Henry, C. J.
The defendant owns and operates a railroad whose eastern terminus is the town of Pacific, about thirty miles west of St. Louis, and its trains are hauled back and forth between Pacific and St. Louis by the Missouri Pacific Railway Company over its road, under a contract between the companies, in substance as follows: First. The Missouri Pacific Railway Company, party of the first part, agrees to furnish for defendant for five years, commencing January 1,1879, “depot facilities for the handling of defendant’s freight, and office room for its agents and clerks.” “Second. The said party of the first part agrees * * * to transport all of the passenger trains of defendant passing to and from St. Louis, to and from the point of junction of the roads of the parties of the first and second part, at Franklin or Pacific, and the Union depot at St. Louis.” “The party of the first part to furnish at its own expense the locomotive and crew of same,” and defendant to “furnish at its own expense all train men for the care and management of said trains.” Defendant’s “trains, and the control and acts of said train men” are “ subject to the rules and regulations” of the Missouri Pacific; that defendant should “clean and care for the inside of its trains,” and, also, defendant to pay “all expenses made and incurred on account of the use and occupation by its trains of the property and facilities of the Union Depot Company at St. Louis.” Third. The Missouri Pacific to “transport all of the freight trains and freight cars” of defendant “passing between St. Louis and Pacific at its own expense.” Fourth. Missouri Pacific to transport all “ passenger cars and trains ” of defendant “with all reasonable promptness and dispatch; ” the defendant to “furnish free of mileage or other expense all the passenger or freight cars for the performance of its business between” St. Louis and Pacific. Fifth. The defendant agrees to indemnify the Missouri Pacific “against allloss or liability ” on account of “ any accident or damage ” received on the [429]*429road “through the fault or negligence” of the defendant, “ or its agents or employes.” Sixth. For the services so rendered by the Missouri Pacific for the first two years defendant agrees to pay “ eleven per centum,”, and for the balance of the time £ £ eleven and one-half per centum ’ ’ of the “entire amount of all the gross earnings of the defendant made and received by it on any and all of its passenger, freight, or other business which passes or is transported over the road” of the Missouri Pacific. The Missouri Pacific to “have access to the books and vouchers” of the defendant to “ascertain the amount of the gross earnings provided for in this agreement.” . Which contract was, on the day aforesaid, signed and their respective corporate seals affixed.
On the twenty-fifth of June, 1879, George E. Smith, husband of plaintiff, took passage at St. Louis on a train of cars owned by defendant, except the locomotive, which belonged to the Missouri Pacific, to go to Webster, a station on the Missouri Pacific Railroad between St. Louis and Pacific, under a commuter’s ticket purchased by him ©f the Missouri Pacific Railroad Company. The train arrived at Webster about ten o’clock at night and stopped at the depot for passengers to get on and off. It was a dark night and the depot was not lighted, and in the act of getting off, or immediately after getting off, Smith fell between two of the cars, and at that moment the train started, and passing over him inflicted injuries of which he died soon after, and his widow instituted this suit against the defendant to recover damages. The negligence alleged is that the train did not stop long enough to allow the deceased a reasonable time to alight, and that the depot was not lighted.
The principal and controlling question in the case is,, whether, under the agreement between the companies, the train in question passing over the Missouri Pacific road between Pacific and St. Louis is to be regarded as defendant’s train in a sense that makes it liable for injuries occasioned to the deceased by the negligence of the [430]*430train men. If answered, as we think it must be, in the negative, the judgment should be affirmed. By the terms •of the contract the train of the defendant company was to be drawn over the Missouri Pacific road by the Missouri Pacific Company, the latter using its own locomotive and crew, and the train men to be furnished by the defendant, but the Missouri Pacific Company reserved the entire and exclusive control and management of the train, the crew, and the train men. The contract for transportation was not made by the deceased with the defendant, but with the Missouri Pacific Company. It was not for transportation over any portion of defendant’s ■road, but from St. Louis to Webster over the Pacific road. If deceased had been a passenger from a point on defend.ant’s road under a contract for transportation to St. Lo nis, .or from St. Louis to a station on its own road, another question would arise which it is not necessary to consider in this case. We are not to be understood as deciding that the fact that deceased bought his ticket from the Missouri Pacific Company is conclusive against plaintiff’s right to recover in this action, for, as held by the court of appeals, if he was lawfully on defendant’s train, and it was operated by servants under its control, it matters jiot of which company he purchased the ticket, the defendant would be liable for any injury received by him ■occasioned by the negligence of its employes.
The case, therefore, turns upon the construction of the contract between the two companies. Parol evidence was properly admitted to show the meaning of the phrases “train men” and “crew,” as employed in the contract, .and to show what are the duties of conductors and other train men; and aside from the parol testimony of those ■employes that they were in the employment of the Missouri Pacific Company, the admissibility of which is ■questionable since that is a question to be determined by the written contract, in our opinion, by the terms of the ■contract the train men were in the employment and under the. control of the Missouri Pacific Company while the [431]*431train was passing over its road between St. Louis and the town of Pacific. This is so provided in express terms in the contract. The defendant was, by the agreement, to furnish free of all expense to the Missouri Pacific all the passenger and freight cars for the performance of its business between St. Louis and Pacific. It was no part of the defendant’s business to carry passengers from St. Louis to any station between. St. Louis and Pacific. It received no part of the money paid to the Missouri Pacific for carrying such passengers. It had no connection with the Missouri Pacific in that business, and that the latter company used defendant’s cars and train men in the prosecution of such business did not create a liability on the part of defendant, the Missouri Pacific Company having reserved exclusive control of the train men and the train.
The fifth clause of the contract, by which defendant .agreed to indemnify the Missouri Pacific Company “against all loss or liability” on account of “any accident or damage” received on the road “through the fault or negligence of the defendant or its agents or employes,” giving it its broadest scope, does not alter the relation of the two companies to passengers from St. Louis to any station between that and Pacific.
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Henry, C. J.
The defendant owns and operates a railroad whose eastern terminus is the town of Pacific, about thirty miles west of St. Louis, and its trains are hauled back and forth between Pacific and St. Louis by the Missouri Pacific Railway Company over its road, under a contract between the companies, in substance as follows: First. The Missouri Pacific Railway Company, party of the first part, agrees to furnish for defendant for five years, commencing January 1,1879, “depot facilities for the handling of defendant’s freight, and office room for its agents and clerks.” “Second. The said party of the first part agrees * * * to transport all of the passenger trains of defendant passing to and from St. Louis, to and from the point of junction of the roads of the parties of the first and second part, at Franklin or Pacific, and the Union depot at St. Louis.” “The party of the first part to furnish at its own expense the locomotive and crew of same,” and defendant to “furnish at its own expense all train men for the care and management of said trains.” Defendant’s “trains, and the control and acts of said train men” are “ subject to the rules and regulations” of the Missouri Pacific; that defendant should “clean and care for the inside of its trains,” and, also, defendant to pay “all expenses made and incurred on account of the use and occupation by its trains of the property and facilities of the Union Depot Company at St. Louis.” Third. The Missouri Pacific to “transport all of the freight trains and freight cars” of defendant “passing between St. Louis and Pacific at its own expense.” Fourth. Missouri Pacific to transport all “ passenger cars and trains ” of defendant “with all reasonable promptness and dispatch; ” the defendant to “furnish free of mileage or other expense all the passenger or freight cars for the performance of its business between” St. Louis and Pacific. Fifth. The defendant agrees to indemnify the Missouri Pacific “against allloss or liability ” on account of “ any accident or damage ” received on the [429]*429road “through the fault or negligence” of the defendant, “ or its agents or employes.” Sixth. For the services so rendered by the Missouri Pacific for the first two years defendant agrees to pay “ eleven per centum,”, and for the balance of the time £ £ eleven and one-half per centum ’ ’ of the “entire amount of all the gross earnings of the defendant made and received by it on any and all of its passenger, freight, or other business which passes or is transported over the road” of the Missouri Pacific. The Missouri Pacific to “have access to the books and vouchers” of the defendant to “ascertain the amount of the gross earnings provided for in this agreement.” . Which contract was, on the day aforesaid, signed and their respective corporate seals affixed.
On the twenty-fifth of June, 1879, George E. Smith, husband of plaintiff, took passage at St. Louis on a train of cars owned by defendant, except the locomotive, which belonged to the Missouri Pacific, to go to Webster, a station on the Missouri Pacific Railroad between St. Louis and Pacific, under a commuter’s ticket purchased by him ©f the Missouri Pacific Railroad Company. The train arrived at Webster about ten o’clock at night and stopped at the depot for passengers to get on and off. It was a dark night and the depot was not lighted, and in the act of getting off, or immediately after getting off, Smith fell between two of the cars, and at that moment the train started, and passing over him inflicted injuries of which he died soon after, and his widow instituted this suit against the defendant to recover damages. The negligence alleged is that the train did not stop long enough to allow the deceased a reasonable time to alight, and that the depot was not lighted.
The principal and controlling question in the case is,, whether, under the agreement between the companies, the train in question passing over the Missouri Pacific road between Pacific and St. Louis is to be regarded as defendant’s train in a sense that makes it liable for injuries occasioned to the deceased by the negligence of the [430]*430train men. If answered, as we think it must be, in the negative, the judgment should be affirmed. By the terms •of the contract the train of the defendant company was to be drawn over the Missouri Pacific road by the Missouri Pacific Company, the latter using its own locomotive and crew, and the train men to be furnished by the defendant, but the Missouri Pacific Company reserved the entire and exclusive control and management of the train, the crew, and the train men. The contract for transportation was not made by the deceased with the defendant, but with the Missouri Pacific Company. It was not for transportation over any portion of defendant’s ■road, but from St. Louis to Webster over the Pacific road. If deceased had been a passenger from a point on defend.ant’s road under a contract for transportation to St. Lo nis, .or from St. Louis to a station on its own road, another question would arise which it is not necessary to consider in this case. We are not to be understood as deciding that the fact that deceased bought his ticket from the Missouri Pacific Company is conclusive against plaintiff’s right to recover in this action, for, as held by the court of appeals, if he was lawfully on defendant’s train, and it was operated by servants under its control, it matters jiot of which company he purchased the ticket, the defendant would be liable for any injury received by him ■occasioned by the negligence of its employes.
The case, therefore, turns upon the construction of the contract between the two companies. Parol evidence was properly admitted to show the meaning of the phrases “train men” and “crew,” as employed in the contract, .and to show what are the duties of conductors and other train men; and aside from the parol testimony of those ■employes that they were in the employment of the Missouri Pacific Company, the admissibility of which is ■questionable since that is a question to be determined by the written contract, in our opinion, by the terms of the ■contract the train men were in the employment and under the. control of the Missouri Pacific Company while the [431]*431train was passing over its road between St. Louis and the town of Pacific. This is so provided in express terms in the contract. The defendant was, by the agreement, to furnish free of all expense to the Missouri Pacific all the passenger and freight cars for the performance of its business between St. Louis and Pacific. It was no part of the defendant’s business to carry passengers from St. Louis to any station between. St. Louis and Pacific. It received no part of the money paid to the Missouri Pacific for carrying such passengers. It had no connection with the Missouri Pacific in that business, and that the latter company used defendant’s cars and train men in the prosecution of such business did not create a liability on the part of defendant, the Missouri Pacific Company having reserved exclusive control of the train men and the train.
The fifth clause of the contract, by which defendant .agreed to indemnify the Missouri Pacific Company “against all loss or liability” on account of “any accident or damage” received on the road “through the fault or negligence of the defendant or its agents or employes,” giving it its broadest scope, does not alter the relation of the two companies to passengers from St. Louis to any station between that and Pacific. If it be so construed that if the plaintiff in this case had sued the Missouri Pacific Company and recovered a judgment, the defendant would be liable to the Missouri Pacific, it is but a contract of indemnity, which, of itself, cannot •create a liability on the part of defendant to such a passenger. That by the agreement, the Missouri Pacific 'Company was to pay no part of the wages of the train men who were to be furnished by defendant, does not •create a liability on the part of the defendant to a passenger from St. Louis to a station between that and Pacific, •any more than an agreement between the Missouri Pacific Company and an individual, by which the latter should assume the'payment of the train men on one of its trains, the company, as in this contract, reserving to itself the ■control of the train and train men, and the movements of [432]*432the train, would render such individual liable for injuries received by one through the negligence of such employes.
Counsel for appellant cite Kelly v. The Mayor, etc., 11 N. Y. 432, and Durst v. Burton, 47 N. Y. 167, in support of the proposition that the train men were acting under the supervision of the Missouri Pacific Company; that fact would not make them agents of that company. Kelly v. The Mayor is an authority againt the plaintiff’s claim here. There the city of New York had ordered a street to be graded, and contracted with an individual to do the work, and it was held that the city was not liable for damages caused by negligence of workmen employed by the contractor, notwithstanding by the terms-of the contract the work was to be done under the direction and to the satisfaction of certain officers of the city. There the city employed another to do its work, reserving the right to have the work done under its direction and to its satisfaction. Here the Missouri Pacific was doing its own work with absolute control of the agencies employed, responsible to no superior for the manner of doing it, and that it hired those agencies from, or that they were gratuitously furnished by another, cannot alter its relation to passengers or the public, or establish a relation between the passengers or the public, and the corporation or individual furnishing such agencies.
In Durst v. Burton, defendants represented an association owning a cheese factory, which they leased to one who contracted to manufacture cheese for them at an agreed price per pound, defendants reserving no right of supervision, but carrying on the business by furnishing the materials and taking and selling the product in the market as an article manufactured by them. And they were held liable for the fraud of their lessee in the manufacture ©í a lot of cheese sold by them. The difference between that and the case under consideration is too palpable to require more than a statement of the foregoing facts. The defendants there held themselves out [433]*433to the world as the manufacturers oí the cheese, sold it as such, aud were, of course, liable in the action brought against them. No analogous facts are found in this record. By no act or transaction did defendant assume to carry passengers or freight from St. Louis to any point on the Missouri Pacific road. The principle invoked by appellant has application only where the party supervising a given work is acting, not as principal, but in subordination to another in whose service he is engaged.
One ground of negligence averred in the petition is the failure to light the depot at Webster, a matter in which defendant had no authority whatever, and we mention it only to show where the doctrine contended for by appellant would lead, for there is no question if what appellant claims to be the law be conceded that the defendant would be liable, if the only negligence alleged and proved as causing the injury to the deceased was the failure to llave a light at the depot for the benefit of persons getting on or off the train. The court of appeals held that the circuit court erred in refusing an instruction asked by defendant, virtually withdrawing the case from the jury, and we are all agreed that the judgment of the court of appeals should be affirmed, except Sherwood, J., absent.