I concur in the result of the principal opinion (affirmance) as to defendant Terminal, but am unable to agree that the judgment should be reversed as to defendant Frisco, and so dissent to that portion of the opinion. Still entertaining the views expressed in the opinion of Barrett, C., in Division II, by which the judgment was affirmed as to both defendants, I adopt it, as follows:
While Thomas Graham, a Kansas City Terminal Railway Company switchman, was assisting in a switching movement in the Terminal's yards he was struck and killed by a Frisco passenger train. In this action under the Federal Employers' Liability Act against both railroads his wife, as the administratrix of his estate, recovered a judgment of $20,000.00. Upon this appeal by the railroads it is urged that the [780] trial court should have sustained their separate motions for directed verdicts. Both railroads claim that the plaintiff's evidence does not make a submissible case under the Missouri humanitarian doctrine. The Frisco Railroad contends, in so far as its liability is concerned, that the Terminal was an independent contractor in the switching movement, that the evidence does not establish that it was engaged in interstate commerce and, in any event, that Graham was not employed by it and, therefore, for all these reasons it is not liable to the administratrix under the act.
[8] Graham was a Terminal employee and the plaintiff does not claim that he was as a matter of fact a Frisco employee, but to establish the Terminal's liability for the Frisco's negligence and the Frisco's liability under the Federal Act the plaintiff pleaded that the Terminal owned the tracks and, by written agreement, granted and leased to the Frisco the right to use the tracks, and, therefore, both railroads were liable as employers to Graham's administratrix, "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, . . . 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; *Page 1155 . . ." Mo. R.S.A., Secs. 5163, 5164. The Terminal admits that it is made liable for the Frisco's negligence by this statute and urges along with the respondent that the Frisco is likewise made liable by this statute for the Terminal's liability under the Federal Act. Smith v. Thompson, (Mo.), 182 S.W.2d 63; Swain v. Terminal R.R. Assn., 220 Mo. App. 1088, 291 S.W. 166. The Frisco points to the act (45 U.S.C.A., Sec. 51) and contends that the words "employee" and "employer" are used in the act in their natural sense and describe the conventional relationship of employer and employee and argues that unless the relationship exists in fact that there is no liability on its part under the act. Hull v. Philadelphia R. Ry. Co., 252 U.S. 475, 40 S. Ct. 358, 64 L. Ed. 670.
It may be assumed that the Frisco's contention is correct, in general. However, the cases upon which it relies do not demonstrate that the Missouri statute does not alter the situation. Schleappe v. Terminal R.R. Assn., 339 Mo. 562,98 S.W.2d 616; Chicago Alton R.R. Co. v. Wagner, 239 U.S. 452, 36 S. Ct. 135, 60 L. Ed. 379 and Friedman v. Vandalia R.R., 254 F. 292, were not actions under the Federal Act. In the Hull case, supra, it was specifically pointed out that a dominant rule of local law might alter the relationship of the parties in this respect but no such law was involved in that case or in Robinson v. Baltimore O.R.R. Co., 237 U.S. 84, 35 S. Ct. 491, 59 L. Ed. 849, although there was a contract between the two railroads. The mere fact of an agreement or lease between the companies may not create liability. Stevenson v. Lake Terminal R. Co.,42 F.2d 357. But, if the action is under the act and its conditions are otherwise met and apply, a state law may alter the situation and fasten liability upon a railroad when in fact the conventional relationship of employer and employee does not exist. North Carolina R.R. Co. v. Zachary, 232 U.S. 248, 34 S. Ct. 305, 58 L. Ed. 591.
The Frisco contends, in the circumstances of this case, however, that the Missouri statute does not change the situation. It says that the Federal Act controls over the state statute and, in any event, is inapplicable here. However, the Congress has not legislated upon this specific subject and the field has not been occupied or preempted by the Federal government or its agencies so as to make the Federal laws and regulations paramount. Smith v. Thompson, (Mo.) 182 S.W.2d, l.c. 66. As has been previously pointed out there is no conflict between the Federal Act and these statutes, hence the statutes have not been abrogated by the Federal Act. Francis v. Terminal R.R. Assn., (Mo.),193 S.W.2d 909, 911. The Frisco argues, nevertheless, that if it had owned the track upon which Graham was killed that it might have been liable to the administratrix under the state wrongful death statute but not under the Federal Employers' Liability Act and[781] the fact that Graham was a Terminal employee *Page 1156 engaged in interstate commerce does not alter the situation. In other words, the Frisco contends that it was not intended by the state statute to extend or increase its liability merely because it operates over the tracks of another under a lease but that its liability remains the same as if it owned and operated the road and, consequently, its liability in this case is measured by the law of the forum only. Shaffer v. Chicago, R.I. P. Ry. Co.,300 Mo. 477, 254 S.W. 257. The Frisco quotes the clause "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 seizes upon the underscored phrase. And it would seem, standing alone, that the phrase and even the whole act up to that point do not clearly make the lessee's or licensee's liability co-extensive with and as broad as the licensor's or lessor's liability. But the statute continues and in the same sentence says that a satisfaction in full of any claim or judgment by either company shall discharge the other. Then the statute says: "And suit may be brought upon any such claim, debt, lien or liability against either thecorporation to whom any such sale, transfer, lease, or assignment has been made, . . . or against both suchcorporations, jointly, at the option of such claimant, . . ." Thus, considering the statute as a whole, it plainly appears that the lessee's or licensee's liability is not limited to the liability of an owner but its liability is extended by the statute to include its lessor's liability. The effect of the state statute, in this respect, is to make Graham an employee of both railroads. We have re-examined Spaw v. Kansas City Ter. Ry. Co., 198 Mo. App. 552, 559-562, 201 S.W. 927, 929-930, and it is indistinguishable in principle from the present case and, we think, correctly decided. See also North Carolina R.R. Co. v. Zachary, supra, and Armstrong v. C. W.I.R.R. Co., 350 Ill. 426,183 N.E. 478. It follows as of course if the Terminal was under the act and engaged in interstate commerce at the time that there was no error in instruction four's hypothesizing the railroads' liability upon their relationship under the lease for, if it existed, the requisite relationship of employee and employer follow under the Missouri statute. For the same reason it would not be necessary for instruction one to require a finding that Graham was the Frisco's employee. Smith v. Thompson, (Mo.) 182 S.W.2d, l.c. 69-70; Spaw v. Kansas City Ter. Ry. Co., supra; Miller v. Terminal R.R. Assn., 349 Mo. 944, 163 S.W.2d 1034.
The Frisco does not deny that the Terminal and its employee Graham were engaged in interstate commerce and particularly so with respect to two cars which it later delivered to the Frisco on an interchange track in Kansas. But the Frisco argues that as between it and the Terminal, particularly in the movement of these two cars, the Terminal was an independent contractor and, therefore, the Frisco could not be Graham's employer. What we have said with reference *Page 1157 to the Missouri statute probably disposes of this point, but in any event the argument here is rather fictitious than sound. The Terminal is a common carrier by rail (Terminal R.R. Assn. v. U.S., 266 U.S. 17, 31, 45 S. Ct. 5, 69 L. Ed. 150) and the test under the Federal Act is whether it and its employee were engaged in interstate commerce and not whether it was an independent contractor. 45 U.S.C.A., Sec. 51; Sheehan v. Terminal R.R. Assn.,336 Mo. 709, 81 S.W.2d 305; North Carolina R.R. Co. v. Zachary, supra. Graham, in his relationship with the Terminal, was not an independent contractor as was the case in Chicago, R.I. P. Ry. Co. v. Bond, 240 U.S. 449, 36 S. Ct. 403, 60 L. Ed. 735. As between the Terminal and the Frisco the relationship may have been that of independent contractor, nevertheless the Terminal may be an employer subject to the act (Cimorelli v. New York Cent. R. Co., 148 F.2d 575) and the Frisco likewise liable as an employer by force of the Missouri statute. Spaw v. Kansas City Term. Ry. Co., supra.
