Operating in grain fields. A policy of fire insurance was issued on a harvesting machine while operating in the grain fields, and in transit from place to place in connection with harvesting, and the machine was moved the day after the policy was issued from the place where it had been stored since the previous season to a blacksmith shop to be repaired in order to fill contracts for cutting and threshing grain; and while near such shop, and about the day the harvesting season commenced, the machine was burned. Held, that it was not operating in the grain fields at the time it was destroyed, within the meaning of the policy. Mawhinney v. Southern Ins. Co., 32 Pac. 945, 946, 98 Cal. 184, 20 L. R. A. 87. Operating railroad. It is not erroneous in an instruction to use the verb "operate" in an active sense, in reference to operating a mill, as meaning running the mill or carrying on its business. It may be "that the etymology of the word makes it a neuter verb, but modern usage has accepted it as an active verb. In this it is in consonance with the noun 'operative,' as meaning a manufacturer or artisan who performs the manual labor necessary to cause a mill or factory to operate. The word 'operate' is frequently used by the Legislature in the statutes of this state in its active sense, when applicable to the business of railroads, as meaning running or managing a railroad. The law uses words in their accepted sense, rather than according to their strict etymology, or to the niceties of philology." Rhodes v. Matthews, 67 Ind. 131-139. "Operate its railroad," as used in an instruction in an action against a railroad located in a public street, stating that the company had a right to operate its railroad over the street in question, means that the defendant had a right to run its cars over the street. Cumming v. Brooklyn City R. Co., 10 N. E. 855, 857, 104 N. Y. 669. "Operating," as used in a statute relating to recovery for injuries to stock inflicted by a railroad company whether by reason of neg ligence or not, while operating their road, unless such road is inclosed with a legal fence, means that, whenever a railroad company run their engines and cars upon their line of road, they are operating it. If they use it for purposes of general traffic, then it may be said to be in full operation; and if, when part of the road is built, trains are being run over that portion of the road, conveying material for the extension of the line, it may be consistently said that that portion of the line built is being operated for construction purposes. In either event, the company would be operating their road, and would be required to build a fence within a reasonable time. Chicago, K. & W. Ry. Co. v. Totten, 42 Pac. 269, 272, 1 Kan. App. 558; McKnight v. Iowa & M. R. Const. Co., 43 Iowa, 406, 408. Laws 1885, c. 155, providing that the occurrence of any fire caused in "operating a railroad" shall be prima facie evidence of the negligence of the company, is not confined to fire escaping from locomotives, but applies to all cases where the damage was caused by fire arising from any step in the operation of the road. It includes caring for a right of way. Missouri Pac. R. Co. v. Merrill, 40 Kan. 404, 19 Pac. 793, 794; Missouri Pac. Ry. Co. v. Cady, 24 Pac. 1088, 44 Kan. 633. "Operating a railroad" as used in Pub. St. c. 112, § 212, providing the amount that may be recovered for the loss of the life of a passenger, or one not a passenger or in the employment of a railroad corporation, by reason of the negligence or carelessness of a corporation operating a railroad or a street railway, describes the kind of corporation intended to be subjected to the liability therein imposed, and not the work immediately in the process of performance by it. Even if they could be held to limit the liability to occasions when the railroads are being ac tually operated, they would not limit it to accidents occasioned by locomotives moving trains, etc., or only upon its tracks. handling of its freight, the loading and unloading of its cars, and the transfer of freight from a vessel to its cars, are railroad operations. Daley v. Boston & A. Ry. Co., 16 N. E. 690, 695, 147 Mass. 101. The Trustees in charge of a railroad whose main track is all outside the state, but whose trains are brought into the state over the tracks of another company, are "operating a railroad in this state," within the meaning of Starr & C. Ann. St. c. 120, par. 40, requiring those owning, operating, or constructing a railroad in this state to return schedules of its taxable property. Quincy, O. & K. C. Ry. Co. v. People, 41 N. E. 162, 163, 156 Ill. 437. The court, in discussing the meaning of the word "operate," in Sayles' Ann. Civ. St. tion all the land of a railroad company except land not used in operating the road, does not include a lot on which a section house and other improvements are situated. Vicksburg & M. R. Co. v. Bradley, 6 South. 