VALLIANT, J.
Plaintiff sues to recover damages for the death of her husband who was killed in a railroad wreck caused by the collision of two freight trains owned and operated by the defendant. The accident occurred at Adrian, in Bates county.
The petition avers that it was the custom of defendant, its officers, agents and employees to carry “passengers and other persons, on all its trains, including freight trains,” and that on this occasion the plaintiff’s husband was on the freight train that was wrecked “with the permission, knowledge, and [212]*212consent of the defendant, its officers, agents, servants and employees” for the purpose of being carried from Butler to ITarrisonville.
By the plaintiff’s evidence the following facts were shown. These two freight trains were to pass each other at Adrian, the north-bound train had the right of way, and the southbound train .arriving first, switched into the side track to clear the main track for the other train which was due.
After passing on to the side track the engineer in charge of the south-bound train stepped off his engine while it was moving and went towards the depot to get his orders; the fireman was on the train, but whether he knew the engineer had left it or not does not appear.
It was down grade and the steam was not shut off nor the brakes set, though the train was moving slowly. While the engineer was walking towards the depot one of the witnesses said to him, “The fireman don’t know you are off,” to which the engineer replied, “He does,” but witness repeated, “He does not.” Then the engineer said, “Let him go to hell, then.” But when the engine reached a point within about three rods of the main line the engineer seeming to realize the danger ran to the train and jumped on a car and then ran ahead along the cars towards the locomotive. The fireman about that time reversed the engine, but it was too late, it had passed on to the main track, and the north-bound train running at a rate of eighteen or twenty miles an hour struck it and the wreck ensued. As soon as the engineer on the north-bound train discovered the other locomotive on the main track, it being then too late to avoid a collision, he sounded the danger signal and he and the rest of the train crew jumped off and thus saved themselves.
This north-bound train was what was called a “through freight.” It consisted of twenty-five or thirty ears, four or five box ears next to the engine, a lot of coal cars and a caboose at the end. The plaintiff’s husband, in company with his [213]*213brother and another companion, was at Butler, which is south of Adrian, when-this north-bound train stopped there. He went to the caboose alone and when he returned he told his brother and his other companion that he had asked the brakeman (the conductor not being there at the time) for permission to ride to Harrisonville, and the brakeman refused to allow him to get on the train. Then he and his brother and the other companion started walking up the track and when the train came along moving slowly he climbed on it, taking a position on the front end of the front coal car just in the rear of the box cars. The train stopped in a short distance and two of the box ears were cut off and side-tracked, then the engine reattached to the train and it moved on. When this stop was made the plaintiff’s husband got off and joined his companions, but when it started he got on again in the same position. The train moved on and that is the last time- those companions saw him alive. When the work of removing the wreck was going on, the cars were pulled apart and his dead body fell down in the track. It had been crushed between the cars.
The counsel for the plaintiff asked one of his witnesses this question: “Do you know of any parties riding backwards and forwards on the road there on this freight train?” To which defendant objected, the objection was sustained and the plaintiff excepted.
At the close of the plaintiff’s case defendant asked an instruction in the nature of a demurrer to the evidence which the court refused. Then the defendant introduced evidence which tended to show that the deceased came into the caboose at Butler and asked to be allowed to ride to Harrisonville. The conductor at the time being in or about the depot, the brakeman told the deceased that this was a through freight and did not carry passengers. Deceased said he had money to pay, but the brakeman still refused. He then tried to get on [214]*214the engine, and told the engineer that he had money to pa,y, but the engineer refused to allow him to get on. None of the crew knew that he was on the train until his dead body was discovered -when the wreck was being removed.
At the close of all the evidence the court instructed the jury that the plaintiff was not entitled to recover; the plaintiff took a nonsuit with leave, and after due course brings the cause here by appeal.
I. It is assigned for error that the court refused to' allow the plaintiff to introduce evidence to the effect that passengers were habitually allowed to ride upon the freight trains of defendant, with the knowledge and consent of its employees.
Evidence tending to show that passengers were allowed to ride on freight trains with the knowledge and consent of employees would not tend to show that persons were allowed to ride as the deceased in this instance was riding, hidden between the front end of a coal car and the rear end of a. box car. There was a caboose on this train and if passengers were allowed on the train they would be in the caboose.
In the brief for appellant it is said that the court erred in refusing evidence offered by plaintiff to the effect that persons were in the habit of riding without objection on the freight trains of defendant regardless of the rules of the company.
The plaintiff’s offer did not include evidence to show that the deceased was on the train regardless of the rules of the company.
And if the offer had been made it would have been irrelevant under the averments of the petition, which were that passengers and other persons were carried on all the freight trains, even in flat or box cars, with the full knowledge and consent, not only of the .employees and servants, but of the defendant itself and its officers. And the petition avers that the plaintiff’s husband was on this train “with the permission, knowledge and consent of the defendant . . . for the [215]*215purpose of going to Harrisonville.” If lie was there under those conditions he was a passenger and evidence tending to show that he was a trespasser or that he was there with the connivance of the train crew in violation of the rules of the defendant would have been in contradiction of the petition. The court did not err in sustaining the objection to the evidence.
II. There was no evidence tending to show that the engineer or any of the crew of the north-bound train committed any breach of duty. The wreck was due to the act of the engineer of the south-bound train in leaving his engine, with steam on and brakes open, moving towards and near the point of contact with the train coming in the opposite direction. Whether or not that act was negligence in the technical sens0 as affecting the plaintiff’s cause of action depends on the answer that must be given to the question whether or not- the engineer in that act failed to discharge a duty the defendant then owed to the plaintiff’s husband under the circumstances of the ease.
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VALLIANT, J.
Plaintiff sues to recover damages for the death of her husband who was killed in a railroad wreck caused by the collision of two freight trains owned and operated by the defendant. The accident occurred at Adrian, in Bates county.
The petition avers that it was the custom of defendant, its officers, agents and employees to carry “passengers and other persons, on all its trains, including freight trains,” and that on this occasion the plaintiff’s husband was on the freight train that was wrecked “with the permission, knowledge, and [212]*212consent of the defendant, its officers, agents, servants and employees” for the purpose of being carried from Butler to ITarrisonville.
By the plaintiff’s evidence the following facts were shown. These two freight trains were to pass each other at Adrian, the north-bound train had the right of way, and the southbound train .arriving first, switched into the side track to clear the main track for the other train which was due.
After passing on to the side track the engineer in charge of the south-bound train stepped off his engine while it was moving and went towards the depot to get his orders; the fireman was on the train, but whether he knew the engineer had left it or not does not appear.
It was down grade and the steam was not shut off nor the brakes set, though the train was moving slowly. While the engineer was walking towards the depot one of the witnesses said to him, “The fireman don’t know you are off,” to which the engineer replied, “He does,” but witness repeated, “He does not.” Then the engineer said, “Let him go to hell, then.” But when the engine reached a point within about three rods of the main line the engineer seeming to realize the danger ran to the train and jumped on a car and then ran ahead along the cars towards the locomotive. The fireman about that time reversed the engine, but it was too late, it had passed on to the main track, and the north-bound train running at a rate of eighteen or twenty miles an hour struck it and the wreck ensued. As soon as the engineer on the north-bound train discovered the other locomotive on the main track, it being then too late to avoid a collision, he sounded the danger signal and he and the rest of the train crew jumped off and thus saved themselves.
This north-bound train was what was called a “through freight.” It consisted of twenty-five or thirty ears, four or five box ears next to the engine, a lot of coal cars and a caboose at the end. The plaintiff’s husband, in company with his [213]*213brother and another companion, was at Butler, which is south of Adrian, when-this north-bound train stopped there. He went to the caboose alone and when he returned he told his brother and his other companion that he had asked the brakeman (the conductor not being there at the time) for permission to ride to Harrisonville, and the brakeman refused to allow him to get on the train. Then he and his brother and the other companion started walking up the track and when the train came along moving slowly he climbed on it, taking a position on the front end of the front coal car just in the rear of the box cars. The train stopped in a short distance and two of the box ears were cut off and side-tracked, then the engine reattached to the train and it moved on. When this stop was made the plaintiff’s husband got off and joined his companions, but when it started he got on again in the same position. The train moved on and that is the last time- those companions saw him alive. When the work of removing the wreck was going on, the cars were pulled apart and his dead body fell down in the track. It had been crushed between the cars.
The counsel for the plaintiff asked one of his witnesses this question: “Do you know of any parties riding backwards and forwards on the road there on this freight train?” To which defendant objected, the objection was sustained and the plaintiff excepted.
At the close of the plaintiff’s case defendant asked an instruction in the nature of a demurrer to the evidence which the court refused. Then the defendant introduced evidence which tended to show that the deceased came into the caboose at Butler and asked to be allowed to ride to Harrisonville. The conductor at the time being in or about the depot, the brakeman told the deceased that this was a through freight and did not carry passengers. Deceased said he had money to pay, but the brakeman still refused. He then tried to get on [214]*214the engine, and told the engineer that he had money to pa,y, but the engineer refused to allow him to get on. None of the crew knew that he was on the train until his dead body was discovered -when the wreck was being removed.
At the close of all the evidence the court instructed the jury that the plaintiff was not entitled to recover; the plaintiff took a nonsuit with leave, and after due course brings the cause here by appeal.
I. It is assigned for error that the court refused to' allow the plaintiff to introduce evidence to the effect that passengers were habitually allowed to ride upon the freight trains of defendant, with the knowledge and consent of its employees.
Evidence tending to show that passengers were allowed to ride on freight trains with the knowledge and consent of employees would not tend to show that persons were allowed to ride as the deceased in this instance was riding, hidden between the front end of a coal car and the rear end of a. box car. There was a caboose on this train and if passengers were allowed on the train they would be in the caboose.
In the brief for appellant it is said that the court erred in refusing evidence offered by plaintiff to the effect that persons were in the habit of riding without objection on the freight trains of defendant regardless of the rules of the company.
The plaintiff’s offer did not include evidence to show that the deceased was on the train regardless of the rules of the company.
And if the offer had been made it would have been irrelevant under the averments of the petition, which were that passengers and other persons were carried on all the freight trains, even in flat or box cars, with the full knowledge and consent, not only of the .employees and servants, but of the defendant itself and its officers. And the petition avers that the plaintiff’s husband was on this train “with the permission, knowledge and consent of the defendant . . . for the [215]*215purpose of going to Harrisonville.” If lie was there under those conditions he was a passenger and evidence tending to show that he was a trespasser or that he was there with the connivance of the train crew in violation of the rules of the defendant would have been in contradiction of the petition. The court did not err in sustaining the objection to the evidence.
II. There was no evidence tending to show that the engineer or any of the crew of the north-bound train committed any breach of duty. The wreck was due to the act of the engineer of the south-bound train in leaving his engine, with steam on and brakes open, moving towards and near the point of contact with the train coming in the opposite direction. Whether or not that act was negligence in the technical sens0 as affecting the plaintiff’s cause of action depends on the answer that must be given to the question whether or not- the engineer in that act failed to discharge a duty the defendant then owed to the plaintiff’s husband under the circumstances of the ease.
The term “negligence” in its technical sense embraces in its definition a failure to discharge a legal duty owing to the injured person. A right of action does not accrue to a plaintiff for an accidental damage sustained in consequence of the failure of a defendant to discharge a duty owing to a third person. [Roddy v. Railroad, 104 Mo. 234; 1 Thomp. on Neg. (New Ed.), sec. 3.] The legal duty here referred to may be assumed voluntarily as by contract, or it may be imposed involuntarily by the relation of the parties and the environments. But unless the damage complained of arises out of a failure to perform a legal duty to the person injured, there is no cause of action. It is not necessary that the duty be owing to the person in particular; it is sufficient if it be owing to a class which embraces him, or to the public where he is concerned.
Now, what duty did the defendant corporation owe to the [216]*216plaintiff’s husband under the circumstances of this case % According to the petition he was a passenger and consequently the corporation owed him a duty to exercise a high degree of care for his protection. True, the petition does not call him by that name, but it declares that he was on a train of defendant’s on which it usually carried passengers, and was there with the knowledge and consent of the defendant to be carried to his appointed destination on the defendant’s road. If that declaration were true, he was a passenger. But on the trial the plaintiff did not attempt to maintain that position, but contended that the conduct of the engineer in fault, was so grossly negligent, that the defendant was liable, although the plaintiff’s husband was a mere trespasser. Thus the plaintiff is in the attitude of suing in one capacity and trying to recover in another.
But even a trespasser has some rights. If a man intrudes into your house when you have forbidden him to enter, you have no right to kill him, but you may expel him by using just sufficient force for that purpose; you owe him, under those conditions, the duty to avoid inflicting on him unnecessary injury. But if the man is secreted in a closet without your knowledge and you are carelessly handling a gun and allow it to be discharged and wound him, you are not liable, however careless you may have been, nor was your conduct negligence in the technical sense. There is a difference between carelessness in common parlance and negligence in the technical sense.
The plaintiff’s husband was a trespasser on the train and the only duty the defendant owed him was to avoid inflicting injury on him wantonly. He had no share in the duty the engineer owed to the train crew or to possible passengers on the train.
How can it be said, therefore, that the careless engineer of the south-bound train neglected any duty he-owed to this man when he had no knowledge of or reason to apprehend his [217]*217presence ? It is argued by the learned counsel, that the engineer knew that those trains habitually carried passengers and therefore he ought to have apprehended that passengers were on this train and his conduct was a reckless disregard of his duty in that respect. But disregard of a duty owing to passengers gives-no cause of action to one who was not a passenger. The petition does not aver that the engineer had reason to apprehend that the plaintiff’s husband was on the train in a position of extraordinary danger where passengers do not ordinarily ride. If the ease had been stated in the petition as it was made out by the plaintiff’s evidence on the trial, it would probably have been ended on demurrer.
There is nothing in the facts of this case to bring it within the doctrine announced in Kellny v. Railroad, 101 Mo. 67, and Morgan v. Railroad, 159 Mo. 262, cited in the briefs. However careless the conduct of the engineer of the south-bound train may be considered, it can not be adjudged to have been a violation of any duty the defendant owed the plaintiff’s husband, and therefore it was not negligence for which the defendant is liable in this suit.
The judgment of the circuit court is affirmed.
All concur.