E. B. Beard, of Shelbyville, and Edwards, , to be determined is whether the restraint is Ogden & Peak, of Louisville, for appellant. no more than is reasonably necessary for the Willis, Todd & Bond, of Shelbyville, and w. protection of the business transferred, and V. Bulleit, of New Albany, Ind., for appellee. is not so large as to interfere with the inter

est of the public. 13 C. J. 475, 476; LinneCLAY, C. Prior to January 1, 1912, Chas. man v. Allison, 142 Ky. 309, 134 S. W. 134. A. Kochenrath was conducting in the city At one time it was the rule in certain jurisof New Albany, Ind., the business of a whole- dictions that an agreement not to carry on a sale and retail liquor dealer under the name business anywhere within a state was invalid of the City Bottling Works. Besides beer (More v. Bonnet, 40 Cal. 251, 6 Am. Rep. 621; and whisky he sold mineral water, temper- Taylor v. Blanchard, 13 Allen (Mass.] 370, 90 ance beer, dry beer, etc. The greater portion Am. Dec. 203; Lawrence v. Kidder, 10 Barb. of his business was what is known as mail [N. Y.] 641); but in the later cases this docorder business. On January 17, 1912, Koch- trine has been rejected (13 C. J. 472; Oregon

. ; enrath by a written contract which became Steam Nav. Co. v. Winsor, 20 Wall. 64, 22 L. effective January 1, 1912, sold and conveyed Ed. 315; Beal v. Chase, 31 Mich. 490; Nahis business to Otto W. Christman for a large tional Ben. Co. v. Union Hospital Co., 45 Minn, consideration, a part of which was represent- 272, 47 N. W. 806, 11 L, R. A. 437; Diamond ed by a note for $4,000 secured by a mortgage Match Co. v. Roeber, 106 N. Y. 473, 13 N. E. on real estate located in Shelbyville, Ky. By | 419, 60 Am. Rep. 464; Cowan v. Fairbrother, the contract in question, Kochenrath obligat- 118 N. C. 406, 24 S. E. 212, 32 L. R. A. 829, ed himself not to engage directly or indirect- 54 Am. St. Rep. 733; Herreshoff v. Boutineau, ly in the manufacture or sale, either whole- 17 R. I. 3, 19 Atl. 712, 8 L. R. A. 469, 33 Am. sale or retail, of spirituous, vinous, malt St. Rep. 850). Furthermore, the nature of liquors, mineral water, kolas, temperance the business restrained has an important beer, dry beer, etc., in any portion of the bearing on the question of reasonableness. state of Indiana for a period of five years. 13 C. J. 475; American Brake Beam Co. v. A few months later Kochenrath violated his Pungs, 141 Fed. 923, 73 C. C. A. 157. Folcontract by engaging in the same business lowing this rule, it was held that an agreein the city of New Albany under the name ment not to carry on the liquor business was of the Crescent Liquor Company.

valid on the ground that the business was not In the year 1914 Kochenrath brought suit a trade to be encouraged. Harrison v. Lockagainst Christman in the Shelbyville circuit hart, 25 Ind. 112. Indeed it has also been court to collect the note for $4,000 subject held that a combination of persons and firms to a credit of $1,000, paid September 8, 1912, in a city for the control of beer and the cesand to enforce his mortgage lien. Christman sation of competition inter se was not void interposed a counterclaim for damages in the at common law as against public policy, alsum of $10,000, based on Kochenrath's viola- though in restraint of trade, on the ground tion of the contract of sale. After proof had that beer is not an article of prime necessity, been taken by deposition and the case had and its sale is closely restricted by public dragged along for about three years, Kochen- policy. Anheuser-Busch Brewing Ass'n V. rath dismissed his petition without prejudice, Houck (Tex. Civ. App.) 27 S. W. 692. Here, and asked a transfer of the action to the com- to, plaintiff was engaged in selling liquor a mon-law docket for the trial of the issue of business not favored by the law. He had an damages. This motion was overruled, and extensive trade covering a large portion of the case then submitted. The court held as

the state of Indiana. The business was cona matter of law that the contract was valid, bany, his place of business. Because of this

ducted by mail orders received at New Aland had been violated by plaintiff. It further held as a matter of fact that defendant same business successfully at any other

