the one under consideration, but easily distinguishable from it. Kelly was engaged in loading steel which had been removed from the tracks, to be carried for storage at some other place, or to be sold and disposed of as scrap iron, and not to be employed in repairing the tracks. If the steel which Kelly was injured by loading had been intended for the repair of the track at some other place in the line of the interstate carrier, as is claimed by Probus in this case, Kelly would have been entitled to the benefits of the Federal Employers' Liability Act. 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 passage of both interstate and intrastate trains. Likewise is one engaged in interstate commerce who carries rivets, nuts, and bolts to a bridge crew who are repairing a bridge over which interstate trains pass, even though at the time of the injury he be walking along the track carrying the supplies at a point distant from the bridge. It was also held in the case of L. & N. Railroad Co. v. Walker's Adm'r, 162 Ky. 209, 172 S. W. 517, that a laborer, on a trestle, used by a railroad company in intrastate and interstate commerce, is engaged in interstate commerce within the meaning of the Federal Employers' Liability Act; and if said employé is injured after working hours, but while walking along the tracks going to boarding cars in which he eats and sleeps after the day's work, he is nevertheless entitled to recover. A carpenter injured while working on an ⚫ extension to a railroad repair shop was held engaged in work in aid of interstate commerce, where an old structure was already in use as an instrumentality of such comThompson v. C., N. O. & T. P. Ry. Co., 165 Ky. 256, 176 S. W. 1006, Ann. Cas. 1917A, 1266. A case very similar to the one at bar is C., N. O. & T. P. Ry. Co. v. Tucker, 168 Ky. 144, 181 S. W. 940, where it was held that a section hand while assisting in lifting a steel rail from its resting place on the right of way, preparatory to bearing it to the roadbed to be employed in repairing the track, was engaged in interstate commerce. One engaged in operating a turntable in a railroad yard, which table is used in handling interstate trains, is engaged in interstate commerce, and entitled to the benefits of the Federal Employers' Liability Act. C. & O. Ry. Co. v. Kornhoff, 167 Ky. 353, 180 S. W. 523. So, also, is a pan puller in a railroad yard engaged in dumping ashes from an engine, used to propel interstate trains, employed in interstate commerce, and entitled to the benefits of the Federal Employers' Liability Act. C., N. O. & T. P. Ry. Co. v. Clarke, 169 Ky. 662, 185 S. W. 94. A baggage master, whose run was from Cincinnati, Ohio, to Maysville, Ky., and who was injured at Maysville, while assisting in side-tracking the train to permit the passage of another, held to be engaged in interstate commerce and entitled to the benefits of the C. & O. Ry. Co. v. Shaw, 168 Ky. 537, 182 S. W. 653. A very interesting recent case is Hargrove v. Gulf, C. & S. F. Ry. Co. (Tex. Civ. App.) 202 S. W. 188. This case appears to extend the rule so as to include an employé of an interstate carrier who is assisting in loading rails already removed from the track, and not again to be so used. [3] Under the evidence presented, we conclude that the trial court should have submitted to the jury, under proper instruction, the question of whether the appellant Probus was engaged in intrastate commerce, or interstate commerce; and, if the jury found from the facts that Probus was engaged in intrastate commerce, it should then have been directed to find and return a verdict for Probus, if it further believed from the evidence that Probus was injured, and his injury was the result, in whole or in part, of the negligence of the railroad company, or of those employed with Probus in handling the rails. For the reasons indicated, the judgment is reversed for a new trial in conformity to this opinion. (181 Ky. 45) * BUSKIRK et al. v. CAUDILL. INJURIES TO SERVANT-CONTRIBUTORY NEG- Evidence that the servant who was killed was subject to the orders of another servant, and that it was not his duty to close a switch unless ordered to do so, made the questions of whether they were fellow servants and whethhe was killed by a train which ran into the er deceased was negligent jury questions, when track on which he was working through the open switch. 2. MASTER AND SERVANT 137(4)-INJURIES TO SERVANT-NEGLIGENCE OF OTHER SERVANTS. Where conductor of logging train was required to stay on the front of the train to keep a lookout, the mere fact that it was the custom to keep a spur switch closed did not relieve him of the negligence in failing to keep a lookout when the train ran on the spur through the open switch and struck the car under which deceased was working. 3. MASTER AND SERVANT 198(11)-INJU RIES TO SERVANT "FELLOW SERVANT." Conductor and engineer of a logging train were not fellow servants of a helper on a log loader used in loading the cars of the train. [Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Fellow Servant.] 4. MASTER AND SERVANT 333- INJURIES TO SERVANT-NEGLIGENCE OF OTHER SERVANTS-LIABILITY OF MASTER. Appellee railroad relies upon the case of The master may be held liable for the negIllinois 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. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 5. REMOVAL OF CAUSES 49(3)-GROunds. Appeal from. Circuit Court, Breathitt Suit by Isham Caudill, administrator of Joseph Caudill, deceased, against the Huntington Contracting Company and U. B. Buskirk and another, copartners under the firm name of the Kentucky River Hardwood Company and another. Judgment on verdict against Buskirk and his partner, and they appeal. Affirmed. Chester Gourley, of Jackson, for appellants. E. E. Hogg, of Bonneville, and J. M. McDaniel, of Beattyville, for appellee. CLAY, C. Isham Caudill, as administrator of Joseph Caudill, deceased, brought this suit against the Huntington Contracting Company, U. B. Buskirk, and S. M. Croft, as partners doing business under the firm name of Kentucky River Hardwood Company, and Brad Hoover, to recover damages for his death. The jury returned a verdict in favor of plaintiff for $10,000 against Buskirk and Croft, as partners, and they appeal. At the time of the accident, which occurred on February 17, 1913, Buskirk and Croft were the owners of a large quantity of standing timber on the South fork of Quicksand and other waters of the North fork of Kentucky river in Breathitt county. For the purpose of removing the timber they built and operated a narrow gauge railroad about 21 miles in length. About 7 miles above Portsmouth and about. 15 miles from the terminus at Quicksand, there was a spur track leading from the main line up Jim's Branch for a distance of 2 or 3 miles. Buskirk and Croft contracted with the Huntington Contracting Company, a corporation, to operate the railroad and log their timber. To facilitate the work several self-operating steam log loaders were used. The crew of one of these log loaders consisted of Brad Hoover, the "loader man," Lawrence Shannon, the "top loader," Carl Strong, the "tong hooker," and the deceased, Joe Caudill, who was known as a "gin" hand. Just prior to the accident the loader was placed on the Jim's Branch spur, and the engine and certain cars then ran down to Spicewood. While the engine was gone the log loader went out on the main track to take water, and on its return to the spur, the switch was not closed. About 30 minutes later, the engine returned with 14 empty cars in front. At that time Joe Caudill, who was 17 years of age and had been at work for about three weeks, was ordered by Hoover to go under the loader for the purpose of doing some work. The loader was then about 70 feet from the switch, and the approaching train from the switch, and the approaching train came in contact with the loader and killed Caudill. According to the evidence for plaintiff, it was Caudill's duty to obey the orders and directions of Hoover, and not Caudill's duty to close the switch unless directed by Hoover. There was also evidence to the effect that it was the duty of the conductor, who was in the engine at the time, to be on the front of the train for the purpose of keeping a lookout, that the open switch could have been seen for a distance of about 150 feet, and that the train, which was going at the rate of about 4 miles an hour, could have been stopped within a distance of 30 or 40 feet. According to the evidence for defendants, the members of the loader crew were under the control of Charles Wright, the scaler, and Hoover had no authority over Caudill. The defendants also showed that it was the duty of Caudill, who had opened the switch, also to close it, and that it was the uniform custom to have the spur switch closed on the return of the train from Spicewood. [1] The argument that a peremptory instruction should have gone, not only on the ground that Hoover and Caudill were fellow servants, but for the further reason that Caudill was guilty of contributory negligence in not closing the switch, loses its force when it is recalled that there was substantial evidence to the effect that Caudill was subject to the orders of Hoover, and that it was not the duty of Caudill to close the switch unless directed to do so by Hoover, thus making the question of fellow servant and contributory negligence one for the jury. [2] But it is insisted that the trial court erred in authorizing a recovery for the negligence of those operating the train. In this connection it is argued that, as it was the custom to have the spur switch closed upon the return of the train from Spicewood, those in charge of the train had no reason to anticipate that it would be open, and were therefore not charged with the duty of keeping a lookout. It must be remembered that the engine was in the rear and was pushing about 14 empty cars. The train was about 330 feet long. Both the engineer and conductor were in the engine. The conductor testifies emphatically that it was his duty to be on the front end of the train, and that if he had been there he could have seen that the switch was open when about 50 yards. away. Not only so, but the loader was about 70 feet from the switch, and if the conductor had been on the front end of the train he could have seen that the train was going on the spur track and towards the loader in time to have signaled the engineer to stop it within a distance of 30 or 40 feet. Clearly, where an employé is charged with a partic For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 203 S.W.-55 ular duty, he cannot be relieved from the performance of that duty by the mere assumption that some one else will not be negligent. Under the circumstances we conclude that the court did not err in holding that the defendants were negligent in not having some one on the train in a position to keep an effective lookout, and in submitting this issue of negligence to the jury. [3] Nor can we say that the engineer and conductor in charge of the train were fellow servants of Caudill. While it may be true that those in charge of the train had occasional duties to perform in connection with the loader, they and the "gin" hands were, as a matter of fact, engaged in separate departments of work, and their duties were not such as to bring them into such relations that they could exercise an influence upon each other promotive of proper caution. Milton's Adm'r v. Frankfort & V. Traction Co., 139 Ky. 53, 129 S. W. 322; Stearns Coal Co. v. King, 167 Ky. 719, 181 S. W. 329. gross negligence on the occasion of the accident. That being true, the cause was not removable, because no case was made out against the local defendant. On the whole, the issues involved were fairly submitted by the instructions, and we find no error in the record prejudicial to the substantial rights of appellants. Judgment affirmed. (181 Ky. 4) COMMONWEALTH v. ADAMS EX- (Court of Appeals of Kentucky. June 7, 1918.) Ky. St. § 1575, making it a misdemeanor to furnish intoxicating liquors to a person in a precinct upon the day of any election therein, does not prohibit furnishing of liquor to a person in a school subdistrict, although an election of school trustees was being held in another subdistrict in same precinct. Appeal from Circuit Court, Whitley County. Adams Express Company was acquitted of furnishing intoxicating liquors on election day, and the Commonwealth appeals. Affirmed. [4] The point is also made that the trial court should have entered judgment upon the verdict in favor of the appellants, because returned against Hoover, their negligent employé. Whatever the rule may be in other jurisdictions, it is well settled in this state that the master may be Chas. H. Morris, Atty. Gen., D. O. 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 & O. 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 judgment notwithstanding the verdict because there was no finding against Hoover, their negligent employé. MILLER, J. This appeal presents the question whether a common carrier by express, which carried a shipment of liquor 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 evidence heard on the trial, Buskirk and Croft, and the Huntington Contracting Company, again filed their petition and bond for removal on the ground of separable controversy and fraudulent joinder, and it is claimed that their petition for removal should have been granted because no case was made out against Brad Hoover, the local defendant. Whether if that had been true a removal would have been proper at that time it is unnecessary to determine. It is sufficient to say that there was substantial evidence that Hoover was superior in authority to the deceased, and that he was guilty of held. Section 1575 of the Kentucky Statutes reads, in part, as follows: "Whoever sells, loans, gives or furnishes to any person or persons, either directly or indirectly, spirituous, vinous or malt liquors, or any other intoxicating drink, in any precinct, town, city or county of this commonwealth, upon the day of any general or primary election therein, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined the sum of not less each offense, which may be recovered by proceedthan twenty-five nor more than fifty dollars for ings in any court of competent jurisdiction, or by indictment in the circuit court.' By a stipulation of record it is agreed that prior to October 7, 1916, Isham Alder, a For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 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 John ing 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 elecIt is further 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- or to vote upon public measures. There is no electors are called upon to select their servants, 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 tion, or by the various General Assemblies of the state, than the interest of the people in their in the voting precinct wherein Savoy is locat- common schools." ed, and in which common school subdistricts elections were held on October 7, 1916; and that the express company had no ownership or interest in the liquor thus delivered to Alder, or any other connection with the transaction, except as above narrated. Upon a trial by the circuit court without the intervention of a jury the express company was acquitted, and the commonwealth appealed. The purpose of the Legislature in enacting this statute clearly being to guard elections against the presence and influence of liquor, it would seem necessarily to follow that the statute does not apply to territory in which no election is held, and that, the liquor having been delivered to Alder in a school subdistrict in which no election was held, the circuit court properly acquitted the appellee. (181 Ky. 70) Appellee contends that the judgment of the circuit court should be sustained under 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 of the statute which denounces one who CO. et al. "sells," "loans," or "furnishes" intoxicating (Court of Appeals of Kentucky. June 11, 1918.) liquors; and, second, that the statute is not broad enough in its terms to cover a case like the one at bar where no school election was held in the Savoy subdistrict on the day of the delivery of the whisky to Alder, although an election was held in other subdistricts of the precinct. Passing the first contention, and without deciding whether the appellee "furnished" the intoxicating liquor to Alder, we think it clear under the second view of the case above suggested that the judgment of acquittal was proper. It is true the statute denounces the sale, loan, gift, or furnishing of liquor to any person in any precinct upon the day of any general or primary election, and does 1. CARRIERS 30-INTERSTATE SHIPMENTSSCHEDULE OF RATES. schedule of rates filed with the Interstate ComBoth shipper and carrier are bound by the merce Commission, and the charging of a lesser rate, whether through mistake or otherwise, is illegal and void. 2. CARRIERS 30-INTERSTATE SHIPMENTSPOSTING OF Rates. Failure of carrier to post in its station a copy of rates filed with Interstate Commerce Commission will not relieve the carrier or ship3. EVIDENCE 65-RATES FILED WITH INper from its binding effect. TERSTATE COMMERCE COMMISSION-KNOWLEDGE OF SHIPPER-PRESUMPTIONS. knowledge of the rates fixed in the schedule filed A shipper is conclusively presumed to have by the carrier with the Interstate Commerce Commission. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 4. CARRIERS 223-INTERSTATE SHIPMENTS (ment, which if he had done correctly it would OF LIVE STOCK-DUTY OF SHIPPER TO PAY LEGAL RATES. Where plaintiff shipper of a carload of horses, through mistake of agent in naming total amount, paid initial carrier a lesser rate than that fixed by schedule on file with the Interstate Commerce Commission and in effect at date of shipment, it was his duty to pay the additional amount, demanded by delivering carrier on arrival of shipment, and where he failed to do so, he could not recover for damages for delay in unloading due to failure to pay additional amount. Appeal from Circuit Court, Jefferson County, Common Pleas Branch; Second Division. Action by G. L. Blackford against the St. Louis, Iron Mountain & Southern Railway Company and another. Judgment for defendants, and plaintiff appeals. Affirmed. Thomas C. Mapother, of Louisville, for appellant. Helm & Helm and Benjamin D. Warfield, all of Louisville, and Edw. J. White, of St. Louis, Mo., for appellees. have been paid and there would have been no delay in unloading it at its destination. It is also alleged that because of the long haul the horses became "droopy," and Bookie was especially in that condition when the shipment arrived at Louisville, and "plaintiff states that said shipment was not unloaded and cared for and not delivered by the defendant Louisville & Nashville Railroad Company, and that it did not allow this plaintiff to unload and care for said stock until the morning of April 14, 1916, and some 19 hours after its arrival at South Louisville, Ky., as aforesaid, being allowed by said defendant to remain confined in the car in which it arrived at South Louisville durdefendant were overruled, and in separate ing this interim." Demurrers filed by each petition and pleaded contributory negligence; answers they denied the allegations of the in a third paragraph they relied upon the fact that the rate for this character of shipments had been filed with the Interstate Commerce Commission and that the total amount of it was, according to the schedule so filed, the sum of $261.90, instead of $176.10, the amount paid by plaintiff at the beginning of the shipment. A reply completed the issues, and upon a trial of the case the court gave to the jury a peremptory instruction to find for the defendants, which was done, and the petition was dismissed. To reverse that judgment this appeal is pros ecuted. A part of section 6 of the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 380 [U. S. Comp. St. 1916, § 8569]) is: "That every common carrier subject to the provisions of this act shall file with the Commission created by this act and print and keep open to public inspection schedules showing all the rates, fares, and charges for transportation between different points *** on the route of any other carrier by railroad, by pipe line, or by water, when a through rate and joint rate have been established." THOMAS, J. The appellant and plaintiff below, G. L. Blackford, on April 11, 1916, shipped from Hot Springs, Ark. to Louisville, Ky., seven race horses, among which was one named "Bookie." The appellee St. Louis, Iron Mountain & Southern Railway Company was the initial carrier, while the delivering one was the appellee Louisville & Nashville Railroad Company, which took possession of the shipment at Memphis, Tenn. In the early afternoon of April 13th the shipment, which was made in an Arms palace car of the largest and best-equipped size and especially designed for the shipment of horses, arrived in the city of Louisville. The rate which was quoted by the agent at Hot Springs to plaintiff for the shipment, and which was paid by him, was $176.10, but it was afterward discovered that this sum lacked $85.80 of being the rate for that character of shipments between the two points mentioned, which rate was on file with the Interstate Commerce Commission and in effect on the 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. |