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 farm, the decedent said he was going to sell the farm, but that he would have to pay Riley something to move off, as he had agreed to fix the farm up for him and had rented it to him for three or four years. This witness also testified, as did Salmon, that the decedent was then in good health for a man of his age and capable of transacting his own business, and, further, that appellee waited upon and took care of his grandfather during his last illness, which occurred more than a year after the conversation referred to.

admitted by appellant's waiver of any objection thereto. It appears that he filed exceptions to all of the depositions taken and filed by appellee, but the record fails to show that the exceptions were passed on by the circuit court, or that it was asked to do so. Section 589, Civil Code, provides:

ceptions to depositions, are waived unless ex"Errors of the court, in its decisions upon excepted to."

In Lewis v. Wright, 3 Bush, 311, we held that exceptions to depositions as incompetent evidence, which do not appear to have been acted on by the court below, will be regarded by this court as waived. In the opinion it is said:

"Much of the testimony of Wright was directed to the issue formed by the affidavits of himself and Redmon, controverting the ground of Lewis' attachments, and exceptions were filed by Lewis to this deposition as incompetent evidence; but they do not appear to have been acted on by the court below, and must there*fore be regarded in this court as having been waived."

J. R. Cox testified that his farm joined that of the decedent in 1910. To him just before the farm was sold the decedent said: "Riley had gone there and fixed up the place, and has sowed grass, and talked as if he was going to stay there a number of years. He said that Riley always treated him all right and had never given him any trouble, and he said that he wasn't going to lose anything by it. He just said that Riley was going to give him possession, and he was going to pay him well for it. He said that Riley wanted a farm, and he was going to help him pay for it."

* *

From what has been said of the testimony of Smith and Cox, it appears that shortly before he sold his farm the decedent told them of his intention to sell it and to pay appellee well for the possession, and that he intended to help appellee in his purchase of another farm, and it appears from the testimony of Salmon that the decedent said to him shortly after the sale of the farm that he had paid appellee well for possession in order to effect his (the decedent's) sale of his farm, and that he intended to help appellee. While none of the witnesses last named were told by the decedent that he intended to pay or had paid appellee $1,000 to obtain a cancellation of two years of the 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 appellee amounted to $1,000; and, as the check for the $1,000 was furnished appellee by the decedent, and no other payment was known to have been made him by the latter, it is fairly apparent that in giving him the check, the proceeds of which were paid to Tucker on the note due January 5, 1911, the decedent

In Corn, etc., v. Sims, etc., 3 Metc. 398, we

said:

"The exceptions to the deposition of Sims were not acted on by the court below, and therefore no question as to the competency of mony, is presented. Even if the court had erthe witness, or the admissibility of his testironeously decided upon the exceptions, such error, unless excepted to at the time, is waived, and furnishes no ground of reversal here. Civil Code, 653, now section 589. We need not refer to the numerous recent decisions which settle this point conclusively." Patterson v. Hansel, 4 Bush, 654; L. & N. R. Co. v. Graves, 78 Ky. 74; L. & N. R. Co. v. Montgomery, 32 S. W. 738, 17 Ky. Law Rep. 807; Bronston v. Bronston, 141 Ky. 639, 133 S. W. 584.

It is manifest from the authorities supra that appellant cannot now complain of the admission of appellee's testimony in the court below.

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, however, overruled Weil's motion, and enter706-STREETS ed a judgment against him in accordance with the verdict, and at the same time it entered a judgment exonerating Wash. From that judgment, Weil prosecutes this appeal.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1518; Dec. Dig. Co. v. Robinson, 150 Ky. 716, 150 S. W. 706.]

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. the appellant assigned as a ground for a reversal that the verdict was not supported by the evidence, and was contrary to the law and the evidence. In the former opinion, however, no suggestion was made that the verdict was not sustained by the evidence; and, in our opinion, it cannot properly be

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

cars were placed. While he knew when the cars were run in on the switch, he did not know that any of them had been left in dangerous proximity to the main line. After the switch had been filled with cars, as above stated, and while the train crew were still engaged in switching in and about Garrrison, the engineer was temporarily called away, and by his direction the fireman took his place. The engineer testifies that at the time he left appellee, his fireman, in charge of the engine, "I told him that the cars were there [on the switch], that I had come by, and for him to look out for those cars," and that Shamblen replied that he knew they were there. Appellee denies that any such warning was given, although he admits, as above stated, that he knew that cars were on the switch; for he was on the engine that had shoved them in there a short while before, but he could not and did not see or know that they were dangerously near the track.

This

see the cars. At that time, as he says, he
was intent upon his duties in operating the
engine, being the only man upon it, and run-
ning at from 10 to 12 miles an hour.
time, in passing the cars, "I was putting
water in the boiler [with an injector].
never had my head out to notice about being
clear."

[3, 4] The master's negligence in this case is not in failing to provide a safe place to work. It is not like the case of posts, buildings, or other obstructions set too close to the track by employés engaged in other lines of service. Nor is it like the case of a cut of cars left too close to the track by the crew of another engine or train. In cases of that character the doctrine of unsafe place would apply, and the master would be liable if there was a failure to exercise ordinary care. But here the negligence is that of servants immediately superior to appellee engaged on the same train. Under these circumstances, there can be no recovery by appellee, unless

negligence. The proximate cause of the injury, and the only negligence on which a recovery can be predicated, is the gross negligence of his superior servants, the conductor and engineer, in placing and leaving the car dangerously near the main track. But ap pellant argues that at the time appellee was injured the engineer and conductor were not superior servants, for he was, in fact, acting as engineer, and therefore a fellow servant with them. It is appellant's contention that appellee's right to recover for the negligence of another servant is determined as of the time of the accident, and not as of the time of the performance of the negligent act. It is insisted that, although the thing negligently done was the act of a superior servant, yet, when he was later injured as a result of that negligence, he had been elevated to a grade equal in service, and therefore his injury resulted from the negligence of a fellow servant, and he cannot recover; in other words, although appellee was a fireman at the time the engineer and conductor negligently placed the cars which caused his injury, yet, if at the time he received the injury he himself was an engineer, he cannot recover because the negligent acts of the engineer were the acts of a fellow servant. This reasoning is unsound, and the authorities cited by appellant do not support it. Appellant relies upon Butler v. Townsend, 126 N. Y. 105, 26 N. E. 1017, where the court said:

[2] In answer to a signal from the brake- the superior servants were guilty of gross man, appellee, now operating the engine, pushed two cars ahead of it on the main line to a point several hundred feet beyond the switch in question. Cutting loose from these cars, he was directed to return; that is, "back up" and again pass the switch. On the return, with the train running from 10 to 12 miles an hour, appellee leaned outside of the cab to look backwards just as he was passing the car in question, when it struck him. A severe gash was cut over his eye. It required three stitches to close the wound. His ear was also involved or injured, due, in all probability, according to the evidence of the company's physican, to infection from the wound through a tube leading from the frontal sinus to the eardrum. On this appeal the company, although admitting the negligence of the conductor and engineer in so placing the car, and conceding such a conflict in the evidence on the question of whether he was warned by the engineer of its dangerous proximity as to take the case to the jury, yet insists that the circumstances, independent of the warning, show that he did know, and that his failure to guard himself against the car was negligence per se on his part. The circumstances referred to are the facts that he was on the engine when the cars were placed on the switch, and that he had gone past the cars a few moments prior to the accident, and his testimony that as he started to "back up" his engine again to a point beyond the cars "I looked up here, and saw the cars on the track, but I couldn't tell whether they were on the track, or how 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

"The new servant takes the risk of any existing negligence of his fellow servants, as well as that which may thereafter occur."

analogy, however, in these cases to the one at bar. The fireman was not injured by the negligence of the engineer and conductor while they were, for the time being, performing some of his duties as fireman.

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 due to the negligence of the fireman, a fellow servant of the brakeman, and that his temporary service as engineer when the negligent act was committed did not make it the negligence of an engineer and superior servant. The court held that the fireman was at the time and to all intents and purposes the engineer of the train, and applied the rule of respondeat superior; in other words, the negligence was committed by one while acting as the engineer, a superior servant, just as in the case at bar the negligent act was that of the engineer and conductor, who were at the time superior servants of the appellee. Appellant insists that the negligence was that of a fellow servant, for the further reason that, according to the custom of doing switching work such as the crew were engaged in at Garrison, the members of the crew were, as the work might require, shifted from one position to another and all the members of the crew should, therefore, while engaged in such work, be treated as in a common employment. But the evidence does not show such a state of affairs. Each member of the crew had his special duties, and no custom or rule is shown that could operate to place the crew upon the same grade of service, or to render them fellow servants for the time being. It was customary for the fireman to relieve the engineer temporarily when directed by him, but in doing so he did not assume the risk of prior negligence of the engineer, his superior. The cases of Whitson v. American Bridge Co., 158 Ky. 814, 166 S. W. 603, and Sinclair's Adm'r v. I. C. R. R., 140 Ky. 152, 130 S. W. 978, are relied upon by appellant in support of this proposition of temporary fellow workers in a common service.

In the Whitson Case Dempsey was the foreman of a crew of bridge carpenters, but at the time Whitson was injured Dempsey was doing the work of one of the carpenters; that is, he was assisting Whitson, another carpenter, to carry a cross-tie. Dempsey stumbled, and the tie was thrown against Whitson, to his injury. It is conceded in that case that Dempsey, while doing the work of a carpenter, was a fellow servant to the injured carpenter.

[5] This brings us to appellant's complaint that the instructions of the court authorized a recovery for the ordinary negligence of servants superior to appellee in authority. The petition charges that the car in question was placed in such close proximity to the main track by the gross negligence and carelessness of appellant's agents and servants, but the instructions authorized a recovery for the ordinary negligence of those in charge of the train. This was error; for, as we have already indicated, the plaintiff was not entitled to recover at all, unless his superior servants were guilty of gross negligence. But appellant's substantial rights were not prejudiced by the error. The damages allowed are moderate in view of the injury sustained, and as to the character of negligence of which appellant's servants were guilty there can be, and there was, no question. There was no dispute about the facts, and from them it appears that the conductor and engineer were guilty of the grossest kind of negligence in leaving the car so close to the main track. There was a wanton and reckless disregard on their part of the safety of employés operating trains on the main track. There really were but two issues in the case, and they were whether the appellee knew or by the exercise of ordinary care could have known that the cars were so close to the track, or whether the engineer, in fact, warned or notified him thereof. Both of these questions were fairly submitted to the jury. Although the instruction complained of erroneously permitted a recovery for ordinary negligence, yet, where admittedly and beyond dispute the facts show gross negligence, and there is nothing in the record to indicate that appellant was prejudiced by the error, we do not feel authorized to remand the case.

In the recent case of Consolidated Coal Co. v. Baldridge, 166 Ky. 187, 179 S. W. 18, where we had under consideration a similar error, a reversal was refused, because in that 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, §§ 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.