in the two cases, for the reason that the legal duty of the carrier to ship and deliver the goods, and the contract or agreement to collect the purchase price, etc., are not so interdependent as to prohibit the Legislature from segregating the former from the latter, and enacting laws in the nature of police regulations regarding the collections. And no fair-minded disinterested man can read this record without reaching the conclusion that the C. O. D. contract mentioned in this case was resorted to in order to sell intoxicating liquors in the state of Texas in violation of the laws thereof, and in order to meet this evil the statute of 1907 was by the Legislature of that state enacted, and not for the purpose of interfering with state or interstate commerce. delivery in violation of a state law, in order that the purchaser may have time in which to pay the purchase price. In other words, a carrier of interstate commerce is equally subject to the warehouse and storage laws of a state as are the ordinary citizens of that state engaged in the storage and warehouse business, and the mere fact that the carrier may see proper to add to its ordinary duties of a common carrier, an additional contractual obligation not to deliver the goods within a reasonable time, will not exempt the carrier from the state laws governing the storage of goods, and the laws thereof governing the collection of debts. And especially should this be, where the state law relates to the contractual delay duty of delivery of the carrier concerning intoxicating liquors, which all courts in Christendom hold is within itself a nuisance, and that the liquor business is also unlawful, except where authorized by statute. State v. Distilling Co., 236 | age of property and the collection of money, Mo. 219, 139 S. W. 453, where many of the cases, state and federal, are cited and considered, bearing upon that question. It has been suggested that, if such a statute is upheld, then the Legislature of a state might, under the guise of regulating the stor thereby interfere with and stifle interstate commerce. In answer to that suggestion, I simply refer the parties to the able, wellconsidered, and patriotic opinions in the cases of Express Co. v. Kentucky, supra, American Express Co. v. Iowa, supra, and Heymann v. Southern Railway Co., 203 U. S. 270, 27 Sup. Ct. 104, 51 L. Ed. 178, 7 Ann. Cas. 1130, with the added observations that the Supreme Court of the United States, in the future as in the past, will never lend countenance to any rule, statute, or judicial ruling of any state authorizing the erection of a wall of any kind against free intercourse and the transportation of persons and property from one state to another. Believing as I do that said statute does not in any manner operate in restraint of interstate commerce, I am clearly of the opin These suggestions illustrate the principle of law I have in mind, namely, that the storage of goods after their delivery, or after the lapse of a reasonable time for their delivery, is a separate and independent matter from either state or interstate commerce, and is and must be governed by the storage laws of the state where they are located, and as a necessary sequence, the collection of the purchase price of the goods, at least, after the storage period has begun, is and must be governed by the laws of the state where they are located, and the collection is to be made. While I believe that the Constitution of the United States is the greatest and wisest instrument ever written for the government of a great nation, and especially the com-ion that the same is a valid enactment, as merce clause thereof, of which so much has been said and written, yet I do not believe that its wise and useful purpose was designed for, or should be used as a shield for, the protection of designing persons engaged in a business prohibited by the laws of any state, so long as those laws do not in any manner interfere with the transportation and delivery of articles shipped from one state to another, or from a foreign country. Of course, I am not considering the questions of taxation of articles of importation, etc., but am trying to confine my observations to the single question in hand. But it has been suggested: Suppose liquors should be shipped to-day from Kansas City to Austin, Tex., C. O. D., and the contract should be silent as to the time of delivery, which would of course mean a reasonable time, and within that time the goods should be delivered and the purchase price paid to the carrier? In answer to that suggestion I would say that no such case is before the court; but by way of obiter I would say was held by the