*1 SUPREME COURT OF MISSOURI. Ry. Ford v. Rock Co.

posed they may defect. If so, be the invoked -when consti question tutional is raised. In view of this the constitutionality “permit” the of the section is not presented by record. this disposes This questions of the raised the briefs. judgment is reversed cause remanded proceeded to be with in a manner not inconsistent with opinion. this All concur. H.

PATRICK FORD JACOB M. DICKINSON, Re ceiver of CHICAGO, ROCK ISLAND & PACIFIC RAILWAY COMPANY, ISMERT-HINCKE Appellants. MILLING COMPANY, One, Division December 1919. Dangerous Railway Proximity

1. NEGLIGENCE: Track: to Posts. The mere construction aof railroad track so iron close to an inherently dangerous as to be to a brakeman regardless negligence. not, conditions, a is box car is error It jury sup- to instruct the that construction of an iron to port shed, company unloading milling the roof of a used cars, proximity wheat in such close fr.om to track as railroad car, dangerous alone itself on the side of be to a brakeman ground showing negligence, sufficient there constitutes space track or under the shed for wider between company milling practicable or feasible it was space. have wider allowed Proximity Dangerous Incon- to Post: 2. -: Defective Track Allegations: petition A inconsistent Concurrent Acts. sistent shed, support alleges, which that the location an iron mill, unloading hauling wheat so close to used safely on the side not ride railroad track a brakeman could injury, car, proximate also was the cause of his place alleges proximate a low cause post; under rail swerve which caused towards negligence jury, by and where acts of are one lioth submitted fixing company liability milling because instruction fixing proximity rail, .another company rail, liability on the because defect in the railroad petition against stand. In case verdict cannot such the' both negligence allege should either the two acts were con- TERM, Yol. 280] v. Rock Island injury, together operating should caused current alternative, alleged, the other caused be accordingly. injury, drawn instructions *2 Warning. Assumption brake- Risks: A of -: Post Track: 3. Near totally ignorant is which he man not assume a risk of does ordinary prudence, care and exercise ascertain in the of cannot company duty to the it is the of aré the where facts such danger. was. close railroad track so the Where the warn him of by milling shed, support com- a used a to an iron erected to pany, acquainted dangerous, as to be the was not brakeman along situation, approached he looked the car for him to ride the side track and concluded it was safe car, company duty warn him of 'the to it was railroad exceptional. danger, hazard Proximity Liability a 4. -: of Track Post: of Railroad. to If dangerously negligently, an railroad track is maintained near to company milling shed, a retains iron which railroad damages direction it is liable for to a control over for riding car; negligently brakeman on the side a and it main- is tained, practicable it if to is maintain suf- feasible danger; ficient to if from the remove the distance company railroad does not have sufficient control eliminate to require milling company so, danger, it can either do cease haul into cars the shed. Company: Milling Liability Perils. A Latent -: -:5. unloading company milling a shed which maintains it, by perils, maintained concealed latent or for all is liable wheat cars; handling an iron if maintains it brakemen shed, track as support the railroad so close to erected cars, passing the ladder to brakemen by brakeman, open danger that or obvious is customary way, discharge ordinary his duties in care coming by injuries it, caused it liable for his is will discover passes. with the contact petition Employment: Misjoinder: Waivers. -: Interstate milling company defendants, charged com- and a a railroad both company milling liability, an,d con- pany, with common-law brakeman that the cars of wheat tends engaged injured switching inter- the time shipments, by com- he was interstate thereof state reason that company’s liability governed merce, is that the railroad Employer’s Liability common the law, Act and its own Federal misjoinder therefore defendants and there was Held, company milling had causes action. if right by pleading question, without raise the over waived raising Besides, company it. its the railroad wished to waive" SUPREME COURT MISSOURI. OF Ford v. Rock Island immunity perceived law, under the common it cannot be how rights, company. milling Held, also, affects the company, having plead- railroad tailed raise some sort ing liability governed by Employers’ the Federal Liability Act, cannot raise the for the first time in the appellate court. Appeal Lucas, from Jackson Circuit Court.—Hon. O. A.

Judge.

