author: RAGLAND, C.

text:
    PATRICK H. FORD v. JACOB M. DICKINSON, Receiver of CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, and ISMERT-HINCKE MILLING COMPANY, Appellants.
    Division One,
    December 20, 1919.
    1. NEGLIGENCE: Railway Track: Dangerous Proximity to Posts. The mere construction of a railroad track so close to an iron post as to be inherently dangerous to a brakeman riding on the side of a box car is not, regardless of conditions, negligence. It is error to instruct the jury that the construction of an iron post, to support the roof of a shed, used by a milling company in unloading wheat fr.om cars, in such close proximity to the railroad track as to be dangerous to a brakeman on the side of the car, of itself alone constitutes negligence, there being no showing of sufficient ground under the shed for wider space between the post and track or that it was practicable or feasible for the milling company to have allowed wider space.
    2. -: Defective Track and Dangerous Proximity to Post: Inconsistent Allegations: Concurrent Acts. A petition is inconsistent which alleges, that the location of an iron post to support a shed, used for unloading cars hauling wheat to a mill, so close to the railroad track that a brakeman could not ride safely on the side of the car, was the proximate cause of his injury, and which also alleges that the proximate cause of his injury was a low place under the rail which caused the car to swerve towards the post; and where lioth acts of negligence are submitted to the jury, by one instruction fixing liability on the milling company because of the dangerous proximity of the post to the rail, and by .another fixing liability on the railroad company because of the defect in the rail, a verdict against both cannot stand. In such case the' petition should either allege that the two acts of negligence were concurrent and operating together caused the injury, or they should be alleged, in the alternative, that one or the other caused the injury, and the instructions be drawn accordingly.
    3. -: Post Near Track: Assumption of Risks: Warning. A brakeman does not assume a risk of which he is totally ignorant and cannot ascertain in the exercise of ordinary care and prudence, and where such aré the facts it is the duty of the company to warn him of the danger. Where the railroad track was. so close to an iron post erected to support a shed, used by a milling company, as to be dangerous, the brakeman was not acquainted with the situation, and as the car approached he looked along the track and concluded it was safe for him to ride on the side of the car, it was the duty of 'the railroad company to warn him of the danger, the hazard being exceptional.
    4. -: Proximity of Track to Post: Liability of Railroad. If a railroad track is negligently, maintained dangerously near to an iron post in a milling shed, the railroad company which retains direction and control over it is liable for damages for injury to a brakeman riding on the side of a car; and it is negligently maintained, if it is practicable and feasible to maintain the track a sufficient distance from the post to remove the danger; and if the railroad company does not have sufficient control to eliminate the danger, it can either require the milling company to do so, or cease to haul cars into the shed.
    5. -: -: Liability of Milling Company: Latent Perils. A milling company which maintains a shed for unloading cars of wheat is liable for all latent or concealed perils, maintained by it, to brakemen handling the cars; if it maintains an iron post, erected to support the shed, so close to the railroad track as to be dangerous to brakemen riding on the ladder of passing cars, and the danger is not so open or obvious that a brakeman, by ordinary care in the discharge of his duties in the customary way, will discover it, it is liable for his injuries caused by coming in contact with the post as the car passes.
    6. -: Interstate Employment: Misjoinder: Waivers. The petition charged both defendants, a railroad company and a milling company, with common-law liability, an,d the milling company contends that the cars of wheat which the plaintiff brakeman was engaged in switching at the time he was injured were interstate shipments, that by reason thereof he was in interstate commerce, and that the railroad company’s liability is governed by the Federal Employer’s Liability Act and its own by the common law, and that therefore there was a misjoinder of defendants and of causes of action. Held, that if the milling company had a right to raise the question, it waived it by pleading over without raising it. Besides, if the railroad company wished to waive" its immunity under the common law, it cannot be perceived how that affects the rights, of the milling company. Held, also, that the railroad company, having tailed to raise by some sort of pleading that its liability is governed by the Federal Employers’ Liability Act, cannot raise the question for the first time in the appellate court.
    Appeal from Jackson Circuit Court. — Hon. O. A. Lucas, Judge.
    Reversed and remanded.

      Sebree & Sebree, for appellant Jacob M. Dickinson.

      Adrian F. 'Sherman and Thad. B. London for appellant Ism ert-IIincke Milling Company.
    (1) The court erred in overruling the demurrer of the defendant milling company at the close of plaintiff’s evidence, and in refusing to peremptorily instruct the jury to return a verdict for said defendant, a. Under the pleadings and the evidence, the milling company was not guilty of negligence. Crawford v. Stockyards C'o., 215 Mo. 410; Morris v. Pryor, 272 Mo. 350; L'ewis v. Coal Co., 84 Kan. 333; Oplotnik v. Mining Co., 98 Kan. 356; Pankey v. A., T. & Santa Fe Ry. Co., 180 M'o. App. 185; South Side Elec. Ry. Co. v. NesCo., 180 Mo. App. 185; South Side Elec. Ry. Co. v. Nesvig, 214 111. 463. (2) The evidence shows that the location of the post near the west rail of track 2 was in no way the proximate cause of plaintiff’s injury. A new and independent cause, to-wit, a sag in'the west rail of track 2 at or near the post in question, intervened between the action of the milling company in locating the post, and the plaintiff’s injury. Kiser v. Suppe, 133 Mo. App. 19; Halejr v. Transit Co., 179 Mo. 30; Dickson v. Ry. Co., 124 Mo. 140; Hudson v. Wabash Ry. Co., 101 Mo. 13'; Milwaukee & St. Paul Ry. Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256; Glenn v. Met. St. Ry. Co., 167 Mo. App., 109; Cole v. German Savings & Loan Society, 124 Fed. 113; Sec. 98*50, Geni. Stat. Kan. 1909'; Railway Co. v. Columbia, 65 Kan. 390; Railroad Co. v. Justice, 80 Kan. 10; Eberhardt v. Telephone Co., 91 Kan. 763; Gas Co. v. Dabney, 79 Kan. 820; Rodgers v. Ry. Co., 75 Kan. 222; Crawford.v. Stockyards Co., 215 Mo. 394. (3) The court further erred in dénying the demiurrer of defendant milling company for the reason that there was a clear misjoinder of parties defendant, and a misjoinder of causes of action. Federal Employers’ Liability Act (Act of Congress, Apr. 22, 1908', Ch. 149', 35 Stat. L. 65, 8 Fed. Stat. Ann. 1208); Pipes v. Mo. Pacific Ry. Co., 267 Mo. 385; Luechetti v. Philadelphia &. R. Ry. Co., 233 Fed- 137; Union Pacific v. Wyler, 154 U. S. 286', 39 L. Ed. 983; Bankson v. Illinois Central Ry., 196'Fed. 171; Sec. 1795, R. S. 1909; Beattie v. Gérardi, 166 Mo. 143; Toledo, St. Louis & W. Ry. Co. v. Slavins, 236' U. S. 455, 59 L. Ed. 454; Doyle v. St. Paul Depot Co., 134 Minn. 458. *(4) The court erred in giving instruction number 2 at the request of the plaintiff:. The instruction was erroneous; (1) no negligence was proven, and (2) the location of the post was not the proximate cause. Authorities supra. It was further erroneous because it allowed the jury to put the absolute duty upon the milling company to remove the post. Morris v. Pryor, 272 Mo. 350; Pankey v. A. T. & S. F. Co., 180 Mo. App. 186'; Crawford v. Stockyards Co., 215 Mo. 410. (5) The court erred in the giving of instructions number 1 and number 2, at request of plaintiff. These instructions aro inconsistent and contradictory and in conflict with other instructions given on behalf of defendants.

