#### Hydell *v.*The Toledo *&*Ohio Central Railway Company.

*One railway company crossing tracks and right of way of another railway company*— Competent *for companies to agree, when —Interlocking system*— Section *2!¡1e, Revised Statutes*— One *railway company to maintain signal man*— Through *his neglect fireman of crossing company injured*— Liability *of first company for damages*— Law *of negligence*— Contracts,

1. When, one railway company desires to cross the tracks and right of way of another railway company at a common grade, it is competent for such companies to agree, as between themselves, upon the terms of crossing, including the compensation for the right to so cross, the payment of the expense of constructing and maintaining the crossing, the installing and maintaining of an interlocking system, as well as to which of the two companies shall employ, control and pay the necessary flag man or tower man to operate the interlocking system. Such a contract is not prohibited by section 247e, Revised Statutes.

2. The T railway company, desiring to cross the tracks and right of way of the P company at a common grade, entered into a written agreement with the latter company, whereby the right to’ so cx;oss was obtained for an agreed consideration and the performance by the T company of certain covenants contained in the written agreement; — one to the effect that it would furnish the materials for and construct and put in all crossing frogs and other fixtures necessary to make the crossing with the existing tracks, and forever maintain the same at its own cost and expense; and, of the further covenant that it would “immediately upon the execution of this agreement, erect and thereafter maintain and operate at its own expense, at the place of said crossing, an interlocking system, which shall be satisfactory to the signal engineer of the first party (the P company), and under the operation of which trains of either party may be permitted, under the laws of the state, to pass over said crossing without coming to a stop * * * .” In compliance with these provisions, the T company constructed the crossing, established and thereafter maintained at the place of crossing an interlocking system, which included a tower from which to operate the *139signals for trains on both, roads, and also a derailing device. It employed, paid and controlled the tower man to operate said interlocking system, having the sole right to command and discharge him. While the said system was being so operated, a freight train on the road of the P company was approaching said crossing, and the crew in charge of the train received through the tower man, signals that the crossing was clear and that said train was entitled to cross without stopping, and said signals were continued until the train was so near the crossing that it could not be ■stopped before reaching the same, when the tower man suddenly changed the signals and opened the derail, thereby derailing and wrecking the engine and a number of cars composing said train, in which wreck the fireman on said ■engine was severely injured. *Held:*That on such facts the T company is liable in damages to the fireman for the injuries sustained by reason of the negligent acts of the tower man. *Railway*v. *Schneider,*45 Ohio St., 678, distinguished.'

(No. 9083

Decided April 3, 1906.)

Ebbok to the Circuit Court of Franklin county.

The plaintiff in error filed, in the court of common pleas of Franklin county, his petition against the defendant in error, of which petition the following, in part, is a copy:

“Plaintiff says that the defendant is, and was at the time hereinafter mentioned, a corporation duly organized and incorporated under the laws of the state of Ohio, and that it owned and operated a railroad known as The Toledo *So*Ohio Central Railway, and is now, and was at the times hereinafter mentioned, engaged in operating its said railway, and running and operating its railroad trains over the same between the city of Columbus, Ohio, and the city of Toledo, Ohio.

“Plaintiff further says that in 1893, long prior to the grievances hereinafter complained of, the defend*140ant, The Toledo & Ohio Central Railway Company, desiring to construct its said road across the right of way and tracks of the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, at grade, entered into a contract with the said Pittsburg, Cincinnati, Chicago *&*St. Louis Railway Company, whereby said Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, in consideration of one dollar ($1.00), and of the covenants and agreements to be kept and performed on the part of the defendant contained in said agreement, granted to the defendant, The Toledo & Ohio Central Railway Company, the right to construct, maintain and operate a single or double track railroad over and across the right of way and track of said Pittsburg, Cincinnati, Chicago *&*St. Louis Railway Company at or near mile post No. 6, and about one mile west of Mound Station in the township of Norwich in said Franklin county, Ohio.

“The said defendant further agreed in said contract that it would furnish the materials for, and construct and put in all the crossing frogs and other fixtures necessary to make said crossing in accordance with plans and specifications to be prescribed by the chief engineer of said Pittsburg, Cincinnati, Chicago &• St. Louis Railway Company and at its own cost and charge; forever' maintain and keep in good repair and renew from time to time when necessary all the crossing frogs and other fixtures provided in said agreement.

