mitted in the admission of evidence, as well as in the instructions given to the jury. [1] At the time he was injured, appellee was working in a very large room, and he had been working at different places and at various kinds of work in this room for about nine years. On the occasion under investigation, he was engaged in assisting to move sheets of iron from a table to which they were carried on a traveler to another table a few feet away. It was also a part of his duty to assist in carrying to the table any of the sheets that might fall from the traveler before reaching the table intended for their reception; and, while he and another laborer were carrying to the table a sheet of iron that had fallen from the traveler, appellee, who was walking backward, stepped on a thin sheet of metal placed on the floor, which tilted and threw him, causing him to receive the injuries complained of. It appears from the evidence that, when the wood floor in this room became worn by trucks running over it and the other uses to which it was put, the worn places would be covered with thin pieces of sheet iron of various sizes, depending on the size of the place intended to be covered. These pieces of sheet iron were not fastened to the floor, but were laid flat on it; and there were a great many of them, at different places and of different sizes, on the floor. This manner of covering defects in the floor had been followed during all the years that appellee was employed in this room, and he was of course thoroughly familiar with the manner in which these sheets of iron were laid, and the purpose for which they were placed, on the floor. It appears, however, that the floor covered by the piece of sheet iron that tilted when appellee stepped on it was worn through-or, in other words, there was a hole in the floor-and, when appellee stepped on this sheet of iron, one side or end of it went down in this hole, thereby causing it to tilt and throw him. The peremptory instruction was asked upon the theory that appellee, on account of his familiarity with and knowledge of the numerous places where these sheets of iron were laid on the floor, and the purpose for which they were laid, assumed the risk of any injury he might suffer by stepping on one of them. In support of this contention, the cases of American Tobacco Co. v. Adams, 137 Ky. 414, 125 S. W. 1067; C., N. O. & T. P. Ry. Co. v. Skinner, 143 Ky. 342, 136 S. W. 644; Avery & Sons v. Lung, 106 S. W. 865, 32 Ky. Law Rep. 702; Foreman v. L. & N. R. R. 142 Ky. 63, 133 S. W. 964; Arnold v. L. & N. R. R., 58 S. W. 370, 22 Ky. Law Rep. 511; Wilson v. Chess & Weymond Co., 117 Ky. 567, 78 S. W. 453, 25 Ky. Law Rep. 1655; City of Covington v. Belser, 137 Ky. 125, 123 S. W. 249; and Robinson-Norton & Co. v. Legrande, 151 Ky. 188, 151 S. W. 383-are re was denied an injured servant in a suit against the master to recover damages for injury sustained in the course of his employment, and the general rule laid down that a mature and experienced servant, who is injured, in an employment that is ordinarily free from danger, by reason of some conspicuous and not intrinsically dangerous defect, with which he is entirely familiar, cannot recover damages from the master, as he will be deemed to have assumed the risk; and, if the rule thus laid down is applicable to the facts of this case, the peremptory instruction requested should have been granted. It is, however, at once apparent that, however sound a general rule may be as an abstract proposition, it cannot be invoked in any particular case, unless the facts developed by the evidence justify its application. It is a rare thing that any two cases present even substantially the same line of facts; and so it is necessary to carefully understand the facts that are made the basis of a recovery, before adjudging cases by any general rule. The evidence in this case makes it plain that appellee was thoroughly well acquainted with the fact that many sheets of iron were laid on the floor, and with the purpose In the course of for which they were laid. his employment during the years that he worked in this room, he had, times without number, seen and walked on and over them, and, if he had slipped and fallen while walking on or over one of these sheets of iron, we would say, as was said in the Adams Case, where a servant slipped and fell while pushing a truck because, as he testified, the floor was uneven and slippery, that: "A person, under circumstances like these, who is required to walk over a slippery floor in an danger or hazard, cannot recover merely beemployment like this, which is free from any cause he slips and falls. The place was not intrinsically dangerous. The employment was not at all hazardous. The implements used were of the simplest character. The servant, under facts like these, will not be heard to say that he did not see or know the conditions that existed immediately under his eyes." But the injury to appellee was not caused by slipping on or stumbling over the piece of iron. It was due to the fact that there was a hole entirely through the floor, into which the end or edge of the iron covering went when appellee stepped on it, and this hole was concealed from view by the sheet of iron that covered it. Appellee knew the iron was there, but he did not know that there was a hole in the floor under it that would cause it to tilt when he stepped on it. These irons were placed on the floor for the purpose of being stepped on and walked over, and it was the duty of the master to exercise ordinary care to maintain them in such condition as that they could be stepped on and walked over with reasonable safety; and this it fail Upon the whole case, it seems to us the appellant had a fair trial, and the judgment is affirmed. 