In re Webers.. State ex rel. v. Loomis, 115 Mo. 307. (4) What becomes of the fifty cents fee after it is collected by the police officer is a very essential subject of inquiry in determining the constitutionality of the law. If the ultimate destination of the money collected is unlawful, then such law thereby becomes invalid, null and void. State ex rel. Heaven v. Ziegenhein, 144 Mo. 283; State ex rel. v. Switzler, 143 Mo. 287; State ex rel. v. St. Louis, 216 Mo. 47. Holland, Rutledge & Lashly for respondents and intervenor. (1) The provision of section 3459, Revised Statutes 1909, as amended by the Laws of 1913, page 192, make it mandatory upon the police officer to collect the fifty cents bond fee. (2) What becomes of the fifty cent fee after it is collected by the police officer is no concern of this petitioner, but is a matter altogether between the city and the Police Relief Association. (3) The portion of section 3459 as amended providing for the taking and collection of the bond fee has never been declared unconstitutional, and is a valid and integral part of our law. (4) The fact that a part of the statute is unconstitutional does not affect the validity of the remainder. Green County v. Lydy, 263 Mo. 77, p. 95; State ex rel. Bixby v. City of St. Louis, 241 Mo. 231; State ex rel. v. Gordon, 236 Mo. 142; State ex rel. v. Taylor, 224 Mo. 393. (5) The case of State ex rel. v. Kimmel, 256 Mo. 611, did not undertake to pass upon the validity of the part of section 3459 now in question, and the language of the opinion expressly indicated the part that was declared unconstitutional, none of which part is now in question. (6) The constitutionality and validity of the statute is assumed, and the courts will not adjudge invalid an act of the Legislature unless its violation of the Constitution is clear, complete and unmistakable. (7) The petitioner has no more concern with the disposition of the bond fee than with the disposition of any fine that might be imposed on him, and has no more right In re Webers. to question the power to hold him for the failure to pay one than the other. BECKER, J.-This is an original proceeding for a writ of habeas corpus. When the matter was first before us this court entertained a doubt as to its jurisdiction because a constitutional question (and arising on the return) was involved on the record and in view of the proceedings had in Ex parte Nelson, 251 Mo. 63, 157 S. W. 794, transferred the case to the supreme court for its determination. [In re Webers, 200 Mo. App. 29, 197 S. W. 850.] However the supreme court remanded the record to this court holding that while it had "sub silentio" entertained jurisdiction in the Nelson case, no question had been raised in that case as to the supreme court acquiring jurisdiction by the transfer of the cause from the Kansas City Court of Appeals, whereas, in the present case the question was directly raised, and that while section 6 of the Amendments of 1884 of the Constitution of the State of Missouri permits and requires certain cases to be certified, and that while under section 3 thereof section 3938, Revised Statutes of Missouri, 1909, had been enacted by the Legislature providing that "in the event of any case being sent improperly on appeal or writ of error from a lower court to either of the courts of appeal, when the same should have been sent to the supreme court," it shall be transferred to the supreme court, yet such section specifically limits this provision to cases on appeal or writ of error and withholds the power to transfer in any other cases. In other words the supreme court in this case when before it, distinctly ruled that courts of appeal are without authority to transfer writs of habeas corpus sued out under the Habeas Corpus Act upon petition to either the courts of appeal or to any one of the judges thereof, even though it be found that a constitutional question is involved. [See In re Webers, 205 S. W. 620.] 1 Mo. Peters v. Lusk et al. We have heretofore held that the constitutionality of section 3459, Revised Statutes of Missouri, 1909, and amendments thereto, are involved in this case (In re Webers, 200 Mo. App. 29, 197 S. W. 850), and this court being without jurisdiction where a constitutional question is involved (In re Webers, Mo. 205 S. W. 620) it follows that the writ heretofore issued herein must be and the same is hereby quashed and the petitioner remanded to the custody of the respondents herein. Reynolds, P. J., and Allen, J., concur. MARTIN O. PETERS, ADMINISTRATOR OF THE ESTATE OF WILLIAM P. PETERS, deceased, Respondent, v. JAMES W. LUSK, WILLIAM C. NIXON, and WILLIAM B. BIDDLE, Receivers of ST. LOUIS AND SAN FRANCISCO RAILROAD, Appellants. St. Louis Court of Appeals. Opinion Filed November 6, 1918. 1. TRIAL PRACTICE: Demurrer to Evidence: Effect. On defendants' demurrer to the evidence at the close of the entire case, plaintiff is entitled, in addition to such testimony as may have been adduced on his behalf, to the benefit of any favorable testimony adduced by defendants' witnesses, and where testimony of defendants' witnesses is contradicted it must, for the purpose of considering the demurrer, be taken as false, and plaintiff must also be allowed the benefit of any reasonable inference of fact arising on all the proof. 2. RAILROADS: Death on Track: Contributory Negligence: Invitee: Station Grounds. Even though the deceased was an invitee and upon station grounds he was guilty of negligence directly contributing to his death, when, after he got into the clearing between the two station buildings and before passing onto the main track, he did not look for the approaching train, the rays of light from the headlight of which were streaming down the tracks, and which train, by the most casual glance, he could have seen approaching. 3. : : : Peremptory Instruction. In such case a peremptory instruction to find for defendants asked at the conclusion of the entire case, should have been given. Peters v. Lusk et al. Appeal from the Circuit Court of the City of St. Louis. -Hon. George H. Shields, Judge. REVERSED. E. T. Miller, A. E. Heid, A. P. Stewart, for appellants. (1). The demurrer to the evidence should have been sustained, and the peremptory instruction reguested by defendants at the close of all the evidence should have been given. On the undisputed facts disclosed by the record, deceased, at the time and place of the accident, was guilty of negligence directly contributing to his death. This, under all the authorities, bars a recovery. Vandeventer v. Railway, Mo. —, 177 S. W. 834; Burnett v. Railroad, 172 Mo. App. 51; Farris v. Railroad, 167 Mo. App. 392; Newton v. Railroad, 152 Mo. App. 167; Moody v. Railway, 68 Mo. 471; Boyd v. Railway, 105 Mo. 371; Watson v. Railway, 133 Mo. 246; Kelley v. Railroad, 75 Mo. 140; Kreis v. Railway, 148 Mo. 321; Maxey v. Railway, 113 Mo. 1; Tanner v. Railway, 161 Mo. 497; Moore v. Railway, 176 Mo. 544; Schmidt v. Railway, 191 Mo. 228, 229; Green v. Railway, 192 Mo. 131; Porter v. Railway, 199 Mo. 96, 97; King v. Railroad, 211 Mo. 1; Laun v. Railroad, 216 Mo. 563; Rollison v. Railroad, 252 Mo. 542, 543; Keele v. Railway, 258 Mo. 77, 78. (2) Instruction No. 1 given on behalf of plaintiff is erroneous and conflicts with the instruction given by the court at the request of defendants. Defendants' given instruction correctly states the law applicable to the facts as shown by the evidence, and is supported by the authorities, supra. It is, in effect, a peremptory instruction to find for defendants. Plaintiff's instruction No. 1 is opposed to these authorities. Authorities cited under Point 1. Plaintiff's said instruction No. 1 is further erroneous in that it is misleading and is not supported by the evidence. (3) The court erred in giving plaintiff's instruction No. 3. This instruction is a mere abstract Peters v. Lusk et al. statement of law, and has no bearing on the issues as made by the pleadings, or the parts as developed by the evidence. A general duty to run a train without negligence becomes a particular duty to no one until he is in a position to complain of the negligence. Frye v. Railroad, 200 Mo. 407; Nivert v. Railroad, 232 Mo. 648. (4) Instruction No. 6 given for the plaintiff, on the measure of damages, is erroneous. Hegberg, Adm., v. Railroad, 164 Mo. App. 559; Johnson, Adm., v. Mining Co., 171 Mo. App. 143; Troll, Adm., v. Gas Light Co., 182 Mo. App. 609; Kirk, Adm., v. Railroad, 265 Mo. 341; Smelser, Adm., v. Railroad, 262 Mo. 39, 42; Colvin v. Railroad, 200 S. W. 715. Blodgett & Rector, for respondent. (1) The demurrer to the evidence was properly overruled, because: (a) Where on many on many previous occasions large crowds have assembled ́at a station and occupied a level plateau in the front of the station house when waiting for trains the carrier must anticipate the reoccurrance and take extra precaution to prevent accident. (b) The local which deceased was expected to take being scheduled to depart from Valley Park almost immediately after the westbound express triain passed through, the deceased had the right to assume that appellants would operate its express train with every reasonable precaution to prevent injury. (c) That acquiescence of the appellants for years in the use of its station grounds by passengers or intended passengers and by the public at large, raised the presumption that the operatives of the train knew, or should have known, of such use at the point where deceased was killed. (d) It was gross negligence for appellants to propel a fast express train through unguarded station grounds at Valley Park, a place of five thousand inhabitants, at night at forty-five miles an hour without ringing a bell or sounding a whistle or giving other proper warning of the approach of the train. (e) It was the duty of appellants to use ordinary care in running its train through its station grounds |