페이지 이미지
PDF
ePub

1

contract to pay therefor will be implied, in to give plaintiff judgment for the sum of the absence of an agreement to the contrary, $434.21 and the further sum of $59.64. which the evidence fails to show. There [8] On the cross-appeal it is insisted that being no dispute as to the value of the pas- the court erred in not adjudging the plainturage, it follows that plaintiff's claim there- tiff one-half of $796.72, interest charged for was properly allowed.

against the partnership in 1913 and 1914. [5] It appears that certain hogs were pur- It appears that during those years certain chased from a man by the name of Preece cattle were sold to certain farmers at a cerand $300 paid therefor. Afterwards, Preece, tain price under an agreement by the part. in consideration of his release from the con- nership to purchase them later on at an intract to furnish the hogs, paid to defendants creased price. In payment for the cattle the the sum of $325. Plaintiff says that no por- farmers executed their notes bearing intertion of this sum was ever paid him. De- est. It is the contention of the plaintiff that fendants' agent claims that in some way not this interest was not only collected from the explained it was paid. The defendants' farmers, but was subsequently charged books do not show that it was paid. With against the partnership, thereby enabling the testimony in this form, the commission-them to collect the interest twice. We find, er and the chancellor did not err in holding however, that plaintiff merely sued to rethat the plea of payment was not sustained, cover half of the interest paid by the farmand the judgment in favor of plaintiff for ers on the ground that it was a partnership $162.50, or one-half of the sum refunded by profit in which he was entitled to share. No Preece, was therefore proper.

issue was made in the pleadings that a por. [6] With respect to the Kiser, Ellis, and tion of this interest, amounting to $796.72, Lambert cattle, upon which, it is claimed by was improperly charged against the partnerthe plaintiff, there was a profit, it is suffi- ship, and that plaintiff was entitled to recient to say that a check for $1,220 given cover one-half thereof. Since plaintiff did by the purchaser of these cattle was not not sue for a settlement of the partnership, paid but has been placed in the hands of a but elected to sue for sums due in certain lawyer for collection. Unless this check is specific transactions, his recovery should be paid, there is no profit in the transactions, confined to those transactions and should and it was error to render judgment in fav- not embrace items not specifically pleaded. or of the plaintiff for $138.41, one-half of For this reason it was not error to refuse the alleged profit. This decision, however, plaintiff judgment for one-half of the sum is without prejudice to future action by plain- of $796.72. tiff in case the check for $1,220, or a suffi

Judgment affirmed on the cross-appeal and cient portion thereof, is hereafter collected reversed on the original appeal, with dito show a profit on these transactions. rections to enter judgment in conformity

We think the letter from defendants' with this opinion. agent is sufficient to show that plaintiff was interested in the Queen cattle. However, the profit on this transaction was only $51.25, and it was error to give judgment for the full amount instead of one-half.

KINGKAD V. CITY OF COVINGTON. It is admitted that plaintiff received his one-half of the profit on the T. R. McGloth. (Court of Appeals of Kentucky. Feb. 20, 1920.) in cattle. That being true, no judgment in 1. MUNICIPAL CORPORATIONS 822(5) – INhis favor for $52.47 should have been ren

STRUCTION THAT CITY WAS NOT LIABLE FOB dered. [7] With respect to the Hill & Garver

CONDITIONS HELD transaction our conclusion is as follows: EVIDENCE. The weight of the evidence is to the effect An instruction which absolved city from liathat Richards, defendants' agent, was sent to bility if catch-basin cover the claimed tilting Ohio with authority to make settlement with of which caused plaintiff's injuries, was disHill & Garver. When Richards arrived,

placed by third persons immediately before inHill & Garver were claiming one-half of the would not cause cover to tilt held supported by

jury or if alleged defect in the supporting lugs profits. He finally settled with them by giv-evidence. ing them one-third of the profits. There remained for both plaintiff and defendants 2. APPEAL AND ERROR X1033(5)—INSTRUC

TION ABSOLVING CITY FROM LIABILITY FOR only two-thirds of the profits. In other words, two-thirds of the entire profit on the

COVER HELD UNDER THE EVIDENCE TOO FAwhole transaction was all the profit so far

VORABLE TO PLAINTIFF, as plaintiff and defendants were concern

In action for injury to plaintiff from the ed. Hence, when plaintiff received one-half claimed tilting of a catch-basin cover, an inof this profit, he got all he was entitled to struction, absolving city from liability of third under the contract. It was therefore error persons displaced the cover "immediately before

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

INJURIES FROM CATCH-BASIN COVER UNDEB
CERTAIN

SUPPORTED BY

INJURIES

FROM TILTING

OF

CATCH-BASIN

(218 S.W.) plaintiff stepped on it” was, under the evidence, safety, and that the accident to plaintiff would too favorable to plaintiff.

not have happened but for such failure to ex

ercise such care (if such there was); or if you Appeal from Circuit Court, Kenton Coun- believe from the evidence that the lid or cover ty, Criminal, Common-Law, and Equity Divi- of the manhole was not rendered unsafe by the sion,

absence of a supporting lug or cleat; or, if

you believe it was so rendered unsafe, but that Action by Ruth Kingkad against the City defendant did not and by the exercise of ordiof Covington. Verdict and judgment for nary care could not have known of such condidefendant, and plaintiff appeals. Affirmed. tion a sufficient length of time before the injury

to plaintiff to have enabled it by the exercise of B. F. Graziani, of Covington, for appellant. such care to have remedied such condition in

John Shepard and A. E. Stricklett, both time to have avoided the injury to plaintiff ; of Covington, for appellee.

or if you believe from the evidence that the lid

or cover of the manhole was not caused to tilt CLAY, C. Ruth Kingkad brought suit

when plaintiff stepped upon it by reason of the against the city of Covington to recover dam- evidence that the lid was displaced from its or

absence of the lug; or if you believe from the ages for personal injuries. From a verdict dinary resting place immediately before plainand judgment in favor of the defendant, tiff stepped upon it, and it was in said way plaintiff appeals.

caused to tilt, and plaintiff was in such manner At the time of the accident the city main caused to be injured-then in either or any of tained a catch-basin in the sidewalk of Main said events you will find for defendant.” street. Over the catch-basin was an iron

It is true that in the recent case of City covering with three lugs, which held it in of Covington v. Rosenberg, 177 Ky. 411, 197 position. While walking along the sidewalk, S. W. 786, Ann. Cas. 1918E, 229, the court plaintiff stepped on the covering, which tilted held that the city was not entitled to a peror slipped from its place and caused plain emptory instruction on the ground that it tiff's left foot to go through the opening, and was impossible to tell from the evidence the weight of her body to go on her right whether the covering was caused to tilt by foot with such force as to injure her ankle. the defective lug, or the fact that it was imAccording to plaintiff's evidence, one of the properly placed by some boys playing in the lugs was broken off and was rusty, and when neighborhood. In that case the court said: a heavy person would step on the covering

"The lid is as safe for travel over it when opposite to where the lug was off, the covering would tilt.

put on by one person as when put on by anothAfter the accident, plain

er. It is only the defects in the lid which rentiff walked to her home by holding onto the der the sidewalk unsafe.” fence, and called a physician, who bandaged her ankle. According to the evidence for In this case, however, there was evidence defendant, it was impossible to tilt the cov- that the defective lug could not have caused ering by stepping on it. It was also shown the covering to tilt. In view of this fact, that plaintiff had stated that she had suf- and of the further fact that boys were seen fered from a fractured ankle before that playing about the manhole, that they were time. One witness testified that the children in the habit of removing the covering, and of the neighborhood were in the habit of re- that the covering was in proper position just moving the covering to see the ducks pass a few minutes before the accident, we canby; that she saw them engaged in this pas- not say that there was no evidence on which time nearly every time she looked out of the to base that portion of the instruction comwindow, and, although she could not say that plained of. Under the circumstances, the they removed the covering on the occasion jury had the right to conclude that the acciin question, she did see them playing about dent was not caused by the defective lug, the catch-basin. Another witness testified but by the fact that the covering had been that she passed by the catch-basin just a taken up and replaced by persons other than 'few minutes before the accident, and the lid employés of the city, and that this had ocwas on all right.

curred such a short time before the accident [1, 2] Plaintiff complains of the concluding that the city was not charged with notice paragraph of the following instruction: thereof, and the use of the words "immediate

“If you believe from the evidence that at the ly before plaintiff stepped upon it” was more time and place and under the circumstances de prejudicial to the defendant than to the scribed in the proof plaintiff was not herself plaintiff. in the exercise of ordinary care for her own Judgment affirmed.

ernoon.

SHOW

TRAIN.

GINE.

ADMISSIBLE IN BEHALF OF PLAINTIFF.

o'clock on the afternoon of March 16, 1917, LOUISVILLE & N. R. CO. v. STIDHAM'S and walked to Quicksand, about three miles ADM'X.

distant. He was seen at Quicksand that aft(Court of Appeals of Kentucky. Feb. 20, 1920.)

The last person who saw him alive

was Mrs. Viers, who saw him as he passed 1. RAILROADS Ow398(1)—EVIDENCE INSUFFI- her house between 6 and 7 o'clock that eveCIENT TO NEGLIGENT KILLING BY ning, walking along defendant's railroad

tracks, going in the direction of Jackson. In an action for the death of a person whose Her home is between Quicksand and Dumont. body was found near railroad tracks, on which Ilis body was found the next morning, behe was walking when last seen alive, evidence tween 4 and 5 o'clock, between Dumont and held insufficient to show that he was killed by Jackson, near the mouth of Stray Branch. a train, or that there was any negligence in its Two men walked along the railroad tracks operation.

from Quicksand to Jackson between 8 and 9 2. RAILROADS 369(3)—NO DUTY TO LICEN- o'clock that evening, but his body was not SEE TO MAINTAIN LOOKOUT ON BACKING EN | at that time at the place where it was found

the next morning, nor did they see anything In the open country, where persons have no of him on the trip. A train known in the eviright to be on the track, except by sufferance, dence as the “shifter,” going from Quicksand a railroad backing its engine with the tender in front, on which was a lighted headlight, does to Jackson, stopped at Dumont station at not owe the duty, even to a licensee, to station 9:40 that evening for orders, and then proa man on the tender to maintain a lookout. ceeded to Jackson. This train consisted of a

switch engine and three or four cars. The 3. RAILROADS 397 (7)–RULE OF COMPANY

engine was in front and pulling the cars, but REQUIRING LOOKOUT ON BACKING TRAIN NOT

it was backing. On the end of the tender, A railroad company's liability for failure to which was the front of the train, was a lightmaintain a lookout on the tender of a backing ed headlight, and across the end of the tendengine depends on principles of law, and not er, about waist high to a man standing on the on the rules of the company, and a rule requir-track, there is a beam some 6 or 8 inches ing a lookout is not admissible in behalf of wide, to the center of which is attached the plaintiff in an action for death.

drawbar.

Decedent, when found, was lying on his Appeal from Circuit Court, Breathitt face in a pool of blood alongside of the track, County.

with his head toward Jackson and his feet Action by S. B. Stidham's administratrix a short distance beyond a cattle guard. against the Louisville & Nashville Railroad There was a circular cut or bruise about the Company. From a judgment for plaintiff, size of a 50-cent piece over his right eye ; defendant appeals. Reversed and remanded. his face was scratched and bruised, as though

from falling in crushed rock, There was a 0. H. Pollard, of Jackson, J. M. Benton, of bruised place on his back, about 6 inche: Winchester, and Benjamin D. Warfield, of wide, above his hips, and another on th: Louisville, for appellant.

calf of his right leg, about 3 inches wide and Ryland C. Musick, of Jackson, and Ed. C. 5 or 6 inches long. Between his feet and the O'Rear and J. B. Adamson, both of Frank- cattle guard the rubber heel of his right shoe fort, for appellee.

was found, and there was an indentation CLARKE, J. This is an appeal by the de- upon the remaining part of the heel of his

shoe. fendant, Louisville & Nashville Railroad

Plaintiff argues that these facts, not onlr Company from a judgment for $17,000 in tend to prove that decedent's right heel befavor of the administratrix of Samuel B.

came fastened in the cattle guard as the Stidham for his death. The refusal of the train approached, that the beam on the tend court to direct a verdict for the defendanter of the backing engine struck him in th is the chief reliance for a reversal.

back, causing the wound found there, and Counsel for plaintiff admit:

knocking him forward with such force as to "That the burden is upon us to show affirm- make the wounds on his face, but also to atively (1) that deceased was killed by a train refute any other theory as to how he was of the railroad company; (2) that he was a li- | killed; that, if decedent had been killed by censee upon its track at the point at the time he lost his life; and (3) that his death resulted any one striking him with some instrument in from the negligent operation of the train by the face. the scratches would not have been which he was killed.”

there; that he would have been found lying

on his back, and not on his face, and the heel [1] The only evidence introduced to estab. would not have been off of his shoe and where lish the first and third of these propositions it was found. is in substance as follows:

This is, however, in our judgment, but one Decedent left his home in Jackson about 2 of several equally plausible explanations or

em For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

or

(218 S.W.) theories as to how decedent may have met the part of the defendant not to have a man his death. Even if we assumed he was killed stationed on the front end of the tender to at the place where he was found, it might as maintain a lookout for persons whose presreasonably be inferred from the evidence ence upon the tracks ought to have been anthat he was struck on the forehead by an | ticipated. But clearly such were not the reassailant, fell upon his back against the tie, qu ements of prudent operation in this case, which caused the bruise found there, and even if he had been a licensee. The place rolled over on his face. Surely in such an where plaintiff contends decedent was killed encounter he might have lost the heel of his by defendant's train was out in the country, shoe and received the bruises described, as and where he had no right to be, unless by well as if he had been struck by the train. sufferance. Not only so, but plaintiff's theory, even if it The evidence of usage in the nighttime, could be sustained to the extent that dece- when decedent is supposed to have been dent was killed by defendant's train, fails killed by defendant's train, and by reason of completely as to the way in which he was which it is claimed he was a licensee, to killed, as every attendant circumstance might whom a duty of lookout was due, is furhave been present, had he been killed in at- nished by two witnesses, who testify that tempting to get on, from stumbling upon occasions they had seen several peragainst, one of the moving cars of the train sons walking on the tracks at or near the at or near the cattle guard. The proven place, and one other, who states quite infacts on this point are in no wise analogous definitely, in answer to a question as to the to those of L. & N. Ry. Co. v. Bay's Adm'r, 142 | amount of travel at this place after 8 or 9 Ky. 400, 134 S. W. 450, 34 L. R. A. (N. S.) 678, o'clock at night: “Well, they are traveling or L. & N. Ry. Co. v. Taylor's Adm'x, 158 Ky. | it all the time.” That under such circum663, 166 S. W. 199, upon which plaintiff relies, stances a railroad company, in backing an but are such as to bring the case rather un- engine over its tracks, must not only mainder Caldwell's Adm'r v. C. & 0. Ry. Co., 155 tain a lookout, but to make it effective must Ky. 609, 160 S. W. 158, a much stronger case place a man on the front end of the tender, for the plaintiff than this, and like cases. is to us a novel contention, and one wholly

But weaker still is plaintiff's case when unsupported by any authority so far as we it comes to the question of negligence, even know. if we might assume defendant was under a Hence not only is there no proof of negliduty of maintaining a lookout at the place gence, but it is mere matter of speculation where decedent was found, and at the time and guesswork as to how or by what agency it is claimed he was killed, which fact was decedent lost his life, and the court erred in not, however, established, since the usage not directing a verdict for the defendant. proven was clearly insufficient to make licen- In many like cases, which were much stronger sees of persons using the tracks at that time for the plaintiff, a peremptory instruction and place. There is no proof whatever in the for the defendant has been approved or orentire record of any negligence in the opera- dered, among which, in addition to the Caldtion of this train, unless it, too, can be in. well Case, supra, are Stuart v. N., C. & St. L. ferred from the character of wounds found upon the body of deceased, the loss of the Ry. Co., 146 Ky. 127, 142 S. W. 232, Sutton's heel of his shoe, and the way his body was

Adm'r v. L. & N. Ry. Co., 168 Ky. 81, 181 S. lying when found. To accomplish this re

W. 938, and Hearell v. I. C. R. Co., 185 Ky. sult it must be inferred from these facts, 41, 213 S. W. 561. not only that decedent was killed while

[3] The court also erred in permitting standing upon the track with his foot fas- plaintiff to introduce, over defendant's obtened in the cattle guard as the train ap-jections, evidence of the company's rules proached, but also that he was sta- with reference to the engineer and fireman tioned for a sufficient time for the engineer keeping a lookout, since defendant's liabilito have seen him in time to have stopped ty to plaintiff depends, not upon a breach of the train before it struck him. The possi- duty the employé owed the company, but upbility that he may have stepped in front of on the breach of a duty due decedent, which the train too late for the engineer to have must be determined by the principles of law, stopped the train before striking him, or and not by rules of the company for the eren to have seen him at all, or that he was guidance of its employés. L. & N. R. Co. v. killed by attempting to get on the train after Dyer, 152 Ky. 264, 153 S. W. 194, 48 L. R. the engine had passed him, must be excluded | A. (N. S.) 816. from consideration and without evidence to Since, for these reasons, a reversal must be warrant it.

ordered, other questions presented need not [2] That counsel realize this weakness in be and are not now decided. their case, in part at least, is evident from Wherefore the judgment is reversed, and their contention that it was negligence upon the cause remanded for a new trial.

[ocr errors]

TO
NOT

REMAINDER

DOES

G. R. Brown and wife, provided G. R. Brown SAVELLS et al. v. BROWN'S GUARDIAN should die without children these lands at G. et al.

R. Brown's and wife's death is to belorg to my

daughter, Mary A. Franklin or to my grand(Court of Appeals of Kentucky. Feb. 20, 1920.) children or their heirs, although if G. R. Brown

and wife Arzella Brown should leave children 1. DEEDS 93-CONSTRUCTION TO EFFECTU

then this land is to be theirs at said G. R. ATE EVIDENT INTENTION.

Brown's and wife's death, the following tracts Deeds should be construed so as to effectu- of land and bounded as follows: (Here follows ate the grantor's intention as gathered from

a description of the property.] the whole instrument, and, where it appears "To have and to hold unto the said G. R. the intention was to vest in the grantee a less Brown after my death, G. R. Brown's death, estate than a fee, such purpose will not be de- and his children if he (G. R. Brown) leaves feated by any technical rule of construction, but children, and if he (G. R. Brown) leaves no will be given effect.

children then to Mary A. Franklin or her 2. DEEDS m129(4)—CONSTRUCTION AS GIVING children at the death of G. R. Brown and his LIFE ESTATE TO GRANTOR'S SON WITH RE

wife forever with covenant of general warranty. MAINDER TO CHILDREN, ETC.

Given under my hand this 1st day of May Deed of gift by a father to his son, to take

1890." effect at the father's death, whereby the father reserved all the land for life, and deeded to the

The facts are as follows: At the time of son's children at the death of the son and his the conveyance, the grantor, J. C. Brown, had wife, providing that, if the son should die with two children, G. R. Brown and Mary A. out children, the land at the death of the son Franklin. G. R. Brown and his wife, Arand his wife should belong to the father's daugh- zella Brown, lived with the grantor on the ter, or to his grandchildren or their heirs, gave land in controversy. The grantor died about the son a life estate only, with remainder to his

a year after the execution of the deed. On children, but, if he left no children, with remainder to the father's daughter or her children. September 24, 1903, G. R. Brown and wife

adopted the infant, Felmer Spurrier Brown. 3. DEEDS Om 105-CONVEYANCE "CHIL Thereafter, G. R. Brown died, and subseDREN" IN

BENEFIT

quently his widow, Arzella Brown, married ADOPTED CHILD OF LIFE TENANT.

A. S. Savells. G. R. Brown and wire never In case of conveyance by a father to his had any children. After the death of G. R. son for life, with remainder to the son's children, but, in case he has no children, to others, Brown, Mary A. Franklin, the grantor's the word "children" does not include an adopted daughter, died leaving as her only heirs at child of the son, unless the language of the in-law a daughter, Mrs. Millie Birdsong, and strument makes such intention clear.

Eury Savells, the only child of her deceased [Ed. Note.-For other definitions, see Words daughter. and Phrases, First and Second Series, Chil This suit was brought by the guardian of dren.]

Felmer Spurrier Brown, the adopted daugh

ter of G. R. Brown and wife, and Felmer Appeal from Circuit Court, Trigg County. Spurrier Brown, for a construction of the

Suit by Felmer Spurrier Brown's guardian deed. The court adjudged that G. R. Brown and others against Eury Savells and others. took the fee, and that upon his death the land From judgment for plaintiffs, defendants ap- passed to his adopted child, Felmer Spur. peal. Reversed, and cause remanded, with di- rier Brown, subject to the life estate of his rections to enter judgment in conformity with widow, Arzella Brown Savells. Eury Savells the opinion.

and others appeal.

[1, 2] It is the settled rule in this state G. P. Thomas, of Cadiz, and G. E. Fooshee, that deeds should be construed so as to efof Golden Pond, for appellants.

fectuate the intention of the grantor as gatbDenny P. Smith and G. W. Ryan, both ofered from the whole instrument, and, where Cadiz, and N. W. Utley, of Eddyville, for ap-it appears that the grantor intended to rest pellees.

in the grantee a less estate than a fee, his

purpose will not be defeated by any technical CLAY, C. The question presented on this rule of construction, but will be carried into appeal is the proper construction of the fol-effect. Wilson y. Moore, 146 Ky. 679, 143 S. lowing deed:

W. 431; Lawson v. Todd, 129 Ky. 133, 110 "This indenture made and entered into this S. W. 412, 33 Ky. Law Rep. 557. While the the first day of May, 1890, by and between J. deed in question departs somewhat from the H. Brown and G. R. Brown his son, all of prevailing form, there is no doubt as to what Trigg county, state of Kentucky, witnesseth the grantor intended. Though the deed is dethat the said J. H. Brown makes this deed of scribed as a “deed of gift to G. R. Brown, his gift to G. R. Brown his son of the following tracts or parcels of land. This deed of gift is son,” the subsequent provisions, which are to take effect at the said J. H. Brown's death, repeated over and over again, make it clear said J. H. Brown reserving all the land during that the son was to have only a life estate his natural life, and further deeds the following with remainder to his children, but if he left lands to G. R. Brown's children at the death of no children, the property at the death of his

Om For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

« 이전계속 »