text:
    McGRATH v. ST. LOUIS TRANSIT COMPANY, Appellant.
    Division One,
    June 19, 1906.
    1. NEGLIGENCE: Insufficient Evidence: Surrounding Facts: Res Ipsa Loquitur: Double Inference. Where all the facts connected with the accident fail to point to the negligence of the defendant as the proximate cause of the injury, but show a state of affairs from which an inference could as reasonably be drawn that the accident was due to a cause or causes other than the negligent act of defendant, the plaintiff cannot rely upon mere proof of the surrounding facts and circumstances, nor is defendant called upon to explain the cause of the accident or purge itself of the inferential negligence. The doctrine of res ipsa loquitur does not apply in such case.
    2. -: Specific Allegation: Proof: Res Ipsa Loquitur. Where specific acts of negligence are charged and not general negligence, the plaintiff,-in order to recover, must prove the specific negligence charged. . So that, although the case may be one to which, under proper pleading, the doctrine of res• ipsa loquitur might apply, that doctrine cannot be invoked where plaintiff has by his petition based his right to recover on specific acts of negligence.
    3. -: -: -: Stopping Car. Plaintiff’s husband was repairing defendant’s street railway track at night and she charges that defendant carelessly and negligently caused its car to run upon her husband “without giving any warning by bell or otherwise of the approach of said car, and without using any care to control or stop said car.” There is nothing in the evidence to show that the motorman made or did not make any effort to stop the car, and the witnesses were not questioned in regard to the matter, nor was the speed of the car shown, nor the distance within which it could have been stopped, nor whether the bell or gong was being sounded or not. The witnesses did, however,' testify that they did not hear anything. Eeld,, that simply not hearing anything was not negative proof that the bell was not rung, and the court erred in not sustaining defendant’s demurrer to the evidence.
    4. -: Contributory: Failure to use eyes and Ears. It is the duty of an employee working on a street railway track to use his sense of sight and sense of hearing to discover the approach of a car. He has no right to become so engrossed in his work as to become negligent of his own safety. So that where a track-repairer, at work near midnight on the track, familiar with his work, knowing the schedule time of cars and the danger of his position, was standing facing the approaching car, which was lighted as cars usually are, and by the exercise of care could have known of its approach as others did who warned him, but careless of his danger or so absorbed in his work that he became oblivious thereto, and remained at his post trying to extricate a fast claw-bar until he was struck by the car, he was guilty of such contributory negligence as barred his recovery.
    Appeal from St. Louis City Circuit Court. — Hon. Warwick Hough, Judge.
    Reversed.

      Boyle & Priest, George W. Easley and Edward T. WIiller for appellant.
    The demurrer to the evidence should have been sustained, (a) Plaintiff’s husband was guilty of negligence defeating a recovery. Davies v. Railroad, 159 Mo. 1; Evans v. Railroad, 178 Mo. 504; Wheat v. St. Louis, 179 Mo. 572; Clancy v. Railroad, 192 Mo. 615. (b) Defendant was not negligent in the manner charged, and if it was negléct in any respect, such negligence was not a proximate cause of the injury. Hook v. Railroad, 162 Mo. 569; Murray v. Railroad, 176 Mo. 189; Haller v. St. Louis, 176 Mo. 606; Haley v. Railroad; 179 Mo. 30 ; Roenfeldt v. Railroad, 180 Mo. 554; Harper v. Railroad, 187 Mo. 575.

      A. B. Taylor for' respondent.'
    When men are at work on a track repairing a track, and especially in the darkness of the night, when it is absolutely necessary that they should give their attention to the work, when the operators of cars know this, as the evidence without dispute in this case shows the motorman and conductor knew, to run the car upon the men whilst so at work and whilst in plain view of the motorman, the lights over them visible for a mile, is a little less, if less, than criminal negligence. To say that a motorman, under these conditions, could continue to run his car down .and over them, trusting that they would escape without any warning or care to meet the situation is, we submit, something in advance of the most extreme holding of a court on this question. The workmen are human, subject to the ordinary attributes of human nature, one of which is that the mind finds it difficult or impossible to concentrate itself upon more than one thing at a time; when the mind is absorbed in an object of its attention, for the time being it can conceive no other impression. Courts recognize this order of human nature, and consider it in determining human action. They do not declare an act negligent as a matter of law because a person did'not do what he might have done, but only when he does or omits to do what a person of ordinary prudence would have done or omitted to do under like circumstances. Kane v. Raiload, 128 U. S. 91; Graney v. City, 141 Mo. 184; Loewer v. Sedalia, 77 Mo. 446; Maus v. Springfield, 101 Mo. 618; Flynn v. Neosho, 114 Mo. 572; Sullivan v. Railroad, 97 Mo. 119 ; Guenther v. Railroad, 95 Mo. 299, 108 Mo. 22; Bluedorn v. Railroad, 121 Mo. 267; Rapp v. Railroad, 190' Mo. 160; Morgan v. Railroad,159 Mo. 274; Seullin v. Railroad, 184 Mo. 707; Reardon v. Railroad, 114 Mo. 398. The humané doctrine, as defined by the courts, is this, if a person sees or has reason to expect a person through his. own negligence is in danger from anything he is doing — after he becomes aware of such peril — he must, nevertheless, exercise ordinary care to avert injury to such person, arid failing in this and causing injury to such person he is liable therefor. The rule is clearly announced by the Supreme Court of the United States in Inland Seaboard Co. v. Tolson, 139 U. S. 558, and Railroad v. Ives, 144 U. S. 429. This doctrine has been savagely contested in this Stale, but is upheld by a consistent line of decisions since an early period. Kelly v. Railroad, 75 Mo. 140; Kelly v. Railroad, 95 Mo. 284; Guenther v. Railroad, 95 295; Kellny v. Railroad, 101 Mo. 75; Reardon v. Railroad, 114 Mo. 406; Schlereth v. Railroad, 115 Mo. 101; Chamberlain v. Railroad, 133 Mo. 599; Morgan v. Railroad, 159 Mo. 275; Scullin v. Railroad, 184 Mo. 707.
   GRAVES, J.

