DISSENTING OPINION.
BLAIR, C.This is an appeal from a judgment entered on a verdict for defendant which the court directed the jury to return at the close of plaintiff’s evidence in an action for damages for the death of Alonzo Power, who succumbed to injuries resulting from a fall off the top of a fill at the end of a trestle over a farm crossing near McFall, Missouri.
The allegations of the petition were considerably broader than the evidence (hereafter stated) offered to support it, and the answer consisted of a general denial and pleas of contributory negligence and assumption of risk.
Power was a section hand and had been in defendant’s employment in that capacity for a year and nine months and in other capacities had worked for the same company some three months. The section gang with which he worked had head-quarters at Stan-berry, and on October 25, 1907, a freight train consisting of twenty-nine cars was wrecked at a point about twenty-two miles east of Stanberry, about four and one-half miles east of .McFall and a short distance east of a trestle, known as the “curve trestle,” spanning a farm crossing. This trestle was about twenty feet above the roadway which ran beneath it. The wrecker left Stanberry about twelve m. on the day mentioned. It consisted of the wrecking car, engine and tender, *13supply car, tool ear and dining car, in the order named, and carried the section men from Stanberry and intervening sections down through McPall to the wrecked train. Other section men from Pattonsburg, the next town east of the wreck, also assisted in the work of clearing the track, which was torn up for one hundred and twenty feet.
The train arrived at the wreck about one thirty p. m. The engine and wrecking car carrying the derrick were detached from the rest of the train and proceeded to the wrecked cars, leaving the truck car or tool car, supply car and dining car near the trestle, some three hundred and fifty feet west of the wreck. As ties and rails were needed during the afternoon and evening the supply car was resorted to and materials desired were unloaded therefrom some sixty feet east of the trestle and carried by the section men east to the place where they were to be used. Power assisted in this work in the afternoon and probably in the evening, and worked for some time in plain view of the trestle and within sixty feet of it. He had*, crossed the trestle in daylight going to his place at the-wreck, but whether on foot or on one of the cars does-not appear. The men had no fixed duties but did whatever the exigencies of the constantly changing situation! demanded. The truck car, supply car and dining car were sometimes west of the trestle, sometimes on the trestle, and sometimes nearly or quite east of it, being moved about as the necessities of the work at the wreck required.
The engine and wrecking car, commencing at the west end of the wrecked train, worked backward and forward along; the wreck clearing away cars and the section men unloaded cars, burning those which were badly damaged.
During the evening the truck car, supply car and - dining car were pushed backward and forward and, according to the evidence, “they had them up and down, *14unloading rails.” The engine and wrecker “generally worked backward and forward from the wreck, tolerably close to these cars, dragging back the rubbish.” The other cars were “left up somewhere near that bridge (trestle) until they got ready for the supplies— rails and ties — and then they were pulled down there” and what was needed was unloaded and then the cars were “shoved back up there.”
Late in the afternoon the wrecker, engine and cars, ran back west to McFall and remained there while an east bound passenger train proceeded to the place of the wreck, exchanged passengers, mail, etc., with a west bound passenger train, and returned to McFall. The wrecking train then returned to the wreck and the work proceeded as before, the engine and derrick car or wrecker being detached from the supply car, tool car and dining car, and this last left west of the trestle. Whether the truck car and supply car were then left west of the trestle or detached from the dining car and pulled down east of the trestle does not appear.
Darkness then had fallen and it was a cloudy, drizzly night. The section men went, back to the dining car for supper as they could get away, by twos and threes , and fours, the accommodations not being sufficient for all at one. time, and the work at the wreck proceeded without interruption. Some of the men who went to supper before Power started carried lights and some did not. Two who went to the dining car and returned about thirty minutes before Power started found no cars on the trestle at either time they crossed it. Bonfires were burning near the wreck, but there was no fire or light at the trestle. The trestle itself had no guard rails and in that respect was like all others of its kind. The only testimony on this point is that of a section hand who said he had never seen a trestle of the kind with guard rails.
Between eight and nine o’clock, Power, William Cogdill, Mose Wilson and Barry Gray started from *15the wreck hack to the dining car for snpper. Cogdill relates what happened as follows:
“Q. I will ask you to tell the jury whether yon walked np to snpper with Mr. Powers that evening, or started to? A. Yes, sir. I walked np on the north side of the track — on the cinders. We wasn’t on the ties. The truck car was on the cnlvert, and the supply car, with rails and ties, was east. Before we got to the cnlvert, recollect, I said to Lon — I said: ‘Lon, there is a bridge here some place, but I don’t know where abonts. ’ I knew there was a bridge there, and so did he. He says: ‘Well, yon follow me.’ Of course I won’t make the remarks he did. He said: ‘Yon follow me, and I will take yon through all right.’ Well, he hadn’t any more than got the words out of his month until he fell. Well, I stepped on the block he fell off of. ■ I come that near falling.
