the plaintiff looked the last time towards the west, what, if anything, would have prevented him from seeing the train which injured him if he had stopped and waited until the gust of wind which bore the dust and sand which enveloped him had passed away? A. People on the platform. (41) When the plaintiff looked to the west the last time, did he know or realize, if such be the fact, that he could not see to exceed forty feet on account of the condition of the atmosphere produced by the sudden gust of wind? A. Yes. (42) Is it not a fact that from the point referred to in the last question plaintiff went on attempting to cross the track, regardless of whether the train which injured him was moving in his direction or not? A. Went on, but not wholly regardless of the train. (43) If the jury answer the last question in the negative, they may state fully what precaution the plaintiff took against the train which injured him, as he proceeded towards the track from the point where he last looked to the west. A: His sense of hearing. (44) At the time the plaintiff was passing the end of the station building, was the wind blowing very hard or not? State fully. A. It was. (45) If the jury answer the preceding question in the affirmative, they may state if it did not make a considerable noise blowing by the station building and the cars. A. We think it would. (46) If the jury answer the last question in the affirmative, they may state if the wind did not make sufficient noise to prevent any person at the east end of the station from hearing the noise made by the running of an ordinary train at the rate of from eight to fifteen miles per hour, when such train would be coming from the west to the east end of the station house. A. A direct answer would only be a mere conjecture. Still, in our opinion, a person could hear it. (47) What was the approximate length of the train which injured plaintiff? A. About 180 feet. (48) About how far was the engine on this train from the plaintiff at the time it started backward? A. The pilot of engine, about 340 feet." "(50) Is it not a fact that the wind was blowing hard enough at and prior to the time when the plaintiff was struck to carry the sound of the ringing of the bell on the engine north from the railroad track at such a distance to the west of plaintiff as to materially, if not quite, prevent his hearing the same, if it was rung? A. Would have a tendency to do so, and possibly did. (51) Was plaintiff enveloped with dust or dirt by a sudden gust of wind at the point at which he last looked towards the west? A. No. (52) Did any sudden gust of wind envelop the plaintiff with dust at any time prior to the time when he was within a step of the railroad track? A. Yes. (53) Is it not a fact that, at the last time he looked to the west, his view was obstructed to some extent by the people standing on the platform of the station? A. Yes." “(55) If a watchman had been or was stationed on the rear end of the train in question, what was the greatest distance that such watchman could have seen the plaintiff if he had kept vigilant lookout prior to the train striking plaintiff? A. Thirty-five tu

forty feet. (56) What would have prevented plaintiff, if he had looked, from seeing the train at as great a distance as a watchman stationed on the rear end of the train could have seen plaintiff? A. The disadvantage of wind and sand blowing in his face. (57) When the plaintiff looked to the west the last time, is it not a fact that he saw as far along the track to the west as he could in a clear day? A. No. (58) What, if any, obstruction did the dust make to plaintiff's view to the west the last time he looked? A. Prevented him from seeing but thirty to forty feet. (59) Is it not a fact that the gust of wind which it is alleged in plaintiff's petition suddenly enveloped plaintiff with dust, enveloped him with such dust just as he was about to step on the track, if at all? A. No. (60) If the jury answer the last question in the negative, they may state if such gust enveloped the plaintiff prior to the time when he was within three feet of the track. A. Yes. (61) Is it not a fact that persons from ten to forty or fifty feet from the approaching train heard the bell ringing, or the noise of the train as it ap proached the crossing? A. Yes. (62) If you answer the last question in the nega. tive, state how far such persons were who heard the bell ringing, or the noise made by the approaching train as it neared the crossing, and before it struck the plaintiff, and give, as near as you can, the positions of such persons. A. (63) How far

is it from the point where the short sidewalk branches off from the main sidewalk on the west side of Colony a venue, between the north side track and the main track to the north rail of said main track, where the same is intersected by said short sidewalk? A. Seventeen and one half feet. (64) Was not the engine bell rung as the train commenced to move back from the coal shute? A. Yes. (65) At what rate of speed was plaintiff traveling when it struck plaintiff? A. From three to four miles per hour. (66) At what rate of speed was the train which struck the plaintiff traveling when he was struck? A. Five to six miles per hour. (67) How far to the west was plaintiff able to see the last time he looked to the west prior to being struck? A. Thirty to forty feet.”

