It will not do to say that a railroad com

created by an express contract, and not one | 143 Mo. App. 393, 127 S. W. 595. Special created by an implied contract. The rela- conditions are frequently imposed for the tion of passenger and carrier may be created transportation of passengers upon freight by either express or implied contract. In trains, and such conditions must be complied this case it was by express contract, and we with by the passenger, or he may be exmust deal with the case in that light. That it pelled. 6 Cyc. 552. is more hazardous to ride on a freight train in a freight car, loaded with stock and mer-pany may not impose reasonable restrictions chandise, than in the caboose of the same train is a matter of common knowledge. The contract of carriage fixed the place upon defendant's train where the plaintiff must be when such train was in motion or about to be put in motion. This contract of carriage is contained in two instruments, both signed by plaintiff, i. e., (1) the live stock contract, and (2) the drover's pass. The latter is printed on the back of the former. Clause 8 of the "live stock contract," so far as required, reads:

"That the person, or persons, in charge of the live stock covered by this contract, shall remain in the caboose car attached to the train, while the same is in motion, or about to be put in motion, and that whenever such person, or persons, shall leave the caboose or pass over or along the cars, or track, they shall do so at their own risk of personal injury from every cause whatever, and that the said first party shall not be required to stop or start its train or caboose cars, from depot platforms, or furnish lights for the accommodation or safety of such persons.'

From the reverse side of the contract and in the body of the drover's pass we find the following:

"The party or parties in charge of this stock shall and they hereby agree to observe the following regulations and identify themselves whenever required to do so by any conductor: (1) Remain in the caboose attached to the train drawing said cars while the train is in motion. (2) Get on and off said caboose while the same is still. (3) Get on or be on no freight or other cars while switching is being done at stations. (4) Will not walk or stand on any track at stations or other places at night without a lan

tern."

Plaintiff maintains that the whole instrument was in evidence, and we think it was, and will so treat it. That plaintiff, at the time of his accident, was in a place in violation of these written instruments there

can be no doubt. How does such conduct upon his part affect his case? This is the first vital question. After that will come the question of waiver of the contract, as well as the effect of other clauses of the contract. For the present we take the case as if there were no waiver of the terms of the contract of carriage, and as if there were no other conditions cutting down the full force and effect of the conditions we have set out, supra. These restrictions in a contract of carriage have been held to be reasonable and valid. Railroad v. Sparks, 55 Kan. 288, 39 Pac. 1032; Tuley v. Railroad, 41 Mo. App. loc. cit. 435; Fussellman v. Railway Co., 139 Mo. App. 198, 122 S. W. 1137; Bruce v. Railroad, 136 Mo. App. 204, 116 S. W. 447; Aufdenberg v. Railway Co., 132 Mo. 565, 34 S. W. 485; Youmans v. Railway Co.,

upon the right to ride upon its freight trains. Such company has a right to say, "You can ride upon a freight train, but if you do so ride you must ride in the caboose, which has been arranged for such purposes." I do not understand that counsel for the plaintiff seriously deny this proposition, but their theories we take later. Under this proposition

we come to a further question. If in violation of the contract the passenger rides in a more dangerous place, and by reason of that fact is injured, can he recover? We say no. In this case there is no question that the place in which plaintiff was riding was at least one of the proximate causes of his injury. In other words, had he been riding in the caboose, as demanded by his contract of carriage, he would not have been injured. Under the facts shown, therefore, we must find this as a matter of law. And as stated, supra, we must know that it is more hazardous to ride in a freight car with stock and

goods than in a caboose at the end of the train. In the Sparks Case, supra, the Kansas Court passed upon a contract almost in the exact wording of the contract in issue here. The conclusion of the court is well stated in the first paragraph of the syllabi thus:

"A written contract with a railway company, signed by the shipper of live stock, providing that such shipper, while being carried upon the train transporting his stock, shall remain in the caboose car attached to the train while the same is moving, is valid and binding between the parties thereto. Such a contract is a reasonable one, intended for the safety and convenience of the shipper, as well as for the proIt does not contravene any law or a sound pubtection of the railway company carrying him. lic policy."

In the Tuley Case, supra, that distinguished jurist, Judge Rombauer, thus speaks:

re

"Touching the second proposition, we say that it is wholly immaterial whether the instruction to agents and shippers was formally part of the live stock contract signed by the plaintiff or not. It was a reasonable regulation of the company, purporting, in express terms, to be directed to him as a shipper, of which, under the uncontroverted evidence, he was bound to take notice, and of which, unquestionably, under the facts of this case, he had actual notice. A passenger who is ceived on a freight train is entitled to the same rights as one on a passenger train, except that by so doing he acquiesces in the usual incidents and conduct of a freight train, managed by prudent and competent men. McGee v. Rep. 706. It cannot be expected,' says Judge Railroad, 92 Mo. 208, 4 S. W. 739, 1 Am. St. Thompson, in his work on Carriers, p. 234, 'that a company will provide its freight trains with all the conveniences and safeguards against danger which may properly be demanded of it in the construction and operation of cars designed solely for the transportation of

passengers.' That the prima facie presumption of negligence arises in these cases from the mere happening of the accident is a proposition not open to discussion. Lemon v. Chanslor, 68 Mo. 340 [30 Am. Rep. 799]; Coudy v. Railroad, 85 Mo. 79; Hipsley v. Railroad, 88 Mo. 348. But the passenger who seeks to recover on this presumption alone must show, not only that he was a passenger, but also that, at the date of the accident, he was in a place where he had a right to be, or at least that the place where he was, if he was not in the right place, did not affect the result."

