113 Wis. 161 | Wis. | 1902
Lead Opinion
The following opinion was filed November 29, 1901:
This case was .argued with great vigor, ability, and refinement by counsel upon both sides, invoking most of the well-known rules for construction of contracts, which, however, in the ultimate analysis, all come to the proposition that the duty of every court in the construction of a contract is to ascertain the intention of the parties; limited, however, in so doing, to the language of the contract, read in the light of the surrounding circumstances, and purposes presumably in the minds of the parties at the time of reducing their agreement to writing. Heryford v. Davis, 102 U. S. 235, 243; Brittingham & H. L. Co. v. Manson, 108 Wis. 221, 225.
The situation at the time of making the contract under consideration was that of the respondent exercising its right by statute to cross the existing railway of the plaintiff at a point remote from settlement or habitation. It had a right to do this by putting in and maintaining the physical crossing, and by paying such sum as might be fixed by commissioners in a proceeding under subd. 6, sec. 1828, Stats. 1898, which was the same in 1884 as it is now. By the agreement between the parties, the duty to put in and maintain the physical crossing was, as under the statute, to be borne by the respondent. That duty was subject to increase as the appellant, in its discretion, might desire to put in additional tracks. This was the extent of the obligation assumed by the respondent, except in one contingency,
This conclusion, based upon the very words of the contract, makes unnecessary consideration or decision of the very extensively discussed question whether an interlocking plant falls within the calls of the contract for “all watch houses, signal stations, signals, and other similar appliances that may now or at any time hereafter be required,” or whether it is so differentiated therefrom as to be dissimilar, instead of similar. That question would involve so extended investigation and so many conflicting considerations that we cannot justify ourselves in entering upon it, although fully debated, and apparently deemed the crucial one by the circuit court. The judgment of that court was right, however this latter question be resolved.
By the Court. — Judgment affirmed.
Rehearing
The appellant moved for a rehearing, and the following opinion was filed February 18, 1902:
By the former opinion this case was disposed of, and the judgment affirmed on the ground that until plaintiff required of defendant a flagman, switchman, or watchman, no duty rested upon the latter to employ such men, or to erect and maintain the structures and appliances specified in the contract, and that no such requirement had yet been made. That served to affirm the judgment, and the
The question so presented is whether the interlocking system or machine was intended to be included within the expression “other similar appliances,” for clearly it is not included in the specific things described as “watch houses,” “signal stations,” or “signals.” Each of these may perhaps be included in the interlocking plant, but neither of them alone, nor all of them together, include the important and characteristic element of the latter. That element is a peculiarity of construction of the tracks of each railroad some 500 feet away from the crossing, connected with each other through the medium of a machine, so as to create absolute physical obstacles to the passage of a taain to collision at the crossing. This is no signal, for that implies merely a notification to the trainmen, by reason of which they are to govern their conduct. The very purpose of the interlocking arrangement is to render signals wholly unimportant and-immaterial to the purpose of preventing collision. True, signals ar§ used in connection with the interlocker, buf not to safeguard the crossing, — merely .to enable the trainmen to avoid the derailing of their own trains.
Turning then to a consideration of the force and meaning of the expression “other similar appliances,” we enter a field for construction and interpretation, for the words are not definite and certain. They may apply to one thing or an
Great space is devoted by appellant’s counsel to refutation of the idea that the great and direct purpose of installing interlockers is to avoid necessity of stopping trains at crossings, to which several witnesses testify. He urges upon us the testimony of other witnesses that the purpose, like that of signals, gates, or flagmen, is to safeguard the crossings. After a careful reading of the record, we are satisfied that, while the ultimate object is safety, these devices are not in fact used at crossings, except where stoppage of trains is a serious burden and expense. Of course, in the operation of railroads there is continual balancing of the expense of safeguards,'on the one hand, against the degree of peril and expense of doing without them, on the other. Doubtless the surest guaranty at crossings is to substitute an overhead viaduct for one of the roads, but that is not adopted till peculiar circumstances of frequency of trains, difficulty of observation,
“I regard it as a perfectly safe method of guarding a crossing, if you want to undertake tbe plan of stopping all trains.”
Several other witnesses testify to tbe dominance of tbe purpose of escaping tbe stoppage of trains, while still others assert pre-eminence to tbe motive of safeguarding tbe crossing. In view of tbe whole record, we should not doubt tbat there was evidence to support the view tbat the main purpose of installing an interlocking plant at a crossing ds ordinarily
One argument much urged by appellant is to the effect that respondent has not been able to suggest any appliance other than the signals in use at the time of making the contract, and therefore included by the -word “signals,” which is ever used to safeguard crossings, except the interlocking, and that the words “other similar appliances” must either apply to such plant or be meaningless. The premise is hardly correct, for there is evidence that gates swihging across the tracks may be, and frequently are, used. While such appliance serves as a signal, it would not be very aptly
In the light of all the evidence and of the words of the contract, we axe unable to say that it so clearly appears that the interlocking plant is an appliance similar to those specifically mentioned in the contract, or that the purpose of the parties at the time of contracting was such as to necessarily include it, that we can repudiate the finding of the trial court thereon. We therefore agree with that court in the conclusion that the contract under consideration does not, under any circumstances, require defendant, at its expense, to install and maintain an interlocking plant.
Appellant further urges that, although we so hold, still under the prayer of the complaint should be decreed what duty does rest on defendant, and that such duty be specifically enforced. The trouble with that contention is that defendant has not agreed to do anything until required, and paintiff has not required any other appliance than that al
By the Oourt.-~ — Tbe piotion for rebearing is denied, without costs.