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the date of the expiration of the first year carried out his agreement to compensate him of the lease, and after the sale by decedent for the surrender of two years of his lease of the farm, the decedent told him that he on the farm. had sold or would sell the farm, and, when [4] If we were to give to appellant's eviasked by the witness what he was going to dence all the force and effect claimed for it do with Riley (appellee), he said he had paid by his counsel, the testimony of appellee and Riley, and paid him well, to give possession the corroboration of it furnished by the witso he could sell it, and, further, that he had nesses Salmon, Smith, and Cox must be held raised Riley and wanted to help him some to outweigh it and authorize the judgment of way, so he paid him well to get possession the chancellor. It is, however, insisted for that he might sell the farm, as he was get- appellant that, as appellee was incompetent ting old and wanted to get things shaped up. as a witness, his testimony must be wholly

A. C. Smith testified that in a conversa- disregarded on the present appeal. This contion he had with the decedent in the latter tention cannot be sustained, because it was part of 1910, just before the latter sold his admitted by appellant's waiver of any objecfarm, the decedent said he was going to sell tion thereto. It appears that he filed excepthe farm, but that he would have to pay tions to all of the depositions taken and filed Riley something to move off, as he had by appellee, but the record fails to show agreed to fix the farm up for him and had that the exceptions were passed on by the rented it to him for three or four years. circuit court, or that it was asked to do so.

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Section 589, Civil Code, provides: This witness also testified, as did Salmon, that the decedent was then in good health ceptions to depositions, are waived unless ex

"Errors of the court, in its decisions upon exfor a man of his age and capable of trans- cepted to." acting his own business, and, further, that

In Lewis v. Wright, 3 Bush, 311, we held appellee waited upon and took care of his that exceptions to depositions as incompetent grandfather during his last illness, which oc-evidence, which do not appear to have been curred more than a year after the conversa- acted on by the court below, will be regarded tion referred to.

by this court as waived. In the opinion it J. R. Cox testified that his farm joined is said: that of the decedent in 1910. To him just

"Much of the testimony of Wright was dibefore the farm was sold the decedent said: rected to the issue formed by the affidavits of

“Riley had gone there and fixed up the place, Limself and Redmon, controverting the ground and has sowed grass, and talked as if he was of Lewis' attachments, and exceptions were filed going to stay there a number of years. He said by Lewis to this deposition as incompetent evithat Riley always treated him all right and had dence; but they do not appear to have been never given him any trouble, and he said that acted on by the court below, and must therehe wasn't going to lose anything by it. *

fore be regarded in this court as having been He just said that Riley was going to give him vaived." possession, and he was going to pay him well

In Corn, etc., v. Sims, etc., 3 Metc. 398, we for it. He said that Riley wanted a farm, and

said: he was going to help him pay for it."

"The exceptions to the deposition of Sims From what has been said of the testimony were not acted on by the court below, and of Smith and Cox, it appears that shortly be therefore no question as to the competency of fore he sold his farm the decedent told them the witness, or the admissibility of his testifore he sold his farm the decedent told them mony, is presented. Even if the court had erof his intention to sell it and to pay appel- roneously decided upon the exceptions, such erlee well for the possession, and that he in- ror, unless excepted to at the time, is waived, tended to help appellee in his purchase of and furnishes no ground of reversal here. Civil

Code, § 653, now section 589. We need not another farm, and it appears from the tes- refer to the numerous recent decisions which timony of Salmon that the decedent said to settle this point conclusively.Patterson v. him shortly after the sale of the farm that Hansel, 4 Bush, 654; L. & N. R. Co. v. Graves, he had paid appellee well for possession in 78 Kv. 74; L & N. R. Co. v. Montgomery, 32

S. W. 738, 17 Ky. Law Rep. 807; Bronston order to effect his (the decedent's) sale of V. Bronston, 141 Ky. 639, 133 S. W. 581. his farm, and that he intended to help ap

