Volume 135 — Kentucky Reports

<p>CASE 1— INDICTMENT AGAINST FRED MARCUM FOR MURDER —</p> <p>Appeal from Lawrence Circuit Court.</p> <p>J. B. Hannah, Circuit Judge.</p> <p>After a mistrial the Commonwealth certified certain questions to the Court of Appeals.</p>

<p>CASE 2. — SUIT BY JOSEPH D. ARNETT AGAINST T. P. CARD-WELL, JR., POLICE JUDGE, TO HAVE AN ORDINANCE ADJUDGED INVALID AND TO ENJOIN THE COLLECTION OP A REPLEVIN BOND. —</p> <p>Appeal from Breathitt Circuit Court.</p> <p>J. P. Adams, Circuit Judge.</p> <p>Prom an order denying relief, plaintiff appeals.—</p> <p>We rest our rights in this action and our claims for jurisdiction, nat alone on the common sense view of the situation, but upon the authority in the cases of Boyd v. Board of Councilmen, 25 Ky. Law Rep. 1311; 77 S. W. G69; Moody v. City of Middles-borough, 28 Ky. Law Rep. 60.</p> <p>The judgment of the circuit court herein should be affirmed for the following reasons:</p> <p>First. The petition is not sworn to, and no affidavit filed setting forth grounds for injunction. The amended petition is verified but does not state facts authorizing an injunction, and the prayer does not seek one.</p> <p>Second. The plaintiff has never 'executed an injunction bond in the circuit court, and therefore no valid injunction can be gi anted herein. Civil Code, Sec. 278.</p> <p>Third. Section 284, 'Civil 'Code, provides no injunction shall be granted to stay proceedings upon a judgmlent of a justice of the peace if the amount in controversy is less than $25. In this case the plaintiff seeks ito enjoin this collection of six judgments of $16 each.</p> <p>Fourth. The injunction must be sued out in the court Which rendered the judgment sought to be enjoined, and in this case the circuit court had no jurisdiction to grant an injunction to stay the collection of a judgment of the police court. Civil Code, sec. 28,5; Davis v. Davis, 10 Bush, 274; Jacobson v. Wirnest, 1917 Law Rep. 662; Shackelford v. Patterson, 23 Ky. Law Rep. 316.</p> <p>Fifth. The circuit court can not take jurisdiction in this case, ■ the plaintiff seeks no real relief except to be relieved from paying thes<9 fines, and there is no threatened injury to plaintiff from this ordinance; he does not state that he is threatened and •prevented thereby from continuing the sale of any malt drink prohibited in said ordinance.</p>

<p>CASE 3. — ACTION BY H. M. RUNYONS AND ANOTHER AGAINST T. H. BURCHETT, IN WHICH HE PILED A COUNTERCLAIM —</p> <p>Appeal from Floyd Circuit Court.</p> <p>D. W. Gardner, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals. —</p>

<p>CASE 4. — ACTION BY FRED E. STEVENS AND OTHERS AGAINST CITY OF LOUISVILLE TO RESTRAIN IT FROM PROSECUTING PLAINTIFFS FOR SELLING PISTOLS AT RETAIL WITHOUT A LICENSE</p> <p>Appeal from Jefferson Circnit Court (Chancery Branch, First Division).</p> <p>Shackelford Miller, Judge.</p> <p>Plaintiffs’ petition dismissed and they appeal.—</p> <p>POINTS AND AUTHORITIES..</p> <p>1. The right in a municipality to levy or collect taxes is a special delegated authority, and must be strictly complied with. .Kentucky Statutes, Section 2980; Schuster v. City of Louisville, 28 Ky. Law Rep. 528; City of Louisville v. Button, 26 Ky. Law Rep. 606.</p> <p>2. Where the main business pays a tax by way of license, it is to be presumed that the licensee shall have all of the privileges ordinarily included in, or incident to, that business. New Galt House Co. v. City of Louisville,' 111 S. W. 351.</p> <p>3. Both the statute of the State and the ordinance of the city defines what the business of a pawn broker is, and provides for a licensing of that business; and the appellants in this case have paid that license tax in both instances, and to compel' them to pay a second license tax upon an incidental business is to require a double license or tax 'Which is abhorrent to the Constitution of this State. New Galt House Co. v. City of Louisville, Ibid; City of Newport v. Fitzer, 115 Ky. Dee. 742.</p> <p>4. Where an ordinance is valid upon its face, and the alleged invalidity consists in matters to be established by exttinsic evidence, a court of equity will always interfere to determine the rights of the parties by injunction pending that determination. Brown v. Trustees of Catlettsburg, 11 Bush 437; Ludlow & Cin. Coal Co. v. City of Ludlow, 19 Ky. Law Rep. 1381; Shinkle v. City of Covington, 83 Ky. 420; Ewing v. City of St. Louis, 5 Wallace 413.</p> <p>5. Also to prevent a multiplicity of actions (whether criminal or civil) or irreparable injury.</p> <p>6. The license ordinance in this case is a revenue ordinance.</p> <p>7. The city of Louisville has -never received authority of law to impose upon any business or occupation a regulation ordinance, and the purposes of all ordinances must be specified in the ordinance. Schuster v. City of Louisville, 28 Ky. Law Rep. 528; City of Louisville v. Button, 26 Ky. Law Rep. 606.</p> <p>8. The petition in this case alleges all of the facts necessary under these decisions to establish equitable jurisdiction, and these facts are admitted to be true by the demurrer. Norman v. Ky. Board of Managers, 93 Ky.-j page 537.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The law presumes that the Police Court of the City of Louisville ¡would have correctly decided the' law and the fact had appellants been actually present before it for trial.</p> <p>2. Kentucky. Statutes, Section 2922, provides -an ample remedy at law in cases like the one at bar. "Where the fine inflicted by the Police Court is more than $20.00 the defendant may appeal to the Jefferson ¡Circuit Court; where the fine imposed is $20.00 ¿>r less the defendant is -entitled to a writ of prohibition to test the validity of the ordinance involved. -</p> <p>3. No warrants or summonses have ever been issued, but have only been threatened.' As Kentucky ¡Statutes, ;Sec. 2922, affords a complete remedy‘at law a Court of Equity will not interfere by injunction to restrain criminal proceedings. Smiser v. City of /Jynthiana, -.97 S. W. 35; In re Sawyer, 124 Ü. S. 209; Rogers v. Cincinnati, 5 McLean (U. S.) 337; Am. & Eng. Enc. of Law, 2d. Ed., vol. 16, p. 337; Shinkle v. City of Covington, 83 Ky. 420;, Ludlow & Cincinnati Coal Co. v. City of -Ludlow, 102 Ky. 354; High, on Injunctions, 3d Ed., sec. 1244; Louisville & Nashville Railroad Co. v. Barrall, 25 Ky. Law Rep. 1395.</p> <p>4. A pawn broker’s license does not confer the right to sell any class of personal property that the pawn broker may choose to take in'pledge. If this were not so, a pawn broker could sell cigarettes, intoxicating liquor, playing cards, and bowie knives as well as pistols. The ordinance requiring a license to sell pistols is a police measure and the fact that a pawn broker has paid a pawn broker’s license does not justify him in evading such police measure. Commonwealth v. Fowler, 17 Ky. Law Rep. 1209; Am. & Eng. Enc. of Law, Vol. 21, page 807; Bowser v. Thompson, 20 Ky. Law Rep. 21, 103 Ky. 331; Commonwealth v. Fowler, 96 Ky. 166.</p>

CASE 5 — ACTION BY B. F. WILLIAMSON AND OTHERS AGAINST W. H. MAYNARD AND OTHERS. Appeal from Pike Circuit Court. A. J. Kirk, Circuit Judge. Judgment for defendants, plaintiffs appeal. PROPOSITION. 1. The will was not signed by the testator nor acknowledged by him to be his will. 2. The subscribing witnesses contradict each other and the will is not therefore proven as the law requires. 3. Undue influence was used by W. H. Maynard to have C. W. Williamson make the will. 4.

<p>1 False Pretenses — Indictment.—Under Ky. St. 1909, Sec. 1208, making criminal the obtaining of money, property or other thing by false pretense, it is not necessary that the indictment charge that the person to whom the false pretense was. made sustained any loss, and an indictment charging defendant with obtaining money by falsely representing that he was of age, and thereby inducing the prosecuting witnesses to purchase land of him, was not defective, though impliedly admitting that the witnesses afterwards obtained a good title-to the land.</p> <p>2. False Pretenses — Infants—Representation as to Age. — Under Ky. St. 1909, Sec.' 1208, making criminal the obtaining of money, property or other thing by false pretenses, a statement by a minor that he is of age is a false statement, if made to induce another to enter into a contract that he would, not have otherwise entered into, and ,the one to whom the statement is made is induced to, and does, part with his money or property on the faith of it.</p>

CASE 7 — ACTION BY JOHN V. LeMOYNE AGAINST ENOS A. ROUNDTREE TO RECOVER LAND A-ppeal from Whitley Circuit Court. Wm. IT. Holt, Special Judge. Judgment for defendant, plaintiff appeals. A reversal of the judgment is asked on the following grounds: 1. Because of error.in instructing the jury. 2. Refusal to give a peremptory instruction to find for appellant. 3. The admission of incompetent testimony. .4. The verdict is flagrantly against the evidence. 5.

CASE 8. — ACTION BY W. H. SALMON AGAINST GEORGE SNADON. Appeal from Todd Circuit Court. W. P. Sandidge, Circuit Judge. Judgment for plaintiff, defendant appeals. POINTS AND AUTHORITIES CITED. 1. The judgment of the lower court is inequitable and oppressive to appellant, causing him to bear thie cost of appellee’s wrongdoing. 2. The judgment of the lower court is contrary to the judgment of this court in the case of Jennings v. Salmon, 30 Ky.

CASE 9. — ACTION BY THE PADUCAH COOPERAGE CO. AGAINST THE PADUCAH VENEER & LUMBER CO. Appeal from McCracken Circuit Court. W. M. Beed, Circuit Judge. Judgment for defendant, plaintiff appeals 1. The motion for a judgment non obstante veredicto should have been sustained by the court. 2. Testimony of an interested party as to admissions or transactions with the deceased agent of a corporation was inadmissible. 3.

CASE 10. — ACTION BY KEEL ROBERTS AGAINST W. J. THOMAS. Appeal from Henry Circuit Court. Chas. C. Marshall, Circuit Judge. Judgment for defendant, plaintiff appeals. POINTS AND AUTHORITIES. The only point we make in this case is that the action is for false imprisonment, and in actions of that character it is not necessary to allege in the petition want of probable cause or malice. Malice is not an ingredient of an action of this character.

CASE 11. — ACTION BY ERNEST EVANS’ ADMINISTRATOR AGAINST THE CUMBERLAND TELEPHONE & TELEGRAPH COMPANY. Appeal from Oldham Circuit Court. Charles C. Marshall, Circuit Judge. Dismissed on demurrer and plaintiff appeals POINTS AND AUTHORITIES. 1.

<p>Wills — Beneficiaries—Substitution—“Sister.”—ííy. St. 2064 provides that where a devise is made to several as a class, and one or more shall die before, and another or others shall survive testator, the share or shares ,of those dying shall go to • his or their descendants, or, if none, to the surviving devisees. Section 4841 (section 3964) provides that if a devisee dies before testator, or is dead at the making of the will, leaving issue who survive testator, such issue shall take as the devisee would have done. Testator devised the remainder, after a life estate in land, to his brothers and sisters. He had one sister who died without issue, before he did, and a half-sister who died before the will was made leaving issue who survived him. Held, that the will must be constrfied to mean “sisters” as a class, which being the case, the devise was controlled by section 4841, and the descendants of the hailf-sister took the share she would have had she survived testator.</p>

<p>CASE 13. — ACTION BY ANTHONY A. LANG’S ADMINISTRA-TRIX AGAINST THE CHESAPEAKE & OHIO RAILWAY CO.</p> <p>Appeal from Mason Circuit Court.</p> <p>James P. Harbeson, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The demurrer to the petition of plaintiff should have heen sustained. Reusch v. Licking Rolling Mill Co.,-118 Ky. 369; 80 S. W. 1168; Heindrick v. Louisville Elevator Co., 92 S. W. 608; King v. Creekmore, 77 S. W. 689; Simons v. Gregory, 85 S. W. 751’ Jacobs’ Adm’r v. C. & O. Ry. Co., 72 S. W. 808; Louisville, H. & St. L. Ry. Co. v. Jolly’s Adm’x., 90' S. W. 977; Dilas’ Adm’r. v. C. & O’. Ry. Co., 71 S. W. 492; Eastern Ky. Ry. Co. v. Powell, 33 S. W. 629; Davis’ Adm’r v. C. & O. Ry. Co., 116 Ky., 144; 75 'S. *W. 275; Gregory v. L. & N. R. R. Co., 79 S. W. 238; Gains & Co. v. Johnson, 105 S. W. 381.</p> <p>2. The trial court should have peremptorily instructed the jury to find for defendant.</p> <p>(a) 'Because no negligence upon the part of the defendant was shown which can be said to have been the proximate cause of the accident. Jacobs' Ad-m’r. v. C. & O. Ry. Co., supra; Louisville, H. & St. L. Ry. Co. v. Jolly’s Adm’r. Supra; Mobile & Ohio íty. Co. v. Dowdy’s Adm’x., 91 S. W. 709; Dilas’ Adm’r. v. C. & O. Ry. Co. supra; Eastern Ky. Ry. Co. v. Powell, supra;3 Elliott on Railroads, Sec. 1298; Illinois Central R. R. Co. v. Murphy’s Adm’r., 97 S. W. 729; L. & N. R. R. Co. v. Redmon’s Adm’r., 91 S. W. 722; C. & O. Ry. Co. v. Nipp’s Adm’r., 100 S. W. 246; L. & N. R. R. Co. v. Lowe’s A’dm-’r., 118 Ky. 260; Illinois Central R. R. Co. v. Tyson’s Adm’x., 108 S. W. 863; Nashville, &c., Ry. Co. v. Bean’s Ex’or., 110 S. W. 328; Cummings v. Illinois Central R. R. Co., 110 S. W. 809; Gregory v. L. & N. R. R. Co., supra; Edwards’ Adm’r. v. C. & O. Ry. Co., 108 S. W. 303; Illinois Central R. R. Co. v. Willis’ Adm’r., 97 S. W. 21; L. & N. R. R. Co. v: Taafe’s Adm’r., 50 S. W. 850; Helm V. L. & N. R. R. Co., 33 S. W: 396; Gresham’s Ad-rn’r. v. L. & N. R. R. Co., 24 S. W. 869; L. & N. R. R. Co. v. Penrod, 56 S. W. 1.</p> <p>(b) (Because of the contributory negligence of plaintiff intestate. Dilas’ Adm’r v. C. & O. Ry. Co., supra; Jacobs’ Adm’r v. C. & O. Ry. Co., supra ¡Louisville, H.'& St. L. Ry. Co. v. Jolly’s Adm’x., supra; Long’s Adm’r v. Illinois Central R. R. Co., 68 S. W. 1094; 113 Ky. 806; Illinois Central R. R. Co. v. McIntosh, 80 S. W. 496; 118 Ky. 145; Goodlet v. L. & N. R. R. Co., 122 U. S. 1391; Nelling v. Chicago, &c., Ry. Co. (Iowa), 67 N. W. 404; Wright v. Southern Ry. Co., 80 Fed. 260.</p> <p>3. The trial court erred in giving certain instructions and in refusing others. Hovius v. C-, N. O. & T. P. Ry. Co.,„107 S. W. 214; Flint v. Illinois Central R. R. Co., 88 S. W. 10,55; Wilmurth’s Adm’r. v. Illinois Central R. R. Co., 76 S. W. 193; L. & N. R. R. Co. v. Brown, 107 S. W. 321; C. & O. Ry. Co. v. Crank, 108 S. W. 276; L. & N. R. R. Co. v. King’s Adm’r., 115 S. W. 196; L. & N. R. R. Co. v. Harrod, 115 Ky., 377; 75 S. W. 233.</p> <p>AUTHORITIES.</p> <p>1. On the proposition that demurrer to petition was properly overruled, and the action of the court thereon will not now avail appellant. 2 Chitty on Pleadings, 650; Childs v. Drake, 2 Met. 149; L. C. & L. R. R. Co. v. Cases’- Adm’r., 9 Bush 732; L. & N. R. R. Co. v. Mitchell, 87 Ky. 334; Pagg’s Adm’r. v. L. & N. R. R. Co., Ill Ky. 30; L. & N. R. R. Co. v. Wolfe, 80 Ky. 82; Connell v. C. & O. Ry. Co., 22 Ky. Law Rep. 501; Lowe v. Miller, 104 S. W. 257; Duncan v. Brown, 15 Ben. Mon. 197; Western Assurance Co. v. Ray, &c., 105 Ky. 523; Bently v. Bustard, 16 B. Monroe, 690; Daniel v. Holland, 4 J. J. Mar. 18; Drake’s Adm’r. v. Semonin, 82 Ky. 291; Hill v. Ragland, &c., 114 Ky. 209; C. & O. Ry. Co. v. Thieman, 96 Ky. 507; Drakesboro Coal, Coke & Mining Co. v. Jeonegan, 99 S. W. 235; Harmon v. Thompson, 27 Ky. Law Rep. 181; L. & N. R. R. Co-, v. Daulton, 113 S. W. 842.</p> <p>2. On the proposition that the court did not err in refusing to instruct the jury peremptorily to find for defendant. Wilmurth’s Adm’r. v. Ill Central R. Co., 76 S. W. 193; Newport News, &c. v. Deuser, 97 Ky. 94; I. C. R. R. Co. v. Hocker, 55 S. W. 438; L. & N. R. R. Co. v. Tinkham’s Adm’r., 44 S. W. 439; Wren v. L. St. L. & T. Ry. Co., 14 Ky. Law Rep. 324.</p> <p>3. On the proposition that defendant owed .plaintiff’s intestate a lookout duty. Thompson on Negligence, Yol. 4, Sec. 4478; 2 Thompson on Negligence, Sec. 1839; Thompson on Negligence, Yol. 2, Sec. 1735; Hammill v.L. & N. R. R. -Co., 93 Ky. 343; L. & R. R. Co. v. Lowe, 118 Ky. 260; Shelby’s Adm’r. v. Cin., New Orleans & T. P. R. R. Co., 85 Ky. 229; L. & N. R. R. Co. v. Creighton, 106 Ky. 42; L. & N. R. R. Co. v. Seibert’s Adm’r., 21 Ky. Law Rep. 1603; Cin., N. O. & T. P. Ry. Co. v. Hill, 89 S. W. 523; Ca-son’s Adm’r. v. C. C. & C. E. R. & T. & B. Co., 93 S. W. 19; Perkins v. C. & O. Ry. Co., 94 S. W. 636; Davis v. Louisville H. & St. L. Ry. Co., 97 S. W. 1122.</p> <p>The following cases- cited by appellant distinguish from the case at bar: Eastern Ky. Ry. Co. v. Powell, 33 s. W. 629; Dilas’ Adm’r. v. Chesapeake & Ohio Ry. Co., 71 S. W. 492; Louisville & Henderson & St. Louis Ry. Co. v. Jolly’s Adm’r., 90 S. W. 977; Jacobs’ Adm’r. v. C. & O. Ry. Co., 72 S. W. 308.</p> <p>4. The question of contributory negligence was properly left to the jury. L. & N. R. R. Co. v. Lowe, 118 Ky. 260; Young v. I. C. R. R. Co., 24 Ky. Law Rep. 789.</p> <p>5 Appellant was not prejudiced by the instructions given in this case. Southern Ry. Co. in Kentucky v. Otis’ Adm’r., 25 Ky. Law Rep. 1686; Young v. I. C. R. R. Co., 24 Ky. Law Rep. 789; Childs v. Jones, 7 Dana, 540; Lynch v. Sanders, 9 Dana, 59; L. & N. R. R. Co. v. Connelly, 9 Ky. Law Rep. 993; Sims v. Reed, 12 B. Monroe 51; Sears’ Adm’r. v. L. & N. R. R. Co., 22 Ky. Law Rep. 152.</p>

