Chicago, St. Paul, Minneapolis & Omaha Railway Co. v. Chicago, Milwaukee & St. Paul Railway Co.

The following opinion was filed November 29, 1901: Dodge, J. 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, [167] namely, that specified in tbe fourth section of tbe contract, — “in case flagmen or switchmen are required at or by reason of said crossing.” Then, and then only, were certain expenses to be paid, namely, tbe hire of “such flagmen or watchmen,” etc. It is probable that tbe word “switchmen,” in tbe first clause, was intended to be “watchmen,” since it is rendered entirely apparent by tbe evidence that a man whose duty it was to attend upon a crossing would be called a “watchman” or “flagman.” But, waiving that consideration, if the word “switchmen” was intentionally used, as perhaps we must presume, their function would doubtless be in connection with the possibility contemplated by the crossing statute above referred to, that there might be put in certain turn-outs, sidings, switches, and other conveniences in furtherance of the object of the connection. A mass of evidence was introduced bearing upon the functions of various men employed at railroad crossings, and the appliances used by them, as also with reference to the names used to describe both the employees and their implements. That evidence renders certain, beyond dispute, that, within railroad terminology, neither the designation “flagmen,” “switch-men,” nor “watchmen,” would ever be used or understood to describe or include operators of interlocking plants. Although such operator does perform the duties of a watchman, in that he looks out for trains; duties of a flagman or signalman, in that he signals approaching trains; and of a switch-man, in that he opens and closes the derailing devices, often called -“switches,” — yet the plant which he operates is so distinguished by its purpose, its method of construction, and its importance that he is always distinguished in designation by reference to the plant so operated, and never confused with flagmen, watchmen, or switchmen. Nor can we discover in the surrounding circumstances anything to warrant belief that the parties intended by these words more than their ordinary import in railroad parlance. It therefore [168] would seem clear that tbe contingency lias never arisen wbicb by tbe contract was to impose on tbe defendant tbe expenses specified in tbe fourth paragraph; that no flagman, switchman, or watchman, within any reasonable meaning of those words, has ever been required at or by reason of this crossing j hence that no duty has arisen to do* the acts sought to be compelled in this action by a decree of specific performance. 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. Marshall, J., dissents.