페이지 이미지
PDF
ePub

TURNER, J. This is an action by appel-husband safely passed in between the oblant against the city of Louisville seeking struction and the curbing, but appellant ran damages for injuries received by her in fall- into it, knocked the plank down, fell herself, ing over an obstruction in the driveway of and was injured. The evidence of one or more Dumesnil street in that city. At the close of of the party is to the effect that they were the plaintiff's testimony the circuit court di- going in the face of the rain and had their rected a verdict to be returned for the de-heads down. It further appears that the fendant, and the plaintiff has appealed. light which had been previously placed on the obstruction was not then burning, and, as there was a high wind accompanying the thunderstorm, it may be fairly inferred that the light was in this way extinguished.

The evidence disclosed that on the night of the 27th of June, 1912, appellant, with her husband and a party of friends, left her home, further out on Dumesnil street, between 7:30 and 8 o'clock to attend a social [1] It is the positive duty of municipalities function some blocks away; that in so doing to keep their streets in reasonably safe condithey passed along Dumesnil street for several tion for public travel, and, in doing so, are blocks, and immediately along by the place authorized to temporarily close them to pubwhere the accident later happened; that the lic traffic, and, when they are so closed, if driveway of Dumesnil street was at the time due and timely notice is given to the public, closed for traffic, and had been for about two there can be no recovery for an injury reweeks; that where they so passed along bar-sulting from their use. riers were erected at three different places In this case appellant knew the street was along the street with red lights hung upon closed to traffic; she lived only a few blocks them, and that the plaintiff knew the drive-away; she had seen these obstructions a few way was and had been closed to traffic for short hours before with the danger signals the purpose of making certain repairs on it, hanging on them; and, if, with the knowlwhich had that day been completed, but the edge of these facts, to escape the slippery and street had not been opened, and was not muddy sidewalk, she chose to use the driveready for traffic. way which she knew was closed for traffic, and was thereby injured, there can be no recovery. City of Lawrenceburg v. Lay, 149 Ky. 490, 149 S. W. 862, 42 L. R. A. (N. S.) 480, Ann. Cas. 1914A, 1194; Elam v. City of Mt. Sterling, 132 Ky. 657, 117 S. W. 250, 20 L. R. A. (N. S.) 512; Jones v. Collins, 177 Mass. 444, 59 N. E. 64.

The south side of Dumesnil street, opposite where the accident happened, was used for a sidewalk, although no pavement had been made there, and the party passed along there as they went to the social function. The obstruction at this point consisted of a plank or planks resting at each end upon three or four bricks piled up on the driveway 21⁄2 or 3 feet from the curbing on each side, which made an obstruction about a foot high.

While they were at the home of their friend about 9 o'clock a thunderstorm accompanied by a heavy rain came up, and they left the home of their friend to start back about half past 10 o'clock, although it was still raining. When they reached the point on Dumesnil street where there was no pavement, the sidewalk being muddy and slippery, they proceeded to get out into the driveway, appellant's husband leading the way, she being second, and the others following. The

[2] It is shown by the evidence of the plaintiff that earlier in the night the red light had been burning on this barrier, and, as said above, it may fairly be inferred that a short time before their return trip it had been blown out by the strong wind; but, where barriers or lights properly placed are suddenly removed, without warning to the municipality, by the act of God or by an accident of which it had no notice, the city will not be held liable. 28 Cyc. p. 1407.

We are of opinion that the court properly directed the verdict, and the judgment is affirmed.

GEORGE v. QUINCY, O. & K. C. R. CO. (No. 10799.)

(Kansas City Court of Appeals. Missouri. May 4, 1914. On Rehearing.)

1. MASTER AND SERVANT (§ 112*)-INJURIES TO SERVANT-RAILROADS-BLOCKED FROGSSTATUTES-CONSTRUCTION-"YARDS."

Rev. St. 1909, § 3163, requires railroads to block all switches, frogs, and guard rails "in all yards, divisional and terminal stations, and where trains are made up." Held, that the word "yards" was not limited to yards maintained at divisional or terminal stations, or where many parallel tracks are maintained, and cars habitually switched, but included a way station at which there was a system of tracks where cars could be cut out of a train and stored, loaded or unloaded, or delivered to connecting lines, and where switching was customarily or habitually, though not constantly, carried on.