“The defendant further agreed in said contract' immediately upon the execution thereof, to erect and thereafter maintain and operate at its own cost and expense at the place of said crossing, an interlocking-system which should be satisfactory to the signal *141engineer of the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, under the operation of which trains of either party should be permitted and should be able under the laws of the state to pass over said crossing without coming to a stop, and would extend said interlocking system so as to cover any future tracks which either party might construct over the tracks of the other party at said crossing, and would also maintain and operate said system when so extended.

“A copy of said contract is hereto attached, marked Exhibit ‘A.’

“Thereafter, and prior to the grievances hereinafter complained of, the defendant erected, and from that time to the happening of the grievances hereinafter complained of, maintained and operated at its own expense, for the joint use and benefit of both said Toledo & Ohio Central Railway Company and the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, at said crossing, the interlocking system as in said contract provided.

“The said interlocking system was a device and an arrangement of the rails at and near the said crossing for the prevention of collisions thereat, by which when the rails of the track of one road were so placed and connected as to permit a car or train on that track to pass over said crossing, the rails of the tracks of the other road were disconnected so that a car or train approaching upon the track of the latter road would be derailed or thrown off the track before reaching said crossing, thereby making it impossible for a car or train on such latter track to enter upon said crossing while the tracks remained in such position, and making a collision at said crossing impossible.

*142“As a part of said device, signals were placed along each of said roads at different distances from the said crossing and each side of the same, which signals, together with the movable rails above referred to, were operated by certain levers placed in a tower adjacent to the said crossing, which levers were operated in said tower by an employe of the defendant, commonly called a lever man or tower man. The point of derailment for disconnecting said tracks as heretofore described, was about three hundred feet distant from said crossing. One of the signals above described, called the ‘home signal,’ was about three hundred and fifty feet from said crossing, and about fifty feet from the said point of derailment. Another of said signals, called the ‘distant signal,’ was about fifteen hundred and fifty feet from said crossing.

“Upon the approach of a train upon one of said roads it was part of the business or duty of said lever man or tower man to so operate the said levers that both the distant and the home signals would indicate to the engineer of the approaching train whether on the one hand said interlocking device was set for the approaching train — that is, whether the crossing was clear and the rails connected for the safe passage of such train over the said crossing without stopping, or on the other hand, whether the said device was set against said approaching train, the crossing thereby obstructed and the rails disconnected, making it impossible for said train to cross. By observing the said signals, the engineer of the approaching train was notified in the one case that he could safely proceed with his train over said crossing without stopping, or on the other hand was warned to bring his train to a stop *143before reaching the said crossing or the said point of derailment.

“Plaintiff further says that on the fourth day of January, 1901, about six o’clock p. m., the defendant had control of, and operated said interlocking system at said crossing of said defendant railway with the Pittsburg, Cincinnati, Chicago & St. Louis Railway, as aforesaid. The said employe of the said defendant.company, who was then employed as lever man or tower man in said signal tower, and whose business and duty it was under his said employment to operate and manage the said levers, and thereby display the said signals, and open and close the said derailing or interlocking device for the safe passage of trains of both said companies over the said crossing, had charge of and was operating said levers and signals.

“Plaintiff further says that on said fourth day of January, 1901, about six o’clock p. m., a freight train consisting of an engine and thirty-five loaded freight cars, owned by the Pittsburg, Cincinnati, Chicago *&*St. Louis Railway Company, and on the track of said company, approached the said crossing from the west, in a careful and a prudent manner, at a usual speed, upon which said train the plaintiff was then employed by the owner thereof, and was then acting in the discharge of his duties as a fireman, and the said defendant, by its said lever man or tower man displayed for said train the signal indicating that the said interlocking device was set in the manner hereinbefore set forth for the passage of said train over said crossing, without stopping; that said crossing was unobstructed and the rails of said track on which said train was approaching, properly connected therefor, and gave *144said train the right of way to pass over said crossing, without stopping, and directed said train to pass •over said crossing at its usual rate of speed. Thereupon, the engineer of said train continued to advance with his said train at the usual speed towards the said crossing, and when about one hundred feet from said ‘home signal,’ and one hundred and fifty feet from said point of derailment, the said defendant, by its said tower man, suddenly and without warning, and when too late to allow the engineer to check the speed of said train, and without any negligence ■on the part of the plaintiff, and while the plaintiff was in the exercise of due care in the discharge of his duties, carelessly and negligently changed said levers, and thereby opened said derailing device, and "thereby caused said train instantly to be thrown from the track upon which it was running immediately west of said crossing, and caused the same to be then and there wrecked, and the engine upon which the said plaintiff was riding in the discharge and performance of his duties, as aforesaid, was hurled and precipitated many feet into the ditch below, and the plaintiff was caught between the tender of the engine upon which he was riding and the box car which was piled upon said engine in said wreck, with his legs pinioned by a beam on said car to the tender of said engine, thereby impaling him on said beam, and holding him between said car and •engine for a period of about four hours, mashing .and lacerating his limbs, ’ ’ etc.

