CINCINNATI, N. O. & T. P. RY. CO. (Court of Appeals of Kentucky. Dec. 7, 1926.) 1. Negligence 119(7)-Plaintiff is confined in his proof to negligence specified, Where plaintiff specifies negligence causing injury, he is confined in his proof to such negligence, and could not recover upon any other ground. feet from the nearer rail. Only the switch stands used in connection with the track from the main line to the roundhouse are equipped with lanterns. According to appellee there were lamps on some of the switches on the lead tracks. On the night of the accident appellee went to work at 10 p m. Shortly after midnight he was engaged in working up a freight train that had come in from the south. A cut of freight cars was being pushed south by the 2. Trial 251(1)-Instructions must conform switch engine on the lead track. Appellee's to pleadings, Instructions submitting an issue not presented in pleadings is unauthorized, since instructions must conform to pleadings. 3. Master and servant 291 (4)—Instruction submitting issue whether switch stand was so near track as to endanger trainmen held unauthorized where pleadings alleged failure to light switch stand (federal Employers' Liability Act [U. S. Comp. St. §§ 8657-8665]). In suit by railroad switchman under federal Employers' Liability Act (U. S. Comp. St. 88 8657-8665), for injuries alleged to have been caused by railroad company's negligence in having switch stand unlighted, instruction submitting issue whether switch stand was so near to track as to endanger lives of trainmen riding on side of cars held reversible error as unau thorized by pleading, since plaintiff did not allege that. Appeal from Circuit Court, Boyle County. Action by Edward Heinz against the Cincinnati, New Orleans & Texas Pacific Railway Company. From a judgment for plaintiff, de fendant appeals. Reversed and remanded. Nelson D. Rodes and Chas. H. Rodes, both of Danville, and Edward Colston, of Cincinnati, Ohio, for appellant. Lewis L. Walker, of Lancaster, and Henry Jackson, of Danville, for appellee. CLAY, J. This is an appeal from a $2,500 judgment for personal injuries rendered in an action brought under the federal Employers' Liability Act (U. S. Comp. St. §§ 86578665). The facts are these: In January, 1923, appellee was a member of appellant's switching crew in its yards at Oakdale, Tenn. He was 40 years of age, 5 feet 10 inches high, and had been in the railroad business for a number of years. Previous to the accident he had worked for appellant as conductor and also as night yardmaster at Danville. At the time of the accident he had been working at Oakdale for about nine days. In the Oakdale yards there are many switch tracks and switches, and each switch has a switch stand. These switch stands, including the one with which appellee claims to have come in contact, are 24 inches high without a lantern and 27 inches high with a lantern, and stand 31⁄2 foreman instructed him to cut off the last car and ride it into the local switch track. To accomplish this he got on the east side of the north end of the car furthest south. Attached to the car was a cut-off lever, which permits the couplers to separate when the proper switch track is reached. While standing with his left foot in the stirrup and his right foot either in the stirrup or on the brace of the stirrup, and holding with his left hand to the second grabiron from the bottom, which is about 4 feet higher than the stirrup, he pushed the cut-off lever up from below in order to make the cut, and rode in this position for possibly five or ten car lengths. Appellee claims that at the time he received the signal from his foreman the car had passed him, and it was necessary for him to grab hold of the end of the car in such a position as to require him to push up the lever instead of pulling it up as he could have done had he gotten on the car in time. He also claims that when he pushed up the lever it ought to have released the brake automatically, but there was a loose chain in the connec tion, and it was necessary for him to hold up the lever until the brake released the car. For this reason he was compelled to remain in the position which he took when he got on the car. While standing in this position he says that his rectum came in contact with an unlighted switch stand. The top of the switch stand, which was about an inch square, did not penetrate his rectum, but caused his clothes to be jammed up there. He was not knocked from the car, but rode the car through the switch. When he was struck he thought both his back and neck were broken. It felt to him like the blood was running down both legs. He could feel it just as hot as anything, but of course it was not there. He suffered a great deal from the injury. He continued in the performance of his duties during the night, and was compelled to work from 6:30 a. m. the next morning until 2:30 p. m. Immediately after the accident he walked back about 15 car lengths and had two of the crew examine him. left the hospital a year and a half before he testified, and had not improved any since. Mr. W. F. DeLong testified that he knew appellee prior to January 28, 1923, and what little he saw of him he looked like a man in good health. In February or March, 1924, appellee He (288 S.W.) was employed as his assistant at a tobacco warehouse, and he was then physically unfit for labor. On the other hand, the testimony for appellant is in substance as follows: Dr. Galion, the company's physician at Oakdale, examined appellee's rectum on Monday, the day following the injury. He observed no evidence of any injury of any kind, and if appellee had been injured as claimed, there would have been a manifestation of it on the buttocks that protect the rectum. He did not examine appellee internally. Dr. Ransohoff, who examined appellee in Cincinnati on February 21, 1923, and Dr. Little, who made X-ray photographs at the time, testified that they could find no evidence of the injury which appellee claims was sustained at Oakdale in the month of April, 1923. Dr. Hanes, a distinguished surgeon and specialist in rectal troubles, who examined appellee on April 11, 1923, and treated him thereafter for about six months at the Norton Infirmary, diagnosed appellee's trouble as movable coccyx-diseased condition of the terminal bowel.. He examined appellee closely and was unable to discover any evidence of a physical injury. Dr. W. E. Gardner, who examined appellee on August 5, 1923, at the request of Dr. Hanes, states that he could find no evidence of any injury to the rectum. Dr. Fayette Dunlap testified that the accident could not have happened the way claimed by appellee without marked evidence of the injury itself. Appellant's trainmaster testified that the proper position for a switchman to take while riding a freight car was to place both feet in the stirrup, hold to the third grabiron from the bottom with his left hand, and operate the cut-off lever with his right hand. The two switchmen who examined appellee immediately after the accident both testified that they ing up the lever for that purpose, the petition contains the following averments: "And while so engaged, on the side of the car, he was struck by the staff on the switch stand, which staff ought to have had a light on it, but which was unlighted, and there was no light on said staff, and the defendants negligently and carelessly failed to have a light upon said staff, and by reason of its being unlighted while on the side of said car for said purpose the plaintiff was unable to discover it, and and while said car was moving he struck said staff, and said staff struck him, and he was injured. Plaintiff further states that by reason of the carelessness and negligence of the defendants in failing to have said staff lighted, the said staff struck him in the back and rectum and spine with great force, and his rectum and spine, and legs and thighs, hips and back, were greatly injured thereby." etc. In addition to instructions on the measure of damages, contributory negligence, assumed risk, etc., the court gave the following instruc tion: "No. 1. If you believe from the evidence in this case the plaintiff, Edward Hines, was employed in interstate commerce and the defendant, Cincinnati, New Orleans & Texas Pacific Railway Company, was engaged in interstate commerce, and that plaintiff was in the line of his duty at the time of his alleged injuries, if any, on about January 28, 1923, and that the defendant, Cincinnati, New Orleans & Texas ed a switch stand in its yard where plaintiff Pacific Railway Company, negligently maintainwas working in such close proximity to the car on which he was riding so as to cause it not to be a reasonably safe place to work and as to endanger his being struck while riding on said car in performing his duty as switchman, and by reason of said negligence, if any, in so maintaining said switch stand the plaintiff was struck and thereby injured, you will find for plaintiff; unless you so believe, from the evi dence, you will find for the defendant." [1-3] It is the rule in this state that the injured party may prove any act of negligence under a petition pleading negligence in gen looked at his rectum, and saw no evidence of any bruise, cuts, or blood or anything of that kind. Two or three witnesses stated that it was physically impossible for a man to get his rectum down so low that he could col-eral terms, but where he specifies the neglilide with a switch stand, and that, if the switchman was holding the cut-off lever up at the time, his rectum would clear the switch stand at least 21 inches. There was also evidence by trainmen, who had made a test of the matter, that it was physically impossible for a man to raise the cut-off lever if he was hanging from the second grabiron of the ladder, but that he would have to be higher up on the ladder in order for his arm to be in a position to enable him to lift the lever. There was evidence that appellant was engaged and appellee was employed in interstate commerce at the time of his injury. After alleging that it was usual and customary and was the duty of defendant to have and maintain a light on the switch stand at night, and that he was on the side of the car for the purpose of cutting the car off and switching it to another train, and was engaged in hold gence complained of he is confined in his proof to such negligence and cannot recover upon any other ground. It is also the rule that instructions should conform to the pleadings, and that an instruction submitting an issue not presented in the pleadings is unauthorized. Lexington Ry. Co. v. Britton, 130 Ky. 676, 114 S. W. 295; Daniel Boone Coal Co. v. Turner, 181 Ky. 756, 205 S. W. 931. Here the petition did not allege that the switch stand was so near to the track as to endanger the lives of trainmen riding on the side of the cars, but alleged only that the switch stand was unlighted and by reason thereof appellee was injured. As the court did not instruct on the last issue, but submitted only the issue first mentioned, it is at once apparent that the instruction submitted to the jury an issue not made by the pleadings. That this was error there can be no doubt. This conclusion makes it unnecessary to de-, the facts are stated being reported in 211 termine whether, if the negligence submitted Ky. 315, 277 S. W. 272. On the second trial had been properly pleaded, the evidence was sufficient to take the case to the jury or sustain the verdict, or to decide any other questions raised on the appeal. Judgment reversed, and cause remanded for a new trial consistent with this opinion. LOUISVILLE & N. R. Co. v. CLARKE. (Court of Appeals of Kentucky. Dec. 3. 1926.) 1. Master and servant 264 (7)-Evidence of fellow servant's negligence in raising end of trestle held admissible under allegation that he negligently knocked it against plaintiff. In employee's action against railroad for injuries, evidence of fellow servant's negligence in raising end of trestle before ascertaining whether plaintiff had taken hold of the other end held admissible under allegation that such fellow servant negligently turned over, pushed onto, and knocked against plaintiff a large heavy trestle. 4. Damages 132(6)-$10,000 held not excessive for injury to leg incapacitating 43 year old man, who earned $6.40 a day, from work. $10,000 held not excessive for injury to strong, vigorous man 43 years old, earning $6.40 a day, who was rendered unable to work and whose leg became practically useless as result of ulcers produced by injury. Appeal from Circuit Court, Nelson County. Action by Alfred Clarke against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed. Woodward, Warfield & Hobson, Ashby M. Warren, and James P. Hamilton, all of Louisville, and Kelley & Kelley, of Bardstown, for appellant. there was a verdict and judgment for ap pellee for $10,000, to reverse which this ap peal is prosecuted. Upon the return of the case to the court below it was by stipulation agreed that appellant and appellee were engaged in interstate commerce at the time appellee received the injury complained of in his petition. For a reversal of the judgment appellant relies on the following grounds: (1) The court erred in overruling appellant's motion for a peremptory instruction because the case pleaded was not proved and the case proved was not pleaded; (2) the verdict is flagrantly against the evidence and excessive; (3) the court admitted incompetent evidence for ap pellee over the objection of appellant; (4) the instructions are erroneous. [1] Grounds 1 and 4 will be considered to. gether, as appellant's cardinal complaint of the instructions is based on the alleged error of the court in submitting to the jury the question of whether Coomer, appellee's fellow servant, exercised ordinary care to see that appellee had taken hold of his end of the trestle before Coomer raised his end in stead of submitting the negligence as alleged, 1. e., “that the defendant, its agent, servant or employee, with gross carelessness and negligence, turned over and pushed onto and knocked against this plaintiff a large and heavy trestle," it being appellant's contention that this is an allegation of specific negligence and did not authorize the introduction of the evidence or the giving of the instructions complained of. In the opinion on the first appeal we said: "The question submitted to the jury was whether the company, by agent, servant or employee, negligently turned over, or pushed onto, or knocked against, the plaintiff, the trestle introduced in evidence, or one similar thereto, without giving any warning or notice to plaintiff, and that plaintiff was thereby injured.' The first part of this instruction either is so abstract that it made the jury the judges of the law, or if it intended to submit the absence of warning or notice as the ground of negligence, was almost equivalent to a peremptory in view of the fact that the company never claimed that any warning or notice was given. Not only so, but liability was made to turn upon whether Coomer was guilty of an affirmative act in actually turning the trestle over, or pushing it onto, or knocking it against, appellee; whereas the only negligence proven was that he raised his end before using ordinary care to see that appellee had taken hold of the other end. We are therefore constrained to the view that the instruction did not fairly Osso W. Stanley and Fulton & Fulfon, all submit the proven negligence to the jury, and of Bardstown, for appellee. REES, J. This is the second appeal of this case, the opinion on the first appeal in which was therefore erroneous." Appellant's contention is that appellee had pleaded specifically the negligence relied on as to Coomer, i. e., that he negligently turned (288 S. W.) over, pushed onto, and knocked against ap-, for the injury to have been avoided they pellee the trestle mentioned, and that the trial court erred in permitting appellee to prove that Coomer's negligence consisted in raising his end of the trestle before using ordinary care to see that appellee had taken hold of the other end. failed to exercise reasonable or ordinary care to avoid the injury. So in this case the appellee, under the allegation that a servant of appellant negligently turned over or pushed onto or knocked against him a trestle, could prove the act of omission or commis cause of the trestle being knocked against him. The evidence being admissible, the instructions complained of properly submitted the issues to the jury. Furthermore, the instructions were given as indicated in the former opinion, and that opinion is the law of the case. With the principles enunciated in the casession of the servant that was the proximate cited by appellant to the effect that the proof must conform to the averments of the pleadings, we are in thorough accord; but we are of the opinion that the evidence complained of was competent under the averment that "the defendant, its agent, servant, or employee, with gross carelessness and negligence turned over or pushed onto, or knocked against this plaintiff a large and heavy trestle." This was a general allegation of negligence in so far as appellee's injury was caused by the trestle coming in contact with his leg. The failure of Coomer to use ordinary care to see that appellee had taken hold of the other end of the trestle before he (Coomer) raised his end was a failure by Coomer to discharge a duty owing to appellee growing out of the doing of the act resulting in the injury, and the allegation of negligence set forth in the petition was sufficient to authorize the introduction of the evidence complained of. In Monroe v. Standard Sanitary Manufacturing Co., 141 Ky. 549, 133 S. W. 214, we said: "Thus, if one is injured at a railroad crossing, under a general allegation of negligence he may show any act of negligence on the part of those in charge of the train relating to the management or operation of the train, or the observance of, or failure to observe, the statutory requirements as to signals, etc. But under such an allegation he could not show that the injury was due to a defective or imperfect condition of the crossing, or that a frog was out of condition or improperly constructed, so that his foot was caught and held therein, causing him to be struck by the train and injured. If negligence in the latter particulars were relied upon, it would have to be pleaded specially." [3, 4] In the opinion on the first appeal we held that the evidence was sufficient to take the case to the jury, and while we might arrive at a different conclusion from that reached by the jury if we were merely determining the weight of the evidence, we cannot say the verdict is flagrantly against the evidence, nor, that being true, that it is excessive. Appellee at the time the injury was received was 43 years of age and earning $6.40 a day, or at the rate of approximately $2,000 a year. The evidence introduced in his behalf tended to show that until that time he had been a strong, vigorous man, though he had varicose veins; but that subsequent thereto he has been unable to work, and his leg is practically useless as a result of the ulcers thereon produced by the injury. His evidence also tends to show that the injury is permanent. Similar or larger verdicts for an injury to a leg have been sustained. C., N. O. & T. P. Ry. Co. v. Nolan, 167 Ky. 11, 179 S. W. 1046; L. & N. R. R. Co. v. Copley, 177 Ky. 171, 197 S. W. 648; C., N. O. & T. P. Ry. Co. v. Goode, 169 Ky. 102, 183 S. W. 264; Standard Oil Co. v. Titus, 187 Ky. 560, 219 S. W. 1077; C. & O. Ry. Co. v. Honaker, 190 Ky. 125, 226 S. W. 394. The appellant finally insists that the expert witnesses who testified as to the result of an injury, such as appellee claims to have received, to a person having varicose veins, [2] In an action for an injury received at were permitted to express their conclusions a public crossing, the plaintiff could allege upon the matter which was in issue before that the defendant, its agent, servant, or em- the jury when they should have been conployee, carelessly and negligently drove an fined in their evidence to their opinions. A engine over, onto, and against the plaintiff, careful reading of this evidence shows that and under such an allegation the plaintiff the witnesses merely expressed their opincould prove that those in charge of the en-ions, and not conclusions based on these opingine either failed to give the statutory signals or keep a lookout, or that the engine was traveling at an excessive rate of speed, or that if his danger was discovered in time ions, and the evidence was not such as was PUBLIC ELEVATOR CO. ed facts showing a contract lien, yet, as his evidence is corroborated by that of the other witness on the question, and there was no (Court of Appeals of Kentucky. Dec. 7, 1926.) evidence to the contrary, we are inclined to 1. Warehousemen 33-Evidence held to sustain finding of contract lien for storage of tank cars. Evidence held sufficient to sustain finding of existence of contract lien of company storing tank cars. 2. Corporations 387 (4)-Objection that elevator company's contract lien for storage of tank cars was ultra vires cannot be raised by unsecured subsequent creditor. Question whether contract for storage of tank cars by elevator company, giving it a lien for storage, was ultra vires, might not be raised by one becoming unsecured creditor many years later; especially where cars were not fit for transportation and storage was cheaper than demurrage. Appeal from Circuit Court, Jefferson County, Chancery Branch, Second Division. Suit by the Kentucky Public Elevator Company against the Kentucky Tank Line, in which the Pennsylvania Railroad Company was made party defendant. From the judgment, Pennsylvania Railroad Company appeals. Affirmed. agree with the chancellor that the evidence was sufficient to show a contract lien. [2] Appellant's main insistence is that, as Appellee was authorized by its charter to store grain only, the contract for the storage of tank cars was ultra vires, and appellant had the right to raise the question. On the other hand, appellee insists that only the state, stockholders of the corporation, or creditors may challenge the validity of an ultra vires act. On this phase of the case we have been furnished with excellent briefs bearing evidence of wide research and evincing a thorough understanding of the distinctions made by the authorities. It may be conceded that the right to complain of an ultra vires act is not always confined to the state, the stockholders of the corporation, and creditors, but may sometimes be exercised by third persons whose rights are injuriously affected by the ultra vires act. A case in point is Kentucky Heating Co. v. Louisville Gas Co., 63 S. W. 751, 23 Ky. Law Rep. 730, where it was held that appellant did not have the right under its charter to sell artificial gas alone, or in mixture with natural gas, for purposes of illumination, and that appellee, Humphrey, Crawford & Middleton and J. whose exclusive privilege was thereby vioDonald Dinning, all of Louisville, for appel-lated, had a right to complain and was enti lant. Matt. O'Doherty and B. O. Kearney, both of Louisville, for appellee. tled to an injunction. Another case is Citizens' Gaslight Co. v. Louisville Gas Co., 81 Ky. 263. There appellant claimed the exclusive right under its charter to manufacture CLAY, J. In the fall of 1921, the Kentucky and sell gas in Louisville, while appellee asTank Line placed eleven of its cars in stor- serted the same right under an unconstituage with the Kentucky Public Elevator Com- tional act. It was held that appellee's asserpany. Early in 1924, the Pennsylvania Rail- tion of an exclusive right under an unconstiroad Company brought suit against the Ken- tutional act put appellant's right under a tucky Tank Line to recover on a claim of cloud and prevented it from disposing of its $895.95 for transportation. Judgment was stock to raise means to carry on its business, recovered on February 2, 1924, and on No- and that appellant was entitled to an injuncvember 5, 1924, an execution that issued on tion restraining appellee from setting up its the judgment was levied on the tank cars exclusive right. Still another case is Louisthen in possession of the elevator company. ville & T. Turnpike Road Co. v. Boss et al., On November 8, 1924, the elevator company 44 S. W. 981, 19 Ky. Law Rep. 1954. In that sued the Kentucky Tank Line to recover case the charter of the turnpike company austorage in the sum of $2,090 and to enforce thorized it to collect tolls, but provided that its lien on the tank cars then in its possession. The railroad company was made a party defendant, and set up its lien under the execution. Issue was joined, and on final hearing the elevator company was adjudged a prior lien on the property. The railroad company appeals. it should not exact any toll from any person living in Jeffersontown. It was held that Boss and other citizens of Jeffersontown could restrain the collection of tolls. The difference between those cases and the case at bar is this: In the former, the complaining parties all had existing rights that were [1] Appellant's first contention is that ap-injuriously affected by the ultra vires acts, pellee had no common-law lien, and that the while appellant had no rights whatever in evidence was not sufficient to show a con- the tank cars when they were stored, and did tract lien. It is true that the testimony of not become a creditor until many years later. one of the witnesses as to the terms of the It is generally held that the validity of an ulcontract is not altogether consistent, and that tra vires transaction cannot be questioned he was examined three times before he stat- by an unsecured creditor whose rights ac |