Maria McGrath brings this action to recover $5,000 for the death of her husband, James McGrath. Defendant is an incorporated street railway company in the city of St. Louis. McGrath was, on the day of the accident, and for some time prior thereto, employed by defendant as a track-repairer or laborer upon its tracks.

The petition states two grounds of negligence, as follows:

“That on the 17th day of October, 1901, the plaintiff’s husband was in the service of the defendant, repairing its tracks, and making alterations and improvements therein, at or near the intersection of Eighteenth street and Clark avenue in the city of St. Louis, when defendant’s motorman and conductor in charge of its east-bound car, carelessly and negligently, and without giving any warning by bell or otherwise of the approach of said car, and without using any care to control or stop said car, caused and suffered said car to run upon and against said James McGrath and to so crush and injure him that he died from said injuries on the 17th day of October, 1901.
“And for another assignment of negligence the plaintiff avers, that whilst the plaintiff was so at work for the defendant, he was necessarily absorbed in his work, and was unable to keep a continuous watch for cars, and that it was the duty of defendant by its agents and foreman having charge of said work to give said James McGrath timely warning of the danger of an approaching car. Vet the plaintiff avers that the defendant and its said foreman did uttterly fail and neglect to give said James McGrath timely or other warning of the approach of said car and thereby di-. rectly contributed to cause the injury and death of said James McGrath.”

It might be well to state that the second ground of negligence was abandoned by plaintiff both in the proof and in the instructions by her asked in the course of the trial.

The answer is, first, a general denial; second, an allegation that the deceased was warned by one or more of his fellow-workmen, but negligently failed to heed such warning’, and remained upon or near the track, and was thus killed by his own negligence or want of care, and, third, the usual plea of contributory negligence, leaving out the allegation of warning given by his fellow-workmen.

The reply put in issue all new matter in the answer. Briefly summarized, the evidence in this case shows the following facts:

Defendant was operating a street railway in the city of St. Louis. On Eighteenth street it had a double track running north and south. North-bound cars used the east track and south-bound cars the west track. At Clark avenue, which crossed Eighteenth street at right angles, was a switch, by which certain cars left Eighteenth street to go upon the track on Clark avenue. The deceased and one Thomas Barry were at work just west of Clark avenue on Eighteenth street. Other employees were at work on Clark avenue close to this switch. Barry and deceased were engaged in pulling spikes. Barry had a claw-bar and deceased a hammer. Deceased would assist in setting the claw-bar and then when the spike was prized up to a certain distance, would put his hammer under the claw-bar, thus forming a fulcrum, by which the spike was prized out of the tie into which it had been driven. These parties, with others, had been at work in and about this point since •seven' o ’clock of the evening before the accident and until twelve o ’clock that night, when they took lunch. Just after lunch these two laborers were at the place above stated and in the act of drawing a spike. Barry was •using the claw-bar and the deceased the hammer. The spike was being drawn at the time of the accident and was one on the east rail of the east track, and Barry had his claw-bar across the track. As well as can be gathered from the evidence he must have been facing-east or northeast. After he got his claw-bar on the spike, and before it was necessary to use the hammer, he saw the car coming and tried to detach his clawbar from the spike but finding it “too fast” on the spike he cried out to McGrath, “Let it go,” and he, himself, tried to get- out of the way, but was struck by the car, as was also McGrath. McGrath, according to this witness, was doing- nothing, and at the time was facing-south toward the coming car, the car which struck both of them. The witness was closer to the approaching car than was McGrath by two or three feet.

One Patrick McGuire, who was working there that night, says that he had charge of a pole upon which were attached ten incandescent lights. This pole, by means of a hook placed over the wire, formed a circuit and furnished light by which the men worked. The pole handled by this witness was about ten feet north from where deceased and Barry were working. This Avitness first saw the car which struck and killed deceased when it was coming across the bridge, which was south of where the two men were at work. He says, ‘ ‘ I saw it a long- way off, ’ ’ and further says that when the car was within fifteen feet of the men, “I shouted to the men, ‘Look out there,’ and they didn’t seem to take any heed of my warning. ’ ’ This witness admits that in testifying before the coroner, he stated that he gaAm this warning when the car was forty feet away, and that it being fresh in his memory, the statement before the coroner was most likely correct. The witness also states that he was ten feet from the men when he gave this warning; that had they acted promptly they conld have gotten out of the way. McGuire says that deceased was “facing in a northwesterly direction pulling spikes,” but also admits that Barry had the claw-bar and deceased the hammer. He says deceased was struck in the side of the head, and says he was stooping a little at the time; that the car ran about a car-length after striking deceased before it stopped.

