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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 (Note: The statutes of Kansas read into she got within 28 feet of track No. 1; that the record require that, except in cities and is, till she got over track No. 3. When she towns, a steam whistle attached to each loreached that point, and while she was pass-comotive engine shall be sounded three times ing over said last 28 feet, there was no ob- at least 80 rods from the place where the struction to her view to the west for one railroad crosses any public road or street, mile. The passenger tracks were straight and prescribes that the corporations shall be and on a level, or very slight downgrade to liable for all damages sustained by any perthe east, and, had she glanced to the west, son by reason of such neglect. Other statthe train was in full sight during all the utes read into the case provide than an actime she traveled that 28 feet. Though the tion such as this shall survive in favor of day was clear, there was a stiff wind blow- the next of kin. But, whilst the petition ing in gusts, some of plaintiff's witnesses say counts on the omission of the statutory sigfrom the south, some from the west and nals, it will be observed that plaintiff's insome from the southwest. It was a wind hard struction did not put that issue to the jury. to face, for it carried sand and dust, the The rule is that what does not appear among region being sandy, and loose sand lying the issues submitted is the same as if it did about. not appear at all; hence we pass that issue by.)

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 aecident 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.

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

moving things do it just as easy as I could." | abides for appellate purposes; that, in the She was about to enter high school, having matter of substance, the case heard above practically finished the eighth grade in one must be the very case tried below. Walker of the schools of Argentine. She could "cook v. Railroad, 193 Mo. loc. cit. 483 et seq., 92 and wash and iron and scrub." She nursed S. W. 83. Thereto the law accords with the and took care of the children. Her hearing | fitness of things and the common sense of was good. Her eyesight was good. She was the matter.

familiar with the crossing, having crossed [3] There was testimony, possibly introthere whenever it was needful. In cross-ex-duced to show a confused and bewildering amination of the mother, the following ap- situation, to the effect that a switch engine pears as the final word: was working on some of the north tracks of the yard and to the east of her a block or half block. But, observe, she had already crossed those tracks. There was some testimony, too, that a block west of the crossing and south of, but adjacent to, track No. 1, a ditch was being dug and a ditching engine was standing in this ditch. But, observe, she knew this ditch did not extend to the crossing, and, if her attention had been diVerted west to this ditching engine, the same glance would have taken in the passenger train. We lay aside all this testimony as immaterial. This is so because it was alone competent on the issue of decedent's negligence. With the concession of her negligence, as here, it fills no office.

Assuming, then, as did plaintiff, that deced was sui juris, a woman in judgment, and guilty of an inexcusable act of negligence leading up to her death, can there be a recovery on this record?

(b) Whether there was evidence carrying to the jury the issue of defendant's negligence we need not discuss. Let the case proceed on the theory most favorable to plaintiff, viz., that there was evidence tending to show negligence on the part of defendant in the particulars put to the jury in the instructions quoted. Let us assume for argument's sake the jury was warranted in finding that issue against defendant. Then, with so much granted, we have a case where a railway company negligently ran a fast passenger train over a public road crossing without any outlook on the north or fireman's side of the engine whereby those in danger on the north could be seen and warned, and without any warning whatever. We also have a case where a person without looking and without listening, when to listen was to hear, and to look was to see (that is, negligently), approached a live railroad track on foot leisurely at an ordinary gait and reached the crossing place at the same instant of time the engine did, and, the two meeting there, the person was instantly killed, as of course. What disposition does the law of negligence make of that case?

(c) At our bar it was argued by all hands that the law of negligence as administered in Kansas applied. In briefs it is not so clear that counsel put all their eggs in that one basket. They apparently dare not put that lone issue to the touch, to win or lose thereby. If it were material to decide the point, we would do so; but since, on this record,

"Q. And judgment and discretion, everything, above the ordinary girl of 14? A. Well, she had awfully good judgment. Q. She was nearly 15, I believe. A. Yes, sir. Q. And from what you say about her I conclude that you regarded her as superior in judgment, capacity, and understanding to the ordinary girl of 14? A. Yes, sir; I did. Q. She was a very bright girl? A. Yes, sir. Q. And more than ordinarily intelligent? A. Well, she was intelligent. Q. Do you know of any trouble that she had at this time on her mind, or anything of the kind? A. No, sir. Q. You don't know; nothing that you know of? A. No, sir; and I expect I would have known it if there had a been."

There were Kansas statutes read into the record by both sides. So, many decisions of the Supreme Court of that state were of fered. All necessary reference thereto will appear in due course in the opinion, if questions dealt with by them are reached as decisive. While from one statute introduced it appears that the common law is recognized in that state, no statute formally adopting it, as of this, that, or the other date, was put in.

On such record the question springs: Did defendant's demurrer to the evidence lie? We are of opinion it did, and that the court erred in refusing it, because:

[2] (a) At the doorway of the case we are relieved from all embarrassment on the question whether decedent, on the facts here, was sui juris as a matter of law, and to be held to the same accountability as an adult. Plaintiff deliberately chose her trial theory on that score and settled it for herself. In the excerpt from her instruction reproduced, it will be observed she put her case to the jury on the concession decedent was negligent. She did not put it to the jury to take into account her youth, judgment, intelligence, or maturity, and therefrom find her contributory negligence or the lack of it. She took the bits in her own teeth, and disposed of it by assuming her daughter guilty as a matter of law, constrained to that course doubtless by the decision of the Kansas City Court of Appeals when the case was up once before. No other instruction asked abates the rigor of the foregoing pronouncement or makes her negligence an issue. By that token, then, there fell out of the case for purposes of the law, and once for all, vexed questions on the heedlessness, the buoyancy, the hopefulness, the inadvertence, the lapses, the daring of youth as elements in ascribing blame or affixing responsibility for an act. We must treat decedent as an adult; for it is

bility, must be decided the same way whether approached from a Missouri or a Kansas angle, it becomes an immaterial proposition, a mere blind alley or cul-de-sac, which, when explored, leads to nothing decisive in this case. The student who investigates with an eye to the storing up of academic learning on the point may consult with profit such cases as Root v. Railroad, 195 Mo. 348, 92 S. W. 621, 6 L. R. A. (N. S.) 212; Mathieson v. Railroad, 219 Mo. 542, 118 S. W. 9; Yost v. Railroad, 245 Mo. 219, 149 S. W. 577; Newlin v. Railroad, 222 Mo. 375, 121 S. W. 125; Fogarty v. Railroad, 180 Mo. 490, 79 S. W. 664, 1 Ann. Cas. 136.

[4] (d) In this state, as everywhere, it has always been a general rule of law that, given the negligence of a defendant and an injury, then the concurrent contributory negligence of the injured party defeats the recovery. Such injury is the product of the joint fault of the two; both do it, and the law affords no remedy. It leaves the injured party to lie in the bed he helped make for himself.

[5] (1) For reasons of humanity, however, there has been allowed an exception to that general rule, as well established as the rule itself. So that the law in this jurisdiction also is that, when the negligence of the injured party has put him in peril so distant from an on-coming car or locomotive that those operating it can, by warning (or by stopping when possible and necessary) avoid injury to such person, after such operatives discover the peril (or, where a duty to look arises, might have discovered the peril), then liability for injury springs. On such hypothesis the act of negligence of the injured party is not deemed by the law so far forth concurrent as to defeat recovery, but the negligence of defendant is deemed the proximate cause of the injury, and hence actionable.

dinary care, his injury cannot be averted, then there is no room for the play of the humanity doctrine; contra, the doctrine of concurrent negligence is left to operate as a defense in full vigor and rigor. Watson v. Railroad, 133 Mo. 251, 34 S. W. 573; Green v. Railroad, 192 Mo. 131, 90 S. W. 805; Schmidt v. Railroad, 191 Mo. 216, 90 S. W. 136, 3 L. R. A. (N. S.) 196; Dyrcz v. Railroad, 238 Mo. loc. cit. 47, 141 S. W. 861; Burge v. Railroad, 244 Mo. 76, 148 S. W. 925; Sites v. Knott, 197 Mo. loc. cit. 709 et seq., 96 S. W. 206; McGhee v. Railroad, 214 Mo. 530, 114 S. W. 33; Walker v. Railroad, 193 Mo. loc. cit. 479 et seq., 92 S. W. 83; Rollison v. Railroad, 252 Mo. 525, 160 S. W. 994; Stotler v. Railroad, 204 Mo. 619, 103 S. W. 1; Laun v. Railroad, 216 Mo. 563, 116 S. W. 553; Bennett v. Railroad, 242 Mo. 125, 145 S. W. 433.

