Graham v. Thompson

Full title: ZONA GRAHAM, Administratrix of Estate of THOMAS GRAHAM, v. FRANK A…

Court: Supreme Court of Missouri, Court en Banc

Date published: Jul 12, 1948

357 Mo. 1133 (Mo. 1948)

212 S.W.2d 770

Opinion

No. 39898.

May 27, 1948. Rehearing Denied, July 12, 1948.

1. NEGLIGENCE: Railroads: Master and Servant: Federal Employers' Liability Act: Liability of Carrier Limited to Employees: Missouri Lessor-Lessee Statute Not Applicable. Where an employee of the Terminal Railway Company was killed by a Frisco train operated upon a track leased to the Frisco by the Terminal, the Frisco is not liable under the Federal Employers' Liability Act. By the express terms of said act the carrier is liable to its employees only, and Congress intended an employment in fact and not one created by a legal fiction. The federal act superseded all state laws and its coverage may not be extended by applying Sec. 5163 R.S. 1939, the Missouri lessor-lessee statute.

2. NEGLIGENCE: Railroads: Master and Servant: Federal Employers' Liability Act: Terminal Employee Switching Frisco Cars: Connecting Carrier: Not Frisco Employee. The fact that the Terminal employee was switching a Terminal freight train which included two cars which were later delivered to the Frisco on an exchange track in Kansas when he was struck by a Frisco train on an adjoining track in a Missouri yard cannot serve as a legal fiction to make said switchman an employee of the Frisco. Terminal's movement was a separate and distinct operation of a connecting carrier on a track which the Frisco was not licensed to use.

3. NEGLIGENCE: Railroads: Master and Servant: Federal Employers' Liability Act: Employee of Lessor Not Employee of Lessee. The employee of a lessor railroad does not automatically become the employee of a lessee railroad for the purpose of the Federal Employers' Liability Act if injured by the lessee's sole and separate operations.

4. NEGLIGENCE: Railroads: Trial: Federal Employers' Liability Act: Terminal Bound By Theory of Liability. Terminal is bound by its theory that if the Frisco was negligent the Terminal would be liable.

5. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Switchman Struck by Train: Failure to Warn: Submissible Case Against Terminal. There was evidence from which the jury could find that it was the duty of the engineer of the Frisco train to sound his whistle when the switchman was in a position of peril and oblivious to the approach of the train. There was a submissible case against the Terminal based upon negligence of the Frisco in failing to sound such warning.

6. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Failure to Warn: Instruction Upheld. Plaintiff's instructions on the humanitarian duty to warn upon discovery of peril was not erroneous.

7. EVIDENCE: Railroads: Admission of Railroad Rules Not Prejudicial. Admission of certain railroad rules as to adoption of a safer course in case of doubt and the maintenance of a constant lookout ahead was not prejudicial when the case was submitted solely on the discovered peril theory.

LEEDY, C.J., concurring in part and dissenting in part.

8. NEGLIGENCE: Railroads: Master and Servant: Federal Employers' Liability Act: Missouri Lessor-Lessee Statute Applicable. Sec. 5163 R.S. 1939, the Missouri lessor-lessee statute, may be invoked under the Federal Employers' Liability Act to treat the deceased switchman as an employee of both the Terminal and the Frisco so as to render the Frisco liable under the federal act. And the Terminal cannot escape liability by the contention that it was an independent contractor with reference to a switching movement of two Frisco cars on the adjoining track.

9. NEGLIGENCE: Railroads: Federal Employers' Liability Act: Switchman Struck by Train: Duty to Warn: Submissible Case. There was an issue of fact as to whether the switchman was oblivious of the approach of the train.

10. EVIDENCE: Railroads: Admission of Rules Not Error. Admission of railroad rules for evidentiary purposes was not error, especially when the liability was hypothesized upon actually discovered peril.

11. NEGLIGENCE: Railroads: Time of Warning: Submissible Issue. There was a submissible issue as to whether the warning should have been given sooner.

Appeal from Jackson Circuit Court. — Hon. Emory Wright, Judge.

REVERSED AS TO APPELLANT FRANK A. THOMPSON, TRUSTEE AND AFFIRMED AS TO APPELLANT KANSAS CITY TERMINAL RAILWAY COMPANY.

M.G. Roberts, E.G. Nahler, Thos. E. Deacy and Milligan, Kimberly Deacy for appellant Frank A. Thompson, Trustee.

(1) Under all of the evidence the deceased, Thomas Graham, at the time of his fatal injury and death was not employed by this defendant within the meaning of the Federal Employers' Liability Act and plaintiff was not entitled to recover judgment against this defendant under said act. Sec. 51, Title 45, United States Code Annotated; Hull v. Philadelphia Ry. Co., 252 U.S. 475, 40 S.Ct. 358; Robinson v. Baltimore Ohio, 237 U.S. 84, 35 S.Ct. 491; Stevenson v. Lake Terminal Ry. Co., 42 F.2d 357; Chicago, R.I. Pac. R. Co. v. Bond, 240 U.S. 449, 36 S.Ct. 403; Schlappe v. Terminal R. Assn. of St. Louis, 339 Mo. 562, 98 S.W.2d 616; Giesking v. Litchfield M. Ry. Co., 339 Mo. 1, 94 S.W.2d 375; Chicago Alton R. Co. v. Wagner, 239 U.S. 452, 36 S.Ct. 135; Friedman v. Vandalia R. Co., 254 F. 292; 51 C.J., sec. 1167, pp. 1105-6. (2) Under all of the evidence it was not established that this defendant was engaged in interstate commerce at the time of the casualty and that at such time the deceased, Thomas Graham, was an employee of this defendant any part of whose duties as such would be the furtherance of interstate or foreign commerce or in any way directly or closely and substantially affecting such commerce. Sec. 51, Title 45, United States Code Annotated; Hull v. Philadelphia Ry. Co., 252 U.S. 475, 40 S.Ct. 358; Robinson v. Baltimore Ohio, 237 U.S. 84, 35 S.Ct. 491; Stevenson v. Lake Terminal Ry. Co., 42 F.2d 357; Chicago, R.I. Pac. R.R. Co. v. Bond, 240 U.S. 449, 36 S.Ct. 403; Schlappe v. Terminal R. Assn. of St. Louis, 339 Mo. 562, 98 S.W.2d 616; Giesking v. Litchfield M. Ry. Co., 339 Mo. 1, 94 S.W.2d 375; Chicago Alton R. Co. v. Wagner, 239 U.S. 452, 36 S.Ct. 135; Friedman v. Vandalia R. Co., 254 F. 292; 51 C.J., sec. 1167, pp. 1105-6. (3) The deceased, Thomas Graham, was an employee of the Kansas City Terminal Railway Company and not an employee of this defendant, the Kansas City Terminal Railway Company, in moving and transporting the Pennsylvania and Southern Pacific cars over its line of railroad was acting as an independent contractor and connecting carrier. Its employee, Thomas Graham, did not become an employee of this defendant merely because at, or immediately prior, to his death he was engaged in assisting in the movement of said cars, and plaintiff by reason thereof was not entitled to recover against this defendant under the Federal Employers' Liability Act. Sec. 51, Title 45, United States Code Annotated; Hull v. Philadelphia Railway Co., 252 U.S. 475, 40 S.Ct. 358; Robinson v. Baltimore Ohio, 237 U.S. 84, 35 S.Ct. 491; Stevenson v. Lake Terminal Ry. Co., 42 F.2d 357; Chicago, R.I. Pac. R. Co. v. Bond, 240 U.S. 449, 36 S.Ct. 403; Schlappe v. Terminal R. Assn. of St. Louis, 339 Mo. 562, 98 S.W.2d 616; Giesking v. Litchfield M. Ry. Co., 339 Mo. 1, 94 S.W.2d 375; Chicago Alton R. Co. v. Wagner, 239 U.S. 452, 36 S.Ct. 135; Friedman v. Vandalia R. Co., 254 F. 292; 51 C.J., sec. 1167, pp. 1105-6. (4) Thomas Graham was not an employee of this defendant by reason of the fact that this defendant was operating a passenger train over track 2 of the Kansas City Terminal Railway Company as lessee, or licensee, and plaintiff was not entitled to recover under the Federal Act by reason thereof. Chicago Alton R. Co. v. Wagner, 239 U.S. 452, 36 S.Ct. 135; Friedman v. Vandalia R. Co., 254 F. 292. (5) Plaintiff was not entitled to recover under the Federal Employers' Liability Act from this defendant by reason of Section 5163, R.S. Mo. 1939, and the deceased was not an employee of this defendant under the terms and provisions of said section. The Federal Act controls over any state statute and decision which may be contrary to the provisions of the Federal Act. Francis v. Terminal R. Assn. of St. Louis, 193 S.W.2d 909; Schlappe v. Terminal R. Assn. of St. Louis, 339 Mo. 562, 98 S.W.2d 616; Mooney v. Terminal R. Assn., 176 S.W.2d 605; Baltimore Ohio R. Co. v. Kepner, 314 U.S. 44, 62 S.Ct. 6. (6) Plaintiff's evidence failed to establish a submissible humanitarian case. There was no substantial evidence to establish that the deceased was oblivious of his peril and plaintiff's own evidence established that he was not oblivious; Pentecost v. St. Louis Merchants Bridge Terminal R.R. Co., 334 Mo. 576, 66 S.W.2d 533; Jordan v. St. Joseph Ry., L., H. P. Co., 335 Mo. 319, 73 S.W.2d 205; Crawford v. Byers Trans. Co., 186 S.W.2d 754. (7) An alarm by whistle was promptly given as soon as Graham's peril was actually discovered by this defendant's fireman and engineer. There was no duty on the part of the fireman and engineer to warn the deceased until he was actually seen to be in a position of peril and oblivious thereof Rashall v. St. Louis, I.M. S. Ry. Co., 249 Mo. 509, 155 S.W. 426; Evans v. Wabash Ry. Co., 178 Mo. 408, 77 S.W. 515; Mayfield v. K.C. Southern Ry. Co., 337 Mo. 79, 85 S.W.2d 116; Goodwin v. Mo. Pac., 335 Mo. 398, 72 S.W.2d 988; Martin v. Wabash, 325 Mo. 1107, 30 S.W.2d 735. (8) Plaintiff's Instruction No. 1 imposed a greater duty on the defendants than that imposed by law. Goodwin v. Mo. Pac., 335 Mo. 398, 72 S.W.2d 988; Martin v. Wabash, 325 Mo. 1107, 30 S.W.2d 735; Evans v. A., T. S.F., 345 Mo. 145, 131 S.W.2d 604; Degonia v. Railroad, 224 Mo. 564, 123 S.W. 807; Jones v. Railway Co., 325 Mo. 1153, 30 S.W.2d 481. (9) The instruction did not require the jury to find facts which would entitle plaintiff to recover under the Federal Employers' Liability Act and that the deceased, Thomas Graham, at the time of his death, was in the employ of this defendant. Giesking v. Litchfield Madison Ry. Co., 339 Mo. 1, 94 S.W.2d 375. (10) There was no evidence that the deceased was oblivious to his peril. (11) Plaintiff's Instruction 4 charged the jury that if the jury found the issues for the plaintiff a verdict against both defendants should be returned. Said instruction unlawfully assumed that the deceased was an employee of this defendant under the Federal Employers' Liability Act and required the jury to return a verdict against this defendant without first finding any facts which would entitle the plaintiff to recover under the act and denied unto this defendant the right to a determination of its liability under the act by the jury. Giesking v. Litchfield Madison Ry. Co., 339 Mo. 1, 94 S.W.2d 375. (12) Plaintiff's Instruction 5 and in overruling defendant's objections thereto was in direct conflict with plaintiff's Instruction 2 and did not provide for diminution of damages by reason of the contributory negligence of deceased. (13) The court erred in refusing to give defendants' Instruction lettered D and in sustaining plaintiff's objections thereto. Clark v. Santa Fe, 319 Mo. 865, 6 S.W.2d 954. (14) The court erred in refusing to give defendants' Instruction lettered F as offered by defendants and in sustaining plaintiff's objections thereto for the reason that if the deceased saw, or was aware of the approach of the train in time to have avoided entering a position of peril, or to have extricated himself therefrom, there was no duty to warn. Clark v. Santa Fe, 319 Mo. 865, 6 S.W.2d 954; Jordan v. St. Joseph Ry., Light, H. P. Co., 335 Mo. 319, 73 S.W.2d 205; Pentecost v. St. Louis Merchants Bridge Term. R. Co., 334 Mo. 576, 66 S.W.2d 533. (15) The court erred in allowing plaintiff to introduce into evidence various rules of the two defendants which were not pleaded in plaintiff's petition. Nivert v. Wabash, 232 Mo. 637, 135 S.W. 33; Kirkland v. Bixby, 282 Mo. 462, 222 S.W. 462; Evans v. Santa Fe, 345 Mo. 147, 131 S.W.2d 604; Jones v. Railway Co., 325 Mo. 1153, 30 S.W.2d 481.

