motives co-existent with the injury, and is to be regarded as a part of the res gestæ and competent evidence.

5. Same-Contract to use coupling stick-Contributory neglect-The failure of the brakeman to use a coupling stick, which was furnished him when he was employed, and which, by writing, he agreed to use in coupling cars, was not such contributory neglect as to defeat a recovery, unless but for his failure to use the stick the accident would not have occurred.

The agreement to use the coupling stick was not binding on the brakeman unless it was indispensable or clearly necessary for security to him against danger incident to coupling cars.

Evidence of other brakemen concerning the advantages or disadvantages arising from the use of the coupling stick and of its universal disuse by brakemen was competent, and whether the failure to use it was contributory neglect was a question for the jury to determine.

6. Same-Excessive verdict-A verdict for $5,000 damages for the loss of two fingers is so excessive as to indicate passion or prejudice on the part of the jury, and must be set aside.

Helma & Bruce for appellant.

Humphrey & Davie for appellee.

Appeal from Jefferson Court of Common Pleas.

Opinion of the court by Judge Lewis.

This is an appeal from a judgment in favor of M. J. Foley against the Louisville & Nashville Railroad Company for $5,000 in damages on account of a personal injury.

It is stated substantially in the petition that August 18, 1889, plaintiff was in employment of defendant as brakeman on a freight train, which, leaving about 11 p. m., started on a run from the freight yard in Louisville, became, when it reached East Louisville, disconnected by reason of the coupling machinery of two cars breaking or becoming loosened; that he was thereupon directed by the conductor to recouple the two cars, and while he was between them for that purpose the conductor signaled the engineer to back the locomotive, to which was attached five of the twenty-five cars composing the train, but did not warn plaintiff he had done or was about to do so, and in consequence of such failure his hand was caught between drawbars of the two cars when they came together and injured; that said drawbars could not be safely or properly used together, because not on a level, one being about four inches higher than the other, and that only a short link with which to couple the cars was provided, consequently performance of plaintiff's duty was rendered on that occasion extra hazardous; that the locomotive and cars attached to it were backed on a down grade without brakes being fastened so as to moderate their speed, and as a consequence the engineer lost control and they moved to the stationary part of the train more rapidly than would have been otherwise the case. It is further stated that condition of the drawbars and character of link as described were known to the conductor, but not to plaintiff until the accident occurred. The evidence does not satisfactorily show the conductor was negligent as to the matter of signalling the engineer to back the train, and for that reason and because it is in general terms alleged in the petition the injury would not have been done but for such negligence of the conductor, counsel argue the verdict is not supported by competent and relevant evidence. But it is else

where in the petition alleged that the injury resulted from backing the locomotive and cars in the negligent manner mentioned and from inequality and unevenness of said drawbars and shortness of the link, as well as from negligence of the conductor in signalling the engineer to back without warning to plaintiff. And as the other facts stated show prima facie an actionable injury independent of negligence of the conductor in the particular charged, it was competent for plaintiff to prove all circumstances legitimately connected with the occurrence, and for the jury, under proper instructions, to inquire and find whether defendant was liable by reason of negligence of the conductor, engineer or other employe in respect to defects of the coupling machinery or manner in which the locomotive and cars were backed. For, if the injury to plaintiff resulted from either of the alleged causes, or from the two combined, right of recovery existed, whether the conductor was or not guilty of negligence in the particular matter mentioned.

The lower court, therefore, properly instructed the jury that if the injury was caused by improper or defective appliances furnished plaintiff by defendant with which to perform the duties required of him, and defendant knew or might have known of their condition and character by use of ordinary care, and plaintiff did not know thereof, the law was for him, and the jury should so find. Equally pertinent and proper was an instruction to so find if the injury was caused by gross negligence of the engineer or other co-employe.

But counsel contend that the first instruction is erroneous because exercise by plaintiff of care and diligence to discover the character and condition of the coupling machinery before using them was not made a condition of his right to recover.

The rule requiring an employer to provide reasonably safe and suitable machinery and appliances for use of employes, and to keep them in reasonable repair while being used, is so just and fair that it has never been called in question by this court. But if an employer may in every case escape liability for an injury to a subordinate employe by reason of defective machinery or appliances provided for his use, merely because the latter does not show he exercised care and diligence to discover the character and condition thereof, that rule would not amount to much as either an incentive to the employer to do his duty, or protection to the employe against personal injury.

The limit of inquiry in such case as this is whether as matter of fact the employe did, before exposing himself to danger, know the machinery or implements causing the injury to be defective. The rule, of course, does not apply when examination and inspection is in the line of an employe's duty; but a brakeman is never entrusted with the duty of inspecting, and, therefore, can not be reasonably expected or required to know whether all the machinery and appliances of a railroad train are in proper condition.

In this case the plaintiff testified he did not know of the condition and character of the drawbars and link in question before he was injured. And in view of the fact the train had been recently made up in the defendant's yard by other employes, and he was unexpectedly called on near midnight to perform the service of coupling the two cars that had broken apart, it is manifest he had no previous opportunity, even if it had been his duty, to inspect the twenty-five cars composing the train in order to ascertain the condition of each of them. And it, therefore, seems to us, not only that plaintiff's statement is entitled to credence, but that here is presented a fit illustration of the injustice and unfairness of requiring a subordinate employe, like a brakeman, as a condition of his right to recover against his

employer for personal injury, to show that he had previously exercised diligence to discover the character and condition of all the machinery and implements provided for him to use and by which the injury was done.

There may be cases where in fact the defect is so patent that the jury will conclude such subordinate must have discovered and known it before taking the risk of injury, but such is not this case.

Whether the condition and character of the drawbars and link plaintiff was required to use was the sole cause of his injury, or it resulted from the manner in which the locomotive and cars were backed, or be attributed to the two causes combined, or was altogether result of his own negligence, were questions for the jury, whose finding in that respect we do not feel authorized to disturb.

An objection was made to evidence tending to shew that the car inspector said, about ten minutes subsequent to the injury, and after plaintiff had been carried to the depot near, that he had been troubled with coupling of the two cars in question before the train started from the yard; but it seems to us that declaration of the car inspector having been evidently made as the mere result or consequence of feelings or motives co-existent with the injury, and without time or incentive for calculation as to effect or influence it would have upon rights of the parties, should be regarded as of the res gestæ, and, therefore, competent evidence. But if proof of that declaration had been incompetent it would not have prejudiced substantial rights of defendant, because condition and character of coupling machinery of the two cars as described in the petition was otherwise fully proved.

It appears that plaintiff, at the time of his employment as brakeman, acknowledged in writing receipt from defendant of a coupling stick which he promised to use when coupling cars while in defendant's service. And it is now contended that his failure to use the stick for that purpose when injured should be treated such contributory negligence as to defeat recovery in this action.

The written agreement obviously was not binding on plaintiff unless the coupling stick was in fact indispensable, or at least clearly necessary for security of brakeman against danger incident to coupling cars, for defendant had no right otherwise to bind plaintiff to use the stick, or to make habitual use of it a condition of his right to maintain an action for personal injury received while engaged in coupling cars. The decisive question, then, is whether, but for plaintiff's failure to use the coupling stick on occasion of receiving the injury complained of, it would not have occurred.

It is proved that, although a coupling stick was, at the time plaintiff signed the writing, delivered to him, the conductor who delivered it told him the written undertaking was required as mere form.

It is further shown that in order to use the stick it is necessary for a brakeman to carry it about his person in a belt, which causes more danger of falling and being injured while running on top of a car or climbing hurriedly on or off it than is compensated for by any advantage or security against injury it may be. Besides, the coupling stick is proved to be generally discarded and not used at all by brakemen on freight cars of defendant, which fact is not only proper to be proved, as was done on trial of this case, but tends strongly to show the coupling stick does not answer the purpose for which it was apparently designed, for the opinion of brakemen in regard to utility of an implement such

as a coupling stick, which they only have use for, and must necessarily know more about than any other class of persons, is, of course, entitled to great weight, because their knowledge is derived from actual experience, and after an anxious effort to properly test its value-and no evidence could speak more decisively against the value of a coupling stick than the general disuse of it by brakemen. But it is competent for the jury in every case like this to consider the merit of the coupling stick in determining the question of contributory negligence, as was doubtless done on trial of this case, and we need not, therefore, consider the question further.

But it seems to us the amount of damages found in this case is so excessive and disproportioned to the actual injury sustained as to make it our duty under section 340, Civil Code, to set aside the verdict, for if $5,000 damages for loss of two fingers is not so excessive as to appear to have been given under inflence of passion or prejudice, it is hard to tell when a case would occur justifying interposition of the court for protection of a defendant against spoliation. This court has always been averse to disturbing the finding of a jury, and will not do so except when their verdict is palpably, or, in language sometimes used, flagrantly against the evidence, and we are not authorized to set it aside on account of excessive damages unless the condition provided for in the section referred to exists, which is clearly this case.

Wherefore, the judgment is reversed for a new trial consistent with this opinion.

COX v. HAZELIP, &c.

(Filed March 30, 1893-Not to be reported.)

**

Husband and wife-Liens-A postnuptial contract between a husband and wife, wherein the receipt of money from the wife by the husband is acknowledged, and certain personal property is conveyed to a trustee for her and it is further stated by the husband: "I hereby declare and acknowledge to her in trust * * a debt upon my estate for the said $1,500, but not payable during my natural life, and at my death the same * is to be paid to her out of first my personal property and estate, and whatever is yet left is to be paid out of my real estate." This contract was recorded in the proper office of the county where the husband owned lands. Held-That the contract did not create a lien in favor of the wife on the husband's land, which was sold under execution against him during her lifetime. The debt is enforcible against only such estate as the husband owned at the time of his death.

A. A. Sturgeon and D. W. Wright for appellant.

Settles & Rodes and Edward W. Hines for appellees.

Appeal from Edinonson Circuit Court.

Opinion of the court by Judge Hazelrigg.

Cox, the appellant, by a writing of January 30, 1888, became the owner of the claim of Mrs. Souther in and to the real and personal estate of her husband, W. T. Souther, who died in 1886. That claim is alleged to be a lien on the lands of the decedent, owned by him at the time of the execution of the writing creating the claim.

The writing alleged, thus to create such a lien, was a postnuptial contract and was executed on June 1, 1870. After reciting the receipt of certain moneys from his wife, and conveying certain personal property to one Robt. Dishman, to be held in trust

for her separate use, Souther says in the instrument: "I hereby declare and acknowledge to her in trust, as aforesaid, a debt upon my estate for the said $1,500, but not payable during my natural lifetime, and at my death the same, with such additional amount of her money as shall hereafter come to my hands, is to be paid to her out of first my personal property and estate, and whatever is yet left is to be paid out of my real estate."

This instrument was recorded in the county clerk's office of Edmonson county. Souther was then the owner of three tracts of land in that county, the least valuable of which was the sixtynine acres in contest.

This tract was levied on, sold and bought by an execution. creditor, Settle, in 1879, and a deed therefor was made to Hazelip, the appellee, as the grantee, in 1882, some four years before Souther's death. The appellant in 1889, ten years after the levy and sale named, instituted this action to enforce his alleged lien, and the question is, does the writing between Souther and wife give such lien to the wife? We think not.

A fair construction of this contract is to regard it as an enforcible obligation against such estate only of Souther as he owned at the time of his death. The demand was not payable until then, and hence not enforcible until then, and it is fair to conclude that the estate, out of which to pay it, was such as might then be on hand.

The vague and indefinite description of the terms of the trust, or of the property sought to be placed in trust (if such result was accomplished at all), precludes the possibility of its being treated as a mortgage, giving notice to purchasers of Souther's property of the existence thereon of any lien. It was a liberal construction to consider it a mortgage, as between the husband and his wife, on such estate as was on hand at his death.

This was done, and the appellant, as the assignee of the widow, got the benefit of a very liberal construction of the contract.

Judgment affirmed.

KENTUCKY SUPERIOR COURT.

PADUCAH LAND, COAL & IRON CO. v. MULHOLLAND, JR.

(Filed March 22, 1893.)

Corporations-Fraud of original incorporators-Purchaser with noticeParties from the time they begin to form an association stand in a confidential relation, not only to each other, but to all who may subsequently become members thereof; and none of them can purchase property for the company and sell to it at an advance without disclosing the fact. The original incorporators of a corporation purchased land for the company for $55,000, but in order to make for themselves a profit out of the other stockholders they had the deed to the company recite that the consideration for the land was $100,000, paid by the delivery to the grantors of 10,000 shares of its capital stock, whereas only 5,500 shares of stock were issued to the grantors, the other 4,500 shares being divided among the incorporators.