[9] Both railroads contend that the plaintiff's evidence does not permit an inference of the existence of certain conditions essential to the application of the Missouri humanitarian doctrine and, therefore, her case must fail. They say that the plaintiff's evidence shows that Graham was not oblivious of his peril at the time he was [782] struck and that there is no substantial evidence that he was oblivious within the meaning of the humanitarian doctrine. They urge, under the evidence, that prompt warning was given as soon as Graham was actually discovered in peril. He was a switchman and his duties required him to work in the yards upon and near the tracks and it is contended, therefore, that there was no duty upon the Frisco to warn him until he was actually seen in a position of peril. In this connection it is urged that the court erred in instructing the jury because there was no evidence upon which to hypothesize Graham's obliviousness and the instruction imposed a greater duty upon the railroad than that imposed by the law. It is also contended that the court erred in admitting in evidence various rules of the railroads which were not pleaded or relied upon as a basis for recovery.
Tracks two and three in the Terminal's yards are "hot tracks" upon which passenger trains continuously run into and out of the station. The Terminal crew was engaged in switching cars on and off of tracks designated as 112, 252 and 4730. These tracks were all entered by way of switches off of main track one. Just prior to the accident one car was connected with the west end of the switch engine and eight or nine cars were attached to the east end of the engine. The switch engine was moving westwardly towards Graham and the movement contemplated was to move the string of cars far enough to the west on track 112 to clear switch 252, 495 feet east of the point switch 112 connected with main line track one. To complete *Page 1158 this movement it was necessary for the switch engine to enter upon track one. Graham's foreman was at 252 switch, seventy-five feet north and 500 feet east of the accident. Graham was about fifty feet east of the 18th Street viaduct, 500 feet west of his foreman, giving signals to his fireman on track 112. In passing the signals to his fireman Graham was standing between tracks two and three. The Frisco passenger train was westbound on track two traveling at its usual speed of approximately forty-five miles an hour. It was a clear day and Graham had an unobstructed view down track two of a quarter of a mile. The appellants say that Graham was relaying signals from his foreman, Hall, at switch 252, about 500 feet to the east and, therefore, could not have been oblivious of the oncoming train. It is said that in taking signals he was looking in the direction of the passenger train, in his line of vision with nothing to obstruct his view and, consequently, he could not have been oblivious. Furthermore, the Frisco fireman and engineer said that Graham was looking towards the passenger train.
But, this argument ignores and fails to give force to certain of the plaintiff's evidence. Moran v. Atchison, T. S.F. Ry. Co., 330 Mo. 278, 48 S.W.2d 881. Weathers, the Terminal fireman who was receiving Graham's signals, said that Graham was standing between tracks two and three, about a foot and a half or two feet from the south rail of track two or a foot from the ties of track two — within the overhang of passing cars. He said: "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 train. . . . he was looking to the north and east. . . . He was standing sort of parallel, maybe slightly turned a little bit to me and looking over his right shoulder." Weathers says that Graham gave a stop signal "and then he started looking at me. . . . When he finished the signal he looked up at me and he took one, maybe two, steps, placing him right alongside the rail, and he seen me yelling at him and he looked up while he was looking at me, and he stopped, I guess, trying to figure out what I was trying to tell him, and he turned and looked up and saw the train." Weathers stated that when Graham gave the stop signal the train was then three or four hundred feet to the east and from that time "never was in the clear of that rail." The foreman, Hall, said that when the train was near him at switch 252 Graham was between tracks two and three walking west with his back to him. In these circumstances the essential fact of Graham's obliviousness (Pentecost v. St. Louis Merchants Bridge Ter. R.R. Co., 334 Mo. 572, 66 S.W.2d 553) was for the jury, — an inference of fact they could resolve either way under the evidence and the hypothesis of the instructions. Womack v. Missouri [783] Pac. R.R. Co., 337 Mo. 1160, 1166-1167,88 S.W.2d 368, 371; Jordan v. *Page 1159 St. Joseph Ry., L., H. P. Co., 335 Mo. 319, 326,73 S.W.2d 205, 208.
[10] Graham was a switchman in a Terminal yard and, therefore, the appellants seek to invoke the rule that the Frisco had a right to expect a clear track and was under no duty to maintain a lookout or to warn him until after his peril was actually discovered — a duty it completely fulfilled when its engineer gave the warning blast by whistle upon seeing Graham 150 feet away. Degonia v. St. L.I.M. So. Ry. Co., 224 Mo. 564, 123 S.W. 807; Rashall v. St. L.I.M. So. Ry. Co., 249 Mo. 509, 155 S.W. 426; Martin v. Wabash Ry. Co., 325 Mo. 1107, 30 S.W.2d 735; Pentecost v. St. L.M. Ter. R.R., 334 Mo. 572, 576,66 S.W.2d 533. It is in this connection that the appellants' rules and their objections to their admission become important. It is also the basis of their contention that instruction one erroneously imposed upon them a duty greater than that required by the law. The rule they contend for, the right to expect a clear track, the duty of yard and track employees to look out for themselves and the duty to warn only upon actual discovery of peril, applies only in the absence of the existence of a rule or custom to the contrary. Goodwin v. Missouri Pac. Ry. Co., 335 Mo. 398, 407,72 S.W.2d 988, 991. The rules, requiring train crews to take the safer course in case of doubt and to maintain a constant lookout, were not pleaded or relied upon, nor were they essential as demonstrating negligence in this case. Jones v. St. Louis S.F. Ry. Co., 325 Mo. 1153, 30 S.W.2d 481; Kirkland v. Bixby,282 Mo. 462, 222 S.W. 462. The rules were not used here for the substantive purpose of predicating liability upon a breach of the rules (Martin v. Wabash Ry. Co., 325 Mo., l.c. 1134-1136, 30 S.W. 2d, l.c. 748) but were used rather for the evidentiary and collateral purpose of showing that there was a duty to maintain a lookout — the breach of which might have some force under the humanitarian doctrine. Clark v. Terminal R.R. Assn., (Mo.) 111 S.W.2d 168; State ex rel. Pelligreen Const. Co. v. Reynolds,279 Mo. 493, 498, 214 S.W. 369; Mayfield v. Kansas City So. Ry. Co., 337 Mo. 79, 91, 85 S.W.2d 116, 123. Since the rules were used solely for the purpose of evidencing the appellants' duty they were admissible without having been pleaded and did not enlarge the Frisco's duty under the law. Norton v. Wheelock,323 Mo. 913, 926, 23 S.W.2d 142, 147; Terminal R.R. Assn. v. Schorb, 151 F.2d 361, 364. Aside from the problem of the admissibility of the rules as bearing on the Frisco's duty to maintain a lookout, however, the question now argued loses its significance in this case because the railroads' liability was in fact hypothesized upon Graham's actually discovered and not his discoverable peril and upon this theory the appellants claim to have fulfilled their obligations. Evans v. Atchison, T. S.F. Ry. Co., 345 Mo. 147, 153, 131 S.W.2d 604, 607. *Page 1160
[11] The railroads, in urging that their motions for directed verdicts should have been sustained, say that the Frisco engineer was looking and promptly gave an alarm by whistle as soon as he saw Graham in peril 150 feet away and thus discharged any duty to warn. This argument, however, leaves out of view other inferences reasonably drawn from the evidence. The Frisco fireman, Groves, likewise says that the engineer gave the warning alarm when Graham was 150 feet away, just as he stepped over the north rail of track three. He said, however, that he first saw him when the train was about 600 feet from the viaduct and something less than that distance from Graham. His excuse for not then warning him was that Graham was between the rails of track three at that time, looking in his direction, and was never in danger of being struck until the train was but 150 feet away. But, as we have previously noted, Weathers, the Terminal fireman said that when the Frisco train was 500 feet from Graham and continuously during its approach that Graham was in danger of being struck by the overhang of the cars. The Frisco fireman admitted a duty and ability to warn upon the appearance of danger. The railroads concede a duty to warn upon actually discovering Graham's peril and whether that duty arose at 150 feet as the appellants' witnesses say or at 400 or 500 feet as the respondent's witnesses say was another fact for the jury to resolve. Evans v. Atchison, T. S.F. [784] Ry. Co., supra; Moran v. Atchison, T. S.F. Ry. Co., 330 Mo. 278, 48 S.W.2d 881. . . .
The motions for directed verdicts were properly overruled, . . . and as there was no error . . . the judgment should be affirmed.