C. B. Ferguson, another witness, says that he was a laborer there on the night of October 16, 1901, when deceased was killed; that he was sixty to ninety feet away on Clark avenue; that he did not see the car strike deceased; that the first he saw of deceased, “he [deceased] was kind of doubled up and was rolling; ’ ’ that the cars had been passing, as he presumed, about on their schedule time; that men working for the company expected these cars to pass in that way. He also says that prior to the accident the lights on the poles were being taken down.

The evidence further shows that the car in question was lighted upon the inside in the usual manner and had the head-light burning, and that there was no obstruction between deceased and the approaching car. There is no direct evidence as to the speed of the car, nor is there any evidence as to within what distance a car could be stopped when going at any given rate of speed. There is no evidence showing whether the motorman did or did not attempt to slow up his car before striking the plaintiff.

This, in substance, is the evidence for the plaintiff. At the close of the plaintiff’s case defendant offered an instruction in the nature of a demurrer to the evidence, which being overruled by the court, appellant declined to introduce any testimony. The case was thereupon submitted to the jury, which returned a verdict for $5,000' against defendant. Motion for new trial and in arrest of judgment proving unavailing, an appeal was duly perfected to this court.

Complaint is made of the giving and refusing of certain instructions, and the admitting and refusing to admit certain evidence offered, all of which will be considered in so far as the same may be necessary, in the course of the opinion.

I. Defendant insists now, as it did in the trial court, that there was no substantial evidence of negligence sufficient to carry the case to the jury, and its demurrer to the evidence should have been sustained. In our opinion this contention is well founded.

This is not a case, under the facts disclosed, where res ipsa loquitur applies. It has been said that there are but two classes of cases wherein this doctrine can be invoked: “(1) When the relation of carrier and passenger exists and the accident arises from some abnormal condition in the department of actual transportation; (2), where the injury arises from some condition or event that is, in its very nature, so obviously destructive of the safety of person or property, and is so tortious in its quality as, in the first instance, at least, to permit no inference save that of negligence on the part of the person in control of the injurious agency.” [Benedick v. Potts, 88 Md. 52.]

But in this case the inferences are at least equal as to whether the accident was the result of the negligence of the deceased, or of the defendant.

Where all the facts connected with the accident fail to point to the negligence of the defendant as the proximate cause of the accident, but show a state of affairs where an inference could be as reasonably drawn that the accident was due to a cause or causes other than the negligent act of the defendant, then the plaintiff cannot rely upon mere proof of the surrounding, facts and circumstances of the accident, and the defendant is not called upon to explain the cause of the accident, and to purge himself of the imputed or inferential negligence. [ Cothron v. Cudahy Packing Co., 98 Mo. App. l. c. 349.]

But even if it were a ease to which, under proper pleadings, the doctrine would apply, yet in this case specific acts of negligence are charged and not general negligence. In such cases where the plaintiff chooses in the petition to allege specific acts of negligence, the rule of law places the burden of proving such specific negligence upon the plaintiff, and a -recovery, if had at all, must be upon the specific negligence pleaded. [Hamilton v. Railroad, 114 Mo. App. l. c. 509; Ely v. Railroad, 77 Mo. 34; Leslie v. Railroad, 88 Mo. 50 ; Yarnell v. Railroad,. 113 Mo. 570; Bunyan v. Railroad, 127 Mo. l. c. 19; Hite v. Railroad, 130 Mo. l. c. 136; McManamee v. Railroad, 135 Mo. l. c. 447; Bartley v. Railroad, 148 Mo. l. c.139; Gayle v. Mo. Car & Foundry Co., 177 Mo. l. c. 450; Breeden v. Mining Co., 103 Mo. App. 179.]

The plaintiff fell far short of proving the specific acts of negligence charged in her petition, and under the rule stated in the foregoing cases, thereby failed to make a case for the jury. There is nothing in the record showing whether the motorman made or did not make an effort to stop the car.

Three witnesses were upon the stand and were not even asked what efforts, if any, were made to stop or slow up the car; the speed of the car was not shown; the distance within which it could have been stopped was not shown; no witness says whether the bell or gong was being sounded or not. The only thing in the entire record is from the witness Ferguson as follows: “Q. Did you know of its approach by anything you heard? A. I did not;” and from witness McGuire as follows: “Q. What, if anything, did you hear before he was hit — did you hear anything? A. Not that I remember of;” and from witness Barry as follows: “Q. What, if anything, did you hear? A. I didn’t hear anything until the car hit me; I heard it then, that’s all.”

These questions should have been directed to the point in issue, that of the failure to give warning by sounding the bell. Had they been so directed, the answers would have, perhaps, been intelligible and thrown some light upon this alleged failure of the defendant. These answers can hardly be said to mean, “I was giving attention to the car and heard or saw no bell rung or gong sounded.” These answers hardly rise to the dignity of what is termed negative proof of the fact that the bell was not ringing or the gong being sounded. The witnesses were not even asked such a question. With the questions general as they are the witness may have had knowledge as to whether or not the bell was being rung, but yet not understood what was desired by the questions:-

Ferguson says that his first knowledge of the accident was when they picked up deceased and put him in the car to be taken to the hospital. He also says he had not even seen the car before deceased was struck by it. What, then, is the value of his answer as set out above? . The answer of McGuire is indefinite.and valueless. He did not say whether the bell was rung or not rung, but, in effect, says that he had no recollection upon the subject.

