proceedings. But in that case an earlier one in the same volume was overlooked in which, on habeas corpus proceedings, a party attached for contempt was discharged on the ground that the statute under which he acted was constitutional: Ex parte Marmaduke, 91 Mo. 228; 60 Am. Rep. 250.

In Ex parte Swann, 96 Mo. 44, the constitutionality of the local option law was tested after conviction and judgment by habeas corpus, and the petitioner remanded.

229 So, too, in a much later case, a negro had been arrested and adjudged a vagrant under the provisions of sections 8846, 8848, and 8849 of the Revised Statutes of 1889, and on application to this court he was discharged on habeas corpus, because of the statute being held unconstitutional: In re Thompson, 117 Mo. 83; 38 Am. St. Rep. 639.

So that it may now be regarded as the established doctrine of this court that it will interfere by means of the writ of habeas corpus to look into and investigate the constitutionality of a statute or ordinance on which a judgment which results in the imprisonment of a petitioner is founded.

And if it be true, as must be true, that an unconstitutional law is no law, then its constitutionality is open to attack at any stage of the proceedings and even after conviction and judgment; and this upon the ground that no crime is shown and therefore the trial court had no jurisdiction; because its criminal jurisdiction extends only to such matters as the law declares to be criminal, and if there is no law making such declaration, or, what is tantamount thereto, if that law is unconstitutional, then the court which tries a party for such an assumed offense, transcends its jurisdiction and he is consequently entitled to his discharge, just the same as if the nonjurisdiction of such court should, in any other manner, be made apparent.

Under the sentence imposed of a fine of ten dollars and three dollars costs on petitioner he will have to remain in the workhouse for sixty-five days, which will expire on July 3, 1896.

Under the sentence imposed by the five hundred dollars fine and the three dollars cost, petitioner would have had to remain in the workhouse for two thousand five hundred and fifteen days, or six years, ten months, and twenty-five days, a longer period than he would have to remain in the penitentiary for the commission of many felonies.

230 Inasmuch, however, as we hold that sentence invalid be cause of the unconstitutionality of the ordinance heretofore quot

ed, we order that, on expiration of the time required to satisfy the ten dollars' fine and costs, petitioner be discharged from the workhouse.

All concur.

CONSTITUTIONAL LAW-PERSONAL LIBERTY.-The constitutional guaranty of personal liberty has been interpreted in the fol lowing cases: People v. Gillson, 109 N. Y. 389; 4 Am. St. Rep. 465; People v. Armstrong, 73 Mich. 288; 16 Am. St. Rep. 578; Pinkerton v. Verberg, 78 Mich. 573; 18 Am. St. Rep. 473; Millikin v. City Council, 54 Tex. 388; 38 Am. Rep. 629.

HABEAS CORPUS-CONSTITUTIONALITY OF STATUTE.—If a prisoner claims that the statute under which he was convicted was unconstitutional, and therefore void, that question may be considered and determined upon habeas corpus: In re Wright, 3 Wyo. 478; 31 Am. St. Rep. 94; Ex parte Rosenblatt, 19 Nev. 439; 3 Am. St. Rep. 901. See extended note to Morrill v. Morrill, 23 Am. St. Rep. 109-111.

SPILLANE V. MISSOURI PACIFIC RAILWAY COMPANY.

[135 MISSOURI, 414.]

NEGLIGENCE EVIDENCE.-In an action to recover for an injury received several hundred feet from a railroad crossing, a municipal ordinance requiring a railroad company to station a watchman at crossings to protect persons about to cross is not admissible in evidence to show negligence on the part of the railroad company.

NEGLIGENCE-DEGREE OF CARE REQUIRED OF INFANT. While it is not presumed that a boy nine years of age is capable of exercising that degree of prudence exacted of an adult, yet he must exercise such degree of care as is commensurate with the intelligence, capacity, and experience which he is shown to possess.

NEGLIGENCE-CARE REQUIRED OF INFANT-DUTY TO LOOK AND LISTEN.-If it is shown that an infant is old enough to know the danger of going upon railroad tracks, and that he is intelligent and conversant with the management of trains thereon, he must look and listen for trains, and seek to avoid danger by getting off the tracks, and his failure to do so is contributory negligence.

NEGLIGENCE OF INFANT.—If the proof shows that an intelligent boy, nine years of age, familiar with the locality and the movements of trains, is injured while standing near a railroad track as a train passes, having one end of a string tied to his wrist and the other to a piece of ice on the opposite side of the track, and that the injury is caused by the locomotive striking the string and throwing the boy against the train, he is guilty of contributory negligence, and cannot recover for his injury so received.