      Boyle & Watson for respondent.
    (1) The defendants, not having stood on their demurrers at the close of plaintiff’s case, and having introduced evidence in their own behalf, the final demurrers search all the testimony, and the plaintiff is entitled to any benefit to be derived from the defendant’s proof. Stauffer v. Metropolitan St. Ry. Co., 243 Mo. 305; Peters v. Lusk, 200 Mo. App. 372, 1. c.. 379. (2) Under the ' pleadings and the evidence, the defendants were both guilty of acts of negligence, which were concurrent and each of which created liability, and each constituted a proximate cause and either or both defendants were liable. Ganahl v. United* Railway Co., 197 Mo. App. 495; Harrison v. K. C. Electric Light C'o., 195' Mo. 606; Newcombe v. N. Y. Central Ry. Co., 160 Mo. 409; Hawkins v. Railroad. Co., 182 Mo. App. 328; Buckner v. Horse & Mule Co., 221 Mo. 711; Clark v. POwder Co., 94 Kan. 268 ; 29 Cyc. 496, 497 ; 29 Cyc. 465; Chase v. Railroad, 156' Mo. App. 701; Young v. Waters Pierce Oil Co., 185 Mo. 634; Snyder v. Light Co., 98 Kan. 157; Hartman v. Railway Co.,‘94 Kan. 184. (3) The question of contributory negligence is not in this case, for the reason it is not pleaded. Harrington v. Dunham, 273 Mo. 414. (4) The plaintiff did not and could not assume the risk of the defendant railway’s negligence. George, v. Railroad* Co., 225 Mo. 406; Pish v. Chicago, Rock Island & Pacific Ry., 263 Mo. 106; Charlton v. St. L. & S. F, R. R. Co., 200! Mo. 433. (5) The defendant milling company breached its duty toward plaintiff, an invitee. Glaser v. Rothohild, 221 Mo. 185. (6) There was no misjoinder of parties defendant or of causes of action, and even had there been the questions could only be taken advantage of by demurrer to the petition, by answer or motion to elect, and could not be raised by a demurrer to the evidence, Ganahl v. United Railway Co., 197 Mo. App. 495; Lass v. Eisleben, 50- Mo. 124; Horstkotte v. Menier, 50 Mo. 160; Johnson v. United Railways, 247 Mo. 357; Pulwider v. Gas, Light & Power Co., 216 Mo. 591. (7) There is no misjoinder of parties defendant or causes of action herein by reason of the Federal Employers’ Liability Act. (a) The petition does not refer to said act, nor do the facts pleaded bring it within said act, and neither of the defendants made any reference to said act, or facts coming -within that act in their answers. Taber v. Mo. Pac. Ry. Co., 186 S. W. (Mo.) 688; Giersch v. Santa P'e, 98 Kan. 452; Atlantic Coast Line v. Mims, 242 U. S. 532, 61 L. Ed. 476; 2 Robert’s Federal Liability of Carriers, p. 1207*. (b) The defendant railway company, the only party defendant having the right to raise the question, tried, the case in the court below as an action based on common law negligence. Mathieson v. Railroad Co., 219 Mo. 542. (c) The court erred in receiving the proof offered by the defendant milling company on this subject, which was' objected to by the plaintiff, and plaintiff is entitled to insist upon this error to uphold his judgment. St. Charles Savings Bank v. Denker, 275 Mo. 620. (8) The instructions given are not inconsistent or in conflict with each other.
   RAGLAND, C.

This suit was instituted in the Circuit Court of Jackson County to recover damages for personal injuries received by the plaintiff, an employee of the defendant, Jacobi M. Dicldnson, Receiver of the Chicago, Rock Island & Pacific Railway Company, while engaged in switching cars in the yards of the defendant, Ismert-Hineke Milling Company, in Kansas City, Kansas.

The defendant Ismert-ILincke Mining Company, hereinafter referred to as the Milling Company, at and prior to the occurrences presently to be narrated, operated a large flour mill and! elevator. Its plant was located in the neighborhood of the terminal and switching yards of the-’ Chicago, Rock Island & Pacific Railway Company, hereinafter called the Railway Company, but its premises were enclosed. On the north side there was a gate, through which the Railway Company constructed a track from its yards south to the mill and elevator, for the purpose of delivering - at the latter point cars loaded with wheat and receiving there cars loaded with the mill products. Connected (or to be connected) with this track there were three railroad tracks along the west side' of the main structure of the mill and elevator. The one next to the mill was known as track 1, the one next west as track 2, and the remaining one as track 3. Over these- three tracks there was a steel shed, open at the north and south ends to permit the passage of oars under and through it. The evidence does not particularize as to the dimensions of this shed or the character of its construction, except that it was supported by posts, all of which, possibly, were iron, with the exception of one. Photographs introduced show that on the east side its roof was attached to the west wall of the main structure, and that as a whole it w’as fashioned somewhat after the manner of a bridge construction. There was a row of posts between tracks 1 and 2 and another between tracks 2 and 3. The posts between 1 and 2 were placed equidistant from the tracks, there being a space of approximately four feet between piost and rail. Thei posts between 2 and 3 were four feet west of the west rail of track 2. The intervening spaces between these latter posts and the east rail of trade 3, between the west rail o'f track 3 and the west wall of the shed, and between- the east rail of track 1 and west wall of the main mill structure, were- not shown, but the photographs indicate that these spaces were not more than sufficient for the clearance of cars moving over tracks 1 and 3. Between tracks 1 and 2 there was the opening of a concrete tunnel, into; which wheat was unloaded from the cars, and from thence conveyed to the elevator. The posts between these latter tracks, in addition to furnishing support for the roof, were used in connection with and constituted a part of the unloading-device. Track 2 was the one generally used for unloading. It extended a short distance south of the shed, where it became, in railroad parlance, a dead end. In switching cars loaded with wheat on track 2, in order to make room for them and properly spot them for unloading, it was often necessary to first proceed on through the shed and couple on to empty cars standing near the south end of the- track for the purpose of bringing them out or pushing them on to the end of the' track. Track 1 was used in part as a holding track and in part for placing cars to be loaded; track 3 at the time of plaintiff’s injury had not-been connected with the lead, but it was constructed over scales for the weighing of cars and loads, and was to be used as an additional unloading track. There were three posts between tracks 2 and 3, six or seven feet apart, and, as already indicated, they were in a line. The south and middle ones were eight-inch iron posts, the northernmost was wood and presented a surface eight inches wide in approaching it from the north along track 2. Thisl latter' post was plainly visible to operators handling cars as soon as-they entered the mill yard, approximately three hundred and fifty feet north of the shed.

The mill structures, including the shed and its supports, had been erected by the- Milling Company and were under its exclusive control and supervision. The tracks had been constructed by the Railway Company, they were used by the defendant receiver in the service of the Milling Company only, but it was incumbent upon him to keep them in repair. Thie crew in charge of the-engine that did the switching for the mills in the- vicinity of the Railway Company’s yards made two trips daily into the yards of the Milling Company to deliver and receive the cars incident to the latter’s industry,

On March 2, 1916, plaintiff was working for the defendant receiver as a switchman. ' He was an experienced brakeman, but at that time was on the extra list, having no regular assignment. On that day h.e was directed to .serve as one of the switching crew in charge of* the mill engine. The crew consisted of a foreman, an engineer, a fireman and two switchmen. One of the switchmen was called the engine-man, it was his duty to be on or near the engine,; the other was called the field-man, and it was his duty to be on or near the car furjherest removed from the engine and to give the necessary signals to the engine-man who communicated them to the engineer. This crew on the day in, question wasi directed to move a string of seven cars loaded with wheat from the railroad yards to the mill yards and place them on the unloading track. All of the members of the crew were familiar with the mill yard, the approaches to the mill and elevator and the imme* díate environs, except plaintiff; he had been in the yards but once before and then nncler such circumstances that it was not incumbent upon him to make, and.he did not make, any observations as to structures near the tracks. As they entered the mill yard with this drag of seven cars the engine was headed to the south, pushing the cars and moving at the rate of from four to six miles an hour. The engine-man was standing on the footboard of the- engine between the engine and the first car; the foreman was at the south end of the south ear, standing with his right foot on the drawbar and his left on the bottom grab-iron on the end of the car on the west side, holding with one hand to the brakestaff and looking in the direction the ear was moving: and the plaintiff, who was field-man, was on the ladder on the west side of the south car near the south end, standing on the bottom grab-iron and holding to one higher up. Plaintiff looked south and saw a car standing beyond the mill shed and near the end of the track, he also saw a post on the west side of the track (track 2-) and thought there-was ample space to clear him while riding on the side of the car, and', having reached that conclusion, gave it no further thought. He then swung partially around the end of. the car, that is, he put his right foot around on the same grab-iron on which the foreman had his foot, and he put his head around also, and asked the foreman for instructions. The foreman gave'him some directions with respect to the car standing near the end of the track, plaintiff then raised his head and probably changed the position of his body somewhat to make further observation of the car ahead, and,- as he did so, a post, which proved’ to be tbie south post of the shed, appeared immediately in front of him. He tried to swing around the end of the car, but he was caught about the hips and rolled between the car and post and severely injured.

