Ramey and Grant Thornberry testified that all the logs purchased of Greer were sold and delivered by them to the appellee Ironton Lumber Company, which gave that company an opportunity of ascertaining whether they had underestimated the Greer logs in the measurement made by them. Other evidence in the record, however, contradicted their testimony in this particular, as it shows that the Ironton Lumber Company did not get all the logs appellants received of W. M. Greer. One of the witnesses so testifying, M. B. Collinsworth, Collinsworth, said he bought from appellants a very fine raft of poplar logs for the Dawkins Lumber Company which had been obtained by them from Greer; this, as he further said, being shown by the red painted marks on them peculiar to the Greer logs, as well as by the statements of the appellants Ramey and Grant Thornberry that the logs were a part of the Greer timber.

We do not understand it to have been seriously denied by appellants or any of their witnesses that all the Greer logs that were in Shelby creek went into the river. Indeed, both J. B. Ramey and Grant Thornberry seemed to admit that they did. Therefore the only conflict in the evidence was as to the quantity of material contained in them and the respective measurements made of them by the parties to the contract. Without further discussing the evidence or indicating, as we might do, particular statements of certain witnesses, we think it sufficient to say that, in our opinion, the weight of it conduces to establish the claim of the appellees that there were 337 logs delivered appellants by W. M. Greer, sufficient in quantity to amount in value to approximately $4,000, which, if true, entitled the Greers to the verdict and judgment of $1,200 recovered by them against appellants. At any rate, the entire evidence went to and was considered by the jury, whose province it was to weigh and determine its weight and effect.

It follows from what has been said that the record furnishes no support either for appellants' complaint of the refusal by the trial court of the peremptory instruction asked by them or their further contention that the verdict is flagrantly against the evidence.

[2] Equally groundless is the appellants' complaint of the instructions. Indeed, they are estopped to complain of instructions A and C as neither has any bearing on the verdict upon which the judgment appealed from was entered. Instruction A is with

reference to a branch of the case affecting only the Ironton Lumber Company and the Greers, with which appellants were not concerned; and instruction C authorized the verdict for $119 which the jury returned for appellants against the Ironton Lumber Company, and from the judgment entered on which the latter did not and could not appeal.

[3] Appellants do, however, object to instruction B, which is as follows:

"The jury will find for the defendants W. M. Greer and Franklin Greer against the defendants Grant Thornberry, L. R. Thornberry, and by said Greers to said Thornberrys and Ramey J. B. Ramey the value of all timber delivered at the mouth of Shelby creek under the contract in evidence between the said parties, after deducting the $2,000 paid at the time the contract was entered into, and after deducting the $168 paid Sol Tackitt, if they shall find anything is due; but at all events they will find for defendants Greer and Greer the sum of $99.90 admitted by Thornberrys and Ramey to be due said Greer and Greer."

This instruction in simple language submitted to the decision of the jury the only issue to be determined in the case. Instead of being open to criticism, it is to be commended for its clearness and brevity. deed, this is so manifest that further discussion of it is deemed unnecessary.

In

[4] Appellants contend that an additional instruction should have been given in the terms indicated by their brief. This contention will not be considered, in view of the fact that such an instruction, nor any other, was offered or asked by appellants. Judgment affirmed.

GORDON v. CHESAPEAKE & O. RY. CO. (Court of Appeals of Kentucky. Oct. 21, 1915.) 1. MASTER AND SERVANT 107-DEGREE OF CARE-INJURY TO SERVANT-LIABILITY.

Where plaintiff, an employé of defendant railway company, was injured by the explosion of a signal torpedo placed on the track, when it liable for failing to exercise the greatest dewas run over by a hand car, defendant is not gree of care in handling explosives, since the rule requiring such care does not apply to signal torpedoes, placed on the track for signaling

purposes.

PEDOES.

Injury by the explosion of a signal torpedo on the track is a risk assumed by section hands employed by a railway company, in the absence of gross negligence of the section foreman in failing to discover it before running

over it with the hand car.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 554-556; Dec. Dig. 210.]

injuries did not result because of the master's failure so to do.

[2] Nor is there involved any breach of the

S. S. Willis and R. D. Davis, both of Ashland, for appellant. Worthington, Cochran & Browning, of Maysville, for appellee.

HANNAH, J. W. H. Gordon sued the Chesapeake & Ohio Railway Company in the Greenup circuit court to recover damages for injuries said to have been sustained as the result of the explosion of a railroad signal torpedo. Upon the trial, the jury returned a verdict for the defendant, and the plaintiff appeals.

Gordon was a section man in the employment of appellee railroad company. His foreman was William Ratcliff. Ratcliff and his section crew, and another section foreman, Burt Burns, and his crew, were working together. They were transporting rails, one end of the rails being on Burns' car, which was in front, and the other end being on Ratcliff's car. The hand car in front ran over a railroad signal torpedo, causing it to explode; and it was claimed by appellant that a fragment of the torpedo struck and injured his leg. The section foreman and all of the crew who were asked the question testified that Gordon made no complaint of having been injured at the time; but some days thereafter he ceased work. He had been affected for some time prior to the date of this alleged injury with a chronic disease of the leg, the after effects of an attack of typhoid fever.

There were four grounds of negligence charged in the petition: (1) Failure to exercise the utmost care in the handling of dangerous explosives; (2) failure to warn and instruct plaintiff of the presence of the torpedo on the track, and the danger therefrom; (3) failure to exercise ordinary care to provide and maintain a reasonably safe place in which to work; and (4) negligent running of the hand car over the torpedo and exploding it.

[1] Appellant offered an instruction covering all the grounds of negligence so charged, but the court declined to give it, and in submitting the case to the jury told them that if they believed, from the evidence, that the section foreman in charge of the front hand

reasonably safe place in which to work. The place where the servant was at work was unsafe, if at all, only because of the presence of the torpedo on the track, and under the rule of Mize v. L. & N. R. R., 127 Ky. 496, 105 S. W. 908, 32 Ky. Law Rep. 415, 16 L. R. A. (N. S.) 1084, there was no negligence in placing the torpedo there. But there may have been negligence in running over and exploding the torpedo.

[3] The act of running a train over its track by a railroad company is not negligence; but it may be negligence for a section foreman, proceeding over the track with his crew on a hand car, not to observe the approach of the train. Long's Adm'r v. I. C. R. R., 68 S. W. 1095, 24 'Ky. Law Rep. 567, 58 L. R. A. 237; I. C. R. R. v. McIntosh, 18 Ky. 145, 80 S. W. 496, 81 S. W. 270, 26 Ky. Law Rep. 14. So, although it was not negligence on the part of the railroad company to place the torpedo on its track, yet, inasmuch as such torpedoes explode with considerable violence, it might be negligence for a section foreman, proceeding over the track with his crew on a hand car, to fail to observe the presence of the torpedo thereon; and if that negligence be gross, a sectionman thereby injured may recover from the master. The instruction complained of was correct.

[4] 2. Appellant also complains of the instruction on assumed risk, whereby the jury were informed that the railroad company was not negligent in placing the torpedo on the track, that the danger therefrom was one of the risks ordinarily incident to plaintiff's employment, that he assumed all the risks ordinarily incident thereto, and that, unless the section foreman was guilty of gross negligence in failing to observe the torpedo, the plaintiff could not recover. This instruction was likewise correct. It was held in the Mize Case, supra, that the danger from torpedoes was a risk ordinarily incident to the servant's employment. The plaintiff assumed all the risks ordinarily incident to his employment, including a want of ordinary care upon the part of the section foreman, but not the risk incidental to gross negligence on his part. I. C. R. R. v. McIntosh, supra. He did not assume, of course, risks arising from

Where a will devises an estate for life, with remainder in fee to testator's grandson conditioned upon his dying without lawful heirs of his own body, and that in such event the estate shall revert and descend to testator's stepdaughters, the words "dying without lawful heirs" are to be restricted to the death of the remainderman before the termination of the particular estate; and hence, where the life tenant died during the lifetime of the remainderman, he was invested with a fee-simple title.

[Ed. Note. For other cases, see Wills, Cent. Dig. §§ 1171-1176, 1310-1318; Dec. Dig.

545.

For other definitions, see Words and Phrases, First and Second Series, Die Without Heirs.j Appeal from Circuit Court, Jessamine County.

Action between A. H. Jewell and others and Joel White. From a judgment for Joel White, the adverse parties appeal. Affirmed. Bailey D. Berry, of Lexington, for appellants. John H. Welch, of Nicholasville, for appellee.

NUNN, J. The question for decision is: What estate did Joel White, Jr., take under the will of his grandfather, Joel White, Sr. The controversy involves the construction of the first clause in the will, which is as fol

lows:

"Having heretofore given and conveyed to my daughter Kate C. Robards and her husband Lewis S. Robards by deed of date May 8th, 1879, 125 acres of my land, I now devise, will and bequeath in fee simple to my grandson Joel White, Jr., son of my deceased son John White, my tract of land lying in said county and state and containing about 110 or 112 acres be the same more or less, with its appurtenances and known as the Messick Farm, subject however to the life estate of my wife Minerva J. White, who is to have the use, control and proceeds of the same during her natural life, and if my said grandson shall die without lawful heirs of his own body, then said lands and the title thereto are to revert and descend to my daughter, said Kate C. Robards, and my stepdaughters Sarah Frakes and Mary Frank Jewell, equally if then living or to their descendants if dead."

Testator's wife is dead, and the stepdaughters of Kate C. Robards are claiming a contingent interest in the land devised upon the theory that Joel White, Jr., has only a de

title has ripened into a fee, since he survived the life tenant, Minerva J. White. This was the view of the lower court, and of its correctness we think there can be no doubt.

In the case of Harvey v. Bell, 118 Ky. 521, 81 S. W. 674, 26 Ky. Law Rep. 381, the court set forth four rules for determining questions of this character. This case comes within the first rule, and, in our opinion, is concluded by it. The rule is as follows:

"Where an estate is devised to one for life, with remainder to another, and, if the remainderman die without children or issue, then to a third person, the rule is that the words 'dying without * * * issue' are restricted to the

death of the remainderman before the termination of the particular estate."

The will in question devised the estate to Minerva J. White for life, with remainder in fee to his grandson, Joel White, Jr., conditioned, however, upon his dying "without lawful heirs of his own body," then in that event the estate, or a portion thereof, shall "revert and descend" to the appellants. The words "die without lawful heirs" are, in the language of the rule, supra, "restricted to the death of the remainderman before the termination of the particular estate." The particular estate having terminated during his lifetime, he was invested then with the fee simple title.

A more recent case of Cassity v. Riley, 158 Ky. 507, 165 S. W. 679, had under consideration a will with similar provisions, and, in applying the rule in the Harvey Case, the court said that the purpose of the clause with reference to death of Joel White, Jr., without issue was not to qualify the fee-simple estate, but to provide who should take the estate in case the devisee died before time of distribution; that is, before the life tenant died. Kentucky Statutes, § 2342; Bradshaw v. Butler, 110 S. W. 422, 33 Ky. Law Rep. 531; Moore's Adm'r v. Sleet, 113 Ky. 600, 68 S. W. 642, 24 Ky. Law Rep. 426.

The judgment of the lower court is affirmed.

EDGE v. ALLEN.

(Court of Appeals of Kentucky. Oct. 20, 1915.) ELECTIONS 280-NOTICE OF CONTEST-TIME -"JURISDICTIONAL DEFECT"-STATUTES.

c. 7) § 28 (Ky. St. 1915, § 1550, subsec. 28), Under Primary Election Law (Laws 1912, providing that any candidate contesting the nomination of another candidate must give the nominee a written notice of such contest within five days from the award of the certificate of nomination, and that the notice shall be served in the same manner as a summons from the circuit court, a notice of contest placed in the hands of the sheriff four days after the award of the certificate of nomination, without instructions as to how it should be served, and during the contestee's absence from the jurisdiction on account of sickness, a copy of which was posted on the front door of the contestee's residence, according to Civ. Code Prac. § 625,