The testimony of Barry, who was engrossed with the work of pulling the spike, is but little better. He saw the car coming and made an attempt to unloose his claw-bar from the- spike, and failing in that, said Mc-Grath, “Let it go,” and started to leave the track. His answer is peculiar. In effect he says he heard nothing until the car struck him, but adds, “I heard it then, that’s all.” He does not say what he heard, nor what he failed to hear.

Plaintiff having charged that no warning was given by ringing a bell or otherwise, should have directed the evidence towards the alleged act of negligence. These witnesses could have been asked what, if anything, they saw or heard with reference to the bell or gong. The questions and answers leave but vague inference to be drawn as to tbeir meaning, so that we say that upon the whole testimony there was not such substantial evidence of defendant’s neglignce as to authorize the submission of the case to the jury.

II. But for another and stronger reason the defendant’s demurrer should have been sustained, and that is the contributory negligence of the deceased. Deceased was employed to work upon the track; he was not unfamiliar with such work; he must have known that cars were constantly coming and going; he must have known the danger of his position, as any reasonable man would have known the danger of such position; others at work there and near the deceased saw the approaching car; the car had its head-light burning, and was lighted as cars are usually lighted; deceased was standing facing the approaching car doing nothing at the time; by the exercise of care he must have seen and known of the approaching car; Barry, who was with him and engrossed with his work, saw it, attempted to extricate his claw-bar from the spike, and failing in this, warned the deceased by calling out, “Let it go;” deceased was three feet further from the aproaching car than was Bariy; McGuire, who was within ten feet of deceased, called to deceased and Barry, “Look out there,” when the car was forty feet distant, as he stated before the coroner’s jury, and which on the trial he says was no doubt his best recollection of the fact; the car must have made noise by its progress, which, with attention, could have been heard; McGuire says that had deceased heeded his warning and acted promptly, he would not have been struck.

Now, conceding the negligence of the defendant’s employees although the concession does violence to the evidence, under these facts, should plaintiff recover? "We think not.

It was the duty of the deceased to use his sense of sight and sense of hearing for his own protection. He had no right to become so engrossed in his work, if he was so engrossed, as to be negligent of his own safety. [Davies v. Railroad, 159 Mo. 1; Wheat v. St. Louis, 179 Mo. 572; Evans v. Railroad, 178 Mo. l. c. 517; Clancy v. Railroad, 192 Mo. 615.]

In Evans v. Railroad, supra, this court, through Judge Burgess, said:

“But plaintiff claims that even if deceased was guilty of negligence, yet if defendant’s employees in charge of the train became aware of his peril, . . . in time to have enabled them by the exercise of ordinary care to have averted the injury, and they failed to exercise such care, plaintiff was entitled to recover. It will not do to apply this rule in all its strictness to section men whose business it is to work upon and keep in repair railroad tracks, for they are supposed to look after their own personal safety, and to know of the time at which trains pass, to look for them and see them, and to move out of the way. It is of common knowledge that these men often voluntarily wait until trains get dangerously close to them, and then step out of danger and let them pass by, and to require trains to stop upon all such occasions, when section men are discovered at work on the track, would not only be imposing upon railroads unjust burdens, but would greatly interfere with traffic and travel. Those in charge of trains have the right to presume in the first place that such persons will keep out of danger, and not until they have good reason to believe they will not do so, and then fail to use all proper means at their command to prevent injuring them, in consequence of which they are injured, or are injured by reason of the willful negligence of those-in charge of the train, should the defendant be held liable, and there was nothing of that kind in this case. Our conclusion is that the demurrer to the evidence interposed by defendant should have been sustained.”

In Davies v. Railroad, supra, it was said:

“The voluntary assumption of a position upon or so near to the tracks of a street railway, over which cars are run every few minutes, that they cannot pass without inflicting an injury to the party so positioned, unless the intervention of some independent agency occurs to prevent it, is an act in itself of the grossest negligence. The plaintiff had no right to assume a place of danger upon defendant’s tracks, and deliberately engage in an undertaking in such manner as to deprive himself of the benefit of sight and hearing, common avenues through which the approach of danger is communicated, and trust that defendant’s agents in the course of their employment would be more watchful of his own safety than himself.”

Both of those eases were cited with approval by Marshall, J., in the very recent case of Clancy v. St. Louis Transit Co., 192 Mo. 615, and the doctrine as announced in said cases is fully recognized in that case.

In the Clancy case Judge Marshall makes this observation: “The plaintiff, therefore, had no right to permit his mind to become so engrossed in his work as to become heedless of his danger, and as not to take proper precautions to observe the approach of cars.”-

It is quite evident from the facts in this case that this unfortunate accident was the result of the negligence of the deceased. He and Barry had gotten the claw-bar fast to the spike, and in their attempt to extricate the claw-bar, they remained in a place of known danger too long. We are, therefore, constrained to hold that the judgment of the lower court should be reversed.

This conclusion obviates the necessity of investigating further questions raised by -the record.

