may testify that they believe they can render an impartial verdict. Morton V. State, 1 Kan. 468; State v. Brown, 15 Kan. 400; State v. Miller, 29 Kan. 43; State v. Beatty, 45 Kan. 492, 25 Pac. Rep. 899. The error of the court in overruling the challenges is material, as three of the obnoxious jurors were retained to try the cause, and the defendant exhausted all his peremptory challenges in an effort to exclude from the jury those who were objectionable to him. We cannot overlook this error, or treat it as immaterial, on account of the absence of the testimony. In some cases, errors in the overruling of challenges have been held insufficient to reverse, where, upon the whole record, it appeared that no prejudice resulted; but it has never been ruled that errors of this character are only available when all of the evidence has been preserved. Defendant was entitled to an impartial jury, constituted as the law prescribes, and, when he has brought so much of the record as discloses that he has not been accorded a trial by a legally constituted jury, he has shown affirmative error, which entitles him to a reversal, unless something contained in the record shows the erroneous ruling to be unprejudicial. Madden v. State, 1 Kan. 340; State v. Snyder, 20 Kan. 306; Pracht v. Whittridge, 44 Kan. 710, 25 Pac. Rep. 192; Ehrhard v. McKee, 44 Kan. 715, 25 Pac. Rep. 193.

It appears from the record that there was a trial upon the merits, and, further, that some of the jurors had previously formed and expressed opinions upon some of the issuable facts that they were impaneled to try. For this reason the judgment will be reversed, and the cause remanded for another trial. All the justices concurring.

(52 Kan. 180)

STATE v. GARRISON. (Supreme Court of Kansas. Nov. 11, 1893.) BURGLARY-WHAT CONSTITUTES BUILDING.

A buggy house "in which goods, wares, merchandise, and other valuable things are kept and deposited" is a building in which burglary may be committed, under section 68, c. 31, Gen. St. 1889.

(Syllabus by the Court.)

Appeal from district court, Johnson county; John T. Burris, Judge.

George Garrison was convicted of crime, and appeals. Affirmed.

H. L. Burgess, for appellant. S. D. Scott, for the State.

ALLEN, J. The defendant was convicted of burglary in the second degree, and larceny. The burglary is charged to have been committed in a buggy house, in which there were goods, wares, and merchandise. Appellant's counsel contend that a buggy house is not included among the buildings in which burglary may be committed. The section of the statute under which the defendant was

prosecuted reads as follows: "Sec. 68 Every person who shall be convicted of breaking and entering in the nighttime, first, any building within the curtilage of a dwelling house, but not forming a part thereof; or, second, any shop, store, booth, tent, warehouse or other buildings, or any boat or vessel, in which there shall be at the time some human being, or any goods, wares, or merchandise, or other valuable thing, kept or deposited, with intent to steal or commit any felony therein, shall on conviction, be adjudged guilty of burglary in the second degree." It is said that the term "other buildings" has relation to the kinds of buildings specifically mentioned in the statute, and can only be held to include buildings of the same character. Conceding this contention to be correct, we think a buggy house in which goods are kept is fairly included by the terms of the statute. In State v. Comstock, 20 Kan. 650, it was held that burglary might be committed in a saloon building. In State v. Groning, 33 Kan. 18, 5 Pac. Rep. 446, the defendant was convicted of burglary in a granary. Both these convictions

were sustained by this court. The term "warehouse," when used in its popular sense, is very comprehensive. It is defined by Webster as a storehouse for goods. We think a buggy house in which goods are stored is certainly a building of the same kind as a warehouse, if not properly included within the term "warehouse." The judgment will be affirmed. All the justices concurring.

1. A written contract, whereby a vendor of articles of personal property, like wagons, cultivators, plows, harrows, and drills, agrees to deliver a lot of such articles to a retail dealer for sale, containing the provision "that the ownership of the personal property shipped under the contract is to remain in the vendor until they are fully paid for in cash," is an instrument in writing, evidencing the conditional sale of personal property.

2. Chapter 255, Sess. Laws 1889, regulating the recording of "title notes or evidences of conditional sales," applies to all instruments in writing or promissory notes therein referred to, whether in existence at the time that act went into force, or thereafter executed, with the limitation, however, that there must be a reasonable time, after the statute went into force, for the holders of such notes or instruments then in existence to comply with its provisions; and, held, that two or three days after the law went into force would not be a reasonable time for the holder of such an instrument, living in Kansas City, Mo., to deposit the same with the register of deeds of Thomas county, in this state, where the property was kept. (Syllabus by the Court.)

