of the title, and that she would not get a good title to the property.

tion, not only that he intended to deliver it, but did deliver it to her, and that she accepted it. The circumstances referred to Many cases are to be found dealing with are that, while the legal title was in him, his facts nearly similar to those in the instant wife's money had paid, or helped to pay, for case, but in all of them there are some points the property; their only child had recently of dissimilarity, which have resulted in susdied childless; and the relationship of hus-taining or denying both the presumption band and wife, together with the interest and proof of delivery and acceptance, varying conveyed, places the case almost, if not quite, within the same class as a beneficial deed to an infant, in which the grantor is considered the agent of the grantee for the purpose of accepting such a conveyance, and the mere subsequent possession of the grantor is of no weight as evidence against his presumed delivery. Morrison v. Fletcher, 119 Ky. 488, 84 S. W. 548, 27 Ky. Law Rep. 124; 8 R. C. L. p. 1010. This presumption is strengthened rather than weakened by the recordation by the grantor more than six years after its execution and after the death of the grantee, because the presumption arising from the execution and recordation is not of a delivery at the time of recording, but at the date of the deed. Shoptaw v. Ridgeway, supra Ford v. Gregory's Heirs, 10 B. Mon. 175; Hughes v. Easten, 4 J. J. Marsh. 572, 20 Am. Dec. 230. This presumption is, of course, rebuttable, but, in the absence of proor to the contrary, is sufficient to establish both delivery and acceptance, or, stated otherwise, to overcome such a presumption, those who claim the invalidity of such a deed must establish by clear and satisfactory roof that the deed was not, in fact, delivered or accepted. 8 R. C. L. p. 1004.

according to the peculiar facts of each
case. And even in a given case, it is fre-
quently difficult to satisfactorily interpret
the proven facts with reference to delivery
and acceptance, as is exemplified in the
illustrative case of Butts v. Richards, 152
Wis. 318, 140 N. W. 1, Ann. Cas. 1914C, 854,
also reported, with an extensive note review-
ing the authorities upon the question here
involved, in 44 L. R. A. (N. S.) 528. In that
case, upon facts somewhat similar to the
facts here, but not nearly so persuasive of
delivery and acceptance, the court was
nearly evenly divided, the majority holding
death was presumptive of nondelivery, and
that the possession of the grantor at his
that there was no proof of delivery and ac-
ceptance, while three members of the court
took the opposite view on both the presump.
tion to be indulged and the effect of the
proof.
which statement clearly distinguishes that
It was said in the majority opinion,
case as viewed by the majority of the court
from this:

"The inherent weakness in the case for appellant is that there is nothing in the testimony tending to show that Butts ever uttered a word or performed an act which evinced an intention on his part to vest the title to his property in his wife prior to his death, except to make a deed, which he carefully locked up in his strong box, the key of which he carried about his person. He guarded it as carefully as he did his pocketbook," especially against his wife.

In addition to this distinguishing feature in the evidence, we are inclined to agree with the minority opinion rather than that of the majority, upon the legal presumption arisand possession thereafter by the grantor, ing from the facts of execution, recordation, where the parties are husband and wife, and especially where the wife dies first and her effects fall naturally into the hands of the surviving husband.