It is manifest from the authorities supra pellee. While none of the witnesses last that appellant cannot now complain of the named were told by the decedent that he in-admission of appellee's testimony in the tended to pay or had paid appellee $1,000 court below. to obtain a cancellation of two years of the

Judgment affirmed. lease the latter had upon his farm, it is evident from their testimony that he intended! to pay him well, in view of which it is not unreasonable that the payment he made ap

WEIL V. HAGAN. pellee amounted to $1,000; and, as the check (Court of Appeals of Kentucky. Nov. 17, 1915.) for the $1,000 was furnished appellee by the 1. MASTER AND SERVANT 333 - PARTIES decedent, and no other payment was known ENTITLED TO ALLEGE ERROR VERDICT to have been made him by the latter, it is

AGAINST MASTER EXONERATING SERVANT. fairly apparent that in giving him the check, tomobile for damages in collision with it, ver

In an action against the owner of an authe proceeds of which were paid to Tucker on dict for the plaintiff against the car's owner, the note due January 5, 1911, the decedent, who was not in the car, exonerating the chauf

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feur who had driven it, through whose negli- judgment against him on the verdict, and gence alone the owner was liable, could not be moved the court to enter a judgment for him, complained of by such owner.

notwithstanding the verdict. The court, [Ed. Note. For other cases, see Master and Servant, Cent. Dig. $ 1279; Dec. Dig. Com 333.] however, overruled Weil's motion, and enter2. MUNICIPAL CORPORATIONS Ow706-STREETS ed a judgment against him in accordance

-ACTION FOR DAMAGES BY AUTOMOBILE- with the verdict, and at the same time PLEADING AND PROOF – IMMATERIAL VARI- it entered a judgment exonerating Wash. ANCE-STATUTE.

From that judgment, Weil prosecutes this Under Civ. Code Prac. $ 129, providing that no variance between pleadings and proof appeal. is material which does not mislead a party to It is argued that, since the only ground his prejudice in maintaining his action or de- upon which Weil can be held liable is that he fense upon the merits, where the petition, .in is responsible for the negligence, if any, of

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of and his chauffeur for damages sustained in col- his servant, Wash, Weil is only secondarily, lision with the car, rested plaintiff's case on and not primarily, liable; and, being liable the charge that the car struck plaintiff's horse only for the negligence of Wash, a verdict and caused him to run away, while the proof showed that the car only ran so close to the exonerating Wash from negligence neceshorse as to frighten him, without striking him, sarily exonerated Weil, his master. thereby causing him to run away, the variance The precise question here presented was was not material.

before this court in Broadway Coal Mining [Ed. Note.--For other cases, see Municipal Corporations, Cent. Dig. & 1518; Dec. Dig. Co. v. Robinson, 150 Ky. 716, 150 S. W. 706.]

1000, and it was there decided against the

contention of appellant. In that case the Appeal from Circuit Court, Clark County, company was sued for the negligence of its

Action by L. V. Hagan against Morris Weil and another. Judgment for plaintiff against returned a verdict against the company, and

employés Chumbley and Jones, and the jury the named defendant, and the latter appeals. in favor of Chumbley and Jones. This court, Affirmed.

however, sustained the finding, saying that, Pendleton, Bush & Bush, of Winchester, if the plaintiff failed to get a verdict against for appellant. Hays & Hays, of Winchester, the other defendants who were equally liafor appellee.

ble in damages, the plaintiff might be ag

grieved at the verdict, but not the defendMILLER, C. J. The appellee, L. V. Hagan, ant. That rule was first announced in this sued Morris Weil, the owner of an automo- jurisdiction in I. C. R. R. Co. v. Murphy, bile, and Walter Wash, his chauffeur, for 123 Ky. 787, 97 S. W. 729, 30 Ky. Law Rep. negligently colliding with plaintiff's buggy 93, 11 L. R. A. (N. S.) 352; and it was apwhile he was driving on the pike between proved in the later cases of I. C. R. R. Co. v. Winchester and Lexington. He recovered a Outland's Adm'r, 160 Ky. 714, 170 S. W. 48, judgment for $600 damages against Weil,

and National Cash Register Co. v. Williams, Upon a former trial of the case plaintiff 161 Ky. 551, 171 S. W. 162. Whatever may recovered a verdict for $700, but, upon ap- be the ruling in other jurisdictions, the quespeal that judgment was reversed on account tion may be treated as at rest in this jurisof the improper argument of the plaintiff's diction. attorney, and the failure of the instructions

2. The fifth instruction reads as follows: to furnish a guide for determining the

If the jury find for the plaintiff as against amount of damages. Weil v. Hagan, 161 Ky.one defendant, and for the other defendant, they 292, 170 S. W. 618. The facts connected with shall so state in their verdict." the accident are stated in the former opin

Appellant contends that under this instrucion, and will not be repeated here. Appellant, Weil, assigns three grounds for tion the jury were permitted to find for the

defendant Wash and against the defendant a reversal: (1) That the verdict did not authorize a judgment against the defendant Weil, although the liability of Weil, if any, Weil; (2) that the court erred in giving was entirely secondary, and dependent whol

This is instruction No. 5; and (3) that the verdict ly upon the negligence of Wash. is not sustained by sufficient evidence, and but a repetition, in another form, of the

objection to the verdict, heretofore considis contrary to law.

ered. [1] 1. Weil was not present when the accident happened, and the recovery against

But, since the jury had the right, under him was permitted because he was the owner the decisions of this court, to find a verdict of the automobile which his chauffeur, Wash, against Weil and exonerate Wash, the chaufwas driving, upon his master's business, at feur, as we have heretofore held, the instructhe time of the collision.

tion complained of was not erroneous. IL The jury returned the following verdict:

the jury had the right to find the verdict, it "We, the jury, find for the plaintiff $600 certainly was no error to instruct them that against Morris Weil, and find for the defendant they might do so. The instruction is the usWalter Wash."

ual one given in cases of this character, Immediately, and before judgment was en- where there is more than one defendant. tered, Weil objected to the entering of any [2] 3. The evidence upon the second trial, now appealed from, was substantially the place during a temporary absence must be deemsame as it was upon the first trial, where ed that of superior servants.

[Ed. Note.-For other cases, see Master and reversal that the verdict was not supported Servant, Cent. Dig. 88 493–514; Dec. Dig. em

198.

Enne by the evidence, and was contrary to the law and the evidence. In the former opinion,

5. APPEAL AND ERROR Om 1170 REVIEW

HARMLESS ERROR. however, no suggestion was made that the In view of Civ. Code Prac. $$ 135, 335, 756, verdict was not sustained by the evidence; requiring the disregarding of nonprejudicial er and, in our opinion, it cannot properly be ror, where the petition of a fireman injured

through the negligence of the engineer and connow so held.

ductor in charge of his train averred that their Appellant, however, draws rather a fine negligence was gross, and the evidence concludistinction, by saying that, while the petition sively showed that fact, an instruction allowing rested the case upon the charge that the recovery for ordinary negligence is harmless.

[Ed. Note.-For other cases, see Appeal and automobile struck appellee's horse and caus- Error, Cent. Dig. $$_4032, 4066, 4075, 4093, ed him to run away, the proof shows that 4101, 4454, 4540-4545; Dec. Dig. Om 1170.] appellant's automobile only ran so close to the horse as to frighten him, but without

Appeal from Circuit Court, Lewis County. striking him, and thereby caused him to

Action by G. W. Shamblen against the run away. The proof, however, does not

Chesapeake & Ohio Railway Company. sustain this distinction; and, if it did, we From a judgment for plaintiff, defendant apwould be slow to say that it constituted a peals. Affirmed. material variance. Certainly, appellant was Worthington, Cochran & Browning, of in no way prejudiced in this connection, Maysville, for appellant. Allan D. Cole, of even though his contention as to the facts Maysville, for appellee. were true. Civil Code, $ 129. Judgment affirmed.

