author: WILLIAMS', C. PEE CUEIAM.

text:
    BETTIE FREEMAN et al. v. GEORGIA MAXWELL, Appellant.
    Division Two,
    November 24, 1914.
    1. WILL: Life Estate: Remainder: Construction. A’s will read-, in part: “I hereby will and bequeath ... to my daughters Dora, Annie, Maggie, and Amanda, severally, the sum of $800 each, to be paid to them severally except to my said daughter Amanda; the share given her I bequeath to her sole and separate use, and I hereby constitute W her trustee” to lend or invest and manage her share for her, “paying over the interest thereon . . . for her support and maintenance, and any part of the principal if he shall deem it necessary, the balance remaining after the death of my said daughter to go to her surviving children share and share alike.” Amanda’s trustee invested her share in realty, taking title in himself as trustee, and put her in possession. She deeded a half' interest in the land to her daughter Georgia, and by will devised a half interest in the remainder to the same daughter, her other children to have what was left. Held, that under A’s will Amanda took a life estate only, with remainder to her surviving children, and therefore neither her deed nor her will was effectual to pass title.
    2.--:--: -: Separate Estate: Land Purchased by Trustee. The fact that the trustee of a fund given by will to a woman for her sole and separate use for life, remainder to her surviving children, when he invested the fund in realty and put her in possession took the title in himself as her trustee with no provision for the remainder to her children, does not defeat the remainder.
    3. -■ — :-:-:-:--: Trustee’s Power of Disposing of Principal. A’s will bequeathed a fund in trust for his daughter’s sole and separate use, remainder to her surviving children, the trustee to pay over the interest, and any part of the principal if he should deem it necessary, for her support. The trustee invested the fund in realty and put the daughter in possession, taking the title in himself as trustee with no provision as to the remainder. Held, that since there is nothing in the record to indicate that it ever became necessary to use any of the principal for the eestui’s support, it cannot be presumed that the trustee in buying the land and taking the title as he did intended to exercise his power of paying her the principal and thought thereby to vest her with the fee in the land.

      Appeal from Boone Circuit Court. — Hon. David H. Harris/ Judge.
    Affirmed.

      H. D. Murry for appellant.
    (1) The court erred in holding that Amanda Bra-shears had only a life interest in the rents and profits of the real estate in question and described in the petition of plaintiffs. This question depends upon the construction to be given the deed from McHenry Barkwell et al, to George W. Henderson, trustee for Amanda Brashears (a married woman), for her sole and separate use, and the will of Gilbert Akers, deceased. There are no words in either the deed or will which expressly limit Amanda Brashears’s use to her life only. Nor are there any words which indicate an inten tion to so limit her estate and use in said land. Amanda Brashears under the will of her father, Gilbert Akers, and by said deed, took an equitable fee simple estate in the property therein bequeathed and conveyed to her. Cornet v. Cornet, 248 Mo. 184; Guy v. Mayer, 235 Mo. 390; Settle v. Shafer, 229 Mo. 561; Jackson v. Littel, 213 Mo. 589; Sevier v. Woodson, 205 Mo. 203; Gannon v. Pauk, 200 Mo. 75; Gannon v. Albright, 183 Mo. 238; Roberts v. Crume, 173 Mo. 572; Roth v. Rauschenbusch, 173 Mo. 582; Yoacum v. Silver, 160 Mo. 281; Ryland v. Banks, 151 Mo. 12; Nichols v. Boswell, 103 Mo. 151; Small v. Field, 102 Mo. 104; Crew v. Keller, 100 Mo. 362; McLillen v. Larchor, 45 N. J. Eq. 20; Wolfer v. Hemmer, 144 111. 554. (2) The court erred in not holding that the whole estate became executed in Amanda Brashears, the beneficiary, upon the death of her husband on March 22, 1910. Nothing can be plainer, under the decisions of this State, than that, where a trustee is appointed'to hold the estate of a married woman, to protect it from the husband, as in this case, and the marriage relations come to an end, her estate at once becomes executed in the person who is to take it, the wife, if living, or if she is dead, her heirs at law. In other words, when the conditions under which the trust or use ceased, the seizin and possession were transferred by operation of law to the beneficiary. Here, in this case, a trustee was appointed simply because the beneficiary has married Scott Bra-shears, and when he died, on March 22, 1910, the marriage relations ceased, the trust -ceased, then the law executed the use in Amanda Brashears, and transferred to her the legal as well as the equitable estate. Roberts v. Moseley, 51 Mo. 282; Pitts v. Sheriff, 108 Mo. 116; Small v. Field, 102 Mo. 104; 1 Sanders on Uses and Trusts (Am. Ed.), 253; 2 Washburn on Real Property (3 Ed.), 461, sec. 45; Morgan v. Moore, 3 Gray, 323; Stracy v. Rice, 27 Pt. St. 75; Mark v. Mark, 9 Watts, 410; Sec. 2867, R. S. 1909; Blumenthal v. Blnmenthal, 251 Mo. 703.

