Chapter 6, tit. 14, being paragraphs 3153 to 3162, inclusive, Civil Code of 1913, is the legislative effort to comply with the mandate of the Constitution. Hereafter we will refer to it as the "Liability Act."

This Liability Act has declared and determined in paragraph 3156 certain occupations in the named industries to be hazardous, and paragraph 3155 extends the benefits of the act only to those employees engaged in manual and mechanical labor.

Among other things, it is contended by appellant that appellee was not (1) employed in an occupation declared and determined to be hazardous, nor (2) engaged in manual or mechanical labor. As to the first point made, if appellee is to receive the benefits of the act, his occupation must be one of those enumerated in subdivision 1 of section 3156, which reads as follows:

"(1) The operation of steam railroads, electrical railroads, street railroads, by locomotives, engines, trains, motors, or cars of any kind propelled by steam, electricity, cable or other mechanical power, including the construction, use or repair of machinery, plants, tracks, switches, bridges, roadbeds, upon, over and by which such railway business is operated."

The arguments of both sides are directed to the first division of the subsection, it being the contention of appellant that appellee was not engaged in an occupation in "the operation of a railroad." Whereas appellee contends that a bill clerk's occupation is essential to the proper operation of a railroad and is within the occupations declared to be hazardous in the operation of appellant's railroad. We will not go into this question further than to say that, as we understand the law, those persons engaged in "the operation of a railroad" are person; who have an actual physical connection with the handling, organizing, loading, unloading, and movement of trains, locomotives, engines, motors, and cars, extending sometimes to section men. Jemming v. Great Northern Ry. Co., 96 Minn. 302, 104 N. W. 1079, 1 L. R. A. (N. S.) 696; Callahan v. Ry. Co., 170 Mo. 473, 71 S. W. 208, 60 L. R. A. 249, 94 Am. St. Rep. 746; 2 Cyc. 150. It includes those whose occupations subject them to haza is and dange ́s incident to and inherent in the physical part of the operation of the railroad. and not those who perform services essential to the rail.oal busines but not in its actual operation.

It may be that appellee's occupation falls within those named in subsection 1 as "including the construction, use or repair of machinery, plants, tracks, switches, bridges, roadbeds, upon, over and by which such railway business is operated." If the freight depot and platform, in which was the opening that appellee fell into was a plant "by which the railway business" of appellant was in part operated and the appellee was not without the line of his duty when using the platform as a way of returning to his work, we submit, without so deciding, that his occupation might be one of those intended to be declared and determined as hazardous by the statute. As this question was not presented to us in brief or argument, and as its decision is not necessary, as we view the case, we only suggest it, for if it be granted that, he was in the use of a plant of appellant at the time of his injury, and that his occupation was hazardous, still he was not engaged in manual or mechanical labor.

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Aside from the context, it is easy to determine that appellee, in the occupation of "billing freight, writing up the transfer book, making up tonnage reports, balancing the cashbooks, making an abstract, * was not engaged in mechanical labor. The definition of "mechanical," as given by Webster, is:

"1. Of or pertaining to or concerned with manual labor; engaged in manual labor; of the artisan class. 2. Of, pertaining to or concerned with machinery or mechanism; made or performed by machinery or with tools."

"Mechanical labor" is labor performed by a mechanic or "one who

practices any mechanic art; one skilled or employed in shaping or uniting materials, as wood materials, etc., into any kind of structure, machine or other object requiring the use of tools or other objects, an artisan." Webster.

Taken in connection with the context, we think "mechanical labor" is such skilled labor as is necessarily employed by employers in making and repairing tools and instruments used in the operation of the business. It is manual labor, but of the skilled kind.

While the words "manual labor" might be construed to mean clerical work, we do not think any such meaning attaches to them as they are used in the context. In the first place, the hazardous occupations in mining, smelting, manufacturing, railroading, and other industries named as hazardous, exclude the idea of the office man's occupation. They are those occupations engaged: (1) In the operation of railroads, in the construction, use, and repair of machinery, etc, by which the business of railroading is carried on; (2) the use of gunpowder, etc., (3) erection and demolition of buildings, etc., (4) the operation of elevators, etc., (5) work on ladders, etc.; (6) work in connection with electricity; (7) work on telegraph and telephone lines; (8) work in or about quarries, open pits, open cuts, mines, reduction works, and smelters; (9) tunnel work; and (10) work in mills, etc., operated by steam, electricity, or other mechanical power. Paragraph 3156.

Labor in any of the named occupations must mean actual physical contact with the dangerous instruments and means used in carrying on the business. One of the canons of interpretation of words used in a statute is that they must be taken in their common and ordinary sense, unless, from the context, it is evident some other meaning was intended. When we speak of a person doing manual labor, the mind is instantly directed to some kind of toil in which the physical predominates the mental. The words would never call to mind the office man engaged in keeping books or making out bills or statements or operating a typewriter. Even if appellee did occasionally, as an incident in his occupation as bill clerk, do manual labor in the loading and unloading of live stock and freight, it is enough to say he was not injured by any accident while so engaged. At the time of his injury, his sole occupation was that of a bill clerk. So we conclude appellee was not, at the time of the accident in which he was injured, engaged in manual or mechanical labor, and therefore is not entitled to the benefits of the Employers' Liability Act.

[3] The meaning of the phrase "caused by any accident due to a condition or conditions of such occupation," appearing first in the Constitution (section 7, art 18), and next in the Liability Act (paragraph 3154), as descriptive of the kind of accident intended to give rise to a right of action to an injured employee, has not as yet been construed by the court. The expression is original in our Constitution and laws. We have not been able to find it in any of the compensation or liability laws or in any decision of a court, or in any text-book, and it therefore necessarily follows that it has not been defined or applied. It is evident that the accident must arise out of and also be inherent in the occupation itself; the condition or conditions that produce the accident must inhere in the occupation. If the occupation is nonhazardous, if the condition or conditions inherent therein are innocuous, the occupation and the employee therein are outside of the purview of the Constitution and likewise of the Liability Law. The Legislature, in paragraph 3155, has defined the kind of accident intended by it to be covered by the Employers' Liability Act in the following language:

"By reason of the nature and conditions of, and the means used and provided for doing the work in, said occupations, such service is especially dangerous and hazardous to the workmen therein, because of risks and hazards which are inherent in such occupations and which are unavoidable by the workmen therein."

It will be noted that stress in this definition is placed upon "the means used and provided for doing the work in said occupation." In fact, the dangerous "nature and condition" of the occupation is not alone because of the work, but because of the lethal character of the means employed to do the work required of the employee. The nature and conditions of the occupation, and the means used and provided to do the work therein, are so dangerous and the risks therefrom are so inherent as that accident therefrom is "unavoidable by the workmen therein." It would seem that, before an employee may recover for injury under this act, it must have occurred while he was at work in his occupation, and it must have been occasioned by a risk or danger inherent in the occupation. Our statute (paragraph 3158) requires something more than that the "accident arise out of and in the course of the employment," an expression common to most of the liability and compensation laws; our statute being:,,

"When in the course of work in any of the employments or occupations enumerated in the preceding section, personal injury or death by any accident arising out of and in the course of such labor, service and employment, and due to a condition or conditions of such occupation or employment."

These added words to the common expression must mean something. The words "arising out of"have been construed to refer to the origin or cause of the injury, and the words "in the course of," to refer to the time, place, and circumstances under which it occurred. Workmen's Compensation Acts, p. 72, Corpus Juris. Superadded to these under our Liability Act is the requirement that the injury must have occurred in the "work," "labor, service and employment" and be "due to a condition or conditions of such occupation." The act of appellee in going away from his work for refreshments was, it may be granted, proper and necessary; but it is also equally as apparent that during the time of his absence he was not rendering work, service, or labor for appellant, and therefore the injury he sustained while on such errand was not due to a condition or conditions of his occupation. Under our statute, the work must be hazardous, and the injury must have been incurred because of the hazard or danger in the work itself and, because of said hazard, "unavoidable" on the part of the employee. Calumet & Arizona Mining Co. v. Chambers, 20 Ariz., 176 Pac. 839.

