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Ky.)

CUMBERLAND R. CO. y. WALTON

245

his negligence so contributing to his injuries CUMBERLAND R. CO. V. WALTON.*

that but for it it would not have occurred. (Court of Appeals of Kentucky. Oct. 22, 1915.) Servant, Cent. Dig. 88 987–996; Dec. Dig. Omo

[Ed. Note.--For other cases, see Master and 1. MASTER AND SERVANT 137–PERSONS ON 281.] TRACK-DUTY OF RAILROAD COMPANY.

Defendant operating a short railroad car- Appeal from Circuit Court, Knox County. rying coal from mines, and running a daily Action by William Walton against the passenger train and whose right of way was Cumberland Railroad Company. Judgment fenced, and along whose road there was a footpath on one side and a space on the other af- for plaintiff, and defendant appeals. Refording room enough to walk from its blacksmith versed and remanded for new trial. shop to its station in a small village, none of the buildings of which were located with respect P. D. Black, and Black, Black & Owens, to the track so as to require its use by its in- all of Barbourville, for appellant. B. B. habitants, was not within the rule that, where its employés required use of the track, or its Golden and Golden & Lay, all of Barbouruse by the public generally with its knowledge ville, for appellee. so continued that the presence of employés or others on the track must be anticipated, it was required to entertain a lookout and give

SETTLE, J. This is an appeal from a warning of its trains.

judgment entered upon a verdict awarding [Ed. Note.--For other cases, see Master and the appellee, William Walton, $12,000 damServant, Cent. Dig. S$ 269, 270, 273, 274, 277, ages for injuries sustained by being run over 278; Dec. Dig. Om 137.)

by an engine and caboose operated on the 2. MASTER AND SERVANT Om 89—ACTION FOR track of the appellant, Cumberland Railroad INJURY-SCOPE OF EMPLOYMENT.

Plaintiff, employed by defendant railroad Company, in its switchyard at Artemus, this as a car repairer, starting on his foreman's or- state. In view of the nature and extent of der to repair a house owned or occupied by the the injuries sustained by appellee, the

, it was not shown that the road 'sustained any amount recovered is not unreasonable, if the contractual relation compelling it to send its recovery was authorized at all. employé to repair it, was not within the scope The appellant's railroad lies wholly in of his employment, but, while walking on the Knox county, extends from Artemus, a viltrack, was a trespasser.

[Ed. Note. For other cases, see Master and lage four miles from Barbourville, to WarServant, Cent. Dig. $$ 153-156; Dec. Dig. Om ren, where coal mines are located, and is S9.]

only about eight miles in length. The prin3. MASTER AND SERVANT Cw137-INJURY ON cipal business of the road is the transportTRACK-DUTY.

ing of coal from the mines, but in addition while engaged in defendant's business found it to its freight train, used for that purpose, reasonably necessary to go upon its track at it runs a passenger train, consisting of an a time when, and a place where, the presence of engine and one or two old coaches, between employés should have been reasonably anticipat- Artemus and Warren daily. It owns no ed, it was the railroad's duty to look out for him, and give him a timely warning of the rolling stock, but leases its freight engine, approach of its train by blowing the whistle or coal cars, passenger engine and coaches from ringing the bell.

other railroad companies. Besides the engiServant, Cent. Dig. $$ 269, 270, 273, 274, 277, neers, firemen and brakemen in charge of its 278; Dec. Dig. Om 137.)

passenger and freight trains, it employs a

small number of men, perhaps less than a 4. MASTER AND SERVANT Cw278—TRESPASSER dozen, in maintaining its stations and roadON TRACK-NEGLIGENCE-EVIDENCE.

In action by car repairer employed by de- bed and doing other work necessary to the fendant railroad for injury upon its tracks while operation of its business. a trespasser, evidence held to show that de

The appellee, Walton, was employed by apfendant could not have prevented the injury by the exercise of ordinary care, after discovering pellant as a car repairer, and had served it his peril.

in that capacity about six months prior to [Ed. Note.--For other cases, see Master and December 12, 1912, the day on which his inServant, Cent. Dig. $$ 954, 956-958, 960–969, juries were received. Shortly after 6 o'clock 971, 972, 977; Dec. Dig. Om 278.]

on the morning of that day appellee went to 5. MASTER AND SERVANT Cw137-INJURY ON the appellant's blacksmith shop in Artemus, TRACK-TRESPASSER-NEGLIGENCE.

