awarded from September 7, 1885, If you find the sum not greater than $510, no interest will be allowed." The evidence clearly shows that the land appropriated was at least a strip 100 feet in width, and in many places much wider. The evidence of the defendant below clearly showed that the intention was to appropriate and condemn a strip 100 feet wide. It was tried upon that theory, and it seems to have been conceded that the amount of land sought to be taken was a strip 100 feet wide. To the last of these instructions it seems that the only objection thereto is that the court was by this instruction informing the jury of the amout of the award, as found by the commissioners. We know of no other way in which the court could have informed the jury upon what basis they were to ascertain and allow interest. This instruction did not inform the jury what the award was, but was a direction to them that, in case they found for the plaintiff in a greater sum, that they were also to allow the plaintiff interest at 7 per cent. We cannot conceive of any way in which this could have injured the defendant. Plaintiff was properly entitled to interest at 7 per cent.

The defendant insists that the court erred in rendering a personal judg ment on the verdict of the jury. This claim is correct. The judgment should have been to corrcet the assessment of the commissioners, and to make their award correspond to the amount found by the jury, and an ordinary personal judgment for costs. See Railroad Co. v. Wilder, 17 Kan. 239; Railroad v. Moore, 24 Kan. 323.

It is therefore recommended that the case be remanded to the court below, with the order that the judgment be modified in accordance with the views expressed herein.

BY THE COURT. It is so ordered; all the justices concurring.

(37 Kan. 743)

WICHITA &, W. R. Co. v. Davis.

(Supreme Court of Kansas. December 10, 1887.)

1. RAILROAD COMPANIES LIABILITY FOR NEGLIGENCE-ACCIDENTS AT CROSSINGE-CONTRIBUTORY NEGLIGENCE.

Before a person can recover for injuries received in crossing a railroad at a public road or street, he must, before attempting to cross, recognize the danger, and make use of the senses of sight and hearing in determining whether a train is in dangerous proximity; and if he neglects this duty, and ventures blindly upon the track, without an effort to ascertain whether a train is approaching, he does so at his peril.

2. SAME QUESTION FOR JURY.

The care and caution required of a person in crossing a railroad is such reasonable care and caution as a man of ordinary prudence and judgment would exercise under similar circumstances; and, where there is a conflict in the testimony that reasonable men might differ about, then it becomes a question of fact, to be submitted to the jury.

3. SAME SLIGHT NEGLIGENCE.

Where the negligence of one party is great, and that of the other but slight, notwithstanding the slight negligence the party may recover.

(Syllabus by Clogston, C.)

Commissioners' decision. Error to district court, Sedgwick county; T. B. WALL, Judge.

1 As to the duty of a traveler to look and listen for approaching trains before attempting to cross a railroad track, see Slater v. Railway Co., (Iowa,) 32 N. W. Rep. 264; Kelly v. Railroad Co., (Pa.) 8 Atl. Rep. 856; Purinton v. Railroad Co., (Me.) 7 Atl. Rep. 707, and note; Railroad Co. v. Hutchinson, (III.) 11 N. E. Rep. 855; Sherry v. Railroad Co., (N. Y.) 10 N. E. Rep. 128, and note; Guggenheim v. Railway Co., (Mich.) 33 N. W. Rep. 161: Nosler v. Railroad Co., (Iowa,) 34 N. W. Rep. 850; Seefeld v. Railroad Co., (Wis.) 35 N. W. Rep. 278; Railroad Co. v. Kellam's Adm'r, (Va.) 3 S. E. Rep. 703; Railroad Co. v. Burge, (Va.) 4 S. E. Rep. 21.

The defendant in error, plaintiff below, brought this action against the plaintiff in error in the district court of Sedgwick county, Kansas. The record discloses the following facts: That the plaintiff was a farmer about sixty years of age, and resided about two miles east of Wichita; that on the twentysixth day of December, 1883, he had been to the city, and on returning home passed out east on Oak street, which crosses the railroad track of the defendant, one block south of the Union depot; that on the south side of Oak street, 64 feet west of the track, is a peach orchard, which obstructs a view of the track until after passing said orchard; that also south of the orchard, facing east on said block, and the railroad where it runs north and south on Fifth street, were several dwellings, and south of these, some two or three blocks, were some elevators; that the defendant's track runs from the Union depot south four or five blocks through the city. Directly east of the main track, and parallel with it, is a switch, and still east of that is a "Y" or switch of the San Francisco road. At the place where Oak street crosses the main track, and where the injury occurred, the main track and side track and switch are not more than 10 or 15 feet apart. On said track, south of the crossing, were a number of loaded cars standing on the track, extending down at intervals for several blocks, and also one or two cars were standing on the switch or "Y" of the Frisco road, and partly on the crossing. The tracks were about three feet above the grade of the street. On the west side of the main track is a ditch or excavation, something like three feet deep, and also a ditch between the main track and the side track. The injury occurred between 3 and 4 o'clock in the afternoon. The wind was blowing a heavy gale from the north, and it was cloudy and very dusty. Plaintiff was driving a team hitched to an ordinary two-horse wagon, and he testified that, after passing the corner of the orchard, he saw a crowd of people at the Union depot, and supposed that a train was coming. Then he looked south, and saw the cars upon the side track, and looked to see whether there was an engine behind them. He looked down the main track, but discovered no train, so he drove on at a walk, and looked both north and south again to see if there was a train approaching, and saw none. He then drove on the track, and when his horses' heads had just passed over the main track he discovered a train backing towards him. The first car-or the one nearest to him-was a coal car loaded with telegraph poles, some of them extending some distance over the end of the car. Before the wagon had completely passed the track, it was struck by the car, and the plaintiff was knocked out of the wagon, and received injuries in his back and hips. The train was composed of an engine running backward; after that, a flat car; back of that, a box car used as a caboose; and still back of that, a coal car loaded with poles,—the entire train running backward. At the time of the injury, the engine was being operated by the fireman,—the engineer not being on the train; the conductor being also on the engine, and in the caboose being two brakemen. No person was on the outside or on the top of the cars, or on the coal car loaded with poles, and no lookout was kept; and the first that the train-men discovered of the plaintiff was when he was driving on the track. When he was discovered, the engine was reversed, and the train stopped at or north of the crossing.

The jury were requested by the defendant to answer certain questions of fact, which they did, as follows:

"(1) Is it not a fact that just prior to said accident the plaintiff was driving eastward on Oak street, in the city of Wichita, towards the railroad tracks situated near the Union depot, in Wichita? Answer. Yes. (2) Is it not a fact that there was situated on the south side of Oak street, and four or five rods from the west railroad track, a peach orchard about three or four rods wide, and four or five rods long? Answer. Yes; but find said peach orchard to be about 64 feet west of railroad track. (3) Is it not a fact that the peach orchard referred to in the last question was situated about sixty-four feet from

the west rail of said railroad track? Answer. Yes. (4) Is it not a fact that after plaintiff passed said peach orchard there was nothing to obstruct his view of the main track, on which said engine and train of cars were approaching, which would prevent him from seeing said approaching engine and cars for a distance of several blocks, had he looked towards the south? Answer. Yes. (5) If you answer the last question in the negative, state fully what such obstructions consisted of, and the height and location of the same. Answer. (6) Is it not a fact that the track on which the train was approaching from Oak street south to Douglas avenue, in the city of Wichita, was straight, or nearly so? Answer. Yes. (7) State what there was, if anything, to prevent plaintiff from seeing said approaching train, had he looked to the south, after passing the corner of said peach orchard, anywhere between Oak street and the old railroad depot on Douglas avenue, in said city, giving location and height of such obstruction. Answer. By elevator and other buildings south of Central avenue. (8) Was it not about 4 o'clock P. M. on a bright, clear day when the alleged injury to plaintiff was done? Answer. Yes; it was about 4 o'clock, but not a bright, clear day. (9) Was not plaintiff at that time in the possession of full mental and physical powers, with his senses of sight and hearing unimpaired? Answer. Yes. (10) After the plaintiff passed the peach orchard at the corner of Fifth and Oak streets, about sixty-four feet from the track upon which the accident occurred, about how far could the plaintiff have seen an approaching train, had he looked to the south? Answer. About two or three blocks. (11) After the plaintiff passed the peach orchard situated on the corner of Fifth and Oak streets, state what, if any, obstruction there was to prevent the plaintiff from seeing a train approaching from the south, and give fully and definitely the location and description of such obstruction, if any. Answer. Yes; by elevators and other buildings south of Central avenue. (12) At what rate of speed was the train moving which injured plaintiff, at the time plaintiff drove upon the track? Answer. About 20 miles per hour. (13) At what rate of speed was the plaintiff driving during the time he was passing from the corner of the peach orchard, on the corner of Fifth and Oak streets, until he reached the railroad track on which the accident happened? Answer. About four miles per hour. (14) Was not there a heavy wind blowing at the time of the accident, from the north or north-west? Answer. Yes. (15) Where was the plaintiff when he first saw the train approaching which caused the accident? Answer. In the wagon, and the team on the railroad track. (16) Where was the train which caused the injury to plaintiff, when plaintiff's team first went upon the track on which the train was approaching? State definitely, as near as you can, the distance from the Oak-street crossing. Answer. From one to two hundred feet south of the crossing."

