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or the premises of said railway company ; | vantageous, provided, however, that such and I further agree that I will not claim contracts do not attempt to transgress the any wages or compensation for any work law or contravene public policy. But, in the that I may do during such time, nor claim exercise of their right to contract, persons to be in the employ of said company nor an are powerless, by contract or otherwise, to employé thereof during such time.

conclude one another by agreeing to place "Witness my hand and seal at Dodge City, upon the terms of their agreements a legal State of Kansas, this 4th day of August, 1904. construction different from that which the

"Elmer Tindall [Seal.] law places upon them, or a construction pro"Signed in presence of H. C. Duncan, Wit- hibited by public policy. Going beyond the

mere conclusions stated in the contract, and

analyzing the facts, as they appear from the To this defense the plaintiff demurred, contract itself, for the purpose of determinwhich was sustained, and the defendant

defendanting the actual relations of the parties at the brings the cause here for review.

time Tindall was killed, the conclusion is The relation of the parties at the time irresistible that Tindall was in the service of Elmer Tindall was killed is one of the con the railway company, and, as between him trolling questions in this controversy. The and the company while in the discharge of plaintiff in error contends that under the con duties assigned to him, he was entitled to tract upon which Tindall was permitted to protection from the negligence of the comgo and remain on its trains he was a mere pany's servants. licensee for his own personal benefit, and by The contract is adroitly drawn. Its apthe contract had expressly waived any claim parent purpose is to relieve the company for damages resulting to him in consequence from liability to Tindall for injuries susof the negligence of the company's agents, tained while working for the company, in servants, and employés. In determining the consequence of the negligence of the comrelation of parties courts are not bound by the pany's agents, servants, or employés. In ilgreements of the parties as to what such re

expressing the duties to be performed by lations shall be or to the legal effect of its Tindall the language is permissive only; but terms. Notwithstanding such agreements, the services which the agreement contemwhenever the question is properly presented plates that Tindall should perform for the courts will analyze the elemental facts of the company are sufficient to justify the conagreement and determine therefrom the actu

clusion that while performing such services al relations of the parties. In Missouri Pacif he was an employé of the company. The ic Ry. Co. v. Ivy, 71 Tex. 409, 9 S. W. 346, 1 railway company was not conducting a free L. R. 4. 500, 10 Am. St. Rep. 758, which was school for the education of freight brakein action for damages for personal injury

men, nor was Tindall riding gratuitously sustained by one who was shipping cattle on the defendant's train at the time he was under an agreement, indorsed on the back of killed, but was working for the company. the shipping contract, that the shipper was

assisting in the operation of the train. Notan employé of the railway company, it was withstanding the agreement to the contrary said: "By the agreement indorsed on the

the elemental facts created the relation of back of the contract, he agrees that he is the

master and servant. The compensation of pinployé of the company, but that is evident

the company for the privileges granted to ly a fiction to provide for the release of the

Tindall was the work to be performed by company from damages for personal injuries

him as freight brakeman. In California a occasioned by the negligence of its servants.

railroad company is not liable for injuries It is a pretense, a subterfuge, upon which to to an employé in consequence of the neglipredicate the discharge of the company for

gence of a co-employé, and in Weisser v. damages in a plausible form. The true re

Southern Pac. Ry. Co. (Cal. Sup.) 83 Pac. lations of the parties cannot be changed by

439, the relation of a railroad company to a such an agreement. It states a fact which

student brakeman, who was working for is untrue; the agreement that it is true does

the purpose of qualifying himself for a not make it so. It amounts to this: Know

brakeman, and for no other consideration, ing that a contract would be of doubtful va

was considered. It was urged by the raillidity that absolved the company or limited

road company that the brakeman was an its liability as a common carrier of passen

employé. The court said that it was unnecgers, the contract was devised in which the

essary, in disposing of the appeal to deterpassenger acknowledges himself to be an

mine the relation of the parties, but it “has employé of the company, so as to contract for its limited liability upon such relation,

been discussed by counsel, and its deterand give it the semblance of legality. If the

mination may be necessary for the purposes liability of a common carrier cannot be lim

of a new trial," and proceeded to pass upon ited in express terms, and by a direct agree

the question, using the following language: ment, it cannot be done upon false or coun