Texas Civil Court of Appeals in the case of Craddock v. Wells-Fargo Express Co., supra. I am therefore of the opinion that when said statute went into effect, it was a valid police regulation, and a legal excuse for the defendant's refusal to deliver the liquors and collect the purchase price thereof. [2] II. Regarding the second reason assigned by defendant for a reversal of the judgment, namely, that if it is liable at all to the plaintiff, it is not for a conversion of the liquor shipped, but for damages for a breach of the C. O. D. contract, as before defined, for nondelivery of the liquors and not collecting the purchase price thereof, as therein provided. If we are correct in holding in paragraph 1 of this opinion that the C. O. D. contract mentioned was separate and independent of the defendant's duty as a common carrier to transport and deliver the packages within a reasonable time, then clearly, under the undisputed evidence that the defendant still has the packages and of CONTRIBUTORY NEGLIGENCE EVI payment of the express charges from Texas | 3. RAILROADS (§ 347*)-ACCIDENTS AT CROSSto Kansas City, there could be no conversion. These facts do not constitute a conversion of the liquors, but a breach of the C. O. D. contract, which took effect after the defendant's duty to the plaintiff as a common carrier had terminated. Entertaining these views, I am of the opinion that the judgment of the circuit court should be reversed; and it is so ordered. All concur, except BOND, J., and FARIS, J., who dissent. ROSENBERGER v. WELLS FARGO & CO. (No. 16501.) (Supreme Court of Missouri. May 20, 1914.) INGS Where an action for the killing of a person at railroad crossing was tried on the theory that decedent was sui juris, evidence of the surrounding conditions and the decedent's knowledge thereof and of her attention being diverted was competent only on the issue of decedent's negligence, and was immaterial where it was admitted that she was guilty of contributory negligence. Cent. Dig. §§ 1124-1137; Dec. Dig. § 347.*] 4. NEGLIGENCE (§ 97*)-CONTRIBUTORY NEG- Where the negligence of defendant and the concurrent contributory negligence of plaintiff resulted in injury to plaintiff, there can be no recovery, as a general rule. [Ed. Note. For other cases, see Negligence, In Banc. Appeal from Circuit Court, Jack-Cent. Dig. §§ 93, 162; Dec. Dig. § 97.*] son County; Walter A. Powell, Judge. Action by Abram Rosenberger against Wells Fargo & Co. Judgment for plaintiff, and defendant appeals. Reversed. This case is on all fours with the case of Rosenberger v. Pacific Express Co., 167 S. W. 429, the opinion in which is handed down with this. While they are separate and distinct cases, yet they were appealed together, and by stipulation the record in that case is made applicable to tuis. Counsel in the former case represent the parties in this case; and by stipulation the briefs and arguments are made applicable to both. Lathrop, Morrow, Fox & Moore, of Kansas City, for appellant. A. F. Smith and Rozzelle, Vineyard & Thacher, all of Kansas City (Frank A. Boys, of Kansas City, of counsel), for respondent. Issues raised by the petition, but not submitted to the jury, are eliminated from the case, and cannot be considered on appeal in support of the verdict for plaintiff and the judgment rendered thereon. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1137-1140; Dec. Dig. 8 175.*] 2. APPEAL AND ERROR (§ 171*)-QUESTIONS REVIEWABLE-THEORY OF CASE ADOPTED IN TRIAL COURT. Where an action for the death of a child nearly 15 years old, struck by a train at a crossing, was tried on the theory that decedent was guilty of contributory negligence as a matter of law, and that the railroad company was liable only under the humanitarian doctrine, the court on appeal must treat decedent as an adult in determining the correctness of the judgment. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1053-1063, 1066, 1067, 1161-1165: Dec. Dig. § 171.*] 5. RAILROADS (§ 338*)-ACCIDENTS AT CROSSINGS-CONTRIBUTORY NEGLIGENCE-HUMANITARIAN DOCTRINE. Where the negligence of a person struck by a train put him in peril while still so diswarning or by stopping, have avoided the accitant from the train that the trainmen could, by dent after the discovery of his peril, the com pany was liable. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1096-1099; Dec. Dig. § 338.*] 6. RAILROADS (§ 338*)-ACCIDENTS AT CROSSINGS-CONTRIBUTORY NEGLIGENCE-HUMANITARIAN DOCTRINE. Where trainmen negligently failed to maintain a lookout or give signals or slack or stop the train on approaching a crossing, and decedent was struck by the train at the crossing, having negligently moved from a place of safety to one of danger when the train was so near the crossing that the acrident could not be averted, the humanitarian doctrine was inapplicable, and the doctrine of concurrent negligence operated to defeat a recovery. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1096-1099; Dec. Dig. § 338.*] 7. RAILROADS (§ 338*)-ACCIDENTS AT CROSSINGS-CONTRIBUTORY NEGLIGENCE-HUMANITARIAN DOCTRINE. A person who approaches a railroad crossing at an ordinary gait in complete control of his own movement is not in danger, within the humanitarian doctrine, until he takes the last few fatal steps, or is so oblivious to his danger as to indicate a present intention to step on the track, and the engineer, seeing the person, may rely on the presumption that he will stop before stepping on the track before the ap proaching train until discovering the contrary [Ed. Note. For other cases, see Railroads, Cent. Dig. §8 1096-1099; Dec. Dig. § 338.*] 8. RAILROADS (§ 348*)-ACCIDENTS AT CROSSINGS NEGLIGENCE-CONTRIBUTORY NEGLI GENCE-HUMANITARIAN DOCTRINE. A railroad train approached a highway crossing at an excessive speed without warning signals. A pedestrian approached the track, but there was nothing to indicate that she would step on the track in front of the train until about the time the train was on her, when it was impossible for the trainmen to stop to prevent running her down. Held, that there could be no recovery under the humanitarian doctrine. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1138-1150; Dec. Dig. § 348.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 9. COURTS (8 488*)-JURISDICTION-TRANSFER | unimportant. If there be a case on the facts, OF CASE TO SUPREME COURT-EFFECT. then other questions remain to be reached Where a Court of Appeals transfers a Attend to cause to the Supreme Court because a consti- and disposed of in their order. tutional question is involved, the whole case is the matter from the viewpoint of case or in the Supreme Court for adjudication. [Ed. Note.-For other cases, see Courts, Cent. Dig. §§ 1316-1323; Dec. Dig. § 488.*] 10. APPEAL AND ERROR (§ 1097*)—JUDGMENT -LAW OF THE CASE-RES JUDICATA. Where the Supreme Court has jurisdiction of the whole case, when transferred to it by a Court of Appeals because a constitutional question is involved, a decision of a Court of Appeals on a prior appeal is not binding on the Supreme Court either under the doctrine of res judicata or under the theory of the law of the case. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4358-4368, 4427; Dec. Dig. 1097.*] Bond, J., dissenting. In Banc. Appeal from Circuit Court, son County; O. A. Lucas, Judge. Action by Rosetta Keele against the Atchison, Topeka & Santa Fé Railway Company. There was a judgment for plaintiff, and defendant appealed to the Kansas City Court of Appeals, and it transferred the cause to the Supreme Court. Reversed. no case. We omit pleadings. Let it be assumed that plaintiff's principal instruction was within the averments of the petition. It suggests the gravamen of the action, indicates the trial theory, and reads in part, and so far as material, thus: Keele, deceased, was negligent in approaching "The court instructs the jury that Pearl E. and going upon the track of the defendant upon which she was struck by a train of the defendant; still, if you further believe and find from the evidence that said Pearl E. Keele was approaching and going upon the track of the defendant upon which she was struck and into a position of peril of being struck by said train, and that she was unaware of and oblivious to such danger, and if you further believe and find Jack-from the evidence that the engineer or fireman of said train, by keeping a vigilant lookout ahead of him, could, by the exercise of ordinary care, have discovered that said Pearl E. Keele, deceased, was approaching said track, and was going into a position of peril of being struck by said train, and that she was unaware of and oblivious of her danger, and that, if she was not warned before she went on said track, she would place herself in the way of said train, and if you further believe and find from the evidence that said engineer or fireman could, by the exercise of ordinary care, have warned said Pearl E. Keele of the approach of said train by the whistle or bell of said enthereby, by the exercise of ordinary care, have gine before she went on said track, and could avoided striking and injuring her, and negligently failed to give such warning of the approach of said train, and if you further be lieve and find from the evidence that, if such warning by the whistle or bell of said engine