Trial in the district court by jury, and judgment for the plaintiff below for $6,000, and costs, and the company brings the case here.

Geo. R. Peck, A. A. Hurd, W. C. Campbell, and Houston & Bentley, for plaintiff in error. Campbell & Dyer, for defendant in error.

CLOGSTON, C., (after stating the facts as above.) Upon this record the plaintiff in error raised but two questions, but, as they are substantially one in fact, we shall discuss them as one; and that is, did the injury occur by the contributory negligence of the defendant? The plaintiff in error now contends that, on the facts found by the jury, it was error not to direct the jury to return a verdict for the defendant, plaintiff in error. Upon this theory it requested the court to instruct the jury as follows: "I instruct you that if the plaintiff, before driving upon the track of the defendant at which the injury complained of occurred, could at any time have seen the approaching train in time to escape by looking to the south, it will be presumed, as a matter of law, either that he did not look, or that if he did look, that he did not

heed what he saw, and concluded to take the risks of attempting to cross in front of the approaching train; in which case, I instruct you that the plaintiff, if you so find the facts, was guilty of contributory negligence, contributing to his injury, and cannot recover in this case;" which instruction the court refused to give. The rule as contended for by the plaintiff in error is that if the plaintiff could have seen, by carefully looking, the approach of the train, then it was negligence for him to drive over the track ahead of the train, knowing that the train was coming; or if he failed to look, or, if looking, failed to discover the train, and drove upon the track, and was injured, he cannot recover; or, in other words, that if one does look, and fails to discover what it would be possible for others to see, or under some circumstances might have been seen by the person so looking, then it is contributory negligence not to see. If this rule is the true one, then nothing short of the greatest care and caution will warrant a recovery for injuries received through negligence in the operation of trains. We do not understand the rule to be so far extended as to require the greatest care and caution, but only reasonable care: such as a man of ordinary prudence would exercise under similar circumstances. Desmond v. Brown, 29 Iowa, 54; Railroad Co. v. Rice, 10 Kan. 426. The rule seems to be well settled in this state that, before a person can recover for injuries received in crossing a railroad at a public road or street, he must, before attempting to cross, recognize the danger, and make use of the senses of hearing and seeing in determining whether a train is in dangerous proximity; and if he neglect this duty, and venture blindly upon the track, without making an effort to ascertain if a train is approaching, that he does so at his peril. Clark v. Railroad Co., 35 Kan. 354, 11 Pac. Rep. 134. The supreme court of Iowa, in speaking of this question, said: "The instruction was properly refused. It requires too great a degree of care and circumspection; it makes no allowance for the ordinary imperfections of humanity; it requires absolute perfection of attention to surroundings, while the mind is concentrated upon a particular duty. So high a degree of caution the law does not enjoin; it requires only the exercise of reasonable and ordinary care.” Greenleaf v. Railroad Co., 33 Iowa, 57. The supreme court of the United States, referring to an instruction similar to that contended for by the defendant, said: "It states such duty with the rigidity of a statute, making no allowances for modifying circumstances, or for accidental diversion of the attention, to which the most prudent and careful are sometimes subject, and assuming, in effect, that the duty of avoiding a collision lies wholly, or nearly so, on one side." Improvement Co. v. Stead, 95 U. S. 168. See Railway Co. v. Adams, 33 Kan. 427, 6 Pac. Rep. 529.

But where the undisputed facts show that this rule has been disregarded, and no precaution has been taken to ascertain and avoid dangers, it then becomes a question of law for the court, and not a question of fact to be submitted to the jury. Where there is a conflict of testimony that reasonable men might differ about, then it becomes a question of fact to be submitted to the jury. The plaintiff testified that he looked north and south, expecting to see a train; that a gale of wind was blowing, and it was very dusty; that he saw the cars on the side track, and looked to see if an engine was behind them, and saw none. And this, with the fact that the train was moving backward, are questions to go to the jury, with the fact that the train was in view for some two blocks south of the crossing, and might have been seen. It was perhaps seen by the plaintiff, and mistaken, under the above conditions of the weather, and the character of the train, and he thought it to be on the side track. It was said in Bernard v. Railroad Co., 1 Abb. Ct. App. 131: "If there is any conflict in the evidence going to establish any of the circumstances upon which the question depends, it must be left to the jury. If there are inferences to be drawn from the proof which are not certain and incontrovertible, they are for the jury. If it is necessary to determine, as in v.16p.no.1-6

most cases it is, what a man of ordinary prudence and care would be likely to do under the circumstances proved, this, involving, as it generally must, more or less conjecture, can only be settled by a jury." In Weber v. Railroad Co., 58 N. Y. 451, the court said: "It is true that the vigilance and caution of the traveler must be proportioned to the known danger of the injury; but it is also in a measure limited by the usual and ordinary signals and evidences of danger. The natural instinct of self-preservation, ordinarily, will lead to the employment of all the precaution which the situation suggests to an individual, and whether they are such as would occur to, or be adopted by, men of ordinary care and prudence, must necessarily, in most cases, be left to the jury. The intelligence and judgment, as well as the experience, of twelve men, must settle a question of that character as one of fact, and not of law." Railway Co. v. Richardson, 25 Kan. 391; Railway Co. v. Young, 19 Kan. 488: Railway Co. v. Pointer, 14 Kan. 37; Railroad Co. v. Webber, 76 Pa. St. 157; Carr v. Railroad Co., 60 N. Y. 633; Thurber v. Railroad Co., Id. 331; Loucks v. Railroad Co., 18 N. W. Rep. 651.

While this question is a close one, yet we do not feel called upon to disturb the judgment, where it is so conclusively shown that the employes of the defendant in charge of the train were so grossly negligent in its management. Although the plaintiff may have been somewhat negligent, yet it is not clearly shown that it contributed to the injury. If he saw the train after passing the orchard, and the train was then some distance south, he might with reasonable safety have crossed before it reached the crossing, provided the train was running only at such a rate of speed as it might properly run in a populous city. This court has repeatedly held that where the negligence of one party is great, and that of the other but slight, not withstanding the slight negligence the party may recover. Railroad Co. v. Houts, 12 Kan. 328; Railway Co. v. Pointer, 14 Kan. 37; Sawyer v. Sauer, 10 Kan. 466. Under all the circumstances of this case, we do not find that the plaintiff was guilty of such contributory negligence as to prevent his recovery.

It is therefore recommended that the judgment of the court below be affirmed.

BY THE COURT. It is so ordered; all the justices concurring.

(38 Kan. 110)

ATCHISON, T. & S. F. R. Co. v. English.

(Supreme Court of Kansas. December, 10, 1887.)

1. APPEAL-REVIEW-PRESUMPTIONS.

Where a petition avers that a great railway company leased the road-bel and side tracks of another railway company, it will be presumed, after judgment in favor of plaintiff, when the evidence admitted on the trial is not brought to this court, that the road-bed leased is an extension and continuation of the railroad of the lessee.

2. SAME-OBJECTION NOT RAISED BELOW.

The averment in a petition that a certain person was general manager of a railway company, and that, on behalf of the company, he promised to give a pass over its roads, is a sufficient allegation of the authority of the agent, after judgment for plaintiff, when there is no showing that such averment was challenged in the trial

court.

3. SAME-HARMLESS ERROR.

If, under the pleadings and findings of fact, it appears that the judgment was correct, it will not be disturbed, although an erroneous instruction was given upon the evidence in the case that becomes immaterial under the findings of fact.

4. FRAUDS, STATUTE OF-AGREEMENT NOT TO BE PERFORMED WITHIN A YEAR-EXECUTED CONTRACT.

Where land is conveyed in consideration of a parol promise of a pass for life over a railroad, such pass to be issued annually, the promise is not void under the stat