Here follows a detailed account of the serious nature and extent of his injuries.

“Plaintiff further says that he has expended $186.00 in procuring medicine and medical and surgical attendance rendered necessary by said injuries, *145to his damage in all in the snm of fifteen thousand dollars ($15,000.00), for which he asks judgment against the defendant. ’ ’

■ The railway company demurred to the petition on two grounds — (1) there is a defect of parties defendant,, in that The Pittsburg, Cincinnati, Chicago & St. Louis Railway Company is a necessary party defendant, and that the defendant company should not be required to answer in the case; (2) that the petition does not state facts sufficient to constitute a cause of action against the defendant.

The court overruled the demurrers, and the railway company excepted, and afterwards filed an amended answer, and subsequently an amendment to the same. The first defense, after an admission of corporate capacity and that it operates the railroad as alleged, denies each and every allegation in the petition.

The second defense sets out at length, the organization -and operation of a relief department by the Pennsylvania Company for the use and benefit of the différent lines of railroad under its control, including The Pittsburg, Cincinnati, Chicago & St. Louis Railway, which department is known as “The Voluntary Relief Department;” also the rules of admission to said department by an employe of such railway company are plead- at some length;— also the application of the plaintiff for admission and his admission to said department and the terms thereof, and that after the injuries described in the petition, the plaintiff accepted sums of money from said department as a member thereof on account of such injuries, whereby he relinquished all right to sue said Pittsburg, Cincinnati, Chicago *&*St. Louis Railway Company for damages arising out of the derail*146ing of the engine and train mentioned in the petition, and that having so relinquished his claim against the last-named company, his employer, he has no right of action against the defendant company. *

The amendment to the amended answer states that the accident referred to in the petition, and the derailing of the train on the road of The Pitts-burg, Cincinnati, Chicago *&*St. Louis Railway Company, was occasioned by the carelessness and negligence of the last-named'company, in failing to employ and place a tower man in the tower at the crossing, to operate said interlocking system, so as to secure the safe passage of its trains over said crossing, etc.

Issue was taken on the amended answer, and amendment thereto, by replies. The case was tried to a jury. At the close of the evidence, the defendant asked the court to direct a verdict in its favor, which was refused, and a substantial verdict rendered for the plaintiff.

A motion for new trial was overruled and judgment rendered on the verdict. The case was taken on error to the circuit court, where the judgment of the court of common pleas was reversed, and the cause remanded to that court to be proceeded with according to law and the rights of the parties.

Error is prosecuted in this court to reverse the judgment of the circuit court.

*Messrs. Nash, Lentz, Addison & Fritter,*for plaintiff in error,

cited and commented upon the following authorities:

