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owners of the property were vested with the fee. In the one share referred to the remainder was owned by infants, and the life estate by their father.

In Wormald's Guardian, etc., v. Heinze, 90 S. W. 1064, 28 Ky. Law Rep. 1022, the judgment of the circuit court refusing a sale of the real estate involved, under section 490, Code, was reversed. Suit was brought by the infant and her guardian to obtain the decree. The property was jointly owned by the infant and her aunt, one moiety each; but the father of the infant owned a dower right in her undivided half, the value of which he was willing to take in money. The father and aunt were made defendants. In the opinion Atherton V. Warren, supra, was relied on as an authority in point, and the doctrine therein announced held to entitle the infant to the sale of the property as prayed.

In our opinion, the case at bar comes within the rule declared in Atherton v. Warren, and Wormald's Guardian v. Heinze. The possession of the property is jointly held by the infants and their mother, though the latter is but the tenant for life in an undivided third in value of the whole; and the property cannot be divided without materially impairing its value and that of the several owners therein. Moreover, the widow asks, and will be permitted to take absolutely, the value of her dower in money, payable out of the proceeds of the property; the amount to be fixed by judgment of the court, according to her life expectancy as estimated by the insurance life tables.

As before remarked, the cases in which apparently similar sales of the property were refused were actions brought alone by the widow as life tenant, or a tenant by the curtesy of the entire property sought to be sold. Whereas here the action was brought by the infants and their guardian, as well as by the life tenant. This case, because of its dissimilarity, is not to be controlled by the opinion in Fullen wider v. Johnson, supra; for in that case, although the whole estate was owned by one, subject to the life estate of the widow in one-third, the sale of the property was asked at the suit of the widow alone, and the remainderman, in case of a sale of the property, would have had an interest in the life tenant's share of the proceeds, as upon her death it would go to him. Here the infants can have no interest in the widow's share of the proceeds of the property, as she will be paid the present value of her life estate therein. So, in view of this fact, and the further fact that the sale is asked by the infant owners and their guardian, the joint ownership is of such character as to authorize a sale of the property upon their petition; and, as the widow, by joining as a plaintiff in the petition, is but voluntarily uniting with the in

fants to accomplish what she would have consented to if made a defendant to the action, the right of the parties to the sale of the property cannot be affected by the fact of her being a plaintiff.

It seems to have been the policy of this court to withhold its approval of sales of real property, under section 490, Civil Code, when made at the suit of life tenants owning unassigned dower therein, or life tenants by the curtesy, but not to prevent such sales when asked by joint owners or tenants in possession, interested as are the infants in this case.

Not only is the proposition last stated supported by Atherton v. Warren and Wormald's Guardian, etc., v. Heinze, supra, but it is likewise supported by Jenkins v. McVaw, 145 Ky. 205, 140 S. W. 150, wherein it was held that a court of equity has jurisdiction, under section 490, subsec. 2, Civil Code, and at the suit of infants by their statutory guardian, to sell real estate owned by them, and in which they also had a right of homestead, under section 1707, Kentucky Statutes. The widow of the decedent and mother of the infants, who owned a dower interest in the land, and was equally entitled with the infants to a homestead, was a plaintiff in the action.

In view of the construction given the provisions of section 490, subsec. 2, Civil Code, by the three authorities last mentioned, we think the circuit court had jurisdiction to adjudge a sale of the property purchased by the appellant.

[2] The validity of the sale was not af

In a

fected by the failure of the guardian to execute the bond required by section 493, Civil Code, before the sale was ordered. sale of property under section 490, subsec. 2, Civil Code, the bond to the infant, required by section 493, need not be given. The judgment provides that the share of each of the infants in the proceeds of the property shall remain a lien thereon, bearing interest, until the guardian of the infants execute bond as required by section 493. This provision of the judgment amply protects the infant, and the required bond may yet be executed by the guardian before payment by the purchaser of the sale bond executed by him. Such procedure is allowed by section 497, Civil Code, which provides: "In the action mentioned in subsection 2 of section 490, the share of an infant, or of a person of unsound mind, shall not be paid by the purchaser; but shall remain a lien on the land bearing interest until the infant become of age, or the person of unsound mind become of sound mind, or until the guardian of the infant, or the committee of the person of unsound mind, execute bond as required by section 493."

Judgment affirmed.

FLUEHART COLLIERIES CO. v. ELAM.

(Court of Appeals of Kentucky. Dec. 5, 1912.) 1. MASTER AND SERVANT (§ 118*)-INJURY TO SERVANT-SAFE PLACE TO WORK.

Where a mining company failed to provide a passageway by which the miners could go from one part of the mine to the other without passing through elevator shafts, and as a result an employé was injured, the fact that there was no statute or rule of the state mining department requiring such passageway did not relieve the company from liability; the duty to provide such passageway being imposed by common-law principles.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 177, 209; Dec. Dig. 8 118.*]

2. Master and SERVANT (8 211)-INJURY TO

SERVANT

ASSUMPTION OF RISK

PLACE TO WORK.

SAFE

By accepting employment in a mine, an employé assumed the risk of such accidents as might happen in the ordinary course of his employment, but not any risk arising from failure of the company to exercise ordinary care to furnish him a reasonably safe place in which to work; the risks assumed by a servant not embracing risks brought about by the master's failure to perform his duty.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 557; Dec. Dig. § 211.*] 3. MASTER AND SERVANT (§ 289*)-INJURY TO SERVANT-CONTRIBUTORY NEGLIGENCE. Where a coal miner with no experience in shaft mines accepted employment in one, and two days thereafter, without having been warned and while in the exercise of ordinary care, was injured from a descending elevator while he was passing through the elevator shaft in obedience to a general order from his foreman to go to the opposite side of the mine to which there was no passageway other than through such shaft, he was not guilty of contributory negligence as a matter of law, though he knew in a general way of the possible danger.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1089-1132; Dec. Dig. 8 289.*]

4. MASTER AND SERVANT (8_107*)-DUTY OF MASTER-SAFE PLACE TO WORK.

The duty of a coal mining company to provide its employé with a reasonably safe place was not confined to the precise spot in which he worked, but included the places to and from

which he might be required to go in perform

ing his duties.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 199-202, 212, 254, 255; Dec. Dig. & 107.*]

5. MASTER AND SERVANT (§ 270*)-INJURY TO SERVANT-EVIDENCE- PRECAUTION AFTER

INJURY.

In a coal miner's action for injuries from being struck by a descending elevator while he was passing through the elevator shaft because there was no safe passway, it was error to admit evidence to prove that a passway was constructed around the elevator shaft after the accident.

sity of its employés going through the elevator shaft where plaintiff was injured.

Error, Cent. Dig. 88 4153-4160, 4166; Dec. [Ed. Note.-For other cases, see Appeal and Dig. § 1050.*]

7. MASTER AND SERVANT (§ 270*)—INJURY TO

SERVANT

INJURY.

EVIDENCE- PRECAUTION AFTER

Evidence of subsequent improvements or repairs is excluded because it does not establish that the wrongdoer was guilty of negligence before the accident.

Servant, Cent. Dig. §§ 913-927, 932; Dec. Dig. [Ed. Note.-For other cases, see Master and § 270.*]

Appeal from Circuit Court, Johnson County.

Action by J. C. Elam against the Fluehart Collieries Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Howes & Howes, of Paintsville, and Auxier, Harman & Francis, of Pikeville, for appellant. Fogg & Kirk, of Paintsville, for appellee.

CARROLL, J. This appeal is prosecuted from a judgment for $1,500 entered upon the verdict of a jury in a suit by the appellee against the appellant to recover: damages for personal injuries sustained by him. At the time of the injury complained of the appellee was a coal miner, engaged in working for the appellant coal company. The mine operated by the appellant was what is known as a "shaft mine"; the shaft extending from the surface of the ground a distance of about 110 feet to the coal. In the shaft there were two elevators operated by machinery, situated on the surface of the ground, and these elevators were used for the purpose of bringing coal from the mine to the surface and taking miners and employés of the company to and from the surface to the mine. They were intended to be so operated as that, when one was at the bottom of the mine, the other would be at the surface of the ground, and, when an elevator descended to the floor of the

mine, it rested upon a framework of sills; the floor of the elevator being level with the floor of the mine. The shaft in which these elevators ran was located in the main entry of the mine, and the miners in using this entry in going from one side of the mine to the other were obliged to walk through the shaft in which the elevators ran. When one elevator was down to the floor of the mine, the miners would walk through the elevator, but when the elevators were above the mine floor, as often happened, they would walk over the place where the elevator rested when down. The company had not providminers of the descent of these elevators, ed any means or method of warning the The admission of evidence of precautions and, so if one of the elevators was not at taken by the master by constructing a safe the bottom of the mine, the only way in passway after injury to the employé was harm which they could tell where the elevators less, where the uncontradicted evidence showed that the employer was negligent in not having were was by looking, as no signal or notice a safe passway which would obviate the neces- was given of their movements. At the time