It is difficult to understand upon what theory the plaintiff should recover in this case. From the evidence and the special findings of the jury, it does not appear that the railroad company, by any act or omission on its part, did or omitted anything in contravention of law or the city ordinances, or good morals or common prudence, or that it acted in any manner different from what had been the general custom of the railroad companies at that place for all the years previous to that time; while the plaintiff voluntarily encountered a known danger, admittedly without exercising his eyesight for a period of time sufficient to enable him to walk 10 or 12 feet, in fact 17% feet, and brought himself into collision with a moving railroad car, which he admitted he could have seen for 30 or 40 feet through the dust, and which others saw and heard at a much greater distance. If the plaintiff had stopped when he arrived within 5

or 6 feet of the railroad tracks, and waited until the dust had blown away, he could have seen westwardly in the direction from which this train was coming for many hundred feet along the railroad tracks; but he did not stop nor look, but chose, rather, to encounter the danger blindly. The general verdict of the jury must have been founded upon some mistake. It is possible, and indeed probable, that the jury were misled by the instructions of the court. The court below instructed the jury, among other things, that the law requires a person in traveling over a street intersected by a railroad "to use such care as an ordinary person would use at such a place;" and that, "in the exercise of care and prudence, he has the right to decide for himself, the means of which judgment is found by the best exercise of his judgment; and though his judgment in the premises may be wrong, yet, if he used the care that men under like circumstances exercise, negligence cannot be imputed to him for such mistake of judgment." The court also in structed the jury as follows: "A railroad company, in the operation of its trains over a public traveled street in a city, is required to exercise a high degree of diligence and care. It is required to give sufficient and timely warning, and take such precautions as shall be efficient at the time and place, under the circumstances. The law does not require any precise warning or precaution to be used by the railroad company. The railroad company has the liberty of choice, but the law does require whatever warnings or precautions are taken shall be sufficient or effective, and what these warnings or precautions should be it is for the jury, in the light of the evidence, to say. You may take into consideration whether the train is backed upon the crossing with increased dangerousness of propulsion; the distance the train had to go to reach the street or crossing; whether or not timely and efficient waruing was given, considering the elements, the wind, the flying sand or dust, whether there were safer or surer signals of its approach to the crossing within its command, and failed to be used; the speed of the train; the obscurity of the track from buildings or clouds; the failure to have a flagman at the crossing to warn travelers; and, if you find from the evidence that there was no brakeman on the rear platform or end of the passenger coach, then you may consider this fact, and all the facts and circumstances proved, to determine whether or not proper care and diligence were used in moving the train over the crossings of the street. * I fur. ther instruct you that negligence is want of diligence. Common or ordinary negli. gence is the want of that degree of care which an ordinarily prudent man would ordinarily exercise under like circumstances. Slight negligence is merely the failure to exercise great or extraordinary care. Gross negligence is the want of slight diligence. The degree of care and diligence necessary and proper in each case varies according to the surrounding circumstances, in each particular case, and the jury, from all the circumstances, must decide

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what degree of diligence and care is necessary and proper under the circumstances of the case proved. The plaintiff could not push on through a temporary sand or wind storm, and take the risk of misfortune, unless you find, from all the facts and circumstances proven, that a man of ordinary care and caution, under like circumstances, would be justified in doing as the plaintiff did in this case. What might be ordinary care for a traveler or employe of a railroad under favorable conditions might not be ordinary care for either traveler or employe of a railroad under different conditions and, where a railroad backs down across an avenue where people are and have the right to travel, a higher degree of care should be exercised by the railroad employes." The italics in the foregoing instructions are ours.