Later on the same day the car on which- plaintiff was riding when injured was placed on track 2 with the south end opposite the post that struck plaintiff and certain measurements were made. From the bottom of the car to the roof was 9 feet; the grab-irons were 17 inches apart and set within 3 inches of the end of the car, they projected from the side of the car 3 inches. At a point two feet above the bottom of the car the space between the side of the car and the post was 14 inches, at a point two feet below the roof the space was 10 inches. The spaces between the grab-irons and the post at these points was of course 3 inches less. There was a low place under the west rail of track 2 near the south post that caused tine top of the car to be nearer the post than the bottom when the car was stationary, and which caused cars when in motion to sway toward the post in passing it.

Plaintiff at the time he was struck, in that he was riding on tb.e side of the car, was, in that respect, in a position that was a usual and customary one for the proper discharge of his duties where there were no structures so close to the track as* to. make it hazardous, but members of the crew who were familiar with the mill shed and the locations of the posts never attempted to ride through, they always got off on approaching the shed, walked along and gave the necessary signals. None of them had ever seen a switchman attempt to ride on the side of a car as it was moving past these posts prior to plaintiff’s injury. There was some evidence tending to show a warning in general terms to the employees of the defendant receiver of the dangers arising from the proximity of structures to the tracks in the Railway Company’s terminal yards and in those of the industrial plants served by the defendant receiver,- but plaintiff testified that he had never been warned as to the dangerous proximity of these specific mill posts to the track and that he had no knowledge thereof. In 1911 the plaintiff was in the employ of the Railway Company and, as a condition of his continuance in its service, he was required to sign, and he did sign, a new application for employment which contained the following:

“I Have Had explained to me the dangerous nature of the service in which I am about to engage. I understand that standing in front of, or getting on to, an engine or car coming. toward me is dangerous, and is in violation of the rules, and if done by me will be at my own risk. I understand that great care must be exercised in approaching and passing all bridges and overhead structures, as they will not clear a man standing on top of a high covered car; that it is dangerous to climb up and down the sides of cars, • or to otherwise expose myself, while passing water tank spouts, and house pipes, coal houses or chutes, seed houses, cotton platform, signal posts, through girder bridges, switch stands, mail cranes, roundhouse doors, buildings and other structures dangerously near to the track, as they will not clear a man with safety, and that I am required to look out for them and avoid danger. I understand that the duties of the aforesaid situation expose me to great danger, the risk of which I assume, and agree to use constant and proper care to prevent injury to myself and others.”

The petition contains three specifications of negligence: (1) that the “post was located, maintained and permitted to remain at a place which was so close to the west side of said track on which said cars were being operated, that a switchman riding on the west side of a box car . . . could not clear said post and pass it without being struck;” (2) that defendants “suffered and permitted said track to fall into a state of disrepair in that the west rail was not resting on a firm and solid base or bed at the place of said accident; thereby causing the car upon which plaintiff was riding to sway westward toward said post as it passed said post and said post to strike plaintiff,” and (3) that defendants “failed to warn plaintiff that said post was dangerously near said track, as aforesaid, and failed to warn plaintiff of the dangerous condition of the track contiguous to said post, as aforesaid.”

There was a further general allegation that the defendant receiver negligently failed to provide plaintiff a reasonably safe place in which to do his work, on account of the nearness of the post to the track and the defective condition of the track at that point.

The answer of the defendant receiver was a general denial, coupled with the pleas of contributory negligence and assumption of risk; the answer of the defendant Milling Company, in addition to a general denial and a plea of contributory negligence, pleaded a statute of the State of Kansas relating to the adoption of the common law in that state.

At the close of all the evidence each of the defendants requested the court to direct a verdict in his favor. This the court refused to do. At plaintiff’s instance the court told the jury, by instruction 1, that if they found “that said defendant, receiver, negligently suffered and permitted said track 2 to fall into a state of disrepair, if so, in that the west rail was not resting oh a firm and solid base or bed at a point east of said south iron post, if so, and that by reason thereof the car upon which plaintiff was riding was caused to sway westward toward said post as it passed said post, if so, by reason thereof plaintiff was struck by said post and thrown from his position on said car, and that defendant receiver knew, or by the exercise of ordinary care could have known of said condition of said track, if you find it was in said condition, in time by the exercise of ordinary diligence to have repaired it and thereby avoided injuring plaintiff and negligently failed to do so, then your verdict will be for the plaintiff and against the defendant receiver, provided, however, in all events that you further find that the danger, if you find there was danger, of being struck by said post, was not one- of the risks and hazards of the employment in which plaintiff was engaged, and of which he had knowledge or by the exercise of ordinary care could have had knowledge, and provided you further find that plaintiff at the time he was struck, if you so find, was in the exercise of ordinary care on his part for his own safety.”

And further by instruction number 2; “And if you further find and believe from the evidence that the said south iron post was placed and maintained by the defendant, Ismert-Hincke Milling Company, at a place so close to the west side of said track 2 that' a switchman riding on the west side of a box car being moved on said track 2 and past said post would not clear said post, and that defendant Ismert-Hincke Milling Company knew, or by the exercise of ordinary care could have known that box cars would be moved along said track 2 past said south iron post, and that in so moving cars it would be necessary for a switchman to be on the west side of a box car that might be moved along said track 2 past said south iron post, and that defendant Ismert-Hincke Milling Company knew, or by the exercise of ordinary care could have known, that said post was so close to the west side of said track 2 that a switchman riding on the west side of a box car being moved along-said track 2 and past said south iron post would not clear said post in time by the exercise of ordinary diligence to have removed said post, but failed to do so, and if you also find, that plaintiff was struck by said .post and thrown from his position, if you find he was, by reason of the fact that said south iron post was so close to said track that it would not clear a switchman riding on a car as aforesaid, if you find it was, and that the location of said post was the proximate cause of said' injury, then your verdict will be for the plaintiff and against the defendant Ismert-Hincke Milling Company, provided you further find that at the time plaintiff was struck by said post, if you find he was struck, he was exercising ordinary care for his-own safety.”

» Instructions requested by defendants, given and refused, will be referred to hereafter.

The jury found ag’ainst both defendants, assessing plaintiff’s damages at a substantial sum,. From the judgment rendered in accordance therewith each defendant appealed.

Appellant receiver assigns as error: (1) the failure of the trial court to sustain his demurrer to the evidence and (2) the giving of instruction number 1. The appellant Milling Company assigns as error: (1) the failure of the court to sustain its demurrer to the evidence, and (2) the giving of instruction number 2. As the cause will have to be remanded for. another trial we will consider all questions raised by the respective demurrers, as wrnll as the propriety of giving the instructions referred to.

I. If the court committed error in not directing a verdict for the defendant receiver, it is because (a) the evidence was not sufficient to take the case to the jury on any of the three specifications of negligence set out in the petition, or (b) the evidence as a whole shows that the plaintiff, as a matter of law, was guilty of contributory negligence barring a recovery, or (c) his injury was caused by a risk that he assumed as an incident to his employ-' ment, which would also in effect negative any negligence on the part of this defendant.

The first assignment of negligence is that the defendants negligently located and maintained the post so close to the track (or the track so close to the post) that a switchman riding on the side of a box car could not pass it without being struck. The evidence unquestionably shows such proximity of post and track and but little, if anything, more. Does such showing support the allegation of negligence? In other words, does the mere fact that the post was maintained so close to the track that a switchman riding on the side of a box car could not clear it, constitute negligence? There was no attempt on the part of the plaintiff to show, nor does it otherwise appear, that there was sufficient ground available to the Milling Company for the tracks under the shed to have been constructed further apart and consequently the spaces between the posts and the tracks widened, or that it was practicable or feasible for the Milling Company in the construction and maintenance of the buildings and appliances necessary for the efficient prosecution of its industry to have placed the posts elsewhere or. done away with them entirely, or that the Railway Company could have located its tracks elsewhere and rendered the service required at’ its hands by the Milling Company. Plaintiff’s case in this respect rests exclusively on the notion that the mere operation of cars over a track in such close proximity to' a post, regardless of all other conditions, is negligence. In the practical operation of railroads there are, no doubt, many platforms and other structures, especially those used in connection with industrial plants, that are necessarily so close to the tracks that a brakeman or switch-man can not pass them in safety on the side of a moving car. That such situations are inherently dangerous is beyond controversy, but such dangers are incident to the operation of railroads aird do not arise from negligence. It is only when such structures are unnecessarily maintained in dangerous proximity to the tracks that such maintenance constitutes negligence. [Morris v. Pryor, 272 Mo. 350; Railroad v. Vallowe, 214 Ill. 124; Railroad v. McDade, 191 U. S. 64; Scidmore v. Railroad, 89 Wis. 188.]

Whether in a given case such a dangerous structure is justified by the necessity of the situation is, on the attendant facts, sometimes a question for the court and at others for the jury. In Murphy v. Railroad, 115 Mr. 111-119, it is said that when a structure like a signal post or fence is placed so near to the track by a railroad company that one of its servants, when in the discharge of his duty, is struck and injured without fault on his part, the liability of the company is fixed. Additional proof is not necessary in such case. In Morris v. Pryor, supra, the negligence predicated as the basis of the action was the maintenance .of a curved railroad track in its relation to .the coal bin of an industrial plant. The effect of the curved track was that a car forty-two feet long standing at the coal-bin in a position to be unloaded stood at a distance sufficient to permit a switchman to stand or move between the car and the bin with safety, but when the car was moved its middle portion swung in towards the inside of the curve and slowly moved toward the coal-bin and crushed him. There was nothing to indicate that the railroad company did not do its. best, consistently with successful operation, in the location and construction of the track on the line adopted. We held as a matter of law that no negligence was shown. Between the situation considered in the Murphy case and that in the Morris ease there is a wide field wherein the question of negligent construction and maintenance is for the jury. [Fish v. Railroad, 263 Mo. 106-121; Charlton v. Railroad, 200 Mo. 413-440.] In the case last cited the defendant railroad company was deemed negligent because there was “no legitimate necessity for maintaining a water crane so close to a passing car as to be dangerous to a brakemian in the line of his duty.” In the Pish case, which was also a water crane case, the apparent lack of necessity for maintaining the structure so close to the track as to endanger the railroad operatives was the controlling thought in holding that there was sufficient evidence to take the question of defendant’s negligence to the jury. In the instant case there were not sufficient facts in proof to warrant either the court or the jury in finding that the track was maintained unnecessarily, and hence negligently, close to the post.

II. The second ground of alleged negligence, the only one on which the ease was submitted to the jury so far as the defendant receiver is concerned, was the defective condition of the track near the post- which caused the ears in passing- to sway toward it. The petition in a preceding paragraph alleges that the post'was located, maintained and permitted to remain at a place which was so close to the west side of the track that a switchman riding on the west side of a box car could not pass by it without being-struck. If this were true, and the plaintiff is conclusively bound by the allegations! of his pleading,' he would have been struck by the post even if there had been no low place in' the track that caused passing cars to sway toward it. It would seem, therefore, that the location and maintenance of the post so close to the track was the efficient and proximate cause of Ms injury and the defective condition of the track a mere concomitant that in no wise contributed to it. Respondent contends in his brief and argument here that on account of the condition of the track the post was located and maintained so close to it that a switchman on the side of a car could not pass it without being struck. The petition will not bear any such construction. One phase of the evidence tends to show that the post was not located and maintained so close to the track that a switchman on the side of a car would not clear it, viz.: that the plaintiff, who was leaning partly around the end and hugging the car, did safely pass two pdsts located the same distance from the track as the one that struck Mm. Had the pleader alleged that defendant negligently located and maintained the post so close to the track (or the track so close to the post) that it was dangerous to a switchman riding on the side of a box car, and negligently permitted the track near the post to become and remain so out of repair that cars in passing the post swayed toward it, and further alleged in the alternative that the one negligence, or the other, or the two concurrently, caused plaintiff’s injury, a case would have been made on’the evidence to go to the jury, under proper instructions, on the question of whether the defective track caused, independently or concurrently with the location of the post, plaintiff’s injury. As pleaded' the plaintiff was not entitled to go to the jury on that issue.

Aside from the question of pleading, however, the verdict cannot stand, because based on inconsistent findings of the jury. It found against defendant Milling Company solely on the g'rounds that the post was located and maintained so near the track that a switchman on the side of a box car could not pass it without being-struck, and that the location of the post, independent of any other fact or circumstance, was the proximate cause of the injury, and against the defendant receiver solely on the ground that the injury was caused by the defective condition of the track. They were not required to find that the alleged negligent act of one defendant concurred with that of the other to cause the injury, so that the verdict presents the anomaly of two separa,tA acts of negligence, of two defendants respectively, operating independently of each other, causing the same inury.

III. The third assignment of negligence is that defendants "failed to warn plaintiff thaf said post was dangeronsly near said track." If the maintenance of the post and track in such close proximity was not negligence, as must he assumed in the absence of proof to the contrary, the peril arising therefrom was incident to the plaintiff's employment. Whetlier the plaintiff assumed this risk depends entirely on whether he knew, or by the exercise of ordinary care would have' known, of it. He cannot be held' to have as~ sumed a risk of which he was totally ignorant. If the danger was unknown to plaintiff and would not be ~scertained by him in th~ exercise of ordinary care and. prudence, it became the duty of the defendant receiver to give warning and for a failure to do so he would be liable. [Murphy v. Railroad, supra, l. c. 119. Railroad v. Vallowe, supra; 18 R. C. L. 684, n. 15.] Under such circumstances it was his duty to exercise ordinary care to minimize as far aa possible this peril that was necessarily incident to plaintiff's employment, if such is the fact. [Railroad v. Dailey, 179 Fed. 289, 291.] There is nothing in the evidence to show that such hazards a~ the one in question were' of frequent occurrence, either in the yards in which plaintiff worked, or on railroads generally. On the contrary it tended to show that they were extremely exceptional. It cannot then be said that, as a matter of law, it was one of the “ordinary” risks of the employment of which plaintiff by the exercise of ordinary care was bound to know. He testified that prior to the time he was injured he had never been under the mill shed, that he had never had occasion before that time to observe the relative positions of th© posts and the tracks, and that he had no knowledge whatever in respect thereto. H© further testified that on the day. that he was hurt, as the car, on which he was, approached the shed, he looked south along the track for possible obstructions; that he saw what appeared to him to be one post, and that so far from the track that he could easily clear it while on the side of the car; and that after having made’ these observations and reached the conclusion that there was no danger he gave his attention to the work at hand. The difference, between average people in the power of accurate observation is well known, and it cannot be said as a matter of law that the danger arising from the nearness of the posts to the track was so open and obvious that plaintiff will be presumed to have had knowledge of it. [Charlton v. Railroad, supra.] Although this issue was not submitted, there was ample evidence to take it to the jury.

What we have said in the foregoing paragraph disposes also of the questions raised in connection with the defenses based on assumption of risk and contributory negligence.

IV. As another trial of the case will be necessary it is deemed proper to call attention to some of the instructions given at the instance of the defendant receiver, which are to the effect that the receiver is not responsible for the location and main-,|.e;aaQce 0£ the post which struck plaintiff, and that he was not negligent by reason of its installation and maintenance as disclosed by the evidence. These instructions are misleading, if they do not in fact involve an entire misconception of the law. If the track was negligently maintained dangerously near the post the receiver is liable. The master is bound to exercise ordinary care to make the place where his employees work reasonably safe, and where he contracts to do the work on the premises of another, and retains direction and control of the work, the general rule applies, and he must exercise the same care for the safety of his employees that the law imposes on 1mm on his own premises. [Clark v. Foundry Co., 234 Mo. 436, l. c. 454; Penn. Steel Co. v. Nace, 113 Md. 460.] Defendant receiver was not required by law to operate the switch tracks in the mill yard under conditions dangerous to his employees, if it was practicable and feasible for such dangerous conditions to be removed. If he had no such control that he could have removed such conditions himself^ he could have required the Milling Company to have done so, or refused, until.such change, to do its switching. [Devine v. Delano, 272 Ill. 166.]

V. If the Milling Company negligently maintained the post in question dangerously near the railroad track, it is also liable to plaintiff for the injury inflicted upon him thereby. It is fundamental law that the owner or occupant of land or a building who clirectly or by implication invites, or induces others to go thereon or therein owes to such persons a duty to have his premises in a reasonably safe condition and to give warning of latent or.concealed perils. When it arranged with the defendant receiver to do the switching in and about its mill and elevator it knew and was bound to anticipate that it was usual and customary for brakemen and switchmen in switching cars to be upon the ladders on the sides of cars that were being, moved, and hence it was its duty to not unnecessarily maintain posts or other structures in dangerous proximity to the tracks. [Clark v. Railroad, 234 Mo. 396; Ryan v. Transit Co., 190 Mo. 621.] If it was necessary to have maintained the post in quesfcion so close to the track that a person could not pass it on the side of a oar -without being struck, and the danger therefrom was not so open and obvious to a switch-man while in the discharge of his duty in the usual and customary way that by the exercise of ordinary care he would have discovered it, as the evidence tends to show, then such danger was a latent or concealed one within the meaning.of the rule, and it was the duty of the Milling Company to have given the plaintiff warning. [Glaser v. Rothschild, 221 Mo. 180.] As pointed out in paragraph 1 of this opinion, the evidence was not sufficient, to show the negligent maintenance of the post in proximity to the track, and for that reason the giving of instruction 2 was error, but there was ample evidence to go to the jury on the negligent failure to warn and hence the demurrer of the defendant Milling Company, on the evidence, was well ruled.

VI. The Milling Company introduced over the objection of the plaintiff evidence tending to show that the cars of wheat which the latter was engaged in switching at the time of his injury were- interstate shipments, and. that by reason thereof plaintiff was) at the time employed in interstate commerce. On this show-i^g appellant Milling Company insists that .its liability, if any, arises under the common law,, while that of the defendant receiver is governed solely by the Federal Employers’ Liability Act, and-hence that there are misjoinders, both of defendants and of causes of action. Such misjoinders were asserted in the court below for the first time at the conclusion of all the evidence, and then as further grounds of the demurrer to the evidence then offered. Nothing appears in the petition from which- an inference can be drawn that the plaintiff was employed at the time of his injury in interstate commerce; nothing in the respective answers even suggests it. The petition charges both defendants with a common-law liability. If the defendant receiver wished to waive his immunity therefrom, it is not perceived what possible concern it can be to the defendant Milling Company. If, however, the Milling Company had a right to raise the question of misjoinders on the ground assigned, it waived it by pleading over. We rule the point against appellant Milling Company. [Taber v. Railroad, 186 S. W. 688; Railroad v. Mims, 242 U. S. 532; Granahl v. United Railways Co., 197 Mo. App. 495; Johnson v. Railways Co., 247 Mo. 326.]

VII. Appellant receiver makes the point, apparently, for the first time in this court, that his liability, if any, is governed solely by the Employers’ Liability Act. Not raised the question in the court below bv a pleading,of some sort, he is precluded from raising- it now. [Taber v. Railroad, supra.]

For the errors noted the judgment is reversed and the cause remanded to be tried in accordance with the views herein expressed.

Small and Brown, CC., concur.

PER CURIAM: — The foregoing opinion of Rag-land, C., is adopted as the opinion of the court.

All of the judges concur.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    ESTHER BANKS v. KANSAS CITY RAILWAYS COMPANY, Appellant.
    Division One,
    December 20, 1919.
    1. NEGLIGENCE: Petition: Interpreted by Instruction: Carrier and Passenger: Degree of Care. Where the petition is susceptible of being interpreted as undertaking to state a cause of action by a passenger against a carrier, and plaintiff’s instruction so interprets it, it will be so considered in adjudging any alleged errors committed. Where the relation of passenger and carrier exists, the carrier’s duty is to exercise the highest degree of care. Where no such relation exists, ordinary care is required.
    2. -: Passenger and Carrier: At Crossing: Misleading Instruction. An instruction which is applicable to ordinary crossing cases and which states no facts establishing a relationship of carrier and passenger, but which nevertheless fixes the degree of the carrier’s duty at such crossing as “the highest practicable degree of care,’is erroneous; and if in its main part it states the carrier’s duty at a crossing, and then states the relationship of passenger and carrier in such a way that the jury is authorized to return a verdict for plaintiff, although they might find she was not a passenger, it is misleading.
    3. -: Passenger and Carrier: How Relationship Is Established at Crossing. The intent of the person desiring to become a passenger on a street railway car, is not sufficient to create the relationship of carrier .and passenger. It can only be created by contract, express or implied, and there must be some act of the company indicating an acceptance of the person as a passenger. So that where defendant maintained two stations for its elevated railway, one on the north side of the rails, on which west-bound cars were run, and one on the south side of the rails, on which east-bound cars were operated, and between the two station-platforms planks were laid over which the public had long customarily and continuously crossed from one station to the other, and plaintiff went to the north station, with the intention of taking an east-bound car, went up the stairway, and seeing an east-bound car approaching, attempted quickly to cross over to the south station for the purpose of boarding it, and was struck by a west-bound car on the track next to the north station, the relation of passenger and carrier did not exist, for there was no contract, express or implied, for passage on the car which struck her, no' offer to become a passenger on that car. and no act indicating an acceptance of her as a passenger on said car, and she had not reached the south station and was therefore in no position to be accepted as a passenger on the east-bound car.
    Appeal from Jackson Circuit Court. — Hon. Darnel E. Bird, Judge.
    Reversed and remanded.

      R. J. Higgins and Chas. N. Sadler for appellant.
    (1) The court erred in giving instruction number 1 asked by plaintiff. It is erroneous in that it requires the motorman to use the “highest practicable degree of care” both to discover plaintiff, and to stop the car. It attempts to submit' the case to the jury on the “last chance” or humanitarian theory only, and in such cases “ordinary care” is the only care required. Thompson on Negligence, 449; Matz v. Railroad, 217 Mr. 299; Nivert v. Railroad, 232 Mo. 637; Hall v. Railroad, 219 Mo. 591; Semple v. Railroad, 152 Mo. App. 25; Harlan v. Railroad, 65 Mo. 25-26 ; Jones y. Railroad, 46- So. 61-64, 121 La. 39. (2) Plaintiff was not a passenger and therefore not entitled to the “highest degree of care” in any event. Stager v. Railroad, 119 Pa. St. 70; Schepers v. Union Depot Co., 126 Mo. 72; Schoefer v. St. L. & Sub. Ry. Co., 128 Mo, 64; 1 Nellis on Streát Railways (2 Ed.), secs. 249; 258; Southern Ry. Co. v. Smith, 86 Fed. 292.

      Ed. E. Yates, Claude T. Gobel and Jos. 8. Brooks for respondent.
    (1) The petition stated a cause of action. Clark v. Railroad, 242 Mo. 593; Haley v. Railroad, 197 Mo. 23; Wacher v. Transit Co., 108 Mo. App. 665; White v. Railroad, 202 Mo. 560'. (2) The demurrer to the evidence at the close of the case was properly overruled. The defendant in demurring to the evidence admitted as true every fact which the testimony 'of the plaintiff tended to prove and every inference which could be reasonably drawn therefrom. Hach v. Railroad Cb., 208 Mo. 601; Kinlen v. Railroad, 216 Mo. 155. (3) Plaintiff’s instruction was not erroneous. It follows the allegations of the petition, and was based on the petition and evidence in the case. The instruction is neither involved nor misleading, '(a) Under the pleadings and evidence in the case it was not error to instruct the jury that defendant was required to exercise “the highest degree of care.” The plaintiff was a passenger. She had entered the defendant’s station. Passengers were accustomed to cross between the stations, and had been for more than five years without objection and with the consent and'at the invitation of defendant. She was such within the meaning of the law and it was the duty of the carrier to exercise the highest degree of care for her safety. The petition describes her as a passenger and the instruction submits the question to the jury. Wood v. Railroad, 181 Mo. 433; Reardon v. Railroad, 215 Mo. 132; Fillinghaar v. Railroad, 102 Mo. App. 581; Albin v. Railroad Co., 10'3 Mo. App. 316; Cobb v. Railroad, 149 Mo. 150; Phillips v. Southern Ry. Co., 124 N. C. 123, 45 L. R. A. 163.; Waller v. Railroad, 59 Mo. App. 4-29; Grimes v. Penn. Co., 36 Fed. 72; 1 Fetter on Carriers, sec. 228; Young v. Railroad Co., 41 L. R. A. 193; Jordan v. Railroad Co., 165' Mass. 346; Dodge v. Boston & B. S. S. Co., 148 Mass. 207; Warren v. Fitchberg R. C'o., 8 Allen, 227; Allendar v. Railroad Co., 37 Iowa, 264, 270-; Lakeshore Co. v. Foster, 104 Ind. 293; Moore v. Des Moines R. Co., 619' Iowa, 491; 2 Wood on Railways (Ed. 1894), sec. 310; New York Central R. Co. v. Lockwood, 84 U. S. 357; Hutchinson on Carriers (2 Ed.), 521a; Phila. R. Co. v. Derby, 55' U. S'. 14; The New World v. King, 57 U. S. (16 How.) 469; San Antonio R. Co. v. Murrey, 33 Tex! Civ. App. 626; M. K. & T. Railroad v. Harrison, 120' S. W.. (Tex.) 254; Bracket v. Railroad, 70 .S. E.. 1026.
   GRAVES, J.

Action for personal injuries. Judgment for plaintiff in the sum of $8,000', and defendant has appealed. The negligence charged in the petition is thus stated:

“Comes now plaintiff, leave of court having first been obtained, and files this her first amended petition herein, and for her cause of action against defendant states that defendant, The Kansas City Railways Company, is and was at all the times herein mentioned a corporation duly organized and existing according to law, and as such owned, operated, managed, or controlled a certain system of street railways and elevated railway in Kansas City, Jackson County, Missouri, and more particularly a certain line running over and upon its elevated structure over West 9th Street, and more particularly over West 9th Street where the same intersects with Mulberry Street, and in connection therewith owned, operated, managed or controlled elevated stations at said Mulberry Street; one on the south and one on the north of said tracks.
“That said stations and platforms in front of them running up to or near said tracks and over the north track they operated west-bound cars and over the south track they operated east-bound cars; that said stations were used in connection -with said tracks at said point for the accommodation of defendant’s passengers; that during all the times heixfin mentioned there were planks between the rails of said tracks and the platforms of said stations running about the length of said station platforms, and that defendant was at all the tipie herein mentioned a common carrier of passengers for hire; that the spaces over the tracks and between said platforms at said point were, at’all the times herein mentioned and for several years prior thereto, continuously used as a crossing for the public, and that it was and had been the custom of the public to continuously use said point as a crossing at all the times herein mentioned and for several years prior thereto with defendant’s acquiescence and without its objection, and defendant’s servants and agents in charge of the car in question could reasonably have expected to find persons on said tracks at that place on account of the frequent and continuous use thereof by footmen.
“That on or about the 7th day of Mlarch, 1916, plaintiff went up the steps of one of said stations for the purpose of transportation over one of defendant’s cars running over and upon said elevated structiire at said point, intending to pay the conductor in charge of said car the usual and customary fare exacted by defendants for transportation thereon; and that while she was crossing over said planks and rails from! one station to the other at said point and while a passenger of defendant’s, its agents, servants, or employees in charge of one of defendant’s west-bound cars being operated over said elevated structure, negligently,caused, suffered or permitted said car to run into and against plaintiff, knocking her to the rails of the track, or the boards between said tracks, and injuring her; when they knew or by the exercise of the highest degree of care could have known that plaintiff was upon, close to, approaching, or dangerously near said west-bound track and in a position of peril, in time, by tire exercise of the highest degree of care, to have stopped said car; or slackened the speed thereof; or to have warned plaintiff of the approach thereof and avoided running into and against plaintiff and injuring her, but negligently failed so to do.”

By her prayer plaintiff asked damages in the sum of $25,000, and by the concurrence of nine jurors she got a verdict for $8,000', upon which the judgment, supra, was entered. The answer was a general denial.

The assignments of error here are some eight in number, and coVer all the questions we desire to discuss in the disposition of the case.

For the plaintiff the court gave but two instructions (1) a general instruction, intended to cover the case pleaded, and (2) an instruction on the measure of damages. The general instruction reads:

“The court instructs the jury that if you find and believe from the evidence that on the 7th day of March, 3936, the defendant OAvned the car, elevated structure, depots and tracks between said depots in question, and were engaged in the carriage of passengers for hire and that said depots were maintained for the use of passengers, in Kansas City, Jackson County, Missouri, and if you further find that defendant’s servants were in charge of the car in question, and if you further find and believe from the evidence that on said date and for several years prior thereto at the place where plaintiff claims to have been struck many people were at that time and for several years prior thereto been accustomed to use said tracks and space between said depots as a crossing to and from one of said depots to .the other, and that said tracks and space between • said depots had been used in this way continuously and habitually for many years with the defendant’s acquiescence and without its objection, and that defendant’s servants and agents in charge 'of the car in question could reasonably have expected to find persons on or dangerously near said tracks at the place in question on account of tlie frequent, continuous and habitual use thereof by footmen, and if you further find from the evidence that on said date the car in question was being run in a westerly direction and approaching said stations, then it was the duty of .defendant’s motorman operating .said car, if he was, to exercise the highest practicable degree of care that would be exercised by careful, experienced and prudent car motormen under the same or similar circumstances to keep a vigilant watch-out ahead for persons on said track or approaching dangerously near said track, and if a person or persons were seen or by the exercise of such high degree of care could have been seen by him to be in danger of being struck by said car, to use all reasonable care, consistent with the safety of himself, the car mentioned in the evidence and fits passengers, to avoid colliding with them. If, therefore, you find and believe from the evidence that plaintiff was on said date approaching dangerously near said track upon which said car was running and in a position o.f peril and in danger of being run into by said car, and crossing from the north to the south depot of the depots in question for the purpose and intention of taking passage on one of defendant’s cars at said south depot, and that the motorman operating said car, if he was, saw or by the exercise of such high degree of care could have seen plaintiff approaching dangerously near said track in such position of peril, if any, in reasonable time by the exercise of such high degree of care to have stopped said car and have avoided running said car into or against plaintiff (if you find she was run into or against by said car), but that he negligently failed so to do, and if you further find and believe from the evidence that on account of such negligence of said miotorman, if any, plaintiff was run into and against by said car at said time and injured, then your verdict should he for the plaintiff even though you may find and believe from the evidence that plaintiff negligently placed herself in a dangerous situation, if such situation was one of danger. ’ ’

The petition pleads that there were two stations at the point where West Ninth Street crosses Mulberry Street. The evidence shows the same.