Reversed and remanded. appellant Sebree,

Sebree & M. Dickinson. Jacob appel- F. Adrian 'Sherman and Thad. B. London for Company. lant Milling Ism ert-IIincke *3 (1) overruling The court erred in the demurrer of milling plaintiff’s company the defendant at the close refusing peremptorily evidence, instruct defendant, jury to return a verdict for a. Under said pleadings company milling and the evidence, the guilty negligence. Stockyards v. C'o., Crawford Pryor, 410; 215 Mo. Morris v. 350; 272 Mo. L'ewis v. Oplotnik Mining Coal Co., 333; 84 Kan. v. 98 Co., Pankey Ry. Kan. 356; A., v. T. & Fe Co., Santa App. Ry. 185; 180 M'o. South Side Elec. Co. v. Nes App. Ry. Co., 185; 180 Mo. South Elec. Side v. Nes Co. vig, (2) 214 111.463. The evidence shows that the loca of the tion west rail of track 2 was in no way proximate plaintiff’s injury. cause of A new independent sag cause, to-wit, a in'the west rail of question, track 2 or near the intervened be company milling in locating tween the post, action plaintiff’s injury. Suppe, and the Kiser v. 133 App. Halejr 19; Mo. 30; Transit Mo. Dickson Co., v. 179 Ry. Ry. v. 140; Mo. Co., Co., 124 Hudson v. Wabash 101 Ry. Kellogg, Milwaukee & St. v. 94 13'; Mo. Paul Co. Ry. 469, 256; Co., S. 24 L. Ed. v. Met. U. Glenn St. 167 App., Savings Society, 109; Mo. Loan Cole v. German & Railway 113; 98*50, 1909'; Kan. 124 Fed. Sec. Geni. Stat. 209 280] Vol. 1919. TERM, y. Ry. Co. Rock Island Justice, v. 390; Co. v. Kan. Railroad Co. Columbia, 65 Telephone 763; 91 Kan. 10; 80 Kan. v. Co., Eberhardt Ry. Rodgers Dabney, Co., v. 820; v. Gas Co. 79 Kan. Stockyards Mo. 394. 222; 75 215 Co., Kan. Crawford.v. (3) dénying further The court erred demiurrer company milling for the that there of defendant reason parties misjoinder and a mis defendant, was a clear joinder Employers’ Lia of causes of action. Federal bility (Act Congress, Apr. 35 149', Ch. 22, 1908', Act 1208); Pipes Mo. Pacific 8 v. 65, Stat. L. Fed. Stat. Ann. Philadelphia Ry.

Ry. R. v. 385; 267 Mo. Luechetti Co., &. Wyler, 286', 154 U. S. Co., 137; Pacific v. 233 Union Fed- Ry., Bankson v. Illinois Central 196'Fed. 983; 39 L. Ed. Mo. Gérardi, R. v. 166 171; 1795, 1909; Sec. S. Beattie 236'U. 143; Toledo, Slavins, Louis v. W. St. & Doyle Depot Paul Co., L. St. 134 455, 454; S. Ed. *(4) giving instruction Minn. 458. court erred in The request plaintiff:. number at the The instruc proven, negligence (1) erroneous; tion was proximate (2) cause. the location of the was not supra. erroneous Authorities was further because It put duty upon jury the mill the absolute allowed ing company post. Pryor, 272 Morris v. to remove Pankey App. Mo. 350; Co., 186'; T. & F. Mo. A. S. Stockyards (5) Co., Crawford v. 215 Mo. giving number 1 court erred instructions request plaintiff. at number These instructions aro *4 contradictory inconsistent with other and conflict given instructions on behalf of defendants.

Boyle respondent. & Watson for (1) having defendants, The on their de- stood plaintiff’s having murrers at the close in- case, their evidence in own the final demur- behalf, troduced testimony, search all rers is entitled any proof. benefit to be derived from the defendant’s Metropolitan Ry. v. Stauffer St. Co., 243 Mo. Pet- 305; App. Lusk, ers v. 200 Mo. 1. 372, 379. (2) c.. Under the ' U—280 Mo. MISSOURI. SUPREME COURT OP 210 Ry. v. Rock Island pleadings both defendants were evidence, guilty negligence, concurrent of acts of were which liability, constituted each each of created proximate lia- or both and either defendants cause App. Railway 495; Mo. Co., ble. United* 197 v. Ganahl Light New- 606; Mo. C'o., v. K. C. 195' Harrison Electric Ry. v. 409; N. Hawkins Co., combe Y. 160 Mo. v. Central App. Mule Co., 182Mo. Buckner v. Horse 328; Railroad. & 29; Kan. 268 221 v. Co., 711; Co., Mo. POwder 94 Clark Cyc. Cyc. Mo. v. 156' 496, ; 465; Railroad, 497 29 Chase App. Young 634; 185 Mo. 701; Co., v. Oil Pierce Waters Railway Snyder Light v. Kan. v. Co., 157; 98 Hartman contributory negli- (3) Kan. 184. The Co.,‘94 gence pleaded. is not this for the it is not case, reason Harrington (4) v. Mo. 414. Dunham, 273 The could not risk did railway’s assume George,

