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is concurrent and operative at the time of the collision, and contributes to it, there can be no recovery.

To the same effect are these extracts: "There is no testimony suggesting negligence on the part of the driver that does not convict Doyle of an equal or greater degree of negligence. One had no better opportunity to anticipate the accident nor any better means of preventing it than the other. If, therefore, there was negligence, it was concurring negligence, continuous and mutual up to the instant of the accident, which disentitles the plaintiff to recover." Consumers' Brewing Co. v. Doyle's Adm'x, 102 Va. 403, 46 S. E. 391. "In numerous cases it has been held that the plaintiff's conduct is not contributory negligence, if, notwithstanding his negligence, the injury could have been avoided by the use of ordinary care by the defendant. That rule prevails when the plaintiff is in a position of threatened contact with some agency, under the control of the defendant, when the plaintiff cannot, and the defendant can, prevent the injury. It does not apply where both parties are contemporaneously and actively in fault, and by their mutual carelessness an injury ensues to one or both of them. The rule does not apply where, as in the case before us, the negligence of the party injured continues up to the moment of the injury, and was a contributing cause thereof." Robards v. Indianapolis St. Ry. Co. (Ind. App.) 67 N. E. 953. “The plaintiff must show that at some point of time, in view of the entire situation, including the plaintiff's negligence, the defendant was thereafter culpably negligent, and its negligence the latest in the succession of causes. In such case the plaintiff's negligence would not be the proximate cause of the injury. * * The plaintiff not only negligently put himself in a place of peril, but continued negligently to move on to the catastrophe until it happened. The language of the doctrine of prior and subsequent negligence implies that the principle is not applicable when the negligence of the plaintiff and that of the defendant are practically simultaneous." Butler v. Rockland, etc.. St. Ry. Co., 99 Me. 149, 58 Atl. 775), 105 Am. St. Rep. 267.

In Green v. Los Angeles, etc., Ry. Co., 1-43 Cal. 31, 76 Pac. 719, 101 Am. St. Rep. 68, it is said of the rule holding the plaintiff liable notwithstanding the contributory negligence of plaintiff: "It applies in cases where the defendant, knowing of plaintiff's danger, and that it is obvious that he cannot extricate himself from it. fails to do something which it is in his power to do to avoid the injury. It has no application, however, to a case where both parties are guilty of concurrent acts of negligence, each of which, it the very time when the accident orCurs, contributes to it.” Of the same rule

it is said in O'Brien v. McGlinchy, 68 Me. ))): "This rule applies usually in cases where the plaintiff, or his property, is in some position of danger from a threatened contact with some agency under the control of defendants, when the plaintiff cannot, and the defendant can, prevent the injury. * * * But this principle cannot govern where both parties are contemporaneously and actively in fault, and by their mutual carelessness an injury ensues to one or both of them.” In Smith v. Railroad, 114 N. C. 728, 750, 19 S. E. 863, 923, 25 L. R. A. 287, the general rule is thus concretely stated: "Applying the rule which we have stated to accidents upon railroad tracks, it may be illustrated as follows: First. There must be a duty imposed upon the engineer, as otherwise there can be no negligence to which the negligence of the injured party is to contribute. The duty under consideration is to keep a vigilant lookout in order to discover and avoid injury to persons who may be on the track and who are apparently in unconscious or helpless peril. When such a person is on the track and the engineer fails to discover him in time to avoid a collision, when lie could have do so by the exercise of ordinary care, the engineer is guilty of negligence. The decisive negligence of the engineer is when he has reached that point when no effort on his part can avert the collision. Hence, if A., being on the track and after this decisive negligence, fails to look and listen, and is in consequence run over and injured, his negligence is not concurrent merely, but really subsequent to that of the engineer, and he cannot recover, as he, and not the engineer, has the last clear opportunity of avoiding the accident.' If, however, A. is on the track, and while there, and before the decisive negligence of the engineer, he by his own negligence becomes so entangled in the rails that he cannot extricate himself in time to avoid the collision, and his helpless condition could have been discovered had the engineer exerciseil ordinary care, then the negligence of A. would be previous to that of the engineer, and the engineer's negligence would be the proximate cause; he, and not A., having the last clear opportunity of avoiding the injury.

