfactory opinion in every respect. We decline to approve any of its reasoning, or its conclusion. In that case the court absolutely held that the phrase “railroad corporations” should embrace “any body, company, or association or persons, whether technically incorporated or not, engaged in the operation of railroads,” and apologizes for its construction of these words by saying they did so “to avoid the necessity of declaring the act unconstitutional as violating the fourteenth amendment.” This objection, which, by the way, runs through nearly all the cases taking the view of the Minnesota supreme court, is not tenable. It is well said by the supreme court of Missouri in Humes v. Mo. Pac. Ry. Co., 82 Mo., 221 (52 Am. St. Rep., 369), in meeting this objection: “It is further alleged against this statute that it is partial and special because it ‘is directed against railroads alone, while no other common carriers are brought within its operation.’ Had the legislature deemed it essential to the protection of human life and private property, they would doubtless have extended the statute to carriers by coach and water. But as the class of property and human life protected by this provision of the statute is not exposed to a like peril incident to coach and water travel, the. occasion and necessity for so extending the statute does not exist. Class legislation is not necessarily obnoxious to the constitution. It is a settled construction of similar constitutional provisions that a legislative act which applies to and embraces all persons ‘who are or who may come into like situations and circumstances’ is not partial.” It is enough if the legislature or a constitution shall deal with all in the same class alike. The constitution makers had the perfect right to select railroad corporations proper, engaged in the transportation of passengers and freight, if it had chosen to do so, without embracing logging railroads, lumber railroads, and the like, although the inherent danger of the business might be the same in the business of all such corporations, if only they embraced all railroad corporations proper in their classification. It was not for a logging railroad company or a lumber railroad company to say sec. 193 of the constitution violated the’fourteenth amendment, if said section extended the protection of the law equally to all railroads of the classes named, railroads proper, engaged in the business of common carriers. They constitute a class to themselves, and, if all in that class were similarly dealt with, it was immaterial whether the Constitution went further and embraced logging railroads and lumber railroads, which were not in that class. It is too clear for argument that the fear expressed in so many cases that the employer’s liability acts would be declared unconstitutional by the supreme court of the United States, unless they embraced within their scope the employes of all corporations of every kind whose business is inherently dangerous, like that of railroad corporations proper, is wholly unwarranted. The legislature may select any class of corporations it pleases, leaving out other and different classes, provided, only, that the employes of the class dealt with are all treated alike. They may select railroad corporations proper, and give to their employes certain remedies based •on the inherent danger of such railroad business, and leave out logging railroads and lumber railroads and the like, although their business may be to some extent as inherently dangerous as the business of the latter. What is it to them, if only all railroad .corporations proper are dealt with alike ?

Union Trust Co. v. Kendall, 20 Kan., 515, holds simply that the Union Trust Company, in its capacity as trustee of the railroad, was within the statute providing that every railway company or corporation in the state, and every assignee or lessee of such corporation, should be liable, etc. Rouse v. Harvey, 55 Kan., 589 (40 Pac. Rep., 1007), likewise holds that a receiver is within a similar statute. Wall v. Platt, 169 Mass., 398 (48 N. E. Rep., 270), also holds that receivers are within the language of the Massachusetts act providing that every railroad corporation shall be responsible, etc. Farrell v. Union Trust Co., 77 Mo., 475, also holds that a trustee of a railroad is within the provisions of such statute. Sloan v. Cent. Iowa R. R. Co., 62 Iowa, 728 (16 N. W. Rep., 331), also holds that a receiver is within such a statute; that statute, however, saying “persons owning or operating railways” should be liable, and the court held that the receiver was a person operating a railway within the meaning of that section. The truth is that there is a good deal of confused writing as to the liability of receivers, trustees, etc., of railroad corporations, within the meaning of the various employer’s liability acts. The reason at the core of all such liability is that the real defendant in every such case is the railroad corporation, and not the receiver. When that distinguishing feature is clearly held in view, there is no difficulty in the decision of any of these cases. The matter was put on its proper ground by the supreme court of the United States in McNulta v. Lockridge, 141 U. S., 327 (12 Sup. Ct., 11; 35 L. ed., 796), where the. court say: “We agree with the supreme court of Illinois that it was not intended by the word ‘his’ to limit the right to sue to cases where the cause of action arose from the conduct of the receiver himself or his agents, but that, with respect to the question of liability, he stands in place of the corporation. His position is somewhat analogous to that of a corporation sole, with respect to which it is held by the authorities that actions will lie by and against the actual incumbents of such corporations for causes of action accruing under their predecessors in office. . . . Actions against the receiver are in law actions against the receivership, or the funds in the hands of the receiver, and his contracts, misfeasances, negligences, and liabilities are official, and not personal, and judgments against him as receiver are payable only from the funds in his hands.” In Pierce v. Van Dusen, 47 U. S. App., 339 (78 Fed. Rep., 693; 24 C. C. A., 280), that great jurist, Mr. Justice Harlan, said: “If the reasoning of the Georgia and Texas courts be applied to the Ohio statute, it cannot be held to embrace the employes acting under the receiver of a railroad corporation; but in our judgment the statute is applicable to actions against receivers of railroad corporations. To hold otherwise would be to subordinate the reason of the law altogether to its letter.” As said by Mr. Justice Valliant in Powell v. Sherwood, 162 Mo., 605 (63 S. W. Rep., 485), in a masterly opinion: “The receivership is pro hac vice the corporation itself, under the management of one man, instead of that of a board of directors.” In that very case the receiver was held embraced by the law of 1897, which act, however, defines railroad corporations to mean “all corporations, companies or individuals owning or operating a railroad.” The same reason why receivers and'trustees are held within the meaning of these employer’s liability acts is also set out in Farrell v. Union Trust Co., 77 Mo., 477, as follows: “It was not expressly decided that the receiver would be, but we see no reason why he should not be, liable. He stands in the pláce of the company, represents the company, and while not directly, the railroad company is ultimately responsible, because damages recovered against the receiver in such a case he may charge to the company in his settlement.” In Rouse v. Harry, 55 Kan., 598 ; 40 Pac. Rep., 1010, it is said, amongst other things: “A suit against a receiver is in form against an individual, but in substance it is against the property in his charge.” It may be remarked, by the way, that in this very authority relied on by counsel for appellee it is said: “The distinction between contractors employed in the construction of a railroad and a railroad company is broad and well marked.”

