(180 Ky. 653) JULIAN v. UNITED CLOTHING STORES. (Court of Appeals of Kentucky. May 21, 1918.) 1. APPEAL AND ERROR 56 - AMOUNT IN CONTROVERSY. When the right to appeal is dependent upon the amount in controversy, the judgment fixes the amount governing the right of an appeal by the defendant, but the amount governing the right of the losing plaintiff to appeal is the sum that his evidence shows him entitled to recover. 2. APPEAL AND ERROR 361 (2)-AMOUNT IN CONTROVERSY. Under Ky. St. § 950, subsec. 3, providing that where the amount in controversy is $200, exclusive of interest and cost, and less than $500, appeal shall be taken by filing a copy of the record with the clerk of the court of appeals and the appellant entering a motion for the granting of an appeal, where during the trial of a suit in circuit court to recover $500 plaintiff admitted a credit reducing the amount he would be entitled to recover in any event to $484, appeal was improperly prosecuted under an order granting it by the circuit court, rather than by motion by appeal in the Court of Appeals. Appeal from Circuit Court, Fayette County. Action by T. G. Julian against the United Clothing Stores. From judgment for defendant, plaintiff appeals. Appeal dismissed. J. A. Edge, of Lexington, for appellant. J. N. Elliott, of Lexington, and Manton Davis, of St. Louis, Mo., for appellee. of the losing plaintiff to appeal is the sum that his evidence shows him entitled to recover. 3 Corpus Juris, 397; Wilson v. Dickenson County Bank, 159 Ky. 102, 166 S. W. 790; Chenault v. Bank of Arlington, 159 Ky. 104, 166 S. W. 789, and cases in note 8a to section 950 of the Kentucky Statutes. In the Chenault Case, which was an appeal by plaintiff who lost below, the amount sought to be recovered by the petition was $200, but the proof conclusively showed that in no event was he entitled to recover a greater sum than $120. This court dismissed the appeal, saying: by appellant at $200, the evidence introduced Under that rule the amount involved here, so far as appellant is concerned, is only the sum of $484. [2] Subsection 3 of section 950 of the Ken tucky Statutes provides that in all cases where the amount in controversy is as much as $200, exclusive of interest and cost, and less than $500, the appeal shall be taken by filing a copy of the record with the clerk of the Court of Appeals and the appellant entering a motion for the granting of an appeal. In such cases no appeal can be prosecuted under any order granting it by the circuit court. Searcy v Golden, 172 Ky. 42, 188 S. W. 1098, and Childers v. Ratliff, 164 Ky. 123, 175 S. W. 25. The remedy is by a motion for an appeal to be made in this court. Same cases, and Oman-Bowling Green Stone Co. v. L. & N. R. R. Co., 169 Ky. 832, 185 S. W. 118. from the order of the circuit court granting The appeal now before us is prosecuted THOMAS, J. Plaintiff, the appellant, brought this suit against the defendant, the appellee, to recover rent for a store building in Mt. Sterling, Ky., for the first eight months of the year 1914, which was fixed at $80 per month, subject, however, to a credit of $140, which plaintiff admitted that he had collected from a subtenant under the defendant, who, it was claimed, had the property rented, leaving a net balance of $500, for which judgment was asked. A cancellation of the lease was insisted upon in the answer, and it made an issue as to defendant's liability for any part of the rent. Upon trial, the jury under instructions from the court returned a verdict for the defend- for an appeal, and under the authorities, ant, and complaining of it the plaintiff pros- supra, the appeal must be, and it is, disecutes this appeal. We find ourselves without jurisdiction to consider and determine any of the questions presented, because the appeal has not been properly prosecuted. During the trial the plaintiff admitted a just credit, for which he had made no allowance in his petition, of the sum of $16, which would reduce the amount to which he would be entitled to recover in any event to the sum of $484. [1] The law is well settled that when the right to appeal is dependent upon the amount in controversy the judgment fixes the amount governing the right of an appeal by the defendant, but the amount governing the right it. No motion has been made in this court missed. WILLIAMS v. (180 Ky. 697) INTER-SOUTHERN LIFE INS. CO. (Court of Appeals of Kentucky. May 24, 1918.) mm 232 LIFE INSURANCE CANCELLATION-RIGHT OF ADMINISTRATRIX TO RECOVER. INSURANCE Where the insured, having paid eight premiums and borrowed full loan value, notified the company, when the ninth premium was past due and the amount of the loan and the interest thereon exceeded the amount paid, to return the amount of the ninth premium and interest and to keep the policy, if he were re For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes quired to have a new certificate of health for reinstatement, and the company canceled the policy, his administratrix could not recover. Appeal from Circuit Circuit Court, Christian County. Action by Elizabeth C. Williams, as administratrix of Benjamin W. Williams, deceased, against the Inter-Southern Life Insurance Company. From a judgment for defendant, plaintiff appeals. Affirmed. Geo. H. Galloway, of Bowling Green, and Trimle & Bell, of Hopkinsville, for appellant. Helm Bruce and Clarence C. Smith, both of Louisville, and Hunter Wood & Son, of Hopkinsville, for appellee. MILLER, J. By this action the appellant, as the administratrix of the estate of Benjamin W. Williams, deceased, sought to recover $1,000 under a policy issued November 4, 1905, upon the life of the decedent. The amount of the cash surrender value of the policy is the only disputed fact, and it is settled by an express provision of the policy. The policy was issued upon the 20-payment' life plan, and the annual premium was $38.34, with a grace of 30 days for its payment. Williams paid 8 premiums. At the time he paid the eighth premium, on November 4, 1912, Williams borrowed $182 from the company, which was the full loan value, and only 14 cents less than the full cash surrender value of the policy. Williams executed his note to the company for $182, bearing interest at 5 per cent., payable annually in When the ninth premium became due on November 4, 1913, the company had apportioned a dividend of $5.91 upon this policy, which was credited upon the premium, leaving $32.43 due thereon. There was also due the annual interest charge of $9.10 upon the note. Accordingly, when the ninth premium became due, Williams' account with the company stood as follows: Ninth premium, due November 4, 1913 advance. Less dividend credited thereon Leaving net balance on premium of Plus one year's interest on loan Total due stated only upon payment of his debt, accompanied by a physician's certificate that he was in good health. On December 4th the company wrote Williams, notifying him that his period of grace expired on that day, urging him to send a check for his unpaid balance, and saying he could be reinstated upon presenting the requisite health certificate. Williams ignored this letter. On January 28, 1914, the company again wrote him to the same effect. On February 2, 1914, Williams sent the company a check for $8.68 to pay his balance due November 4, 1913, but failed to send the health certificate. Williams explained that he had moved from Trenton, Ky., to Hopkinsville, Ky., that his health was good, and that if the company required him to go back to Trenton to be examined there by Dr. Gower it "could just return his check and cancel the policy." On February 24th, and again on February 28th, the company wrote Williams, requesting him to submit to a physical examination, and advising him that until an examination was made his remittance could not be applied in payment of his pre mium. The company wrote Williams similar letters on March 7th and March 25th, to which he made no reply. Finally, on May 4, 1914, the company sent Williams a check for $41.53 in satisfaction of his two payments made as above explained, advising him that his policy had lapsed, but that, if he should care to reconsider and reinstate the policy, it would instruct Dr. Stone to make the necessary examination. Williams replied on May 5th, acknowledging the receipt of the company's letter and check, and saying that "rather than be examined you may keep my policy." The company closed the correspondence on May 8th, by acknowledging the receipt of Williams' letter of May 5th, and advising him that he had secured the full cash value of his policy To this letter $38.34 in the loan of 1912, and that the return of 5.91 the $41.53 to Williams "settles in full of all amounts due you under the policy." Noth$32.43 ing further passed between the parties, and 9.10 Williams died in the following July. $41.53 The usual premium notice was mailed to Williams' on October 9, 1913, and was received by him. Williams, however, mislaid the notice, and presumably, acting from memory, on November 21st, he sent the company a check for $32.85. The company cashed the check and placed the proceeds in an account designated as "Items Subject to Return," wrote Williams, reminding him that his check was $8.68 short of the amount due the company, and requesting a check for the balance. The grace period for the payment of the premium expired December 4, 1913, and by the terms of the note, if the amount of the loan, with interest, should equal or exceed the cash value of the policy, the policy should lapse, without demand or notice, and, The case was, by agreement, tried by the court without a jury, and resulted in a judgment for the company. The plaintiff appeals. The plaintiff rested her case below, and now asks a reversal, upon two grounds: (1) That the company brought about the surrender of the policy through false representations; and (2) that when the premium became due on November 4, 1913, the cash surrender value of the policy exceeded Williams' indebtedness to the company by $21.04, and that the policy did not lapse for that reason. The first ground is not sustained by any proof, and will be passed without further comment. The second ground is based upon a mistake of fact, since the policy, on its face, shows that its cash surrender value, $182.14, and not $211.72, as claimed by ap-ington, for appellants. J. M. Benton, of pellant. But, without going into a discus- Winchester, and Shelby, Northcutt & Shelby, sion of that feature, we deem it sufficient to of Lexington, for appellees. say that Williams agreed to the cancellation of his policy and received back his money, amounting to $41.53. He never afterwards made any claim against the company, and the company certainly never thereafter had any money whatever in its hands that could have been applied to the payment of the ninth premium. Williams and the company having agreed upon a settlement of the differences between them, it will not be disturbed after his death, Judgment affirmed. (180 Ky. 659) HURT, J. William Piersall and Phillip Black were traveling from Lexington in the direction of Winchester in an automobile, which was owned and being driven by Black. At a public crossing of the track of the Chesapeake & Ohio Railway Company over the pike, upon which they were traveling at Pine Grove, the automobile and a fast train of the railway company collided and caused the deaths of both of the occupants of the automobile. An action was instituted by the administrator of of each of the of the decedents against the railroad company and its en PIERSALL'S ADM'R v. CHESAPEAKE & gineer and fireman, who were operating the O. RY. CO. et al. train, to recover from them the damages sustained by each of their estates because of their deaths. The contention of the administrators of the deceased parties is that the ones who were operating the train negligently ran the train against the automobile as it was crossing over the track of the railroad, and thus caused the death of the occupants, while the railroad company denies 2. RAILROADS 310-PUBLIC CROSSINGS- that there was any negligence in the operaCARE REQUIRED. tion of the train, or that the train was run When a railroad train approaches a public crossing, it is the duty of the company to give against the automobile, but, upon the other such warnings of the approach of the train, and hand, that the deaths of the occupants were to take such precautions to avoid injury to caused by their negligently running the aupersons using the crossing, as is commensurate tomobile against the train as it was passwith the danger of the particular crossing, al-tomobile though such warning need not be effective, so ing over the crossing, or at least that they as to amount to a guaranty of the safety of persons using the crossing. 3. RAILROADS 350(5)-PUBLIC CROSSINGS CARE REQUIRED QUESTIONS OF FACT. Where justified by the facts, it may be proper to submit to the jury the question whether a railroad in the exercise of proper care should keep a flagman at public crossings or adopt some other precaution to protect the public. 4. RAILROADS 350(11) - CROSSING ACCIDENTS-QUESTIONS OF FACT-SPEED. BLACK'S ADM'R v. SAME. (Court of Appeals of Kentucky. May 24, 1918.) 1. NEGLIGENCE 136(8)-QUESTIONS OF LAW AND FACT. Where there is no contradiction as to the Where there is no contradiction as to the facts of a personal injury case, the question as to whether or not there was actionable negligence is one of law for the court. In an action for death of a passenger in an automobile through being struck by a train at a railroad crossing, plaintiff was not entitled to have the question of negligent speed of the train submitted to the jury where the crossing was located in the open country, and was not exceptionally dangerous. 5. RAILROADS 310-CROSSING ACCIDENTSEVIDENCE. In an action for the death of a passenger in an automobile struck by defendant's railroad train at a public crossing, where the uncontradicted evidence showed that the customary and statutory warnings were given, and that the peril of decedent was not discovered until it was impossible to avoid the collision, there was no negligence on defendant's part. Appeal from Circuit Court, Clarke County. Actions by William Piersall's administrator and Phillip Black's administrator against the Chesapeake & Ohio Railway Company and others. From judgment for defendants on a directed verdict in each case, plaintiffs appeal. Affirmed in each case. Pendleton & Bush and B. R. Jouett, all of Winchester, and Franklin & Talbott, of Lex failed to exercise ordinary care for their own safety in attempting to cross the track at the time, and that such negligence so contributed to their deaths; that but for it they would not have suffered any injury. The charges of negligence against the decedents were denied by the administrators. The evidence applying to each of the actions being to a large extent necessarily the same, they were heard together in the circuit court, and at the conclusion of all the evidence, which was offered by the plaintiffs, the court sustained a motion to direct the jury to find a verdict for the defendants in each action, and rendered a judgment denying the relief sought, and dismissing the petition in each case. From the judgment in each action the plaintiff has appealed, and seeks a reversal upon the ground that the court erred in peremptorily directing the jury to find a verdict for the defendants. [1] The particular ground upon which the court based its action in directing the verdict as it did does not from the record appear; hence it will be first considered whether the evidence heard tended to prove any actionable negligence upon the part of the defendants, which was the proximate cause of the deaths of the decedents, or in other words, whether there was any issue made in the evidence of negligence on the part of the defendants which necessitated the submission For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes of the issue to the jury, for if there was no, of the crossing. There are two storehouses contradiction as to the facts, the question as within the same radius; one to the north to whether or not there was actionable neg- and the other to the south of the crossing, ligence was a question of law for the court. but at what distances from it does not apL. & P. Canal Co. v. Murphy, 9 Bush, 522; pear. The pike, as it approaches the crossDolfinger v. Fishback, 12 Bush, 478; L. & ing from the north, has an ascending grade N. R. R. Co. v. Raines, 23 S. W. 505, 15 Ky. of 3 feet in 100 feet, from about 250 feet to Law Rep. 423; L. & N. R. Co. v. Breeding, the northward up to the crossing. From a 13 Ky. Law Rep. 397. point upon the pike 100 feet to the north of The Pine Grove station or depot is a build- the crossing and probably further, a person ing, which is situated upon the north side of in an automobile approaching the crossing the railroad track and about 15 feet from from the northward can see a train apthe middle of it. In front of the building proaching the crossing from the east at a and within a foot or two of it there is erect-point 500 feet to the east of the crossing, and ed an iron post about 4 inches in diameter, his view of an approaching train is not obwhich is called a signal tower. Upon the scured in any way until he arrives at a point south side of the track and about the same 57 feet from the track, when his view of a distance from it as the depot building is a train approaching from the east is cut off house used for a warehouse. Directly north by the depot building for a distance of 42 of the depot building and about 19 or 20 feet and until he passes the depot and is 15 feet from it is a small storehouse, and 200 feet from the track, when he can see such of 300 feet east of the storehouse, but some- a train at a point 900 feet or further to the what closer to the track, is a small outhouse east of the crossing, and when upon crossing of some character or other. The railroad or within a few feet of it can see an aptrack at this point is a line from Winchester proaching train upon the track for a mile or to Lexington, and follows a course which is more. from the east to the west, and for a distance of about 10 miles to the east and to the west of the station, though how far either way the evidence does not disclose, the track is substantially a straight line, and has a slight ascending grade from about 2,500 feet east of the station to about 900 feet east of the station, from which point it has a descending grade of approximately eight-tenths of 1 per centum to a point which is 2,000 or more feet to the westward of the station. Coming from the east the track passes through a cut, which, at a point 900 feet to the east of the station, is about 20 feet in depth, and decreases in depth until 500 or 600 feet of the station, where it is only 5 or 6 feet in depth, and disappears before arriving at the station. It does not appear that a train is hidden from view by the cut in any place within 300 yards of the station when viewed from any point in the neighborhood of the station, and from the crossing a train may be seen approaching the station from the east for a mile or two. A whistling post for the station is erected 2,570 feet east of the station. Four eyewitnesses of the tragedy testified upon the trial. Two of them were the engineer and fireman in charge of the train, and the other two were persons who resided beside the pike along which the decedents approached the crossing, and at a point about 85 steps, of 3 feet each, or 255 feet, to the west of the crossing, and who were, at the time, in plain view of the crossing over the railroad track as well as the pike, from the place where they were to the crossing. They both testified to having heard the steam whistle of the approaching train give a long signal when at the whistle post to the east of the station, and just at that time the decedents passed them in the automobile, and traveling at a rate of 15 to 20 miles per hour. The automobile continued on toward the crossing, and one of these parties testified that it made no check in its speed, until it collided with the train, but the other said that when it began to go around the curve in the pike, 70 or 80 feet from the crossing, its speed seemed to slightly decrease, and as it was passing around the curve at a distance of from about 40 to 60 feet from the crossing they heard the whistle on the ap crossing. One said four and the other that three signals were given by the whistle, and the last one was given when the engine was about 80 feet from the crossing. The automobile did not stop nor make any check in its movements, except as stated, but went forward, and at the crossing it and the train, as the witness described it, "met." The pike, which the decedents were traveling from Lexington, approaches the cross-proaching train sounding the signals for the ing from a direction slightly north of west, but when it arrives within 60 or 70 feet of the crossing the pike curves sharply to the southward, and passes over the railroad track at the grade at right angles to the track and immediately to the west of the depot and the warehouse, which is on the opposite side of the track from the depot. Near the pike to the north and south of the crossing and near to another pike, which intersects the one above described to the north of the crossing, there reside about one dozen Neither of the occupants of the automobile were seen by these witnesses to do anything which indicated that they were taking any precautions to learn of the approach of The engineer and fireman were offered by lost their lives. The duties of a railroad comthe plaintiffs as witnesses for them, and tes-pany when one of its trains is approaching a tified that at about 350 yards east of the public crossing is broadly and correctly stated crossing the signal for the crossing was given to be to give such warnings of the approach of by the whistle and three others between that the train, and to take such precautions to point and the crossing, and the fireman tes- avoid injury to persons using the crossing as tified that the whistle was sounded prac- is commensurate with the danger of the parThis does not, however, tically all the way from the whistling post ticular crossing. to the crossing. Two other witnesses, who mean that the means of warning employed lived, as one testified, three-fourths of a mile shall be effective, so as to amount to a guaraway, and the other said 12 miles away, al- anty of the safety of persons using the crossthough both lived at the same house, but ing, but the means should be such as an orneither of whom saw the train at the time, dinarily prudent person would adopt in the testified to having heard the signals given by operation of a railroad train at the particular the whistle in quick succession when the crossing. C. & O. Ry. Co. v. Gunter, 108 Ky. train neared Pine Grove station. The engi- Cin., etc., R. Co. v. Champ, 101 S. W. 988, 31 362, 56 S. W. 527, 21 Ky. Law Rep. 1803; neer and fireman testified that the bell was Ky. Law Rep. 1054. If the crossing is excontinuously rung from the time the first sig- ceptionally dangerous on account of the connal by the whistle was given until the cross- tour of the surface of the ground or on acing was reached. The fireman saw the au- count of obstructions, which obstruct the view tomobile approaching when the train was or hearing in an exceptional way, and which about 40 feet away, and immediately the renders the usual and statutory signals of the emergency brakes were applied and every- approach of a train inadquate for the protecthing done, which was possible to avoid in- tion of travelers upon the crossing, a greater juring the automobile or its occupants. The degree of care devolves upon both the railautomobile struck the pilot of the engine road and the traveler in approaching the upon its side at the point where it joins the crossing, in accordance with the increased engine, making a scar upon the end of the danger, and it is to be considered in determinstill, and tearing out two or three of the ing whether or not there was negligence in short bars, which were upon that side of the the operation of the train which causes an inpilot and near to the engine. The front jury, and also as to whether or not there was wheel of the automobile upon the east side contributory negligence, as the railroad comwas torn to pieces, but the one upon the op- pany and the traveler have a mutual and reposite side was uninjured. The machine was ciprocal duty of keeping a lookout to avoid thrown out upon the side of the track upon giving or receiving injury, and it has been which it was approaching, and the bodies of held that where the facts justified, it was the two occupants were found upon that side proper to submit to the jury the question of the railroad track about 30 feet westward whether the railroad, in the exercise of propof the point of the collision. The train was er care, should keep a flagman at the crossrunning from 45 to 50 miles per hour, and it ing, or adopt some other precautions to prowas stopped, according to the testimony of tect the public. L., C. & L. R. R. Co. v. Goetz, the engineer and fireman, at about 350 yards 79 Ky. 442, 42 Am. Rep. 227; Southern Ry. west of the crossing, but, according to other Co. v. Barbour, 51 S. W. 159, 21 Ky. Law Rep. witnesses, about twice that distance from 226; N. N. & M. V. Co. v. Stuart, 99 Ky. 496, the crossing. Both engineer and fireman tes-36 S. W. 528, 18 Ky. Law Rep. 347; L. & N. tified that they were maintaining a lookout R. R. Co. v. Cummin's Adm'r, 111 Ky. 333, 63 while approaching the crossing, but the en- S. W. 594, 23 Ky. Law Rep. 681; C. & O. Ry. gineer, on account of the proximity of the Co. v. Riddle, 72 S. W. 22, 24 Ky. Law Rep. approach of the automobile, could not see it 1687; Louisville, etc., Ry. Co. v. Lucas, 98 S. from the side of the engine which he occu- W. 308, 30 Ky. Law Rep. 359; Id., 99 S. W. pied, but the fireman testified that the auto- 959, 30 Ky. Law Rep. 539; L. & N. R. R. Co. mobile approached and struck the pilot of V. Breeden, 111 Ky. 729, 64 S. W. 667, 23 Ky. the engine, as heretofore described. A wit- Law Rep. 1021, 1763; Railroad Company v. ness testified that a few minutes after the Clark, 105 Ky. 571, 49 S. W. 323, 20 Ky. Law collision the engineer stated that the train Rep. 1375; 2 Thompson on Negligence, § 1507 was running at the rate of 60 miles per hour, et seq.; Railroad Company v. Gunter, 108 Ky. but this statement was denied by the engi- 362, 56 S. W. 527, 21 Ky. Law Rep. 1803; Ky. T. & T. Co. v. Wilson, 165, Ky. 123, 176 S. W. 991. neer. [2, 3] It is a well-established doctrine that actionable negligence arises from a failure to perform a duty which one owes to another, and where there is no failure to perform a duty, there is no actionable negligence. Hence it must be considered under the facts what the duties were which the ones operating the train in the instant case owed to the decedents at the time and place at which they Section 786, Ky. Stats., provides that when a train is approaching a crossing over a highway outside of an incorporated city or town, where the railroad crosses the highway upon the same level, the steam whistle must be sounded or the bell must be rung at a point 50 rods from the crossing, and then the whistle must be sounded or bell rung continuously.or |