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ion as lays down a contrary rule is 'now, Civ. Code Prac. & 694, as to sale of realty for withdrawn.

debt, as amended by acts 1916, c. 105. [2] The court is further of the opinion 5. JUDICIAL SALES (39—INADEQUATE PRICE. that in a suit to have property, alleged to

Judicial sale of land worth $1,500 for $916

was at a grossly inadequate price. have been omitted, assessed, the burden is on 6. JUDICIAL SALES O 40 - SETTING ASIDE — the commonwealth to show that there was INADEQUACY OF PRICE. omitted, from the report made by the cor- Though inadequacy of price alone is not a poration, property that should have been re- the price paid is greatly disproportionate to the

sufficient ground to set aside judicial sale, when ported, and the nature and value of such actual value, only slight additional circumstancproperty, and when it does this, then the es are required to make it the chancellor's duty burden is on the corporation to show, by to set aside the sale. clear and convincing evidence, that, notwith-7. JUDICIAL SALES ww40 - INADEQUACY OF

PRICE-SETTING ASIDE. standing the omission, the board in making

Where judicial sale of only a sufficiency of its assessment considered and assessed the the land to raise the amount of a prior lien, value of the omitted property on information about half the advertised sum of $897, was augathered from sources outside of the report. as a whole to plaintiffs for the inadequate price

thorized, but the land, worth $1,500, was sold Hillman Land & Iron Co. v. Comm., 148 Ky. of $916, merely sufficient to satisfy the amount 331, 146 S. W. 776, L. R. A. 1915C, 929; of plaintiffs' lien debts against the land, to the Kentucky Heating Co. v. Comm., 174 Ky. 142, exclusion of an inferior lien held by a defend

ant, and it was certain the land would bring $1,192 S. W. 4.

500 on another sale, and that not only plaintiffs, [3] If the court in which the proceeding is but defendant, would realize the full amount of instituted finds that the property sought to their indebtednesses, with something over, the be assessed was omitted, then the court view of the circumstances and the inadequacy should determine, from a consideration of of the price. the report made by the corporation to the

Appeal from Circuit Court, Washington assessing board and the assessment made by

County. the board and such other pertinent and com

Action by D. B. Elliott and another against petent evidence as may be offered, in what c. 0. Durham and J. A. Young, wherein the amount, if any, the assessment made by the first defendant's land was sold in satisfacboard should be increased by reason of the tion of plaintiffs' judgment against him, value of the property found to be omitted, and defendant filed exceptions to the report and should certify the increase so found in of sale, which was confirmed, and, from the excess of the valuation fixed by the board, judgment of confirmation and the original in the manner provided in the statutes.

judgment against him, defendant appeals. For the reasons stated, the petition for Judgment confirming sale set aside, and that rehearing is sustained, and the opinion mod-part of the original judgment against defendified as indicated.

ant based on notes not due reversed, and

cause remanded. (180 Ky. 724)

W. O. McChord, of Springfield, for appelDURHAM v. ELLIOTT et al.

lant. W. F. Grigsby and J. H. McChord, (Court of Appeals of Kentucky. May 28, 1918.) both of Springfield, and T. B. McGregor, of 1. PLEADING 312 - EXHIBITS — CONFLICT Frankfort, for appellees. WITH ALLEGATIONS. In a suit on notes, the petition, filed Sep

CLARKE, J. In the suit of People's Detember 15, 1916, making part of itself the notes, none of which were due until January 1, 1917, posit Bank against him, J. A. Young became did not state a cause of action, since if an ex- the purchaser of 70 acres of land, and in payhibit referred to and filed contradicts an alle mient therefor executed two purchase-money gation of the pleading, the exhibit will control the allegation, unless it be expressly impeached bonds for $375 each, due in 6 and 12 months, or explained by the facts stated in the pleading with appellees, D. B. and W. B. Elliott, as 2. COSTS Omw 50FAILURE TO DEMUR.

sureties thereon. Three days after the first By reason of defendant's failure to demur of these bonds became due, Young, by written to the defective petition, he is liable for all assignment, transferred his purchase of the costs. 3. PRINCIPAL AND SURETY E 185—RIGHT OF land to appellant, C. 0. Durham, in considSURETY INDEMNITY

PRINCIPAL AND eration of the latter's agreement to satisfy TRANSFEREE.

