ON MOTION FOR REHEARING!.
ALLEN, J.Appellant in its motion for rehearing complains of our ruling to the effect that the trial court did not err in excluding from evidence the contract between the appellant railroad company and Scribner, the general contractor. Appellant’s argument is that, though neither respondent nor his father, the subcontractor who had the custody and control of respondent’s property, was named as a party to the contract, nevertheless it was a contract made for the subcontractor’s benefit in that it gave free transportation for his men and machinery;' that the subcontractor accepted the benefits thereof, and that he and respondent must be bound by its obligations.
The question of the admissibility of this contract we think is sufficiently disposed of by what we said in the course of the opinion, particularly since the defense thus sought to be interposed is an affirmative one, not available to appellant under its general denial. However, it may be further said that an examination of the written contract reveals that the paragraph herein relied upon merely provides that the general contractor will hold appellant harmless from liability for damage to property of the contractor or subcontractor, their agents and employees, and for death or injury to the contractor, subcontractor, their agents and em*533ployees, “if and while said persons or property are being carried, free of charge, on or over any of the lines of railroad of the railroad company.” It appears that the property destroyed was not actually “being carried” on or over defendant’s line of road. It had been used in the construction work aforesaid, and had been collected at the point where destroyed for convenience in loading it upon cars, but the carriage had not in fact begun, and the contract appears to contemplate only loss of damage while property is actually en route over appellant’s, or some other, line of railroad.
Furthermore, it does not appear that respondent or his father may be held to be bound by this clause as was the contractor. The contract between plaintiff’s father and the general contractor was not in evidence; and the former testified that he knew nothing about the latter’s arrangements with the company respecting the transportation, though the general contractor agreed with him that free transportation for machinery and men would be furnished. The contract between appellant and the general contractor provides that the latter will hold the former harmless from any liability to a subcontractor while machinery and men are being carried free of charge. It may be that the appellant would have recourse against the general contractor (a matter with which we are not concerned), but it does not appear that this plaintiff, either directly or through the instrumentality of his agent, agreed to relieve appellant from liability for such a casualty as that for which the suit proceeds.
The motion for rehearing is overruled.