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 913-927, 932; Dec. Dig. § 270.*]

6. APPEAL AND ERROR (§ 1050*)-HARMLESS ERROR-ADMISSION OF EVIDENCE.

appellee was injured he was directed in a law principles, and does not require statgeneral way by the foreman to go to an- utory enactment or mining department diother part of the entry, and obedience to rection to make it effective. As the evithis order made it necessary that he should dence for appellee made out a good case go through the elevator shaft. At this time in his behalf upon the point that the coal neither of the elevators were at the bottom company was remiss in its duty in the reof the mine, and, as appellee was passing spect mentioned, it only remains to be seen over the space where the elevators came if the defenses of assumption of risk and down, one of them, quickly descending in contributory negligence can save the appelthe usual way, caught him, and he was lant from the loss it invited by its failure pressed against the floor of the mine by the to have a passageway. bottom of the elevator, receiving severe injuries.

The case for the appellee was put upon the ground that the company was negligent in failing to furnish him a reasonably safe place in which to work, and in failing to warn him of the danger in going through these elevator shafts; while the company defended upon the ground that the appellee assumed the risk of injury in accepting employment, and, besides, was guilty of such contributory negligence as would defeat a recovery.

[2] In accepting employment the appellee assumed the risk of such accidents and resulting injury as might happen to him in the ordinary and customary course of his employment, but he did not assume any risk from accident or injury caused by the failure of the coal company to exercise ordinary care to furnish him a reasonably safe place in which to work. The risk that the servant assumes does not embrace or include risks that are brought about by the failure of the master to perform his duty. This case furnishes a good illustration of this exception of the doctrine of assumption of

[1] The evidence shows, practically without contradiction, that the method of requir-risk. Here the servant was injured by the ing the miners to pass through these elevator shafts in going from one part of the mine entry to another was unsafe. It further shows, without contradiction, that a passway could have been made with little expense on the sides of this shaft, through which the employés could have gone with safety in passing from one part of the mine entry to the other, thus avoiding the necessity of going through the elevator shaft. It is further shown by the evidence that there

was no time fixed for the descent of these

failure of the master to exercise ordinary care to furnish him a reasonably safe place in which to work, and when the servant, in the performance of his duty, was injured by the failure of the master in this respect, it is no defense for the master to say that, “although I was negligent and the breach of duty I committed resulted in the injury, nevertheless, you took the risk of nonperformance of duty on my part, and therefore can

not recover."

We have said in more than one case that elevators, and that no warning or notice the doctrine of assumed risk should be sparof any kind was given of their descent. In short, the overwhelming weight of the evi-ingly applied, and in this case it has no place at all. dence establishes that the company did not exercise ordinary care to furnish appellee a reasonably safe place in which to work, but, on the contrary, furnished him a place in which it was extremely dangerous to work, although it could have been made safe by the expenditure of a few dollars.

It is said, however, by counsel for appellant that as there is no statute in this state requiring mineowners to provide a passageway around elevator shafts, and as the state mine inspecting department did not object to or complain of the failure of the appellant to have the passageway, it should not be treated as having altogether failed in its duty of furnishing appellee a reasonably safe place in which to work. But the fact that there is no statute in this state on the subject of providing a passageway around elevator shafts, or the fact that the state mining department was apparently negligent or indifferent in the performance of its duty, did not excuse appellant from discharging the duty it was under to exercise ordinary care to furnish its employés with a reasonably safe place to work. This duty

[3] Nor was the appellee guilty of such contributory neglect as would defeat a recovery. It is true he was an experienced miner, but he had never worked in a shaft mine until he accepted employment from appellant two days before he was injured, and, except for the slight knowledge of the manner in which the elevators were operated acquired by his use of the elevators four times during these two days, he had no knowledge gained from experience concerning the danger attending the operation of the elevators of the danger attending the act of passing through the elevator shaft when one of the elevators was not fully down. When he started through the elevator shaft and did not find either of the elevators there, he probably knew that one of them would be down in a short time; just when he had no means of knowing. He also, of course, knew that, if he was caught by the descending elevator, it would cost him his life or cripple him severely. But this knowledge and his failure to wait until the elevator came down did not as a matter of law defeat his right

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was ordered by the foreman to go to another its rights, as in making the passway it only part of the mine, obedience to the order did what all the witnesses said should have made it necessary that he should pass been done before the accident. through the elevator shaft, and that when he got to the shaft, and did not see any elevator there, he looked up the shaft, but did not see the descending elevator, nor did he hear it coming, and started through, and was caught, as before stated.