“Q. At that time, yon didn’t know yon were that close to it? A. I didn’t know we were that near the culvert.
“Q. And he didn’t either? A. If he did, he wouldn’t have fell.
“Q. If yon had been in front of Mr. Powers, this accident would occurred to yon? A. I don’t know whether it would or not, because — I’ll tell yon, Mr. Showen, if he hadn’t knowed the road so well, I. wouldn’t have followed him. But he knew where he was going. But I didn’t. I knew! there was a bridge there, and I was going to take care of myself. I wouldn’t have went just then. There was nobody told ns to go to snpper at all.
“Q. Yon say yon walked on the cinders. What do yon mean by that ? A. Along the dump.
“Q. That is, on the middle of the track? A. No, sir. It is on the outskirts of the rails — of the ties.
“Q. Why did yon walk out there? A. Well, it is a whole lot easier walking out thére than it is stepping from one tie to the other.
*16“Q. Was there anything to warn you-people that this car was standing half on the bridge and half on the track or the road-bed? A. No, I don’t know as there was. We wasn’t looking for such as that. We was hunting our suppers.
“Q. Well, state to the jury whether or not you and Mr. Power— A. Well, I knew the bridge was there.
“Q. ' Wait until I ask the question — had any information as to the fact that that car stood half on the bridge and half on the track just east of the bridge, at that time. A. Well, we knew that the dining car was west of the bridge. There is where we were working for.
“Q. But you don’t answer my question. Read the question, Mr. Stenographer.”
Thereupon, the last question propounded to the witness by counsel for plaintiff was read to him by the stenographer, in the words and figures following, to-wit: “Q. Well, state to the jury whether or not you and Mr. Power had any information as to the fact that that car stood half on the bridge and half on the track just east,of the bridge, at that time. A. Oh, no, I didn’t know where the car'stood, as far as that is concerned.
■ “Q. I will get you to tell the jury whether it was dark or not, at that time? A. Well, it was.
“Q. Well, what was the condition of the atmosphere? Raining? A. It was cloudy and misting.”
On cross-examination this witness testified as follows :
“Q.. Now, Mr. Cogdill, you and Mr. Power both had worked up there near this bridge that afternoon, hadn’t you? A. Yes, sir. We had been all along there.
“Q. In plain sight of it, hadn’t you? A. Yes, sir. Not over two rails’ length from the culvert.
“Q. Not over two rails’ length from it. You *17could see the bridge and could see the ravine there? A. Oh, yes.
“Q. You knew there was a place there? A. Oh, yes, I knew it.
‘ ‘ Q. And you were back and forth, up and down that track, carrying rails and material, all that afternoon? A. Yes, sir.
“Q. And when you got up here to where these two cars were standing, you could see the outlines of the cars on the track, couldn’t you? A. Of course yon could see them.
“Q. The truck car and the supply car? A. The supply car and the truck car.
“Q. Of course you couldn’t see the bridge? A. Oh, no.
“Q. Now this wasn’t really a bridge? A. I could call it a culvert.
“Q. It was an underground farm crossing, and it was out in the country? A. Yes.
‘‘Q. And it didn’t have any guard rails? A. No, sir.
“Q. You never saw a bridge or a railroad crossing of that kind with guard rails, did you, out in the country? A. I never did.
“Q. Now then, nobody didn’t order you and Mr. Power to go to supper? A. Oh, no. No.
“Q. Yon went of your own accord? A. Of our own accord.
“Q. Now, when you got up here to where you could see the outline and could see this truck car and this supply car, and were walking along the side of them there, you said to Mr. Power: ‘Lon, look out!
There is a bridge here somewhere. ’ A. That is what I did.
“Q. And he says, ‘You follow me, and yon will be all right. ’ A. Yes, sir. That is just the very words that he made.
*18“Q. And, just after lie had said that — just after he had said that, he took one or two steps and fell? A. Yes, sir.
“Q. Now men had been going back and forth there all evening to their suppers, hadn’t they?”
“By the Court: Do you mean evening or afternoon, Mr. Peery?
“By Mr. Peery, Counsel for Defendant: I meant evening. After night.
“A. Yes, sir. There had been several down and back.
‘ ‘ Q. Your boy had been up there and got his supper? A. Yes.
“Q. Now this truck car and this supply ear were standing there in this same position before it got dark, were they not? A. They were there.
“Q. You had seen them standing there the last time you had seen them? A. Yes, sir. Yes, sir. Of course we was here, there and every place else. Where we was called is where we had to go to work.
“Q. Yes. But the last time you had seen this supply car and this truck car, they were there on that bridge, in that same position? A. Yes, sir.
“ Q. Now the light from the derrick that you had down here to work by was not sufficient to show the bridge and this ravine, was it? A. Oh, no. Oh, no.
“Q. But it did show the outlines of these two cars? A. Oh, yes. You could see the cars.
“Q. How? A. You could see the cars.
“Q. You could see the cars when you got up there? A. Yes. But you couldn’t see anything else.
“Q. And you and Mr. Powers were not on the track at all? A. Oh, no.
“Q. You were on the dump? A. We were on the dump — on the cinders.
“Q. On the cinders all the time? A. We were walking along on the cinders. Yes.
*19“Q. .Are you working for the company now? A. No, sir. I hain’t.”
Wilson’s testimony concerning the matter was as follows:
“Q. I will ask you to tell the jury whether or not you started to supper in the same bunch with Mr. Powers. A. Yes, sir.
“Q. Tell the jury, then, just how he went and all about it, up to the time of this accident? A. There was Harry Gray and myself and Mr. Cogdill — William Cogdill — and Mr. Powers started up the track to the dining car. We came to those cars, and we stepped off — Harry Gray and myself stepped off on the south side of the track, and Mr. Cogdill and Mr. Powers on the north side, and, about that time, I spoke to Harry and told him we were getting somewhere near that culvert. I couldn’t tell just where. He stopped, and he said, ‘Yes.’ I’heard a man fall then. About that time, Mr. Cog-dill called to Mr. Powers, he didn’t answer him, and I says: ‘Mr. Powers fell in that culvert.’ We got down the dump and got to where we could get over the fence into the roadway, and we went under the railroad. We started to him. I told Harry to go back and get the lantern, and he started back, and someone came in with a lantern before he came back — come in and struck a match first. Some fellow. I don’t know who it was. And we found him. I went to him. The lantern come pretty soon, and we picked him up, with lanterns and torches. There was several come, in a few minutes. We took him to the car and loaded him.
“Q. Was it very dark, or otherwise? A. It was pretty dark.
“Q. Could you see this car until you got to it? A. We could see the bulk of it off some distance. Yes.
“Q. In coming up to that car, you were between the rails, in the middle of the track? A. Yes, sir.
*20“Q. Two of you went to the right and two to .the left? A. Yes, sir.
“ Q. I will ask you to tell the jury if you heard any conversation there by this deceased, Power, stating that there was a bridge there that he knew of, or anything that Mr. Cogdill testified to? A. I didn’t pay any attention to it. No.
“Q. Did you hear any such talk as that? A. I don’t know as I did.
ÍCQ. The first time you heard of any bridge mentioned was when your partner, Mr. Graham, mentioned it? A. I spoke to Mr. Gray.
“Q. Mr. Gray? A. They were on one side of the ear, and me on the other.
“Q. You didn’t know when you were going up there that that bridge stood on — that that car stood on the bridge, until you got up to it, did you? A. No, sir. I hadn’t paid any attention to it.
“Q. . As a matter of fact, the cars that had been up in that part had been down a couple of rails’ length , east of the bridge in the evening, hadn’t they? A. Oh, they might have been. I didn’t pay any attention to them.
“Q. Do you know anything about how they came to be there? A. They unhooked from them and left them there, I suppose.
“Q. I will ask you to tell the jury whether it is a fact, or not, that the train-men were jamming those ears back and forth, up and down the track, to suit their convenience, all evening, and not leaving them standing in one place? A. Oh, they made repeated .trips to McFall and back.
“Q. They changed the cars around in different places all evening? A. Yes, sir.”
On cross-examination, he testified as follows:
“Q. Mr. Wilson, you assisted that afternoon in unloading rails and ties from this supply car up near this bridge, didn’t you? A. Yes, sir.
*21“Q. And in plain sight of it? A. Yes, sir.
“Q. And you saw Mr. Power there, didn’t you? A. Yes, sir.
“Q. Assisting in that work? A. Yes, sir.
“Q. And he was in plain sight of this bridge over this underground crossing? A. Yes, sir.
“Q. That afternoon. And as you men came up, .going to supper, when you got up near these cars here, it was light enough that you could see the bulk of the cars and could see that they were there on the track, wasn’t it? A. Yes, sir..
“Q. And that light came from the lights that were further down the track east, towards the wreck and the derrick? A. I don’t know whether that light had any effect up there, or not.
“Q. At all events, it was either that light, or else — ■ A. — The sky light.
“Q. — Or the sky light — one or the other. - You could see the bulk of the cars in front of you and see they were on the track? A. Yes, sir.
“Q. Thereupon, you and Mr. Gray went to the south or to the left and Mr. Cogdill and Mr. Power went to the north? A. Yes, sir.
“Q. And there was these two freight cars between you? A. Yes, sir.
“Q. And you said to Mr. Gray, ‘Look out for this trestle or this culvert?’ A. Yes, sir. I spoke something about the culvert.
“Q. And you don’t know what conversation occurred between Mr. Cogdill and Mr. Power, on the other side of the car, on the other side of the track, do you? A. No, sir. I didn’t pay no attention to that.”
Gray did not testify.
Railings on a trestle constructed over a farm crossing four miles in the country are not required or practicable in view of the use for which such trestle is designed and the lack of them does not tend to prove negligence in the circumstances of this case; further, de*22ceased did not fall by reason of the lack of snch railings on the trestle and did not fall from the trestle at all, .but fell from the top of the fill or abutment at the end of the trestle. The lack of railings had nothing to do with the injury.
Deceased knew of the existence of the trestle and that it was in the path he was following. He knew when he reached the truck car that he had not yet crossed the trestle and that both the trestle and dining car were ahead of him. He also knew that he could not continue indefinitely the course he was pursuing without falling into the roadway beneath the trestle. He knew that he was proceeding in the dark toward the trestle, and that there was no light marking its position, and was relying entirely on his own knowledge of the situation. He chose both the time he would go and the route he would take, and was master of his own movements, so far as orders were concerned, while making his way to the dining car. He undoubtedly assumed that the trestle was farther west than it was, and walked confidently along beside the track and truck car, assuring his companion he “would take him through all right” when the latter suggested they were approaching the trestle.
Deceased was bound to take notice of the changes at the wreck and the consequent increase or diminution of the distance of the west end of the wrecked train from the trestle because the only business he had there was to aid in bringing about those very changes until the entire wreck was cleared away and the track rebuilt. He was bound, also, to know that the truck car, supply car and dining car were not only not immovable but that their position was being changed as materials were needed and as the engine and wrecker pulled them down across and pushed them back to or beyond the trestle.' He had himself been aiding in the work of unloading materials from the supply car.
Deceased knew that he was walking in the dark*23ness along a path which must, if followed as far as the trestle, lead off the abutment and result in his falling, there being no possible way to get safely across the roadway on the pathway he was pursuing.
Oases in which recoveries have been upheld for injuries resulting from unblocked guard rails, defective and slippery sidewalks and passageways, uncovered hatchways, etc., are cited by. counsel. None is in point. In those cases it was not impossible for the employee to continue his labors without injury, while in this case injury from following the path deceased was traveling was as certain, if followed far enough, as the operation of the law of gravitation. This is not a case in which an employee fell into a negligently uncovered hatchway or opening in a passageway provided for his use, or platform on which he is put at work. Here there was no possibility of getting safely across the roadway unless deceased changed his route, got upon the track or cars or went down the fill and across the fences and thus around the trestle. Deceased knew the risk but elected to proceed toward the trestle in the dark, along the side of the car, on the assumption that the trestle was farther west than it was, knowing that if he had miscalculated the result would be what it was.
The case must rest upon its own peculiar circumstances and in view of them the trial court was right in holding that the deceased’s own negligence was tbe proximate cause of the injury and that there was no question for a jury to determine. Though plaintiff be given the benefit of every reasonable inference fair minded men might draw from the evidence adduced, there is no theory which would warrant a recovery. The authorities cited in the briefs lay down the principles by which this case must be ruled.
The judgment ought to be affirmed, therefore I dissent from the opinion of Boy, G.
The foregoing opinion of Blair, G., is hereby *24adopted by Graves and Ferriss, JJ., as their dissenting opinion in this case.