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only part of the relief sought, it appeals. petition, to transport its coal free of charge. Reversed, with directions.

H. C. Gillis, of Williamsburg, for appellant. Rose & Pope, R. L. Pope, and R. L. Pope, all of Williamsburg, for appellee.

CARROLL, J. The appellant, the Eureka Coal Company, owns the coal in three bodies of land known as the Gatliff Coal Company tract, the J. M. Sharp tract, and the Angeline Bennett tract. The J. M. Sharp and the Gatliff Coal Company tracts lie back of the Angeline Bennett tract. The appellee, Kentucky-Tennessee Coal Company, owns a short railroad spur connecting its coal properties with the Louisville & Nashville Railroad Company's line of road. This spur track touches the Angeline Bennett tract owned by the Eureka Coal Company, and the Eureka Coal Company, desiring to haul the coal that it might mine from the Sharp, Gatliff and Bennett tracts to the Louisville & Nashville Railroad, brought this suit for the purpose of compelling the Kentucky-Tennessee Coal Company to permit it to use the spur railroad in order that it might get its coal out to the Louisville & Nashville track. In its petition it averred that it had no other way of shipping or transporting its coal from its mine to a railroad or market except over this spur track. The prayer of the petition was that the court

"award it a perpetual, mandatory injunction, enjoining and requiring the defendant to give, furnish, and permit the plaintiff the right and privilege of free access to, and the right to tap, and the free use of all the spur tracks, side tracks, and other tracks, built and maintained, or which shall hereafter be built and main tained, by the defendant on the land conveyed by Angeline Bennett to A. R. Humble as set out in this petition, and from said land to the Louisville & Nashville Railroad, and the right and privilege to ship and transport over said tracks, free of charge, any and all coal and other merchantable things from plaintiff's mine and elsewhere to said Louisville & Nashville Railroad, and enjoining the defendant from in any way preventing or interfering with plaintiff in so doing."

In its answer the defendant denied all the averments of the petition. After this the Eureka Coal Company filed an amended petition, in which it amended the prayer of its original petition by asking that, if the court should hold that it was not entitled to transport all, or any part, of the coal owned by it under its leases over the spur track of the defendant free of charge, it be permitted to transport said coal over said track by paying to said defendant, or its successors, or assigns, a reasonable price per ton for the use of said track to be fixed by the court, and for all necessary and proper orders to secure plaintiff in such right without interference by defendant. It will be noticed that this amended petition merely amended the prayer of the petition by asking that the court give it the right to transport coal over the spur track upon payment by it of compensation to be fixed by the court instead of giving it the right, as asked in the original

In the judgment the lower court decided that the Eureka Coal Company was entitled to free access to the spur railroad track of the defendant described in the pleadings and evidence and to tap said track at any place it desired, and to ship and transport free of charge over this spur all coal and other merchantable things in and on the tract of land which we may describe as the Angeline Bennett tract, and further decided that it was not entitled to ship or transport over this spur track any coal or other merchantable things from any other land except this Angeline Bennett tract, "either free of charge or by paying any sums as trackage, rental or freight charges, unless with the consent of the defendant." The court further adjudged that the Eureka Coal Company should recover its costs incurred in establishing its right to tap and use the spur track to ship out its coal from the Angeline Bennett land, and that the defendant should recover its costs in defeating the claim of the Eureka Coal Company to the right to ship coal from other land over this track. To so much of this judgment as denied the right of the Eureka Coal Company to ship coal from tracts others than the Angeline Bennett tract, either free of charge or by paying reasonable charges therefor, and to so much of the judgment as awarded costs against it, the Eureka Coal Company prosecutes this appeal.

It will be seen from the judgment that the Eureka Coal Company was given all the rights and privileges that it prayed for as to coal on the Angeline Bennett land, but was denied the right to ship over the spur track, even upon the payment of reasonable charges therefor, any coal from the Sharp or Gatliff lands, unless with the consent of the Kentucky-Tennessee Coal Company. So that the only matter here in issue is so much of the judgment as denied the right of the Eureka Coal Company the use of the spur track for the shipment of its coal from the Sharp and Gatliff lands upon the payment of reasonable charges for the use of the spur track; and there really seems to be no substantial issue between the parties as to the right to ship coal from the Sharp and Gatliff tracts over this spur upon the payment of reasonable compensation therefor.

