(dissenting).
I respectfully dissent to the ruling on Frisco’s first point relied on and, of necessity, on the conclusion that the majority holding as to that point renders the second point moot.
By paragraph 11 of the lease, plaintiff agreed to assume, even if caused by Frisco’s negligence, “all damages [to structures on the leased premises] resulting from fire communicated from the right of way, loco-' motives or other machinery of [Frisco] or otherwise . . . and damage to any buildings . . . caused by or resulting in any manner from the operation or maintenance of said railroad.” In the second sentence of paragraph 11, the parties have attempted the unlikely undertaking of both releasing Frisco from liability which plaintiff had agreed to assume and indemnifying Frisco for liability otherwise assumed or released by plaintiff. In such an apparently absurd situation, the meaning and scope of the paragraph must be determined based upon the intent of the parties when the lease was made. Tri-State Gas Co. v. Kansas City Southern Railway Co., 484 S.W.2d 252, 253—254[1, 2] (Mo.1972).
The lease agreement between Frisco and plaintiff is dated May 21, 1928. A reading of § 537.380, RSMo 1978, related and predecessor statutes thereto and reported cases digested under 24A Mo.Dig. Key Number 453 et seq., Railroads, attests to the liability and volume of litigation to which railroads were subjected, at and near the birth of the lease in question, because of loss by fire communicated by coal burning-steam driven locomotive engines. Before oil came into use to fuel locomotive engines, courts took judicial notice that locomotives emitted “sparks in sufficient quantities to communicate fire to combustible materials on which they happen to fall; that the quantity of sparks emitted depends on a number of conditions; that certain types of sparks arresters are in general use on the railroads of the country; and that no device has been invented or constructed which can wholly prevent a locomotive from throwing off live sparks under certain circumstances.” 31 *410C.J.S. Evidence, § 29, at 924 and cases there cited. Considering the wording of the contract, the time (1928) and the prevailing circumstances in esse when the lease was executed, it seems clear that the specific and primary concern of Frisco was to seek legal absolution from “all damages resulting from fire.” Under the rule of ejusdem generis, the general term relating to damages “caused by or resulting in any manner” is nothing more than a “clean up” or “otherwise” phrase with respect to the specific reference to “fire” which preceded it. Limited and specific clauses in contracts operate as a modification and pro tanto nullification of general terms and provisions. State ex rel. Smith v. City of Springfield, 375 S.W.2d 84, 91[2] (Mo. banc 1964); In re Marriage of Buchmiller, 566 S.W.2d 256, 259[6] (Mo.App.1978); 28 C.J.S. Ejusdem generis, pp. 1049-1050; 17 Am.Jur.2d, Contracts, § 270, pp. 677-679.
As to the indemnity aspect of the lease, it is to be again noted that Frisco’s train which figured in the collision was traveling west on the northernmost or main-line track. The ensuing derailment caused train cars to strike and derail hopper cars standing west of the intersection on the southernmost or team track and these, in turn, are what damaged plaintiff’s building.
“It is clear that two parties may enter into a valid contract whereby one is indemnified by the other against loss by-the former (indemnitee) as the result of his own negligence. . . . [The] law has wisely required that such broad and comprehensive indemnification agreement be expressed in clear, unequivocal and unambiguous terms. Courts in Missouri have not (and should not) construe such an indemnity contract, protecting against negligence, -in the absence of such clear expression or where any doubt exists as to the intention of the parties.” Southwestern Bell Tel. Co. v. J. A. Tobin Const. Co., 536 S.W.2d 881, 884-885[2, 3] (Mo.App.1976). There-are no clear, unequivocal and unambiguous terms in the agreement which contemplate or cover the casualty in question. The indemnification in the second sentence of paragraph 11 of the lease simply alludes to “all damages in this paragraph referred to.” As already seen, the only clear expression in reference to damages is loss resulting from fire, a loss which did not occur here. “[M]ere general, broad, and seemingly all-inclusive language in the indemnifying agreement is not sufficient to impose liability for the indemnitee’s own negligence.” Kansas City Power & Light Co. v. Federal Const. Corp., 351 S.W.2d 741, 745[2] (Mo. 1961). Frisco’s first point, in my opinion, should be denied.
In view of my dissent regarding Frisco’s first point relied on, supra, its challenging of the correctness of plaintiff’s verdict directing instruction does not make moot Frisco’s second point.
Frisco’s second point relied on and the argument thereto are prolix and difficult for full comprehension. In substance, Frisco’s point asserts the trial court erred in giving plaintiff’s instruction number 3 because it permitted the jury to find Frisco negligent for failing “to cause its trains to be operated at more a [sic] restricted speed” and “for failing to have electronic signals at the crossing”, when such issues were un-pleaded and not supported by the evidence. The difficulty of comprehending the point becomes self-evident when plaintiff’s allegations of Frisco’s negligence and instruction numbered 3 are considered together.
Inter alia, plaintiff’s petition averred that. Frisco was negligent because it “operated said freight train at an excessive and dangerous rate of speed [and] failed to sound a warning.” Instruction No. 3 charged the jury to find for plaintiff against Frisco if it believed “Frisco either: operated its train at an excessive speed, or operated its train toward the Center Street intersection without first giving an adequate and timely warning . . . .”
The speed tape on Frisco’s train showed the train was traveling 48 to 49 m. p. h. when it collided with Centropolis’ truck at the grade crossing. Frisco’s self-concocted speed limit at the crossing was 55 m. p. h. Based on this, albeit there was no question that the train was being operated by Frisco’s engineer, Frisco theorizes, in a most *411strained fashion, that since the instruction did not refer to the train being run by an engineer or agent of Frisco, the charge that the train was being run at an excessive speed could be jury-interpreted as an instruction that Frisco failed “to have in force and effect a more restrictive speed limit through Fordland and across Center Street than 55 Miles Per Hour.” The uniqueness of this assertion is matched only by its implausibility. Irrespective of speed limits, whether self-imposed or set by statutes or ordinances, the ultimate issue for determination was not whether Frisco was negligent in not having a more restrictive speed limit than 55 m. p. h., but whether the train, under the then existing circumstances, was being operated at an excessive speed and that is exactly what the instruction submitted. Cf. Dorrel v. Moore, 504 S.W.2d 174, 179[8] (Mo.App.1973); Rakes-traw v. Norris, 478 S.W.2d 409, 415[9] (Mo.App.1972). “What . . . constitutes excessive or dangerous speed by a railroad engine or train, in passing over a crossing, is always dependent upon the facts or surrounding circumstances of the particular case, and by this rule will the character of the engine’s speed be measured.” Beal v. Chicago, B. & Q. R. Co., 285 S.W. 482, 485[3] (Mo.1926). Furthermore, if Frisco feared the instruction was susceptible to misunderstanding, it was incumbent upon Frisco to submit an explanatory or modifying instruction before it can be heard to complain. Frisco offered no such instruction. Barber v. M. F. A. Milling Co., 536 S.W.2d 208, 210[7] (Mo.App.1976).
Frisco’s second part of point II refers to that portion of Instruction No. 3 which alternatively allowed plaintiff recovery if Frisco “operated its train toward the Center Street intersection without first giving an adequate and timely warning.” Because the jury had leave to believe all, part or none of the testimony of any witness [Robinson v. St. John’s Medical Center, Joplin, 508 S.W.2d 7, 11[3] (Mo.App.1974)], Frisco tacitly cedes it would have been proper to give the instruction had the issue been solely confined to whether Frisco did or did not give an adequate and timely warning by bell or whistle. However, Frisco urges that, in view of objected-to evidence that “there ■ were no electronic signals at the intersection”, the instruction prompted the injection of the issue as to whether Frisco “should have had electronic signals at the intersection” when such had not been pleaded as a charge of negligence.
The duties, statutory and at common law, of railroads to signal the approach of trains at public crossings are ably stated by Gunn, J., in Koehler v. Burlington Northern, Inc., 573 S.W.2d 938, 943-944[4-11] (Mo.App.1978), and need not be repeated here. In the instant case testimony anent the absence of electronic signals at the crossing was simply evidence of surrounding circumstances which was relevant both to a determination of whether Frisco’s train was being operated at an excessive speed and to the means or adequacy of a warning, Plaintiff did not plead nor argue that any duty rested on Frisco to have given any kind of warning other than a whistle or a bell. Defendants in Hackett v. Wabash Railroad Company, 271 S.W.2d 573, 577, 579[13] (Mo.1954), concerning plaintiff’s instruction regarding defendants’ duty “to give a timely and adequate warning of the' approach of a train,” asserted the charge gave the jury' a “roving commission” to determine the kind of warning that should have been given. To this, the court said: “In making this contention, defendants-appellants say the jury may have believed the testimony of defendants’ witnesses that a whistle and bell were sounded and yet have found for plaintiff on the theory that other means of warning should have been utilized at the crossing, for examples — a flagman, a gate, or an automatic bell or other automatic warning system. . . . [P]laintiff did not argue that any duty rested on defendants to have given any kind of a warning other than by whistle or bell. Plaintiff did not plead or contend the circumstances demanded the duty to take the precaution of using any means of warning other than by whistle or bell. We believe there is no real substance in this contention.” I likewise believe there is no real substance in the *412second portion of defendant’s point II and the same should be denied.
For the reasons aforesaid, I dissent.