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continuance. The court passed the motion and set the case down for July 12th. On that day Ford renewed his motion for continuance with affidavit, and to which plaintiff filed a counter affidavit. The court refused a continuance. The case proceeded to trial, Ford waiving intervention of a jury, and, on the 14th, judgments were entered against him for the amounts claimed in the petitions.

[1, 2] There is serious question as to the sufficiency of Ford's plea of payment and satisfaction of the written guaranty, but the lower court ruled that the facts stated were sufficient to constitute a defense. Whether we concur in that ruling is not of so much importance now. Manifestly the liability against Ford and Murray continued until it was satisfied by payment, and appellees had notice that Ford and Murray would not further serve as guarantors. The answer is susceptible of two constructions. It avers a satisfaction by payment of the indebtedness set forth in the petition. Whether this refers to the debt of the coal company, or Ford's obligation as guarantor, is not clear. If it referred to the coal company's indebted ness and a payment thereon of the amount stated the answer was insufficient. As we construe the writing, it was a continuing obligation, and its main purpose was to procure a line of credit for the coal company. More than a mere payment on the company's account to appellees was required. The payment must have been in discharge and termination of the guaranty obligation and with notice to that effect. The court should have required an answer of Ford in more definite terms, or else sustained demurrer.

got overheated and am not well enough to make this trip; couldn't do it under any circumstances."

When the case was set over from July 1st to July 12th, Ford got into communication with Murray by telephone, and Murray informed him that in order to testify intelligently it would be necessary for him to investigate the books and accounts of the company, and that because of his continued illness he would be unable to do that, or to testify by deposition, or attend the court at the time the case was set for trial. Murray also said he would send certificate of his attending physician showing his illness, and that, as Murray was also a lawyer, he relied upon him to have the certificate conform to legal requirements. On July 11th, one day before the trial, Ford received the following medical certificate:

"I, Dr. K. D. Davis, of Chattanooga, Tenn., do certify that I am the family physician of W. indisposed since June 28, 1913, from being badT. Murray of this city. Mr. Murray has been ly overheated. He is in no condition for business, should not be exposed to any kind of worry or excitement. I have directed that he avoid the heat, all business, excitement and worry. K. D. Davis, M. D."

it is insisted that because the certificate is not sworn to it is not sufficient. Appellee

also files a counter affidavit from which it is made to appear that Murray was not ill, and,

in support of the contention, filed a letter signed by a legal firm at Chattanooga dated July 9th in which they say that Murray was at that time in the city, and was then in his office, which was in the same building wherein these lawyers had their office, and that they had just been to see Murray in his office, and from their observation and the manner of his conversation they were satis

[3] But in view of the ruling on the sufficiency of the plea, there was no occasion for Ford to amend it with more definite allega-fied he was in good physical condition, and tions in this regard, and the question resolves itself down to whether, under the circumstances disclosed in the affidavit, there was not an abuse of discretion in refusing a continuance so that Ford might be given an opportunity to procure the personal attendance, or deposition of his codefendant, Murray, to establish the facts alleged in defense. It appears from the affidavit that, as soon as his answer was held to be a valid plea, viz., May 17th, he undertook to locate Murray for the purpose of procuring his attendance or taking his deposition, and details the method pursued. On June 26th, he received a letter from Murray dated Chattanooga, Tenn., June 24th, giving absence from home as the reason for his failure to make earlier reply, and expressing a willingness to give his deposition, but stated that his engagements were such that he could not possibly attend the trial. On further insistence from Ford that he attend in person, Murray wrote on June 28th, among other things, the following:

"I have just written the judge and told him that it was absolutely impossible for me to be there. I was in Cincinnati the first of the week,

that there was no legitimate reason why he would be unable to give his deposition. Assuming that a counter affidavit was permissible, this letter was not in the form of an affidavit, and it is subject to the same criticism as the medical certificate. It may be that Murray was feigning illness, and that the certificate of the Chattanooga physician was untrue, and it was for that reason he did not verify it; but, under the circumstances disclosed in Ford's affidavit, we would not feel waranted in making that presumption. Murray was Ford's codefendant; he was president of the bankrupt coal corporation, and attended to its business in every detail. Ford says the payments were made by Mur ray in satisfaction of the indebtedness, and that Murray will so swear. Appellee admits that payments were made in excess of the guaranty. It is evident that Ford believed they were made in satisfaction and termina tion of the guaranty, and that he could establish that fact with Murray's testimony In view of the heavy obligation imposed upon this accommodation surety, and the diligence disclosed in the affidavit to secure the

attendance of the absent witness and code- | carcasses. On the contrary, for several fendant, we are of opinion that the case years, as a result of the negligence of deshould go back for a new trial on the issues fendant, the pond and land immediately sursuggested herein. rounding it emitted very foul and offensive The judgment in each case is therefore re- odors. The evidence for the defendant was versed.

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1914.) NUISANCE (§ 50*) — ACTION FOR DAMAGES AMOUNT OF RECOVERY.

In an action against a railroad company for damages from foul and offensive odors caused by its negligence in burying the carcasses of dead animals in and near a pond on its right of way and extending into plaintiff's premises, where there was evidence that several animals were buried within a few feet of plaintiff's residence, that this condition extended over several years, and that the odors arising therefrom were not only foul and offensive but lasted for several weeks at a time, a verdict for $1,000 was not so disproportionate to the injury received as to appear at first blush the result of prejudice and passion, and hence would not be

reversed as excessive.

[Ed. Note.-For other cases, see Nuisance, Cent. Dig. §§ 118-127; Dec. Dig. § 50.*]

Appeal from Circuit Court, Knox County.
Action by C. H. Bays and wife against

the Cumberland Railroad Company. From a
judgment for plaintiffs, defendant appeals.
Affirmed.

Black, Black & Owens, of Barbourville, for appellant. J. D. Tuggle, of Barbourville, for appellees.

to the effect that there were but few instances where any dead animals were buried at all, and, when buried, they were buried so deep that it was impossible for any odors to escape. It was also shown that the odors were those peculiar to stagnant water, and that these odors were not due to any negligence on the part of defendant.

We find no prejudicial error in the admission of evidence. The chief error relied on is that the verdict is excessive. There is substantial evidence to the effect that several animals were buried in or near the edge of the pond, and within a few feet from the residence of plaintiffs. This condition extended over a period of several years, and the odors arising therefrom were not only foul and offensive, but lasted for several weeks at a time. What would fairly compensate one for the diminution in the value of the use of his property under such circumstances is peculiarly a question for the jury. While the verdict is large, we cannot say it is so disproportionate to the injury received as to strike us at first blush as being the result of prejudice and passion. That being true, the verdict will not be reversed on the ground that it is excessive. Judgment affirmed.

N. R. CO.

(Court of Appeals of Kentucky. June 19, 1914.) MASTER AND SERVANT (§ 276*)-DEATH OF SERVANT-NEGLIGENCE-PROXIMATE CAUSE.

In an action for death of a railroad switchman by falling beneath the wheels of a train as he was endeavoring to board it, evidence held insufficient to warrant a finding that his fall was caused by a ridge of dirt and cinders dug from the track and alleged to have been negligently

CLAY, C. This is the second appeal of this case. The opinion on the former appeal WEIDEKAMP'S ADM’X v. LOUISVILLE & may be found in 153 Ky. 159, 154 S. W. 929. On the first trial there was a judgment for plaintiffs in the sum of $900. That judgment was reversed because the trial court gave an instruction authorizing a recovery of punitive damages. In remanding the case this court further held that plaintiffs' right of recovery should not be confined to such injury as they suffered within one year. next pre-piled alongside thereof. ceding the filing of the petition, but that they could recover damages for all injuries occurring at any time within five years from the time the action was brought. The opinion also sets out the instructions to be given

on another trial. On the second trial plaintiffs recovered a verdict and judgment for $1,000. The railroad company appeals.

The action is one to recover damages for foul and offensive odors caused by the negligence of the railroad company in burying the carcasses of dead animals in and near a pond lying on defendant's right of way and extending into the premises of plaintiffs. The evidence of plaintiffs tends to support the allegations of the petition. They show that several dead animals were buried either in or near the edge of the pond, and that they were not buried at a sufficient depth to prevent foul odors arising from their decaying

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dec. Dig. § 276.*]

Appeal from Circuit Court, Jefferson Coun

ty, Common Pleas Branch, Second Division. Action by Frank Weidekamp's Administratrix against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Benjamin F. Gardner and Edwards, Ogden & Peak, all of Louisville, for appellant. Chas. H. Moorman, T. K. Helm, and Benjamin D. Warfield, all of Louisville, for appellee.

TURNER, J. Frank Weidekamp was the foreman of a switching crew in the East Louisville yards of appellee on April 29, 1911, and, while so engaged on that day with his

crew in taking from said yards to other yards in the city of Louisville a train of circus cars, was run over and killed. This is an action by his personal representative alleging that he came to his death by reason of the negligence of the appellee, and asking damages therefor. Upon the first trial a verdict for $8,000 was returned against appellee, but the court, upon motion, set that verdict aside and granted a new trial. On the last trial, at the conclusion of the plaintiff's testimony, the court gave a peremptory instruction to find for the defendant, and, from a judgment entered under that direction, this appeal is prosecuted.

It is conceded that, if the action of the lower court, in directing a peremptory instruction on the last trial, is erroneous, there should be a reversal, with directions to enter a judgment on the verdict rendered at the first trial.

Weidekamp was a young man, in good health, active and alert, and had been engaged by appellee as a switchman for 11 or 12 years.

The evidence as to how the accident happened was substantially the same upon both trials, except that upon the second trial Rucker, who had been introduced by the defendant upon the first trial, did not testify, and Birg, a negro, who did not testify at the first trial, testified at the last.

The only negligence relied upon as causing the accident is that on the morning before the accident a crew of trackmen of appellee, in repairing the tracks at the point where the accident occurred, had taken from under the ties a lot of cinders and soft dirt and piled it along the track for a distance of 60 or 75 feet in a ridge from a foot to a foot and a half high, and that the decedent in attempting to board his train, while it was in motion, had in some way stumbled over or had been impeded by this ridge of dirt and cinders, and that it was the cause of the accident.

said that the ridge was the cause of the accident, and this, of course, involves an examination of the evidence on that question.

There were only four witnesses introduced upon either trial who saw the accident or any part of it, viz., Rucker, Kessler, Birg, and Harpring, and only the latter three testified upon the last trial.

Harpring states that he was superintending the unloading of coal at a distillery a short distance away, and was on lower ground than the place where Weidekamp was killed; that there were some cattle on a side track between where he was and the place of the accident, but, by reason of being on lower ground, he saw Weidekamp while the cars were running over him by looking under the cattle cars. In speaking of the accident to Weidekamp, he says:

"Q. Did anything happen to him on the 29th day of April, while you were up there? A. Yes, sir; he got killed. Q. Did you see the accident? A. No, not all of it. Q. Just tell the jury what part of it you saw, if any? A. I saw the last several cars passing over his body as he was lying on the track. Q. On what rail of the track was his body when it was being run over? A. On the south. Q. Did you see him fall? A. No, sir."

J. H. Kessler states that he was 40 or 50

yards from Weidekamp when the accident happened, and describes it in this way:

"Q. I will get you to tell the jury just what happened, in your own way, just what you saw, to the best of your recollection. A. All I can say, Weidekamp tried to get on and must have slipped or missed the footstep, and fell down between them. Q. Will you please state positively about that, whether he missed his footstep? A. No, not particular, because that was done so quick, you know, you couldn't tell whether he missed his footstep or slipped. Q. You don't know about that? You don't know whether his hand slipped, or whether his feet slipped from the stirrup? A. No, sir. The Court: Which side of the car did he try to get on? The Witness: The north side, between the north-bound the train at the time he tried to get on, on the main and the south-bound main. Q. Where was north-bound main? A. On the south-bound main. Q. The south-bound main is the north main, the train goes to Cincinnati on that? track, isn't it? The Court: The north-bound The Witness: Yes, sir. The Court: And the south-bound main brings the trains into Louisville and on south? The Witness: Yes, sir. Q. On which side of the train was he, on the right-hand side or the left-hand side, going to Cincinnati? A. Going to Cincinnati? Q. Yes? A. He would be on the right-hand side; the right-hand side of the train looking towards Cintrain was coming this way. Q. He was on the cinnati, no matter how the train was going? A. Yes, sir. Q. Which side of the track were you on? A. The same side as Mr. Weidekamp. tillery or over on Mellwood? A. Next to the distillery. Q. That is the side he was on when he was killed? A. Yes, sir. Q. Did you see him make more than one attempt to get on that train? A. I think he made two, but never lost his handhold, is the way it looked to me.' And again on cross-examination:

But it is the contention of the appellee: (1) That it was not only its right, but its duty, to keep its tracks in repair, as well for the protection of its employés as for the proper handling of the traffic, and that therefore, even if the ridge of dirt was piled along the side of the track, it was merely a necessary incident to the maintenance and operation of the railroad, and was not therefore in any event negligence; and (2) that even if it was negligence for this ridge of dirt and cinders to be where it was, giving the fullest, Were you over next to the Elk Run Diseffect to the whole evidence, it is neither shown directly nor by any fair inference that the ridge of dirt and cinders was the cause of the accident.

In our view of the case it is unnecessary to determine whether the existence of the ridge of dirt and cinders along the side of the track was negligence, and it therefore only remains to be determined whether there

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"Q. Now, you say it looked to you as if he made two attempts to get on, and missed the first one, and then tried the second time? A. Yes, sir. Q. But held his hand hold all the

The colored witness, Birg, says:

connection with the accident or was the cause of it.

The evidence of Harpring sheds no light whatever upon the cause of the accident; he only saw the decedent after he was under the train and the cars were running over him, and does not claim to have seen him

fall.

it was. There is nothing in his testimony which directly or by any fair inference may be said to show that the ridge of dirt and cinders had any connection whatever with the accident.

"A. I was coming from the Elk Run Distillery with my team at the time he fell. I saw him when he fell. Q. How did you come from the Elk Run Distillery? A. Well, the Elk Run set south of where we were hauling coal there. South of the track our cars was on, and I had to come from south, coming north, and then turned east, back of the watchman's shanty, to come along the line of track where our cars were at, going east. Q. When you turned to The effect of Kessler's statement, who was go east, were there any cars between you and about 150 feet distant, is that "he must have the main track? A. No, sir; there wasn't no slipped or missed the footstep," and further cars between me and the main track at all.expressly states that he does not know which That is when you turned east? A. When turned east; no, sir. Q. In which direction, then, did you drive in order to get to the coal cars, east or west? A. East. Q. You say you saw Mr. Weidekamp when he fell? A. Yes, sir. Q. How far away from him were you? A. About 20 or 25 yards, as near as I can come at it. Q. In which direction were you looking? A. I was looking at the show train, looking north. Q. Looking at the circus train? A. Yes, sir. Q. And driving east? A. Yes, sir. Q. I will get you to tell the jury just what you saw? A. All right, sir; I saw Mr. Weidekamp when he aimed to catch his train and stumble, and he fell head foremost between the cars, and his feet was lying south and his head was lying north. Q. What did he stumble-what made him stumble, if you know? A. I don't know; loose dirt there; but I don't know whether he stumbled in that, or how he got caught; he Giving to this evidence its fullest effect, stumbled in some way. Q. Was there any loose and taking every fair inference that may be dirt there? A. Yes, sir; loose dirt there. Q. deduced from it, it cannot be said to show At the place where he attempted to get on the either that the ridge of dirt was the proxicars? A. Yes, sir. Q. Who put that loose dirt there, if you know? A. The crew of section mate cause of Weidekamp's death, or that it hands working there all morning; I guess they shows with any degree of certainty what was put it there." the cause of his death.

And again on cross-examination:

"Q. The first time you saw him was when he grabbed at his train? A. Yes, sir. Q. Did he ever get hold of his train? A. I wasn't close enough to see whether he touched it or not; I was close enough to see him fall. Q. Can you say whether or not he got his hand on the handhold? A. No, sir; I can't do that; I wasn't close enough to tell that. Q. You don't know whether he ever touched it or not? A. No, sir. Q. You say he fell? A. Yes, sir. Q. Did you see him stumble? A. I seen him when he fell,

and he must have stumbled and fell. (The court directs the witness not to tell what Mr. Weidekamp must have done, but to tell what he [the witness] saw.) Q. Do you know whether he stumbled or not? A. I don't know whether he stumbled; I know he fell. Q. You don't know what caused him to fall? A. No, sir. Q. You simply saw him fall? A. Yes, sir; I simply saw him fall. Q. You don't know whether he caught hold of the handle or not? A. No, sir. Q. You were not watching his feet; you were just watching him as a whole? A. I just happened to see him when he fell. Q. You don't know whether his foot hit anything or not, do

you? A. No, sir."

In addition to this evidence, there were conflicting statements as to whether or not the ridge of dirt and cinders extended along the track at the point where Weidekamp attempted to board the moving train; but assuming that it was there, and that it was negligence for it to be here, still the remaining question is whether the evidence shows that the ridge of dirt and cinders had any

It is true the negro, Birg, who was 60 or 75 feet distant at the time, says that Weidekamp stumbled in some way, but he does not know whether he stumbled on the ridge of dirt; but upon cross-examination he admitted that he did not know whether he had stumbled or not, and did not know what caused him to fall, and did not know whether his feet had hit anything or not.

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Neither courts nor juries are authorized to indulge in speculation or guesswork as to the cause of accidents; there must be some tangible evidence from which it may be fairly said what brought about the accident. It has long been the rule in this state that no recovery can be had in such cases where the evidence is so unsatisfactory as to require surmise or speculation as to how the injury occurred, and that there will be no presumption of negligence. Hughes v. Cincinnati Ry. Co., 91 Ky. 526, 16 S. W. 275, 13 Ky. Law Rep. 72; Stuart v. N.. C. & St. L. Ry. Co., 146 Ky. 127, 142 S. W. 232; Osborne's Adm'r v. C., N. O. & T. P. Ry. Co., 158 Ky. 176, 164 S. W. 818, and many other cases.

We are of opinion that the court properly granted the new trial, and properly gave the peremptory instruction upon the second trial; and the judgment is therefore affirmed.

BEAVER'S ADM'R v. PROCTOR COAL CO. (Court of Appeals of Kentucky. June 19, 1914.)

1. APPEAL AND ERROR (§§ 1099, 1195*)-PRIOR APPEAL-LAW OF THE CASE.

A ruling on a former appeal that a peremptory instruction should have been given for defendant is the law of the case on another trial, and on a subsequent appeal, unless the proof on the second trial is substantially dif

ferent from that on the first trial.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4370-4379, 4661-4665; Dec. Dig. §§ 1099, 1195.*]

2. MASTER AND SERVANT (§ 276*) ACTION FOR INJURY TO SERVANT-EVIDENCE.

In an action for the death of a miner caused by falling slate, evidence held to sustain a finding that the accident was not caused by the failure or refusal of defendant to furnish sufficient cross-timbers and props.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 950-952, 954, 959, 970, 976; Dec. Dig. § 276.*]

Appeal from Circuit Court, Whitley County.

Action by Doc Beaver's Administrator against the Proctor Coal Company. Judgment for defendant, and plaintiff appeals.

Affirmed.

R. S. Rose, of Williamsburg, for appellant. Tye, Siler & Gatliff, of Williamsburg, for appellee.

this case.

CLAY, C. This is the second appeal of The opinion on the former appeal may be found in 151 Ky. 839, 152 S. W. 965, under the title of Proctor Coal Company v. Beaver's Administrator. It was there held that it was Beaver's duty to prop his room, and, failing to do so, he violated the law. It was further adjudged that his own negligence was the proximate and direct cause of his injury, and that, for that reason, a peremptory instruction should have been given. However, in remanding the case, the court used the following language:

"It is insisted, however, that appellant's failure to furnish Beaver with sufficient and necessary cross-timbers with which to properly prop his room was the proximate cause of the accident. This, however, does not sufficiently appear. The evidence is ample that props, caps, and other timbers were in an adjoining space, and Bean is the only witness who says that Parry, the mine foreman, refused to supply Beaver with proper crosspieces; and he admits that crosspieces of a kind were furnished, and that no attempt was made to use any in this particular place. Parry not only denies the charge, but says it was not necessary to have crosspieces to protect that particular piece of slate. If, upon another trial, it should be made to satisfactorily appear that appellant did refuse to furnish the necessary crosspieces, and that said failure was the proximate cause of the accident, a peremptory instruction would not be proper."

the second trial is substantially different from that on the first trial. Gossett v. Ky. Wagon Mfg. Co., 153 Ky. 101, 154 S. W. 897; C., N. O. & T. P. v. Martin, 154 Ky. 348, 157 S. W. 710; Straight Creek Coal Co. v. Huddleston's Adm'r, 147 Ky. 94, 143 S. W. 775.

The

[2] The only witness who testified to the fact that defendant failed to furnish crosstimbers is James Bean, who was decedent's "buddy." In his testimony on both trials it appears that decedent was killed by falling slate while preparing to set a prop. slate was from three to ten feet from the face of the coal. The coal had been removed from under the slate about three days. The roof was what is known as "bad top." It had slips in it. This condition was clearly observable. Neither decedent nor witness attempted to remove the slate or sounded the roof. About an hour before the slate fell a shot was fired. After the firing of the shot, no effort was made to remove the slate or test the roof. There were props in the room; but the placing of these props

would interfere with the work. In order to

render the roof reasonably safe, cross-timbers were required. On the first trial, Bean testified that two or three days before the accident he saw the foreman and asked for certain car boards, presuming that the fore

man knew what he wished to do with them.

It does not

These car boards were at the shop. The foreman refused to furnish the car boards, and told him to take certain 2x4 material, which Bean says was not suitable for cross-timbering because it was crooked. appear that, if the car board had been furnished, it would have been used by witness or decedent for the purpose of timbering the roof. Witness and decedent worked in the room about three days after the foreman re

Witness

fused to furnish the car boards. did not state that there were no cross-timbers at the place where he got the props, and where it was customary to get them. On the second trial he testified to practically the same facts. On cross-examination his testimony was as follows:

"Q. Did you inquire for cross-timbers on the outside where you got the props? A. I don't remember. Q. How many cross-timbers were out where you got the props? A. I don't remember seeing any. Q. Were there any there? A. I couldn't say. Q. Did you look for them? A. I was all the time looking around. Q. Did you then? A. I don't remember.'

Under the law of Tennessee, where the accident occurred, it was the duty of the foreman to see that sufficient props, caps, and timbers were kept at some convenient point near the mine entrance. These timbers are selected and loaded on the cars by the miner. They are then hauled to the mouth of the room or the face of the entry where the miner is working. It will be observed that Bean did not remember of inquiring for cross-timbers at the mouth of the entrance

[1] It is well settled that a ruling on a former appeal that a peremptory instruction should have been given for the defendant is the law of the case on another trial, and on a subsequent appeal, unless the proof on

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