The same result would follow in the case of a wagon negligently stalled, when no effort of the owner could remove it, and there are other cases to which the principle is applicable.” The principle running through these cases is reasonable, is consistent with the general rules that have met with practically universal acceptance, and, if adhered to, will correct a part of the confusion now attending the application of the law of contributory negligence.

The judgment is affirmed. All the Justices concurring.


(74 Kan. 512)

the evidence does not tend to show that any ZIEIIME et al. v. PARISI.

sum was due. A part of the evidence intro(Supreme Court of Kansas. Nov. 10, 1906.) duced was the following from the deposition 1. SALES-CONTRACT- ACCEPTANCE.

of J. W. Barnes: "Q. In your former answer A written order executed and delivered by you mention an order blank and the terms of a retail dealer to a wholesale dealer to ship cer

the same. Please state if this is the order tain articles of merchandise at a specified price,

signed by Susan B. Parish, to be hereto atconstitutes a contract of purchase and sale when the order is accepted by the wholesale

tachell and marked 'Exhibit A.' A. Yes." dealer and the goods are shipped in accordance Exhibit A was then introduced in evidence, with the order.

and, omitting the long list of articles at[Ed. Yote.-For cases in point, see Cent. Dig.

tached which footed up to $196, it reads as vol. 43, Sales, SS 14, 16.]

follow's: “Xo claims for deficiencies will be 2. SAME--CONSIDERATION.

allowed unless made immediately after reThe shipping of the goods is a sufficient consideration to sustain the contract, and, in ceipt of goods. Agreements made with salesan action based upon such contract, it is not men are not binding on us unless specified necessary to entitle him to recover for the plain- on original order returned to us. St. Louis tiff to prove the value of the goods.

Jewelry ('o., Wholesale Jewelers, Broadway 3. SAVE---CONSTRUCTION OF CONTRACT. When the order contains the following:

& Chestnut St., St. Louis, Mo. No goods "Terms: Cash Disc.: 010 days, 3; 20 days, taken back for credit. All goods f. 0. b. St. net 30 days. Special time payments: 14 due Louis. Sold to

Terms: Cash Disc.: in 4 months, 14 due in 6 months, 14 due in 8 months, le due in 10 months. Special time

6% 10 days, 3% 20 days, net 30 days. Special payments must be closed by note within ten time payments: 14 due in 4 months, 14 due dlays"--and the purchaser refuses after inore in 6 montlis. 14 due in 8 months, 14 due in 10 than 10 days has elapsed to execute notes in accordance with the conditions for the pur

months. Special time payments must be chase price, the entire bill becomes due in 30

closed by note within 10 days. List of Goods. days.

[Omitted.] (Syllabus by the Court.)

“Our Warranty. Any jewelry purchased Error from District Court, Cloud County ;

of us that may prove defective or does not W. T. Dillon, Judge.

give reasonable satisfaction may be returned Action by Albert E. Ziehme and Sidney I.

to us any time within 5 years from date, and Redfield, partners under the name of St.

we will forward a new duplicate article in Louis Jewelry Company, against Susan B.

place of it. Any jewelry purchased of us Parish. Judgment for defendant, and plain

that does not sell readily may be exchanged tiffs bring error. Reversed and remanded.

within one year fer new styles and pattern

of any jewelry in our stock. Purchaser must The plaintiffs brought suit before a justice

prepay all express charges on repairs or exof the peace on a written and printed order

change. for $169 worth of jewelry, and alleged that

“Our Advertising Plan. [Omitted.] they shipped the goods as directed, and that

"St. Louis Jewelry Co. the defendant received the same, and that the

"St. Louis Jewelry Co.: Ship us above price thereof was due and unpaid. The de

goods on special time payment. Terms. Sufendant denied on oath the execution of the

san B. Parish, Customer. Salesman, J. W. order, and alleged that the contract was not