NUNN, J. Appellee was operating a locomotive engine on a freight train at Garrison, a station on appellant's railroad. Lean

ing out of the cab window observing his CHESAPEAKE & O. RY. CO. V. SHAM

train, his head was injured by striking BLEN.

against a freight car which had been left on (Court of Appeals of Kentucky. Nov. 18, 1915.) a switch too close to the main track. In 1. MASTER AND SERVANT Omw 113-NEGLIGENCE this action for damages he recovered $500. -SAFE PLACE-RAILROAD TRACKS.

He was employed as a fireman, but when inof switching operations to leave a car on the jured he was operating the engine in place of siding so close that it endangered trainmen on the engineer who had been called off tempassing trains is gross negligence.

porarily. [Ed. Note.-For other cases, see Master and [1] Shortly after the train stopped at GarServant, Cent. Dig. $$ 213, 224–227; Dec. Dig. rison, his engineer, under direction of the Om113.]

conductor, placed a cut of cars upon a switch, 2. MASTER AND SERVANT Om 281 - ACTIONS - filling it completely, so that the one nearest EVIDENCE-ADMISSIONS.

In an action by a fireman injured when his the main track came within a foot of it. It head came in contact with a car on a siding as is conceded that the engineer and conductor he leaned from the cab of the engine which he were guilty of negligence in leaving the car was running during the temporary absence of so close to the main track that the trains the engineer, his testimony that, when the cars passing thereon would not have a safe clearwere placed on the siding, he was on the opposite side of the cab, and that, when he drove ance. The act of the conductor and engineer the engine past, he did not look out, because he in thus placing this car was deliberate. It was injecting water in the boiler, is not an ad- was not a mere failure to observe. They mission that he knew of the presence of the car. knew at the time that they had filled the

[Ed. Note.-For other cases, see Master and I knew at the time that they had filled the Servant, Cent. Dig. 88 987–996; Dec. Dig. Om switch until there was not room on it for

another car, and the one in question extend3. MASTER AND SERVANT C202–INJURIES TO ed so close to the main line as to imperil the SERVANT-ACTIONS--NEGLIGENCE.

life of trainmen thereon. They explain that For a fireman to recover for injuries caus- they left the car so close to the main track ed by the negligence of the engineer and the con- because there was not room on the switch to ductor on the same train, who were his super-get it further away. As said in the case of iors, their negligence must be gross.

[Ed. Note.-For other cases, see Master and L. & N. v. Earl's Adm'r, 94 Ky. 373, 22 S. W. Servant, Cent. Dig. 88 535-537; Dec. Dig. 608, 15 Ky. Law Rep. 186: 202.]

“It was inexcusable negligence to leave the 4. MASTER AND SERVANT Om198-INJURIES TO the engineer's cab could barely pass it.”

'kicked in' car so close to the main track that SERVANT-NEGLIGENCE.

Where an engineer and conductor in switch- This switch was on the right of the main ing operations placed cars on a siding, so near line; that is, on the side where the engineer the end that they endangered those on passing trains, their negligence as to a fireman who was worked. The appellee was working as firesubsequently directed to take the engineer's man on the other side of the engine when the

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cars were placed. While he knew when the see the cars. At that time, as he says, he cars were run in on the switch, he did not was intent upon his duties in operating the know that any of them had been left in dan- engine, being the only man upon it, and rungerous proximity to the main line. After the ning at from 10 to 12 miles an hour. This switch had been filled with cars, as above time, in passing the cars, "I was putting stated, and while the train crew were still water in the boiler [with an injector). I engaged in switching in and about Garrrison, never had my head out to notice about being the engineer was temporarily called away, clear." and by his direction the fireman took his [3, 4] The master's negligence in this case place. The engineer testifies that at the is not in failing to provide a safe place to time he left appellee, his fireman, in charge work. It is not like the case of posts, buildof the engine, “I told him that the cars were ings, or other obstructions set too close to there (on the switch], that I had come by, the track by employés engaged in other lines and for him to look out for those cars," and of service. Nor is it like the case of a cut of that Shamblen replied that he knew they cars left 'too close to the track by the crew were there. Appellee denies that any such of another engine or train. In cases of that warning was given, although he admits, as character the doctrine of unsafe place would above stated, that he knew that cars were on apply, and the master would be liable if the switch; for he was on the engine that there was a failure to exercise ordinary care. had shoved them in there a short while be- But here the negligence is that of servants fore, but he could not and did not see or immediately superior to appellee engaged on know that they were dangerously near the the same train. Under these circumstances, track.

there can be no recovery by appellee, unless [2] In answer to a signal from the brake- the superior servants were guilty of gross man, appellee, now operating the engine, negligence. The proximate cause of the inpushed two cars ahead of it on the main line jury, and the only negligence on which a reto a point several hundred feet beyond the covery can be predicated, is the gross negliswitch in question. Cutting loose from these gence of his superior servants, the conductor

. cars, he was directed to returu; that is, and engineer, in placing and leaving the car “back up” and again pass the switch. On dangerously near the main track. But ap. the return, with the train running from 10 pellant argues that at the time appellee was to 12 miles an hour, appellee leaned outside injured the engineer and conductor were not of the cab to look backwards just as he was superior servants, for he was, in fact, acting passing the car in question, when it struck as engineer, and therefore a fellow servant him. A severe gash was cut over his eye. with them. It is appellant's contention that It required three stitches to close the wound. appellee's right to recover for the negligence His ear was also involved or injured, due, in of another servant is determined as of the all probability, according to the evidence of time of the accident, and not as of the tiine of the company's physican, to infection from the the performance of the negligent act. It is wound through a tube leading from the fron- insisted that, although the thing negligently tal sinus to the eardrum. On this appeal the done was the act of a superior servant, yet, company, although admitting the negligence when he was later injured as a result of that of the conductor and engineer in so placing negligence, he had been elevated to a grade the car, and conceding such a conflict in the equal in service, and therefore his injury reevidence on the question of whether he was sulted from the negligence of a fellow servwarned by the engineer of its dangerous ant, and he cannot recover; in other words, proximity as to take the case to the jury, although appellee was a fireman at the time yet insists that the circumstances, independ the engineer and conductor negligently placed ent of the warning, show that he did know, the cars which caused his injury, yet, if at the and that his failure to guard himself against time he received the injury he himself was the car was negligence per se on his part. an engineer, he cannot recover because the The circumstances referred to are the facts negligent acts of the engineer were the acts that he was on the engine when the cars of a fellow servant. This reasoning is unwere placed on the switch, and that he had sound, and the authorities cited by appellant gone past the cars a few moments prior to do not support it. Appellant relies upon Butthe accident, and his testimony that as he ler v. Townsend, 126 N. Y. 105, 26 N. E. 1017, started to "back up” his engine again to a where the court said: point beyond the cars "I looked up here, and “The new servant takes the risk of any existsaw the cars on the track, but I couldn't tell ing negligence of his fellow servants, as well as whether they were on the track, or how

that which may thereafter occur. about that.” Manifestly, his testimony could But in that case, as held by the court, the not be construed as an admission of knowl. negligent cause of the injury was the work edge of the danger. When the cars were of those who were fellow servants not only placed on the switch he was on the opposite when the negligent act was committed, but side of the engine, in the performance of his when the accident happened. L. & N. v. duties as fireman. He next passed the Moore, 83 Ky. 675, was where a brakeman ployed as a fireman, but who at the time was foreman, happened at the time to be doing permitted by the railroad to act as engineer. the work of one of the employés would not The railroad claimed that the brakeman render the company liable. There is no could not recover because the injury was analogy, however, in these cases to the one due to the negligence of the fireman, a fel- at bar. The fireman was not injured by the low servant of the brakeman, and that his negligence of the engineer and conductor temporary service as engineer when the neg- while they were, for the time being, performligent act was committed did not make it the ing some of his duties as fireman. negligence of an engineer and superior serv- [5] This brings us to appellant's complaint ant. The court held that the fireman was that the instructions of the court authorized at the time and to all intents and purposes a recovery for the ordinary negligence of the engineer of the train, and applied the servants superior to appellee in authority. rule of respondeat superior; in other words, The petition charges that the car in question the negligence was committed by one while was placed in such close proximity to the acting as the engineer, a superior servant, main track by the gross negligence and carejust as in the case at bar the negligent act lessness of appellant's agents and servants, was that of the engineer and conductor, who but the instructions authorized a recovery were at the time superior servants of the for the ordinary negligence of those in charge appellee. Appellant insists that the negli- of the train. This was error; for, as we gence was that of a fellow servant, for the have already indicated, the plaintiff was not further reason that, according to the custom entitled to recover at all, unless his superior of doing switching work such as the crew servants were guilty of gross negligence. were engaged in at Garrison, the members But appellant's substantial rights were not of the crew were, as the work might require, prejudiced by the error. The damages alshifted from one position to another and all lowed are moderate in view of the injury the members of the crew should, therefore, sustained, and as to the character of negliwhile engaged in such work, be treated as in gence of which appellant's servants were a common employment. But the evidence guilty there can be, and there was, no quesdoes not show such a state of affairs. Each tion. There was no dispute about the facts, member of the crew had his special duties, and from them it appears that the conductor and no custom or rule is shown that could op- and engineer were guilty of the grossest kind erate to place the crew upon the same grade of negligence in leaving the car so close to of service, or to render them fellow servants the main track. There was a wanton and for the time being. It was customary for the reckless disregard on their part of the safefireman to relieve the engineer temporarily ty of employés operating trains on the main when directed by him, but in doing so he did track. There really were but two issues in not assume the risk of prior negligence of the the case, and they were whether the appellee engineer, his superior. The cases of Whit- knew or by the exercise of ordinary care son v. American Bridge Co., 158 Ky. 814, 166 could have known that the cars were so close S. W. 603, and Sinclair's Adm'r v. I. C. R. R., to the track, or whether the engineer, in fact, 140 Ky. 152, 130 S. W. 978, are relied upon warned or notified him thereof. Both of by appellant in support of this proposition these questions were fairly submitted to the of temporary fellow. workers in a common jury. Although the instruction complained service.

of erroneously permitted a recovery for ordiIn the Whitson Case Dempsey was the nary negligence, yet, where admittedly and foreman of a crew of bridge carpenters, but beyond dispute the facts show gross negliat the time Whitson was injured Dempsey gence, and there is nothing in the record to was doing the work of one of the carpenters; indicate that appellant was prejudiced by that is, he was assisting Whitson, another the error, we do not feel authorized to recarpenter, to carry a cross-tie. Dempsey mand the case. stumbled, and the tie was thrown against In the recent case of Consolidated Coal Co. Whitson, to his injury. It is conceded in V. Baldridge, 166 Ky. 187, 179 S. W. 18, that case that Dempsey, while doing the where we had under consideration a similar work of a carpenter, was a fellow servant to error, a reversal was refused, because in that the injured carpenter.

case the negligence found by the jury was In the second case Sinclair, a member of a necessarily gross. Although the instructions section crew, was killed by the alleged negli- submitted the case on the question of ordigent act of Pruitt, the foreman. Although nary negligence, it was held that the error Pruitt was foreman of the crew, he was at was not such as to justify a reversal, because the time working as a member of the crew. a reversible error "must affect the substanThe court, in disposing of the case, conclud- tial rights of the appellant, and that it does ed that the fact that Pruitt was foreman was so affect them must as clearly appear as the of no importance. The court held the acci- error itself.” Civil Code, $8 134, 335, 756. dent to be one of the ordinary risks of the For the reasons indicated, the judgment is employment, and the fact that Pruitt, its affirmed.

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