The instructions to shippers, spoken of by Judge Rombauer, included a direction to ride in the caboose, thus covering the exact question involved in the contract of carriage in this case.

In 3 Thompson on Negligence, § 2911, it is said:

"Injuries to stockmen have been so frequent that railroad companies have found it necessary to insert in the so-called drover's pass a written contract, generally signed by the shipper or by the holder of the pass, requiring him, while riding on the train, to remain in the caboose attached thereto, while the train is moving. Such a stipulation is valid and binding upon the stockman, and if he is killed in consequence of its violation, under such circumstances that the fact of its violation is the proximate cause of the injury, there can be no recovery of damages."

And the same author further says: "The word 'motion' in such a contract means that continuous movement of cars towards their destination, which is commonly understood when we speak of moving trains or a train in motion, and does not mean a sudden jolt or jar of a car while the train is stationary."

We shall not quote further, for the cases generally recognize the reasonableness of this restriction, whether such restriction is in the contract of carriage, or is a mere rule or regulation of the carrier. The restriction, being in the contract, prevents a denial of knowledge which is sometimes discussed in cases where it is a mere rule or regulation. Going now a step further. If the plaintiff was in a place where he was by the contract forbidden to be, and the fact of being in that place was one of the producing causes of his injury upon the facts shown, can he recover? A general rule is thus announced in 6 Cyc. p. 653:

"To ride in a car not intended for passengers, such as a baggage, mail, or express car, and without the consent of the carrier's servants, is usually considered negligence per se so far as to absolutely defeat recovery for injuries which would not have been sustained had the passenger been in a proper place. It is usually for the jury to say whether the injury is the proximate result of riding in such car."

[7] IV. But it is urged that there are other clauses of the contract which gave the right to be where he was at the time, and that the whole contract must be considered. We grant the latter proposition. We shall take the whole contract of carriage. These other provisions are:

"Second. That the first party is exempted from liability for loss or damage arising from derailments, collision, fire, escapement from cars, heat, suffocation, overloading, crowding, maiming, or other accident or causes not aris ing from negligence of the first party.

"Third. That the second party shall assume all risk and expense of feeding, watering, bedding, and otherwise caring for the live stock covered by this contract while in cars, yards pens, or elsewhere, and shall load and unload the same at his own expense and risk.

"Fourth. That the party is exempted from liability for loss or damage caused by any mob, strike, or threatened or actual violence to person or property from any source. *

"Seventh. That this contract does not en

title the holder thereof, or any other person, to
ride on any train except for the purpose and in
accordance with the conditions printed on the
back hereof, all of which are agreed to be a
part of this contract, nor to ride in the cars of
any train except that in which the live stock
covered by the contract is transported, nor to
return passage from destination of live stock to
point of origin, unless this contract is present-
ed within
days from date hereof to

the properly authorized agent of the first par-
ty for return pass; that such pass, properly ob-
tained as above, shall be used within 24 hours
after date and hour issued, by such person or
persons only whose names are written therein,
and who actually accompanied the live stock
for the purpose of caring therefor, and shall
not include women, infants, or other persons
live stock in transit, as required by this con-
unable to perfrom the services of caring for
tract."

The conditions printed on the back, as mentioned in the seventh clause of the contract

above, are the conditions which we have set out as a part of the drover's pass, supra. There is not a word in any of these provisions which cuts down or modifies the terms of clause 8 of the contract, which says that the plaintiff shall ride in the caboose when the train is in motion. Grant it that these clauses do make it incumbent upon the plaintiff to look after his stock, and feed and water the same whilst in transit, it does not authorize him to do this whilst the train is in motion. The contract must be construed, if it can be so construed, in such manner as will permit all of its provisions to stand and to have force and effect. This rule of conThere are times struction is elemental. when these freight trains stop at stations and watering places. At such times the train is not in motion, as this term is defined by Judge Thompson. At such times and places the plaintiff had the right to go into the stock car and care for his stock, but when he saw the train was about to be put in motion, or was in motion, he had no such rights. So, taking the facts thus far disclosed and This contract, fairly construed, did not authe contract of carriage thus far outlined, the thorize the plaintiff to be in the car for any plaintiff was not entitled to recover. He was purpose at the time of this accident. But not in fact a passenger, because not riding plaintiff says Bolton v. Mo. Pac. Ry. Co., 172 where his contract said that he should ride. | Mo. 92, 72 S. W. 530, is authority in his fa

In this case the undisputed evidence shows that, had plaintiff been in the caboose, he would not have been hurt; therefore there was no question for the jury as to whether the place in which he was riding was one of the proximate causes of his injuries.

vor, and contrary to the views which we have expressed. Such is not true. The facts of that case are not the facts of this case, and Judge Valliant expressly excludes from his opinion a discussion of a case having the facts of the case at bar. In the Bolton Case, at page 104 of 172 Mo., at page 533 of 72 S. W., Judge Valliant says:

"Whether he had a right to ride in the car while the train was under way is immaterial; the train at this critical moment was not under way. He had ridden in the car from Versailles to Tipton, and the indications were that he intended to ride in it from Tipton to Trinidad, and, if the injury had occurred while the train was so in progress, the question that defendant seeks to raise might have come up. The testimony, therefore, as to custom (even if it were inadmissible, which we do not decide) could not have affected the question of the right of the plaintiff to be where he was at that time, because the contract gave him that right."