Because counsel for the Eureka Coal Company in his brief says that "it is willing to pay appellee a fair price for the use of its spur track in hauling coal over same, but appellee refuses to permit appellant to haul or ship any coal from the Sharp and Gatliff tracts over its spur track," and counsel for appellee say in their brief that there is no objection to the shipment of coal from the Sharp and Gatliff lands over this spur track upon the payment of reasonable compensation therefor by the Eureka Coal Company, it would thus appear that the only matter in dispute between these parties is,

In action to enjoin trespass and to recover damages, which was transferred to the common pleas court for trial of the law issues, it was not an abuse of discretion for the chancellor, certified, to refuse to allow an amendment to the when the judgment of the common pleas was answer pleading equitable estoppel.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Second Di

vision.

Chas. Carroll, of Louisville, for appellants. Hugh B. Fleece, of Louisville, for appellees.

What is reasonable compensation for the ages for trespass upon lands, requested instrucservice desired by the Eureka Coal Com- tion on equitable estoppel was properly refused. pany? This issue we are asked by counsel 3. PLEADING 258(3)-AMENDMENT-AFTER for the Eureka Coal Company to determine, PARTIAL TRIAL. but we decline to do so. It should have been determined in the lower court before this appeal was prosecuted, and doubtless would have been if the court had been asked to refer the case to a commissioner for the purpose of reporting what would be reasonable compensation, or had been expressly requested by motion to fix itself reasonable compensation. But it does not appear from the record that the Eureka Coal Company Action by Mary Wiser and others against moved or requested the court to do either Moses Fort and others, which was transof these things or made any request that ferred to the common pleas branch, wherein compensation be fixed by the lower court. judgment was rendered for plaintiffs and It is true that in the amended petition, certified to the chancery court, which entered heretofore referred to the Eureka Coal Com-judgment in conformity therewith, and depany prayed that, if the court held that it fendants appeal. Affirmed. was not entitled to free use of the spur track, it be permitted to ship coal over this track by the payment of a reasonable price to be fixed by the court, and some evidence was taken on this subject; but, as we have said, this prayer does not seem to have been followed up by any request or motion in the lower court, and in the judgment the lower court apparently ignored this amended petition by adjudging that the Eureka Coal Company could not use this spur track for the purpose of getting out its coal from the Sharp and Gatliff lands unless by the consent of the Kentucky-Tennessee Coal Company. It would therefore appear that, even if the Eureka Coal Company had offered to pay a reasonable price for the use of the spur track to ship its coal from the Sharp and Gatliff lands, it could not do so unless the Kentucky-Tennessee Coal Company consented that it might exercise this privilege, and hence it was necessary for the Eureka Coal Company to prosecute this appeal in order to obtain the right upon the payment of reasonable compensation to ship its coal from the Sharp and Gatliff tracts.

CLAY, C. Plaintiffs, Mary Wiser and others, brought this suit in the Jefferson circuit court, chancery branch, against W. Aaron Fawcett, Moses Fort, and the E. I. Du Pont de Nemours Powder Company, to enjoin and recover damages for trespass on a small strip of land lying in Jefferson county. On motion of the defendants, the case was transferred to the common pleas branch, Second division, for trial of the common-law issue of title. The jury found that the land belonged to plaintiffs, and gave damages against Fawcett in the sum of $5, and against Fort and the powder company jointly in the sum of $200. Upon this verdict a judgment was entered by the common pleas court, and the trial, verdict, and judgment were certified to the chancery court, which entered judgment in conformity to the judgment of the common pleas court. Fort and the powder company appeal.

It appears that in the year 1854, John Wiser owned a tract of land containing 160 acres. Wherefore the judgment is reversed, with In that year he conveyed 60 acres of this directions to the lower court to fix and de-tract to his son Davis Wiser, and 100 acres termine a reasonable compensation to be charged the Eureka Coal Company for the privilege of shipping coal from the Sharp and Gatliff lands over this spur track.

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between Davis Wiser and Anthony Wiser, to his son, Anthony Wiser. By agreement their lands were processioned in the year 1859, and the beginning corner of the dividing line fixed at a large stone.

Plaintiffs are the heirs of Davis Wiser, who died in the year 1890, leaving ten children. By a proceeding in the Jefferson county court during that year, the lands of Davis Wiser, including the 60 acres conveyed to him by his father, were partitioned among his children and deeds executed to them for their respective portions. A small stone 242 feet east of the corner established by the processioners was fixed as the corner stone of the 60-acre tract.

In the absence of pleading of equitable esOf the 100 acres belonging to Anthony Wistoppel in an action to enjoin and recover dam- er, Aaron Fawcett acquired title to 1 acre,

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and Moses Fort to 29 acres, immediately ad- | 169 Ky. 213, 183 S. W. 483; Hill v. Phillips, joining the 60-acre tract of Davis Wiser now 87 Ky. 169, 7 S. W. 917; Morawick v. MorIt is tineck, 128 Ky. 155, 107 S. W. 759. owned by the plaintiffs. therefore only necessary to say that we have carefully examined the evidence, and, in our opinion, it is sufficient to sustain the verdict.

A few years ago, the powder company entered into a contract with Fort, by which, in consideration of the payment of a certain sum, Fort permitted it to build a road from the county road leading to the company's land on which its depot is located. Plaintiffs contend that this road was located on their land, while the defendants contend that it was located on the land of Fort.

In their petition plaintiffs set forth the proceedings by which the lands of Davis and Anthony Wiser were processioned, and alleged, in substance, that the dividing line running from the large stone to the stone corner of L. M. Payne, as fixed by the processioners, was the true dividing line. They further alleged that the commissioners, in the proceeding to partition the lands of Davis Wiser among his children, made a mistake in fixing the beginning corner of the dividing line between the lands of Davis and Anthony Wiser at the small stone, and that plaintiffs did not discover the mistake until shortly before the bringing of the suit. The defendants denied the material allegations of the petition, and in the second paragraph pleaded affirmatively that after the dividing line was established by the processioners in the year 1859, Anthony Wiser, being dissatisfied with it, had a second line run, beginning at the small stone, and that this was the correct line, and was thereafter recognized as the established line. They further pleaded that in the proceeding to partition the lands of Davis Wiser, the line contended for by defendants as the true dividing line between the lands of Davis and Anthony Wiser was fixed by the commissioners as the western boundary of the land partitioned, and the deeds conveying to that line were made to, and accepted by, the heirs of David Wiser, including the plaintiffs, and that they entered upon and took possession of the lands of Davis Wiser as described in said deeds. In the same connection they pleaded adverse possession to the strip of land in controversy up to the line fixed by the commissioners, and by the survey alleged to have been made after the establishment of the line by the processioners in 1859.

[1] We deem it unnecessary to detail the evidence heard by the jury in the common pleas court. This is not a purely equitable action, in which the verdict of the jury on an issue of fact is merely advisory, and the chancellor may disregard the verdict and enter judgment in conformity with his view of the weight of the evidence, but a case involving a distinct legal issue which either party had the right to have tried by a jury. In such a case the verdict of the jury is to be treated as in ordinary jury trials, and will not be disturbed unless flagrantly against the evidence. Winchester et al. v. Watson et al.,

During the trial in the common pleas court, the court refused to give the following instruction offered by the defendants:

"If the jury believe from the evidence that plaintiff's permitted defendants, Fort and powder company, to erect valuable and lasting improvements upon the lands in controversy, and this with knowledge of plaintiffs, and plaintiffs made no effort to prevent said improvements, and failed to claim the land, then they are now estopped from claiming same, and as to said land covered by said improvements, they should find for defendants, Fort and powder company."

[2] In reply to the contention that the refusal of this instruction was error, it is only necessary to say that the instruction presents an issue of equitable estoppel, and no such issue was pleaded by the defendants.

As

Another error relied on is that the jury's finding of $200 damages was excessive. the dimunition in the value of the use of the land was fixed as the measure of plaintiffs' damages, and as we have no means of determining with any degree of certainty the precise effect of the construction of the road on the use of the land, we conclude that the question of damages was peculiarly for the jury which heard the evidence, and are not inclined to hold that its finding was excessive.

[3] Lastly it is insisted that the chancellor upon the return of the case from the common pleas court, erred in refusing to permit defendants to file an amended answer pleading estoppel. If the defense of equitable estoppel had been properly pleaded in the original answer, plaintiffs would have had the right to insist on a decision of that issue before the case was transferred to the common pleas court for the trial of the legal issue. While defendants did allege in their original answer that the commissioners in the partition proceeding fixed the western boundary of the land of Davis Wiser upon the line now claimed by defendants as the true dividing line between the lands of Davis Wiser and Anthony Wiser, and that plaintiffs accepted deeds conveying their respective tracts up to that line, it is clear that these allegations bore merely on the location of the dividing line and on the question of adverse possession, and were not sufficient to raise the The defendants having issue of estoppel. failed to present the issue of estoppel at the proper time, and having risked the question of title and damages to a tribunal of their own choice, it was not an abuse of discretion on the part of the chancellor on the return of the case after the finding against the defendants, to refuse to permit them to file an amended answer for the purpose of

having a second trial on a different phase of the same issue previously decided by the jury.

Judgment affirmed.

ELKHORN MINING CORP. v. PITTS. (Court of Appeals of Kentucky. March 5. 1918.)

1 MASTER AND SERVANT 293(14)-SAFE Whether a master used due care to provide safe appliances to a servant putting up electric trolley wires in the mine held a question for the jury.

APPLIANCES-QUESTION FOR JURY.

came in contact with the live wire on the other end of the insulator. He did not know that the wire was charged, and the foreman did not warn him of the danger. He further says that the insulator was not reasonably safe for the purpose for which it was being used, because it had no guards on the end to prevent it from slipping through his hand. He also testified that in doing dangerous work like that in which he was engaged, the company should have cut off the current by using the switch at the substation or by providing additional switches at the terminal pole. According to the evidence for the defendant, plaintiff was not only informed that

2. MASTER AND SERVANT 201(1)-INJURIES TO SERVANT-MASTER'S NEGLIGENCE-CON- the current was on, but the fact that the CURRENCE WITH FELLOW SERVANTS' NEGLI

GENCE.

If injury to a servant is due to concurring negligence of the master and a fellow servant, the master is liable.

3. MASTER AND SERVANT 287(11)-QUESTIONS FOR JURY-CONCURRING NEGLIGENCE OF MASTER AND FELLOW SERVANT.

Whether master's negligence in providing improper insulator or failing to cut the current was a concurring cause of the servant's injury held for the jury.

Appeal from Circuit Court, Floyd County. Action by Samuel Pitts against the Elkhorn Mining Corporation. Judgment for plaintiff, and defendant appeals. Affirmed. Allie W. Young, of Morehead, Ed. C. O'Rear, of Frankfort, and Smith & Combs, of Prestonsburg, for appellant. May & May, of Prestonsburg, for appellee.

CLAY, C. This is a personal injury action, in which plaintiff, Samuel Pitts, recovered of the defendant, Elkhorn Mining Corporation, a verdict and judgment for $500. The defendant appeals.

At the time of the accident, plaintiff was assisting the company's foreman and two other employés in extending a trolly wire. New poles and cross-arms had been erected, and additional wire had been placed on the ground along the proposed extension. The mine was in operation, and the old trolly wire on the line being extended was in use and charged with 250 volts of electricity. That wire was tied in one end of a wooden insulator about a foot in length. This insulator was attached to a turnbuckle, a contrivance for tightening the wire, and the turnbuckle was attached to the last pole. The insulator was a piece of wood with an iron ring in each end, and was used to break the current. When the additional wire was ready to be put up, Mosley, the foreman, loosened the turnbuckle from the end of the terminal pole and from the end of the insulator. He then attached the new wire to the end of the insulator, and handed the insulator to plaintiff to hold until the other two employés could tie the wire to the next pole 25 feet away. Plaintiff says that the men jerked the wire, and his hand slipped and

motors were running and the fan near by was in operation plainly indicated that such was the case. It was also shown that the current could not be cut off at the substation without shutting down its mines.

[1] It is the contention of the company that it was entitled to a peremptory instruction, not only on the ground that no negligence on its part was shown, but on the further ground that plaintiff pleaded and proved that his hand was caused to come in contact with the live wire by the jerk given by his fellow employés. It appears that plaintiff alleged, not only that the insulator was defective, but that the company was negligent in not releasing the voltage from the live wire. We are not prepared to say as a matter of law that the company performed its whole duty by furnishing the insulator which plaintiff was directed to hold. In attaching and tightening the wire it was liable to be pulled or jerked, and if the insulator was not guarded, even a slight jerk might be sufficient to cause the hand of the person holding it to slip and come in contact with the live wire. In view, therefore, of the dangerous instrumentality which plaintiff was required to handle, we conclude that plaintiff's evidence, to the effect that the insulator should have been protected by guards, or the current should have been released from the live wire was sufficient to make it a question for the jury whether the company used the utmost degree of care to provide plaintiff with safe appliances for work.

[2, 3] This conclusion disposes of the further contention that a peremptory instruction should have gone, because the accident was caused by the negligence of plaintiff's fellow servants. It is only where the injury is caused solely by the negligence of a fellow servant that the master is exempt from liability. If the injury be due to the concurrent negligence of the master and a fellow servant, the master is liable. Kentucky & I. Bridge Co. v. Sydnor, 119 Ky. 18, 82 S. W. 989, 26 Ky. Law Rep. 951, 68 L. R. A. 183, 7 Ann. Cas. 1177; Bell-Knox Coal Co. v. Gregory, 152 Ky. 415, 153 S. W. 465; A. Bentley & Sons v. Bryant, 148 Ky. 634, 147 S. W.

