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offered in evidence, and therefore the plain- , gent, the plaintiff received the injuries of which tiff failed to prove that the city had author- he complains, then the law is for the plaintiff as ized Gnau to use the street.

against the city of Louisville, as well as Gnau

and House, and the jury should so find." Under section 2775 of the Kentucky Stat- “But, unless you shall so believe from the evi. utes, the courts are required to take judicial dence, the law is for the defendant the city of notice of the ordinances of the city of Louis- Louisville, and the jury should so find.” ville, and this statute dispenses with the ne

These instructions are criticized both by cessity of introducing these ordinances in evi- the city and Gnau, but we think they fairly dence. It was no more necessary to intro- submitted the law of the case as to both of duce the ordinance of the city relied on than these defendants. It will be noticed that the it would have been to introduce a section of first instruction told the jury that it was the Kentucky Statutes under which an action the duty of Gnau and House to so protect was brought. Weiss v. Commissioners of the lime bed as to render the street reasonSewerage, 152 Ky. 552, 153 S. W. 967.

ably safe for persons lawfully using the In the instructions the court, after reciting same, and that, if the lime bed was attractive that Gnau had obtained permission to make or inviting to children, as well as dangerous improvements upon his property, and that for them to go about, and Gnau and House this gave him the right to use a part of Mag- knew, or by the exercise of ordinary care nolia avenue for the purpose of placing his could have known, this fact, it was their dubuilding material therein, further instructed ty to exercise ordinary care to adopt such the jury that:

means of protecting the bed as were reasonIt was the duty of Gnau and House to "so ably sufficient to guard it against use by place and guard said lime bed as to render the children, and if they failed to adopt such prestreet reasonably safe for persons lawfully us- cautions as were reasonably sufficient, they ing same; and if you believe from the evidence that said lime bed was attractive or in

were guilty of negligence. viting to children, and it was dangerous for

[3-5] The second instruction charged the them to go upon it, and that the said Gnau and city with the duty of keeping the street in House knew, or by the exercise of ordinary care reasonably safe condition, and with the furcould have known, that the said lime bed was attractive or inviting to children, and that it ther duty of exercising the care with respect was dangerous for them to go upon it, if it was to children that was imposed upon Gnau and so attractive or inviting and dangerous for House, and that if it failed to exercise the them to go upon it, then it was their duty to care indicated, it was guilty of negligence. exercise ordinary care to prevent injury to children using the street by adopting and en- The city was under a duty to exercise ordiforcing such precautions as were reasonably nary care to keep its streets in reasonably sufficient for that purpose; and if you shall safe condition for public travel, and this believe from the evidence that Magnolia street at the time and place mentioned was not reason-duty imposed upon it the necessity of keepably safe for use by the public by reason of the ing them in such condition, not only for lime bed referred to in the evidence, and if you adults, but for all others who had the right shall further believe from the evidence that Gnau and House negligently failed to adopt and to use them. Children have as much right to use such precautions in guarding said lime bed use the streets as grown persons, and the as were reasonably necessary to protect children city has not performed its duty when it mainusing said street from injury, and that by rea- tains its streets in reasonably safe condition son of such failure upon their part, or of either for the use of adults, but leaves them in an

of , if any of them did so fail, the plaintiff received unsafe condition for use by children. If it the injuries of which he complains, the law is requires a higher degree of care to keep the for the plaintiff as against the defendants Gnau streets safe for use by children than it does and House, and the jury should so find."

“But, unless you shall so believe from the to keep them safe for use by adults, then the evidence, the law is for the defendants Gnau and city must exercise this degree of care, as House, and the jury should so find."

the ordinary care exacted of the city in the In the second instruction the jury were maintenance of its streets means ordinary told that:

care in respect to all who have the right to "It was the duty of the defendant city of use the streets. It cannot excuse itself from Louisville to keep its streets and highways, in- liability, as attempted in this case, by saying cluding Magnolia avenue, at the place indicated that this lime bed was in a well-lighted street in the evidence, in a reasonably safe condition for use by persons lawfully using the same, and and so conspicuous as that no adult, in the to exercise ordinary care to cause the precau- exercise of reasonable care, would walk or go tions referred to in the first instruction to be into it, and so, having exercised this meastaken by the defendants Gnau and House while ure of care, it was not required to keep the the lime bed referred to in the evidence remained in the street for the construction of said build- place reasonably safe for children. The city ing under said permit; and if the jury shall be- must take notice of the use of its streets by lieve from the evidence that Magnolia street, children, and if it places, or permits to be sonably safe for use by the public by reason of placed, in the streets, an attractive nuisance the lime bed referred to in the evidence, and if that is dangerous to children of immature the jury shall further believe from the evidence years and thoughtless habits, it will be anthat the defendant the city of Louisville failed swerable for any injury they sustain in conto exercise ordinary care to cause the precautions referred to in the first instruction to be sequence of its failure to exercise ordinary taken by Gnau and House, and that by reason care to keep its streets in reasonably safe Ky.)

