adjudged, and decreed that this matter be referred back to the county surveyor to make a new survey, and report the same to this court on or before the next regular term thereof. In making said survey, the surveyor will locate the north line of block 3. city of Altoona, as originally laid out and platted, regardless of the Reed road. Should there be a shortage or excess in the area of said block, as compared with the original measurements thereof on the town plat, he will distribute the same proportionately among the different lots of said block." When the new survey was undertaken the center line of Walnut street, lying in the neighborhood of a half mile south of the northern limit of the city, was accepted by the parties as a base line. The surveyor added the figures shown on the original plat of the townsite, indicating the length of blocks and width of the streets, and chained north the distance so computed for the north line of block 3. By measuring from the center line of the street south of block 3 a deficiency was discovered, which, being apportioned, required the establishment of the line in question south of a gas well claimed by the appellant as being on his lot. Exceptions to the surveyor's report were duly made, and, after a hearing, the survey was confirmed. Practically all the evidence offered at the trial indicates that the survey was wrong, that the townsite as actually laid out on the ground is larger than the figures on the plat indicate, that an excess exists in the portion lying north of Walnut street, and that the line between lots 2 and 3 in block 3 should lie north of where the surveyor fixed it. But, aside from the matter of the weight of the evidence concerning the correctness of the survey, not only the evidence, but the report, of the survey itself shows the surveyor ignored the cardinal rules for his work in not regarding original monuments and known corners and making his survey conform to them instead of the figures on paper. The primary rules for locating city plats upon the ground or lots of a platted city, are the same as those for locating deeds upon the ground. They are, in order of precedence in application, as follows: First. Find the lines actually run and the corners and monuments actually established by the original survey. Second. Run lines from known, established, or acknowledged corners and monuments of the original survey. Third. Run lines according to courses and distances marked on the plat. Avery's Lessees v. Baum's Heirs, Wright (Ohio) 576; Tyler on Boundaries, 282; Greenleaf on Evidence (15th Ed.) 301, note 9.

In this case the surveyor accepted testimony establishing the original northwest corner of block 45, but, instead of taking measures from that point, he accepted the statement of a witness that it is a certain distance from the center of Walnut street.

Had he used his instruments he might have found an excess in the first block on his way north as he did in a careful survey made for the city two years before to establish street intersections. The surveyor took testimony relating to the distance between the section line north of Altoona and the north line of the townsite which he rejected as indefinite, but this very testimony disclosed the existence of known monuments and corners which he did not utilize. The north line of block 3 having been fixed according to the methods indicated, the surveyor reported that it coincided so nearly with the remains of an old fence that "it might be reasonably inferred that said fence was set on the north line of said block 3 at a time when the corners of said block were yet in place." He did not, however, draw the inference, probably because it would have contradicted his own previous survey. Evidence introduced at the trial tends to show this fence was set south of the line. But whether or not this be the fact, original monuments and known corners cannot be ignored in making a survey and data of this character then be brought forward as proof of its accuracy. The survey of 1902 being ex parte does not bind the appellee. Evidence was introduced tending to show that appellant had no standing in the district court because he had disposed of the lot which he claimed, and it is argued the judgment should be upheld on the theory the court found in favor of such contention. The judgment rendered, however, purports to bind the appellant, and in other respects is inconsistent with such a view. The amount in controversy is shown to be within the jurisdiction of this court by affidavits.

The judgment of the district court is reversed, and the cause remanded. All the Justices concurring.

(74 Kan. 560)

CAMERON v. GRIESA et al. (Supreme Court of Kansas. Nov. 10, 1906.) EXECUTION-NOTICE OF SALE-SUFFICIENCYINJUNCTION.

The fact that a sheriff's notice of the sale. of real estate on execution fails to describe with sufficient definiteness the property to be sold affords no ground for an action by the judgment defendant to enjoin the sale.

(Syllabus by the Court.)

Error from District Court, Douglas County; C. A. Smart, Judge.

Action by Hugh Cameron against Augustus H. Griesa and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Edw. T. Riling, for plaintiff in error. W. W. Nevison, for defendants in error.

MASON, J. An execution was levied upon land belonging to Hugh Cameron, who brought an action seeking to enjoin its sale

upon the ground that it was exempt because it was his homestead. He was denied relief, and prosecutes error. Whether the property was exempt was a question of fact, which was heard and determined upon conflicting oral testimony. The finding made by the trial court did not lack support in the evidence, and is not subject to review here. The injunction was asked upon the further ground that the sheriff's notice of sale was defective in that it failed to specify the county or state in which the property to be sold was situated. If the description was in fact insufficient, the defect was a mere irregularity, for which the defendant had ample remedy in the ordinary course of procedure by objection to the confirmation of the sale. In such case injunction does not lie. 16 Am. & Eng. Enc. of Law (2d Ed.) 403-405; 3 Freeman on Executions, § 436.

The judgment is aflirmed. All the Justices concurring.

(74 Kan. 528)

DYERSON v. UNION PAC. R. CO. (Supreme Court of Kansas. Nov. 10, 1906.) 1. MASTER AND SERVANT-INJURY TO SERVANT CONTRIBUTORY NEGLIGENCE.

The rule that a railroad employé who is engaged in the discharge of a duty, the performance of which requires him to be on or near the track, need not keep a strict watch for approaching trains in order to be deemed to be exercising reasonable care for his own protection, does not apply to the case of an employé who is injured while attempting to cross a track merely for the purpose of getting from one point to another; the circumstances not requiring the crossing to be made at a particular time or place.

[Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 739, 751.]

2. SAME.

The fact that such employé works close to a track and has frequent occasion to pass back and forth over it does not relieve him from the requirement that, in order that he may be deemed to be in the exercise of ordinary diligence, he must look in both directions for an approaching train before undertaking to cross it. [Ed. Note. For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 739, 751.] 3. SAME LAST CLEAR CHANCE.

The fact that such an employé knows that it had previously been the rule and practice of the company to run trains along said track only in one direction except under unusual circumstances, does not relieve him from such requirement, although a change has been made in such rule and practice without notice to him. [Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 739, 751.] 4. SAME.

A plaintiff who has received an injury occasioned by the negligence of the defendant, but who could have avoided it by the exercise of ordinary care on his own part, cannot recover damages therefor, although the defendant ought to have discovered (but did not, in fact, discover) his peril in time to have prevented the accident, where the plaintiff's negligence continued up to the very moment he was hurt, and where the exercise of reasonable diligence before that time

would have warned him of his danger and enabled him to escape by his own effort. [Ed. Note.-For cases in point, see Cent. Dig. vol. 34, Master and Servant, §§ 801-804.] (Syllabus by the Court.)

Error from Court of Common Pleas, Wyandotte County; Wm. G. Holt, Trial Judge. Action by Charles W. Dyerson against the Union Pacific Railroad Company. Judgment for defendant, and plaintiff brings error. Affirmed.

C. F. & S. D. IIutchings and E. L. Fischer, for plaintiff in error. N. II. Loomis, R. W. Blair, and II. A. Scandrett, for defendant in

error.

MASON, J. Charles W. Dyerson was run into by an engine and tender of the Union Pacific Railroad Company and severely injured. He sued the company for damages, alleging that his injury was occasioned by the defendant's negligence. At the trial the court rendered judgment against him upon his petition and his preliminary statement to the jury. He prosecutes error.

The material facts disclosed by the plaintiff's pleading and statement may be thus summarized: He had for some time been employed by the company in the Kansas City yards. At the time of his injury he was known as a "car repairer" and one of his duties was to supply cars with ice. Ice for this use was kept m a box four feet high, four feet wide, and eight feet long, placed parallel with a double track, four or five feet north of the northermost rail. Between the box and the track were three steps, each eight inches high; the edge of the lowest being about two feet from the rail. For a long time the custom had been to use the north track only for west-moving trains or locomotives, except when the south track, which was used by those going east, was obstructed. This custom was in accordance with a rule, of the existence of which the plaintiff knew by having some time before, while he was a car inspector, seen in a switch shanty a bulletin in which it was incorporated. short time before the injury complained of the rule and practice in this respect had been reversed, but the plaintiff was not notified of the change, and had no knowledge of it. On the day of the accident, at about 11 o'clock in the morning, he was told to get ready to ice a tourist car which would be in shortly. He went to the east end of the ice box, where there was a rack for the purpose. and crushed a quantity of ice with which he filled a bucket, placing it in or near the box. He then walked to a point a little west of the box and waited for the car to arrive. While standing there, his foreman beckoned him from a place south of the tracks and east of where he stood, and pointed to the car which was to be iced. He walked between the ice box and the track to get his bucket of ice, reached it, took hold of it and started

