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

BURGESS, J.

— This is an action by plaintiff, Magdalene Strottman, widow of Fred. W. Strottman, against the defendant company, to recover five thousand dollars damages for the death of her husband, who was injured in a collision on defendant’s railway on October 22, 1902, from which injuries he thereafter died.

The petition alleges as follows:

“Plaintiff for her amended petition states that on and prior to the 24th day of October, 1903, Fred. W. Strottman was her lawful husband, and that she is now his widow, and that defendant was at said time and long prior thereto a railroad corporation duly organized and existing under the laws of the State of Missouri, and having capacity to sue and be sued as such. Plaintiff says that at said time and long prior thereto defendant owned and operated a railroad extending from- the city of St. Louis, in the State of Missouri, to the city of Texarkana, in the State of Arkansas.

.“Plaintiff says that defendant on said date and prior thereto, maintained and operated many trains on said railroad both north and south bound, that all said trains were run as ordered by the agents, officers, servants and employees of said defendant, and that its said trains were being run on the dates hereinafter mentioned.

“Plaintiff says that on the 22d day of October, 1902, and long prior thereto, Fred. W. Strottman was in the employment of said defendant as locomotive engineer, and that on said 22d day of October, 1902, said Fred. W. Strottman took charge of a locomotive engine of defendant, as engineer, at defendant’s request, which said engine was pulling a train of cars for the purpose of running the same and the train of ears attached thereto; and was ordered by the defendant to run the same south on its main track from DeSoto, Missouri, through and beyond Blackwell Station. Plaintiff says that, in pursuance •of said orders of defendant, said Fred. W. Strottman, on the day aforesaid, was running said engine and said train of cars south over defendant’s road; and that at the same time defendant’s agents and servants, ■acting in the line of their duties, were conducting and running an engine and train from beyond Blackwell •Station to the north on its road, and that defendant’s train-dispatcher, acting in the line of his duties, transmitted an order to defendant’s telegraph operator and •agent at Blackwell Station, whose duty it was to receive the same and deliver it to defendant’s servants in •charge of the said north-bound train; that said order required said north-bound train to stop at Blackwell Station and there pass the aforesaid south-bound train; that the aforesaid agent of defendant at Blackwell Station negligently and carelessly failed to deliver said order to defendant’s servants in charge of said north-bound train and negligently allowed said train to pass Blackwell Station, -and in consequence thereof and the negligence and carelessness of the agents and servants of defendant, in conducting, managing and directing the movements of said train, the said trains: while running at a high rate of speed came into collision,- and the said Fred. W. Strottman, without fault, on his part, sustained injuries thereby, from which he-died on the 24th day of October, 1902. That said collision was caused by the negligence and unskillfulnessof defendant’s agents, officers and servants, in ordering, managing and directing the movements of said' engines and trains, and that by reason thereof the-said Fred. W. Strottman was killed.”

The defenses were a general denial (except as to-the allegation that defendant was a railway corporation), and a plea of contributory negligence.

The trial before -the court and jury resulted in a verdict and judgment in favor of plaintiff for the sum of five thousand dollars. Having duly filed motions for new trial and in arrest, which were overruled,, defendant saved exceptions and appealed.

The facts disclosed by the record are but few,, and are substantially as follows-.

Fred. W. Strottman was at the time of the accident an engineer in the service of defendant, and, as-such engineer, in charge of an engine which was pulling out a train of cars at DeSoto, Missouri. He was-ordered by defendant to run said engine and train south, on defendant’s main track, from DeSoto through and beyond Blackwell Station, a station about nine-miles south of DeSoto and situated in St. Francois county, Missouri, and in pursuance of said order he was running said engine and train of ears south over defendant’s road. At the same time defendant’s agents and servants, acting in the line of their duties, were-conducting and running an engine and train from beyond Blackwell Station to the north on its road; and defendant’s train-dispatcher, acting in the line of his duties, transmitted an order to defendant’s telegraph operator and agent' at Blackwell Station, whose duty it was to deliver the same to defendant’s servants in charge of said north-hound train. Said order required said north-bound train to stop on the siding at Blackwell Station; but said operator and agent at Blackwell Station negligently failed to deliver said order to defendant’s servants in charge of said northbound train, and negligently allowed said train to pass Blackwell Station, in consequence whereof and of the negligence and carelessness of the agents and servants of defendant in conducting, managing and directing the movement of said train, the said trains, while running at a high rate of speed, came into collision, and the said Fred. "W. Strottman, plaintiff’s husband, without fault on his part, sustained injuries thereby from which he died.

At the close of the evidence the defendant asked the court to give an instruction to the jury in the nature of a demurrer to said evidence, which instruction the court refused to give, and the defendant excepted. Thereupon the court, at the instance of plaintiff, and over the objections and exceptions of defendant, gave to the jury the following instructions:

“The court instructs the jury as follows: If you believe from the evidence in the ease that on October 22, 1902, Fred. W. Strottman was employed by defendant as a locomotive engineer, and at the time aforesaid, while acting in the line of his duties and under the orders of defendant, he undertook to run an engine and train of cars from DeSoto south over defendant’s road to and beyond Blackwell Station, and that while said Fred. W. Strottman was so engaged and in the exercise of ordinary care, a north-bound engine and train of cars in charge of defendant’s servants and agents, acting in the line of their duties, was being run and. conducted north on defendant’s road from below Blackwell Station, and that defendant’s train-dispatcher, acting in the line of his duties, transmitted an order for the agents and servants of defendant in charge of said north-bound train to hold said train at Blackwell to- pass the said south-bound train to the defendant’s operator and agent at Blackwell Station, and that it was his duty to deliver said order to defendant’s servants and agents in charge of said north-bound train, and that defendant’s said operator negligently failed to deliver said orders to defendant’s agents and servants in charge of its northbound train, and that in direct consequence thereof, you so find, said trains came into collision and the said Fred. W. Strottman thereby sustained injuries from which he died on the 24th day of October, 1902, and that at the time of his Injury and death the plaintiff was his wife, then you will find the issues for the plaintiff.

“If you find the issues for the plaintiff, you will assess her damages at such sum as in your judgment will be a fair and just compensation to. plaintiff for ' the loss of her husband, not exceeding the sum of five thousand dollars.”

Defendant insists that plaintiff ought not to have or maintain this action, because:

First. The Act of 1897, entitled “Corporations, Railroads” (Laws 1897, p. 96), only creates a cause of action in favor of employees engaged in the operation of railroads, and creates no cause of action in favor of the widow or children of deceased, or other persons.

Second. That as the engineer and the telegraph ■operator were fellow-servants, as that term is defined by section 3 of said Act of 1897, there can be no recovery.

The act is as follows:

“Section 1. That every railroad corporation owning or operating a railroad in this State shall he liable for all damages sustained by any agent or servant thereof while engaged in the 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.

“Sec. 2. That all persons engaged in the service of any such railroad corporation doing business in this State, who are entrusted by such corporation with the authority of superintendence, control or command of other persons in the employ or service of such corporation, or with the authority to direct any other servant in the performance of any duty of such servant, or with the duty of inspection or other duty owing by the master to the servant, are vice-principals of such corporation, and are not fellow-servants with such employees.

“Sec. 3. That all persons who are engaged in the common service of such railroad corporation, and who while so engaged are working together at the same time and place, to a common purpose of same grade, neither of such persons being entrusted by such corporation with any superintendence or control over their fellow employees, are fellow-servants with each other: Provided, that nothing herein contained shall 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.

“Sec. 4. No contract made between any railroad corporation and any of its agents or servants, based upon the contingency of the injury or death of any agent or servant, limiting the liability of such railroad corporation for any damages under the provisions of this act, shall be valid or binding, but all such contracts or agreements shall be null and void.”

The testimony shows that' the telegraph operator at Blackwell Station was also defendant’s agent at that place, and that his duties as such agent were of a character entirely different from that of his duties as operator; that in the discharge of his duties as agent he was under the control of defendant’s superintendent, while in the discharge of his duties as operator he was under the control and direction, and subject alone to the orders, of the train-dispatcher on duty at the time.

It was also shown by the evidence that the engineer, in managing, running and operating the train, was under the control and subject to the orders of the train-dispatcher on duty at the time, as was also the conductor of the train. The operator at Blackwell Station and the engineers of the respective trains were engaged in the common service of defendant. They were employed by a common master, and worked together in a common purpose of the same grade. Neither of them had any control or superintendence over the other; they were in the same department or service of the company, and were clearly fellow-servants within the meaning of section 3, supra.

Plaintiff, however, contends that the engineer and telegraph operator were not fellow-servants, and that even though they were, the defendant would still be liable in damages, under the provisions of section 1 of the act, for the death of engineer Strottman.

In Smith v. Railroad, 92 Mo. 359, it is held that a train-dispatcher of a railroad, who has the control of the movement of its trains, and to whose orders the conductors and engineers are subject, is the representative of the company, and is not a fellow-servant with those engaged in operating and moving the trains. [Edge v. Railroad, 206 Mo. 471; Railroad v. Clark, 57 Fed. 125.]

A leading case upon this subject is Railroad v. Camp, 65 Fed. 952, in which it was held that a telegraph operator at a station on the line of a railroad, whose duty it is to receive telegraphic orders relative to the movement of trains from the train-dispatcher at' another place, and communicate them to the engineers and conductors of trains at his station, is not the superior, but the fellow-servant, of the engineer of a train on such railroad, both at common law. and under the statutes of Ohio. Tart, Circuit Judge, speaking for the court, said: “It is argued that the telegraph operator is not a fellow-servant of the conductor and engineer within the common-law rule. We think he is. He and the engineer and the conductor work together, at the same time and place, for a common employer, with an immediate common object, namely, the proper running of trains. It is essential, in the operating department of a railroad company, that there should be provision for communicating to those in charge of different trains the whereabouts of other trains, to avoid collision. This information is given by means of the general timetable and general rules for the running of trains with reference to each other, which the employees in charge of each train are obliged implicitly to obey. But it often happens that the general time-table must be varied from, and these variations must be communicated to those in charge of trains. This is effected usually by telegraphic orders from the superintendent or the train-dispatcher, who has supreme control of the running of trains. The information is also communicated by means' of flagmen, by means of torpedoes, by red lights and green lights upon trains, by the block-signal system, and in other ways. The subordinate employees, whose duty it is to 'transmit the orders of the officer in control, or to give information as to the presence of trains upon any part of the track, without special orders, are engaged at the same time and place with the persons operating the train, in a common employment, having an immediate, common object, namely, that of the running of trains, and therefore are fellow-servants. The man who makes the signal at the station to the engineer on the approaching train to stop is as much engaged in the running and operation of that train as the flagman sent out ahead to signal the condition of a switch. Neither exercises the discretion or the judgment or the control of the master, but each contributes his part to the safe running of the train. There can be no separation of the signal department and the operating department, for the employees engaged upon the train, in the actual, manual operation of the train, are expected to be part of the signal department of the company. The man who puts out the green light at the back of the train, to indicate that a train is following, communicates to every station agent, every conductor, and every engineer, who sees it, knowledge upon which they, each of them, must act, and yet it can hardly be said that the brakeman, in displaying this green light, is acting in a different department from the man who opens and closes the throttle valve of the engine. The principles which must govern in this case were first announced by the Supreme Court of the United States in Randall v. Railroad, 109 U. S. 478. In that case a brakeman working a switch for his train on one track in the railroad yard was injured by the negligence of the engineman of another train, in driving his engine too fast, and in not giving due notice of its approach. It was held that the two were fellow-servants. Said Mr. Justice Gray, delivering the opinion of the court: ‘They are e'mployed and paid by the same master! The duties of the two bring them to work at the same place at the same time, so that the negligence of the one in doing his work may injure the other in doing his work. Their separate services have an immediate, common object in the moving of the trains. Neither works under the orders or control of the other. Each, by entering into his contract of service, takes the risk of the negligence of the other in performing his service; and neither can maintain an action for an injury caused by such negligence against the corporation, their common master.’ Every word of this passage has application to the relation existing between the engineman of the train and a telegraph • operator charged with the duty of signaling the engine-man. Among the cases cited by Mr. Justice Gray is that of Slater v. Jewett, 85 N. Y. 61, where it was ' expressly held' by the Court of Appeals of New York that a telegraph operator and a fireman upon an engine were fellow-servants, so that the fireman could not hold the railway company liable for an injury caused by the negligence of the telegraph operator in transmitting a dispatch giving orders to the engineer.”- Later, in the same opinion, it is said: “In several of the cases already cited to- sustain the view that a train-dispatcher is not a fellow-servant- of a conductor or engineer, a clear distinction is made between the telegraph operator and the train-dispatcher, by which the former is placed in the category of all subordinate employees with the engineman and conductor, and is held to be á fellow-servant with them. Such is the holding in Slater v. Jewett, 85 N. Y. 61, already referred to, and the propriety of it has been recognized in all subsequent New York cases, and distinctly approved in Sutherland v. Railroad, 125 N. Y. 737, better reported in 26 N. E. 609. The same distinction is recognized in Reiser v. Railroad, 152 Pa. St. 38, 25 Atl. 175, and in McKaig v. Railroad, 42 Fed. 288. A different view, it is true, lias been taken in Railroad v. DeArmond, 86 Tenn. 73, 5 S. W. 600, and in Madden’s Admr. v. Railroad, 28 W. Va. 610. But in these two states the different department theory prevails, and is the basis of the decision in each case. The different department exception to the fellow-servant rule, as we have seen, has been much limited by the Supreme Court of the United States in its last utterance upon the subject, and the authorities of West Virginia and Tennessee are therein expressly dissented from. In the case of Railroad v. Charless, 2 C. C. A. 386, 51 Fed. 562, the Circuit Court of Appeals of the Ninth circuit held that a telegraph operator, under the averments of the petition in.that case, was not a fellow-servant of a train employee injured by his negligence. This decision by the Ninth circuit has been considered by us, as may be seen by reference to Judge Barr’s opinion in the Clark case, already referred to. And only, one sentence need be added, to the comment there made. The court of the Ninth circuit relies on the decision of Lewis v. Seifert, 116 Pa. St. 628, 11 Atl. 514, to sustain its conclusion. That case only decided that the train-dispatcher was not a fellow-servant of the conductor or engineer injured by his negligence. The court below had also charged that the .telegraph operator was a fellow-servant. But it did not become necessary for the Supreme Court of Pennsylvania then to pass upon the correctness of the charge of the court on this point. Subsequently, however, in the case of Reiser v. Railroad, 152 Pa. St. 38, 25 Atl. 175, this question arose squarely, and was decided as already stated, and contrary to the conclusion reached in the Charless case.”

In the case of Frost v. Railroad, 69 Fed. 936, Knowles, District Judge, refused to follow the Camp case, and held that, when an engineer on the defendant railway company’s road had been killed in a collision, caused by tbe negligent omission of a telegraph operator to transmit the order of the train-dispatcher relative to the change of running time, the defendant railway company could not escape liability on the ground that the engineer and telegraph operator were fellow-servants. The case was thereafter taken to the Circuit Court of Appeals for the Ninth circuit, by writ of error, where the judgment of the court below was reversed. The court followed the Camp case, and held that a telegraph operator at a station on the line of a railroad who receives and delivers the orders of the train-dispatcher in respect to the movement of trains, is the fellow-servant of the employees of the railroad company in charge of the train, and that such employees, if injured in consequence of the negligence of the telegraph operator, cannot recover damages from the railroad company.

In Reiser v. Railroad, 152 Pa. St. 38, it is held that a fireman of a locomotive and a station agent who is also a telegraph operator are fellow-servants within the rule that an employer is not liable to an employee for an injury caused by the negligence of a fellow-servant.

So in the case of McKaig v. Railroad, 42 Fed. 288, it was held by Nelson, J., District Judge of Massachusetts, that a telegraph operator employed by a railroad company to give information in regard to the location of trains on the road, and to communicate to the operators on the trains instructions for running them, received by him from the train-dispatcher, is a fellow-servant of the fireman on such trains.

Upon the same subject, see Edge v. Railroad, supra, and authorities cited.

As. sustaining the position that the telegraph operator and the deceased engineer were not fellow-servants plaintiff relies chiefly upon the case of Railroad v. Furry, 114 Fed. 898, but that case is bottomed upon the statute of Arkansas, by which the different department doctrine is established, and, is, therefore, not in point.

Judge Elliott, in discussing the subject of Fellow-Servants, in his work on Railroads (2 Ed.), vol. 3, sec. 1328, says: “It is a matter of which judicial notice is taken that, in operating a railroad, the services of telegraph operators and signalmen are required, and, as it seems to us, judicial notice must also extend ta the fact that the class of employees named are ordinarily employed in matters of detail. The courts are by no means agreed upon the question whether telegraph operators are vice-principals or fellow-servants. Many cases affirm that they are vice-principals, while many others assert that they are not. It is, we know, somewhat bold to venture an opinion upon a question upon which the authorities fight so stubbornly, but, nevertheless, we briefly state our views upon the question. It seems to us that telegraph operators are employees engaged in performing duties connected with the detail work of operating a railroad, and are not entrusted with the duties devolved by law upon the master, and that they are engaged under a common master in a common employment, that of moving trains upon the road. As well say that persons in charge of telephones over which directions are given in a large manufacturing establishment are vice-principals as that telegraph operators are vice-principals. They cannot he Regarded as vice-principals without violating the settled rule that the master’s duty does not extend to the details of the work of the common employment, nor without violating the rule that he only is a vice-principal to whom a duty resting on the master is entrusted. There is no more reason for holding that the master’s duty is to see that every telegraphic • direction is correctly transmitted than there is for holding that the master must see that every verbal direction given by a switchman, conductor or brakeman regarding the opening or closing of a switch is correctly worded. Our conclusion is that where the master exercises ordinary care in selecting competent telegraphic operators he is not liable to an employee injured by reason of their negligence. All the analogous cases support this conclusion, for, with very rare exceptions, it is held that matters of detail concerning the operation of a railroad pertain to the duties of employees and are not duties of the employer. A train-dispatcher who has general charge of the movements of the trains occupies a different position from telegraph operators who assist in the details connected with the movements of trains. In some of the cases a distinction is made between signalmen or flagmen and telegraph operators, but we deferentially submit that there is no solid basis for the distinction. It cannot be justly held that telegraph operators whose duty it is to transmit orders or give signals are superior agents, for they do not command, inasmuch as they simply transmit telegraphic orders, and in' doing this no more discharge the master’s duty than do ordinary signalmen or flagmen.”

While there is some conflict in the authorities, the decided weight is to the effect that telegraph operators, engineers, conductors, and all other employees of a railroad company engaged in performing duties connected with the detail work of operating a railroad, and working together at the same time to a common purpose of the same grade, as were the telegraph operator and engineer at the time of the accident in this case, are fellow-servants.

In view of the authorities alluded to, and the considerations stated, the telegraph operator, in our judgment, was at common law the fellow-servant of engineer Strottman. But were there even the shadow of a doubt upon this question, it is put to rest by section 3 of said act, by wbicb it is expressly provided “that all persons who are engaged in the common service of snch railroad corporation, and while so engaged are working together at the same time and place to a common purpose of same grade, neither of such persons being entrusted by such corporation with any superintendence or control over their fellow employeés, are fellow-servants with each other.”

With respect to the other proposition, it may be said that if section 1 of the act stood alone, it is clear that plaintiff could not maintain this action. Standing alone, this section would make a railroad company liable in damages for injury to any of its employees engaged in the operation of its road, in the absence of contributory negligence on their part; in fact, an insurer of all persons thus employed, regardless of the kind of service, against injury sustained by reason of the negligence of any other agent or servant of such railroad, and this, too, regardless of the fact that the agent or servant whose negligence causes the injury might, at the time, be engaged in some business entirely foreign to or different from the operation of the railroad. But section 1 of said act is not an independent statute, and must be read and construed with the other sections in pari materia. The second section of the act, defining vice-principals, would have no proper place in the act or statutes if it was intended by the first section to create an absolute liability upon the part of a railroad corporation for the negligence of any employee, regardless of his relations to the company or his co-employees. The persons described in said section 2 are those who act for the principals; they are vice-principals, and it is declared in the act that they are “not fellow-servants with such employees.”

It is apparent, from the reading of the act, that it was not the purpose of the' Legislature to make the first section a complete enactment within itself, for if that were the intention, there is no reason why “vice-principals” should he defined, and no reason for declaring that such are not “fellow-servants.” The evident purpose in describing them was that they might not be confounded with “fellow-servants” as mentioned in section 3 of the act. For their wrongfubor negligent acts towards other servants who are by reason thereof injured, said section 3, in effect, provides that railroad corporations shall be liable, and it also defines the fellow-servants for whose acts, resulting in injury to other fellow-servants, the railroad companies are not to be held liable.

If the first section of the act be construed alone it is apparent that all distinctions between employees are destroyed; but that this was not the purpose of the Legislature is manifest from the fact that sections two and three make such distinctions, and define who are and who are not fellow-servants.

There is no more reason for ignoring section 3 of the act than there is for ignoring section 1, and they must be construed together, and effect given to all the provisions of the act if possible. [Riddick v. Walsh, 15 Mo. 519.] This is a cardinal rule in the .construction of statutes. Thus, in Macke v. Byrd, 131 Mo. l. c. 690, it is 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 portion under consideration as will keep all the provisions of law on the same subject in harmony and give effect to all.” And again, in Litson v. Smith, 68 Mo. App. l. c. 403, “In construction of a statute all of its parts are to be construed together, and not one part only, by itself.” If possible, it should be so construed as to avoid a conflict between the different parts. [City of Westport ex rel. Tomb v. Jackson, 69 Mo. App. 148.] “Where the provisions of a law are inconsistent and contradictory to each other, or the literal construction of a single section would conflict with every other following or preceding it, and with the entire scope and manifest intent of the act, it is the duty of the courts, if it be possible, to harmonize the various provisions with each other, and, to effect this, it may be necessary to depart from a literal construction of one or more sections.” [State to use of Rosenblatt v. Heman, 70 Mo. l. c. 451.] “The language of an act should be construed in view of its title and its lawful purpose.” [2 Lewis’s Suth. Stat. Construction (2 Ed.), sec. 341.] In Connell v. Western Union Tel. Co., 108 Mo. 459, it is held: “A penal statute must be so construed that no case will fall within it which is not included' within the reasonable meaning of its terms and within the spirit and scope of its enactment.” To the same effect is Sedalia ex rel. Taylor v. Smith, 206 Mo. 346. The Court of Appeals of Kentucky, speaking of the title of an act, says: “It is essentially a part of the act, not only because it has been selected and adopted by the Legislature as one of the tests of their meaning as expressed in the bill, but because the Constitution has made it a part, and the controlling part, of the law to which it applies. It is, therefore, not only useful in affording a fair index of the legislative intent,, in case of ambiguity' in the context, but it must be read in connection with the remainder of the act, as a part of it, in determining what is the law.” [Com. v. Barney, 24 Ky. L. R. 2352.]

The title to the act is as follows: “An Act to define the liabilities of railroad corporations in relation to damages sustained by their employees, and to define who are fellow-servants and who are not fellow-servants, and to prohibit contracts limiting liability under this act.” It is indicated by this title that the purpose of the act was to create a new cause of action "that is, a liability on tbe part of a railroad company for damages to its employees by reason of the negligence of a fellow-servant while engaged in the work •of operating such railroad. When section 1 of the act is construed in connection with section 3, as it should be, full force and effect may be given to both said sections, and unless they be taken together and construed in connection with each other, no action can be maintained under section 3 or under the act, because no remedy is provided for by either section two or three.

Defendant also contends that as plaintiff’s husband and the telegraph operator were fellow-servants, the defendant is not liable at common law, and, further, that as section 1 of said act gives a right of action, for personal injuries, to the servant of the company only, and not to his widow, in case of his death from such injuries, as provided for by sections 2864 and 2865, Revised Statutes 1899, plaintiff cannot recover.

That plaintiff could not recover at common law is beyond any question, and she must look to the statutes of this State for authority to maintain an action against the company.

Plaintiff does not contend that section 1, supra, makes the action for death survive to the widow, within the meaning of the word “survive” as used in some jurisdictions, where the action for suffering and pain suffered by the deceased can be maintained by the representatives of the decehsed; but contends that the intention of the Legislature in enacting said •section was to make railroads liable for all damages sustained‘by fellow-servants engaged in the work of operating the railroad; that is to say, in case the servant sustained personal injury, he could bring a common law action for damages; and in case of the death of the servant, the railroad would be liable for damages as provided by sections 2864, 2865 and 2866, Revised Statutes 1899. Plaintiff also relies upon Philo v. Railroad, 33 Iowa 50, and Gumz, Admrx., v. Railroad, 52 Wis. 672, as holding- that under fellow-servant laws enacted in the same manner as the Act of 1897, the action survives in accordance with the provisions of the general statutes of the State allowing a recovery for death by wrongful act. But the ruling in the Philo ease is bottomed upon a statute of that State which makes the perpetrator of the act resulting in death liable for the injury, and provides that the action may be brought by the representatives of the deceased, and secures the amount recovered to the wife, children or parents of the deceased. The Gumz case is based upon a similar statute.

Section 2865, Revised Statutes 1899', is as follows: “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.”

We are unable to agree that this section has the effect of transmitting a right of action created by section one of the Act of 1897, as it has been ruled by this court that that section does not include a claim for damages for injuries occasioned by the negligence of a fellow-servant. [Proctor v. Railroad, 64 Mo. 112; Miller v. Railroad, 109 Mo. 350; Sherrin v. Railroad, 103 Mo. 378.] At the time of, and prior to, the passage of the Act of 1897, supra, Strottman would have had no cause of action because his injury was caused by the negligence of a fellow-servant, and it cannot be seriously contended that section 2865 has the effect of transmitting- a cause of action originating under section 1 of the Fellow-Servant Act. The purpose of section 2865 was to transmit a right of action which, hut for the provisions of such section, would have ceased to exist upon the death of the injured party. It does not create a new cause of action, but simply transmits one that did exist, and as Strottman’s cause of action, under the provisions of said section 1, ceased to exist after his death it is difficult to see how a nonexistent cause of action can be transmitted.

For did section 2861, Eevised Statutes 1899, have the effect of creating a cause of action when the death of a servant or employee is occasioned by the negligence of a fellow-servant or employee, and clearly it was not intended by the lawmakers to transmit a cause of action to the representatives of the deceased where the injury for which damages are claimed was caused by the negligence of a fellow-servant. [Proctor v. Railroad, supra.]

It will be presumed that the Legislature, at the time of the passage of the Act of 1897, was familiar with the decisions of the Supreme Court, which hold that, under section 2865, supra, the master cannot be held for injuries received by one servant through the negligence and unskillfulness of his fellow-servant. Had the Legislature desired to transmit a right of action to the representative of the deceased employee, it could have done so by proper and necessary legislation.

In Sutherland on Stat. Const., sec. 333, it is said: “It is presumed that the Legislature is acquainted with the law; that it has a knowledge of the state of it upon the subjects upon which it legislates; that it is informed of previous legislation and the construction it has received. ... A judicial construction of a statute of long standing has force as a precedent from the presumption that the Legislature is aware of it, and its silence is a tacit admission that such construction is correct. The re-enactment of a statute after a judicial construction of its meaning is to be regarded as a legislative adoption of the statute as thus construed. So, where the terms of a statute which has received a judicial construction are used in a later statute, whether passed by the Legislature of the same State or country, or by that of another, that construction is to be given to the later statute; for if it were intended to exclude any known construction of a previous statute, the legal presumption is that its terms would be so changed as to effectuate that intention.” [McKay v. Minner, 154 Mo. 608.]

“Where a statute creates a new right or imposes a new duty or liability unknown to the common law, and at the same time gives a remedy for its enforcement, the remedy so prescribed is exclusive. If no remedy is prescribed, the right or liability may be enforced by the appropriate remedy already provided.” [2 Lewis’ Suth. Stat. Const., sec. 720; Railroad v. Wells, 104 Tenn. 706.] By the first section of the Act of 1897 a remedy is given to the injured fellow-servant, and such remedy is, therefore, exclusive. It is not contended that said section does not provide a remedy for the injured party; and the mere fact that it does not confer such right on the wife or children is conclusive that no such right was intended.

Nothing is better settled in this State than that prior to the passage of the Act of 1897 there was no statute in force in this State which imposed a liability upon a railroad company in favor of the widow for the death, of her husband, who was at the time of his death an employee of such company, and was killed by reason of the negligence of a fellow-servant; nor does that act, in our opinion, confer such right. Said act says not a word about a right of action in case of the death of the employee, but by the first section of the act a right of action is created in favor of the party injured, and no other. The mere fact that the act was incorporated in the revision of 1899, and therein numbered by the revising committee as sections 2873, 2874, 2875 and 2876, did not add: anything to its force or effect. In passing upon a similar- question in Paddock v. Railroad, 155 Mo. l. c. 536, this court said: “Sections 2590 and 2591, as also sections 2593 to 2597, inclusive, of the Revised Statutes 1889, as above shown, are exactly the same as the laws of March 31st and March 23d, respectively, and therefore those sections must be treated, under this legislative direction, as mere continuations of those laws and not as new enactments. They were entirely different laws before and they continued to be different notwithstanding they were carried into the Revised Statutes and placed in the same article of the same chapter of the Revised Statutes, and notwithstanding that they may appear in the bill enacted by the Thirty-fifth General Assembly which revised chapter 42. This has been the-uniform ruling of this court on this question. [St. Louis v. Alexander, 23 Mo. 483; Cape Girardeau v. Riley, 52 Mo. loc. cit. 428; State ex rel. Attorney-General v. Heidorn, 74 Mo. 410; Pool v. Brown, 98 Mo. loc. cit. 680.]”

Powell v. Sherwood, 162 Mo. 612, was an action by the widow of Powell against Sherwood, receiver of the railroad company, for damages, under the Act of 1897, for the death of her husband which was occasioned by the negligence of a fellow-servant while in the service of the railroad company. But the question as to the right of the widow to maintain the action under the Act of 1897 was neither raised nor passed upon in that case, nor has it ever been passed upon by this court. And while, as has been said, “where a statute creates a new right or imposes a new duty or liability unknown to the common law, . . . if no remedy is provided, the right or liability may be enforced by the appropriate remedy already provided,” that rule cannot be applied, or is unavailing, in this case, for the reason that at the time of the death of plaintiff’s husband there was no statute in force in this State, nor was there until the passage of the Act of April 13, 1905, to amend section 2864 of chapter 17, Revised Statutes 1899, which authorizes a recovery by an employee, servant or agent of the railroad company for injuries sustained by him by reason of the negligence of a fellow-servant. There could, therefore have been no appropriate remedy at the time of the accident. The passage of the Act of 1905 tends to show that it was the opinion of the lawmakers that no such right existed prior to that time; otherwise,.there was no occasion for its passage.

The Act of 1897 is complete within itself, and not amendatory of any other act or statute. It confers authority only upon the servant injured to maintain the action, and not even by implication does it confer such right upon the widow of such servant, in which respect it differs from a statute which creates a right of action but designates no particular person who may avail himself of such right.

The statutes in question, being in derogation of the common law, must be strictly construed, and when this is done, there is no escaping the conclusion that they do not confer upon the plaintiff the right to maintain this action.

Our conclusion is that the judgment should be reversed. It is so ordered.

Fox and Graves, JJ., concur; Woodson, J., concurs in a separate opinion; Gantty C. J., Valliant and Lamm, JJ., dissent.