[4] The danger of falling into the scale pit was not peculiar to appellee in his occupation of bill clerk. It was a danger to which persons not employees of appellant were exposed as much as those engaged in the service of appellant. Appellee shows by his complaint and by the testimony of himself and others that the scale pit into which he fell was "along the route usually traveled by himself and others having business in and about defendant's freight depot." This being so, it was not a risk or hazard peculiar to his work, but one "common to the neighborhood" In re McNicol, 215 Mass. 497, 102 N. E. 697, L. R. A. 1916Ă. 306.

If it be concluded that appelle received his injury in the course of his employment, and that it arose out of the employment, that is not enough to bring him within the statute unless at the time of the injury he was engaged in one of the hazardous occupations named by the statute. The rule being, as laid down by the courts of New York, where the occupation as here must be hazardous, that

"Where the employee's ordinary duties and accustomed scope of activities do not come exclusively or predominantly within the category of enumerated employments, and only casually and incidentally does he do work fairly falling within that category, his right to remnueration must hinge on a finding that he sustained injury while actually and momentarily doing work named in the statute. If the employer shows that the employee was not so employed when he met with injury, he is not en

titled to reimbursement under the statute, even though he at times did work embraced within the statue." Gleisner v. Gross & Herbener, 170 App. Div. 41, 155 N. Y. Supp. 946, 949; De Voe v. New York Sate Ry., 169 App. Div. 472, 155 N. Y. Supp. 12.

[5] Appellee contends we ought to ignore paragraph 3155 as though it were not written in our laws, and especially would he have us ignore the provision therein that limits the benefits of the act to employees doing manual and mechanical labor; for, he says, the constitutional direction to the Legislature was to enact a law granting the right of action to every employee without restriction other than that his occupation be hazardous and in one of the industries mentioned. Without so deciding we may suggest that the Constitution itself in spirit and by implication, if not in terms, by providing that the benefits shall be made to extend only to those employees engaged in hazardous occupations in the businesses or industries mentioned, placed the limitation contained in the law and of which complaint is made. For is it not a fact that the hazardous occupations in the industries of mining, smelting, manufacturing, and railroad transportation are all of the kind requiring manual or mechanical labor? But, aside from this suggestion, it is the statute law and not the Constitution that gives the right of action. Section 7, art. 18, of the Constitution, is not selfexecuting, and the principle therein contained can be appropriated and applied only in so far as the Legislature provides for it. Insp. Cons. Copper Co. v. Mendez, 19 Ariz. 151, 166 Pac. 278, 1183; 12 C. J. 730, 739, 741. [6-8] The delition of paragraph 3155, or any part thereof, as appellee asks, would be to disregard one of the cardinals rules of construction stated by Judge Cooley, as follows:

"That effect is to be given, if possible, to the whole instrument and to every section and clause. If different portions seem to conflict, the courts must harmonize them, if possible, and mus lean in favor of a construction which will render every word operative rather than one which may make some words idle and nugatory." Cooley's Const. Lim. (5th Ed.) p. 70.

But it is said by appellee that this court in Deyo v. Ariz. Grading Co., 18 Ariz. 149, 157 Pac. 371, L. R. A. 1916E, 1257, decided that the Legislature, in limiting the benefits of the Employers' Liability Act to employees doing manual and mechanical labor, acted without power. What we said in that regard was not necessary to a decision of the case, and shows upon its face that it was not intended as a statement of the law. It was submitted more as a query. We said:

"Whether the Legislature exceeded its authority and power in restricting the beneficiaries of the law to those engaged in manual and mechanical labor only, we do not deem it necessary to determine under the facts of this case. That question was not presented in argument by counsel; but it appears to be within the reason of the rule laid down by this court in Behringer v. Insp. Cons. Copper Co., 17 Ariz. 232, 149 Pac. 1065, in which we held that the Legislature did not possess the power to enlarge the mandate of the Constitution as to the Workmen's Compulsory Compensation Law."