[5] No fact is in proof that is not entirely consistent with a delivery and acceptance upon the date of the deed. Upon the other hand, there is some proof at least of actual delivery and acceptance. Stone, while his wife was alive, told several persons that she owned the property, and after her death stated under oath that the property belonged to her, and that he owned only a life estate as her surviving husband. The fact that the deed was preserved during the five years that the grantee lived on the property after its execution, and that the tin box in which it was kept was frequently in her possession and under her control, and that the grantor, examined, and especially the Shoptaw and Considering the many authorities we have upon one occasion, said to her that she had Bunnell Cases from this court, we are of the papers evidencing her possession of plen- opinion that the uncontradicted facts here ty to live on, seem to us to indicate quite raise a legal presumption both of delivery conclusively that he had delivered the deed and acceptance upon the date the deed was to her and she had accepted it. The fact that executed, which is sustained by all of the grantor, after the death of the grantee, the proof and contradicted by no proof whatconveyed the property to another and after ever; and we find nothing in the cases the deed to his wife had been recorded by cited by appellees (viz. Bell v. Farmers' Bank him executed a will about three hours before of Kentucky, 11 Bush, 34, 21 Am. Rep. he committed suicide in no degree affected 205; Alexander v. De Kermel, 81 Ky. 345; what he had done during his wife's lifetime, Colyer v. Hyden, 94 Ky. 180, 21 S. W. 868, and, besides, the attempted conveyance to 15 Ky. Law Rep. 101; and Justice v. Peters, Nola Whiteside was repudiated by her al- 168 Ky. 583, 182 S. W. 611), which militates most immediately, and, no doubt, because in any way against this conclusion, because she, the widow of the deceased son of grantor the intention to deliver was accompanied by

For the reasons indicated, the judgment is reversed, and cause remanded for a judgment in favor of the plaintiff, quieting her title to the property involved.

Action by J. H. Johnson and others against F. Y. Boggess and another. Judgment dismissing the petition, and plaintiffs appeal. Affirmed.

See, also, 158 Ky. 418, 165 S. W. 413.

C. A. Denny, of Greenville, for appellants. Doyle Willis, of Greenville, for appellees.

that he had parted with the power and control over the deed for the benefit of the grantee. This is shown by the acts of the grantor in recording the deed, by his words in stating that the property was his wife's, and that he had only a surviving husband's interest therein, and by words and acts of both grantor and grantee in reference to the tin box in which they kept their valuable CLARKE, J. The appellants, who were papers, and which evidently held this deed, plaintiffs below, claiming to be the owners, as it was the most valuable paper, if not the and in possession, of two small adjoining only one, they possessed. tracts of land, about 19 acres in all, filed this [6] Appellees insist the proof of the tes-action to recover of appellee, F. Y. Boggess, timony given by the grantor in another pro- damages in the sum of $600 for alleged tresceeding between different parties is incom- passes, including the accidental destruction petent as held by the trial court, and we are by fire of the dwelling house thereon; it referred to Rucker v. Hamilton, 3 Dana, 36, being alleged in the petition, however, that but it was not attempted to use the evidence Alma Boggess, the wife of F. Y. Boggess, had taken in another case upon this trial. Plaina dower interest in the land, and she was tiff simply proved an admission against inter- made a defendant because she declined to est made by the grantor, under whom de- join as plaintiff. The defendants, in sepafendants are claiming as heirs or devisee, rate answers, denied plaintiffs' ownership or and this was competent whether made in tes- possession, as well as the trespasses alleged, tifying under oath or not. and, in addition, pleaded that in a former action in the Muhlenberg circuit court in which the plaintiffs and defendants were the same as in this action the land herein involved was ordered sold to partition same among the heirs of Alonzo Johnson, the former husband of defendant Alma Boggess, and that in that action she asserted homestead, but was adjudged dower in the land, and ordered paid to her its value of the proceeds of the sale; that since that judgment and at all times complained of in this action she was in the possession of the land in the exercise of her right of dower adjudged to her therein; that plaintiffs became the purchasers of the land at the sale held pursuant to that judgment, but, before sale was confirmed, and while she was in possession of the land in the exercise of her right of dower therein, the house was destroyed by fire accidentally and from a cause unknown to the defendants, and for which neither was in any way responsible. By amended answers defendants alleged the house was insured; that plaintiffs collected $425 from the insurance company in full settlement of the loss, and assigned and transferred to the company "any and all right and cause of action which they or either of them had or may have had" against defendants for the

JOHNSON et al. v. BOGGESS et al. (Court of Appeals of Kentucky. March 5, 1918.)

1. APPEAL AND ERROR

300-PRESERVATION OF GROUNDS-MOTION FOR NEW TRIAL-DELAY-EXTENT OF REVIEW.

Where motion for new trial was not made

until five days after verdict and judgment, Court of Appeals cannot consider the evidence, and the only question is whether the pleadings authorize the judgment in view of Civ. Code Prac. § 342, requiring application for new trial within three days after verdict except in certain

cases.

2. PLEADING ~345(2)—JUDGMENT ON PLEAD

INGS.

In an action against an alleged trespasser and his wife, for loss of a building by fire, where it was alleged in the petition that the wife was made a defendant because she refused to join as plaintiff, and defendants pleaded that at the time of the fire she, in the exercise of her dower right, and not the husband, was in possession, a judgment for plaintiffs against the husband on the pleadings was not authorized. 3. JUDGMENT 740

CONCLUSIVENESS ESTOPPEL BY INCONSISTENT CLAIM FORFEITURE.

That a wife in a former suit asserted home- loss. By replies plaintiffs traversed the allestead rather than dower rights would in no way gations of the answers and amended anaffect or defeat dower, awarded by the judg-swers that defendants were in possession of ment in such suit.

4. DOWER 56(3)-POSSESSION BEFORE As

SIGNMENT.

Where the widow and her present husband were in possession of the house when a judgment was rendered giving the widow her dower, it must be presumed that possession was in the exercise of the dower right, since by Ky. St. § 2138, the doweress is entitled to possession of the mansion house until dower is assigned.

Appeal from Circuit Court, Muhlenberg County.

the land in the exercise of the dower right of Mrs. Boggess therein, or that the $425 insurance collected was in full of the loss sus

tained, or that they had assigned or transferred to the insurance company their right or cause of action therefor, and alleged that the defendant had elected to take homestead and had thereafter, upon her marriage to F. Y. Boggess, abandoned her homestead, and that her return thereafter with defend

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

ant F. Y. Boggess to the land was not in the exercise of her dower interest therein, but was an attempt to avoid a forfeiture of her homestead.

The affirmative allegations of the replies were traversed of record, and the case went to trial before a jury. At the completion of plaintiffs' evidence a directed verdict was returned for defendants, and plaintiffs are appealing from the judgment entered thereon dismissing the petition.

[1] 1. The motion for a new trial was not made until five days after the verdict was returned and judgment entered thereon; hence we cannot consider the evidence, and the only question before us is: Do the pleadings authorize the judgment? Civil Code, 342, and cases cited in notes thereto.

2. It is insisted, however, for appellants that upon the pleadings, although they assumed the burden of proof without objection, they were entitled to recover nominal damages, at least, for the loss of the dwelling house by fire. This upon the theory that it is admitted by defendants the house was destroyed by fire while in their possession, and that it is shown by the pleadings that they were at the time not entitled to the possession, and were therefore trespassers and liable as insurers. But we cannot agree with the contention that the pleadings show defendants were trespassers, upon which the whole argument for appellants rests.

was in possession, and her right to the possession was not questioned by appellants, except as a proof of her claim to homestead, it must be presumed her possession was in the exercise of the dower right conceded her by appellants and adjudged by the court, since by section 2138, Kentucky Statutes, the doweress is entitled to possession of the mansion house, yard, garden, etc., until dower is assigned, or, as said in Cass v. Smith, 4 Ky. Law Rep. 990, "until the sale of the property, and by this is meant a completed or perfected sale, and not a mere preferred bid for the property subject to be rejected or confirmed by the court." See, also, City of Henderson v. Ashby, 179 Ky. 507, 200 S. W. 931.

It therefore results that the pleadings do not show that either F. Y. Boggess or his wife was a trespasser, and that plaintiffs were not entitled to a judgment on the pleadings.

Judgment affirmed.

LOUISVILLE & N. R. CO. v. STEELE, (Court of Appeals of Kentucky. March 5, 1918.)

1. RAILROADS 276(4)-INJURIES TO TRES

PASSERS-LIABILITY-CHILDREN.

PASSERS-ADMISSIBILITY OF EVIDENCE.

