(220 S.W.)

lumber yard, there was nothing to obstruct | is too late now," and, as he got onto the the view west or southwest, save and except this 5-foot picket fence, and this lone box car. Exhibit 12 shows the situation, except there seems to be more than one box car, and this exhibit we insert:

main track, the engine struck the truck, with the instant death of plaintiff's husband, as the result. The weight of the evidence shows the speed of the train to have been about 15 miles per hour, although one witness puts Exhibit 12.

ahead. One witness says that he was looking straight ahead. There was no stop between the switch track and the main track, although there was a place there whereat the train would have been visible for 471 feet. By one witness the smoke of the train was seen before it reached this straight track of 471 feet. Sitting in the truck the deceased could look over the top of the picket fence, and see westward, so that after he passed the lumber piles and reached the south driveway of the lumber yard, the box car was his only obstruction. And for the 9 feet between the switch and main track there was no obstruction. On these facts the trial court directed the jury to find for the defendant on account of the contributory negligence of the deceased. The verdict rendered under this instruction the trial court set aside, and granted a new trial. This order is the alleged error, and the only one in the record and briefs.

Deceased, who was an employé of the | it as high as 30 miles. No witness testified American Sash & Door Company, was per- that plaintiff looked otherwise than straight fectly familiar with the situation of this crossing. He had delivered goods to this lumber yard two or three times per week for at least four years prior to the accident. This morning he delivered some goods to the lumber yard for his company. He, as was usual, brought the goods upon a twoton truck, as stated in one place, and a heavy truck in other places of the evidence. He was in the cab of the truck, which was inclosed, but had isinglass openings to the sides, and a windshield front. After delivering his goods to the lumber yard, he started south on Twelfth street from this north driveway, toward the crossing. It was downgrade until he struck the switch or spur track, where it was level until the tracks were crossed. One witness says that deceased stopped his truck about 9 feet from the main track, and then started up slowly. This would make the stop on the switch track, as it is 9 feet from south rail of switch track to north rail of main track. Another says he slowed up his truck and was running slowly. The witness who says he stopped was opposite him on the east side of Twelfth street, and had seen and heard the approaching train. When he saw deceased start to cross, this witness called to him that the train was coming, and deceased replied, "It

[1, 2] II. The cause of action arises in Kansas. The suit is based upon Kansas statutes and Kansas ordinances. The plaintiff (as was her deceased husband) is a resident of Missouri, and invokes the jurisdiction of our courts to enforce a right under Kansas law. By comity we hear and determine such actions; but the Kansas law is the appli

(220 S. W.)

T. & S. F. Rld. Co. v. Townsend, 39 Kan. 115, | he did look, he necessarily saw the motor car 17 Pac. 804; Railroad Co. v. Willey, 60 Kan. coming, and his failure to stop was an equally 819, 58 Pac. 472. With the coming of the effective barrier. The rule is too familiar to automobile, a highly scientific invention and require the additional citation of authorities. easy of control, and with its great weight and "The plaintiff testified that when he was 10 steel construction and its consequent capacity or 11 feet from the first rail he almost stopped, for imperiling the traveling public in case of and looked as far down the track as he could see collision, the courts have been compelled to on account of the obstructions and saw nothing. develop a more rigid rule, or rather to insist The jury evidently did not give credit to this, more rigidly upon the application of the old rule, for the finding already referred to negatives touching the duty of self-preservation imposed the existence of any obstructions to vision beon those about to cross a railway track in such tween him and the motor car after he was a vehicle. Wehe v. Railway Co., 97 Kan. 794, within 20 feet of the track. That the plaintiff 156 Pac. 742 [L. R. A. 1916E, 455]; Jacobs v. had abundant opportunity to see the motor car Railway Co., 97 Kan. 247, 154 Pac. 1023 [L. in time to prevent the collision was emphasized R. A. 1916D, 783, Ann. Cas. 1918D, 384]; by other findings, establishing these facts: Cathcart v. Oregon-Washington R. & Nav. Co. When the plaintiff was 30 feet from the track [86 Or. 250] 168 Pac. 308. his view of the approaching motor car was obstructed by freight cars on another track, but he could see along the track for a distance of 210 feet, a range which obviously would increase as he advanced. The motor car as it came around a curve was going 15 or 16 miles an hour. At a distance of 90 feet from the point of accident the brakes were applied. At a distance of 40 feet the speed had been reduced to 9 or 10 miles.