S.W. Sawyer, John H. Lathrop, James F. Walsh and Sam D. Parker for appellant Kansas City Terminal Railway Company.

(1) Deceased Graham was, under the undisputed facts, an employee of the Frisco within the meaning of the Federal Employers' Liability Act by virtue of the Missouri Lessor Statute, so that the case was properly submitted against both defendants under the Federal Act. 45 U.S.C.A., Sec. 51; Sec. 5163, R.S. 1939; Spaw v. Kansas City Term. Ry. Co., 198 Mo. App. 552, 201 S.W. 927; Smith v. Thompson, 182 S.W.2d 63; Armstrong v. Chicago, W. I.R. Co., 350 Ill. 426, 183 N.E. 478; North Carolina R. Co. v. Zachary, 232 U.S. 248, 34 S.Ct. 305; Miller v. Terminal R. Assn., 349 Mo. 944, 163 S.W.2d 1034; Francis v. Terminal R. Assn., 193 S.W.2d 909. (2) There is no substantial evidence to support a finding that deceased was oblivious of his peril. Pentecost v. St. Louis Merchants Bridge Term. R. Co., 334 Mo. 576, 66 S.W.2d 533; Jordan v. St. Joseph Ry., etc., Co., 335 Mo. 319, 73 S.W.2d 205; Crawford v. Byers Transportation Co., 186 S.W.2d 756. (3) An alarm warning was promptly given when deceased's peril was actually discovered and therefore defendants were not as a matter of law guilty of any negligence. Rashall v. St. Louis, I.M. S. Ry. Co., 249 Mo. 509, 155 S.W. 426; Evans v. Wabash Ry. Co., 178 Mo. 508, 77 S.W. 515; Mayfield v. Kansas City So. Ry. Co., 337 Mo. 79, 85 S.W.2d 116; Goodwin v. Mo. Pac. Ry. Co., 335 Mo. 398, 72 S.W.2d 988; Martin v. Wabash Ry. Co., 325 Mo. 1107, 30 S.W.2d 735. (4) The court erred in giving plaintiff's Instruction 1 because it is conflicting and confusing in that it declares in the abstract that defendants owed deceased a duty to use ordinary care not to injure him and then requires a finding that that duty exists only if and after the train operators actually saw deceased in a position of peril. Martin v. Wabash Ry. Co., 325 Mo. 1107, 30 S.W.2d 735; Evans v. Atchison, T. S.F. Ry. Co., 345 Mo. 147, 131 S.W.2d 604; Degonia v. Railroad Co., 224 Mo. 564, 123 S.W. 807; Jones v. Railway Co., 325 Mo. 1153, 30 1138 S.W.2d 481. (5) The court erred in receiving into evidence various rules of the defendants which were not pleaded in plaintiff's amended petition or relied upon as a basis for recovery. Nivert v. Wabash Ry. Co., 232 Mo. 627, 135 S.W. 33; Kirkland v. Bixby, 282 Mo. 462, 222 S.W. 462; Evans v. Atchison, T. S.F. Ry. Co., 345 Mo. 147, 131 S.W.2d 604; Jones v. Railway Co., 325 Mo. 1153, 30 S.W.2d 481.

Ben W. Swofford, Robert L. Jackson, Ronald Shankland and Edward D. Franey for respondent; Swofford, Jackson Shankland and Hay Flanagan of counsel.

(1) The submission under the Federal Employers' Liability Act was proper as to the defendant Kansas City Terminal Railway Company for the reason that it is liable for the negligence of its lessee, the Frisco, under and by virtue of Sec. 5163, R.S. 1939. Miller v. Terminal Ry. Assn. of St. Louis, 349 Mo. 944, 163 S.W.2d 1034; Francis v. Terminal Railway Assn. of St. Louis, 193 S.W.2d 909; North Carolina Ry. Co. v. Zachary, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591. (2) The submission of this case under the Federal Employers' Liability Act was proper as to the defendant Frisco for the reason that under the facts in this case the deceased, Graham, was an employee of that defendant by operation of law and by virtue of Sec. 5163, R.S. 1939. North Carolina Ry. Co. v. Zachary, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591; Smith v. Thompson, 182 S.W.2d 63; Spaw v. Kansas City Terminal Ry. Co., 201 S.W. 927, 198 Mo. App. 552; Miller v. Terminal Ry. Assn. of St. Louis, 349 Mo. 944, 163 S.W.2d 1034; Francis v. Terminal Railway Assn. of St. Louis, 193 S.W.2d 909; Armstrong v. Chicago W. I.R. Co., 350 Ill. 426, 183 N.E. 478; Linstead v. C. O. Ry. Co., 276 U.S. 28, 48 S.Ct. 241, 72 L.Ed. 453; Standard Oil Co. v. Anderson, 212 U.S. 215, 29 S.Ct. 252, 53 L.Ed. 480; Hull v. Philadelphia Railway Co., 252 U.S. 475, 40 S.Ct. 358, 64 L.Ed. 670; Robinson v. Baltimore Ohio, 237 U.S. 84, 35 S.Ct. 491, 59 L.Ed. 849; Chicago Alton R. Co. v. Wagner, 239 U.S. 452, 36 S.Ct. 135, 60 L.Ed. 379; Stevenson v. Lake Terminal Ry. Co., 42 F.2d 357; Giesking v. Litchfield M.R. Co., 339 Mo. 1, 94 S.W.2d 375; Friedman v. Vandalia R. Co., 254 F. 292; Schleappe v. Terminal R. Assn. of St. Louis, 339 Mo. 562, 98 S.W.2d 616. (3) Plaintiff made a submissible case of negligence under the Missouri humanitarian doctrine. Mooney v. Terminal R. Assn. of St. Louis, 353 Mo. 1080, 186 S.W.2d 450; Moran v. Atchison, T. S.F. Ry. Co., 330 Mo. 278, 48 S.W.2d 881; Hinzeman v. Mo. Pac. Ry. Co., 182 Mo. 611, 81 S.W. 1134; Gann v. Chicago, R.I. P. Ry. Co., 319 Mo. 214, 6 S.W.2d 39; Rosanbalm v. Thompson, 349 Mo. 38, 148 S.W.2d 830; Clark v. Terminal R. Assn. of St. Louis, 343 Mo. 625, 111 S.W.2d 168; Evans v. Atchison, T. S.F. Ry. Co., 345 Mo. 147, 131 S.W.2d 604; Hinzeman v. Mo. Pac. Ry. Co., 199 Mo. 56, 94 S.W. 973; Goslin v. Kurn, 351 Mo. 395, 173 S.W.2d 79. (4) Plaintiff's Instruction 1 is not erroneous, was properly given by the trial court, and properly defines the obligation of the defendants under the Federal Employers' Liability Act (Ch. 2, Title 45, U.S.C.A., Railroads). Lloyd v. Alton R. Co., 348 Mo. 1222, 159 S.W.2d 267; Delaware, Lackawanna Western Railroad Co. v. Koske, 279 U.S. 7, 49 S.Ct. 202, 73 L.Ed. 578; Goslin v. Kurn, 351 Mo. 395, 173 S.W.2d 79; Kamer v. Missouri-Kansas-Texas R. Co., 326 Mo. 792, 32 S.W.2d 1075; Sweeney v. Terminal R. Assn. of St. Louis, 110 S.W.2d 852; Martin v. Wabash Ry. Co., 325 Mo. 1107, 30 S.W.2d 735; Evans v. Atchison, T. S.F. Ry. Co., 345 Mo. 147, 131 S.W.2d 604; Degonia v. Railroad Co., 224 Mo. 564, 123 S.W. 807. (5) The trial court properly refused defendants' Instruction D because the same was repetitious. Wolfson v. Cohen, 55 S.W.2d 677; Oliver v. Morgan, 73 S.W.2d 993; Sutton v. Anderson, 326 Mo. 304, 31 S.W.2d 1026. (6) The trial court properly refused defendants' Instruction F because the same was repetitious. Wolfson v. Cohen, 55 S.W.2d 677; Oliver v. Morgan, 73 S.W.2d 993; Sutton v. Anderson, 326 Mo. 304, 31 S.W.2d 1026. (7) The court did not err in allowing plaintiff to introduce into evidence and to examine witnesses upon the various operating rules of the defendant railroad companies. State ex rel. Pelligreen Construction Co. v. Reynolds, 279 Mo. 493, 214 S.W. 369; Bailey v. Kansas City, 189 Mo. 503, 87 S.W. 1182; Bragg v. Metropolitan Street Ry. Co., 192 Mo. 331, 91 S.W. 527; Owen v. Kurn, 347 Mo. 516, 148 S.W.2d 519; Carlisle v. Tilghmon, 174 S.W.2d 798; Asbury v. Fidelity Natl. Bank Trust Co., 231 Mo. App. 437, 100 S.W.2d 946; Caldwell v. Payne, 231 Mo. App. 442, 246 S.W. 312; Bridges v. St. Louis-S.F. Ry. Co., 198 Mo. App. 576, 199 S.W. 572; Clark v. Powell, 351 Mo. 1121, 175 S.W.2d 842; Orr v. Shell Oil Co., 352 Mo. 228, 177 S.W.2d 608; Schleappe v. Terminal R. Assn. of St. Louis, 339 Mo. 562, 98 S.W.2d 616.

