place could be used by a prospective passenger upon a freight train. 2. CARRIERS 282-NEGLIGENCE EVIDENCE. The mere fact that, when a prospective passenger on a freight train trespassed on a part of the right of way not intended for his use, he was not ejected from the right of way, did not make him an invitee to go into the same place a second time, especially where the dangerous condition was obvious and open to his observation. Woodson, J., dissenting. and then to go out over the tracks of defendants to such caboose. The only passageway, afforded by respondents, to reach said yard office, is a cinder path, bounded on the south by a high board fence and on the north by the south rail of the main passenger track over which respondents' passenger trains are run. Said cinder path is in fact a south boundary of respondents' switchyards. The switchyards, where the yard office is located, contain a large number of tracks, a myriad of switch and signal lights, and switch engines. In these switchyards all of the trains going in four directions out of Appeal from Circuit Court, Jackson Coun- Moberly are made up. Freight and passenger ty; Nat M. Shelton, Judge. Action by Edward H. Hamilton, as administrator of J. N. Hamilton, deceased, against Edward B. Pryor and another, as receivers of the Wabash Railroad Company. Judgment on verdict, after an instruction in the nature of a demurrer to the evidence, and plaintiff appeals. Affirmed. This is a suit for $10,000, brought in the Chariton circuit court by the plaintiff, as administrator of the estate of J. N. Hamilton, deceased, against the receivers of the Wabash Railroad Company on account of the death of the intestate, alleged to have been caused by negligence in the maintenance and operation of the railroad. The accident occurred on October 20, 1914. The deceased was, at the time of his death, unmarried, no children, either natural or adopted. The negligence charged in the petition and relied on in evidence consists in the maintenance of the railway tracks, buildings, and office in the manner described, and inviting their use in the transaction of The answer is a general denial and a plea of contributory negligence, which is denied by the reply. and had business with it. The statement of facts contained in appellant's brief is as follows: "On the 20th day of October, 1914, J. N. Hamilton, deceased, delivered to the respondents, at their station at Salisbury, Mo., for shipment to the National Stockyards, Illinois, one car of cattle, which car the respondents accepted and agreed to deliver at its point of destination. The custom of respondents, where shipments of stock were received at points west of Moberly, was to run the car into the switchyards at Moberly and at that point remake the train for the balance of the journey. Deceased, Hamilton, accompanied the shipment of stock from Salisbury to Moberly. In this particular case the train reached Moberly about 6 p. m. on the 28th day of October, 1914, and the deceased, J. N. Hamilton, was advised that the train would depart for the point of destination about 10:55 p. m. of that date, which was its schedule time. It is not the custom of the company to run their freight cars, on which shipments of stock are loaded, to the main passenger depot in the city of Moberly; but they are stopped at a point about a quarter of a mile west of said main passenger depot. The consignors of the stock accompanying the shipment are put off at said point west of said main passenger depot, and when the shipper boards the train for the latter part of the journey it is necessary and was the custom for him to return to what is known as the yard office, in the switchyards, to obtain information from the person in charge as to the exact location of the caboose on the train which carries his cattle, engines and cars are continually passing to and all times bells and whistles are sounding, all fro over said tracks in said switchyards, and at of which make a condition extremely confusing to one not accustomed to frequenting said board fence mentioned above and the south rail switchyards. The distance between said high of the passenger track is approximately 10 feet until one reaches the east end of the yard office, at which point the distance between the south rail and the northeast corner of the yard office is 6 feet and 2 inches. At a point 4 feet from the northeast corner of the yard office a window is constructed in said yard office, which extends a distance of 8 inches north from the side of the yard office, leaving a clear space at that point of 5 feet 6 inches between said window and the south rail of the main passenger said main tracks extend on either side of said track. Parts of passenger engines passing over rail for a distance of approximately 2 feet, so that, when a passenger engine is passing said yard office at a point opposite the window aforesaid, the clear space is approximately 3 feet 6 inches. The yard office contains two doors, one on the west end and one on the east end. The shippers of live stock who frequented said office for information use either door they choose. On Hamilton, entered said switchyards at a point the night in question, the deceased, J. N. about 300 yards east of said yard office through a turnstile, and was proceeding west along said cinder path to the west door of the yard office for the purpose of procuring information as to his train until he reached a point on the north side of the yard office, as aforesaid. At that point respondents' east-bound train No. 28 passed and the engine thereon struck the said J. N. Hamilton and instantly killed him." Certain