321, 66 Miss. 518. Operating street railway. art. 4560f, providing that every railroad corporation shall be liable for all damages sustained by any employé while engaged in operating its cars by reason of the negligence of any other employé, etc., held that "operate," as used in the statute, signifies to perform a work or labor; to put into or continue in operation or activity; to work, as to operate a machine. It is further held that, if "Operation," as used in St. 1872, c. 11, § sectionmen upon the car were working han-1, being the charter of a street railway cordles in such a manner as to apply the power to the hand car for the purpose of moving it, they were engaged in the work of operating it, within the meaning of the statute. Perez v. San Antonio & A. P. Ry. Co., 67 S. W. 137, 138, 28 Tex. Civ. App. 255. The term "operating any railroad," in Code 1873, § 1289, providing that, in an action for damages from a fire set out or caused by the operating of any railroad, it shall only be necessary for the plaintiff to prove injury to, or destruction of, his property, does not include the burning of grass on a railroad right of way by its sectionmen; and therefore, in case a fire is so set, the damaged person, in an action against the railroad, has the burden of showing that the fire was so set. Connors v. Chicago & N. W. Ry. Co., 82 N. W. 953, 954, 111 Iowa, 384. The word "operation," as used in a contract referring to all works, materials, and plant in use in or about the construction or operation of a railroad, does not necessarily imply that the works, plant, or materials referred to were rolling stock. Works and plant which must be furnished in the building of a road are as necessary in the operation of the road as rolling stock. Central Trust Co. v. Condon (U. S.) 67 Fed. 84, 92. The "use and operation of a railway," as used in Code, § 1307, declaring that railroad companies shall be liable for injuries to employés caused by, or directly connected with, the use and operation of the railway, is not limited to the actual running of trains on the railway, but includes the running of a single engine without cars attached, and also the propelling of a hand car, which, by reason of a collision with a flat car used by a section hand, caused plaintiff's injury. Larson v. Illinois Cent. R. Co., 58 N. W. 1076, 1077, 91 Iowa, 81. The term "operating such railroad," as used in Rev. St. 1899, § 2873, relating to injuries to employés while "operating such railroad," includes all work that is directly necessary for running trains over a track, and includes section hands who are engaged in repairing and putting in shape the roadbed and bridges. Callahan v. St. Louis Merchants' Bridge Terminal R. Co., 71 S. W. 208, 215, 170 Mo. 473, 60 L. R. A. 249, 94 Am. St. Rep. 746. The term "land not used in operating the road," in a statute exempting from taxa poration, which provides that "said city [New Bedford] or town [Fairhaven] is hereby authorized and empowered to contract with said railway corporation concerning the construction, maintenance, and operation of said railway, upon such terms as it may agree with said railway corporation," etc., cannot be construed so as to extend the power to make a contract excluding the use of such railway by another railway company, which use is either previously or subsequently authorized by the Legislature. New Bedford & F. St. R. Co. v. Achushnet St. R. Co., 9 N. E. 536, 538, 143 Mass. 200. Operating on timber land. The term "operate," as used in a bond allowing a party the right to rescind a certain bargain for the purchase of land by giving notice thereof at a certain time, unless a majority of the owners of the tract should sooner determine to operate on the said land, etc., includes the selling of stumpage; that is, selling off the timber growing or to be cut by the purchaser, as well as the cutting of the timber by the owner at his own expense. Eaton v. Smith, 37 Mass. (20 Pick.) 150, 151. Operating tollroad. A charter incorporating a company for the purpose of operating a tollroad between designated points does not authorize the company to establish a stage line upon their road, nor to contract to carry United States mail. Wiswall v. Greenville & R. Plankroad Co., 56 N. C. 183, 186. Operating trains or cars. The word "operate," in a contract by a railroad company employing a contractor to build its road, and agreeing to furnish the motive power and operate the construction train, was construed not to have been used in the restricted sense that the necessary force was to be furnished to move the train over the road at such times as directed by the contractor, and not to preclude the trainfast or how slow the train should be run, men or the railroad from determining how but to have been used in its natural sense, the movements and speed of such train. as giving the contractor the right to control Miller v. Minnesota & N. W. R. Co., 39 N. W. 188, 190, 76 Iowa, 655, 14 Am. St. Rep 258. Under Laws 1893, c. 220, making railroad claim for damage done to property by the companies liable for injuries to any em- railroad company in negligently running a ployé occurring through the negligence of train at a highway crossing. Smith v. Eastanother employé while he is engaged in ern R. Co., 124 Mass. 154, 155. "operating, running, riding upon, or switching" cars, such a company is liable to a freight handler who was negligently run into by an engine while he was pushing a car to the freighthouse by direction of his superior. Ean v. Chicago, M. & St. P. Ry. Co., 69 N. W. 997, 998, 95 Wis. 69. The terms "rentals" and "operating expenses," in an agreement by the lessee of a holders of the leased road and operating exrailroad to pay certain dividends to the stockpenses, was construed not to include money borrowed by the lessor from the lessee to complete the leased road, and secured by bonds of the lessor. Eastern R. Co. v. Rogers, 124 Mass. 527, 532. The term "operation," as used in Rev. St. art. 4560f, providing that a corporation operating a railroad shall be liable for damages sustained to its employés while operat- OPERATING SUPPLIES. ing its cars and locomotives, evidently comprehends something more than the mere running of its cars, locomotives and trains. We find the following among other definitions in the Standard Dictionary: "To effect any result; exert agency; act; to bring about a specified result; to produce the proper or intended effect; operation; the act or process of operating; a mode of action; a single, specific act or transaction; a course or series of acts to effect a certain purpose." The Supreme Court of Iowa, in Deppe v. Chicago, R. I. & P. R. Co., 36 Iowa, 52, in discussing a similar statute, said that, while it was true that an employé was not injured while operating a train, neither the act nor the constitutional limitation "requires us to put this very narrow construction upon it. The plaintiff was employed in the discharge of a duty which exposed him to the perils and hazards of the business of railroads, and, though the injuries did not arise from such hazards, they cannot be separated from the employment." In Chicago, M. & St. P. Ry. Co. v. Artery, 137 U. S. 507, 11 Sup. Ct. 129, 34 L. Ed. 747, the statutes of Iowa are held to apply to those only who are in some manner engaged in labor connected with the use and operation of the railway, and cases are cited to show the Within the doctrine laid down in Fosdick v. Schall, 99 U. S. 235, 25 L. Ed. 339, which declares that, for the purpose of keeping works of a public character in operation, those who have given the company operating the same credit for supplies necessary to keep the works in operation are to have a lien extending back not to exceed six months, under extraordinary circumstances, does not include gas meters furnished for a gas company, though such company would come within the meaning of works of a public character as used in the above decision. Reyburn v. Consumers' Gas, Fuel & Light Co. (U. 8.) 29 Fed. 561, 563. OPERATION. See "Criminal Operation"; "In Opera- Keep in operation, see "Keep." "Operation" means exertion of power; method of working; process of operating; mode of action. City of Little Rock v. Parish, 36 Ark. 166, 174 (citing Webst.). In an action against a surgeon for malpractice, in failing to remove certain sponges construction given by the Iowa courts to the placed in the body for the absorption of terms "use" and "operation," and the gen-blood and pus, it was contended that an eral view which should obtain in the con struction of such statutes; and, where one was engaged in moving a push car, he was at work within the zone of the damages to be provided against. Texas & P. R. Co. v. Webb, 72 S. W. 1044, 1046, 31 Tex. Civ. App. 498. OPERATING EXPENSES. Compensation for the use of equipment which is hired, and not owned, by a railroad company, is most certainly part of the expense of producing the business which is transacted, and is therefore a part of the operating expenses of such road. Commonwealth v. Philadelphia & E R. R., 30 Atl. 145, 146, 164 Pa. 252. The operating expenses of a railroad company should be construed to include a operation begins when the opening is made part of the human