Before proceeding further, we might say that each party, in cases like this, the plaintiff or the defendant, is required to exercise that degree of care and diligence which an ordinarily prudent person would exericse under like circumstances, and is not required to exercise any greater or higher degree of care or diligence. This degree of care and diligence is usually denominated “ordinary care or diligence," while a want of this degree of care and diligence is usually denominated “ordinary negligence. The foregoing instructions start out with saying that the care to be exercised by the plaintiff in a case like this is that of an "ordinary person," and not that of an ordinarily prudent person under like circumstances: and that in the exercise of such care such person “has the right to decide for himself" as to the means; and, if he exercises "the care that men under like circumstances exercise, negligence cannot be imputed to him, although he might be mistaken." As opposed to this, see Lierman v. Railway Co., (Wis.) 52 N. W. Rep. 91. It will also be noticed that the court says "ordinary persons" and "men," and not “ordinarily prudent persons" or "“ordinarily prudent men." In Texas it has been held that the use of the words "ordinary man," instead of the words “ordinarily prudent person, is prejudicially erroneous. Railroad Co. v. Beatty, 73 Tex. 592, 596, 11 S. W. Rep. 858-860. As to the railroad company, the court below instructed the jury that it must exercise "a high degree of diligence and care, and “give sufficient and timely warning, and take such precautions as shall be efficient;" that "the law does require, whatever warnings or precautions are taken [by the railroad company] shall be suffi cient or effective;" and that the jury may take into consideration "whether or not timely and efficient warning was given, and "whether there were safer and surer signals of its approach to the crossing within its command" or not. These instructions make the railroad company an insurer against collision, whatever the plaintiff might do. The degree of diligence exercised by it must, under the instructions, be "high, sufficient," "efficient, and "effective. Timely and "efficient" warning must have been given, and it is a matter for the jury to consider whether

there might not have been "safer" and "surer" signals. This is also a virtual instruction to the jury to find for the plaintiff, for the reason that in fact "sufficient, "efficient," or "effective" signals or warnings were not given to prevent the injury to the plaintiff, for the plaintiff was in fact injured. The defendant did not in fact prevent it. And there might have been safer and surer signals or warnings. An employe of the railroad company, for instance, might have walked ahead of the moving train, and have given notice to all persons who were likely to attempt to pass in front of it, and have prevented such persons by force, if necessary, from encountering the danger.

The court also instructs the jury with respect to the degrees of care and diligence on the one side, and the want of care or diligence on the other side; and then states that "the jury, from all the circumstances, must decide what degree of diligence and care is necessary and proper, leaving it to the jury to say that the plaintiff might recover although he was guilty of ordinary negligence, but not guilty of the highest possible degree of negligence; and that the defendant would be liable although it might not be guilty of ordinary negligence, but only of the slightest possible degree of negligence. This is all wrong and against all authority. Both parties must in all cases ke the present exercise ordinary care and dull. gence, and neither is required to exercise any greater or higher degree of care or diligence. Of course, whether the performance or omission of any particular aci or acts constitutes ordinary care and dili gence or not depends upon all the numerous and varied surrounding circumstances, including the relations existing between the parties, and the duty or duties that one may owe to the other; but the degree of care or diligence that each must exercise, as towards the other, never varies. It is always ordinary care and diligence, and neither the court nor the jury can vary it. The court also says that the plaintiff would not be justified in passing through "a temporary sand or wind storm," and taking the risk of misfortune, "unless" "a man of ordinary care and caution, under like circumstances, would be justified in doing as the plaintiff did;" and, while the court seems to recognize the general principle that ordinary care is the care which a railroad employe should generally exer. cise, yet the court says that, under the circumstances of this case, "a higher degree of care should be exercised by the railroad employes." As we have before stated, neither the railroad company, including its employes, nor the plaintiff, is required, in cases like this, to exercise any degree of care higher or greater than ordinary care. Among the various cases which might be cited tending to support the view that the plaintiff, under the facts and circumstances of this case, should not recover, see the following: Railway Co. v. Adams, 33 Kan. 427, 6 Pac. Rep. 529; Railroad Co. v. Townsend, 39 Kan. 115, 17 Pac. Rep. 804; McCrory v. Railway Co., 31 Fed. Rep. 531; Heaney v. Railroad Co., (N. Y. App.) 19 N. E. Rep. 422; Scott v.

