GRAVES, J.
Certiorari to the Kansas City Court of Appeals. The case out of which this action grows is an action for personal injuries by Charles Vulgamott against John Barton Payne, Director General of Railroads. The case has been in the Court of Appeals twice. Vulgamott v. Mines, etc., 229 S. W. 391; Vulgamott v. Payne, etc., 245 S. W. 592. It is from the latter opinion and judgment that the relator, Vulgamott, seeks relief through the present action. The case is singular in one respect, in that both sides of the present controversy contend that the opinion and judgment are wrong. They assign quite different reasons for their respective suggestions. The facts as stated in the Court of Appeals' opinion are as follows:
"This is a suit in damages oil account of personal injuries sustained by plaintiff while riding in a freight car operated by defendant. The facts are substantially as follows:
"In the spring of 1919, the plaintiff, a farmer, then about 46 years old, lived in Stoddard county, Mo. He desired to move back to Nodaway county where he had formerly lived, and chartered a car from the Iron Mountain Railway Company in which he stored his household goods, farming implements, and four head of horses. The household goods and implements were placed in one end of the car, and the four horses in the other end. The space between the two side doors of the freight car was reserved by the plaintiff as `living quarters' for himself, his son, Jake Vulgamott, and a young man named Floyd Grace. The end of the car in which the four horses were quartered was fenced off from the center space in the car, between the two side doors, by a partition made of a strong white oak pole extending across the car and nailed at each end to the upright pieces on the two sides of the car with 20-penny spikes. This pole was about 4% feet above the floor, and below it were cypress boards 11¼ inches thick and about 12 or 14 inches wide, extending across the car. The four horses weighed about 1,600 pounds each and were permitted to run loose in that end of the car. In the space between the two side doors plaintiff placed one or more loose bales of hay and a barrel of water, none of these being fastened down in any way.
"The car moved from Dudley, Stoddard County, to St. Louis, or to Luther, a suburb of St. Louis, and was there delivered to the Wabash Railway Company, then in charge of the Director General of Railroads. At this point a new contract of shipment was entered into for the transportation of the car and contents to Burlington Junction, Mo. At Burlington Junction, the Wabash Railroad crosses the Chicago, Burlington & Quincy railroad practically at right angles, the Chicago, Burlington & Quincy tracks running approximately north and south and the Wabash tracks approximately east and west. A curved switch track connects the two roads, and a joint stockyard is maintained at a point on the Burlington tracks about two blocks north of the Wabash crossing. The car was transported to Burlington Junction in a freight train which arrived at that station about 1:35 a. m. on the night of February 19, 1919. When the train reached Burlington Junction it stopped at the railroad station which was near the Wabash tracks in the northeast angle between the intersecting tracks in the Chicago, Burlington & Quincy and Wabash. Plaintiff was awake at the time, and knew the train had reached Burlington Junction. There was suitable place for him to alight from the car at the place where it came to a stop. He knew that it would be necessary to switch the car over the curved track connecting with the Chicago, Burlington & Quincy road and thence two blocks or so northward in order to `spot' the car at the stockyards chute. Plaintiff remained in the car.
"After the train had come to a stop the engine and plaintiff's car were disconnected from the rest of the train and, by means of a flying switch, the emigrant car was run on to the curved track connecting the two railroads, the engine came in behind it, was coupled to it and pushed it up to the stockyards chute. During this operation the car was being pushed north, and the horses were in the south end of the car, next to the engine. When the car reached the stockyards, in an effort to bring it to a stop as the side doors of the car would be opposite the stockyards chute, the engineer applied the brakes so tightly that the car came to a stop too suddenly, in consequence of which one of the horses in the south part of the car was thrown against the partition, which fell down, and against plaintiff while he was sitting on a bale of hay and leaning against a barrel of water. He received certain injuries in the nature of scalp wounds and a slight fracture of one of the boles of his shoulder.
"The cause was before us on a former appeal prosecuted by plaintiff from an order granting defendant a new trial. Said order was sustained and the cause remanded (229 S. W. 394) `In order that a new trial may be had, if the plaintiff so desires, under a petition presenting the case upon a theory which may entitle the plaintiff to recover.' A second amended petition was accordingly filed, the cause went to trial, and a verdict was returned for plaintiff in the sum of $4,000, from which defendant appeals.
"The second amended petition alleges that while the car in which plaintiff was riding was being switched from the Wabash tracks to the stockyards the plaintiff remained in the car, in the space between the two side doors, with the knowledge and consent of the trainmen; that, while thus riding, plaintiff was exposed to danger and liable to be injured by rough and reckless switching; that the trainmen knew, or in the exercise of ordinary care should have known and anticipated, that plaintiff was in the car, and thereby in a position of peril and danger, in time to have avoided injuring him by the exercise of ordinary care, and that, notwithstanding these facts, the car was negligently handled, and the live stock therein was thrown violently against the partition and upon the plaintiff, causing injuries as alleged.
"Our former opinion holds plaintiff was guilty of contributory negligence in riding and remaining in said `car while it was being switched, and therefore that he could not recover on a
general charge of negligence, and it clearly was the intention of plaintiff in the second amended petition to plead a case under the humanitarian or last chance rule. Defendant takes the position that this has not been accomplished, and it is chiefly upon this question that defendant relies for reversal.
"Briefly stated, the answer admits that the Director General was operating said railroad at the time of the accident; admits the transportation contract, and that the property covered by said contract was transported, that injuries were received by plaintiff while riding in the freight car during the switching thereof, and that plaintiff was exposed to danger and liability of being injured by rough handling of the car during switching. Then follows a general denial, a denial of certain particular facts, an allegation that plaintiff violated his contract, and was a trespasser while riding in said car, and a plea of contributory negligence."
The case was reversed and cause remanded because the trial court refused to give the following instruction:
"The court instructs the jury that plaintiff, as a matter of law, was guilty of negligence in riding in the emigrant car; and if you find from the evidence that he knew he could not ride in said car in safety while the same was being switched, then your verdict should be for the defendant."
The court modified the' refused instruction and gave it in this form:
"As modified by the court and submitted, it reads: `The court instructs the jury that the plaintiff, as a matter of law, was guilty of negligence in riding in the emigrant car; and if you find from the evidence that he knew he could not ride in said car in safety while the same was being switched in an ordinarily careful and prudent manner, then your verdict should be for the defendant.'"
The italicized words were the words added by the court. The opinion says the following as to this matter:
"We think the instruction as given by the court was improper because the question of whether plaintiff knew he could not ride in said car in safety while it was being switched, in any manner, was a question for the jury, and defendant was entitled to have said question submitted. We hold, therefore, that the giving of the instruction as modified by the court was prejudicial error. The judgment is reversed, and the cause remanded."
This sufficiently outlines the case.
I. As indicated by the statement, supra, both sides of the case below suggest and urge that the opinion of the Court of Appeals consicts with divers rulings of this court. Our jurisdiction in this class of certiorari cases is dependent upon conflict or alleged conflict in opinions. However, we have ruled that, when our writ has been issued, and the case is before us for determining the question of alleged conflict between the opinion under review and the rulings of this court, we are not confined to the suggestions of conflict made by the relator, but, on the contrary, the court can and will quash the record of the Court of Appeals if it conflicts with any ruling of this court of which the court has knowledge,...
