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adjudged, and decreed that this matter be Had he used his instruments he might have referred back to the county Surveyor to found an excess in the first block on his make a new survey, and report the same to way north as he did in a careful survey made this court on or before the next regular term for the city two years before to establish thereof. In making said survey, the sur- street intersections. The surveyor took tesveyor will locate the north line of block 3, timony relating to the distance between the city of Altoona, as originally laid out and section line north of Altoona and the north platted, regardless of the Reed road. Should line of the townsite which he rejected as there be a shortage or excess in the area of indefinite, but this very testimony disclosed said block, as compared with the original the existence of known monuments and cormeasurements thereof on the town plat, lie ners which he did not utilize. The north will distribute the same proportionately line of block 3 having been fixed according to among the different lots of said block." the methods indicated, the surveyor reported When the new survey was undertaken the that it coincided so nearly with the remains center line of Walnut street, lying in the of an old fence that "it might be reasonably neighborhood of a half mile south of the inferred that said fence was set on the north northern limit of the city, was accepted by line of said block 3 at a time when the the parties as a base line. The surveyor corners of said block were yet in place.” added the figures shown on the original plat IIe did not, however, draw the inference, of the townsite, indicating the length of probably because it would have contradicted blocks and width of the streets, and chained his own previous survey. Evidence intronorth the distance so computed for the north duced at the trial tends to show this fence line of block 3. By measuring from the was set south of the line. But whether or center line of the street south of block 3 not this be the fact, original monuments and a deficiency was discovered, which, being known corners cannot be ignored in making apportioned, required the establishment of a survey and data of this character then be the line in question south of a gas well brought forward as proof of its accuracy. claimed by the appellant as being on his The survey of 1902 being ex parte does not lot. Exceptions to the surveyor's report bind the appellee. Evidence was introduced were duly made, and, after a hearing, the tending to show that appellant had no standsurvey was confirmed. Practically all the ing in the district court because he had disevidence offered at the trial indicates that posed of the lot which he claimed, and it the survey was wrong, that the townsite is argued the judgment should be upheld on as actually laid out on the ground is larger the theory the court found in favor of such than the figures on the plat indicate, that an contention. The judgment rendered, howexcess exists in the portion lying north of ever, purports to bind the appellant, and in Walnut street, and that the line between other respects is inconsistent with such a lots 2 and 3 in block 3 should lie north of view. The amount in controversy is shown where the surveyor fixed it.

it. But, aside to be within the jurisdiction of this court from the matter of the weight of the evi- by affidavits. dence concerning the correctness of the sur- The judgment of the district court is revey, not only the evidence, but the report, versed, and the cause remanded. All the of the survey itself shows the surveyor ignor- Justices concurring. ed the cardinal rules for his work in not regarding original monuments and known corners and making his survey conform to

(74 Kan, 560) them instead of the figures on paper. The

CAMERON V. GRIESA et al. primary rules for locating city plats upon

(Supreme Court of Kansas. Nov. 10, 1906.) the ground or lots of a platted city, are the

EXECUTION-NOTICE OF SALE-SUFFICIENCYsame as those for locating deeds upon the INJUNCTION. ground. They are, in order of precedence

The fact that a sheriff's notice of the sale in application, as follows: First. Find the

of real estate on execution fails to describe

with sufficient definiteness the property to be lines actually run and the corners and monu

sold affords no ground for an action by the ments actually established by the original judgment defendant to enjoin the sale. survey. Second. Run lines from known, es- (Syllabus by the Court.) tablished, or acknowledged corners and mon

Error from District Court, Douglas County; uments of the original survey. Third. Run

C. A. Smart, Judge. lines according to courses and distances

Action by Hugh Cameron against Augusmarked on the plat. Avery's Lessees v.

tus H. Griesa and others. Judgment for deBaum's Heirs, Wright (Ohio) 576; Tyler on

fendants, and plaintiff brings error. Af. Boundaries, 282; Greenleaf on Evidence (15th

firmed. Ed.) $ 301, note 9. In this case the surveyor accepted testi

Edw. T. Riling, for plaintiff in error. mony establishing the original northwest cor- W. Nevison, for defendants in error. ner of block 45, but, instead of taking measures from that point, he accepted the MASON, J. An execution was levied upon statement of a witness that it is a certain land belonging to Hugh Cameron, who distance from the center of Walnut street. brought an action seeking to enjoin its sale upon the ground that it was exempt because would have warned him of his danger and it was his homestead. He was denied re

enabled him to escape by his own effort. lief, and prosecutes error.

Whether the prop

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

vol. 31, Master and Servant, $8 801-804.] erty was exempt was a question of fact,

(Syllabus by the Court.) which was heard and determined upon conflicting oral testimony. The finding made by

Error from Court of Common Pleas, Wyanthe trial court did not lack support in the

dotte County; Wm. G. Holt, Trial Judge. evidence, and is not subject to review here.

Action by Charles W. Dyerson against the The injunction was asked upon the further

Union Paciiic Railroad Company. Judgment ground that the sheriff's notice of sale was

for defendant, and plaintiff brings error.

Affirmed. defective in that it failed to specify the county or state in which the property to be sold C. F. & S. D. IIutchings and E. L. Fischer, was situated. If the description was in fact for plaintiff in error. N. II. Loomis, R. W. insuflicient, the defect was a mere irregu- Blair, and II. A. Scandrett, for defendant in larity, for which the defendant had ample error. remely in the ordinary course of procedure

MASOX, J. Charles W. Dyerson was run by objection to the contirmation of the sale. In such case injunction does not lie. 16 Am.

into by an engine and tender of the Union

l'acific Railroad Company and severely in& Eng. Enc. of Law (20 Ed.) 403-105; 3

jured. Ile sued the company for lamages, Freeman on Executions, $ 1:36.

alleging that his injury was occasioned by The judgment is allirmed. All the Justice's

the defendant's negligence. At the trial the concurring.

Court rendered judgment against him upon his petition and his preliminary statement

to the jury. He prosecutes error. 171 Kan. 528)

The material facts disclosed by the plainDYIRSON v. UXION PAC. R. CO.

till's pleading and statement may be thus (Supreme Court of Kansas. Nov. 10, 1906.)

summarized: He had for some time been 1. MASTER AND SERVANT-INJURY TO SERVANT employed by the company in the Kansas City -l'ONTRIBUTORY NEGLIGENCE.

yards. At the time of his injury he was The rule that a railroad employé who is

known as a "car repairer" and one of his engaged in the discharge of a duty, the performance of which requires him to be on or near

duties was to supply cars with ice. Ice for the track, need not keep a strict watch for ap- this use was kept m a box four feet high, proaching trains in order to be deemed to be four feet wide, and eight feet long. placed exercising reasonable care for his own protec

parallel with a double track, four or five feet tion, does not apply to the case of an employé who is injured while attempting to cross a track mere

north of the northermost rail. Between the ly for the purpose of getting from one point to box and the track were three steps, each another; the circumstances not requiring the

right inches high; the edge of the lowest beCrossing to be made at a particular time or

ing about two feet from the rail. For a long place. [Ed. Yote.For cases in point, see Cent. Dig.

time the custom had been to use the north vol. 31, Master and Servant, $8 739, 751.]

track only for west-moving trains or locomo2. SAME.

tives, except when the south track, which The fact that such employé works close was usel by those going cast, was obstructto a track and has frequent occasion to pass ed. This custom was in accordance with a back and forth over it does not relieve him from

rule of the existence of which the plaintiff the requirement that, in order that he may be deemed to be in the exercise of ordinary dili- knew by having some time before, while he gence, he must look in both directions for an was a car inspector, seen in a switch shanty approaching train before undertaking to cross it.

a bulletin in which it was incorporated. A Ed. Note.-For cases in point, see Cent. Dig. short time before the injury complained of vol. 34, Master and Servant, $8 739, 751.]

the rule and practice in this respect had been 3. SAME-LAST CLEAR CIIANCE. The fact that such an employé knows that

reversed, but the plaintiff was not notified it had previously been the rule and practice of

of the change, and had no knowledge of it. the company to run trains along said track On the day of the accident, at about 11 only in one direction except under unusual cir

o'clock in the morning, he was toli to get (umstances, does not relieve him from such re

ready to ice a tourist car which would be in quirement, although a change has been made in such rule and practice without notice to him. shortly. He went to the east end of the ice [Ed. Yote.-For cases in point, see Cent. Dig.

box, where there was a rack for the purpose, vol. 31, Master and Servant, $$ 739, 751.] and crushed a quantity of ice with which 4. SAME.

he filled a bucket, placing it in or near the A plaintiff who has received an injury oc- box. IIe then walked to a point a little west casioned by the negligence of the defendant, but

of the box and waited for the car to arrive. who could have avoided it by the exercise of ordinary care on his own part, cannot recover dam

While standing there, his foreman beckoned ages therefor, although the defendant ought to him from a place south of the tracks and east have discovered (but did not, in fact, discover) his

of where he stood, and pointed to the car peril in time to have prevented the accident, where the plaintiff's negligence continued up to

which was to be iced. He walked between the very moment he was hurt, and where the

the ice box and the track to get his bucket exercise of reasonable diligence before that time of ice, reached it, took hold of it and started

*

to carry it to the car, and while on the low for the exercise of a higher degree of dili

, est step and about to proceed across the genre than is expected of a pedestrian who is track he was struck by the tender of a loco- not an employé. In Wabash R. R. Co. v. motive which was backing east on the north Skiles, 64 Ohio St. 438, 60 N. E. 576, it is track at the rate of 15 or 20 miles an hour said: "It has been laid down as the law without giving a signal of its appro:ch and that passengers who are required to (Toss without keeping a lookout along the track. railroad tracks in getting upon or alighting The track was straight for a qururter of a from trains have the right, from the nature mile west. It was a clear day, and there of their contract, to expect a safe place for was nothing to have prerented the plaintiff that purpose, and may govern themselves acfrom seeing the engine and tender if he had corlingly; but sucli immunity has never been looked. It is, therefore, manifest that the concelled to travelers upon a railroad crossing plaintiff's omission to exercise due caution having equal rights there with the railroad in his own behalf was fatal to his recovery company, and still less to employés in the unless there was something in the peculiar yards or depots of the company. The latter circumstances of the case to take it out of

have no invitation or implied contract, as the general rule, which is thus stated in 23 passengers do have, to perform their duties in A. & E. Encycl. of L. (2d Ed.) 765: "Any a safe place. The very nature of employment one who goes upon or near a railroad track about the tracks of a railroad involves notice is bound, at his peril, to make diligent use of the danger of it, and nobody knows better of his senses of sight and hearing in order than an employé that other employés are liato detect the approach of trains; and if, in ble to be careless in the observance of rules, disregard to this duty to his own safety, he

and lax in the performance of duty. Theresteps upon the track without looking or listen- fore he cannot be permitted to shut his eyes ing, * * he is guilty of such negligence to obvious dangers, and to act with 'full reas to bar an action for the injury." One

liance' that rules will be observed, and a of the exceptions of the rule is stated by the safe passage kept for him, whenever his dusame authority in these terms (Id., p. 768): ties call upon him to cross the tracks. He "Nor does the principle apply to employés

cannot be excused from the rule that ordinary whose duties require their presence upon the prudence requires that a person in the full track, the performance of which duties neces- enjoyment of the faculties of seeing and hearsarily precludes their paying the strictest at- ing should use them when about to pass over tention to the approach of trains."

a railroad track, and that the omission to It is argued that the plaintiff in error falls do so is contributory negligence when it imwithin this exception. If he had been in- mediately results in an injury which might jured while standing upon the steps and en- have been avoided if the injured person had gaged in breaking ice, this might be true, for looked or listened.” Among other cases bearthe performance of that duty might have ren- ing more or less directly upon this proposidered it impracticable for him to keep a tion may be cited Grand Trunk Ry. Co. v. strict watch for passing trains, and if, while

Baird, 94 Fed. 916, 36 C. C. A. 574; Loring so engaged, any part of his body could come v. Kansas City, Ft. S. & M. R. Co., 128 Mo. within the overhang of the cars or locomo- 319, 31 S. W. 6; Elliot v. Chicago, M. & tires, the place was not a safe one to work in. St. P. Ry. Co., 5 Dak. 52:3, 41 N. W. 758. But such was not the case. Whatever danger 3 L. R. A. 363; Elliot v. Chicago, Milwaukee he might have been subjected to while filling & St. Paul Railway Co., 150 U. S. 245, 14 his bucket with ice had passed. He had mor- Sup. ('t. 8.), 37 L. Ed. 1068 ; Abbot v. McCaded to a place of entire safety west of the den, 81 Wis. 563, 51 X. W. 1079, 29 Am. St. ice box, and was awaiting an order to carry Rep. 910: Carlson v. Cincinnati, S. & M. R. the ice to a car. When the order came, he Co., 120 Vich. 481, 79 N. 1V. 688; St. Jean had no duty for the time being but to get v. Boston & M. R. Co., 170 Mass. 213, 48 the bucket and carry it across the track to N. E. 1088; Royskorek v. St. Paul & D. R. where the car stood. Ilowever great a de- Co.. 76. Minn, 28. 78 X T. 872; Chicago, B. gree of promptness or haste might have been & Q. R. Co. v. Yost, 50 Web. 439, 76 X. W. expected of him, it was not essential that he 901. should cross the track at any particular point, It is claimed that negligence cannot be nor could his delaying until the engine and imputel to the plaintiff for his failure to tender had passed have been material. IIe look along the track to the west, because, was simply in the position of one having or- having had no notice of any change, he had a casion to get from one side of the track to right to suppose that the old rule of using it the other. The necessity of his picking up under ordinary circumstances only for westthe bucket before crossing did not preclude bound trains was still in force and would be his glancing up the track to see if it was observed. This consideration, however, did clear. The mere fact that he had habitually not relieve him from the burden of watchfulworked near the track and was under the ness on his own part. It is doubtful whether frequent necessity of crossing it did not jus- there was an obligation on the part of the tify any relaxation of vigilance on his part. company to give notice to the plaintiff of The tendency of the authorities seems rather such a change. The information he had ro to be to regard such circumstances as calling garding the former rule was shown to have

.

been acquired incidentally, and not to have wrong of that character establishes a cause of been officially communicated to him as an action to which negligence of the injured employć. Of a somewhat similar question it party is no defense. This reason is not alis said in L. S. & M. S. R. R. Co. v. IIart, 87 ways given in decisions upon the point, perIll. 529: “In excuse for not using any pre- haps not even generally, but it sometimes is. caution to ascertain whether there was any For example, in Labarge v. Pere Marquette train approaching from the north, appellee R. Co., 134 Mich. 139, 95 N. W. 1073, it is urges the practice of the roads to run all thus expressed: “Where one willfully intrains south from Chicago on the Rock Island jures another, the doctrine of contributory track, and all trains north, toward Chicago, negligence is not involved, because the injury on the Lake Shore track; and that therefore, is not negligent, but intentional. Again, in going upon the Lake Shore track, he was where one is seen in danger, though placed only bound to look south to see if any train there through his own negligence, one who, was coming from that direction. Appellee thus seeing him, omits ordinary care to avert was not justified in relying upon any such an injury to him, is not alone negligent, but practice, as the result showed. The com- is wanton, and, as wantonness of this kind panies had the right to change such practice is akin to willfulness, there is an opportunity at any time, and to run their trains at all for applying the same rule.” times in either direction, and any dependence In a number of cases it has been held that upon such former practice was at appellee's if the engineer, by the exercise of reasonable risk. This practice before did not excuse the diligence, could have learned that danger was exercise of caution and vigilance in looking imminent, but did not do so, the liability of for approaching trains in both directions." the company will be determined in all reBut, if it was negligence to reverse the spects as though he had in fact become aware method of using the tracks without giving of it; the constructive knowledge being apnotice, the situation was no different from parently

parently deemed the equivalent of actual that presented by the company's sending an knowledge. It is difficult or impossible to engine down the track in disregard of any reconcile the decisions upon this and related existing rule, whether relating to direction, questions, or to derive from them any genor speed, or lookout, or signal of warning, or erally accepted statement either of principle of any precaution which a due regard for the or result. Many of them are collected and safety of those about the yards might demand discussed in chapter 9 of Thompson's Comirrespective of formal regulations.

If one

mentaries on the Laws of Negligence, espeabout to cross a railroad track could rely | cially in sections 222–247.

cially in sections 222–247. There seems, howimplicitly upon the company's employés per- ever, to be no sufficient reason why the mere forming their full duty, and if such reliance fact that a defendant is negligent in failing would excuse the use of precaution for one's to discover a plaintiff's negligence, or his own protection, then there could be no room danger, should in and of itself exclude all whatever for the application of the doctrine consideration of contributory negligence. of contributory negligence. It is only when it Take the not unusual situation of a train has been established that the company has being negligently operated, let us say by being been negligent-that is, that some agent has run at too high a speed and without proper omitted to do something which he should have signals of warning being given. Now, any done and which in a sense every one has a one injured as a result of such negligence has right to expect him to perform—that any prima facie a right to recover; but, if his occasion arises to consider whether a person own negligence has contributed to his injury injured has himself been at fault.

then ordinarily, his right is barred. How is Finally, it is contended in behalf of the the situation altered if the railroad employés plaintiff that, even admitting his own want add to their negligence in regard to speed and of care to have been such as would ordinarily signals the negligence of failing to keep a bar a recovery, still he had a right to submit sufficient lookout? The negligence is of the to the jury the question whether the employés same sort, and, if the contributory negligence in charge of the engine by the use of reason- of the person injured prevents a recovery able diligence could not have discovered his when but the two elements of negligence are negligence in time to avert the accident, and present, consistency requires that it should that an affirmative answer would have en- have the same effect, although a third element titled him to a verdict. There is a general is added. If in the present case the plaintiff agreement in the authorities that, where an was entitled to recover in spite of his own engineer actually sees a person in a position of negligence, it must be because the order of its danger and then fails to do what he reasonably occurrence with respect to that of the defendcan to prevent an accident, the railroad com- ant made the latter the proximate cause of pany is held responsible for the resulting in- the injury. This, indeed, is his contention, jury, irrespective of the question of contribu- and to support it reliance is placed upon the tory negligence. A logical and sufficient reason following text, which was quoted with apfor this holding is that such conduct on the proval in Railway Co. v. Arnold, 67 Kan. 260, part of the company's agent amounts to reck- 72 Pac. 837, and the substance of which is to lessness or wantonness, and is analogous to be found also in volume 7 of the Encyclopæa willful and intentional wrong, and like a dia, at page 387: “And upon the principle that one will be charged with notice of that docirine, as is obvious from a consideration which by ordinary care he might have known, of the terins in which it is stated. As originit is held that if either party to an action ally announced it was thus phrased: "The involving the questions of negligence and party who has the last opportunity of avoidcontributory negligence should by the exer- ing accident is not excused by the negligence cise of ordinary care, have discovered the of any one else. His negligence, and not negligence of the other, after its occurrence, that of the one first in fault, is the sole in time to foresee and avoid its consequences, proximate cause of the injury." Mr. Thompthen such party is held to have notice, and his son rewords it as follows: "Where both parnegligence in not discovering the negligence ties are negligent, the one that had the last of the other, under such circumstances, is clear opportunity to avoid the accident, notheld the sole proximate cause of a following withstanding the negligence of the other, is injury.” 7 Am. & Eng. Encycl. of L. p. 387. solely responsible for it; * * * his negliThis may be accepted as a correct statement gence being deemed the direct and proximate of a principle of universal application, accord- cause of it.” Expressions are to be found in ing with both reason and authority, provided the reports seemingly at variance with the the words "after its occurrence" be inter- conclusion here reached, but for the most part preted to mean after the person concerned the decisions holding a defendant liable for had ceased to be negligent. The rule that un- failure to discover and act upon the plaintiff's der the circumstances stated the neglect of negligence were made in cases which were, in one party to discover the omission of the fact, like Railway Co. v. Arnold, supra, or other is to be held to be the sole proximate were decided upon the theory that they fell cause of a resulting injury is not an arbi- within the same rule. There the plaintiff's trary, but a reasonable one. The test is, decedent while riding a bicycle was through What wrongful conduct occasioning an injury his own fault run into by a street car. He was in operation at the very moment it occur- clung to the fender, was carried some 75 red or became inevitable? If just before that feet, then fell under the wheels, and was climax only one party had the power to pre

killed. A judgment against the street car vent the catastrophe, and he neglected to use company was upheld only upon the theory it, the legal responsibility is his alone. If, that after he had reached a position of danhowever, each had such power and each

ger from which he could not extricate himneglected to use it, then their negligence was self-that is, after his negligence had ceasconcurrent, and neither can recover against

ed—the defendant's employés were negligent the other. As is said in the paragraph from in failing to discover his peril and stop the which the foregoing quotation is made: "It car. In Robinson v. Cone, 22 Vt. 213, 223, is only when the negligence of one party is

54 Am. Dec. 67, the writer of the opinion subsequent to that of the other that the rule says: "I should hesitate to say that if it can be invoked." In a note printed in volume appeared that the want of ordinary care on 2 of the supplement to the Encyclopædia, the part of the plaintiff, at the very time of at page 64, many recent cases are cited bear- the injury, contributed either to produce or ing on the subject, and it is said: “This to enhance the injury, he could recover, beso-called exception to the rule of contributory cause it seems to me that is equivalent to negligence (i. e., the doctrine of the last saying that the plaintiff, by the exercise of clear chance) will not be extended to cases ordinary care at the time, could have escaped where the plaintiff's own negligence extend- the injury.” ed up to and actually contributed to the in- The principle thus intimated was embodied jury. To warrant its application there must in a decision in French v. Grand Trunk Ry. have been some new breach of duty on the

Co. (Vt.) 58 Atl. 722, where it is said: “It is part of the defendant subsequent to the plain

true that when a traveler has reached a point tiff's negligence."

where he cannot help himself, cannot extriIn the present case it may be granted that

cate himself, and vigilance on his part will the negligence of the plaintiff began when he

not avert the injury, his negligence in reachwalked between the track and the ice box on

ing that position becomes the condition, and the way to get the bucket, and that the em- not the proximate cause, of the injury, and ployés in charge of the engine were them- will not preclude a recovery; but it is equalselves negligent in not discovering this neg

ly true that if a traveler, when he reaches ligence on his part, and the peril to which it the point of collision, is in a situation to exposed him, and taking steps to protect him. help himself, and, by a vigilant use of his But his negligence, as well as theirs, con- eyes, ears, and physical strength, to extritinued up to the moment of the accident, or

cate himself and avoid injury, his negligence until it could not possibly be averted. His at that point will prevent a recovery, notopportunity to discover and avoid the danger withstanding the fact that the trainmen was at least as good as theirs. His want of could have stopped the train in season to care, existing as late as theirs, was a concur- have avoided injuring him. In such a case ring cause of his injury and bars his recovery. the negligence of the plaintiff is concurrent This determination is entirely consistent with with the negligence of the defendant, and what Mr. Thompson in his work above cited the negligence of each is operative at the (section 240) has styled the "last clear chance" time of the accident. When the negligence

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