3 Elliott on Railroads, secs. 1113, 1117; *Appeal of Cornwall,*125 Pa. St., 232; *Railroad Co.*v. *Railroad,**147116 Ind., 60; *Buchanan*v. *Railroad Co.,*175 Ia., 393; *Brady*v. *Railroad Co.,*114 Fed. Rep., 100; *Railroad Co.*v. *Needham,*63 Fed., 107; *Railroad Co.*v. *Mase’s Admx.,*63 Fed., 114; *Lockhart*v. *Railroad Co.,*40 Fed., 631; *McMarshall*v. *Railroad Co.,*80 Ia., 757; *Smith*v. *Railroad Co.,*19 N. Y., 127; *Strader*v. *Railroad Co.,*86 Hun, 613; *Merrill*v. *Railroad Co.,*54 Vt., 200; *Hurlbut*v. *Railroad Co.,*130 Mo., 657; *Brown*v. *Railroad Co.,*157 Mass., 399; *Railway Co.*v. *Schneider,*45 Ohio St., 678; *Railroad Co.*v. *Harrington,*192 Ill., 9; *Swainson*v. *Railway Co.,*3 Exq. Div., 341; *Hardy*v. *Sheldon Co.,*37 L. R. A., 33; *Blake*v. *Ferris,*5 N. Y., 48; *Colvin*v. *Peabody,*155 Mass., 104; 1 Thompson on Negligence, sec. 579; *Railway Co.*v. *State,*58 Md., 372; *Railroad Co.*v. *Craft,*69 Fed., 124; *Railroad Co.*v. *Stoerner,*51 Fed., 518; *Kastl*v. *Railroad Co.,*114 Mich., 53; *Phillips*v. *Railway Co.,*64 Wis., 475; *Sawyer*v. *Railroad Co.,*27 Vt., 370; *Zeigler*v. *Railroad Co.,*52 Conn., 543; *Railroad Co.*v. *Armstrong,*49 Pa., 186; *Railroad Co.*v. *Barron,*5 Wall., 104; *McElroy*v. *Railroad Cor.,*4 Cush., 400; *Central Trust Co.*v. *Railroad Co.,*97 Fed., 239; *Murray*v. *Railroad Co.,*34 Atl. Rep., 506; *Clark*v. *Railroad Co.,*91 Ill., 43; *Byrne*v. *Railroad Co.,*61 Fed., 605; *Miller*v. *Railway Co.,*76 Ia., 655; *Hilsdorf*v. *City of St. Louis,*45 Mo., 94; sec. 247e, Rev. Stat.

*Messrs. Boyle & Lewis*and *Mr. B. L. Bar gar,*for defendant in error,

cited and commented upon the following authorities:

*Railway Co.*v. *Schneider,*45 Ohio St., 678; *Kimball*v. *Cushman,*103 Mass., 194; *Wood*v. *Cobb,*13 All., 58; *Taylor*v. *Railway Co.,*45 Cal., 323; *Rail**148*way Co.*v. *Walker,*45 Ohio St., 577; *Murray*v. Currie, 6 Law. Rep., 22; *Powell*v. *Construction Co.,*88 Tenn. Rep., 692; *Rourke*v. *Colliery Co., 2*Law. Rep., 208; *Railway Co.*v. *Jones,*12 S. W. Rep., 972; *Johnson*v. *Boston,*118 Mass., 114; *Vary*v. Railroad Co., 42 Ia., 246; *Ewart*v. *Lippincott,*47 N. J., 192; *Railway Co.*v. *Peyton,*106 Ill., 534; *Byrne*v. *Railway Co.,*61 Fed. Rep., 605; *Clark*v. *Geer,*86 Fed., 447; *Taylor*v. *Railroad Co.,*45 Cal., 324; *Manville*v. *Railroad Co.,*11 Ohio St., 417; *Railway Co.*v. *Cox,*55 Ohio St., 497; *Seither*v. *Traction Co., 4*Law. Rep. (Ann.), 54.

Price, J.

We have set ont at length in our statement of the case the important allegations of the petition filed in the court of common pleas — the allegations necessary to be considered here, because all material questions raised before and during the trial seem to turn on their sufficiency to constitute a cause of action. If the petition is good, there was evidence introduced tending to support its averments, and if this is true, the plaintiff in error should not complain of the charge of the court, for it instructed the jury to some extent as the railway company requested, and in other respects, we think the charge contains nothing to its prejudice. The grounds of the judgment of reversal by the circuit court, as shown by the judgment entry, are — (1) The said court of common pleas erred in overruling the demurrer to the petition of the plaintiff when said demurrer should have been sustained. (2) The court of common pleas erred in overruling the motion of the defendant below to direct a verdict for the defendant at the close of plaintiff’s evidence. (3) That there was error in the charge of the court *149to the jury. The court further found that no other errors appear in the record.

The railroad of the defendant company crosses the tracks and road bed of the Pittsburg, Cincinnati, Chicago & St. Louis Railway at grade a few miles west of the city of Columbus. The latter road had been in existence and operation many years, and. on the twenty-fourth day of July, 1893, the defendant being desirous of building its road across the road and tracks of the other company entered into negotiations with the latter, which resulted in. the execution of a written contract, under the terms of which the defendant obtained the right to so eross, without resorting to an appropriation under .the statute. The provisions of said contract which are. now material are the following: “This agreement, made this twenty-fourth day of July, 1893, between the Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, as first party, and The Toledo- & Ohio Central Railway Company as second- party, witnesseth: that the first party for and .in- consideration of the sum of one dollar ($1.00) to it paid, receipt whereof is hereby acknowledged, and in further consideration of the covenants and agreements of the second party herein contained, has granted, and by these presents, does grant to the second 'party the right to construct, maintain and operate a single or double track over and across the right of way and track of the first party where the road of the second party is surveyed and located at or near mile post No. 6, about one mile west of Mound Station, etc. * * *.

