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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.

[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. The 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.

CLAY, C. This is the second appeal of this case. 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."

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. It does not 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 reWitness 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

where he got the props. He did not remem- [ horse becoming frightened at the blowing of ber seeing them. He could not say whether the whistle, it was their duty, if necessary in there were any cross-timbers there or not, the whistle as a crossing signal and resort to the exercise of ordinary care, to cease blowing and could not even say that he looked for the bell; their duty to give the statutory sigany. His evidence is simply to the effect nals not absolving them from such duty, as the that over at the shop he asked for certain statute provides either mode of giving warning. car boards, which were refused. He was then offered other cross-timbers which were not suitable. This took place two or three days before the accident. So far as his testimony is concerned, there may have been any number of cross-timbers at the place where he got the props. In the absence of evidence going to show that he went to the place at the entrance of the mine, where it is customary to keep cross-timbers, and that there were none there, it cannot be said that there was either a failure or refusal on the part of defendant to furnish sufficient crosstimbers, merely because the foreman, two or three days before, had refused to furnish certain car boards which were over at the shop, and had suggested that he take certain 2x4 timber which was also at that point.

The evidence on the two trials being substantially the same, and failing to show the failure or refusal of the defendant to furnish sufficient cross-timbers was the proximate cause of the accident, it follows that the trial court properly directed a verdict in favor of defendant. Judgment affirmed.

MILLERS CREEK R. CO. v. BLEVINS. (Court of Appeals of Kentucky. June 19, 1914.)

1. RAILROADS (§ 400*)—ACTIONS FOR INJURIES -SUFFICIENCY OF EVIDENCE.

In an action for injuries sustained by plaintiff when the horse which she was riding became frightened at a train, and by the blowing of the whistle, evidence held to make questions for the jury as to whether the railroad employés discovered plaintiff's peril, and whether they failed thereafter to use ordinary care for her safety.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1241-1244; Dec. Dig. § 360.*]

[Ed. Note. For other cases, see Railroads, Cent. Dig. §§ 1365-1381; Dec. Dig. § 400.*]

2. RAILROADS (§ 360*) LIABILITY FOR IN

Appeal from Circuit Court, Johnson County. Action by Flora Blevins against the Millers Creek Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Vaughan & Howes, of Paintsville, and Hager & Stewart, of Ashland, for appellant. J. F. Bailey, of Paintsville, for appellee.

CLAY, C. In this action for damages for personal injuries, plaintiff, Flora Blevins, recovered of the defendant, Millers, Creek Railroad Company, a verdict and judgment for $250. The railroad company appeals.

Defendant's line of railway extends from Van Lear down Millers creek to its mouth, and thence across the Big Sandy river to Van Lear Junction. A short distance from the bridge spanning the river the railroad crosses the county road. About 1,200 feet from the county road is a steep bluff, around which the railroad makes a sharp curve. From the curve to the crossing the county road and railroad are practically parallel. The distance from the county road to the railroad is variously estimated at from 10 to 40 feet. At a point about 827 feet from the railroad crossing is a whistling post. Between the whistling post and the crossing is a telephone post, about 453 feet from the crossing, and 374 feet from the whistling post. From the whistling post to the bluff is about 158 yards.

[1] On the occasion of the accident, which occurred August 20, 1911, plaintiff, in company with her husband and two children, was traveling along the county road in question. After crossing the railroad, and when they had reached a point a few feet from the crossing, defendant's train came around the curve a few hundred yards distant. The mare which plaintiff was riding became Her husband attempted to refrightened. strain her; but the mare broke loose. When the train got near her, the whistle was soundand the mare ran up the side of the hill, and threw plaintiff off. The accident occurred near the telephone post which stands between the railroad crossing and the whistling post. While those on the engine deny that they saw plaintiff, one of plaintiff's sons testified that the fireman, when the engine was about 400 feet away from plaintiff, was looking

[Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 1241-1244; Dec. Dig. § 360.*] right at her, and when the whistle subse3. RAILROADS (§ 360*)-LIABILITY FOR INJU-quently sounded, and the mare threw plainBIES-FRIGHTENING HORSES.

Where railroad employés saw the danger tiff, the fireman was looking out the window to a traveler on an adjoining highway from her and laughing.

JURIES-FRIGHTENING HORSES.

Railroad employés in charge of a train are not required to watch an adjoining highway, but, if they discover that one riding or driving thereon is in peril, it is their duty to use ordinary care with all reasonable means at their command to prevent injury; and hence an instruction that, if such employés saw that plain-ed, tiff's horse was frightened at the approach of the train, and that she was in danger of being thrown from the horse by reason of the approach of the train or the blowing of the whistle, it was their duty to slow up and stop, if necessary, and to desist from blowing the whistle, was erroneous as imposing on them the duty either to slow down or stop the train.

[2] Instruction No. 2, given by the trial asked by the defendant was properly refused. court, is as follows: It was for the jury to say, under all the circumstances, whether or not defendant's employés discovered plaintiff's peril, and thereafter failed to use ordinary care for her safety.

"If the jury should believe and find from the evidence that the plaintiff's horse became frightened at the approach of defendant's train, and that the agents in charge of the defendant's train discovered and saw that plaintiff's horse was frightened at the approach of the train, and that plaintiff was in danger of being thrown from the horse and injured by reason of the approach of said train, or by blowing the whistle, then and in that event it was the duty of the defendant to cause said train to slow up or stop, if necessary to the safety of the plaintiff, and to desist from blowing the whistle, while plaintiff was known by defendant's agents to be in danger from the frightened horse, if they find she was, and if the defendant failed to do so, and by reason of such failure the plaintiff was injured, they will find for the plaintiff.

"Although the jury may believe and find that the plaintiff was placed in danger by reason of her horse being frightened at the approach of defendant's train, or by the blowing of the whistle, either or both of which caused the injury, if they believe there was an injury caused, yet unless the defendant's agents knew the horse was scared, and that the plaintiff was in danger, in time to have slowed up or stopped the train, and caused the engineer to not have blown the whistle in time to have prevented said injury, the law is for the defendants, and the jury will so find."

It will be observed that the foregoing instruction imposed on the defendant the duty, after discovering plaintiff's peril, either to slow down or stop the train. Such is not the rule in this state. The rule is that the agents of the railroad company are not required to watch an adjoining highway; but, if they discover that one riding or driving on an adjoining highway is in peril, then it is their duty to use ordinary care, with all reasonable means at their command, to prevent injury to him. L. & N. R. R. Co. v. Harrod's Adm'r, 155 Ky. 155, 159 S. W. 685, 47 L. R. A. (N. S.) 918; C. & O. Ry. Co. v. Lang's Adm'r, 135 Ky. 76, 121 S. W. 993; I. C. R. Co. v. Martin, 110 S. W. 815, 33 Ky. Law Rep. 666; L. & N. R. R. Co. v. McCandless, 123 Ky. 121, 93 S. W. 1041, 29 Ky. Law Rep. 563. It follows that the instruction complained of

is erroneous.

[3] There is no merit in defendant's contention that its duty to give the statutory signals for the crossing absolved it from liability in this case, even if its servants did discover plaintiff's peril in time to prevent the injury by the exercise of ordinary care. It is the rule that, if the employés of the railroad company in fact see the danger in which the traveler is placed, then they should, if necessary in the exercise of ordinary care, cease blowing the whistle as a signal for the crossing and resort to the bell, as the statute provides either mode of giving a warning for the crossing. I. C. R. R. Co. v. Martin, supra; L. & N. R. R. Co. v. McCandless, supra.

Judgment reversed, and cau remanded for new trial consistent with this opinion.

FAIRBANKS, MORSE & CO. v. TAFEL. (Court of Appeals of Kentucky. June 19, 1914.)

1. FRAUDS, STATUTE OF (§ 23*) - PROMISE TO PAY DEBT OF ANOTHER-INSTRUCTION.

An order whereby a subcontractor under defendant, who was furnished goods for the work by plaintiff on the understanding that defendant would withhold enough money from that due the subcontractor to pay plaintiff for the goods, directed defendant to pay plaintiff money to be charged to his account was not an agreement on the part of defendant to pay plaintiff out of his own funds what the subcontractor might owe plaintiff, but was an agreement by defendant to pay plaintiff out of money in its hands belonging to the subcontractor and owed by him to plaintiff, and was not itself the basis of the plaintiff's action, but merely evidence incidentally growing out of the original agreement between the parties, and hence was not within the statute of frauds.

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TURNER, J. Appellant is a Chicago corporation, with branch offices in many of the cities of the country, including the city of Louisville. Its business consists in furnishing and installing scales, motors, electric

Plaintiff's son having testified that the fire-lighting plants, etc. Its branch offices are in man saw plaintiff's peril when about 400 feet charge of agents, and its various departments distant from her, the peremptory instruction are in charge of special agents, charged with

the administration of their particular de- ment asserted by the appellee as against appartments. pellant is within the statute of frauds; that is to say, it is an agreement not in writing to pay the debt of another. But clearly it was not an agreement upon the part of appellant to pay to Tafel out of its own funds money which Carr might owe to Tafel, but was an agreement by appellant to pay to Tafel, out of money in its hands belonging to Carr, that which Carr owed to Tafel. It is not within the statute of frauds for one who has money in his hands belonging to another to agree to pay to a third party the debt of such other with the assent of the debtor.

The appellee is engaged in the city of Louisville in selling electrical supplies. H. A. Carr is a young electrician in the city of Louisville, efficient in his profession, but without credit. He was known to both appellant and appellee. In 1910 he had been taking certain subcontracts for the installing of electrical plants, and had taken one or more under appellant, with the understanding that the supplies which he might procure from the appellee, Tafel, would be paid for by appellant out of the fund that might be coming to him (Carr) from the contract. Upon at least one or more occasions, by agreement between Carr, Tafel, and appellant, made through appellant's electrical agent, Hesser, Tafel had furnished Carr electrical supplies, and the money had been withheld by appellant with which to pay Tafel.

It is further urged for appellant that the basis of appellee's action against it is the order of July 25, 1910, and that, inasmuch as that order was never accepted in writing by appellant, under our Negotiable Instruments Act no action can be maintained upon In 1910 appellant made a contract with it. But this position assumes that the action one Strater to install in his new home an is on that order, when as a matter of fact the electrical plant, and this contract was sublet basis of the action is the original oral agreeto Carr, with the understanding between ment between appellant, appellee, and Carr Carr, Tafel, and appellant that, if appellee that appellant would withhold for the benefit would furnish Carr the supplies to complete of appellee money coming to Carr from the the Strater job, appellant would withhold Strater job sufficient to pay appellee what enough money from what was coming to Carr owed him for material furnished for Carr under the contract to pay Tafel for the that job. As very properly held by the chansupplies so furnished to Carr. Under this cellor below, the order of July 25, 1910, was agreement appellee furnished to Carr more not the basis of the action, but was merely than $600 in electrical supplies, and upon one evidence incidentally growing out of the origor more occasions sought part payment there- inal agreement between the parties. But, if for from appellant but was informed that no it was the basis of the action, the fact that payment could be made until the Strater job it was not accepted in writing by appellant was finished. Being in need of money, he would not prevent it from operating as an complained to Carr, whereupon Carr, on the equitable assignment of the funds in its 25th day of July, 1910, gave him the follow- hands belonging to Carr. Just's Adm'r v. ing order, to wit: Woodmen, 147 Ky. 493, 144 S. W. 379.

[3] But it is unnecessary in this case to resort to the doctrine of equitable assignments. Appellee had an explicit contract with the appellant, assented to by Carr, that it would withhold for appellee's benefit so much of the money going to Carr under the Strater contract as was necessary to pay ap pellee for the goods furnished to Carr, to en

This order was presented by Tafel to appellant, whereupon he was again informed that they could pay no money until the Strater job was completed. Some time later an-able him to complete the Strater contract unother creditor of Carr instituted an action der his subcontract with appellant. Appelagainst him, and sought to attach what lant was interested in the Strater contract might be coming to him from Fairbanks, and its completion, and it was important to Morse & Co. In that suit appellee interven- it that the supplies should be furnished to ed, set up the agreement between Carr, ap- Carr to enable him to carry out its contract, pellant, and himself, and asked for a judg- which it had sublet to Carr. There was cerment for $500 against appellant. It develop-tainly a valuable consideration moving from ed that appellant had already paid Carr all appellant to appellee to induce the latter to it owed him, except about $113. part with his supplies, which he did upon the faith of appellant's agreement to pay for same out of Carr's money.

The lower court gave Tafel a judgment against appellant for $500, and from that judgment this appeal is prosecuted. [1, 2] It is first contended that the agree views, it is affirmed.

The judgment being in accord with these

"Louisville, Ky. July 25, 1910. "Fairbanks, Morse & Co. Cashier:

"Pay to the order of H. C. Tafel $500, and charge to my account, material for Strater job. "H. A. Carr & Co."

was purchased, and that by fraud or mistake LIMESTONE this part of the agreement was omitted from the written contract. Defendant also pleaded that the contract of sale was rescinded. It also interposed a counterclaim for damages growing out of expenses incurred in setting up the pump. On final hearing the chancellor held that the pump did not come up to the guaranty made by plaintiff, that the contract of sale was rescinded, and that the defendant was damaged in the sum of $150, Thereupon the pump and fixtures were adjudged to be the property of plaintiff, and plaintiff's petition was dismissed. Defendant was given judgment on its counterclaim for the sum of $150. From that judgment plaintiff appeals.

