
    Pascagoula Street Railway & Power Company v. Christian Brondum.
    [50 South. 97.]
    1. Steeet Railways. Collisions. Evidence. Injury resulting from moving ears. Code 1906, § 1985. Presumption.
    
    Code 1906, § 1985, providing that, in actions against railroads for damages to persons or property, proof of injury inflicted by the running of locomotives or cars shall be prima facie evidence of want of reasonable care, does not apply to a street railroad.
    2. Same. Construction of trade,. Negligence.
    
    The rails of all street railways ought to be flush with the surface of the street or road on which they are laid.
    .3. Same. Appeals. Harmless error. Erroneous instruction.
    
    Where, in an action against a street railway company for the death of a child struck by a car, the evidence showed that the child either stumbled over a rail negligently allowed to be elevated above the surface of the street, and was struck by the car, or was struck by the car without having stumbled, while the car was negligently operated, the error in an instruction announcing that the death of the child by the running of the car was prima facie evidence of negligence, authorizing a recovery, etc., was not prejudicial.
    4. Same. Negligence. Contributory negligence. Children.
    
    A child six years of age, killed by a street car, cannot be charged with contributory negligence, so as to defeat an action by the parents for negligent death.
    Peom; the circuit court of Jackson county.
    HoN. William H. Uaely, Judge.
    Brondum, appellee, was plaintiff in the court below; the Street Railway & Power Company, appellant, a corporation, was defendant there. .Prom a judgment in favor of plaintiff' for $6,000, tbe defendant appealed to tbe supreme court.
    Tbe suit was for tbe alleged wrongful death of plaintiff’s, daughter, a child about six years old. Tbe company operated an electric car line in Pascagoula, and its track along one of the-streets passed in front of a public school house At the time of the injury a large number of the school children were playing near the school building, at the noon recess, and in their games-several of them, in chasing, each other, went beyond the school limits and into the street, among them appellee’s daughter.. While thus playing, and running in the street, she stumbled in attempting to cross the street car track, and fell in front of a. rapidly approaching street car, and was run over by it and so-seriously injured that she shortly thereafter died from her’ injuries. The street was straight, and the evidence showed that the motorman in control of the car could have seen any person, in the street for a distance of from one hundred to two hundred, yards ahead of him. The car, when it struck appellee’s daughter, was running at a speed of seven miles per hour. It was shown that one of the car brakes was defective, that the motorman did not attempt to stop the car until within fifteen feet, of' the child, and that the car could not, in its defective condition,, be stopped, even with proper effort, in a shorter distance than forty to forty-five feet. It was questionable-whether or not the child stumbled over the railroad track, but she fell while crossing the track. One of the rails of the track was elevated about three inches above the surface of the street, and the other rail was about one inch above the surface, in violation of the company’s franchise, granted by the city, requiring the rails of the-track to be flush with the street.
    
