ing that that ruling is inconsistent with the distribution, the persons interested having notice of the application for such allowance." In the course of its opinion in the Thirlwell Case the court said: "Appellee insists that under these acts he has a right to have his counsel paid out of the general fund; yet his counsel in their argument concede that several of the distributees thus sought to be charged with fees were indifferent to the result, if indeed they were not opposed, as some of them certainly were, to the efforts made by plaintiff to surcharge the settlement which involved the principal amount of labor done by his counsel in the case. We construe these acts as applying only to such parties as are not represented in the case by attorneys seSo far as those parties are concerned who were not represented by attorneys selected by themselves, we think the services rendered by the counsel for the appellee in procuring a sale of the real estate and in surcharging the settlement fall within the provisions of the statutes, supra, and for such services they should be paid out of the common fund." In construing section 489, in Taylor v. Minor, lessened by the result of the will contest, and 90 Ky. 548, 14 S. W. 545, we said: "Where, the father's gain was, to some extent, their loss. however, one person has prosecuted an action at extra expense and trouble, and the recovery inures equally to the benefit of others, the chancellor may, in the exercise of his power to compel parties to do equity, require them, as a condition to sharing in it, to contribute their proper proportion of the ex mon fund." In other words, it was held that the recovery should bear its own expenses, and the attorney's fees of all persons who participated in the recovery, except those who specially employed counsel to represent them, should be paid out of the fund recovered. The pioneer case upon this subject in this state is Thirlwell's Adm'r v. Campbell, Guardian, 11 Bush, 163. That was an action to sell land owned jointly, and involved the trial of exceptions to the report of settlement of a personal representative, being in the last-penses, and may order it paid out of the comnamed respect similar to the case at bar. All the parties to the action desired a sale of the land, and three of the defendants employed counsel of their own, who represented them throughout the litigation, while four of the parties were not represented by counsel. As to the exceptions to the report of settlement, all of these parties were either indifferent or opposed to the exceptions. The court rested its decision requiring contribution from those not represented by counsel, upon the act of March 1, 1860 (Laws 1859-60, c. 1049), as amended in 1867 (Laws 1867-68, c. 579), which related to contribution between legatees, devisees, and distributees, where one had prosecuted an action for the benefit of others. The act of 1860 above referred to is substantially reproduced as section 489 of the Kentucky Statutes, which reads as follows: "In actions for the settlement of estates, or for the recovery of money or property held in joint tenancy, coparcenary, or as tenants in common, if it shall be made to appear that one or more of the legatees, devisees, distributees or parties in interest have prosecuted for the benefit of others interested with themselves, and have been at trouble and expense in conducting the same, it shall be the duty of the court to allow such person or persons reasonable compensation for such trouble, and for necessary expenses, in addition to the fees and costs; said allowance to It is insisted, however, that since John R. Barber, through his children, will lose more than he will himself gain in the will contest, he is not within the meaning of the statute, and should not be required to contribute. We can see no difference, however, in principle between the Botto Case and the case at bar. In the Botto Case, W. M. Botto, and his mother, Cloteal Botto, were the principal beneficiaries of certain codicils, which were finally invalidated, and were represented throughout the entire litigation by counsel of their selection; and they were beneficiaries, in a smaller way, under the will as it was finally established. It was contended there, as here, that the statute did not apply to them, and that they should not be required to contribute to the fees of counsel who, against their wish, had succeeded in setting aside the fraudulent codicils, and thereby increasing the general estate. As above stated, the Bottos were represented by counsel in their effort to sustain those codicils. In this respect their case was stronger than Barber's Case. Nevertheless, they were required to contribute to the payment of coun at some length the decisions of this court in consequence of such a loss is not easily bearing upon section 489, and the question discoverable. If the allowance in this case generally, the court there said: "These cases was for services in a suit to recover the are not in conflict with Thirlwell's Adm'r, trust property from a stranger who had unetc., v. Campbell's Guardian, etc., 74 Ky. [11 lawfully taken it into his possession, there Bush] 163, as in that case all the parties to could be no doubt that equity would require the litigation were represented by counsel that it should be paid from the trust fund. who participated therein. The court in that The fact that the wrongdoers were creditors case simply held that one jointly interested of the estate ought not to shift the burden in a recovery could not be compelled to pay from the trust fund to that portion of it counsel employed by others, when he had which the creditors were entitled to receive himself employed counsel to represent what on a pro rata distribution of it. In either appeared to be his interest. It seems to us case the services were for the benefit of the that there can be no doubt in this case that estate, and it should pay for them." We all the colegatees in the original will of Mrs. conclude, therefore, that the case at bar Florence Irvine Botto equally shared in the comes within the principle announced in the benefits which accrued from the litigation Botto Case, and that John R. Barber's share instituted by the appellants for their com- of the recovery should contribute to the paymon benefit. It is true that the contest of ment of appellant's counsel fees for effectthe codicils was inimical to the pecuniary in- ing the recovery. So much of the former terest of the two Bottos, W. M. and Colteal opinion found on pages 378 and 379 of 148 B., who were the principal beneficiaries in Ky., on pages 1127 and 1128 of 146 S. W., the fraudulent codicils, and who were rep- as holds otherwise, is withdrawn, and that resented in the entire litigation by counsel opinion is modified to the extent above indiof their own selection. But we cannot shut cated. our eyes to the fact that these defendants occupied a dual attitude. They were large legatees under the original will, as well as the chief beneficiaries of the alleged fraudulent codicils, to invalidate which all of the costs and expenses were incurred; and we are unable to see any reason why they should be exempted from the burden cast upon the legatees, especially as they were the chief, if not the only, upholders of these fraudulent codicils." 117 Ky. 972, 80 S. W. 180, 25 Ky. Law Rep. 2137. [4] It is suggested in the briefs that this court now fix the fees of appellant's counsel. That question, however, should be tried by the lower court upon preparation duly made. Counsel fees should be fixed upon evidence taken, as in other cases; and, as the fee in this case is to be measured by the recovery when considered in connection with the services rendered, the precise amount of the reIn the reccovery should be ascertained. ord before us counsel vary widely in their estimates as to the result of appellant's exertions. So much of the judgment of the circuit court as declined to charge Lena Barber with interest upon any portion of her note after August 15, 1904, is reversed, so much of that judgment as declined to charge John R. Barber with any portion of appellant's counsel fees is reversed, and the cause is remanded for further proceedings consistent with this opinion. KENTUCKY COAL & TIMBER DEVELOP- Counsel for Barber, however, insist that the decision in the Botto Case was rested upon the fact that the Bottos were guilty of fraud, in that they were the chief, if not the only, beneficiaries and upholders of the fraudulent codicils, and therefore cast upon the contestants the burden of undoing their fraudulent acts. While there is some language used in the opinion giving color to that claim, a careful reading of the opinion will show that the decision really rests upon the broader ground that the recovered fund must pay its own attorney's fees, and, as the Bottos were participants in that recovery, the rule applied. This is easily apparent from the following quotation taken by the court from Weed's Estate, Appeal of Mc-1. Ginnis, 163 Pa. 595, 30 Atl. 272, to wit: "It is argued, however, that they were losers by the litigation, and therefore they are not within the rule recognized and enforced in Trustees v. Greenough, 105 U. S. 527, 26 L. Ed. 1157, and kindred cases. But in what sense were they losers? In the same that he is a loser who fails to acquire what he has no right to, or who, having unlawfully obtained possession of the property of another, is compelled to restore it to the ownThe equity which the wrongdoer has ers. APPEAL AND ERROR (§ 447*)—INJUNCTION UTES. plication to the Court of Appeals for the conCiv. Code Prac. & 747, authorizing an aptinuance of an injunction pending appeal, contemplates that the circuit court in the first instance shall decide whether the injunction shall be so continued together with the terms on which it may be continued, and then that either party dissatisfied with the ruling may have the action of the circuit court or judge reviewed by the Court of Appeals or a judge thereof in vacation. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2207; Dec. Dig. § 447.*] For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes On an application to the Court of Appeals to review an order continuing or refusing to continue an injunction pending appeal, the party applying for review must bring to the appellate court a transcript of all that part of the record appertaining to the injunction, so as to enable the court to intelligently exercise its discretion. 2. APPEAL AND ERROR (§ 597*)—INJUNCTION |isting immediately before the entry of the PENDING APPEAL-REVIEW. judgment appealed from shall be maintained, and the lower court shall so provide in the judgment upon the request of either party. If, at any time, upon reasonable notice to the party affected, it be made to appear that the sureties upon the bond required in the court below are insufficient, the Court of Appeals, or a judge thereof in vacation, may set aside the order suspending, modifying or unless sufficient surety be furnished by a day continuing the injunction pending the appeal, fixed by the court or judge.” [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2627-2638; Dec. Dig. 8 597.*] 3. Appeal and ERROR (§ 456*)—INJUNCTION -CONTINUANCE PENDING APPEAL. Where an appeal in a suit to enjoin the cutting of timber involved difficult questions of law, an injunction granted by the trial court, but dissolved as to a part of the land in controversy, would be continued pending appeal; it appearing that no substantial harm would result therefrom. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2215; Dec. Dig. § 456.*] Appeal from Circuit Court, Breathitt County. Suit by the Kentucky Coal & Timber Development Company against the Carroll Hardwood Lumber Company. A judgment was rendered in favor of plaintiff for part only of the relief demanded, and plaintiff applies for the continuance of an injunction pending appeal. Granted. Hazelrigg & Hazelrigg, of Frankfort, and J. J. C. Bach and Grannis Bach, both of Jackson, for appellant. O'Rear & Williams and McQuown & Beckham, all of Frankfort, and Geo. Fleenor, O. H. Pollard, and Chester Gourley, all of Jackson, for appellee. The Kentucky Coal & Timber Development Company brought this suit against the Carroll Hardwood Lumber Company and others, enjoining them from cutting timber from certain lands alleged in their petition to be the property of the plaintiff. An answer was filed by the Carroll Hardwood Lumber Company denying the plaintiff's title to the land, and asserting title in it thereto. An injunction was taken out by the plaintiff. On the trial of the case before a jury there was a verdict and judgment in favor of the plaintiff as to a part of the land and in favor of the defendant as to the remainder of it, and the court entered an order dissolving the injunction as to the lands which were adjudged to the defendant. The plaintiff excepted and prayed an appeal, and on its motion the injunction granted in the action was continued in force for a period of 40 days pending the appeal. A motion has been entered before us within 20 days to continue the injunction in force pending the appeal. When this motion was entered, only a transcript of the pleadings and the orders made in the case had been filed, and since then and within the 40 days the appellant has tendered and moved to file a copy of the transcript of the evidence heard on the trial. The circuit court in the order which it entered did not follow the statute as we construe it. Under the statute, if the ends of justice so require, the court which makes the judgment dissolving an injunction may in its discretion make an order continuing the in HOBSON, C. J. [1] Section 747 of the Code is as follows: "An appeal shall not stay proceedings on the judgment unless a supersedeas be issued. The provisions of the Civil Code concerning supersedeas on appeals shall not apply to judgments granting, modifying, perpetuating or dissolving injunctions. When an appeal shall be taken from any judgment granting, modifying, perpetuating or dissolving any injunction, the court which rendered the judgment may, in its discretion, if the ends of justice so require, at the time the appeal is taken, make an order suspend-junction in force during the pendency of the ing, modifying or continuing the injunction during the pendency of the appeal, upon such terms as to bond or otherwise as may be proper for the security of the rights of the opposite party. Either party, within twenty days after the entry of such order, may take a transcript of the record, or all parts thereof appertaining to the injunction, and upon reasonable notice in writing to the opposite party, move the Court of Appeals, or, if in vacation, any judge thereof, to revise the order of the lower court, and finally determine how far the injunction shall be suspended, modified or continued pending the appeal. Pending such application to the Court of Appeals or judge thereof, but not longer than for twenty days, the status ex appeal upon such terms as to bond or otherwise as may be proper, and when the court has entered such an order, or has refused to so order, either party within 20 days after the entry of the order which the court makes may take a transcript of the record or all parts thereof appertaining to the injunction, and upon reasonable notice in writing to the opposite party move this court, or, in vacation, any judge thereof, to revise the order of the lower court, and finally determine how far the injunction shall be continued pending the appeal. In other words, the intention of the statute is that the circuit court shall decide in the first place whether the injunction shall be continued during the appeal, and on what terms it shall be continued; and then either party dissatisfied with the ruling of the circuit judge may have his action revised by this court or a judge thereof in vacation. It is not the intention of the statute that this court should be called upon in the first instance to pass on the question whether the injunction should be continued in force during the appeal. The circuit judge did not follow the statute in making an order continuing the injunction in force for 40 days. But this error will not prejudice the rights of the parties to have a proper order made in this court; timely application having been made here. to exercise ordinary care to perform such duty, the master is liable, though the employé injured is a foreman. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 449-474; Dec. Dig. § 190.*] 3. MASTER AND SERVANT (8 219*)-INJURY TO SERVANT-ASSUMPTION OF RISK. place a belt upon the pulley of a cracker mill Where a factory employé attempted to while the machinery was in motion, though he had been warned not to do so and the defects which made his action dangerous were obvious and the danger fully appreciated by him, he assumed the risk of being injured. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 610-624; Dec. Dig. § 219.*] Appeal from Circuit Court, Sebastian County; Daniel Hon, Judge. Action by W. W. Wortz against the Ft. Smith Biscuit Company. From a judgment for defendant on a directed verdict, plaintiff appeals. Affirmed. [2] It will be observed that, under the statute, the party who brings the appeal here must bring "a transcript of the record or all parts thereof appertaining to the injunction." While on a motion of this sort the court will not try the merits of the controversy, the statute must be followed in order that the court may intelligently pass on the motion. Read & McDonough, of Ft. Smith, for apThe purpose of the statute is to give the court a discretion as to continuing the in- pellant. Ben Cravens and John H. Vaughn, junction in force, and it must have enough of both of Ft. Smith, C. B. Fisher, and A. L the record before it to show that the plain-Berger, of Kansas City, for appellee. tiff at least had probable grounds for the taking out of the injunction. It was not the intention of the statute in a case like this that the injunction should be continued in force where the appeal was prosecuted simply for delay, and the plaintiff's case was wholly without semblance of merit. [3] The plaintiff's motion to file the transcript of the evidence is sustained, and, it appearing therefrom that the record presents not a few difficult questions of law, the court will not on this motion consider or pass upon the merits of the case, and, in order that the rights of the parties may be preserved until the final hearing of the action, the injunc tion will be continued in force pending the appeal. No substantial harm can come to either of the parties from this if both of them will co-operate with the court in bring ing the case to a speedy conclusion, and, if this is not done, the court will make such further order as equity requires. Motion to file the transcript and to continue the injunction in force sustained. A directed verdict for defendant is proper only when, under the evidence and all reasonable inferences deducible therefrom, the plaintiff is not in law entitled to recover. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 332, 333, 338-341, 365; Dec. Dig. § 139.*] 2. MASTER AND SERVANT (§ 190*)—INJURY TO SERVANT-DEFECTIVE APPLIANCES. Where a duty rests on the manager of a factory to discover and remedy defects in the machinery, and injury results from his failure FRAUENTHAL, J. This is an action instituted by Walter W. Wortz, the plaintiff below, to recover damages for an injury which he received while in defendant's employ, and which he alleged was due to its negligence. The defendant denied that the injury was due to any negligence upon its part and pleaded as a bar to any recovery the plaintiff's assumption of the risk and his own negligence contributing to its cause. After the plaintiff had introduced his evidence and rested his case, the court directed the jury to return a verdict in favor of defendant, which was done. From this action of the court the plaintiff has prosecuted this appeal. [1] In reviewing this ruling of the court directing a verdict, the evidence adduced upon the part of the plaintiff must be considered in the light most favorable to his cause of action. If under that evidence, however, is deducible therefrom, the plaintiff is not with every reasonable inference of fact that under the law entitled to a recovery, then the ruling made by the court is correct. The evidence adduced upon the part of the plaintiff consisted of the testimony of two witnesses, the plaintiff himself and a witness who was not present when the injury was received but who had special knowledge as to the character of the machinery at which plaintiff was injured, and as to whether it was in a reasonably safe condition. The case thus made by this testimony is this: The defendant is a corporation located at Ft. Smith, and is engaged in the manufacture of crackers, fancy cakes, cracker meal, and other products of like cha racter. In this factory the defendant has a number of machines, amongst which is one known as a "cracker mill," which is used for | smaller defects in it himself and reporting to the purpose of grinding crackers into meal. the manager larger defects which he could This machine was located on the lower floor not fix. He had authority to employ and disof the building, and consisted of a hopper, charge servants engaged at the factory, but burr, and discs, in which the crackers were was himself subject to the orders of the mancrushed. It was situated upon a platform ager of the company. He testified that he about eight inches from the floor, and was had noticed for some time prior to the indriven by a belt four inches in width, at- jury the broken condition of the Lurr, and tached to a pulley on said machine, and to called the manager's attention to it, who had a larger pulley on an overhead shaft, about promised to repair it; but he continued to eight feet above the machine. On the occa- work at the machine for a long time after sion of the injury, the plaintiff was directed that without complaint and, as we think, by defendant's manager to grind some crack-without any reliance upon any promise to er meal, and he proceeded to this machine repair. It also appears that he was well acto perform that duty. He found that the belt was off, and it became necessary, in order to start the machine, to put the belt upon said pulleys. To do this, the plaintiff called to his assistance a girl employed at the factory, who held the belt upon the lower pulley while he climbed upon a stepladder to put the belt on the top pulley while the same was in motion. The plaintiff climbed up the ladder and put the belt over the top pulley while in motion, and then proceeded down the ladder while the belt and machinery were in motion. In making the revolutions, the belt jumped off the pulleys, and the lower end was thereby whirled about. As plaintiff was in the act of stepping from the ladder to the floor, this end of the belt caught him around the arm and whirled him around the shaft, breaking his right arm so as to necessitate its amputation, and injuring him on other parts of his body. It appears that the burr or discs had become broken, probably a year or more before the accident, and in order to grind the crackers it was necessary to tighten them up to an extent which would somewhat choke the machine while running, and thus tend to throw the belt from the pulleys; that the platform upon which the machine stood had become somewhat shaky and, as plaintiff described it, "wobbly" to some extent, and thereby also tended to throw the belt off the pulleys. It also appears that upon the line shaft to which the top pulley was attached there was also attached a smaller pulley, about two or three inches from the larger pulley, and that from the journal of the larger pulley there extended some set screws for a distance of an inch or more. quainted with the fact that the stand upon which the machine was placed was somewhat shaky long prior to the accident. In placing the belt upon the top pulley, the plaintiff was a foot or so from it, and reached his arm over the smaller pulley upon the shaft, located two or three inches from it, and this and the obtruding set screws were directly in front of him as he faced them. The expert witness introduced by plaintiff testified: "When standing on the floor I could see this line shaft and the pulleys and the set screws; they were open to common observation. Anybody as a stranger looking at it could see it, and it was easily discernible." He also testified that if one had gone up to the place where these pulleys were located on the shaft as many as six times to put the belt on, with the machine in motion, the pulley and set screws were very easily discovered. He said: "I cannot conceive of anybody going in 12 inches of the line shaft and not being able to see the set screws and collars; he is bound to see them." It further appears from the testimony of the plaintiff that he had put the belt upon the pulley in the same manner as upon this occasion at least six times prior to the ac cident; that he had learned and knew that in placing the belt on the pulleys while in motion it was liable to fly off, and had done so several times before wrapping itself around the shaft, with its lower end whirling around, endangering those near it. He testified that defendant's manager had ordered him not to put the belt on the pulleys while in motion, but to stop the machinery and put the belt on the pulleys while at rest. He also testified that this order was often disregarded with the knowledge of the manager. He testified further, however, that he knew it was dangerous to put on the belt without stopping the machinery. The plaintiff was 27 years old, and had been engaged for a number of years in working with machinery similar to that used in defendant's factory. His father was president and manager of defendant's company, In his complaint, the acts of negligence atand plaintiff had been working at its factory tributed by the plaintiff to the defendant for about four years prior to the injury. He consisted: (1) In permitting the cracker mill began as an ordinary employé, and had been to remain out of repair, and in a defective advanced until he was made foreman, about condition, causing the belt to be thrown from a year and a half before the injury, and the pulleys; and (2) in placing the two pulcontinued in that position up to the time of leys upon the shaft so close together with the injury. He was not a machinist, but it the set screws protruding therefrom, so was his duty as foreman to look after the that when the belt, which was wider than |