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ed with running the interstate trains. This , S. W. 375. That case is somewhat similar to is true no less of a line which is used for the the one under consideration, but easily dispassage of both interstate and intrastate tinguishable from it. Kelly was engaged in trains. Likewise is one engaged in inter- loading steel which had been removed from state commerce who carries rivets, nuts, and the tracks, to be carried for storage at some bolts to a bridge crew who are repairing a other place, or to be sold and disposed of as bridge over which interstate trains pass, scrap iron, and not to be employed in repaireven though at the time of the injury he being the tracks. If the steel which Kelly was walking along the track carrying the supplies injured by loading had been intended for the at a point distant from the bridge. It was repair of the track at some other place in the also held in the case of L. & N. Railroad Co. line of the interstate carrier, as is claimed v. Walker's Adm'r, 162 Ky. 209, 172 S. w. by Probus in this case, Kelly would have 517, that a laborer, on a trestle, used by a been entitled to the benefits of the Federal railroad company in intrastate and inter- Employers' Liability Act. state commerce, is engaged in interstate com- [3] Under the evidence presented, we conmerce within the meaning of the Federal clude that the trial court should have subEmployers' Liability Act; and if said em- mitted to the jury, under proper instruction, ployé is injured after working hours, but the question of whether the appellant Probus while walking along the tracks going to was engaged in intrastate commerce, or interboarding cars in which he eats and sleeps state commerce; and, if the jury found from after the day's work, he is nevertheless en- the facts that Probus was engaged in intratitled to recover.

state commerce, it should then have been A carpenter injured while working on an directed to find and return a verdict for Pro• extension to a railroad repair shop was held bus, if it further believed from the evidence engaged in work in aid of interstate com- that Probus was injured, and his injury was merce, where an old structure was already the result, in whole or in part, of the negliin use as an instrumentality of such com- gence of the railroad company, or of those merce. Thompson v. C., N. 0. & T. P. Ry. employed with Probus in handling the rails. Co., 165 Ky. 256, 176 S. W. 1006, Ann. Cas. For the reasons indicated, the judgment is 1917A, 1266. A case very similar to the one reversed for a new trial in conformity to this at bar is C., N. 0. & T. P. Ry. Co. v. Tucker, opinion. 168 Ky. 144, 181 S. W. 940, where it was held that a section hand while assisting in lifting

(181 Ky. 45) a steel rail from its resting place on the

BUSKIRK et al. v. CAUDILL. right of way, preparatory to bearing it to the roadbed to be employed in repairing the Court of Appeals of Kentucky. June 11, 1918.) track, was engaged in interstate commerce. 1. MASTER AND SERVANT O 287(8) 289(26)—

One engaged in operating a turntable in a INJURIES TO SERVANT-CONTRIBUTORY NEGrailroad yard, which table is used in han- LIGENCE-QUESTIONS FOR JURY. dling interstate trains, is engaged in inter

Evidence that the servant who was killed

was subject to the orders of another servant, state commerce, and entitled to the benefits and that it was not his duty to close a switch of the Federal Employers' Liability Act. C. unless ordered to do so, made the questions of & 0. Ry. Co. v. Kornhoff, 167 Ky. 353, 180 whether they were fellow servants and whethS. W. 523. So, also, is a pan puller in a rail- he was killed by a train which ran into the

er deceased was negligent jury questions, when road yard engaged in dumping ashes from an track on which he was working through the engine, used to propel interstate trains, em-open switch. ployed in interstate commerce, and entitled 2. MASTER AND SERVANT O137(4)—INJURIES to the benefits of the Federal Employers' Lia

TO SERVANT-NEGLIGENCE OF OTHER SERVbility Act. C., N. O. & T. P. Ry. Co. v. Clarke,

ANTS.

Where conductor of logging train was re169 Ky. 662, 185 S. W. 94.

quired to stay on the front of the train to keep A baggage master, whose run was from a lookout, the mere fact that it was the custom Cincinnati, Ohio, to Maysville, Ky., and who to keep a spur switch closed did not relieve him was injured at Maysville, while assisting in when the train ran on the spur through the

of the negligence in failing to keep a lookout side-tracking the train to permit the passage open switch and struck the car under which of another, held to be engaged in interstate deceased was working. commerce and entitled to the benefits of the 3. MASTER AND SERVANT Onn198(11)-INJU. act. C. & 0. Ry. Co. v. Shaw, 168 Ky. 537, RIES TO SERVANT—"FELLOW SERVANT." 182 S. W. 653. A very interesting recent case

Conductor and engineer of a logging train

were not fellow servants of a helper on a log is Hargrove v. Gulf, C. & S. F. Ry. Co. (Tex. loader used in loading the cars of the train. Civ. App.) 202 S. W. 188. This case appears [Ed. Note. For other definitions, see Words to extend the rule so as to include an em- and Phrases, First and Second Series, Fellow ployé of an interstate carrier who is assist-Servant.] ing in loading rails already removed from 4. MASTER AND SERVANT 333 INJURIES the track, and not again to be so used.

TO SERVANT-NEGLIGENCE OF OTHER SERVAppellee railroad relies upon the case of

ANTS—LIABILITY OF MASTER.

The master may be held liable for the neg. Illinois Central R. Co. v. Kelly, decided ligence of his employés, although the employés January, 1916, and found in 167 Ky. 745, 181 I are acquitted of liability.

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5. REMOVAL OF CAUSES O 49(3)–GROUNDS. the loader for the purpose of doing some

In action for death of servant where there work. The loader was then about 70 feet was evidence that deceased's foreman was guilty from the switch, and the approaching train of gross negligence, the action against the fore- from the switch, and the approaching train man and the employer, which was a nonresi- | came in contact with the loader and killed dent corporation, could not be removed to the Caudill. According to the evidence for plainfederal court merely because no recovery was tiff, it was Caudill's duty to obey the orders obtained against the resident defendant.

and directions of Hoover, and not Caudill's Appeal from . Circuit Court, Breathitt

duty to close the switch unless directed by County.

Hoover. There was also evidence to the Suit by Isham Caudill, administrator of effect that it was the duty of the conductor, Joseph Caudill, deceased, against the Hunt- who was in the engine at the time, to be ington Contracting Company and U. B. Bus- on the front of the train for the purpose of kirk and another, copartners under the firm keeping a lookout, that the open switch could name of the Kentucky River Hardwood Com- have been seen for a distance of about 150 pany and another. Judgment on verdict feet, and that the train, which was going against Buskirk and his partner, and they at the rate of about 4 miles an hour, could appeal. Affirmed.

have been stopped within a distance of 30 Chester Gourley, of Jackson, for appel- or 40 feet. According to the evidence for

E. E. Hogg, of Bonneville, and J. M. defendants, the members of the loader crew McDaniel, of Beattyville, for appellee. were under the control of Charles Wright,

the scaler, and Hoover had no authority over CLAY, C. Isham Caudill, as administra- Caudill. The defendants also showed that it tor of Joseph Caudill, deceased, brought this was the duty of Caudill, who had opened the suit against the Huntington Contracting switch, also to close it, and that it was the Company, U. B. Buskirk, and S. M. Croft, as uniform custom to have the spur switch partners doing business under the firm closed on the return of the train from Spicename of Kentucky River Hardwood Com- wood. pany, and Brad Hoover, to recover damages [1] The argument that a peremptory infor his death. The jury returned a verdict struction should have gone, not only on the in favor of plaintiff for $10,000 against Bus- ground that Hoover and Caudill were fellow kirk and Croft, as partners, and they ap- servants, but for the further reason that peal.