In the Bolton Case the train was not in motion and on its way to its destination. It was on track but not in motion. The facts in the Bolton Case were thus stated by Judge

Valliant:

[8] V. There is but one other thought that comes to us in this case, and that is the question of a waiver of this contract. This is suggested more by some evidence, which was set out in the divisional opinion, than by briefs of counsel. Nor did the divisional opinion go off on this ground. It will suffice to say that the evidence in this case does not show a waiver under the express ruling of this court in Aufdenberg v. Railway Co., 132 Mo. 565, 34 S. W. 485. But, if this were a pressed question in the case, another sufficient answer would be that no waiver of the contract was in any way pleaded. The defendant invoked the contract as a defense. The plaintiff by reply pleaded no waiver thereof. The question is not therefore in the case.

We reiterate that a reasonable construction of this contract only gave plaintiff the right to be in the stock car for the purpose of looking after his stock, when the train was not in motion; that the position of plaintiff at the time of the accident was one taken by him in violation of the express terms of the contract of carriage; that it was a more hazardous position than the one specified in the contract; that his position in the train was one of the proximate causes of his injury; that under the facts of the case he would not have been injured had he been in the caboose where the contract provided he should have been at the time of the accident; that, under such facts, the defendant was not liable, and the judgment nisi should be simply reversed.

It is so ordered. All concur; BROWN, J., in result.

"At Tipton the car was taken out of the train in which it had come there, and was sidetracked to await the arrival of a freight train on the main line, into which it was to be placed. On the arrival of a west-bound freight train, plaintiff asked the station agent if his car was to go in that train, and, being informed that it was, he got into the car again. The car was moved onto the main track, and while there another car loaded with ties was bumped against it with such violence as to knock one of the cows through a partition and against the horse, and knocking both down. Plaintiff went to the door of the car to see if the engine had hold of the tie car, and finding that it had not, but seemed to be going away, plaintiff went to the assistance of the horse and cow, and succeeded in getting them on their feet again, then came another bump, harder than before, and the horse and cow and man all went down together, the cow falling on plain- STONE v. KANSAS CITY & W. B. RY. CO. tiff's leg and breaking both bones between the ankle and the knee. Between the first bump, in which the cow was thrown through the partition, and the second, in which the plaintiff was injured, the conductor of the train came to the car and asked the plaintiff, 'How is everything? to which plaintif made reply that It 1. knocked thunder out of one partition. At that time the car had not been coupled to the train. The testimony was to the effect that the switching of the cars which produced the injury was with unusual force and recklessness."

Judge Valliant was right when he said the plaintiff in that case had a right to be in the car under the contract. The car was at a station on the track, but was not even in the train by which it was to be moved to its destination. The contract gave Bolton the right to look after his stock in the car at such time and place, and such is the construction which we have given to the contract here. To my mind this case is an authority against the plaintiff. To say the least of it, Judge Valliant declined to discuss what would be Bolton's situation had he been injured whilst the train was in motion en route. The clauses of the contract relied upon by the plaintiff did not authorize his position in the car at the time of his accident.

(No. 16478.)

(Supreme Court of Missouri, Division No. 2.
June 23, 1914. Rehearing Denied
July 14, 1914.)

QUIETING TITLE (§ 10*)-SOURCE OF TI

TLE-COMMON SOURCE.

To constitute common source of title of the parties to a suit to quiet title, it is not necessary that both parties have a good title from the common source, but only that both claim under the common source, and a railroad company in possession claiming under a deed of a right of way and another claiming title under the same grantor claim under a common source, which cannot be impeached by defendant in a suit to quiet title except by a title superior to

that of the common source.

[Ed. Note. For other cases, see Quieting Title, Cent. Dig. §§ 36-42; Dec. Dig. § 10.*] 2. EVIDENCE (§ 366*)-INSTRUMENTS ADMISSIBLE IN EVIDENCE-DEEDS.

A deed executed by an assignee in bankruptcy and by a substituted trustee under a deed of trust is admissible in evidence, where it recites that the property was sold under orders of the court in bankruptcy and under the deed of trust, in the absence of any objection on the ground that the orders of the court were not

shown.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 1521-1539; Dec. Dig. § 366.*]

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

3. MORTGAGES (§ 342*)-TRUSTEES-SUBSTI-| color of title is adjudged worthless in a litigaTUTED TRUSTEE. tion between the parties.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes