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especially in view of the fact it was not, ever, is urged to the instruction on pleaded. The petition alleges that plaintiff tributory negligence. Appellant offered an was severely burned about his face and eyes, instruction upon this subject which the court "his eyes have been permanently injured, to rejected, but gave one in the usual form, his damage in all in the sum of $3,000.” It and in addition supported it by other inwas necessary, in order for the plaintiff to structions, fully presenting the defense of recover, to show the nature of his injuries, the company. The instruction offered by apand if he was burned in the eyes this was pellant upon contributory negligence is said an element of damage which he was entitled to be concrete, but, after carefully examining to present to the jury. We cannot assent to it and comparing it with the one given by the the claim of appellant that this evidence was court, we are inclined to the view that the incompetent, but we incline to the opinion trial court did not err in refusing the inthat plaintiff below had a right to show, not struction offered by appellant and in giving only his injuries and especially that to his instruction No. 3 to the jury. That part of eyes, but to show also that such injury inter- | instruction B offered by appellant, and which fered with his work, and that he had been it urges was the proper instruction upon able to use his eyes for work requiring ac- contributory negligence, is as follows: curate view. This was not error, and the “The court instructs the jury that if they bedefendant was not prejudiced thereby. The lieve from the evidence that the plaintiff, Flufacts of this case do not bring it within the harity, by his own negligence contributed to such rule stated in Stearns Coal & Lumber Co. v. and that but for his negligence it would not

extent as to produce the injuries complained of, Williams, 171 Ky. 46, 186 S. W. 931. This have happened, then he is not entitled to re question, however, was not submitted to the cover in this case, unless," etc. jury. [2] It is next complained that an optician subject of contributory negligence is as fol

The instruction given by the court on the was permitted to testify with reference to

lows: abnormalities of the eye, whereas it is insisted that only an oculist is qualified to give lieve from the evidence the

“The court instructs the jury that if they be

plaintiff on the ocsuch evidence. We cannot concur in this casion in controversy was negligent, and that contention. The witness makes it clear he is his negligence contributed to his injuries to such an optician and not an oculist; explains the an extent that but for which he would not have difference between the two prosessions, at the the jury will so find.”

been injured, the law is for the defendant, and same time giving the jury an idea of his training, education, and experience as an

The instruction given by the court is the oculist. With this before the jury the trial regular stereotyped contributory negligence court allowed the witness to give evidence instruction, and is as concrete in form as as an expert. One may give testimony as an that offered by appellant. expert if it appear that he has had an oppor- [4] Appellant was not entitled to a pertunity to study and acquire skill in the particu- emptory instruction in its favor at the conlar matter about which he is called to give clusion of plaintiff's evidence. The plaintiff evidence, and that he has done so. It is said was at work cleaning out a container at that one possessing knowledge not acquired evening, and he was working by moonlight; by ordinary persons with regard to a par- a large volume of gas created by water comticular subject or department of human activ. ing in contact with the carbide in the conity may be called and allowed to testify as tainer was emanating from the tube, filling an expert upon that subject. Ford v. Provi- the air for some distance around the place dence Coal Company, 124 Ky. 525, 99 s. w. where appellee was at work. Appellant's 603, 30 Ky. Law Rep. 698; Buchanan v. foreman, Bolton, who had been on the job for Buckler, 8 Ky. Law Rep. 617. Where one quite a while, and who had knowledge of the has practiced as an optician for a long num-explosive nature of such gases, walked up beber of years and before entering upon the hind appellee with a lighted lantern in his practice studied the subject in a reputable hands while appellee was at work. When school and has, since entering the practice, the light came within the radius of the gas taken special courses on the subject in schools an explosion occurred, the most terrific part in different parts of the country, he possesses of which was in the tube, and was forced that character of training and knowledge of into the face and eyes and over the hands his calling which qualifies him to give evi- of appellee. The evidence tending to show dence upon abnormalities of the eye as an that appellee, Fluharity, was guilty of conexpert; and it was not error of the trial tributory negligence was properly submitted court to admit evidence of this character. to the jury, and there was no necessity what

[3] We have thoroughly examined the in- ever of a more concrete instruction upon structions given by the trial court to the jury, that subject than the one given by the court. and are persuaded that they fairly present No error to the prejudice of appellant apthe law of the case. Special objection, how- pearing in the record, judgment is afirmed.

SION.

from the land between lines 11 to 12 and PULASKI STAVE CO. et al. v. SALE et al. 11 to 13, called in the record “Maupin Hol(Court of Appeals of Kentucky. March 5, low." Upon the last trial, under instructions 1918.)

which clearly presented the issue, the jury 1. BOUNDARIES OWw40(1)--QUESTION FOR JURY found that the line 11 to 13 on the map was -CONFLICTING EVIDENCE.

the true location of the disputed part of the Direction of verdict is properly refused, the evidence being conflicting on the issue of which fourth line in plaintiffs' deed, and assessed of two objects was the dividing ridge between the damages against defendants for the renamed hollows, called for by a deed as part of moval of the timber within Maupin Hollow a boundary. 2. EVIDENCE @ww155(1)—CONSENT TO ADMIS- entered, from which defendants have ap

at $2,000. Upon that verdict, judgment was Defendants having availed of permission pealed. to introduce evidence of what deceased told The errors assigned as grounds for re them only on the condition that plaintiffs would versal are that the court erred in overruling be given the same privilege, may not complain of such evidence thercafter introduced by plain- their motion for a peremptory instruction, tiffs.

in the admission of incompetent evidence, 3. TRIAL C251(3)-INSTRUCTIONS–CONFORM- and in the instructions given and refused. ITY TO ISSUE.

[1] 1. The evidence introduced by the The issue for submission to the jury being which of two objects was the dividing ridge plaintiffs is to the effect that the line 11 to called for by a deed, requested instructions sub- 13 on the map is a smooth, unbroken ridge, mitting construction of the deed were properly and is the dividing ridge between Wolfe and refused.

Cave Hollows; that the line 11 to 12 on the Appeal from Circuit Court, Lee County. map, while having many of the characteris

Action by C. W. Sale and another against tics of a ridge, is broken in places by faults the Pulaski Stave Company and others. or sinks, and is not the dividing ridge be. Judgment for plaintiffs, and defendants ap- tween Wolfe and Cave Hollows. The testipeal. Affirmed.

mony introduced in behalf of the defendants See, also, 117 S. W. 404.

is to the effect that the line 11 to 12 is the J. K. Roberts and G. W. Gourley, both of dividing ridge between Wolfe and Cave HolBeattyville, for appellants. Sutton & Hurst, lows, although intersected by several faults of Beattyville, for appellees.

or sinks, and is not as smooth and as con:

tinuous as the ridge represented by the line CLARKE, J. This action was begun Jan. 11 to 13. There is also proof on behalf of uary 1, 1907, by appellees to recover dam- both parties as to which of these two ridges ages for trespasses alleged to have been com is the higher, and as to which had been remitted upon a tract of land referred to as garded as the true dividing ridge between “Maupin Hollow,” in Lee county, which they Wolfe and Cave Hollows, and as to whether claimed to own. The defendants, now appel- or not Maupin Hollow was a part of Cave lants, admitted the removal of the timber, Hollow, or an independent hollow. It is the alleged trespasses, but denied that plain- therefore apparent that, upon the question tiffs owned the land, asserting title in them of the true location of the line in dispute, selves, and contested the amount of damages directed by the former opinion of this court claimed. Upon the first trial, defendants re- to be submitted to a jury, the evidence was covered judgment upon a directed verdict in very conflicting, and the trial court did not their behalf. That judgment was reversed err in refusing defendants' request for a diby this court in an opinion reported in 117 rected verdict. S. W. 404, in which the issues are clearly [2] 2. Defendants raise the question as to stated and illustrated by a plat of the prem- the competency of evidence admitted and exises, and the cause was remanded for a sub-cluded with reference to statements made mission to a jury of the simple question of about Maupin Hollow by Robert Riddle, who fact as to the proper location of the fourth at one time owned a half interest in the land line in plaintiffs' deed, described therein, now owned by defendants, and claimed by “thence (from the head of Wolfe's Hollow) | them to include Maupin Hollow, and who, at with the divide of the ridge between Cave the time of the trial, was dead. While plainand Wolfe Hollows to Big Sinking," and tiff Sale was testifying in his own behalf, he shown upon the map incorporated in that was asked this question: "Tell the jury opinion as the line from the figure 4 to 11, whether or not Judge Riddle understood, at and thence to either 12 or 13.

the time this deed was made to you in 1901, The only question left open by that opinion that this Maupin Hollow land was embraced was whether the line from 11 to 12, or the in that purchase of yours and in that deed?" line 11 to 13, was the ridge between Wolfe The defendants objected, and their objection and Cave Hollows, and, if 11 to 13 was was sustained, to which plaintiffs excepted, found to be the true location of the line in and plaintiffs made no further attempt to indispute, to determine the amount of damages troduce such evidence. When Mr. J. C. Parto be awarded to plaintiffs, resulting from ker, one of the defendants, was testifying for the removal of the timber by defendants the defendants, he was asked on direct ex

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

amination: "What did he (Judge Riddle), and Cave Hollows; and this was but a comtell you about Maupin Hollow?" Plaintiffs pliance with the mandate of this court in the objected, and the court said: “If it is com- former opinion in this case, and was, of petent for one, it is competent for the other. course, not error. I sustain objection to it.” Later on in the [3] The instructions offered by defendants examination of this same witness, defend- were properly refused, because they submitants asked him, with reference to whether or ted to the jury the construction of the lannot Maupin Hollow was included in a deed guage of the deed to the defendants, a questo defendants: "What did Judge Riddle tion with which they had nothing to do. say?" Plaintiffs objected, and their objection rather than the question of the proper locawas ,sustained, when counsel for defendants tion of the line in dispute. said: "Well, we want to avow there.” The For reasons indicated, the judgment is afcourt then said: "I will say right now that, firmed. if both sides are willing that the statements that Judge Riddle made to them shall go in, let Mr. Sale come back." Counsel for de

PARROTT v. CROSBY et al. fendants: "I don't think we are exactly

(Court of Appeals of Kentucky. March 8, willing." The court: "The court is of opin

1918.) ion that any statement that Judge Riddle

1. WILLS 486 CONSTRUCTION PAROL made to Mr. Sale or to Mr. Parker would

EVIDENCE. be competent as evidence, the record showing The general rule is that a will is to be conthat Judge Riddle is now dead, and was at strued from the language used, and that parol one time the owner of a tract of land-own- or extrinsic evidence is inadmissible to add to, ed a half interest now in the same tract of vary, or contradict its terms.

2. WILLS Om487(1)-INTENTION-EXTRINSIC land in question." Defendants were then

EVIDENCE. permitted, over the objection and exception Where the testator's intention is expressed of plaintiffs, to introduce in evidence the in plain and unambiguous language, parol and statements made by Judge Riddle to the de- extrinsic evidence is inadmissible to show an

intention different from that expressed in the fendant Parker, with reference to the disput- will. ed question whether Maupin Hollow was, or 3. Wills 488—DOUBTFUL LANGUAGE-Exnot, included in the deed to plaintiffs or in TRINSIC EVIDENCE. that to defendants. Plaintiffs were disputed

Where the language is doubtful or ambiguto recall plaintiff Sale, and he, over the ob- missible to give application to the words of a

ous, parol or extrinsic evidence is sometimes adjection and exception of defendants, related will, but not to change the import of a devise. what Judge Riddle had told him with refer- 4. WILLS Om488 - AMBIGUITY EXTRINSIC ence to Maupin Hollow.

EVIDENCE.

Parol evidence may be admitted for the purIt will be seen that the court first refused

pose of showing and explaining a latent ambito permit plaintiffs, upon the objection of de- guity in the will

, but not ordinarily for the purfendants, to prove any statements made by pose of explaining a patent ambiguity apparent Judge Riddle with reference to the land in on the face of the will.

- CONSTRUCTION RESIDUdispute, and the defendants afterwards of. 5. WILLS 519

ABY CLAUSE,"BETWEEN." fered and were permitted to introduce the

Under residuary clause providing, “The rest same evidence, over the objection of plain- of my estate I wish divided between my nieces tiffs, only upon the condition that plaintiffs Fanny Mary Ella to receive five hundred dolwould be given the same privilege ; and de- lars," and a named nephew $500 in trust, the

two nieces first named took the residuary estate. fendants, having taken advantage of this ruling in their behalf, will not thereafter be Appeal from Circuit Court, Shelby County. heard to complain of the exercise of the Suit between Ella Parrott and Mary Crossame privilege by plaintiffs. The court, up by and others. From the decree rendered, on their objection, held that such evidence the former appeals. Affirmed. was incompetent and rejected it, when offer

Ralph Gilbert, of Shelbyville, for appel.. ed by plaintiffs, and thereafter, when it was lant. Willis, Todd & Bond, of Shelbyville, introduced by defendants, changed his ruling for appellees. upon the question of the admissibility of such evidence and permitted them to introduce it MILLER, J. This appeal presents for conupon condition only that the same privilege struction the residuary clause of the will of would be extended to plaintiffs. We need the late Richard H. George, of Simpsonville, not, therefore, decide whether the evidence Shelby county, Ky. At the time of his death was competent, because, whether competent Capt. George was a widower with no descendor not, it was put into the record by defendants, his nearest kin being three nieces and ants themselves.

one nephew, Ella Parrott, Mary Crosby, Fan3. The only question, except the extent of ny Harrington, and W. L Graves, the chilthe damage, about which no question is dren of a deceased sister. made, submitted to the jury, was whether Capt. George died February 11, 1916, leavthe line from 11 to 12, or the line from 11 to ing an estate worth about $18,000. On Au13, was the dividing ridge between Wolfe i gust 6, 1914, he wrote his will, making many

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1

special devises, including $2,500 to his sister- , different from that expressed in the will.
in-law, Betty D. Gaines, who had lived with Long v. Duvall, 6 B. Mon. 219; McCauley v.
him and cared for him for many years; $500 | Buckner, 87 Ky. 191, 8 S. W. 196, 10 Ky.
in trust for Betty D. Gaines for life, with re- Law Rep. 99; Chenault v. Chenault, 88 Ky.
mainder to a charitable institution; $200 to 83, 11 S. W. 424; Mudd v. Mullican, 12 S.
Calien Crosby; $200 to his namesake Rich- | W. 263, 385, 11 Ky. Law Rep. 417; Tuttle v.
ard George Harrington; $200 to his name- Berryman, 94 Ky. 553, 23 S. W. 345, 15 Ky.
sake Richard Haynes; $100 to Richard Law Rep. 294; McBrayer v. McBrayer, 95
George Houseworth Pendleton; $100 to his | Ky. 475, 26 S. W. 183, 16 Ky. Law Rep. 18;
cousin Mary Young Shoemaker; $100 to his Gray's Adm'r v. Pash, 66 S. W. 1026, 24 Ky.
cousin Haynes; $100 to his friend Chaplin; Law Rep. 965; 40 Cyc. 1427.
and $100 to Lindsey Nunn. After making [3, 4] But where the language is doubtful
these special devises the will provided that: or ambiguous, parol or extrinsic evidence is

“The rest of my estate I wish divided between sometimes admissible to give application to
my nieces Fanny Harrington Mary Crosby Ella the words of a will, but not to change the
Parrott to receive five hundred dollars W. L. import of a devise. Mitchell v. Walker, 17
Graves my nephew to receive five hundred dol-
lars in trust and in no event is it to be liable B. Mon. 61. Thus, when it is necessary, in
for any debts he may ha now or may con- order to enable the court to ascertain the
tract."

intention of the testator, parol evidence may The question is: Who takes the residuary be admitted for the purpose of showing and estate, the three nieces, or only Fanny Har- explaining a latent ambiguity in the will, rington and Mary Crosby? Although this is but not ordinarily for the purpose of exa suit in equity to construe the will, much plaining a patent ambiguity, apparent on the proof has been taken tending to show that face of the instrument. 40 Cyc. 1429; Smith Capt. George was mentally and physically v. Smith, 72 S. W.766, 24 Ky. Law Rep.

1964.
quite infirm at the time he wrote his will
and perhaps incapable of making a will.

The rule is stated as follows in 40 Cyc.
Among other things, it is shown that on

1431: November 24, 1915, about 15 months after he

“Where the language of a will is uncertain

and doubtful or contains a latent ambiguity, exwrote his will, Capt. George was declared trinsic evidence may be admitted, for the purincompetent to manage his business, pursu- pose of explaining the will, the situation of the ant to an inquest, and that a committee was testator, and the facts and circumstances surappointed and took charge of his business af- rounding him at the time of the execution of

the will, such as evidence as to the fact that the fairs and managed them until his death.

will was written by the testator himself and that On the other hand, his sister-in-law, Miss he was not a professional man, or as to the conGaines, testified that the inquest and the ap- dition of his family and the amount and charpointment of the committee was necessary by acter of his property, or as to his feelings to

ward and his relations to the persons affected by reason of Capt. George's eyesight having be- the will, or as to the condition of his beneficome so greatly impaired that he was unable ciaries. Such evidence, however, is not admisto sign checks or attend to any business. In sible where the language of the will is plain and this connection it was further shown that existing subsequent to the making of the will

unambiguous; nor is evidence of circumstances Mrs. Crosby is a widow with three married admissible for the purpose of showing the testachildren, and lived immediately across the tor's intention." street from Capt. George; that Mrs. Har- Stee, also, Henry v. Henry, 81 Ky. 342; rington is a widow with three grown chil- McClelland v. McClelland, 132 Ky. 284, 116 dren; that Mrs. Parrott is a married woman S. W. 730; Reuling v. Reuling, 137 Ky. 637, with an adopted child who was married ; 126 S. W. 151. that W. L. Graves, the nephew, is insolvent

But there is here no question of identity and an unsuccessful business man; that the either as to a devise or a devisee, and all testator was a successful farmer and busi- the residuary devisees are of the same kinness man of more than an average education, ship to the testator. And we do not think well-read and progressive; and that he wrote that the slight ambiguity in the meaning of his own will.

the residuary clause can be affected one way Appellees object to this testimony, contend- or the other by the extrinsic evidence offered. ing that parol testimony is inadmissible for We must therefore rely upon the language of the purpose intended.

the will in order to ascertain the testator's [1, 2] The general rule is that a will is to intention. be construed from the written language of Mrs. Parrott contends that the residuary the instrument, and parol or extrinsic evi- clause above quoted should be construed as dence is not admissible to add to, vary, or dividing the residuary estate equally among contradict its terms. Stephen v. Walker, 8 the three nieces, Fanny Harrington, Mary B. Mon. 600; Mitchell v. Walker, 17 B. Mon. Crosby, and Ella Parrott. The circuit court, 61; Allan v. Vanmeter, 1 Metc. 264; Jack- however, divided the residuary estate equalson v. Payne, 2 Metc. 567. Where the testa- ly between Mrs. Harrington and Mrs. Crostor's intention is expressed in plain and un- by, after giving Ella Parrott $500 and W. L. ambiguous language, parol and extrinsic evi- Graves, the nephew, a similar sum. Mrs. dence is inadmissible to show an intention Parrott alone appeals.

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Although the will as well as the residu- | The Century Dictionary says: 'Between is litary clause above quoted is almost wholly erally applicable only to two objects; but it without punctuation or capital letters to may be and commonly is used of more than two

where they are spoken of distributively, or so show the beginning of sentences, we have that they can be thought of as divided into two little doubt that the testator meant that Ella parts or categories, or with reference to the Parrott was to have $500; that W. L. Graves, action or being of each individually as comhis nephew, was to have $500 in trust; and pared with that of any other or [of] all the

others. When more than two objects are spoken that the rest of his estate was to be divided of collectively or individually, among is the between his two nieces Fanny Harrington proper word.'” and Mary Crosby.

See, also, Ihrie's Estate, 162 Pa. 369, 29 The language clearly shows that W. L. Atl. 750; Stoutenburgh v. Moore, 37 N. J. Graves is to take only $500, and excludes the Eq. 68. idea that he is to participate in the residu [5] We think, therefore, it is reasonably ary estate. And the fact that his name and apparent that by the language used the testhe name of Mrs. Parrott stand in precisely tator meant to give Mrs. Parrott $500 and the same relative positions as to legacies of a similar sum in trust to Wm. L. Graves, $500 shows that she took the same interest his nephew, and that the rest of his estate as Graves.

should be divided between his nieces Fanny If the qualifying clause “to receive five Harrington and Mary Crosby. hundred dollars” refers equally to Fanny Judgment affirmed. Harrington, Mary Crosby, and Ella Parrott, there is no one named to take the residuary estate, and that portion of the clause is ineffectual. In order, therefore, to give effect

LAXTON v. WISCONSIN STEEL CO. to both portions of the clause, the $500 (Court of Appeals of Kentucky. March 5, phrase must be read so as to refer only to

1918.) Ella Parrott, and the residuary phrase so as NEGLIGENCE »32(2)—INVITEE OR LICENSEE

- LIABILITY. to refer to "my nieces" Fanny Harrington

Where a steel company without charge, and and Mary Crosby.

for the accommodation of the family and relaAlthough old and somewhat feeble when tives of a deceased employé, arranged to have he wrote his will, Capt. George was, as here one of its engines and a flat car, used exclusively tofore stated, a man of strong character, well the family, and relatives to and from a cem

in its business, carry the remains, members of educated, and well informed about business etery, plaintiff, who without invitation or reaffairs and the current topics of the day. quest got on the car and made the return trip, It is to be presumed, therefore, that he in- could not recover for injuries sustained while tended the words he used should be given did not assist her in safely reaching the ground,

getting off the car, although defendant's servant their usual and correct meaning, unless a plaintiff being at most an invitee, or licensee, contrary intention appears.

Webster's Un- to whom defendant owed no duty except ordinaabridged Dictionary defines "between" as:

ry care not to injure. "Belonging in common to two; shared by Appeal from Circuit Court, Harlan County. both; belonging to or participated in by two, Suit by Delania Laxton against the Wisand involving reciprocal action or affecting their consin Steel Company. Directed verdict for mutual relation between' etymologically indicates only two."

defendant, and plaintiff appeals. Affirmed. While "between" may sometimes mean Hall & Jones, of Harlan, for appellant. "among," it will be construed as having been Sampson & Sampson, of Middlesboro, for apaccurately used unless there be something in pellee. the instrument to show it was used in a different sense. McIntire v. McIntire, 192 U. CARROLL, J. In this personal injury suit S. 116, 24 Sup. Ct. 196, 48 L. Ed. 369; Van brought by the appellant, Mrs. Laxton, Houten v. Hall, 73 N. J. Eq. 384, 67 Atl. 1052. against the Wisconsin Steel Company, the

In Records v. Fields, 155 Mo. 323, 55 s. trial court, at the conclusion of the evidence W. 1021, where the will provided that “the for the plaintiff, directed a verdict for the balance of my property and money I want defendant. equally divided between the heirs of Wil. The facts appearing in the record are liam Fields and James Fields, deceased,” it these: The defendant, in connection with its was held that the property should be equal- coal mining operations, owned some engines ly divided between the heirs of James Fields and flat cars that were used exclusively by and the heirs of William Fields, the court it in the conduct of its business. It was not saying:

engaged as a common carrier of freight or “Unquestionably it [the word) conveys the passengers. In April, 1916, two of its emthought of two parts, a distribution with reference to two parts, one part to heirs of James, ployés were killed in an accident that ocand the other part to heirs of William. Not curred in one of its mines, and on the folonly is this the natural and ordinary meaning lowing day the deceased person's were buried of the words 'equally divided between the heirs in a cemetery about a mile distant from Benof William Fields and the heirs of James Fields, but this is also the true etymological ham, where the defendant's plant was locatsignification of the word 'between.'

* | ed. For the accommodation of the family

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