and who was to be interested to the extent of sume the liability of Jefferson on the bond, one-half in the fees of the office. Thereafter Hanberry defaulted as commissioner, and suit was instituted on his official bond, which resulted in a judgment against him and his bondsmen, which, upon appeal to this court, was affirmed, and which when finally paid by the Bogards, amounted to $1,404.55. Hanberry being insolvent, White, in compliance with his obligation to the Bogards, paid them $468.18, leaving the sum of $936.36 paid out by the Bogards, over and above their indemnity from White, by reason of their liability on the bond. This is a suit by the Bogards against Jefferson seeking contribution from him as cosurety on the bond to the extent of one-third of the last-named sum. The defendant answered, alleging that at the time of the agreement between the Bogards and White it was agreed that he (Jefferson) was to do all the clerical work in the office for Hanberry as master commissioner, and was to countersign all checks to be paid out which were to be drawn by said master commissioner, and that the cashier of the bank where the funds were to be deposited was directed not to honor any check until countersigned by Jefferson, and that, in consideration of these services, it was agreed between the Bogards and White and Jefferson that he (Jefferson) was to be held harmless as surety on said bond, and that White was to assume, and did assume, the one-third of the liability that the defendant Jefferson was supposed to assume, and that he (Jefferson) signed said bond with this understanding and agreement, and that White executed the written contract to the Bogards upon these conditions. and that Jefferson was to be held harmless, is totally unsupported by the evidence. It is apparent from the writing itself that Jefferson was not considered in the arrangement between White and the Bogards. If White did not know when he executed the paper to the Bogards that Jefferson had signed or contemplated signing the bond, it is difficult to see how the signing of that paper could have been intended to protect Jefferson. [2] It is further insisted for appellant that two items embraced in the aggregate of $1,404.55, and which two items aggregated $218.90, being costs in the circuit court and attorney's fees, were not covered by the terms of the bond, and that plaintiffs were therefore not. entitled to contribution therefor; but it is sufficient to say in response to this that there was no issue made in the pleadings as to these items or either of them, although it appears in the face of the petition that they each went to make up the aggregate of $1,404.55. The only defense presented by the answer was that, by agreement between the parties, White was to be bound as surety in Jefferson's place, and Jefferson was to be held harmless, and the evidence fails to support this allegation. The judgment is affirmed. BARRICKMAN ▾. CITY OF LOUISVILLE. (Court of Appeals of Kentucky. June 5, 1914.) 1. MUNICIPAL CORPORATIONS (8 805*) STREETS-AUTHORITY OF MUNICIPALITY. It being the positive duty of municipalities to keep their streets in a reasonably safe condition for public travel, they may temporarily close them, and, when closed, if due notice be given, there can be no recovery for an injury These allegations were duly denied by a resulting from their use; and hence a resident reply. The court entered a judgment against Jefferson for one-third of the amount paid by the Bogards after deducting the indemnity paid them by White, and Jefferson's administrator appeals. The depositions of White and Hanberry show, being the only evidence taken on that issue, that at the time of the agreement between White and the Bogards it was not understood or contemplated by any of the parties that Jefferson had or would become bound on the bond, and yet the indisputable fact is that he signed the bond jointly with the Bogards; and, as the writing between White and the Bogards shows on its face that White was to indemnify the Bogards only to the extent of one-third of any sum for which they might become liable as sureties on the bond, there is no reason why they may not receive contribution from Jefferson in addition to that received from White. The allegation in the answer that there was an agreement by which White was to as who knew that a street was closed, and had not recover for an injury sustained in using the seen the obstructions and danger signals, canstreet during a storm. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1677, 1683; Dec. Dig. § 805.*] 2. MUNICIPAL CORPORATIONS (8 805*) STREETS DUTY OF CITY TO MAINTAIN WARNING SIGNALS. Where a municipality had closed a street for repairs and placed barriers and lights thereknew of the obstruction, because during a storm on, it is not liable for injuries to a traveler who the lights were extinguished. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1677, 1683; Dec. Dig. § 805.*] Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Fourth Division. Action by Nellie Barrickman against the City of Louisville.. From a judgment for defendant, plaintiff appeals. Affirmed, Elmer C. Underwood and Beckham Overstreet, both of Louisville, for appellant. Wm. J. O'Connor and Pendleton Beckley, both of Louisville, for appellee. 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 ing over an obstruction in the driveway of Dumesnil street in that city. At the close of the plaintiff's testimony the circuit court directed a verdict to be returned for the defendant, and the plaintiff has appealed. into it, knocked the plank down, fell herself, and was injured. The evidence of one or more of the party is to the effect that they were going in the face of the rain and had their heads down. It further appears that the 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 function some blocks away; that in so doing they passed along Dumesnil street for several blocks, and immediately along by the place where the accident later happened; that the driveway of Dumesnil street was at the time closed for traffic, and had been for about two weeks; that where they so passed along bar-sulting from their use. riers were erected at three different places along the street with red lights hung upon them, and that the plaintiff knew the driveway was and had been closed to traffic for the purpose of making certain repairs on it, which had that day been completed, but the street had not been opened, and was not ready for traffic. [1] It is the positive duty of municipalities to keep their streets in reasonably safe condition for public travel, and, in doing so, are authorized to temporarily close them to public traffic, and, when they are so closed, if due and timely notice is given to the public, there can be no recovery for an injury re 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 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 In this case appellant knew the street was closed to traffic; she lived only a few blocks away; she had seen these obstructions a few short hours before with the danger signals hanging on them; and, if, with the knowledge of these facts, to escape the slippery and muddy sidewalk, she chose to use the driveway 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. [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. 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. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 212, 213, 218-223; Dec. Dig. § 112.* For other definitions, see Words and Phrases, vol. 8, p. 7551.] such objections were not mentioned at the trial or in the motion in arrest, they were waived. [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.*] 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. 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 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. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 212, 213, 218-223; Dec. Dig. § 112.*] On Rehearing. 3. APPEAL AND ERROR (§ 170*)-STATUTESINVALIDITY-RIGHT TO OBJECT. Defendant, in an action based on statute, may object for the first time on appeal that the statute is void for some reason not involving its constitutionality. 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. 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 4. MASTER AND SERVANT (§ 112*)-INJURIES caught therein." Section 3164, R. S. Mo. 1909, TO SERVANT-SAFETY APPLIANCES-BLOCK- takes away from a defendant railroad comED FROGS-STATUTES-VALIDITY. pany, violating or failing to obey said statute, the defense of contributory negligence. The answer was a general denial contain [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §8 1035-1052, 1099, 1100; Dec. Dig. § 170.*] 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 ing, in addition, two special defenses, nameterminal stations, and where trains are made ly: (1) That the track at the frog in question up, to prevent as far as possible the feet of had been laid since September 1, 1907, but employés or other persons from being caught just recently, and immediately before the 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.*] 5. APPEAL AND ERROR (§§ 193, 238*)-PETITION-DEFECTS-WAIVER. 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 (2) surface the track and block said frog. 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 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 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. 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. It will be observed that the place where de-switch was being used. Hence nothing could ceased was killed was in a "yard" within the be accomplished by reversing and remandmeaning of that term as ordinarily used. ing the case on this point. 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, switching was customarily or habitually, though not constantly, required there. And it was while deceased was engaged in cutting out a car and coupling his train together again in such a place that he was killed. We cannot say the statute does not apply to such a place. [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. ant's right to cases where the claim has been made that a construction of the Constitution was involved; the rule, in the latter instance, being that the claim must be made at the first proper opportunity. George v. Railroad, 249 Mo. 197, 199, 155 S. W. 453, and cases cited; Hutchinson v. Morris 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 |