[blocks in formation]

such objections were not mentioned at the trial or in the motion in arrest, they were waived.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 212, 213, 218-223; Dec. Dig. § 112.*

TRIMBLE, J. On the 7th of November, 1907, Andrew P. George, a brakeman on appellant's road, having switched, out of his train, a car from the main line to the house

For other definitions, see Words and Phrases, vol. 8, p. 7551.]

2. MASTER AND SERVANT (§ 112*)-INJURIES track at defendant's station in Kirksville, TO_SERVANT-RAILROADS-SWITCHES-FROGS was engaged in recoupling the two separated -DUTY TO BLOCK-TIME.

Rev. St. 1909, § 3163, requires railroad companies, on or before September 1, 1907, to adopt, put in use, and maintain the best known appliances or inventions to fill or block switches and frogs in all yards, divisional and terminal stations, etc. Held, that the statute contemplates that after the date specified a switch "in use" must be blocked, and that, when a switch or frog on a new section of track is put in use, it must be blocked at that time.

portions of the train, from which the car had been switched, when his foot caught in an unblocked frog where he was working, and, as a result thereof, he was run over and instantly killed. He was an unmarried man, over 21 years of age, living with his mother, and having several brothers and sisters. The plaintiff is his administrator, and in this action sues to recover damages in the sum of $10,000, for his death.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 212, 213, 218-223; Dec. Dig. § 112.*]

Rev. St. 1909, § 3163, requiring railroad companies, before September 1, 1907, to adopt, put in use, and maintain the best known appliances or inventions to fill or block all switches,

frogs, and guard rails in yards, divisional and terminal stations, and where trains are made up, to prevent as far as possible the feet of employés or other persons from being caught therein, was not invalid for uncertainty or impossibility of performance, because no criterion was prescribed by which the particular appliance to be adopted and applied by the railroad company in order to comply therewith was prescribed.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 212, 213, 218-223; Dec. Dig. § 112.*]

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1226-1238, 1240, 1343, 1345, 1382, 1386-1395, 1397, 1399-1401, 14041407; Dec. Dig. §§ 193, 238.*]

5. APPEAL AND ERROR (§§ 193, 238*)-PETITION-DEFECTS-WAIVER.

Error to Circuit Court, Adair County; Nat M. Shelton, Judge.

Action by Henry C. George, as administrator of the estate of Andrew P. George, deceased, against the Quincy, Omaha & Kansas City Railroad Company. Judgment for plaintiff, and defendant brings error. Affirmed. See, also, 249 Mo. 197, 155 S. W. 453.

J. G. Trimble, of Kansas City, Mo., and Campbell & Ellison, of Kirksville, for plaintiff in error. C. E. Murrell, of Kirksville, and Fogle & Fogle, of Lancaster, for defendant in

error.

4. MASTER AND SERVANT (§ 112*)-INJURIES caught therein."
TO SERVANT-SAFETY APPLIANCES-BLOCK-
ED FROGS-STATUTES-VALIDITY.

The cause of action is based upon a failure to obey section 3163, R. S. Mo. 1909, which required appellant, on or before September 1, 1907, "to adopt, put in use and maintain the best known appliances or inventions to fill or block all switches, frogs and guard rails on their road, in all yards, divisional and terminal stations, and where trains are made up, to prevent, as far as possible, the feet of employés or other persons from being Section 3164, R. S. Mo. 1909, takes away from a defendant railroad company, violating or failing to obey said statute, the defense of contributory negligence.

The answer was a general denial containing, in addition, two special defenses, namely: (1) That the track at the frog in question had been laid since September 1, 1907, but just recently, and immediately before the 7th of November, 1907, the date of the injury, and was at that time still in process of construction, and defendant had not had a reasonable time in which to ballast and surface the track and block said frog. (2) Contributory negligence on the part of the deceased. The court, on motion of plaintiff, struck out said special defenses; the defendant excepting.

Where a petition for wrongful death was Under appropriate instructions the quesdefective, in that it did not contain the names of the beneficiaries and facts from which the tion whether the frog was blocked or not, measure of damages could be ascertained, but as well as the question whether deceased's

foot was caught therein because of the absence of such block, were submitted to the jury, and, by its verdict in plaintiff's favor, these questions must be considered as being now beyond dispute.

The assignments of error with which we have to deal are, in substance, that the statute does not apply to this case, that the court erred in striking out the two special defenses, and in excluding the evidence offered in support thereof, and that the court erred in not sustaining a demurrer to the evidence.

[1] The point that the statute does not apply to this case is based upon the claim that the frog in question was not located at a point where it is required to be blocked; defendant contending that the statute requires only those frogs and switches to be blocked which are situated "in yards, divisional and terminal stations, and where trains are made up," and that the frog in question was not situated in any of such places, but on defendant's main line.

The deceased was killed at a point about 100 yards west of defendant's depot and station in Kirksville. The frog in which his foot was caught was at the switch where the house track left the main line and thence ran east around the south side of the depot and joined the main line again at another switch about 100 yards east of the depot. From this east switch there was a stock track lying north of the main track (which ran east and west), and leading west to the stock yards. A short distance west of said east switch there ran from said house track a transfer track, lying south of the house track, and leading around in a curve to the southeast to where it connected with the Wabash Railroad, which intersected defendant's line a short distance west of the place where deceased was killed. South of and parallel to this transfer track, and also leading from the house track, was still another track which ran around past the electric light plant down to where it also joined the Wabash Railroad. From this last track a spur track ran out to some coal sheds. Defendant's water tank was located on the main line near the intersection thereof with the Wabash Railroad.

The foregoing statement of the location of the depot and various tracks, with reference to the place where deceased was killed, is made for the reason that it bears on the question whether the frog where deceased was killed was within a "yard" or place where the statute requires it to be blocked. The statute is a penal statute, and must be strictly construed. Hence, if the place where the injury occurred is not within one of the places enumerated by the statute, it can have no application.

Kirksville was not a divisional or terminal station, and it is defendant's contention that

reference only to such yards as are maintained at a railroad's divisional or terminal station, or where many parallel tracks are maintained, and cars are habitually and constantly switched back and forth therein, and that said term "yards" does not mean the grounds, commonly spoken of as yards, used in connection with an ordinary station on the line.

We do not think the term "yards" in the statute should be given such a narrow and limited technical definition, unless there is something in the statute itself requiring such definition. In the absence of anything to show a contrary meaning, words used in a statute should be taken and considered as used in their usual, ordinary, and general signification. Every one knows that every railroad station has a "yard" of its own, by which is meant a place or piece of ground, usually within certain reasonable limits, though not necessarily inclosed, surrounding the depot or station, and used to switch and stand cars therein for the purpose of loading or unloading freight handled at that point, and for other purposes connected with the railroad business transacted at such station. Such place, in ordinary language, used by the persons in charge of such stations, as well as by the public doing business thereat, is termed a "yard." And in it there is always more or less switching to be done in order to deliver and take away cars at said station. Not only is it common knowledge that such place adjacent to a station is called a yard, but there was evidence to that effect. Defendant's definition of the term "yard," while it may mean primarily what defendant contends it does, may also include the larger meaning, since, under that rule, "a yard is a system of tracks within defined limits provided for the making up of trains, storing of cars and other purposes, over which movements not authorized by time-table, or by train order, may be made subject to prescribed signals and regulations." But even if such definition does not include what is ordinarily termed a "yard” at a railway station, yet if the statute means to include such as a yard, the scope of the statute cannot be limited by the adoption of a rule restricting the definition of the term "yard." There is nothing in the statute indicating that the term "yards" was not intended to mean whatever are termed yards in ordinary parlance when reference is had to railroads. On the contrary, there is enough in the statute to indicate that it intended said term should have the broad and general, rather than the limited, meaning. Because, instead of saying "in yards where trains are made up," it says "in all yards, divisional and terminal stations, and where trains are made up." That the term should have a broad, rather than a limited, meaning is also shown in the expressed purpose of the required blocking, which was "to prevent, as

persons from being caught therein." This is | 1907, and at that time the law was already in also shown in the fact that the statute applies to the owners or operators of any railroad or part of railroad in the state. That is, it is not conceivable that a statute, the purpose of which is to prevent as far as possible the feet of employés being caught, should require blocking only where there was danger to the employés working constantly all day long and every day, and not require it where there was danger to employés wherever they usually, customarily, and ordinarily, though not constantly, were expected to switch cars when the business of the road required them to be switched.

force requiring the switch to be blocked by September 1, 1907. It remained unblocked after September 1, 1907, in violation of the statute, down to November 7, 1907, when deceased was killed, and was not blocked until in June, 1908. The statute contemplates that after September 1, 1907, a switch in use must be blocked. It does not contemplate that a switch can be erected and put in use, and that the railroad can, after putting it in use, have a reasonable time in which to block, but that, when a switch or frog is put in use, it must be blocked at that time. The defendant did not dispute the fact that the switch was being used. Hence nothing could be accomplished by reversing and remanding the case on this point.

The other special defense stricken out was that of contributory negligence on the part of deceased. But, under the statute, contributory negligence constituted no defense. Section 3164, R. S. Mỏ. 1909.

The judgment is affirmed. All concur.

It will be observed that the place where deceased was killed was in a "yard" within the meaning of that term as ordinarily used. There was a switch about 100 yards east of the depot, and one about the same distance west of the depot. These two switches marked the limits of the yard at that place. There was a system of tracks there where cars could be cut out of a train and either stored on said tracks to be loaded or unloaded or turned over to the Wabash Railroad to be transported on its line. Over these tracks cars could be taken from the Wabash, and other cars standing in the yard at said depot could be placed in the train and carried away. And over these tracks, in the language of de- [3] But a point not before discussed has fendant's definition of a yard, "movements been presented. It relates to the validity of not authorized by time-table, or by train or- the statute; defendant claiming it is void der, may be made subject to prescribed sig for uncertainty. Preliminary to considering nals and regulations." All the above storing, that question, we will dispose of plaintiff's taking away, and transfer of cars required claim that defendant should not be allowed more or less switching as a usual and regu- to raise that objection in this court, since lar routine of business, though not requiring it was not made by answer, or otherwise, employés to be engaged thereat constantly at the trial. Plaintiff has likened defendall day and every day. In other words, ant's right to cases where the claim has switching was customarily or habitually, been made that a construction of the Conthough not constantly, required there. And it stitution was involved; the rule, in the latwas while deceased was engaged in cutting ter instance, being that the claim must be out a car and coupling his train together made at the first proper opportunity. George again in such a place that he was killed. We v. Railroad, 249 Mo. 197, 199, 155 S. W. cannot say the statute does not apply to such 453, and cases cited; Hutchinson v. Mora place. ris Bros., 190 Mo. 673, 677, 89 S. W. 870. We think the instance of a constitutional question, relating, as it does, to the jurisdiction of the Supreme Court and. Courts of Appeals, is not analogous to the question of the invalidity of a statute for other grounds than its being unconstitutional. If a court has jurisdiction of a case, except for some matter which may or may not be involved, as the party concerned may elect, he must present that question at his first opportunity, else he concedes it is not in the case. But, if there is no question of jurisdiction, the defendant may attack the validity or the construction of the law on any ground not involving its constitutionality.

In this state it has ever been the rule that the question whether a petition states facts sufficient to constitute a cause of action is not waived by failing to make ob

[2] The next complaint is that the court erred in striking out the two special defenses. The house track leading from the depot to the main track at a point west of the depot had formerly turned in a short curve and joined the main track at a point much closer to the depot. This short curve was to avoid a pond. Prior to the accident this pond had been filled, and the house track extended further west before it joined the main track, causing the switch to be moved from where it had been to the point where deceased was killed. This portion of the house track laid over the site of the pond was a skeleton track, that is, the ties and rails were in proper place, and also the switch so that it could be used, and was in use; but the ballast had not been filled in between the ties and possibly levelled and made smooth. The track and

On Rehearing.

ELLISON, P. J. This case has been again considered, and we are satisfied with the foregoing opinion, delivered by Judge TRIMBLE at the first hearing.

raised for the first time in the appellate enforced. What one court or one jury might court. Burns v. Patrick, 27 Mo. 434; Childs decide to be the best known appliance or invenv. Railroad, 117 Mo. 414, 23 S. W. 373; be the best known appliance or invention. It is tion another court or jury might decide not to State ex rel. v. Bland, 144 Mo. 534, 46 S. utterly impossible for any one from time to W. 440, 41 L. R. A. 297. Now if the stat- time, or at any time, to ascertain what is the ute in controversy is void for uncertainty, or best known appliance or invention. One court or jury might hold a railroad company liable for is void for possibility of execution, then a not blocking its frogs with a certain appliance, petition based upon it does not state a cause and another court or jury might hold the same of action, and hence advantage may be tak- or another railroad company liable for using the selfsame appliance." en of such fatal defect on appeal, though not before mentioned.

[4] The statute in dispute (section 3163, R. S. 1909) is quoted in the forepart of Judge TRIMBLE'S opinion, and the question we have now to determine is whether it is valid. Defendant claims it is void for uncertainty. We take some exception to defendant's mode of stating its objection. Neither the words nor the meaning of the statute is uncertain. Indeed, we think the very certainty of its expression and meaning is the thing that gives defendant a basis for the contention that it is void. That is to say, it so clearly commands the performance of the acts specified that their performance is said to be an impossibility, and in consequence the law is void; and that is really the course of defendant's argument. The particular parts are these words: That the company shall use "the best known appliances or inventions to fill or block all switch* to prevent, as far as possible, the feet of employés being caught therein." Now there evidently is no uncertainty about the words and the meaning of the statute. It is undoubtedly true that, "where the statutory terms are of such uncertain meaning, or so confused, that the courts cannot discern with reasonable certainty what is intended, they will pronounce the enactment void." State v. Light Co., 212 Mo. 101, 110, 110 S. W. 1079, 1082 (126 Am. St. Rep. 563). But that is not the condition in this case. We have not here a lot of words thrown together in such way as not to be intelligible. Nor is it a direction in intelligible language of a number of incongruous, inconsistent, and self-contradictory matters, as was the statute discussed and held void by the Supreme Court in an able opinion by Judge Williams, in State ex inf. v. Street Ry. Co., 146 Mo. 155, 47 S. W. 959.

* *

es

But, though the words in question are intelligible, the question remains: Is it impossible, in any reasonable practical application, to comply with it? For, if a statute is such that it "impossible to comply with its provisions, it will be held to be of no force and effect." People v. Briggs, 193 N.

Y. 457, 459, 86 N. E. 522, 523; State v.

Partlow, 91 N. C. 550, 49 Am. Rep. 652. So the objection to this statute is that it is not possible for railway companies to comply with it. Defendant asks:

Our answer to this is that the Legislature realized it was dealing with and directing human agencies, not infallible, and, when it demanded the use of the best appliances, it meant the best according to the careful judgment of men qualified to judge of such instrumentalities. The best known does not necessarily mean that there shall be but one kind, or that that particular one shall be selected at the peril of the company, as there may be several of equal safety, the use of either of which would satisfy the terms of the statute. There might be several safety appliances or devices, and one cr more be known at a certain time as the best, as compared with the others, and yet it might be, as was said in argument, that some of the latter may, by experience and use, come to be known and considered before But we trial of a given case as the best. do not think such considerations should prevent a practical application of the statute. Culpability of a railway company would be judged by the status of things existing at the happening of an injury. The best appliances, the best methods, the latest improvements, the best to be had in the market, are closely related expressions in common use, and their practical fulfillment in ordinary contracts of the day has never been thought to be unreasonably difficult, much less impossible. Character of safety appliances in different conditions have been the subject of frequent discussion, and the use of terms similar to those in this statute have not been thought inapt. Thus in 4 Elliott on RailSteinweg v. Erie Ry. Co., 43 N. Y. 123, 3 Am. roads, § 1472, "the expression is quoted from Rep. 673, that the most approved modes of in the business and the best precautions in construction and machinery in known use known practical use for securing safety" was

the care required in case of spark arresters;

and in that case it will be seen the difficul-
ties suggested by defendant of application
of the present statute were not considered
as affecting the rule stated. The same au-
thor (volume 3, § 1224) speaks of "approved
appliances in general use." So 1 Shearman &
Redfield on Negligence, § 45, speaks of the
law as requiring all "known tests" as to the
loc. cit. 327, the Supreme Court refer to the
In Fitch v. Railroad, 45 Mo.
safety of cars.
duty of a railroad to show "that the best
machinery and contrivances were used."

"What is the best known appliance or invention for this purpose? How is it to be ascertained? Who is to decide it? It is perfectly

It is important to look to the former state of the law. Decker v. Diemer, 229 Mo. loc.

« 이전계속 »