Graham v. Thompson , 357 Mo. 1133 ( 1948 )

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.

[1] 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.

[2] 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.

[3] 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.

[4] [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.

[5] 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.

[6] 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.

[7] 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.