negligence. v. Railroad* 225 Mo. Co., Chicago, Ry., 406; Pish Rock & 263 Pacific F, 106; Mo. St. L. & R. R. 200! Co., Charlton v. Mo. S. (5) company milling 433. duty The defendant breached its plaintiff, an invitee. v. Rothohild,

toward Glaser (6) misjoinder parties 221 Mo. 185. no There was defendant or of action, even had causes there been questions only advantage taken could de- petition, by murrer to the answer or motion to elect, evidence, could not be raised demurrer to Railway App. Ganahl v. Co., United Mo. Lass 495; 197 v. Eisleben, Mo. 124; 50- Horstkotte v. Menier, 50 Mo. Railways, 160; Johnson v. Mo. 357; United 247 Pulwider Light (7) v. Gas, & Co., Power Mo. 216 There misjoinder parties defendant or causes of action Employers’ herein Liability reason Federal (a) petition Act. does not refer to said nor act, pleaded bring do facts it within said act, neither any of the defendants made reference to said act, coming facts -within that act their answers. Taber v. (Mo.) Mo. Pac. Co., S. 688; W. 186 Giersch Santa Kan. P'e, 452; Atlantic Coast Line v. U. Mims, Liability 476; S. 61 L. Ed. Robert’s Federal *5 280] Yol. TERM', 1919. y. Rock Island p. (b) railway company,

Carriers, 1207*. The defendant only party having right raise question, the case court below as an action tried, negligence. based on common law Mathieson v. Rail- (c) road Co., 219 Mo. 542. court erred receiv- ing proof company offered milling the defendant subject, objected on this plaintiff, which was' upon up- is entitled to insist this error to judgment. Savings hold his St. Charles Bank Denker, (8) given 275 Mo. 620. The instructions are not incon- sistent in conflict with each other.

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

The defendant Ismert-ILincke Company, Company, hereinafter Milling referred at and prior presently operat to the occurrences narrated, be large plant flour mill elevator. ed and! located Its neighborhood switching in terminal and of the Railway yards Chicago, Pacific the-’ Rock Island & Company, Railway Company, called the hereinafter premises its enclosed. On the north there through Company Railway gate, constructed yards elevator, south to the mill track - purpose delivering point at the latter receiving loaded with wheat and there cars loaded with (or connected) products. the mill Connected along tracks three this track there were railroad elevator. main of the mill and structure side' west mill track known as 1, next The one remaining one as one next west open shed, a steel tracks there was these- three 3. Over passage permit south north and ends MISSOURI. COURT OP SUPREME *6 y. Ry. Rock Co. partic through The and it. evidence does oars under of or the dimensions shed char ularize to the this except support it acter of construction, its was posts, possibly, of iron, were which, ed all with exception Photographs that on one. introduced show the west east side its wall roof was attached the main that as a whole fashioned structure, it w’as and bridge construction. somewhat after the aof manner posts 2 and There tracks 1 row between was and posts The between and another tracks 3. 1 between 2 and equidistant placed tracks, from the 2 there were piost approximately space feet and between four posts feet west of 3 were four between and rail. Thei intervening spaces 2. be track The west rail posts 3, rail trade latter east tween these between the rail o'f track 3 west and the west wall between- the east rail of shed, track 1 and west main wall of mill were- structure, shown, but photographs spaces indicate these were not more than moving sufficient for the clearance of over cars tracks 3. 1 and Between tracks 1 2 there was the opening aof concrete tunnel, into; un wheat was conveyed from from cars, loaded to the thence posts elevator. The between these latter tracks, in addi furnishing support tion roof, were for used in connection part with unloading- constituted device. Track generally for used unload ing. It extended short distance south of the shed, parlance, it in became, where railroad a dead end. In switching cars loaded wheat on with in 2, track order to spot properly make for room them and them unload for ing, proceed it through was often first couple empty standing on to shed cars near the purpose bringing south of the- track end them pushing out them track. of the' Track end part part holding 1 was used aas track placing plain time 3 at the cars be loaded; lead, tiff’s not-been connected had weighing over scales for cars constructed Yol. 280] OCTOBER TERM, 1919.