Though it was the habitual practice of boys, including plaintiff, a boy about 8 years old, to jump on and ride on moving trains with[2, 3] Appellants sued only the husband, F. out permission, the railroad company would not Y. Boggess, it being alleged in the petition be liable if one of them got hurt while so tresthat the wife was made a defendant because passing, unless his place of danger on the train she refused to join as a plaintiff, and it jury to him by the exercise of ordinary care; was actually discovered in time to prevent inis pleaded by him and his wife that at the but where they were habitually permitted by time of the fire she, in the exercise of her the conductor to jump on and ride on such dower right, and not the husband, was in trains, the company voluntarily assumed the duty of anticipating that they would do what possession; so that upon this question alone he had permitted, and the further duty of exproof would have been necessary to author-ercising ordinary care to protect them from inize a judgment for plaintiffs against the jury. husband, against whom alone they asked 2. RAILROADS 282(4)-INJURIES TO TRESjudgment; but, more than this, Mrs. Boggess had been adjudged a dower interest in the land in an action between the same parties by the judgment of the Muhlenberg circuit court, affirmed by the opinion of this court in Boggess v. Johnson, 158 Ky. 418, 165 S. W. 413, which both she and her husband pleaded, and that she in that suit asserted home-3. RAILROADS 2731⁄2-INJURIES TO TRESPASSERS LIABILITY CHILDREN. stead rather than dower can in no way af- A railroad company is no more bound to fect or defeat the dower therein awarded keep its tracks, cars, and premises safe for her. Appellants are bound by that judg-children than to keep them safe for adults, unment, as they were parties to that action, less by its course of conduct it has established a status for children that imposes upon it more and not only then conceded her right to dow-care than it would owe to adults or to children er, but in their petition in this action make except for such course of conduct. the same concession; yet their whole argument here is based upon the contention that her attempt to claim homestead was an elec- Ky. St. § 805, making it an offense for any tion which defeated her right to dower, ig-on a moving train, did not prevent a recovery person except passengers and employés to get noring completely the fact that these questions are res judicata.

[4] As Mrs. Boggess, with her present husband when that judgment was rendered,

In an action for injuries to a boy 8 years old, sustained in alighting from a coal train on which he had been taking a ride, evidence as to the habitual and continued custom of boys to ride on such train, and jump on and off of the train and of the long-continued practice of the conductor in permitting them to do so was competent.

4. RAILROADS 278(4)-INJURIES TO TRESPASSERS-CONTRIBUTORY NEGLIGENCE.

for injuries sustained by a boy 8 years old who got on the steps of a train on which boys were accustomed to take rides while it was standing, and was injured in attempting to alight after it had started.

5. RAILROADS 282 (10)-INJURIES TO TRES- | under the wheels and both of his feet cut off. PASSERS QUESTIONS FOR JURY.

In an action for injuries sustained by a boy 8 years old in alighting from a train on which he had been stealing a ride, where the evidence was in sharp dispute as to whether the boy was in such a position when the conductor signaled for the train to start that he could not have avoided seeing the boy, this was a question for the jury.

6. RAILROADS 276(3)—INJURIES TO TRESPASSERS LIABILITY-CHILDREN.

If a boy 8 years old stealing a ride on a train was an ordinary trespasser, the only duty the conductor owed him was to exercise ordinary care to prevent injury to him after his peril was actually discovered by the conductor; but if the conductor saw him hanging on the step of a car before and at the time he signaled the train to start, it was his duty not to start the train until the boy had been removed from the place of danger.

7. RAILROADS 282(10)-INJURIES TO TRESPASSERS QUESTIONS FOR JURY.

Whether a boy 8 years old stealing a ride on a coal train on which other boys were accustomed to take rides was guilty of contributory negligence in jumping from the train while in motion was a question for the jury, though he testified that he knew it was dangerous to get on or off of a moving train, and had been warned many times not to do so, as well as whipped for doing it, as mere boyish knowledge, that it is dangerous to do things, does not necessarily imply an appreciation or understanding of the necessity of not doing those things.