Railroad Co., (N. Y. App.) 29 N. E. Rep. 289; Debbins v. Railroad Co., 154 Mass. 402, 28 N. E. Rep. 274; Fletcher v. Railroad Co., (Mass.) 21 N. E. Rep. 302; Butterfield v. Railroad Co., 10 Allen, 532; Allerton v. Railroad Co., 146 Mass. 241, 15 N. E. Rep. 621; Hauser v. Railroad Co., (Pa.) 23 Atl. Rep. 766; Blight v. Railroad Co., (Pa.) 21 Atl. Rep. 995; Flemming v. Railroad Co., 49 Cal. 253; Marty v. Railway Co., (Minn.) 35 N. W. Rep. 670.

We think the judgment of the court below must be reversed. In our opinion, it is the duty of any person intending to cross a railroad track where he knows that trains frequently pass, and where he knows that one is likely to pass at any moment, to look as well as to listen, and, if dust should temporarily obscure his view to wait until e dust shall pass away before he attempts to cross. The judgment of the court below will be reversed, and cause remanded, with e order that judgment be rendered upon the special findings of the jury in favor of the defendant, and against the plaintiff. All the justices concurring.

1. A summons was issued by a justice of the peace, and made returnable on June 4, 1886, at 10 o'clock A. M., and was regularly served, and judgment was afterwards rendered against the defendant. The record showing the manner of rendering the judgment reads as follows: "June 4, 1886, 10 o'clock A. M. The plaintiff present by his agent, Geo. O. Lovett. The defendants, being three times called, still fail to appear. Upon hearing the proof and allegations of the plaintiff, I do render judgment by default. It is therefore," etc., and here follows the judgment. Held, that it does not appear that the judgment is void upon its face for the reason that it was rendered one hour too soon, and before the justice of the peace had acquired sufficient jurisdiction to render it.

2. It does not appear that any prejudicial error intervened on account of the court's permitting leading questions to be asked.

3. Each of two partners signed a promissory note, but signed it in such a manner that the note appeared to be signed in the name of the firm, though the transaction had no connection with the partnership business. The following

special interrogatory was submitted to the jury: "Was it a partnership or an individual liability?" and the jury answered as follows: "Each individually signed the note." Held, under the facts of this case, that the court did not errin refusing to require the jury to give a more definite an

swer.

with Interest and costs, of a certain debt which Daniel Pees owed to H. C. Jackson, and for which Tower and Green were sureties, and which Tower was compelled to pay, Pees being insolvent. The case was tried before the court and a jury, and the jury found generally in favor of the plaintiff and against the defendant, and assessed the amount of the plaintiff's recovery at $95.60; and also, in answer to certain special interrogatories submitted to them, made special findings; and the court rendered judgment in accordance with the general verdict; and the defendant, as plaintiff in error, brings the case to this court for review.