Ford v. Rock Island loads, and used as an unloading additional posts track. There were three between tracks 2 apart, six or seven they feet already and, indicated, a line. The eight- south and middle ones were posts, iron pre inch the northernmost was wood and eight sented a surface approaching inches wide along north latter' Thisl plainly operators handling visible to as soon as- yard, approximately mill three entered hundred fifty feet north the shed. sup- including structures, mill shed and ports, Milling Company *7 been the- and had erected supervision. were under The exclusive control and Railway Company, had the tracks they been constructed in defendant service the receiver the were used upon only, Company Milling of the but incumbent it was charge repair. keep him of the- them Thie crew to vicinity engine switching for mills in the the the- did daily trips Company’s Railway yards made two of the Milling yards Company and of the to deliver the into industry, the latter’s receive to cars incident the working the was On March 2, ' an ex- switchman. He was receiver as extra perienced on the time was brakeman, but regular day assignment. having h.e On that no list, switching of the crew .serve to directed was of a engine. consisted charge crew mill the of* two switchmen. engineer, fireman foreman, an engine-man, was it the called switchmen was One the engine,; duty the was other the near on or to be his duty on to be his field-man, the called engine furjherest from the removed the car engine-man com- who signals give the the day engineer. on This crew them to municated string cars seven move in, directed wasi yards mill the railroad wheat with loaded unloading All of the track. yards place them on yard, mill with familiar crew members imme* and the elevator mill and approaches 21á COURT SUPREME MISSOURI. OF Rock except plaintiff; díate yards environs, he been in had before and then once nncler such circumstances upon it was not incumbent him make, did and.he any make, observations to structures near the tracks. yard As drag the mill entered with this of seven engine pushing cars was headed to the south, moving at the rate of from four to six an miles engine-man standing hour. The on the footboard engine engine of the- between the the first car; standing foreman ear, was at south end of south right his on foot the drawbar his left on grab-iron bottom on the end the car on the side, west looking holding with one hand to the brakestaff and moving: plaintiff, the direction the ear and the field-man, who was was on the on the side ladder west standing end, of the car near south the south on higher grab-iron holding up. bottom Plaintiff to one beyond standing looked mill south and saw a car track, shed near the also saw a end he (track 2-) thought the track there- west side of ample space clear him while car, having gave and', conclusion, reached thought. partially swung He then further around put right car, end foot is, around of. *8 grab-iron foot, the on the foreman same which had his put also, and head around and fore- he his the asked gave'him man for some instructions. The foreman respect standing end directions the the with to car probably plaintiff his then of the head track, raised and changed body position make somewhat to of the his and,- ahead, so, as he did of the further car observation post proved’ shed, of the to be tbie south immediately swing appeared him. tried in of He front to caught car, the was about the but he the of around end severely hips post car and the and rolled between injured. plaintiff day on which- car same the

Later on the the injured placed 2 with on track was was when plaintiff post opposite that struck the south end 280] Yol. TERM,

Ford v. Ro.ck Island certain measurements were made. From the bottom of the car to the roof grab-irons 9was feet; the were 17 apart inches and set within 3 inches of the end projected they car, from the side of the car 3 inches. point At a two space feet above the bottom of the car the the post side of car between the the was 14 inches, at point space feet two the below roof was 10 the inches. spaces grab-irons between the the at these points was of course 3 inches less. was a low There place the under west near the south rail top that caused of the car tine to be nearer the than stationary, bottom when the car and which sway in when motion to in caused toward the passing it.

Plaintiff at the time he in was struck, that he was riding on respect, tb.e side in car, was, in a position customary a usual proper discharge his there duties were no struc where tures close track as* it hazardous, to. make but to members of mill who were familiar crew attempted posts shed never locations got always approaching through, ride off signals. gave along None walked shed, attempt ever seen a switchman ride them had prior posts past moving these tending injury. There evidence plaintiff’s was some employees general warning terms in show arising dangers receiver of proximity Rail to the tracks structures Company’s yards way in those of the terminal plants receiver,- the defendant served dustrial as to never been he had warned testified specific posts mill proximity these knowledge thereof. In had that he Railway employ Com continuance pany as a condition and, sign, sign, newa required he did service, was *9 following: employment application contained which n MISSOURI. SUPREME COURT OP Rock explained dangerous nature to Have me “I Had engage. I under- in am to of the which I service about getting an standing on to, front or of, stand that dangerous, engine coming. and is or car me toward me done will be rules, violation of and my great exer- risk. understand that care must be own I bridges passing approaching and over- cised all standing they will a man head as clear structures, high top dangerous car; covered that it is to (cid:127) up the sides of or to otherwise cars, and down climb expose myself, spouts, passing while water tank pipes, coal cotton chutes, houses, houses house platform, seed

signal through bridges, posts, girder switch buildings mail roundhouse stands, cranes, doors, dangerously other near to as track, structures safety, required will not a man and that am clear I danger. to look out for them avoid understand I expose that the duties of great danger, me the aforesaid to situation agree the risk of assume, which I my- proper prevent injury use constant and care self and others.” petition specifications negli contains three

gence: “post (1) that the located, maintained and permitted place at a close to remain which was so being side of said on which the west said operated, riding that a switchman side of west post pass . . . box clear could said (2) without struck;” that defendants “suffered permitted said to fall state into of disre pair resting that the rail was not west on firma place thereby solid at the base bed said accident; upon causing sway the car passed westward toward said as it said plaintiff,” (3) said strike defendants dangerously “failed to warn that said plain track, aforesaid, said and failed warn contiguous condition tiff of the track aforesaid.” to said *10 280] OCTOBEE TEEM,

Yol. Ry.

Ford v. Rock Island Co. allegation general There a further was de- negligently plaintiff fendant provide receiver failed reasonably place in safe to do his on ac- work, which count of the of nearness to the track and point. defective condition of the track at that general The answer of defendant receiver was a coupled pleas contributory denial, negligence with the assumption and risk; the answer of the defendant Milling Company, general to a addition denial and plea contributory negligence, pleaded a statute of the relating adoption State Kansas to the of the common law in that state.

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

Ford v. Rock you ordinary if struck, so find, was exercise part safety.” care on his for his own 2; you And further instruction number “And further find believe from the evidence the said placed south maintained iron the de- Milling Company, place fendant, Ismert-Hincke close to the west side 2 that' a switchman said west side of on said box moved *11 post, post said past not clear would said 2 and track Company Milling Ismert-Hincke defendant that and ordinary could have by care or the exercise knew, along track said would be moved that known box moving cars post, that in so past 2 south iron said on west to be a switchman be would along might track said moved that be car side box post, defendant Ismert- that past 2 south said iron by Company the exercise Milling knew, Hincke post ordinary was so that said known, could have care switchman that side of close to the west riding said along- a box moved west past would said south iron said ordinary by dili- said the exercise clear gence time so, post, do failed to have removed said by you plaintiff said struck find, if also you position, .post he was, if find from his thrown by iron was so reason fact said south a switchman it would not clear close to said track riding you was, aforesaid, on a if find car as proximate cause of said' was the location said injury, your be for the then verdict will against Company, Milling Ismert-Hincke provided you time further find you find he was struck, struck said ordinary safety.” exercising care for his-own requested given re- » Instructions defendants, fused, will be referred to hereafter. ag’ainst assessing jury both defendants, found sum,.

plaintiff’s damages at a substantial From 1919. 280] TERM, Yol. y. Rock Island

judgment therewith each de- rendered accordance appealed. fendant

Appellant assigns (1) the failure receiver error: of the trial court to sustain his demurrer to the evidence (2) appel- giving of instruction number 1. The Company assigns Milling (1) lant as error: the failure court to sustain its demurrer evidence, (2) giving of instruction number As cause will have to for. another trial we will remanded con- questions respective sider all raised demurrers, propriety giving as wrnllas the the instructions re- ferred to. directing

I. If the court error in not committed (a) verdict the defendant it is receiver, because jury evidence was sufficient to take the case any specifications negligence of the three set out petition, (b) evidence as plaintiff, whole shows that the aas matter Promixity of Track to post guilty contributory negli law, *12 gence recovery, barring (c) a or was caused by employ-' a risk that he assumed as an incident to his negative any negligence in ment, which also would effect part on the defendant. this assignment negligence

The first is that de- negligently fendants located and maintained so (or post) close to the track the track close so riding that a on the a switchman box car could pass unques- not tionably it without struck. The evidence proximity

shows such and track and anything, support showing little, more. such Does allegation negligence? In does other words, fact that mere so maintained close that a switchman the side of a box car negligence? could not it, clear constitute There was no attempt part nor does show, appear, ground it otherwise there was sufficient Company Milling available to the for the tracks under apart to have constructed further been shed 220 COURT MISSOURI. SUPREME OF y. Rock consequently spaces posts tracks between practicable for the feasible that it was widened, Milling Company maintenance construction buildings appliances for the efficient industry posts placed prosecution its to have entirely, away or that the with them or. done elsewhere Company Railway else could have tracks located required at’ its hands where and rendered the service respect Company. Milling in this Plaintiff’s case operation exclusively on the notion that the mere rests proximity such close to' a of cars a track over negligence. regardless In of all other is conditions, operation practical no doubt, of railroads there are, especially many platforms those and other structures, plants, industrial are neces in connection used sarily switch- the tracks that brakeman or close to so safety pass a mov man them on the side of can dangerous inherently ing are car. That situations such dangers beyond controversy, incident to but such are is negli operation of railroads aird not arise do unnecessarily only gence. are It is such structures when dangerous proximity the tracks that maintained negligence. v. [Morris maintenance constitutes such Pryor, 350; 124; Railroad v. Ill. Vallowe, Mo. 64; Railroad, Scidmore v. McDade, 191 U. S. Railroad 188.] 89 Wis. given structure case such

Whether necessity justified situation is, sometimes a the court and facts, attendant Murphy jury. In Mr. Railroad, others signal it is a structure said when like 111-119, placed or fence is a railroad *13 discharge company that in servants, when the duty, injured fault of his is without struck liability company part, Additional the the is fixed. Pryor, proof in such case. is not In Morris v. predicated negligence supra, the as basis of the .of a curved railroad was the maintenance action plant. .the coal bin of an industrial The its relation in 22Í TERM, Yol. 280’] Ford v. Rock

effect of car feet forty-two the curved track was a at the unloaded position coal-bin a to be long in standing a stood at sufficient a switchman to permit distance or move the car with safety, stand between bin car portion when its middle in was moved swung towards inside of the moved slowly curve the coal-bin noth toward and crushed There him. was ing indicate that did do company the railroad its. best, consistently with successful loca operation, tion and construction the track on line adopted. held as matter negligence We law that no was shown. Between the situation considered in Mur phy case and that Morris is a ease there wide wherein the construction and question negligent field for maintenance 263 Mo. jury. Railroad, is [Fish Charlton 106-121; Railroad, Mo. In the 413-440.] case last cited the defendant was company railroad deemed negligent because there “no legitimate necessity crane so close to a maintaining water passing to a brakemian line of his duty.” In the case, Pish was also which water crane case, lack of necessity apparent structure so close to en maintaining the track as to danger railroad operatives controlling thought there was sufficient evidence to holding take negligence defendant’s to the jury. In the instant case there were not sufficient facts proof warrant either the court or the jury in finding maintained unnecessarily, neg and hence ligently, close to the post.