system, has been re- he closes the wound thus made, in a proper way, the law imposes on him the duty of exercising not only due care, but due skill as well; and that the removal of the sponges required some degree of skill, and at least required a surgeon to perform this service. Akridge v. Noble, 41 S. E. 78, 81, 114 Ga. 949. Under a lease of land for oil and gas purposes, which provided that the lessee covenants to commence operations for a test well within one year from the date hereof, where such lessee procured timber with which to construct a derrick, and ordered the machinery, and located a well within the year, he had complied with this condition of the lease. Webster defines the word "operation" as an effect brought about in accordance with a definite plan, and in giving the interpretation ordinarily ascribed to the words "to commence operations"-that is, applying to the words their common acceptation-the expression means the performance of some act which has a tendency to produce an intended result. Fleming Oil & Gas Co. v. South Penn Oil Co., 17 S. E. 203, 205, 37 W. Va. 653. law. The law ceases to operate when it is 98. In consideration of the performance of certain agreements on the part of plaintiff, defendant, a street car company, agreed to construct and operate for 10 years a certain extension of its road, and, in default thereof, forfeit the extension to plaintiff. Plaintiff performed the agreement on his part, but, before the 10 years had expired, the receiver appointed at the suit of defendant's mortgagee to take charge of all of defendant's property refused to operate the extension. the receiver was not such a prevention "by Held, that the appointment of operation of law," within the meaning of Civ. Code, § 1511, as would excuse perform. was entitled to specific performance. Klauance on the part of defendant, and plaintiff ber v. San Diego Street Car Co., 30 Pac. 555, 95 Cal. 353. "Operation," as used in Act April 9, 1872, giving a priority of liens for labor and services performed in the operation of works, mines, manufactories, or other business, etc., means such as in the course of a regular employment contributes directly or indirectly to the particular, permanent, and continuous use of such business, whether skilled or unskilled in the particular art or craft, but does not include labor or services contributed to the construction and equipment of such OPERATIVE. businesses; it being only temporary and preliminary to their operation. Appeal of Llewellyn, 103 Pa. 458. OPERATION OF LAW. See "Surrender by Operation of Law." "Operation," as used in Const. art. 1, § 6, providing that all acts of a general nature shall have a uniform operation, means the practical working and effect of a law. Geebrick v. State, 5 Iowa, 491, 496. The noun "operative" is used to designate a manufacturer or artisan who performs the manual labor necessary to cause a mill or factory to operate. Rhodes v. Matthews, 67 Ind. 131-139. "Operative" is synonymous with "workman." A closer definition would be "a workman who performs manual labor in and about machinery." Cooking v. Ward (Tenn.) 48 S. W. 287, 289. giving a preference in favor of operatives in "Operative," as used in Rev. St. § 355, the service of an insolvent debtor, includes all classes of labor, except that which might be properly distinguished as professional or scientific labor. Akron Iron Co. v. Whitely An operative is one who obtains his livIn construing the acceptance by the ing by coarse manual labor, as distinct from United States of the grant of the District professional services. Ericsson v. Brown (N. of Columbia, which provided that the opera-Y.) 38 Barb. 390, 392. tion of the laws of the state within such District should not be affected by the acceptance until the time fixed for the removal of the government thereto, and until Congress should otherwise by law provide. the court said: "A law is always in operation as long as it is the rule of conduct of the subject upon which it is intended to operate; that is, as long as the subject is bound to obey it, or conform his condition to its provisions. The operation of a law can be nothing more than the obligation of a Co., 11 Ohio Dec. 203. All laborers are not operatives. Generally speaking, an operative is a person employed as a workman in a mill or factory; a skilled workman; an artisan; especially one who operates a machine in a factory-and | forming labor or working with tools or teams is so used in Rev. St. Ohio 1890, § 6355, giv- in the construction of a railroad, does not ining preference to those who shall perform clude one who has undertaken and performlabor as operatives in the service of an in- ed a subcontract for the construction of sevsolvent. In re City Trust Co. (U. 8.) 