Caudill was guilty of contributory negligence At the time of the accident, which occur in not closing the switch, loses its force when red on February 17, 1913, Buskirk and Croft it is recalled that there was substantial eviwere the owners of a large quantity of dence to the effect that Caudill was subject standing timber on the South fork of Quick- to the orders of Hoover, and that it was not sand and other waters of the North fork of the duty of Caudill to close the switch unKentucky river in Breathitt county. For less directed to do so by Hoover, thus makthe purpose of removing the timber they ing the question of fellow servant and conbuilt and operated a narrow gauge railroad tributory negligence one for the jury. about 21 miles in length. About 7 miles [2] But it is insisted that the trial court above Portsmouth and about 15 miles from erred in authorizing a recovery for the neg. the terminus at Quicksand, there was a ligence of those operating the train. In this spur track leading from the main line up connection it is argued that, as it was the Jim's Branch for a distance of 2 or 3 miles. custom to have the spur switch closed upon Buskirk and Croft contracted with the Hunt- the 'return of the train from Spicewood, ington Contracting Company, a corporation, those in charge of the train had no reason to operate the railroad and log their timber. to anticipate that it would be open, and were To facilịtate the work several self-operating therefore not charged with the duty of keepsteam log loaders were used. The crew of one ing a lookout. It must be remembered that of these log loaders consisted of Brad Hoov- the engine was in the rear and was pushing er, the "loader man,” Lawrence Shannon, about 14 empty cars. The train was about the “top loader," Carl Strong, the “tong 330 feet long. Both the engineer and conhooker," and the deceased, Joe Caudill, who ductor were in the engine. The conductor was known as a "gin” hand. Just prior testifies emphatically that it was his duty to the accident the loader was placed on the to be on the front end of the train, and that Jim's Branch spur, and the engine and cer- if he had been there he could have seen that tain: cars then ran down to Spicewood. the switch was open when about 50 yards While the engine was gone the log loader away. Not only so, but the loader was about went out on the main track to take water, 70 feet from the switch, and if the conductor and on its return to the spur, the switch was had been on the front end of the train he not closed. About 30 minutes later, the could have seen that the train was going on engine returned with 14 empty cars in front. the spur track and towards the loader in At that time Joe Caudill, who was 17 years time to have signaled the engineer to stop of age and had been at work for about three it within a distance of 30 or 40 feet. Clearly, weeks, was ordered by Hoover to go under where an employé is charged with a partic

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203 S.W.-55

ular duty, he cannot be relieved from the gross negligence on the occasion of the acciperformance of that duty by the mere as- dent. That being true, the cause was not sumption that some one else will not be neg- removable, because no case was made out ligent. Under the circumstances we con- against the local defendant. clude that the court did not err in holding On the whole, the issues involved were that the defendants were negligent in not fairly submitted by the instructions, and having some one on the train in a position we find no error in the record prejudicial to to keep an effective lookout, and in submit- the substantial rights of appellants. ting this issue of negligence to the jury. Judgment affirmed.

[3] Nor can we say that the engineer and conductor in charge of the train were fellow

(181 Ky. 4) servants of Caudill. While it may be true

COMMONWEALTH V. ADAMS EXthat those in charge of the train had occa

PRESS CO. * sional duties to perform in connection with the loader, they and the “gin” hands were, (Court of Appeals of Kentucky. June 7, 1918.) as a matter of fact, engaged in separate de- INTOXICATING LIQUORS Cw163–FURNISHING

ON ELECTION DAY-CONSTRUCTION OF STATpartments of work, and their duties were not

UTE. such as to bring them into such relations Ky. St. 1575, making it a misdemeanor to that they could exercise an influence upon furnish intoxicating liquors to a person in a each other promotive of proper caution. Mil. precinct upon the day of any election therein,

does not prohibit furnishing of liquor to a perton's Adm'r v. Frankfort & V. Traction Co., son in a school subdistrict, although an election 139 Ky. 53, 129 S. W. 322; Stearns Coal Co. of school trustees was being held in another subv. King, 167 Ky. 719, 181 S. W. 329.

district in same precinct. [4] The point is also made that the trial Appeal from Circuit Court, Whitley court should have entered judgment upon the County. verdict in favor of the appellants, because Adams Express Company was acquitted no verdict was returned against Hoover, of furnishing intoxicating liquors on election their negligent employé. Whatever the rule day, and the Commonwealth appeals. Afmay be in other jurisdictions, it is well set firmed. tled in this state that the master may be

Chas. H. Morris, Atty. Gen., D. 0. Myatt held liable for the negligence of his employé, Asst. Atty. Gen., and J. B. Snyder and W. B. even though the employé be acquitted of Early, both of Williamsburg, for the Comliability. Chesapeake & 0. Ry. Co. v. Daw

monwealth. Lawrence Maxwell and Joseph son's Adm’r, 159 Ky. 301, 167 S. W. 125; S. Graydon, both of Cincinnati, Ohio, and Broadway Coal Mining Co. v. Robinson, 150

Tye & Siler, of Williamsburg, for appellee. Ky. 707, 150 S. W. 1000. It therefore follows the appellants were not entitled to a

MILLER, J. This appeal presents the judgment notwithstanding the verdict be question whether a common carrier by excause there was no finding against Hoover,

press, which carried a shipment of liquor their negligent employé.

from a licensed dealer in Covington, Ky., to [5] Upon the institution of this suit in the the purchaser thereof at Savoy, in Whitley Breathitt circuit court, all the defendants county, Ky., and there delivered it to the filed a petition and bond for removal of the purchaser in the regular course of business, cause to the United States District Court violated section 1575 of the Kentucky Statfor the Eastern District of Kentucky, on the utes; the delivery having been made on a ground of diversity of citizenship. The pe- day when no election was held at Savoy or tition was sustained, and the order of re- in the school district within which Savoy is moval made. Subsequently it was made to located, although Savoy and the said school appear in the Federal court that Brad Hoov-district were included in a voting 'precinct er, one of the defendants, was a resident in some parts of which a general school of Kentucky, and the cause was remanded election for electing trustees was then being to the state court. At the conclusion of the

held. evidence heard on the trial, Buskirk and

Section 1575 of the Kentucky Statutes Croft, and the Huntington Contracting Com- reads, in part, as follows: pany, again filed their petition and bond for

“Whoever sells, loans, gives or furnishes to any removal on the ground of separable contro- person or persons, either directly or indirectly, versy and fraudulent joinder, and it is claim- spirituous, vinous or malt liquors, or any other ed that their petition for removal should intoxicating drink, in any precinct, town, city

or county of this commonwealth, upon the day have been granted because no case was made of any general or primary clection therein, shall out against Brad Hoover, the local defend-be guilty of a misdemeanor, and, upon convicant. Whether if that had been true a re- tion thereof, shall be fined the sum of not less moval would have been proper at that time each offense, which may be recovered by proceed

than twenty-five nor more than fifty dollars for it is unnecessary to determine. It is suffi- ings in any court of competent jurisdiction, or cient to say that there was substantial evi- by indictment in the circuit court." dence that Hoover was superior in authority By a stipulation of record it is agreed to the deceased, and that he was guilty of l that prior to October 7, 1916, Isham Alder, a

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resident of Savoy, in Whitley county, trans-, not in terms limit the prohibition to that pormitted in regular course of mail to John Doe, tion of a precinct in which an election is held. a licensed dealer in intoxicating liquors at The statute is general in its terms, and when Covington, in Kenton county, an order for strictly construed would prevent the furnishone gallon of liquor to be shipped by Johning of liquor in a school subdistrict in which Doe over the lines of the Adams Express no election was held, provided an election Company to said Ishan Alder at Savoy, in was held in some other school subdistrict in Whitley county; that Alder sent the pur- | the same precinct. But this would be givchase price of the liquor with the order, and ing the statute too narrow a construction. the money was accepted by John Doe in full The purpose of the statute was to prevent payment of the liquor which he thereafter, the presence and use of liquor at elections, on October 6, 1916, in pursuance of the order, and that being true it should not be so condelivered to the defendant the Adams Ex-strued as to prevent the furnishing of liqpress Company at its office in Covington, uor to a man in a territory, whether it be Kenton county, marked and labeled as re- called a school subdistrict or a precinct, in quired by the act of March 9, 1914 (Laws which no election was held. That this was 1914, c. 7); that the express company on the the purpose of the statute appears from the following day delivered the whisky to Alder following language taken from the opinion at Savoy in the regular course of business as of this court in Ford v. Moss, Judge, 124 Ky. a common carrier by express; and that Al- 290, 98 S. W. 1015, 30 Ky. Law Rep. 428: der then paid the defendant the express "The Constitution required the General Ascharges for the carriage of the shipment sembly to enact necessary laws to restrict or from Covington to Savoy.

It is further prevent the sale or gift of such liquors on elec

tion days. There is nothing in the section (secagreed that on October 7, 1916, a general tion 154, Const.) to indicate that the convention school election was held in about one-half deemed the use of such liquors as less hurtful of the common school subdistricts of Whitley on one election day than another. The general

purpose seems to include all election days. Socounty, as provided by law, for the purpose ber judgment, peace, and good order are deemed of electing common school trustees in the desirable and necessary for the exercise of the various subdistricts in the county; that Sa-high duty of citizenship on all days when the voy was located in a common school sub- electors are called upon to select their servants, voy was located in a common school sub- or to vote upon public measures. There is no district wherein no school election for any pur- matter of more importance, or which has been pose was held on October 7, 1916, but that shown more regard by the constitutional conventhere were other common school subdistricts the state, than the interest of the people in their

tion, or by the various General Assemblies of in the voting precinct wherein Savoy is locat- common 'schools." ed, and in which common school subdistricts

The purpose of the Legislature in enactelections were held on October 7, 1916; and ing this statute clearly being to guard electhat the express company had no ownership tions against the presence and influence of or interest in the liquor thus delivered to liquor, it would seem necessarily to follow Alder, or any other connection with the that the statute does not apply to territory transaction, except as above narrated. Up-in which no election is held, and that, the on a trial by the circuit court without the liquor having been delivered to Alder in a intervention of a jury the express company school subdistrict in which no election was was acquitted, and the commonwealth ap held, the circuit court properly acquitted the pealed.

appellee. Appellee contends that the judgment of the circuit court should be sustained under

(181 Ky. 70) either of two views of the statute; first, BLACKFORD V. ST. LOUIS, I, M. & S. RY. that the case does not come within the terms

CO. et al. of the statute which denounces one who "sells,” "loans,” or “furnishes" intoxicating (Court of Appeals of Kentucky. June 11, 1918.) liquors; and, second, that the statute is not 1. CARRIERS Om30—INTERSTATE SHIPMENTSbroad enough in its terms to cover a case

SCHEDULE OF RATES. like the one at bar where no school election schedule of rates filed with the Interstate Com

Both shipper and carrier are bound by the was held in the Savoy subdistrict on the day merce Commission, and the charging of a lesser of the delivery of the whisky to Alder, al- rate, whether through mistake or otherwise, is though an election was held in other subdis- illegal and void.

2. CARRIERS OM 30–INTERSTATE SHIPMENTStricts of the precinct.

POSTING OF RATES. Passing the first contention, and without Failure of carrier to post in its station a deciding whether the appellee "furnished" copy of rates filed with Interstate Commerce the intoxicating liquor to Alder, we think it Commission will not relieve the carrier or shipclear under the second view of the case above 3. EVIDENCE @mw 65–RATES FILED WITH IN

per from its binding effect. suggested that the judgment of acquittal was TERSTATE COMMERCE COMMISSION-KNOWLproper. It is true the statute denounces the EDGE OF SHIPPER-PRESUMPTIONS. sale, loan, gift, or furnishing of liquor to knowledge of the rates fixed in the schedule filed

A shipper is conclusively presumed to have any person in any precinct upon the day knowledge of the rates fixed in the schedule filed

by the carrier with the Interstate Commerce of any general or primary election, and does Commission.

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4. CARRIERS C 223–INTERSTATE SHIPMENTS / ment, which if he had done correctly it would

OF LIVE STOCK-DUTY OF SHIPPER TO PAY have been paid and there would have been LEGAL RATES.

Where plaintiff shipper of a carload of hors- no delay in unloading it at its destination. es, through mistake of agent in naming total It is also alleged that because of the long amount, paid initial carrier a lesser rate than haul the horses became "droopy," and Bookie that fixed by schedule on file with the Interstate Commerce Commission and in effect at date of was especially in that condition when the shipment, it was his duty to pay the additional shipment arrived at Louisville, and "plainamount, demanded by delivering carrier on ar- tiff states that said shipment was not unrival of shipment, and where he failed to do so, loaded and cared for and not delivered by he could not recover for damages for delay in unloading due to failure to pay additional the defendant Louisville & Nashville Railamount.

road Company, and that it did not allow this Appeal from Circuit Court, Jefferson Coun- plaintiff to unload and care for said stock ty, Common Pleas Branch; Second Division. until the morning of April 14, 1916, and

Action by G. L. Blackford against the St. some 19 hours after its arrival at South LouLouis, Iron Mountain & Southern Railway isville, Ky., as aforesaid, being allowed by Company and another. Judgment for de said defendant to remain confined in the car fendants, and plaintiff appeals. Affirmed. in which it arrived at South Louisville dur

ing this interim.” Demurrers filed by each Thomas C. Mapother, of Louisville, for

defendant were overruled, and in separate appellant. Helm & Helm and Benjamin D. Warfield, all of Louisville, and Edw. J. White, answers they denied the allegations of the Warfield, all of Louisville, and Edw. J. White, petition and pleaded contributory negligence; of St. Louis, Mo., for appellees.

in a third paragraph they relied upon the

fact that the rate for this character of shipTHOMAS, J. The appellant and plaintiff ments had been filed with the Interstate below, G. L. Blackford, on April 11, 1916, Commerce Commission and that the total shipped from Hot Springs, Ark, to Louisville, amount of it was, according to the schedule Ky., seven race horses, among which was so filed, the sum of $261.90, instead of one named “Bookie.” The appellee St. Louis, $176.10, the amount paid by plaintiff at the Iron Mountain & Southern Railway Company beginning of the shipment. A reply completwas the initial carrier, while the delivering ed the issues, and upon a trial of the case one was the appellee Louisville & Nashville the court gave to the jury a peremptory inRailroad Company, which took possession of struction to find for the defendants, which the shipment at Memphis, Tenn. In the

was done, and the petition was dismissed. early afternoon of April 13th the shipment, To reverse that judgment this appeal is proswhich was made in an Arms palace car of the

ecuted. largest and best-equipped size and especial

A part of section 6 of the Interstate Comly designed for the shipment of horses, ar- merce Act (Act Feb. 4, 1887, c. 104, 24 Stat. rived in the city of Louisville. The rate 380 [U. S. Comp. St. 1916, § 8569]) is: which was quoted by the agent at Hot

"That every common carrier subject to the Springs to plaintiff for the shipment, and provisions of this act shall file with the Comwhich was paid by him, was $176.10, but it mission created by this act and print and keep was afterward discovered that this sum lack-open to public inspection schedules showing all ed $85.80 of being the rate for that character between different points *

the rates, fares, and charges for transportation

on the route of shipments between the two points mention of any other carrier by railroad, by pipe line, ed, which rate was on file with the Interstate or by water, when a through rate and joint rate Commerce Commission and in effect on the have been established.” date of the shipment. Upon the arrival of the The common carriers subject to the prostock in Louisville the Louisville & Nashville visions of that act are interstate carriers, Railroad Company declined to permit the and it is not disputed in this case, but that horses to be unloaded until the balance of the the shipment was an interstate shipment. freight, $85.80, was paid. This was not done Neither is it disputed, but if so it is estabuntil the next morning, when the stock was lished without contradictory proof, that at unloaded at Douglas Park in that city, and the time of the shipment involved there had two days thereafter, on April 16th, the horse been filed with the Interstate Commerce Bookie developed a case of pneumonia, from Commission, in compliance with the Interwhich he died on April 24th, and to recover state Commerce Act, a schedule for rates for his value, which is alleged to be $20,000, of this character of shipment between Hot and for medicine and bill of the veterinary Springs, Ark., and Louisville, Ky., and it is surgeon, amounting to $52, plaintiff filed this likewise admitted that the freight between suit against the two corporations, alleging the two points mentioned on this character that the detention of the horses in the car of shipment under the schedule so filed was from the afternoon of April 13th until the $261.90 instead of $176.10, the amount paid at morning of April 14th was the cause of Hot Springs. A fact equally well establishBookie contracting and developing pneumo- ed is that the agent at Hot Springs made a nia, and that the agent of the initial carrier mistake in naming the total amount of had wrongfully quoted the freight on the ship- freight between the two points.

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