It is argued by counsel for appellant that appellee should have taken particular pains to find out where the elevator was, and should have exercised a high degree of care to protect himself from injury by it, as he must have known in a short time at least it would come down. He was not, however, under the circumstances, required to exercise more than ordinary care for his own safety, and the question as to whether he exercised the degree of care necessary to excuse him from such negligence as would defeat a recovery was properly submitted to the jury, and the jury in finding a verdict in his behalf must have believed that he exercised the measure of care required of him.

[4] It is also complained that the court committed error in adding to the instruction telling the jury that it was the duty of the appellant to use ordinary care to furnish appellee a reasonably safe place to work the words, "And a reasonably safe way to pass to and from his work while inside the mine, considering the circumstances, place and character of work to be done." We do not think the criticism of this instruction is well taken. It was as much the duty of appellant to exercise care to furnish appellee a reasonably safe way to go to and from his work while inside the mine as it was to exercise care to furnish him a reasonably safe place in which to work. The duty of appellant to exercise ordinary care to furnish appellee a reasonably safe place was not confined to the precise spot in which he worked, but included the places to and from which he might be required to go in forming his duties.

Upon the whole case we think the appellant had a fair trial, and the judgment is affirmed.

GROSS et al. v. COMMONWEALTH. (Court of Appeals of Kentucky. Dec. 6, 1912.) 1. CRIMINAL LAW (§ 369*) — EVIDENCE - AD

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The error in an instruction defining murder and aiding and abetting, arising from the failure to give defendant firing the fatal shot the benefit of the plea of self-defense, but only giving to him the right to defend his codefendants, is cured by an instruction defining the right of self-defense and giving each of defendants the full benefit thereof.

[Ed. Note.-For other cases, Law, Cent. Dig. 88 1992-1995, 3158; Dec. Dig. see Criminal § 823;* Homicide, Cent. Dig §§ 718, 719.]

Appeal from Circuit Court, Perry County. Ned Gross and others were convicted of manslaughter, and they appeal. Affirmed. John C. Eversole, of Booneville, and F. J. Eversole, John B. Eversole, Wootton & Morgan, and E. C. Wooton, all of Hazard, for appellants. James Garnett, Atty. Gen., and O. S. Hogan, Asst. Atty. Gen., for the Commonwealth.

TURNER, J. The 15th of February, 1912, was fixed as the time for the trial, at Buckhorn, in Perry County, before the police judge, of Willie and Andrew Johnson, chargper-ed with some misdemeanor growing out of reprehensible conduct the Sunday night before at the church in that town. An attempt

[5, 6] The further error is assigned that the court permitted counsel for appellee to prove that a passway had been constructed around the elevator shaft after the accident to appellee occurred. The admission of this evidence was error, but not prejudicial under the facts of this case.

was made at the time to arrest them; but

they resisted and escaped. The four appellants, Ned and Jordon Gross, Steve Sandlin,

and Charley Riley, were the chief witnesses against the two boys upon the charge aforesaid. It appears that prior to this time there had been some hostile feeling between some [7] The ground upon which subsequent im- of the appellants and Levi Johnson, an uncle provements or repairs is excluded is that of the two boys; and it is manifest that the this evidence does not establish that the feeling was aggravated by the occurrence at wrongdoer was guilty of negligence before the church. On the morning of the 15th of the accident happened. Louisville & Nash- February, Levi Johnson, John Davidson, ville R. Co. v. Morton, 121 Ky. 398, 89 S. W. Thomas Deaton, Joe Smith, and the two 243, 28 Ky. Law Rep. 355. But in this case boys, Willie and Andrew Johnson, went to the uncontradicted evidence shows that it Buckhorn from the home of Granville Johnwas negligence not to have a passway, and son about two miles distant, for the purpose so evidence that appellant made a passway of attending the trial; but when they reachafter the accident could not have prejudiced ed there they ascertained that Granville

another. In a proper case the point would be well taken; but it appears here that the two men, Johnson and Davidson, were killed at practically the same instant; that they were riding the same horse; that they were | killed by the same party, or parties, and possibly even by the same shot. We cannot see how, in any practical way, the court could have avoided keeping from the attention of the jury at all stages of the trial the fact that some one or more of the appellants had killed John Davidson as well as Levi Johnson. It would have been impossible, in fact, to have introduced the evidence before the jury in such way as to enlighten them as to the whole transaction, without continually keeping before them the patent fact that John Davidson was killed at the same time, and practically under the same circumstances, as Levi Johnson. Miracle v. Commonwealth, 148 Ky. 453, 146 S. W. 1136.

[2] The first instruction is the one defining murder, and the second deals with the aiding and abetting feature. It is complained of both of these instructions that they do not give the defendant who actually fired the fatal shot the benefit of the plea of self-defense, but only give to him the right to defend his codefendants. And this is true; but in the third instruction this error is cured, as that instruction is a well and carefully drawn definition of the right of selfdefense, and gives each of the appellants the full benefit thereof.

Johnson, who had preceded them, had al- jury when the defendants were on trial for ready succeeded in having the police judge continue the trial to another day. They proceeded to the home of the police judge, where they remained a while, and from there to the home of Levi Johnson, who lived in another part of the town. It appears that the six, all of whom were related in one way or another, remained together, or practically so, the whole day; and it further appears that the two Grosses and Sandlin, who were also related, and the appellant Riley, their associate, had frequent conferences during the day, and remained together most of the time. It is manifest from the whole record that both parties expected trouble during the day; and it is equally plain that neither party took any great precaution to avoid it. After having taken dinner at Levi Johnson's, the Johnson party started back to Granville Johnson's; Levi Johnson and John Davidson riding the same horse. The two Grosses and Riley were standing in front of a store near the post office, and Sandlin was at his residence, a short distance away. After the Johnson party left the post office, where they had stopped a short time, some words passed between John Davidson and one of the Grosses; and thereupon the two Grosses hastily repaired to a coalhouse near the residence of Sandlin, and the shooting began. The evidence is conflicting, both as to who began the wordy altercation and as to who fired the opening shots; but it is manifest that the appellants were well prepared for the difficulty, as it appears that the two Grosses each had their pistols, and that Sandlin had his shotgun conveniently near in his home, loaded with buckshot, and that Riley had that day brought his gun from his home, and had it in the Sandlin residence. After the firing of the first two or more shots with the pistols, Sandlin, through a window in his house, fired two shots with his doublebarreled shotgun, and subsequently there was a general firing from both sides. Levi Johnson and John Davidson were each shot several times, and lived only a few minutes. The appellants, at the March term of the Perry circuit court, were all four indicted, charged with the murder of Levi Johnson, in one count, and in another Ned Gross and Steve Sandlin were charged with his murder, and Jordon Gross and Charley Riley with being present and aiding and abetting in the same. They were each found guilty of manslaughter, on a joint trial, and all appeal.

[1] They complain that the lower court permitted the commonwealth throughout the trial to keep before the mind of the jury, by the introduction of its evidence, the fact that John Davidson had also been shot and killed by one or more of appellants, although the appellants were only on trial for the killing of Levi Johnson, and insist that it was prejudicial error to permit evidence of the commission of one crime to go before the

A careful reading of the record is most convincing that appellants have each had a fair and impartial trial. Judgment affirmed.

SAMUELS v. LOUISVILLE RY. CO. (Court of Appeals of Kentucky. Dec. 6, 1912.) 1. CARRIERS (§ 320*)-PASSENGERS-INJURIES -JURY QUESTION-NEGLIGENCE. Whether a street car which plaintiff attempted to board was started with an unusual jerk as she boarded it held a jury question in an action for alleged injuries in boarding.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. 88 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315, 1325; Dec. Dig. § 320.*]

2. CARRIERS (§ 320*)-PASSENGERS—INJURIES

-JURY QUESTION.

Whether a street car passenger was injured as claimed while boarding the car held a jury question in an action for such injuries.

[Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 1118, 1126, 1149, 1153, 1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 13151325; Dec. Dig. § 320.*]

3. CARRIERS (§ 287*)-PASSENGERS

ING CAR-NEGLIGENCE.

-BOARD

It is negligence to move a street car at all before a passenger has reasonable opportunity to reach the platform; but, if he has such opportunity, the company is not liable unless the car is started with an unusual jerk,

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