. “The first party shall have the right at any and all times hereafter to lay down, maintain and,operate over the track or tracks of the second -party, *150herein authorized to be laid down; and when it shall so elect to lay down any such track, or tracks, the second party will, upon notice of such election, provide the materials for and properly construct all the crossings with such additional track or tracks according to the plans or specifications which the first party may prescribe, etc.

“The second party agrees that it will furnish the materials for and construct and put in all crossing-frogs and other fixtures necessary to make the crossing with the existing track of the first party at the place aforesaid, strictly in accordance with such plans and specifications as shall be prescribed by the chief engineer of the first party.

“ The second party agrees, immediately upon the execution of this agreement, to erect and thereafter maintain and operate at its own expense, at the place of said crossing an interlocking system which shall be satisfactory to the signal engineer of the first party, and under the operation of which trains of either party may be permitted, under the laws of the state, to pass over said crossing without coming to a stop, and shall extend said interlocking system so as to cover any future tracks which either party may construct over the tracks of the other party at said crossing, and shall also maintain and operate said system when so extended.

“The second party further agrees that it will, at its own expense, employ competent watchmen to guard the crossing during the entire period said interlocking system is in process of construction.

*151' “In the passage of the respective trains of the parties hereto over said crossing, trains of the first party, both passenger and freight, approaching the crossing in either direction, shall have precedence over the trains of the other party. In testimony, etc.

> “The Pittsburg, Cincinnati, Chicago & St. Louis Railway Company,

> '“By James McCrea, *Vice President.*“Attest: S. B. Ligget, *Secretary.*

> “The Toledo & Ohio Central Railway Company,

> “By Stevenson Burke, *President.*“Attest: L. D. Kelley, *Secretary.”*

Under the terms of this contract the parties thereto proceeded, and the defendant company performed its part of the obligations, furnished the necessary materials and made the crossing, including all crossing-frogs in a manner apparently satisfactory to the other company, and likewise at its own expense, erected and thereafter maintained and operated at the place of crossing a satisfactory interlocking system, under the operation of which trains of either party were permitted to pass over without coming to a stop. As a part of this interlocking system, a tower was erected in which levers were established by which certain rails of each road were manipulated and from- which tower various signals on each road were controlled as the approach of trains on either road required.

It is not in dispute that the defendant company, in pursuance of the terms of the above contract, furnished the entire’ system, including the tower house, and employed the tower man or operators *152in the tower, one for the day season and another for the night season. Nor is it disputed that the defendant company paid these men for their services, and had full and entire control over them, subject to the right of inspection of the signals and the signal appliances, and perhaps, also, the right of inspection of other parts of the interlocking-system.

The contract was not unreasonable, but it constituted an amicable arrangement whereby the new road could cross the old one at a common grade without resort to appropriation by law, and it is a legal contract, in that it is permitted by the statute-section 247e, Revised' Statutes. A part of the section reads: “In case where the tracks of two or more railroads, or the tracks of a railroad and an electric railroad, cross each other at common grade in this state, any company owning any one of such tracks, whose managers may desire to unite with others in protecting such crossing with interlocking or other safety devices, *and shall be unable to agree with-such others on the matter,*may file with said commissioner (of railroads) a petition stating the facts of the situation and asking said commissioner to order such crossing to he protected by interlocking- or other safety devices * *

. The section provides for notice and a hearing on the petition, the making and recording of an order prescribing the kind of device to he used and the proportion of the cost of constructing of such plant and the expense of maintaining and operating the same, which each of the companies shall pay.

*We*think it was competent for the two companies, parties to the contract before us, to agree upon what might he compelled by the commissioner of *153railroads under the above section, and having agreed upon the terms and mode of crossing, they were also competent to. agree that the new road —defendant company — should bear all the expense of putting in the crossing and employ and pay the necessary servants or agents to operate the interlocking system. The contract is therefore legal and binding as between the contracting parties, however it may or may not affect the public in general.