All concur.


source: Caselaw Access Project

author: VALLIANT, J.

license: Public Domain

text:
    O’DONNELL v. KANSAS CITY, St. LOUIS & CHICAGO RAILROAD COMPANY, Appellant.
    Division One,
    June 19, 1906.
    1. PASSENGER: Relation How Established. The relation of carrier and passenger arises out of contract; not necessarily an express contract, for it may be implied, but it is based on a contract of the one kind or the other. And it must be a contract between the individual and the carrier, not between the individual and the carrier’s servant. The corporation can contract only through its agents, but still the contract must be the company’s and not the agent’s. And if there was no contract between the' company and the individual, the individual was not a passenger, although he may have been on the train in pursuance to an agreement between him and the brakeman, with the conductor’s knowledge and consent.
    2. -: -: Working for Fare. The plaintiff and a companion approached the brakeman and asked him to let them ride on his freight train. He agreed to do so on condition that they would help unload freight along the route, which they agreed to do and did, and the conductor stood by and saw them at work, and directed plaintiff where to put freight. They rode on freight cars, and not in the caboose, and seemed to avoid being seen by the conductor. Helé, that plaintiff was not a passenger, and that the conductor’s testimony that he did not know that they were on the train is proper in considering whether they were received on the train as passengers.
    3. -: -: Knowledge of Agent’s Authority. Any mature man is presumed to know that a brakeman or locomotive engineer of a freight train has no authority to make a contract on behalf of the railroad company for carrying passengers, that to make an agreement to carry him if he will help with the freight is not within the scope of the authority of either, and that such a contract is not made with an honest purpose and is not binding on the company.
    4. -: -: Meritorious License. The giving of a small sum to a brakeman on a freight train to induce him to permit the giver to ride on his train, for the brakeman’s benefit and in known violation of the rights of the company, is a fraud, a species of bribery, and does not entitle the giver, if injured while being so carried, to plead that thereby a contract arose which created him either a passenger or a meritorious licensee of the company.

      5. -: -: Implication: Tacit Agreement. The law will not imply a tacit agreement on the part óf a conductor of a freight train to constitute one on the train a passenger, in the absence of any circumstances either that he considered himself a passenger or that the conductor so considered him; it will not imply such a tacit agreement from the fact that the conductor saw him on the top of a freight car, where no passenger has a right to be, there being a caboose on the train for passengers— especially where his conduct was that of a man trying to avoid being seen by the conductor, and if seen it was by accident.
    6. NEGLIGENCE: Licensee: Trespasser: Care Required. Every one knows he has no right to’ ride on a train, freight or passenger, without paying fare, and if one pays the brakeman a little money to let him ride, and by that means is received on the train, he is not a licensee, but a treaspasser, and the railroad company owes him no duty except not to injure him if, by the exercise of ordinary care after his peril is discovered, the injury can be avoided.
    Appeal from Jackson Circuit Court. — No». W. B. Teasdcde, Judge.
    Reversed.

      Scarritt, Griffith & Jones for appellant.
    The peremptory instructions for defendant should have been given. Snyder v. Railroad, 60' Mo. • 413; Stringer v. Railroad, 96 Mo. 299. It is the settled law everywhere that where a party knowingly connives with the trainmen to secure a free ride, and thus intentionally defrauds the railway company of its customary charges, such person acquires none of the rights of a passenger, but is a trespasser, or at best, a bare licensee, to whom no duty is owed except to refrain from willful or intentional injury. Berry v.. Railroad, 124 Mo. 223; McVeety v. Railroad, 45 Minn. 268 ; Powers v. Railroad, 153 Mass. 188; Railroad v. Roach, 83 Va. 375 ; Railroad v. Brooks, 81 111. 245; McCauley v. Railroad, 93 Ala. 356; Eaton v. Railroad, 57 N. Y. 382; Railroad v. Black, 87 Tex. 160; 3 Thompson on Negligence, secs. 3320, 3321; 2 Woods, Ry. Law, pp. 1044, 1045; Beach on Contrib. Neg. (2 Ed.), sec. 165.

      G. F. Mead and L. W. McCandless for respondent.
    (1) The plaintiff was a passenger. Buck v. Railroad, 46 Mo. App. 563; Sherman v. Railroad, 72 Mo. 64; Whitehead v. Railroad, 99 Mo. 269'; Muehlhauser v. Railroad, 91 Mo. 344; Wilton v. Railroad, 107 Mass. 108; Railroad v. Yarborough, 83 Ala. 241; Gradin v. Railroad, 30 Minn. 217. (2) The conductor running a train is the company. Randolph v. Railroad, 18 Mo. App. 609; McGinnis v. Railroad, 21 Mo. App. 399-. (3) Even if plaintiff was a licensee or trespasser the defendant owed him the duty of exercising ordinary care to prevent injuring him if-his presence upon the train was known to the conductor. Fiedler v. Railroad, 107 Mo. 651; Morgan v. Railroad, 159 Mo. 274; Klockenbrink v. Railroad, 172 Mo. 687; Jett v. Railroad, 178 Mo. 672; Sculling v. Railroad, 184 Mo. 707; Reyburn v. Railroad, 187 Mo. 573; Woods v. Railroad, 188 Mo. 243; Barry v. Railroad, 124 Mo. 297. (4) Even if plaintiff ‘ was a trespasser, still if the conductor or the men operating-the train knew that he was in a position of peril (or if by the exercise of ordinary care they might have known he was in a position of peril) long enough before the wreck to have prevented his injury by the exercise of ordinary care, the defendant is liable. Fiedler v. Railroad, 107 Mo. 651; Kloekenbrink v. Railroad, 172 Mo. 687; Jett v. Railroad, 178 Mo. 672; Scullin v. Railroad, 184 Mo. 707. (5) The defendant was guilty of gross negligence. Clark v. Railroad, 127 Mo. 210. (6) The defendant having asked an instruction requiring of it ordinary care and such instruction having been given, it is bound by it. Mirrielees v. Railroad, 163 Mo. 486.
   VALLIANT, J.