“As such ‘student brakeman,' he was entireterfeited relations." Persons capable of con

ly subject to the orders of defendant, and tracting are at liberty, inter parties, to make was required to perform such ordinary duany contract that may to them seem ad ties of brakeman as were allotted to him,

just as fully as if he had been assigned interest whatever, other than that which any regular employment for a pecuniary com servant has in the result of his service, in pensation by defendant. It is difficult to the consequences of the discharge of his duconceive of any reason why one, situated as ties. We are therefore of opinion that the these circumstances show plaintiff to have court did not err in its direction to the been, should be held to be other than an jury.” In the cases cited there was no conemployé of the defendant, subjert to all the tract attempting to determine the relation obligations imposed by that relation. Hle of the parties. The law, however, determines was certainly in ile service of defendant, that question, and it must be held in this regularly engaged in the doing of the de case that the relation was that of master fendant's business. The simple fact that he and servant. was not to be paid any money for his serv It is also contended that the waiver by the ices cannot affect the question. It was deceased of any claim for damages for inperfectly competent for him to agree to juries in consequence of the negligence of the serve an apprenticeship without pecuniary company, its employés, agents, or servants, is consideration. The important thing is that a complete defense in this action. With he voluntarily entered and was engaged in this we do not agree. Our statute provides the service of the defendant upon such that: "Every railroad company organized terms as he had seen fit to agree to. While or doing business in this state shall be liable so engaged in such service, there was no for all damages done to any employé of distinction, material to the question under such company in consequence of any neglidiscussion, between his situation and that gence of its agents, or by any mismanageof the other employés on the train." ment of its engineers or other employés to similar question was before the federal court

any person sustaining such damage." Gen. in Huntzicker v. Illinois Cent. R. Co., 129 St. 1901, $ 5838. The state has an interest Fed. 548. 64 C. C. A. 78, where a young in the lives, health, and safety of its citizens, man wishing employment as flagman, upon and whenever a business, although lawful applying to the railroad company for such in itself, is dangerous to the lives or inposition, was informed that he had not had jurious to the health of the employés ensufficient experience. He then applied for, gaged in conducting such business, it beand was granted, permission to go upon the comes a question of public concern and the trains of the company, and by observation state may intervene in the interest of puband experience learn what the duties of a lic welfare. We have many such statutes flagman were. While so engaged, and upon enacted in the interest, and for the protechis own application, he was ordered to ap tion, of different classes of citizens. The pear at the trainmaster's office to be re owner or lessee of coal mines, worked by examined as to his proficiency. While riding means of shafts, is required to maintain upon a train to the trainmaster's office for

escapement and ventilating shafts in acsuch purpose a collision occurred and he cordance with certain prescribed rules, and was killed. In determining the relation of is prohibited from having more than five the parties the court said: “As there was pounds of powder in any such mine at one no controversy over the facts, the question time. The protection thus provided by the became one of law, and the court performed state for the safety of its citizens is a matter a duty of its own in deciding it. The agree of public concern and cannot be contracted ment between the parties, reduced to its away by the individual. In many other elements, was that the defendant was to states we find instances where the state has furnish the plaintiff the facilities for qualify intervened for the protection of its citizens ing himself for the duties of a flagman; that who are engaged in business hazardous to is to say, it was to give him instruction and health. In Utah a statute was enacted protransportation over its road; not such trans hibiting a certain class of minors from portation as is due to a passenger, but such laboring more than 8 hours in each 24. A as is ordinarily incident to the operation of contract was made between the employer freight trains by men in that service. and one of his employés that the employé consideration of this, Fereday was to per should work 12 hours in each 24. An action form such elementary and simple service was brought by the employé to recover for as he was capable of under the direction of

the time so worked over the 8 hours. In the conductors of trains." * * * "Apply- passing on the question in Short v. Mining ing the controlling principles which we have Co., 20 Utah, 20, 57 Pac. 720, 45 L. R. A. indicated to the present case, it seems clear 603, the court said: “We are further of that Fereday at the time of his death was the opinion that the right to waive this a servant of the defendant. He was enjor- ! legislative protection is without the power ing the privilege for which he served. He

of the employé. This law is in the nature was under the control of the defendant, and

of a state police regulation. Its object is the company would undoubtedly have been

the good of the public as well as of the inresponsible for the manner in which he per dividual. The state in this matter has formed his service; and, what is more impor intervened in its own behalf. This protectant, under the test above stated he had no tion to the state cannot at will be waived


the clerk to file a similar suit by such Assistant Attorney General need not be presented to that court, but the Supreme Court will assume original jurisdiction.