Warner Fuller and Arnot L. Sheppard for Terminal Railroad Association of St. Louis, amicus curiae.

(1) Do Sections 5162 and 5163, R.S. 1939, make a railroad operating a union station and providing other railroad facilities for trunk line railroads, liable for the negligence of the trunk lines, within the provisions of Federal Employers' Liability Act? If they do, upon what principle of law does such liability rest? Both St. Louis Terminal and Kansas City Terminal are terminal and union station companies. U.S. v. Terminal R. Assn., 224 U.S. 383, 56 L.Ed. 810; State ex inf. v. Terminal R. Assn. of St. Louis, 182 Mo. 284. (2) The statutory provisions do not apply to union station companies. Clark v. A.T. S.F.R. Co., 319 Mo. 865, 6 S.W.2d 954; C. O.R. Co. v. Stapleton, 279 U.S. 587, 73 L.Ed. 861. (3) Controlling decisions of the United States Supreme Court, which hold that the Federal government has pre-empted his entire fields; and that no state law is controlling. C. O.R. Co. v. Stapleton, 279 U.S. 587, 73 L.Ed. 861; C. N.W.R. Co. v. Coogan, 271 U.S. 472, 70 L.Ed. 1041; Central Vermont R. Co. v. White, 238 U.S. 507, 59 L.Ed. 1433. (4) The purpose of Federal Employers' Liability Act was to secure uniformity of right and remedy; and to accomplish that purpose the act withdrew "all injuries to railroad employees in interstate commerce from the operation of varying state laws" and applied "to them a national law having a uniform operation throughout all the states." Brady v. Sou. R. Co., 320 U.S. 476, 88 L.Ed. 239; Erie R. Co. v. Winfield, 244 U.S. 170, 61 L.Ed. 1057; N.Y.C.R. Co. v. Winfield, 244 U.S. 147, 61 L.Ed. 1045; C.M. St. P.R. Co. v. Coogan, 271 U.S. 472, 70 L.Ed. 1041 (5) These statutes are but declaratory of the common law and should, therefore, be construed in harmony with the common law. The common law principle is based upon the thesis that it is against public policy to permit a common carrier by railroad to escape its obligations to the public, created by its charter from the state, by voluntarily selling or leasing all of its railroad property to another railroad company. Therefore, these statutes should receive a construction consonant with this common law principle. This construction will not place liability upon Kansas City Terminal in the case at bar. Georgia Railroad Banking Co v. Friddell, 79 Ga. 489, 7 S.E. 214, 11 Am. St. Rep. 447; Smith v. Philadelphia, Baltimore Washington R. Co., 46 App. (D.C.) 275. (6) Disregarding the Missouri statutes, may respondent hold Kansas City Terminal liable under Federal Employers' Liability Act To do so there must be proof of two things: The existence of an employer-employee relationship between Kansas City Terminal and decedent, respectively, and negligence on the part of Kansas City Terminal; or an employer-employee relationship between Frisco and decedent and Kansas City Terminal's responsibility for Frisco's acts. Seaboard Air Line R. Co. v. Horton, 233 U.S. 492, 58 L.Ed. 1062; T. P.R. Co. v. Rigsby, 241 U.S. 33, 60 L.Ed. 874; Central Vermont R. Co. v. White, 238 U.S. 507, 59 L.Ed. 1433; Southern R. Co. v. Gray, 241 U.S. 333, 60 L.Ed. 1030; New Orleans N.E.R. Co. v. Harris, 247 U.S. 367, 62 L.Ed. 1167. (7) Federal Employers' Liability Act does not define "employee" as therein used. Therefore, we must look elsewhere for its meaning. Because the question is obviously one of substance rather than of procedure, the answer must derive from federal decisions, by which "all state laws upon that subject were superseded." C. N.W.R. Co. v. Coogan, 271 U.S. 472, 70 L.Ed. 1041; Central Vermont R. Co. v. White, 238 U.S. 507, 59 L.Ed. 1433. (8) The controlling decisions of the United States Supreme Court reach a directly contrary conclusion as to the relationship, viz., that the relation of employer and employee under the Federal Employers' Liability Act must be conventional rather than legal. Robinson v. B. O.R. Co., 237 U.S. 84, 59 L.Ed. 849; C. A.R. Co. v. Wagner, 239 U.S. 452, 60 L.Ed. 379; Hull v. Philadelphia Reading R. Co., 252 U.S. 475, 64 L.Ed. 67 (9) The term "conventional" means: "formed by agreement or compact; stipulated; contractual — opposed in law to legal and judicial." Webster's New International Dictionary. (10) This opinion says "if the action is under the act and its conditions are otherwise met and apply, a state law may alter the situation and fasten liability upon a railroad when in fact the conventional relationship of employer and employee does not exist. North Carolina R. Co. v. Zachary, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591." The facts and the statute mentioned in the Zachary case are entirely different from the facts and statutes here. The history of the Zachary case shows conclusively that the statute there involved was one which provided for the sale of a railroad franchise as well as of all railroad property. State v. Rives, 5 Ired. (Law) 297 (1844); Gooch v. McGee, 83 N.C. 59; Logan v. N. Carolina R. Co., 116 N.C. 940, 21 S.E. 959. (11) The basis for a lessor's responsibility for the acts of its lessee is the theory that a state franchise to a railroad company, especially because it clothed the railroad company with the right of eminent domain, was a contract which obligated the railroad company to render railroad service to the public; and that a lease by a railroad company of all of its property disabled it from rendering the public service enjoined upon it by its charter. Therefore, such a contract was void as against public policy. Thomas v. West Jersey R. Co., 101 U.S. 71, 25 L.Ed. 950; North Carolina R. Co. v. Zachary, 232 U.S. 248, 58 L.E. 591; Spaw v. Kansas City Terminal R. Co., 201 S.W. 927. (12) For the purpose of applying the lessor-lessee rule the latter must be considered as the agent of the former, on the theory that the lessor is engaged, through the lessee, in performing its public duty. North Carolina R. Co. v. Zachary, 232 U.S. 248, 258, 58 L.Ed. 591, 595; Lee v. Sou. P.R. Co., 116 Cal. 97, 47 P. 932; Abbott v. Johnstown, G. K.R. Co., 80 N.Y. 27; Murray v. Lehigh Valley R. Co., 66 Conn. 512, 34 A. 506. (13) That the original principle arose by reason of the lease by a railroad of all of its property to another railroad, thereby making it impossible for the lessor to fulfill its charter obligations; in other words, the lessor voluntarily made it impossible for it to do its duty to the public. But both Kansas City Terminal and St. Louis Terminal are not only compelled by law to permit all trunk line companies who desire to use their facilities, but must act as the impartial agents of the trunk line companies, under pain of being dissolved under the Anti-Trust statutes. Neither can occupy at the same time the relation of both principal and agent with respect to the trunk lines. United States v. Terminal R. Assn. of St. Louis, 224 U.S. 383, 56 L.Ed. 810; United States v. Terminal R. Assn. of St. Louis, 236 U.S. 194, 59 L.Ed. 535; Smith v. Philadelphia, Baltimore Washington R. Co., 46 App. (D.C.) 275. (14) Therefore, a terminal company such as Kansas City Terminal and St. Louis Terminal not only is compelled by law to permit trunk lines to use its facilities, but when doing so it is performing, not shirking, its duty to the public. Smith v. Philadelphia, Baltimore Washington R. Co., 46 App. (D.C.) 275; United States v. Terminal R. Assn. of St. Louis, 224 U.S. 383, 56 L.Ed. 810; State ex inf. v. Terminal Railroad Assn. of St. Louis, 182 Mo. 284. The reason for the lessor-lessee rule, therefore, does not exist so far as the two terminal companies here are concerned. (15) The Missouri humanitarian doctrine does not furnish a ground of recovery in this case. This action is under Federal Employers' Liability Act, and, therefore, liability vel non must be determined under legal principles accepted and followed by the federal courts. Cox v. M.-K.-T.R. Co., 335 Mo. 1226, 76 S.W.2d 411. (16) The federal courts accept and apply the last clear chance doctrine; but not the Missouri humanitarian doctrine. Denver City Tramway Co. v. Cobb, 164 F. 41; Hart v. Northern P.R. Co., 196 F. 180; Iowa Central R. Co. v. Walker, 203 F. 685; Marshall v. Hines, 271 F. 165; Miller v. Canadian Northern R. Co., 281 F. 664, 667; Wheelock v. Gray, 13 F.2d 972; Miller v. Union Pacific R. Co., 63 F.2d 574; Allnutt v. Mo. Pac. R. Co., 8 F.2d 604; Robbins v. Pa. R. Co., 245 F. 435; Linde Air Products Co. v. Cameron, 82 F.2d 22; Kansas City Southern R. Co. v. Ellzey, 275 U.S. 236, 48 S.Ct. 80, 72 L.Ed. 259; Toledo, St. L. W.R. Co. v. Allen, 276 U.S. 166, 72 L.Ed. 513; St. L.-S.F.R. Co. v. Schumacher, 152 U.S. 77, 38 L.Ed. 361; Chunn v. City Suburban Ry., 207 U.S. 302, 52 L.Ed. 219. (17) The last clear chance doctrine is appreciably a narrower field of recovery than is the Missouri humanitarian doctrine. (18) The Federal Employers' Liability Act in no wise affects the last clear chance doctrine or the Missouri humanitarian doctrine; but deals only with primary and contributory negligence, neither of which is involved in either of these doctrines. (19) Comparative negligence as a governing principle of the Federal Employers' Liability Act in no way affects the federal last clear chance doctrine as applicable to cases brought under that act. Norfolk W.R. Co. v. Earnest, 229 U.S. 114, 57 L.Ed. 1096; Seaboard Air Line R. Co. v. Tilghman, 237 U.S. 499, 59 L.Ed. 1069; Se iffert v. Hines, Director General, 108 Neb. 62, 187 N.W. 108; Stanley v. C., R.I. P.R. Co., 113 Neb. 280, 202 N.W. 864; Parsons v. Berry, 130 Neb. 264, 264 N.W. 742; Wolfgang v. Omaha Council Bluffs St. Ry. Co., 126 Neb. 600, 262 N.W. 537; McLaughlin v. Long, 2 D.L.R. 186; Johnston v. McMorran, 4 D.L.R. 335; Raines v. Southern R. Co., 169 N.C. 189, 85 S.E. 294. (20) Both the humanitarian and last clear chance doctrines blot "out all that preceded, whether primary or contributory negligence, and measure(s) defendant's liability solely on its ability and failure to avert the injury under the then existing circumstances." Todd v. St. L.-S.F.R. Co., 37 S.W.2d 557; Gray v. Columbia Terminals Co., 331 Mo. 73, 52 S.W.2d 809. (21) "Contributory negligence is an issue wholly foreign to a case submitted purely under the humanitarian rule"; so foreign, in truth, that an instruction which submitted contributory negligence as a defense only unless the jury found for plaintiff under the humanitarian rule, was held to constitute reversible error. Gray v. Columbia Terminals Co., 331 Mo. 73, 52 S.W.2d 809; Schulz v. Smercina, 318 Mo. 486, 1 S.W.2d 113; Silliman v. Munger Laundry Co., 44 S.W.2d 159. (22) Neither the humanitarian nor the last clear chance doctrine commences to operate until plaintiff's peril has arisen. In the former no antecedent negligence, either of plaintiff or defendant, is taken into account in determining liability of defendant. P.R.R. Co. v. Swartze, 17 F.2d 869.

