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 As well [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 implicaHand v. Savannah Ry. Co., 21 obtain their rights under the contract in tion of law. question. Yet, had such been the course of S. C. 162; Rives v. Patty, 74 Miss. 381, 20 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 doctrine, 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. It is not claimed by the appellants that they had any contract with or employment from the appellees; but it is contended that, because the appellees agreed to and effected the compromise offered by the purchasing bank, after appellees had been notified that appellants would look to them for a fee in that event, there was such an acceptance of their services as would operate to create legal liability by implication of law. But what services did appellants perform for appellees? None at all, as we view it, for which the law imposes liability. The appellants had been [3] This latter case may also be referred to as demonstrating conclusively the inapplicability of section 489, Kentucky Statutes, to the state of facts here shown. It was explained in that case that the section mentioned applies where one party in interest recovers a fund which necessarily inures to the benefit of others jointly interested therein; the statute effecting a sort of contribution among them, to the end that all persons jointly interested in and benefited by the recovery shall bear their proportion of the expenses incurred in securing the benefits thereof. See, also, Clark v. Pepper's Adm'r, 132 Ky. Though a trespasser on a railroad track was guilty of contributory negligence, recovery for his death may be had where those in charge of a train did not use reasonable care after discovering his position of peril. But in the case at bar we have simply | 4. RAILROADS 390-INJURY TO PERSONS ON TRACK-HUMANITARIAN DOCTRINE. three plaintiffs suing a defendant against whom other persons have similar claims. The defendant compromises with all of them; and the attorneys for the plaintiffs first suing seek a fee from those claimants who were not their clients, but who were, in point of fact, represented by other attorneys. It may be that those claimants who did not sue originally (but who came in later by intervention) were benefited by the services performed by the attorneys whom the plaintiffs had employed; but there was no legal liability thereby created. Much has been made to appear in the record tending to show that certain of the claimants who did not sue had such relations with the plaintiffs, or some of them, as would have rendered the employment of a common attorney injudicious; and much has been said concerning the fact that the appellees who did not sue were nevertheless availing themselves of the constant advice of other attorneys than appellants during the course of the matters in question; but we have not found it necessary to consider or discuss these contentions in detail, in view of the conclusions which we have reached, as hereinbefore stated. Be these matters as they may, appellees are not liable to appellants for compensation under the facts disclosed by the record and here conceded. The judgment is affirmed. Cent. Dig. §§ 1324, 1325; Dec. Dig. 390.] Action by William Jones' Administrator against the Cincinnati, New Orleans & Texas Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed. Edward Colston and John Galvin, both of Cincinnati, Ohio, and Tye, Siler & Gatliff, of Williamsburg, for appellant. R. L. Pope, of Williamsburg, W. F. Hinkle, of Whitley City, and Rose & Pope, of Williamsburg, for appellee. CLAY, C. In this action by the administrator of William Jones against the Cincinnati, New Orleans & Texas Pacific Railway Company to recover damages for his death, there was a verdict and judgment in favor of plaintiff for $1,500. The railroad company appeals. The only ground urged for reversal is the failure of the trial court to give a peremptory instruction in favor of the defendant. The facts are these: Jones was killed at 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 between the towns of Silverville and Pine Knot, CINCINNATI, N. O. & T. P. RY. CO. v. which are located about 2 miles apart. At JONES' ADM'R. (Court of Appeals of Kentucky. Nov. 19, 1915.) [Ed. Note. For other cases, see Railroads, 2. RAILROADS 376-INJURY TO PERSONS ON TRACK-TRESPASSER-DUTY OF ENGINEER. the place of the accident the defendant's road is double-tracked. The east track is called the north-bound main and the west track is Trains going called the south-bound main. north run on the north-bound main. The train which struck decedent was going north at the rate of 35 miles per hour. Decedent's home was east of Silverville. Decedent had left his home and walked to the railroad, which runs to the county road. After reaching the railroad he proceeded north on his way to Tow Wad mines, a mining camp south The county road runs parof Pine Knot. allel with the railroad from Silverville to the place where Jones was going to work. On each side of the railroad was a wire fence, and it was the purpose of the decedent to leave the railroad at a point 300 or 400 yards north of where he was struck. before reaching the point where decedent was killed there is a sharp curve on the railroad, which is estimated to be from 14 to 17 rail lengths, or a distance of from 462 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. 400.] It further appears that a train like the one Where a railroad engineer discovers a trespasser on the track in a position of peril, and the distance is too short to stop the train, it is negligence for him to fail to give the alarm signal. [Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1275-1279; Dec. Dig. 376.] 3. RAILROADS 400-INJURY TO PERSONS ON TRACK-JURY QUESTION. Just 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. O. & 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, for plaintiff a number of witnesses testified that they had their attention directed to the train and were in a position to hear, and did not hear, any alarm blast until after the train had stopped. [1] It may be conceded that the evidence fails to show that the track at the place of the accident was used by the public in such large numbers as to impose on the company the duty of having the train under reasonable control, and of keeping a lookout and giving timely warning of its approach; in other words, decedent was a trespasser, and, that being true, the company owed him no duty other than to use ordinary care in the exercise of all reasonable means at its command, consistent with the safety of the train, to avoid injuring him after his peril was discovered. C. & O. Ry. Co. v. Montjoy's Adm'r, 148 Ky. 279, 146 S. W. 371. [3] The case therefore turns on whether or not the alarm blast was sounded. The engineer says emphatically that it was. On the other hand, Henry Vahle, Mrs. Gillimore, Burrel Wilson, Mary Davenport, Bob Davenport, and Cal West all say that they were in the vicinity of the scene of the accident and had their attention directed to the train; that they knew what an alarm whistle was, and did not hear the alarm whistle sounded until after the train had stopped. It is the rule in this state that evidence to the effect that the blowing of a whistle was not heard by persons who were in a position to hear it if it had been blown, though of a negative character, presents an issue of fact triable by the jury, and is sufficient to sustain a verdict. C. & O. Ry. Co. v. Nipp's Adm'x, 125 Ky. 49, 100 S. W. 246, 30 Ky. Law Rep. 1131; L. & N. R. R. Co. v. Molloy's Adm'x, 107 S. W. 217, 32 Ky. Law Rep. 747; [2] The company insists that, as the en- C. & O. 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 manifest that the soundng of the whistle was a more effective means to avoid injury than the application of the emergency brakes, and, It follows that defendant's motion for a peremptory instruction was properly overruled. 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.) (Supreme Court of Texas. Nov. 3, 1915.) 1. DAMAGES 208-ACTIONS- QUESTIONS FOR JURY. explosion was caused by its negligent handling of the car, returning a verdict in Johansen's favor in the sum of $12,500; the verdict itemizing $2,500 of that amount as al In an action by a member of a city fire de-lowed for lost time, an issue of damages subpartment against a railway company for inju-mitted in the charge. The honorable Court ries due to an explosion of combustible material in a box car, where the evidence was conflicting as to whether money paid by the city to the fireman while disabled was paid as wages or as a gratuity, and where there was evidence that he actually suffered loss of time, the issue of damages for lost time was properly submitted to the jury. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 54, 64, 68, 132, 144, 145, 205, 220, 533, 534; Dec. Dig. 208.] 2. EXPLOSIVES 8-INJURIES FROM EXPLOSION-CONTRIBUTORY NEGLIGENCE. A railway company stored a car containing combustible material in its yard. Some of the material exploded, causing a fire, which was followed by other explosions. The fire department was called, and plaintiff, a member thereof, was injured by an explosion occurring after his arrival at the fire. Held that, inasmuch as the negligence of defendant was the proximate cause of the explosion setting the fire, as well as the subsequent one by which plaintiff was injured, the negligence of defendant was a continuing one, and plaintiff was not negligent in entering upon the premises. [Ed. Note. For other cases, see Explosives, Cent. Dig. §§ 4, 5; Dec. Dig. 8.] Error to Court of Civil Appeals of Eighth Supreme Judicial District. Action by Frederick Johansen against the Houston Belt & Terminal Railway Company for personal injuries. Judgment for plaintiff, affirmed by the Court of Civil Appeals upon remittitur (143 S. W. 1186), and defendant brings error. Affirmed. of Civil Appeals ordered a remittitur of $840 of the damages given for lost time, the judgment to be affirmed upon the remittitur being filed; and it was so filed. The writ of error was allowed on the petition of the railway company, on the ground there urged, that the undisputed evidence showed that during the whole of the time for which damages were allowed on account of lost time, that is, from the date of the injury down to the time of the trial, Johansen had received the same, and during a part of the time a greater, salary than he was receiving at the time of the injury. The charge of the court instructed the jury upon this feature of the damages that the plaintiff would only be allowed the reasonable value of time actually lost by him down to the time of the trial as the result of his injury, but that no deduction should be made of any amount paid him by the city as a mere matter of grace or gratuity. If on account of his injury any time was actually lost by Johansen during this period, a finding favorable to him upon the other issues submitted in the charge would have entitled him to damages in the amount of its reasonable value; and if during such period he was paid by the city, as a gratuity or bounty, the same or a greater salary than he was receiving when injured, the railway company 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 the loss of such time. This fully warranted the submission of the issue of lost time as a part of the recoverable damages. PHILLIPS, C. J. [1] The suit was by Johansen, the defendant in error, on account of personal injuries suffered by him while in the 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 [Ed. Note.-For other cases, see Master and 286-INJURIES TO OF EMPLOYER'S ing toward stationary cars at an excessive speed and was injured by running onto a parallel track before the engine which had kicked his car and which was approaching without warning, whether the engine crew had notice that the inspector would alight and run across the track held for the jury under the evidence. Servant, Cent. Dig. §§ 1001, 1006, 1008, 1010[Ed. Note.-For other cases, see Master and 1015, 1017-1033, 1036-1042, 1044, 1046-1050; Dec. Dig. 286.] 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, 1010the light company's property; and it was 1015, 1017-1033, 1036-1042, 1044, 1046-1050; held that the latter was under no duty of Dec. Dig. 286.1 anticipating its use by him, or, in particular, 3. MASTER AND SERVANT such as would create the situation which SERVANT NEGLIGENCE 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 receivIn 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 for any act of negligence on its part causing him injury, since it was under the duty of refraining from such an act. If, for illustration, before any explosion had occurred, he had been engaged in extinguishing the fire in this car, and another car had been negligently run into it by the company, causing the explosion, the issues of contributory negligence and assumed risk aside, there could be no question as to its liability. While the act which caused the original explosion was committed before Johansen reached the premises, in the nature of the case the successive explosions, set in motion by the original act, made it one of a continuing nature; and if it was a negligent act, as it was within the province of the jury to determine, the fact that Johansen went upon the premises after its commission would not affect the question. His situation, as well as the duty of the railway company, was the same as if he had reached the premises before the first explosion occurred and it had caused his injury. It therefore cannot be said that he went upon the premises dangerous at the time and took them as he found them. 4. TRIAL 139-TAKING CASE FROM JURY. Unless all reasonable minds would agree that the evidence is insufficient to establish the not warranted in taking the case from the jury. facts necessary to a cause of action, the court is [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 332, 333, 338-341, 365; Dec. Dig. & 139.] Error to Court of Civil Appeals of Fourth Supreme Judicial District. Action by Frank S. Walters against the International & Great Northern Railroad Company. Judgment for plaintiff was affirmed by the Court of Civil Appeals (165 S. W. 525), and defendant brings error. Judgment affirmed. Wilson, Dabney & King, of Houston, for plaintiff in error. Llewellyn & Foster, of The judgment of the Court of Civil Ap- Conroe, and J. W. Parker, of Houston, for peals is affirmed. defendant in error. YANTIS, J. Walters, the defendant in er INTERNATIONAL & G. N. R. Co. v. WAL- ror, recovered a judgment against the plain TERS. (No. 2782.) (Supreme Court of Texas. Nov. 10, 1915.) 1. MASTER AND SERVANT 137-INJURIES TO SERVANT-NEGLIGENCE OF MASTER'S AGENTS -NOTICE OF DANGER. Where a railroad car inspector was riding upon a car which had been "kicked" down to ward others standing still, and the crew of the engine which had kicked it were not in possession of sufficient facts from which an ordinarily prudent person under the same circumstances would have anticipated that the car inspector might alight from the kicked car and enter upon the track on which the engine was moving, or near enough thereto to receive injury from such engine, the engine crew was under no duty to ring the bill or blow the whistle. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 269, 270, 273, 274, 277, 278; Dec. Dig.137.] 2. MASTER AND SERVANT 286-INJURIES TO SERVANT-NEGLIGENCE OF MASTER'S AGENTS -NOTICE OF DANGER-QUESTION FOR JURY. Where an engine crew has sufficient information to put them on notice that a car inspector on a "kicked" car running parallel with the engine's track might leave the car and place himself in a position of danger to be struck by the engine, it is a question of fact for the jury whether the engine crew should have foreseen tiff in error for personal injuries inflicted upon him while he was engaged in the service of said company as a car inspector and repairer at Sellars station, where there were switching yards containing nine side tracks. At the time of his injury he was riding on the side of a box car that had been kicked, with eight others, at a rate of speed alleged to be excessive, for the purpose of coupling them with several stationary cars further down the switch track, with the purpose in view of completing the train in this way and then continuing the train and the engine attached thereto to Houston. The engine that was pulling said train was used in making the kick referred to. After doing which, it then entered a side track which ran parallel to and in about ten feet of the track on which the defendant in error was riding the box car, with the purpose in view of going to the oil and water tanks to secure oil and water. It was Walters' duty to inspect the stationary cars before permitting them to leave on their journey, and it was with this in view that he was riding one of |