George v. Quincy, Omaha & Kansas City Railroad

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 track at defendant’s station in Kirksville, was engaged in reconpling the two separated 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 ten thousand dollars, for his death.

The cause of action is based upon a failure to obey section 3163', Eevised Statutes 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 its road, in all yards, divisional and terminal stations, and where trains are made up, to prevent, as far as possible, the feet of employees or other persons from being caught therein.” Section 3164, Eevised Statutes 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 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.

Under appropriate instructions the question whether the frog was blocked or not, 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.

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 one hundred 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 one hundred yards east of the depot. Prom 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 south east 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 the term “yards” as used in the statute has reference only to-such yards as are maintained at a railroad’s divisional or terminal stations, 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 he taken and considered as used in their usual, ordinary and general signification. Everyone 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 he 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 far as possible, the feet of employees or other persons from being caught therein. ” This is 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 conceiveable that a statute, the purpose of which is to prevent as far as possible the feet of employees being caught, should require blocking only where there was danger to the employees working constantly all day long and every day, and not require it where there was danger to employees 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 deceased was killed was in a “yard” within the meaning of that term as ordinarily used. There was a switch about one hundred 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, nr the language of defendant’s definition of a yard, “movements not authorized by time table, or by train order, may be made subject to prescribed signals and regulations.” All the above storing, taking away and transfer of. cars required more or less switching as a usual and regular routine of business, though not requiring employees to be engaged thereat constantly all 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.

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 switch in question were put in, in August, 1907, and at that time the law was already in 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. Bnt that when a switch or frog1 is pnt in nse 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 neglig*ence on the part of deceased. 'But, under the statute, contributory negligence constituted no defense. [Sec. 3164, R. S. 1909.] The judgment is affirmed

All concur.