the appellant company stated that the only question presented on this appeal was: Is the presence of snow upon the step of a street car evidence of negligence sufficient to justify a verdict when the snow complained of was tracked upon the steps in the midst of a snowstorm and upon the very trip on which plaintiff was injured, there being no evidence that snow was allowed to accumulate upon the step of the car between the beginning and end of the trip, except what was carried into the car and deposited on the steps of the car by the feet of the passengers, and there being affirmative evidence that the step was cleaned immediately before passengers got upon the car to make the trip on which the accident occurred? The appellant contends that, under the facts and conditions above stated, warranted, as it claims, by the evidence, no liability attached to the appellant company, and that the court erred in overruling its motion for nonsuit, for a directed verdict, and in refusing to give instructions Nos. 13 and 14 requested by appellant. Respondent contends that the court did not err in denying the motion for a nonsuit, or for a directed verdict, or in giving the instructions requested by plaintiff, or in refusing to give those asked for by the defendant and appellant, for that there was evidence tending to show negligence on the part of the defendant company in that it allowed snow and ice to accumulate on the step of the car; tending to show that the defendant company had knowledge of the presence of the snow and ice upon the step of the car before it started the car on the trip on which plaintiff was injured, and that the defendant, through its agents, actually contributed to, and in part caused, the snow and ice to be upon the step of said car by the act of its conductor in pushing out of the body of the car and onto the step thereof snow that interfered with the closing of the door of the car. Of the cases cited by appellant in support of its contention that, under the facts as disclosed by the evidence, no presumption of negligence against the defendant company arose because of the presence of snow and ice upon the step of the car on which plaintiff was a passenger, and that the defendant company was under no obligation to remove the snow and ice from the step of the car after plaintiff entered it and before she got off of it, the one on which it mainly relies is Riley v. Rhode Island Co., 29 R. I. 145, 69 Atl. 338, 15 L. R. A. (N. S.) 523, 17 Ann. Cas. 50. In the opinion of the court in that case the facts are stated as follows: on which the accident occurred the conductor had removed from the step such snow and ice as has accumulated there, but that, after starting from the terminus of the route ice and snow had been deposited on the step by the feet of incoming passengers, and so remained in considerable mass when the plaintiff placed his foot upon it in alighting. He testifies that before stepping down he saw the snow and ice there, but used due care in descending. Upon these facts the superior court held that no negligence on the part of the defendant had been shown, and directed a verdict for the defendant." The Supreme Court of Rhode Island held that the verdict was rightly directed, resting its decision in the main upon the case of Palmer v. Pennsylvania Co., 111 N. Y. 488, 18 N. E. S59, 2 L. R. A. 252. That court in its opinion in that case says: "The immediate and continuous removal of all snow and ice from such trains, or the covering of them with sand or ashes in such manner that no slippery places shall at any time be exposed, would be quite impracticable and beyond the duty which a railroad company owes to its passengers," and that "it is quite impossible to lay down any general rule applicable to care to be observed by a railroad corporation all circumstances, in respect to the degree of in the removal of ice or snow from its cars, and each case must, therefore, be generally determined by its own peculiar circumstances; but it is safe to say that such corporations should not be held responsible for the dangers produced by the elements until they have assumed a dangerous form, and they have had a reasonable opportunity to remove their ef fects." The plaintiff, Josephine Garvin, testified, in substance, that when she boarded the car it was snowing hard; that a blizzard was blowing; that everybody's feet were full of snow, and that there was lots of snow both in the vestibule and on the step; that some one, either the conductor or motorman, attempted to close the car door: that the door refused to close on account of the amount of snow the passengers carried in, and that the conductor pushed the door back and forti and shoved the snow out on the step; that there was a mound of snow as large as her fist that kept the door from closing; that it was piled up that high, and the door refused to close; that the conductor took hold of the door and shoved the snow out on the step with both hands; that the conductor scraped out onto the step all the snow that was carried in by these eighty people; all the snow that interfered with the door. The conductor testified that he did not pay any attention to the step on the trip out. Other witnesses called by plaintiff testified as to the snow upon the step and in the vestibule of the car. [1] Under the