[772] CONKLING, J.

This case was first argued and submitted in Division 2 of this Court. After opinion in that Division, of the Court's own motion, the case was transferred to the Court En Banc. After reargument and resubmission there, the case came to the writer upon re-assignment. After opinion in the Court en banc, a rehearing was granted. The case was again re-argued and resubmitted at our January, 1948 session, and again came to the writer upon re-assignment.

Thomas Graham, a switchman employee of the Kansas City Terminal Railway Company (hereinafter called Terminal), in the course of his regular duties as such switchman, was assisting his regular Terminal switching crew in an interstate switching movement for Terminal in the yards of his employer about 5 P.M., on August 27, 1943. While so engaged he was struck and killed by Frisco passenger train No. 20 moving generally west on track 2 through Terminal's yards on its way to the Union Station. The passenger train was operated by defendant Thompson, as trustee of St. Louis-San Francisco Railway Company. In this action under the Federal Employers' Liability Act (45 U.S.C.A. Sec. 51 et seq.) his wife, plaintiff below, as administratrix, recovered a judgment of $20,000.00 against both Frisco and Terminal. Each railroad appealed and each urges that its separate motion for a directed verdict should have been sustained.

Plaintiff concedes Graham was in fact a Terminal employee but pleaded and contends that inasmuch as Terminal owned the tracks through the Terminal yards upon which Frisco was then operating its train, and that Terminal by written contract of lease had granted Frisco the right to operate its train thereover, that both railroads are liable to plaintiff under the Federal Act by virtue of Mo. R.S.A. Sec. 5163, the Missouri lessor-lessee statute. That statute, in part, provides "whenever any . . . railroad . . . shall lease its road or tracks or any part thereof to any other company or corporation, . . . the company or corporation so leasing its road, . . . shall remain liable for all acts, debts, claims, demands, judgments and liabilities of the lessee or licensee, . . . the same as if it (the lessor or licensor) operated the road, itself; and such lessee or licensee shall likewise be held liable and may sue and be sued in all cases and for the same causes, and in the same manner, as if operating its own road. . . . And suit may be brought upon any such claim, debt, lien or liability against either the corporation to whom any such sale, transfer, lease, or assignment has been made, . . . or against both such corporations, jointly, at the option of such claimant." Plaintiff relies on that statute and upon such cases as North Carolina Railroad Company v. Zachary, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591; Spaw v. Kansas [773] City Terminal Ry. Co., 198 Mo. App. 552, 201 S.W. 927; Smith v. Thompson, (Mo. Sup.) 182 S.W.2d 63; Miller v. Terminal Railway Assn. of St. Louis, 349 Mo. 944, 163 S.W.2d 1034; and Francis v. Terminal Railway Assn. of St. Louis, 354 Mo. 1232, 193 S.W.2d 909. Plaintiff says she made a case for the jury upon a failure to give a warning under the humanitarian theory of negligence.

Frisco contends that as Graham was not its employee there is no liability against it under the Federal Act; that in the switching operation Graham was performing no service for Frisco and that it had no control or right of control over Terminal's operations or over Graham; that as to it Terminal was an independent contractor in the switching movement; that the Federal Act uses the words "employed" and "employee" in their natural sense to describe the conventional relationship; that in that the relationship of employer and employee did not in fact exist between it and Graham the Federal Act cannot apply to it; that under the instant facts the lessor-lessee statute cannot make an employee of the lessor road also an employee of the lessee railroad and that the Zachary case, supra, and other cases purporting to follow the Zachary case, do not compel such holding. Frisco relies on such cases as Hull v. Philadelphia R. Ry. Co., 252 U.S. 475, 40 S.Ct. 358; Robinson v. Baltimore Ohio R. Co., 237 U.S. 84, 35 S.Ct. 491, 59 L.Ed. 849; Stevenson v. Lake Terminal R. Co., 42 F.2d 357, and others. Terminal concedes that by the lessor-lessee statute it is liable for Frisco's negligence, if any, but contends no jury case was made.

The underlying basic reason for the enactment of the Federal Employers' Liability Act was to secure uniformity of both right and remedy in interstate commerce cases without regard to whether the action is brought in any state or in any federal court. Mooney v. Terminal R. Assn. of St. Louis, 352 Mo. 245, 176 S.W.2d 605; C.M. St. P. Ry. Co. v. Coogan, 271 U.S. 472, 474, 46 S.Ct. 564, 70 L.Ed. 1041. Both the state and federal courts were given concurrent jurisdiction by the Federal Act and the right of removal was withheld. To attain such uniformity in all courts there had to be a dominant statute. Its purpose was to supplant the numerous state statutes and their varying applications in each state as to who could recover, against what railroad and under what circumstances. Congress chose to and did enact such a dominant statute. The Federal Employers' Liability Act "withdrew all injuries to railroad employees in interstate commerce from the operation of the varying state laws" and put all such actions under a national law of uniform operation in all states. New York Central R. Co. v. Winfield, 244 U.S. 147, 37 S.Ct. 546, 61 L.Ed. 1045.