"In the Wehe Case the view of the driver of the automobile was shut off by a stone wall and buildings. The court said:

""The driver of an automobile cannot recover damages for injury to himself and his machine, where he approaches a railway track at a place at which he cannot see along the track until his automobile is in a place where it will be struck by a passing engine or cars, and does not stop his car to ascertain whether or not there is danger, although he listens before going into the place of danger and does not hear any engine or cars coming.'

(Syl.) "Notwithstanding the defendant's disobedience of the speed ordinance of the city and its possible negligence in permitting weeds to grow on the embankment along its right of way, the special findings show that the plaintiff was guilty of such contributory negligence as bars his right of recovery, and the defendant was entitled to judgment on the special findings of the jury."

These cases cover the rule in cases where the view is obstructed, and the latter case also covers that phase of the rule as to the duty of deceased after he passed the obstruction. But this phase of the rule is more aptly ruled in Atkinson v. Railway Co., 103 Kan. loc. cit. 446, 173 Pac. 914, whereat it is said:

"The petition alleged that as the plaintiff approached the track his view was obstructed from the time he was within 50 yards of it until the distance was reduced to about 30 feet. The jury found that the defendants' employés were negligent in running too fast and in failing to give proper warning. They also undertook to acquit the plaintiff of any negligence, but they found specifically that after he had reached a point 20 feet from the track there was nothing to prevent his seeing the approaching motor car if he had looked. Inasmuch as from the time the plaintiff was within 150 feet of the railroad until he was within 50 feet of it he was prevented by obstructions from seeing whether the track was clear, it was his duty to look for an approaching car after emerging from this obstructed zone and before attempting to cross. Beech v. Railway Co., 85 Kan. 90, 116 Pac. 213. If he failed to do so, he was guilty of contributory negligence as a matter of law and thereby precluded from recovery. If

"It is suggested that the ordinary rule does not apply, because of the character of the motor car and the car it was pushing, in that they were not nearly so high as a locomotive, passenger car or box car. We think the distinction is without effect here. The plaintiff was bound to keep an outlook for whatever vehicle might be approaching on the track, and the cars were not low enough to prevent their being seen, for the jury specifically found that at 20 feet there was nothing to obstruct his view of them.

"The judgment is reversed and the cause remanded with directions to render judgment for the defendants."

So that, if it be conceded that the view of deceased was obstructed until he got his truck far enough to avoid the obstruction of the box car, it then became his duty to stop, look, and listen for a train before entering upon the main track. When it is considered that he was in the street (25 feet from the curb to curb with parkings and sidewalks between the curb and the property line), and that this box car was 60 feet west of the street, it is clear that he had a clear view to the west and southwest for more than 15 feet. As said in these cases, had he looked he could have seen the approaching car. The track was straight for 471 feet and then curved to the southwest, and the evidence indicates that one could see to Thirteenth street, a distance of 606 feet. The rule compelled this deceased to look after he had gotten beyond the obstructions. Had he looked he could have seen. All agree the picket fence would not obstruct his view, seated as he was in the truck. But it is urged that he stopped or nearly stopped before going on the main track. This may be true, or it may not be true; but we take it as true for the purposes of the case. If he stopped he did not look,

because he would have had a plain view of the on-coming train. One of his witnesses saw the smoke of the train before it got to Thirteenth street, 606 feet away. What this witness saw, deceased could have seen. Under the Kansas rule the deceased was guilty of such contributory negligence as to preclude a recovery by plaintiff.

