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Having disposed of the issues in the case, that occasion, but at rule day, on April 2d, as we understand them, our conclusion is a motion was filed by Price to dissolve the that the judgment of the lower court should injunction on the 11th day of April, and cerbe affirmed; and it is so ordered.

tain reasons set forth why such a dissolution should be had. On the same rule day de

fendant Price filed a general demurrer and a (181 Ky. 13)

separate answer to the petition of the tobacco TANDY & FARLEIGH TOBACCO CO., Inc.,

company. On April 14th, Price again gave V. BRIGGANCE et al.

notice to the tobacco company that on the (Court of Appeals of Kentucky. June 7, 1918.) third day of the next May term, 1917, of the DISMISSAL AND NONSUIT On19(1)-RIGHT OF Logan circuit court he would move the court PLAINTIFF TO DISMISS.

Where there was no counterclaim, plaintiff, for a rule against the tobacco company, Brigin an action for specific performance of a con- gance, and the securities of the company, Mortract to sell personal property, wherein re- row and Morrow, to show cause why they, straining order against sale or removal of prop- and each of them, should not be punished for erty was granted, could have the action dismissed without prejudice, over objection of the contempt, "in that after the issuance of the defendant, although plaintiff had wrongfully temporary injunction and restraining order seized the property; such conversion being an by C. T. McCormick, clerk of the Logan cirindependent matter which defendant could rem-cuit court, to wit, on March 21, 1917, said edy in another suit.

parties aforesaid, and each and all of them, Appeal from Circuit Court, Logan County. contemptuously, and pursuant to a conspiracy

Action by the Tandy & Farleigh Tobacco between them, took into possession the tobacCompany against W. I. Briggance and F. L.

co mentioned in the petition in this Price. Judgment for defendants, and plain-action, and caused the same to be removed tiff appeals. Reversed.

from the barn of this defendant without his I. G. Mason, of Adairville, for appellant. consent, and carried and delivered same to J. W. Linton, S. R. Crewdson, and Coleman the Tandy & Farleigh Tobacco Company." Taylor, all of Russellville, H. T. Amis, of Notice was also given upon the same day that Springfield, Tenn., and Trimble & Bell, of the defendant Price would, on April 25th, Hopkinsville, for appellees.

proceed to take depositions of certain wit

nesses to be read as evidence upon the trial SAMPSON, J. On March 21, 1917, the of the case; a subpoena was also issued upon Tandy & Farleigh Tobacco Company, incorpo- the same day for the witnesses named to aprated, instituted this action in the Logan pear and give their depositions. Price also circuit court against Briggance and Price, gave notice that on May 23d, that being the owners of a crop of tobacco, for specific per- third day of the regular May term, 1977, of formance of an alleged contract of sale of the Logan circuit court, he would move the the tobacco to said tobacco company, averring court to dissolve and set aside the injunction that the defendants were then threatening to granted by the clerk. On the first day of the and would resell and dispose of the crop of May term of the court the plaintiff Tandy & tobacco to others and remove it out of the Farleigh Tobacco Company, filed this written state of Kentucky, unless restrained by an motion: order of the court, and as an incident to the “The plaintiff herein, Tandy & Farleigh Toaction plaintiff sought and was granted by bacco Company, Incorporated, comes and rethe clerk a temporary restraining order, prospectfully moves the court to 'dismiss its cause

a hibiting Briggance and Price from again sell

To this motion the defendant Price at the ing or removing the tobacco. The petition also sought to recover $250, in damages for time objected. In a separate order this apalleged deterioration in the tobacco caused by pears, as of the second day of the term : improper storage. The usual injunction bond of defendant F. L. Price.”

"This day came defendant and filed affidavit was executed before the clerk of the circuit court. The judge of the circuit court being This affidavit, which is copied into the absent from the county, but expected to short- record, in substance states that the plainly return to Russellville, the county seat, tiff tobacco company, Briggance, and the defendant Price, on the 27th day of March, two Morrows, all acting together and in congave notice to the plaintiff tobacco company cert, did, in violation of the rights of defendthat the defendant Price would, on Wednes- ant Price, cause the tobacco in question to day, April 11, 1917, at 9 o'clock a. in., at the be removed from the premises of defendant courthouse in Russellville, file a motion before Price, and to be delivered to the Tandy & Hon. John S. Rheas, judge of the Logan cir- Farleigh Tobacco Company and its repre·cuit court, to discharge the restraining order sentatives, and in conclusion the affidavit granted by the clerk. Certain other notices says: were given of proposed motions to be made "Wherefore, he [Price] asks the court to dison April 11th, but, so far as the record shows, miss this action for the reasons aforesaid, and no motion was entered before the judge at the to deny the plaintiffs a hearing in court, and time and place fixed in the notices, and no and each of them, to wit, said parties herein

for a rule against them to show cause why they, order was made or entered in the case upon mentioned, should not be punished for contempt,

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in that they have treated contemptuously this, the third day of the term, enter his motion court wherein this action was and is pending, to dissolve the injunction, and would ask for and also taking advantage of the extraordinary remedy of an injunction to get possession of the case to be dismissed. The only controthat which they are not entitled to, and with versy between the parties was as to how the out a hearing before this court, or any other action should be dismissed, whether absolutetribunal of competent jurisdiction.”

ly or only without prejudice to a future acOn the 230 day of May, which was the tion.

There was no set-off or counterclaim third day of the term, the following order by defendant, and he did not ask that his was entered by the court:

answer be treated as a set-off or counterclaim “This cause coming on to be heard upon the against the plaintiff, nor indeed could he have motion of the plaintiff to be allowed to dismiss this action without prejudice, and the defendant done so in the absence of allegations tending F. L. Price appearing, objected to said motion, to support such claim on his part against the and also moved the court to dismiss this cause plaintiff, but only asked that the action be absolutely, and dissolve the injunction herein granted by the clerk of this court, and also hav. dismissed absolutely, instead of without prejing filed in support of said motion his affidavit, udice to a future action. We know of no which is hereby made a part of the record here- rule whereby a court may dismiss an action in, and the court having considered said mo- absolutely, except upon hearing upon its mertion and being advised, adjudges: (1) That the motion of the plaintiff to be allowed to dismiss its, unless the party plaintiff moves the court this suit without prejudice be, and the same is to make such order. In this case the action hereby, denied, and said motion is overruled; was filed on March 21st, and on the first day (2) it is further adjudged that the defendant F. L. Price's motion to dismiss this action ab- of the first succeeding term the plaintiff movsolutely be, and the same is hereby, sustained, ed to dismiss the action without prejudice. and said cause is hereby dismissed absolutely; No property had been obtained under or by (3) it is further adjudged by the court that the reason of the processes of the court in the restraining order and temporary injunction, heretofore granted in this cause by C. T. Mc- case. It may be that the tobacco had been

| Cormick, clerk of this court, be, and the same wrongfully appropriated by the Tandy & Faris hereby, dissolved, set aside, and held for leigh Tobacco Company, but, if so, it was not naught, and is of no further force and effect, and it is further adjudged by the court that through, or by, reasons of the processes of the defendant F. L. Price recover of the plain the court; and if the tobacco was or had tiffs, Tandy & Farleigh Tobacco Company, his been wrongfully appropriated by the tobacco costs herein expended, for which execution may company, that was an independent cause of issue after 10 days herefrom."

action which the defendant Price was enFrom this judgment the tobacco compa- titled to institute and maintain against that ny appeals.

company irrespective of the proceedings in It will be observed that the only question the action for specific performance, unless presented upon this appeal is the right of Price had sought to have relief by way of the plaintiff to dismiss its action without counterclaim, which he did not elect to do. A prejudice to a future suit before final sub- dismissal without prejudice to a future acmission of the action to the jury or court, tion would have afforded Price every relief if the trial be by court. This question has to which he would have been entitled had the been before this court frequently. Section court dismissed the action absolutely; hence 371, Civil Code, provides :

no right of the defendant Price would have "An action, or any cause of action, may be been lost or invaded by the court sustaining dismissed without prejudice to a future action;

by the plaintiff before the final sub' the motion of appellant to dismiss the action mission of the case to the jury, or to the court, without prejudice. if the trial be by a court.”

The

old case of Rogers v. Bradford, 8 This precise question was before the court Bush, 163, is cited and relied upon. In that in the case of Ohio Valley Electric Rail- case it is held that in an action to recover way Co. v. Lowe, 167 Ky. 132, 180 S. W. 61, specific personal property, where the plainand it was there held that a plaintiff may tiff has executed the required bond to perdismiss his action without prejudice to a fu- form the judgment of the court, “by returnture action at any time before the cause is ing the property if a return thereof shall be finally submited to the jury or to the court, adjudged," and where by reason of the order if the trial be by the court. See, also, North- and bond the plaintiff has obtained and western Mutual Life Insurance Co. v. Bar- withholds the property which is the subject bour, 95 Ky. 7, 23 S. W. 584, 15 Ky. Law Rep. of the action, he may not dismiss his cause 394; Schwartz v. C. & 0. Ry. Co., 181 Ky. to the prejudice of the claimant of the prop1, 203 S. W. 852.

erty, because, as is said in that case, "the The rule seems to be well settled that a defendant's claim for the return of the propplaintiff may dismiss his action without prej. erty taken from him in advance of judgment udice to a future action at any time before by an order of the court,

was of the case is finally submitted to the jury, or the nature of an action against the plaintiff, to the court, if the trial be by the court, and and could not be defeated or prejudiced by this though the defendant object to the dis- his refusal or failure to comply with the missal. At the time the plaintiff entered conditions of the bond.” That rule has no this motion to dismiss the action the defend- bearing upon a situation such as we have ant Price had given notice that he would, on here, and is easily distinguishable from the

* *

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principle announced in Ohio Valley Electric county, on November 20, 1916, at about 5:30 Railway Co. v. Lowe, supra, and the other p. m., was killed by a train approaching from cases cited.

the rear and colliding with the hand car. It was therefore error of the lower court His administrator brought this suit against to overrule the motion of the plaintiff, Tandy the railroad company to recover damages & Farleigh Tobacco Company, to dismiss its accruing to his estate because of his death, cause without prejudice to a future action. charging in a general way that the decedent Judgment reversed.

was killed as a result of the negligence of the defendant, its agents and servants, in

the operation of the train which collided (180 Ky. 733; 181 Ky. 227)

with the hand car. The answer contained LOUISVILLE & N. R. CO. v. ELMORE'S

a general denial of the averments of the petiADM'R. *

tion and a plea of contributory negligence, (Court of Appeals of Kentucky. May 28, 1918. which was denied, and upon trial the plainModified Opinion, June 21, 1918.)

tiff recovered a judgment for the sum of 1. MASTER AND SERVANT Oww236(15)—INJURY $1,200. Complaining of the judgment, the TO RAILWAY EMPLOYÉ.

Those employed upon railroad tracks are defendant prosecutes this appeal. required to take notice of and anticipate the The accident occurred some 212 or 3 running of trains.

miles north of the town of Berea, about 50 2. MASTER AND_SERVANT 137(4)—INJURY or 60 yards south of a private crossing, and TO RAILWAY EMPLOYÉ-CARE REQUIRED.

The operators of trains are not generally re- something near a mile north of a public quired to anticipate employés presence upon crossing. The hand car and the train were the track, or to take necessary steps to prevent both moving north. Between Berea and the injuries to them, except after discovering their place of the accident there was but one peril; consequently such employés are not entitled to demand that signals of the train's public crossing, being the one just mentioned, approach be given. There being no such duties but there were some two or three private owing, there would be no negligence in failing to crossings, and it is insisted by plaintiff, both perform them.

in the evidence introduced and in argument Modified Opinion.

of counsel here, that the defendant was neg3. MASTER AND SERVANT Cw137(4) – INJURY ligent in failing to give signals for not only

( RAILWAY EMPLOYÉ-HEADLIGHT.

the public crossing about a mile south of As to a section hand, using a hand car to the place of the accident, but likewise failed transport himself home after work, the railway to signal for the private crossing between company was required to have its engines equipped with headlights; such employé being a li- the place of the accident and Berea, which, censee.

if done, as is insisted, plaintiff's decedent 4. MASTER AND SERVANT 286 (34)-INJURY would have had warning of the approach TO RAILWAY EMPLOYÉ-QUESTION FOR JURY; of the train in time to avoid the accident.

In an action by section employé, injured It is further insisted upon as an act of negliby collision between a hand car on which he was It is further insisted upon as an act of neglireturning home after work and a train, held, gence that the train which produced the colthat the question of defendant's negligence in lision was not equipped with a headlight, or, failing to have its engine headlight burning was if so, that it was not burning so as to enfor the jury. 5. MASTER AND SERVANT Om 289 (22)—INJURY able the decedent to discover the approach

TO RAILWAY EMPLOYÉ-QUESTION FOR JURY of the train from the rear by the reflection -CONTRIBUTORY NEGLIGENCE.

of the light upon the track ahead, and thereWhere a section employé's hand car collided by enabling him to avoid the accident. with a second section of a regular train, and the signal boards by the track, indicating

The proof shows that at that hour of the whether a train was in the block, could not be day and at that season of the year it was observed by the employé on account of the practically dark. Elmore was a section hand, direction in which he was going, his contribu- and had been at work as such for 15 or 16 tory negligence held a question for the jury.

years. The day's work had closed at 5 Appeal from Circuit Court, Madison o'clock, and the crew had gone into Berea, County.

but Elmore and two other section hands Action by John Elmore's administrator lived north of Berea, near the railroad track, against the Louisville & Nashville Railroad and with the permission of the section boss Company. Judgment for plaintiff of $1,200, they used the hand car to transport themand defendant appeals. Reversed, with di- selves to their respective homes. One of rections. Modified on subsequent opinion. them had left the car at the public crossing,

Burnam & Burnam, of Richmond, Shelby, while the decedent and another proceeded Northcutt & Shelby, of Lexington, and Ben- along the track, and were both on the car jamin D. Warfield, of Louisville, for appel- at the time of the collision; the companion lant. Chenault & Wallace, of Richmond, for of the decedent receiving slight injuries, appellee.

from which he eventually recovered.

Upon the issue as to whether signals were THOMAS, J. John Elmore, while riding on given for the public crossing south of the aca hand car upon the track of the Louisville & cident by the train which collided with the Nashville Railroad Company in Madison / hand car, the evidence largely preponderates

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

that signals were given for that crossing, and Harrod's Adm'r, 132 Ky. 445, 115 S. W. 699; for at least some of the private crossings be- L. & N. Ry. Co. v. Redmon's Adm’x, 122 Ky. tween the place of the accident and Berea. 386, 91 S. W. 722, 28 Ky. Law Rep. 1293: No one disputes but that the proper signals L, & N. Ry. Co. v. Jenkins, 168 Ky. 512, 182 were given for the town of Berea, and which S. W. 626; L. & E. Ry. Co. v. Smith's Adm'r, were heard by a number of people in the vi- 172 Ky. 117, 188 S. W. 1091. The same con cinity of the accident, as were also the sig- fining effect to the requirement of signals nals given at the public crossing, but the sur-was announced in the case of Shackleford's viving companion of the decedent, as well as Adm'r v. L. & N. R. R. Co., 84 Ky. 43, 4 Am. one or two other witnesses who testified for St. Rep. 89, decided by this court some five the plaintiff, say that they did not hear such years prior to the Cahill Case. Since the signals. They do not show that they were in decedent was not using nor attempting to use a condition to hear the signals had they been any character of crossing at the time he was given, except the fact that they were near injured, the rule sought to be invoked by enough to have heard them if they were so i counsel for appellee has no application under circumstanced at the time, and their atten- the facts of this case. If it be conceded—a tion was not otherwise attracted.

fact which we do not feel called upon to deUpon the point concerning the burning of termine—that decedent at the time of his the headlight, all the evidence shows that death was rightfully upon the track of the dethere was a burning headlight, and the only fendant because of the permission of the seccircumstance even slightly indicative of the tion foreman for him to use the hand car, he contrary is that the surviving companion of still occupied no greater relationship to the the decedent says that he did not see any re- defendant than the foreman of a section crew flection of the light upon the track around engaged in working upon the track during and ahead of the hand car before the colli- work hours, for at the time the car was in his sion. Besides the servants in charge of the and his companion's charge, and it was being train, and others upon it, testifying to the used by them for their own benefit. They burning of the headlight, witnesses who saw were in charge of that car at that time, and the train back up after the accident say that there is no question here as to whether they it was then burning.

were at the time performing duties for the However, the question still remains wheth- master who would then be obligated to furer the defendant is liable for either of such nish a reasonably safe hand car, because the alleged acts of negligence, for if it did not injury complained of is not the result of any owe a duty to decedent to give the signals such failure. Assuming, then, that defendant which it is claimed were not given, or to have owed to the decedent at the time the same the engine equipped with a headlight, it duties that railroad companies generally owe would necessarily follow that it was not guil- to those working upon its tracks, let us briefty of negligence in failing to do either of ly consider what such duties are, and whether those things. In support of the contention under them the defendant is liable in this that it was negligence to fail to give the sig- case. nals complained of, we are referred to the The two cases of C., N. 0. & T. P. Ry. Co. case of Cahill v. Cincinnati, etc., Ry. Co., 92 v. Swann's Adm'x, one reported in 149 Ky. Ky. 345, 18 S. W. 2, 13 Ky. Law Rep. 714, 141, 147 S. W! 889, the other in 160 Ky. 458, and other cases from this court following it. 169 S. W. 886, L. R. A. 1915C, 27, had under In that case it was held that one about to use consideration, according to our view, the dia private crossing constructed for his benefit rect question here involved. Swann, the deunder a contract with the railroad company cedent, was the acting foreman of a crew enwas entitled to rely upon and have the benefit gaged in work upon or about the defendant's of signals at a nearby public crossing, which tracks. He was killed by being struck by one signals had been customarily relied upon by of defendant's trains. He was at that time those entitled to use the private crossing, and working for the defendant, and it was comthat a failure to give signals at the public plained that the master was guilty of neglicrossing would constitute negligence toward gence in running its trains at an excessive one about to use the private crossing under rate of speed, and that it failed to give sigthe circumstances narrated. But the rule was nals of its approach to the place where strictly confined in its application to the bene- Swann was working. In each case it was fit of one about to use the private crossing in held that it was Swann's duty to himself aspassing over the railroad track, and this court certain and learn of the approach of trains, has consistently confined the application of and to keep out of their way. A number of the doctrine of that case within such limita- cases are referred to in that opinion, both. tions, and has never extended it to cases other from this and other courts, and upon a final than for the protection of those aboạt to use summing up the court said: the private crossing. N. N. & M. V. Ry. Co.

"It was the duty of Swann, as foreman of this v. Deuser, 97 Ky. 92, 29 S. W. 973, 17 Ky. work, to keep advised of the time of trains, so Law Rep. 113; L, & N. R. R. Co. v. Vittitoe, that he might warn the men under him of their 41 S. W. 269, 19 Ky. Law Rep. 614; Elliott approach, and also to keep the track free from

tools and material used by the men in the v. L. & N. R. R. Co., 99 S. W. 233, 30 Ky progress of the work, and he was required to Law Rep. 472; C., N. O. & T. P. Ry. Co. v. I and did keep a watch as well as a time card, In short, one of his duties was to keep a look- anticipate the presence of such employés upout for the approach of trains, so that the track on the track, or to take such steps as may would be safe and the men under his charge be necessary to prevent injuries to them, exprotected."

cept after discovering their peril. Since Cases announcing a similar doctrine are there is no duty to warn such employés of Coleman v. Pittsburg Co., 139 Ky. 559, 63 the approach of trains, it would necessarily S. W. 39, 23 Ky. Law Rep. 401, Conniff v. follow that they would not be entitled to deL. & H. R. R. Co., 124 Ky. 763, 99 S. W. 1154, mand that signals of the approach be given, 30 Ky. Law Rep. 982, Wickham v. L. & N. nor to any other equipment which might

. R. R. Co., 135 Ky. 288, 122 S. W. 154, 48 L. warn them of the approach of trains, such as R. A. (N. S.) 150, L. & N. R. R. Co. v. Hunt, headlights on engines. If there were no such 142 Ky. 778, 135 S. W. 288, Blankenship v. duty owing to that class of employés, there Norfolk & Western Ry. Co., 147 Ky. 260, 143 would be no negligence in failing to comply S. W. 995, C., N. 0. & T. P. Ry. Co. v. Har with such alleged duties. This being true, rod, 132 Ky. 445, 115 S. W. 699, O., N. 0. & the only duty which the defendant owed to T. P. Ry. Co. y. Yocum, 137 Ky. 117, 123 S. the decedent in this case was to exercise orW. 247, 1200, Id., 143 Ky. 700, 137 S. W. 217, dinary care to prevent injuring him after L., H. & St. L. Ry. Co. v. Jolly's Adm’r, 90 his presence upon the track was discovered. S. W. 977, 28 Ky. Law Rep. 989, and L. & N. Upon this point there is no contrariety of R. R. Co. v. Seeley's Adm’r, 180 Ky. 308, proof. All of it shows that the agents and 202 S. W. 638. In the Harrod Case, supra, servants were on the lookout ahead, which, in setting forth in concrete form the respec- however, was not due the decedent, and as tive duties of the parties under almost iden- soon as they saw the perilous situation of tical facts to those we have here, the court the decedent and his companion everything said :

possible was done to stop the train before "If Harrod had been a section workman in the collision, but without avail. the yards at Georgetown, his case would not

We have not discussed the question of have been less than it is. Section men work in railroad yards, as well as in the country, at all contributory negligence for failing to observe times, and may reasonably be expected there the block signals indicating the approach of at any time. They must be aware of the time of the train, which is presented both by the the running of the trains over the track on which they are at work. Even though those in charge pleading and by testimony, because of our of a fast train knew they were working at that conclusions that the record fails to show a point, or might reasonably be expected to be case of negligence on the part of the defendworking there, they also knew it was their

ant. The court was therefore in error in duty to maintain a clear track for that train, and to themselves to keep out of its way, as overruling the motion made by counsel for they well could. Would the speed of the defendant for a peremptory instruction in train, even though negligence to the passengers its favor, and if upon another trial the proof or licensees, have been negligence as to them? We think not, and it would make no difference should be substantially the same as it was whether they were in the yards at Georgetown, upon this one, and such an instruction should at Kincaid, or in the country where there was be offered, the court will sustain the motion no station; for it must always be borne in and give it to the jury. mind that negligence toward a person is the

Wherefore the judgment is reversed, with antithesis of a duty owing to that person.”

directions to proceed in accordance with this In the second Swann Case, supra, the ex

opinion. cerpt just made from the Harrod Case is

Modified Opinion. quoted and approved. In the two Yocum Cases, supra, the decedent was a signal in- Since rendering the original opinion in this spector who was rightfully using a tricycle case we have concluded that we misinteron the track. It was insisted that the rail- preted as well as misapplied one principle of road company was negligent by failing to law involved in the case, which is whether have a headlight on the engine, but this court the defendant and appellant, Louisville & in the first opinion said :

Nashville Railroad Company, was under the “We also assume that the company was guilty duty of having its engine which collided with of negligence in failing to have its headlight the hand car in which the decedent was ridburning; but its negligence in this particular, and it is the only negligence complained of ing, and which produced the accident, equipwill not save the case for the appellee."

ped at the time with a headlight, and on our This statement of the law was reiterated own motion modify the opinion as herein in

dicated. In the opinion it is said that: in the last opinion in that case. [1, 2] Many other cases from this court

“Since there is no duty to warn such employés

of the approach of trains, it would necessarily have a direct bearing upon the question in- follow that they would not be entitled to de'volved, but we deem it unnecessary to pro mand that signals of the approach be given, nor long this opinion by pointing them out. What to any other equipment which might warn has been said is sufficient to show that those them of the approach of trains, such as head

lights on engines." employed upon railroad tracks are required to take notice of and anticipate the running

[3] Since re-reading the two cases of C., N. of trains, and that the operators of trains O. & T. P. Ry. Co. v. Yocum, one reported in are not required, save perhaps under excep- 137 Ky. 117, 123 S. W. 247, 1200, and the oth

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