The very act of Congress, therefore, under which plaintiff now seeks to recover took possession of and preempted the entire field of liability of carriers by railway for injuries sustained by their employees in interstate commerce and that act superseded all state laws and statutes by which such liability could be sought to be fastened upon rail carriers in such cases. Second Employers' Liability Cases, 223 U.S. 1, 32 S.Ct. 169, 56 L.Ed. 327; Chesapeake Ohio R. Co. v. Stapleton, 279 U.S. 587, 590, 73 L.Ed. 861, 864; Chicago, Milwaukee St. Paul R. Co. v. Coogan, supra; Toledo, St. Louis W.R. Co. v Allen, 276 U.S. 165, 48 S.Ct. 215, 72 L.Ed. 513; New York Central R. Co. v. Winfield, supra; Mooney v. Terminal Railway Assn. of St. Louis, supra. The rights and liabilities of parties to an action under the Federal Employers' Liability Act must be determined by the provisions of that Act. Hoch v. St. Louis San Francisco R. Co., 315 Mo. 1199; Toledo St. Louis W.R. Co. v. Allen, supra; Chicago, Milwaukee St. Paul R. Co. v. Coogan, supra; Brady v. Southern Ry. Co., 320 U.S. 476, 64 S.Ct. 232.

All state laws upon the subject of the responsibility of railroads to their employees engaged in interstate commerce having been superseded by enactment of the Federal Act, all state laws with respect thereto, both common law and statutory [774] law, of any and every kind or character, gave way where they enlarge or diminish or conflict with the Federal Act. The lessor-lessee statute is such a state law, it being the instrumentality by which it is here sought to fasten liability upon the lessee railroad under the Federal Act. But the Federal Act has made that Act applicable only to employees of railroads sought to be so charged with such liability. 45 U.S.C.A. Sec. 51; Hull v. Philadelphia R.R. Co., supra. The Federal Act is controlling, exclusive and supreme with respect to which railroads shall be held liable thereunder. In Michigan Central R. Co. v. Vreeland, 227 U.S. 59, 33 S.Ct. 192, 57 L.Ed. 417, the Court in speaking of the Federal Act said: "We may not piece out this Act of Congress by resorting to the local statutes of the state of procedure or that of injury". In New York Central H.R.R. Co. v. Tonsellito, 244 U.S. 360, 37 S.Ct. 620, 61 L.Ed. 1194, the Court said: "Congress having declared when, how far, and to whom carriers shall be liable on account of accidents in a specified class, such liability can neither be extended nor abridged by common or statutory laws of the state". See also, Chesapeake Ohio R. Co. v. Stapleton, supra.

Except for the Missouri lessor-lessee statute there could be no basis for plaintiff's contention that Frisco is liable under the Federal Act, and that the Zachary case, supra, is an authority here. Plaintiff's position, in effect, is that that state statute enlarges the Federal Act and extends to her under the instant facts the coverage and benefits of the Federal Act. She urges that the state statute extends to her and creates in her the right of action she now asserts against Frisco and that by that statute such liability is fastened upon Frisco under the Federal Act. Plaintiff thus seeks to use the state statute not as mere adjective or procedural law but as substantive law (Maurizi v. Western Coal Mining Co., 321 Mo. 378, 11 S.W.2d l.c. 272; Barker v. St. Louis County, 340 Mo. l.c. 1001, 104 S.W.2d 371) upon which her claimed cause of action against Frisco is made to depend, and without which her claimed cause of action against Frisco could not exist. Thus plaintiff seeks to use the lessor-lessee statute to "piece out" and enlarge the scope and application of the Federal Act to assert and maintain her action against Frisco and to hold Frisco liable under the Federal Act. That cannot be done.

By the Federal Act Congress fully preempted the entire field and determined that a carrier is liable to its employees under the circumstances stated in the Act. To "piece out" and extend the coverage of the Federal Act by any local law, statutory or common, would destroy the uniformity of operation of the Federal Act in the various states. The rule must be the same in Missouri as elsewhere. If it were otherwise one rule would obtain in Missouri, and in states having no lessor-lessee statute a contrary rule would obtain. Thus uniformity of right and remedy as to such interstate commerce cases would be destroyed. Neither the contract of lease nor the Missouri statute above referred to can create a liability upon Frisco under the Federal Act where none is created by the Federal Act itself.

It is said that no adjudicated case squarely holds that the Federal Act has preempted the field as to who is or is not an employee within the purview of the Act. But the Act provides that "common carriers by railroad while engaged in commerce between any of the several states . . . shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce". (Emphasis ours.) The use of the words "while he is employed" is a full preemption of that field. If the words of the Act above italicized or if the sense in which they were intended by the Congress to be used or understood need any interpretation, we find it in Robinson v. Baltimore Ohio R. Co., supra, wherein a Pullman car porter on a car attached to a Baltimore Ohio train sought recovery from the railroad for injuries sustained in a collision of trains due to the negligence of the Baltimore Ohio. In ruling that Robinson was not an employee of the railroad within the Federal Act the court said: "For the `liability-created' by the act is a liability to the `employees' of the carrier, and not to others; and the plaintiff [775] was not entitled to the benefit of the provisions unless he was `employed' by the railroad company within the meaning of the Act. . . . We are of the opinion that Congress used the words `employee' and `employed' in the statute in their natural sense, and intended to describe the conventional relation of employer and employee. It is well known that there were on interstate trains persons engaged in various services for other masters. Congress, familiar with this situation, did not use any appropriate expression which could be taken to indicate a purpose to include such persons among those to whom the railroad company was to be liable under the Act." (Emphasis ours.) Webster's New International Dictionary defines conventional as, "formed by agreement or contract; stipulated, contractual — opposed in law to legal and judicial". It appears Congress intended an employment in fact and not one created by a legal fiction. Under the Federal Act itself, and the above decisions of the United States courts construing the Act, it is obvious that it was the intention of the Congress to, and that it did, occupy and take over the full field as to who should be entitled to the benefits of the Act. Factual situations such as are presented by this record were foreseeable by the Congress and in the Act there is nothing to indicate any Congressional purpose or intention that any person other than an actual employee should come under the Act.

In Missouri, Kansas Texas R. Co. v. West, 134 Pac. (Okla.) 655, in discussing the meaning of the words "while he is employed by such carrier", as contained in the Federal Act, the Court said: "The language of the Act of Congress carries with it the idea and the essence of a contract. To be employed by one is to be engaged in his service, to be used as an agent or substitute in transacting his business, to be commissioned and intrusted with the management of his affairs. In our judgment, the words, `while employed by such carrier,' construed in connection with the context, is equivalent to `while hired by such carrier,' which implies a request and a contract for compensation. The persons falling within the meaning of the Act are those hired by the railway company, or those who are working for it at its request and under an agreement on its part to compensate them for their services". By the express terms of the Act the carrier is liable to its employees only. The courts are without power to extend the liability of a carrier to one not the railroad's servant and employee, he being a stranger to the railroad sought to be held liable. It was certainly the intention of the Congress to limit the beneficiaries to those only in the relation of servant to the master. By the plain terms of the Federal Act Congress did so limit it.

Plaintiff further contends that Graham was engaged in interstate commerce for Frisco as Frisco's employee because of the fact that in the Terminal freight train which Graham was helping to switch there were two freight cars which Terminal later delivered to Frisco on an interchange track in Kansas. Terminal was a common carrier railroad (Terminal Railroad Assn. v. U.S., 266 U.S. 17, 31, 45 S.Ct. 5, 69 L.Ed. 150). Terminal and Frisco were merely connecting carriers. At the time of Graham's death each railroad, a separate entity, was engaged in its own separate operation. Frisco and Terminal each retained complete control of its own train crew. While on Terminal's tracks the Frisco crew must comply with Terminal's rules and train orders to co-ordinate and make safe all train movements which, of course, promoted the general purposes of the agreement between the two railroads. Yet the operation by each was separate and distinct from that of the other. Terminal's switch crew (including Graham) were engaged in switching freight cars on and off of tracks numbered 1, 112, 252 and 4730. Frisco was operating a local passenger train from Springfield, Missouri, to Kansas City, Missouri, and on into the Union Station over Terminal's track 2. Track 2 was separate and distinct from tracks 1, 112, 252 and 4730. The latter three were switch or industrial tracks and all led into track 1. There was no connection between track 1 (used for Terminal switch trains exclusively) and track 2. Frisco had no license to use track 1. The bare fact that two cars in the Terminal drag were later delivered to Frisco in Kansas cannot serve as a legal [776] fiction to make Graham an employee of Frisco, when in truth and in fact he was not such. In moving those two cars, and the other freight cars in the Terminal drag, Terminal did so wholly as a connecting carrier, and as to such movement was merely an independent contractor so far as Frisco is concerned. Frisco had no control or right of control over either Graham's or Terminal's operations in that switching movement. It merely later received the cars in Kansas as a connecting carrier. The contention is ruled against respondent.

Plaintiff contends that the instant case is ruled by North Carolina Railroad Company v. Zachary, supra, claiming, in her brief, that the Zachary case involves "similar local law". We cannot agree with that contention. Analysis of that case demonstrates it did not turn upon a question of similar or dominant local law and does not support respondent's present contention. In that case, Zachary's intestate, an employee of Southern Railway, was accidentally killed by the negligence of Southern Railway. Zachary sued North Carolina Railroad, which owned the line of railroad upon which Southern was then and there operating. The North Carolina Railroad had theretofore leased to Southern its tracks and other property, North Carolina's only activities then being to receive the rents under its lease and to distribute same to its shareholders.