It appears that originally, and from December, 1884, to August 22, 1885, the plaintiff and the defendant were partners engaged in a general hardware business at Madison, under the firm name of Tower & Green. Pees purchased a team of horses of Jackson upon credit, it being understood beforehand that both Tower and Green would become sureties for the amount. Afterwards, and on April 18, 1885, Pees gave the promissory note now in question (and two others) to Jackson for $135, due in 12 months after date, payable at the Emporia National Bank, and drawing interest at the rate of 12 per cent. per annum. Pees signed his name thereto, and then Tower wrote under Pees' name "Tower," and then Green wrote " & Green," immediately following the word "Tower," so that the firm name of Tower and Green, to wit, "Tower & Green," appeared to be signed to the note. All this seems to have been for the accommodation of Pees alone. Tower and Green received no consideration for their signatures, and the transaction had no connection with the partnership affairs. On August 22, 1885, the firm of Tower & Green was dissolved, and by the terms of the dissolution, Tower was to continue the business and Green was to retire, all of which was done; and Tower was to collect the partnership accounts, settle the partnership business, and assume and pay the partnership debts. In addition to this, on September 4, 1885, Tower gave to Green a receipt for $265.06, in full of all accounts to date. Afterwards, and on June 4, 1886, Jackson recovered a judgment before a justice of the peace upon the aforesaid note against Pees and Tower and Green for the amount of $152.22, and execution was issued thereon, and Tower paid the same, with costs, amounting to $162.82; and, Pees being insolvent, Tower commenced this action in the district court against Green, his cosurety, for contribution. The general verdict and special findings of the jury, omitting title and signatures, read as follows: Verdict: "We, the jury in the above entitled cause, do upon our oaths find for the plaintiff, and assess the amount of his recovery at $95.60." Special findings: “(1) Was the note in controversy signed by Tower & Green as sureties? Answer. It was. (2) Was it a partnership or an individual liability? A. Each individually signed the note. (3) When the partnership was dissolved, who assumed the liabilities of the partnership? A. Tower. (4) Who signed the note in

controversy as principal? A. Pees. (5) If you find that the plaintiff has paid any part of the judgment, when did he pay it? A. August 6, 1886. (6) If you find that Daniel Pees is principal, was he solvent or insolvent at the time of the commencement of this action? A. Insolvent. (7) If you find that Daniel Pees is principal upon the note in controversy, what demand, if any, has the plaintiff made of said Pees for the repayment of the money plaintiff has paid out on the judgment sued on? A. The evidence does not show any demand. (8) If Daniel Pees gave a chattel mortgage to Henry Tower, what was said chattel mortgage given for; that is, to secure the payment of what? A. To secure the payment of a note of $141 and some cents. The above-mentioned chattel mortgage and note of $141 have nothing to do with this case.

The first alleged error is that the court below permitted a transcript of the aforesaid judgment to be introduced in evidence, which transcript, it is claimed, showed upon its face that the judgment was rendered one hour too soon, and before the justice of the peace had acquired sufficient jurisdiction to render it; and therefore it is claimed that the transcript showed that the judgment was void. It appears that the summons was made returnable on June 4, 1886, at 10 o'clock A. M. There is no question with regard to the service, but the only alleged irregularity is that the judgment was rendered too soon. The record with reference to the manner of rendering the judgment reads as follows: "June 4, 1886, 10 o'clock A. M. The plaintiff present by his agent, Geo. (. Lovett. The defendants, being three times called, still fail to appear. Upon hearing the proof and allegations of the plaintiff, I do render judgment by default. It is therefore," etc., and here follows the judgment. Sections 73 and 83 of the justices' act read as follows: "Sec. 73. The bill of particulars of the plaintiff must be filed at the time the action is commenced, and that of the defendant must be filed at or before the hour named in the summons for the appearance of the defendant, unless further time be given by the justice for good cause shown." "Sec. 83. (Id.) If either party fail to appear at the time specified in the summons, or within one hour thereafter, or fail to attend at the time to which the trial has been adjourned, or fail to file the necessary bill of particulars, the cause may proceed at the request of the adverse party; and in all cases where a counterclaim or set-off has been filed before the dismissal of the cause by the plaintiff, the defendant shall have the right to proceed with the trial of his claim." Now, it does not appear from the record that any one of the defendants in the justice's court filed any bill of particulars "at or before the hour named in the summons for the appearance of the defendants," or at any other time, as prescribed by section 73 of the justices' act. Nor does it appear that any one of the defendants made any appearance in the case at any time during the day on which the case was set for trial, or at any other time. Nor does it conclusively appear that the judgment