struction over the objection and exception erred in refusing to give certain instructions of the defendant:

requested by the defendant. These instruc"The particular statute upon which the infor- tions were based upon the theory of the demation is based is: Adultery is the unlawful fendant that the fact that Fred Spencer and voluntary sexual intercourse of a married person with one of the opposite sex; and when the Ella Spencer were not husband and wife crime is between persons, only one of whom is must have been known to the community genmarried, both are guilty of adultery. Prosecu- erally during all the time they were living totion for adultery can be commenced and carried on against either of the parties to the crime gether in the relation of husband and wife only by his or her own husband or wife, as the before a conviction of open and notorious case may be, or by the husband of the other par- adultery could be had. We do not underty to the crime: Provided, that any person may stand that to be the law of this state. It is make complaint when persons are living together sufficient if the adulterous relationship bein open and notorious adultery.' The jury will observe that under the law ordinary adultery is came generally known among the neighbors simply the unlawful intercourse of a married and acquaintances of the parties before it person with one of the opposite sex other than ceased and prior to the commencement of the his wife or her husband. The defendant, howprosecution. After that proof of a single ever, in this case is charged with the crime unlawfully, voluntarily, and feloniously living in day's continuance of the unlawful relationopen and notorious adultery with a woman not ship is sufficient to sustain a conviction. It his wife, and under the law the burden of proof is our opinion, therefore, that the instrucis upon the state to not only prove the defend- tions refused did not correctly state the law ant committed the crime of adultery with the person named as Mary Doe, but also that he as applicable to the proof in this case, and lived with her in open and notorious adultery, the refusal to give the same in this case to warrant a conviction. If adultery is not was not erroneous. The instructions given open and notorious, it is not a crime punishable by the trial court were sufficient to cover the by law, unless the prosecution is commenced and carried on by the wife or husband of one of the offending parties. Simply having occasional illicit intercourse without a public or notorious living together is not sufficient to constitute the offense of living in a state of open and notorious adultery. The parties must reside together in open and notorious adultery, as charged against the defendant, publicly in the face of society as if the conjugal relation existed between them, and their illicit intercourse must be habitual to constitute the crime charged against the defendant."

It is contended that the said instruction is confusing as to the law applicable to the case, and does not contain a correct definition of what is meant by "living together in open and notorious adultery." It will be noted that the court distinguished what he termed "ordinary adultery" from the crime charged in the information. This it is claimed tended to confuse the jury in that they were led to believe that the defendant was being prosecuted for "extraordinary adultery." If such had been the case we cannot see wherein the jury could have been misled by the instruction as a whole. The same distinction was made by this court in Heacock v. State, 4 Okl. Cr. 606, 112 Pac. 949, wherein at the bottom of page 609 the term "ordinary adultery" is used to distinguish between the offense which only the husband or wife of the offending party may prosecute and that which is open and notorious and an offense against society itself.

The definition given of open and notorious adultery follows the language of this court in the cases of Copeland v. State, 10 Okl. Cr. 1, 133 Pac. 258, and Kitchens v. State, 10 Okl. Cr. 603, 140 Pac. 619. The conclusion is reached that the foregoing instruction was not confusing or misleading, and that the definition given of living in open and notorious adultery was correct and sufficient under our statute.

law of the case as applicable to the facts. The judgment of the trial court is affirmed. DOYLE, P. J., and ARMSTRONG, J., concur.

(63 Colo. 582) NUCCI v. COLORADO & S. RY. CO. (No. 8763.)

(Supreme Court of Colorado.

Dec. 3, 1917.) 1. RAILROADS 328(4)-CROSSING ACCIDENT -CONTRIBUTORY NEGLIGENCE.

Plaintiff held contributorily negligent in for train some 30 feet from track, where trees driving upon a railroad crossing after looking prevented view, and taking no further precautions.

2. RAILROADS 350(24) - CROSSING ACCI-
DENT CONTRIBUTORY NEGLIGENCE.

ing accident, could have seen an approaching
Where plaintiff, injured in a railroad cross-
train had he looked, his statement that he did
look, but did not see it, raises no question for
the jury regarding his contributory negligence.
Hill, Scott, and Teller, JJ., dissenting.
of Denver; J. E. Little, Judge.
Error to District Court, City and County

rado & Southern Railway Company, a cor-
Action by Vincenzo Nucci against the Colo-
poration. Judgment for defendant, and
plaintiff brings error. Affirmed.

F. W. Sanborn and George Allan Smith, both of Denver, for plaintiff in error. E. E. Whitted and Thomas R. Woodrow, both of Denver, for defendant in error.