exhibits, consisting of a map and photographs, were in evidence, which will be considered in explanation of the statement, as well as testimony which may be helpful in understanding it. At the close of plaintiff's evidence the respondent asked and the court gave an instruction in the nature of a demurrer to the evidence, upon which a verdict was rendered and the judgment entered, from which this appeal is taken. Gilbert Lamb, of Salisbury, and Roy W. Rucker, of Keytesville, for appellant. J. L. Minnis and N. S. Brown, both of St. Louis, and J. A. Collet, of Salisbury, for respondents. BROWN, C. (after stating the facts as above). The sole question presented by this record is whether the plaintiff's evidence made a cause that should, under the pleadings, have been submitted to the jury. This question presented itself in two aspects, the first of which is whether it tends to prove that the respondents were negligent in the dation of such persons as might have business in the yard, and was also connected, through wickets, with the working force that occupied the room on the west side of the building. This work room was forbidden to the pub.c by a sign over the door. Its accommodations to outsiders consisted of one chair. Thus the public was admitted to the yard office through a gate and over a cinder path 10 feet wide, leading to the lunchroom, and ending there in a large open space, which it bounded on the west, and upon which its only public door opened. To get to the private door, to which the deceased is said to have been going, he must have ignored all these plain invitations to pass through the narrow way, the maintenance of which is the wrong charged as the foundation of this suit. construction and maintenance of its yard. I room fitted up with benches for the accommoThe other is whether, if the respondents were negligent in that respect, the appellant was guilty of negligence contributing to the injury which caused his death. While the appellant stood in the relation of a prospective passenger to be carried from Moberly to St. Louis on one of the respondents' trains, the relation was modified by the fact that he was a shipper and caretaker of live stock, to be carried only in that capacity, upon a train devoted to that purpose and in a caboose furnished for his comfort and convenience in the pursuit of the object of his journey. Moberly was the division point on the Wabash Railway between Kansas City and St. Louis. It was also a junction point. Its railway yards were extensive. Many freight trains were made up in them. The east-bound track of the railroad was the south track in the yard. The west-bound main track came next, and still further north were many tracks upon which freight trains, including stock trains, were made up, and from which they started. South of the main east-bound track were the yardmaster's office and general yard office and a lunch room, and some 200 feet east of these was the turnstile by which people entered the yard. In making up stock trains for St. Louis the caboose would stand approximately opposite the yard office, varying somewhat with the length of the train, so that one leaving that office to take the caboose would cross the main and other intervening tracks. The deceased had come to Moberly on the railroad that afternoon with a carload of stock destined for St. Louis, which he intended to accompany. He was 23 years old, bright, strong, and active, engaged in farming and raising and handling stock, of good habits, and had accompanied his stock to St. Louis through these yards on former occasions. His uncle was with him in Moberly, where they attended a celebration held by the Coon Club, which seems to have been a social club with convivial tastes, and an hour or so before it was time for his train to leave his uncle took him to the railway yard in his automobile. He dismounted and entered the yard through the turnstile in a high board fence, which inclosed it on the south, and stood on a cinder path, 10 feet wide, between the fence and the east-bound track. He turned west, passing between the track and the fence for a distance of something less than 200 feet, where the fence turned diagonally away from the railroad track and attached itself to the northeast corner of the lunchroom, which was the first or most easterly of the little group of buildings constituting the headquarters of the yard force. The next of these buildings was the yard office, where the employés handled the yard work. The fence extended from the west line of the lunchroom to the southeast corner of this building, where there was a door entering a [1] Was the railway company negligent in the construction of this plant? If it was not, then the respondents are not negligent in maintaining it, for there is nothing in the testimony to indicate any change in the conditions. It had provided an entrance to its yard at this point perfectly safe, convenient, and ample for all purposes connected with his business. A cinder path 10 feet wide had been established outside its track system leading to a perfectly clear plot of ground, ample in extent and safe and convenient in character, leading into the offices provided for the transaction of his business, as well as into a room where employés and visitors alike might satisfy their hunger. All this seems to have been perfectly done, and no way is suggested how, up to this point, it could be improved. West of this, however, an observation window had been placed in front of the office, facing the track, and extending 8 inches beyond the line of the front in such a manner as to enable the occupant to look up and down the track. The entire structure is alleged to have been negligently placed, because this window approached the track to within a distance of 5 feet 6 inches, so that, when a passenger train went by, its projections extended to a point only 3 feet 6 inches from the window. The alleged negligence consists of this proximity, although there is no evidence tending to show that it did not afford an ample space of perfect safety to a careful man, with the whole situation before him, attempting to use, with ordinary care, this space for passage. There is nothing in the evidence indicating any attempt on his part to do so. The evidence leads us to the question why he did not occupy this space, instead of the space used by the engine in passing, and drops us there. Had the space been greater, with the same result, this question would have remained. He was not only acquainted with the situation, but had all its physical features before him at the time-the projection of the window on one side and the track itself on the other. His final destination was across both these main tracks, and not along engineer in the defendant's service, in charge them, for his caboose sat on one of the many of an engine hauling a train on its road. tracks to the north of them. Had he started While on the trip the hose between the tank to cross after having ascertained its position, and the boiler began to leak, making it neceshis duty of self-protection would have been sary for him to swing outside the tank to to ascertain and realize where the tracks tighten a nut. While doing this he was were, and to be watchful both east and west dragged off by the end of a fence, which exto ascertain the approach of all trains on all tended to within 6 or 8 inches of the bottracks, and his performance of this duty tom of the passing tender and sixteen or would have been the measure of his safety. eighteen inches at the top. The opinion of We fail to see why it was not just as foolish Judge Black in that case placed the right to to put himself in the way of the train on the recover upon the ground that under the evieast-bound track while walking beside it, as dence it was the duty of the plaintiff to run while crossing it. The railroad company had his train upon that track, and to stop the provided a safe, comfortable, and obvious leak, which made it proper for him to take place for him to ascertain the position of his the position outside. Neither of these elecaboose, of which he did not avail himself. ments of necessity or propriety is in this In doing this, and keeping it in a safe condi- case. In Charlton v. Railway, 200 Mo. 413, tion for such use, it performed its full duty, 98 S. W. 529, a brakeman, who, in the pereven though there was another place, not formance of his duty, was climbing the ladnearly so easy of approach and obviously not der on the side of a car in a train being operintended for that purpose, at which it was ated by a crew of which he was a member, possible for him to get the same information. was struck by a water crane too close to [2] The appellant does not seem to dispute the track to permit the performance of the this, but does insist, with vigor and inge- duty in safety, and was fatally injured. The nuity, that by not having put him out, or same questions were involved as in the Murprotested in any form, when he had previ-phy Case, on the authority of which a judg ment for the defendant was reversed. The employé had no choice of a place in which to run the train. In Crawford v. Stockyards Co., 215 Mo. 394, 114 S. W. 1057, the plaintiff was in charge of a train load of stock backing to the docks of the stockyards to be unloaded. In the proper performance of his work he was swinging from the end to a side ladder of one of the cars in the string while it was ously called at the west door for the same information, which he asks us to presume he was seeking on this occasion, it had invited him to again pursue the same dangerous course, and must therefore take measures for his safety in doing so. The same argument would apply, with equal force, to a case in which he had without rebuke, in the presence of the agents of the company, crawled under a car standing upon the track between him and his caboose, and had after-in motion, when he was struck by the door ward met with disaster in an attempt to per- of a chute, which had been opened while the form the same feat. The reason for this is car was moving, and was injured. This court evident. In each case the danger, as far as held "that the defendant had reason to anit existed, is clearly open to all persons of ticipate that a stock attendant was liable to ordinary intelligence at the time of the per- be found doing just what the plaintiff was formance of the act. In the example we doing when the accident occurred, and that have given a car is standing on the track for it owed him the duty to keep its gates shut the very purpose of being moved, and the sec- while the train was passing"; that is to say, ond trial is made at the very instant that the plaintiff was performing his duty where purpose is being accomplished. So in this he must perform it, and had the right to excase all the facts were open to the observa-pect that it would be kept in its normal contion of the deceased at the time he made his first trip over the fatal ground; but it was safely timed, as no train was approaching. This result gave him no reason for the absurd assumption that it would always remain clear. Nothing but watchfulness could have averted the disaster in either case. The danger was such that the facts in which it consisted were open and visible at every stage of the transaction. The appellant cites numerous cases, several of them determined in this court, in support of his contention. The Missouri cases assist us greatly in making an intelligible statement of rules long established in this state covering the whole ground of this controversy. In Murphy v. Railroad, 115 Mo. 111, 21 S. dition. Upon the question of contributory negligence it held that "if the plaintiff saw the gates open he was guilty of negligence in not taking care not to come into collision with them." We can find nothing in this case to assist the appellant. In George v. Railroad, 225 Mo. 364, 125 S. W. 196, this court held, in an opinion by Judge Woodson, setting forth its reasons with much clearness and detail, that the law will not presume a locomotive engineer to be informed of the exact distance from the road upon which he runs to a building near enough to endanger him under possible circumstances for which provision should be made by his employer. The duty of providing for the safety of the employé in such respects lies rule itself nor any of the reasons which support it apply to a case where one, invited to a door maintained for the purpose of giving convenient and ample access to the house and to all it contains, turns away and seeks to enter by sufferance by a back way, dark and narrow, and beset with mortal perils. As this court said in the George Case, where there are two ways of performing a duty, the least dangerous one should be selected, subject to certain limitations and exceptions, one of which is that, if the conditions are such that the safer one cannot be used, the law will permit the selection of the more dangerous. Id., 225 Mo. loc. cit. 402, 125 S. W. 196. that would leave only 11 inches between the tip of his shoulder and the outer line of the engine. Upon that state of facts, can it be declared as a matter of law that the deceased, while walking along that line and by coming in contact with the engine, was guilty of such contributory negligence as to bar a recovery in this case? I think not. We know, from common knowledge and observation, that a man in walking, and especially alongside of rapidly moving objects, is liable to lean or sway from one side or the other; also that rapidly moving engines and cars passing over railroad tracks constantly do the same thing. The law is also well settled that the court and jury have a right to take into consideration their common knowledge and common experience in passing upon questions of fact. So, if we apply this rule to the facts of this case as disclosed by the record, it seems to me that the plaintiff made out a case for the jury; that is, whether the passageway provided by the defendant, for him and others to use in going to and fro in the transaction of their business, was a reasonably safe place for that purpose, and whether or not the deceased was exercising ordinary care for his own safety while so walking along said way to the caboose in which he was to take pas We have earnestly endeavored to construct some plausible reason for the selection of the dangerous way in this case, but even with the assistance of the excellent brief of appellants' counsel, and a very able and interesting oral argument, have failed. Many logical roads lead up the cinder path and to the entrance of the office, but there they vanish. From that point the respondents have little to do with the unfortunate occurrence, except to run their train over a track and through surrounding conditions designed for that purpose. The question of the alleged negligence of the respondents and that of the deceased are so interdependent that we have preferred to consider the facts relating to them as a single proposition. Having reached the conclusion that there is no evidence tending to show that the respondents were negligent in the maintenance of the situation in their yard involved in this controversy, it is unnecessary to speculate (Supreme Court of Missouri. Division No. 1. upon the question whether the unfortunate occurrence resulted from negligence on the part of the deceased or from accident. The judgment of the Chariton county cir cuit court is affirmed. RAILEY, C., concurs. PER CURIAM. The foregoing opinion of BROWN, C., is adopted as the opinion of the court. All concur, except WOODSON, J., who dissents in separate opinion. BOND, P. J., concurs in result. WOODSON, J. (dissenting). The record in this case shows that the clear space between the outer line of the engine and that of the projecting window mentioned in the opinion of our learned Commissioner was only 3 feet and 6 inches; and we know from observation and common knowledge that a good-sized man measures about 20 inches from the tip of one shoulder to that of the other, and should it be assumed that the deceased, at the time he was injured, was walking along the center line of said space (which is as favorable to defendant as it could ask in a demurrer to the evidence), sage. I therefore dissent from the majority opinion. SPENCER v. WYANDOTTE CONST. CO. et al. (No. 19173.) March 4, 1918.) ASSIGNMENTS 31-CONTRACTS. Where a firm enters into a contract to fur nish ballast to a construction company which agrees to furnish cars, and then enters into an identical contract with another in its own name, but at a less price, there is no assignment, and the latter cannot sue the construction company for breach of contract. Appeal from Circuit Court, Jackson County; Kimbrough Stone, Judge. Action by W. M. Spencer against the Wyandotte Construction Company and others. Judgment for defendants, and plaintiff appeals. Affirmed. This is a suit for damages arising from the breach