121 eral miles, at a specified sum per mile. KraFed. 706, 708, 58 C. C. A. 126. kauer v. Locke, 25 S. W. 700, 701, 6 Tex. Civ. App. 446; Parks v. Locke (Tex.) 25 S. W. 702, 703. Farm laborer. In construing the provision of the statute relating to assignments for the benefit of creditors that "every person who shall have performed any labor as an operative in the services of the assignor shall be paid by the assignee or trustee of the proceeds of the property assigned in preference to any other claims against the assignor," the court said: "The usual definition given to the word 'operative' is: A workman; one employed to perform work for another; an artisan, etc. Workman' means a person who performs work for another, be it skilled or unskilled, manual or mental labor. It seems that, as used in the statute, it was not meant to exclude any kind of laborers, but as a broad term, including every person who performs labor in the operation of his employer's business. The man who follows the plow is just as much an operative to the farmer in the tillage of his land as the man who wields the hammer in a large manufacturing establishment, and in either case they are just as necessary to the operation of their employers' business as if their labor was what is known as 'skilled labor.' They are operatives just as much as if they were skilled laborers." The court held that a person who performs labor on a farm by the month or by the day, under the control and direction of the farmer in the operation and manage ment of the farm, was an operative. In re Assignment of Lowry, 7 Ohio Dec. 282, 284 Laborer distinguished. The words "operative” and “laborer” are ordinarily applied to a class of men who obtain their living by coarse manual labor, as distinct from professional men. "Operative," though very nearly of the same signification, is somewhat more comprehensive than "laborer." Ericsson v. Brown (N. Y.) 38 Barb. 390, 392. Officer of railroad. "Operatives," as used in an instruction providing that if a railroad accident was due to the neglect of other operatives of the road, whose duty it was to have inspected a certain brake, defendant would not be liable, etc., does not include the officers and agents of the road, but means employés of a like class who are fellow servants of brakemen. Little Miami R. Co. v. Fitzpatrick, 42 Ohio St. 318, 324. Subcontractor. Rev. Civ. St. art. 317a, giving a lien to "mechanics, laborers, and operatives" per Superintendent or foreman. The superintendent of a mine is not a laborer, servant, clerk, or operative of a company, within the meaning of a provision of its charter making the stockholders individually liable for the wages of such persons in case the company becomes insolvent. Cocking v. Ward (Tenn.) 48 S. W. 287, 289. The term "operative,” in a statute proeratives who may have performed labor in viding that all mechanics, laborers, and opthe construction or repair of any railroad, locomotive, car, or other equipment, or may have performed labor in the operating of a railroad, or to whom wages may be due or owing, shall hereafter have a lien prior to ment for such wages as are unpaid, does all others upon such railroad or its equipnot include the foreman or superintendent of laborers of a subcontractor engaged in the nishes certain tools and teams to carry on construction of appellant's road, who furthe work of construction, and sometimes uses the tools himself, and at other times directs Co. v. Allen & Humphries (Tex.) 1 White & their use by the laborers. Texas & St. L. R. W. Civ. Cas. Ct. App. §§ 568, 569. Traveling agent or salesman. One who is employed by the publisher of a legal directory as traveling agent in obtaining subscriptions and in selling the directory to attorneys and others, and collecting accounts, is not an operative, within the meaning of Rev. St. § 6355, giving operatives a preference out of the trust funds in case of assignment for the benefit of creditors by his employer. In re Sloan, 54 N. E. 516, 517, 60 Ohio St. 472. "Operatives," as used in General Incorporation Act 1875, § 11, providing that the stockholders in mining, quarrying, and manufacturing companies shall be jointly and severally liable individually for all moneys due and owing to the laborers, servants, clerks, and operatives of the company, in case the corporation becomes insolvent, cannot be construed to include a traveling salesman on a salary of $100 per month. Hand v. Cole, 12 S. W. 922, 88 Tenn. 400, 7 L. R. A. 96, 97. Workman in his own shop. "Operatives," as used in St. 1838, c. 163 § 24, giving a preference to operatives in the service of any insolvent for their services, includes a creditor of an insolvent debtor |