Error from district court, Thomas county; Charles W. Smith, Judge.

Action by the Moline Plow Company against M. W. Witham, sheriff, and Ramsey & Ramsey, for the possession of goods sold by plaintiff to Ramsey & Ramsey under an agreement that the ownership should remain in the seller until paid for, and levied on by Witham at the instance of attaching creditors of Ramsey & Ramsey. There was judg ment for defendants, and plaintiff brings error. Reversed.

J. E. Campbell and Jos. A. Gill, for plaintiff in error. Lessenger & Beckwith, J. L. Loar, and Geo. W. Goodsoe, for defendants in error.

HORTON, C. J. Under the written contract between the Moline Plow Company and Ramsey & Ramsey, the ownership of the goods in controversy was to remain in the plow company until they were fully paid for in cash. The goods levied upon were not sold at retail, or otherwise disposed of, by the Ramseys, or either of them; but their creditors, on the 27th and 28th of May, 1889, levied upon the goods under writs of attachment, to secure, if possible, their claims. Within the prior decisions of this court, the attaching creditors cannot be preferred to the Moline Plow Company. They cannot be regarded as purchasers in good faith, for value. Standard Implement Co. v. Parlin & Orendorff Co., 51 Kan. 33 Pac. Rep. 360, and cases cited; 5 Field, Briefs, § 265. In Poorman v. Witman, 49 Kan. 697, 31 Pac. Rep. 370, about all that was decided was that there was no evidence to establish the fact that the property replevied "was in stock when the demand was made." Therefore, the principal question in this case is of the effect of chapter 255, Sess. Laws 1889, regulating the recording of "title notes or evidences of conditional sales" upon the written instrument or contract of the plow com-. pany and the Ramseys. That act took effect on the 25th of May, 1889, the date of its publication in the statute book. Section 1 reads: "That any and all instruments in writing, or promissory notes, now in existence or hereafter executed, evidencing the conditional sale of personal property, and that retains the title to the same in the vendor until the purchase price is paid in full, shall be void as against innocent purchasers, or the creditors of the vendee unless the original instrument, or a true copy thereof, shall have been deposited in the office of the reg ister of deeds in and for the county wherein the property shall be kept. and when so deposited shall be subject to the law applicable to the filing of chattel mortgages; and any conditional verbal sale of personal property reserving to the vendor any title in the property sold shall be void as to creditors and innocent purchasers for value."

It was decided in Jackson v. Lamphire, 3 Pet. 280, that "it is within the undoubted powers of state legislatures to pass recording

acts by which the elder grantee shall be postponed to a younger, if the prior deed is not recorded within a limited time; and the power is the same whether the deed is dated before or after the recording act. Though the effect of such a deed is to render the prior deed fraudulent and void against a subsequent purchaser, it is not a law violating the obligation of contracts. So, too, is the power to pass limitation laws. Reasons of sound policy have led to the general adoption of laws of this description, and their validity cannot be. questioned. The time and manner of their operation, the exceptions to them, and the acts from which the time limited shall begin to run, will generally depend on the sound discretion of the legislature, according to the nature of the titles, the situation of the country, and the emergency which leads to their enactment. Cases may occur where the provisions of a law on these subjects may be so unreasonable as to amount to a denial of a right, and to call for the interposition of this court." See Manufacturing Co. v. Richards, 69 Wis. 643, 35 N. W. Rep. 40. Therefore, we think, upon the authorities, that said chapter 255 applies to all the instruments in writing or promissory notes therein referred to, whether in existence at the date the act took effect, or thereafter executed, with the limitation, however, that there must be a reasonable time after the statute went into effect for the holders of such instruments or notes then in existence to comply with its provisions. Had the act been published on March 1, 1889,-the date of its approval.-or so soon afterwards as to have given the plow company, having its office in Kansas City, Mo., reasonable time to deposit the original contract, or a true copy thereof, in the office of the register of deeds of Thomas county, before the levies of the attaching creditors, it would govern; and then, if such deposit had not been made, the contract would have been void, as against the creditors. The act did not go into effect until its publication, on the 25th of May, 1889. The plow company was not required to deposit its contract for record until the act went into force. It had no knowledge when the act would go into force until its actual publication, on May 25, 1889, and the attaching creditors levied their writs on the 27th and 28th of May, 1889. There was no reasonable time between the 25th of May, 1889, and the levies of the attachments for the deposit of the contract for record. As there was not reasonable time after the act went into force to deposit for record the contract, it would be an impairment of the contract to hold that the said chapter 255 applies in this particular case. In Burns v. Simpson, 9 Kan. 658, it was observed: "A statute of limitations that at once destroys the right of action would undoubtedly be held to impair the obligation of the contract. But it seems well settled that the legislature may apply

