Opinion op the Court,
Wall, J.The appellant city brought its action on the case against the appellee railroad company, alleging that it had been compelled to pay certain damages recovered against it by one Tustison, who had sustained a personal injury by reason of the defective condition of the sidewalk, on a street in said city, at a point where the said street crossed the right of way of said railroad company; that it was the duty of said railroad company to keep said sidewalk in good repair, and that in the action brought by said Tustison against the city the railroad company was originally a party, co-defendant with the city, but that on the trial of that cause the plaintiff therein dismissed the said railroad company therefrom, whereupon the city notified the company to appear and defend the action, and that it would be held by the city responsible for any judgment that might be recovered therein, but the company declined to appear or defend the cause further, and although the city continued its defense, the plaintiff recovered, and in the present action the city sought to recover over from the railroad company.
The Circuit Court sustained a demurrer to the declaration, and the question now is whether a good cause of action was disclosed.
The duty of the railroad company to maintain the sidewalk referred to, is predicated upon the following enactment, Par. 71, Ch. 114, S. & C. Stat. p. 1937:
“Hereafter at all railroad crossings of highways and streets in this State, the several railroad corporations in this State shall construct and maintain said crossings, and the approaches thereto within their respective rights of way, so that at all times they shall be safe to persons and property.”
It will be observed that the duty of the railroad company here prescribed, is limited to the crossings and approach thereto within the right of way. There is no obligation to build and maintain a sidewalk beyond the approach to the crossing. The qualifying words, “within their right of way,” do not inquire the company to do more than make the crossing and the approach, but if by reason of the situation, the approach extends to the limit of the right of way it must, to that extent, be built by the company.
The term “ approach,” means a structure of some sort necessary to reach the railroad track from the common surface. It does not signify an ordinary sidewalk. It may be an embankment, or a bridge, or whatever is required for the purpose, at the particular place.
In the first, second and third counts of the declaration, it is charged that the defect in the sidewalk was within the right of way of the railroad company and west of its tracks. In an .additional count, the declaration filed by Tustison against the city was set out in haee verba, in which he designated the point where he was injured in precisely the same way, vis., on the right of way, west of the tracks; and it was then averred by the city “ that said walk upon which Tustison so received his said injuries, was a crossing constructed by the said Illinois Central Railroad Company for the use of foot passengers walking on Jefferson street to cross its right of way, and was the crossing and approach thereto of said Jefferson street, in said city, oyer said railroad, and it was then and there the duty of said defendant railroad company to construct and maintain said crossing, which was within its said right of way, so that at all times it would be safe to persons using the said crossing. And the said crossing is the sidewalk in said declaration complained of.”
The first, second and third counts did not show a failure by the railroad company to maintain the railroad crossing and the approach thereto, but merely to maintain a good sidewalk within the right of way; and construing the aver- ° ment most strongly against the pleader, the point where the injury occurred was not on the crossing or the approach thereto. So, also, was the averment in Tustison’s declaration set out in the additional count—hut in this count an effort was made to aid the statement of the place where the injury occurred by a further averment.
Conceding for the present that this is admissible, yet we think the additional averment does not really help the plaintiff, for it appears that the walk which is called a crossing, was for the use of foot passengers walking on Jefferson street to cross the right of way, and by the rule of construction above stated, it does not appear that the defect was at a point where the railroad company was bound to provide a crossing over the track or the approach thereto. It is. not enough to aver that the walk was for the purpose of crossing the right of way.
While the company must provide a crossing over its railroad track, it is not required to provide a crossing over the right of way in the shape of a sidewalk, or otherwise, unless it is necessary to do so in order to make a suitable approach to the crossing over the track.
The statute has been upheld by the Supreme Court as a valid exercise of the police power. C. & N. W. Ry. Co. v. The City of Chicago, 140 Ill. 309.
It applies by its terms as well to the case of a railroad built across a street, the street being first located, as to the case of a street opened across a railroad, the railroad being first located.
In the former case, as was held in The People, etc. v. C. & A. R. R. Co., 67 Ill. 118, the company would be bound at the common Jaw to furnish the public a suitable crossing, but in the latter case there would be no such duty were it not for the statute.
By the provision of a section subsequent to that above quoted, the company may be required to reimburse the city for making necessary repairs, etc., after notice given, and also be fined in the sum of $100 for neglect to comply with the requirement of the first section.
Here, then, is a statute enacted under the police power of the State, prescribing a new duty and fixing a penalty for non-performance.
The rule that a penal statute or one in derogation of common right must be strictly construed, as now applied, means that courts will not extend the punishment to cases not clearly within the statute, yet the evident intention of the legislature will not be defeated by a forced and over strict construction. Sedgewiek on Stat. & Const’l Law, 283. The duty imposed by this provision should not be extended beyond the plain meaning of the language employed.
Had it been designed to compel the railroad company to construct an ordinary sidewalk across its right of way at a point where it had not disturbed the surface by making its road, and where an unusual structure called an “ approach was not required to reach the crossing of the road, very different terms would have been used.
We hold, therefore, that the declaration failed to show a neglect of duty on the part of the defendant, and for this reason the demurrer was properly sustained.
In this view of the case it is unnecessary to inquire whether the company would in any event be liable for the amount of damages recovered by the injured party from the city, or whether its full liability is measured by the remedy and penalty provided for in the statute, nor to discuss the conditions necessary in any case to enable the city to recover over from one whose unlawful act or negligence has caused an injury for which the city has been compelled to pay damages.
The judgment will be affirmed.