402; Fluhart Collieries Co. v. Meeks, 160 Ky. 127, 169 S. W. 686; Siegel, Cooper & Co. v. Frank Trcka, 218 Ill. 559, 75 N. E. 1053, 2 L. R. A. (N. S.) 647, 109 Am. St. Rep. 302. Here the jerk given the wire by plaintiff's fellow servants would not have caused plaintiff's injuries if the insulator had been properly guarded or the current had been released from the live wire. If, therefore, it was a question for the jury whether the company was negligent, it was likewise a question for the jury whether the company's negligence was one of the concurring causes of plaintiff's injuries. Hamel v. Newmarket Mfg. Co., 73 N. H. 386, 62 Atl. 592.

While the instructions are complained of, we conclude that on the whole they fairly presented the law of the case.

Complaint is also made of the court's refusal to require plaintiff to give bond for costs on the ground of nonresidence. In reply to this contention it is sufficient to say that we see no reason to disturb the court's finding that plaintiff was a resident of Kentucky.

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In a servant's action for injuries to his eyes, a practicing optician who had studied in reputable schools, etc., held competent to give expert testimony regarding the effect of the injury, although he was not an oculist.

3. TRIAL 267(4)-INJURIES TO SERVANT SUBSTITUTED INSTRUCTIONS.

SAMPSON, J. This action was instituted in the Mason circuit court by Omar Fluharity through his guardian against Bates & Rogers Construction Company, a corporation, to recover of it damages for injury to his person, alleging that while in the employ of said company he was, through the carelessness and negligence of its foreman, burned in and about his face, eyes, hands, and other parts of his body by an explosion occasioned by the foreman of appellant bringing a lighted lantern near where appellee was at work repairing an acetylene light. Fluharity was a young man about twenty years of age, and was engaged by the company as an electrician, but had been directed by the foreman to repair the acetylene light upon which he was at work at the time of his injury. In order to make repairs it was necessary for him to dismantle the light, take it to pieces, and remove some exhausted carbide lumps from the container. He had removed the tube to a distance which he regarded as safe before beginning the work. He then reached down in the tube, trying to get the carbide from the bottom, his hand near the bottom, he at the time attempting to look in the tube, when appellant's foreman, Bolton, with a lighted lantern came up behind him and the lighted lantern coming in contact with the gas which emanated from the carbide caused an explosion, the fire from which dashed into the face and eyes of appellee, burning him severely. By his petition and amended petition he sought to recover $200 for loss of time, and $500 for board, medical services, glasses, and treatment for his eyes, and $2,300 for permanent injury and loss of power to earn money, a total of $3,000. The defendant company denied its negligence, and pleaded contributory negligence on the part of plaintiff; assumed risk, and that appellee was injured through the negligence of a fellow servant. A jury was impaneled, and upon hearing awarded appellee $1,500 in damages. [1] Complaint is made on this appeal that of his ability as a cartoonist and his preparation to follow that work as a vocation. When plaintiff was called as a witness and had answered some preliminary questions, he was then asked what schools he had attended and what vocation or profession he had begun to prepare himself for, and he answered:

A conventional contributory negligence in-appellee was permitted to introduce evidence struction held sufficiently concrete to justify the refusal of defendant employer's requested instruction that plaintiff could not recover if his own negligence contributed to his injury, etc. 4. MASTER AND SERVANT ~289(27)—INJURY TO SERVANT-JURY QUESTION CONTRIBUTORY NEGLIGENCE.

Evidence that defendant employer's foreman brought a lighted lantern near plaintiff servant who was repairing an acetylene light, causing an explosion, etc., held to make plaintiff's contributory negligence a jury question.

Appeal from Circuit Court, Mason County. Action by Omar Fluharity, by his guardian, against the Bates & Rogers Construction Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Stanley Reed, of Maysville, and Fred Forcht, of Louisville, for appellant. Cole, of Maysville, for appellee.

A. D.

"I was preparing myself in the future for being a cartoonist, along those lines, and I was getting pretty good consideration around town and some of the various papers, such as Judge, Cincinnati Times-Star, and Chicago Herald."

The defendant company objected to this question and answer, but the objection was overruled. It now complains that it was error to allow the admission of this and similar evidence because, as it contends, no recovery can be had for such special damage,

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

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