In the Logan case, infra, an action at common law, cited in the Zachary opinion as demonstrative of the North Carolina local law, defendant, the North Carolina Railroad Company, in 1871, leased its line from Goldsboro to Charlotte to the Richmond Danville Railroad Company for a period of thirty years. Richmond Danville was operating the road when Logan was injured while employed by Richmond Danville as a section hand. The North Carolina statute mentioned in the Logan case had been passed in response to the decision of that court in State v. Rives, 5 Ired. (Law) 297 (1844). The last case criminally charged Rives with destroying a railroad, when after securing a judgment against the railroad he levied upon and sold under sheriff's sale the line of railroad from Margaretsville to Concord to one Rochelle, who then assigned to Rives. The latter then secured a sheriff's deed and removed a certain portion of the track. The prosecution was on the theory that Rives had obstructed a highway when he tore up the rails breaching the line of railroad. The result of the case was that Rives had a right to remove the track, but no right to sell the franchise under that execution. Later the North Carolina legislature passed a statute providing for the sale of the franchise as well as the track, and requiring a purchaser under such circumstances to continue to operate the railroad. The Supreme Court of North Carolina said in Gooch v. McGee, 83 N.C. 59, that that statute was passed in direct response to the decision of that court in State v. Rives. That was the statute referred to in the Logan case, and which compelled the purchasers of the property on execution to continue to operate it as a railroad. The opinion in the Logan case was not based on a statute at all. The statute above mentioned was but casually referred to in the court's opinion.

Thus it is noticed that what is referred to in the Zachary opinion as a "local law, as laid down in Logan v. N.C.R. Co., 116 N.C. 940, 21 S.E. 959", and also referred to in Hull v. Philadelphia R.R. Co., supra, as "a dominant rule of local law" had nothing at all to do with whether Zachary's intestate, who was actually an employee of the Southern Railway only, was also an employee of North Carolina Railroad Company at the time he was killed. What the Court said in the Zachary case must be considered in the light of that case, and in the light of the facts of Logan v. North Carolina R. Co., supra; State v. Rives, supra; and Gooch v. McGee, supra. See Morse v. Consolidated Underwriters, 349 Mo. 785, 163 S.W.2d 586; Maryland Casualty Company v. Zahner, (Mo. App.) 190 S.W.2d 996, 1000.

The Zachary case definitely does not rule that an employee of a lessor railroad automatically becomes an employee of a lessee railroad for the purpose of the Federal Act if and when injured by lessee's sole and [777] separate operations, and that case is no authority here. This case is ruled by Hull v. Philadelphia R.R. Co., supra, decided some eight years after the Zachary case, and by Robinson v. Baltimore Ohio R. Co., supra.

Under the facts presented by this record, the ruling in Spaw v. Kansas City Terminal Railway Company, supra; Smith v. Thompson, supra; Miller v. Terminal Ry. Assn., supra, and other cases which, it is contended by plaintiff, follow the Zachary case upon the local law theory, are no authority for plaintiff's contention that an employee of a lessor railroad automatically becomes an employee of a lessee railroad for the purpose of the Federal Act, if and when injured by lessee's sole and separate operations. The case of Francis v. Terminal Railway Assn., supra, is quite different from the instant case. There an employee of the Terminal Railway sued only his employer for injuries caused by being struck by a backing engine of Terminal's lessee, the Wabash. No contention was there made and it was not there ruled that the lessor-lessee statute made the lessor's employee an employee of the lessee for the purpose of the Federal Act. The Spaw case is readily distinguishable upon facts. While in Terminal's general employment, Spaw, when injured, was engaged in re-railing an engine for the Milwaukee road. When injured he was actually engaged in doing Milwaukee's work. While thus engaged in interstate commerce for Milwaukee, not for Terminal, he was injured. Spaw was in fact a Milwaukee employee.

Smith v. Thompson, supra, cited by plaintiff, does not hold an employee of a lessor becomes an employee of a lessee railroad for purposes of the Federal Act if injured by the lessee's separate operations. In that case deceased was an employee of lessee. Lessee's negligence, there adjudicated, merely created an unsafe working condition for its own employee which resulted in his death when he was run over by lessor's train while it was engaged in a switching movement. Lessor and lessee were jointly sued under the Federal Act and lessor, by its instruction, voluntarily submitted its own liability to the jury under the lessor-lessee theory. An examination of that instruction in our files shows it is an admission of lessor's liability if the jury found lessor leased to lessee and lessee was found to be negligent.

Likewise, Miller v. Terminal Ry. Assn. of St. Louis, supra, is no authority here. That case does not rule that an employee of a lessor became an employee of lessee for the purposes of the Federal Act when injured by lessee's separate operations. In that case Miller was in fact an employee of Terminal, the lessor, and the action was brought against his employer alone, who there conceded both Miller and it were then engaged in interstate commerce. While actively engaged in his duties for his employer as a switchman, a Mobile Ohio train struck the rear of the train upon which Miller was at that time at work (standing on the rear drawbar), and his death resulted. We there held the Federal Act applied as between Miller and his employer. It was not there sought to hold the Mobile Ohio (the lessee) liable. We have carefully considered all the cases cited by plaintiff, but for reasons herein stated, we believe they have no application under the instant facts.

Recovery by the plaintiff against Frisco under the Federal Act depends upon proof of an employer-employee relationship between Frisco and plaintiff's decedent. The existence of that relationship is the foundation of the cause of action respondent asserts against Frisco. The question must be and is here determined under legal principles as recognized and applied by the Federal Courts. The act being remedial is to be liberally construed to advance the remedy proposed, but we believe it is plain that the Congress intended it to apply only when the relation of master and servant actually exists. Mooney v. Terminal Ry. Assn. of St. Louis, 352 Mo. 245, 176 S.W.2d 605; Chicago, M. St. P. Ry. Co. v. Coogan, 271 U.S. 472, 46 Sup. Ct. 564, 70 L.Ed. 1041; Hull v. Philadelphia R.R. Co., supra; Robinson v. B. O.R. Co., supra; Stevenson v. Lake Terminal R. Co., supra. Not being an employee of Frisco that railroad is not liable under the Federal Act for Graham's death.

[778] In the circuit court and here upon appeal Terminal admitted, and it has been the theory of Terminal throughout the case, that Graham was its employee, that both Graham and it were engaged in interstate commerce and that if Frisco was negligent the case was one to be submitted to the jury. Terminal committed itself to that theory and is now bound by it. Wisner v. Mutual Life Ins. Co., 352 Mo. 673, 676, 179 S.W.2d 39; Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889. As Frisco's lessor, Terminal is liable under the Federal Act for the death of its own employee if Frisco was negligent. Terminal has contended, however, that Graham was also Frisco's employee within the meaning of the Federal Act (which question we above rule adversely). Terminal further contends Frisco was not negligent. We therefore examine Terminal's last stated contention.

At the place of the fatal occurrence (between two and three miles east of the Union Station) Terminal's mainline tracks numbered from the north, are tracks 1, 2, 3 and 4. All inbound passenger trains running west toward the Union Station there run west over track 2 at high speeds. All outbound passenger trains running east away from the Union Station there run east on track 3 at high speeds. Track 1 lies next north of and parallel to track 2, and tracks 112, 252 and 4730, the last three being industrial switch tracks, each led into track 1 from the north. Graham's switching crew were moving freight cars onto and off of track 1, a freight switching track, and the above numbered industrial tracks. All the switching by Graham's crew was being done north of track 2. There were eight or nine cars connected with the east end of the Diesel switch engine, which was about to move from an industrial track onto track 1. Graham was south of track 2. The switch foreman was at switch 252, which was northeast of Graham. The latter was about fifty feet east of the 18th Street viaduct, 500 feet west of his foreman and was relaying signals to his fireman, Weathers.

Frisco passenger train No. 20, westbound on track 2, was approaching at its usual speed of 45 miles per hour. The day was clear and Graham's view east on track 2 was unobstructed for a quarter of a mile. The Frisco enginemen likewise had an unobstructed view to the west.

Terminal says that the Frisco enginemen were looking ahead and that as soon as Graham entered a zone of peril, 150 feet in front of the approaching passenger train, an alarm by whistle was promptly sounded and any duty to warn was thus discharged. The Frisco fireman, Groves, testified that he was looking ahead and first saw Graham when his train was about 600 feet east of the 18th Street viaduct. Groves stated that Graham at that time was standing between the rails of track 3; that Graham was signaling and appeared to be looking toward the oncoming train; but that when the front of the engine was only 150 feet from Graham the latter stepped over the north rail of track 3, and that although short alarm blasts of the whistle were quickly sounded, Graham walked into the side of the Frisco engine.

But Weathers, the fireman on the Terminal engine, testified that Graham was standing only eighteen inches or two feet south of the south rail of track 2 (within the overhang of a train on track 2) "passing signals from the field man to me"; that Graham was 50 or 75 feet east and a little south of him; that "the train was coming from the east, all right, but he (Graham) was looking a slight bit across the tracks, not direct in line with the (Frisco) train. . . . He (Graham) was looking northeast . . . at the time he was doing the signaling. . . . He was standing sort of parallel, maybe slightly turned a little bit to me and looking over his right shoulder"; that when he (Weathers) first saw the Frisco train it was three hundred to four hundred feet, or more, east of Graham, and after that time Graham "never was in the clear of that rail. He was in danger of the track at all times he was standing there". It was Weathers' testimony that Graham gave a stop signal, then looked at Weathers, stepped up to the south rail of track 2, saw Weathers yelling at him (Graham) and stopped, "I guess he was trying to figure out what I was trying to tell him", and then "turned and looked up (east) and saw the train. He never saw the train until it was practically on top of him . . . I don't [779] believe it was over ten feet from him, at the most." He was instantly struck and killed. The testimony is sufficient to support a submission and finding that Graham was oblivious of the approach of the Frisco train until just instantly before he was struck. Weathers testified the warning whistle was not sounded.