As to its car repairer while a trespasser where he made a fire in the forge and ason its track, defendant railroad owed no other sisted in welding some irons. After this duty than to use ordinary care to avoid injuring work was completed he was directed by him after the discovery of his peril, and, where Joshua Parrott, an employé of appellant and he stepped upon the track so near an approaching engine that his presence was not discovered his foreman in the latter's service, to go to in time to prevent it from striking him, it was Warren for the purpose of making some reguilty of no negligence.

pairs on the dwelling house of B. C. Milner, [Ed. Note.-For other cases, see Master and a son of the superintendent of the appellant Servant, Cent. Dig. $$_269, 270, 273, 274, 277, company. It appears that he intended going 278; Dec. Dig. Om 137.]

to Warren on appellant's freight train, but 6. MASTER AND SERVANT C281-INJURY ON that while he was away from the shop to get TRACK--CONTRIBUTORY NEGLIGENCE.

vidence, in a car repairer's action against some tools to take with him, the freight ena railroad for injury on its track, held to show gine and caboose, which had been standing

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

on the main track near the station, went to of both appellant and appellee that there the river, about a half mile distant, to take was no necessity for such use of the track on sand and water, and when appellee return- by any person, as the path from which aped to the shop he was erroneously informed pellee stepped on the track before receiving by some one there that the freight train had his injuries extended from the blacksmith gone to Warren, which made it necessary for shop and beyond it down to the depot; that him to take the passenger train soon to leave it was of sufficient width to enable persons for Warren, to get aboard of which it was going to or from the depot up and down the necessary for him to go to the depot build- railroad track to walk in comfort and withing a hundred yards or more from the black-out danger of coming in collision with passsmith shop. It turned out, however, that the ing trains; that in addition to the safe freight train had not left for Warren as ap- walking afforded by the path mentioned, pellee was informed, and that its engine and there was and is, on the other side of the caboose, which had gone to the river, were main track and between it and the only returning on the main track to the depot switch track

track in appellant's depot yard, when appellee left the blacksmith shop to ground or space, extending from a point reach the depot for the purpose of taking above the blacksmith shop down to the depot, the passenger train. So when the latter left free of obstacles, and of sufficient width to the blacksmith shop he entered a narrow prevent contact with the train on either footpath leading up to the railroad track, track, which persons, not desiring to use the where it turned and ran outside of and path, could walk on from the blacksmith along the track to the depot. After walk- shop to the depot. ing along this path and outside of the ties The evidence was all to the effect that apfor a distance of 50 or 70 feet from the pellant's right of way on each side of the blacksmith shop, he left it and stepped ei tracks at the place of the accident, as well ther upon the railroad track or upon the as above and below it, was fenced; that ends of the ties outside of the rail nearest there was no railroad crossing anywhere behim, immediately following which act hetween the blacksmith shop and depot, and no was struck in the side or back and knocked residences, stores, or other buildings. In down by the returning caboose and engine of view of this situation no reason is apparent the freight train, resulting in the injuries for the use of either of the railroad tracks complained of.

as a walkway by appellee or other perThe ground of recovery set out in the pe sons in passing between the blacksmith shop tition is that the appellee's injuries were and depot or going up or down the railroad. caused by the negligence of appellant's serv- It may be that in switching, coupling, or ants in charge of the freight engine and ca-otherwise manipulating trains, the presence boose, in failing to reduce its speed, main- of some of the trainmen on the tracks at or tain a proper lookout, and give the customary near the place of the accident at times is signals of its approach to the place of the necessary, but we can imagine no other accident. The answer of appellant denied cause for their use by other employés of the negligence charged, and pleaded con- appellant or pedestrians. tributory negligence on the part of appellee. According to the evidence Artemus is a