A

to carry it to the car, and while on the lowest step and about to proceed across the track he was struck by the tender of a locomotive which was backing east on the north track at the rate of 15 or 20 miles an hour without giving a signal of its approach and without keeping a lookout along the track. The track was straight for a quarter of a mile west. It was a clear day, and there was nothing to have prevented the plaintiff from seeing the engine and tender if he had looked. It is, therefore, manifest that the plaintiff's omission to exercise due caution in his own behalf was fatal to his recovery unless there was something in the peculiar circumstances of the case to take it out of the general rule, which is thus stated in 23 A. & E. Encycl. of L. (2d Ed.) 765: "Any one who goes upon or near a railroad track is bound, at his peril, to make diligent use of his senses of sight and hearing in order to detect the approach of trains; and if, in disregard to this duty to his own safety, he steps upon the track without looking or listening, * * * he is guilty of such negligence as to bar an action for the injury." One of the exceptions of the rule is stated by the same authority in these terms (Id., p. 768): "Nor does the principle apply to employés whose duties require their presence upon the track, the performance of which duties necessarily precludes their paying the strictest attention to the approach of trains."

It is argued that the plaintiff in error falls within this exception. If he had been injured while standing upon the steps and engaged in breaking ice, this might be true, for the performance of that duty might have rendered it impracticable for him to keep a strict watch for passing trains, and if, while so engaged, any part of his body could come within the overhang of the cars or locomotives, the place was not a safe one to work in. But such was not the case. Whatever danger he might have been subjected to while filling his bucket with ice had passed. He had moved to a place of entire safety west of the ice box, and was awaiting an order to carry the ice to a car. When the order came, he had no duty for the time being but to get the bucket and carry it across the track to where the car stood. However great a degree of promptness or haste might have been expected of him, it was not essential that he should cross the track at any particular point, nor could his delaying until the engine and tender had passed have been material. He was simply in the position of one having occasion to get from one side of the track to the other. The necessity of his picking up the bucket before crossing did not preclude his glancing up the track to see if it was clear.

The mere fact that he had habitually worked near the track and was under the frequent necessity of crossing it did not justify any relaxation of vigilance on his part. The tendency of the authorities seems rather to be to regard such circumstances as calling

| for the exercise of a higher degree of diligence than is expected of a pedestrian who is not an employé. In Wabash R. R. Co. v. Skiles, 64 Ohio St. 458, 60 N. E. 576, it is said: "It has been laid down as the law that passengers who are required to cross railroad tracks in getting upon or alighting from trains have the right, from the nature of their contract, to expect a safe place for that purpose, and may govern themselves accordingly; but such immunity has never been conceded to travelers upon a railroad crossing having equal rights there with the railroad company, and still less to employés in the yards or depots of the company. The latter have no invitation or implied contract, as passengers do have, to perform their duties in a safe place. The very nature of employment about the tracks of a railroad involves notice of the danger of it, and nobody knows better than an employé that other employés are liable to be careless in the observance of rules, and lax in the performance of duty. Therefore he cannot be permitted to shut his eyes to obvious dangers, and to act with 'full reliance' that rules will be observed, and a safe passage kept for him, whenever his duties call upon him to cross the tracks. He cannot be excused from the rule that ordinary prudence requires that a person in the full enjoyment of the faculties of seeing and hearing should use them when about to pass over a railroad track, and that the omission to do so is contributory negligence when it immediately results in an injury which might have been avoided if the injured person had looked or listened." Among other cases bearing more or less directly upon this proposition may be cited Grand Trunk Ry. Co. v. Baird, 94 Fed. 946, 36 C. C. A. 574; Loring v. Kansas City, Ft. S. & M. R. Co., 128 Mo. 349, 31 S. W. 6; Elliot v. Chicago, M. & St. P. Ry. Co., 5 Dak. 523, 41 N. W. 758. 3 L. R. A. 363; Elliot v. Chicago, Milwaukee & St. Paul Railway Co., 150 U. S. 245, 14 Sup. Ct. 85, 37 L. Ed. 1068: Abbot v. McCadden, 81 Wis. 563, 51 N. W. 1079, 29 Am. St. Rep. 910: Carlson v. Cincinnati, S. & M. R. Co.. 120 Mich. 481, 79 N. W. 688; St. Jean v. Boston & M. R. Co., 170 Mass. 213, 48 N. E. 1088; Royskoyek v. St. Paul & D. R. Co.. 76 Minn. 28. 78 N. W. 872; Chicago, B. & Q. R. Co. v. Yost, 56 Neb. 439, 76 N. W. 901.

It is claimed that negligence cannot be imputed to the plaintiff for his failure to look along the track to the west, because, having had no notice of any change, he had a right to suppose that the old rule of using it under ordinary circumstances only for westbound trains was still in force and would be observed. This consideration, however, did not relieve him from the burden of watchfulness on his own part. It is doubtful whether there was an obligation on the part of the company to give notice to the plaintiff of such a change. The information he had re garding the former rule was shown to have

been acquired incidentally, and not to have been officially communicated to him as an employé. Of a somewhat similar question it is said in L. S. & M. S. R. R. Co. v. Hart, 87 Ill. 529: "In excuse for not using any precaution to ascertain whether there was any train approaching from the north, appellee urges the practice of the roads to run all trains south from Chicago on the Rock Island track, and all trains north, toward Chicago, on the Lake Shore track; and that therefore, in going upon the Lake Shore track, he was only bound to look south to see if any train was coming from that direction. Appellee was not justified in relying upon any such practice, as the result showed. The companies had the right to change such practice at any time, and to run their trains at all times in either direction, and any dependence upon such former practice was at appellee's risk. This practice before did not excuse the exercise of caution and vigilance in looking for approaching trains in both directions." But, if it was negligence to reverse the method of using the tracks without giving notice, the situation was no different from that presented by the company's sending an engine down the track in disregard of any existing rule, whether relating to direction, or speed, or lookout, or signal of warning, or of any precaution which a due regard for the safety of those about the yards might demand irrespective of formal regulations. If one about to cross a railroad track could rely implicitly upon the company's employés performing their full duty, and if such reliance would excuse the use of precaution for one's own protection, then there could be no room whatever for the application of the doctrine of contributory negligence. It is only when it has been established that the company has been negligent-that is, that some agent has omitted to do something which he should have done and which in a sense every one has a right to expect him to perform-that any occasion arises to consider whether a person injured has himself been at fault.

Finally, it is contended in behalf of the plaintiff that, even admitting his own want of care to have been such as would ordinarily bar a recovery, still he had a right to submit to the jury the question whether the employés in charge of the engine by the use of reasonable diligence could not have discovered his negligence in time to avert the accident, and that an affirmative answer would have entitled him to a verdict. There is a general agreement in the authorities that, where an engineer actually sees a person in a position of danger and then fails to do what he reasonably can to prevent an accident, the railroad company is held responsible for the resulting injury, irrespective of the question of contributory negligence. A logical and sufficient reason for this holding is that such conduct on the part of the company's agent amounts to recklessness or wantonness, and is analogous to a willful and intentional wrong, and like a

wrong of that character establishes a cause of action to which negligence of the injured party is no defense. This reason is not always given in decisions upon the point, perhaps not even generally, but it sometimes is. For example, in Labarge v. Pere Marquette R. Co., 134 Mich. 139, 95 N. W. 1073, it is thus expressed: "Where one willfully injures another, the doctrine of contributory negligence is not involved, because the injury is not negligent, but intentional. Again, where one is seen in danger, though placed there through his own negligence, one who, thus seeing him, omits ordinary care to avert an injury to him, is not alone negligent, but is wanton, and, as wantonness of this kind is akin to willfulness, there is an opportunity for applying the same rule."

In a number of cases it has been held that if the engineer, by the exercise of reasonable diligence, could have learned that danger was imminent, but did not do so, the liability of the company will be determined in all respects as though he had in fact become aware of it; the constructive knowledge being apparently deemed the equivalent of actual knowledge. It is difficult or impossible to reconcile the decisions upon this and related questions, or to derive from them any generally accepted statement either of principle or result. Many of them are collected and discussed in chapter 9 of Thompson's Commentaries on the Laws of Negligence, especially in sections 222-247. There seems, however, to be no sufficient reason why the mere fact that a defendant is negligent in failing to discover a plaintiff's negligence, or his danger, should in and of itself exclude all consideration of contributory negligence. Take the not unusual situation of a train being negligently operated, let us say by being run at too high a speed and without proper signals of warning being given. Now, any one injured as a result of such negligence has prima facie a right to recover; but, if his own negligence has contributed to his injury then ordinarily, his right is barred. How is the situation altered if the railroad employés add to their negligence in regard to speed and signals the negligence of failing to keep a sufficient lookout? The negligence is of the same sort, and, if the contributory negligence of the person injured prevents a recovery when but the two elements of negligence are present, consistency requires that it should have the same effect, although a third element is added. If in the present case the plaintiff was entitled to recover in spite of his own negligence, it must be because the order of its occurrence with respect to that of the defendant made the latter the proximate cause of the injury. This, indeed, is his contention, and to support it reliance is placed upon the following text, which was quoted with approval in Railway Co. v. Arnold, 67 Kan. 260, 72 Pac. 857, and the substance of which is to be found also in volume 7 of the Encyclopædia, at page 387: "And upon the principle

that one will be charged with notice of that which by ordinary care he might have known, it is held that if either party to an action involving the questions of negligence and contributory negligence should. by the exercise of ordinary care, have discovered the negligence of the other, after its occurrence, in time to foresee and avoid its consequences, then such party is held to have notice, and his negligence in not discovering the negligence of the other, under such circumstances, is held the sole proximate cause of a following injury." 7 Am. & Eng. Encycl. of L. p. 387. This may be accepted as a correct statement of a principle of universal application, according with both reason and authority, provided the words "after its occurrence" be interpreted to mean after the person concerned had ceased to be negligent. The rule that under the circumstances stated the neglect of one party to discover the omission of the other is to be held to be the sole proximate cause of a resulting injury is not an arbitrary, but a reasonable one. The test is, What wrongful conduct occasioning an injury was in operation at the very moment it occurred or became inevitable? If just before that climax only one party had the power to prevent the catastrophe, and he neglected to use it, the legal responsibility is his alone. If, however, each had such power and each neglected to use it, then their negligence was concurrent, and neither can recover against the other. As is said in the paragraph from which the foregoing quotation is made: "It is only when the negligence of one party is subsequent to that of the other that the rule can be invoked." In a note printed in volume 2 of the supplement to the Encyclopædia, at page 64, many recent cases are cited bearing on the subject, and it is said: "This so-called exception to the rule of contributory negligence (i. e., the doctrine of the last clear chance) will not be extended to cases where the plaintiff's own negligence extended up to and actually contributed to the injury. To warrant its application there must have been some new breach of duty on the part of the defendant subsequent to the plaintiff's negligence."

In the present case it may be granted that the negligence of the plaintiff began when he walked between the track and the ice box on the way to get the bucket, and that the employés in charge of the engine were themselves negligent in not discovering this negligence on his part, and the peril to which it exposed him, and taking steps to protect him. But his negligence, as well as theirs, continued up to the moment of the accident, or until it could not possibly be averted. His opportunity to discover and avoid the danger was at least as good as theirs. His want of care, existing as late as theirs, was a concurring cause of his injury and bars his recovery. This determination is entirely consistent with what Mr. Thompson in his work above cited (section 240) has styled the "last clear chance"

doctrine, as is obvious from a consideration of the terms in which it is stated. As originally announced it was thus phrased: "The party who has the last opportunity of avoiding accident is not excused by the negligence of any one else. His negligence, and not that of the one first in fault, is the sole proximate cause of the injury." Mr. Thompson rewords it as follows: "Where both parties are negligent, the one that had the last clear opportunity to avoid the accident, notwithstanding the negligence of the other, is solely responsible for it; * ** his negligence being deemed the direct and proximate cause of it." Expressions are to be found in the reports seemingly at variance with the conclusion here reached, but for the most part the decisions holding a defendant liable for failure to discover and act upon the plaintiff's negligence were made in cases which were, in fact, like Railway Co. v. Arnold, supra, or were decided upon the theory that they fell within the same rule. within the same rule. There the plaintiff's decedent while riding a bicycle was through his own fault run into by a street car. He clung to the fender, was carried some 75 feet, then fell under the wheels, and was killed. A judgment against the street car company was upheld only upon the theory that after he had reached a position of danger from which he could not extricate himself-that is, after his negligence had ceased-the defendant's employés were negligent in failing to discover his peril and stop the car. In Robinson v. Cone, 22 Vt. 213, 223, 54 Am. Dec. 67, the writer of the opinion says: "I should hesitate to say that if it appeared that the want of ordinary care on the part of the plaintiff, at the very time of the injury, contributed either to produce or to enhance the injury, he could recover, because it seems to me that is equivalent to saying that the plaintiff, by the exercise of ordinary care at the time, could have escaped the injury."

The principle thus intimated was embodied in a decision in French v. Grand Trunk Ry. Co. (Vt.) 58 Atl. 722, where it is said: "It is true that when a traveler has reached a point where he cannot help himself, cannot extricate himself, and vigilance on his part will not avert the injury, his negligence in reaching that position becomes the condition, and not the proximate cause, of the injury, and will not preclude a recovery; but it is equally true that if a traveler, when he reaches the point of collision, is in a situation to help himself, and, by a vigilant use of his eyes, ears, and physical strength, to extricate himself and avoid injury, his negligence at that point will prevent a recovery, notwithstanding the fact that the trainmen could have stopped the train in season to have avoided injuring him. In such a case the negligence of the plaintiff is concurrent with the negligence of the defendant, and the negligence of each is operative at the time of the accident. When the negligence