Plaintiff recovered a judgment for $2,500 as damages for injuries sustained by him in a train wreck on defendant’s road. The trains in the wreck belonged to the Chicago & Alton Railway Company, the lessee of the defendant’s railroad. The appeal was taken by the defendant to this court because there is a constitutional question in the case, that is, the defendant, the lessor, contends that so much of section 1060', Revised Statutes 1899-, on which this suit is founded, which declares that the owner of a railroad in this State which leases its road to a corporation of another State “shall remain liable as if it operated the road itself,” is in violation of certain sections of the Constitution of Missouri and the 14th amendment to the Constitution of the United States.

I. We have, in the case of Markey v. Railroad, 185 Mo. 348, said all that we deem necessary to say on that question, but since, as we understand, that case is now pending before the Supreme Court of the United States on a writ of error, we will not now say that for. the purpose of giving this court jurisdiction the constiutionality of that clause of that statute can no longer be drawn in question. We will therefore entertain jurisdiction of this appeal.

II. The case stated in the petition is substantially this:

The railroad belongs to the defendant, it is leased and operated by the Chicago & Alton Railway Company. On June 6, 1902, the plaintiff was at Odessa, a station on the railroad, aiming to go to Kansas City; a C. & A. freight train being there, the plaintiff asked a brakeman on the train the privilege of riding on it to Kansas City; the brakeman consented on condition that plaintiff would help unload freight along the route, to which terms plaintiff agreed. “Said arrangement was immediately called to the attention of the conductor of said train and he acting within the scope of his employment expressly assented to it and permitted the plaintiff to ride upon said train until same was wrecked as hereinafter stated.” The train on which the plaintiff entered under this agreement passed on to a station seven miles west of Independence where it stopped on the main track and while standing- there a regular passenger train, going fifty or sixty miles an hour on the same track, collided with it, with the consequence that plaintiff was thrown to the ground and severely injured. It was a rule of the Chicago & Alton Railway Company that freight trains were to keep out of the way of passenger trains with ten minutes or more time space, and also that when any train stopped between stations, one of the crew should go back half a mile or a mile with flag or lantern and place torpedoes on the track to warn an approaching train, and that was not done in this case. This freight train was four or five hours late and was running on the time of the pas-' senger train, which it had no right to do. The men in charge of "this freight train knew that the passenger train was due then and there, and they had had opportunities to side-track their train and get it out of the way, but neglected to do so, and after the train stopped on the main track as it did they neglected to send back a flagman or to place torpedoes on the track “so that when said passenger train approached around a curve the employees operating it had not sufficient notice of the presence of the freight train to stop and prevent the collision, but same became inevitable and unavoidable. ’ ’

The answer was a general denial, and a plea that plaintiff was a trespasser on the train, concealed from view of the trainmen; that defendant was not liable for the acts of the Chicago & Alton Railway Company, and that plaintiff for a valuable consideration had executed a release of all claim for damages growing out of the accident. The reply put the new matter in the answer in issue.

The testimony on the part of the plaintiff tended to prove as follows:

The plaintiff, with a companion named Doyle, started from Springfield, Illinois, to go to Kansas City. Their purpose was to travel by railroad, but not to pay railroad fare. They managed to travel on different freight trains from Springfield, Illinois, to Odessa, Missouri. From Springfield to Jacksonville they paid nothing, from Jacksonville to Roodhouse they paid a brakeman fifty cents, and between Roodhouse and Odessa they paid another brakeman seventy-five cents. They were not in a caboose at any time, but on freight cars. At Odessa they approached a brakeman and asked him to let them ride to Kansas City; the brakeman agreed to let them do so on condition that they would help unload freight which they agreed to do, and during the journey they did assist in unloading freight at one or two stations. At one of these stations the conductor stood by and saw them at work and directed the plaintiff where to put the freight. From Odessa to a way-station, plaintiff and Doyle road on a car loaded with rock ballast; after that car was dropped out of the train, they road on top of a box freight car, sitting on the running board, and the conductor passed them once or twice while they were there. At a point about five miles west of Independence the train came to a side track on which some cars were standing which it was the business of this train to take in. The train ran past the switch and stopped on the main track. In stopping the train the conductor came out of the cupola of the caboose and set the brakes on the car on which the plaintiff was riding. As soon as the train was stopped it was started back and came to the switch and was going to back in on the switch, and just then the passenger train came around the curve and collided violently with the freight train, breaking several cars into fragments, the plaintiff and Doyle were thrown to the ground and injured. As soon as the freight train in backing reached the point of the switch and before it had quite stopped, the conductor and one of the brakemen got off and walked over to the cars on the switch track, and began taking the numbers of the cars that were to he taken into the train, and were so en- . gaged when the collision occurred.