Original proceedings in mandamus by the state of Kansas, on the relation of C. C. Coleman, Attorney General, against C. E. Woodbury, clerk of the district court of Crawford county. Writ granted.

C. C. Coleman, Atty. Gen., and F. S. Jackson, Asst. Atty. Gen., for plaintiff. O. T. Boaz, B. S. Gaitskill, and J. J. Campbell, for defendant.

by any individual, an integral part thereof. The fact that the individual is willing to waive his protection cannot avail, the public good is entitled to protection and consideration, and if in order to effectuate that object there must be enforced protection to the individual, such individual must submit to such enforced protection for the public good.” A similar question arose in Rhode Island, in Re Ten Hour Law, 24 R. I. 603, 54 Atl. 602, 61 L. R. A. 612. The question arose under a law limiting the hours of the labor of an employé on a street car. Two questions were submitted by the Governor to the judges of the Supreme Court: First, Is the law constitutional? Second, if constitutional, can it be waived by contract? The first was answered in the affirmative, and on the second question it was held that the purpose of the law was to limit the continuous service of such employés in the interest of public safety, and that public safety cannot be made to depend on private contract. In considering a similar question in Holden v. Hardy, 169 U. S. 366, 397, 18 Sup. Ct. 383, 390, 42 L. Ed. 780, the court said: “But the fact that both parties are of full age and competent to contract does not necessarily deprive the state of the power to interfere where the parties do not stand upon an equality, or where the public health demands that one party to the contract shall be protected against himself. "The state still retains an interest in his welfare, however reckless he may be. The whole is no greater than the sum of all the parts, and when the individual health, safety, and welfare are sacrificed or neg. lectedthe state must suffer.'” For the reasons suggested, a contract by one entering the service of a railroad company waiv. ing his right of action for damages which he may receive in consequence of the negligence of its agents, servants, or employés is void.

The judgment of the trial court is affirmed, and the cause is remanded, with instructions to proceed with the cause.

PER CURIAM. This is an original proceeding in mandamus, brought by the state of Kansas, upon the relation of C. C. Cole man, Attorney General of the state, asking for an order commanding C. E. Woodbury, clerk of the district court of Crawford county, to file papers in an injunction suit. The application for the writ states that George H. Stuessi, as Assistant Attorney General of Crawford county, on February 17, 1906, presented to C. E. Woodbury, clerk of the district court of Crawford county, his verified petition praying for a permanent injunction against Peter Esch and Herbert Mousney, restraining them from maintaining a place where intoxicating liquors were sold contrary to law, and also a pracipe for summons, and his application in proper form for a temporary Injunction on behalf of the state of Kansas against Peter Esch and Herbert Mousney, enjoining them from maintaining a place where intoxicating liquors were sold in violation of law, during the pendency of the action for a permanent injunction, and requested that C. E. Woodbury, as clerk of the district court of Crawford county, receive and file the papers and issue a summons to the defendants therein, and that C. E. Woodbury, in violation of his duty as clerk, refused to file the papers and refused to permit the Assistant Attorney General for Crawford county to commence such action and to institute such proceedings. The writ was allowed, and C. E. Woodbury was commanded to file the papers so presented and issue the summons as prayed for, or show cause why he should not comply with such order, on or before a day named in the writ. Instead of complying with the order, C. E. Woodbury made a return upon the writ, stating the following reasons why he had not so complied: That a similar case had been instituted in the district court of Crawford county by Stuessi as Assistant Attorney General of Crawford county, and upon application made to the district court it was held that Stuessi, as Assistant Attorney General of Crawford county, had no authority to institute such proceedings, and tne cause was dismissed; and that this judgment wag not appealed from or reversed. This he concludes is a justification for his refusal.

This defense or reason for his noncompllance with the order of this court appears


BURCH, J. (dissenting). I am not satisfied the parties to the contract in question were prohibited from making it, and therefore dissent.

(74 Kan. 877) STATE ex rel. COLEMAN, Atty. Gen., v.

WOODBURY, Clerk of Court. (Supreme Court of Kansas. Nov. 10, 1906.) COURTS - SUPREME COURT - ORIGINAL JURISDICTION-MANDAMUS.

Where the district court of a county has passed upon the authority of the Assistant Attorney General to institute certain proceedings, and has held that no such authority is vested in him, subsequent proceedings to compel

to have been abandoned in this court by From there to the side track his view of his counsel, whose only contention is that both tracks toward the south was obstructthis court had no jurisdiction to issue the ed, and the cars on the side track continwrit of mandamus. The contention is that ued to obstruct his view of the main track such application must be presented to the dis in that direction. He did not stand in the trict court. This is generally correct, and, forward part of his wagon box where he unless some reason is given why the applica could more quickly have seen, but, without tion had not been made to the district court, reason, so far as the evidence discloses, took this court will not act. The return of the a position over the rear axle 18 feet from defendant to the writ, however, furnished his horses' heads. As the team crossed the ample reasons why it would have been futile side track, the near horse shied slightly at to have applied to the judge of the district the box car on the north, and drew his court. If the facts stated in the return are momentary attention in that direction. The true, it would have been a useless waste of team, however, was gentle, and at all times time and energy to apply to the district court. under control. When he looked to the south This is never required. That court bad a north-bound train was upon him. He said passed upon the right or authority of the he was listening and heard no train, that he Assistant Attorney General to institute such knew a train was likely to pass at any time, proceedings and had held that no such author and that he was familiar with the crossing ity was vested in him. Under a showing of and its surroundings. The jury found spesuch facts, this court may act in the first cially that he knew of the obstructions, and instance. This being the only question pre knew they cut off his view to the south; sented, the peremptory writ is allowed.

that he could have seen the danger of a colIt is therefore ordered that C. E. Wood lision before it took place had he stopped bury, as such clerk, upon presentation, re to look before driving upon the main track, ceive and file the petition, præcipe for sum and that he could have avoided the collision mons, and issue the summons thereunder. had be stopped to look and listen, but that he

did not do so. The jury also found that the

employés of the railway company in charge (74 Kan. 4871

of the train discovered the driver's peril MISSOURI, K. & T. RY. CO. et al. v.

too late to avert the injury. NotwithstandJENKINS.

ing these findings, a verdict was returned for (Supreme Court of Kansas. Nov. 10, 1906.) the plaintiff. RAILROADS – ACCIDENT AT CROSSING - Evi A series of parallel railroad tracks constiDENCE.

tutes a series of separate dangers to a Upon the facts of this case, it is held a traveler upon a highway should have stopped

traveler upon a highway intersecting them. to look before driving his team upon a railway

Peril succeeds peril until all are crossed, and crossing.

caution must be exercised in the presence of [Ed. Note.--For cases in point, see Cent. Dig. each one. To look and listen once for all is vol. 41. Railroads, $$ 1043-1070.]

not enough if there be opportunity to make (Syllabus by the Court.)

further observations as the journey proceeds. Error from District Court, Miami County; Even though the view be obstructed until the W. H. Sheldon, Judge.

first track is reached, if the second can then Action by F. F. Jenkins against the Mis be scanned for danger, ordinary care resouri, Kansas & Texas Railway Company quires that the occasion be improved. Ordiand others. Judgment for plaintiff, and de nary care further requires that a man driv. fendants bring error. Reversed.

ing a team across a railroad track, or a John Madden, W. W. Brown and J. E.

series of railroad tracks, shall not deprive Maxwell, for plaintiffs in error. Frank M.

himself of the opportunity of a prompt view Sheridan, for defendant in error.

by unnecessarily lagging behind while the

team proceeds unguarded into danger. He BURCH, J. The plaintiff sued for the must be vigilant in trying to see. The findvalue of a team of horses, harness and wag ings of the jury in this case make it obvious on injured at a highway crossing over the that if the driver had stood in the forward defendant's tracks. There is no dispute part of his wagon he would have seen the about the material facts, and for the purposes train and would have avoided the collision. of the decision, it may be conceded the rail Instead of this, he projected the team ahead way company was negligent. The accident of him almost the entire distance across a happened upon a main track running north place of safety, and into danger before the and south. West of the main track 21 feet line of his vision cleared the obstruction to and 6 inches lay a side track filled with the south. Situated as he was, the jury box cars which encroached upon both sides finds that if instead of driving on he had of the highway leaving a space some 20 feet stopped to look he could have seen the train in width for passage. The driver of the and could have prevented disaster. Having team approached the crossing from the west. disabled himself from making timely use of His last look for a train before the instant his sense of sight, he should have offset the the accident occurred was taken at a point voluntary handicap by stopping to look. The 120 to 160 feet distant from the side track. fact that the driver was listening as he drove

along does not exculpate him. When, in ad out regard to technical errors or defects, or dition to listening, he could have looked and to exceptions which do not affect the subsaved himself, he should not have abused the stantial rights of the parties." opportunity. Whenever there is a field for The judgment of the district court is af. the exercise of both sight and hearing both firmed. faculties must be employed. The facts found specially by the jury require consideration in the light of other facts not found, but

(74 Kan. 672) merely admitted by the plaintiff's testimony.

STATE V. PARKHURST. Therefore judgment cannot be ordered upon (Supreme Court of Kansas. Nov. 10, 1906.) the findings.

INFORMATION – DUPLICITY – SEPARATE OFThe judgment of the district court is re

FENSES. versed, and the cause remanded. All the

Where an information charges, in one

count, robbery in the first degree and, in deJustices concurring.

scribing the assault, charges facts which constitute the crime of an assault with a deadly

weapon with intent to rob, such information is (74 Kan. 898)

not by reason thereof bad for duplicity. STATE v. CONNOR.

[Ed. Note.-For cases in point, see Cent. Dig.

vol. 27, Indictment and Information, $ 379.] (Supreme Court of Kansas. Nov. 10, 1906.)


Appeal from District Court, Riley County: In a trial of a criminal prosecution, the Sam Kimble, Judge. order of proof is a matter of discretion with the

C. G. Parkhurst was convicted of robbery, court.

and appeals. Affirmed. [Ed. Note. For cases in point, see Cent. Dig. vol. 14, Criminal Law, $ 1609.]

Robert J. Brock and Alvin R. Springer, 2. LARCENY – SUFFICIENCY OF EVIDENCE – for appellant. C. C. Coleman, Atty. Gen., IDENTIFICATION.

and A. M. Story (C. B. Daughters, of counIn a prosecution for larceny. identification

sel), for the State. of defendant by one witness was sufficient to carry the case to the jury.

[Ed. Note.-For cases in point, see Cent. Dig. SMITH, J. Our attention is first chalvol. 32, Larceny, $ 169.}

lenged to the information, and it is urged Appeal from District Court, Rush County;

that the information is bad for duplicity in Chas. E. Lobdell, Judge.

that it charges two felonies in one count, Guy Connor was convicted of larceny, and one of an assault with a deadly weapon with appeals. Affirmed.

intent to commit robbery under section 2023

of the Crimes and Punishments Act (Gen. D. A. Banta, for appellant. C. C. Coleman, Atty. Gen., and J. W. McCormick, for the

St. 1901), the other, robbery in the first deState.

gree under section, 2064, of that act. The

objection is not well taken. An assault PER CURIAM. Appellant was convicted

with intent to rob might be regarded as the of the larceny of wheat, and appeals.

first step, and an assault with an attempt The order of proof was a matter of dis to rob as the second step toward the comcretion with the court, which was not abused pletion of the crime of robbery in the first in this case. The conclusions of the witness degree. They are essentially crimes of the Werhahn, identifying the wheat, were not ob same character if not logically grades of jected to at the time. Facts, too, were stat

the same crime. Where only the higher ed which formed a chain of circumsances degree of crime is specifically charged, an rendering the proof of value following com

information is not bad for the reason that petent. Identification of appellant by one it charges facts which would, if established, witness was sufficient to carry the case to justify a conviction for another crime of like the jury. It was not improper for the wit nature, but of a lower grade, especially ness Clare to give his version of his talk where such facts are ingredients of each with the county attorney, and the form in crime. State v. Hodges, 45 Kan. 389; 26 which it was given was not materially preju Pac. 676. In complaining that the money. dicial. The difference between the weight of alleged to have been taken, was not deevidence read to the jury by the stenographer scribed with sufficient certainty, the appeland evidence which in the presence of the lant asks us to assume that the money said jury he read to himself and then stated to to have been in the possession of the county the jury is not sufficient to work a reversal attorney at the time he drew the informaof the case.

tion was the identical money taken. The The word "should," as used in the instruc testimony of the appellant and his whole tions to the jury, conveyed the sense of duty contention is that there was no money taken. and obligation, and could not have been mis He does not seem to have been prejudicei. understood. The evidence in the case is suf. The alleged variance between a "gold filled ficient to uphold the verdict. Section 293 of watch" and a "gold watch" is fully anthe Code of Criminal Procedure reads: "On swered adversely to appellant in State v. an appeal the court must give judginent with Alexander, 66 Kan, 726, 72 Pac, 227. We

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