Barnes. Post Office, Como. State, Ks. Exfor a purchase of the goods but for an agency

press office, Miltonvale, Ks.” to sell on commission. Also alleged wint of

The defendant was also sworn on behalf consideration and admitted receipt of the

of plaintiffs, and identified the following goods. The plaintiffs obtained judgment,

letter, which was introduced in evidence: and the defendant appealed to the district

"9/12. 1901. Como. Kans. court of the county, Cloud. The case was

"St. Louis Julery Co.--Sir: Yours at hand tried in the district court on the pleadings filed below. After the introduction of the

You must take your julery back or leave it plaintiff's evidence a demurrer thereto was

as your agent ask for you sent an over-stock

of of goods. 37.00 is what the agent said sustained, judgment was rendered for the

would be the amount and you have sent defendant, and the plaintiff's bring the case here.

$196.00 worth. it is out of reason for a

place like this. this gangling is hurting my C. W. Van De Mark, for plaintiff in error.

ttade. 11. Wilmoth, for defendant in error.


Mrs. S. B. Parish." SMITH, J. (after stating the facts). The

C. W. Van De Mark, attorney for plainonly error alleged which need be considered

tiffs, also testified, in substance, that in the is the sustaining of the demurrer to plain- early part of November he went to Como tiff's evidence and rendering judgment for

and talked to the defendant about this bill the defendant.

h he had for collection, and presented The demurrer was upon three grounds:

notes which he had prepared for the purchase (1) That there was no evidence tending to ! price of the goods, and she refused to signi prove the execution of the written order. them. The evidence tends to show the execu(2) That the evidence does not tend to prove tion of the oriler. Proof of the acceptance of any consideration for the contract. (3) That, the order and the shipping of the goods in ac

cordance therewith shows a completed contract and a consideration therefor. The conditions of the order were that the bill became due in 30 days unless time payments were secured by notes due in four, six, eight, and ten months, each for one-fourth of the amount of the bill. We think the evidence while meager was sufficient to entitle the plaintiffs to recover, and that the court erred in sustaining the demurrer and in rendering judgment for the defendant.

The judgment is reversed, and the case is remanded, with instructions to grant a new trial. All the Justices concurring.

(4 Kan. 551)

CROSS v. HERMAN et al. (Supreme Court of Kansas. Nov. 10, 1906.) TAXATION–Tax DEED-VALIDITY.

A tax deed, which has been recorded more than five years, is not void on its face, merely because it shows the sale of two or more tracts of land together, when such tracts appear from their description, as given in such deed, to be contiguous.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 45, Taxation, $ 1354.] (Syllabus by the Court.)

Error from District Court, Finney County; Wm. Easton Hutchison, Judge.

Action by James Cross against D. W. Herman and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Hoskinson & Hoskinson, for plaintiff in error. Sutton & Scates and W. R. Hopkins, for defendants in error.

or two or more tracts of land not contiguous, is void. Hill's Heirs v. Dodge, 18 Kan. 277; Mathews v. Buckingham, 22 Kan. 166; Wyer v. La Rocque, 51 Kan. 710, 33 Pac, 517; Manker v. Peck (Kan. Sup.) 81 Pac. 171. But the sale of two or more tracts, together, which are adjoining and susceptible of being used as one tract, may be void. McQuesten V, Swope, 12 Kan. 32; Cartwright v. McFadden, 24 Kan. 662; Dodge v. Emmons, 34 Kan. 732. 9 Pac. 951; Mack v. Price, 35 Kan. 141, 10 Pac. 521.