We have reviewed these leading authorities cited by the learned counsel for appellee to sustain their proposition that the Bradford Construction Company is to be treated, whilst operating this train, as a railroad corporation, within the purview of said sec. 193, and we think that we have demonstrated that each case cited was upon employer’s liability acts materially different from sec. 193 of our constitution, or that they are, in the two or three instances pointed out, wrongly decided, or decided rightly for \Vrong reasons. We are clearly of the opinion that said sec. 193 of our constitution applies to railroad corporations proper, which are engaged in the business of common carriers transporting freight and passengers, and not to logging railroads and lumber railroads and the like, owned or operated by individuals, corporations, or partnerships, as adjuncts to their main business. We leave undecided, for the present, the question whether, granting that the railroad corporation involved in the particular ease is a railroad corporation proper, engaged as a common carrier in transporting freight and passengers, it would not be liable, under said sec. 193, to its employes, if at the time of the injury it were engaged in constructing some new railroad or branch railroad, or in hauling coal and gravel and the like from mines and pits. We decline to anticipate anything. We decide only the case before us, but we refer, as shedding light on this question, to Gulf Railroad Co. v. Howard (Texas Civ. App.) 75 S. W. Rep., 803, where the court held that a somewhat similar provision applied to employes operating cars in round houses, coal chutes, etc. This last proposition is entirely distinct from the proposition which we think it is proper to decide in this case, and that is that said sec. 193 of the constitution applies to the employes of railroad corporations proper, engaged as common carriers in the transportation of freight and passengers, and to such employes only when injured whilst doing work in some manner connected with the use and operation of the railroad. This latter proposition has been expressly decided in Luce v. Chicago, etc., R. R. Co., 67 Iowa, 75 (24 N. W. Rep., 600, the court holding that “one employed in a railroad coalhouse, and injured by the negligence of a co-employe whilst loading coal upon a car, cannot recover from the company, because the injury in such connection is not in any manner known as the use and operation of a railroadand also in Blomquist v. Railway Co., 65 Minn., 69 (67 N. W. Rep., 804), in which the court said: “In order to sustain the law, we have, by judicial construction, limited its operation to those employes of railroads who are exposed to the peculiar dangers attending the operation of railroads, or what are, for brevity, called ‘railroad dangers.’ ”

It manifestly never was the purpose of the constitution-makers in said sec. 193 to give to all employes of railroad corporations the remedies therein provided. They meant such employes as were imperiled by the hazardous nature of the business of operating railroad trains. The very ground upon ‘which the United States supreme court all along held that -such legislation was constitutional was that the nature of the business of operating railroad cars is inherently dangerous. It would be absurd to hold that there was any inherent danger in 'discharging the duties of ticket agent, or telegraph dispatcher, -or many other officers in which employes of railroads are at work. It would be equally absurd to hold that employes of a ^railroad corporation engaged in the construction of a round Rouse, or in any otRer work not at all connected with the operation of the cars, were engaged in work inherently dangerous. They would be in no more danger than any other like employe of any other master.. In short, the reason which sustains said sec. 193 of the constitution being the inherent danger attending the actual operation of railroad trains, the remedy must he limited to those employes whom such danger imperils.

So far as the first contention of counsel for appellee is concerned, it is sufficient to say that it is without real merit. The Gulf & Ship Island Railroad is out of the case by the judgment of the court below, unappealed from, and the evidence in the case shows that Heflin was the servant of the construction company.

And, so far as the contention that the Ballard case is unsound, it is sufficient to remark, first, that that case was considered for two years by this court; second, that it was argued four times orally; third, that it received the concurrence of five of the judges of this court; fourth, that every argument that has been advanced now to show that the mere fact of incorporation was a defense was earnestly pressed in the argument of the Ballard case; fifth, that that case has stood as the law of the land for some years without question. It is simply waste of time to ask this court to overrule a case so thoroughly and patiently considered, and which has been so long established as the law of the land.

The fourth and last contention of appellee is that Heflin was not a fellow servant of the engineer, even at the common law. We have carefully considered the cases cited under this head, but we find ourselves constrained by the decisions of this court in the past, which all know went to the utmost verge in extending the fellow servant doctrine, to hold that Heflin must be regarded as such fellow servant, even if regard be had to the fact that at the very moment of the injury he was not shoveling dirt from the rails, hut assisting in replacing the appliance which had become misplaced on the flat car.

It follows, from these views, that the judgment below should have been for the appellant.

Reversed and remanded.