or unless the passenger be feeble, crippled, | regions and nervous system, and causing her [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.*] 5. PLEADING (§ 34*)-CONSTRUCTION. A pleading is construed most strongly against the pleader. [Ed. Note.-For other cases, see Pleading, Cent. Dig. §§ 66-74; Dec. Dig. § 34.*] 6. TRIAL (8 252*)-PASSENGERS-INSTRUCTION -CONTRIBUTORY NEGLIGENCE. In absence of evidence of a passenger's contributory negligence while boarding a car, it was error to instruct on such negligence. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 505, 596-612; Dec. Dig. § 252.*] 7. APPEAL AND ERROR (§ 1068*)-HARMLESS ERROR-INSTRUCTIONS. The giving of an instruction on contributory negligence without support in the evidence was not prejudicial to plaintiff, where the verdict for defendant did not rest on such instruction. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4225-4228, 4230; Dec. Dig. 1068.*] Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Second Division. Action by Barbara Samuels against the Louisville Railway Company. From a judgment for defendant, plaintiff appeals. Af firmed. Popham, Trusty & Roose, of Louisville, for appellant. Fairleigh, Straus & Fairleigh and Howard B. Lee, all of Louisville, for appellee. CLAY, C. Plaintiff, Barbara Samuels, brought this action against defendant, Louisville Railway Company, to recover damages for personal injuries. She charged in her petition that on or about October 30, 1910, she desired to become a passenger on a car of the defendant company at Fourth and N streets in the city of Louisville; that defendant stopped its car at said point for said purpose, whereupon she attempted to board same while the same was at rest, when defendant and its agents in charge of said car, with gross negligence, while she was in a place of peril, and before she had been given a reasonable opportunity to fully board and enter said car, did then and there cause and permit said car to violently start forward with an unusual and violent lurch, whereby she was thrown against portions of the car with great force, and permanently injured in her limbs, body, and back, and in her internal great mental and physical suffering, and permanently impairing her earning power, to her damage in the sum of $5,000. Defendant's contributory negligence. The jury returned answer contained a traverse and a plea of a verdict in favor of defendant. Judgment was entered accordingly, and plaintiff appeals. Plaintiff testifies that she was standing at Fourth and N streets when the car stopped. She had just gotten on the platform when the car gave a surge, and she fell and struck her side on the back rail. The car started with an unusual jerk. When the car started, she was right at the edge of the platform where she got up. When she fell, her side hurt her so badly she could not get her breath. After the accident she suffered a great deal. She first went to see Dr. Coleman, who examined her and told her to return. She did not go to see him again. She afterwards went to see 'Dr. Gatz, who applied some adhesive plasters to the place where she was hurt. Since the accident she had been unable to do her work well. She could not walk upstairs as she had done previous to the accident, but had to hold to the steps. Her side still hurt her a good deal when she was walking around and doing her work. Mrs. Annie Eskridge, a neighbor who lived just across the street from plaintiff, was with plaintiff at the time of the accident. She testifies that they had a baby with them, a great-grandchild of plaintiff. She put the baby on first. Plaintiff then started to board the car. Fearing the baby would fall, Mrs. Eskridge got on the car in front of plaintiff. When Mrs. Eskridge reached the center of the platform, the car gave a sudden jerk, which would have thrown her had she not caught the railing. Plaintiff was thrown against the rail of the car. When they returned to plaintiff's home, witness discovered a ridge along plaintiff's side about three inches long, which was swollen and bruised. Nearly every night during the winter, she waited on plaintiff, applying liniments to the bruised parts and rubbing them. Before the accident plaintiff had no difficulty in moving around. During the winter plaintiff was not able to get out and do her work. At the time witness testified, plaintiff had improved, though she was not able to do her work well then. J. F. Williams, who appeared at the courthouse on the morning of the trial and who had never talked to any one regarding the case, testified that he was on the corner of Fourth and N streets at the time plaintiff was injured. Saw plaintiff getting on the car, when the car started, causing plaintiff to fall and hit her side. Did not think plaintiff had time to get into the car. She had just reached the top step when the car started. Could not say whether the car started with an unusual jerk or not. Dr. Gatz testified that he was called to at- highest degree of care to enable her to board tend plaintiff on November 7, 1910. Found the car in safety, and if you believe from very little objective evidence of injury. the evidence in this case while she was in Plaintiff complained of suffering pain in her the act of boarding the car, and before she back and left side. He prescribed several got to a place of safety upon the car, those different liniments for her. Her symptoms were mostly subjective. Upon his last visit, plaintiff's suffering was not as great as it had been before. For the defendant, Mr. Funk, its general superintendent, testified that he knew nothing of the accident until the suit was filed. He then caused an investigation to be made, and every employé on the line questioned, but was unable to secure any information in regard to the alleged accident. Later, he caused plaintiff's deposition to be taken, and then made another investigation, but was unable to learn anything in regard to any injury to plaintiff at the time and place complained of. Dr. W. H. Coleman testified that he was consulted by plaintiff on November 4, 1910. Plaintiff complained of soreness between the hips and ribs. The memorandum he took at the time shows, "No abrasion of the skin at all." There was no evidence of injury except her statement that she was suffering. Her condition was normal as to pulse and in other respects. in charge of the car started the car suddenly and with an unusual jerk, and she was thrown thereby against the car or any part of it and injured thereby, the law of the case is for the plaintiff and you should so find. But unless you believe from the evidence that while the car was standing she was in the act of boarding the car, and before she got to a place of safety upon the car those in charge of the car negligently suddenly started the car forward with an unusual jerk, and she was thereby thrown against the car and injured, the law of the case is for the defendant, and you should so find." [3] The particular complaint of this instruction is that plaintiff was entitled to a reasonable opportunity to board the car, and that if the defendant failed to give her a reasonable opportunity to board the car she was entitled to a recovery, whether the car was started by a usual or an unusual jerk, while the instruction authorized a recovery only in the event that there was a sudden and unusual jerk. The principle of law contended for by plaintiff is correct. If a car be moved while a passenger is upon the steps of the car, and before he has had a reasonable opportunity to reach the platform, and he is thereby injured, he is entitled to recover, whether the car is moved by an ordinary and usual or an unusual and unnecessary jerk. The negligence consists in the mere act of moving the car before the passenger has had a reasonable opportunity to board it. L. & N. R. R. Co. v. Arnold, 102 S. W. 322, 31 Ky. Law Rep. 414; C. & O. Ry. Co. v. Borders, 140 Ky. 548, 131 S. W. [1, 2] It is first insisted that, inasmuch as plaintiff made out her case by uncontroverted testimony, the court erred in refusing a peremptory instruction to find for her. While it is true that plaintiff and Mrs. Eskridge say that the car was started with an unusual jerk, J. M. Williams, who claims to have been present and to have seen plaintiff board the car, testifies that he could not say that the car was started with an unusual jerk. In view of this fact, and of the further fact that plaintiff and her chief witness failed to remember certain things which witnesses similarly situated would ordinarily remember, and in view of the fact that the physicians 388, 140 Am. St. Rep. 396. On the other were unable to find any objective symptoms of injury, we conclude that the question whether or not the car was started with an unusual jerk, and whether or not plaintiff was injured was properly submitted to the jury. In a case very similar to this the court held that the jury, in weighing the testimony of the witness, may consider his demeanor and appearance, and from these and other circumstances may conclude that the witness is not worthy of credit, and disregard his testimony. Howard v. Louisville Railway Co., 105 S. W. 932, 32 Ky. Law Rep. 309. hand, where the passenger has had an opportunity to reach the platform of the car, the company is not liable unless the car is started with an unusual jerk, except in those cases where the passenger is old, feeble, crippled, or in a condition which makes it reasonably apparent to those in charge of the car that he needs unusual care and precaution for his protection. Lexington Railway Co. v. Britton, 130 Ky. 676, 114 S. W. 295; I. C. R. R. Co. v. Ball, 150 Ky. 531, 150 S. W. 668. [4] If therefore plaintiff had pleaded that the car was started before she had a reasonable opportunity to board the same, or had pleaded facts showing that she was entitled to unusual care and precaution, her complaint of the instruction would be well founded. Such, however, is not the case. She alleges that she was injured "before she had been given a reasonable opportunity to fully board and enter said car." It is next insisted that instruction No. 1 given by the court did not properly present the law of the case. This instruction is as follows: "If you believe from the evidence in this case that the plaintiff, Barbara Samuels, while the defendant's car was standing at Fourth and N streets at the time in regard to which you have heard testimony, attempted to board the same, it became the duty of the agents and employés of the defendant, [5] Under the rule that a pleading must er, this was simply an allegation that she | and directing that it be sold in satisfaction was injured before she had been given an of plaintiff's debt, subject to the right of the opportunity to enter the car. We therefore widow to a homestead therein. Commissionconclude that the instruction complained of ers were appointed to set apart to the widow is not erroneous when considered in the light a homestead. This was done, and the balof the averments of the petition and the evi-ance of the land was sold. The lands redence introduced by plaintiff. [6, 7] Complaint is made because the court gave an instruction on contributory negligence. While it is true that there is no evidence tending to show that plaintiff was negligent while getting on the car, and an instruction on contributory negligence should not therefore be given, it is apparent that the verdict of the jury was not rested on this instruction. That being true, we conclude that the giving of the instruction was not prejudicial to plaintiff's substantial rights. Shellman v. Louisville Railway Co., 147 Ky. 529, 144 S. W. 1060; Louisville Railway Co., v. Byer's Adm'r, 130 Ky. 442, 113 S. W. 463; C. & O. Ry. Co. v. Ward's Adm'r, 145 Ky. 736, 141 S. W. 72; Bennett v. Louisville Railway Co., 122 Ky. 61, 90 S. W. 1052, 4 L. R. A. (N. S.) 558. 121 Am. St. Rep. 453; Howard v. Louisville Railway Co., 105 S. W. 932, 32 Ky. Law Rep. 309. Judgment affirmed. HALL et al. v. BARTRAM'S ADM'R et al. (Court of Appeals of Kentucky. Dec. 5, 1912.) TRUSTS (§ 44*)—ESTABLISHMENT-SUFFICIENCY OF EVIDENCE. In an action to establish a trust in land purchased by defendant's intestate at an execution sale, to satisfy a judgment against plaintiff's ancestor, evidence held to sustain a finding that the purchase was made for the purchaser's own benefit, and not in trust for the heirs of such ancestor. [Ed. Note. For other cases, see Trusts, Cent. Dig. §§ 66-68; Dec. Dig. § 44.*] Appeal from Circuit Court, Lawrence County. Action by Goldie Hall and others against John Bartram's administrator and others. From a judgment dismissing the petition, plaintiffs appeal. Affirmed. H. C. Sullivan and Stewart & Vinson, all of Louisa, for appellants. M. S. Burns, of Louisa, for appellees. LASSING, J. Samuel Frazier, a resident of Lawrence county, Ky., died some time prior to September, 1896, the owner of a small landed estate in said county. He left surviving him a widow and nine children. After his death one Peter Cline, who had years before procured a judgment against Samuel Frazier, instituted a suit in equity against his widow and heirs at law, in which he sought to have the land sold in satisfaction of his debt. Such proceedings were had that at the September, 1896, term of the Lawrence circuit court, a judgment was rendered adjudging to plaintiff a lien upon the land, maining after the homestead was set apart failed to bring a sum sufficient to satisfy plaintiff's debt, interest, and costs, and thereafter the court directed a sale of the homestead tract, subject to the widow's right of occupancy during her life; and in pursuance of this order of court the homestead tract was sold. These lands were purchased by one Lark Maynard, who afterwards assigned a two-thirds interest in his bid and purchase of each tract to John Bartram, and the remaining one-third interest to Elijah May. nard. John Bartram, by assignment, later became the owner of this one-third interest. The widow remained in possession of the homestead tract until her death, about the year 1908. There were living with her at the time of her death her son-in-law, Odd Hall, and his children. When the purchasers, W. H. and John Bartram, demanded possession of the homestead tract, Hall and his children declined to vacate, and they, together with certain others of the children of Samuel Frazier, set up claim to the land, alleging that the purchase of same by W. H. and John Bartram was made pursuant to an arrangement entered into by W. H. Bartram with the heirs at law of Samuel Frazier, deceased, whereby the said W. H. Bartram was to purchase the land, sold at commissioner's sale, and hold it for their benefit. They thereafter tendered to W. H. and John Bartram the money which they paid for said lands, with interest. This the said W. H. and John Bartram declined to accept. Thereupon Odd Hall, as next friend for his children, instituted a suit against W. H. and John Bartram and certain of the heirs at law of Samuel Frazier, whom he made defendants, and sought to have the purchase made by the Bartrams declared to be for the benefit of his children and the other heirs at law of Samuel Frazier, deceased. John Bartram in his answer alleged that he purchased the land for the benefit and protec tion of W. H. Bartram, and that he had no personal interest in the transaction. W. H. Bartram alleged in his pleading that, after the death of Samuel Frazier, he purchased the interest of six of the heirs of Samuel Frazier in their father's estate, and took from them title bonds or contracts of sale for their said interest; that, after he had made these purchases, Peter Cline undertook to subject the landed estate of Samuel Frazier to the satisfaction of a judgment, which he had procured against the said Frazier many years before; that, when the court directed the land sold in satisfaction of this judgment, he was compelled to, and did, be ically that there was no arrangement or agreement between him and the heirs, or any of them, whereby he was to become a bidder at the decretal sale of the land for their benefit. There are some facts and circumstances brought out in the evidence which tend to support the contention of appellants. The chief of these is a writing, signed by Lark Maynard either just before or immediately after he bid in this land. Said writing is as follows: "It is hereby understood that in the sale of the Frazier lands each heir shall pay Lark Maynard his part of ($376.00) three hundred and seventy-six dollars as it comes due, this Amt. being against Samuel Frazier's estate, there being nine shares estate. Feb. 15, 1897. [Signed] Lark Maynard." come a bidder upon the lands to the extent widow to a homestead interest in so much of his interest therein; and that, when Lark of the farm as the commissioners, appointMaynard conveyed to him a two-thirds inter-ed by the court for that purpose, set apart est in his bid and purchase, this represented to her. He and his brother testify emphathis six-ninths interest in the estate which he had bought from the heirs; and that the said Lark Maynard, in pursuance of an agreement and understanding had with the heirs prior to the sale, at the same time conveyed the remaining one-third of his purchase, representing the interest of the three remaining heirs, which he had not bought, to Elijah Maynard. He denied that he had made any arrangement or agreement with the heirs, or any of them, whereby the purchase which he made was to inure to their benefit, or that the land was to be held by him for their benefit, with the understanding that he was to be repaid the purchase price, with interest. Upon this issue proof was taken and the case submitted for judgment. Upon consideration, the chancellor was of opinion that the plaintiffs had failed to show the existence of any trust arrangement be tween themselves and W. H. Bartram, and he thereupon entered a judgment dismissing their petition. The plaintiffs appeal, and seek a reversal of the finding of the chancellor. Now, it is insisted that, inasmuch as this writing was prepared under the supervision of W. H. Bartram, it was a recognition on his part that the land, when bid in by Maynard acting as his agent, was to be held by him for the benefit of the nine children. Said writing is susceptible of said construcThe entire record of the suit of Cline tion, but, on the other hand, it is likewise against the heirs and creditors of Samuel susceptible of a construction entirely harFrazier, deceased, is copied into and made monious with the theory of appellees. At a part of this record. From an examination that time there were nine heirs. Six had of that record it appears that in the excep- sold their interest to their uncle, W. H. Bartions filed to the report of sale by W., H. tram. The other three had not disposed of Bartram he alleged that he was the owner their interest. Bartram was not proposing by purchase of six interests in the estate of to buy, except to protect himself. Maynard Samuel Frazier, and in said pleading he was to bid in the property and execute set out the names of the heirs whose inter- bond for the purchase price; and the purests he had purchased. All of these heirs pose of this agreement was to show that in were at the time parties to the suit. So bidding Maynard was not acting for himself, that it cannot be said that the claim now as- but for some one else. Bartram stood in the serted by W. H. Bartram is the result of place of and represented six of the heirs, an afterthought. By this pleading it is and, of course, stood answerable or responclearly shown that, before the reports of sale sible to Maynard for six-ninths of the purwere confirmed or deeds made, he was as- chase price, and the other three heirs were serting title to six-ninths of this land, un-responsible, each for his one-ninth. Evider and by virtue of his purchase, from dently this latter arrangement was carried the heirs themselves. The record further shows that, although he had possession of and held all of the land except the homestead interest from the time of his purchase until after the death of the widow, no claim of ownership was ever asserted by any of the heirs at law of Samuel Frazier; nor was there any evidence whatever to the effect that at any time from 1897, when this land was openly and publicly sold to W. H. Bartram, through his agent, did any of the heirs at law of Samuel Frazier offer to repay to him the purchase price, with interest, or any part thereof, or do or say anything in the least indicative of a claim or recognition of a right on the part of any of the heirs of Samuel Frazier, deceased, to any interest in this property. He recognized from the out, for Maynard thereafter transferred onethird of his bid and purchase to Elijah Maynard, who had married one of the Frazier girls, and had paid to Lark Maynard the oneninth interest representing his wife's portion, and the interest of the other two children, who had not sold to W. H. Bartram. Now, if, as contended by appellants, W. H. Bartram had entered into an arrangement with his nephew and nieces whereby he was to purchase and hold this land, as trustee for them, we are at a loss to understand why he took title to only two-thirds, and left three of the heirs to arrange for themselves. Such conduct is inconsistent with the theory advanced by appellants. When all of the facts and circumstances are considered in connection with the con ten years following the sale of this land, we | executor had no power to convey and pass are of opinion that the chancellor was justified in holding that the purchase made by appellees was for their own benefit, and that no trust arrangement or agreement existed between them and any of the heirs at law of Samuel Frazier, deceased. Judgment affirmed. 1. WILLS (§ 88*)—INEFFECTIVE_DEED. Where a testator attempted to divide his property during his life, and executed instruments, using the common terms of conveyancing and containing granting and habendum clauses, but did not acknowledge these instruments or deliver them, and they were treated by his children as ineffectual deeds, they must be accepted as deeds ineffectual to pass any interest because not acknowledged or delivered, for an instrument is not a will if it attempts to pass an interest in the life of the maker and is operative before his death. title to the fee to said land; and that he should not, on this account, be required to accept the deed so tendered to him. In his reply, the executor admitted that the decedent, in his lifetime, attempted to divide his landed estate among his children, and convey to each the portion thereof which he desired him to have; that he, in furtherance of this desire, executed and delivered to one of his children, a daughter, a deed to one portion of his land; but that, although he prepared deeds to his two sons, they were never acknowledged by him or delivered to his sons; and that he died while they were in this condition. He pleaded further that the children and heirs at law of said decedent had never attempted to take or hold the lands under said incomplete writings; and that they were not then laying claim to said lands in any manner, except under and by virtue of the will of decedent, which had been probated and under which the executor had made the sale. The incompleted deeds had [Ed. Note. For other cases, see Wills, Cent. been filed in a suit between the two sons and Dig. 88 208-217; Dec. Dig. § 88.*] 2. EXECUTORS AND ADMINISTRATORS (§ 138*) -CONSTRUCTION-POWERS OF EXECUTOR. Where testator's will recited that he desired his executor to sell his home place and invest the proceeds in good interest-bearing bonds or real estate notes, and that he empowered him to execute a deed for the sale of such real estate, the executor had ample power to sell and to convey title to a purchaser. [Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 560-566, 568-575; Dec. Dig. § 138.*] Appeal from Circuit Court, Simpson County. Action by Lewis D. Scott's executor against D. W. C. Smith. From a judgment for plaintiff, defendant appeals. Affirmed. L. B. Finn, of Franklin, for appellant. Roark & Finn and G. T. Finn, all of Franklin, for appellee. LASSING, J. Lewis D. Scott died testate, a resident of Simpson county, Ky., the owner of certain real estate. By his will, which was duly probated, he directed his executor to sell said real estate. In pursuance of said authority, Dave Scott, whom he named as executor, sold the land to D. W. C. Smith and tendered him a general warranty deed therefor. Conceiving that there was a defect in the title, Smith declined to accept the deed. Thereupon the executor instituted a suit to compel him to do so. [1] The defendant by way of defense, while admitting that the title to said property was perfect in the decedent, pleaded that the decedent in his lifetime had executed a writing whereby he conveyed, or attempted to convey, the land in controversy to one of his children for life, with remainder to said child's children, if he had any living at his death, and, if not, then the land should revert to his estate; that, by reason of said writing, the From their sister, in which they attempted to have the deed made to her by their father set aside. The record in that suit was searched for said papers, but they had been lost or misplaced; and, there being no copies extant, neither the original papers nor copies could be filed with the record in this case. the evidence heard, it is clear that these writings were intended as deeds. The draftsman, in the preparation, had used language in the caption, granting, and habendum clauses, commonly used in conveyancing, and, while the papers were each signed by decedent, they were never acknowledged or delivered, and at his death were found at his home among his private papers. Since the said papers were neither acknowledged nor delivered, they cannot operate as deeds; and, unless they can be treated as wills, they cannot be regarded as having any binding force or effect. In Ward v. Ward, 104 Ky. 857, 48 S. W. 411, 20 Ky. Law Rep. 986, the distinguishing characteristic between a will and a deed is pointed out to be that, in a deed some estate vests in the grantee during the life of the grantor, whereas under a will no estate is granted or vests until after the death of the testator. In Eckler v. Robinson, 96 S. W. 845, 29 Ky. Law Rep. 1038, the court, speaking through Chief Justice Hobson, said: "The rule is that, if a paper passes no interest in the lifetime of the maker, whatever may be its form, if it is operative only upon his death, it is a will and to be effective must be probated. On the other hand, the object of all construction is to arrive at the intention of the parties and their intention, where it is apparent on the face of the papers, will be carried into effect if it can be fairly done under its terms." Accepting |