WHITE, C. J. In a suit by Nucci against the Colorado & Southern Railway Company, in damages for injuries sustained by him through the alleged negligence of the defendant, he was nonsuited, and brings the case here for review. The negligence of the defendant in failing to ring its bell or blow its whistle is conceded, and the sole question [5] It is also contended that the trial court presented for determination is whether the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 169 P.-18

plaintiff, on the undisputed facts, was the crossing where the accident occurred, guilty of contributory negligence. The there is an open and unobstructed view along damages were caused by a freight train the track and the right of way of defendstriking the plaintiff while he was attempting ant's road west for a distance of 432 feet to cross defendant's railroad tracks with from such crossing; and from a point on his team and wagon. The acts of negligence the highway 120 feet south of such crossing alleged were excessive and dangerous rate there was an unobstructed view, with the of speed of the train, and failing to ring the exception of the small willow trees heretobell or blow the whistle on approaching the fore referred to, for a distance of 532 feet crossing where the accident occurred. west along such track and right of way. To The defendant's road runs in an easterly the end that there be no misunderstanding and westerly direction at this point. The of the matter, we here insert a photograph highway along which plaintiff was driving of the scene of the accident, made by defendruns in a northeasterly and southwesterly ant and introduced in evidence by plaintiff:

direction, and plaintiff was approaching the crossing from the southwest. Parallel with the highway, and approximately 30 feet west of it, are the tracks of the Denver & Rio Grande Railroad. For some distance west the track of the defendant is on a downgrade to the crossing where the accident occurred, and thence east on an upgrade. The train that injured the plaintiff came from the west. In the angle formed by the defendant's roadbed and the highway, upon which plaintiff was traveling, are some cottonwood trees, which, to some extent, obstructed the view

of the track to the west. These trees, however, are 180 feet southwest of the intersection of the highway and the track. The only obstruction between the cottonwood trees and the crossing intersection is some small willow trees, which are 17 feet from the south rail of the defendant's track and 120 feet southwest of the crossing intersection. The distance between the willow and cottonwood trees is 60 feet. A map, prepared by defendant and introduced in evidence by plaintiff, shows that, from any

A memorandum on the back of the photograph states that the photographer making it stood at a point 250 feet west of the center of the crossing, and that the man shown therein stood 30 feet south of the center of the track. It will be observed that there is considerable open view disclosed by the photograph, perhaps 10 feet, to the south of where the man is shown, notwithstanding the trees were in full foliage. Plaintiff lived in the vicinity and was perfectly familiar therewith and had traveled over the highway and crossing of the railroad where he was injured two or three times a week for 15 years. He testified concerning the accident as follows:

"About 30 yards from the track I stopped my horses and looked and listened to see if a train was coming. The whistle did not blow or the did not see the train coming. I was in the midbell ring. I neither saw nor heard a train. I dle of the track when the train struck me."

And further, on cross-examination:

"I did not see the train until it struck me. Q. When you were right on the track just at the time you were struck, which way were you

Q. Looking along the road in the direction of faster, sure, than a man can walk. Q. Are you your home? A. I was looking the road."

And again:

"Q. Well, you mean you did not know about the train, isn't that it? A. I meant to say looked for the train, and I did not see nothing, as I stated before, and things I say once I know I do not need to say 50 times. Q. Where was this point that you looked, where were you when you looked for the train? A. Thirty yards away."

And again:

"Q. You are absolutely sure you did not look at any point except where you have told me, 30 yards from that track? A. No, I did not look no other place. Q. How high were these trees that were out there by that point, 30 yards from the track? A. I do not know how high they are, because I did not measure them. They are high enough, I can't see through it. Q. They were so high and broad that it cut off your vision in the direction that the train was approaching? A. I could see nothing. Q. There were no holes through the trees, I mean no apertures between the trees that you could see through at that point? A. No. Q. Big, solid clump of trees that you couldn't see through, no matter how long you looked? A. No, I couldn't see. Q. Are you just as positive that the trees were between that point and the approach of the train? A. I do not know anything about it; you can ask me all the questions you want

to, I cannot see the train for the trees."

On re-direct examination:

"Q. Is there a place through the trees about 30 yards from the track where you could see up the track? A. I could see nothing. Can't see nothing. Q. What did you stop for? A. To look and see if any train was coming. Q. And you did not see any train coming, is that what you mean? A. Yes. Q. Is there an opening in the trees where you could see a train, if the train was on the track? A. There was no opening at all; it was all forest in there of trees. Q. Then what did you stop for, to look? A. To look. Q. What did you stop to look for if you couldn't see? A. Sometimes you can hear the train whistle. Sometimes you don't see, but you can hear the train whistle."

After some colloquy between court and counsel, the witness, without being interrogated, continued:

"You get within about 15 feet of the track before you get beyond the trees and can see down the track.'

*

absolutely sure that you did not see the train until it struck you? A. When it struck me is the time I saw the train. Q. Didn't you see it before it struck you? A. No, I didn't see it. I think the train hit between the horses and the at all about the case except what your lawyer Q. Do you remember anything told you? A. Only what the attorney told me." Plaintiff, in answer to questions propounded by his own attorney, further testified:

wagon.

"Q. Some 30 yards or so from the crossing can you see the railroad track through the trees? A. I could see. Q. You said you could see the railroad track from 30 yards from the crossing? A. Yes, I could see. Q. How far up the track could you see there from the crossing? A. About 180 or 200 feet, something like that." And thereupon, being recross-examined, testified:

"Q. That means that you could have seen from that point, 180 feet up the track from the highway crossing? A. I could see; but I looked that day, but I did not see nothing. I could see, I guess, about 180 feet from the crossing. Could not see further on account of trees. Q. So the trees were further than the 180 feet away from the crossing? A. Something like that."

We are of the opinion that plaintiff is not

in a position to complain of the action of the

court in entering a nonsuit. It is clear from the undisputed facts that his own negligence contributed to his injury, and no other inference could be properly drawn therefrom. The effect of the facts of this case is the same as that in the case of Headley et al. v. Denver & Rio Grande R. Co., 60 Colo. 500, 154 Pac. 731, where the authorities, involving the question of contributory negligence in cases of injury sustained through accidents at railway crossings, are reviewed and the law applicable thereto declared. That decision makes clear the distinction between mere negligence on the part of the railway company and affirmative acts committed by it, which create a condition of apparent safety. There, as in the case at bar, the negligence of the defendant was certain; but, as therein held, that in no wise relieved the

Counsel for plaintiff resumed his inter-party injured from taking ordinary precaurogation of the witness:

"Q. When you got 15 feet from the track, did you look to see if a train was coming? A. Yes. It is about 15 feet from the horses' heads to where I sat in the wagon. When you are 15 feet away from the track, I believe the heads of the horses are about at the rail."

Witness further testified that the trees were about 30 to 33 feet to the west of the highway along which he was traveling, and then, being interrogated by defendant's attorney, testified as follows:

tion for his own safety. Plaintiff does not claim that the defendant was guilty of any affirmative act which created an appearance of safety at the crossing, or which tended to throw him off his guard or to lull him into a false sense of security. While it is not mentioned in the original briefs, attention has been called, in conference, to the fact that the record discloses that the tracks of the Denver & Rio Grande Railroad cross the tracks of the defendant company at a point "Q. Mr. Nucci, have you talked this matter about 30 feet west of the highway crossing over with your lawyer since last night? A. Yes. where the accident occurred, and as section Q. You have got pretty well straightened out 5499, Revised Statutes of 1908, requires evnow how you want to testify, have you? A. Yes. * * Q. You said yesterday that the ery train, on approaching the crossing of the team went on the track in a slow trot, is that tracks of another railroad, to stop and to true? A. Yesterday I did not understand. Q. cross such tracks at a speed not exceeding 4 Do you understand to-day? A. I believe I do miles per hour, the failure of defendant to understand. When I got within 30 yards, I do so in the instant case was negligence per stood up and looked around to see if any train is coming. From that point the horses were se on its part. This has nothing to do with walking slow, maybe 11⁄2 miles an hour. Yes, this case, for the simple reason that defend

HILL and TELLER, JJ., dissent,

SCOTT, J. (dissenting).

I must dissent

ant's negligence is conceded and the failure | court must be withdrawn, the decision set in question establishes only the fact of neg- aside, and the judgment of the trial court ligence. It in no wise constitutes an act on affirmed; and it is so ordered. defendant's part creating a condition of ap- Judgment affirmed. parent safety. Moreover, there is no claim upon the part of plaintiff that he was relying upon defendant stopping its train at the crossing. In fact, it is stated by defendant, in brief on motion for rehearing, and not denied by plaintiff, that the Rio Grande track at this place was only a switch and had been abandoned for many years prior to the accident, which fact was known to both sides of the controversy at and prior to the trial, and that no issue in relation to the same was raised at the trial.

from the majority opinion. By the authority of a long line of decisions by this court, the case should have been submitted to the jury upon the testimony produced, and there is, in my opinion, no case decided by the court that supports the conclusion of the majority.

It is said that the effect of the facts in

[1, 2] So the sole question is: Was plain- this case is the same as in the case of Headtiff negligent, and did his negligence contrib-ley v. D. & R. G. R. Co., 60 Colo. 500, 154 Pac. 731. The effect of the facts in any law ute to the injury? It is established by an early decision of this court that a traveler case is generally to be determined by the approaching a public highway in the coun-jury. But there is no similarity in the facts try is charged with the duty of knowing that themselves, as between this case and the others may be negligent, and that he must Headley Case, except that in both cases the act accordingly. C., B. & Q. R. R. Co. v. defendants were admittedly guilty of negliCampbell, 34 Colo. 380, 83 Pac. 138, 7 Ann. gence per se. In that case by the violation Cas. 987. It is equally well established that of a city ordinance, and in this, by the vio lation of the statute of the state. In this the failure of the defendant to whistle or ring its bell did not relieve plaintiff of his case, as in that, the court is required to deal duty to look and listen for the approaching with the facts as bearing upon the question train, and that such duty is not discharged of contributory negligence alone. There the by observation made at a point where ob- deceased attempted to cross four parallel structions make it impossible to ascertain if tracks, and it was said that: a train is approaching, where, after passing such obstruction, he could by looking and listening satisfy himself whether it is reasonably prudent to attempt to cross the line. Colo. & S. Ry. Co. v. Sonne, 34 Colo. 206, 83 Pac. 383; Colo. & S. Ry. Co. v. Thomas, 33 Colo. 517, 81 Pac. 801, 7 L. R. A. 681, 3 Ann. Cas. 700; C., R. I. & P. Ry. Co. v. Crisman, 19 Colo. 30, 34 Pac. 286.

Plaintiff testified several times very positively that he did not look for a train after passing the obstruction. In fact, that he only looked when he was 30 yards away from the crossing, and that it was impossible to see at that point, because the trees were so thick it was impossible to see through them. It may be said, however, that there is a statement in his testimony that he did look when about 15 feet from the track before going on the same, but did not see the train. He further testified, however, that,

to cross several tracks not to cease his watch"It is the imperative duty of one attempting fulness, upon crossing the first, or second, in safety, but to continue to exercise his senses, and be observant of the obvious conditions until the crossing has been accomplished, unless the railroad company, through its acts, has produced a condition of apparent safety, where reasonable men might have different views as to the necessity of looking and listening."

Here, there was but one track, and that not in a city, but in the open country, and not where switch engines as well as trains were constantly passing in both directions on all four of the tracks. There the court said:

"He neither looked nor listened, or, if so, acted other than recklessly after reaching the space between the south and north bound main lines. While it may be true that he was not, as a matter of law, in duty bound to stop upon reaching such space, he was, nevertheless, required to look and listen, or act with reasonable prudence, before entering upon and attempting to cross the north bound main track."

"When you got within about that distance of the track, you got beyond the trees and can listened, and there is not any indication of Here, the plaintiff stopped, looked, and see down the track." The trial court ex- recklessness. It was clearly within the provpressly rejected the statement, that he look-ince of the jury to say whether or not, in ed but could not see, as incredible, and unsuch stopping, looking, and listening, in the

der the authorities he was required so to do. The law is well settled in this jurisdiction that when the evidence clearly shows that, if plaintiff would have seen the train had he looked, his statement that he did look, but did not see, raises no conflict of evidence to be solved by the jury. Westerkamp v. C., B. & Q. R. Co., 41 Colo. 290, 296, 297, 92 Pac. 687. It follows that the opinion heretofore

light of the surrounding facts and attendant circumstances, he exercised ordinary prudence and care.

In that case the court said:

"The ground is level, and the tracks straight, with an unobstructed view in each direction for at least three-fourths of a mile."

In this case the ground was not level. The road along which plaintiff was driving

vated in the direction from which the train, the train No. 1 passed over the crossing the was coming, and there were palpable ob- 'Uncle Sam' train entered thereon and passed structions to view, caused by trees, build-over the same.' ings, and piles of lumber. The track was not straight, but approached in the form of a curve toward the crossing. But in that case it appears that the deceased not only failed to stop, look, or listen, but rode ahead on his bicycle from a point about 250 feet from the crossing, without stopping, directly and heedlessly, upon the crossing, under circumstances described by the court as fol