In the case of Cartwright v. McFadden, supra, Justice Valentine said: "The court below held that the tax deed is void upon its face; and this holding was based upon the ground that the deed itself shows upon its face that the property which it purported to convey is composed of several separate and distinct tracts of land, and that they were all sold together in bulk, and not separately, for the taxes severally due upon each of them. Now, it is true that the tax deed does show upon its face that all the lots which it purports to convey were sold together and in bulk; and if it also shows that these lots are separate and distinct tracts of land, not contiguous to each other, then, of course, the tax deed is void upon its face. Hall's Heirs v. Dodge, 18 Kan. 277. But does the tax deed show this? We think not. We think that it furnishes some evidence to this effect, but still that the evidence is not complete or sufficient. The property being divided into lots, and these lots not being numbered consecutively by units, we think furnishes some evidence that the lots are not contiguous; but this evidence, we think, is not conclusive or even satisfactory of the fact. The lots might very well all be in one body, notwithstanding this evidence. This kind of evidence might sometimes, along with other circumstances, furnish the foundation for a finding that the lots are not contiguous; but alone

; and against the statutory presumptions in favor of the regularity and validity of the tax deed, and of all the prior proceedings, it cannot sufficiently prove any such fact.” The lands described in the deed under consideration lie in a compact form, and together constitute, in form and size, an ordinary quarter section. The deed has been of record more than five years, and therefore its language will be liberally construed in favor of its validity. Sanger v. Rice, 43 Kan. 580, 23 Pac. 633; Neenan v. White, 50 Kan. 639, 32 Pac. 381; Penrose v. Cooper (Kan. Sup.) 81 Pac. 115. Under this rule, we are unable to say that the description given in the tax deed embraces two tracts so separated as to make the deed void. No other objection having been made to the validity of the deed, we conclude that it is sufficient to convey the land in controversy. This disposes of the case, and it is unnecessary to consider the objections urged against the other tax deed under which the defendants claim title.

GRAVES, J. This is an action of ejectinent. The plaintiff in error owns the original or patent title to the land in controversy, and to recover possession thereof he commenced this action in the district court of Finney county, October 9, 1903. The defendants were in possession of the land claiming to be the owners thereof by virtue of two tax deeds. The first of these tax deeds, in point of time, was executed to D. W. Herman and J. W. Herman, jointly, on August 3, 1897, and was recorded August 5, 1897. The plaintiff in error contends that this deed is void on its face for the reason that it appears therefrom that two separate tracts of land were sold together. The land conveyed by this deed is described therein as follows: *N. 2 of N. E. 4 of section fifteen (15), township twenty two (22) range twenty eight (28) and the S. 2 of S. E. 4 of section ten (10) township twenty two (22) range twenty eight (28) situated in Finney county, state of Kansas.” From the recitals in this tax deed it appears that at the tax sale in 1893, this land, for want of bidders, was sold to the county as one tract, and as above described, for the aggregate sum of $17.04; that being the whole amount of taxes, interest, and costs then due thereon. The sale together of more than one separate and distinct tract, as two or more town lots in different blocks,

The district court decided that the plaintiff do so.

do so. On September 26, 1865, another treaty could not recover, and dismissed the action was made between the United States and the at his costs. This judgment is affirmed. All same Indian tribes, which was amended in the Justices concurring.

1866 and finally proclaimed on January 21, 1867. By the first article the Indians grant

ed and sold to the United States a portion 174. Kan. 494)

of their reservation some 50 by 30 miles in MISSOURI, K. & T. RY. CO. v. WATSON.

extent, including the land in controversy. (Supreme Court of Kansas. Nov. 10, 1906.)

The United States agreed to pay $300,000 for 1. PUBLIC LANDS—RAILROAD GRANTS-BONA the granted territory, to place the purchase FIDE PURCHASERS.

fund to the credit of the Indians in the The act of Congress of July 26, 1866 (14 Stat. 289, c. 270), granting to the Union Pacific treasury of the United States, to pay interest Railroad Company, Southern Branch (now the upon it at the rate of 5 per cent. per annum, Missouri, Kansas & Texas Railway Company) and to expend the interest for the benefit of a right of way 200 feet wide through what came to be known as "Osage Ceded Lands" in this

the Indians as the Secretary of the Interior state, was an absolute grant in præsenti, vest

might direct. The same article of the treaty ing title from the date of the passage of the contains the following provision : "Said lands act, and all persons subsequently purchasing

shall be surveyed and sold, under the direcany of such lands did so subject to, and with notice of, the railroad company's rights.