      Flowers <& Whitfield, and Ford, White & Ford, for appellant..
    We think the court need go no further into this case than is-, necessary to consider the first instruction given for plaintiff. This instruction is based upon Code 1906, § 1985. It Was. .given upon tbe idea that Code 1906, § 1985, applies to street railway companies; tbat such companies are included in tbe general words “railroad companies” employed by tbe statute. Tbis statute was never intended to be used in actions against .street railway companies, and we doubt whether it was ever attempted to be so used before. There are several reasons why it cannot be applied to street railways. In fact, tbe very life of the statute is jeopardized by extending it to such railways.
    (a) In tbe first place, at tbe time tbis rule was adopted into the statutes of tbis state, tbe lawmakers knew nothing of street railways. Tbe statute was first enacted in 1816. Laws 187 6, p. 34. At tbe time there was not an electric street railway in tbe world. It was brought forward as Code 1880, § 1059, and appeared in tbe chapter on railroad corporations. It was after tbe adoption of tbe Code of 1880 tbat experiments with electricity began to furnish some promise of tbe use of it as a power to move cars along tracks. It was not until 1888, twelve years after the adoption of our statute, tbat tbe first electric railway was successfully operated. Tbe section then came forward into the Code of 1892, appearing there as section 1808. At tbat time there was not an electric railway in tbe state of Mississippi, nor was there until several years later. So it appears -that tbe legislature could not possibly have been aiming at any difficulties found to exist in tbe prosecution of suits against electric railway companies. There was no evil of tbat kind to cure. It •can hardly be said tbat they were passing laws with respect to something they bad never beard of. When tbat body used tbe words “railroad companies,” they bad in mind only such railroads as they were acquainted with; tbat is, they used tbe words with their ordinary meaning.
    It is proper, in construing a statute of doubtful meaning, to look to tbe history of it and find out with what subjects tbe lawmakers bad bad experience at tbe time tbe law was passed. Funic v. St. Paul, etc., Railroad Go., 61 Minn. 435, 63 N. W. 1099, 29 L. E. A. 208, 52 Am. St. Eep. 608; Lincoln Street Railway Go. v. McClellan, 54 Neb. 672, 74 N. W. 1074, 64 Am. ■St. Eep. 736. These words “railroad companies” came into this law with a well-understood meaning. They referred to nothing but the ordinary commercial steam railroad company. ■ The statute has not been changed in this regard since electric railways came into use in this state. The legislature of 1906 •changed the section at the end so as to make it apply to passengers and employes. There was some change, too, in the act of 1876 when it was brought forward into the Code of 1880; but 'the words “railroad companies” have been preserved throughout. As far as our books show, this is the first attempt to apply it 'to street railway companies. It has seemed to be the opinion of the bar of the state that it was intended for use only in suits against the ordinaiy commercial railroads. The statute mentions “locomotives” and “cars.” Street railways do not have locomotives. The use of this term is some evidence of the meaning of the statute. The authors of this statute had in mind the railroad train, made up of locomotives and cars.
    (b) Words used in a statute by a legislature, whose members are taken from the people, are usually given their ordinary well-understood meaning. The words “railroad companies” are ordinarily understood to embrace those companies which own and operate great commercial lines of traffic, and which run over their lines trains of cars drawn by locomotives propelled by ■steam. While it may not be material what kind of power is used, the general idea is of a heavy locomotive drawing long trains over long distances at a high rate of speed. Our legislature separates the two kinds of carriers very clearly. When ■our legislature is dealing with streét railways, it expressly says so. When it deals with railroad companies in general it does not expressly exclude electric railway companies, but assumes that they are not embraced within the general provisions dealing with railroads. Section 328 of the Oode of 1906 authorizes the board of supervisor's to permit “street railways” to be ■constructed along the public roads. Under chapter 24 of the ■Code of 1906 corporations for every lawful purpose may be chartered, except those for the operation of railroads and for the carrying on of insurance business. Street railway corporations may be chartered under this general chapter; but there is-another and special provision in the chapter on railroads for the incorporation of railroad companies. In the chapter on privilege taxes railroads are taxed in one manner under section 3856, and street railways in another manner under section 3874. Chapter 118 of the Code deals with “Railroads.” Practically every section of that chapter refers to steam railroads operated over long distances. In fact, no section up to 4059 has reference to street railways. Sections 4059 to 4062, inclusive, expressly refer to street railways. With the exception of these four, nothing in the said chapter affects the rights, duties, or liabilities of street railway companies. When we come to the chapter on “Revenue,” we find, in section 4382, “each railroad company owning and operating a railroad” shall do certain things. But this is not regarded nor treated as having any application to street railways. The property of railroads in general is assessed by the state railroad commission, but that of street railroad companies is assessed by the county authorities and then the railroad companies supervised by the state commission under chapter 139 of the Code are those operating the ordinary commercial steam railroads.
    The legislature uses the word “railroad” all through the Code as referring only to the lines which are ordinarily referred to as railroads. In section 4884 we find some slight evidence that the legislature considered that there might be some uncertainty about the use of this term, or that street railways might be included in the general words “common carriers,” and therefore thought it safe to expressly exclude street railways. But it is evidently too plain for argument that the established meaning of “railroad” is a line of iron rails stretching for long distances and over which steam locomotives draw long trains of cars at a great rate of speed, carrying freight and passengers from one part of the country to another. The power of the owners of the said property; the great money value of such property; the hazardous nature of the business of operating such property; the great number of people engaged in its operation; the necessity and constancy of its use by the public — these considerations call for special laws dealing with the rights, duties, and liabilities of railroad companies. In the public mind that class of transportation is entirely distinct and different from that conducted by the class known as street railways. In this state the two kinds of property are clearly distinguished in the mind of the people. When the legislature deals with street railways, it expressly says so. When it deals with the other class, it uses the general term “railroad.”
    (c) And our legislature, in using the words “railroad companies” with the meaning which excludes street railways, not only gave these words their ordinary meaning as employed by the people in this state, but with the same signification recognized in other states. In fact, this is their popular and technical meaning. Text-writers prepare volumes on “Street Railways” and other volumes on “Railroads.” The Encyclopedias do not discuss the two subjects at the same time. In State v. Duluth Gas & Water Co., 76 Minn. 96, 78 N. W. 1032, 57 L. R. A. 63, it was held that under the revenue laws of that state a street railway corporation was not a “railroad company.” The court said: “All through our statutes the legislature has uniformly, so far as we have discovered, used the word ‘railroad’ or ‘railway,’ when unqualified, as referring exclusively to ordinary commercial railroads; while, on the other hand, when they have intended to refer to street railroads they have qualified the word ‘railroad’ by the prefix ‘street.’ ”
    “Every railroad company, as aforesaid, shall be liable for all damages inflicted upon the person of passengers while being transported over the road, except in cases where the injury done arises from the criminal negligence of the person injured, or where the injury complained of shall be the violation of some express rule or regulation of said road actually brought to his or ber notice.” Section 3, ant. 1, c. 72, Comp. St. Neb. 1897. The supreme court of Nebraska discussed this section in Lincoln Street By. Go. v. McClellan, 54 Neb. 672, 74 N. W. 1074, 69 Am. St. Pep. 736, and held that it did not apply to street railways. Among other tiling’s the court said:
    “When this law was enacted there was neither occasion nor demand for legislation of this character in the interest of tramway passengers. The means then employed for their transportation was the old-fashioned lagging horse car, in which the transit was not only safe, but peculiarly free from every suggestion of peril. Cable traction had not yet come into use, and, electricity as a propulsive power was not within the dreams of legislative philosophy, and had no existence anywhere save, perhaps, as a dim possibility in the minds of some ardent theorists. In the common understanding, a railroad and a street railway have always- been separate and distinct things. One is a graded road over which heavy cars, running on iron or steel tracks and usually propelled by steam, carry passengers, freight, and baggage; while the other is exclusively employed for the transportation of passengers in cities, and is so constructed as to interfere but little with ordinary traffic. Elliott on Poads and Streets, 557; Funh v. St. Pant City By. Co., 61 Minn. 435, 63 N. W. 1099, 29 L. P. A. 208, 52 Am. St. Pep. 608; Louisville, etc., B. B. Co', v. Louisville City By. Co., 2 Duv. (Ky.) 175. In the case last mentioned it is said: ‘A railroad and a street railroad or railway, are, in both their technical and popular import, as distinct and different as a road and a street, or as a bridge and a railroad bridge.’ And in Bloxham v. Consumers’ Electric, etc., By. Co., 36 Ela. 519, 18 South. 444, 29 L. P. A. 507, 51 Am. St. Pep. 44, the court say: ‘The word “railroad” as generally used, applies to commercial railways engaged in the transportation of freight and passengers for long 'distances, and, as a general rule, having steam engines for motive power, and making stops at regular stations for the receipt and discharge of freight and passengers.. The term “street railroad” applies only to snob roads, tlie rails of which are laid to confrom to the grade and surface of the street, and which is otherwise constructed so that the public are not excluded from the street as a public highway, which runs at a moderate speed compared with commercial railroads, which carries no freight, but only passengers from one part of a thickly populated district to another in a town or city and its suburbs, and for that purpose runs its cars at short intervals, stopping at street crossings or places irregularly, as the convenience of its patrons may require, for the receipt and discharge of its passengers.’ ” See, also, Funic v. Sí. Paul, etc., B. B. Go., supra.
    