Plaintiff submitted her case to the jury in her instruction 1 upon Graham's actually discovered and not his discoverable peril. Terminal concedes Frisco's duty to warn upon actual discovery of peril. Whether the duty to sound an alarm by blowing the whistle arose when the engine was 150 feet from Graham, as Groves testified, or 400 feet or more from Graham, as Weathers testified, was a question for the jury alone to determine. Evans v. Atchison, T. S.F.R. Co., 345 Mo. 147, 153, 131 S.W.2d 604, 607; Moran v. Atchison, T. S.F.R. Co., 330 Mo. 278, 48 S.W.2d 881. Under the evidence of record before us the jury could reasonably conclude that had a warning by whistle been timely sounded upon Groves' first discovery of Graham, the latter might have been alerted to his danger and his "rendevous with death" avoided. Evans v. Atchison, T. S.F.R. Co., supra; Tavis v. Bush, 280 Mo. 383, 217 S.W. 274. The trial court did not err in the submission made to the jury as against Terminal.

It is next contended by Terminal that plaintiff's instruction 1 is erroneous in first defining the general obligation under the Federal Act, in part, as "the duty to exercise ordinary care". It is urged that the jury might possibly have misconstrued the quoted words to embrace the duty to discover peril. But the instruction thereafter expressly stated the duty of the railroad's enginemen to warn arose upon actual discovery of peril. The instruction was clear, unambiguous and correct under the law. The jury could not possibly have been misled. The instruction in the form given has been so many times approved that citation is unnecessary. The point is ruled against Terminal.

It is last contended the court erroneously admitted certain railroad rules governing employees which required the adoption of a safer course in cases of doubt and the maintenance of a constant lookout ahead. These rules were not pleaded or submitted. Nor are they essential to a finding of negligence in this case. Since they were used merely to demonstrate duty, not to predicate liability, and certainly since the case was submitted solely on the discovered peril theory, any validity of Terminal's objection thereto has long since passed out of the case.

The judgment of the circuit court is reversed as to appellant Frank A. Thompson, Trustee of and for the St. Louis-San Francisco Railway Company. As to appellant, the Kansas City Terminal Railway Company, the judgment of the circuit court is affirmed. It is so ordered. Clark, Douglas, Ellison and Hyde, JJ., concur; Tipton, J., concurs in result as to Terminal, and dissents as to Reversal as to Frisco, and concurs in separate concurring and dissenting opinion of Leedy, C.J.; Leedy, C.J., concurs in result as to Terminal, and dissents as to Reversal as to Frisco in separate concurring and dissenting opinion.

LEEDY, C.J.

I concur in the result of the principal opinion (affirmance) as to defendant Terminal, but am unable to agree that the judgment should be reversed as to defendant Frisco, and so dissent to that portion of the opinion. Still entertaining the views expressed in the opinion of Barrett, C., in Division II, by which the judgment was affirmed as to both defendants, I adopt it, as follows:

While Thomas Graham, a Kansas City Terminal Railway Company switchman, was assisting in a switching movement in the Terminal's yards he was struck and killed by a Frisco passenger train. In this action under the Federal Employers' Liability Act against both railroads his wife, as the administratrix of his estate, recovered a judgment of $20,000.00. Upon this appeal by the railroads it is urged that the [780] trial court should have sustained their separate motions for directed verdicts. Both railroads claim that the plaintiff's evidence does not make a submissible case under the Missouri humanitarian doctrine. The Frisco Railroad contends, in so far as its liability is concerned, that the Terminal was an independent contractor in the switching movement, that the evidence does not establish that it was engaged in interstate commerce and, in any event, that Graham was not employed by it and, therefore, for all these reasons it is not liable to the administratrix under the act.

Graham was a Terminal employee and the plaintiff does not claim that he was as a matter of fact a Frisco employee, but to establish the Terminal's liability for the Frisco's negligence and the Frisco's liability under the Federal Act the plaintiff pleaded that the Terminal owned the tracks and, by written agreement, granted and leased to the Frisco the right to use the tracks, and, therefore, both railroads were liable as employers to Graham's administratrix, "Whenever any railroad . . . shall lease its road or tracks or any part thereof to any other company or corporation, . . . the company or corporation so leasing its road, . . . shall remain liable for all acts, debts, claims, demands, judgments and liabilities of the lessee or licensee, . . . the same as if it (the lessor or licensor) operated the road, . . . and such lessee or licensee shall likewise be held liable and may sue and be sued in all cases and for the same causes, and in the same manner, as if operating its own road; . . ." Mo. R.S.A., Secs. 5163, 5164. The Terminal admits that it is made liable for the Frisco's negligence by this statute and urges along with the respondent that the Frisco is likewise made liable by this statute for the Terminal's liability under the Federal Act. Smith v. Thompson, (Mo.), 182 S.W.2d 63; Swain v. Terminal R.R. Assn., 220 Mo. App. 1088, 291 S.W. 166. The Frisco points to the act (45 U.S.C.A., Sec. 51) and contends that the words "employee" and "employer" are used in the act in their natural sense and describe the conventional relationship of employer and employee and argues that unless the relationship exists in fact that there is no liability on its part under the act. Hull v. Philadelphia R. Ry. Co., 252 U.S. 475, 40 S.Ct. 358, 64 L.Ed. 670.

It may be assumed that the Frisco's contention is correct, in general. However, the cases upon which it relies do not demonstrate that the Missouri statute does not alter the situation. Schleappe v. Terminal R.R. Assn., 339 Mo. 562, 98 S.W.2d 616; Chicago Alton R.R. Co. v. Wagner, 239 U.S. 452, 36 S.Ct. 135, 60 L.Ed. 379 and Friedman v. Vandalia R.R., 254 F. 292, were not actions under the Federal Act. In the Hull case, supra, it was specifically pointed out that a dominant rule of local law might alter the relationship of the parties in this respect but no such law was involved in that case or in Robinson v. Baltimore O.R.R. Co., 237 U.S. 84, 35 S.Ct. 491, 59 L.Ed. 849, although there was a contract between the two railroads. The mere fact of an agreement or lease between the companies may not create liability. Stevenson v. Lake Terminal R. Co., 42 F.2d 357. But, if the action is under the act and its conditions are otherwise met and apply, a state law may alter the situation and fasten liability upon a railroad when in fact the conventional relationship of employer and employee does not exist. North Carolina R.R. Co. v. Zachary, 232 U.S. 248, 34 S.Ct. 305, 58 L.Ed. 591.

The Frisco contends, in the circumstances of this case, however, that the Missouri statute does not change the situation. It says that the Federal Act controls over the state statute and, in any event, is inapplicable here. However, the Congress has not legislated upon this specific subject and the field has not been occupied or preempted by the Federal government or its agencies so as to make the Federal laws and regulations paramount. Smith v. Thompson, (Mo.) 182 S.W.2d, l.c. 66. As has been previously pointed out there is no conflict between the Federal Act and these statutes, hence the statutes have not been abrogated by the Federal Act. Francis v. Terminal R.R. Assn., (Mo.), 193 S.W.2d 909, 911. The Frisco argues, nevertheless, that if it had owned the track upon which Graham was killed that it might have been liable to the administratrix under the state wrongful death statute but not under the Federal Employers' Liability Act and [781] the fact that Graham was a Terminal employee engaged in interstate commerce does not alter the situation. In other words, the Frisco contends that it was not intended by the state statute to extend or increase its liability merely because it operates over the tracks of another under a lease but that its liability remains the same as if it owned and operated the road and, consequently, its liability in this case is measured by the law of the forum only. Shaffer v. Chicago, R.I. P. Ry. Co., 300 Mo. 477, 254 S.W. 257. The Frisco quotes the clause "and such lessee or licensee shall likewise be held liable and may sue and be sued in all cases and for the same causes, and in the same manner, as if operating its own road: . . .," and seizes upon the underscored phrase. And it would seem, standing alone, that the phrase and even the whole act up to that point do not clearly make the lessee's or licensee's liability co-extensive with and as broad as the licensor's or lessor's liability. But the statute continues and in the same sentence says that a satisfaction in full of any claim or judgment by either company shall discharge the other. Then the statute says: "And suit may be brought upon any such claim, debt, lien or liability against either the corporation to whom any such sale, transfer, lease, or assignment has been made, . . . or against both such corporations, jointly, at the option of such claimant, . . ." Thus, considering the statute as a whole, it plainly appears that the lessee's or licensee's liability is not limited to the liability of an owner but its liability is extended by the statute to include its lessor's liability. The effect of the state statute, in this respect, is to make Graham an employee of both railroads. We have re-examined Spaw v. Kansas City Ter. Ry. Co., 198 Mo. App. 552, 559-562, 201 S.W. 927, 929-930, and it is indistinguishable in principle from the present case and, we think, correctly decided. See also North Carolina R.R. Co. v. Zachary, supra, and Armstrong v. C. W.I.R.R. Co., 350 Ill. 426, 183 N.E. 478. It follows as of course if the Terminal was under the act and engaged in interstate commerce at the time that there was no error in instruction four's hypothesizing the railroads' liability upon their relationship under the lease for, if it existed, the requisite relationship of employee and employer follow under the Missouri statute. For the same reason it would not be necessary for instruction one to require a finding that Graham was the Frisco's employee. Smith v. Thompson, (Mo.) 182 S.W.2d, l.c. 69-70; Spaw v. Kansas City Ter. Ry. Co., supra; Miller v. Terminal R.R. Assn., 349 Mo. 944, 163 S.W.2d 1034.

The Frisco does not deny that the Terminal and its employee Graham were engaged in interstate commerce and particularly so with respect to two cars which it later delivered to the Frisco on an interchange track in Kansas. But the Frisco argues that as between it and the Terminal, particularly in the movement of these two cars, the Terminal was an independent contractor and, therefore, the Frisco could not be Graham's employer. What we have said with reference to the Missouri statute probably disposes of this point, but in any event the argument here is rather fictitious than sound. The Terminal is a common carrier by rail (Terminal R.R. Assn. v. U.S., 266 U.S. 17, 31, 45 S.Ct. 5, 69 L.Ed. 150) and the test under the Federal Act is whether it and its employee were engaged in interstate commerce and not whether it was an independent contractor. 45 U.S.C.A., Sec. 51; Sheehan v. Terminal R.R. Assn., 336 Mo. 709, 81 S.W.2d 305; North Carolina R.R. Co. v. Zachary, supra. Graham, in his relationship with the Terminal, was not an independent contractor as was the case in Chicago, R.I. P. Ry. Co. v. Bond, 240 U.S. 449, 36 S.Ct. 403, 60 L.Ed. 735. As between the Terminal and the Frisco the relationship may have been that of independent contractor, nevertheless the Terminal may be an employer subject to the act (Cimorelli v. New York Cent. R. Co., 148 F.2d 575) and the Frisco likewise liable as an employer by force of the Missouri statute. Spaw v. Kansas City Term. Ry. Co., supra.

Both railroads contend that the plaintiff's evidence does not permit an inference of the existence of certain conditions essential to the application of the Missouri humanitarian doctrine and, therefore, her case must fail. They say that the plaintiff's evidence shows that Graham was not oblivious of his peril at the time he was [782] struck and that there is no substantial evidence that he was oblivious within the meaning of the humanitarian doctrine. They urge, under the evidence, that prompt warning was given as soon as Graham was actually discovered in peril. He was a switchman and his duties required him to work in the yards upon and near the tracks and it is contended, therefore, that there was no duty upon the Frisco to warn him until he was actually seen in a position of peril. In this connection it is urged that the court erred in instructing the jury because there was no evidence upon which to hypothesize Graham's obliviousness and the instruction imposed a greater duty upon the railroad than that imposed by the law. It is also contended that the court erred in admitting in evidence various rules of the railroads which were not pleaded or relied upon as a basis for recovery.

Tracks two and three in the Terminal's yards are "hot tracks" upon which passenger trains continuously run into and out of the station. The Terminal crew was engaged in switching cars on and off of tracks designated as 112, 252 and 4730. These tracks were all entered by way of switches off of main track one. Just prior to the accident one car was connected with the west end of the switch engine and eight or nine cars were attached to the east end of the engine. The switch engine was moving westwardly towards Graham and the movement contemplated was to move the string of cars far enough to the west on track 112 to clear switch 252, 495 feet east of the point switch 112 connected with main line track one. To complete this movement it was necessary for the switch engine to enter upon track one. Graham's foreman was at 252 switch, seventy-five feet north and 500 feet east of the accident. Graham was about fifty feet east of the 18th Street viaduct, 500 feet west of his foreman, giving signals to his fireman on track 112. In passing the signals to his fireman Graham was standing between tracks two and three. The Frisco passenger train was westbound on track two traveling at its usual speed of approximately forty-five miles an hour. It was a clear day and Graham had an unobstructed view down track two of a quarter of a mile. The appellants say that Graham was relaying signals from his foreman, Hall, at switch 252, about 500 feet to the east and, therefore, could not have been oblivious of the oncoming train. It is said that in taking signals he was looking in the direction of the passenger train, in his line of vision with nothing to obstruct his view and, consequently, he could not have been oblivious. Furthermore, the Frisco fireman and engineer said that Graham was looking towards the passenger train.

But, this argument ignores and fails to give force to certain of the plaintiff's evidence. Moran v. Atchison, T. S.F. Ry. Co., 330 Mo. 278, 48 S.W.2d 881. Weathers, the Terminal fireman who was receiving Graham's signals, said that Graham was standing between tracks two and three, about a foot and a half or two feet from the south rail of track two or a foot from the ties of track two — within the overhang of passing cars. He said: "The train was coming from the east, all right, but he (Graham) was looking a slight bit across the tracks, not direct in line with the train. . . . he was looking to the north and east. . . . He was standing sort of parallel, maybe slightly turned a little bit to me and looking over his right shoulder." Weathers says that Graham gave a stop signal "and then he started looking at me. . . . When he finished the signal he looked up at me and he took one, maybe two, steps, placing him right alongside the rail, and he seen me yelling at him and he looked up while he was looking at me, and he stopped, I guess, trying to figure out what I was trying to tell him, and he turned and looked up and saw the train." Weathers stated that when Graham gave the stop signal the train was then three or four hundred feet to the east and from that time "never was in the clear of that rail." The foreman, Hall, said that when the train was near him at switch 252 Graham was between tracks two and three walking west with his back to him. In these circumstances the essential fact of Graham's obliviousness (Pentecost v. St. Louis Merchants Bridge Ter. R.R. Co., 334 Mo. 572, 66 S.W.2d 553) was for the jury, — an inference of fact they could resolve either way under the evidence and the hypothesis of the instructions. Womack v. Missouri [783] Pac. R.R. Co., 337 Mo. 1160, 1166-1167, 88 S.W.2d 368, 371; Jordan v. St. Joseph Ry., L., H. P. Co., 335 Mo. 319, 326, 73 S.W.2d 205, 208.

Graham was a switchman in a Terminal yard and, therefore, the appellants seek to invoke the rule that the Frisco had a right to expect a clear track and was under no duty to maintain a lookout or to warn him until after his peril was actually discovered — a duty it completely fulfilled when its engineer gave the warning blast by whistle upon seeing Graham 150 feet away. Degonia v. St. L.I.M. So. Ry. Co., 224 Mo. 564, 123 S.W. 807; Rashall v. St. L.I.M. So. Ry. Co., 249 Mo. 509, 155 S.W. 426; Martin v. Wabash Ry. Co., 325 Mo. 1107, 30 S.W.2d 735; Pentecost v. St. L.M. Ter. R.R., 334 Mo. 572, 576, 66 S.W.2d 533. It is in this connection that the appellants' rules and their objections to their admission become important. It is also the basis of their contention that instruction one erroneously imposed upon them a duty greater than that required by the law. The rule they contend for, the right to expect a clear track, the duty of yard and track employees to look out for themselves and the duty to warn only upon actual discovery of peril, applies only in the absence of the existence of a rule or custom to the contrary. Goodwin v. Missouri Pac. Ry. Co., 335 Mo. 398, 407, 72 S.W.2d 988, 991. The rules, requiring train crews to take the safer course in case of doubt and to maintain a constant lookout, were not pleaded or relied upon, nor were they essential as demonstrating negligence in this case. Jones v. St. Louis S.F. Ry. Co., 325 Mo. 1153, 30 S.W.2d 481; Kirkland v. Bixby, 282 Mo. 462, 222 S.W. 462. The rules were not used here for the substantive purpose of predicating liability upon a breach of the rules (Martin v. Wabash Ry. Co., 325 Mo., l.c. 1134-1136, 30 S.W. 2d, l.c. 748) but were used rather for the evidentiary and collateral purpose of showing that there was a duty to maintain a lookout — the breach of which might have some force under the humanitarian doctrine. Clark v. Terminal R.R. Assn., (Mo.) 111 S.W.2d 168; State ex rel. Pelligreen Const. Co. v. Reynolds, 279 Mo. 493, 498, 214 S.W. 369; Mayfield v. Kansas City So. Ry. Co., 337 Mo. 79, 91, 85 S.W.2d 116, 123. Since the rules were used solely for the purpose of evidencing the appellants' duty they were admissible without having been pleaded and did not enlarge the Frisco's duty under the law. Norton v. Wheelock, 323 Mo. 913, 926, 23 S.W.2d 142, 147; Terminal R.R. Assn. v. Schorb, 151 F.2d 361, 364. Aside from the problem of the admissibility of the rules as bearing on the Frisco's duty to maintain a lookout, however, the question now argued loses its significance in this case because the railroads' liability was in fact hypothesized upon Graham's actually discovered and not his discoverable peril and upon this theory the appellants claim to have fulfilled their obligations. Evans v. Atchison, T. S.F. Ry. Co., 345 Mo. 147, 153, 131 S.W.2d 604, 607.

The railroads, in urging that their motions for directed verdicts should have been sustained, say that the Frisco engineer was looking and promptly gave an alarm by whistle as soon as he saw Graham in peril 150 feet away and thus discharged any duty to warn. This argument, however, leaves out of view other inferences reasonably drawn from the evidence. The Frisco fireman, Groves, likewise says that the engineer gave the warning alarm when Graham was 150 feet away, just as he stepped over the north rail of track three. He said, however, that he first saw him when the train was about 600 feet from the viaduct and something less than that distance from Graham. His excuse for not then warning him was that Graham was between the rails of track three at that time, looking in his direction, and was never in danger of being struck until the train was but 150 feet away. But, as we have previously noted, Weathers, the Terminal fireman said that when the Frisco train was 500 feet from Graham and continuously during its approach that Graham was in danger of being struck by the overhang of the cars. The Frisco fireman admitted a duty and ability to warn upon the appearance of danger. The railroads concede a duty to warn upon actually discovering Graham's peril and whether that duty arose at 150 feet as the appellants' witnesses say or at 400 or 500 feet as the respondent's witnesses say was another fact for the jury to resolve. Evans v. Atchison, T. S.F. [784] Ry. Co., supra; Moran v. Atchison, T. S.F. Ry. Co., 330 Mo. 278, 48 S.W.2d 881. . . .

The motions for directed verdicts were properly overruled, . . . and as there was no error . . . the judgment should be affirmed.