
    John W. Fallon vs. West End Street Railway Company.
    Suffolk.
    March 9, 1898.
    May 20, 1898.
    Present: Field, C. J., Holmes, Knowlton, Morton, & Lathrop, JJ.
    
      Personal Injuries — Negligence — Employers’ Liability Act.
    
    A street car, operated by electricity in the usual manner cannot be said to be a locomotive engine on a train upon a railroad within the meaning of the employers' liability act, St. 1887, c. 270, § 1, cl. 3.
    Tort, for personal injuries occasioned to the plaintiff by reason of the alleged negligence of the motorman of a street car operated by electricity belonging to the defendant, of. which car the plaintiff was conductor. Trial in the Superior Court, before Hardy, J., who directed the jury to return a verdict for the defendant; and the plaintiff alleged exceptions, which appear in the opinion.
    
      C. R. Clapp, (H. N. Glover, Jr. with him,) for the plaintiff.
    
      G. H. Mellen, for the defendant.
   Morton, J.

The plaintiff contends that a street railway car operated by electricity upon a street railway track is a “ locomotive engine or train upon a railroad, ” within the meaning of St. 1887, c. 270, § 1, cl. 3. So far as any definition has been given by statute to the word “ railroad ” it has been confined to railroads operated by steam. Pub. Sts. c. 112, § 1. It is true that this is declared to be the meaning of the word for that and the following chapter, and that in other cases the word has been held to include street railways. Central National Bank v. Worcester Horse Railroad, 13 Allen, 105. It is also true that tracks laid for temporary purposes, but used for locomotives operated by steam and for cars ,such as are used on steam railroads, have been held to be railroads, within the meaning of the act. But we think that by the words “ locomotive engine or train upon a railroad ” must be understood a railroad and locomotive engines and trains operated and run or originally intended to be operated and run in some manner and to some extent by steam. This undoubtedly was the sense in which the words were used by the Legislature when the statute was enacted, and we do not feel justified now in giving to them the broad construction for which the plaintiff contends. Possibly a railroad, where the motive power has been changed in part or altogether from steam to electricity, or some other mechanical agency, but which retains in other respects the characteristics of a steam railroad, would come within the purview of the act. It is not necessary, however, to decide that question now. The defendant is a street railway operated by electricity, and running the usual street car in the usual manner. We think that a car belonging to it, and operated in the manner in which cars upon street electric lines usually are, cannot be said to be a locomotive engine or a train upon a railroad within the meaning of the statute in question.

Exceptions overruled.  