Anything said in that regard in the Deyo Case was tentative, and, upon reflection, we conclude unsupported by reason. If we had said, instead of what we did say, that it was the duty of the Legislature to observe the mandate of the Constitution and make its legislation conform thereto, our statement would have been more in place and more correct in principle. While the Legislature may not .extend the constitutional provision so as to include subjects not within its purview or that conflict with it (Behringer v. Insp. Cons. Copper Co., supra), it is well settled that the lawmaking body may or may not, as it chooses, pass laws putting into effect a constitutional provision, and if, in its efforts to give effect to a constitutional provision, the statute is not broad and comprehensive enough to cover all subjects that it might, we know of no reason why it should not be valid as far as it goes. So it is that, if other employees

than those doing manual and mechanical labor might, under the Constitution, be granted the benefits of the act, it is the duty of the Legislature to so provide, and, until it does so, the beneficiaries are limited to those mentioned in the statute.

[9] Inasmuch as the judgment will have to be reversed and the case remanded to the trial court, there is a question involving the introduction of evidence that we feel should be settled at this time. Appellant offered as witnesses two physicians who rendered professional services to ap pellee, and wanted to prove by them what they discovered or learned of his condition, insisting that appellee had raised the ban of secrecy because in a previous trial he had examined one of the witnesses in regard to the same subject-matter and had permitted the other to testify without objection. This offered testimony, upon objection that it was confidential, was rejected. This ruling is assigned as error. Our statute (subdivision 6, par. 1677, Civil Code) in regard to the privileged character of information contained in his professional capacity by a physician or surgeon, from or of his patient, is peculiar, and, for that reason, the decisions of courts under statutes whose language is not the same, but widely different, would not greatly aid us in a construction of ours.

In Arizona & New Mexico Ry. Co. v. Clark, 235 U. S. 669, 35 Sup. Ct. 210, 59 L. Ed. 415, L. R. A. 1915C, 834, it is said:

"The express object [of subdivision 6, supra] is to exclude the physician's testimony, at the patient's option, respecting knowledge gained at the bedside, in view of the very delicate and confidential nature of the relation between the parties."

And "it contemplates that the patient may testify with reference to what was communicated by him to the physician, and in that event only it permits the physician to testify without the patient's consent."

It is further said:

"The act gives him [patient] the option of excluding the physician's evidence entirely by himself refraining from testifying voluntarily as to that respecting which alone their knowledge is equal, namely, what the patient told the physician with reference to the ailment.”

If the record shows that appellee, in the former trial or in the present one testified voluntarily as to what he "told the physician with reference to his ailment," it has not been pointed out to us. It seems, under the statute and the construction given it in the Clark Case, the patient can object to the physician testifying as to what he may have learned in his professional capacity unless the patient has himself "testified to the communications he made to the physician." It not appearing that appellee testified to any communication made by him to the physicians, he did not waive his right to object to their testifying at the second trial, even though they did at some previous trial testify as to knowledge obtained by personal examination.

In Dahlquist v. Denver & R. G. R. Co. (Utah) 174 Pac. 833, reading at page 845, the Supreme Court of Utah, speaking of the Clark Case, said:

"Just how the appellant in that case, under the plain words of the statute and the testimony of the plaintiff, could assume that the plaintiff, who had not testified to any communication made, to his physician, had waived his privilege, is beyond our comprehension. The statute mentions one instance in which the patient's consent may be implied, namely, where he voluntarily testifies with reference to communications to his physician. By construction all others are excluded. Expressio unius est exclusio alterius."

Even if we questioned the correctness of the construction placed upon our statute, we would be inclined to defer our judgment to that of the highest federal court for the sake of uniformity in the administration of the law in this state.