Defendant had and maintained an over-head double-track railway at this point.' On the north side of tho double-track railway was a depot and its platform, and on the south side of these tracks was a similar depot and its platform. These depots were and are opposite each other. Between the two depots and their platforms are planks between all of the four rails of said tracks, so that persons could walk across from one depot to the other. However, the defendant maintained two separate stairways to these depots. One stairway was on the south side of Ninth Street and went up to the depot on that side. The other was on the north side of Ninth Street, and went up to the depot on that side. So that it appears that persons desiring to board a car at the south depot could go up to that depot, and would not have to cross the tracks above the street, nor the street below, if such persons chanced to be on the south side of the street. So also as to persons desiring to take a car from the north depot. Persons desiring to go east would have to take a car at the south depot, and persons desiring to go west would have to take a car at the north depot. In other words, west-bound cars ran upon the north tracks, and east-bound cars ran upon the south tracks.

Plaintiff worked three blocks north of this elevated structure, and desiring to go home about five o’clock in the afternoon, went up the north stairway to the north depot. She desired to go east, and attempted to cross over from the north depot to the south depot to take an east-bound car. She says that after she got to this north station she looked east and saw an approaching westbound car,, about 150 feet away, running 9 or 10 miles an hour,- that she then looked west, and saw an eastbound car (which she desired to take) a block or so away. She kept walking toward the south station, without further observation, until she was struck by the west-bound car, from which collision she suffered the injuries complained of in her petition. She also says, as an excuse for not crossing the street below, and going up to the south depot that it was crowded with automobiles and other vehicles. She, however, had been in the habit of crossing above the street, and others for a longtime had continuously done the same thing.

In other words, there was evidence of a user of this crossing between the two depots and their platforms. Also that the hoards between the rails extended along the sarnie distances as the platforms of the depot. Other details will be left to the opinion.

I. To my mind the petition in this case undertakes to state a cause of action by a passenger against a carrier. If you take from said petition this language, “that the space over the tracks and between said platform at said point, was at all the times , . -, herein mentioned and tor several years prior thereto, continuously used as a crossing by the public and that it -was and had been the custom of the public to continuously use said point as a crossing at all the times herein mentioned and for several years prior thereto with defendant’s acquiescence and without its objection and defendant’s servants and agents in charg’e of _the car in question could reasonably have expected to find persons on said tracks at that place on account of the frequent and continuous use thereof by footmen,” that which is left clearly attempts to state such an action. In what is left we have (1) a.n allegation that the defendant is a carrier for hire, (2) that it maintained depots, (3) that plaintiff was going to the south depot with the intent of becoming a passenger, and intended to pay the usual fare, and (4) that by reasons thereof the defendant owed to her the highest degree of care.

The clause which we have elited from the'petition, supra, is misleading, but we think it was put in as ex^ planatory of her actual position at the time she claimed to be a passenger. In other words, that she, a pássenger, was there, because the public used this particular place as a crossing. But we need not speculate as to the meaning of the petition, because, the plaintiff has placed her own construction thereon, by her Instruction No. 1. In this instruction the highest degree of care is made the measure of defendant’s duty. Such degree of care is only demanded in cases of passengers and carriers. So that we conclude, (1) that by elision, or striking out surplusage, we have a petition based upon the .relation of passenger and carrier, and (2) that plaintiff has so construed her petition. So that we shall judge the errors, if any, in the trial of this cause upon this theory. In this view we need not discuss the alleged defects of the petition as one undertaking to state a cause of action under the humanitarian rule, wherein the measure of defendant’s duty is ordinary care, as distinguished from the high degree of care demanded of a carrier toward its passenger.

II. On the theory that the petition is one by a passenger against a carrier, instruction one for the plaintiff is very misleading. This instruction we have' set out in full. It follows the vice of the petition. To see the trouble with this instruction, a division there- ^ ma(je> jn £he first place take all of this instruction, down to the words “if therefore” at the beginning of the latter third thereof, and you have no allegation whatever of the relationship of carrier and passenger. In this first two-thirds of the instruction you have the things usually found in an instruction in. the ordinary crossing cases, save and except that the measure of care is fixed as “the highest practicable degree of care.” Under the facts recited in this portion of the instruction (absent a statement of the alleged relationship of carrier and passenger, as here) the degree of care fixed is erroneous. The mere statement in this portion of the instruction that defendant was a carrier of passengers for hire, does not suffice. It is just such carriers that injure persons at crossings, but the highest degree of care is not the measure of their duty in such cases.

It is true that in the latter third of the instruction the relationship of passenger and carrier is covered, yet the jury might easily be misled in concluding that the plaintiff was entitled to the highest degree of care (on the facts stated in the first part of the instruction), although they thought she was not a passenger under the latter third of the instruction. No average jury can reconcile the conflicting portions of this instruction. It is misleading under the theory adopted by plaintiff as her theory of her petition. For this misleading instruction the judgment will at least have to be reversed and cause remanded.

III. Plaintiff, in our judgment, was not a passenger, and her suit in that capacity must fail. Throughout the petition she charges the maintenance of two stations near the point of injury. It also charges that to each of those separate stations was a platform which was in the space between the sta- ,. -, ,, , -, r, . -n ,. tion and- the track, or first rail o± the track next to the particular station. The petition therefore clearly charges that there were two stations, with their respective platforms. Not only so, but in the course of the trial it was admitted that there were two stations, and proved that there were two stations. When plaintiff went to the north station she had no intent of taking a car from that station, because such cars ran west, and she desired to go east. At that station she gave no indication to the defendant’s agents that she desired to assume the relationship of passenger and carrier, because she had no intention of boarding a car at that point. What she did do, was to pass rapidly across the space between the two depot platforms. We should say that she attempted to pass rapidly across the space, because she was struck by a west-bound car, just as she left the platform and got into the north track. She was not; a passenger as to this car, because she had no intention of taking it, and had in no way indicated her purpose to become a passenger thereon, or on any other car running upon the north tracks. She says her purpose was to cross over and take an east-bound car, but she had not reached either that station or its platform; nor had she in any way indicated to defendant’s agents her purpose to board such a car.

The record in this case is perfectly blank as to any facts which tend to prove the relationship of passenger and carrier, save and except the evidence of the plaintiff as to her intent to become a passenger. She herself says there was not even an intent to become a passenger on the west bound car. The only thing in the record is that she says that she was going across toward the south station house with the intent of becoming a passenger from that station. The evidence is silent as to whether the cars stopped regularly at these station houses (called by one witness shelter houses), or only stopped when there were passengers in sight, or upon signal. And whilst there is evidence that many people crossed over this space between the two depots, it is not made clear as to what portion of them were even intending passengers. Being pressed the plaintiff said: “Why, the general public used it.” A newspaper vendor, who was a witness, spoke of his use of the space in plying his business. But this is not very material. It is clear that up to the injury the plaintiff had done nothing to indicate to the defendant or its agents her purpose of boarding a car at the south depot or station.

The law is well settled in this State, and by this court, and we need not go further for authorities. The act or intent of the person -desiring to become a passenger is not sufficient to create the relation. There must be some act of the company indicating an acceptance of the person as a passenger. The relationship of passenger and carrier can only be created by contract, either express or implied. [O’Donnell v. Railroad, 197 Mo. l. c. 117.]