    (d) But the consideration which we think alone sufficient to support our proposition that Code 1906, § 1985, has no reference to street railway companies, is that the legislature could not regard the business of street railways as being of the same kind or class as railroad business. This section 1985 is class legislation. It may be justified; but it must be upon the ground that it applies to a class of litigants whose inherent nature or whose business warrants the legislature in placing them in a «lass to themselves for the purpose of such special legislation. It provides a rule of evidence to be used in the trial of cases •against railroad companies which cannot be used in the trial of «ases against any other class of defendants.. It is really a new rule of evidence, in use in a very few states. It is necessarily •of legislative creation. Every classification must be based upon some' difference which makes the legislation reasonable. The legislation must deal with a subject which involves the difference. “The classification must always rest upon some difference which bears a reasonable and just relation to the act in re■spect to which the classification is proposed.” Code 1906, § 1985, is'of the same character as section 193 of the constitution and Code 1906, § 4056. They are all class legislation. They all apply to railroad companies. They all place railroad companies in a class to themselves for the purpose of such special laws. Théy recognize an inherent peculiarity of the railroad business which makes it reasonable and necessary to place such companies in a class alone. The peculiarity of the railroad business, which justifies that classification made for the purpose of enacting section 4056, must justify the enactment of section 1985. ■ '
    In Ballard v. Mississippi Gotton Oil Go., 81 Miss. 533, 34-South. 532, 62 L. B. A. 401, 95 Am. St. Pep. 416, our court said that the characteristic of the railroad business, which warrants the legislature in abolishing the fellow-servant rule in certain respects, is the necessary peril attendant upon the operation of railroad trains. So many persons are engaged in the operation of railroad trains. The work is necessarily dangerous under the most favorable conditions. Employes axe so-placed as to be at the mercy of other employes. They are frequently injured through the negligence of persons whom they cannot watch. The hazardous nature of the work which railroad employes have to perform is held by our court, following-the supreme court of the United States, to furnish a basis for the classification for the purpose of passing special laws to protect persons whose safety is imperiled by this inherent peculiarity of the work. The legislature recognizes these characteristics. Persons employed in the operation of trains on railroads were thought to need more protection from the law than persons engaged in any other business. The courts have examined this special legislation, and haye determined that the difference between the operation of railroads and the carrying on of other kinds of business is such as to warrant the classification made.
    And in Bradford Construction Go. v. Heflin, 88 Miss. 314,. 42 South. 114, 12 L. It. A. (N. S.) 1040, the court held that, since railroad companies have been put into a class to themselves for the purpose of this special legislation because the business in which they are engaged is peculiarly hazardous the reason for the classification must be constantly kept in mind; that employes cannot claim the benefit of this special legislation simply be■cause they are employed by railroads; that where the reason fails the classification' must fail; that the employes sought to be helped are such only as are in need of help; that no employe can claim the benefit of the special enactment whose safety is not imperiled by the hazards peculiar to railroading. And the coui’t went further in this last case, and said that the employes of corporations operating dummy lines, or construction roads, or logging roads are not entitled to the protection. The business of such companies may be as hazardous; but it is not so large. The evils are not so general, and do not demand special legislation for the protection of persons engaged by them. So it appears that the courts uphold this special legislation with respect only to employes engaged in.the hazardous part of railroading, and in the hazardous part of such railroading only as is general and extensive. Only the employes of the great common carriers owned by railroad corporations can claim the benefit of Code 1906, § 1985. The holding in the Bradford Goru-struction Go. case was explained further and reaffirmed in Mobile, etc. B. Go. v. Hides, 91 Miss. 273, 46 South. 360, 124 Am. St. Rep. 679.
    It follows inevitably that our court would never say that the employes of street railways can claim any right under section 4056. In confining that section to railroad corporations proper, the court does not even have to call to its aid the general rule that statutes in derogation of the common law are to be strictly construed, though this in itself would be sufficient, perhaps ; but such limitation upon the use of that section is necessary to preserve it. The reason for the classification must be ■constantly kept in mind- The classification must itself be protected. If the difference used as a basis for the classification should be disregarded, the classification itself must fail, and the special legislation fail with it.
    The supreme court of Missouri in 8ams v. St. Louis M. B. B. Go., 174 Mo. 53, 73 S. W. 686, 61 L. R. A. 475, construed a statute of that state, passed in 1897, reading as follows: “That every railroad corporation owning and operating a railroad in this state shall be liable for all damages sustained by any agent or servant thereof while engaged in the work of operating such railroads 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.” After a very full consideration it was held that the statute was not intended to apply to street l’ailways. Among other things the court said: “Men engaged in the operation of street railroads are exposed to hazards, but not to peculiar hazards, which distinguish men engaged in operating steam railroads, and which have made them a class for special legislation.”
    In Funic v. St. Paul, etc., B. B. Go.; 61 Minn. 435, 63 N. W. 1099, 29 L. B. A. 208, 52 Am. St. Pep: 608, the court construed a statute 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 in this state.” The law was passed in 1857 and construed in 1895. The court held that it did not apply to street railways.
    See, also, the following authoritiesLincoln Street Bailway Go. v. McClellan, supra; Georgia By. •& Electric Light Go. v. Joiner, 120 Ga. 905, 48 S. E. 336; Bridge Go. et al. v. Iron Go., 59 Ohio St. 179, 184 et seq., 52 N. E. 192; State v. Gain, 69 Kan. 16, 76 Pac. 433; North Hudson County B. B. Go. v. Flanagan, 57 N. J. Law, 236, 30 Atl. 476; Lax v. Bailroad Go., 46 N. T. Super. Ct. 448.
    It appears that the Georgia supreme court has held otherwise. Bailway Go. v. Williams, 117'Ga. 414, 43 S. E. 751, 61 L. B. A. 249. But it will appear from an examination of the opinion of the court in that case that it is unsound, if our decisions in the Ballard case and the Bradford Construction Company and Hides cases are correct. The Georgia court recognizes no necessity for any reasonable basis of classification. 1 The court does not even notice the decisions of the supreme court of the United States upon which our decisions are based.
    Our proposition here is that Code 1906, § 1985, is the same kind of class legislation as Code 1906, § 4056; that it must be justified by the same reasoning; that the peculiarity of the business of railroading, which is taken for the basis of the classification to justify section 4056, must also be used to uphold section 1985. Injuries to persons and property incident to the running of railroad 'trains and locomotives are so frequent and general, injuries from this cause so far exceed in number injuries from any other cause, railroads traverse wide stretches of territory, and trains are handled by servants of the owners. In section 1985 the legislature is attempting to mitigate some of the evils of railroading by making it easier to recover damages. The evils sought to be to some extent mollified by this section are those growing out of the distinguishing peculiarity of the railroad business; that is, its well-known dangerous character. There are other occupations which are dangerous; but they are not so prominent and general, and the injuries which they cause to persons and property are not so frequent and serious as to call for special legislation. The classification underlying this special statute is the same as that which underlies section 4056. It certainly can be said with no more reason that street railways may be put in the same class with railroad corporations proper, in order to uphold this section, than that they could be put in the same class with such railroad corporations for the purpose of applying to them the fellow-servant rule adopted by section 193 of the Constitution, and Code 1906, § 4056.