GNAU V. ACKERMAN

221

of care required of a city and its duty in it unsafe for public use, and when the city respect to its streets extends alike to all granted this permission to Gnau it underclasses using the streets, the old and young, took, as between it and persons using the the strong and the weak, and it owes to each street, that Gnau would not place any danof them precisely the same degree of care, al- gerous obstructions in the public way, and though this measure of care may impose up Gnau undertook that he would not do anyon it the necessity of taking greater precau- thing that would make the street unsafe for tions as to one class than would be required public use. as to another class. This does not mean [8] If, then, the use that Gnau made of the that under any circumstances the city is street made it unsafe for public use, both the obliged to do more than exercise ordinary city and Gnau became jointly and severally care to keep its streets in reasonably safe liable for injuries suffered in consequence condition for use. It only means that it thereof. Their measure of duty and liabilmust take notice of the different classes of ity was precisely the same. people that use its streets, and must main- [9] It is scarcely necessary to add that tain them in order for use by these several Gnau was responsible, not only to the city, classes, although this may demand more but to the public, for any negligence on the care than would be necessary if only one part of contractors employed by him to do class of people used the streets.

the work. He could not excuse himself from [6] The city granted permission to Gnau either his duty or his liability by employing to place this obstruction or attractive nui- other persons to do what he had been sance to children in the street, and therefore granted permission by the city to do. The it occupies precisely the same attitude as city gave permission to Gnau to place mateif it had placed this obstruction in the street. rial in the street, and if he, under that grant, The city could not, by granting this permis- permitted or authorized others to do what he sion, relieve itself of the duty it owed to had the right to do, he, of course, assumed keep its streets in reasonably 'safe condition responsibility for their conduct, although for use. The duty of keeping its streets in they might also be liable, in connection with condition for use is an absolute duty that the Gnau and the city, to any person injured city cannot delegate to others and thereby by reason of their negligence: The princiexcuse itself. When it grants permission to ples we have set forth as governing in this another party to place an obstruction in its case are fully supported by the following streets, it must take notice of the nature and authorities: Bransom's Adm'r v. Labrot, 81 character of obstruction so placed and the Ky. 638, 50 Am. Rep. 193; U. S. Natural Gas manner in which it is maintained, and see to Co. v. Hicks, 134 Ky. 12, 119 S. W. 166, 23 it that it does not make the street unsafe for L. R. A. (N. S.) 249, 135 Am. St. Rep. 407; use by the public. If this were not so, the Sydnor v. Arnold, 122 Ky. 557, 92 S. W. 289, city could, by granting permits to occupy its 28 Ky. Law Rep. 1250; Louisville R. Co. v. streets, relieve itself entirely of the duty it Esselman, 93 S. W. 50, 29 Ky. Law Rep. 333; owes the public; and we do not know of any Snare & Triest Co. v. Friedman, 169 Fed. authority that would countenance a doctrine 1, 94 C. C. A. 369, 40 L. R. A. (N. S.) 367. like this.