8. RAILROADS 281(2)-INJURIES TO TRESPASSERS LIABILITY-CHILDREN.

A railroad company was responsible for the acts of its conductor in inviting, permitting, or encouraging boys to get on or ride on his train, though the company's rules prohibited him from permitting any person to ride on his train without a pass or permit.

9. RAILROADS 282(4)-INJURIES TO TRESPASSERS-ADMISSIBILITY OF EVIDENCE.

In an action for injuries sustained by a boy 8 years old in alighting from a train on which he and other boys were accustomed to take rides, evidence that his father had requested the conductor not to permit him to get on or ride on the train, or go about it, was competent to show notice to the conductor of the boy's habits, and that his practice of trying to ride on the train was against his parents' wishes. 10. RAILROADS 282(15)—INJURIES TO TRES

PASSERS-INSTRUCTIONS.

In such action, instructions as to the duties of the trainmen if they saw the boy in a position of danger, or if numbers of boys with the conductor's permission and acquiescence habitually and constantly rode on the train and as to contributory negligence, held not er

roneous.

Appeal from Circuit Court, Knox County. Action by Noble Steele, by his next friend, against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Benjamin D. Warfield, of Louisville, and Black & Owens, of Barbourville, for appellant. J. M. Robsion, of Barbourville, for appellee.

CARROLL, J. Noble Steele, a boy 8 years old, while attempting to let go of or alight from the steps of a moving coal car on which he was riding, or which he had hold of while running by the side of the car, was thrown

In this suit by his next friend to recover damages for the injuries so sustained, there was a verdict and judgment in his favor for $10,000, and on this appeal a reversal is asked on several grounds, to which attention will be called.

At the time the injuries complained of occurred, and for 2 or 3 years before, the railroad company operated daily between Corbin and Page, Ky., a coal train, in charge of Conductor Wilder, which took empty coal cars each day from Corbin to coal mines in the vicinity of Page, and brought back from the mines to Corbin cars loaded with coal. In making these trips the train usually stopped or ran at a slow rate of speed through a village called Grays, having a population of probably 500, consisting mostly of miners; and it was here that Noble Steele lived with his parents. It appears that there were at and about Grays quite a large number of boys between 6 and 15 years of age who were apparently permitted by their parents to run at large, and these boys, or a great many of them, were in the habit of getting on, riding on, and jumping off this train, in charge of Conductor Wilder, every day as it went through Grays, and this practice had continued for 2 years or more before Noble was injured.

On the trial there was evidence for the plaintiff by five or six persons who lived at and near Grays that it was a very common thing to see from 10 to 20 boys between 6 and 15 years old riding at the same time on this coal train in charge of Wilder. Some of the boys, according to the witnesses, would ride on the engine, at other times, in the caboose, and again by getting on the steps or stirrups of the coal cars, or on the trucks. These witnesses further said that many times these boys were not only permitted by Wilder and other members of the crew to jump on the train and ride, but were enticed and encouraged by them to do so, and daily got on the train in the presence of Wilder without any objection on his part, and that this practice on the part of the boys and Wilder had habitually continued for 2 years or more.

There was further evidence by Noble to the effect that on the occasion of his injury he got on a step of a coal car five cars from the caboose before the train started, and after he had climbed on the step he saw Conductor Wilder come out on the step of the caboose and signal the engineer to start the train. He said that at the time, and before the conductor gave the signal to start, each was in plain view of the other, and he was looking at Wilder, and Wilder was looking at him; that after the train started and was beginning to run rather fast, he attempted to get off, and his feet got under the wheels; that

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

before this he had ridden many times on Wild-, very prejudicial to the rights of the railroad er's train; that sometimes Wilder would see him and sometimes he would not, but that he had never said anything to him about not getting on the train; but sometimes Wilder would ask him to ride, and at other times he would get on without being asked. He also testified that he knew it was dangerous to go about or get on moving trains, as he was liable to get under the wheels and be killed or crippled; that he had often been warned by his father and other men about Grays not to do so, and had been whipped by his father for jumping on trains, but that he had been doing this for about 2 years before he was hurt.