1. REASOR v. PADUCAH & ILLINOIS (Court of Appeals of Kentucky. Feb. 13, CARRIERS (§ 4*)-STEAMBOAT COMPANY— "COMMON CARRIER." A steamboat company, holding itself out to the public as a carrier of passengers and freight, is a "common carrier." [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1, 462-478; Dec. Dig. § 4.* injury was a hidden defect that he could not | Several instructions were offered by counsel see and did not know of, he did not assume for appellant; but they were properly rethe risk of being injured by it. We think the fused, because the instructions given covered court properly submitted the case to the jury. the case. [2] It is further said that the court committed error in permitting appellee to testify that it was not safe to use these iron plates in the manner in which they were used; the argument being that the witness should have stated facts without expressing an opinion. Whether or not opinion evidence is admissible is often a close question; the general rule being that, where the subject or thing under investigation is within the common knowledge or observation of the jury, and they are as familiar with it from observation or experience as the witness, and as well qualified as he is to form a correct opinion concerning it, they should be allowed to reach their own conclusion from the facts testified to by the witness, without an expression of opinion on his part. L. & N. v. Molloy, 122 Ky. 219, 91 S. W. 685, 28 Ky. Law Rep. 1113; L. & N. R. Co. v. Milliken, 51 S. W. 796, 21 Ky. Law Rep. 489. Here one of the principal issues to be determined by the jury was whether or not it was safe to cover defects in the floor with these plates of iron; and the conditions under which they were used, and the exact manner of their use, were not within the common observation or knowledge of the jury, and we think it was permissible to let the witness, who was entirely familiar with the place and conditions, express an opinion as to the safety of the method employed to cover defects in the floor. Aside from this, we are satisfied that the few questions and answers pointed out in brief of counsel were not prejudicial, looked at from any viewpoint. For other definitions, see Words and Phrases, vol. 2, pp. 1313-1319; vol. 8, p. 7607.] 2. CARRIERS (§ 236*)-DUTY TO CARRY PAS SENGERS-EXCURSION. That a steamboat company, operating as a common carrier, was running a special excursion did not relieve it from its duty to carry, without discrimination, so far as practicable, all persons applying and tendering payment for passage. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 968-972; Dec. Dig. § 236.*] 3. CARRIERS (§ 236*)-PERSONS ENTITLED TO PASSAGE-UNDESIRABLE PERSONS. While a common carrier of persons may refuse passage to persons so drunk as to be unable to care for themselves, or that they will probably annoy others, or to a person of notoriously bad character, or habitually guilty of misconduct, when it is apparent that the safety and comfort of other passengers will be endangered by his presence, a steamboat company operating as a common carrier, had no right to refuse to carry a person who was sober and or derly, merely because he had conducted himself in a disorderly manner on a former trip. [Ed. Note. For other cases, see Carriers, Cent. Dig. 88 968-972; Dec. Dig. § 236.*] 4. CARRIERS (§ 362*)-EJECTION OF PASSEN GER. Where a passenger left a steamboat at the. request of the captain or person in charge, and directions, it was equivalent to of a police officer acting under this person's an ejection from the boat. [Ed. Note.-For other cases, see Carriers, Cent. Dig. § 1411; Dec. Dig. § 362.*] 5. CARRIERS (§ 382*)-EJECTION OF PASSENGERS DAMAGES. [3] It is also complained that the court did not correctly instruct the jury, and further insisted that offered instructions were improperly refused. In the instructions given, the court told the jury, in substance, that it was the duty of the company to exercise ordinary care to furnish appellee a safe place in which to work, considering the nature of the employment, and that it was the duty of appellee to exercise ordinary care to avoid danger from obvious defects, and also to exercise ordinary care for his own safety. They were further told that, if they believed from the evidence that the floor in the room was dangerous for use by the employés, and that the company knew its condition, or by the exercise of ordinary care could have known it, and appellee was injured by reason of the dangerous condition of the floor, of which he did not know, and could not have known by the exercise of ordinary care, they should find for appellee. They were also instructed that, if they believed from the evidence that the floor was in a reasonably safe condition, they should find for the company. These instructions, we think, submitted fairly the only issues in the case. A passenger, who was unlawfully expelled, the proof disclosed, and in any case to nominal was entitled to such compensatory damages as damages. [Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1478, 1483-1491; Dec. Dig. § 382.*] 6. CARRIERS (§ 381*)-EJECTION OF PASSENGER-EVIDENCE. In an action for the unlawful expulsion of a passenger, the defendant, in explanation of its conduct, was entitled to prove plaintiff's misconduct on a prior trip, though such misconduct did not excuse the expulsion. [Ed. Note. For other cases, Cent. Dig. §§ 1473-1476, 1479-1482; Dec. Dig. see Carriers, § 381.*] Appeal from Circuit Court, McCracken County. [1, 2] A steamboat company, holding itself out to the public as a carrier of passengers and freight, is a common carrier, within the meaning of the statute; and the duties imRe-posed upon common carriers by the laws of Action by J. W. Reasor against the Paducah & Illinois Ferry Company. From judgment for defendant, plaintiff appeals. versed and remanded for new trial. Miller & Miller, of Paducah, for appellant. Berry & Grassham, of Paducah, for appellee. LASSING, J. J. W. Reasor bought a ticket of the Paducah & Illinois Ferry Company at Paducah, entitling him to passage on said company's boat from that point to Golconda, Ill. He went upon the boat. The officer in charge came to him and told him that he was not an acceptable passenger, and requested him to leave the boat. He did not do so immediately, but did leave when a police officer, who was at the time doing duty at the wharf and, perhaps, on the boat, told him that he would have to leave the boat, because the management would not take him as a passenger. The company tendered to him, and he accepted from it, the money which he had paid for the ticket, before he left the boat. Shortly thereafter he brought suit against the company, in which he sought to recover $5,000 in damages, alleged to have been sustained by him because of having been forcibly required to leave the boat after he had become a passenger thereon. the land are applicable to it. The fact that it is running a special excursion does not have the effect of relieving its owners of the duty imposed upon it as a common carrier. 6 Cyc. 535; Indianapolis, etc., R. Co. v. Rinard, 46 Ind. 293. [3] One of the duties owing by a common carrier to the public is to carry, without discrimination, as far as practicable, all persons who apply for passage and tender in payment therefor the established fares, or provide themselves with tickets entitling them to passage. But this duty to serve the public does not deprive the carrier of the right to make reasonable and proper rules for the conduct of its business, among which may be enumerated the right to deny passage to or to exclude from its conveyance one already a passenger, if such person is in such an intoxicated condition as to be unable to care for himself, or as to make it probable that he will annoy or disturb the other passengers; or it may refuse passage to or exclude from its vehicle a person of notoriously bad character, or one habitually guilty of misconduct, when it is apparent that the safety and comfort of the other passengers will be endangered by the presence of such person in the conveyance. The fact been guilty of misconduct, drunk, boisterous, and indecent in his behavior toward other passengers, will not justify the carrier in refusing to permit him to again travel upon its conveyance, if, when he presents himself for passage, he is sober, and is conducting himself in a decent and orderly manner. There is nothing in the record to show that appellant, on the occasion in question, was drunk, or drinking, or disorderly; on the contrary, the evidence distinctly negatives such an idea. The refusal of appellee to carry him as a passenger on its boat was based solely on the fact that he had not conducted himself in a gentlemanly manner on a former occasion. As stated, this furnished appellee no excuse for refusing him passage; and the trial court properly held this plea bad on demurrer. The company, in its answer, set up three defenses: First, a traverse; second, a plea that plaintiff voluntarily left the boat; | that, on a former occasion, a passenger had and, third, that, upon the date in question the boat was not engaged as a common carrier, but was running a special excursion from Paducah to Golconda, and that it declined to accept plaintiff as a passenger because, on a previous occasion, he had been guilty of misconduct on the boat in this: that he had insulted a lady passenger, cursed and swore upon the boat in the presence and hearing of lady passengers, and by his general behavior, while in a drunken and disorderly condition, rendered himself obnoxious, not only to employés of the boat, but to its passengers, and for this reason it declined to permit him again to become a passenger on the boat. To this latter paragraph of the answer a demurrer was sustained, and the case was submitted to a jury upon two issues: First, as to whether or not the officers of the company had forcibly required him to leave the boat after he became a passenger thereon; and, second, whether or not he voluntarily left the boat. The jury found in favor of the defendant, and plain-charge of the boat, told him that he was not tiff appeals and seeks a reversal upon two grounds: It is insisted, first, that he was entitled to a peremptory instruction at the conclusion of all the evidence; and, second, that, if it should be held, under the state of the record, that the peremptory instruction should not have been given, then the judgment should be reversed, because flagrantly [4, 5] Appellee's plea that appellant voluntarily left the boat, and, of his own volition, declined to make the trip, is not supported by any evidence. The captain, or person in desired as a passenger, requested him to leave, and had a police officer tell him, in substance, that he would have to get off the boat. In obedience to these requests, amounting to a command, he left the boat. The effect of these acts, on the part of those in charge of the boat, was the equivalent of a refusal to permit him to remain a passenger The When the case was before us, we went carefully over the authorities, and indicated those that seemed to us to control. It would serve no good end to extend this response by going over the matter again. The mass of work before us does not permit this. to ejecting him from the boat. Appellant was | private, and not used by the public. guilty of no misconduct at the time. Being other, cases relied on for appellee are similar, a passenger on the boat, he was entitled to or turn on other principles. passage, and these acts on the part of those in charge constituted an unlawful expulsion; and no instruction should have been given the jury, save a peremptory one to find for the plaintiff the compensatory damages which he had sustained by reason of the wrongful act of the defendant company. Appellant, under the facts proven, was entitled to, at least, nominal damages. [6] Appellee was entitled to show the circumstances leading up to its refusal to permit appellant to make this trip, to wit, his conduct on a former occasion, in explanation of its conduct, and the court did not err in so holding. Judgment reversed, and cause remanded for a new trial consistent with this opinion. RAINES v. EAST TENNESSEE TELE- (Court of Appeals of Kentucky. Feb. 12, Where a property owner leaves a space outside of his inclosure for a sidewalk, a telephone company, in placing its guy wires, must use ordinary care that such sidewalk is reasonably safe for the public use, and is liable to a pedestrian for injuries from its failure to use such care, where the pedestrian has not been guilty of negligence but for which the injury would not have occurred. [Ed. Note.-For_other_cases, see Telegraphs and Telephones, Cent. Dig. § 9; Dec. Dig. 8 15.*] Extended opinion. For former opinion, see 150 Ky. 670, 150 S. W. 830. J. H. Minogue and Stoll & Bush, both of Lexington, for appellant. George C. Webb, of Lexington, for appellee. HOBSON, C. J. Under the evidence as now presented, the court will instruct the jury that, if the four feet space outside of Sarah E. Smith's fence had been left outside of her inclosure for a sidewalk, and was in fact so used as a public sidewalk, that it was by such use practically a part of the avenue, then it was incumbent on the defendant, in placing its guy wire, to use ordinary care that the way should be reasonably safe for the public use, and if it failed to use such care, and by reason thereof the plaintiff was injured, they should find for him, unless he failed to exercise ordinary care for his own safety, and but for such failure would not have been injured. Otherwise, the jury should find for the defendant. In Johnson v. Paducah Laundry Co., 122 Ky. 369, 92 S. W. 330, 29 Ky. Law Rep. 59, 81, 5 L. R. A. (N. S.) 733, the property was The opinion is extended as above indicated. Raines v. East Tennessee Telephone Co., 150 Ky. 670, 150 S. W. 830. CITY OF HENDERSON v. ROBINSON et al.t (Court of Appeals of Kentucky. Feb. 14, 1913.) 1. MUNICIPAL CORPORATIONS (§ 845*)-SEWERS-POLLUTION OF CREEK-EVIDENCE. Evidence in an action against a city for the pollution of a creek with sewage held to show that the injuries complained of grew out of the unlawful and wrongful construction of sewers. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1796-1802; Dec. Dig. § 845.*] 2. MUNICIPAL CORPORATIONS (8_840*)-POLLUTION OF CREEK-SEWERAGE-LIABILITY. That a creek was partly polluted by slops from a distillery did not relieve a city from liability for damages from a greater pollution caused by its sewers. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1791; Dec. Dig. 3 840.*] 3. MUNICIPAL CORPORATIONS (§ 845*)-EXCES SIVE RECOVERY-POLLUTION OF CREEK. Verdicts against a city for $225 for each of two tenants and for $450 for one tenant, and the same amount for a landowner, for the pollution of a creek with sewerage, were not excessive, where the water was rendered unfit for stock and dangerous to health. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1796-1802; Dec. Dig. § 845.*] 4. MUNICIPAL CORPORATIONS (§ 838*)-SURFACE DRAINAGE-SEWAGE-PRESCRIPTION. That a city has acquired a right by prescription to use a creek for surface drainage does not authorize it to empty its sewage into the creek; the two uses being entirely different, and the latter use constituting both a public and a private nuisance. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 1787; Dec. Dig. § 838.*] 5. MUNICIPAL CORPORATIONS (845*)-SEWAGE-POLLUTION OF STREAM-DAMAGES. The damages recoverable for the pollution of a creek by sewage did not include damages for the previous use of the creek for the surface drainage. [Ed. Note.-For other cases, see Municipal Dig. § 845.*] Corporations, Cent. Dig. §§ 1796-1802; Dec. 6. MUNICIPAL CORPORATIONS (8 845*)—SEWAGE-POLLUTION OF STREAM-DAMAGES. The measure of damages for the pollution of a creek by sewage is the diminution in the value of the use of the property during the continuance of the nuisance, limited to the period for which the action is brought, where, by reason of the facility with which the sewers For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes may be removed or changed, the injuries are | them that they had suffered any injury from merely temporary. the construction of the new sewers and the [Ed. Note.