On the part of the defendant the testimony tended to show that neither the conductor nor any one of the train crew knew that these men were on the train. At Odessa a party of young men, 15 or 20, took passage on the train for Oak Grove where there was to he a ball game played, the train was late and these young men in order to make time volunteered to assist in handling the freight at the stations and did so. It was not unusual along the line of that road for draymen who came to the stations and wanted to get the hauling to also assist the trainmen in handling freight, and the conductor testified that whilst he saw some men helping in that way he thought they were either these young men going to the ball game or draymen; he did not know that anyone was on the train with the understanding that he was to help handle freight in consideration of being carried; that he never saw either the plaintiff or Doyle until he saw them in the hospital the next day. The conductor also testified that whilst he had a time card showing that this passenger train was due there at that time and if he had thought of it he would have known it, yet the fact was he had for the moment forgotten it.

There was a good deal of testimony on both sides relating to the extent of the plaintiff’s injuries, his treatment and the alleged release, but the foregoing is substantially the tendency of the evidence on both sides relating to the question of the plaintiff ’s right to recover at all.

At the close of the plaintiff’s evidence the defendant asked an instruction in the nature of a demurrer to the evidence which was refused and exception taken.

Did the plaintiff by his pleading and proof make out a prima facie ease?

The plaintiff in his brief contends that he was a passenger. If he is correct in that contention then he is entitled to recover, provided his right of action has not been released, because the stopping of the freight train on the main track, when and where it was liable to be struck by the passenger train, was not the exercising of that high degree of care that a carrier owes to its passengers. But this plaintiff was not a passenger even by his own showing. The relation of carrier and passenger arises out of a contract, not necessarily an express contract, for it may be implied, but it is based on contract of one kind or another. [5 Am. and Eng. Ency. Law (2 Ed.), 486-513; 3 Thompson on Neg., sec. 2642, p. 105; Id. sec. 3320', p. 737; Reynolds v. Railroad, 189 Mo. 408.]

And the contract must be one between the individual on the one side and the carrier on the other; if the carrier is to be bound by the contract it must be a contract which he has made, When the carrier is a corporation it can contract only through its agent, but that does not alter the case; if it is to bind the corporation it must be the contract of the corporation, not that of the agent. Men dealing with- corporations of a public character like that of a railroad company are presumed to know the ordinary scope of the duties of a servant of the company with whom the public is brought into daily contact; they know the ordinary scope of the duties of a brakeman, a locomotive engineer and a conductor. No man of ordinary common sense needs to be told that neither a locomotive engineer nor a brakeman has authority to make a contract in behalf of the corporation for the carrying of passengers or to receive the price of carriage; no man offers to make such a contract with either such servant with an honest purpose.

Men of ordinary common sense and common experience know the difference between a freight train and a passenger train and the purpose of each, and they know the difference between a caboose in a freight train and a freight car. Therefore, when a man comes into court claiming to have been a passenger and to have been injured by tbe failure of tbe carrier to exercise iu bis behalf that high degree of care which the law in such case prescribes, and in his proof he shows that he was riding in a box car on a freight train to which train there was a caboose attached into which he never presumed to enter, he has much to explain before the court will ad3‘udge him to have been a passenger.

The plaintiff in this case realized in the beginning that to establish his claim to the character of passenger he must show that he was on the train by virtue of a contract, and therefore in his petition he said that before entering upon the train he made a contract with the brakeman whereby in consideration that he would help the brakeman handle freight the brakeman would allow him to ride on the train. The law charges the plaintiff with common sense and common knowledge in such matters, and therefore charges him with knowledge that the brakeman had no authority to make such a contract.

There is no difference in a legal point of view between the contracts this plaintiff made with the two other brakemen severally, whereby he paid fifty cents to one to allow him and his companion to ride from Jacksonville to Roodhouse, and to the other seventy-five cents between Roodhouse and Odessa; it was a corrupt bribe in each case, the money paid to the two other brakemen was for their use, not for the railroad company, and the agreement to assist in handling the freight which the railroad company had employed this brakeman to do was a benefit, if benefit at all, to the brakeman, and in no sense an advantage to the corporation. Not only, therefore, was the alleged contract not within the scope of a brakeman’s duties, but it was an agreement for a consideration personal to himself to induce him to violate his duty. Can one who knowingly makes a contract with a servant to violate his duty to his master be heard to say that that contract is binding on the master, or that out of that contract such a condition of affairs lias arisen as gives him a right of action against the master ? If one by bribingyonr servant induces him to violate his duty to you, and either to take of that in the servant’s care which belongs to you, or to impose on you a service which the servant had no authority from you to impose, who is the injured party, you or the man who tampered with your servant?

In popular estimation the giving of a small sum to a brakeman on a freight train to induce him to allow one to ride on the train in violation of the rights of the railroad company seems to be generally considered a trivial affair and we are not now intending to magnify it, we are not discussing it from a moral standpoint, but when a plaintiff comes into court pleading such a contract and basing his right to recover upon it, the contract must be classed under its proper head and called by its right name. It is a fraud. Here the plaintiff has come into court actually pleading his fraudulent contract and asking that by virtue of it he be adjudged, if not a passenger, at least a meritorious licensee for whose protection the railroad company was under a contractual obligation.