tion of the Secretary of the Interior, on the [Ed. Note.-For cases in point, see Cent. Dig.

most advantageous terms, for cash, as public vol. 11, Public Lands, § 234.]

lands are surveyed and sold under existing 2. SAME-LOCATION OF ROAD -APPROVAL.

laws, but no pre-emption claim or homestead Under the facts of this case, the approval settlement shall be recognized; and after by the President of the United States of the

reimbursing the United States the cost of said definite location of the Missouri, Kansas & Texas railroad through the lands mentioned

survey and sale, and the said sum of three will be presumed.

hundred thousand dollars placed to the credit 3. ADVERSE POSSESSION-RAILROAD RIGHT OF of said Indians, the remaining proceeds of WAY.

sales shall be placed in the treasury of the Private individuals cannot acquire title by adverse possession to any portion of the right

United States to the credit of the 'civilization of way named.

fund' to be used, under the direction of the [Ed. Note.-For cases in point, see Cent. Dig. Secretary of the Interior, for the education vol. 1, Adverse Possession, 88 14, 24, 43.]

and civilization of Indian tribes residing (Syllabus by the Court.)

within the limits of the United States." 14

Stat. 687. On April 10, 1869, Congress Error from District Court, Labette County ;

adopted a resolution authorizing any bona Thos. J. Flannelly, Judge.

fide settler having certain qualifications and Action by the Missouri, Kansas & Texas

residing upon any portion of the lands ceded Railway Company against William Watson.

to the United States by the Osage Indians Judgment for defendant, and plaintiff brings

by virtue of the treaty of January 21, 1867, error. Reversed.

to purchase such lands within two years from John Madden and W. W. Brown, for plain- the passage of the act in quantity not exceedtiff in error. M. E. Williams, for defendant ing 160 acres at the price of $1.25 per acre. in error.

The resolution contained the following pro

viso: "Provided, however, that nothing in BURCH, J. The action in the district

this act shall be construed in any manner court was one of ejectment brought by the

affecting any legal rights heretofore vested in railway company for land claimed as a part

any other party or parties.” 16 Stat. 55, of its right of way. Relief was denied on

Resolution No. 18. The grantors of the dethe ground the railway company had never

fendant settled upon the quarter sections obtained title while the defendant occupant which include the land in controversy in 1868, held title both by chain of conveyances from but it is agreed they purchased in the year the United States and by adverse possession. 1870 under the treaty of 1867 and the con

The facts upon which the judgment is based gressional resolution of 1869. Patents were are either found by the court or agreed to duly issued which, however, contained no exby the parties and require consideration in ceptions of the railroad right of way. the light of certain treaties between the On July 26, 1866, the Congress of the UnitUnited States and the Osage Indians, acts of ed States passed an act (14 Stat. 289, c. 270) the Congress of the United States, and deci- granting lands to the state of Kansas to aid sions of the federal Supreme Court. The the Union Pacific Railroad Company, Southland in controversy as now surveyed is part ern Branch, in the construction of a railway of an even-numbered section of what are and telegraph line from Ft. Riley, or near known as the "Osage Ceded Lands" lying in that military reservation, down the Neosho the southern part of the state. By the river to the southern boundary of the state, treaty of June 2, 1825, between the United

with a view to the extension of the line States and the Great and Little Osage tribes through the Indian Territory to Ft. Smith, of Indians a reservation was established Ark. The grant consisted of odd-numbered which the Indians were entitled to occupy sections lying within certain limits on each for their own use as long as they chose to side of the road as it should be definitely

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located and provided as follows: "But in


lowing conditions: "And be it further enactrase it shall appear that the United States : ed, that the grant of lands hereby made is have, when the line of sail road is definitely upon condition that said company, after the locatel, sold any section, or any part there construction of its road, shall keep it in re11, granted as aforesaid, or that the right of Dair and use, and shall at all times transport pre-emption or homestead settlement has at- troops, munitions of war, supplies, and pulltached to the same, or that the same has lic stores upon its road for the government been reserved by the United States for any of the l'nited States, free from all costs or purpose whatever, then it shall be the duty | charge therefor to the government, when reof the Secretary of the Interior to (lll-e to quired to do so by any department thereof." be selected for the purposes aforesaid, from “And be it further enacted, that the United the public lands of the United States nearest States mail shall be transported on said road, to the sections above specified, so much land and under the direction of the Post Office as shall be equal to the amount of such Department, at such price as Congress may lands as the United States have sold, re- by law provide: Provided, that until such served, or otherwise appropriated, or to which price is fixed by law the l'ostmaster General the right of homestead settlement or pre-emp- i shall have power to fix the compensation." tion has attached as aforesaid, which lands, The grantee accepted the terms of the act, thus indicated by the direction of the Secre- i and by a change of name duly authorized the tary of the Interior, shall be reserved and 'plaintiff, the Missouri, Kansas & Texas Railheld for the state of Kansas for the use way Company, became entitled to its benefits of said company by the said secretary for the and subject to its burdens. purpose of the construction and operation It is agreed that the road was constructed, of said railroad, as provided by this act." and that since its completion it has been Section 4 of the act reads: "And be it fur- used by the plaintiff in the discharge of its ther enacted, that as soon as said company duties as common carrier engage in shall file with the Secretary of the Interior state and interstate commerce. The court maps of its line, designating the route there- finds that the road was definitely located of, it shall be the duty of said secretary to prior to 1870, and it is not disputed that, withdraw from the market the lands grant- i on January 8, 1868, the Secretary of the ed by this act, in such manner as may be best | Interior transmitted to the Commissioner of (alculated to effect the purposes of this act the General Land Office a map showing the and subserve the public interest." In addi- definite location of the plaintiff's road tion to land granted to the state of Kansas by through the land in controversy and ordered way of aid in the construction of the pro- him to instruct the local land officers to withposed road a right of way was granted to holl, on account of the railway, lands falling the company itself, not only through the to the grant within the country ceded by the ordinary public lands, but likewise through : Indians, and that, on July 25, 1870, the Secreserved lands, as appears by the following retary of the Interior transmitted to the extracts from the law: “That the right of 1 Commissioner of the General Land Office a way through the public lands be, and the maline il certificate of the Governor of same is hereby, granted to said Pacific Rail- ; the state of Kansas showing that the road road Company, Southern Branch, its succes- i had been constructed and equipped as resors and assigns, for the construction of a quired by the act of Congress. No apl'ailroad as proposed: and the right is hereby proval by the l’resident of the United States given to said corporation to take from the of the route as definitely located was offered pullic lands adjacent to the line of said road in evidence. The defendant attempts to sup)material for the construction thereof. Said port his right to the land by the fact that it Way is granted to said railroad to the extent was occupied by the original patentees beof one hundred feet in width on each side fore the plaintiff's road was definitely locatof said road where it may pass through the ed. Before the act of April 10, 18!!), the oc*public domain; also all necessary ground for · (upation of Osage (edell Land gave no right station buildings, workshops, depots, machine to it whatever. Homestead and pre-emption shops, Switches, side tracks, turntables and settlements were expressly forbidden and the water stations." "That any and all lands only method of acquisition possible under heretofore reserved to the United States by the treaty of 1867 was by purchase for cash. any act of Congress, or in any other manner | There were valid restrictions upon the gorly competent authority, for the purpose of ernment's power of alienation. Wood v. M., aiding in any objert of internal improvement K. & T. Ry. Co., 11 Kan. 323, opinion, 346. or other purpose whatever, be, and the same There being no law recognizing the rightfulare hereby, reserved and excepted from the ness of the occupation by white men of the operation of this act, except so far as it may Indian land, settlement there was no better be found necessary to locate the route of said than a trespass. The purpose of the act of road through such reserved lands, in which 1969) was to prevent speculators from acquircase the right of way, two hundred feet in ing the land and to preserve it for actual setwidth, is hereby granted, subject to the ap- tlers who would cultivate and improve it; proval of the President of the United States." lience settlement was made a part of the

The entire grant was made upon the fol- purchaser's qualification precisely like citizen


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