had been given said Pearl E. Keele, deceased, she would not have been struck and injured by said train, you will find for the plaintiff. And you are further instructed that, in the absence of evidence or circumstances to the contrary, you may assume that, if such warning by the whistle or bell of said engine had been given said Pearl E. Keele, deceased, she would have heard it. And," etc. See, also, 151 Mo. App. 364, 131 S. W. 730. Thomas R. Morrow and Cyrus Crane, both of Kansas City, James P. Gilmore, of Tulsa, Okl., and John H. Lathrop and Geo. J. Mersereau, both of Kansas City, for appellant. Charles A. Stratton, of Jefferson City, and Bird & Pope, of Kansas City, for respondent. LAMM, C. J. The parents of Pearl E. Keele, a minor, sued the corporate defendant in the Jackson circuit court for her negligent death where a county road crossed defendant's track in Kansas. Presently, the father dying, plaintiff, the mother filed an amended petition, and (over the answer of defendant taking issue thereon) was allowed to prosecute the action to a judgment in her sole name. She had a verdict for $5,000. From a judgment following, defendant appealed to the Kansas City Court of Appeals. That court, being of opinion constitutional questions were involved, sent the case here, and (as we overruled a motion to retransfer it) here it is. Questions are raised on constitutional law, on pleadings, on practice, on evidence, on instructions given for the plaintiff and refused to defendant. One of the latter hinges, as said, on the sufficiency of the evidence to make a case, either under the law of negligence as administered in Kansas or in this state. That contention seeks the fact and trial issues thereon. If, under grounds of recovery (relied on pro) and the defense of contributory negligence (relied on con), there is no case on the facts, then the case breaks at that point, and all other questions become There was a bundle of specifications of negligence in the petition, besides those set forth in the instruction, but all of them fell out of the case, except: (1) Absence of ordinary care in failing to keep an outlook; and (2) failing to warn decedent by bell or whistle as she was going on the track oblivious to her own danger. There was, as said, a plea of contributory negligence. With that instruction, and the pleadings as indicated, kept in mind, attend to the facts. At 6:30 in the afternoon of a day in May, 1906, whilst yet full day, Pearl E. Keele (on foot from the north) walked to the south on a north and south public road in Wyandotte county, Kan. That road crossed at right angles a cluster of, say, 15 tracks in defendant's yard in the country, west of the limits of a town called Argentine. The tracks in said yard ran east and west. Two of them, those to the south, were passenger tracks; the rest to the north were freight and side tracks. A photograph in evidence shows the place, except as to cars standing on the freight tracks, to be presently mentioned. In the picture the eye looks to the west; the south side being to the left and the north to the right. We cannot do better than to reproduce it; for all sides admit its accuracy and it depicts the scene at one stroke thus: The heavy, dark, irregular line cutting the yard tracks indicates the road crossing and the line of travel of decedent. As decedent, heading south, reached the first rail of the last track on the left, she was struck by the pilot beam of an engine pulling a passenger train east and running very fast, say 40 or 50 miles an hour, and was instantly killed, being tossed back north and to the east.à great ways. We will call the first track on the left No. 1, the next No. 2, the next No. 3, and so on. From track No. 1 to track No. 3 was the rise of 28 feet. Commencing on the north side of the yard and coming on down south to track No. 3, freight cars (mostly loaded coal cars) were standing at the time on some of the tracks both east and west (more to the west than to east) of the road crossing, leaving the crossing free. The witnesses vary on the distance of those cars from the crossing, and on whether they were in strings or broken up, but the variance is immaterial. There was testimony that, despite those cars, men walking over these tracks, if attentive, could see the top of the east-going passenger train to the southwest on track No. 1 and the smoke and smokestack of its engine, at that time belching black smoke from the fireman's feeding his fire. But whether the eye of decedent, a person 5 feet 2 inches high, could clear the freight cars to her right as she crossed the freight tracks, and see the east-bound passenger train, is not shown. I