Paragraph 12 of the lease sued on provides: "That when cars loaded with commodities, consigned to the lessee, are placed on said new track, or other tracks, for being unloaded by the lessee, and the lessor's locomotive is detached from said car, or cars, delivery of such commodities shall be considered completed and liability of the lessor, as common carrier or warehouseman, shall forthwith terminate. Delivery of commodities in carload lots to the lessor by the lessee shall not be deemed to have been effected until the car or cars, into which said commodities have been loaded, has, or have been taken into the actual and physical possession of the lessor by moving said car, or cars, from said new track, to other tracks, or proper bill of lading issued by the lessor to the lessee for said commodities." The pleadings in the damage suit do not show that the person killed was engaged in the business of the Atlantic Company, and there is no evidence from that trial in the record. But, assuming that *Page 805 he was one covered by the contract of indemnity, it was incumbent on the plaintiffs to prove that they were entitled to recover under the lease. The evidence does not show what kind of operation the train which injured the deceased who was unloading the car of coal was engaged in at the time of the injury. Regardless of whether the side track was a public or private one, the parties undertook to stipulate exactly to what extent operations over it were in the capacity of common carrier. The plaintiffs can not contract against their negligence, or against negligence for which they are chargeable, as a common carrier. Since it does not appear that the operation at the time of the injury was not in the capacity of a common carrier, the verdict for the defendant was demanded by the evidence.