The doctrine just announced sustains the demurrer from the Missouri viewpoint, unless the proposition we are about to discuss saves the case.

[7] (3) The duty to use care to avoid injury on the hypothesis discussed in paragraph 2 arises only on discovery of peril, or on negligence in discovering it when there is a duty to keep an outlook and make discovery of the peril. In either hypothesis it is essential to note that there must be peril, a danger zone. To illustrate, one standing on the track at a crossing is in the danger zone. One, a child, non sui juris approaching the track and able to reach it before the engine is in the danger zone by virtue of being non sui juris. One driving on a track is in the danger zone when his horses approach so close, or at such a gait, as to show a present intention to cross. But a person sui juris approaching a railroad track at a crossing at an ordinary gait on foot at right angles to the track, or angling toward the engine, This is one phase of what is called by our and in complete control of his own movecourts the humanity doctrine. In some juris-ment, is not in the danger zone until he takes dictions it is called the last chance rule or the last few fatal steps, or, oblivious to his last clear chance rule. In some the same re- danger, does such things as fairly indicate a sult is reached under the doctrine of compar-present intention to take them. The danger ative negligence. In some the same result is zone on such hypothesis is narrow indeedreached by a benignant, liberal (and flexible) a step or two, or three at most. We have application of the maxim, "Causa proxima, uniformly ruled that the engineer, seeing non remota, spectatur." And in some cases, to such a person approaching the track on foot work out justice, the concepts of willfulness in an ordinary walk, may act on the preand wantonness have been levied on to avoid sumption the person will stop before stepthe effect of contributory negligence; the uni-ping thereon immediately before his engine. versal rule being that contributory negligence He has right to rely in the first instance on is no defense to a wanton or willful act. We such person looking and listening and, where cite only one case. Murphy v. Railroad, 228 looking is seeing and listening is hearing, he Mo. loc. cit. 79 et seq., 128 S. W. 481. From has a right to presume such person knows the one discern all. peril and will stop. See authorities supra.

[6] (2) But running parallel with a line of [8] The question, then, shifts to this: Was cases on all fours with the Murphy Case, there anything in the mere fact that decedent, supra, is another line of railroad negligence woman fashion, was holding her hat rim cases announcing this proposition: Granting down in a wind and had her head bent a litdefendant's negligence in outlook, signals, tle down that takes the case out of the genslacking, or stopping, yet, where the injured eral rule above discussed, and shows that party, who is sui juris, negligently moves she obviously intended to walk to her death? from a place of safety to a place of danger We think not. The train noise carried with

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The lowered hat rim in front did not affect | lemma, and plaintiff, impaled on either horn, her hearing, nor would it obviously affect cannot escape between the horns. her seeing, when a mere glance, a twist of the head, would take in the train. A friend ly witness, within hailing distance, saw her actions and the train and failed to warn her. Why? Because he did not think she would take the last step. It is not amiss to let him tell that part of his story, thus:

"Q. Did you call to her to stop? A. No; I didn't know she was going on the track. Q. Why didn't you call her to stop? A. Why, F didn't know she was going on the track. Q. Did you think she was going on the track? A. Well, a person would naturally suppose she wouldn't. Q. You saw the train? A. Yes; I saw the train. Q. You suppose she saw it, do you? A. No; I don't think she did. Q. Did you then suppose she saw it? A. I supposed she heard it coming: yes."

[9] (f) It is argued that the decision of the Kansas City Court of Appeals on a former appeal (151 Mo. App. 364, 131 S. W. 730) is res adjudicata on the question whether there was a case for the jury. If the whole case did not come here on the present appeal, but some of it was left behind, there would be substance in that contention, as to the part left behind. In Viertel v. Viertel, 212 Mo. 562, 111 S. W. 579, a divorce suit where the right to a divorce was finally settled on appeal by that court, but the question of alimony was open, and from a final judgment below on that issue the appeal came here, we held the judgment of that court on the divorce itself res adjudicata.

We think it sound doctrine in this jurisdiction that there is nothing in this case to relieve it from the general rule that one who is about to go on a railroad track owes it to himself to look and listen. Self-preservation is nature's first law and nature's imposed duty. Every man lives, moves, and has his being within that law and duty. He cannot escape therefrom if he would, and ought not if he could. Not to obey that law and use one's own God-given senses in as primal a We are not willing to follow the pronounceduty is tantamount to casting the whole bur- ment made by the Kansas City Court of Apden of saving one's life or limb on the other peas on the demurrer to the evidence then party. Why should that be done? We can-held in judgment. Besides all that, the evinot well write the law to be that every one dence was not the same at both trials. We owes to A. the duty to preserve A.'s life or have now the testimony of the engineer and limb, except A. himself. fireman, which that court did not have. The demurrer seeks and searches all the evidence. The point is ruled against plaintiff. The conclusions reached make rulings on

[10] In this appeal the whole case is here and, while opinions of our esteemed brethren of that court are pursuasive, and generally followed by us, they cannot bind this court on a new appeal in the same case on either the doctrine of res adjudicata or the law of the case. Hennessy v. Bavarian Brew. Co., 145 Mo. loc. cit. 115, 46 S. W. 966, 41 L. R. A. 385, 68 Am. St. Rep. 554; Paddock v. Railroad, 155 Mo. loc. cit. 534, 56 S. W. 453.

other interesting questions bristling in briefs

not worth while. A safe rule is: Never do
to-day in an instant case what one might bet-
ter do to-morrow in some other case.
Let the judgment be reversed.

(e) We come next to consider the doctrine of the Supreme Court of Kansas in the foregoing particulars. The doctrine of that learned court is much like our own in negligence law. Where the two courts differ on some phases of the humanity rule, the Kansas doctrine lends, we think, less countenance to recovery than our own. We shall not enter upon an exposition of the Kansas doctrine; but content ourselves with the pronouncement just made. The authorities supporting it are abundant and as uniform as possibly can be where courts deal with a subject-matter of such infinite variety of detail as the law of negligence. Dyerson v. Railroad, 74 Kan. 528, 87 Pac. 680, 7 L. R. A. (N. S.) 132, 11 Ann. Cas. 207; Coleman v. Railroad, 87 Kan. 190, 123 Pac. 756; Dunlap v. Railroad, 87 Kan. 197, 123 Pac. 754; Marple v. Railroad, 85 Kan. 699, 118 Pac. 690; Beech v. Railroad, 85 Kan. 90, 116 Pac. 213; Jones v. Railroad, 85 Kan. 313, 116 Pac. 496.


WOODSON, GRAVES, WALKER FARIS, JJ., concur. BROWN, J., concurs in the result. BOND, J., dissents.

STATE v. GENNUSA. (No. 18076.)
(Supreme Court of Missouri. Division No. 2.
May 26, 1914.)

A charge of receiving stolen goods is not sustained by proof that the goods received were only embezzled.

[Ed. Note.-For other cases, see Receiving Stolen Goods, Cent. Dig. §§ 9-14; Dec. Dig. §


When rightly understood and applied, there is nothing in the decisions of that court, to which plaintiff cites us, at all modifying the reasoning and conclusions of the cases just cited. We will not stop to analyze them.

We must hold, then, that if the case at bar be ruled by Missouri doctrine or by Kansas doctrine matters not a whit. To drop into the phrase of the logicians: There is a di

Defendant was tried and convicted in the criminal court of Jackson county of the

Appeal from Criminal Court, Jackson County; Ralph S. Latshaw, Judge.

Samuel Gennusa was convicted of receiv

ing stolen goods, and he appeals. Reversed

and remanded.

crime of receiving stolen goods, and appeals. [ profit-sharing simply," etc. Held, that plainThe specific charge is that he received three tiff's interest in the contract was merely that cases of cigars of the value of $74, the prop- with the publishing company of the property, of a profit-sharer and was not a joint owner erty of the Kansas City Transfer Company, copyright, etc., and hence was not entitled to knowing said cigars to have been stolen. partition.

There is no evidence that the cigars were in fact stolen. The testimony for the state strongly tends to prove that the Kansas City Transfer Company intentionally committed them to the possession of Sol. Guthrie, one of its teamsters, with instructions to deliver them to the Frisco Railroad Company for shipment, and that said Guthrie, while said goods were so in his possession, feloniously embezzled and sold them to defendant for $30.

C. H. Rucker and Wofford & Kimbrell, all of Kansas City, for appellant.


BROWN, J. The crime of knowingly receiving embezzled goods is very similar to the offense of receiving stolen goods; but under the statutes and decisions of this state the charge of receiving stolen goods is not sustained by proof that the goods received by a defendant were only embezzled. v. Fink, 186 Mo. 50, 84 S. W. 921; State v. Casey, 207 Mo. 1, 105 S. W. 645, 128 Am. St. Rep. 367, 13 Ann. Cas. 878; and State v. Coster, 170 Mo. App. 539, 156 S. W. 773, 157 S. W. 85. This issue seems to be so well settled by the foregoing decisions that any extended discussion of the same by us is


Other assignments of error are duly preserved and assigned by defendant for reversal; but, as the evidence clearly indicates that he cannot be convicted of the present charge, and as there is no reason to suppose that the same alleged errors will occur if the state elects to prosecute him for receiving embezzled goods, or for some other crime, we will simply reverse the judgment and remand the cause. It is so ordered.

[Ed. Note.-For other cases, see Joint Adventures, Cent. Dig. § 2; Dec. Dig. § 2.*]


Appeal from St. Louis Circuit Court; George H. Shields, Judge.

Action by William S. Bryan against the Thompson Publishing Company. Judgment on demurrer for defendant, and plaintiff appeals. Affirmed.

S. T. G. Smith and Thos. S. Meng, both of St. Louis, for appellant. Ferriss, Jumbalen & Ferriss, of St. Louis, for respondent.

Following a formal allegation as to the corporate character of the defendant, the body of the petition is as follows:

"That in the year 1899 plaintiff entered into a contract with N. D. Thompson Publishing Company, a corporation, relating to the pro duction of a publication known as 'Our Island Possessions.' That it was agreed by and be tween plaintiff and said publishing company that plaintiff should write the matter for this publication, attend to its illustration, proof reading, and see it through the press, and that every expense pertaining thereto should be charged to the publication, and that, after such expense had been deducted, the profits arising from the publication should be divided between plaintiff and said publishing company in the thirds to the said publishing company. That proportion of one-third to plaintiff and twothe agreement between him and said publishing company was evidenced by a certain letter of date March 29, 1899, signed by N. D. Thompson on behalf of said publishing company, as follows: 'W. S. Bryan, Esq., City-Dear Sir: In our several conversations concerning the production of "Our Island Possessions," a serial publication to be completed in twentyfour or thirty-two parts, it has been agreed that every expense pertaining thereto shall be charg WALKER, P. J., concurs. FARIS, J., not ed to the publication, which expense includes sitting. your salary as heretofore arranged, with that of such help as you may employ, and after this and the expenses of every kind have been deducted, that the cash profits shall be divided between us in the proportion of one-third to you and two-thirds to me, or the N. D. Thompson Publishing Company. It is understood that the


(Supreme Court of Missouri, Division No. 2. profits shall be reckoned on the basis of cash, May 26, 1914.) and not that of stock, and that the stock, until such profits are made and declared, shall be the property of the N. D. Thompson Publishing Company. Your connection and interest therePlaintiff and a publishing company con- with is to be one of profit-sharing simply, on tracted for the production and sale of a certain the conditions above named. It is further unpublication; plaintiff to write the matter, attend derstood that you will give your time and to its illustration and proof reading, and see it energies to it, and to such other business as through the press, the publishing company to you may have in connection with our publishperform all mechanical work and bear all ex- ing business, except such time as is devoted to penses incident to preparing the work for sale. editorial work which you have and are doing for I'laintiff, during the preparation of the work, the Democrat and Journal of Agriculture. It was to be paid a salary by the publishing com- is understood that you will write the matter for pany, and, as stated in a letter from the pub- the new publication, viz., "Our Island Possesfishing company to plaintiff, "the cash profits sions." and attend to its illustration, its proof shall be divided between us in the proportion of reading; and that you will see it through the one-third to you and two-thirds to us,' etc., and press. It is further understood, of course, that "your connection and interest is to be one of we will work together with the necessary re

WALKER, P. J. A general demurrer was sustained to the petition filed herein; plaintiff refused to plead further; an order of dismissal was entered, and an appeal perfected

to this court.

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