limitations as well to causes of action already existing as to those to be afterwards created, and that the law may lessen the time in which an action may be brought, so that a reasonable time be allowed for the commencement of the action. *** It has been held that statutes that fix a limitation that has already run, and yet give a reasonable time in which the action may be commenced before the statute operates, is not unconstitutional. Smith v. Morrison, 22 Pick. 432; Holcombe v. Tracy, 2 Minn. 241, (Gil. 201;) Wilcox v. Williams, 5 Nev. 206. The defendant in error argues from this doctrine that the law of 1868 did not destroy the right of action at once. It was passed on the 25th of February, and did not go into effect until its publication, on the 31st oî October thereafter. But it did not go into force because it was not published, and not because the legislature had fixed that time when it should go into force. Had the statutes been published in a week, then the law would have been in force one week after its passage. This would not have been a reasonable time for bringing suit. The time given depended upon the public printer, and not on any action of the lawmaking power." The principles applicable to the power of the legislature to pass limitation laws also apply to the passage of recording acts, but in either case the statute must give reasonable time in which the action may be commenced or the instrument recorded, before it operates upon rights of actions, or existing written instruments. The legislature cannot destroy the right of action, or render void a valid instrument, if no reasonable time is given to comply with the terms of limitation or registration. The judgment of the district court will be reversed, and, upon the agreed statement of facts, judgment will be directed for the plaintiff below,-the plaintiff in error. All the justices concurring.

(25 Or. 32)

BECK v. PORTLAND & V. RY. CO.. (Supreme Court of Oregon. Nov. 20, 1893.) RAILROAD COMPANY-NEGLIGENCE-CONTRIBUTORY

NEGLIGENCE-INSTRUCTIONS.

1. In an action for injuries from being struck by a train while walking along a railroad track in a cut in a street with an embankment on each side, an instruction that it is the duty of men walking on the track, on discovering the approach of a train, to leave the track, if possible, and it is negligence if they fail to do so; that, if plaintiff knew the train was approaching, and could have gotten away from it, even by throwing himself prostrate on the embankment, and failed to use such means of selfpreservation as were obvious and were at hand, he was negligent,-is not erroneous, where there is evidence to warrant it.

2. Nor is it error, in such case, after evidence that there was another road which plaintiff could have chosen, to charge that a man cannot go deliberately, and with his eyes open, into danger, and then complain of another that he is injured; that it is his duty to use all ordinary means for self-preservation, and if he v.34P.no.9-48

fails to do that,-if there is a choice of ways for him to pass, one safe and the other dangerous, and, with knowledge of the situation, he takes the latter, he must abide the consequences.

3. The mere fact that a train which caused an injury to a person on the track was running at a speed prohibited by an ordinance, which merely prescribed a penalty for its violation, is not, per se, conclusive proof of negligence, rendering the railroad company liable, but such violation must have been the proximate cause of the injury; and whether the company is liable is for the jury, and not the court, to say.

Appeal from circuit court, Multnomah county; E. D. Shattuck, Judge.

Action by Michael Beck against the Portland & Vancouver Railway Company for personal injuries. From a judgment for defendant, plaintiff appeals. Affirmed.

B. M. Smith and V. K. Strode, for appellant. Geo. H. Durham, for respondent.

LORD, C. J. This is an action to recover damages for personal injuries alleged to have been sustained by the plaintiff, and caused by the negligence of the defendant. The answer denied the alleged negligence, and set up as a defense the contributory negligence of the plaintiff, which the reply denied. The trial resulted in a verdict and

judgment for the defendant, from which this appeal was taken. The errors assigned relate, principally, to certain instructions given by the court, to which exceptions were reserved. Before proceeding to discuss the points raised, a brief outline of some of the facts is essential, to show the location of the street, the nature of the cut through which the cars passed, where the accident occurred, and the circumstances connected therewith. Other facts, as far as necessary, will be stated in connection with the points discussed.

The record discloses that the defendant's railroad passes along Margaretta avenue, a street of the city of Albina, now within the corporate limits of the city of Portland; that the accident occurred on the line of said railroad, at a point on this avenue where there is a cut about 150 feet in length, with banks varying in height from 3 to 6 feet; that neither at the time of such accident, nor prior thereto, had any sidewalk been laid on said avenue, but that it had been the habit of pedestrians to use the track through the cut as a pathway, of which the defendant had notice; that on the night of the accident, at about 11 o'clock, the plaintiff was found in an unconscious state, lying near the middle of said cut, by the side of the railway track, very seriously injured, whence he was taken to the hospital, etc. The plaintiff testified that at about 9 or 10 o'clock on the night of the 24th day of September, 1891, he was walking along the railroad track, and that, when he was near the middle of said cut, one of the defendant's trains, drawn by a dummy or locomotive, suddenly approached him, running at a speed of 18 or 20 miles an hour, from a northerly direction, without

having any headlight, or giving any warning or signal, and that he had no notice of its ap proach until it was within 100 feet of him; that he endeavored to stop the train by hallooing, and tried to escape, but owing to the fact that he was very much excited, and in great fear at his perilous position, he failed to avoid the train, which struck him, causing the injuries alleged; that, before he entered the cut, he looked up and down the railway track, and also listened for the approach of any trains that might be coming, and that he did not see or hear any; that the track was a tangent for a considerable distance either side of said cut where the accident occurred; and that the night was dark and foggy. The defendant's evidence tended to show that the headlight on the train was lighted at the time the accident occurred; that the train was running on schedule time, which was about 11 miles an hour; that it was a clear, starlight night; that the engineer and fireman were attending to their regular duties, and keeping a lookout; and that they knew nothing of the accident until they were notified of the same, about midnight. A city ordinance prohibiting cars from running at a greater rate of speed than eight miles an hour was specially pleaded in the complaint, and not denied in the answer.

We are now prepared to consider those portions of the charge to which exceptions were taken. The portion first excepted to is as follows: "When men walk laterally upon a railroad track, it is their duty to look and listen for the approach of trains. It is their duty, if they discover a train approaching, if possible, to leave the track. It is their duty to do it. It is not the time for them to remain, and speculate about the probabilities of being run over, but, if it is in their power to leave the track, it should be done. If they fail to do it, when possible, it is negligence, on the part of such persons. If you believe from the evidence adduced in this case that this plaintiff was aware of the approach of that train by any of the modes that I have mentioned, if he, in fact, knew that the train was approaching, and that he could have got away from the train, even though it might be by throwing himself prostrate upon the incline of the cut, and he failed to use such means of self-preservation as were obvious and were at hand, then he should be charged guilty of negligence that contributed to the injury which he sustained." The next assignment of error is so closely akin to the one just stated that it will be convenient to consider them together. It is as follows: "A man cannot go deliberately, and with his eyes open, into danger, and then complain of another that he is injured. It is his duty to use all the ordinary means which men do use for their preservation, and if he fails to do that, if there is a choice of ways for him to pass, one a way of safety, and one a way of danger, and he is apprised of the situation

in that regard, and takes the way attended with danger, he must abide the consequences of his hardihood." The objection to the first instruction is that it more properly applies to a person walking along a railroad track, where there is no grade or obstacle to prevent his escape from an approaching train, who is injured by collision therewith, than to one walking on a track in a cut through which trains run, where escape is difficult, and the perils of one's position, when realized, would be apt to destroy his equanimity of judgment, and thereby increase his liability to injury. Hence, it is claimed that the instruction, as given, holds the plaintiff to a degree of care and circumspection of conduct that the circumstances of the case do not warrant. The objection to the other instruction is that it assumes that the defendant was not responsible for the perilous position in which the plaintiff was placed when the accident occurred, on the theory that if the plaintiff was familiar with the cut and its surroundings, the time when the trains passed, the difficulty of getting out of their way, and the dangers that would attend the journey through it, and knew there was another road, which was safe, and parallel with it, and he chose to pursue the dangerous way, he should be deemed to assume the risks incident to it, and should take the consequences of his hardihood. This objection includes an instruction not excepted to, but which connects the two already set out, and helps to show their relationship, and is so treated in the briefs. This instruction is as follows: "Furthermore, there is another aspect of this case: If this plaintiff was well acquainted with the situation of that railroad, with this cut which has been talked about in the evidence, with the time at which the trains were running, with the narrowness of the cut, and the difficulty of getting out of the way of the train; I say, if you are satisfied that he was apprised of all these things.-knew them all,-knew the danger that would attend a journey through that cut on the track of the road, he should be deemed to have taken the risk of the situation, and would have no cause of complaint if he was injured."

It is shown that the locomotive was supplied with the usual appliances for giving warning signals, but the evidence is conflicting as to whether the headlight was lighted; that there was room for a person between the track and the bank of the cut, without coming in collision with a passing train, and that there were places along the bank which one could clamber over; that the cut was in a street through which the railroad ran, and parallel with it was a road on the bank, with which the plaintiff was acquainted, and over which, though uneven. he could have passed with safety; that the track was a tangent for a considerable distance on either side of the cut; that plaintiff was familiar

with the cut, and its surroundings, and knew and understood the dangers connected with a journey through it, as well as the limited means of escape from an approaching train. The instructions proceed upon the hypothesis that a railroad is a place of danger, and that it is the duty of one venturing upon its track, or a cut through which it passes, which may be used as a pathway, to make vigilant use of his eyes and ears, and that it is his duty, also, to leave the track, if possible, when he discovers a train approaching, and, if he fail to do so, and be injured thereby, that he would be guilty of negligence. After this announcement of the law, and as more directly bearing upon the facts of the case at bar, the trial court then instructed the jury, in effect, that if the plaintiff knew, while he was on the track, and in the cut where the injury occurred, that a train was approaching,-as by seeing its headlight, and could have got out of its way by the means that were at hand and obvious, as there was some evidence tending to indicate that he might have done,-and failed to do so, and was injured, he would be chargeable with contributory negligence. Further, that if the plaintiff was acquainted with the situation of the railroad and the cut, and was fully apprised of all the dangers that would attend a journey through it, and at the same time knew that there was a choice of ways for him to pass,-one a way of safety, and the other of danger,-and he deliberately chose the dangerous way, and was injured thereby, he should be deemed to have assumed the risk, and should take the consequences of his conduct. We do not think the instructions are amenable to the objections raised, or that they misstate the facts upon that phase of the law to which they are intended to apply. The vice of the plaintiff's first objection is that it assumes that the instruction applies to a state of facts materially different from those shown to exist herein; that there was no evidence tending to show the approach of the train, or that there was any obvious means of escape from collision, available to the plaintiff; and that, without any knowledge of his surroundings, he was suddenly placed in the presence of unlooked-for danger, when prudent action or deliberate judgment is not expected or required. As to the other objection, the instruction only assumes that the defendant is not liable for the injury if the plaintiff was guilty of contributory negligence. It simply goes to the effect that one cannot voluntarily place himself in a place of danger, and then throw the responsibility for the resulting injury upon another.

The next instruction assigned as error is the following: "Something has been said, too, with regard to the speed of the train. It is not neglect of the company, per se, to run their trains faster than the ordinance of

the city allows. The ordinance of the city imposes a penalty for its violation, but it did not confer upon the plaintiff any right of action as for a private wrong against the company; but the circumstance of the ordinance being violated, you can take, in connec tion with all the other circumstances of the case, upon the question of negligence." The objection to this instruction is that it declares that it is not negligence, per se, for the defendant to run its trains through the town faster than the ordinance allows. The object of the ordinance is for the protection of the public, who have a right to act on the assumption that its requirements will be observed. It does not give a right of action, but imposes a penalty for its violation. Α breach of duty in this regard cannot be the foundation of a personal right of action, unless it has caused a personal injury that would not have occurred but for such violation of duty. The failure to observe this statutory duty must be the proximate cause of the injury that followed. The running of a train at a prohibited rate of speed in a town, being unlawful, is, in some sense, a negligent act, but it is only when such act contributes directly to produce the injury complained of that it can be regarded as having established the defendant's negligence. The failure to observe such statutory duty is sometimes spoken of as "negligence per se," but it is said that, "except where the statute itself provides that any injury which is done by a party violating its provisions shall be conclusively presumed to have resulted from the violation, there is scarcely reason in treating such failures to observe statutory duty as negligence per se." 16 Amer. & Eng. Enc. Law, "Negligence," 420 et seq. To say that the mere fact of the violation of the ordinance is conclusive evidence of negligence, or is neg'igence per se, without regard to the conduct of the plaintiff, or of the duty imposed upon him under the circumstances, would be to relieve him of the consequences of his acts, when they contribute to the injury, and result in an unjust liability upon the defendant. The rule, as stated in section 13 of Shearman & Redfield on Negligence, is "that the violation of an ordinance should always be deemed presumptive evidence of negligence, which, if not excused by other evidence, including all the surrounding circumstances, should be deemed conclusive." It is perhaps true, when the undisputed facts show that the injury was directly due to, and caused by, the running of the train at the prohibited rate of speed, that such breach of statutory duty should be deemed conclusive evidence of negligence. But the mere fact that the train was running at such rate of speed is not, per se, conclusive proof of negligence that will render the company liable, but it is evidence of negligence to be submitted to the jury, and considered with the