train, and that he continued to be such passenger after he alighted from the defendant's train under the circumstances above set forth and up to such time as he would have made his egress from the defendant's premises had he not been struck by its train; and that being such passenger, the defendant owed him the highest degree of care and was bound to give him warning of its approaching train, and that not having done so it is responsible for his injuries. Conceding, though not deciding, that the relation of carrier and passenger continued to exist between the plaintiff and the defendant after he had passed the station to which his ticket entitled him to ride, and after he had insisted upon being let off at said station notwithstanding the terms of his commutation contract above quoted, and after he had consented to leave and had left the defendant's train at the place and under the circumstances above detailed, we are still of the opinion that the plaintiff's own undisputed evidence shows him to have been guilty of such negligence proximately causing his injuries as must have prevented his recovery in this action. [2] The fact that a carrier may owe to its passengers the highest degree of care in safeguarding their exit from the carrier's premises after leaving its trains does not absolve the passenger from the duty of himself using ordinary care under the circumstances attending his departure from the carrier's train and grounds. (Holmes v. Southern Pacific Ry. Co., 97 Cal. 161, [31 Pac. 834].) The undisputed evidence, as presented by the plaintiff himself, discloses that however much or little the defendant's agents may have been at fault in permitting the plaintiff to gain access to and to take passage upon a train which was not scheduled to stop at his station, he did in fact, and without inquiry on his own part, board such a train, and being so on board and evidently not desiring to be carried to its first regular place of stoppage at San Jose, conformably to the stipulation of his ticket-book, he demanded that the officials of the defendant in charge of said train should depart from its schedule and violate their instructions by stopping the train at the Palo Alto Station; and when the conductor, declining to comply with this demand, finally agreed to halt the train momentarily in the freight-yards of the defendant, some one thousand two hundred feet or more beyond said sta

tion, the plaintiff consented to alight at said place, and did so; and, having done so, found himself standing by the west side of one of the defendant's several tracks about fifty yards from a street crossing to which, along the rails by which he stood, ran a smooth pathway to said street, and beyond it back to the station. He either did not see or did not choose to take said pathway, but started obliquely across the rough grounds and raised tracks, where no pathway or crossing was, on his way to the east side of the several tracks of the defendant at their point of intersection with said street. The plaintiff had lived in Palo Alto for several years and must have known that trains of the defendant passed frequently through that city. Being upon its tracks at a point other than the regular station or stopping place of such trains, and at a place where persons, whether or not they held the relation of passengers of the carrier, were not expected to be, and where trains were not accustomed to stop; and being minded to cross said tracks where no pathway was, it was plainly the duty of the plaintiff to walk circumspectly and to watch for approaching trains before essaying to cross the tracks of the defendant in the manner and direction which he chose to go. Had he dene this he could not have failed to observe the rapidly approaching train coming from the southward along a straight track and visible for at least half a mile. If his view in that direction was obstructed by the departing train from which he had just alighted, it was all the more his duty to proceed cautiously, but instead of doing so, according to his own testimony, he started, as soon as he was clear of the rear end of said departing train, and with only a glance in its direction which gave him a view of but forty or fifty feet of the adjacent north-bound track, to walk diagonally to the northward with his back partially at least in the direction from which the north-bound train was coming, and without another look in that direction until said train was so close upon him that, although he was not yet upon the track on which it was approaching, he could not, by stepping backward, avoid being struck by it as it went by.

[3] Under the circumstances of this case as thus summarized from the plaintiff's own testimony, we think that he was clearly guilty of such negligence as a matter of law as must have prevented his recovery in this action.

The language of the case of Holmes v. Southern Pacific Ry. Co., supra, is particularly applicable to the case at bar because of the similarity of its facts, and also because the plaintiff in that case, as it is claimed in the instant one, occupied the relation of a passenger to the defendant. The court said: "A railroad track upon which trains are constantly run is itself a warning to any person who has reached years of discretion and who is possessed of ordinary intelligence that it is not safe to walk upon it, or near enough to it to be struck by a passing train, without the exercise of constant vigilance in order to be made aware of the approach of a locomotive, and thus be enabled to avoid receiving injury; and the failure of such a person so situated with reference to the railroad track to exercise such care and watchfulness, and to make use of all his senses, in order to avoid the danger incident to such situation, is negligence per se."

It may be said, in conclusion, that the doctrine of "last clear chance," invoked for the first time by the appellant at the oral argument and in the briefs filed subsequent thereto, has no application to the facts of the case at bar. Judgment affirmed.

Kerrigan, J., and Waste, P. J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on September 22, 1919.

Shaw, J., Melvin, J., Wilbur, J., and Olney, J., concurred. Lawlor, J., dissented.

[Civ. No. 2989. First Appellate District, Division One.-July 28, 1919.] KENNETH G. KELSEY, Appellant, v. COYLE J. TRACY, Respondent.

[1] PHYSICIANS AND SURGEONS ACTION FOR DAMAGES FOR MALPRACTICE STATUTE OF LIMITATIONS.-An action to recover damages for alleged losses of time and wages and expenses incurred and for pain in body and mind suffered by reason of the alleged want of knowledge and unskillfulness of the defendant as a physician and

surgeon in the treatment of the plaintiff for certain bodily injuries, is barred by the provisions of subdivision 3 of section 340 of the Code of Civil Procedure where it is commenced one year and six months after said treatment had ceased.

APPEAL from a judgment of the Superior Court of Los Angeles County. Grant Jackson, Judge. Affirmed.

The facts are stated in the opinion of the court.

Flint & Jutten for Appellant.

W. H. Dehm and Buron R. Fitts for Respondent.

RICHARDS, J.-This is an appeal from a judgment in the defendant's favor after an order sustaining the latter's demurrer to the plaintiff's second amended complaint.

[1] The action is one in which the plaintiff seeks to recover damages from the defendant for alleged losses of time and wages and for expenses incurred and pain in body and mind suffered by reason of the alleged want of knowledge and unskillfulness of the defendant as a physician and surgeon in the treatment of the plaintiff for certain bodily injuries under an agreement engaging the defendant to treat plaintiff professionally for such injuries. The action. was commenced one year and six months after said treatment had ceased. The defendant's demurrer upon the ground that the action was barred by the provisions of subdivision 3 of section 340 of the Code of Civil Procedure was sustained, and judgment in his favor followed, from which judgment this appeal has been taken.

We are unable to distinguish this case either as to its substantial facts or as to the issue of law involved from the case of Harding et al. v. Liberty Hospital Corp., decided by this court in 24 California Appellate Decisions, page 1021, which decision was upon rehearing affirmed by the supreme court in 177 Cal. 520, [171 Pac. 98]. On the authority of that case and of the cases cited therein the judgment is affirmed.

Waste, P. J., and Bardin, J., pro tem., concurred.

[Crim. No. 471. Third Appellate District.-July 28, 1919.]

THE PEOPLE, Respondent, v. CHARLES CAMP, Appellant.

[1] STATUTES-IMPEACHMENT OF VALIDITY.-The validity of a statute, which had been duly certified, enrolled, and approved, and deposited in the office of the Secretary of State, cannot be impeached by a resort to the journals of the legislature, or by extrinsic evidence of any character.

[2] ID. VALIDITY OF SECTION 288, PENAL CODE-FAILURE TO READ AT LENGTH AFTER AMENDMENT.-Section 288 of the Penal Code which provides that "any person who shall willfully and lewdly commit any lewd or lascivious act other than the acts constituting other crimes provided for in part two of this code upon or with the body, or any part or member thereof, of a child under the age of fourteen years, with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of such person or of such child, shall be guilty of a felony and shall be imprisoned in the state prison not less than one year," is not subject to attack on the ground that the same, after being amended in the Senate, was not read at length in the assembly.

[3] ID.-CONSTITUTIONAL LAW-SUFFICIENCY OF TITLE.-The title to section 288 of the Penal Code, as it was enacted by the legislature of 1901, reading "An act to amend the Penal Code by adding a new section thereto, to be numbered section two hundred and eightytwo, relating to crime against children," sufficiently expresses the subject of the act as required by section 24 of article IV of the constitution.

[4] ID.-TITLE AND ACT NOT CONFLICTING.-The title of said act, declaring in general terms that the subject of the act involves crimes against children, is not inconsistent with the act itself, which specifically sets forth the acts constituting the crimes to which the title refers; nor is such title misleading or calculated to deceive or convey an erroneous impression as to the subject of the legislation involved in the act.

[5] ID.

SPECIAL LEGISLATION-ACT NOT UNCONSTITUTIONAL.-Section 288 of the Penal Code does not involve special legislation within

1. Admissibility of extrinsic evidence to impeach statutes, notes, 13 Am. Rep. 648; 51 Am. Rep. 616; 9 Ann. Cas. 582; 20 Ann. Cas. 350; Ann. Cas. 1918D, 253; 40 L. R. A. (N. S.) 30.

3. When title of statute is sufficient, note, 64 Am. St. Rep. 70. Construction of constitutional provisions relative to titles of statutes, notes, 1 Ann. Cas. 584; Ann. Cas. 1913A, 79.