[1] It is appellee's contention that appel- small village with a population of 250 or lant's tracks at the place of the accident 300, and none of its residences, shops, or were so used by its employés and others, and buildings are located with respect to appelsuch use acquiesced in by appellant, as to lant's railroad tracks so as to require or auimpose upon the latter and its servants the thorize their use by its inhabitants. On the duty of anticipating their presence thereon contrary, they appear to be connected by the and of exercising ordinary care to maintain usual streets or highways, which render such regulation of the speed of their moving every part of the village accessible, without trains and such lookout and siguals there the use of appellant's railroad tracks. For from as would prevent injury to the persons the foregoing reasons, we must sustain the using the track. It is the contention of ap-contention of appellant that the facts of this pellant that it owed no lookout duty to ap- case are not sufficient to bring it within the pellee, and that his presence on the track at rule that, where its employés required use the time of the accident was not to be an of the track, or its use by the public generalticipated. That although he was its employé ly with the knowledge and acquiescence of he was not at the time he was injured dis- the railroad company has so continued as charging any duty that he owed it; in brief, that the presence of such employés, or oththat he was a trespasser. Appellee and some er persons, on them at the point where so of his witnesses testified that the railroad used must be anticipated by it in running its track at the place of the accident and be trains, it will impose upon it the consequent tween that and the depot was frequently duty of maintaining, in approaching such used by appellant's servants and others. On place of use, a lookout and giving warning the other hand numerous witnesses intro- of their coming. duced by appellant testified that such use of In C. & N. 0. Ry. Co. v. Nipp's Adm'x, 125 the track was only occasional; and it is ap- Ky. 49, 100 S. W. 246, 30 Ky. Law Rep. 1131,

Ky.)

CUMBERLAND R. CO. v. WALTON

247

of persons.

385, 91 S. W. 722, 28 Ky. Law Rep. 1293, , him the right to go upon the track, and reMiller's Adm'r v. I. C. R. Co., 118 S. W. quired its servants in charge of the engine 348, and a number of other cases, in which and caboose, not only to anticipate his presit was sought to have the above rule applied,ence on the track, but also to use such reait was held that it should be confined to sonable precautions in operating the engine cities and thickly populated communities, and caboose as would have prevented his inand not extended to rural communities or juries. The duty required of him by the foresparsely settled places, although the track at man was to repair a house at Warren, owned those places may be used by a large number or occupied by a son of the superintendent

On the other hand, there are of appellant's road. It is not apparent from numerous later cases, such as C. & U. Ry. the evidence that appellant was under any Co. v. Warnock's Adm'r, 150 Ky. 75, 150 S. W. duty to make the repairs referred to. It was 29; Corder's Adm'r v. C., N. O. & T. P. Ry. not shown to be the owner of the house, or Co., 155 Ky. 536, 159 S. W. 1144; and C. & that it sustained to the occupant any conO. R. Co. v. Dawson's Adm’r, 159 Ky. 296, tractual relation that compelled it to send 167 S. W. 125, in which it was held that the one of its employés to repair it. question whether the party injured is a mere ice required of appellee under his employtrespasser or licensee must depend, not on ment by appellant was that of repairing cars, the fact that the accident happened in a city and not the doing of work for others, with or incorporated town, but on the number of which appellant was in no wise concerned. persons using the track at the place of the If, therefore, the work he was directed to accident, and, further, that the question do for the son of the superintendent was not should be left to the decision of the jury un- such as appertained to his employment nor der a proper instruction from the court. within the apparent scope thereof, it cannot Thus, in C. & O. Ry. Co. v. Dawson's Adm'r, be said that its performance was a duty resupra, it is in the opinion said:

quired of him by appellant. “In this case plaintiff shows that there were

In order to recover on the contention he about 350 persons living in the town of Garrison. actually makes, appellee must have shown There was considerable travel between that that he was engaged in appellant's business, point and the ferry landing. Persons going to and from the ferry landing to the depot used de- and that it was reasonably necessary for him fendant's main track between Garrison lane and to go upon the railroad track at a time and the depot. The track was used daily by about place, when and where the presence of em100 persons. The decedent was between 15 and 25 feet from the station platform, and from ployés on the track should have been rea75 to 90 feet from the depot building. Under sonably anticipated. Appellant would then these circumstances, it was proper to submit to have owed him the duty of looking out for the jury the question whether or not decedent him, and giving him a timely warning of the was a trespasser to whom no duty was owin coming of the engine and caboose by blowing until after her peril was discovered, or a licensee to whom the defendant owed the duty the whistle or ringing the bell. C., N. 0. & of keeping a lookout and giving timely warning T. P. Ry. Co. v. Trowell, 143 Ky. 770, 137 S. of the approach of the train.

W. 543. The facts, however, do not sustain In the instant case the evidence fails to his contention, but give him a different attishow such use of appellant's track as im- tude, and compel the conclusion that his staposed upon it, while operating its train, the tus at the time of receiving his injuries was duty of anticipating the presence of its em- that of a mere trespasser. If a trespasser, ployés or other persons on it at the place the only other question to be determined is, of the accident, or of maintaining a lookout Could appellant's servants in charge of the for them and giving warning of the move- engine and caboose, after discovering his ments of the train. If, however, the evidence peril, have prevented his injuries by the exhad been stronger, and sufficient to prove ercise of ordinary care? such use of the track as was shown in C. & [4] As to this question there is little con0. R. Co. v. Dawson's Adm'r, supra, the flict in the evidence. Appellee's own testimojury should have been allowed to determine ny throws scarcely any light on the matter, for whether the facts authorized the application he admitted he did not know whether he was of the rule in question. This the trial court between the rails of the track or walking failed to do. In none of the instructions was on the ends of the ties when struck by the that question submitted to the jury. On the caboose and engine. He professed to know contrary, instruction No. 1, erroneously as when he stepped from the path onto the sumed the applicability of the rule and the track, but not where he did so, nor how far existence of the facts necessary to authorize he walked on the track or end of the ties beits application. As the instructions were ob- fore being knocked down by the caboose. He jected to by appellant, this error, even in the admitted he was rendered unconscious by the absence of the graver one committed by the collision with the caboose, and that he did court, to be later indicated, would, of itself, not regain consciousness until about three have compelled the reversal of the judgment. weeks later. While numerous witnesses tes

[2, 3] It is, however, insisted for appellee tified in the case, only two of them claim to that he was, when injured, in the perform- have seen the accident. These were James ance of a duty required of him by appellant's Parrott, fireman on the engine pushing the

Rice, flagman on the passenger train then, That is to say, the evidence conclusively standing on the switch track. Parrott said shows an absolute failure upon his part to he did not see appellee, although keeping a take any precaution for his own safety. lookout, until "something like a thought be- Thus far we have considered the case without fore the caboose struck him," and that the reference to the question whether the engine latter was then six or eight feet from the pushing the caboose in approaching the place caboose, and walking on the ends of the ties of the accident gave the usual signals, or outside the rail; that he (Parrott) imme- whether those in charge thereof maintained diately notified the engineer to stop the en- a lookout. In point of fact, the evidence congine, which was done as quickly as possible, clusively shows that the engine bell was conbut not until after appellee was struck and stantly ringing from the time the engine knocked down. Rice, who was standing be- and caboose came in sight of the blacksmith tween appellee and the depot, said he saw shop until the accident occurred, and fairly him come out of the blacksmith shop and apparent from the evidence that the engineer walk toward the depot down the path a short and fireman were also maintaining a lookout distance parallel with the railroad track, ahead of them on the track. Although in and that he then stepped on the track in leaving the blacksmith shop appellee was facfront of the approaching caboose, being push-ing in the direction from which the engine ed by the engine, after doing which he walk- and caboose were approaching, according to ed but two or three steps before being over his own testimony he never looked that way taken and knocked down by the caboose ; at all to see whether there was a train on that, upon seeing appellee's danger, he whis- the track. After getting upon the path paraltled to him, just before the caboose reached leling the track, he turned in the direction him, or as it did so, but failed to get his at- of the depot without taking a look in the tention. The facts furnished by the testi- direction from which the engine and caboose mony of these two witnesses, who alone were

came. After continuing in the path for some in a position to see the occurrence and know the circumstances, and whose statements distance, and when the caboose had almost are uncontradicted, demonstrate that the in reached him, he then stepped upon the track juries sustained by appellee could not have or the end of the ties without heeding the been prevented after his presence on the ringing of the engine bell or looking in that track became known to those in charge of direction to see if the track was clear. It is

true he testified that the passenger train was the engine and caboose.

[5] In view of the foregoing facts it is not then standing on the switch track but a short material whether the enginee and caboose distance from him, and that the escape of gave the statutory, or any, signals of its ap- steam from its engine prevented him from proach; nor does the speed at which they hearing the coming of the caboose and enwere running enter into the case. It appears, gine of the freight train, but this, in view of however, that its speed was six or eight miles the fact that in stepping upon the track he per hour and that the bell was constantly became a trespasser to whom no lookout duty sounded. Appellant's servants in charge was owing by those in charge of the engine thereof owed appellee no other duty than to and caboose, instead of excusing him from ususe ordinary care to avoid injuring him after ing ordinary care to protect himself from danthe discovery of his peril; and, as he step- ger, should have made him more mindful of ped upon the track at a point so near the the need of its exercise. As said in Bauer v. approaching engine and caboose, his presence I. C. R. Co., 156 Ky. 187, 160 S. W. 933: thereon was not discovered by them in time "The rule in this state is that contributory to prevent the train from striking him, they negligence bars a recovery unless, notwithstandwere not guilty of negligence, and on this ing the negligence of the person injured, and

after his peril is perceived, * * the defendground alone the jury should have been per-ant's servants could, by ordinary care, avoid inemptorily instructed to find for appellant, as jury to him. The traveler who by his own neglirequested by its counsel. Gregory v. L. & n. gence puts himself in peril on a railroad track

cannot recover, unless the danger * * * may R. R. Co., 79 S. W. 238, 25 Ky. Law Rep. be avoided by proper care on the part of the 1986; C. & 0. Ry. Co. v. See's Adm'r, 79 s. railroad after it has notice, actual or construcW. 252, 25 Ky. Law Rep. 1995; Brown v. L. tive, of the danger in which his negligence has & N. R. Co., 97 Ky. 228, 30 S. W. 639, 17 Ky. I ning too fast and the deceased was by negli

placed him. If the train was by negligence runLaw Rep. 145; C. & O. Ry. Co. v. Perkins, gence on the track, the injury would be due to 47 S. W. 259, 20 Ky. Law Rep. 608; L. & N. the concurrent negligence of both the parties, R. Co. v. Redmon's Adm’r, 122 Ky. 385, 91 s. and in such a case he cannot recover for the

negligence of the railroad company, because but W. 722, 28 Ky. Law Rep. 1293; Helton's for his own negligence he would not have been Adm’r v. C. & O. R. Co., 157 Ky. 380, 163 s. hurt; and when both parties have been negliW. 224.

gent the law will not measure comparisons be[6] It is also patent that the peremptory on the ground that its negligence was greater

tween them, and make the defendant responsible instruction was authorized upon the further than his. *

* * * This would be to lay down ground, that, according to the evidence, ap- the rule of comparative negligence, and to hold pellee was himself guilty of negligence which that, although the intestate was negligent, there so contributed to his injuries that but for defendant, and not his negligence, was the prox

could be a recovery if the negligence of the

Ky.)

DEITCHMAN V. BOWLES

249

declared in some jurisdictions, but it has never , 6. WITNESSES E 280_IMPEACHMENT_BIASbeen followed in this state."

EVIDENCE. The facts bring this case clearly within the

In an action for slander, where the plainrule announced in L. & N. R. Co. v. Trower's of the plaintiff] in that campaign?” on objec

tiff's witness was asked, “You were a follower Adm'r, 131 Ky. 589, 115 S. W. 719, 20 L. R. tion the question was excluded. Held that, while A. (N. S.) 380; Helm v. L. & N. R. Co., 17 it was competent to show the state of feeling Ky. Law Rep. 1004, 33 S. W. 396; I. C. R. between a witness and the plaintiff, the question

as put was improper. R. Co. v. Willis Adm'r, 123 Ky. 636, 97 S.

[Ed. Note. For other cases, see Witnesses, W. 21, 29 Ky. Law Rep. 1187; Craddock v. Cent. Dig. SS 988, 990-993; Dec. Dig. 280.) L. & N. R. Co., 13 Ky. Law Rep. 18, 16 S. 7. LIBEL AND SLANDER Om 100 – JUSTIFICAW. 125; Helton's Adm'r v. C. & O. R. Co.,

TION. 157 Ky. 380, 163 S. W. 224.

In an action for slander, in which the deFor the reasons indicated the judgment is fendant does not seek to show justification for

the words used, plaintiff may show as part of reversed and cause remanded for a new trial his main case in aggravation of damages that he consistent with the opinion.

is of good character and that his reputation for honesty in the community is good.

[Ed. Note.--For other cases, see Libel and

Slander, Cent. Dig. $§ 246–256, 258–272, 291, DEITCHMAN v. BOWLES.

322, 323; Dec. Dig. Om 100.] (Court of Appeals of Kentucky. Oct. 19, 1915.)

Appeal from Circuit Court, Jefferson Coun1. LIBEL AND SLANDER Ow7—WORDS ACTION- ty, Common Pleas Branch, Fourth Division. ABLE-"ROB'-CONSTRUCTION. The word “rob” may be used to import com

Action by J. A. Bowles against William mission of a felony, or it may be used colloquial- Deitchman. Judgment for plaintiff, and dely, and in the latter sense it is not actionable fendant appeals. Reversed and remanded. per se. [Ed. Note. For other cases, see Libel and

Clem W. Huggins, Robert J. Hagan, and Slander, Cent. Dig. $$ 17-78; Dec. Dig. Om7. L. 'D. Greene, all of Louisville, for appellant.

For other definitions, see Words and Phrases, Robert L. Page, of Louisville, for appellee.
First and Second Series, Rob.]
2. LIBEL AND SLANDER On 123 TRIAL
WORDS IMPUTING CRIME - QUESTION FOR

HANNAH, J. J. A. Bowles sued William JURY.

Deitchman in the Jefferson circuit court for Where the defendant in an action for slan- slander. He recovered a judgment in the der said that plaintiff robbed his sister-in-law, sum of $500; and the defendant appeals. the word “rob” is susceptible of two meanings, one of which is actionable and one is not, and

This case is the aftermath of a hotly conin the absence of other language determining the tested election, in the course of which appelmeaning the question is for the jury as to what lant in a campaign speech made remarks to sense the word carried. [Ed. Note.-For other cases, see Libel and which plaintiff complained of was as follows:

which appellee took exception. The language Slander, Cent. Dig. 88 356-364; Dec. Dig. Om 123.]

“This man is a great booster of Highland

Park. He robbed his sister-in-law of three hun3. LIBEL AND SLANDER 123–INSTRUCTIONS dred dollars, and caused her to have to send -DEFINITION OF TERMS.

Where defendant said that plaintiff robbed her children to an orphans' home.” his sister-in-law, and in an action of slander [1] The word "rob” does not necessarily therefor the court instructed that, if defendant carry with it the imputation of crime. Given thereby meant that plaintiff had committed the its technical meaning as used in law, it, of crime of robbery, the verdict should be for plaintiff, the refusal to define the crime of robbery course, imports the commission of a felony; was error, since the defendant was entitled to but colloquially it is quite often used when have the jury understand the crime.

no imputation of crime is intended, and, [Ed. Note.-For other cases, see Libel and Slander, Cent. Dig. SS 356–364'; Dec. Dig. Come where used in its colloquial sense, it is not 123.]

actionable per se. 4. APPEAL AND ERROR Om500_RECORD-CON

[2] If a consideration of all the language TENTS–RULING BELOW.

used at the time the word "rob" was used Where the appellant charges error in limit- demonstrates that it was used only in its ing the number of witnesses upon either side, colloquial sense, it will be held nonactionbut his bill of exceptions fails to show such an order, the appellate court will not consider the able per se as a matter of law. Macauley error assigned.

v. Elrod, 27 S. W. 867, 16 Ky. Law Rep. 291. [Ed. Note. For other cases, see Appeal and But, in the absence of accompanying lanError, Cent. Dig. $8 2295–2298; Dec. Dig. Ono guage determining the quality of expressions 500.]

having two interpretations, one actionable, 5. LIBEL AND SLANDER Cum 63—MITIGATION OF and the other nonactionable, it is for the DAMAGES.

In an action for slander, evidence that the jury to determine in which sense the lanwords were used in the course of a political cam- guage was spoken. Beams v. Beams, 138 paign and in retaliation for words used by the Ky. '818, 129 S. W. 298; Welsh v. Eakle, 7 plaintiff against the defendant was admissible in J. J. Marsh. 424; Dedway v. Powell, 4 Bush, mitigation of damages.

[Ed. Note. For other cases, see Libel and 77, 96 Am. Dec. 283; Winstead v. Trice, 5 Slander, Cent. Dig. $$ 164, 318; Dec. Dig. Om Ky. Law Rep. 863; 12 Ky. Opinions, 590. 63.]

[3] The court instructed the jury that, if

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