NEGLIGENCE.-PLAINTIFF'S CONTEMPORANEOUS CONCURRING NEGLIGENCE, directly contributing to his injury, is a complete defense to his action to recover therefor.

R. H. Hamilton, R. E. Ball, and Fyke, Yates & Fyke, for the appellants.

Robinson & Carkener, for the respondent.

417 GANTT, P. J. This is an action for damages resulting from personal injuries sustained by plaintiff on the 13th of October, 1888. This is the second appeal in the cause. The first is reported in 111 Mo. 559. On the last trial the jury returned a verdict for defendant, from which plaintiff brings error.

The accident occurred at a point on defendant's railway in Kansas City two hundred and sixty-five feet east of the east line of Grand avenue where said avenue intersects defendant's tracks on Front street. At this point and for several hundred feet both cast and west the defendant's railway is located on and along Front street in said city. Grand avenue runs north and south and the railway east and west. Across Grand avenue and at the point where the accident occurred, the defendants' railway consists of four parallel tracks.

Beginning at the south the first track is known as the outgoing or east bound main track, the second as the incoming or west bound track; the other two are team or storage tracks used in loading or unloading freight. East of Grand avenue the tracks are straight, but three hundred or four hundred feet west of Grand avenue there is a curve so that a person coming from the west along the railroad track could not see beyond Grand avenue until after having passed this curve, nor could a person on the track east of Grand avenue see a train coming from the west until after it rounded this curve.

418

Coming from the west there is a considerable upgrade until near Grand avenue, and from that point east the track is practically level. The defendant's freight depot is located on the north side of the tracks and on the west side of Grand avenue and about fifty feet from the west line of said street, and its passenger depot is located on the south side of the tracks and east side of Grand avenue. The platform of this depot extends from the east line of Grand avenue eastwardly from one hundred to two hundred feet, as variously estimated by the witnesses.

avenue.

Wood Brothers' icehouse is located on the north side of the tracks and something over three hundred feet east of Grand The two main tracks are located on Front street, while the two team tracks on the north are located on private property just north of the north line of said street. The tracks are only a few feet apart, and the spaces between the rails are planked over for the accommodation of passengers getting on and off trains and of persons desiring to load and unload freight.

Teamsters and other persons having occasion to go to Wood Brothers' icehouse were accustomed to travel north on Grand

avenue until reaching the railway tracks, and thence diagonally across the tracks to a wagon road on the north side of the tracks leading to said icehouse. This road leaves the railroad tracks at a point one hundred and fifty feet east of the east line of Grand avenue and one hundred and six feet west of the point where the plaintiff received his injuries.

The plat accompanying this opinion accurately describes the situation of the various points referred to in the testimony of the witnesses.

420 The plaintiff's father resided with his family, on Grand avenue, about a block and a half south of defendant's tracks. He had lived there about two years prior to the date of the accident, and had lived in the neighborhood of the place where the accident occurred for several years prior to that time. During all this time the plaintiff had been accustomed to playing about the railroad tracks, and was perfectly familiar with everything in the locality and of the movement of the trains. According to plaintiff's own testimony, as well as that of his father and mother, and several neighbors who were intimately acquainted with him, he was a very bright, intelligent boy, and perfectly aware of the danger of being on or about the railroad tracks while trains were passing. At the time of the accident the plaintiff was something over nine years old. A month prior to the accident his mother had given to Miss Halbert, a teacher in the school to which plaintiff was sent, a statement that he was then nine years and three months old. During the summer vacation preceding the accident he had been engaged in selling papers around the city, and had continued this in the evenings after the session of school began. His mother had been accustomed to send him to Wood Brothers for ice. In the afternoon of the day of the accident he was sent by his mother to Wood Brothers for a piece of ice. He took with him a twine string, and tied one end of it to the ice, and the other end to his wrist, for the purpose of dragging the ice home, instead of carrying it. He was accompanied by his brother, a boy about seven years old. So far as the evidence shows, no person saw him from the time he left the icehouse until after the accident had occurred.

A switch engine, hauling about forty cars, passed eastwardly on the south track, and just after it passed the plaintiff was discovered lying on the south side of 421 this track at a point two hundred and sixty-six feet east of the east line of Grand avenue. He had received a very severe scalp wound, and the ends of two of the fingers of the left hand were mashed. None of the train