<p>1. Elections — Nominations—Time for Filing Certificate. — Ky. St. Bee. 1450, requiring certificates and petitions of nomination to be filed with the clerk of the county not more than 60 and not less than 15 days before election, is mandatory, and the clerk has no right to place the name of a candidate upon the ballot, the certificate for which has been filed within 15 days of t'he date of election.</p> <p>2. Mandamus — Sufficiency of petition. — A petition for mandamus to the county clerk to- compel him to place petitioner’s name on the official ballot alleged that petitioner’s name was omitted by mistake from the original certificate of nomination, and that another certificate was prepared in which petitioner’s name was inserted; that the clerk refused to place petitioner’s name on the ballot; that the clerk discovered the omission of petitioner’s name from the first certificate, and took it from the box where he kept such certificates, and put it in a different box where it was not likely to be found; that he did this to conceal the omission from petitioner. Held not sufficient to justify mandamus, the time having elapsed within which under Ky. St. Sec. 1456 (Russell’s St. Sec. 4015), certificates should be filed before the amended certificate was filed, as the petition does not allege that the act of the clerk concealed from him the omission of his name from the original certificate, or that petitioner was prevented from seeing the certificate by reason of the change, or that he ever -called on the clerk to produce it, and was refused, or that the removal of the certificate from one box to the other was in anyway hurtful to him.</p>

<p>CASE 15. — ACTION BY THE EXECUTOR OF ROBERT BOYD, SR., AND OTHERS AGAINST NATHAN BUCHANAN AND OTHERS TO RECOVER LAND</p> <p>Appeal from "Whitley Circuit Court.</p> <p>M. J. Moss, Circuit Judge.</p> <p>Judgment for plaintiffs, defendants appeal.</p> <p>QUESTIONS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. In an action of ejectment issue is joined by filing an answer denying the allegation of ownership in plaintiff. Civil Code, subsection 2, section 125; Simms v. Simms, 88 Ky. 642; Howton v. Roberts, 20 R. 1331; Anderson v. Proctor Coal Co., 25 R. 131; Williams v. Watson, 19 R. 1798.</p> <p>2. It is surplusage to plead evidence of title in an action of ejectment.</p> <p>3. In an action of ejectment it is not incumbent on.defendant to respond to a pleading, setting forth mere evidence of title in plaintiff and nothing more. Tinsley v. Ross, 15 R. 44; Combs v. Combs, 19 R. 439; Grigsby v. Hart, 13 R. 920; Fuqua v. Bogard, 22 R. 1910.</p> <p>4. A'general demurrer searches the entire record and thus brings all previous pleadings before the court, and judgment on such demurrer should be against the party who committed thd first error. Wile v. Sweeney, 2 Duvall, 161; Martin v. McDonald, 14 B. M. ,544.</p> <p>5. It is not negligence in a party in failing to find a deed of record, but not indexed, and such, record is not notice. Elliott v. Harris, &c., 81 Ky. 470; Gill v. Fugate, 117 Ky. 266.</p> <p>6. A stranger to a deed' can not be estopped by it. 'Hume v. Breck, 4 Littell, 286.</p> <p>7. Before a matter can operate as an estoppel in pais, it must he shown that the party pleading it has .been prejudiced in some right of his by the act complained of; that he would have done something which he could have done but for the act, or that he was induced to do something that he' would not have done but for it. Western Bank v. Coldewey’s Ex’tx., 26 R. 1250; Wright v. Williams, 25 R. 1379.</p> <p>8. The law protects the party in possession against all but the rightful owner. Plaintiff must recover land upon the strength of his own title and not upon the want of title in the defendant. Green v. Wilson, 8 R. 601; Ratliff v. Elam, 14 R. 772; Long v. L. & N., 89 Ky. 544.</p> <p>9. In action of ejectment defendant, under general issue, may prove that he was in adverse possession of land in controversy at the time it was conveyed to plaintiff and thus defeat the action. Kentucky Statutes, Sec. 212; Shaw v. Revel, 21 R. 348.</p> <p>10. A defendant in ejectment is always at liberty to show that the legal title or present right of possession is vested in a third person, and thus prevent a recovery. Warrelle on Ejectment, Sec. 246.</p> <p>AUTHORITIES.</p> <p>Motion to dismiss appeal, Code Secs. 506, 734, 767; Hopkins v. Hopkin’s Adm’r., 91 Ky. 310; Magee v. Frazier’s Ex’or, 21 R. 254; 51 S. W. 174. Creditors of a decedent have no lien on real estate unless suit to settle the estate is filed within six months from his death. Ky. Stat. Sec. 2087; Parks v. Smoot’s Adm’r., 105 Ky. 63; 20 R. 1043; 48 S. W. 146.</p>

<p>CASE 16. — ACTIONS BY G. W. UPTON’S COMMITTEE AGAINST S. H. BUSH AND OTHERS AND AGAINST W. R. GADDIE AND OTHERS —</p> <p>Appeal from Hardin Circuit Court.</p> <p>Weed S. Chele, Circuit Judge.</p> <p>Judgment for defendants, plaintiff appeals.'</p> <p>QUESTIONS DISCUSSED.</p> <p>1st. The responsibility of appellees to the estate of Geo. W. Upton.</p> <p>•2nd. The right of appellant to counterclaim.</p> <p>3rd. The attack of appellees is á collateral attack.</p> <p>4th. Presumption that Upton was present at the inquest.</p> <p>5th. And being present no notice was necessary.</p> <p>6th. That appellees must ple^d he was not present and that a demurrer will not reach any defect, if any, in the inquest.</p> <p>7th. That the appellants were made parties by the appellees and sought relief of them, and they are estopped to claim that appellants cannot counterclaim.</p> <p>8th. That the court erred in not permitting Upton to sue in person or by next friend.</p> <p>QUESTIONS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. The inquest under which Rush was appointed committee was void, because the jury did not find any mental unsoundness. Menifee v. Ends, 97 Ky. 388; Hendricks v. Settle, 21 Rep. 1058; Taylor v. Moore, 23 Rep. 1572; Tipton v. Tipton’s Com., 97 S. W. 413.</p> <p>2. The inquest was also void because found by a jury of only six members. Ky.. Stats. 2151-2158; Constitution of the State, Secs. 7 and 248.</p> <p>. 3. The court properly refused to permit Rush to proceed with the suit in his name as next friend. Civil Code, Sec. ?7; Upton v. Handley, 30 Ky. Law Rep. 170.</p>

<p>1. Highways — Petition to .Open Road — Sufficiency.—Ky. St. 1909, Sec. 4288, provides that applications for opening roads shall be allowed 'only for the convenience of traveling to t'he county courthouse, to a public warehouse, an established town, etc. Section 4289 provides that applications to have a new road opened shall be to the county court signed by at least five landowners of the county, etc. Held, that a petition which is otherwise sufficient need not state that the proposed road was required to enable the petitioners to travel to one of the places named in section 4288.</p> <p>2. Highways — Establishment—Insufficiency of Petition — Demurrer. — Were it necessary that the petition should state that the proposed road was required to enable the petitioners to travel to one of the places named in Section 4288, Ky. St. 1909, the defect in failing to so state should have been taken advantage of by demurrer.</p> <p>8. Highways — Opening—Sufficiency of Petition- — -Review.—The failure of a petition for a .new road to state that it was necessary to provide access to any of the places to reach which a public road may be established under section 4288, Ky. St. 1909, is immaterial on appeal from a judgment establishing the road, where the report of the commissioners shows its necessity in order to reach several of the places mentioned in the statute, as the necessity for the .road will be determined from the entire record.</p> <p>4. Highways — -Opening—Commissioner’s Report — Amendment— Statutes. — While road commissioners could not amend their reports under the “General Statutes” under the Kentucky Statutes now in force, road commissioners may amend their-report.</p> <p>5. Highways — Petition for Road — Death of Petitioner. — Where one of six landowners, who had signed a petition for opening a road, died, it was not error for the circuit court to refuse to enter an order of revivor and to continue the case for that purpose, where there still remained five landowners concurring in the application, whose names still remained to the petition; Ky. St. 1909, Sec. 4289, only requiring the petition to be signed by five landowners.</p> <p>6. Highways — Road Commissioner’s Report — The report of road commissioners was written in the office of the attorneys’of the petitioners. One, of the attorneys, at the request of the • commissioners, calculated and arrived at the quantity of land that would be taken from each landowner for the proposed road. It is not claimed nor shown that the calculations were in any respect incorrect. The correctness of the report, was .testified to by the commissioners and approved by two juries .which had viewed the entire route of the new road and lands over which it ran. Held, that in the absence of allegations and proof of fraud or undue influence on the part of the attorney as to the preparation of the report, the fact that the commissioners received the assistance of the attorney in the preparation of their report would not invalidate it.</p> <p>7. Highways — Road Commissioner’s Report. — Road commissioners took luncheon with two of the petitioners for a new road during their work of viewing the route of the proposed road. It does not appear that they were improperly influenced by the hospitality of the .petitioners, nor was it shown that they were talked to on the subject of the road. Held, that it was not error to refuse to quash the report because of this, in the absence of testimony tending to show any improper conduct or conversation upon the part of the petitioners.</p> <p>8. Highways — Establishment—Commissioners’ Report. — It is not ground for dismissal of a petition for a public road that neither the petition nor the commissioners’ report gives the width of the proposed road. The statute prescribing the commissioners’ duties does not require their report to state the width, where the report which, with the petition, follows the statute, fixes the beginning and end of the road and the course and distances thereof, and where the order establishing the road fixes the width thereof at 30 feet, and makes the line of the survey the center thereof.</p> <p>9. Highways — Turnpikes and Toll Roads — Establishment— Statutes. — The legislature, after having already passed a law providing for the opening of all public roads (Ky. Stat. 1909. sec. 4289), later enacted the free turnpike statute (Ky. Stat. 1909, chap. 129, art. 6), which provided that all turnpikes thereafter constructed should be public roads. Sec. 4748b, subd. 5, provided that the fiscal court could acquire turnpike roads by gift, lease, or purchase, and provided for the construction of turnpikes when the public good demanded it, and subd. 6, declares all turnpikes so acquired or' constructed to be public roads to be maintained by the fiscal court. Held, that the failure of the Legislature to provide a manner for opening turnpikes, as distinguished from other public roads, shows conclusively that it considered the earlier law, for the opening of public roads ample for the- purpose, and proceeding to open either a public road or a turnpike may be had under the earlier statute.</p> <p>10. Highways — Opening—Proceedings1—Review—Court of Appeals — Scope.—Under the direct provisions of Ky. Stat. 1909, sec. 4303. relating to appeals in proceedings to open highways, the Court of Appeals have jurisdiction only of matters of law arising on the record.</p> <p>11. Highways — Costs—Appeal—Refusal to Accept Damages.— Where a party refused to accept damages allowed him by the report of road commissioners, and failed to recover as much either in the county or circuit court, he was not entitled to the costs.</p>

<p>1. Municipal Corporations — Streets—Obstructions.—Streets, including the pavements of a town, belong to the municipality for the use of the public traveling upon them for their whole length and width.</p> <p>2. Municipal Corporations — Obstructions of Streets — Nuisances —Abatement.—Any permanent structure built upon any part ot the public streets which interferes with their use by the public may be abated by the municipality, or be abated by the courts, at the instance of the town.</p> <p>3. Municipal Corporations — Use of Streets — Rights of Abutting Owners.. — The public will not be heard in equity to complain of an abutting owner’s act in obstructing a street, which does not unreasonably interfere with the public’s use of a street for travel.</p> <p>4. Adverse Possession — Street—Right to Obstruct — Title by Prescription. — A lot owner may acquire by prescription an exclusive right to occupy a public street with his building or partial obstruction.</p> <p>5. Adverse Possession — Obstructions of Streets — Nuisance— • Abatement. — Plaintiff erected in front of his house steps that extended upon the sidewalk. A former owner maintained an obstruction of the same character at the same place for more than 15 years prior to 1873. Others on the same block and in other blocks, where the sidewalks were narrow, were allowed to maintain other similar partial obstructions. Held, that the steps were not a purpresture and a public nuisance, which could be abated, the present owner having 'the right to maintain them, having an easement to- continue the obstruction maintained by the former owner, or one no more an obstruction, and the fact that others maintained like obstructions was evidence that it was not unreasonable, but a common custom.</p> <p>6. Words and Phrases — “Common.”—What is “common” is generally known to all.</p> <p>7. Municipal Corporations — Ordinances—Prohibiting Obstruction of Streets. — A town may prohibit the erection of steps extending upon the sidewalks by a general ordinance of uniform application.</p>

<p>CASE 19. — ACTION BY C. C. BROWN AND OTHERS AGAINST W. S. DYCUS AND OTHERS TO REMOVE DEBTS DUE UNDER A PARTNERSHIP SETTLEMENT.—</p> <p>Appeal from McCracken Circuit Court.</p> <p>W. M. Reed, Circuit Judge.</p> <p>Judgment for plaintiffs, defendants appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. It is not denied that appellees had “actual knowledge” of the filing of the petition in bankruptcy and actually advised and assisted in making the composition with creditors and they are-therefore, now precluded from asserting this claim which arose long prior to those proceedings. Jones v. Walter 115 Ky., 556, (74 S. W., 249); Gatliff v. Mackey, 104, S. W., 379.</p> <p>Confirmation of a composition discharges bankrupt. Bankruptcy Act, 1898, Sec. 14 c.</p> <p>2. The claim sued on was for money advanced long prior to .the filing of the petition in bankruptcy to purchase tobacco for a partnership composed of Appellees and Appellants under a written contract and was a “fixed liability” under section 63 Bank Act, 1898.</p> <p>Liability was fixed from the moment the money was advanced and the judgment appealed from really so considers it because interest is charged on the advancements from the time they were made long prior to the institution of the bankruptcy proceedings.</p> <p>3. But if we assume for the sake of argument that the liability was not actually fixed when the petition in bankruptcy was filed or prior thereto, the filing of the petition in this case was such a disenablement or repudiation of the contract as made it the right and duty of appellees to take steps to liquidate and prove their claim and they could have made it provable and are barred. In He Pettingill, 137 Fed. 143; In Re Hilton, 104 Fed., 981.</p> <p>4. Facts show the agreement alleged.</p> <p>5. Facts shown to exist constitute an estoppel and appellees can not take advantage of their own wrong, and if appellee’s contention is correct, a fraud was perpetrated to which they were a party and they are not entitled to relief therefrom.</p> <p>1. S. H. Cassidy & Co., nor their trustee in bankruptcy had any personal interest in the tobacco until the partnership was wound up, and the surviving partners were entitle to wind it up without the intervention of the bankrupt court.</p> <p>2. The claim of appellees was not a provable debt against S. H. Cassidy & Co., on October 16 1903, and was not affected by their discharge in bankruptcy. In re Pettingill & Co., 137 Fed. Rep., 143; In re Imperial Brewing Co., 143, Fed Rep, 579; Rawin V. Maguire, 15 Wall 549.</p>

CASE 20. — ACTION BY B. C. HICKS AGAINST A. S. WINSTEAD AND OTHERS Appeal from Henderson Circuit Court. J. W. Henson, Circuit Judge. Judgment for plaintiff, defendants appeal. POINTS AND AUTHORITIES. 1. The pleadings do not support the judgment. The appellant, sued only for the value of provisions and provender not on hand. 2. An execution defendant must notify either the sheriff or the plaintiff of his claim of exemptions.

<p>CASE 21. — ACTION BY THE LOUISVILLE DRY GOODS COMPANY AGAINST J. W. LANMAN AND -OTHERS —</p> <p>Appeal from Mercer Circiut Court.</p> <p>W. C. Bull, Circuit Judge.</p> <p>Judgment dismissed and plaintiff appeals.</p> <p>AUTHORITIES CITED.</p> <p>Kentucky Statutes, 1910-1911, &c.; Ebersole &c. v. Adams 10th Bush 83; Downer &c. v. Porter &c., 116 Ky.. 422, 76 S. W. 135;' Heidrich v. Silva, 89 Ky., 422, 11 R. 645; Linthicum v. Fenley, 11th Bush, 131; Eblen v. Brooks &c., 106 S. W.. 308; Collier on Bankruptcy, 6th Edition, 1907, pages 292, 145, 539, 901, 951; Bankrupt Law of 1867; Bankrupt Law of 1898; Bankrupt Law of 1898, sec. 11; In re Girdes, 4 Am. B. R. 346, 102 Federal 318; Matter of Bay City Irrigation Co., 14 Am. B. R., 370, 135 Fed. 850; In re English, 11 Am. B. R. (C. C. A.) 127 Federal, 940; In re Price, 1 Am. B. R., 602, 92 Federal, 987; Chattanooga Nat. Bank v. Rome Iron Co., 4 Am. B. R., 441, 102 Fed. 516; Thompson v. Fairbanks, 13 Am. B. R„ 437, 445, 196 U. S., 516.</p>

<p>CASE 22. — ACTION BY MARIA LAKES AGAINST T. C. BRON-STON’S ADMINISTRATOR ON " A F'ROMISSORY NOTE.</p> <p>Appeal from Madison Circnit Court.</p> <p>J. M. Benton, Circuit Judge.'</p> <p>Judgment for plaintiff, defendant' appeals.</p> <p>CITATION OP AUTHORITIES.</p> <p>Sec. 471, Ky. Stat.; Lord Mansfield in Pillans v. Van Mierop, 3 Burrows, 1663; Rann v. Hughes, 7 Term R., 350, 4 Bro. P. V. 27; Bliss on Code Pleadings, sec. 286; Phillips on Code Pleading; Letcher v. Taylor, 2 Bibb, ,585; Hart v. Coran, 3 Bibb, 26; Beauchamp & Yiester v. Bosworth, 3 Bibb, 115; 26 Am. & Eng. Ency. of Law, 529; Pendleton v. State Bank, 2 J. J. Met. 148; Johnson v. State Bank, 5 T. B. Mon. 119; 26 Am. & Eng. Ency. of Law, 616; Covington v. McNickle, 18 Ben Mon., 286; 2 Coke’s Institutes, 200; Rosin v. Lidgerwood Mfg. Co., 89 N. Y., App. Div. 245; 26 Am. & Eng. Ency. of Law, 610; Rodes v. Weldy, 46 O. St. 242, 15 A. St. Reps. 584; Shaw v. Railroad Company, 101 U. S., 565.</p>

<p>CASE 23. — ACTION BY THE BOARD OF. COUNCILMEN OF THE CITY OF FRANKFORT AGAINST MRS. JOHN H. MORGAN TO RECOVER TAXES ON CERTAIN REAL ESTATE.</p> <p>Appeal from Franklin Circuit Court.</p> <p>E. L. Stout, Circuit Judge.</p> <p>Judgment for plaintiff, defendants appeal.</p> <p>AUTHORITIES CITED.</p> <p>O’Bryan, Clerk v. City Owensboro, 24 Ky. L. R., 471; Ky. Statutes, Secs. 3364 and 3400.</p>

<p>CASE 24. — ACTION BY DUQUESNE DISTRIBUTING CO; AGAINST JOSEPH GREENBAUM AND ANOTHER ■FOR SLANDER.</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch., Second Division). •</p> <p>Thos. R. Gordon, Judge.</p> <p>From a judgment of dismissal on demurrer to the petition the plaintiff appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. A joint action against two or more for slander cannot be maintained. Webb v. Cecil & Vaughn, 9 B. M. 198 Townsend on Slander & Libel, Sec. 118 and note.</p> <p>2. To hold the principal liable for the slanderous utterances of his agents or servants, there must have been express authority or a subsequent ratification. Newell on Defamation, Slander & Libel, 373; 18 Am. & Eng. Ency. of Law, 1059; S. M. Burgess & Co., v. Patterson, 32 Ky. Law Rep., 624.</p> <p>3. The language charged is not actionable per se, consequently special damages must be alleged. 25 Cyc. 455; 5 Enc. Pleading & Practice, 768; Windsich Company v. Bacon, 21 Ky. Law Rep. 928; Newell on Defamation, &c., page 868; Tharp v. Nolan, 119 Ky. 870; McNamara v. Shannon, 8 Bush 558.</p> <p>4. The language charged to appellees is not defamatory and not actionable, as it does not affect appellants in their trade, calling or occupation. Winsett v. Hunt, 21 Ky. Law Rep. 922.</p>

<p>1. Carriers • — ■ Passengers — Injuries — Actions — Evidence.—In a street car passenger’s action for injuries sustained while' alighting, by the alleged sudden starting of the car, evidence held not to support a verdict for plaintiff.</p> <p>2. Damages-Instructions — Personal Injuries. — Where the -petition in a personal injury action alleged that plaintiff lost 20 weeks from her work because -of the injuries, and was permanently injured, so- that the only elements of damage were the time lost and permanent inpairment of earning power, the instructions as to the latter item of damages should have permitted recovery only for the “permanent”' impairment of plaintiff’s ability to earn money, so a-s to exclude recovery under that item for time lost.</p>

<p>CASE 26. — MOTION BY DAISY D. SEBASTIAN AGAINST W. G. ROSE TO SHOW CAUSE WHY HE SHOULD NOT BE PUNISHED FOR CONTEMPT FOR FAILING TO PAY ALIMONY ADJUDGED TO HER IN A DIVORCE ACTION.</p> <p>Appeal from Owsley Circuit Court.</p> <p>L. D. Lewis, Circuit Judge.</p> <p>From a judgment denying the motion plaintiff appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Judgment for alimony may be enforced by Rule and Attachment. 18 Ky. Law Rep. 941, Evans v. Stewart, &c.; 99 Ky. Rep. 31, Tyler v. Tyler</p> <p>2. The acts or statements of a person are not competent evidence against another in the absence of evidence showing that the one making them had authority from the other party to act' for him as to the particular matter to which they relate.</p> <p>3. The judgment is not sustained by competent evidence.</p> <p>4. An attorney cannot in the absence of express authority release his client’s claim or any part of it by way of compromise or otherwise. 3 Met. 438, Smith’s Heirs v. Dixon, &c.; 21 Ky. Law Rep. 421, Cox v. Adelsdorf.</p> <p>We submit that this judgment should stand there being no error of law in the record and the evidence certainly being strong enough to come within the rule which, on mere questions of fact, is always followed by this court. We ask that the judgment of the lower court be affirmed.</p>

<p>1. Constitutional Law — Right of Peaceable Assembly — Right to Petition Legislature — Circulation of Petition. — Under Const. Sec. 1, subsec. 6, which provides that citizens of the state shall have the right to assemble in a peaceable manner for their common good, and to apply to the government for the redress of grievances, or other proper purpose by petition, address, or remonstrance, any citizen or number of citizens . may petition the Legislature of the state for any necessary and proper purpose,- which includes the right to lawfully circulate a petition and procure others to sign it.</p> <p>2. Libel and Slander — -Circulation of Petition — Privileged Communication. — Defendant, in a prosecution for criminal libel, was a judge of the county court. He caused to be sent to C.,' who was the foreman of a former grand jury, a letter asking that C. sign an inclosed petition or an affidavit, to be used in impeachment,' proceedings before the Legislature, to the effect that G., who was the state attorney, for the judicial district in which all three parties lived, was an ufifit and incompetent officer, he being frequently and almost constantly drunk, etc. Held, that, if defendant in good faith believed G. to be such an unfit and incompetent officer as the letter and petition appear to make him, the defendant had the right to inquire of C. as to his knowledge o-f G.’S unfitness and incompetency, and to ask his assistance in' procuring the impeachment of G. by the Legislature.</p> <p>3. Libel and Slander — Circulation of Petition — Impeachment Proceedings — Privileged Communication. — Ky. St. 1909, Sec. 2172 provides that a person desirous of procuring the impeachment of any officer shall, by petition in writing to the House of Representatives signed by himself and verified by his own affidavit, and the affidavits of such others as he may deem necessary, set forth the facts upon which he prays an impeachment. Defendant, in a prosecution for criminal libel, was a judge of the county court. He caused to be sent to C., who was foreman of a former grand jury, an affidavit and petition addressed to the House of Representatives, charging G., the state attorney for the district in which all three parties lived, with acts reprehensible in one of his official position. Held, that if G.’s conduct was so bad as to make him a fit subject for impeachment, in rendering such assistance as would tend to bring it about, defendant and C. should be presumed to be discharging a social or public duty, and defendant’s communication was within the scope of his duty as an officer and good citizen; it not being alleged in the indictment that it was made without reasonable grounds.</p> <p>4. Libel and Slander — Circulation of Petition — Privileged Communications.' — The right conferred by. Ky. St. 1909, Sec. 2172, ■ to file the affidavits of other persons in proceedings for the impeachment of an officer necessarily carries with it the right to make reasonable and proper inquiry to obtain them.</p> <p>5. Libel and Slander- — Impeachment Proceedings — Judicial Proceeding — Privileged Communications. — An impeachment proceeding is a judicial proceeding and whatever writings in the way of petitions, affidavits, or pleas as may properly he used in an impeachment proceeding are, as to statements of fact contained therein, as much privileged as other writings o-r pleadings prepared for use or filed in the course of ordinary litigation.</p>

<p>CASE 28. — ACTION BY THE CITY OF HARRODSBURG AGAINST THE EAST TENNESSEE TELEPHONE COMPANY.</p> <p>Appeal from Mercer Circuit Court.</p> <p>W. C. Bell, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>CASE 29. — ACTION BY JOHN MULVEY’S ADMINISTRATOR AGAINST THE COVINGTON & CINCINNATI RAILROAD TRANSFER & BRIDGE COMPANY.</p> <p>Appeal from Campbell Circuit Court.</p> <p>C. W. Yungblut, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p> <p>There is a long line of cases in this state holding that the testimony must be clear and unequivocal, connecting the negligence with the injury, and that if the injury could have resulted from any one of two or more causes, for one of which the defendant would be liable, and for the other of which defendant would not be liable, there can be no recovery.</p> <p>AUTHORITIES CITED.</p> <p>Willis Swartwood’s guardian v. L. & N., 3 S. W., 305; L. & N v. Reynolds, 24 Ky. L. R., 1402; Gleason v. Virginia Midland R. R. Co., 140 U. S., 435; Thomas v. C. N. O. & T. P. Ry., 32 Ky. L R., 67; C. & O. v. Raymond Davis, 22 Ky. L. R., 748; L. & N. v. Wade, 18 Ky. L. R., 549; Wintuska’s adm’r v. L. & N., 14 Ky. I.. R., 579; Johnson’s adm’r v. E. T. V. & G R. R., 17 Ky. L. R„ 67; L. & N. R. R. Co. v. Wathen, 22 Ky. L. R. 82; Hughes v. Cincinnati, etc., R. R. Co., 91 Ky., 526; Louisville Gas Co. v. Kaufman, Straus ■& Co., 105 Ky., 156 & 157; Witten v. Bell & Coggeshall Co., 27 Ky. L. R., 805; Hurt v. L. & N., 25 Ky. L. R., 755; L. & -N. v. McGary, 104 Ky., 509.</p> <p>QUESTIONS DISCUSSED AND AUTHORITIES CITED.</p> <p>1. The lot in question was an attractive place as a play-ground for children.</p> <p>2. The appellant acquiescing in their use of it owed them a duty not to negligently injure them while they were upon said premises.</p> <p>3. The court did not err in submitting the case to the jury and refusing to give a peremptory instruction to find for Appellant. Bronsom’s Adm’r v. Labrot, 81 Ky., 638; Reliance T. & D. Whs. v. Mitchell, 24 Ky. L. R., 1287; C. & O. Ry. Co. v. Davis, 22 Ky. L. R. 748; L. & N. R. R. v. Eaden, 93 S. W., 7; Willis v. Mays. & D. S. R. R., 27 Ky L. R., 495; Gulf C. & S. F. R. R. v. Wood, 63, S. W., 164; Un. Pac. R. R. v. McDonald, 152 U. S., 280; Sioux Cy. & P. R. R. v. Stout, 84 U. S., 745; Young, &c., v. Trapp, &c., 26 Ky. L. R., 752; Harper v. Kopp, 24 Ky. L. R., 2343; Fletcher v. B. & O. R. R., 168 U. S., 135; and Thompson on Negligence, Secs. 1031, 1033, 1034-5 and White’s Sup. to Thompson on Negligence, Sec. 1032.</p> <p>4. The case at bar comes clearly within the rule of Res Ipsa Loquitur. Thompson on Negligence, Vo. 1, Sec. 15 and 4537; L. & N. v. Davis, 115 Ky., 270; L. & N. v. Reynolds, 24 Ky. L. R. 1403; Gulf C. & S. F. v. Wood, 63 S. W. 164; C. & O. v. Bercéw, 23, Ky. L. R. 1509; Howser. v. Cumb. & Penna. R. R., 27 L. R. A., 154; Barnowski v. Helson, 15 L. R. A., 33; Ford v. L. S.' & M. S., 12 L. R. A. 455.</p> <p>5. Every presumption of negligence on the part of appellant is authorized by the evidence in the case, and that negligence was the direct cause of the death of Decedent. L. & N. v. Mulfinger, 26 Ky. L. R., 3; I. C. R. R. v. Cane, 28 Ky. L. R., 1018.</p>

<p>1. Railroads — Operation—Accidents .at Crossings — Precautions as to Persons Near Crossing. — Those in charge of a railroad engine are not bound to take notice of the conduct or fright of a horse on a parallel highway, or to stop or slacken the speed of the train to avoid a possible collision, unless the horse is so close to the railway that the engine operatives can, by the exercise of ordinary care, discover that the horse is frightened, and the attitude of the horse or the immediate conditions are such as to lead a person of reasonable prudence to believe that there is danger of a collision.</p> <p>2. Railroads — Operation—Accidents at Crossings — Signals from Trains. — Under the statute requiring all trains to give the statutory signals of their approach to a grade crossing, the failure to give such signal is actionable neglifence, for which one injured in consequence thereof may recover.</p> <p>3 Railroads — Operation—Accidents at Crossings — Contributory Negligence. — While travelers on a public highway crossing a railroad may rely for protection on the statutory signals required to be given by trains, failure to give the signals does not relieve the travelers from the duty of exercising ordinary care for their own safety.</p> <p>4. Negligence — Contributory Negligence — Questions for Jury.— The question of contributory, negligence is generally for the jury.</p> <p>5. Negligence — What Constitutes. — To constitute actionable negligence, there must be negligence and injury resulting as a proximate cause of it.</p> <p>6. Railroads — Operation—Accidents at Crossings — Evidence.— Evidence held insufficient to show that the failure of defendant railroad to give the statutory signals at a crossing caused plaintiff’s horse to run away and injure him through a collision with the train.</p>

<p>CASE 31. — ACTION BY CHARLES A. HAHN’S ADMINISTRATOR AGAINST THE LOUISVILLE & NASHVILLE R. R. CO. AND ANOTHER.</p> <p>Appeal from Nelson Circuit Court.</p> <p>George W. Stone, Special Judge.,</p> <p>Judgment for plaintiff, defendant appeals.</p> <p>POINTS DISCUSSED AND AUTHORITIES CITED.</p> <p>The trial court erred in refusing to peremptorily instruct the ' jury to find for appellants. Plaintiff’s theory is that decedent, a fireman for the L. & N., was knocked from his engine, while in motion, by a semaphore pole alongside of, and negligently close to, the track. But no one saw the accident. We are left wholly to conjecture as to where decedent was or what he was doing at the time he was hurt and as to. the manner in which he received his injuries. The jury could not have done any more, than guess as to whether he was struck by the pole, and defendants’ rights should not be guessed away in behalf of one on whom the burden rests to establish a cause of action against them. Further more, they are not liable, even if decedent was struck by the pole, for the reason that it conclusively appears from the evidence that he had no duty to perform that required him to protrude any portion of himself beyond the engine, which it was necessary for him to do in order to be struck by the pole. If he was leaning out, it was for his own purposes, and not in furtherance of defendants’ business. Again, even if it satisfactorily appeared from the evidence that decedent was struck by the pole while discharging a duty which made it necessary for him to assume a position of danger, still defendants would not be liable. The semaphore pole was absolutely necessary for the safety of employes and passengers of certain cars which used the elevated tracks where the accident occurred, and was properly placed to serve its purpose. Therefore, its construction and maintenance in that position was not negligence in defendants. The court erred in admitting incompetent evidence for plaintiff and in rejecting competent evidence offered by defendants. And also erred in instructing the jury on plaintiff’s motion and in refusing instructions asked by defendants.</p> <p>AUTHORITIES CITED.</p> <p>Wintuska’s Adm'r v. L. & N. R. R. Co., 14 R., 579; Caldwell’s Notes to Kentucky Reports, Yol. 2, p. 1522; L. & N. R. Co. t. McGary’s Adm’r, 104 Ky. 509; Hughes v. Cincinnati, etc., R. Co., 91 Ky. 526; L. & N. R. Co., v. Scalf, 110 S. W., 862; L. & N. R. R. y. Milliken’s Adm’r, 21 R., 489; Randall v. B. & O. R. Co., 109 U.S., .478; Tuttle v. D. G. H. & M. Ry., 120 U.' S., 189; 4 Thompson’s Commentaries on the Law of Negligence, Secs. 4755, 4756; Scidmore v. M. L. S. & W. Ry. C., 61 N. W., 765, 89 Wis., 188; Thain v. Old Colony R. Co., 161 Mass., 353, 37 N. E. 309; Pennsylvania Co. v. Finney, 42 N. E. 816 (Ind.); Wilson v. L. S. & M. S. Ry. Co., 108 N. W., 1021 (Mich.); Mize v. L. & N. R. C.O., 127 Ky. 496; L. & N. R. Co. v. Daniel, 122 Ky., 256; Schlaff v. L. & N. R. Co., 14 Sou., 105 (Ala.); L. & N. R. Co. v. Hall, 87 Ala., 708, 4 L. R. A., 710; Hughes v. General Electric Light & Power Co., 107 Ky., 485; Mayer v. Building Co., 116 Ala., 634; 22 Sou., 859; Martinez v. Planel,'36 Cal., 578; Hudson v. Railroad Co., 59 la., 581, 13 Ñ. W., 735; Hubbard v. Railroad Co., 39 Me., 506; Parker v. Publishing Co., 69 Me., 173; Branch v. Libbey, 78 Me., 321; Wise v. Ackerman, 76 Md., 375, 390, 25 Atl., 424; Collins v. Dorchester, o' Cush., 396; Bridger v. Railroad Co., 27 S. C., 456, 3 S. E., 860; Snowden v. Coal Co., 16-Utah, 366, 52 Pac., 599; Phillips v. Willow, 70 Wis., 6, 34 N. W., 731; Barrett y.. Hammond, 87 Wis., 654, 657-, 5S N. W., 1053; Kreider v. W. R. P. & P. R. Co., 110 Wis., 645, 86 N. W., 662; L. & N. R. Co. y. Mulloy’s Adm’r, 122 Ky., on pp. 235-6; C., N. O. & T. P. Ry. Co. v. Zachary’s Adm’r, 32 R,678, 680.</p> <p>AUTHORITIES CITED.</p> <p>Shoulder’s Domestic Relations, Seel 230;. Civ. Code, Sec. 73; L. & N. R. R. Co. v. Hoskin’s Adm’r, 32 Ky. Law Rep., p. 1263; I. C. R. R. Co. v. Smith’s Adm’r, 27 Ky. Law Rep., 598; Turner’s Adm'r v. L. & N. R. R. Co., 23 Ky., p. 340; L. & N. R. R. Co. v. Gilliam’s Adm’r, 24 Ky. Law Rep., p. 1536; Sherill v. C. & O.. S. W., 31 Ky., p. 502 and 89 Ky., 302; Home Tel. Co. v. Beeler’s Adm’x, 31 Ky., p. 19; Elliott on Railroads, 2nd edition, vol. 1, Sec. 477; Vol. 1, Sherman & Redfield on Law of Negligence, 5th Edition, Sec. 225; Shulte v. L. & N. R. R. Co., &c., 31 Ky., p. 34; C. & O. R. R. Co. v. Osborne, 97 Ky., p. 112; L., H. & St. Louis R. Co., v. I. O. R. R.Co., 29 Ky., p. 265; L, H. & St. Louis R. Co. y. Kessee, 31 Ky., p. 617; Clinger’s Adm’r v. Chesapeake & Ohio, of Ky., &c., 33 Ky., 88; Pugh. v. C. & O. R. R. Co., 101, Ky., p. 77; L. & N. R. R. Co. v.Gilmore’s Adm’r, 33 Ky., p. 76; L. & N. R. R. Co. v. Creighton, &c., 106 Ky., p. 42; Finley v. Louisville Railway Co, 31 Ky., p. 743; Derby’s Adm’r v. Ky. Central R. R. Co., 9 Ky., p. 3 53; Houston Ry. Co. v. Oran, 49 Texas, p. 341; Cincinnati, &c„ R. R. Co. v. Sampson’s Adm’r., 16 Ky., p. 819, and 97 Ky., p. 65; Chicago, &c., R. R. Co., v. Johnson, 116 111., 206; Cincinnati R. R. Co., v. Sampson’s Adm’r, 97, Ky., p. 73; Hugh’s Adm’r v. L. & N. R. R. Co., 104 Ky., p. 774, and 32 Ky., p. 13, 14.</p>

<p>CASE 32. — ACTION BY THE CITY OP LOUISVILLE AGAINST H. B. COOKE AND ANOTHER TO RECOVER CITY TAXES.</p> <p>Appeal from Jefferson Circuit Court (Chancery Branch, Second Division).</p> <p>Samuel B. Kirby, Judge.</p> <p>Judgment for defendants, plaintiff appeals.</p>

<p>CASE S3. — ACTION BY ROSE SMITH AGAINST MARGARET RUEHL.</p> <p>Appeal from Campbell Circuit Court.</p> <p>Judgment for defendant, plaintiff appeals.</p> <p>No briefs. Record’misplaced.</p>

<p>CASE 34. — PROCEEDINGS TO APPOINT AN ADMINISTRATOR WITH THE WILL ANNEXED OF J. G. PHILLIPS, DECEASED</p> <p>Appeal from Marion Circuit Court.</p> <p>I. H. Thurman, Circuit Judge.</p> <p>From a judgment of the circuit court dismissing an appeal from the county court, Phillips appeals. — •</p> <p>1. In conclusion we most respectfully submit that under a fair construction of Sections 3891, 3896, and 3897 of the Kentucky Statutes (Sections 3937, 3919 and 3920 of the Statutes of Kentucky), the family of the deceased haVe a right until and including the second term of the county court to qualify as personal representatives of the decedent. Buckner’s Adm’r v. Buckner, 120 Kentucky, 596.</p> <p>2. That while the appointment of a creditor or other person is not a nullity where the question arises collaterally, it will never be held to prevent the appointment of a person specifically named by Section 3896, where the application for such appointment is seasonably made. Young’s^ Adm’r v. Louisville & Nashville R. R. Co., 121 Kentucky, 483; Buckner v. Louisville & Nashville R. R. Co., 120 Kentucky, 600.</p> <p>3. The question of the validity of the appointment of Kelly and Rogers does not properly arise in this case, because such ap pointment was not pleaded in the county court when Bird Phillips applied for the appointment at the February term, 1908.</p> <p>AUTHORITIES.</p> <p>1. The Marion County Court on January 22nd, 1908, had jurisdiction of the subject matter and of all the parties in interest. On this date it entered a judgment defining the rights of the parties. Appellant was before the' Court and made her motion to be appointed administratrix. No objection was made to the jurisdiction of the Court. The judgment has never been vacated. Having been rendered by a court of competent jurisdiction it is a complete bar to this action. The issues herein made have become res adjudicata. Section 1057, Ky. Statutes; Jacobs v. L. & N., 10th Bush, 263; Miller v. Swan, 91 Ky., 36; Kimbraugh v. .Harbert, 110 Ky., 94; Sections 3991 and 3894 Ky. Statutes; Underwood v. Underwood’s Adm’r, 111 Ky., 966; Section 3905, Ky. Statutes; Underwood v. Underwood, supra; Section 3891, Ky. Statutes; Buckner’s Adm’r v. L. & N., 120 Ky., 600; Section 3890, supra; Young’s Adm’r v. L. & N„ 121 Ky., 483; Spayd’s Adm’r v. Brown, (Ky.) 102 S. W., 823; Cunningham v. Clay’s Adm’r (Ky.) 112 S. W., 853; McFarland’s Adm’r v. L. & N. (Ky.) 113 S. W., 83; Section 978, Ky. Statutes.; Penn v. Emerson, 2 Ky. (Sneed) 292; Ward v. Lee, 3 Ky. (Bibb) 18; Com. v. Shanks, 49 Ky. (10 B. Mon. 304.); Daviess County v. Howard, 13 Bush, 101; Seiter v. North ern, 86 Ky., 128; Ayers v. Fuqua (Ky.) 48 S. W., 15; Lovelace v. Lovell, 107 Ky., 676; Kimbraugh v. Harbett, supra.</p> <p>«■; 2. • The right' to appeal from orders and judgments of the county court to the circuit court is limited to 60 days after the judgment of the lower court was entered. Appellant did not appeal within sixty days after the judgment appointing the personal representative was entered, nor within sixty days after her motion to set aside as void their appointment and to appoint her was made. Her right of appeal was therefore lost. Section 978, Ky. Statutes;1 Chapters 1 and 2 of Title 16, Civil Code of Practice. Sections 625, 726, 727, 728, 729, 763, 927, 978, and 724.</p> <p>3. In cases of testacy it is not mandatory upon the' County Judge that he should appoint any of the relatives of the decedent as personal representative. In intestacy cases,' the rule is different. Therefore the County Judge in appointing appellees Rogers and Kelly as administrators was exercising a sound judicial discretion which the law has reposed in him. Consequently, his action in appointing them was not even erroneous. Chapter 9ÍJ, Ky. Statutes, Sec. 3891, 3866 Buckner’s Adm’r v. L. & N., supra (120 Ky. 600.); Taylor v. Tibbatts, 13 Ben Monroe, 183.</p> <p>4. The ends of juctice do not require a reversal of this case. If it were reversed all that this court upon this record could hold would be that the lower court erred in sustaining appellee’s motion to dismiss appellant’s appeal from the county court. Upon a return of the case the nominated executors, the widow, and possibly the older children of J. G. Phillips would have precedence over appellant in the appointment of the personal representative.</p>

<p>Brokers — Right to ■ Commissions — Efficient Agent — Procuring Cause of Contract. — Where a real estate broker who had been authorized to sell the timber on a tract of land merely informed the purchaser, who had been negotiating with the owner for some time in regard to purchasing the land, that he had the land ■ for sale, but did nothing further, and knew nothing of the subsequent negotiations which led up to the sale, which was not made until the vendor -agreed that a. mill and the down timber would be included, and also agreed to the purchaser’s terms as to time of payment, he was not the efficient agent in, or the procuring cause of the contract, so as to entitle him to a commission.</p>

<p>CASE 36. — ACTION BY GEORGE L. GILLUM & SON AGAINST JOHN W. MILLIKIN AS TREASURER OF LOGAN. COUNTY AND ANOTHER. —</p> <p>Appeal from Logan Circuit Court.</p> <p>W. P. Sandidge, Circuit Judge.</p> <p>Judgment for plaintiffs, defendants appeal.</p>

<p>1. Master and Servant — Injuries to Servant — Contributory Negligence. — Where a watchman employed to keep trespassers on a railroad track from being injured by trains suddenly stepped without looking from a place of safety before an approaching train, which he knew was due, he was negligent as a matter of law barring a recovery for his death.</p> <p>2. Master and Servant — Injuries to Servant — Care Required of Master. — A railroad does not owe to its watchman employed to keep trespassers on the track from being injured by trains the duty of regulating the speed of its trains, and it is not liable for the death of the watchman struck by a train merely because it operated the train at a negligent speed, because of the fact that the public customarily used the track at that point, which was within an incorporated town.</p>

<p>1. Appeal and Error — Consolidation of Actions — Discretion of Trial Court — Review.—The action of the court in directing that an original cause of action and a cause of action presented by cross-petition shall be heard together by the same jury will not ,be disturbed unless it appears that, in the exercise of a sound discretion, the court should have ordered separate trials before separate juries.</p> <p>2 Jury — Competency of Jurors — Prior Service — Similar Cause —In actions by buyers of seed wheat based on the seller’s . warranty that the wheat was good, and the fact that it did not germinate, the seller made his pleading a cross-petition against a warehouseman alleging that he had stored the wheat in the latter’s warehouse, and that the latter violated his agreement. Some of the actions by the buyers were tried before juries without the issues made by the cros's-petition being heard. Thereafter the actions on the cross-petitions were consolidated, and were called for trial at the same term or court. Held, that the refusal of the court to continue the consolidated action or to impanel a new jury to try it on the ground that the jurors on the regular panel had served in trying the issues in the original actions was proper; the actions being entirely different, though in relation to the same subject matter.</p> <p>3. Evidence — Parol Evidence — Receipts—Contracts.—A receipt issued by a warehouseman stating the receipt of a specified quantity of wheat for delivery on the presentation of the receipt properly indorsed and the payment of the charges,' and which provides that the wheat is held for the owner at his risk as to fire or depreciation, that the grain may he mixed with grain of like quality and may be delivered from any bin containing like quality of grain, is more than a receipt, and is a contract fixing the rights of the parties, and parol evidence is admissible to vary its terms, in the absence of fraud, or mistake, though a receipt may be contradicted by parol evidence without any averment of fraud or mistake.</p> <p>4. Trial — Instructions—Evidence.—Where a written contract between the parties to an action is set up or relied on in the pleadings or is introduced in the evidence, the court should instruct on the writing, and, though there is evidence of mistake or fraud or want of consideration, the court should charge that the writing is the contract unless the jury believe that it wras not executed, or that it was without consideration, or was procured by fraud or mistake.</p> <p>5. Evidence — Parol—Admissibility.—Where there is a denial of the execution of a written contract relied on or an averment of want of consideration or of fraud or that by mutual mistake it does not contain the contract, -parol evidence is admissible.</p> <p><5. Trial — Instructions—Pointing Out Particular Evidence. — The rule that it is not proper to point out particular evidence in an instruction or to give undue prominence to any fact applies to parol evidence, and not to written evidence of a contract.</p>

<p>1. Wills — Construction—Intention of Testator. — The court in construing a will should aim to ascertain testator’s intention, and should, if possible, so construe thp will as to uphold each item, or clause thereof.'</p> <p>2. Wills — Construction—Creation of Trusts — Implication.—Testator devised all of his property to his son, providing he should pay a specified sum to each of his sisters,_and declared that the property should be kept together until the death or remarriage of the wife, and that the son should remain with the family and manage the estate until the wife’s death or remarriage, when the property should pass as provided for. Held, that the wife was the beneficiary of the entire estate for life or during widowhood, with remainder to the son, who took the title as trustee for the wife.</p> <p>3. Kills — Charge on Property Devised — Nature.—A testamentary gift to testator’s son, provided that he pay to each of his sisters a specified sum and that if any of the sisters should be dead at testator’s death, the sum should be paid to her bodily heirs, was a gift to the son on condition that the payments to his sisters were made, which payments must be made at the death of testator, and the amount due each with interest from the end of the year succeeding testator’s death, was a charge on the son’s interest.</p> <p>4. Will's — Construction — Trusts Eliminated — Termination.— Where testator devised all his property to his son, provided that he pay to each of testator’s daughters a specified sum, and declared that the property should be kept together until the death or marriage of testator’s wife, and that the son should remain with the family and manage the estate until the wife’s death or remarriage, the fact that the son removed' from the property did not affect the trust created in favor of the wife or the rights of the wife, where the son continued to faithfully execute the trust.</p> <p>E. Trusts — Testamentary Trusts — Compensation of Trustee.— Where the will creating a trust does not declare that the' trustee shall not be compensated for the services rendered in executing the trust, the court may allow him a reasonable compensation therefor.</p> <p>6. Wills — Construction—Estates Created. — Testator devised all his property to his son, -providing he pay a specified sum to-each of testator’s daughters, and declared that the property should be kept together until the death or marriage of testator’s wife, and that the son should remain-with the family and manage the estate until the wife’s death or marriage and'that if the son should die without bodily heirs his share, should go to his surviving sisters or their bodily heirs. Held, that the son acquired a fee in the entire estate, subject -to defeat by his death without living issue before the death or marriage of testator’s wife.</p> <p>7. Wills- — Construction—Defeasible Pee — Time of Contingency, —The rule that where an estate is given-by will which maybe defeated on the happening of a contingency, and there is no other period apparent or intended in which the event shall occur, it shall refer to an event happening within the lifetime of the testator, does not obtain when the will shows on its-face with reasonable certainty that the event to which the • contingency refers is in contemplation of testator to occur after his death.</p>

<p>CASE 40. — SUIT BT THE’ COMMONWEALTH i;OR THE USE OF THE’ CITY OF LOUISVILLE AGAINST HUNTER ROSS AND OTHERS FOR AN ACCOUNTING.</p> <p>Appeal from Jefferson Circuit Court (Chancery Branch, Second Division).</p> <p>Samuel B. Kirby, Judge.</p> <p>Judgment for defendants, plaintiff appeals</p>

<p>CASE 41. — PROCEEDING’ BY THE COMMONWEALTH ON RELATION OP AUDITOR’S AGENT AGAINST THE LOUISVILLE GAS CO. TO ASSESS OMITTED PROPERTY.</p> <p>Appeal from Jefferson Circuit Court (Chancery Branch, Second Division).</p> <p>Samuel B. Kirby, Circuit Judge.</p> <p>Judgment for Gras Co., and the Commonwealth appeals.</p>

<p>1. Wills — Charge on Devise — Care of Children — Lien on Land.— A provision in a will, charging a son to whom all the property was given with the duty of caring for two younger children ’of the testatrix till they reached a certain age, created a lien on the land in their favor for this purpose.</p> <p>2. Wills — Liabilities of Purchaser from. Devisee. — A purchaser from a devisee is charged with notice of provisions of the recorded will, and holds the land subject to the liabilities imposed on the devisee.</p> <p>3. Wills — Construction—Vesting of Devise — Condition Precedent or Subsequent. — A provision in a will imposing on a son to whom all the property was given, the duty of supporting'and caring for other children of the testatrix, was neither a condition precedent to the vesting of a devise in him, nor a condition subsequent, which by failure to perform would forfeit the estate.</p> <p>4. Limitation of Actions — Accrual of Cause of Action — Infant’s Rights Under Will. — Where an infant was entitled under the terms of a will to support and maintenance by a devisee, till she reached the age of 15, her cause of action .thereunder to enforce a lien on the land first accrued when the devisee failed to furnish her support, and her full cause of action was protected when she reached that age.</p> <p>5. Limitation of Actions- — Computation of Period — Effect of Infant’s Disability. — One who was an infant when a right of action accrued had the same length of time to sue after becom-, ing of age that she would have had had she been of age when the cause of action accrued; Ky. St. Sec. 2525, expressly providing as to infants entitled to sue that action may be brought within a like number of years after removal of their disability that is allowed to a person having no such impediment.</p> <p>6. Limitation of Actions — Limitations Applicable — Action on Contract Not in Writing. — An action to enforce an undertaking to support a minor assumed by one accepting property under a will providing therefor is governed by the five-year limitation of Ky. St. Sec. 2515, as to actions on contracts not in writing, and the mere fact that the acceptance of the devise charged the property with the liability undertaken by him does not extend the time.</p> <p>7. Limitation ol Actions — Pleading—Demurrer Raising Defense. —The statute of limitations must be pleaded, únless the petition shows not only a sufficient lapse of time, but non existence of any ground of avoidance; but when 1he petition shows that the action is barred, and that plaintiff is not within any exception contained in the statute which saved his right to sue, the question may be raised by demurrer.</p>

<p>CASE 43. — ACTION BY JOHN PATTERSON AND OTHERS AGAINST JACOB S. PATTERSON AND OTHERS.—</p> <p>Appeal from Fayette Circuit Court.</p> <p>Watts Parker, Circuit Judge.</p> <p>Judgment for defendants, plaintiffs appeal.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. The land in question was not inalienable, the turnpike company having the power to convey, and it was not therefore taken out of commerce. The grantor reserved no right to herself and heirs to re-enter on the land and resume possession. Kentucky Statutes, Section 2360: Carroll County Academy v. Gallatin Academy, 20 Ky. Law Rep. 824; Trustees Gen’l Assembly Presby. Church in U. S. v. Alexander, 20 Ky. Law Rep., 391; Puquay’s Heirs v. Trustees Hopkins’ Academy, 22 Ky. Law Rep., 744; McDaniel v. Watson, 4 Bush, 234; Morrow, etc., v. Slaughter, 5 Bush, 330; 22 A. «fe E. Ency Law, 2 Ed., 704; Lewis on Perpetuities; Lamb v. Lynch, 56 Neb. 135; Cowell v. Colorado Springs Co., 100 U. S., 55; 4 Kent’s Commentaries, 12 Ed., 129-30; 3 Rapalge’s Digest, Secs. 1095 and 1096; Rawson’s School Digest; 83 Am. Decision, 670; Green v. O’Connor, 19 L. R. A., 264; Railey v’ Umantillo County, 15 Oregon, 172.</p> <p>2. The contingency matured during the lifetime of the grantor. A limitation that would have been void at the time the conveyance was executed will not affect its validity if it took place during the lifetime of the grantor, all parties being in esse at the time the deed was made and when its final conditions went into effect.' 22 A. «fe E. Ency. Law, 709; Southern v. Wallaston, 16 Beav., 166; Peard v. Kekuvich, 15 Beav., 166 Gooch v. Gooch, 14 Beav.,' 565; Wallace v. Smith, 24 Ky. Law Rep., 139; Call v. Shewmaker, 24 Ky. Law Rep., 686; Davis v. Wood, 17 B. Mon., 86.</p> <p>3. Statute against perpetuities does not apply to charitable uses or to public highways. Gass <fc Bonta v. Wilhite, etc., 2 Dana, 170; 23 Henry VIII, ch. 10; Porter’s case, 1 Co. R., 24; Pullius, etc., v. Board of Education of Methodist Church, 25 Ky. Law Rep., 1715.</p> <p>4. A turnpike road is a public 'highway. Roads created for public use under a charter of a corporation are public roads, though the charter gives the corporation the right to appropriate the tolls. Lexington «fe O. R. Co. v. Appelgate, 8 Dana, 289; Ware v. Clark’s Run <& S. R. Turnpike Co., 3 Ky. Law Rep. (Abstract) 325; Elliott on Roads and Streets, Sec. 69.</p> <p>The decisions in our own state are sufficiently abundant, without citing authorities, and are conclusive of the question at issue.</p> <p>It will be sufficient, we believe, to refer to the following recent cases: Ludwig v. Coombs, 58 Ky. (1 Met.) 128; Stevens v. Stevens, 21 Ky. Law Rep., 1315, 54 S. W., 835; Coleman v. Coleman, 23 Ky. Law Rep., 1476, 65 S. W., 832; Fidelity Trust Co. v. Lloyd, 25 Ky. Law Rep., 1827, 78 S. W., 896.</p>

<p>1. Master and Servant — Assumed Risk — Obvious Dangers. — A ditch two feet wide and six feet deep which, a servant was digging through sandy soil when the sides caved in and injured him, was not such an obviously dangerous place of work that one of common understanding would not have continued to work therein, though its walls were not supported in any way.</p> <p>2. Master and Servant — Place of Work — Assumption of Risk.— Where the place of work is not such as to impose upon the master the full duty of providing a safe place, and, though somewhat dangerous, it is not so obviously so that one of ordinary intelligence would not work there, and a servant is assured by the master or his representative that there is no danger, or is directed to continue the work, he may recover for injuries caused by the dangerous place of work, though the risk is as open to him as to the master; the doctrine of assumption of risk in case of equal knowledge of the danger not being strictly implied when the servant acts under the master’s direction, as he may then rely on the master’s judgment.</p> <p>3. Master and Servant — Injuries—Assumption of Risk — Place of Work — Wtork Under Master’s Direction. — Where a ditch which plaintiff was digging when it caved was not so obviously dangerous for want of shoring up that ’one of ordinary intelligence would have quit the work, the master was liabile for injuries caused by its caving, where he impliedly directed plaintiff to continue work after plaintiff had called his attention to the probable danger and necessity for bracing it, even if the place was such that plaintiff created the danger in the progress of the work, so that the rule as to a safe place of work would not apply.</p> <p>4. Master and Servant — Injuries—Safe Place to Work — Duty to Make Safe — Excavating Work. — While the rule requiring a master to furnish a safe place of work does not apply to many works of construction where the unsafe condition is necessarily made during the progress of the work, the master was bound to make reasonably safe, by shoring the walls, a ditch two feet wide and six feet deep which was being built through sandy soil; such precaution being possible at a slight expense, and the danger from working without if is not being obvious.</p>

<p>CASE 45. — PROCEEDINGS BY E. B. ANDERSON TO SETTLE HIS ACCOUNTS AS ASSIGNEE FOR THE BENEFIT OF CREDITORS OF THE DAVIESS COUNTY Bank: & TRUST CO.</p> <p>Appeal from Daviess Circuit Court.</p> <p>T. F. Birkhead, Circuit Judge.</p> <p>From the judgment Edward Franke and Sam Burnes appeal.</p>

<p>CASE 46 — ACTION BY R. J. LEWIS AGAINST THE LOUIS VILLE & NASHVILLE RAILROAD COMPANY POE LOSS OP GOODS BURNED IN DEFENDANTS’ WAREHOUSE.</p> <p>Appeal from Bell Circuit Court.</p> <p>M. J. Moss, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. It was the duty of appellee as a common carrier upon receipt of appellant’s goods at Pineville, to at once notify appellant by mail of such fact, and then to keep said goods safely, as a common carrier until appellant had received the notice of their arrival and then had reasonable time thereafter in which to remove the goods from the depot.</p> <p>2. In view of the fact that one consignment of these goofl3 was two days in being transported from Louisville to Pine-ville; that another consignment of the goods was twenty days in being transported from Louisville to Pineville; and that the third consignment of goods was seven days in being transported from Knoxville to Pineville, all over the same railroad system, it would be unreasonable and unfair to require appellant to be waiting at Pineville with his wagon and team, these indefinite and uncertain periods of time to receive his goods.</p> <p>3. In view of the foregoing, the liability of the appellee, as a common carrier of and insurer of the safe delivery of inese goods in question, continued until after they were destroyed by t«ae fire. 2 Hutchison on Carriers (3rd Edition) Secs. 704, 707, 70S; 2 Bush, 468, Jeffersonville R. R. Co. v. Cleveland; 92 Ky., 645, Wald & Co. v. Louisville E. & St. L. R. R. Co.; 32 N. H., 523, Moses v. The Railroad (Quoted at length in 2 Hutchison, Sec. 704Supra.).</p> <p>POINTS AND AUTHORITIES.</p> <p>The liability of the defendant for the goods in question was that of a warehouseman, and, inasmuch as it was stipulated that the fire that destroyed them was not caused by the fault, wrongdoing, or negligence of the defendant or any of its agents or servants, the plaintiff is not entitled to recover, and the juegment should not be disturbed. Jeffersonville R. R. Co. v. Cleveland, 2 Bush, 468; Louisville, Cincinnati & Lexington R. R. Co. v. Mahan, 8 Bush, 184; Redfield on Railways, Section 171, Subsections 2 and 3,; Roth v. Buffalo & State Line R. R. Co., 34 N. Y. Reps., 548; Briant, &c., v. Louisville & Nashville R. R. Co., 9 Ky. Laiy Rep., 47; L. & N. R. R. Co. v. Jones, 10 Ky. Law Rep., 494; Wald & Co. v. L. E. & St. L. R. R. Co., 92 Ky., 645; Moses v. Boston & Maine, 32 N. H., 523; Moore on Carriers, page 267; Harris v. L. & N. R R. Co., 9 Ky. Law Rep. 392; L. & N. R. R. Co. v. MinK, 126 Ky. 337.</p>

<p>Intoxicating Liquors — Sunday Sales — Inkeepers.—An Inkeeper, not being exempt from Ky. St. Sec. 1304, by wkicn no one can sell intoxicating liquors without a license, violates section 1303, declaring it an offense to sell such liquor on Sunday ray serving it with a Sunday meal, though an inkeeper’s ordinary business is one of necessity within Sunday closing acts.</p>

<p>1. Master ' and Servant — Injuries—Action—Jury Questions— Gross Negligence.- — In a switchman’s action for injuries caused by being thrown from a switch engine cab, whether plaintiff was thrown from the engine by the gross negligence or the engineer in running at a dangerous rate of speed held for the jury.</p> <p>2. Release — Validity—Mistake.—If an injured servant signes a release of a claim for injuries believing it to be a receipt for wages due him, and the question of a settlement was not mentioned at the time, the release was Invalid as being obtained by fraud or mistake.</p> <p>3. Release — Jury Question — Conflicting Evidence. — Where the testimony was conflicting as to whether a release was signed under the belief that it was a receipt for wages, as claimed by one party thereto, the question was for the jury.</p> <p>4. Release — Actions—Burden of Proof. — A written'release or an claims for injuries, signed by plaintiff, made out a pr;ma facie defense when introduced in a personal Injury action, and the burden was on plaintiff to avoid the release by showing its invalidity.</p> <p>5. Master and Servant — Instructions—Concrete Instructions— Sufficiency. — In a switchman’s action for injuries by being thrown from a switch engine cab, where plaintiff claimed that the engine swayed violently when running at a high speed, and was being so run when he was thrown out, an instruction that if plaintiff was injured by gross negligence of defendant’s engineer in operating a certain engine in its yards, by which negligence plaintiff was thrown from the engine and injured, the jury should find for him in such sum as would compensate him for pain and mental anguish suffered, if any, and which it is reasonably certain that he will suffer hereafter, and for impairment of his earning power, if any, was not sufficiently concrete as to plaintiff’s contentipn, and the court should have instructed that, if the' jury believed that by the engineer’s gross negligence in operating the engine at a high and dangerous rate of speed plaintiff was thrown from the engine and injured, they should allow him such sum as would compensate him for pain of body and mind suffered, if any, or which he is reasonably certain to suffer hereafter, and for impairment of earning power, if any, resulting directly and proximately from the injury', not exceeding the amount demanded.</p> <p>6. Release — Instructions—Sufficiency—Concrete Instructions.— In a switchman’s action for injuries by being thrown from a switch engine cab, in which defendant offered a release, which plaintiff claimed was signed by him under the belief that it was a receipt for wages, an instruction that if the jury believed the paper relied' on, by defendant as a release was executed by the parties, each understanding that it was a release of all of plaintiff’s claims against defendant on account of the injury, they should find for defendant, but, if they believed that it was executed by the parties under a mutual understanding that it was for the time lost by plaintiff for 12 days on account of his injuries, the jury should regard the paper as a release, was not sufficiently concrete, and the court should have instructed, in connection with an instruction authorizing a recovery if plaintiff was thrown from the engine hy the gross negligence of defendant’s engineer, that plaintiff could recover if the jury believed that the paper read in evidence as the release was éxecuted upon the mutual understanding of both plaintiff and defendant that it was for time lost by the plaintiff for 12 days on account of his having been injured, and that plaintiff executed the release by mistake, or fraud of defendant.</p> <p>7. Master and Servant — Injuries—Assumption of Risk — Concrete Instructions. — In a switchman’s action for injuries by being thrown from a switch engine cab, where plaintiff claimed that the accident was caused by the swaying of the engine while it was running at a dangerous speed, an instruction that when plaintiff entered defendant’s service he assumed all the risks ordinarily incident to' his employment, and, if the injury received hy him was in his ordinary employment and in the ordinary operation of the engine he was on, the jury should find for defendant, was not sufficiently concrete, and the court should have instructéd that when plaintiff entered defendant’s service he assumed all risks ordinarily incident • to the business conducted with ordinary care, including the danger from operating the engine on which plaintiff was injured, unless the engineer was guilty of gross negligence in running it at a dangerous rate of speed.</p> <p>8. Master and Servant — Injuries—Instructions—Contributory Negligence — Concrete Instructions. — In a switchman’s action for injuries by being thrown from an engine cab, where defendant claimed that the engine was running at an ordinary rate of speed, and plaintiff was starting to get off when he fell and his foot turned on a lump of coal, but plaintiff claimed that he was thrown out by the swaying motion of the engine, which was running at a high speed, an instruction that, though defendant’s agents were negligent, yet, if plaintiff was himself negligent, and such negligence, if any, contributed to the injury, which would not have occurred without it, the jury should find for defendant, was not sufficiently concrete upon the issues, and the court should have instructed that if plaintiff’s fall was caused by his negligently undertaking to step from the engine when it was running at a dangerous speed, or by stepping upon a lump of coal and losing his balance, and not by the speed of the engine,.or if he failed to exercise such care for his own safety as a person of ordinary prudence similarly situated would usually exercise, and hut for which omission he would not have been injured, the jury should find for defendant.</p>

CASE 49 — PROCEEDING BY THE- COMMONWEALTH BY THE AUDITOR’S AGENT AGAINST MARGARET HELM’S TRUSTEE TO LIST OMITTED PROPERTY FOR TAXATION. — Appeal from Fayette Circuit Court.' Watts Parker, Circuit Judge. From a judgment for the plaintiff in the circuit court reversing a judgment for the defendant in the county court, defendant appeals. No briefs — record misplaced.

<p>CASE 50. — ACTION BY FAIRBANKS, MORSE & CO. AGAINST S. W. HELTSLEY & CO —</p> <p>Appeal from Todd Circuit Court.</p> <p>W. P. Sandidge, Circuit Judge.</p> <p>From a demurrer by defendants, plaintiff appeals.</p> <p>No briefs — record out of office.</p>

<p>Deeds — Failure of Consideration — Support. — Grantors conveyed to their two sons their property, in consideration of support and payment of $200 to another brother, which payment was made. After supporting grantors for a time one of the sons died, and the other was unable to support them without the aid of the heirs of the other brother, who were also unable to furnish any support. Held, that, as the grantees could not comply with the covenants of, the deed, the deed should be set aside, on repayment to the grantees of the money paid and expense of support.</p>

<p>1 Master and Servant — Safe Place to Work. — -A. servant cannot recover for injuries if he knows of a danger and does nor exercise ordinary care for his own safety; and, where a servant engaged in hauling rails on a car in a mine knew that certain cross-beams were not high enough to permit him to pass without stooping while riding on the car, and neglected to do so when passing under one of them, which he could have seen if he had looked, he could not recover for injuries resulting from such negligence.</p> <p>2. Master and Servant' — Permanent Structures Near Track-Application of Rule. — The rule applicable to permanent structures by the side of railroad tracks or overhead bridges does not apply to employes in a mine who either walked or rode slowly behind a mule.</p>

CASE 53. — ELECTION CONTEST BY JOHN T. MAY AND OTHERS AGAINST J. B. FERGUSON AND OTHERS. ' Appeal from Muhlenberg Circuit Court. W. P. Sandidge, Circuit Judge. From the judgment, contestants appeal. POINTS AND AUTHORITIES. 1. The petition asking for an election in a magisterial district No. 1 was insufficient and fatally defective. Kentucky Statutes, Section 2554; Nall v. Tinsley, 54 S. W., 187; Davis v. Henderson, 104 S. W. 1009; 8th Kentucky Law Rep.

<p>1. Divorce — Custody of Children — Judgment—Modification-Statutes. — Ky. St. 1909, Sec. 2123, provides that the court in divorce proceedings, may make an order for the care, custody, and maintainance of minor children, and at any time afterward, on the petition of either parent, may revise the same, having, in all cases, the welfare of (.he chidren principally in view. Held, that such section did not deprive the court, after granting a divorce decree, from modifying the same after the term, on its own motion, in so far as it granted the father the right to visit a child, the custody of which was granted to the wife, nor to limit such action to a case instituted for that purpose by petition of either parent.</p> <p>2. Divorce — Custody of Children. — Where, a child of divorced parents has reached years of discretion, its wishes as to its custody will be considered, but are not controlling.</p> <p>3. Divorce — Custody of Children — Rights of Parents. — On the granting of a divorce, the custody of very young children will generally be awarded to the mother.</p> <p>4. Divorce — Custody of Children — Modification of Decree.— While the circuit court should not modify a divorce decree in so far as it affected the custody of children, without notice to the parents, a divorced husband, having applied for a rule on, his divorced wife to show cause why she did not comply with the decree in so far as it granted the husband a right to have visits from his child, could not object to a modification of the decree denying him the right to further visits because he was not served with a written notice of an application to modify the decree.</p> <p>5. Divorce — Custody of Children — Visitation.-Where a father, by reason of inebriety and profligacy, was not a proper person to associate with his infant son, the court properly modified a prior divorce-decree granting the father the right to visit his son and have him with him under certain circumstances, by-withdrawing such right of visitation; benefit to the child being the chief concern. .</p>

<p>1. Pleading — Affidavits—Pleadings Executed in Another State— Sufficiency. — A pleading or affiadavit to be used in Kentucky must be made and verified as required by the laws thereof, though executed in another state.</p> <p>3. Executors and Administrators — Actions Against — Verification of Claims. — Ky. St. Sec. 3870, provides that all demands against the estate o£ a decedent shall be verified by the claimant’s written affidavit. Civ. Code Prac. Sec. 544, defines an affidavit as a written declaration under path made without notice to the adverse party. Sec. 550, subsec. 1, provides that any affidavit by law may, unless otherwise expressed, be made by his agent or attorney if he be absent from the county. Section 117 provides that an affidavit of a private corporation must be verified by its chief officer or agent, etc:, or if it have no such offi)cer or agent in the county in which the action is brought, that it may be verified by its attorney. Section 549, subsec. 2, provides that an affidavit may be made out of the state before any officer or person who may be ' authorized pursuant to section 564 to take depositions and section 564 authorizes the taking of depositions out of the state before a notary public, etc. Held, that the affidavit of a nonresident corporation claimant against the estate of a decedent may be made before a notary at its chief office or principal place of business in the state of its residence by its chief officer, or in his absence from the county of its principal place of business, by its treasurer or other authorized agent, the affidavit in the latter case to show the official title of the chief officer, his absence from the county, and the authority of the treasurer or other agent to make the necessary affidavit, and such an affidavit which does not purport to have been made by the corporation’s chief officer, or state that he was absent from the county, or that the corporation’s treasurer, in the absence of its chief officer from the county, was authorized to make the affidavit is insufficient.</p> <p>3 Executors and Administrators — Actions Against — Affidavit of Claim — Sufficiency.—Under Ky. St. Sec. 387.1., providing that, if any part of the demand of a claimant against a decedent’s estate has been paid, the affidavit of Claim shall state the payment, and, when it was made, to the best of affiant’s knowledge and belief, an affidavit of claim upon an account which embraces sales of merchandise from claimant to decedent covering a period of four years, aggregating $1,463.71, upon which decedent had made during that period numerous payments, all credited on the account, amounting to $1,062.91, leaving a balance due of $400.80, which affidavit treated the balance, not as a balance, but as representing decedent’s entire indebtedness from start to finish, was insufficient.</p> <p>4 Executors and Administrators — Actions Against — Affidavit of Claim — Sufficiency.—Under Ky. St. Sec. 3870, which requires that, when a person other than the claimant against a decedent’s estate'makes affidavit to the claim, he shall state in his affidavit that he believes the claim to be just, and shall give the reason why he so believes, an affidavit by an employe of a claimant on an account against an estate giving as the only reason for his belief as to the correctness of the account that he had examined plaintiff’s books, and found that the account against decedent appeared on the books as on the copy of the account to which his affidavit was attached, is insufficient.</p> <p>5. Executors and Administrators — Suit to Compel Settlement by Administrator — Necessity for Verified Affidavits of Clai¡rs-.— Where a creditor sued in equity to compel the settlement of an estate by an administrator, under Civ. Code Prac. Sec. 428, and the payment of debts, including plaintiff’s claims, making the administrator, decedent’s heirs, and such of the creditors ns were known to plaintiff, defendants, and the petition charged that the administrator was delaying settlement, stated the amount of the estate’s indebtedness, the value of its property, that the personal property was not sufficient to pay the debts, alleged the necessity for a sale of realty for such purpose, asked a reference of the case to. a master commissioner for taking proof as to creditor’s claims, and reporting assets and liabilities of the estate, and closed with a prayer for personal judgmént for plaintiff’s debt, with interest, and for a settlement of the estate, etc., it was unnecessary that payment of plaintiff’s claim should have been demanded of the administrator before the institution of the action, and it was error to dismiss the suit because of a failure of plaintiff to present such affidavit, the object of the statute requiring the claimant, before bringing an action on nis claim to make demand of payment, being to afford the per.sonal representative an opportunity to pay it viino'ic cost of suit, which would not be necessary where there are no assets in the bands of the personal representative with which to pay decedent’s debts, or such as he may have are insufficient for that purpose, and decedent left real estate liable for such debts.</p>

<p>3.Carriers — Passengers—Injuries by Carrier’s Agent — Question lor Jury. — In an action for injuries to a passenger from a shot fired at a third person by a carrier’s flagman, evidence held to warrant submission to the jury.</p> <p>2. Carriers — Passengers—Injuries.—It is the duty of a carrier to protect its passengers not only on the train, but while they are alighting, and until they have a reasonable time to leave the platform.</p> <p>3. Carriers — Passengers—Protection from Third Persons. — It is a carrier’s duty to protect passengers from unruly persons.</p> <p>4. Carriers — Passengers—Injuries from Acts of Flagman.— Where trainmen were attacked, and the flagman in the performance of his duty while repelling the attack shot and injured an innocent passenger, the carrier was liable if the act was wrongful.</p> <p>5. Carriers — Injury to Passenger — Act of Flagman — Proximate Cause. — Where a conductor, hearing a disturbance in a car, entered and quieted the passengers causing the trouble, his failure to eject such passengers was not the proximate cause ■ of injury to an innocent passenger from a renewal of the difficulty after reaching a Station.</p> <p>6. Trial — Instructions—Applicability to Proof — Injury to Passenger — Act of Carrier’s Agent. — In an action by a passenger for an injury from being shot by a flagman, who attempted to shoot another who had attacked him, there being no question of negligence, an instruction using the word “negligently,” instead of the words “not in the necessary or apparently necessary defense of himself and associates,” was erroneous.</p> <p>7. Carriers — Injury to Passenger — Shooting hy Trainman — Instructions. — In an action by a passenger for injury from being shot by a trainman, who shot at another person, an instruction to find for defendant unless one of defendant’s agents while attempting to shoot another person negligently shot plaintiff, should have stated that if defendant’s trainman, when he fired the shot, believed and had reasonable ground to believe that it was necessary to fire the same to protect himself or associates from death or harm, and he so fired the shot ' to protect himself or associates, they shouid find for defendant.'</p> <p>8. Carriers — Injury 'to . Passenger — Instructions—Evidence.—In an action for injury to a passenger from being shot during a disturbance between the trainmen and disorderly passengers, where the evidence was conflicting as to whether the' shot injuring plaintiff was fired by a trainman or a passenger, the court should have instructed that defendant was not liable if the shot was fired by a passenger.</p>

<p>1. Robbery — Evidence—Sufficiency.—In a prosecution for robbery, evidence held to- sufficiently identify accused as the perpetrator of the robbery to warrant a verdict of guilty.</p> <p>2. Criminal Law — Credibility of Witnesses — Questions for Jury. —Where the prosecuting witnesses identified accused as the perpetrator of the crime, the jury had the right to accept their testimony as against that of accused and his witnesses.</p> <p>3. Robbery — What Constitutes — Search of Persons Under Arrest — Right of Officer. — Though a deputy marshal had the right to arrest, without a warrant, persons who were drunk and disorderly, and following such arrests to search them to ascertain whether they possessed weapons or other means of resisting his authority, or affecting their escape if imprisoned, if in making search he obtained money from them, it was his duty to return it upon discharging them from arrest, and if, after making the arrest he took advantage of the duress under which such arrest placed them, and by force or putting them in fear took from them money in their possession feloniously, intending at the time to convert it to his own use, his act was robbery.</p> <p>4. Larceny — Petit Larceny — What Constitutes — Money Taken From Persons Under Arrest. — In a prosecution for robbery, ■ where it appeared that accused, a deputy sheriff, arrested the complaining witnesses for being drunk and disorderly, and after making the arrests searched their persons and obtained an amount of money, which he did not return upon releasing them, it was error not to charge the jury on petit larceny, since, if accused made the' search in good faith, and not for the purpose of robbing them, but after thus getting the money feloniously kept and converted it to his own use, his act in so doing was petit larceny.</p>

CASE 58. — ACTION BY JAMES MATT SANDIDGE’S COMMITTEE FOR THE SALE OF LAND TO PAY DEBTS.— Appeal from Hardin Circuit Court. W. S. Chelf, 'Circuit Judge. From a judgment requiring the purchaser, Brandenburg, to pay for the land he appeals. No briefs — record misplaced.

<p>Schools and School Districts — Graded Common School District— Boundaries. — Ky. St. 1909, Sec. 4464, providing that no- point on the boundary of a.proposed graded common school district shall be more that 2% miles from the site of its proposed schoolhouse, etc., when considered in connection with section 4481, authorizing the trustees to order aij election to submit the question of the issuance of bonds to provide grounds, buildings, etc., and section 4439, authorizing proceedings to condemn a site for a schoolhouse not exceeding one acre, requires that the 2%-mile boundary for a graded common school district shall he measured from the outer boundary of the site of the school building, provided the site does not exceed one acre.</p>

<p>1. - Appeal and Error- — Review—Weight of Evidence. — The jury has the exclusive right to weigh conflicting evidence.</p> <p>2 Railroads — Injury at Crossing — Right of Action — What Law Governs. — The right of recovery for injuries at a railroad crossing in another state is, in the absence of a statutory provision, to be determined by the laws of that state as declared by its Supreme Court.</p> <p>S. Carriers — Injury at Station — Contributory Negligence. — A person going to a train then due to meet a Mend, who exercised due care to observe the situation in passing from the depot to the train, was not so negligent in undertaking to pass between cars three feet apart on an intervening track as to prevent his recovery for injuries by one of the cars suddenly closing the space under the rule in Alabama that the failure to- stop, look and listen before crossing a railroad track is such contributory negligence as' will defeat a recovery for injuries, in the absence of evidence that the company was guilty of reckless o-r wanton negligence.</p> <p>4. Carriers — Care of Persons Accompanying Passenger.— Though a carrier does not owe a person going to a train to meet a friend the degree of care due a passenger, it must exercise ordinary care for his safety.</p> <p>5. Carriers — Care of Persons Accompanying Passenger.- — A person going to a train to receive a passenger need not wait until the train has actually arrived before going to the platform in order to avail himself of the rule of law that requires a carrier to exercise ordinary care for his safety.</p> <p>■ 6. Carriers — Injuries at Station — Care Due Travelers. — Where an opening in a train at a station has been made for the passage of persons, the duty to give warning before closing the space is not satisfied by merely ringing the engine bell or sounding the whistle.</p> <p>7. Carriers — Injuries at Station — Negligence—Question for Jury. —Whether sufficient warning was given before closing the space left for the passage of persons between cars at a station is a question for the jury.</p> <p>8. Carriers — Injury at Station — Instruction.—Where . the evidence is conflicting as to whether defendant exercised sufficient care to give warning before closing the space left for the passage of persons between cars at a crossing, it is proper to instruct to find for defendant, if plaintiff would not have been injured except for his contributory negligence, unless when he came in peril defendant’s employes could, by the exercise of ordinary car, have- discovered his peril and prevented the injury.</p> <p>9. Damages — Punitive Damages — What Law Governs. — The laws of the state wherein a personal injury occurred govern the question whether punitive damages should be awarded.</p> <p>10. Evidence — Presumptions—Law of Other State. — In the absence of proof of the law as to punitive damages for personal injuries in the state where the personal injuries oo curred, the law of that state is presumed to be the same as that of the forum.</p> <p>11. Negligence — “Gross Negligence.” — “Gross negligence” is the absense of slight care.</p> <p>12. Damages — Punitive Damages — Personal Injuries. — Where the negligence from which a personal injury results 'is gross, punitive damages may be awarded.</p> <p>13. Carriers — Injury at Station — Negligence—Sufficiency of Evidence. — Evidence, in an action for injuries at a station, held to show that plaintiff was injured by defendant’s reckless disregard of its duty to plaintiff.</p> <p>14. Appeal and Error — Harmless Error — Punitive Damages — Instructions. — The objection to an instruction on punitive damages that the words “or may not” should have been inserted after the words “then you may” in the clause allowing an award of such damages is too technical for consideration.</p> <p>15. Dámages — Propriety of Instructions on Punitive Damages.— Where there is evidence that the injury at a crossing was caused by a reckless disregard of human life, an instruction on the subject of punitive damages is proper.</p> <p>1G. Damages — Excessive Damages — Personal Injuries. — Verdict for $12,500 for permanent personal injuries held not excessive.</p>

<p>1. Schools and School Districts — “Common Schools.” — Graded schools are “common schools.”</p> <p>2.. Elections — Qualification of Voters — Sex—School Elections.— Ky. St. 1909, Secs. 4464-4500a, relating to graded common schools, provides no qualification for voters in graded school district elections except the qualification provided generally for school elections, in view of which it has been held that the qualifications are the same, and that under section 4458, providing that, in a common school district election to levy a district tax for common schools, any resident widow or spinster, who is a taxpayer, or who has children within school ages, may vote, such persons may vote upon the question of tax for a graded school in a proposed graded common school district. Act March 24, 1908 (Acts 1908, p. 133, c. 56), establishes in some particulars a radical departure from the preexisting system, but without any design to render the system as a whole inharmonious, and provides ihat graded common school districts operating under special charter or established by popular vote in school districts operating in municipal districts established under special charter, and supplementing the state school fund by a local tax of a certain amount, shall retain their present boundaries and be exempt from the provisions of the act. Held, that the effect of the prohibition of the act of 1908 was to re-enact sections 4464-4500a as part thereof, and the graded common school districts operating under special charter or established by popular vote remained unaffected by the later law in their boundaries, government, and regulation; but the later act. providing that all resident males' over 23 years of age shall have the right ,to vote at elections, women are no longer entitled to vote in graded common school elections.</p> <p>3. Schools and School Districts — Levy of Tax — School Election— Manner of Voting. — Ky. St. 1909, Sec. 4467, relating to the voting upon tho question of establishing a graded common school and a tax to maintain it, provides that on the day set apart for the election the officers shall open a poll and propound to each voter the question, “Are you against or for the graded common school tax?” and his vote shall be recorded for or against the same as he may direct, which has been held to require a viva voce vote on the'subject of taxation. Act March 24, 1908 (Acts 1908, p. 133, c. 56), which in effect re-enacted the former act, as a part of the latter act, makes no provision as to how the votes shall be taken, whether by ballot or otherwise though in an election for trustees, voting by special ballot and the manner of preparing and furnishing the ballots are all provided for. Held, that the intent was that the vote on the question of the tax should be viva voce.</p> <p>4. Schools and School Districts — School Election — Irregularities. —Ky. St. 1909, Sec. 4467 (Russell’s St. Sec. 5739), provides that an election upon the question of a tax for the establishing and maintaining of a graded common school there shall be one judge and a clerk. Act March 24, 1908 (Acts 1908, p. 133, c. 56), for the government and regulation of common schools, which re-enacted in effect the former act as a part thereof, provides that two judges and a clerk shall be appointed by the county election commissioners. At such an election the sheriff appointed a judge and clerk, and the county election commissioners ratified the appointment and appointed one additional judge. He failed to act, and his place was filled by another. Held, that, as nothing done by the substitute affected the result, and there being no claim that the regular judge and clerk did not of their own judgment and action do all that the substitute is claimed to have attempted to do, his participation was, at most, a harmless irregularity.</p> <p>5. Evidence — Judicial Notice — Location of High School.' — The court will take notice of the location of tho Columbia Male and Female High School building in tho town of Columbia.</p> <p>6. Elections--School Elections — Petition—Sulfipieney.—Ky. St. 1909, Sec. 4464, relating to elections upon the question of a tax for the establishing 'and maintaining of a graded common school, provides that the petition for the election shall indicate with exactness the location and site of the schoolhouse, meaning the schoolhouse that will be provided for the proposed graded common school. Held, that the intent was to settle as nearly as might be the location of the proposed building, and a petition, stating that the ‘location of the school house * * * shall be at the building known as the Columbia M. & F. High School, if it can be secured upon terms satisfactory to the trustees who may be elected in said proposed district, or at some other suitable point within the corporate limits of -the town of Columbia,” was sufficient; the other words of the 'description being treated as surplusage.</p> <p>7. Elections — School Elections — Petition — Sufficiency—“Other Expenses Needful in Conducting a Good Graded Common School.”— Ky. St. 1909, Sec. 4464, provides fer an election upon the question of levying a tax to maintain a ’ graded common school and for erecting or repairing suitable buildings therefor, if necessary. Section 4481 (section 5758) makes it the duty of the district trustees to provide funds for purchasing suitable buildings, or for erecting or repairing them, and for other expenses needful in conducting a good graded common school, and permits them to use such part of the proceeds of the tax as they may deem necessary. Held, that the phrase “and for other expenses needful in conducting a good graded common school” implies the power to rent a suitable building temporarily and until one can be secured or built by the trustees, and a petition for the election, reciting that the proposed tax was to be used for the purpose of maintaining a graded common school and for the erecting, purchasing, leasing, and repairing of suitable buildings therefor if necessary, was no more than the two. sections of the statute authorized, meaning that the trustees were to buy a building, if they could, ’and, if not, to buy a lot and build a house, to repair any buildings bought or built by them, and in the meantime to lease a suitable building for the continuation of the school, and did not render the petition insufficient.</p> <p>8. Schools and School Districts — District. Property — Power of State. — The maintenance of public schools is a state question done in the exercise of the state’s sovereign power, and where the state authorized the application of public lands to build an academy for public education, and subsequently let the town sell the academy and lot and use the proceeds in paving its streets, the Legislature could require the town to reimburse the state by buying another lot for common school purposes, and, the town having done so without complaint, its subsequent holding of the title, as required by the Legislature, was a naked trust which the Legislature could end at its will, and it having provided by Ky. St. 1909, Sec. 4484, that the title of all common school property in the limits of a graded common school district organized under the provisions of the act shall be vested in the board of trustees of the school dictrict and empowered them to sell the same if they should think it best, the trustees could convey a good title thereto, to their grantees. '</p> <p>9. Schools and School Districts — Purchase of Property — Discretion of Trustees. — The discretion of trustees elected upon the establishment of a graded common school district, as to buying a particular property for the school, which property the petition for election specified should be procured, if expedient, will not be interfered with by the courts, at least in the absence of such proofs of abuse as would be tantamount to fraud.</p>

<p>1. Railroads — Crossing Accident — Questions for Jury — Evidence.’ —In an action for injuries in a crossing' accident, whether plaintiff was negligent, in standing on one track while a freight train was passing on another held, under the evidence, for the jury.</p> <p>2 Railroads — Accidents at Crossings — Duty to Stop Before Crossing. — One having a right to cross a railroad track need not stop to look or listen, before crossing in order to discover whether a train is approaching.</p> <p>3. Railroads — Crossing Accident — Instructions.—Where, in an action for injuries in a crossing accident, the whistle of the engine was not sounded, so that plaintiff could hear it, until the engine was within a few feet of, and in fact on, plaintiff, an instruction conñning the signals to the ringing of the bell, which evidence showed was rung long before the engine struck plaintiff, was proper.</p> <p>4. Trial-^Cure by Other Instruction. — Error in an instruction, which is corrected by. another instruction given, is cured.</p>

<p>ACTION BY CHARLIE PICKLESÍMER’S ADMINISTRATOR AGAINST THE CHESAPEAKE & OHIO RAILWAY ■ • COMPANY.</p> <p>Appeal from Boyd Circuit Court.'</p> <p>Prom a judgment for plaintiff, defendant appeals.</p>

<p>1 Railroads — Speed of Train Past Private Crossings — Signal— ' Question for Jury. — A railroad company may run its trains at any speed it pleases over private crossings, and it is not required to give notice of their approach to such crossings unless is has been customary for signals to he given there which are relied on by persons using the crossing and whether, in a given case, the custom of giving signals for a crossing prevailed to an extent that persons using the crossing could rely on 'the signals being given, is for the jury.</p> <p>2. Railroads — Death at Crossing — Contributory Negligence — Presumptions. — There is no presumption that a person killed at a private railroad crossing is guilty of contributory negligence; that question being for the jury.</p> <p>3. Railroads- — -Death at Crossing — Signals—Reliance Upon— Question for Jury. — In an action for death of a person killed at a private railroad crossing, whether the custom of giving signals for a crossing prevailed to an extent that persons using the crossing could rely on the signals being given held, under the evidence, a question for the jury.</p> <p>4. Railroads — Death at Crossing — Instructions.—In an action for death of a person killed at a private railroad crossing, an instruction that it was the duty of defendant’s employes in' charge of the train, when approaching the crossing, to keep a lookout for persons traveling over the crossing, and to give reasonable signals of the movement of the train, and if defendant’s employes negligently faildd to perform these duties, and by reason thereof plaintiff’s intestate was killed, etc., was erroneous; a proper instruction being that if it was customary for trains to give signals of tlieir approach to the crossing, and this custom prevailed to an extent that persons using the crossing had reason to rely on such signals being* given, and the train in question faiied to give such signals, and by reason of such failure decedent was struck, the jury should find for plaintiff.</p> <p>5. Trial — Instructions-Conforming to Evidence. — In an action for death of a person killed at a private railroad crossing, it was error to charge that, although the jury believed that the employes on the train gave reasonable signals of the approach of the train, yet, if the employes discovered decedent’s peril in time to have avoided the collision by the use of the available means and appliances at hand, to find for plaintiff; there being no evidence to support it.</p> <p>6. Railroads- — Crossing-Accident—Duty of Engineer in Approaching a Crossing. — The engineer of a train approaching a private road crossing in the country is not bound to look away from the track to see if he can discover the top of any vehicle above the sides of the cut through which the road runs, but, on the contrary is bound to watch the track before him.</p>

CASE 64. — ACTION BY FRANK WATERS AND OTHERS AGAINST J. H. KEENEY AND OTHERS. Appeal from Wayne Circuit Court. M. L. Jarvis, Circuit Judge.

<p>2. Municipal Corporations — Charter — Taxation — Liability for Knowledge of. — The duty of a municipality to keep its streets and sidewalks in a reasonably safe condition for persons traveling thereon extends to cases where the obstruction or unsafe condition of the street is brought about by persons other than the agents of the city; but the party seeking to recover for failure to perform such duty must show that the city had knowledge of the defect, or might have had knowledge thereof by the use of reasonable care.</p> <p>2. Municipal Corporations — Charter — Taxation- — Liability for Defective Sidewalks. — It is no- defense to an action against a city of the fourth class for personal injuries from falling on a defective sidewalk that 'the territory where the accident occurred had been annexed too late to be subject to taxation that year, and that the taxes for subseguent years were sufficient to improve streets or sidewalks, since the charter of such cities gives them the right to build sidewalks and assess the cost against the abutting property, so that, it was unnecessary for the city to levy any general tax for such purposes.</p> <p>3. Municipal Corporations — Defects in Sidewalks — Notice.— Where it was shown that an excavation, which lowered a sidewalk and allowed an obstruction to protrude, over which the plaintiff fell, was.made about three months prior to the accident, the city was chargable with notice of the obstruction.</p>

<p>1. Carriers — “Common Carriers” — Switch Track of Coal Company. — One who constructs a railroad switch, under Ky. St. 1909, Sec. 815, authorizing the owner of a coal mine within three miles of a railroad to condemn a right of way for a railroad switch to get his product to market, and providing that the owner of such road shall be, so far as they are ap« plicable, governed by the laws relating to other railroads, and shall have the same right and privileges granted to corporations-owning and operating lines of railroads, is not a “common carrier,” in contravention of Const. Sec. 210, providing that no corporation engaged in the business of common carrier shall own a mine, so that it can either ship or permit to be shipped by the lessees of its .mine all products thereof free of charge.</p> <p>2. Carriers — Discrimination in Rates. — A coal company, which constructs a railroad switch to its mine and allows the hauling over it of coal of its lessees and others, does not discriminate against such others, whom it charges five cents a ton trackage, by charging its tenants only eight cents a ton royalty; such charge to also cover transportation over the track.</p> <p>3. Carriers — Discrimination—Lines Operated. — A railroad company, which has a mortgage on tae switch road 6f a coal company coming into its road at P., and without charge puts its empty cars on the switch for the various mine-owners along it, and when they are loaded hauls them over the switch to P., making its charges from P., only, the same to all shippers does not operate the switch as a part of its general system, so as to be subject to the charge of discrimination on account of the trackage charges made by the coal company owning the switch.</p> <p>4. Carriers — Extortionate Charges. — A coal company, which constructs a switch to its mine, and which is, under Ky. St. 1909, See. 815, subject to the general railroad laws, to the extent that it cannot make extortionate track charges to others, cannot, till it has been repaid its outlay for construction, be claimed by others to make such extortionate charges; tne charges being such as were agreed on with them before the construction of the track as a consideration for the right of way.</p> <p>5. Interest — Recovery—Pleading.—No claim of interest having been made- in the pleadings by plaintiff, it cannot complain that none were allowed, even from the filing of tho suit.</p>

<p>CASE -6.7. — ACTION BY THE CITY OP LOUISVILLE AGAINST . WILLIAM SPECHT.</p> <p>Appeal from Jefferson Circuit Court. (Chancery Branch 1 Div.).</p> <p>Shackelford Miller, Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p> <p>PROPOSITIONS SUBMITTED.</p> <p>1. Section 4 of Chapter 57 of the Acts of 1906, giving cities of the first class the right to exact interest at the rate of twelve per cent, per annum on all tax bills.after the expiration o-f onq year from the time the same are due is unconstitutional and usurious.</p> <p>(a) It is unconstitutional in that it affects only adult persons and does not apply to the property of infants, married women or those of unsound mind.</p> <p>(b) It is usurious because the twelve per cent, is no part of the obligation to pay the tax, nor it is a penalty, but it is given or allowed “for forbearance” only. Chap. 57, Sec. 4, Acts of 1906; Sec. 2218 Ky. Stats.; McCann’s Executor v. Bell, 79 Ky., p. 112; Sec. 3005, Ky. Statutes.</p> <p>PROPOSITIONS AND AUTHORITIES.</p> <p>1. The provision excepting persons under the disability of infancy, coverture, and unsound mind applies to the remedy and not to the amount of interest to be charged on the taxes. This provision was a part of the original statute, the validity of which has often been recognized by this court. Walston v. City of Louisville, 66 S. W., 385, 23 Ky. Law Rep., 1852; Woolley v. City of Louisville, 114 Ky., 556, 71 S. W., 893.</p> <p>2. “The giving of interest on unpaid taxes is no more than a penalty for their non-payment.” “What penalties may be imposed upon delinquents in the several classes of cities is a matter of legislative discretion.” Walston v. City of Louisville, 66 S. W., 385, 23 Ky. Law Rep., 1852; Woolley v. City of Louisville, 114 Ky., 556, 71 S. W., 893; Droege v. Mclnerey, 87 S. W., .1085. 27 Ky. Law Rep., 1137.</p> <p>3. The Act of 1906, being section 212 of an act for the government of cities of the first class, is not local or special legislation in violation of Section 59, Sub-section 21 of the Constitution, prohibiting local or special acts regalating the rate of interest. Walston and Woolley cases, supra.</p> <p>4. The penalty imposed upon delinquent taxes in cities of the first class by the act in question is less than the penalties imposed by the acts governing the same subject in other classes of municipalities. A penalty 'of one per cent, per month, to. be attached one year after 'the taxes are due and payable, is just and reasonable. Cooley on Taxation, 2nd Ed., page 457; 3rd Ed., Vol. 2, page 901; Lacy v. Davis, 4 Mich., 140; Nance v. Hopkins, 10 Lea., 508; Myers v. Parks, 8 Heisk, 500; Scott v. Watkins. 22 Ark., 556; Potts v. Cooley, 56 Wis., 45; Evermann v. Blakesley, 9 Mo., App. 231; Sections of Ky. Statutes (Carroll Ed., 1909). 3184, 3400, 3392, 3644, 3677, 4156, 4174, 4091; Owensboro Water Works v. City of Owensboro, 74 S. W., 685, 24 Ky. Law Rep., 2530. Response to petition for rehearing, 75 8. W., 261, 25 Ky. Law Rep., 434.</p>

CASE 6S. — CONTROVERSY OVER THE APPLICATION OP . CLARENCE EWING FOR A LICENSE TO RETAIL LIQUOR. Appeal from Warren County. John M. Galloway, Circuit Judge. Prom an order of the County Court granting liquor license to Clarence Ewing, which was affirmed in the Circuit Court, the Commonwealth appeals.

CASE 69 — ACTION BY JULIUS H. ULRICH AND OTHERS AGAINST FREDRICK KOUSTMER AND OTHERS.— Appeal from Campbell Circuit Court. C. W. Yungblut, Circuit Judge. Judgment for defendants, plaintiff appeals. PROPOSITIONS DISCUSSED. 1. Injunction is a proper remedy for an officer interferred with or molested in the discharge of his duty. Poyntz v. Shackelford, 107 Ky., 546. 2.

<p>CASE 70. — ACTION BY S. J. SCHWALK’S ADMINISTRATOR AGAINST THE CITY OP LOUISVILLE.</p> <p>Appeal from Jefferson Circuit Court (Common</p> <p>Pleas Branch, Second Division).</p> <p>Thos R. Cordon, Judge.</p> <p>Judgment for defendant, plaintiff appeals.</p> <p>No brief in the record,</p> <p>POINTS AND AUTHORITIES.</p> <p>1. In the maintenance and care of its public building or City Hall, the appellee, City, is an arm ,of the State, and performs certain State duties, and can not be held liable for the negligence of an operator of the elevator in its City Hall. The same rule applies here as to a Court House, or to the Police and Fire Departments, etc.</p> <p>(a) What is a municipal corporation? State v, I,c-yv Court (Del.), 43 Atl., 522; 1 Blackstone’s Commentaries, 113-116; 2 Kent’s Commentaries, 275; United Statqs v. B. & O. R. R. Co., 17 Wall. 322, 329; Marking v. Queen County, 49 N. E., 71.</p> <p>(b) A municipal corporation as defined by the Ky. Court of Appeals. City of Louisville v. Commonwealth, 1 Duv., 295; Taylor v. Owensboro, 98 Ky., 271; Lou. Bridge Co. v. City of Louisville, 81 Ky., 189, 212.</p> <p>(c) General rule as to municipal liability. Sherman & Redfield on Negligence/ Sec. 253; Burdict’s Law of Torts, page 109, (Text.); Bigby v. United States, 188 U. S., 400 (Federal Bldg.); Simons v. Gregory, etc., 120 Ky., 116 (Jeff. Co. Court House.); Cunningham v. St. Louis, 96 Mo., 53, 8. S. W., 787 (Court House.).</p> <p>(d) State institutions and purposes. Taxation, Constitution, Sec. 170; City of Louisville v. Commonwealth, 1 Duv. 195. Schools: Ernest v. West Covington, 16 Ky., 850. Public Safe'ty: Pollock’s Adm’r v. Louisville, 3 Bush, 221; Greenwood v. Louisville, 13 Bush, 226; O’Rourk v. Souix Falls (S. D.), 19 L. R. A., 789; Wilcox v. Rochester, 190 N. Y., 131, 82 N. E., 1119. City Court: Constitution, Sec. 143; Kentucky Statutes, Secs. 2912, 2915, 2916, 2936, 2943'. Health Department.</p> <p>2. The erection, care and maintenance of the City Hall of Louisville is within the exercise of a purely' governmental function, and this being true, the appellee, City, can not be held liable for any acts of negligence on the part of its employes enagaged therein.</p> <p>(a) Organization. Constitution of Kentucky, Sec. 156; Kentucky Statutes, Sec. 2742.</p> <p>(b) Governmental division. Cyc. Vol. 28, p. 1257.</p> <p>(c) Application. Smith on Modern Law of Municipal Corporations, Sec. 157, etc.; Wright v. City of San Antonio (Texas), 50 S. W., 406; Dillon on Municipal Corporation, Sec. 30.</p> <p>(d) School buildings. Ernest v. West Covington, 116 Ky., 850, etc. Clark v. Nicholasville, 27 Ky. Law Rep., 974; Dillon on Municipal Corporations, 965; Hill v. Boston, 122 Mass., 344.</p> <p>(e) Prisons. Jones v. Corbin, 98 S. W., 1002; Gray v. Griffin, 111 Ga., 361, 51 L. R. A., 131.</p> <p>(f) Bridges. Corning v. Saginaw (Mich.), 40 L. R. A., 526 French v. Boston, 129 Mass., 592.</p> <p>(g) Hospitals. City of Richmond v. Long’s Adm’r, 17 Gratt., 378; Maxmilian v. New York, 62 N. Y., 164, 20 Am. Rep., 468.</p> <p>(h) Pesthouses. Twyman’s Adm’r v. Board of Councilmen of Frankfort, 78 S. W., 466; Having v. Covington, 78 S. W., 431.</p> <p>(i) Workhouses. Ulrich v. City of St. Louis, 20 S. W., 466.</p> <p>(j) School of Reform. Williamson v. Louisville Industrial School of Reform, 95 Ky., 251.</p> <p>(k)Parks. Board of Park Commissioners v. Prinz, 32 Ky. Law Rep., 359, 105 S. W., 948.</p> <p>(l) Garbage. Condict’s Adm’r v. Jersey City, 46 N. J. Law, 157; Kuehn v. Milwaukee, 92 Wis., 263; 65 N. W., 1030.</p> <p>(m) City Hall. Snider v. St. Paul, 51 Minn., 466, 53 S. W., 763; Wilcox v. Rochester, 82 N. E., 1119; Kelly v. Boston, 186 Mass. 165, 71 N. E., 299; Eastman v. Town of Meredith, 36 N. H., 284; Worden v. Town of New Bedford, 131 Mass., 23.</p>

CASE 71. — PROSECUTION BY COMMONWEALTH OF BEACH HARGIS FOR MURDER. Appeal from Estill Circuit Court. J. P. Adams, Circuit Judge. Defendant convicted and appeals. POINTS AND AUTHORITIES. 1. It was error for the court to refuse to retire from the bench. Givens v. Crawshaw, (55 S. W., 905) 21 Ky. Law Rep., 1619; MaS^ sie v. Commonwealth, 93 Ky., 588; Powers v. Commonwealth, 114 Ky., 237; Ky. Journal Pub: Co. v. Gaines (116 S. W., 268) 33 Ky. Law Rep. 402. 2.

CASE 72. — ACTION BY C. M. LANGDON AGAINST HARRY ELLISON AND OTHERS. Appeal from Pulaski Circuit Court. M. L. Jarvis, Circuit Judge. Judgment for plaintiff, defendant appeals. It is clear in the case that the appellee did not pay off the taxes on December first, to accomodate the County, State or people, but was actuated solely by the prospect of gain on the transaction. We therefore conclude: 1.

<p>CASE 73. — ACTION BY THE ADMINISTRATOR OF I. O. LEWIS DECEASED AGAINST THE BOWLING GREEN GAS LIGHT CO. FOR THE WRONGFUL DEATH OF SAID DECEDENT</p> <p>Appeal from Warren Circuit Court.</p> <p>John M. Galloway, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals.</p> <p>POINTS AND AUTHORITIES.</p> <p>1. Where defendant placed a deadly current of electricity upon an unsafe line, it is responsible for injuries occurring' by reason of the defective condition of the line, whether defendant owned the line or not. Thomas’ Adm’r v. Maysville Gas. Co., 21 Ky. Law-Rep. 1609.</p> <p>2. Where defendant uses the dangerous agency of electricity for its private gain and transmits it by meads of wires, it is bound at its peril to use the highest degree of care to protect the public and to keep its wires perfectly insulated at places where tne public have the right to be for business or pleasure, and shall use •the highest degree of care by constant inspection to see that the lines are kept safe. McLaughlin v. Louisville Electric Co., 18 Ky. Law Rep., 639; Overall v. Louisville Electric Co., 20 Ky. Law Rep., 759; Mangans’ Adm’r v. Louisville Electric Co., 9' S. W., 703; City Owensboro v. Knox, 76 S. W., 191; Sweitzer’s Adm’r v. Citizen’s Gen. Electric Co., 21 Ky. Law Rep., 608.</p> <p>3. Defendant was guilty of gross negligence, not only by failing to inspect line and see that it was safe, but by failing to test it, from 5 o’clock Sunday morning until 6 o’clock that evening. Brown v. Consolidated Light, Power & Ice Co., 109 S. W., 1032.</p> <p>4. The test of contributory negligence is not always found in the failure to exercise the best judgment or to use the wisest precaution, * * * * but it is to consider whether a" prudent person in the same situation and having the knowledge possessed by tne one in question, would have done the alleged negligent act. Thompson’s Commentaries on Law of Negligence, Yol. 1, Sections 171-173.</p> <p>5. In order that an act shall be deemed one of. contributory negligence per se, it must have been done contrary to a statutory duty, or it must ¿ppear so opposed to the dictates of conlmon prudence that the Court can say without hesitation or doubt that no careful person would have committed it. L. & N. R. Co. v. Walton, 13 Ky. Lew Rep., 460; Ashland Coal & Iron Co. v. Wallace, 19 Ky., Law Rep., 853.</p> <p>6. The lower court erred in taking the case from the jury, and should have permitted the jury to say, under all the circumstances whether I . O. Lewis was guilty of such contributory negligence as would prevent a recovery.</p> <p>AUTHORITIES.</p> <p>1. The Appellee was not required to exercise the highest degree of care at the time and-under the circumstances where and when the accident occurred. McLaughlin v. Light Company, 18 Ky. Law Rep., 693.</p> <p>2. It was contributory negligence for the Appellant’s testator to take hold of a live wire in the manner and under the circumstances shown in this case. Mayfiexd Water & .Light Co. v. Webb’s</p> <p>Administrator, 111 S. W., 202; I. C. R. R. Co. v. Wilson, 23d Ky. Law Reporter, p. 684.</p>

CASE 74. — ACTION BY C. J. LITTLE' AGAINST THE CONTINENTAL REALTY CO. AND OTHERS TO RECOVER POR SLANDER TO TITLE OP LAND. Appeal from Perry Circuit Court. L. D. Lewis, Circuit Judge. From an order overruling a demurrer to plaintiff’s petition, defendants appeal. We insist that defendants demurrer to the petition should have been sustained: 1. Because the petition does not state a course of action against any of the defendants. Perkins' v. Maysville, Dist.

CASE 75. — ACTION BY HARVEY MCDONALD’S ADMINISTRATOR AGAINST THE WALL'SEND COAL & COKE CO. FOR CAUSING THE: DEATH OF PLAINTIFF’S INTESTATE. Appeal from Bell Circuit Court.

CASE 76. — PROSECUTION AGAINST ROBERT BROWN AND OTHERS FOR ROBBERY Appeal from Bell Circuit Court. M. J. Moss, Circuit Judge. Defendant convicted and appeals. The judgment herein should be reversed, because: 1. The evidence does not show that anything of value was taken from the man, Roberts, said to have been robbed. 2. Because the court failed to give the jury the whole law of the case by instructing, them on the law of grand and petit larceny. 3.

<p>1. Wills — Construction—Time of Taking Effect. — Ky. St.1909, Sec. 4839 (Russell’s St. Sec. 3962), provides that “a will shall be construeds* * * to speak and take effect as if executed immediately before the death of testator, unless a contrary intention appears.” Held, that where it appears that a will was made in contemplation of a settlement with creditors, and a conveyance for carrying out that plan was made in about a month after its execution, the will should be read as speaking from the date of conveyance rather than that of its execution.</p> <p>2. Wills — Construction—Equality of Beneficiaries. — The construction of the will, which produces equality is preferred to ■ one that produces inequality, and it will not be presumed that testator intended to prefer one of his children to fhe others, unless this appears from a fair reading of the will.</p> <p>3. Wills — Construction—Division of Property. — A will construed ' with reference to the condition of testator’s property and the contemplated compromise and settlement with creditors, and held, that testator intended to divide his estate equally between his three children, and that the daughter was not entitled to a one-third interest in a certain factory before a division of the estate.</p>

<p>1. Wills — Construction—Intention of Testator. — In construing a will, the court must determine the intention of the testator from a consideration of the entire will, and the intention, when ascertained, will be carried into effect, though the technical meaning of words is disregarded, and though words must be supplied.</p> <p>2. Wills — Estates Devised — .“Heirs.”—Testator devised real estate to the children of a deceased daughter, to a son, and to his daughter C. gave his daughter N. a specified sum, gave $10,000 in bonds to the son in trust for his daughter B. to pay to her the income for life and at her death the principal to be divided among his “heirs” in accordance to the number of children which each might then have, division to be per stirpes, and gave the residue to. his son and two daughters, C. and N., and the children of the deceased daughter, Held, that the word “heirs” meant testator’s children, and that the trust fund on the death of B. must be divided among the stocks, giving to each stock in proportion to the number of children of that stock; each of the three children of the testator being a stock, and the children of the deceased daughter being another stock.</p>

<p>CASE 79. — ACTION BY THE MONTICELLO CONSTRUCTION COMPANY AGAINST E. 0. STONE, LEO. F. SANDERS, A. MILLER AND OTHERS AND JOE MARSH TO RECOVER CERTAIN SUBSCRIPTIONS TO A. PROJECTED RAILROAD FRDM TATEVILLE TO MONTICELLO.</p> <p>Appeal from Wayne Circuit Court.</p> <p>Wm. H. Holt, Special Judge.</p> <p>Judgment for plaintiffs, defendants appeal.</p> <p>AUTHORITIES CITED.</p> <p>1. As to the validity of subscription papers for the organization of Corporations. Twin Creek & COalmansville Turnpike Road Co. v. Lancaster, 79 Ky., 552; Bullock v. Falmouth, etc., Turnpike Co., 85 Ky., 184; Cadiz Railroad Co. v. Roach, 24 Ky. Law Rep., 1761; Curry v. Ky. Western R. R. Co., 25 Ky. Law Rep., 3372.</p> <p>2. As to the construction of the phrase "in good faith” in contracts. Seymour v. Cleveland, 68 N. W., 171; Wright v. Mattison, 59 United States, 50; Crouch v. First Nat’l Bank, 40 N. E., 974; Docter v. Furch, 65 N. W., 253.</p> <p>3. The burden of proving a precedent negative condition in contracts. 16 Cyc., 1928; Malone v. Ruffino, 79 Am. St. Rep., 127; Great Western R. R. Co. v. Bason, 30 111., 347.</p> <p>4. As to the competency of jurors. Kemper v. City of Louisville, 14 Bush, 87; Ky. Wagon Co. v. City of Louisville, 97 Ky., 548; Searsburg Turnpike Co. v. Cutler, 6 Vt., 315; Lewis v. Hilsborough, etc., 23 S. W. 338.</p>

<p>CASE 80. — ACTION BY MONTICELLO CONSTRUCTION CO. AGAINST McCONNAGHY TO ENFORCE CERTAIN SUBSCRIPTIONS TO A PROJECTED RAILROAD FROM TATESVILLE TO MONTICELLO, KY.</p> <p>Appeal from Wayne Circuit Court.</p> <p>William II. Holt, Special Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>1. Master and Servant — Injuries to Servant — Sufficiency of Evidence — Employment.—In an action for the death of a hoy while working in a coal mine, evidence held to show that he was employed by defendant’s foreman.</p> <p>2. Master and Servant — Unlawful Employmant of Infant — Master’s Liability. — Under St. 1909, Sec. 331a (Russell’s St. Secs. 8237-3251a(5)), making it unlawful to employ any child less than 14 years old in a mine, read in connection with St. 1909, Sec. 466 (Russell’s St. Sec. 3), permitting one injurid by the violation of a statute to recover from the offender any damage sustained by reason of the violation, an infant employed in a mine in violation of the statute, can recover damages sustained in consequence" of its violation, and whether the injury occurred when the boy was at bis place in tide mine, or going or coming to work, was immaterial.</p> <p>S. Death — Action for Death — Right of Action. — An action to recover for death by wrongful act can only be maintained under St. 1909, Sec. 8 (Russell’s St. Sec. 11), enacted pursuant to Const. Sec. 241, giving a right of action for death by wrongful act; no such right of action existing at common law.</p> <p>4. Death — Action—Defenses—Contributory Negligence — Neglect of Statutory Duty. — Contributory negligence is a defense to an action brought pursuant to St. 1909, Sec. 6 (Russell’s St. Sec 11),giving a right of action for death oy wrongful act, for the death of an infant while employed in a coal mine in. violation of St. Sec. 1909, Sec. 331a (Russell's St. Secs. 3237-3251a (5)), prohibiting the employment of infants under 14 years old in a mine.</p> <p>5. Negligence — Contributory Negligence — Infants.—An infant is only required to exercise such care as may reasonably be expected from one of his age under like circumstances; the law recognizing his lack of mature discretion.</p> <p>6. Master and Servant — Infants—Contributory Negligence — Jury Question. — In an action for the death of a boy killed while working in a coal mine hy falling between the cars while riding out from work, whether he used ordinary care in passing over the cars under the circumstances held for the jury.</p>

<p>1. Corporations — Operation—Control by Court. — The courts will not interfere with the management of a corporation, because it is not being successfully operated, unless there is actual fraud, or such a wasting of the corporate property as practically amounts to fraud.</p> <p>2. Corporations — Mismanagement—Fraud—Sufficiency of Evidence. — Evidence held sufficient to show such mismanagement of a corporation as authorized the appointment of a receiver and the sale of the property.</p>

<p>1. Highways — Defects—Liability.—A county is not liable for injuries to a traveler on a defective county highway; the county being an arm of the state government exercising a part of the powers of the state, created by the Legislature for that purpose.</p> <p>2. Bridges — Defects—Liability.—A contract between a county, railroad- company, and a traction company, which provided for a change in the location of a county highway crossing the railroad track at grade, and which reciuired the railroad and traction companies to construct an overhead bridge at their own expense, and which bound the traction company to keep the bridge in repair, contemplated that the county should be free from the burden of maintaining the bridge, and the traction company only assumed to do for the county what it otherwise would have been compelled to do, and was not liable for injuries to a traveler caused by'a defect in the bridge.</p> <p>3. Highway — Defects—Liability.'—Though the county authorities or its representatives may he indicted for maintaining a public nuisance, occasioned by maintaining a defective highway, or bridge forming a part thereof, yet there is no liability for damages to persons injured thereby.</p>

<p>CASE 84. — PROSECUTION AGAINST ABE ALLISON FOR VIOLATION OF LOCAL .OPTION LAW.</p> <p>Appeal from-Hardin Circuit Court.</p> <p>Weed S. Chelf, Circuit Judge.</p> <p>Defendant convicted and -appeals.</p>

<p>1. Carriers — Injuries to Passengers — Contributory Negligence— Action — Emergency.—Plaintiff, a woman 69 years of age, was injured while riding on defendant’s street car by a collision between the car and an ice wagon approaching each other at right angles at a crossing. Plaintiff saw the wagon and the danger of collision, just before it occurred, when she got up and stepped to the other side of the car as she saw other passengers doing; and, when the collision occurred' she was thrown forward onto the back of a seat, and the tongue of the wagon, entering the car, dragged down over her back and hip. Held, that plaintiff’s act in moving from her position was done in an emergency not of her creation, and the fact that she made an unwise 'choice of means to escape did not constitute contributory negligence.</p> <p>2. Street Railroads — Injuries to Passengers. — Street Car Collision — Duty of Motorman.' — A street car motorman in approaching a crossing, while hound to keep a lookout for persons or vehicles crossing or about to cross the track, is not required to stop and look up and down the street he is crossing; his primary duty being to look ahead and observe persons or vehicles approaching the track within the ordinary range of his vision while so looking, being entitled to presume that the driver of a vehicle approaching the track will have his team under control.</p> <p>3. Carriers — Injuries to- Passengers — Streets—Collision with. Ice Wagon — Negligence.—Where an ice wagon which collided with a street car at a crossing was not within the- motorman’s ordinary range of vision as he was looking ahead when he started to cross the track, but was approaching thQ crossing at a high rate of speed, and when the motorman saw that a collision was imminent, and stopped the car in the middle of the street, the wagon was only 10 or 12 feet distant, and to have kept the car in motion would have increased the force of the collision, the motorman was not negligent in failing to observe the wagon earlier or in stopping the car.</p>

<p>CASE 86. — ACTION BY T. M. GILMORE & CO. AGAINST W. B. SAMUELS & CO. TO RECOVER BROKERAGE FEES.</p> <p>Appeal from Nelson Circuit Court.</p> <p>Samuel E. Jones, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals.</p>

<p>CASE 87 — ACTION BY FRANK CORBIN AGAINST JENNIE M. SMITH.</p> <p>Appeal from Payette Circuit Court.</p> <p>Watts Parker, Circuit Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>CASE 88. — ACTION BY JOHN RAYMONDS’ ADMINISTRATOR AGAINST THE LOUISVILLE RAILWAY CO.</p> <p>Appeal from Jefferson Circuit Court (Common Pleas Branch, Third Division).</p> <p>Matt O’Doherty, Judge.</p> <p>Judgment for plaintiff, defendant appeals.</p>

<p>1. Covenants — Covenants Against Incumbrances — Breach — Measure of Damages. — The measure of damages for breach of covenant against incumbrances by the existence of an easement on the land is the diminution in the value of the premises thereby, and, where it has been extinguished, the measure of damages is the injury sustained between the date of the deed and the extinguishment, together w'ith the expenses of such extinguishment.</p> <p>2. Evidence — Admissibility—Damages—Opinions.—In an action for breach c-f a covenant against incumbrances by the existence of an basement on the land, witnesses testifying to the damages must state the difference in value of the premises with and without the easement, and should not Be permitted to state that the property is damaged in a certain sum.</p> <p>3 Covenants — Warranty—Breach—Damages.—Where the purchaser has lost the entire property conveyed, the vendor is liable on his warranty, in addition to the cost for the consideration paid him with interest, but, where only part of the property conveyed has been lost, he is liable, in addition to the cost only for such proportionate part of the consideration paid him as the part lost bears to the whole properly.</p> <p>4 Covenants — Warranty—Breach—Damages.—A purchaser, who resisted an action by a third person to establish a tramroad through the land, resulting in a decree establishing the same at a point where it damaged the land much less than it would be damaged by the location demanded by the third person, can recover, on the vendor’s covenant against incumbrances, the legal cost of the action including a. reasonable attorney’s fee, though the vendor told the purchaser not to contest the action.</p> <p>5. Covenants — Knowledge of Defects. — That either or both of the parties knew at the time of the conveyance that the grantor had no title in part or in whole does not affect the right to recover for breach of a covenant and knowledge by the purchaser of the existence of an incumbrance on the land does not prevent him from recovering damages, where he protects himself by proper convenants in the deed.</p> <p>6. Evidence — Parol Evidence — Varying Covenants in Deeds.— Parol evidence is not admissible to vary a covenant in a deed, but 'it is admissible to show fraud or mutual mistake, or explain a patent ambiguity.</p> <p>7. Covenants — Breach.—The rule that a covenant against' incumbrances does not embrace an entry by the state in exercise of the right of eminent domain, and that a purchaser must be held to know of the existence of a public highway on th<t land at the date of the purchase and to have made his bargain with the knowledge of the inconvenience resulting from it. does not apply to a private passway over the land, and that the purchaser knew thereof when he purchased does not prevent him from recovering damages, where he protects himself by covenant against incumbrances.</p>

<p>1. Corporations — Officers—Authority of President. — Where the president of a corporation was, under the by-lav/s, the chief executive officer and head of the company, with general control of its business, and with knowledge of the other directors, was engaged in placing treasury stock, he was authorized to represent the corporation in such matters, and any fraudulent representation he made while trying to place the stock were within the scope of his employment and bound the corporation.</p> <p>2. Corporations — Stockholders’ Action -— Issue. •— In an action against a corporation to rescind subscription to stock for fraudulent representations, where ‘the only defenses made were a general denial and an offer to- issue the shares of stock subscribed for, and the other stockholders were not parties, the corporation could not raise the defense that plaintiff could not have his subscription canceled and recover from the corporation the full amount paid by him, because the other stockholders who also subscribed and paid for stock were misled in the same way.</p> <p>S. Corporations — Capital Stock — Subscriptions Induced by Fraud —Remedy of Subscriber. — Where plaintiff was induced to subscribe to corporate stock on the fraudulent representation of the president, with full authority to act, that $70,000 had been paid for the plant which the corporation had purchased and was to operate, while in fact only $50,000 had been paid for it, and the stock was never issued to the subscriber, lie could have the contract of subscription rescinded and recover the subscription price paid therefor.</p>

<p>1. Bills and Notes. — Drafts—“Negotiable Instrument.” — An instrument in writing, signed by the drawer and containing an unconditional order to pay a certain sum in money at a fixed future date to the order of a specified person, and addressed to a drawee, named therein, was a “negotiable instrument.”</p> <p>2. Bills and Notes — Indorsement—“Notice” of Equity. — To constitute notice of an infirmity in a negotiable bill indorsed before maturity, the indorsee must have actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounts to bad faith, as provided by Ky. St. Sec. 3720b, subsec. 56 (Russell’s St. Sec. 1925).</p> <p>3. Bills and Notes — Drafts'—Transfer—Bona Fide Purchaser.— Where there was nothing on the face of certain drafts transferred to plaintiff before maturity to indicate knowledge of any infirmity in the instruments or the title of the indorser, indicating bad faith of the indorsee in taking them, and the indorsements were regular, the drafts being transferred to the indorsee before maturity in consideration of his pa.v^ent of 90 per cent, of their face, he was a- holder in due course, and was not subject to any defense available as between the drawer and the payee, as provided in Ky. St. Sec. 3720b, subsec. 57 (Russell’s St. Sec. 1926).</p> <p>4. Bills and Notes — Action by Indorsee — Pleading.—Where an indorsee for value before maturity denied any knowledge or notice of the fraud relied on by defendant to defeat the action, it was not material that the indorsee’s denial that the instruments were obtained by fraud was insufficient.</p>

<p>CASE 92. — SUIT FOR INJUNCTION BY THE STATE NATIONAL BANK AGAINST D. P. RICHARDSON, CITY TAX COLLECTOR, OF FRANKFORT.</p> <p>Appeal from Franklin Circuit Court.</p> <p>R. L. Stout, Circuit Judge.</p> <p>From a judgment granting the injunction, defendant appeals.</p>

<p>Account — -Time for Bringing Action — -Conditions—Precedent.— Where a corporation, for the purpose of selling tobacco grown by its members, markets the crops of two years and disburses to its members 99 per cent, of the sum realized, and there are certain features of the business unsettled, and some claims -o-f the corporation and certain suits against it pending in court, and the expense necessary to defend the suits and other items of expense have not been ascertained, a complaint by members for an accounting, is premature.</p>

<p>CASE 94. — ACTION BY THOMAS BROWN BY NEXT FRIEND AGAINST THE CHESAPEAKE & OHIO RAILWAY COMPANY AND OTHERS</p> <p>Appeal from. Pike Circuit Court.</p> <p>A. J. Kirk, Circuit Judge.</p> <p>Judgment 'for defendant, plaintiff appeals.</p>

<p>CASE 95.—ACTION BY J. D. PORTER AND OTHERS AGATNST MATTIE PORTER.</p> <p>Appeal from Butler Circuit Court.</p> <p>John M. Gialloway, Circuit Judge.</p> <p>Judgment for plaintiffs, defendant appeals.</p>

<p>CASE 96 — ACTION BY M. N. JONES AGAINST THE LOUISVILLE TOBACCO WAREHOUSE COMPANY.</p> <p>Appeal from Franklin Circuit Court.</p> <p>R. L. Stout, Circuit Judge.</p> <p>Judgment for defendant, plaintiff appeals.</p>

<p>CASE 97. — ON APPLICATION FOR REHEARING.</p> <p>Motion for rehearing overruled.</p>

<p>1. Carriers — Injury to Passenger — Contributory Negligence— Question ’for Jury. — It is not negligence per se for a passenger to alight from a moving train.</p> <p>2. Camers — Injury to Passenger — Contributory Negligence— —Question for Jury. — In an action for injuries to a passenger while alighting from a moving train at his station, evidence held to require the submission to the jury of the issue whether he exercised reasonable care in alighting, though the station was not announced.</p> <p>3. Carriers — Carriage of Passengers — Announcement of Station. While a carrier must, as required by Ky. St. Sen ?84 (.Russell’s St. Sec. 5333), announce the station, it need not insure that a passenger hear it, provided the announcement is made in such a manner that the persons in the car having ordinary hearing and paying ordinary attention will hear it.</p> <p>4. Carriers — Injury to Passenger — Stopping Train at Station.— A carrier must stop its train at the stations a reasonable time for passengers to alight.</p> <p>5. Carriers — Carriage of Passengers — Lighting Depot Platforms. —A carrier must have its depot platforms lighted so as to be reasonably safe for persons to board and alight from trains, hut, where the trainmen are on the platform with their lanterns to furnish passengers light during the time the train stops, the carrier is not liable because they do not remain on the platform after the train starts.</p> <p>6. Carriers — Injury to Passenger-Setting Down Passengers —Allowing Time to Alight. — Where a carrier failed to announce a station as required by Ky. St. Sec. 784 (Russell’s St. Sec. 5333), or failed to light its depot platform so as to afford a passenger a reasonably safe place to alight, and the passenger by reason of the failure to announce the station was delayed in alighting from the train; so. that, when he undertook to alight, the train started suddenly when he was stepping from it, and he was injured, the carrier was liable; but, where the carrier called the station and stopped the train a reasonable time for passengers to alight, and the passenger failed to alight during that time and until after the train started it was not liable.</p> <p>7. Carriers Injury to Passenger — Care Required of Passenger.— Though a carrier is negligent in failing to announce the station or to have its depot platform lighted, a passenger must exercise such care as a person of ordinary prudence would under similar circumstances usually exercise, and where he fails to do so and is injured, he cannot recover.</p>