    Bailroad corporations proper own lines extending across states; street railways are usually confined to single municipalities. Bailroads cover miles; when street railways cover feet. The street railway usually has a single light car, running alone; while steam railroads have heavy locomotives, drawing from one to forty cars, each of which is many times heavier than a single street car. The railroad train crosses long distances, where no one is present to see an injury but tbe employes; but street cars ordinarily run only along thickly populated streets. The street car rarely exceeds ten miles per hour; while the railroad train thunders along at forty miles per hour. The street car stops at every street crossing; while railroad stations are miles apart. The street car carries at best but three or four dozen people; while the railroad train, carries its hundreds. The street car has no great momentum, even at its best, and can be stopped within a few feet; while the heavy railroad train cannot be suddenly stopped in an emergency. The railroad train carries its heavy load of freight and baggage, adding weight and momentum to the moving machinery; the street car has only a few passengers, and no freight and baggage. The railroad proper is constructed on high dumps across valleys, in deep cuts through hills, and on bridges across streams; the street car company has its rails laid level with the streets. The locomotive carries with it danger from fire; but no such danger attends the running street car.
    All the above differences show the comparative safety of persons and property in the operation of street railways, viewed in the light of experience with railroad operation. There are many occupations more dangerous than the operation of street railways. There is none so generally dangerous, dangerous on so large a scale, as railroading. To hold that section 1985 applies to street railways would be to take out of it the very element which gives it validity and life. To so hold would be to place street railways in a class with railroad corporations proper. To do this would be to say that the operation of street railways is dangerous to persons and property, just as the operation of the great commercial railroads is. This would impair the classification — would destroy the basis.
    We have already said that the same basis for the classification must be employed in justifying the enactment of this statute which has been held to justify section 193 of the Constitution. Counsel for appellee suggest that the fundamental reason for tbe creation of a rule like tbat contained in Code 1906, § 1985, is tbat tbe employes of sucb companies are always present to testify for tbe master. If tbeir suggestion is sound, tben tbe basis for tbe classification would be tbat peculiarity of tbe business wbieb makes it necessary to operate it through servants in tbe absence of tbe master. Tbe reason for tbe classification would tben be stated somewhat as follows: “Tbe business is conducted by servants who are in tbe immediate charge of tbe ma-’¿hinery, ways, and appliances; tbe master is absent, but always ■of necessity has employes present on tbe scene of every casualty who stand ready to testify for him.” This may be one reason wbieb prompted tbe legisláture in passing tbe law as it originally appeared in 1876. It may be a reason to be used in ■demonstrating tbe wisdom of tbe enactment; but tbe law cannot be safely based upon this ground and its validity maintained on this ground alone. Whether occupations could be classified by reference to sucb a basis need not be considered. Whether ■a law would be good which applied sucb a rule to all business conducted in tbe absence of tbe master need not here be decided. AVe have no law which attempts to do this.
    Besides, if tbe conducting of business through employes in tbe absence of tbe master could be adopted as tbe basis for classification, tbe rule would have to apply to all businesses so con■ducted. Tbe fact is nearly all enterprises are carried on through employes in tbe absence of tbe master. Especially is this true as to large enterprises, whose importance compels attention and treatment at tbe bands of legislators. Again, if sucb basis were employed, tbe rule would not be extended to ■employes themselves, as is attempted to be done by Code 1906, § 1985. Tbe very idea in tbe mind of tbe lawmaker in adopting tbe general rule would prevent him from extending it to ■■employes. Tbe reason which would move him to vote for a law to create a presumption of negligence on tbe part of tbe master under certain circumstances — that is, because tbe absent master has present witnesses — would impel him to vote against tbe law wbicb would extend tbe same rule in tbe present employes.
    If tbis basis should be used, tben logging roads, tramways,, electric railways, sawmills, all sorts of manufacturing plants,, steamboats, cotton gins, in fact, every sort of business, would have to be embraced, provided only it is carried on in tbe absence of tbe master through employes. But tbis statute only applies to railroad corporations. We must, therefore, find something inherent in tbe railroad business, peculiar to it, distinguishing it from every other class, to justify tbe classification. This inherent peculiarity is found in tbe use by railroad corporations of ponderous machinery propelled by steam at a. high rate of speed over long distances upon a gigantic scale. The magnitude of the enterprise; the frequency of the casualties ; the well-known peril of the business; the helplessness of persons and property that may come in contact with the moving machinery — these facts and considerations are held to warrant special legislation applying to railroad corporations only; legislation whose purpose is to protect life and property by making-it easier to prove liability.
    It may be that the legislature in passing this law had no such basis in mind. It may be that the authors of the statute-did not think of any necessity for classification. It may be that their purpose was as stated by counsel for appellee, and that the only reason which prompted them in passing the law is that accidents from running trains frequently happen when there is no one present but the injured person or property and the employes; but, when the courts come to test such, enactments, they must find a basis which will justify the classification for the purpose of such special legislation.
    Our position is that any classification for the purpose of-special legislation like this in hand must be referred to the-same basis upon which the classification is rested, to uphold section 193 of the Constitution; that any other basis would be unsound and would condemn the statute as arbitrary class legislation. Connolly v. Union Sewer Pipe Co., 188 IT. S. 540, 22 Sup. Ct. 431, 46 L. Ed. 619, and authorities cited therein. Unless the same basis is used to justify the classification, the-said act is violative of the fourteenth amendment of the Constitution of the United States, in that it denies the equal protection of the laws and the “protection of equal laws.“
    The error of the court in giving instruction No. 1 for the-plaintiff is therefore fatal. The case is a close one on the facts. The testimony of the eyewitnesses is in hopeless conflict. This instruction No. 1 was no doubt controlling. It relieved the-jury of the necessity of deciding whether the employes of the appellant company were in any wise at fault. It relieved the plaintiff of his burden of proof. It placed the burden of proof upon the defendant. It saved the jury the trouble of weighing the testimony and carefully ferreting out the truth from conflicting stories. The witnesses were children. No two saw the accident alike. The instruction, however, furnished to the jury a solution of the perplexing question by authorizing them to cast it all aside and simply find that the-company had not- exonerated itself. It would be difficult to-frame up a case for presentation to this court in which the issue could be more squarely and directly presented. If C'ode-1906, § 1985, does not refer to street railways, then the giving of instruction No. 1 for plaintiff was of necessity a reversible error.
    As this case is a very close one on its facts, the jury should not have been permitted to infer that the mere fact of injury to the child by the running of the electric car made a prima facie case against the defendant company.
    The fourth instruction for the plaintiff is to the effect that if the evidence showed the moving car to be beyond the control of the motorman, or that the west rail of the track was elevated above the surface of the ground and caused the child to stumble, and by reason of defective brakes and imreasonable. speed or-by the aforesaid elevation of the rail and the stumbling, the-■child was run over and killed, then the company should be held liable. This instruction should not have been given, for there is no evidence to show that the rail on the west side was higher than the surface of the ground. The accident did not occur at a public crossing or where pedestrians are supposed to walk. There was testimony that immediately next to- the rails ■the dirt had been washed away by water or worn away by vehicles travelling along the road, but that within eighteen inches -of the rail on both sides and outside of the track it was on a dead level. In any event no liability can be predicated of a person’s .striking his foot against the rail unless at a place where pedestrians are supposed to walk.
    