-For other cases. see Municipal Corporations, Cent. Dig. §§ 1796-1802; Dec. Dig. 845.*1 Appeal from Circuit Court, Henderson County. Action by M. D. Robinson and others against the City of Henderson and others. From a judgment for plaintiffs, the City appeals. Reversed, and remanded for new trial. Jno. C. Worsham, of Henderson, for appellant. S. V. Dixon and W. P. McClain, both of Henderson, for appellees. SETTLE, J. The appellees, M. D. Robinson, W. H. Sassee, H. B. Drury, and J. T. Spann, residents upon Canoe creek, a stream which runs in part with the eastern boundary of the city of Henderson, each instituted in the court below an action against the appellant city of Henderson, H. Kraver, and the Kentucky Peerless Distilling Company to recover damages for the alleged pollution by the several defendants named of the waters of Canoe creek, caused, as charged, by the wrongful drainage therein of the city's sewerage and slops from the distillery of Kraver and the Kentucky Distilling Company; it being alleged in each of the petitions that the waters of the creek were thereby made so impure as to render them unfit for use as stock water, cause them to emit foul odors, and so poison the atmosphere surrounding the creek as to endanger the lives of each of the appellees, his family and stock, make their houses at times uninhabitable, and depreciate the value and use of the real estate along and contiguous to the stream on which each resides. emptying of the sewerage therefrom into the stream. It was also alleged in the several answers that the long-continued use by it of Canoe creek as the natural outlet for the drainage of its territory contiguous thereto gave it the right, by prescription, to continue to so use it; and therefore to so construct its new sewers as to empty their contents therein. By an amended answer, filed to each of the petitions, the city further alleged that, upon receiving notice of the institution of appellees' actions, it prepared plans for a new system of sewers to take the place of those complained of, and soon thereafter advertised for bids for doing the work, the lowest of which had been accepted, and that the new sewers would be constructed without delay. By agreement the affirmative allegations of the answers and amended answers were controverted of record. and The four cases were consolidated tried in the circuit court as one case by the one jury. The trial resulted in separate verdicts in behalf of the appellees against the city of Henderson and H. Kraver; that in favor of Robinson being for $225 against the city and $25 against Kraver; that in favor of Sassee for $225 against the city and $25 against Kraver; that in favor of Drury for $450 against the city and $50 against Kraver, and that in favor of Spann for $450 against the city and $50 against Kraver. The Kentucky Peerless Distilling Company was exonerated from any liability to appellees by a verdict to that effect, returned by the jury in obedience to a peremptory instruction from the court. Judgments were duly entered in accordance with the several verdicts, and from the judgments entered against it the city of Henderson has appealed. Spann owns the land on Canoe creek on which he resides, but the other appellees are It is insisted for the appellant, city of merely renters of the lands on the creek Henderson, (1) that the verdicts are not susoccupied by them. The several petitions tained by the evidence and were rendered were answered separately by the defendants, under the influence of passion and prejudice; each answer traversing the allegations of the (2) that the court should have peremptorily petition, as amended, to which it was filed. instructed the jury to find for the appellant In addition, the answer of the city of Hen- as against each of the appellees; (3) that derson alleged that as a city of the third the instructions given by the court do not class it has the power to establish and main-correctly state the law of the case. tain an adequate system of sewers, in the [1] The record furnishes no ground for exercise of which power it made use of sustaining the first contention. It is true, Canoe creek in which to drain the sewerage as shown by much of the evidence, that of the city by the proper construction of two Canoe creek, prior to the construction of ap24-inch tile sewers, which were made to pellant's sewers in 1907 or 1908, received a empty into the creek; that the sewerage large part of the surface drainage from thus emptied into the creek came from those the city's territory bordering thereon, but it sections of the city that had for more than does not appear from the evidence that such 30 years entered the creek as its natural surface drainage polluted the waters of the drain and outlet; and that such use of the stream, and prior to the construction of the creek had been acquiesced in during that sewers in question no complaint was heard entire time by the appellees, and those under from appellees as to the pollution of the whom they claim. Moreover, that the city stream. It, however, abundantly appears of Henderson had not prior to the institu- from the appellees' evidence that since the tion of appellees' actions been notified by construction by appellant of the sewers the For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |