BLAIR, J.
This is an appeal from a judgment for $9000 rendered by the Randolph Circuit Court in an action instituted by respondent to recover damages for the loss of a leg. The petition alleged the injury resulted from appellant’s failure to block or fill one of its guardrails in its yards at Moberly. Respondent was a switchman and when injured was engaged, as one of a train crew, in hauling coal over that part of appellant’s line between Moberly and Huntsville. This [244]*244crew had brought a coal train into the Moberly yards and, in the course of duty, respondent undertook to uncouple some moving cars. He stepped between the ears, his toe slipped under the ball or top of a guardrail, and before he could remove it a car wheel passed over his foot.
There • was evidence pro and con on the question whéther the guardrail was filled or blocked in the usual manner. In the sense used in this record, a guardrail is a rail placed inside of a main or running, or track rail, paralleling such rail except at each end, where it is bent out therefrom in order to prevent the flanges on the car wheels from striking the end of it. The method of blocking or filling guardrails in the Moberly yards, generally, and the guardrail in question, was by driving into the open space between the main rail and the flared or curved end of 'he guardrail a block of wood two or three feet long and large enough to fill the space up to the lower side of the ball of the rails. There is evidence tending to show that the guardrail by which respondent asserts his foot was caught was not blocked, but that coal dust had sifted down from passing cars and filled the unblocked space up to the lower part of the ball of the rail. Other facts in evidence, necessary to a decision, are stated in the course of the opinion.
Guardrails I. Appellant contends there was no evidence coal dust accidentally deposited between the main and guardrails was not such blocking or filling as required by the statute. [Sec. 3163, R. S. 1909.] This requirement of the statute is that the “best known appliances” be used for such purposes. On the trial there was no pretense appellant employed, or attempted to -employ, in its Moberly yards, or in connection with the particular guard rail in question, any method save blocking as above described. Appellant called the employee who, at the time respondent was injured, was responsible for the safety appliances affected by the statute (Sec. 3163, R. S. 1909), [245]*245so far as concerned the Moberly yards, and he testified the method used, with respect to guardrails, was to drive between the main rail and the bent or flared end of the guardrail a block of wood of sufficient size and length to fill the space in such manner that a man’s foot could not be caught therein. He also testified that a.man’s foot could not be caught when a guardrail is properly blocked. Appellant’s testimony was to the same' effect. The jury must have found appellant’s foot was caught under the ball of the guardrail and that the rail was not blocked. In the face of appellant’s own proof that proper blocking would have rendered it impossible for respondent’s foot to have been caught, it is hardly necessary to say that we cannot hold that coal dust accidentally sifted between the rails, and in spite of which appellant’s foot was caught, satisfies the requirement (Sec. 3163, R. S. 1909) that the “best known appliances” must be used to block or fill the opening between the guardrail and main rail.
Evidence of Place of injury. II. It is insisted the evidence shows respondent was not injured at the point on the guardrail where blocking is required. There is evidence respondent’s foot was caught under the ball or top of guardrail, and further evidence, by both appellant’s and respondent’s witnesses, jp was impossible for his foot to have been caught elsewhere than at the end where blocking is required, the rails being too close together at all other • places. Further, respondent testified his foot was caught at a point at which the guardrail was “bent the opposite way a-little,” and all the evidence is that the bend in the guardrail is the thing which creates the opening which blocking is designed to close. The evidence on this point .is sufficient.
[246]*246Between^ Guard Rail, [245]*245III. It is urged the evidence shows respondent’s foot was not caught between the main rail and the guardrail, and that this ends the case. Respondent’s [246]*246foot was upon the main rail and his toe slipped under the ball of the guardrail. The earth outside the main rail was level with its top. The guardrail was slightly higher than the main rail. The evidence tends to show the injury occurred at a point at which blocking was required and that had the guardrail been blocked respondent’s foot could not possibly have been caught as he testified it was. This contention seems to assume that it was necessary to respondent’s case that his whole foot be caught between the two rails in order that he might recover in this case. This cannot be true. The lack of blocking caused- his toe to become wedged under the ball of the guardrail and this held his foot until the wheel passed over it. The purpose of the statute (Sec. 31G3, R. S. 1909) is “to prevent, as far as possible, the feet of employees . . . from being caught,” and respondent brought himself within the statute by showing that his injury resulted from his foot being caught by reason of appellant’s failure to block the guardrail mentioned in evidence in this case.
oÍTstatute. TV. It is contended the statute is void for uncertainty. This question is considered and correctly decided, adversely to appellant, in George v. Railroad, 179 Mo. App. l. c. 292 et seq. The question whether the daily penalty could be enforced is not in this case- Eliminating the penalty clause, there is yet a valid provision remaining which is broad enough to cover this case. The elimination of the daily penalty clause, even if that were necessary, would not destroy the remainder of the act.
Instructions. Y. The instructions are criticized. The first predicated certain- facts and required certain findings, and then directed the jury to find for respondent if they found that he “was injured as aforesaid by and in direct and immediate consequence of the negpg.ence 0f defendant in failing to block said guardrail, or in negligently maintaining the said [247]*247guardrail and track rail without any blocking or filling between said rails, so as to prevent as far as possible the foot of plaintiff from being caught therein.”
It is insisted the instruction erroneously (1) authorized a verdict in the absence of blocking “regardless of whether the rail had been filled,” and (2) ignored the evidence tending to show the space was filled with loose particles of coal dust which had dropped from passing cars. The defense was that the guardrail was blocked, not filled. This was the trial theory. Loose particles of coal or coal dust, by chance fallen between the rails, constitute no compliance with the statute. In the circumstances, the instruction was not prejudicial.
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BLAIR, J.
This is an appeal from a judgment for $9000 rendered by the Randolph Circuit Court in an action instituted by respondent to recover damages for the loss of a leg. The petition alleged the injury resulted from appellant’s failure to block or fill one of its guardrails in its yards at Moberly. Respondent was a switchman and when injured was engaged, as one of a train crew, in hauling coal over that part of appellant’s line between Moberly and Huntsville. This [244]*244crew had brought a coal train into the Moberly yards and, in the course of duty, respondent undertook to uncouple some moving cars. He stepped between the ears, his toe slipped under the ball or top of a guardrail, and before he could remove it a car wheel passed over his foot.
There • was evidence pro and con on the question whéther the guardrail was filled or blocked in the usual manner. In the sense used in this record, a guardrail is a rail placed inside of a main or running, or track rail, paralleling such rail except at each end, where it is bent out therefrom in order to prevent the flanges on the car wheels from striking the end of it. The method of blocking or filling guardrails in the Moberly yards, generally, and the guardrail in question, was by driving into the open space between the main rail and the flared or curved end of 'he guardrail a block of wood two or three feet long and large enough to fill the space up to the lower side of the ball of the rails. There is evidence tending to show that the guardrail by which respondent asserts his foot was caught was not blocked, but that coal dust had sifted down from passing cars and filled the unblocked space up to the lower part of the ball of the rail. Other facts in evidence, necessary to a decision, are stated in the course of the opinion.
Guardrails I. Appellant contends there was no evidence coal dust accidentally deposited between the main and guardrails was not such blocking or filling as required by the statute. [Sec. 3163, R. S. 1909.] This requirement of the statute is that the “best known appliances” be used for such purposes. On the trial there was no pretense appellant employed, or attempted to -employ, in its Moberly yards, or in connection with the particular guard rail in question, any method save blocking as above described. Appellant called the employee who, at the time respondent was injured, was responsible for the safety appliances affected by the statute (Sec. 3163, R. S. 1909), [245]*245so far as concerned the Moberly yards, and he testified the method used, with respect to guardrails, was to drive between the main rail and the bent or flared end of the guardrail a block of wood of sufficient size and length to fill the space in such manner that a man’s foot could not be caught therein. He also testified that a.man’s foot could not be caught when a guardrail is properly blocked. Appellant’s testimony was to the same' effect. The jury must have found appellant’s foot was caught under the ball of the guardrail and that the rail was not blocked. In the face of appellant’s own proof that proper blocking would have rendered it impossible for respondent’s foot to have been caught, it is hardly necessary to say that we cannot hold that coal dust accidentally sifted between the rails, and in spite of which appellant’s foot was caught, satisfies the requirement (Sec. 3163, R. S. 1909) that the “best known appliances” must be used to block or fill the opening between the guardrail and main rail.
Evidence of Place of injury. II. It is insisted the evidence shows respondent was not injured at the point on the guardrail where blocking is required. There is evidence respondent’s foot was caught under the ball or top of guardrail, and further evidence, by both appellant’s and respondent’s witnesses, jp was impossible for his foot to have been caught elsewhere than at the end where blocking is required, the rails being too close together at all other • places. Further, respondent testified his foot was caught at a point at which the guardrail was “bent the opposite way a-little,” and all the evidence is that the bend in the guardrail is the thing which creates the opening which blocking is designed to close. The evidence on this point .is sufficient.
[246]*246Between^ Guard Rail, [245]*245III. It is urged the evidence shows respondent’s foot was not caught between the main rail and the guardrail, and that this ends the case. Respondent’s [246]*246foot was upon the main rail and his toe slipped under the ball of the guardrail. The earth outside the main rail was level with its top. The guardrail was slightly higher than the main rail. The evidence tends to show the injury occurred at a point at which blocking was required and that had the guardrail been blocked respondent’s foot could not possibly have been caught as he testified it was. This contention seems to assume that it was necessary to respondent’s case that his whole foot be caught between the two rails in order that he might recover in this case. This cannot be true. The lack of blocking caused- his toe to become wedged under the ball of the guardrail and this held his foot until the wheel passed over it. The purpose of the statute (Sec. 31G3, R. S. 1909) is “to prevent, as far as possible, the feet of employees . . . from being caught,” and respondent brought himself within the statute by showing that his injury resulted from his foot being caught by reason of appellant’s failure to block the guardrail mentioned in evidence in this case.
oÍTstatute. TV. It is contended the statute is void for uncertainty. This question is considered and correctly decided, adversely to appellant, in George v. Railroad, 179 Mo. App. l. c. 292 et seq. The question whether the daily penalty could be enforced is not in this case- Eliminating the penalty clause, there is yet a valid provision remaining which is broad enough to cover this case. The elimination of the daily penalty clause, even if that were necessary, would not destroy the remainder of the act.
Instructions. Y. The instructions are criticized. The first predicated certain- facts and required certain findings, and then directed the jury to find for respondent if they found that he “was injured as aforesaid by and in direct and immediate consequence of the negpg.ence 0f defendant in failing to block said guardrail, or in negligently maintaining the said [247]*247guardrail and track rail without any blocking or filling between said rails, so as to prevent as far as possible the foot of plaintiff from being caught therein.”
It is insisted the instruction erroneously (1) authorized a verdict in the absence of blocking “regardless of whether the rail had been filled,” and (2) ignored the evidence tending to show the space was filled with loose particles of coal dust which had dropped from passing cars. The defense was that the guardrail was blocked, not filled. This was the trial theory. Loose particles of coal or coal dust, by chance fallen between the rails, constitute no compliance with the statute. In the circumstances, the instruction was not prejudicial.
The second instruction reads as follows-: “The court instructs the jury, as a matter of law, that it was the duty of defendant to fill and block the guardrail mentioned in evidence, for the purpose of preventing, as far as possible, the feet of plaintiff and others of its employees then engaged in and about said railroad yards from being caught therein, and if you find and believe from the evidence that defendant did not on said day have said guardrail filled or blocked, and plaintiff was thereby injured, you should find,” etc.
The statute requires guardrails to be filled or blocked. Assuming that the words “fill” and “block” are not used as different expressions of the same idea, the court should not have told the jury the statute required both things to be done. When the court came to the point of directing the jury what omission would authorize a verdict, it cured this, however, by instructing them, in effect, that they must find the guardrail was neither blocked nor filled before a verdict could be returned. This idea was impressed by several of the instructions given at the instance of appellant. There was nothing prejudicial in the instructions.
The judgment is affirmed.
All concur.