      Witherspoon & Witherspoon, for appellee.
    The ordinances and franchises under which the appellant .railway company was operating in the city at the time of the injury, required that the rails of the track should be level with the surface of the ground. But through the negligence of the ■appellant the rails at the place where the child was killed had been so laid as to extend from one to two inches above the surface, and it was because of this that she stumbled and fell in front of the approaching ear and was killed. • If the appellant had obeyed the ordinances of the city with regard to the laying ■of the rails and maintenance of its track, this unfortunate tragedy would never have qccurred. It was reasonable on the part of the city to require the rails of the street railway to be flush with the surface of the ground at those places where vehicles and pedestrians habitually cross the street.
    There was no fender on the car, and one of the brakes* was -cracked and worn so- thin that it had ceased to be effective. If this brake had been in good condition, It is possible that the car could have been stopped in time to have avoided the injury. The entire length of the car passed over the child, and the car did not stop until after it had passed onward a distance beyond the mangled body, estimated by the various witnesses •at from fifteen to seventy-five feet. At the time of the accident the car bad been running down grade and with constantly accelerating speed. Tbis was gross negligence inasmuch as the motorman knew that within a very short while the car would be passing along the edge of the school play grounds. The motorman made no effort to check the speed of the car until it was almost upon its victim.
    The child was- only six years of age, hence cannot be charged with contributory negligence SO' as to defeat an action by the parents against appellant for negligently causing her death.
    Code 1906, § 1985, applies to all railroad companies. Code 1906, §§ 1594, 4891, define a railroad as including any person, natural or artificial, who is a common carrier. Certainly a street car company is a common carrier for hire. Opposing counsel err in stating that an electric railway system is exclusively employed for the transporation of passengers in cities. It is common knowledge that many towns in our state and elsewhere are connected by electric trolley lines which run for miles through the country. Injuries to many persons resulting, from the running of electric railway cars have happened at points far away from the habitation of men, and where there was'no one to see and tell the cause of injury. And to cases like this Code 1906, § 1985, is applicable.
    