It is no answer to this proposition to say, as has been said by counsel for' the defendant company, that neither the statute nor common law allows either of the companies to shift to the other its responsibility for its negligence; that each is still liable to the public for its negligence causing an injury. This may be true. But we are not called upon to decide that question in this case. But we are quite confident that as between the parties to the contract involved, it was competent for them to' agree that the new road, seeking the crossing, of the older at common grade, should furnish the interlocking system — employ and pay its servants to operate the same for the benefit and convenience of both. Such is the purport of the written agreement, and it has been so understood and acted upon by both parties, at least up to the time of the injuries sustained by the plaintiff below.

It is presented in argument for the defendant company, that it should be presumed that the other company, — (The Pittsburg, Cincinnati, Chicago & St. Louis) on an estimate of its share of the costs of the construction and maintenance of the interlocking system, gave the Toledo & Ohio Central Railway Company the right to cross at grade in consideration, in part at least, that the latter company, at its own *154cost and expense, would install the interlocking system and always maintain it, and if that is so, then the older company, in effect, is still paying a share of the expense of the crossing, including the tower man.

It is attempted to establish by the above course of reasoning, the premises for the legal claim that the tower man was in the joint employment of the two companies; — that he was acting for both, and at the time of the injuries he was handling the device for the Pittsburg, Cincinnati, Chicago *&*St. Louis Company. Then the further claim follows on such premises, that the injured fireman of the latter company was a fellow servant of the tower man and therefore cannot recover of either company.

But there is no foundation for any alleged presumption, or any such assumed premises, and hence the legal deductions therefrom must fall.

As to the expense of putting in and keeping up the crossing and the maintenance of the interlocking system, the two companies committed their negotiations agreed upon to writing. Bearing upon this subject the contract reads: “That the first party for and in consideration of the sum of one dollar to it paid ** * **an(i in further consideration of the covenants and agreements of the second party herein contained, has granted and by these presents does grant to the second party the right to construct, maintain and operate a single or double track over and across the right of way and track of the first party *

One of the covenants mentioned in the contract is that “the second party agrees immediately upon the execution of this agreement, to erect, and thereafter maintain and operate at its own expense, at the place *155of said crossing, an interlocking system, which shall be satisfactory to the signal engineer of the first party * *

The theory of joint employment so- adroitly advanced must be excluded because of the clear terms of the contract. This view disposes of the entire second defense set up in the amended answer. It is there set out that the plaintiff below, — the injured fireman on the freight train which was derailed by the negligent act of the tower man — was a member of “The Voluntary Relief Department” of the Pennsylvania Company, at the time he was injured, and that he accepted the benefits of membership in the way of considerable sums of money in aid of his recovery, upon the condition stipulated in the terms of membership, that he thereby relinquished all claims for damages against The Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, and therefore has no right of action against The Toledo *&*Ohio Central Railway Company.

The only way to make that defense available here, is to assume that the tower man was in the joint employment of the two companies, and that if the fireman was injured by the negligence of the tower man, the two companies were joint tort feasors, and accepting payments or benefits from and thereby releasing from damages one tort feasor — The Pitts-burg, Cincinnati, Chicago & St. Louis Railway Company, he released the other tort feasor, The Toledo & Ohio Central Company. Having found there was no joint employment, the whole theory of the second defense fails.

The' defendant company relies on *Railway Company*v. *Schneider,*45 Ohio St., 678, which it claims *156rules the present case, and it has .been said by counsel that it influenced the judgment of the circuit court.

We therefore examine'the facts of that case. The action in the common pleas was against The Cleveland, Columbus, Cincinnati & Indianapolis Railway Company for causing the death of the husband of the administratrix, plaintiff in the action, at Freeman street, Cincinnati. The questions which are said to be similar to those before us now, arose out of the charge of the trial court, and its refusal to charge as requested by the defendant. The defendant obtained from The Cincinnati, Hamilton & Dayton Railway Company the right to use the tracks of the latter company under the seventh section of a contract executed by the two companies, which is: *“*The business of the said two lines of railroad shall be conducted so as to preserve the existing relations of each with eastern and western connecting roads, and to develop to the fullest extent'the business resources of each line; all passenger trains shall be run from the Cincinnati depot, party of the first part, and for the use of the same, with the tracks, side tracks thereto, and yards for passenger ears west of Millcreek, and for the cost of switching, the. party of the first part shall be allowed and paid by the party of the second part, in excess of the amount to which each shall be entitled out of the joint earnings, annually, the sum of five thousand dollars, payable monthly.” No other part of the contract appeared in the record of the case. The court found, as appears on page 692 of the opinion : “ That there was evidence tending to show that the gate at the Freeman street crossing was put up by the former company, (Cincinnati, Hamilton & Dayton) and that the gateman was employed by that *157company, bnt tbe engines and trains of tbe latter company were rnn and controlled by its own servants and employes, and that the engine which collided with the wagon of the deceased when he was killed, was so run and controlled; and as the negligence charged against the defendant by the plaintiff in her petition consisted in carelessly running the locomotive and managing the crossing, it became a material question whether the defendant could be made responsible for any negligence of the gateman while it was using and operating the railroad. *The whole of the agreement between the two companies is not produced, and it was impossible for the court from the fragment that was introduced in evidence to construe it, or properly determine its effect on the relation really existing between the companies.*From that part of the contract contained in the record, it appears that each company had the right to the equal and joint use of the tracks and depot, and the defendant was to pay the other company for the use of the same, with the side tracks and yard, and for the cost of switching, five thousand dollars per year in excess of the amount to which it should be entitled out of the joint earnings. *What the arrangement was in regard to the servants or employes of the two companies is not shown.*Whether they were to be paid out of the joint earnings, and be under the joint control of the two companies, or otherwise, does not appear from that part of the agreement in the record, and the .evidence on the subject consisted of the usage and conduct of the companies.”

The court then approved of the charge of the trial court, leaving it to the jury to determine as a question of fact, whether the defendant in that case was using the tracks of the other company under an *158agreement with, it, and whether the gatekeeper and other employes of that company were, by reason of the agreement, aiding to run the locomotive of the defendant which caused the injury. And the court further added:' “The fact that the gateman was an employe of the Cincinnati, Hamilton & Dayton Railroad Company, and was under its control, and so operated the gates while the defendant’s trains were passing, does not exclude the idea that by virtue of the agreement between the two companies, he may also have been equally under the control of the defendant.”

We have quoted thus freely from the above case to show that it did not involve the question we have here, and it seems that the opinion was carefully worded to exclude it. There is nothing in the decision that tends to a condemnation of agreements like the one before us. It must also be remembered, that that was a case between the offending company and a third party — a member of the general public, while we are considering whether the contract is good between the companies executing it so as to be respected and relied upon by the employes of each.

That case is so unlike this in all important respects, that it does not rule our judgment.

The defendant cites also *B. & O. Ry. Co.*v. *Walker,*45 Ohio St., 577, and its learned counsel say our exact question was passed on in that case. We cannot concur in that conclusion. The answer of the defendant company in that case set- up an agreement with the suing company, the terms of which placed the responsibility for the crossing expenses on the plaintiff. The reply took issue on the answer. The answer being affirmative in character and challenged by reply, the burden was upon the defendant company *159to establish the contract alleged. On page 584, in the opinion, it is stated, that no evidence of the agreement was offered, and the case was submitted on the pleadings, the answer availing nothing. As there said by the court: “Practically, therefore, the case was submitted to the court as upon default or demurrer to the petition. ’ ’

Indeed, all reasonable inferences to be drawn from the doctrine of that case are against the defendant in error in the case at bar. We have not space to answer in detail other authorities cited for the defendant in error. Our conclusions are fully supported by many cases cited in the brief for plaintiff in error.

We have no doubt the petition states a good cause of action and a demurrer thereto was properly overruled. The trial court was right in refusing to direct a verdict for defendant at the close of the plaintiff’s evidence.

The evidence tends to prove that as the freight train of The Pittsburg, Cincinnati, Chicago & St. Louis Railway Company, on which Hydell was fireman, was approaching the crossing from the west, the tower man displayed signals indicating that the crossing was clear for it to pass over, and they remained so until the engine was about two hundred feet from the crossing, when, through bewilderment or from some other cause, he threw the derail so that the engine and several cars went from the track into the ditch and the fireman was severely injured.

There was evidence introduced tending to prove all the material allegations of the petition.

There are some inconsistencies of statement in the charge of the court, but they were not detrimental to the cause of the defendant, and whatever else of *160error that appears in the charge was invited by its counsel.

*The judgment of the circuit court is reversed and' that of the common pleas affirmed.*

Shauck, C. J., Spear and Davis, JJ., concur.

Summers, J., not sitting.