feature, plaintiff could have conducted the had been damaged in the sum of $4,000 by the point in the State, had it not been for the violation of the contract. Judgment was entered accordingly, and Kochenrath ap- would have been to engage in direct competi

restraint imposed by the contract. The effect peals. [1, 2] It will be observed that by the agree

tion with the defendant, and thus deprive ment in controversy the seller disposed of him of a large portion of the good will and the entire business, and that the restraint trade which he secured by his contract of imposed is ancillary to the contract of sale,

purchase. We therefore conclude that no and therefore the contract falls within the question of public interest is involved, and rule that the restraint imposed must be inci-that the restraint imposed by the contract in dent to, and in support of, another contract question was no more than was reasonably or sale in which the purchaser acquires some necessary for the protection of the business interest in the business needing protection. purchased by the defendant, and that the 13 C. J. 477; Barrone v. Moseley, 144 Ky. court did not err in adjudging the restraint 698, 139 S. W. 869; Nickell v. Johnson, 162 to be valid. Ky. 520, 172 S. W. 938. It will also be ob- [3-6] But it is insisted that the court erred served that the restraint is limited both as in fixing the damages at $4,000. The evidence to time and place. Hence the only question shows a deliberate violation of the contract by plaintiff. When he sold out the business, an issue at law arising in an equitable action to defendant he retained a mailing list of tried by a jury, the motion to have the case the customers of the firm both in Indiana transferred for such purpose must be made and Kentucky. When on the stand he refused at the time the pleading tendering the issue to exhibit the books of the new business in is filed or within a reasonable time thereafter. which he had engaged, or to furnish a list of Lewis v. Helton, 144 Ky. 595, 139 S. W. 772. his customers, or to give any information con- Here plaintiff's motion was not made until cerning the amount of business which he did. about three years after the issue was tenderAfter considerable delay, however, the deed and the case had been fully prepared for fendant did secure the deposition of plaintiff's trial in equity. Though the dismissal of the bookkeeper, who testified in substance that petition left only the issue of damages, it was plaintiff's new concern did a business averag- nevertheless the same issue of fact tendered ing about $24,000 a year. One-fourth of this by defendant's answer and counterclaim. business was done on orders received from Having lost his right to a jury trial by his Indiana, and three-fourths on orders received failure to move therefor in proper time, he . from Kentucky. The profits averaged 18 per could not restore this right by first dismissing cent. or about $4,300 a year. As but one ac- the petition, and then making the motion to tion for damages could be maintained by de- transfer. We therefore conclude that the fendant, we think it clear that he was entitled trial court did not err in refusing to transfer to recover all damages accruing up to the the case to the common-law docket for the time of the trial. Davis v. Brown, 98 Ky, trial of the issue of damages. 475, 32 S. W. 614, 36 S. W. 534, 17 Ky. Law Judgment affirmed. Rep. 1428. As the business was a mail order business, clearly it was not contemplated by the parties to the contract that plaintiff could

(180 Ky. 765) establish his headquarters at some place in

CINCINNATI, N. O. & T. P. RY. CO. V. Indiana and not be guilty of a violation of

CARTER. * the contract if he merely filled there orders (Court of Appeals of Kentucky. May 31, 1918.) which were received from persons residing in Kentucky. On the contrary, when plaintiff 1. NEGLIGENCE 2 – FAILURE TO PERFORM

DUTY. in response to such orders delivered the

It being elementary that negligence is the liquor called for to the common carrier, the failure to perform a duty, there can be no negsale took place in the state of Indiana within ligence where there is no 'duty. the meaning of the contract. We therefore 2. RAILROADS @mw 369(3), 372(4) — LOOKOUT, conclude that the profits on such sales must SIGNALS, AND SPEED. be taken into consideration in determining

A lookout duty arises only when the public

generally with the company's knowledge and the question of damages. Of course the acquiescence have continuously used the tracks damages which defendant sustained should for such a period that the presence of persons not be measured by the entire profits which thereupon ought reasonably to be anticipated, plaintiff made, but only by the profits of using its track the duty to give warning of

in which case the company owes to persons which defendant was deprived by plaintiff's the approach of its train, and to operate its violation of the contract. Not only does the trains at such a speed as may enable the enevidence show that plaintiff made an average gineer to stop it before injury has been inflicted. profit of over $4,000 a year for several years, 3. RAILROADS C372(1)-SPEED OF TRAIN. but it also shows that defendant's profits ordinance, a railroad company may ordinarily

In the absence of a prohibitory statute or materially decreased after the first year. Of run its trains at such speed as it sees fit, and course the mere difficulty of ascertaining the a charge of negligence cannot be predicated on amount of damage affords no reason for re- such speed, unless attendant circumstances fusing damages. Here defendant was award- make it negligence. ed only a small amount of the profits which 4. RAILROADS ww370, 372(5)-LOOKOUT, SIG

NALS, AND SPEED. plaintiff made, and we think the evidence

There being no statute regulating the speed considered as a whole supports the conclusion of trains in the country whenever a railway that the damages fixed by the trial court track passes through a populous community, or were actually sustained. At any rate they at a place where the presence of persons may

reasonably be expected, it is the company's duty are not so excessive as to justify a reversal, to keep a lookout to give notice of the train's of the judgment on that ground.

approach, and to moderate the speed, to the [7, 8] Another error relied on is the refusal extent necessary for the protection of the

public. of the trial court to transfer the case to the common-law docket for the trial of the issue 5. RAILROADS O372 (4)-SPEED. of damages. The point is made that when country at 1:25 o'clock p. m. will not constitute

The speed of a train running through the the petition seeking an enforcement of plain- negligence to persons on the track whose prestiff's lien was dismissed, the equitable fea-ence is unnecessary. ture of the action was eliminated, and there 6. RAILROADS 369(1)-INJURY TO PERSON was left only the common-law issue of dam- ON TRACK-SIGNALS. ages which plaintiff then had the right to

The rule that one about to use a private have tried by a jury. We have frequently signals usually given for a nearby public cross

crossing may rely upon and have the benefit of written that where a litigant desires to haveling does not extend to persons using the track. OmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

is At Jessamine station Carter met a freight

At a

7. MASTER AND SERVANT O137(4) – INJURY | down to the yard and do some work. HowTO RAILWAY EMPLOYÉ-NEGLIGENCE.

To a railway signal man injured by colli- ever, after he had arrived at the yard and sion while operating a motor car the company

found that he had left the necessary tools owed only the duty of protecting him after dis- at home, he changed his mind, and proceedcovering his presence upon the track; the com- ed on his motor car towards the south end pany not owing such employé a lookout duty, of his section. nor operating its train, causing such collision, track until he reached the Harrodsburg turn

He continued on the side at an excessive or dangerous speed. 8. MASTER AND SERVANT Om 286(34)-INJURY pike crossing, where he transferred his moTO RAILWAY EMPLOYÉ PEREMPTORY IN- tor car from the side track to the main STRUCTIONS.

track, and proceeded on his way. Although Where a railway company owed its signal Carter did not, at any time, inform himself inspector only the duty of protecting him after discovering his presence on the track, and en- / of the location of the trains upon the track, gineer's testimony that he made every effort to he doubtless knew the schedule of the reguprevent collision with the employé's motor car lar trains. upon discovering it 70 feet in front of him was uncontradicted, a peremptory instruction in

a the employer's favor should have been given. train closely followed by what is known as Appeal from Circuit Court, Jessamine the High Bridge hill engine. He took his mo

. County.

tor car off the track, let this train and engine Action by Ray Carter against the Cincin- pass, and then placed his car back on the nati, New Orleans & Texas Pacific Railway track and continued his journey. Company and others. From judgment for point about 2 miles south of Jessamine staplaintiff of $3,300 against the railway com- tion there is a rock cut 10 or 12 feet deep pany, such defendant appeals. Reversed.

and between 500 and 600 feet long. Entering

this cut from the north the track curves to Bronaugh & Bronaugh, of Nicholasville, the left. South of the cut there is a fill, and and John Galvin, of Cincinnati, Ohio, for south of the fill is another cut which exappellant. C. C. Bagby, Chenault Huguely, tends southwardly to an overhead bridge and Bagby & Huguely, all of Danville, and

near the Wilmore cemetery. The signal E. B. Hoover, of Nicholasville, for appellee. block or section 95—1 is located at the north MILLER, J. The appellant operates a

end of the second cut; and about 35 or 40 railroad from Cincinnati, Ohio, to Chatta yards north of this signal block there is nooga, Tenn., passing through Jessamine located what is known in the record as the county, Ky. It maintains an electric block “triangle.” The triangle is a post with a signal system for the protection of its trains. triangle on its top and has some connection This block system is divided into districts with the electric block system. The disor sections, each section being under the con- tance between the two cuts is about the distrol of a maintainer or signal inspector, who tance of ten telegraph poles, or 1,350 feet, personally looks after the maintenance of and the curve continues through both cuts. the blocks, making repairs, and seeing that

When Carter had reached a point between

the two cuts somewhere near the triangle he they are kept in working order. What is known as the Nicholasville sec

was run upon and hit from behind by a tion extends from a point north of Brannon train composed of an engine and a caboose near mi!epost 84 to a point a short distance approaching from the north, and running as north of Wilmore near milepost 95, and was

an "extra," at a speed of about 25 or 30 on December 23, 1915, under the charge of

miles an hour. Carter was knocked from the appellee, Ray Carter, as signal maintain the track and severely injured. The motor er. Carter had been in the service of the car landed on the pilot of the engine, from appellant in various capacities since 1907, which it was removed after the train had and had been signal inspector and main stopped at a point 150 or 200 yards south tainer for about six years. He was an ex

of the place of the accident. The engine perienced railroad (man, acquainted with

which hit Carter was a large engine of the the time card and the manner of running

type known as the 700 class.

It was For the purpose of traveling equipped with an automatic bell, which had over his section in the performance of his been ringing since the train left Lexington. duties as signal maintainer and inspector of About 300 yards north of the place of the the several signal stations in his section he accident the engine gave the usual signal used a gasoline motor car or track veloci- for the road crossing at the bridge south of pede, which was furnished him by the com- the point of the accident. It did not, howpany.

ever, give a crossing signal at the signal On December 23, 1915, Carter left the post which stood near the place of the actelegraph office at the Nicholasville station cident. about noon and went to nis home for dinner. The proof shows that a man standing on After dinner Carter returned to the tool- the track at the place of the accident and house, where he kept his motor car, and looking northwardly could see the track for placed it on the side or passing track, and a distance of 300 yards. But Rose, the engiproceeded southwardly, intending only to go neer, testified without contradiction that,

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

being on the right or outside of the curve, tracks no duty except to exercise ordinary as he proceeded southwardly, the boiler of care for his safety after his presence upon his engine obstructed his view as he passed the track has been discovered, unless the comaround the curve to such an extent that he pany owes him a lookout duty. But a lookdid not see Carter until he was within 70 out duty arises only where the public genfeet of him, and that he then immediately erally, with the knowledge and acquiescence put on the emergency brake, and did every of the company, have continuously used the thing that he possibly could have done to tracks for such a period of time that the prevent the collision.

presence of persons upon the track where it Carter brought this action against the rail is so used ought reasonably be anticipated. road company, Rose, the engineer, and Bak- In such cases the company owes to persons er, its conductor, and obtained a verdict and thus using its track the duty to give warnjudgment for $3,300 against the company. ing of the approach of its train, to keep a Rose and Baker were exonerated by a per- lookout, and to operate its train at such a emptory instruction. The company appeals. speed as may enable the engineer to stop it

The appellee rested his case upon three al before injury has been inflicted. I. C. R. R. leged grounds of negligence upon the part of Co. v. Murphy's Adm'r, 123 Ky. 787, 97 S. the company: (1) That the train was running W.729, 30 Ky. Law Rep. 93, 11 L. R. A. (N. S.) at a high and dangerous speed; (2) that the 352, L. & N. R. R. Co. v. McNary's Adm'r, company failed to maintain a proper lookout 128 Ky. 414, 108 S. W. 898, 32 Ky. Law Rep. for the appellee; and (3) it failed to give 1266, 17 L. R. A. (N. S.) 224, 129 Am. St. Rep. him timely warning of the train's approach. 308, I. C. R. R. Co. v. France's Adm'r, 130 Many other questions, such as contributory Ky. 26, 123 S. W. 336, C. & 0. Ry. Co. v. negligence upon the part of Carter, his as- Warnock's Adm'r, 150 Ky. 74, 150 S. W. sumption of risk, and whether the train and 29, and C. & 0. Ry. Co. v. Dawson's Adm'r, Carter were at the time engaged in inter- 159 Ky. 296, 167 S. W. 125, are a few of state or in intrastate commerce, have been the cases announcing this doctrine. But discussed and relied upon by the company ; Carter also owed a duty to the company.

in our opinion the case is to be disposed L., H. & St. L. Ry. Co. v. Jolly's Adm'r, 90 S. of under the grounds relied upon by the ap- W. 977, 28 Ky. Law Rep. 990, is, in its conpellee to sustain his judgment.

trolling facts, quite like the case at bar; and [1] It being elementary law that negli- in defining the duty of an employé using a gence is the failure to perform a duty, there tricycle on the track the court there said: can be no negligence where there is no duty. Schulte's Adm'r v. L. & N. R. R. Co., 128 Ky.

"When he took the tricycle out on the rail627, 108 S. W. 941, 33 Ky. Law Rep. 31; c. road track, it was incumbent upon himn to keep

out of the way of the train. It was not incum& 0. Ry. Co. v. Nipp's Adm’x, 125 Ky. 49, bent on the railroad company to keep a look100 S. W. 246; C., N. 0. & T. P. Ry. Co. v. out for him at places where the presence of Harrod's Adm'r, 132 Ky. 445, 115 S. W. 699 : persons on the track was not to be anticipated,

and it owed him no duty until his presence on Watson's Adm'r v. C. & 0. Ry. Co., 170 Ky. the track was discovered by those in charge of 259, 185 S. W. 852. What was the duty of the train. Dilas' Adm'r v. C. & O. R. R. Co., the railroad company to Carter under the 71 S. W. 492, 24 Ky. Law Rep. 1347; Jacob's facts of this case? Carter insists that the adm’r v. C. & 0. R. R. Co., 72 S.'W. 308,

24 Ky. Law Rep. 1879." company owed him the duty of not running its train at a dangerous speed, which in this

To the same effect, see I. C. R. R. Co. v. Tycase did not exceed 30 miles an hour, that it son's Adm'x, 108 S. W. 863, 32 Ky. Law Rep. owed him a lookout duty, thereby imposing 1390; C., N. 0. & T. P. Ry. Co. v. Harrod's upon the company the duty of exercising Adm'r, 132 Ky. 445, 115 S. W. 699; C., N. O. ordinary care in discovering the plaintiff's & T. P. Ry. Co. v. Yocum's Adm'r, 137 Ky. presence upon the track, and to give him 117, 123 S. W. 247, 1200; C. & 0. Ry. Co. v. timely warning of the train's approach. On Mountjoy's Adm'r, 148 Ky. 282, 146 S. W. the other hand, the company claims that it 371; L. & N. R. R. Co. v. Seeley's Adm'r, had the right to run its train in the country 180 Ky. 308, 202 S. W. 638; and the very reat any speed so that it did not endanger the cent case of L. & N. R. R. Ço. v. Elmore's safety of the train or its passengers; and, Adm'r, 180 Ky. 733, 203 S. W. 876, and the further, that the proof conclusively shows cases there cited. that the train was not running at a danger- [3, 4] Neither can appellee complain of the ous speed; that it did not owe appellee any speed of the train. The general rule is that lookout duty under the circumstances, but in the absence of a prohibitory statute or only to protect appellee after his peril was ordinance a railroad company may ordinaridiscovered ; and that the engineer did every- ly run its train at such speed as it sees fit, thing within his power to save the appellee and that a charge of negligence cannot be after his presence upon the track was dis predicated on the speed at which a train is covered. We will consider the several points run, unless there are attendant circumstancbriefly.

es which make such speed negligence. Hum- , [2] This court has often declared that a mer's Ex'r v. L. & N. R. R. Co., 128 Ky: 486,

N. R. R. Co. v. Engleman's Adm'r, 135 Ky. 515, it was the plaintiff's theory that if the sit122 S. W. 833, 21 Ann. Cas. 565; Louisville uation was such as required certain signals Ry. Co. v. Smock, 147 Ky. 345, 144 S. W. 40; and warnings to be given by moving trains note in Ann. Cas. 1914B, 602. There is no at or near the point of the accident, Harstatute in this state regulating the speed of rod was entitled to rely upon their being trains in the country; but whenever the given, and if they were not given, it was negtrack passes through a populous community, ligence as to him. But in overruling that or at a place where the presence of persons contention the court said: upon the track may reasonably be expected, "The public have little or no option as to it is the duty of the company to keep a look- what highways they must travel. The public out for such persons, to give notice of the policy has been and is to require railroad com

panies to give certain warning signals at the approach of its trains, and to moderate their bighway crossing. Why? In order to apprise speed to the extent that may be necessary travelers upon the highways about to use the for the protection of the public. I. C. R. Co. crossing that the railroad train was approachv. Flaherty, 139 Ky. 147, 129 S. W. 558; I. mer might, as they probably could, by stopping

it C. R. R. Co. v. Morphy's Adm'r, 123 Ky. 787, their vehicles, keep out of the way of the train, 97 S. W. 729, 30 Ky. Law Rep. 93, 11 L. R. or, if pedestrians, keep off the track while the

train was passing. A. (N. S.) 352, and cases there cited.

As trains running at a

high rate of speed cannot stop so easily, and [5] In this case the train was not, at the cannot turn out of the way at all, the warning time of the accident, running through a town is to the users of the highway, so that the train or village, or passing a point at which the can have a clear and unobstructed passage over

the crossing. This warning, then, is not for the presence of persons upon the track might benefit of those on the train or elsewhere than reasonably have been anticipated. The ac- at the railway highway crossing. * * * The cident occurred at 1:23 o'clock p. m. in the failure to whistle for the crossing may have country. The speed of a train under these the crossing, but for workmen about the yards

been negligence as to those of the public using conditions will not constitute negligence to half a mile away, though they may have come, persons on the track, whose presence is un- very naturally, to rely upon it, it was not a known. Brown's Adm'r v. L. & N. R. R. Co., duty owing to them, and its omission was not

therefore negligence as to them." 97 Ky. 228, 30 S. W. 639, 17 Ky. Law Rep. 148; Gregory v. L. & N. R. R. Co., 79 S. W.

[6] The rule announced in Cahill v. Cin238, 25 Ky. Law Rep. 1988. In Gregory v.

cinnati, etc., Ry. Co., 92 Ky. 345, 18 S. W. 2,

13 Ky. Law Rep. 714, that one about to use L. & N. R. Co., supra, the court said:

a private crossing was entitled to rely upon "If at every curve, bridge, tunnel, cut and fill not plainly in view for a long distance the train and have the benefit of signals usually given would have to slow up, give signals and warn- for a nearby public crossing, has been strictings, and take extraordinary precautions on ly confined in its application to those peraccount of possible trespassers, because other trespassers were in the habit of using the track. sons who used the crossing, and does not it would so retard as to practically destroy the extend to persons using the track. L. & N. railroad business. On the contrary, it is the R. R. Co. v. Elmore's Adm'r, supra, and the duty of these common carriers to serve the cases there cited. public by the diligent use of their tracks and means.

[7,8] None of the witnesses placed the Their duties are onerous, and they are necessarily held to a high standard of strict speed of the train at more than 30 miles an performance in their discharge to the public hour. It is clear, therefore, that since the with whom they must deal. To impose upon company did not owe Carter a lookout duty, them this additional and extraordinary burden of policing their whole line of tracks, or to and was not operating its train at an excesrun their trains so slow and with such fre- sive or dangerous speed, it owed him only quent warnings as to guard the safety of tres- the duty of protecting him after his presence passers, would be equivalent to turning the

The enright of way into a public highway for footmen. upon the track was discovered. Such a rule would be against the public policy gineer is, however, uncontradicted in his that considers alike the welfare of the public in statement that he did not discover Carter's securing to it rapid and safe service from the carrier as well as the preservation of human presence upon the track until the engine was life.”

within 70 feet of him, and that he then did

everything within his power to prevent the Neither is appellee in a position to com-collision. So, we find, under the facts of this plain that the company was remiss, in any case, that the appellant was not negligent in degree, in failing to give him warning of the any of the respects charged, and that the approach of the train. In C., N. 0. & T. P. court should have sustained the company's Ry. Co. v. Harrod's Adm'r, 132 Ky. 445, 115 motion for a seremptory instruction. L., H. S. W. 699, where a brakeman was killed, it & St. L. Ry. Co. v. Jolly's Adm'x, 90 S. W. was claimed, as here, that the engineer of 977, 28 Ky. Law Rep. 989, C. & 0. Ry. Co. V. the train that killed Harrod was guilty of Mountjoy's Adm'r, 148 Ky. 282, 146 S. W. negligence in failing to give warning of the 371, L. & N. R. R. Co. v. Elmore's Adm'r, approach of the train, and in running it at supra. a high and dangerous speed. In that case, Judgment reversed.