II. The second ground alleged negligence, one on ease was only to the jury submitted far so receiver concerned, was the defective condition of the track post- which

caused the ears in it. sway passing- toward petition alleges in a paragraph preceding Defective Track. located, post'was per maintained remain at mitted to place which close *14 MISSOURI. OF SUPREME COURT Ry. Co. Rock Island riding on the of track that a switchman side the west pass being- not it west of a box car without could side true, If this struck. and the conclusive- allegations! ly pleading,' the bound his would post even there had been no been struck the have place passing track that to the caused low in' lo- sway that the therefore, it. seem, would toward It post to the track cation close maintenance so the proximate the of Ms efficient cause mere the concomitant defective condition track the Respondent it. contends that in wise contributed to argument that the here on account brief and post main- condition the track the was located on the that a switchman so close tained pass peti- not struck. it without could phase any construction. One will such tion bear post located that was not the evidence tends to show the on so close to switchman maintained track that the that clear viz.: it, the side plaintiff, a car would partly leaning around who was end pdsts hugging pass safely two car, did located Mm. one that same the track struck distance from pleader alleged negligently lo- that Had the defendant (or cated so to the track close maintained post) so close negli- a switchman the side of car, on a box gently permitted near become repair passing remain swayed out of so that cars alleged it, toward in the alterna- and further negligence, two other, tive or the injury, plaintiff’s concurrently, a case have would caused prop- jury, go made under been on’the evidence to question defec- whether er on the instructions, concurrently independently caused, tive track injury. pleaded' plaintiff’s As location jury go was not entitled issue. pleading, however, the

Aside because based stand, cannot inconsistent verdict Yol. 280] OCTOBER TERM, 19-19.

Ford v. Rock Island findings jury. against It Milling found Company g'rounds solely lo cated and maintained the track a switchman *15 on of pass being- box car side and could without independent post, struck, that the location of of any proximate other fact was cause circumstance, injury, against solely receiver of defendant ground the defec that caused required They tive condition of the track. were alleged negligent find act con that one injury, that curred of the other to cause separa,tA presents anomaly that the verdict two operat respectively, negligence, acts of of two defendants inury. independently ing causing same other, each assignment negligence III. The third is that plaintiff defendants "failed to warn thaf said dangeronsly near said track." If the maintenance proximity and track in such close was not negligence, as must he assumed in the absence Warning.. proof contrary, peril arising to the there plaintiff's employment. from was incident to the Whetli depends entirely er the assumed this risk knew, ordinary whether he the exercise of care known, would have' of it. He cannot be held' to have as~ totally ignorant. sumed a risk of which he was danger If the was unknown to and would not be ~s ordinary certained him in th~ exercise of care and. prudence, duty it became the of the defendant receiver give warning and for a failure to do so he would be [Murphy Railroad, supra, liable. v. l. c. 119. Railroad Vallowe, supra; 684, 15.] 18 R. C. L. n. Under such duty ordinary circumstances it was his to exercise care possible peril to minimize as far aa this that was neces sarily plaintiff's employment, incident if such is the Dailey, [Railroad 291.] f act. 179 Fed. There nothing in the evidence to show that such hazards a~ frequent occurrence, the one in were' of either yards plaintiff worked, in which or on railroads COURT OF MISSOURI. SUPREME

Ford v. Rook generally. contrary it to show that On the tended extremely exceptional. then that, It be said cannot “ordinary” risks matter one of law, plaintiff by employment the exercise ordinary He that know. testified care bound to injured prior he never under been he was had to the time before never occasion mill he had had shed, positions posts time to observe relative th© knowledge that he had whatever tracks, and the day. respect testified that on the thereto. further H© approach was, car, he hurt, that he was on which possible along south the track the shed, he looked ed appeared what him obstructions; saw from the that he could so far easily clear it car; while having these observations reached after made’ *16 danger gave that there conclusion no his atten he difference, between aver tion to hand. work at age people power is in the of accurate observation well said matter cannot be law and it as a known, posts danger arising nearness of the to pre open was so and obvious will knowledge [Charlton of it. v. Rail to have sumed had supra.] Although not this issue was road, submitted, jury. ample evidence take it to the there to foregoing paragraph have we said What disposes questions connection also of raised assumption contribu- the defenses risk based negligence. tory case bewill

IV. As another trial proper to attention some of the in is to call deemed given re at the structions instance of are to the effect that the receiver not ceiver, which Dangerousresponsible main- the location for k. Trac plaintiff, struck 0£ the ,|.e;aaQce negligent by installa reason its he not and that These the evidence. tion maintenance as disclosed involve misleading, in fact are do if instructions 280] TERM, Yol. v. Rook misconception

an entire If law. track was negligently dangerously maintained near receiver is liable. The master is to or bound exercise dinary place employees care make the where his work reasonably safe, and contracts to where he do work premises another, retains direction general applies, control of the rule and he work, safety must exercise same care for the his em ployees imposes prem the law on his own 1mm Foundry [Clark ises. Mo. Co., c. 454; l. Penn. 460.] Nace, Steel Co. v. 113 Md. Defendant re required operate ceiver was switch law yard tracks mill under conditions employees, practicable feasible dangerous conditions to be If such removed. he had such control such removed conditions he have could Company required Milling have could himself^ change, or to have done so, refused, until.such do switching. [Devine 166.] Delano, Ill. Milling Company negligently