MILLER SUPPLY CO. V.
MINING CO.
(Court of Appeals of Kentucky. June 19, 1914.)
1. PRINCIPAL AND AGENT (§ 104*)-AUTHORITY

OF SALES AGENT-WARRANTY.

Where a sales agent in Kentucky for a machinery corporation in West Virginia was the only person in Kentucky authorized to represent his principal and had been engaged in the business for a number of years, it was within the scope of his apparent authority to represent and warrant to a buyer that a pump sold to him to remove the soil from the rock in a quarry would satisfactorily perform the work for which it was sold, and the buyer was entitled to rely on such representations and warranty.

[Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 294-297; Dec. Dig. § 104.*]

It appears that defendant was engaged in quarrying limestone. To prepare the stone for market it was necessary to remove the soil. This was being done by the use of scrapers and shovels. Plaintiff's agent approached defendant for the purpose of selling it a hydraulic pump to be used in the removal of the soil. Defendant's officers had never seen such a pump in use. Defendant's president and plaintiff's agent went over the ground. They measured the distance from the boiler to the place where the pump was to be located, and the distance from the pump to where the power was to be applied. The pump was to be located at a point about 800 feet from the boiler, and about 800 feet from the place where the soil was to be removed; the soil being at an elevation of 200 the boiler with the pump, and also the pump feet above the pump. A pipe line connected with the place where the soil was located. A 100 horse power boiler was used. According to defendant's evidence, plaintiff's agent, after going over the ground and seeing where the boiler and the pump were located, and tually measuring the distance, guaranteed the power was to be applied, and after acthat the pump would remove the soil, and that if it did not do so plaintiff would take the pump back. Under these conditions, the

purchase was made. Along later in the evening plaintiff's agent drew up a writing which he presented to defendant's president for his signature. It was late in the evening and the light was not very good. Defendant's president objected to signing the written contract, whereupon plaintiff's agent stated that the contract was only a memorandum. Un

CLAY, C. Defendant, the Limestone Mining Company, was engaged in conducting a rock quarry in Carter county, Ky. On January 3, 1912, plaintiff, the Miller Supply der these circumstances, defendant's presiCompany, sold the defendant a Cameron dent signed the contract. Defendant's presipump, to be used in removing the soil from dent had previously bought several articles the rock, together with certain pipe to be from plaintiff's agent, and at the time of the used in connection therewith. This action purchase of the pump he bought a drill for was brought by plaintiff to recover the pur- $850. After the pump was installed, it was a chase price of the pump, amounting to $964.- complete failure. Plaintiff's agent then came 64, and a balance due for supplies, amount- to the quarry and stated that the 2-inch pipe ing to $167.44. The Limestone Mining Com- which had been furnished was too small. He pany defended on the ground that the pump then recommended that the 2-inch pipe be rewas guaranteed to do the work for which it moved, and that a 3-inch pipe be used.

2. SALES (§ 441*)-WARRANTY-WRITTEN CONTRACT-ÖMISSION.

After plaintiff's sales agent had effected a sale of a suction pump in controversy to defendant by warranting it to do the work intended, he presented a written contract to defendant's president for his signature which in fact contained no such warranty. It was late in the evening and quite dark, and defendant's president, being unable to see plainly, demurred to signing until the agent said to him that it was not a contract, but a mere memorandum of the sale, when he signed without reading it. Held, that the provision for warranty was omitted from the contract by mistake on defendant's part and fraud or mistake on the part of plaintiff's agent, and that defendant was not precluded thereby from proving the warranty.

[Ed. Note.-For other cases, see Sales, Cent. Dig. 88 1277-1283; Dec. Dig. § 441.*] 3. SALES (8 441*)-CONTRACT-PROVISIONSBREACH OF WARRANTY-AGREEMENT TO RE

SCIND.

Evidence held to warrant a finding that plaintiff's agent, as one of the terms of a contract for the sale of a suction pump, agreed to accept a return thereof if it failed to comply with a warranty to do the work for which it was sold.

[Ed. Note.-For other cases, see Sales, Cent. Dig. 88 1277-1283; Dec. Dig. § 441.*]

Appeal from Circuit Court, Carter County. Action by the Miller Supply Company against the Limestone Mining Company. Judgment for defendant, and plaintiff appeals. Affirmed.

John W. Woods, of Ashland, for appellant. Armstrong & Wolfford, of Grayson, for appellee.

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