of a contract dated February 3, 1912, between Corrigan, Murray & Spencer, a partnership composed of the plaintiff, Emmitt Corrigan, and William T. Murray, called the contractors, on one side, and the defendant Wyandotte Construction Company, called the company, on the other side. The petition states that Corrigan and Murray have-refused to join with plaintiff in the action, and are therefore made defendants, so that they can assert their interest if any. The petition consists of two counts. The first sets out the contract referred to, by the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and indexes terms of which the contractor agreed to furnish the company or its agents crushed stone for ballasting the Kansas City, Clay County & St. Joseph Railway from North Kansas City, Mo., to Excelsior Springs, Mo., the quantity to be based approximately on 2,000 cubic yards per mile of single track, and also to furnish such of the material as would be needed for crossing approaches. It was to be delivered on cars to be furnished by the company, at the rate of 1,000 yards per day of 10 hours. Deficiencies in the daily amount specified were, at the request of the company, to be supplied by running at night. The contractor was to furnish all tools and machinery necessary to crush the stone, and all labor, contingent expenses, - and incidental work to be done to get the product into the cars. The company agreed to permit the contractor to quarry the stone from "the right of way," to furnish and construct the necessary tracks to connect the crusher with the railroad, as well as all storage tracks and storage grounds, and to pay the contractor 68 cents per cubic yard for all stone so furnished, payable from time to time on approximate estimate by "the engineer." Bond was required from the contractor for the performance of the work. It then pleads another contract which it sets out in hæc verba, dated February —, 1912, "between W. M. Spencer of Excelsior Springs, Mo., party of the first part, hereinafter called the constructor, and Corrigan, Murray & Spencer, of Missouri, party of second part, hereinafter called the company." This contract is practically, after the introduction quoted, in the same words and figures as the agreement between Corrigan, Murray & Spencer and the Wyandotte Construction Company, except that the compensation to be paid to the contractor (plaintiff) is fixed at 61.2 cents per cubic yard instead of 68 cents, the partial payments were to be made on approximates of the engineer of the Wyandotte Construction Company, instead of simply the engineer, and no bond was required from plaintiff. The count then proceeded as follows: "That by the execution of said contract it was the intention of all parties thereto to assign to this plaintiff the interest of said William T. Murray and Emmitt Corrigan in said contract heretofore entered into with this defendant and to substitute this plaintiff for said Corrigan, Murray & Spencer in the performance of said contract with defendant, and the said interest of Murray and Corrigan was thereby transferred to this plaintiff. That the said parties attempted to accomplish said purpose by substituting the name of said Spencer for Corrigan, Murray & Spencer, and substituting the name of Corrigan, Murray & Spencer in place of the Wyandotte Construction Company in a copy of said contract heretofore entered into with defendant. That through its agents and employés, to perform its It concluded by charging that the defendant construction company failed and refused to furnish cars as required by the terms of its contract, so that his force was required and compelled to remain idle during 468 hours and 55 minutes during the daytime, by which plaintiff was damaged in the sum of $15,000, for which he asked judgment. The second count sets out these same contracts, and charges the same intention to assign the first by the execution of the second, and the prosecution of the work with the full knowledge of defendant company. It then charges the request of defendant to operate at night, the compliance of plaintiff, the failure of defendant to furnish cars for the removal of the product, and the consequent damage to plaintiff in the sum of $10,000, for which judgment is asked. Defendant Corrigan demurred generally to each count of the petition. The construction company demurred to both counts on the following grounds: "(1) That there is a defect of parties plaintiff in said petition. (2) Said petition does not state facts sufficient to constitute a cause of action." These demurrers were sustained, plaintiff dismissed as to defendant Murray, and declining to plead further this judgment was entered for the other defendants. John M. Cleary, of Kansas City, and William A. Craven and Harris L. Moore, both of Excelsior Springs, for appellant. Hogsett & Boyle, of Kansas City, for respondent Corrigan. John E. Dolman, of St. Joseph, and Inghram D. Hook and Cooper, Neel & Wright, all of Kansas City, for respondent Wyandotte Const. Co. BROWN, C. (after stating the facts as above). I. This is a suit against the de fendant Wyandotte Construction Company, a corporation, founded upon a contract between that company and a partnership named Corrigan, Murray & Spencer, of which the That by virtue of said contract this plaintiff was one of the copartners. plaintiff immediately began the performance, original codefendants with the company, and thereafter fully performed the same behalf of Corrigan, Murray & Spencer with the Corrigan and Murray, were the others. The full knowledge, acquiescence, and consent of de- undertaking of the partnership was to pre on The |