rect the jury to return a verdict sustaining track. The accident occurred about 10 the will.

o'clock at night. While no one testified that Judgment reversed, and cause remanded Cornett was intoxicated, it is apparent from for a new trial consistent with this opinion. the testimony that he had been drinking

both whisky and brandy. A few minutes

before the accident, he sat down on defend(181 Ky. 132) CORNETT'S ADM'R v. LOUISVILLE & N. ant's track at a point about 220 feet north

of the depot. At the time of the accident R. CO.

his face was in his hands, and his elbows (Court of Appeals of Kentucky. June 14,

were resting on his knees. While in this 1918.)

position he was struck by an engine draw1. RAILROADS Oww369(3)–PERSONAL INJURIES ing 32 cars. Only the wheels of the poney -DUTY TO MAINTAIN LOOKOUT.

In action for the death of plaintiff's dece- truck passed over his body. Two witnesses dent struck by defendant's train while seated saw the engine when it was about 75 feet asleep unconscious on a track infrequently used away, and endeavored to attract the attenby pedestrians within an incorporated town at tion of the deceased to the approaching train 10 o'clock at night, failure of defendant's engineer to keep a lookout did not make it error by calling to him, and also tried to reach to direct a verdict for defendant, since the duty him in time to prevent the accident. The of keeping a lookout depends not on the fact train was moving at about four miles an that the injury occurred in an incorporated town but on whether the company's track was hour, and the engineer, who was expecting used by the public in such large numbers with a signal from the rear, would first look to the knowledge and acquiescence of the company the rear and then along the track in front that the presence of persons on the track should of his engine. According to his evidence and have been anticipated. 2. RAILROADS Ow356(1)→PERSONAL INJURIES that of the other witnesses, there was a -"TRESPASSERS."

small dog near the deceased. When the engiOne who sits down upon a railroad track neer first saw the object on the track he and goes to sleep or becomes unconscious is a thought it was a hog. He was then from 30 “trespasser,” though at a point where persons are accustomed to cross the track.

to 35 feet away.

He immediately applied [Ed. Note.-For other definitions, see Words the service brakes and brought the train to and Phrases, First and Second Series, Tres- a stop just as the two small wheels in front passer.]

passed over the body of the deceased. 3. RAILROADS O400(14) – PERSONAL INJU)

[1, 2] It is first insisted for appellant that RIES-QUESTIONS OF FACT.

In an action for the death of a person struck the peremptory should not have gone because by a railroad train while asleep or uncon- the company was under the duty of maintain scious on the track, evidence as to the engineer's a lookout, and, had a proper lookout been accident after discovering decedent's peril held maintained, the peril of deceased would have not sufficient to take the case to the jury. been discovered in time to avoid the injury.

Appeal from Circuit Court, Ketcher County. This contention is based on the fact that

Action by Gideon Cornett's administrator Blackey is an incorporated town, and that against the Louisville & Nashville Railroad there was evidence tending to show that Company. From a judgment for defendant, people in large numbers frequently gather plaintiff appeals. Affirmed.

about the depot and pass to and fro across Hays & Newman and Wm. G. Dearing, all have ruled that the duty of keeping a look

the tracks. In the more recent cases we & of Whitesburg, for appellant. Morgan & Harvie and D. I. Day, all of Whitesburg, of injury was in an incorporated city or

out depends, not on the fact that the place Benjamin D. Warfield, of Louisville, and

town, but on whether the company's track Saml. M. Wilson, of Lexington, for appellee. at the place of the accident was used by the

CLAY, C. On July 17, 1915, Gideon Cor. public in such large numbers with the knowlnett was struck and killed by a train operat- edge and acquiescence of the company that ed by the Louisville & Nashville Railroad the presence of persons on the track should Company. In this action by his administra- be anticipated. C. & O. Ry. Co. v. Dawson's tor to recover damages for his death, the Adm'r, 159 Ky. 296, 167 S. W. 125; C. & 0. trial court at the conclusion of plaintiff's Ry. v. Warnock's Adm'r, 150 Ky. 75, 150 s. evidence gave a peremptory in favor of the W. 29; Corder's Adm'r v. C., N. O. & T. P. defendant. Plaintiff appeals.