IfV. maintained question dangerously track, railroad upon it is also liable inflicted thereby. It is him fundamental law that the owner or occupant building cli of land or who invites, by implication rectly in or Liability of Milling Company. go

duces others to thereon therein premises persons duty owes such to have his give warning reasonably of latent safe condition and *17 perils. arranged itWhen with the defend or.concealed switching ant receiver to the mill do in its about anticipate it it was elevator knew was bound to that customary in usual and for switchmen brakemen and switching upon cars to be the ladders on the of sides duty being, moved, cars that hence were was it posts unnecessarily maintain structures not other dangerous proximity [Clark in the Rail tracks. Ryan 621.] Mo. 190 Mo. road, Co., 396; Transit ques- If the in it to have maintained was SUPREME COURT MISSOURI. OE Ford v. Rock person

fcion pass close so the track that could not oar -without the and the of dan struck, ger open therefrom not to a switch- obvious discharge duty man in while the in usual his the customary way ordinary the exercise care would it, show, have discovered evidence tends the danger then such a latent or concealed within duty meaning.of the Mill rule, it was warning. plaintiff [Glas ing Company given to have para pointed 180.] out As Rothschild, er v. 221 Mo. sufficient, graph opinion, 1 of this the evidence was proxi negligent post in maintenance of to show the giving in mity reason track, to the ample evidence error, struction was there go negligent warn jury failure Milling Company, defendant hence demurrer evidence, was well ruled. Milling Company over the ob introduced VI. tending plaintiff jection to show that evidence switching engaged in latter was of wheat which the shipments, and. interstate his time were- at was) em the time thereof reason ployed On this show- commerce. interstate Company appellant Milling insists i^g Interstate Commerce. liability, any, under arises common .its governed law,, while that of the receiver is defendant solely Employers’ Liability and- Act, the Federal misjoinders, of defendants and hence that there both are misjoinders asserted of action. Such causes all first time at below conclusion court grounds the de then further evidence, appears Nothing then offered. murrer to the evidence petition drawn an inference can which- employed injury in at the time his respective nothing answers interstate commerce; charges suggests petition defendants both even it. The liability. receiver If awith common-law per- immunity therefrom, waive wished to *18 Yol. 280] 1919. TERM, '227 Railways

Banks v. K. C. possible ceived what concern it can be to the defendant Milling Company. Milling Company If, however, right question misjoinders had a raise ground assigned, it by pleading waived it over. We point against appellant rule the Milling Company. [Taber v. S. 186 W. Railroad, 688; Mims, Railroad Railways 532; U. S. Granahlv. United Mo. Co., 197 App. Railways 495; 326.] Johnson v. Co., 247 Mo. Appellant point, apparent

VII. receiver makes the ly, liability, in this court, first time any, governed Employers’ Liability solely by is Act. be Not court raised Waiver. pleading,of precluded low bv sort, some is raising- supra.] [Taber now. Railroad, judgment is reversed For the errors noted with the in accordance be tried the cause remanded expressed. herein views CC., Brown, concur.

Small and opinion Rag- foregoing PER CURIAM:—The ofAll opinion adopted the court. C., is land, judges concur. RAILWAYS v. KANSAS CITY BANKS ESTHER Appellant. COMPANY, One, December Division Interpreted by Carrier and Instruction: Petition: 1. NEGLIGENCE: susceptible of petition Degree is Passenger: Care. Where the by a undertaking interpreted a cause action to state plaintiff’s inter- against carrier, instruction passenger alleged adjudging errors any it, prets will considered be so exists, passenger and carrier relation of Where the committed. degree highest Where of care. duty exercise is to the carrier’s required. ordinary exists, is care relation no such Misleading Crossing: Passenger Instruction. At and Carrier: 2. -: ordinary crossing applicable cases An instruction which