the purchase-money bonds "and other valuWhere the purchaser of land executed two able considerations,” which assignment was purchase-money bonds, with sureties, and transferred the land to one who agreed to satisfy the filed in that action and an order entered, dibonds, but who failed to pay one of them, so recting the court's commissioner to convey that the sureties were required to pay it, the the land to Durham when he had paid the purchaser and his transferee were liable to the

purchase-money bonds. Durham paid the sureties for the amount they paid in satisfaction of the bond.

first bond, then due, and took possession of 4. JUDICIAL SALES 1-SALE TO DISCHARGE the land, but he failed to pay the second bond LIEN.

due April 25, 1916, and appellees, being sureWhere a sum was a prior lien on the land ties thereon, were required to pay same, involved, it was not error to order a sale of enough of the land to pay the item before notes which they did September 9, 1916. As a part secured by an inferior lien became due, under of the consideration of the assignment of the

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

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purchase of the land to Durham, he execut- fendant and J. A. Young, to whom the notes ed three notes to Young for $202.8623 each, were executed, that they were to become due due January 1, 1917, January 1, 1918, and and payable upon the failure of the defendJanuary 1, 1919, respectively. The first two ant to pay any part of the purchase price of 'these notes Young assigned to D. B. Elli- of the land when due, and that the purchase ott. In each of the notes is a provision that money bond due April 25, 1916, was a part all shall become due and payable upon the of the purchase price, and defendant had failfailure to pay any one when due. On Sep-ed to pay it when due, but this allegation is tember 15, 1916, appellees instituted this ac- in direct conflict with the provision of the tion against Durham, in which the above notes. An exhibit, if in conflict with the alfacts are recited, and the two notes owned legations of a pleading, cannot aid the pleadby D. B. Elliott are filed and made part of ing, but may render it bad; and if an exhibit the petition, and it is further alleged all of referred to and filed contradicts an allegathe notes executed by Durham were, by his tion of the pleading, the exhibit will control agreement with Young, to become due and the allegation, unless the exhibit be expresspayable at once, if he failed or refused “toly impeached or explained by the facts stated pay any of the unpaid purchase money" when in the pleading. Bush v. Madeira's Heirs, due. Judgment was asked against Durham 14 B. Mon. 172; Newman's Pleading and for the $405.80, with interest, which plain- Practice (3d Ed.) vol. 1, $ 204c; Black v. tiffs were paid as sureties in satisfaction of O'Hara, Adm'r, 175 Ky. 623, 194 S. W. 811. purchase-money bond in the bank case, and in the instant case, the exhibits contradict which defendant had agreed but failed to the allegations of the petition, and being unpay, for the amount of the notes assigned by impeached, it follows that, the pleading setYoung to D. B. Elliott for $202.86 each and ting up these two notes did not state a cause interest, and that the $405.80 be adjudged a of action, and the judgment to that extent first lien and the total of the two notes a is erroneous and must be reversed. Martin second lien on the 70 acres of land, and that v. Ky. Lands Investment Co., 146 Ky. 525, it be sold in satisfaction of the judgment. 142 S. W. 1038, Ann. Cas. 1913C, 332; StampJ. A. Young was made a defendant, and re- er v. Forman-Earle Co., 158 Ky. 324, 164 S. quired to set up his lien note, the third of W. 937. the series executed to him by Durham, and [2] By reason of the failure of the defendthis he did by answer and cross-petition filed ant to demur to the defective petition, he is November 3, 1916, in open court. Upon the liable for all costs incurred. Moore v. Moxsame day the defendant, Durham, having ey, 39 S. W. 420, 19 Ky. Law Rep. 160; Combs been summoned and having failed to answer v. Pridmore, 43 S. W. 681, 44 S. W. 107, 19 the petition, a default judgment was entered Ky. Law Rep. 1934; Bush v.

.

Louisville against him as prayed in the petition. The Trust Co., 73 S. W. 775, 24 Ky. Law Rep. note of cross-petitioner was adjudged a lien 2182; Civil Code, $ 93, subsec. 2. upon the land of equal rank with the notes [3, 4] The petition, however, does state owned by plaintiffs but inferior to their lien a cause of action with reference to the $105.for the $405.80 they paid in satisfaction of so, which plaintiffs as his surety paid in the purchase-money bond in the bank case, satisfaction of the purchase-money bond exeand the land was ordered sold in satisfaction cuted by Young in the bank case, and which of plaintiffs' judgment. In pursuance there- Durham in the purchase of the land from of the master, as directed, after appraisement Young had obligated himself to pay, and as at $1,300, sold the land as a whole on Novem- to this item the judgment is not erroneous. ber 27, 1916, to the plaintiffs for $916. De- As this sum was a prior lien upon the land, fendant filed exceptions to the report of sale, it was not error to order a sale of sufficiency upon the trial of whieh the sale was confirm- of the land to pay this item before the notes ed; and he has appealed from that judgment secured by an inferior lien became due. Civil and the one entered against him on Novem-Code, $ 694, as amended, Acts 1916, p. 656. ber 3, 1916.

[5-7] 2. Among the exceptions to the re[1] 1. The only ground relied upon for a port of sale we need notice but two, viz. reversal of the judgment of November 3, that the price at which the land sold was 1916, and in fact the only ground upon which grossly inadequate, and that the commishe could have relied, as that was a default sioner, in advertising the amount of debt judgment, is that the petition did not state and costs to be made, named an amount a cause of action, in that the two notes of greatly in excess of that to be realized un$202.86 each are shown by the petition not der the judgment. to have been due when the petition was filed Upon the first proposition, the defendant and the judgment was entered. In this he introduced proof to show that the land, is correct, because, by the terms of the notes which was appraised at $1,300 before the filed with and made a part of the petition, sale and sold for $916, was upon that day none of them was due until January 1, 1917, of the market value of $1,500, and tendered while the petition was filed September 15, a bond of his father-in-law, Robert Matting1916, and the judgment entered on November ly, with surety conceded to be good for the 3, 1916. It is true that there is a charge in amount; that if a resale should be ordered

ness.

sition to this, the plaintiffs introduced sever- | railway while dumping ties into a fill, evidence al witnesses to show that the land was not held to show that the ties and other rubbish worth more than $1,000 to $1,050, and one it safer.

were put into the fill to strengthen and make witness who said that it was worth only $700 3. COMMERCE em 27(8)—FEDERAL EMPLOYERS' or $800. The fact that the land was apprais- LIABILITY ACT – ENGAGEMENT IN INTERed by disinterested landowners on the day STATE TRANSPORTATION. of the sale at $1,300 and in the bank case at

If old ties were being thrown over an in$1,400, in connection with the offer and bond strengthen and make it safer for use in trans

terstate railway's embankment or fill to of Mattingly to bid $1,500 is convincing that portation, the railway's servant, when injurit was worth that sum, and that the sale to ed in such work, was engaged in interstate plaintiffs at $916 was at a grossly inadequate transportation, or in work so closely related price. Inadequacy of price alone, however, 4. COMMERCE 27(5)—FEDERAL EMPLOYERS'

.

On is not sufficient ground to set aside a sale.

LIABILITY ACT - ENGAGEMENT IN “INTERStump v. Martin, 9 Bush, 285. But when STATE COMMERCE.' the price paid is greatly disproportionate to To entitle the injured servant of a railway the actual value of the property, only slight bility Act, it is not indispensable that the

to recover under the federal Employers' Liaadditional circumstances are required to servant should have been engaged in interstate make it the duty of the chancellor to set transportation in the sense that he was asaside the sale. Bean v. Haffendorfer, 84 Ky. sisting in the operation of a train engaged in 685, 2 S. W. 556, 3 S. W. 138, 8 Ky. Law such commerce, or in the repair of trains, fixRep. 739; Columbia F. & T. Co. v. Bates, 74 was at the time necessary in the conduct of

tures, appliances or tracks, the repair of which S. W. 248, 24 Ky. Law Rep. 2412; Morris v. interstate transportation business; it being McCadden, 63 S. W. 435, 23 Ky. Law Rep. sufficient if he was engaged in work so closely 539; Costigan v. Truesdale, 119 Ky. 70, 83 related as to be practically a part of such busiS. W. 98, 26 Ky. Law Rep. 971, 115 Am. St.

[Ed. Note. For other definitions, see Words Rep. 241.

and Phrases, First and Second Series, InterThe land was advertised and sold as a state Commerce.) whole for the purpose, as stated in the ad- 5. APPEAL AND ERROR Om 1064(1)-INSTRUCvertisement, of raising $897, whereas, at that TION-HARMLESS ERROR. time, a sale was authorized for only a suffi- In an action for injuries under the federal ciency of the land to raise about half of that Employers' Liability Act by the employé of a

railway, the instruction that the jury could only sum; and it was sold to plaintiffs for an find such damages as would represent the presamount barely sufficient to satisfy their lien ent cash value of such money as might have debts against it, to the exclusion of the lien been earned by plaintiff, except for the impairheld by Young. At another sale it is made ment or destruction of his power to earn caused

by his injuries, was not so substantially wrong certain that not only plaintiffs, but Young as to constitute reversible error, particularly as well, will realize the full amount of their where the railway offered no instruction preindebtednesses, with something over for the senting its view urged on appeal. defendant. These are circumstances which,

Appeal from Circuit Court, Boyd County. we think, added to the gross inadequacy of the price at which the land was sold, impos-chio Valley Electric Railway Company.

Action by James Brumfield against the ed upon the chancellor the duty to have set From judgment for plaintiff, defendant apaside the sale.

Wherefore the judgment confirming the peals ; plaintiff dying and his administrator sale is set aside, and that part of the judg- prosecuting the action as appellee. Affirmed. ment of November 3, 1916, based upon the Hager & Stewart, of Ashland, and Jno. L. notes not then due, is reversed, and the cause Smith and Geo. B. Martin, both of Catis remanded for proceedings consistent here- lettsburg, for appellant. John W. Woods, of with.

Ashland, for appellee.

(180 Ky. 743)

CARROLL, J. The Ohio Valley Electric OHIO VALLEY ELECTRIO RY. CO. v. Railway Company owns and operates a line BRUMFIELD'S ADM'R. *

of electric railway in the states of Kentucky (Court of Appeals of Kentucky. May 28, 1918.) and West Virginia, and at the time Brum1. COMMERCE Ow27(1)-FEDERAL EMPLOYERS' field received the injuries out of which this LIABILITY ACT.

litigation arose the railway company was An action by an injured employé of a rail- admittedly engaged in interstate commerce; road to recover damages under the federal Employers' Liability Act (Act April 22, 1908, c. whether Brumfield was engaged in such com149, 35 Stat. 65 [U. S. Comp. St. 1916, $$ merce at the time he received the injuries 8657-8665]) cannot be maintained unless the complained of, although he was then an emrailroad company at the time was engaged in interstate commerce, and the employé at the ployé of the railway company, is one of the time of the injury was also engaged in such principal issues in the case. Brumfield, since commerce.

the judgment appealed from was rendered, 2. MASTER AND SERVANT Ow276(1)-EMPLOY- has died, and the action is now being prose

MENT IN INTERSTATE COMMERCE-SUFFICIEN- cuted by his administrator, and. it is the conCY OF EVIDENCE.

In an action under the federal Employers' tention of the administrator, as it was the Liability Act for injuries to the employé of a contention of Brumfield during his life, that he was engaged in interstate commerce at, and it was while engaged in unloading the the time, when as an employé of the rail- truck at the fill that Brumfield received the way company he was injured; while the injuries that subsequently resulted in his railway company insists that Brumfield was death. At this point, it is convenient to say not employed by it in interstate commerce at that Brumfield testified on the trial of the that time.

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

*Rehearing denied.

case, but died after judgment for $10,000 [1] There is no difficulty about the law up- had been given in his favor, and so his adon this point, because an action by an in- ministrator is the appellee on this appeal. jured employé to recover damages under the It may also be here said that the railway federal Employers' Liability Act cannot be company is not making, on this appeal, any maintained unless the railway company was question about the size of the verdict, or at the time engaged in interstate commerce, that the injuries sustained by Brumfield were and he was, at the time the injury complain- not caused by its negligence. ed of occurred, engaged by it in such com- Coming now to set out in more detail the merce. When, however, it comes to applying evidence as to the purpose for which these the law to the facts of the particular case, ties were being dumped at the fill, Brumfield it is often a matter of serious difficulty to testified, in substance, that he was a section determine whether the injured employé was, hand, working with a section crew, doing at the time he received the injuries complain- such things as were needed in the repair of ed of, employed by the interstate carrier in the, track; that the crew would haul old a work connected with interstate commerce, brick and dirt and ties from places where and this question must, in every case, be they had been thrown by the side of the determined by the facts of the particular track to the fill, and he understood that the case. Therefore we will relate, with some purpose of putting the ties and other stuff particularity, the facts of this case for the at the fill' was to widen and strengthen the purpose of ascertaining whether Brumfield, roadbed at that place; that before the day when injured, was employed in interstate of his injury he had helped to unload at this commerce.

fill rock, dirt, ties, and other stuff, carried The railway company operated an electric from different places on the line; that a railway running from Ashland, in the state great many other ties he had helped to unof Kentucky, to Huntington and other points, load there, and thrown down the side of the in the state of West Virginia, and it is con-fill, had been covered up with ashes, cinders, ceded, as we have said, that in July, 1914, and other refuse; that by the use of this when Brumfield sustained the injuries that material, in this way, the fill was made widwere the basis of this suit, it was engaged in er and in fact at the time of the trial was interstate commerce. Brumfield, at the time, about two feet wider than at the time he was what might be called a section hand, or was hurt. William Gunther, who had worktrackman, and as one of a crew of men, was ed for the railway as a foreman from 1900 engaged, with the other men, in helping to until March, 1914, testified, in substance, move a lot of old and worthless ties from that when the culvert was taken out and an where they had been thrown by the side of embankment made in its place, cinders, dirt, the track of the railway company in Hunt- ashes, ties, and other kinds of rubbish were ington, to a fill on its line of railway be used in making the fill; that ties thrown tween Huntington and Ashland. On this

over the embankment would be covered up line of railway between these points there with the other rubbish; that after the cars had formerly been a trestle, but a few years commenced running over the fill it was made before the accident to Brumfield the railway wider by ties and other rubbish thrown on company had made an embankment or fill the sides; that the purpose of widening the to take the place of the trestle, and in mak- fill was to make it more substantial. M. D. ing this fill it used ties, cinders, ashes, and Schaffer, who was supervisor of the tracks of other refuse picked up at different places on the company in 1914, testified: its line. After the fill had been sufficiently

"Q. What were your duties with reference to constructed to permit the passage of cars the track at that time? A. Well, I had that over it, it continued to dump on the sides of part of it to look after, keep it in running conit ties, ashes, cinders, and other refuse gath- dition, and also had the new work to take ered at different places along its line for the care of, if they built any new line, or any

thing of that kind. Q. Look after the making purpose, as contended by Brumfield, of of the fills? A. Well, yes. Q. And take care strengthening the fill; while the railway of the refuse and ashes and things of that

Q. What company contend that it dumped this matter kind? A. Yes, to a great extent.

was it customary to do with the ashes and there, not to strengthen the fill, but because it refuse ties that you got out

of the track where was a convenient place to dispose of useless you was changing it? A. Well, they went to

Q. Now, to refresh stuff. Brumfield and his crew on July 14, make fills mostly. 1914, loaded a truck with the old and worth- didn't give you some order about 1914, July,

your memory I will ask you if Mr. Magoon less ties picked up along the track of the with reference to the putting of the stuff in railway in Huntington, and 'run the truck this fill that had been cleaned up along the out to this fill for the purpose of throwing A. Yes, he always wanted everything put in

track, putting it in this fill at Camden Park?

*

*

v

place to keep—to protect the fill. Q. Were the [2] It will thus be seen that the instructies put in there for the same purpose as the tions clearly directed the minds of the jury rest of the material was? A. Yes, sir. Q. State whether or not in July, 1914, along there, to the issue between the parties as to whethyou put material into this fill for the purpose er Brumfield was engaged in interstate comof protecting it and strengthening it at that merce, and the jury, under the evidence and point. A. I can't say at that time, of course, instructions, found that Brumfield was enbut before that, I can't say that it was; no, sir. At this particular time, I don't know. gaged in such commerce. Whether he was I can't say that it was absolutely necessary; or not depended on a disputed question of they put it in there and had been throwing the fact, and we think there was sufficient evistuff there for a number of years, I don't know dence tending to show that these ties and · how long a while, of course the order never the other rubbish were put at this fill for the

, was annulled. nulled? A. I believe it was about last March, purpose of strengthening and making it safer a year ago somewhere. Q. About March, 1915? to warrant the jury in finding for Brumfield A. Yes, I think it was March, as well as I remember. Q. Now you say it wasn't neces- upon this issue as they must have done, or sary to put stuff in there to protect the fill, otherwise their verdict would not have been what did you mean, now, in July, 1914? Al in his favor. Our attention has been directWell, I judge it was not in any sense neces-ed by counsel for the railway company to sary to protect it. Q. Was not? Do you know several cases that, it is contended, support how it was at that time? A. I don't know about that, as I said they had been putting their position that the evidence was not sufstuff in there for a number of years and the ficient to take the case to the jury upon the order had never been countermanded and stuff ground that Brumfield was engaged in interwas still being put in it. Q. Up to what time? A. Up until last March. Q. Since July, state commerce, and therefore the court 1914, how much stuff have they put on that should, at the close of the evidence, have đifill on the south side next to the river ? A. rected the jury as requested to return a verWell, I can't say. I don't know how much, con- dict for the railway company, and these cassiderable; they have hauled ties there and have hauled dirt there, and they hauled ashes there. es we will now proceed to briefly notice and Q. State whether or not they covered up the point out what we conceive to be the mateties put in there in July, 1914. A. O, yes, rial difference between them and the case covered up a good many of them. Q. Tell the we have.

. jury what order, if any, you had from Mr. Magoon with regard to cribbing the ties put

In Illinois Cent: R. Co. v. Kelly, 167 Ky. in there? A. Yes, he called my attention to 745, 181 S. W. 375, it appears from the opinthat; said to me to have the men crib the ion that Kelly, a track repairer in the service ties 'in there to protect the fill—to keep the of the company, was engaged in loading on a water from it. Q. What do you mean by cribbing ties? A. That is to pile them in a man- flat car from its right of way unused rails ner so that they would hold the dirt at the which had theretofore been removed from foot of the fill, cross-pile them at the foot of its track and left on the right of way beside the fill. Q. What did you do with the dirt then? A. The dirt then, it would go down to it, and, it not appearing that these rails were the ties and catch there and hold instead of being removed for the purpose of using them going on and leaving them. Q. That protected in any manner or way connected with interthe fill didn't it? A. Yes, supposed to.”

state transportation, the court held that KelFor the railway company, Fairchild, Har- ly, in merely removing old rails from a place

where they had been put, was not engaged ris, Humphrey, and other witnesses testified

in interstate commerce. But further said: that these old ties and other rubbish were

"If appellee had been injured while unloading thrown over the banks of this fill merely be- rails that were to be used, and were later used, cause it was a convenient place to get rid of in repairing appellant's railroad track, there such useless rubbish, and not with any pur- could have been no doubt of his right to main

tain the action under the federal Employers' pose of strengthening or making safer the Liability Act; but such was not the case. The 'fill. With the evidence on this issue in this rails, by one of which he was injured, had been condition, the court told the jury that:

removed from the track and new ones put in

their places several days before he was injured. If they should “find and believe from the When taken from the track the old rails were evidence that the old refuse ties that were be- laid out on the ground or subgrade, outside of ing unloaded from the defendant's car by the and parallel with the track, the space occupied plaintiff, and other servants of the defendant, by them being about four feet in width; and, at the time of the accident in question were to as thus placed, they could not, even if allowed to be used in repairing or strengthening the fill permanently remain, have interfered with appelat said point and were unloaded there by de- lant's use of the track or its business as a carfendant for said purpose, then and in this event rier, and there was nothing in the evidence conplaintiff and defendant were both engaged in ducing to show that it was the intention of interstate commerce at the time of the acci- appellant to use these rails in its track_elsedent; and, on the other hand, if the jury shall where, or that they were so used or even fit for believe from the evidence the defendant, or such use. In view of this situation, we are units servants in charge of the work of unloading able to see how the later work of gathering up said ties at the time and place in question, these old rails for the purpose of storing them threw them on or over the top of the fill in elsewhere, or, perhaps, selling them as scrap question as an easy or cheap way to get rid steel, can in any sense be considered as a reof them and without any purpose or design to pairing of the track, or as necessary to appelrepair or strengthen said fill, then and in this lant's engaging in interstate commerce. In event the plaintiff and defendant in doing said other words, the evidence fails to show that work were not then engaged in interstate com- there was any duty resting upon appellant as a merce, and the plaintiff is not entitled to re- carrier of interstate commerce to remove the cover under said act."

rails."

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