Ry. Co., 155 Ky. 536, 159 S. W. 1144; C. & 0. The accident occurred in Blackey, an in- Ry. Co. v. Berry's Adm'r, 164 Ky. 280, 175 corporated town of 60 or 75 inhabitants. The S. W. 340. Here there was no proof of the town consists of several small stores on one habitual use by the public in large numbers side of the railroad and three section houses, of defendant's track at the place of the acthe depot, school, and a few scattered resi- cident. The evidence showed that the accidences on the other side. Just in front of dent occurred at 10 o'clock at night, and that the storehouses is a sidewalk, and to the only occasionally would a person use the east of the sidewalk is a street. A few feet track at the place of the accident. It is to the east of the street is the railroad therefore clear that defendant was under no duty to maintain a lookout. We may tional bank of which he became vice president, further add that one who sits down upon a his notice of the note's infirmity is notice to the railroad track and goes to sleep or becomes 3. APPEAL AND ERROR 1009(3)— REVIEW OF

national bank. unconscious is a trespasser though at a

Om

EQUITY CASES-FINDINGS. point where persons are accustomed to cross Where the proof is contradictory and the the tracks in large numbers. Lyon's Adm'r mind is left in doubt upon a question of fact, V. I. C. R. R. Co., 59 S. W. 507, 22 Ky. Law the finding of a chancellor will not be disturbed

on appeal. Rep. 1032; L. & N. R. R. Co. v. Bay's Adm'r, 142 Ky. 407, 134 S. W. 450, 34 L. R. A. (N. Appeal from Circuit Court, Scott County. S.) 678.

Action by the Manchester National Bank [3] The only question remaining for deci- against Charles T. Herndon. Judgment for sion is whether the engineer exercised ordi- defendant, and plaintiff appeals. Affirmed. nary care to avoid injuring the deceased after his peril was discovered. It is insisted Franklin and Robt. C. Talbott, both of Lex

Jas. F. Askew, of Georgetown, Robt. B.

. for appellant that the testimony of Fess ington, and Jos. P. Sadler, of Richmond, Va., Whitaker was sufficient to take the case to for appellant. Saml. M. Wilson, of Lexingthe jury, because he stated that the train ton, and W'm. P. De Saussure, of, Richmond, could have been stopped instantly by apply- Va., for appellee. ing the emergency brakes. This, however, is not the effect of his evidence. On being

MILLER, J. The appellant, the Manchesasked to tell the jury within what distance ter National Bank, is a banking corporation the train could have been stopped by apply-created under the banking laws of the United ing the emergency brakes, he replied: "In- States with its place of business in Richstantly, just like they did. They stopped it mond, Va. In June, 1913, the Manchester instantly that night.” The engineer testified National Bank instituted this action in the that the night was misty and the track slip- Scott circuit court, against the appellee, pery. He discovered the presence of deceas- Charles T. Herndon, upon five promissory ed on the track when about 30 or 35 feet notes aggregating, with interest, something away. He immediately applied the service over $8,000. The several notes which were brakes, and could not have stopped the train made the basis of the action may be briefly sooner if he had used the emergency brake. described as follows: (1) A note dated FebFairly considered, there is no conflict be- ruary 7, 1913, for $3,414.20; (2) a note dated tween Whitaker's statement and that of the February 28, 1913, for $486.63; (3) a note engineer. Though Whitaker did say that dated March 7, 1913, for $1,307.17; (4) a the train could have been stopped instantly note dated March 31, 1913, for $1,149.43; and by applying the emergency brake, he quali- (5) a note dated April 8, 1913, for $1,623.42. fied this statement by adding: “Just like These five notes did not represent original they did. They stopped it instantly that transactions, but in each instance the note night." In cases of this kind the law does was the culmination of a series of renewals. not look to bare possibilities, but only to An attachment was taken out and levied upon what could have been done under the circum- a farm of about 118 acres of land in Scott stances by the exercise of ordinary care. county, owned by Herndon. In his answer Viewing the case in this light, we conclude Herndon alleged that the second and fourth that the evidence of the engineer's failure notes above described wholly represented to exercise ordinary care to avoid injuring usury exacted from him by the bank; and the deceased after his peril was discovered that the accumulated interest contained in was not sufficient to take the case to the the first note was tainted with usury, and jury.