evidence we are of opinion that the case was one for the jury under "On the 1st day of March, 1907, the plaintiff. proper instructions. It was for them to say in descending from a street car operated by from the evidence whether the snow and ice the defendant, slipped from the step of the car and fell, and was injured. A snowstorm had upon the car step had assumed a dangerous commenced the night before, and, with inter- form; whether the defendant company, missions of rain, continued during the day. through its agents knew, or in the exercise of The average temperature, until after the accident, was below the freezing point. It appeared reasonable diligence should have known, of to remove the snow and ice from the step of a length of time that the company must have its car. [2] Under the statutes of this state, the burden is placed upon the carrier of passengers to use the utmost care and diligence for their safe carriage. To lay down the rule that under no circumstances is a common carrier of passengers called upon to remove accumulations of snow and ice from the steps of its cars between the termini of its route would in all cases of this nature relieve such carriers of the burden as to the safety of their passengers placed upon them by the statutes. "Conditions may arise when it would be the company's duty en route to remove ice and snow from its steps for the safety of passengers in getting on and off its cars. In such circumstances the duty of the company should be measured by the danger of the situation; and if it is apparent to a reasonably prudent person that passengers cannot get off or on the cars, exercising reasonable care, without danger of falling, the steps and platform should be put in such condition as to enable them to do so, even though the train must be delayed for that purpose. Haas v. St. Louis Co., 128 Mo. App. 79, 106 S. W. 599; Craig v. United Rys. Co., 175 Mo. App. 616, 158 S. W. 390; Neslie v. Railway Co., 113 Pa. 300, 304, 6 Atl. 72; Dorrance v. Railway Co., 175 Mich. 198, 141 N. W. 697, Ann. Cas. 1915A, 763. In the present case it was for the jury to say whether or not, under the evidence, conditions had arisen which made it the duty of the defendant company, having due regard for the safety of its passengers, to remove the ice and snow from the step of its car after it left Main street and before the plaintiff alighted therefrom. Appellant urges that it was error for the court to refuse to give instruction No. 13 asked by it, which reads as follows: "You are instructed that a street railway company is not bound to immediately remove all snow and ice from the steps of its cars during a snowstorm, and a passenger has no right to assume that the effects of a continuous storm of snow will be immediately and effectually removed from the steps while the car is making its passage between the termini of its route; and the mere fact that snow and ice accumulated on the steps between the time the passenger boarded the car and got off is not such evidence of negligence of the company as will permit a recovery by the passenger for the injuries caused by slipping on the steps when getting off; and if you find that the street railway company did not have a reasonable opportunity to remove the effects of this storm from the steps of its car, then your verdict must be for the defendants." known of its existence and of its dangerous condition and had a reasonable opportunity to remove it. In the absence of these limitations and conditions from instruction No. 13, the court below, in view of the evidence, did not err in refusing it. Nor did the court err in refusing instruction No. 14 asked by the appellant, for the reason that this instruction does not correctly state the law. As noted above, the duty of using the utmost care for the safety of its passengers, at all times, rested upon the defendant company. By instruction No. 14, as offered by the appellant, the jury are told that: "It is the duty of the carrier to exercise a very high degree of care to clean off the steps of its car when it leaves the barn in the morning, and that it is bound to exercise ordinary care to keep the steps free from snow and ice during the day." Such care as here indicated is not the ut most care called for by the statute. Finding no reversible error in the record, the judgment is affirmed. Affirmed. SANNER and HOLLOWAY, JJ., concur. BRANTLY, C. J., not sitting. STATE v. KANAKARIS. (No. 4012.) (Supreme Court of Montana. Nov. 12, 1917.) 1. INDICTMENT AND INFORMATION 125(3)— CHARGING TWO OFFENSES-ACCEPTING MONEY FROM AND LIVING UPON PROSTITUTE STATUTES. Laws 1911, c. 1, § 8, brands as a felon any one, male or female, who knowingly and without consideration takes or receives from a prostitute any of her earnings, and section 9 makes a felony any man's living upon the earnings of a prostitute. An information charged that defendant, a male. willfully, etc., did live with in whole and in part on the earnings of a prostitute, and that he knowingly, willfully, etc., received money without consideration from her earnings. Held, that such action charged two distinct offenses, in violation of Rev. Codes, § 9151, providing that the information must charge but one offense. 2. PROSTITUTION 6 – LIVING ON EARNINGS OF PROSTITUTE-STATUTE. Every violation of Laws 1911, c. 1, § 9, by living upon the earnings of a prostitute, subjects the offender to imprisonment in the penitentiary, without the alternative privilege of paying a fine and remaining at large. 196(7)— 3. INDICTMENT AND INFORMATION CHARGING Two OFFENSES-WAIVER OF OBJECTION-STATUTES. [3, 4] In its language this instruction closely follows that of the court in Riley v. Rhode Under Rev. Codes, § 9353, providing that, Island Co., supra. However, it is to be in-unless any defect in the information has been ferred from the opinion of the court in that waived by failure to demur, motion in arrest case and from the statements found in the of judgment may be founded thereon, where the information on its face charged two offenses, and cases cited therein that no liability attached defendant did not object by demurrer pursuant to the defendant unless the accumulation of to section 9208, but pleaded over and failed to snow and ice had assumed a dangerous form, demur, moving to compel the county attorney to was caused in whole or in part by the em- deemed to be waived so far as any question of elect as between the offenses, the objection was ployés of the company, or existed for such pleading was concerned. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 1. The charging part of the information follows: there being, then and there, a male person, will"That the said Gust Kanakaris, then and fully, wrongfully, unlawfully and feloniously did live with and in whole and in part upon the earnings of, and money supplied by, one Ollie Nunthere a common prostitute and woman of bad reley, she, the said Ollie Nunley, being then and and there, knowingly, willfully, wrongfully, unpute, and he, the said Gust Kanakaris, did, then lawfully and feloniously accept, receive, levy and appropriate money, without consideration, from the proceeds and earnings of the said Ollie Nunley, while so engaged in prostitution." [1, 2] That this information charges two distinct offenses in violation of the provisions of section 9151, Revised Codes, is apparent. Chapter 1 above consists of twelve sections. Sections 10 and 11 are the repealing clauses, and section 12 prescribes when the act shall take effect. Each of the first nine sections defines a separate and distinct offense and provides the punishment therefor. a felon every one, Section 8 brands as whether male or female, who knowingly and without consideration takes or receives from a woman engaged in prostitution any of the earnings of her shame. This section was designed to prevent the levy of tribute upon the occupation of women of the underworld or the gratuitous receipt of any of the proceeds of their prostitution, knowing it to be such, by the imposition of fine or imprisonment, or both fine and imprisonment, for a violation of its provisions. By enacting section 9, the Legislature evinced a purpose to drive out of this state every vagabond, pimp, and secretary who lives with a common prostitute or who depends for his living, in whole or in part, upon money supplied by a fallen woman, whether that money be earned in In a prosecution for felony, an instruction that, if the jury believed that any witness who had testified had willfully and deliberately testified falsely to any fact or matter material to the issue involved, the jury would be at liberty to disregard the entire testimony of the witness, except in so far as corroborated by other credible witnesses, was erroneous as contradictory to Rev. Codes, & 8028, subd. 3, providing that the jury are the judges of the effect or value of legitimate business or derived from her unevidence, except when declared to be conclusive, but are to be instructed that a witness false in one part of his testimony is to be distrusted in others. Appeal from District Court, Yellowstone County; Geo. W. Pierson, Judge. Gust Kanakaris was convicted of an offense, and from the judgment, and order denying his motion for new trial, he appeals. Judgment and order reversed, and cause re manded for new trial. lawful occupation. The punishment was adjusted to effectuate the purpose, for every violation of the section subjects the offender to imprisonment in the penitentiary without the alternative privilege of paying a fine aud remaining a large. State v. Jones, 51 Mont. 390, 153 Pac. 282. [3] The most cursory reading of the information discloses that the defendant was charged with a violation of section 8, and also with a violation of section 9. "The inH. C. Crippen and J. H. Johnston, both of dictment or information must charge but one Billings, for appellant. S. C. Ford, of Hel-offense." Section 9151, Rev. Codes. Counena, and Frank Woody, of Butte, for the sel for the defendant sought to avail themState. selves of the defect, by a motion to compel the county attorney to elect, as between the HOLLOWAY, J. The defendant was pros- two offenses charged, the one upon which he ecuted for a violation of certain provisions would seek conviction; but they were in erof chapter 1, Laws of 1911, was convicted, ror as to their remedy. Section 9208, Resentenced to imprisonment in the peniten-vised Codes, provides that, when it appears tiary for not less than 15 years nor more than 20 years, and has appealed from the judgment and from an order denying his motion for a new trial. upon the face of the information that more than one offense is charged, the objection "can only be taken by demurrer"; and, by pleading over and failing to demur, the ob jection was deemed to be waived so far as I den by statute. Sections 8024 and 8031, Rev. I any question of pleading is concerned. Sec- Codes; State v. Rogers, 31 Mont. 1, 77 Pac. tion 9353, Rev. Codes; State v. Mahoney, 24295. Mont. 281, 61 Pac. 647; State v. Gordon, 35 Mont. 458, 90 Pac. 173. [7] 7. To the witness Schultze the county attorney propounded certain questions to 2. The verdict returned declared the de- each of which an objection was interposed fendant "guilty of the crime of living upon and sustained. Three other witnesses were the earnings of a woman engaged in prosti- then called to the stand by the county attution as charged in the information." In torney, and to each one of them he propoundother words, he was adjudged guilty of vio-ed the same or similar questions, with the lating the provisions of section 9 of the chapter under consideration. 3. The evidence tends to prove that the defendant, who was proprietor of a rooming house, induced a woman employed by him as chambermaid to engage in prostitution and to divide with him the proceeds of her illicit practices, and it goes no further. On the contrary, the evidence is not in dispute that defendant never lived with the woman, and, so far as it tends to any conclusion upon the subject, it establishes that he had independent means and was not dependent for his living, in any degree, upon the money furnished by the prostitute. [4] 4. The record presents this singular situation: The defendant was charged with two distinct offenses; the evidence tends to prove him guilty of one only, while the jury found him guilty of the other one. It is elementary that, if the evidence does not prove the commission of the crime of which the defendant is convicted, it is insufficient to sustain the verdict, even though it tends to prove another and independent offense. [5] 5. During the examination of witnesses for the state, the county attorney, over the objections of the defendant, asked numerous leading questions. Section 8019, vised Codes, provides: same result. The conduct of the attorney was contemptuous, and from the character of the questions must have resulted in prejudice to the accused. If an objection is sustained upon the ground that the question is improper in form, the form may be varied and the question repeated; but, when an objection is sustained upon the ground that the evidence which the question seeks to elicit is inadmissible, there cannot be any justification for repeating it. This subject has recently received extended consideration from this court which need not be repeated here. State v. Jones, 48 Mont. 505, 139 Pac. 441. [8] 8. Complaint is made of instruction No. 3 given by the court. The instruction is erroneous, but the error was committed against the state. The defendant cannot complain that the court imposed upon the prosecution the burden of proving both offenses charged, in order to establish one of them. There is not any merit in the other assignments. [9] (9) As this cause must be remanded for a new trial, attention is directed to the last paragraph of instruction 12, as follows: "If you believe from all the evidence in the case that any witness who has testified in this Re-ly to any fact or matter material to the issue case has willfully and deliberately testified falseinvolved herein, then you will be at liberty to disregard the entire testimony of any such witness, except in so far as it may be corroborated by other and credible evidence in the case." "On a direct examination leading questions are not allowed, except in the sound discretion of the court, under special circumstances making it appear that the interests of justice require it." This court does not reverse a judgment of conviction, for mere technical irregularities which could not affect injuriously any substantial rights of the accused; but such a course of trial procedure may be adopted and pursued that the losing party may com.plain justly that he was denied the fair and impartial trial guaranteed to every one by the Constitution of this state. It is not necessary to consider these assignments further, for it is not probable that the errors will be committed upon another trial of this cause. This instruction is erroneous, is contradictory of subdivision 3, § 8028, Revised Codes, and has been condemned by this court. State v. Penna, 35 Mont. 535, 90 Pac. 787, overruling State v. De Wolfe, 29 Mont. 415, 74 Pac. 1084. The judgment and order are reversed, and the cause is remanded for a new trial. Reversed and remanded. BRANTLY, C. J., and SANNER, J., con cur. GREAT NORTHERN RY. CO. v. FISKE. (No. 3829.) (Supreme Court of Montana. Nov. 22, 1917.) 1. EMINENT DOMAIN 251-CONDEMNATION PROCEEDINGS- RIGHT TO APPEAL STATUTORY CHARACTER. [6] 6. Upon the cross-examination of the defendant he was asked many questions by the county attorney, the purpose of which was to show that he had been guilty of numerous minor offenses, independent of the crime for which he was being tried. The attorney could have had no other object in In a railroad's proceedings to condemn land, view than to impeach the defendant or de- the right to appeal is purely statutory, and may be granted to or withheld from either party or grade him in the estimation of the jury, and both in the discretion of the Legislature, if no for either purpose the questions are forbid-constitutional provision is infringed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes of the award, and "for that reason this court is without jurisdiction to hear and determine said appeal." This motion was sustained by the district court; judgment was entered upon the award as made by the commissioners, and from that judgment this appeal is taken. 2. EMINENT DOMAIN_253(2) — CONDEMNA- |sions of said section, in that it is not taken TION OF LAND BY RAILROAD-APPEAL FROM from the whole, but only from certain parts, ENTIRE AWARD- STATUTE "ASSESSMENT.' In view of Rev. Codes, §§ 7342, 7343, 7346, and 7349, relative to the condemnation of land under power of eminent domain, under section 7344, in a railroad's proceeding to condemn a strip of ground, the road could not appeal only from such portions of the award as it was dissatisfied with, but was required to appeal from the entire award, the words "any assessment" in the section referring not to the findings or specifications going to make up the award, but to the award itself-the total assessment of damages as made pursuant to section 7341. [1] The sole question presented is whether the plaintiff's attempt to appeal under section 7344 was sufficient, or, to paraphrase the [Ed. Note. For other definitions, see Words language of plaintiff's counsel. Is either parand Phrases, First and Second Series, Assess-ty, in taking such an appeal, required to apment.] peal from the entire award, or may either Appeal from District Court, Fergus Coun-party appeal from only those portions of it ty; Roy E. Ayers, Judge. * * * SANNER, J. By appropriate proceedings begun in the district sourt of Fergus county, the plaintiff sought to condemn for railroad purposes a strip of ground containing 13.86 acres across the northwest quarter of section 36, township 16 N., range 17 E. M. P. M., belonging to the defendant. In due course the usual order was made declaring that the purposes to be served by the taking constitute a public use, and appointing commissioners "to ascertain and determine, according to law, the compensation to be paid by reason of the appropriation." The commissioners, proceeding as required by Code, § 7341, met, viewed the premises, heard the testimony offered, and made return into court of their findings as follows: I. That the actual value of the property sought to be taken is $1,386. II. That the damages by reason of such taking which will accrue to the portions of defendant's land not sought to be taken, is $833.35. III. That the portion of defendant's property not sought to be condemned will not be benefited by such taking. IV. That the cost of good and sufficient fences and cattle guards is $200; "that the plaintiff shall pay to said defendant as compensation and net damages" for such taking, "the sum of $2,219.35, and shall also pay to him the cost of fences and cattle guards, or give bond as required by law." Thereafter, and within the proper time, the plaintiff filed its notice, claiming under section 7344, Revised Codes, to appeal "from all those several parts of the award, report, and assessments of the commissioners," to wit, parts I and III above mentioned; whereupon the defendant moved to dismiss the appeal as not taken in accordance with the provi * * with which he is dissatisfied? We question whether, under section 7344, the plaintiff was entitled to appeal at all. A broad construction of the first sentence of that section and some of the provisions of section 7349, would indicate that it was; but the remainder of these sections as clearly implies that the right of appeal is confined strictly to the ownIt is the settled rule that in proceedings such as this the right to appeal is purely statutory and may be granted to, or withheld from, either party or both, at the discretion of the Legislature, if no constitutional provision is thereby infringed. This question, however, we do not decide, preferring to assume, for the purposes of the present case, that such right does exist in the condemnor. er. [2] The plaintiff grounds its contention upon the proposition that section 7344 authorizes an appeal from "any assessment," and argues that, since under section 7341 the commissioners are required to "ascertain and assess" the various elements of damage (but not the total), each finding made in accordance with that section, constitutes "an assessment" from which appeal will lie. We think this is untenable. The very section (7344) on which the right of appeal depends, provides that the appeal"shall be brought on for trial upon the same notice and in the same manner as other civil actions, and unless a jury shall be waived by the consent of all parties to such appeal, the same shall be tried by jury, and the damages to which pellant may be entitled by reason of the appropriation of his property, shall be reassessed upon the same principle as hereinbefore prescribed for the assessment of such damages by commissioners." This clearly implies that not only is the case to be tried de novo before the jury, but it is to be tried de novo as to all the elements which go to make up "the damages," to which the owner may be entitled "by reason of the appropriation of his property." Again: |