The petition says that this contract which the plaintiff made with the brakeman was immediately called to the attention of the conductor and he ‘ ‘ acting within the scope of his employment expressly assented to it. ” There was no proof of that allegation. There was proof on the part of the plaintiff tending to show that the conductor saw him handling freight at one of the stations, and saw him and his companion on top of a freight car, from which the inference might be drawn that the conductor knew that the plaintiff was on the train; that is the extent of the legitimate inference to be drawn from that evidence. There is nothing in the mere fact of seeing the man handling freight to justify the jury in drawing the inference that the conductor knew that he had made a contract with the brakeman of the kind pleaded. If the making of such a contract had been within the scope of the brakeman’s authority, there might be some reason for the contention that seeing the man handling the freight was a circumstance from which the conductor should draw the inference that he was employed under such a contract, but when the conductor knew that the brakeman not only had no such authority, but that to do so would be a violation of his duty, he had no right to draw such an inference. The defendant’s testimony on that point was that the young men going to the ball game also assisted and that it was not unusual for draymen who came to the station to get a job of hauling to assist in handling freight. Whilst, of course, the defendant’s testimony is not to be taken into account on a demurrer to the plaintiff’s evidence, yet when it is quoted by the plaintiff as an admission of the conductor that he was aware of the contract, all that the conductor said on that point is to be considered. Strictly construing the plaintiff’s petition he would not be entitled to prove a ratification by implication, because the petition in express terms pleads an express ratification, but conceding his right to prove a ratification by implication he has not done so. There is, therefore, no necessity for us to consider the question of whether one servant could ratify an illegal contract made by another servant in fraud of a common master.

This plaintiff is not here claiming that he was on the train by invitation express or implied of the conductor; he is claiming that he was there by right, by virtue of that contract.

We have been referred to cases where it has been held that a person who goes upon a train at the invitation of the conductor with the understanding that no fare is to be paid, or who enters the train without intending to pay and is permitted by the conductor to remain and' be carried, is nevertheless a passenger and entitled ,to the watchful care that is due a passenger. But in such case the person was received as a passenger, acted as a passenger, and was carried in a vehicle provided for the carrying of passengers. [Wilton v. Railroad, 107 Mass. 108; Whitehead v. Railroad, 99 Mo. 263.] A learned test-writer on this subject has said: “Upon this question decisions are'found which hold that, even where the conductor or other person in charge of the train has no right, as between himself and his principal, to invite or permit persons to ride free on the train, yet such a person, so riding free by invitation or permission of the conductor or train-master, will be entitled to the rights and to the protection of a passenger, unless he hnows, or has reasonable ground to believe, that the conductor or train-master is inviting or permitting him so to ride in violation of his duty. ’ * [3 Thompson on Neg., sec. 3321.]

In the case at bar the conduct of the plaintiff indicated that he did not consider himself a passenger, he did not go into the caboose which was the only vehicle on the train provided for passengers and the only place on the train where the conductor would be sure to see him. His conduct was that of a man avoiding being seen by the conductor and if he was seen it was by accident. The law will not imply a tacit agreement to constitute the plaintiff a passenger in the-absence of any circumstances indicating either that he considered himself a passenger or that the conductor so considered him; it will not imply such a tacit agreement from the mere fact that the conductor saw him on the top of a freight car in the train where no passenger had a right to be and when there was a caboose on the train provided for passengers.

But the plaintiff contends that if he was not a passenger he was a licensee and therefore if not entitled to the high degree of care that belongs to a passenger he was entitled to the ordinary care which is the due of one who is on the train by leave though not by right.

The only ground on which the plaintiff claims that there was any difference between his case and that of a mere trespasser is his alleged contract, that is, he was on the train by permission of the brakeman and with the knowledge of the conductor.

If a visitor approaches your house in the usual way and is admitted by your servant, he cannot be said to be a trespasser, even though you had previously ordered your servant to admit no one. But if knowing your order, the intruder should bribe your servant and by that means gain admission, in what respect is he better than a mere trespasser? If the plaintiff knowing that he has no right to ride on a train without paying fare (and everybody knows that) gives a brakeman fifty cents to allow him to ride and by that means is received on the train and carried, does that transaction raise an obligation on the part of the corporation to treat the plaintiff with more care and consideration than it would be required to treat'him if he had merely intruded on the train stealthily and without leave? We have no fault to find with those decisions that hold that the conductor of a train en- route is as to the government of that train the corporation, and that when he invites or knowingly permits one to ride free on his train, that person, in the absence of fraud on his part, is entitled to be treated as a passenger. But in such case, since the act of the conductor is out of the usual course, his invitation or permission will not be implied from equivocal circumstances and never in aid of a fraudulent scheme to avoid payment of fare.

Our conclusion is that the plaintiff on this train was a mere trespasser and the railroad company owed him no duty except not to injure him if by the exercise of ordinary care after his peril was discovered the injury could be avoided. The evidence shows that the conductor, unmindful for the time being that a passenger train was due then and there, negligently stopped his train on the main track, and was preparing to pick up some cars that were on the side track, and while his mind was on that work the passenger train came in sight around the curve and it was then too late to do anything to avoid the collision.

It was negligence in the conductor to forget that a passenger train was due then and there, and for a passenger injured the company would be liable, hut there is nothing in the evidence to justify the inference that the conductor knew that this train was coming, the most that can he said against him is that he ought to have known it. Whilst it appears from the evidence that he did not send hack a flagman or cause torpedoes to be put on the track, it does not appear that between the time he stopped and the time the passenger train came there was time enough to have done so. Assuming that the conductor knew that the plaintiff was on the train he did not know the peril in which the plaintiff was until he saw the passenger train coming and then there was nothing he could do to avoid the collision.

Our conclusion is that the instruction in the nature of a demurrer to the evidence should have been given. The judgment is reversed.

All concur.