for that reason no interest at all can be colJudgment affirmed.

lected thereon under section 2822 of the Virginia Code of 1887. Herndon further an

swered that the Manchester National Bank (181 Ky. 117)

was not a bona fide purchaser of these notes MANCHESTER NAT. BANK v. HERNDON. for value, in due course, and without notice, (Court of Appeals of Kentucky. June 14, but that it had acquired all of them under 1918.)

such circumstances as charged it with notice 1. USURY Om 15—WHAT CONSTITUTES.

of the usury therein. Where the cashier of a bank received in his In the meantime Herndon sold his farm; own name a note for $1,000., given as part and, in order to make a title to the purchasconsideration for a loan of $3,000 from the bank, for which a note was given to the bank, er, he paid the notes sued on with interest, there was usury, where the cashier in fact aggregating $8,436.07, under an agreed order held the note for the bank.

reciting that there was still a controversy 2. BANKS AND BANKING O262_REPRESEN- between Herndon and the bank as to the lat

TATION BY CASHIER-KNOWLEDGE-HOLDER ter's right to have and retain (a) the sum of IN DUE COURSE.

Where a cashier of a state bank had knowl- $623.03, which was the accrued interest upon edge that a note held by it was usurious, and the first note sued on, which was originally was active in converting such bank into a na-I given for $3,000; (b) the sum of $514; be

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

ing the second note above described for $486.- , to Herndon by the Bank of Manchester, is 63, with the interest thereon; and (c) the supported by the proof, and that in that further sum of $1,209.80, being the fourth transaction Vaden represented his bank. note sued on, with interest, it having been It is insisted, however, that when the originally given for $1,149.42. It will thus be plaintiff as a national bank succeeded the seen that the third and fifth notes sued on Bank of Manchester and took over its ashave been eliminated from this action, and sets for a consideration it became a bona that the controversy now between the parties fide purchaser for value and without notice relates alone to the first, second, and fourth of the usury contained therein. Vaden tesnotes above described.

tified that he did not enter the note for $1,Herndon contends that, when he executed 000 on the books of the Bank of Manchester, the first note, which was originally given for but put it in an envelope and kept it in his $3,000, the bank required him to execute to possession with other assets of the Bank of it, as a bonus for the loan, another note for Manchester until some time in February, $1,000, which is now the fourth note sued on, 1910, when he took it out of the envelope which, with interest, amounts to $1,209.80, and turned it over with the other assets to and, further, that since the note for $3,000 the Manchester National Bank, and that the embraces àccrued interest aggregating $623.- Manchester National Bank did not allow him 03, the bank is not entitled to recover ei- anything for it, but placed it to the credit ther $1,209.80 or $623.03, since they both rep- of the Bank of Manchester. Clearly the resent usury upon the original note for note for $1,000 was never the property of $3,000. This claim, as above stated, is based Vaden; it belonged to the Bank of Manupon the Virginia Code, which forfeits all chester, and was turned over, along with interest where usury has been charged. the other assets of that bank, to its succes

[1] The appellant, the Manchester Nation- sor, the plaintiff in this action. al Bank, is the successor of the Bank of Man