Macfarlane, J., in the case of Schepers v. Union Depot Ry. Co., 126 Mo. l. c. 672, said:

1 ‘ It must be conceded that there is difficulty in many cases in determining when the relationship of carrier and passenger begins, and what acts of the parties are sufficient to create it.' The difficulty is greater in case the carrier operates a street railway, having no regular stations or station agents authorized to make contracts. In respect to such carriers passage must be taken hastily, on the streets, at points prescribed by the rules of the carrier or by the police regulations of the municipality. 'Yet, one test applies alike to all, and that is, the relation can only be created by contract between the parties, express or implied. There must always be an offer and request to be carried on one side, and an acceptance on the other. [2 Shearm. and Redf. on Negligence (4 Ed.), sec. 488; Patterson’s Railway Accident Law, secs. 210, 214; 2 Am. & Eng. Eincy. Law, p. 742.]
“A passenger has been defined to be ‘a person whom a railway, in the performance of its duty as a common carrier, has contracted to carry from one place to another place for a valuable consideration, and whom the railway, in the course of the performance of that contract, has received at its station or in> its car, or under its care.’ [Patterson’s Railway Accident Law, sec. 210.] In our State probably the words ‘for a valuable consideration’ do not govern. [Buck v. Railroad, 108 Mo. 179, and cases cited.] But the case at bar does not require us to go into that phase of the law.
“T+ is time that an acceptance must, in many cases, be implied. When a street car has stopped at a usual place for receiving passengers an acceptance of all persons who are waiting to take passage must be implied, as it may be impossible for each to be separately recognized. So ‘when a person intends to take passage on a street car and lias hailed it for that purpose, and it has been stopped to enable him to enter, he is to be regarded as a passenger while he is in the act of carefully and prudently attempting to- step- upon the platform.’ [Booth on Street Railway Law, sec. 326; Smith v. Railroad, 32 Minn. 2.]
“It is well said by Smith, P. J., of the Kansas City Court of Appeals, in speaking- of the duty of a carrier by street railways: ‘It is bound to see every passenger who attempts to get upon its cars while they are standing still, but they are not so bound after the car is in motion. The safety of the train and those who are already on board requires that the gripman should be on the lookout ahead, while the conductor should be. occupied with collecting fares, receiving requests to stop-, and the like, rather than looking out for the safety of those who may attempt to get on board after the train has started.’ [Meriwether v. Railroad, 45 Mo. App. 534.]
“The ordinances of the city and the rules of the defendant fixed the stopping places for receiving passengers at the far cross-walk of the streets. At these points those in charge of the cars are required to look, out for persons desiring to take passage. If no one presents himself in time, and makes known a desire to take passage, the cars are not required to be stopped, and the employees in charge may give attention to their other duties. The cars would not have to be stopped for one - desiring to take passage if he failed to make his wishes known in time to enable them to stop- at the proper place.
“It follows from what has been .said that plaintiff did not become a passenger by a mere attempt on his part to board the car while in motion as is declared by this instruction. There must have been some act on the part of the carrier indicating an acceptance. [Stager v. Railroad, 119 Pa. St. í/0.] ”

In Schaefer v. St. L. & Suburban Ry. Co., 128 Mo. l. c. 70, Scheper’s case is approved. Both of these cases, are street railway cases, and not steam railway cases. In Schaefer’s case, supra, at page 70, it is said:

“By instruction number 1 the plaintiff would have ■the court declare that if defendant got on the step of .the car for the purpose of getting upon the platform as a passeng'er, with the intention of paying his fare- when called upon, those acts made Mm a passenger, without regard to the fact as t© how, when and where he got upon the step, of defendant’s car. This instruction wholly ignores the fact as to whether or not defendant ever agreed to accept plaintiff as a passenger, or did any act indicating an intention to accept him as such. ‘Without a contract for carriage on one part shown, and an acceptance on part of the other, either expressed or implied, the relation of passenger and carrier can never exist. ■
“In the case of Sehepers v. Railroad, 126 Mo. 665, the court by Macfarlane, J., makes use of the following language, which we tMnk decisive of the question raised on this instruction: ‘It follows from what has been said that plaintiff did not become a passenger by a mere attempt on his part to board the car while in motion, as is declared by this instruction. There must have been some act on the part of the carrier indicating an acceptance. ’ The offer must be made to become a passenger on one part, and an acceptance, on the part of the company, of the passenger on the other, before the relation of carrier and passenger can be said to exist."

The evidence shows that each- of these station houses had a platform, (witnesses differing as to width) from which passengers or intending passengers boarded the cat. These platforms extended from the station house.to the first rail of the tracks. One witness states that his place was at the west end of the platform to the north station to collect the fares of passengers; boarding west-bound cars, and that there were no passengers on his platform at the time of plaintiff’s injury.

The point we mate is, that no act of this woman had placed her in position to be accepted as a passenger. She had no intention of taking .the west-bound car, and had left that station, and its platform. She had not reached the south station or its platform, and was in no position to be accepted as a passenger from that station or its platform. We concede the rule that when one is in the station or upon the platform, intending to take passage, and the street car comes up and stops at that station.or its platform, then it may be said that there has been an acceptance of the passenger, and an implied! contract of carriage, thus creating the relationship' of passenger and carrier. But the plaintiffs’ evidence does not -bring her within his rule. The rulings in both ¡áchepers and Schaefer cases, supra, are approved in Barth v. Railway Co., 142 Mo. l. c. 551., The, Barth accident from the record facts must have occurred at the same place as the present accident.

The Schepers and Schaefer oases, supra, are also cited with approval, in the following: Reynolds v. Transit Co., 189 Mo. l. c, 418; Devoy v. Transit Co., 192 Mo. l. c. 210; Nolan v. Railroad, 250 Mo. l. c. 617.

From all these cases may be deduced the principle, that it requires some act of the carrier to create the contract of carriage. If by stopping its oars the carrier induces one to accept its invitation, the person so accepting is a passenger. Hence, we have the cases where a person is injured in attempting to board a car, which has stopped, but starts’ before the intending passenger gets fully aboard. On the other hand, if the person indicates his purpose of taking passage upon a car, by being on a platform of a regular stopping place, or by signaling the operator of a car, and the operator by any act indicates his acceptance of the proposed passenger, the contract of carriage is complete, and the person thereupon becomes a passenger. ¡But the vital question is that there must be something done by the carrier to indicate its acceptance of the person as a passenger. A person may: signal a oar to stop' for him, bnt if the car does not stop, such person is not a passenger. So, too a car may stop-, and a person may fully intend to hoard it, yet if he waits until the car starts, and the avenues of entrance closed, before he accepts the invitation of the carrier, he is not a passenger. In such case the invitation has been withdrawn, by the act of the carrier. But we emphasize that there must be something done by the carrier, before you can have a contract of carriage, either express or implied. The intent of the person alone does not make the contract. Nor do the acts of the person alone make a contract. There must be something done by the carrier as well as the intending passenger. In this case there is no evidence tending to show that plaintiff had been accepted as a passenger by the defendant.

Its depots upon either side of its tracks were its •stopping places, but with a street railway company it takes more than the mere maintenance: of a stopping-place. At the very least the person must be at the stopping place before it can be urged that the relationship of carrier and passenger could begin. The situation in this case is not materially different from a stopping place at the intersection of two streets. In case the carrier has a double track at the intersection of two streets, the persons desiring to take east-hound cars might be required to get on at. the southwest comer of the intersection, and those: going west at the northeast corner of the intersection. Or the two stopping places might be opposite each other, as here-, but in any event, the railway tracks would be between the two stopping-places. But this is only by way of illustration. The point is (in the instant ease-) that the plaintiff had never reached the stopping place from- which she intended to board the car. Until she did, she had' not by act offered herself as a passenger, and. of course had not been accepted as such. The relationship- of passenger and carrier did not exist at the time of the accident. So that the evidence totally fails to sustain the petition of the plaintiff. The demurrer thereto should have been sustained. [Garrett v. Transit Co., 219 Mo. l. c. 95-96.]

Whether she can amend her petition and state a different relationship, we need not discuss. The present judgment must he reversed. As to whether a remanding of the cause will avail plaintiff, we d'o not care to forecast an opinion. We will, however, remand the cause.

Let the judgment be reversed and the cause remanded.

All concur.