      Denny & Denny, on the same side.
    That the car was in defective condition and running at a dangerous speed and not under the control of the motorman at the time of injury is apparent. The brake of the car was shown without dispute to be defective, and the rails of the track were not flush with the surface of the ground, as they should have been.
    The first instruction for the plaintiff, based on Code 1906, § 1985, was correctly given. New Orleans, etc., Oo. v. Brooks, 85 Miss. 269, 38 South. 40; Louisville, etc., Co. v. Crominarity, 86 Miss. 464, 38 South. 63.3; Hopson v. Kansas City, etc., B. Co., 81 Miss. 189, 40 South. 872.
    The purposes of the enactment of Code 1906, § 1985, Code 1892, § 1808, being laws 1876, p. 34, brought forward, which ■are so fully set forth in the brief of opposing counsel, apply with equal force to street railway companies as to steam railroad ■companies. Many injuries are inflicted by moving street cars in sparsely settled suburbs where there are m> disinterested eye witnesses, and in the night time as well as in the day time. In Phillips v. Vicksburg, etc., B. B. Go., 64 Miss. 693, this court stated that the statute in question was enacted to meet cases where the manner of the injury inflicted is not known to others than the employes of the railroad company, and it is equally applicable where many witnesses see the injury.
    A motorman is not permitted to assume that a child of tender years when approaching a track, will not gO' thereon in front of his car, as he may assume in case of an adult. White’s Supplement Thompson on Negligence, 256. See also 21 Am. & Eng. Ency. of Law (2d ed.) 487; Isham v. Dew (Vt), 67 Am. St. Rep. 691; Milwaukee B. B. Go. v:. Kellog, 94 U. S. 469; Jamison v. Illinois, etc., B. Go., 63 Miss. 33.
    Argued orally by J. N. Flowers, for appellant.
   Whitfield, O. J.,

delivered the opinion of the court.

We are thoroughly satisfied that the first instruction given for the plaintiff is manifestly erroneous. That instruction is as follows: “The court instructs the jury, for plaintiff, that tire undisputed evidence that the death of the daughter of plaintiff was caused by the running of the car of defendant is prima facie evidence of negligence on the part of defendant, authorizing a recovery by the plaintiff unless overcome by testimony exculpating defendant from negligence, to the satisfaction of the jury; that such prima facie proof of negligence or presumption of negligence cannot be overthrown by conjecture, but the circumstances of the accident must be clearly shown, and the facts so proven must exonerate the defendant from blame. And if such facts be not proven to your satisfaction, and the attendant circumstances ■of tbe accident remain doubtful in your-minds, tbe defendant is not relieved from liability, and tbe presumption of negligence ■controls, and you should thereupon find for tbe plaintiff, and in such sum as the testimony warrants, not in excess of the amount ■sued for.” Code 1906, § 1985, has no application to a street railway. Tbe brief of learned counsel for appellant on this proposition amounts to demonstration of tbe inapplicability of this section of this statute at this time in this state. Tbe authorities contained in that brief are so directly in point, and the reasoning so clear and satisfactory, that we direct tbe reporter to set out that part of said brief in full, and content ourselves by referring to' it in support of tbe inapplicability of ■Code 1906, § 1985, to street railways, as the law1 now stands. Whether this section ought not to be changed so as to embrace street railways, if it can constitutionally be done, is a. matter ■for tbe legislature.

But a careful and repeated examination of tbe testimony in this record satisfies us thoroughly that tbe giving of this instruction, whilst error, is not reversible error. Learned counsel for appellant insist that tbe case is a close one on its facts. Wc ■ cannot concur in this view. We think tbe evidence clearly and convincingly shows liability on tbe part of tbe appellant company without regard to this instruction, and that no ■ other verdict than one for tbe plaintiff could be rendered on .any rational basis. It is true that two witnesses for the plaintiff testify that tbe little girl ran upon tbe track from the west side; but four witnesses for tbe plaintiff, and the motorman himself for tbe defendant, testified that she ran upon tbe track from tbe east side. And without regard to tbe testimony of any of these seven witnesses, the physical facts show, by tbe position of tbe girl where found, beyond any controversy, that she must have run upon tbe track from tbe east side. This is beyond any reasonable controversy. Learned •counsel for appellant misconceive when they say there is no • evidence to show that tbe rail on tbe west side was higher thau the surface of the ground. Two witnesses expressly so. testified.. In other words, the evidence makes it perfectly clear that the rail on the east side, at the point where the girl was killed, was-from one to three inches higher than the surface of the street,, and on the west side about one inch higher. Of course, it would be immaterial whether she-entered from the east or west side-on the track, if the proximate cause of death was the elevated condition of the track on either side, over which she stumbled,, if the fact be that she did stumble. But the testimony in this; case makes it perfectly plain that she entered upon the track from the east sida That is the overwhelming testimony of' the witnesses testifying to what they observed, and it is made absolutely indisputable by the physical facts as to where the girl was found, and the position of her body when found. She must have entered from the east side, and whether she stumbled over the rail and fell and was thus killed, or whether she was-struck by the car, not having stumbled, in either case the appellant was plainly liable for her death.

This car was coming downgrade, at a rate of from seven Lo> ten miles an hour, right in front of a public school, on whose-grounds nearby, between the rails and the school, some two-hundred children were playing at noon recess. This motormam knew the railway track was constantly crossed by pedestrians,, knew these children were constantly playing out there at all recess hours, knew the children were playing close to- the track, and according to his own testimony never applied any brake to stop this car until within fifteen feet of the- little girl, who was then running parallel with the track and near to- it, so near as to advise him necessarily of her perilous position. There is-some testimony that one of the brakes1 was worn to a feather-edge, and could not be- of any assistance in his effort to- stop-the car. There is testimony that he ought to have seen these children two hundred feet away. There is evidence that he tried to stop the car, b-ut not until he was entirely too close to the child, and that he could not stop- it for some reason. The motorman. himself testifies that he stopped once for some little boys. He also testifies that this little girl was only fifteen feet from the car and thirteen feet from the track when he first saw her, that he was looking’ down the track on both sides, right ahead of him, and that she (the little girl) was coming toward the track, angling; that he was running about seven miles an hour, and that after he turned the current off entirely the car ran forty-five or fifty feet before he put on the brakes; and that it took the forty-five or fifty feet to stop the car, when this little girl was within a distance of seventeen feet from the track, and he had waited until that time to apply the brakes, when from the whole testimony it is overwhelmingly manifest' that he did see, or ought to have seen, this little girl, at a distance of from one hundred to two hundred feet, straight down the track ahead of him, as she was running along the side of the track.

It is not to be tolerated, under circumstances such as these, that a street railway company shall be permitted' in this reckless and wanton manner to run down and kill a young child. If it be true that she stumbled, there would have been no accident had the rails been flush, as the rails of all street railways ought to be, with the surface of the ground. If she did not stumble the rate of speed at which this car was going, downgrade, by a public school, whose grounds near the track were thronged with children, who, to the knowledge of the motorman, were in the habit of crossing the track frequently, coupled with the fact that this motorman was bound to have seen this child from one hundred to two hundred feet away, whilst she was running alongside the track, within a distance estimated from two to ten feet, and running angling towards the track, and never applied the brakes until within fifteen feet of her, and had one brake wholly, worthless constituted negligence of the most wilful, wanton, and reckless character.

This child was but six years of age, and contributory negligence is not in the case.

We bay© carefully examined all other assignments of error, and content ourselves, not to protract this opinion uselessly, with observing that on the record in this case they are without merit, and that the judgment is affirmed.

Mates, J.,

delivered the following dissenting opinion.

In this case the testimony would support a verdict for either party, and the court has not yet held that in such a case erroneous instructions, calculated to mislead the jury, would not cause a reversal. Indeed, in the case of Brister v. Railroad Company, 84 Miss. 33, 36 South. 142, the court expressly held that it would cause a reversal. If, on the facts of the case, it is manifest that no other verdict could or should be rendered than the one complained of, this court has held, in a line of decisions too numerous to be cited, that the cause would not be reversed for any mere error in the instructions, when it is manifest that the verdict is as it should be, and that tire errors in the instructions were not potent in procuring the verdict. But the sustaining of the verdict in those cases was based by the court entirely upon facts contained in the record, making it impossible for any other verdict to be reached, and upon facts so conclusive in their nature that, if a different verdict had been reached, the court would not have allowed it to stand. This, I think, has been the consistent and correct holding of this court. The case under discussion was' not a case where a peremptory instruction should have been given for the plaintiff. Indeed, after a protracted and most careful examination of this record, the facts and circumstances are far from making a case of clear liability on the part of the defendant company, but leave its liability in such doubt as could only be settled by the verdict of the jury. In this state of the proof the instruction complained of was given. I shall not quote the instruction, since it is set out in full in the main opinion. That opin'ion concedes that this instruction is “manifestly erroneous/’ but still holds that the giving of the instruction is not reversible error.

Without this vital error in giving this instruction, a verdict in favor of tbe plaintiff was possible; but on tbe giving of this instruction, a verdict against tbe plaintiff was impossible. Can it ever be said, under sucb circumstances, that sucb an error in law is not reversible ? In tbe first place, tbe instruction gives a false probative effect to certain proven facts in tbe case, raising tbe comparatively insignificant fact of mere injury by tbe running of the car to a degree of proof sufficient to warrant the jury in finding a verdict for plaintiff. In other words, the instruction creates a false quantum of proof on which to rest liability and then tells tbe jury, if they have any doubt as to how tbe injury occurred, they must find a verdict for plaintiff, resting their verdict on tbe mere fact of injury by tbe running of tbe car. It was tbe duty of tbe plaintiff to prove negligence in order to entitle him to recover, and, if be failed to do this be failed to make out his case. If, when all tbe testimony was in, tbe jury were in doubt as to bow tbe accident occurred, it was tbeir duty to find for defendant. This instruction subverts tbe whole law applicable to tbe case, and its effect is just as though the court bad given a peremptory instruction for plaintiff. Tbe rule is general that negligence is not to be presumed from tbe mere fact of injury, but must be established by the evidence; and yet tbe court tells tbe jury by this instruction that, when tbe plaintiff has shown that tbe death was caused by the running of the car, this fact alone was prima facie evidence of liability, and warranted a recovery against tbe defendant company, unless tbe testimony of tbe company ■overcame this presumption. By this portion of the instruction a presumption of liability is created where none exists as a matter of law, and tbe instruction further requires proof on the part of tbe company to overcome this false presumption. But tbe ‘instruction does not stop at this, but goes further and •directs tbe jury that this false presumption of liability cannot be overthrown by conjecture, but can only be overcome by clear proof of such facts and circumstances as would show exoneration from blame on the part of the defendant company. Tbe instruction does not stop' here; but, growing more stringent as it proceeds, ’further tells the jury that if, after the production by the defendant company of all its facts and circumstances introduced to overcome this presumption raised by this instruction, the circumstances of the accident remain doubtful, it is the jury’s duty to find for the plaintiff. It was impossible, under this instruction, for the jury to return any verdict savp one for the plaintiff, though the testimony in the cáse fully warranted a verdict for either party. If this instruction was not the potent cause of the verdict in favor of plaintiff, it is certain that it barred the jury from rendering a verdict in favor of defendant. It may be that the jury would have rendered the same verdict without this instruction; but it is possible that, if this instruction had not been given, the verdict would have been in favor of defendant, and in either case, on the facts, the verdict would not have been disturbed.

I have not set out the facts, but request that the reporter make a full statement of same:  