[2] And it is further claimed that, although chester, a state bank. The original note for Vaden was the vice president of the appellant $3,000 was given to the Bank of Manchester. and was the active man in converting the Simultaneously with the execution of the Bank of Manchester into a national bank, note for $3,000 to the Bank of Manchester, his notice of the note's infirmity cannot be and, according to Herndon's claim, as a part imputed to the appellant bank because Vaof the transaction, he executed the note for den was acting in his own behalf. This, how$1,000 '(now $1,209.80) to Clarence Vaden, who was then the cashier of the Bank of ever, erroneously assumes that Vaden was

acting for himself. We think the circuit Manchester. The appellant contends that the note for $1,000 represented a private that Vaden represented both banks, and that

court was fully justified in its conclusion transaction between Herndon and Vaden, and he did not represent himself at any time in that the Bank of Manchester had nothing to do with it; and that it was finally bought that being true, the rule that when a bank

connection with the note for $1,000; and, by the appellant for value and without notice of its infirmity. The circuit court sustained officer is personally interested in a note or the contention of Herndon as to each of other matter pertaining to the bank's affairs these claims by directing a recovery there- his knowledge is not to be imputed to his of from the bank, which now appeals, com- bank because his interest is best served by plaining that the court was in error in 'allow- concealing it has no application here. This ing Herndon to recover any one of these question was considered at length by this claims. It is clear that Herndon's right to court in the late case of the Ohio Valley recover the first item of $623.03, which is the Panking & Trust Co. v. Citizens' National accrued interest on the note for $3,000, is de- Bank, 173 Ky. 640, 191 S. W. 433, where it pendent upon his right to recover the third was pointed out that the exceptional rule, item in controversy, which represents the which does not impute the officer's knowloriginal alleged bonus note for $1,000, which, edge to his corporation when the officer is when finally paid, amounted to $1,209.80. acting in his own interest does not apply If the note for $1,000 was given as a part when the same officer acts for both corporaconsideration for the original loan of $3,000, tions. See, also, Citizens' Savings Bank v. it clearly constituted usury which, under the Walden, 52 S. W. 953, 21 Ky. Law Rep. 739; Virginia Code, would exclude both the first Mutual Life Ins. Co. v. Chosen Friends and the last items now in controversy.

Lodge, 93 S. W. 1044, 29 Ky. Law Rep. 394. A great deal of testimony has been taken Vaden was not only the cashier of the Bank upon the genesis of the $1,000 note, and sev- of Manchester, but he was, perhaps the most eral explanations have been suggested in active of all concerned in the reorganization connection with this transaction. Without, of that bank as the Manchester National however, going into a detailed statement of Bank, and was its vice president. Under these numerous transactions, we think the these conditions Vaden's knowledge will be finding of the chancellor, to the effect that imputed to appellant; and, thus having nothe note for $1,000 was given as a part of the tice of the infirmity in the notes, it was not,

Law, a holder in due course. Subsection 52 of these notes is of a renewal, in which he is of section 2841A of the Code of Virginia (Va. credited with the proceeds of the new notes Acts 1898, p. 896).

and charged with the payment of an old one. The remaining item in dispute consists Vaden testified that he was under the imof a note originally drawn on December 8, pression the notes were discounted and the 1910, for $428.50, which, with interest there- cash paid over the counter for them; but on, aggregates $514.69. This item of $428.50 Herndon, Mrs. Benet, and Bradley, the only was made up of two notes for $150 each; persons who participated in this transaction some of the accrued usurious interest on the upon the part of the defendant, all testified notes for $1,000 and $3,000, respectively, that they never, at any time, received cash amounting to $100.75; interest on the two over the counter of the bank, except by notes for $150 each amounting to $16.63; check. Furthermore when called upon to and an overdraft of $11.12. In giving judg- give his note for $428.50, in which these two ment upon this item, the circuit court gave notes of $150 each were consolidated with the appellant a credit for the overdraft of other items, as above stated, Herndon pro$11.12. That portion of this item is there tested, claiming there would have to be an fore not now in controversy.

adjustment of the matter upon a more thorThe chief controversy is over the two notes ough examination. for $150 each. Appellant contends that it At the time these notes were executed paid full value for these notes, and without Herndon was at college, having little ready notice of any infirmity embraced therein; money, but certain expectations from the and, without attempting, in any way, to di- estate of his father in Kentucky, and also rect the court's attention to the particular from the estate of his grandmother. In orproof relating to this item, in its brief it der to get ready money from both of these merely invites the court to examine the rec- sources, Bradley arranged with Vaden for ord, consisting of more than a thousand pag- Herndon to overdraw his account, giving es of proof, "to determine whether all or Vaden from time to time a number of small any of the items that went into the note for notes for the bank's protection. It seems $428.50 were without consideration, as claim that these notes were not discounted, but ed by the defendant Herndon." As to its were held by Vaden for a short time until contention that it acquired this note for val- Herndon received sufficient money from the ue, without notice of its infirmity, and in due sources above indicated, which was placed course, appellant stands in the same posi- to his credit, thus covering his overdraft at tion it occupied with respect to the other the bank. Vaden then returned the notes to two items, and what has been said above Herndon, with the exception of these two for upon those subjects applies equally here. $150 each. Herndon remained at college The proof as to this item is somewhat con- until December, 1910, and received no statefused, due probably to the appellant's ments from the bank until he called for them method, after the merger of the two banks, in April, 1911, when he got all of his monthof carrying Herndon's account partly on the ly bank statements at one time. Upon exbooks of the appellant, of which it sent him amining these statements, Herndon claimed statements, and partly on the books of the he was entitled to this credit. Bank of Manchester, then in the appellant's

[3] While the proof upon this item is not possession, but of which it sent Herndon no entirely satisfactory upon either side, we do statements. At first Herndon seems to have not feel justified in reversing the judgment. been under the impression that these two Where the proof is contradictory and the notes for $150 each had been superseded mind is left in doubt upon a question of by two subsequent notes aggregating about fact, the finding of the chancellor will not be $2,500; but, after a more complete investi- disturbed. Byassee v. Evans, 113 Ky. 415, gation Herndon became satisfied that he was 136 S. W. 857; Kirkpatrick, Ex'r, v. Rehmistaken in his first impression. He com- koph, 144 Ky. 134, 137 S. W. 862; Dotson plained that he had never been credited with v. Norman, 159 Ky. 786, 169 S. W. 527; Herthe proceeds of these two notes; and, the zog v. Gipson, 170 Ky. 325, 185 S. W. 1119. books of the bank showed that the first entry Judgment affirmed.

(181 Ky. 148)

red the railroad company's line is double LOUISVILLE & N. R. CO. v. MULLINS' tracked and the block signal system is mainADM’X.*

tained. Deceased, who was 39 years of age, (Court of Appeals of Kentucky. June 14, had been in the company's employ for 13 1918.)

months, was a signal maintainer, and it was 1. COMMERCE 27(8)—FEDERAL EMPLOYER'S his duty to look after, repair, and maintain LIABILITY ACT-NATURE OF SERVICE-"IN- the electric signals on that portion of the TERSTATE COMMERCE."

A railway signal maintainer, who was fur. company's road extending from Berea in nished by his employer, an interstate carrier, Madison County to Sinks in Rockcastle a tricycle to make his rounds, was engaged in county, a distance of 20 miles. From Berea interstate commerce when returning to his to Snider, where deceased lived, is about 5 home after leaving the last signal, within the meaning of the federal Employers' Liability Act miles, and from Snider to Sinks about 15 (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 miles. Mullins tunnel, where the deceased ČU. S. Comp. St. 1916, SS 8657–8665]).

was killed, is about 1 mile north of Sinks [Ed. Note. For other definitions, see Words and 14 miles from Snider. On the morning and Phrases, First and Second Series, Inter- of the day of the accident, deceased left his state Commerce.] 2. MASTER AND SERVANT 137(7)—INJURIES home at Snider about 9 o'clock to attend to TO SERVANT-DUTIES OF MASTER.

his duties. For this purpose he was furnishWhile it is true that a railway signal mained a tricycle. The last signal on the southtainer on the track with a tricycle must exer- ern end of his section was about 100 yards cise ordinary care to learn of the approach of below Mullins station. A few minutes betrains and keep out of their

way, the railroad below Mullins station. also owes him the duty to maintain a head-fore he was killed, he was seen in a telelight on its engines in the nighttime.

phone booth immediately south of the tunnel. 3. NEGLIGENCE 101-EMPLOYER'S LIABIL- When he reached the mouth of the tunnel ACT-CONTRIBUTORY NEGLIGENCE-EF

on his tricycle, he was struck by the comFECT.

Under federal Employers' Liability Act, pany's fast passenger train from the south, contributory negligence of a railroad employé and his body was found in the tunnel about on the tracks with a tricycle in not ascertaining 60 feet from the mouth. His tools and porthat a train was due did not defeat his cause

of tions of his tricycle were scattered about action for negligence of the railroad in not hav- | the tunnel. The accident occurred at 4:28 ing a headlight on the engine in the nighttime, p. m. December 17, 1915, and it was then but only lessened the damage. 4. MASTER AND SERVANT w226(1)—ASSUMP- Though the train operatives testified to the

dark and rainy. The train was on time. TION OF RISK.

A railway signal maintainer on the track contrary, there was evidence to the effect with a tricycle does not assume the risk of that the headlight on the engine was not the master's negligence in not furnishing a head-burning at the time of the accident. light for 'its engines, unless he knows of the negligent act, because the danger itself was cre

Besides other instructions on the measure ated and concealed by the negligent act.

of damages, contributory negligence, assumAppeal from Circuit Court, Rockcastle ed risk, etc., the trial court instructed the County.

jury, in substance, that it was the duty of Action by Frank Mullins' administratrix the railroad company to keep and maintain against the Louisville & Nashville Railroad a headlight, properly lighted, upon the front Company. Judgment for plaintiff, and de- of its engine when running in the dark, fendant appeals. Affirmed.

and if they believed from the evidence that

the deceased, Frank Mullins, at the time Ashby Warren, of Louisville, John W. he was struck and killed by defendant's Brown and C. C. Williams, both of Mt. train, was upon defendant's track, in the Vernon, and Benjamin D. Warfield, of Louis-usual course of his employment, and that it ville, for appellant. L. L. Walker, of Lan-was dark and the defendant's agents and caster, and Bethurum & Lewis, of Mt. Ver- employés in charge of the engine negligently non, for appellee.

failed to have the headlight on the front of

the engine burning in its usual and customCLAY, C. Frank Mullins, an employé of the Louisville & Nashville Railroad Company, ary manner, and that by reason thereof was struck by one of its trains and killed. plaintiff was struck and killed by said train, He was survived by his widow and three then they should find for plaintiff. infant children. His widow qualified as his

[1] The point is made that the case is not administratrix, and brought this suit under governed by the federal Employers' Liability the federal Employers' Liability Act to re-Act, because the petition alleges that the decover damages for his death. The jury cedent was en route to his home at the time returned a verdict in favor of plaintiff for of the accident, and there was no evidence $5,000, and apportioned $2,000 to the widow tending to show that he was authorized to and $1,000 to each of the infant children. use the tricycle for that purpose. We are Judgment was entered accordingly, and the not, however, disposed to take such a narrow railroad company appeals.

view of the question. The tricycle was furOn the division where the accident occur- Inished decedent for the purpose of perform

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