[5] IV. But it is urged that deceased had a right to rely upon the defendant running its train at the rate of six miles an hour, and but for the speed he would not have been killed. There are two answers to this suggestion. First had he looked, he could have seen the speed of the train just as his nonexpert witnesses saw such speed. These witnesses saw and could estimate the speed, and what they saw the deceased could have seen had he looked. If as a fact deceased stopped or checked up his truck, it might have been for some other reason than that of looking for a train. No witness saw him look either to the west or the east. It is, however, sufficient to say that had he looked he could have seen the train and its speed.

[6] The plaintiff in this case cannot rely upon the presumption that deceased knew the ordinance rate of speed. He was a resident of Missouri, and was not presumed to know Kansas law or Kansas ordinances. There is no proof that deceased knew of this Kansas ordinance fixing the rate of speed at six miles per hour, and there is no presumption that a Missourian knows the ordinances and laws of a sister state. Bolinger v. Beacham, 81 Kan. loc. cit. 751, 106 Pac. 1094.

Indictment held to charge a bailee with embezzlement under Rev. St. 1909, § 4552, notwithstanding allegations that the property was feloniously and fraudulently embezzled and converted to bailee's use without the consent of the bailor, "with the felonious and fraudulent intent then and there to deprive the owner" of the use thereof; such allegation merely charging the felonious purpose necessary in any criminal charge.

3. Embezzlement 30-Indictment for embezzlement by bailee held to sufficiently allege ownership.

Indictment charging embezzlement by defendant of note made payable to him, which was "the right in action, valuable security, and property of" specified person, and "was delivered to and came into possession and under the care of" defendant as bailee "of, for, and on behalf of" such specified person, held sufficient to charge embezzlement by bailee in violation of Rev. St. 1909, § 4552, notwithstanding failure to allege indorsement from defendant to such

such other person was not sufficiently pleaded 4. Embezzlement 28-Indictment for embez. zlement of note not required to set out note.

Indictment charging embezzlement by bailee, under Rev. St. 1909, § 4552, of note, without setting out a copy thereof in the indictment, held sufficient, under section 5108, providing that indictment for embezzlement of any instrument may describe it by any name or designation by which it may be usually known, or by the purport thereof, without setting out any copy or fac simile thereof, or otherwise describing the same or its value.

[7] There is a presumption that an inhabit-person, as against contention that ownership in ant of a city knows its ordinances, but the presumption does not go further. We have so ruled in Inhabitants of Palmyra v. Morton, 25 Mo. loc. cit. 597, and Boonville ex rel. v. Stephens, 238 Mo. loc. cit. 357, 141 S. W. 1111; but the rule goes no further. On this question our rule accords with that of Kansas. So that in this case there is no presumption that deceased knew the ordinance rate of speed, and there is no proof that he knew it. Not knowing the ordinance rate of speed, he could not rely upon it in the movement of his truck toward the main track of defendant's railroad. This is more by way of passing, because if deceased looked, he could have seen just what his witnesses saw, and it was his duty to stop, look, and listen under the facts of this case, after he had passed all obstructions. Had he done so, the physical and other facts show he would have seen and heard the on-rushing train.

It follows that the judgment should be reversed, and the cause remanded, with directions to reinstate the verdict of the defend

ant.

5. Embezzlement 26-Indictment must bring accused within terms of statute.

Indictment charging embezzlement by bailee in violation of Rev. St. 1909, § 4552, must so charge the crime as to specifically bring the accused within the terms of such statute; the crime charged being statutory.

6. Criminal law 695(1)-Remark of counsel held insufficient as objection to introduction of testimony.

Remark of counsel "We are not charged with a failure to account" held an insufficient objection to introduction of testimony, being All concur, BLAIR, P. J., in paragraphs 1, merely an expression of opinion as to the rele2, and 3 and in result.

vancy thereof.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(220 S. W.)

7. Criminal law ~~1054(1)—Admission of testimony not reviewable where not excepted to. Admission of testimony will not be reviewed on appeal, where no exception was taken to court's ruling.

8. Embezzlement create a variance.

35-Testimony held not to

In prosecution of bailee for embezzlement by conversion of bailor's note to his own use, where there was proof that bailee had possession of note for the purpose of effecting its sale for the benefit of the owner, and that he breached it as collateral to secure the payment of his own debt, testimony that he had not accounted for the note did not create a variance; such testimony being introduced not to prove crime but to show felonious intent.

9. Embezzlement 39-Testimony of bailee's failure to account for note admissible to show felonious intent.

In prosecution for embezzlement by bailee of note who had pledged note as collateral to secure the payment of his own debt, testimony that bailee had not accounted for the note was admissible to show the fraudulent and unlawful character of the transaction, or the felonious intent with which the act was committed.

Fauntleroy, Cullen & Hay, of St. Louis, for appellant.

Frank W. McAllister, Atty. Gen., and Clarence P. Le Mere, Asst. Atty. Gen., for the State.

WALKER, J. An indictment preferred by the grand jury of St. Louis county in December, 1914, charged the appellant in two counts with embezzlement; in the first with having unlawfully converted to his own use a certain note for $1,500, the property of one C. C. Sanders; in the second with having unlawfully, etc., as a bailee converted said note. After a removal of the case by change of venue to the circuit court of the city of St. Louis a trial was had, resulting in a verdict of guilty under the second count and a sentence of three years' imprisonment in the penitentiary. Appellant seeks a reversal of this judgment.

The second count of the indictment is as follows:

"And the grand jurors aforesaid, under their oaths aforesaid, do further present that Beverly C. Stevens, on or about the day of July, 1913, at the county of St. Louis and state 10. Criminal law 1129(1)—Record to be reof Missouri, became and was the bailee of a viewable without assignment of error under certain right in action and valuable security, to statute must conform to rules of procedure. wit, a promissory note for the sum of $1,500, The statutory mandate under Rev. St. 1909, dated the 17th day of August, 1912, executed by Henry Woods, and payable three years after § 5312, that assignments of error are not necessary, but that appellate court shall render date to the order of B. C. Stevens, said note judgment upon the record before it, has refer- being of the value of $1,500, the right in action, ence to such a record of the trial as is required valuable security, and property of C. C. Sanby the court's rules of procedure to be preserv-rity, and property was delivered to and came ders, which, said right in action, valuable secu

ed for reviewal of the case.

11. Criminal law 1064 (7)-Failure to designate instructions complained of in motion for new trial precludes consideration on appeal.

into possession and under the care of the said Beverly C. Stevens as bailee as aforesaid of, for and on behalf of C. C. Sanders; and the said Beverly C. Stevens, the right in action, valuable security, and property aforesaid did then and there feloniously and fraudulently emMotion for new trial complaining of the bezzle and convert to his own use, without the giving of instructions and the refusal to give consent of the said C. C. Sanders, with the fedefendant's requested instructions, without des-lonious and fraudulent intent then and there to ignating, even by numerical reference, the particular instructions complained of, held not to entitle defendant on appeal to a review of such instructions or court's action in refusing to give requested instructions, in view of Rev. St. 1909, § 5285, requiring that a motion for a new trial shall set forth the ground or causes therefor.

deprive the owner, the said C. C. Sanders, of the use thereof; and so the said Beverly C. Stevens, the said right in action, valuable security, and property of the value aforesaid, the property of the said C. C. Sanders, in the manner and form aforesaid fraudulently and feloniously did take, steal, and carry away and convert the same to his own use, against the peace and dignity of the state."

The appellant resided in Clayton, St. Louis county, and was engaged in the real estate and loan business at the time of the alleged offense. In August, 1912, Sanders, the prosecuting witness, purchased from the appellant a note for $1,500, payable on its face to the appellant; the latter indorsed the note and

Appeal from St. Louis Circuit Court; turned it over to Sanders. This note was Rhodes E. Cave, Judge.

Beverly C. Stevens was convicted of embezzlement, and he appeals. Affirmed.

secured by a deed of trust, which was also at the time turned over to Sanders. After holding the note about 12 months, Sanders took it to the office of appellant and left it

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes