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cence which would raise an implied promise for three of the pooling shareholders; appelmust be such as presumes volition upon the lees not being parties thereto. The services part of the person sought to be charged with performed by them in those cases they were the duty of compensating the attorney. It in duty bound to perform, under the employwill not do to say that, where the circumstanc- ment which they accepted. They were not es are such that one has no choice but to employed by appellees, and they performed avail himself of efforts which have been no services for appellees. If the three acmade by an attorney, this would constitute tions mentioned had proceeded to judgment acquiescence.

favorable to the plaintiffs therein, and the [2] In the case at bar the pooling share- purchasing bank had thereafter settled with holders were offered an opportunity to avail the remaining shareholders, would appellants themselves of the services of appellants, and here contend that they were entitled to a fee they declined the offer. The appellants then of one-third of the sums so paid to the reproceeded with the actions on behalf of the maining shareholders? It may be conceded three shareholders who did employ them. that, as an incidental result of the efforts of The nature of those actions was such that appellants upon behalf of their clients (the their success must of necessity be of some plaintiffs in the three original actions), the benefit to the other pooling shareholders. purchasing bank was led to a desire to settle If they were successful, their success would with all of the pooling shareholders; but the naturally redound to the benefit of the other benefits derived by appellees in that respect shareholders, who had like claims against were only incidental benefits which of necesthe purchasing bank, should they care to sity flowed from the performance by appelassert them. If the three actions mentioned lants of the services which they were by their had proceeded to a judgment in favor of the clients employed to perform, and which they plaintiffs, of course, there would have been were in duty bound to perform for them; little, if any, incentive for the purchasing and for such benefits they cannot claim combank to have compelled the remaining share-pensation from appellees, who were not their holders to resort to the courts in order to clients, either by express contract or implicaobtain their rights under the contract in tion of law. Hand v. Savannah Ry. Co., 21 question. Yet, had such been the course of S. C. 162; Rives v. Patty, 74 Miss. 381, 20

As well events in respect of the three actions men- South. 862, 60 Am. St. Rep. 510. tioned, if the remaining shareholders were might it be contended that the attorney who to settle at all with the purchasing bank, obtains the enunciation of a new doctrine in doing so they must have in a sense availed of the law should have compensation from themselves of benefits resulting from the suc

all who are thereafter, in virtue of that doc

trine, victorious in the courts. cessful presentation by appellants of the cases in which they were employed by the three Law Rep. 480, the following state of facts is

In Pepper v. Pepper, 98 S. W. 1039, 30 Ky. suing shareholders. That, however, would found: Certain attorneys were employed by not constitute the acquiescence in the conduct some of the heirs of one W. B. Pepper, and or acceptance of an attorney's services such succeeded in recovering several thousand dolas raises a duty to pay therefor by implica-lars for the estate. One of the heirs receivtion of law. It would not be accepting served the benefit of one-third of the sum so reices rendered for them, but, rather, avail- covered. He had not employed any attorney ing themselves of the benefits of services to represent him in the litigation. Those who which had been rendered to, and paid for had employed the attorneys paid the agreed by, others. Nor was there any exercise of compensation, and the attorneys then sought voluntary choice in the matter; for, if the to recover an additional fee from the heir remaining shareholders were ever to effect who had not employed them; and this court any settlement of their claims with the held that they could not maintain an action purchasing bank, they must of necessity have against a person who was not their client, profited in a way by the efforts of the at- and with whom they had no agreement, eitorneys employed by the three suing share-ther express or implied. holders.

[3] This latter case may also be referred to It is not claimed by the appellants that as demonstrating conclusively the inapplicathey had any contract with or employment bility of section 489, Kentucky Statutes, to from the appellees; but it is contended that, the state of facts here shown. It was exbecause the appellees agreed to and effected plained in that case that the section mentionthe compromise offered by the purchasing ed applies where one party in interest recovbank, after appellees had been notified that ers a fund which necessarily inures to the appellants would look to them for a fee in benefit of others jointly interested therein; that event, there was such an acceptance of the statute effecting a sort of contribution their services as would operate to create le- among them, to the end that all persons jointgal liability by implication of law. But what ly interested in and benefited by the recovery services did appellants perform for appellees? shall bear their proportion of the expenses None at all, as we view it, for which the law incurred in securing the benefits thereof. imposes liability. The appellants had been See, also, Clark v. Pepper's Adm'r, 132 Ky. But in the case at bar we have simply 4. RAILROADS 390—INJURY TO PERSONS ON three plaintiffs suing a defendant against

TRACK-HUMANITARIAN DOCTRINE. whom other persons have similar claims. The

Though a trespasser on a railroad track

vas guilty of contributory negligence, recovery defendant compromises with all of them; and for his death may be had where those in charge the attorneys for the plaintiffs first suing of a train did not use reasonable care after disseek a fee from those claimants who were not covering his position of peril. their clients, but who were, in point of fact, Cent. Dig. 88 1324, 1325; Dec. Dig. Om 390.]

[Ed._Note. For other cases, see Railroads, represented by other attorneys. It may be that those claimants who did not sue orig

Appeal from Circuit Court, McCreary inally (but who came in later by intervention)

County. were benefited by the services performed by

Action by William Jones' Administrator the attorneys whom the plaintiffs had em- against the Cincinnati, New Orleans & Texas ployed; but there was no legal liability there-Pacific Railway Company. From a judgment by created.

for plaintiff, defendant appeals. Affirmed. Much has been made to appear in the rec- Edward Colston and John Galvin, both of ord tending to show that certain of the claim- Cincinnati, Ohio, and Tye, Siler & Gatliff, of ants who did not sue had such relations with Williamsburg, for appellant. R. L. Pope, of the plaintiffs, or some of them, as would have Williamsburg, W. F. Hinkle, of Whitley City, rendered the employment of a common attor- and Rose & Pope, of Williamsburg, for apney injudicious; and much has been said con- pellee. cerning the fact that the appellees who did not sue were nevertheless availing themselves CLAY, C. In this action by the adminisof the constant advice of other attorneys than trator of William Jones against the Cincinappellants during the course of the matters nati, New Orleans & Texas Pacific Railway in question; but we have not found it neces- Company to recover damages for his death, sary to consider or discuss these contentions there was a verdict and judgment in favor of in detail, in view of the conclusions which plaintiff for $1,500. The railroad company we have reached, as hereinbefore stated. Be appeals. The only ground urged for reversal these matters as they may, appellees are not is the failure of the trial court to give a perliable to appellants for compensation under emptory instruction in favor of the defendthe facts disclosed by the record and here ant. conceded.

The facts are these: Jones was killed at The judgment is affirmed.

6:15 a. m. June 26, 1913, by engine No. 922 extra, which at the time was pulling a freight train consisting of 3 loaded cars and

42 empty cars. The accident occurred beCINCINNATI, N. 0. & T. P. RY. CO. v. I which are located about 2 miles apart. At

tween the towns of Silverville and Pine Knot, JONES' ADM'R.

the place of the accident the defendant's road (Court of Appeals of Kentucky. Nov. 19, 1915.) is double-tracked. The east track is called 1. RAILROADS Ow376-INJURIES TO PERSONS

the north-bound main and the west track is ON TRACK_TRESPASS-"TRESPASSER.

called the south-bound main. Trains going One walking on a railroad track which was north run on the north-bound main. The not used by the public in such large numbers train which struck decedent was going north as to impose on the company the duty to have at the rate of 35 miles per hour. Decedent's its trains under reasonable control, or to keep a lookout, iş a trespasser, and can only demand home was east of Silverville. Decedent had that those in charge of trains use all reason- left his home and walked to the railroad, able means to avoid injuring him after discov- which runs to the county road. After reachering his peril.

ing the railroad he proceeded north on his [Ed. Note. -For other. cases, seo Railroads, way to Tow Wad mines, a mining camp south Cent. Dig. SS 1275–1279; Dec. Dig. Omw376. For other definitions, see Words and Phrases,

of Pine Knot. The county road runs parFirst and Second Series, Trespasser.]

allel with the railroad from Silverville to 2. RAILROADS Ow376INJURY TO PERSONS ON

the place where Jones was going to work. TRACK_TRESPASSER-DUTY OF ENGINEER.

On each side of the railroad was a wire Where a railroad engineer discovers a tres- fence, and it was the purpose of the decedent passer on the track in a position of peril, and to leave the railroad at a point 300 or 400 the distance is too short to stop the train, it

Just is negligence for him to fail to give the alarm yards north of where he was struck. signal.

before reaching the point where decedent [Ed. Note.-For other cases, see Railroads, was killed there is a sharp curve on the Cent. Dig. 88 1275–1279; Dec. Dig. Om 376.] railroad, which is estimated to be from 14 3. RAILROADS Om 400-INJURY TO PERSONS ON

to 17 rail lengths, or a distance of from 462 TRACK-JURY QUESTION.

feet to 561 feet, from the place where the Testimony by persons in position to hear accident occurred. The evidence shows that, it that a railroad whistle was not heard, though when the engineer discovered decedent on of a negative character, presents an issue of fact as to whether an alarm signal was given.

the track, the engine was about 12 rail [Ed. Note. For other cases, see Railroads, lengths, or 396 feet, distant from decedent. Cent. Dig. $$ 1365-1381; Dec. Dig. Om 400.] It further appears that a train like the one in question could not be stopped within less , unless the engineer gave the alarm, it cannot than from 900 to 1,000 feet, and that ordina- be said that he used ordinary care in the rily it would require from 1,400 to 1,600 feet exercise of all reasonable means at his comto stop such a train. The engineer said that mand, consistent with the safety of the when he discovered decedent he immediately train, to avoid injuring decedent after his sounded the alarm and put on the emergency peril was discovered. C., N. 0. & T. P. Ry. brakes. He did everything in his power to CO. V. Blankenship, 157 Ky. 702, 163 S. W. stop the train, but it was absolutely impos- 1123; Creager's Adm'r v. I. C. R. R. Co., sible to do so within the short distance that 134 Ky. 548, 121 S. W. 458. lay between him and the decedent. However, [3] The case therefore turns on whether for plaintiff a number of witnesses testified or not the alarm blast was sounded. The that they had their attention directed to the engineer says emphatically that it was. On train and were in a position to hear, and did the other hand, Henry Vahle, Mrs. Gillimore, not hear, any alarm blast until after the Burrel Wilson, Mary Davenport, Bob Daventrain had stopped.

port, and Cal West all say that they were in [1] It may be conceded that the evidence the vicinity of the scene of the accident and fails to show that the track at the place of had their attention directed to the train; the accident was used by the public in such that they knew what an alarm whistle was, large numbers as to impose on the company and did not hear the alarm whistle sounded the duty of having the train under reason- until after the train had stopped. It is the able control, and of keeping a lookout and rule in this state that evidence to the effect giving timely warning of its approach; in that the blowing of a whistle was not heard other words, decedent was a trespasser, and, by persons who were in a position to hear it that being true, the company owed him no if it had been blown, though of a negative duty other than to use ordinary care in the character, presents an issue of fact triable exercise of all reasonable means at its com- by the jury, and is sufficient to sustain a mand, consistent with the safety of the train, verdict. C. & O. Ry. Co. v. Nipp's Adm'x, to avoid injuring him after his peril was 125 Ky. 49, 100 S. W. 246, 30 Ky. Law discovered. C. & 0. Ry. Co. v. Montjoy's Rep. 1131; L. & N. R. R. Co. v. Molloy's Adm'r, 148 Ky. 279, 146 S. W. 371.

Adm'x, 107 S. W. 217, 32 Ky. Law Rep. 747 ; [2] The company insists that, as the en-C. & 0. Ry Co. v. Brashear's Adm’x, 124 S. gineer says that he gave the alarm whistle W. 278. Unless we depart from this ruling, and then applied the brakes in emergency, which we have no inclination to do, it canand as the evidence conclusively shows that not be said, as a matter of law, that the the train could not possibly have been stop- signal of the train was sounded after the ped in time to prevent the injury, the case peril of decedent was discovered. Under the is one calling for a peremptory in its favor. circumstances, the question was for the jury. It may be conceded that the train could not [4] The fact that decedent was guilty of have been stopped in time to prevent the contributory negligence in going upon the accident, and, if the failure to stop the train track and in failing to heed the approaching were the only negligence relied on, a peremp- train is not sufficient to defeat a recovery, tory should have gone. But plaintiff relies for, notwithstanding his contributory neglion the fact that the engineer failed to give gence, a failure on the part of the company any signal of the train's approach after dis- to use ordinary care in the exercise of all covering decedent's presence on the track. reasonable means at its command to avoid In view of the short distance between the injuring him after his peril is discovered train and the decedent after his peril had will render the company liable. C. & O. Ry. been discovered, and the impossibility of stop-Co. v. Montjoy's Adm'r, supra. ping the train in that distance, it is mani- It follows that defendant's motion for a fest that the soundng of the whistle was a peremptory instruction was properly overmore effective means to avoid injury than ruled. the application of the emergency brakes, and, Judgment affirmed.

causing his injury. The jury resolved against HOUSTON BELT & TERMINAL RY. CO. the plaintiff in error the issue of whether the V. JOHANSEN. (No. 2414.)

explosion was caused by its negligent ban(Supreme Court of Texas. Nov. 3, 1915.)

dling of the car, returning a verdict in Jo1. DAMAGES Om 208

C208 — ACTIONS - QUESTIONS | hansen's favor in the sum of $12,500; the FOR JURY.

verdict itemizing $2,500 of that amount as alIn an action by a member of a city fire de- lowed for lost time, an issue of damages sub

for ries due to an explosion of combustible material mitted in the charge. The honorable Court in a box car, where the evidence was conflicting of Civil Appeals ordered a remittitur of $840 as to whether money paid by the city to the of the damages given for lost time, the judgfireman while disabled was paid as wages or, as ment to be affirmed upon the remittitur being a gratuity, and where there was evidence that he actually suffered loss of time, the issue of filed; and it was so filed. The writ of error damages for lost time was properly submitted was allowed on the petition of the railway to the jury.

company, on the ground there urged, that the [Ed. Note. For other cases, see Damages, undisputed evidence showed that during the Cent. Dig. $$ 54, 64, 68, 132, 144, 145, 205, whole of the time for which damages were 220, 533, 534; Dec. Dig. Om 208.] 2. EXPLOSIVES 8-INJURIES FROM EXPLO- allowed on account of lost time, that is, from SION-CONTRIBUTORY NEGLIGENCE.

the date of the injury down to the time of the A railway company stored a car containing trial, Johansen had received the same, and combustible material in its yard. Some of the during a part of the time a greater, salary material exploded, causing a fire, which was than he was receiving at the time of the infollowed by other explosions. The fire department was called, and plaintiff, a member thereof, jury. The charge of the court instructed was injured by an explosion occurring after his the jury upon this feature of the damages arrival at the fire. Held that, inasmuch as that the plaintiff would only be allowed the the negligence of defendant was the proximate cause of the explosion setting the fire, as well reasonable value of time actually lost by him as the subsequent one by which plaintiff was down to the time of the trial as the result of injured, the negligence of defendant was a his injury, but that no deduction should be continuing one, and plaintiff was not negligent made of any amount paid him by the city in entering upon the premises.

[Ed. Note. For other cases, see Explosives, as a mere matter of grace or gratuity. Cent. Dig. $$ 4, 5; Dec. Dig. Om 8.]

If on account of his injury any time was

actually lost by Johansen during this period, Error to Court of Civil Appeals of Eighth a finding favorable to him upon the other isSupreme Judicial District. Action by Frederick Johansen against the titled him to damages in the amount of its

sues submitted in the charge would have enHouston Belt & Terminal Railway Company reasonable value; and if during such period for personal injuries. Judgment for plain- he was paid by the city, as a gratuity or tiff, affirmed by the Court of Civil Appeals bounty, the same or a greater salary than he upon remittitur (143 S. W. 1186), and defend

was receiving when injured, the railway comant brings error. Affirmed.

pany was not entitled to the benefit of such Andrews, Ball & Streetman and A. L. Jack- payment. Railway Company v. Jarrard, 65 son, all of Houston, for plaintiff in error. Tex. 560. There was a conflict in the eviJohn Lovejoy and Presley K. Ewing, both of dence as to whether the amount paid by the Houston, for defendant in error.

city in that interval was a gratuity; and

there was evidence that he actually suffered PHILLIPS, C. J. [1] The suit was by Jo- the loss of such time. This fully warranted hansen, the defendant in error, on account of the submission of the issue of lost time as a personal injuries suffered by him while in the part of the recoverable damages. discharge of his duty as a member of the [2] The case is a companion one to that fire department of the city of Houston by the of Houston Belt & Terminal Railway Comexplosion of combustible materials contained pany v. O'Leary (Civ. App.) 136 S. W. 601, in a box car in the custody and charge of the with substantially the same questions inplaintiff in error. The evidence warranted volved; O'Leary being the chief of the fire the conclusion that the explosion was caused department, and having been injured by the by a sudden collision of the car with other same explosion, causing his death. A judgcars, due to its being “kicked in” on the track ment in favor of the wife and minor child of where they were standing. The original ex- O'Leary was affirmed by the Court of Civil plosion was followed by recurrent explosions Appeals, and the petition of the railway comof the contents, causing a fire in the car, as pany for writ of error denied by this court. the result of which the contents were consum- In the present case the writ of error was aled, and the car wrecked. The burning car lowed only because of the charge on the threatened adjacent property, and, in re- measure of damages. We do not find it necsponse to an alarm, Johansen, with other essary to discuss the other questions premembers of the fire department, went to the sented in the petition for writ of error. The scene for the purpose of extinguishing the case of Denison Light & Power Company v. fire. While engaged in that duty, and in Patton, 105 Tex. 621, 154 S. W. 540, 45 L. R. proximity to the car, a further explosion of A. (N. S.) 303, urged by the learned counsel its contents occurred, of a violent character, for the plaintiff in error as determining the question of its liability, has no controlling that the car inspector would thus place himself analogy. There Patton, without any right in such position. to do so, was making an unauthorized use of servant, Cent. Dig. $$ 1001, 1006, 1008, 1010

Ed. Note. For other cases, see Master and the light company's property; and it was 1015, 1017-1033, 1086-1042, 1044, 1046–1050; held that the latter was under no duty of Dec. Dig. 286.) anticipating its use by him, or, in particular, 3. MASTER AND SERVANT 286–INJURIES TO such as would create the situation which SERVANT

NEGLIGENCE OF EMPLOYER'S caused his injury. Johansen was at the

AGENTS-QUESTION FOR JURY. scene of the fire in the performance of a employing railroad for personal injuries receiv

In an action by a car inspector against his duty. If it be admitted that he was a li-ed when he leaped from a “kicked car” travelcensee, the railway company would be liable ing toward stationary cars at an excessive speed for any act of negligence on its part causing and was injured by running onto a parallel him injury, since it was under the duty of track before the engine which had kicked his refraining from such an act. If, for illustra-ing, whether the engine crew had notice that tion, before any explosion had occurred, he the inspector would alight and run across the had been engaged in extinguishing the fire in track held for the jury under the evidence. this car, and another car had been negligent- servant, Cent. Dig. Sg 1001, 1006, 1008, 1010

[Ed. Note.-For other cases, see Master and ly run into it by the company, causing the 1015, 1017-1033, 1036–1042, 1044, 1046–1050; explosion, the issụes of contributory negli- Dec. Dig. Oni 286.] gence and assumed risk aside, there cou'ld be 4. TRIAL 139TAKING CASE FROM JURY. no question as to its liability. While the act Unless all reasonable minds would agree which caused the original explosion was that the evidence is insufficient to establish the committed before Johansen reached the prem-not warranted in taking the case from the jury.

facts necessary to a cause of action, the court is ises, in the nature of the case the successive

[Ed. Note. For other cases, see Trial, Cent. explosions, set in motion by the original act, Dig. 88 332, 333, 338-341, 365; Dec. Dig. made it one of a continuing nature; and 139.] if it was a negligent act, as it was within Error to Court of Civil Appeals of Fourth the province of the jury to determine, the Supreme Judicial District. fact that Johansen went upon the premises Action by Frank S. Walters against the Inafter its commission would not affect the ternational & Great Northern Railroad Comquestion. His situation, as well as the duty pany. Judgment for plaintiff was affirmed of the railway company, was the same as if by the Court of Civil Appeals (165 S. W. he had reached the premises before the first 525), and defendant brings error. Judgment explosion occurred and it had caused his in- affirmed. jury. It therefore cannot be said that he

Wilson, Dabney & King, of Houston, for went upon the premises dangerous at the time

plaintiff in error. Llewellyn & Foster, of and took them as he found them. The judgment of the Court of Civil Ap- Conroe, and J. W. Parker, of Houston, for

defendant in error. peals is affirmed.

YANTIS, J. Walters, the defendant in erINTERNATIONAL & G. N. R. CO. v. WAL- ror, recovered a judgment against the plain

tiff in error for personal injuries inflicted upTERS. (No. 2782.)

on him while he was engaged in the serv(Supreme Court of Texas. Nov. 10, 1915.)

ice of said company as a car inspector and 1. MASTER AND SERVANT Om 137-INJURIES TO

SERVANT-NEGLIGENCE OF MASTER'S AGENTS repairer at Sellars station, where there were -NOTICE OF DANGER.

switching yards containing nine side tracks. Where a railroad car inspector was riding At the time of his injury he was riding on upon a car which had been "kicked" down toward others standing still, and the crew of the the side of a box car that had been kicked, engine which had kicked it were not in posses- with eight others, at a rate of speed alsion of sufficient facts from which an ordinarily leged to be excessive, for the purpose of prudent person under the same circumstances coupling them with several stationary cars would have anticipated that the car inspector might alight from the kicked car and enter up- further down the switch track, with the puron the track on which the engine was moving, pose in view of completing the train in this or near enough thereto to receive injury from way and then continuing the train and the such engine, the engine crew was under no duty to ring the bill or blow the whistle.

engine attached thereto to Houston. The en[Ed. Note.-For other cases, see Master and gine that was pulling said train was used in Servant, Cent. Dig. $$ 269, 270, 273, 274, 277, making the kick referred to. After doing 278; Dec. Dig. Om 137.)

which, it then entered a side track which 2. MASTER AND SERVANT 286INJURIES TO

2286—INJURIES TO ran parallel to and in about ten feet of the SERVANT-NEGLIGENCE OF MASTER'S AGENTS track on which the defendant in error was -NOTICE OF DANGER-QUESTION FOR JURY.

Where an engine crew has sufficient infor- riding the box car, with the purpose in view mation to put them on notice that a car in- of going to the oil and water tanks to secure spector on a “kicked” car running parallel with oil and water. It was Walters' duty to inthe engine's track might leave the car and place spect the stationary cars before permitting himself in a position of danger to be struck by the engine, it is a question of fact for the jury them to leave on their journey, and it was whether the engine crew should have foreseen with this in view that he was riding one of

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