think it may be assumed decedent could not see the train until she got within 28 feet of track No. 1; that is, till she got over track No. 3. When she reached that point, and while she was passing over said last 28 feet, there was no obstruction to her view to the west for one mile. The passenger tracks were straight and on a level, or very slight downgrade to the east, and, had she glanced to the west, the train was in full sight during all the time she traveled that 28 feet. Though the day was clear, there was a stiff wind blowing in gusts, some of plaintiff's witnesses say from the south, some from the west and some from the southwest. It was a wind hard to face, for it carried sand and dust, the region being sandy, and loose sand lying about. At some time and at some distance from track No. 1, not clearly shown on her trip over this crossing, there was testimony that decedent took hold of the rim of her hat with one hand and pulled it down in front of her face or to the right side of her face, obviously as a wind shield or to hold her hat on her head. The size of the hat rim was not shown. There were two eyewitnesses following 50 feet behind her and observant of her conduct. One of plaintiff's witnesses described her as walking right along with her head bent a little down like a person might in a strong wind. Another describes her "as walking along like a girl would, holding her hat." In that fix she walked leisurely without stop over this 28 feet in an ordinary walk, never looking to the west or listening, so far as human eye could see, and met her death at the end of the engine pilot beam as she reached the north rail of track No. 1. The rumble of this train was heard by some of plaintiff's witnesses, who were near the crossing, for a mile to the west. By others it was shown the train made "no noise." There is no dispute but that the engineer engine cab and alert on his outlook. He did not see decedent, and testified the boiler of the engine would not admit of it, she coming from the north side. There is no dispute but what the fireman was shoveling coal to feed his fire, to make steam enough to carry the train through the intricate network of tracks lying to the east as he approached Kansas City, so he might uninterruptedly assist in the outlook necessary there. He did not see decedent. Neither of them heard of the accident until the next morning. [1] On plaintiff's behalf there was testimony that no whistle blew or bell rang as the train approached and crossed the public road. Contra, on defendant's behalf there was testimony that an automatic engine bell was set ringing a mile west of the place, and thereafter rang continuously up to and over the crossing and until the train reached the station at Kansas City. Also that the crossing whistle sounded at the regulation place. (Note: The statutes of Kansas read into the record require that, except in cities and towns, a steam whistle attached to each locomotive engine shall be sounded three times at least 80 rods from the place where the railroad crosses any public road or street, and prescribes that the corporations shall be liable for all damages sustained by any person by reason of such neglect. Other statutes read into the case provide than an action such as this shall survive in favor of the next of kin. But, whilst the petition counts on the omission of the statutory signals, it will be observed that plaintiff's instruction did not put that issue to the jury. The rule is that what does not appear among the issues submitted is the same as if it did not appear at all; hence we pass that issue by.) We come now to a class of facts bearing on the capacity, the maturity, of decedent, all established by plaintiff's own proof. She was within 10 days of 15 years of her age, a "good-sized girl of her age," weighing over 100 pounds, and within half an inch of being as tall as her mother, to wit 5 feet 2 inches. Let her mother, the plaintiff, tell the story and the whole of it on the point, viz.: She was "bright and intelligent." She was next to the oldest in a family of five children. The mother "would go away and leave her with the whole care of the children." She "took care of them as good as" the mother could. She was earning 75 cents a day in the Proctor & Gamble soap factory, where she had been employed a week. "In general housework she could do as good as" the mother could. She could sew on the machine in plain sewing as "good as any one could," made clothes for the children, was perfectly healthy, and an "extraordinary strong girl for her age." "She used to go right along with me," the mother said, "and in lifting or moving, cleaning house, or any |