      F. O. Harris and Finley & Sapp for respondents.
    (1) The trial court correctly construed the will of Gilbert Akers as creating a trust for the benefit of’ Amanda Brashears and her children, (a) The intention of the testator is the controlling guide, and that intention must be gathered from the four corners of the will, in the light of the circumstances under which it was written. Board of Trustees v. May, 201 Mo. 60; Grace v. Perry, 197 Mo. 550; Mueller v. Buenger, 184 Mo. 458. (b) Item fifth of the will of Gilbert Akers created a trust fund for the sole and separate use of Amanda Brashears during her life with a remainder to her surviving children of so much of the corpus of the fund as remained after her death. Harbison v. James, 90 Mo. 411; Garland v. Smith, 164 Mo. 1; Gibson v. Gibson, 239 Mo. 490; Ewing v. Shannahan, 113 Mo. 196. (c) The trustee having active duties to perform, the trust was an active one as distinguished from a dry trust. Webb v. Hayden, 166 Mo, 48. (d) And the trust could not cease during the life of Amanda Brashears. This is true even though the trustee permitted her to reside on and have the use of the trust property. Pugh v. Hayes, 113 Mo. 434. (e) The fee simple title passed to the remaindermen upon the death of Amanda Brashears, the purpose of the trust having been accomplished. 28 Am. & E<ng. Ency. Law (2 Ed.), p. 947; Pugh v. Hayes, 113 Mo. 434; Ewing v. Shannahan, 113 Mo. 196; Gibson v. Gibson, 239 Mo. 506. (f) The term “surviving children” excludes grandchildren, and.the trial court properly held that the title is vested in the nine surviving children of Amanda Brashears. Sullivan v. Garesche, 229 Mo. 496; Ringquist v. Young, 112 Mr. 25. (2) The trial court correctly construed the deed to the trustee under which plaintiffs claim title, (a) Where land is purchased with money belonging to a trust fund a resulting trust is created in favor of those entitled to the fund. Patterson v. Booth, 103 Mo. 402; Condit v. Maxwell, 142 Mo. 266. And this is true even though the entire purchase money does not consist of trust funds. In such case a resulting trust will be decreed to the extent of the fund so applied. Shaw v. Shaw, 86 Mo. 594; Bowen v. McKean, 82 Mo. 594. (b) The fact that the husband furnished a part of the purchase money does not alter the title of plaintiffs and defendants as found by the court. The husband must be presumed to have intended to add to the trust fund the amount furnished. Alexander v. Warranee, 17 Mo. 228; Yiers v. Yiers, 175 Mo. 444; Curd v. Brown, 148 Mo. 82; Ilgenfritz v. Ilgenfritz, 116 Mo. 429; Gilliland v. Gilliland, 96 Mo. 522. (c) The legal title remained in the trustee or his heirs until the death of Amanda Brashears or until the trustee in the exercise of his discretion consumed the principal in the support and maintenance of the life tenant. The trustee had no authority to change the uses to which the fund should be applied and his actions and report show that he did not so intend. Arnold v. Brockenbrough, 29 Mo. App. 625-; Cornwell v. Wulff, 148 Mo. 542. And the fact that the deed failed to express a remainder over to the surviving children of Amanda Brashears cannot affect the rights of the remaindermen under the terms of the will creating the trust fund. The intention of the original donor must be kept in mind even in construing the deed to the trustee. Clark v. McGuire, 19 Mo. 312.
   WILLIAMS', C.

This is a suit to determine the title to 80 acres of land in Boone county, Missouri, described as follows: The south half of the northeast quarter of section 4, township 48, range 13. The plaintiffs, Bettie Freeman, Birdie Davenport, Minnie Herndon, Pearl Anderson, Gardiner Brashears, James Bra-shears, Scott Brashears, Gilbert Brashears, and the defendant Georgia Maxwell, are the only surviving children of Amanda Brashears, deceased. In 1885, one Gilbert Akers, the father of.said Amanda Brashears, deceased, died, leaving a will bequeathing a certain legacy in trust for his daughter Amanda. That portion of his will involved in this suit was as follows:

“Item Fifth. I hereby will and bequeath to my sons Thomas and Bartemius Akers, the sum of five hundred dollars each, and to my daughters Dora, Annie, Maggie and Amanda, severally the sum of eight hundred dollars each, to be paid to them severally except to my said daughter Amanda who has intermarried with Scott Lashires, the share given her I bequeath to her sole and separate use and I hereby constitute James H. Waugh her trustee to whom my said executors will pay over the share of my said daughter Amanda, and who will loan or invest and manage the same for the best interest of my said daughter, paying-over to her the interest thereon as the same shall acerne, for her support and maintenance, and any part of the principal if he shall deem it necessary, the balance remaining after the death of my said daughter to go to her surviving’ children share and share alike.
“Item Sixth. . . . And in case my estate after the death of my wife shall be insufficient to pay all said legacies in full, I direct that they shall be abated pro rata, and whatever excess there may be after paying said legacies (if any) I direct to be divided equally between my said daughters.”

Mr. James IT. Waugh, named as trustee in said will, declined to act as such trustee and, on April 22, 1887, made application to the circuit court of Boone county, Missouri, praying that one George W. Henderson be appointed as such trustee in his stead. Said circuit court thereupon appointed said George W. Henderson as such trustee “to carry out the provisions of said will creating said trust.” It appears that the estate of said Akers was not sufficient to pay the various legacies in full and said Amanda’s legacy was reduced to the sum of $648.13. This amount was paid by the executors of said Akers’ estate to the said George W. Henderson, trustee for said Amanda Brashears. The said trustee made no report to the circuit court for many years and at the October term, 1905, of the circuit court of Boone county, after citation to appear and make settlement, said trustee appeared and filed the following report.

Report and settlement.

Now at this day comes George W. Henderson, trustee for Amanda Brashears, and shows unto the court that heretofore, to-wit, on the 22d day of April, 1887, he was duly appointed trustee for Amanda Brashears in the place of James H. Waugh, who was named as her trustee in the will of Gilbert Akers, said will being duly recorded in the probate court records of Boone county, Missouri, in book E, page 422; that the resignation of the said James H. Waugh, as such trustee, and the appointment of his successor fully appears on the records of this court, in book P, page'84; that in pursuance of said order of appointment, he duly qualified and gaye bond as required and that said bond was duly approved by this court in its order of record, duly recorded in book P, page 184; that shortly after his appointment he received from Robert L. Todd, the executor of the last will and testament of the said Gilbert Akers, the following personal property and money, to-wit:

The said circuit court approved the report of the trustee and excused him from making any further séttleinent in the matter “until the further order of the court.” The real estate involved in this suit is the same real estate that was purchased by said George W. Henderson, trustee, as mentioned in his above report, and “George W. Henderson, trustee for Amanda Bra-shears, for her sole and separate use,” was named as the grantee in said deed. It is admitted that the grantors in said deed were the owners of said land upon the date of the execution of said deed. Said Amanda Bra-shears died March 17,1911, and her husband Scott Bra-shears died March 22, 1910. It also appears that said George W. Henderson, trustee, is dead. The date of his death is not shown. The separate answer of defendant Georgia Maxwell contained first a general denial and further alleged that she was the owner in fee simple of the east 40 acres of this tract and further that she was the owner in fee simple of an undivided one-half interest in the west 40 acres of said tract. Plaintiffs replying to said separate answer allege that “the entire claim of title made by said defendant is based upon conveyances by, through and under Amanda Brashears, the mother of said defendant; that said Amanda Brashears was in fact entitled to a life estate only in the lands described in plaintiffs’ petition and had no right or authority to convey the same, or any part thereof, to said defendant, Georgia Maxw;ell.” Defendant Georgia Maxwell testified that from 1904 until the death of her father and mother she resided with them on the farm, doing work on the farm and about the house, and caring for her parents in their old age. She introduced in evidence a deed dated October 5, 1910, whereby said Amanda Brashears undertook to convey by straight warranty deed to said Georgia Maxwell the east 40 acres of the land involved in this suit, reserving to the grantor a life estate therein. Defendant then introduced in evidence the last will and testament of said Amanda Brashears. By this will testator bequeathed all her personal property to her said daughter Georgia Maxwell. The will further provided that of the real estate of which testator might die seized an undivided one-half thereof was devised to said Georgia Maxwell and the remaining one-half to her other children, naming them, and the children of certain deceased children. It was admitted upon the trial that the land is now worth from $2000 to $2500. The case was tried by the court without a jury. The court found that said Amanda Brashears left nine surviving children, being the same nine persons above named. The court found that these nine surviving children were the owners in fee simple, as tenants in common, of the real estate described in plaintiffs’ petition, and that said Amanda Brashears had only a life interest in the rents and profits of said real estate and that therefore defendant Georgia Maxwell received no title to said land by reason of the deed and will executed by said Amanda Brashears. The court thereupon adjudged that said nine surviving children were owners in fee of said land and that each of said children was seized of an undivided one-ninth interest in said land and that the other parties to this action, to-wit; the grandchildren of said Amanda Brashears, had no title or interest in or to said land. Defendant Georgia Maxwell alone appealed.

