[Ed. Note.-For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.*] Appeal from Circuit Court, Muhlenberg County.

[1] We give some weight to the finding of | tune," and had no right to enter to remove it the chancellor on questions of fact; and we after the expiration of the year. cannot say that the chancellor erred in holding, under the evidence, that the company had no notice of the assessment made by the board of supervisors, or that the amount of the tax which he required it to pay was less than it really owed.

Action by R. W. Danks against Z. Harrell & Co. Case transferred to equity, and from a decree for plaintiff defendants appeal. Af

firmed.

Glenn & Simmerman, of Hartford, and Taylor & Eaves, of Greenville, for appellants. Willis & Meredith, of Greenville, for appellee.

off the land."

[2] In Mt. Sterling Oil Co. v. Ratliff, 127 Ky. 1, 104 S. W. 993, 31 Ky. Law Rep. 1229, we held that an assessment by the board, without notice to the taxpayer, was void. We said: "While the board of supervisors seem to be empowered to assess all property that may have escaped the notice of the as- CLAY, C. On May 19, 1910, plaintiff, for sessor, even though the name of the own- the consideration of $400 cash, sold to deer be undiscovered, it is without authority fendants, Z. Harrell & Co., all the timber on either to assess, or increase an assessment the south side of the public road where he of, property without notice to the taxpayer." then lived, with the exception of the sassaThis case was followed and approved in fras and mulberry, which were reserved. Ward v. Wentz, 130 Ky. 705, 113 S. W. 892. The contract was in writing, and contained In that case we further said: "Under our the following provision: "Z. Harrell & Co. statute the board of supervisors is given to have twelve months to work the timber large powers and a wide discretion. Where its procedure is in conformity to the statute, its action is conclusive. In view of the large powers given, it should therefore proceed in strict conformity to the statute. The notice therein required is a jurisdictional fact, and, unless it is given, the board of supervisors has no power to act. Although appellees' agent knew the assessment had been raised, he did not appear before the board for the purpose of having it reduced. Such knowledge on his part did not dispense with the necessary notice required by the statute. If, however, he had actually appeared before the board of supervisors for the purpose of securing a reduction, this would have dispensed with the necessity for notice, as the entry of an appearance by a party to an action dispenses with the necessity for the service of process."

Plaintiff brought this action against defendants to recover damages in the sum of $325. He alleged in his petition that after May 19, 1911, the defendant forcibly and unlawfully entered upon his said land and cut and removed certain timber therefrom. Defendants pleaded that all the timber which they removed from the land in question after the expiration of the 12 months provided in the contract was cut before the contract expired, and that they were prevented from removing same within the contract time by the unusual and unprecedented water fall, which made it absolutely impossible for them to remove the logs and ties so cut within the 12 months next after May 19, 1910, after which time they did not cut any timber of any kind from the land. Plaintiff filed a reply traversing the allegations of

These decisions are conclusive of the case the answer. On motion of defendants, the before us.

Judgment affirmed.

Z. HARRELL & CO. v. DANKS. (Court of Appeals of Kentucky. Dec. 5, 1912.) LOGS AND LOGGING (§ 3*)-SALE OF STANDING TIMBER-TIME FOR REMOVAL "UnforeSEEN CASUALTY OR MISFORTUNE."

A sale of standing timber, to be removed within a given time, is a sale of only so much of the timber as is removed within that time, or in a reasonable time thereafter, if the purchaser is prevented from removing it by act of God or of the seller, or by some unforeseen casualty or misfortune; and where standing timber was sold in May, 1910, to be removed in a year, and cutting was delayed until August and hauling until November, though the roads were in good condition in the fall, and it could easily have been removed, and though the buyer knew that the roads in winter would be bad, the buyer was not prevented from removing it by "unforeseen casualty or misfor

case was transferred to equity. On final hearing, the chancellor rendered judgment in favor of plaintiff for $200. Defendants appeal.

The evidence shows that the defendants never began to cut the timber until the month of August, 1910, and that they did not begin to haul the timber from the land until the middle or latter part of November, 1910. They then hauled until about the 1st of January. After that they did no hauling until after May 19th, when the time for removing the timber expired. The timber for which a recovery is sought was removed during the months of June and July. The defendants showed by several witnesses that there was a freeze in December, followed by a thaw a few days later, which caused the roads to become very muddy. In addition to this, there was an unusual rainfall during the winter months and the early spring, and during all this time it was prac

2. RAILROADS (8 338*)-CONTRIBUTORY NEGLIGENCE-INFANTS-RAILROAD CROSSINGS.

A child of eight years is not charged with the same degree of care for his safety as an adult, and a railroad which has not given such a child, injured at a crossing, such warning of the movement of a train reasonably sufficient to prevent a child of his years from putting himself in peril cannot escape liability on the ground of contributory negligence.

[Ed. Note. For other cases, see Railroads, Cent. Dig. 1096-1099; Dec. Dig. 338.1 3. RAILROADS ( 350*)-CONTRIBUTORY NEGLIGENCE EVIDENCE.

In an action for personal injuries to a child at a railroad crossing, evidence held sufficient to take the question of the child's contributory negligence to the jury.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. 8 1152-1192; Dec. Dig. § 350.*] 4. RAILROADS (§ 347*)-RAILROAD CROSSINGS

-ADMISSIBILITY-PERSONAL INJURIES.

To show the duty a railroad owes the public at a crossing, evidence may be introduced to show the character of the crossing and the use of it by the public, not only at the time of an accident under investigation, but for a reasonable time before.

Appeal from Circuit Court, Kenton County, Common Law and Equity Division.

Action by Allie Allnutt against the Louisville & Nashville Railroad Company. Judg. ment for plaintiff, and defendant appeals. Affirmed.

S. D. Rouse, of Covington, and Benjamin D. Warfield, of Louisville, for appellant. Wm. A. Byrne, of Covington, for appellee.

CARROLL, J. In November, 1908, the appellee, Allie Allnutt, then about eight years old, was run over by one of the cars of the appellant company, and as a result lost both of his legs. To recover damages for the injury thus sustained, he brought this suit first trial of the case the damages in his against the appellant company, and on the favor were assessed by the jury at $19,000, but a motion for a new trial on behalf of the railroad company was sustained, and this verdict set aside. On the second trial there was a verdict in favor of appellee for [Ed. Note. For other cases, see Railroads, $5,000 and this verdict, on his motion, was Cent. Dig. §§ 1124-1137; Dec. Dig. § 347.*] set aside. On the trial from which this ap5. RAILROADS (§ 312*)-CROSSINGS-DUTIES. peal is prosecuted there was a verdict and A railroad must take notice of the loca judgment in favor of appellee for $11,750. tion, use, and character of public crossings, and exercise such care as may be necessary to give To the ruling of the court in setting aside the reasonably sufficient warning of the movement first judgment, the appellee excepted and of trains and cars to those using the crossing. prepared, in regular form, a bill of exceptions [Ed. Note. For other cases, see Railroads, and transcript of the evidence. To the rulCent. Dig. 988-1001, 1003; Dec. Dig. §ing of the court in setting aside the second 312.*]

6. APPEAL AND ERROR (§ 1056*)-HARMLESS ERROR-EXCLUDING EVIDENCE.

In an action for personal injuries to a child at a railroad crossing by a car on which there was no brakeman, it was not prejudicial to exclude evidence that, even had there been a man on the car at the time of the accident, he could not have stopped the car, where the recovery was based on insufficient warning.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4187-4193, 4207; Dec. Dig. 1056.*]

7. RAILROADS (§ 350*)-CROSSINGS-DUTIES. Where a railroad crossing was an exceptionally dangerous one, which many school children had to cross, it cannot be said, as a matter of law, that having a watchman alone, or ringing the bell or blowing the whistle alone, or having a man stationed on the moving cars alone, would be adequate to afford reasonable protection to the public.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. 88 1152-1192; Dec. Dig. § 350.*] 8. RAILROADS (8 349*)-CROSSING ACCIDENTS -"GROSS NEGLIGENCE."

The pushing of cars over a crossing at a time when there were school children at the crossing, without ringing a bell or blowing a whistle, or without any person on the cars to control or give warning, the watchman on duty giving no warning, was "gross negligence,' which is a reckless or wanton disregard of the rights or safety of others, or the doing of an act intentionally or maliciously, and punitive damages were properly allowed.

[Ed. Note.-For other cases, see Railroads, Cent. Dig. 1151; Dec. Dig. § 349.*

For other definitions, see Words and Phrases, vol. 4, pp. 3168-3173; vol. 8, p. 7675.]

judgment, the appellant excepted and prepared, in due form, a bill of exceptions and transcript of the evidence. So that the record on this appeal consists of the record made up on each of the three trials, and we are asked by appellant to reverse the judgment on the last trial and direct the entry of a judgment on the verdict on the second trial, upon the ground that the trial court improperly set aside the verdict on that trial. On the other hand, we are asked by appellee to direct the lower court to enter a judgment for the amount of the verdict on the first trial, upon the theory that the court improperly set aside that verdict, but, if this cannot be done, that the judgment on the last trial be affirmed. As we have concluded to affirm the judgment on the last trial, it does not seem necessary to notice the arguments of counsel in respect to the preceding trials, but we may say that the discrepancy between the amount of the verdict on the first and second trials is largely accounted for by the fact that on the second trial the court refused to instruct the jury that they might award punitive damages.

Except in one particular, there is little controversy about the facts of this case. Latonia is a city of several thousand people, and one of the principal, if not indeed the principal, street in the city is Southern avenue, which is crossed by the tracks of the appellant railroad company. At the point

where the railroad crosses this avenue there | car behind it for the purpose of "kicking" it were, when the accident happened, 17 sepa- into a siding, towards which the engine was rate tracks in use by the railroad company, pushing it. There was no brakeman or othcovering a space of some 200 feet in width er employé of the company on the car or across the avenue. At virtually all hours cut of cars, nor was there any alarm or of the day there were trains, sometimes two warning of the movement of the train by the or three of them at the same time, moving ringing of the engine bell or other means. on the tracks across the avenue, and hun- As the car had been disconnected from the dreds of people, in using this avenue each engine and the car immediately behind it, day, on foot and in vehicles, had to cross of course the engineer could not control the all of these tracks. Including the public movement of the car, and the condition was who made use of this street and who were practically the same as if this car had been required to cross these tracks, were a large started by a movement of the engine across number of school children who lived on the the avenue and was running without any west side of the railroad and attended two person in control of it. schools that were situated on the east side The grounds relied on for a new trial are: of the railroad, and when these children (1) That the court erred in refusing to diwere going to school in the morning and re-rect a verdict for the railroad company; (2) turning in the afternoon this avenue, where that the verdict is flagrantly against the It crosses the railroad tracks, was crowded evidence; (3) that error was committed in with children romping, running, and playing, as school children usually do.

On the day Allie Allnut was injured he was returning about 4 o'clock in the afternoon from school on the east side of the tracks to his home on the west side, in company with a crowd of children. The evidence in his behalf shows that when he got to the eastern track Blackburn, the crossing watchman for the railroad company, was standing about the middle of the crossing, and between the tracks, not engaged at the time in warning the children that there was danger from moving trains-merely standing at his post. That appellee and other children, who were in his immediate company, walked or ran by Blackburn, without any notice or warning from him, and that, when appellee had passed Blackburn and gotten to the last track on the west side, Blackburn halloed at him, when he turned around, and, as he did so, stumped his toe and fell on the track, and about that time Blackburn, who had discovered that the child was going on the track in front of the moving train, made an effort to rescue him, and in the attempt fell on him, and just as appellee fell on the track a freight car, pushed by an engine, ran over his legs. The evidence for the railroad company is, in substance, that Blackburn, when he saw the children coming toward the track on the east side, went to meet them for the purpose of stopping them from crossing, as a train was switching on the western track; that some of the children stopped, in obedience to his request or order, and some of them, including Allie Allnutt, ran by him; that when his attention was called to the fact that some of the children had gone by him, and in the direction of the moving train, he ran after them and caught Allie Allnutt just as he got on the track in front of the moving cars, and in his effort to save him came near being run over himself. The car that ran over the child was the front car of a cut of six cars being pushed by an en

permitting witnesses Oliver, Niedlander, Braimes, and Huff to testify as to customary conditions at the crossing; (4) that the court erred in refusing to permit Johnson to testify as to the distance in which the car could have been stopped; (5) that error was committed in the instruction.

[1] Concerning the grounds that a peremptory instruction should have been given, or that the verdict should have been set aside as flagrantly against the evidence, little need be said. There was ample evidence to take the case to the jury and to sustain the verdict. According to the evidence for appellee, he did not discover the moving engine and cars until he was in the act of crossing the track on which they were running, and did not have any warning from Blackburn or any one else of the movement of the train.

[2] It is true the car that ran over appellee was moving at a slow rate of speed, and that if he had been careful he could have seen it, but a child of eight years is not charged with the same degree of care for his own safety as an adult would be. It is probable that a grown person in crossing these tracks would keep a sharp lookout for the movement of trains, and in view of the danger attending the crossing would have exercised unusual care for his own safety. But, unless appellee was given such warning or notice of the movement of the train as would be reasonably sufficient to prevent a child of his years from putting himself in a place of peril, the railroad company cannot escape responsibility for the accident that befell him upon the ground that, except for his contributory negligence, it would not have happened. The warning or notice that might be amply sufficient in the case of a grown person might be entirely inadequate and insufficient in the case of a child of eight years, and therefore to excuse the railroad company, as a matter of law, from blame for an accident like this, under the

evidence should show that appellee was | petent for the purpose of showing the dangiven such warning as would be reasonably gerous character of this crossing, and the sufficient to put a child of his years upon duty that the railroad company was under notice of the danger, and this the evidence to have it so protected as to give reasonably does not do. sufficient warning to the traveling public o the danger attending its use.