The plaintiff sues on behalf of himself and all the other petitioners. Have he, and those for whom he acts, such special and peculiar interests as will authorize the prosecution of this action by him in their behalf? The question is not without difficulty. We must consider it in the light of our knowledge of the frequent bitterness and intensity of political contests, and of the existence of welldefined political organizations. Public officers, whose duty it is to represent the state, will usually, if not invariably, adhere to one or another of the contending parties, and may even themselves be candidates of their party at the election. While it is true that this fact might not always, and should never, influence such officers to fail to perform any public duty, we think that one political party should never be required, in matters directly affecting a popular election, and its right of having the names of its candidates appear on the official ballots, to have their cases in court, in any manner or to any extent, subject to the direction or control of members of an adverse party. We think that the petitioners in this case have such special and peculiar interest as entitles them to maintain this action. A peremptory writ will be awarded. All the justices concurring.

STATE v. SNODGRASS

(Supreme Court of Kansas. Nov. 11, 1893.) CRIMINAL LAW-COMPETENCY OF JURORS - POSITIVE OPINIONS-REVIEW ON APPEAL-TRIAL BY DISQUALIFIED JURORS-ILLEGALLY CONSTITUTED JURY.

1. Light impressions, obtained from vague rumors or the reading of abbreviated and par tial newspaper reports, are not sufficient to render obnoxious to challenge a juror whose mind is open to a fair consideration of the testimony; but where persons called to try a cause hold strong and deep impressions, which amount to opinions, and which are of a fixed and positive character, such as will require evidence to change, they should not be retained as jurors, although they may testify that they believe they can render an impartial verdict.

2. Errors in compelling a trial by disqualified jurors may be available without bringing up all of the evidence upon an appeal.

3. When the defendant brings with the record so much of the proceedings as discloses that he has not been accorded a trial by a legally constituted jury, he has shown affirmative error which entitles him to reversal, unless something contained in the record shows the error to be unprejudicial.

(Syllabus by the Court.)

Appeal from district court, Hamilton county; A. J. Abbott, Judge.

John Snodgrass was convicted of rape, and appeals. Reversed.

Sutton & McGarry, for appellant. John T. Little, Atty. Gen., U. T. Tapscott, and H. F. Mason, for the State.

JOHNSTON, J. On the 27th day of June, 1893, John Snodgrass was convicted upon a

charge of rape alleged to have been forcibly committed upon the person of Annie A. Loomis, and the punishment adjudged a confinement in the penitentiary, at hard la bor, for a term of 12 years. In his appeal he justly complains of the action of the court in overruling challenges for cause made to several persons who were called as jurors. There were four or five of the persons so UDsuccessfully challenged who held opinions of a fixed character, and which disqualified them as jurors, under the rule which obtains in this state. Crim. Code, § 205. Several of them stated, upon examination, that they had heard the facts discussed by numerous persons, some of whom were interested; that they had formed opinions as to the merits of the case from the statements made to them by persons whose truthfulness and integrity they did not doubt; and that the opinions which they had formed, and still held, would remain until they were removed by evidence. Several of them had freely stated their own opinions as to important facts, and upon some of the principal points that were to be tried. It is true that some of them, upon being pressed, stated that, notwithstanding the opinions held and expressed, they could fairly try the case, and render a verdict according to the evidence; but per sons who have formed and expressed an opinion upon the material facts to be tried, and which will be entertained by them until contrary evidence is produced, can hardly be called impartial jurors One of them, who stated that he had an impression rather than an opinion, and who thought he could render a verdict upon the evidence, regardless of what he had heard and said, positively stated that the opinion was formed upon statements made by persons concerning the merits of the case, that he believed the statements to be true, and that he would continue to entertain the opinion or impression thus formed until he heard contradictory evidence. Another, who thought he could impartially try the case up on the evidence alone, afterwards stated that he had heard and read of the facts, and from them formed an opinion that the defendant assaulted the girl, and had sexual intercourse with her, and that it would take evidence to remove that opinion from his mind. When subsequently asked if he could fairly try the case with his mind in that condition, he replied: "No, I don't know as I could." It is true that light impressions, obtained from vague rumors or the reading of abbreviated and partial newspaper reports, are not sufficient to render obnoxious to challenge a juror whose mind is open to a fair consideration of the testimony. State v. Medlicott, 9 Kan 25%. But where, as in this case, the jurors hold strong and deep impressions, which amount to opinions, and which are of a fixed and positive character, such as will require evidence to change, it is an abuse of discre tion to admit them as jurors, although they

*

limitations as well to causes of action already existing as to those to be afterwards ereated, 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 of 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.

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 viclation, 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 conse quences of his hardihood." The objection to the first instruction is that it more prop erly applies to a person walking along a railroad track, where there is no grade or ob stacle to prevent his escape from an ap proaching 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 hardi hood. This objection includes an instruction not excepted to, but which connects the two already set out, and helps to show their re lationship, 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 situa tion 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 dan ger 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 situa tion, and would have no cause of complaint if he was injured."

It is shown that the locomotive was sup plied 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