For the purposes- of this review, we will consider the case as though the entire purchase price of the land was supplied from the trust fund provided by the will of Gilbert Akers, and will not take into consideration the fact that $166 of the purchase price was advanced by the ^-g^g^ 0f Amanda Brashears. This for the reason that such appears to be the theory upon which the ease was tried in the circuit court. Whether this payment of $166 of the purchase price of the land purchased by the trustee would operate to establish to that extent a resulting trust in said land in favor of the husband, or whether said payment was intended as an addition to the trust fund provided by the will of Gilbert Akers and to be controlled by the directions of said will, or still further whether it was intended that said payment should be considered as a separate and distinct trust estate to be controlled by the terms of the deed conveying the land to the trustee, would on account of the present undeveloped record on that feature of the case be impossible to determine with accuracy, hence we leave that point where the parties themselves have seemed content to leave it, i. e., outside the consideration of the case.

What interest then did Amanda Brashears acquire in the trust fund by the will of her father, Gilbert Akers? This is the vital question presented by this appeal. Whatever interest she acquired in the trust fund by said will could be followed into the land in which the fund was invested. [Patterson v. Booth, 103 Mo. 402, l. c. 413.]

If the will gave her an absolute equitable interest in the trust fund, then her interest in the land purchased with said fund would be an equitable fee simple estate. If she owned- the land in fee simple either as a legal or equitable estate, she could by will or deed make conveyance of same (Ryland v. Banks, 151 Mo. 1; 1 Perry on Trusts [6 Ed.] 321) and in that event defendant Georgia Maxwell would, by virtue of the deed from her mother, become the owner of the fee to the entire east 40 acres, and by her mother’s will the owner of an undivided one-half, interest in the fee to the west 40 acres.

If, on the other hand, Amanda acquired by said will only a life estate in the income from said fund, then her interest in the land would be a life estate and neither her deed nor will could convey the fee to Georgia Maxwell.

The clause of the will requiring interpretation is as follows:

“Item Fifth. I hereby will and bequeath Thomas and Bartemius Akers, the sum of five hundred dollars each, and to my daughters Dora, Annie, Maggie and Amanda, severally the sum of eight hundred dollars each, to be paid to them severally except to my said daughter Amanda who has intermarried with Scott Lashires, the share given her I bequeath to her sole and separate use and I hereby constitute James II. Waugh her trustee to whom my said executors will pay over the share of my said daughter Amanda, and who will loan or invest and manage the same for the best interest of my said daughter, paying over to her the interest thereon as the same shall accrue, for her support and maintenance, and any part of the principal if he shall deem it necessary, the balance remaining after the death of my said daughter to go to her surviving children share and share alike.”

It will be noticed that this clause of the will is composed of but one sentence. If the clause terminated after the word “severally,” in the fourth line thereof, there could be no doubt but that an absolute interest in said money was vested in Amanda Brashears. But the clause does not end there and the very next word we encounter is “except.” Then follows the provision providing for the appointing of a trustee, the payment of the legacy to-the trustee, and directions to the trustee to invest the fund and to pay the interest therefrom, and any part of the principal the trustee may deem necessary, for the support and maintenance of said Amanda. Then the sentence continues as follows: “the balance remaining after the death of my said daughter to go to her surviving children share and share alike.” If we should construe this .will in harmony with appellant’s contention, it would in effect be to erase from the will the words last above quoted. Those words are not ambiguous in meaning, but are as clear in meaning as any portion of said clause, and being bound to the first part of the clause, as a part of an exception with reference to the interest Amanda shall take in testator’s property, it appears to us that it is the key to the true intent of testator. We have carefully reviewed the many authorities cited by appellant in support of her contention. Some of the cases cited hold that a remainder over, after what purports to be a devise of the fee, is void. But that is no longer the law of this State, as will appear from a reading of the case of Gibson v. Gibson, 239 Mo. 490, wherein the Missouri cases on the subject are reviewed and some of the cases cited by appellant are expressly overruled. Appellant cites another line of cases holding that what would otherwise be a fee or absolute estate in the first taker cannot be reduced to a less estate by words of ambiguous meaning. These cases, undoubtedly, declare the settled law in this State on that proposition, but have no application to the present case for the reason that the words used by the testator in the present case are not ambiguous in meaning but clearly express an intention on the part of the testator that such portion of said trust fund as should not be necessarily used by the trustee for the support and maintenance of Amanda should go to the surviving children of Amanda.

The intention of the testator must control. It is the duty of the court, not to make, but to construe wills, and when once the true intention of testator is ascertained, operating within a sphere not prohibited by law, that intention should prevail and be enforced.

• Neither is the result in the present case to he changed by reason of the fact that the deed conveying the land to the trustee fails to provide for the remainder over in the surviving children of the named cestui que. The directions of the donor, Gilbert Akers, testator and settlor of the trust, and not the granting words of the grantor in said deed, who receives in payment for said land the money from the trust fund, should be allowed to control the channel of the trust estate (Clark v. Maguire, 16 Mo. 302, l. c. 312-3), and especially so where, as here, the rights of an innocent purchaser without notice are not involved. But, says appellant, the trustee was given power by the will of the settlor to dispose of the principal of said trust fund for the support of Amanda, and having the deed made to the land in that manner amounted to an exercise of the power of disposal lodged in the discretion of the trustee, and therefore Amanda became by said deed vested with the fee simple title.

We are unable to agree with this contention. The trustee took the legal title in his own name. By the terms of the will his trust was an active one, as distinguished from a dry trust (Pugh v. Hayes, 113 Mo. 424, l. c. 431-434; Webb v. Hayden, 166 Mo. 39, l. c. 48), in that he had a continuing control over the trust estate to see that Amanda received the interest therefrom, and if that should not be sufficient to meet the requirements, he was given the power, within his' discretion, to use such of the principal as he might deem necessary for her support and maintenance. There is nothing in the record to indicate that it ever became necessary to use any of the principal for her support, and in the absence of clear and cogent proof on that point it will not do to infer that the trustee did that which it appears he did not do and which there would appear no valid reason for doing.

Other legal propositions are discussed by appellant in her brief and we have given them careful consideration, but since the conclusions above announced are decisive of the interests of the respective parties' in said land, it becomes unnecessary to discuss other legal questions which could not change the above result.

It follows that the judgment of the court is correct and should be affirmed. It is so ordered.

Boy, O., concurs.

PEE CUEIAM.

The foi-egoing opinion of Williams, C., is adopted as the opinion of the court.

All the judges concur.


source: Caselaw Access Project

author: WALKER, P. J.

license: Public Domain

text:
    JOSEPH E. SMELSER, Administrator, v. MISSOURI, KANSAS & TEXAS RAILWAY COMPANY, Appellant.
    Division Two,
    November 24, 1914.
    1. CONTRIBUTORY NEGLIGENCE: Assuming Place of Obvious Danger: Brakeman. On defendant’s line of railroad was an elevated platform, on which was a track, alongside of certain coal chutes, and next to them was a board wall six feet high. The distance from the track to this wall was thirty-seven inches, and the distance between the outer side of a car on this track and the wall was seven inches. There was no proof that the space between the track and the wall was ever used or intended to be used by brakemen to step into after coupling cars on the track. Deceased, an experienced brakeman, for three years in the employ of defendant, for three’ months a brakeman on the train, familiar with the platform and coal chutes and having frequently coupled cars on this track, was directed to assist the engineer, about nine o’clock at night, of July 5th,- in taking two empty cars from the platform, and it was his duty to attend to coupling them to the other cars of the train. The cars were provided with automatic couplers, and when the engine backed up to the first car it coupled without difficulty; but the coupler failed to work on the second car, and the brakeman went over or through the cars and got down between them to open the coupler. Having done that, instead of climbing into the car and signaling the engineer from there to move the engine, he stepped out, between the track and the wall of the chute, and signaled the engineer with his lantern, and the engineer, responding thereto, moved the cars, with the result that the brakeman was caught in the narrow space between the side of the car and wall, his body crushed, and the injuries caused his immediate death. Held, that the danger was obvious and apparent, and deceased knowingly put himself, in a place of peril, and under the circumstances he was guilty of such contributory negligence as bars a recovery by his administrator.
    2. NEGLIGENCE: Pleading: Next of Kin: Allegation of Damage. Held, by WALKER, X, that, in a suit by an administrator based on Sec. 5426, R. S. 1909, an allegation that “deceased was an unmarried man and left surviving him a father, mother, brothers and sister as his next of kin,” is sufficient as to the existence of beneficiaries; but a petition which fails to contain any allegation of loss sustained by them by reason of his death, does not state a cause of action for substantial damages under the statute, and not even for nominal damages unless the proof shows his death was due to defendant’s negligence.
    Appeal from Howard Circuit Court. — Hon. Alex. H. Waller, Judge.
    Reversed.

      J. W. Jamison for appellant.
    (1) Plaintiff’s action was bottomed on Sec. 5426, R. S. 1909, known as the compensatory section of the Damage Act, and not on section 5425 of said act, as the latter section has application only in those cases where death is occasioned “by the negligence, unskillfulness or criminal intent of any officer, agent, servant or employee, whilst running, conducting or managing any locomotive, car or train of cars.” The right of action given under Sec. 2864 (now Sec. 5425) is not that given under Sec. 2865 and 2866 (now Secs. 5426 and 5427) and that given under the two last named sections is not that given under the former. These are purely statutory rights of action, and each must rest on its own statute. Casey v. Transit Co., 205 Mo. 724; Peters v. Railroad, 150 Mo. App. 728. When a laborer employed by a railroad company is killed in consequence of the use of defective apparatus, a cause of action accrues under section 5426 and not under section 5425 of the Damage Act. Holmes v. Railroad, 69 Mo. 536; Higgins v. Railroad, 197 Mo. 312; Rapp v. Railroad, 106 Mo. 423. (2) The petition being under the compensatory, and not the penal, section of the Damage Act, under the allegations of the petition and the evidence, the court committed error, both in overruling defendant’s demurrer to plaintiff’s petition and in overruling' defendant’s instruction in the nature of a demurrer to the evidence. Johnson v. Mining & Development Co., 171 Mo. App. 134; Boyd v. Railroad, 155 S. W. 13; Railroad, v. McGinnis, 228 U. S. 173; Railroad v. Daugherty’s Admr., 155 S. W. 1119; Rich v. Railroad, 148 S. W. 1011. (3) Under the authorities supra, plaintiff’s instruction - on the measure • of damages, authorizing the jury to assess plaintiff’s damages ‘ ‘ at such sum as they deem fair and just with reference to the necessary injury resulting from the death of the deceased, James Edward Riley, not exceeding the sum of $10,000, ” was erroneous. (4) The evidence clearly shows that the deceased was guilty of contributory negligence as a matter of law. ITuss v. Bakery Co., 210 Mo. 44. Upon the admitted facts “reasonable men can entertain but one view of the conduct of the deceased, and that adverse to him, and the question, therefore, resolves itself into one of law. ’ ’ Mockowik v. Railroad, 196 Mo. 550; Buckner v. Horse & Mirle Co., 221 Mo. 700. The narrowness of the platform was not the proximate cause of his death, but his negligence in placing himself in a perilous position, and his negligent signaling for the engine. Fulwider v. Gas Light & Power Co., 216 Mo. 582; Devitt v. Railroad, 50 Mo. 302; Stoeckman v. Railroad, 15 Mo. App. 503; Woodson v. Railroad, 224 Mo. 685; Wheeler v. Wall, 157 Mo. App. 38; Sands v. Brewing Co., 131 Mo. App. 413. Where a person fails to employ his faculties to become aware of confronting dangers, or, knowing thereof, to use' reasonable care to avoid it, the law calls his conduct careless because out of harmony with ordinary prudence and loads it with entire responsibility of the consequences, notwithstanding the negligence of another may have aided in producing them. Diamond v. Kansas City, 120 Mo. App. 185; Purcell v. Shoe Co., 187 Mo. 276; Hulett v. Railroad, 67 Mo. 238. (5) Deceased chose the obviously dangerous position on the platform beside the coal chute, and remained there when he had every opportunity to get in or upon the-car in a sáfe place, before signaling for the engine to back and push the car forward. There can be no recovery by his administrator in this action. Hulett v. Railroad, 67 Mo. 239; Smith V. Box Co., 193 Mo. 715; Moore v. Railroad, 146 Mo. 572; Brewer v. Railroad, 56 Mich. 620.

      Samuel G. Major and Frank W. McAllister for respondent.
    (1) It may be conceded that this action is based on Sec. 5426, R. S. 1909. (2) Appellant'contends that plaintiff’s petition fails to state a cause of action, because it does not allege what deceased was earning or that he “contributed-in any sum toward the support of his father, mother, brothers and sister, who were his next of kin;” and that, as there was no evidence of . these facts, defendant’s instruction, in the nature of a demurrer, at the close of plaintiff’s evidence should have been given. This contention is based, and appellant relies for support of it solely, upon the majority opinion of the Springfield Court of Appeals in the case of Johnson v. Dixie- Mining and Development Company, 171 Mo. App. 134. That case was decided by a divided court, Robertson, J., dissenting from the majority opinion of Farrington, P. J., and the concurring opinion of Sturgis, J., and the former being of the opinion that the majority opinion was in conflict with recent decisions of this court, requested that the case be certified to this court, where it is now pending. The majority opinion and the concurring opinion therein entirely ignores the earlier case of Morgan v. Oronogo Circle Mining Company, 160 Mo. App. 99, decided by that court. The opinion in the Johnson case is directly in conflict with the holding in the Morgan case, but the latter case is not referred to in the opinion in the former case. The majority opinion and the concurring opinion in the Johnson case hold, in effect, that in suits brought under Sec. 5427, R. S. 1909, by the administrator of a deceased adult who left no wife, minor child or minor children, the administrator sues as the trustee of an express trust for the benefit of those who are entitled to the amount recovered under the laws of descent, as provided in section 5425, and that it is necessary for him to allege and prove the names of such persons and facts showing the pecuniary loss they have sustained, that is, that they were dependent upon, had some financial interest in, or received some financial benefit from the deceased. The conclusions reached rest primarily upon the assumption that the provision of section 5425, directing that in a suit by an administrator the amount recovered shall be distributed according to the laws of descent, applies to a suit and recovery by an administrator under section 5427. We do not believe that the language of section 5427 justifies such construction. Section 5426 fixes the liability of the offending party, and does no more. It is left entirely to section 5427 to designate the parties who shall be entitled to sue and recover on the liability fixed by section '5426, and it does this by providing that “the damages accruing under the last preceding section shall be sued for and recovered by the same parties and in the same maimer as provided in section 5425. ’ ’ Under section 5425, the parties who are entitled to sne and recover are: first, the husband or wife; second, the minor child or minor children; third, if the deceased be a minor, the father and mother; and fourth, “if there be no husband, wife, minor child or minor children, natural-born or adopted as hereinbefore indicated, or if the deceased be an unmarried minor and there be no father or mother, then in such case suit may be instituted and recovery had by the administrator or executor of the deceased.” Section 5427 refers to the above section for two purposes only: first, to designate the parties who may sue for and recover the damages; and, second, that the damages shall be sued for and recovered in the manner provided in that section. It does not expressly or by implication refer to the provision of section 5425 that the amount recovered shall be distributed according to the laws of-descent, and it is a far-fetched judicial construction that can make it appear to apply the damages recovered under section 5426. If the provision of section 5425, that “the amount recovered shall be distributed according to the laws of descent,” does not apply to suits under section 5427, then the theory and contention that plaintiff sues as trustee of an express trust for the benefit of those who .would take the amount recovered according to the laws of descent must, of course, necessarily fail, and it must be held that the administrator sues in his capacity as administrator for the benefit of the estate of deceased. Although it should be concluded that the provision of section 5425 applies to suits under section 5427, yet, appellant’s contention must fail. There is no sort of basis in the language of the statute for the contention that an administrator or executor can sue only when deceased left next of kin dependent upon him for support, or that dependency of next of kin in any wise affects his right to sue and recover. The language is “in such case, suit may be instituted and recovery had by the administrator or executor of the deceased.” In construing a new statute of doubtful meaning, amendments to the original bill should be looked to, and the journal of the General Assembly may be resorted to for this purpose. Sec. 6287, R. S. 1909; 36 Cyc. 1138; Ex parte Helton, 117 Mo. App. 609; State v. Koock, 202 Mo. 223. It is evident that the Legislature did not intend to limit the right of recovery by an administrator or executor to the pecuniary loss suffered by those who were dependent upon deceased, and that to so construe the statute is to interpolate into it words which were stricken out of the House bill by amendment 21905, and the effect of which is to give the statute a meaning directly in conflict, not only with the plain words of the statute itself, but with the evident purpose and intention of the Legislature. Southern Pacific Co. v. Wilson, 85 Pac. (Ariz.) 401; James v. Railrohd, 95 Ala. 231; Railroad v. Sullivan, 120 Fed. (Fla.) 799; Searle’s Admr. v. Railroad, 9 S. Eu (W. Ya.) 248. (3) The damages recoverable in this action are for the benefit of the estate, and the measure of damages is the loss to the estate of deceased by reason of his death. Sec. 5427, R. S. 1909; Hudson v. Railroad, 159 S. W. 14; Keeny v. McYoy, 206 Mo. 65; Stubbs v. Mulholland, 168 Mo. 73; Bingham v. Birmingham, 103 Mo. 345. The administrator is entitled to recover what the deceased would probably have accumulated if he had lived. Railroad v. Benedict, 159 S. W. (Ky.) 526; 13 Cyc. 366; Electric Co. v. Bowden, 15 L. R. A. (N. S.) 451; Railroad v. Sullivan, 120 Fed. 799; Coal Co. v. Enslen, 129 Ala. 336; Southern Pacific Co. v. Wilson, 85 Pac. (Ariz.) 401; Railroad v. Orr, 91 Ala. 548; Railroad v. Foxsworth, 41 Fla. 1; Railroad v. Massie, 128 S. W. (Ky.) 330. (4) Appellant’s contention that deceased was' guilty of contributory negligence, as a matter of law, is based upon the assumption that it was admitted, or not controverted by any evidence in the case, that deceased, after going between the cars and adjusting the coupling, moved back against the wall or back of the chute and signaled, by waving his lantern, for the engine and cars to be moved,' and that he thereby invited the movement of the train while he was in a position of danger; but that is not what the evidence shows. The witness, Elmer Carter, was on top of the chutes, and testified that while he could not see deceased’s lantern, he could and did see the reflection of the light from the lantern on the banister, and that he saw no movement of the reflection, or any movement, indicating any movement 'or signal with the lantern. Wheeler also testified that he saw no movement of deceased’s lantern or the reflection thereof. The witness also testified that the car moved back just about the time he heard the noise made by deceased opening the knuckle which shows that deceased did not have time, after opening the knuckle, to have stepped back and given a signal for the engine to move before the engine and car moved and he was. caught. These witnesses were in better position to see and to know whether deceased gave a signal for the movement of the engine, than any other witnesses who testified in the case. Whether deceased gave a signal for the movement of the engine and cars while he was in a dangerous place was a question for the jury. Brady v. Railroad, 206 Mo. 530; Black v. Railroad, 172 Mo. 188; George v. Railroad, 225 Mo. 402. There is no assumption of risk in this case. The servant assumes the risks incident to his employment, but he never assumes the risk of injury occasioned by the master’s negligence. Curtis v. McNair, 173 Mo. 280; Charlton v. Railroad, 200 Mo. 433; Yougue v. Railroad, 133 Mo. App. 152; Honea v. Railroad, 245 Mo. 621; Railroad v. McDade, 191 U. 8. 67. It would have been such a simple matter for defendant to have constructed’ a platform, on the opposite side of the track from the chutes, for the use of its employees who were compelled to go upon the elevated track to couple, and uncouple cars and perform other duties. The cost would have been a mere bagatelle. As said in the Mc-Dacle case, it was so simple a task and so devoid of all exegencies of expense, necessity or convenience that not to make such a construction safe for the use of its employees “is a conviction of negligence.” It is well-settled law that the servant is not obliged to refuse to use an appliance, or quit the service of the master, if he reasonably believes that by proper care and caution he can safely use the appliances, notwithstanding they are not so reasonably safe as the master is required to furnish. Mere knowledge of the defect is not, as a matter of law, sufficient to defeat plaintiff’s action if the danger therefrom was not so obvious as to threaten immediate injury. Lee v. Railroad, 112 Mo. App. 406; Corby v. Telephone Co., 231 Mo. 442; George v. Railroad, 225 Mo. 405. (5) Under the testimony of witnesses, Carter and Wheeler, deceased did not place himself in an “obviously dangerous position on. the platform opposite the coal chutes” and signal for the engine to move backward.
   WALKER, P. J.

Plaintiff, as administrator of the estate of James E. Reilly, deceased, brought suit against defendant, a railway company, in the circuit, court of Howard county, under section 5426, Revised Statutes 1909, for $10,000 damages for the death of said Reilly through the alleged negligence of the defendant. Upon a trial a verdict and judgment was rendered in favor of plaintiff in the sum of $8000, from which defendant appeals.

James B. Reilly, at the time of the accident and for three years prior thereto, had been employed by defendant as a railway brakeman on one of its trains running from Hannibal to New Franklin. On the night of July 5, 1909, while in the discharge of his duty as a brakeman, at Wilcox, a coal station, he was directed with the aid of the engineer, to take two empty cars from an elevated track opposite certain coal chutes and set two other cars loaded with coal thereon, and in so doing he was caught and crushed to death between one of the cars and the wall of the coal chutes.

Defendant’s track on the platform opposite the coal chutes was about fourteen feet above the level of the ground; the level portion of same, about 200 feet long, was reached by a switch track laid on an incline formed of trestle work; at the north end of the platform were six coal chutes; these chutes extended above the elevated track eight feet, and each was provided with a trap door to load coal into tenders of engines on the main line; the back of the chutes presented a solid wooden wall adjacent to the back of the platform or elevated track. The height of the wall above the platform was something more than six feet; the track on this platform was parallel with the wall, the nearest rail of same being about thirty-seven inches from the wall; the distance from the outer edge or side of a car when on this elevated track, to the face of the wall, was seven inches. On the opposite side of the track from the wall the body of a car, when on the elevated track, extended over the full width of the platform; the cars were provided with automatic couplers, and when the engine backed up to the first car, as directed by Reilly, it coupled without difficulty, but the coupler failed to work on the second car, and Reilly went over or through the cars, evidently open coal cars, and got down between them to open the. coupler. This he did, and instead of climbing into the car and signaling the engineer to move the engine, he stepped out,, between the track and the wall of the chute, and signaled the engineer with his lantern, and the latter responding thereto moved the cars with the result above stated.

The contention of the plaintiff is that the defendant should have furnished a space sufficiently wide between the outside of the car and the wall to enable one after coupling cars to stand there in safety, or, in other words, that it was negligence on the part of the defendant to leave only seven inches of space between a car on the elevated track or platform and the wall; that Reilly although familiar with the location, was not chargeable with contributory negligence in stepping into this space, instead of climbing back into the car before he gave the signal.

The petition summarized is as follows:

riaintiff alleges his appointment as administrator of the estate of James E. Reilly and that he brings this suit as such; that deceased was an unmarried man, twenty-two years of age, who left surviving him no wife or minor child or children, but a father, mother and brothers and sister, as his next of kin; that at the station of Wilcox on defendant’s line of railway it had constructed an elevated track reached by inclined trestle work, and had built thereon a platform elevated about fourteen feet above the surface of the ground, over and upon which cars were moved by defendant for the transfer of coal from the cars into coal chutes; that said platform was built along the back of the chutes; that the back of the chutes extended, about eight feet above the elevated track and platform and was solidly boarded up, forming a dead wall for a length of about forty feet; that the intervening space between the back of the chutes and the- sides of cars standing on the tracks opposite thereto, was not sufficiently wide to afford employees a safe place to work while engaged in coupling and uncoupling cars on said elevated track; that defendant had negligently failed to construct and maintain a platform, walk-way or passage on the side of said elevated platform opposite said wall upon which defendant’s employees might stand in safety when coupling or uncoupling cars on said elevated track, and while the same were being'moved thereon, and by reason of the premises said elevated track, platform, etc., were unsafe for the use of the employees of defendant who were required in the discharge of their duty to go and be upon said elevated platform and track in moving cars to and from said chutes, and in coupling and uncoupling cars thereon; that deceased was a brakeman on one of defendant’s trains, and while in the performance of his duties as such, was directed to take two empty cars standing on the elevated track immediately opposite the coal chutes from the platform and place two other cars loaded with coal thereon; that it then and there became his duty to go upon said elevated track and platform and couple the engine with the said cars and couple the cars thereon together; that he had coupled the engine to the nearest car, and had gone to the end of the other car to make another coupling, and while so engaged at about the hour of nine o’clock at night, on the 5th day of July, 1909, by reason of the aforesaid negligence of defendant he was caught in the narrow space between the side of the car coupled to the engine and the back of said coal chutes, and his body crushed and such injuries inflicted that he then and there died. Plaintiff in his prayer states that the death of said Reilly was caused by the negligence of defendant and that plaintiff as administrator of the estate of deceased is entitled to recover the sum of ten thousand dollars by reason of said death.

Defendant demurred to the petition' on the ground that it failed to state facts sufficient to constitute a cause of action; that it affirmatively appeared on the face of the petition that deceased was guilty of contributory negligence; that he had full knowledge of the conditions and dangers incident to his employment, which were open, obvious and apparent to him, and that he had assumed the risk of any injury sustained. This demurrer was overruled, and defendant answered over, first, by general denial, and further that whatever injuries deceased sustained, if any, were occasioned by his own negligence contributing directly thereto, in that he went upon the elevated track and after he had made the coupling he negligently got upon the platform between the cars and the wall of the chute while the cars were being moved, instead of putting himself in a position of safety by getting upon the car before the same was moved; and, further, that he negligently placed himself on the side of the car next to the wall, and gave a signal for the moving of the engine necessary for the coupling of the cars, and in so doing placed himself in a position of danger; that he was further negligent in giving signals with his lantern for the movement of the engine and- cars while standing between the wall and the sides of the cars instead of placing .himself in a .position of safety before-giving the signal, as he might have done, from one of said cars; that he was further negligent in taking his position on the side of the platform next to the wall where he was in danger of being crushed, instead of placing himself in a position of safety upon one of the ears, and giving a signal therefrom; that by virtue of his contract of employment it was the duty of the deceased to couple cars elsewhere, as well as upon defendant’s elevated track; that he was an experienced brakeman who had frequently before the accident coupled and uncoupled cars at night time, upon this elevated track, and at other tracks of similar character; that the dangers, if any, were open and obvious, and that by reason of the premises he had assumed the risk of all injuries received on the occasion mentioned in plaintiff’s petition.

The defendant assigns error in the overruling of its. demurrer to plaintiff’s petition, in the court’s refusal to give an instruction in the nature of a demurrer to the evidence; that the finding of the jury is against the evidence and the’ admitted physical fact that defendant placed himself in- a position where he was bound to be crushed, and signaled and invited the movement of the train, which resulted in his death; that the court erred in giving improper instructions asked by plaintiff and in refusing proper instructions asked by defendant.

I. Defendant challenges the sufficiency of the petition in that it does not charge wherein ^he next of kin of the deceased have suffered pecuniary loss by reason of his death through the alleged negligence of the defendant.

The next of kin, to-wit, the father, mother, brothers and sister of deceased are named in the petition, but aside from a general allegation of damages in the prayer, there is in the pleading no reference to injury suffered by anyone as a result of the death of decedent. The court could not, of course, be guided by the prayer in determining the nature of the relief sought. [State ex rel. v. Barnett, 245 Mo. 99.]

As an elementary proposition in measuring the sufficiency of a petition of. the character of the one under consideration, it may be stated generally, proper regard being had for the statute upon which the action is based, that the same rules of pleading are applicable as in an action for personal injury.

The right of action being statutory (Casey v. St. L. Tr. Co., 205 Mo. 721, 724; Id., 116 Mo. App. 235), the allegations of the petition should be sufficiently full and definite to bring the cause clearly within the purview of the statute, in conformity with the general rule that an action based upon a statute should charge such facts as will bring it within the terms of the act creating it. [Williams v. Railroad, 233 Mo. 666, 681; Gilkeson v. Railroad, 222 Mo. l. c. 183.]

While no greater certainty is required in the pleading than is found in the statute itself, at least those facts which, the latter names as the basis of the right of action, should be set forth. [31 Cyc. 115, and cases.] There is, however, a more cogent reason than the foregoing, and one more particularly applicable to the case at bar, why the petition should set forth the material portions of the statute upon which the action is based. By the terms of the statute the jury, within the limit named, are authorized to assess the damages at such sum as they may deem to be fair and just, reference being had to the necessary injury resulting from the death to the surviving parties who may he entitled to sue. These conditions are material parts of the statute and stamp it as compensatory. [Honea v. Railroad, 245 Mo. l. c. 645; Boyd v. Railroad, 236 Mo. 54; Hegberg, Admr., v. Railroad, 164 Mo. App. 514, 559; Johnson v. Mining Co., 171 Mo. App. 134, 143.] Such being the character of the action the parts indicative of its nature are required to be proved to authorize recovery thereunder, and it is, therefore, necessary that they he pleaded. [Safford v. Drew, 3 Duer, 627, 633; Serenson v. Railroad, 45 Fed. 407.] This court in thus determining the character of this statute has on account of its unmistakable terms only found it necessary heretofore to declare it to be compensatory without alleging the reasons for this conclusion. In Hegberg v. Railroad, supra, and Johnson v. Mining Co., supra, Nixon and Farrington, JJ., of the Springfield Court of Appeals, at different times and in different cases, have respectively elaborated with force and clearness not only the reasons why this statute is compensatory, but that being so, its material parts should he pleaded and proved. In addition, the purpose of each of the sections forming this statute and their relations to each other are succinctly defined by Sturgis, J., in a concurring opinion filed in the Johnson case, supra, leaving nothing more to be said on this question save by way of repetition.

It may be contended, as has been inferentially stated in opinions rendered by this court construing this statute, that an action thereunder brought in general terms, as in the case at bar, implies pecuniary loss to the beneficiaries from the death, and in the absence of pleading and proof of such loss a recovery may he had for at least nominal damages. While no reason has been stated here for this implied ruling, it is held in other jurisdictions that damages necessarily flow from the negligent killing and that whenever there is proof of such negligence on the part of the defendant and of the existence of next of kin, the action will lie at least for nominal damages. [Tiffany, Death by Wrongful Act (2 Ed.), sec. 180, and cases cited under note 174.]

