Funk v. St. Paul City Railway Company

• Decision Date: 27 June 1895
• Docket Number: 8982--(96)
• Citation: 63 N.W. 1099,61 Minn. 435
• Parties: ANNIE FUNK, Administratrix, v. ST. PAUL CITY RAILWAY COMPANY
• Court: Minnesota Supreme Court

63 N.W. 1099

61 Minn. 435

ANNIE FUNK, Administratrix, v. ST. PAUL CITY RAILWAY COMPANY

Nos. 8982--(96)

Supreme Court of Minnesota

June 27, 1895

Appeal by defendant from an order of the district court for Ramsey county, Kelly, J., denying a motion for a new trial. Reversed.

The order appealed from is reversed.

Munn Boyesen & Thygeson, for appellant.

The word "railroad" as used in Laws 1887, c. 13, does not include street railways. 23 Am. & Eng. Enc. Law, 316; Reiche v. Smythe, 13 Wall. 162; County Seat of Linn Co., 15 Kan. 500; Robbins v. Omnibus R. Co., 32 Cal 472; Whitcomb v. Rood, 20 Vt. 49. The practical construction placed by state officers on the term under the various acts in which it occurs is entitled to weight. 23 Am. & Eng. Enc. Law, 339, 340. Where the language of a statute is doubtful, resort may be had to surrounding circumstances, the history of the times and the mischief intended to be remedied. Smith v. Townsend, 148 U.S. 490, 13 S.Ct 634; United States v. Union Pac. R. Co., 91 U.S. 72; Preston v. Browder, 1 Wheat. 115; 23 Am. & Eng. Enc. Law, 336, par. f; Taylor v. Taylor, 10 Minn. 81 (107); Green v. Graves, 1 Doug. (Mich.) 351; People v. Supervisors of Columbia, 43 N.Y. 130; Omaha Horse R. Co. v. Cable T. Co., 30 F. 324. That there is a marked distinction between the terms "railroad" and "street railway" is apparent from the following cases: Carli v. Stillwater S. R. & T. Co., 28 Minn. 373, 10 N.W. 205; Newell v. Minneapolis, L. & M. R. Co., 35 Minn. 112, 27 N.W. 839; Williams v. City Electric St. R. Co., 41 F. 556, 43 Am. & Eng. R. R. Cas. 215; Front St. Cable R. Co. v. Johnson, 2 Wash. 112, 25 P. 1084, and 47 Am. & Eng. R. R. Cas. 287; Louisville & P. R. Co. v. Louisville City R. Co., 2 Duv. 175; Thomson-Houston Electric Co. v. Simon, 20 Ore. 60, 25 P. 147, and 47 Am. & Eng. R. R. Cas. 51; In re New York D. R. Co., 107 N.Y. 42, 14 N.E. 187, and 32 Am. & Eng. R. R. Cas. 202; People v. Newton, 112 N.Y. 396, 19 N.E. 831, and 38 Am. & Eng. R. R. Cas. 391. See Lavallee v. St. Paul, M. & M. R. Co., 40 Minn. 249, 41 N.W. 974; Johnson v. St. Paul & D. R. Co., 43 Minn. 222, 45 N.W. 156; Pearson v. Chicago, M. & St. P. R. Co., 47 Minn. 9, 49 N.W. 302; Delude v. St. Paul City R. Co., 55 Minn. 63, 56 N.W. 461.

George C. Lambert and S. P. Crosby, for respondent.

BUCK J. MITCHELL, J., concurring.

OPINION

BUCK, J.

A material and difficult question for us to determine is whether Laws 1887, c. 13 (G. S. 1894, § 2701), in regard to damages arising by reason of a fellow servant, is applicable to the case under consideration. That law reads as follows: "Every railroad corporation owning or operating a railroad in this state shall be liable for all damages sustained by any agent or servant thereof by reason of the negligence of any other agent or servant thereof without contributory negligence on his part when sustained within this state."

The defendant is the St. Paul City Railway Company, and in the complaint it is described as the owner of the Seventh street cable line in the city of St. Paul, which said line of cable railway extends from Wabasha street eastward to a point on Dayton's Bluff in said city, and that the cars and grip cars running thereon are operated by means of a cable, which cable runs in a conduit underneath the tracks of the car line. It is also alleged that the plaintiff's intestate was a plasterer by trade, and employed by the defendant to plaster the inner walls of the conduit through which the cable runs, and that while so engaged he was killed, solely through the negligence of the defendant. The jury returned a verdict in favor of the plaintiff for the sum of $ 2,500, and the defendant appeals.

The defendant is a street-railway corporation, but whether it is included in the term "railroad," as used in the law of 1887, is a debatable question. The common understanding of a railroad is that it is a graded road or way on which rails of iron or steel are laid for the wheels of cars to run upon, carrying heavy loads, usually propelled by steam. Railroads in a rude form were in use as early as 1676, but it was not until 1829, when successful experiments in the use of locomotives were made, that they first began to be extensively constructed; and it is only within recent years that another class of railroads, namely, those laid down in the streets of towns and cities, have become very numerous. 2 Bouv. Law Dict. tit. "Railroads."

Judge Robertson, in Louisville & P. R. Co. v. Louisville City R. Co., 63 Ky. 175, 2 Duv. 175, says: "A railroad is for the use of the universal public in the transportation of all persons, baggage and other freight. A street railway is dedicated to the more limited use of the local public, for the more transient transportation of persons only, and within the limits of the city. In the technical sense, therefore, a street railway is not a railroad. * * * A 'railroad' and a 'street railroad,' or way, are, in both their technical and popular import, as distinct and different things as a road and a street, or as a bridge and a railroad bridge; and it has been authoritatively adjudged that the simple term 'bridge' means a viaduct in a road dedicated to common use, and that the qualified phrase 'railroad bridge' means a viaduct constructed for the exclusive use of railroad transportation." This decision was made in 1865, and involved the construction to be given to a provision in a railroad charter which provided that no other railroad should be constructed between two named points in a city, the court holding that such provision did not prohibit the construction of a street railway between the points named.

Perhaps it may be conceded that, technically speaking, the term "railroad" would include a street railway, so far as its roadbed is made of iron or steel rails for wheels of cars to run upon; but where there is doubt about the true meaning of the word or term used in the law, the legislative intent is not to be determined from that particular expression, but from the general legislation upon the same subject-matter.

It is claimed by the appellant's counsel, and not denied by the counsel for the respondent, and such we believe to be fact, that on February 24, 1887, when the general law of that year was passed, there were no cable or electric street railways in existence in this state. If so, what was the legislative intent in using the word "railroad" in the law of 1887, to be deduced from the whole and every part of the statute taken together, upon the subject of railroads? "When the words of a statute are not explicit, the intention is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and the object and remedy in view." Potter's Dwar. St. 194, note 13. What was the mischief felt which resulted in the passage of this law? Was it a danger known, or one unknown? Was it a danger then felt and realized, or one that might possibly arise in the future? We must assume that it was dealing with, and acting upon, existing facts within its knowledge. Of course, if the language used was entirely free from ambiguity, and broad enough to include unknown things which might spring into existence in the future, they would be deemed to come within, and be subject to, the evident meaning of the terms used.

Following this line of thought, we quote the case of Bridge Proprietors v. Hoboken Co., 68 U.S. 116, 1 Wall. 116, 17 L.Ed. 571, in which Mr. Justice Miller uses this language: "It does not follow that when a newly-invented or discovered thing is called by some familiar word, which comes nearest to expressing the new idea, that the thing so styled is really the thing formerly meant by the familiar word. * * * The track upon which the steam cars now transport the traveler or his property is called a road, sometimes, perhaps generally, a railroad. The term road is applied to it, no doubt, because in some sense it is used for the same purpose that the roads had been used. But until the thing was made and seen, no imagination, even the most fertile, could have pictured it from any previous use of the word road. Some call the inclosure in which passengers travel on a railroad a coach, but it is more like a house than a coach, and is less like a coach than are several other vehicles which are rarely, if ever, called coaches. It does not therefore follow that when a word was used in a statute or a contract 70 years since, that it must be held to include everything to which the same word is applied at the present day."

And where the language of a statute is in any manner obscure or of doubtful meaning, we may recur to the history of the time when it was enacted, and seek in that history for the mischief and defect which the statute was intended to remedy. In the case of United States v. Union Pac. R. Co., 91 U.S. 72, 23 L.Ed. 224, the court said: "Courts, in construing a statute, may with propriety recur to the history of the times when it was passed; and this is frequently necessary, in order to ascertain the reason as well as the meaning of particular provisions in it." See, also, Smith v. Townsend, 148 U.S. 490, 13 S.Ct. 634, 37 L.Ed. 533; Aldridge v. Williams, 44 U.S. 9, 3 How. 9, 11 L.Ed. 469; Preston v. Browder, 14 U.S. 115, 1 Wheat. 115, 4 L.Ed. 50.

But if we assume that, at the time of the passage of the law of 1887, the history of street cars was generally known, and their use, method of operation, and dangers therefrom well understood, can it be fairly and reasonably held that it was the legislative intent to apply the term "railroad" to street railways? It is a matter of common knowledge that street cars operated by cable or electricity are more readily managed than those operated by steam, where long passenger and...