However, except to determine whether the petition states a cause of action under any circumstances, the question of nominal damages is not involved in this case. Keeping in mind the general observations heretofore made in regard to the sufficiency of,a petition of the character of the one at bar, notwithstanding this suit is brought by the personal representative, it ber comes necessary for us to determine whether the following material facts have been properly pleaded: (1) the existence of beneficiaries such as “are entitled to sue” within the contemplation of the statute (Sec. 5427, supra), and (2) the personal injury suffered by such beneficiaries from the death of the decedent through the alleged wrongful act of the defendant.

Under the terms of the statute the verdict of the jury is to be determined by “reference to the necessary injury resulting from the death to the surviving parties who may be entitled to sue.”

The correctness of the conclusion reached in the Hegberg and Johnson cases, supra, is not questioned, that where suit is brought by a- personal representative, as here, he sues under the statute as a trustee of an express trust for such existing beneficiaries as are named under section 332, Bevised Statutes 1909, and by these beneficiaries are meant “such surviving parties as are entitled to sue” within the meaning of the statute under which the action is brought. The St. Louis Court of Appeals has reached a like conclusion in Troll, Admr., v. Laclede Gas Light Co., 182 Mo. App. 600. In other jurisdictions under statutes similar, and in some instances almost identical, with the one here under review, it is held where suit is authorized to be brought by a personal representative for a wrongful death, the existence of the beneficiaries should be alleged. [Oulighan, Admr., v. Butler, 189 Mass. 287; Vander Wegen v. Great Northern Ry. Co., 114 Minn. 118, 121; Webster v. Norwegian Mining Co., 137 Cal. 399; Railroad v. Maxwell, 113 Tenn. 464, 473; Village of Assumption v. Campbell, 95 Ill. App. 521; C. B. & Q. Ry. Co. v. Oyster, 58 Neb. 1.]

But it is not necessary that such beneficiaries should be named other than to indicate their relationship to the deceased. [Conant v. Griffin, 48 Ill. 410; Pennsylvania Co. v. Coyer, 163 Ind. 631; Howard v. Del. & H. Canal Co., 40 Fed. 195, 6 L. R. A. 75.]

We find that the petition in the instant case alleges that “deceased was an unmarried man . . . who left surviving him a father, mother, brothers and sister as his next of kin.” This is a sufficient allegation as to the existence of beneficiaries and in this respect the petition is not subject to objection.

II. Ee'lative to the necessity of an allegation of damages in the petition. As we have heretofore stated generally while it has been impliedly held here and expressly held elsewhere, under petitions framed as in the case at bar, that a verdict for nominal damages may be sustained, the rule seems to'be well established, where substantial d&nmges are sought, to require the facts to be alleged showing the pecuniary loss occasioned by the death of the decedent. Under the statute in question the jury, within the limit named, may award such damages as may be deemed fair and just, reference being had to the necessary injury resulting to the beneficiaries. In no other manner than by proof can it be determined what damages are fair and just in each particular case, reference being had to the injury caused by the death of decedent. Proof being necessary it can be admitted only under a pleading authorizing same.

In many cases based on statute similar to the one under consideration, it is held that a distinction is to be drawn between actions on behalf of beneficiaries so related to the deceased that the law imposed upon him, while living, the duty of their support, and those actions in which the beneficiaries were not so related; it being held in regard to the first class that it is enough if the petition shows the existence of such beneficiaries, the pecuniary loss or injury being thereby sufficiently averred (Peden v. Am. Br. Co., 120 Fed. 523; Kearney Elec. Co. v. Laughlin, 45 Neb. 390; City of Friend v. Burleigh, 53 Neb. 674); but in the second class it is necessary that the petition allege facts showing an actual pecuniary interest in the life of the decedent and a consequent loss by reason of his death. [Thompson v. Railroad, 104 Fed. 845; Greenwood v. King, 82 Neb. 17; Orgall v. C. B. & Q. Ry. Co., 46 Neb. 4.] No such distinction obtains here and in view of the plain and unequivocal terms of the statute we are of the opinion that the petition should allege the loss sustained by the beneficiaries by reason of the death of the decedent regardless of the degree of their relationship to him. [Rouse v. Electric Ry., 128 Mich. 149, 155; Regan v. Railroad, 51 Wis. 599, 602.] Lacking this essential averment the petition does not state a cause of action for substantial damages and this will suffice to determine the issue adversely to the plaintiff, unless, upon an examination of the facts, it is disclosed that decedent came to his death through the negligence of the defendant, in which event the petition is sufficient to sustain a verdict for nominal damages which will authorize a reversal and remanding of the cause.

III. Do the facts authorize a verdict for nominal damages? The decedent was an experienced brakeman. He had been employed in that capacity by'defendant for three years prior to the accident which resulted in his death. For three months immediately preceding the accident he had been brakeing on the particular division on which the elevated track and coal chutes were situated and had frequently at night time coupled cars at this point. Thus familiar with the surroundings, as he must have been on account of the character of his labor, it would be contrary to all human experience if he did not know the relative locations of the switch track and the dead wall or back of the chutes. Armed with this knowledge, if possessed with average intelligence, and there is nothing to indicate the contrary, he must have known that the space between a car on the switch track and the dead wall was not sufficient to permit one to stand there without being crushed. In addition, he must have known that this space was not intended for the use of brakemen but simply to enable cars placed there for unloading to- “clear” or be moved back and forth on the switch track without striking the wall. There is no evidence that the space between a dead wall and the car track,. at such locations as we find here, is ever used or is intended to be used by brákeman to step into after coupling cars; on the contrary, the evidence as to the custom at this particular location and elsewhere under similar circumstances is that after a coupling is made the brakeman climbs into the car and therefrom gives the engineer the signal to move. Instead of so doing, the decedent stepped into the seven-inch space between the track and the wall, and with his lantern signaled the engineer to move the car which crushed the life out of decedent.

The books afford few parallels to this reckless disregard of one’s own safety. We cannot characterize decedent’s conduct other than that of contributory negligence. Fully aware of the conditions and dangers incident to his employment, which were not obscure but were open, obvious and apparent, he knowingly put himself in a place of peril and it must be held that he assumed the risk of the injury sustained. There are, therefore, no facts upon which a finding for even nominal damages can be sustained, and the judgment of the trial court is reversed.

Brown and Far Is, JJconcur in paragraph three and the result.