There is some complaint made of the action [7] In the case we have the property own- of the trial court with respect to argument er, Gnau, secured from the city the right to of counsel, but we find no objection to the place this lime bed in the street, but this course pursued by the trial court. did not have the effect of excusing the city [10, 11] It is next contended on the part of from the care imposed upon it, or have the both appellants that the verdict is excessive. effect of excusing Gnau from the duty he We do not think so. This little boy has been owed not to leave the street in such condi- made a cripple for life. Aside from the other tion as to be unsafe for the uses to which it burns upon his body, his left hand and arm was set apart and dedicated. If Gnau, with- are not only dreadfully disfigured, but their out obtaining permission from the city had use is totally destroyed. Just what ought to placed a dangerous obstruction in the street, be or should be reasonable compensation for there could be, of course, no question about an injury like this it is not possible to deterhis liability in damages to any person in- mine with mathematical accuracy, or, indeed, jured by the obstruction, if it developed that with even reasonable accuracy. No rule it rendered the street unsafe for public trav- has ever been or ever can be laid down by el, and in such a state of case the city would which the damages allowable in personal be jointly and equally liable with Gnau if it injury cases may be carefully measured or had notice of the obstruction in time to take computed. The best that can be done under such measures as might be necessary to re- these circumstances is to leave what is fair move or protect it. Now, this duty and cor- and right to the judgment and discretion of responding liability of Gnau was not dimin- the 12 men who compose the jury, and their ished by the fact that he obtained permis- judgment and discretion we are not authorsion to place the obstruction in the street. ized to, and will not, interfere with, unless The city did not give him the right to un- it appears that their assessment was influenc

*"

able as to appear at first blush entirely dis-, tiff asked for a new trial on other grounds proportionate to the injuries sustained. Nei- than the smallness of the verdict, and we ther of these conditions appear in this case, think the court, in the exercise of a sound and therefore we will not disturb the judg. discretion, may have granted the new trial ment on the ground that it is excessive. on other grounds than the smallness of the L. & N. R. R. Co. v. Mitchell, 87 Ky. 327, 8 verdict. S. W. 706, 10 Ky. Law Rep. 211; Louisville [15] Another reason assigned for reversal R. Co. v. Bryant, 142 Ky. 163, 134 S. W. is that there was no evidence to show that 182; L. & N. R. R. Co. v. Pedigo, 129 Ky. the little boy had been attracted to the sand 664, 113 S. W. 116.

pile, or that it was what may be called an [12] Another ground urged for reversal is attractive nuisance. There was evidence that the court erred in setting aside the first that other children had been playing in this verdict for $1,000. The Code provides, in sand pile for several days, and no direct evisection 341, that:

dence was needed to show that the little A new trial shall not be granted on account boy who was injured had been attracted to of the smallness of damages in an action for an the sand pile or that it was what may be injury to the person or reputation. * *

called an attractive nuisance. That a sand Under this section the trial court is not pile is attractive to children and a place authorized to grant a new trial in personal where they delight to play is a matter of injury cases on the sole ground that the re

such common knowledge in the everyday covery is inadequate, independent of a re

affairs of life that courts and juries may covery for special damages, if such damages take notice of it without direct evidence on are claimed. But if the inadequacy of the the subject. 4 Wigmore on Evidence, $ 2570; verdict is attributable to errors committed during the trial of the case, or if a new trial Craig v. Durrett, 1 J. J. Marsh. 365, 19 Am. should be granted for other errors than the Every person who ever saw a pile of sand

Dec. 103; Baum v. Winston, 3 Metc. 127. smallness of the damages, the mere circum- in an accessible place where young children stance that the damages are inadequate, or that this may be one of the causes for grant- Everybody further knows that an ordinary

play knows its attractiveness for them. ing a new trial, does not interfere with the Everybody further knows that an ordinary right of the court to set aside the verdict. sand pile is perfectly safe for children to Pendley v. I. C. Railroad, 92 S. W. 1, 28 Ky. play in at all times and under all circumLaw Rep. 1321; Gainesv. Madisonville,

stances, and when an ordinary sand pile, Hartford & Eastern R. R. Co., 143 Ky. 250, converted into a place of great danger, as,

located in a place accessible to children, is 136 S. W. 230.

for example, when a bed of slaking lime is [13] Of course, if it appeared that the trial court set aside the first verdict solely on ac- put in the middle of it, the person who concount of the smallness of damages, we would verts this place of perfect safety into a place have a case coming directly within the pro- he protects it.

of extreme danger needs to be careful how vision of the Code denying to the trial court

The judgment is affirmed. the right to set aside the verdict on this ground. But where grounds other than the inadequacy of the verdict are relied on to obtain a new trial, and these grounds, or MASON & HURST CO. et al. v. FELTNER. some of them, are sufficient to justify the trial court in directing a new trial, we will (Court of Appeals of Kentucky. Oct. 19, 1915.) not assume that the new trial was granted 1. PLEADING C 403-DEFECTIVE PETITIONsolely because the recovery was inadequate,

CURE BY ANSWER. when the record, as in this case, does not action for injury was defective in not negativ

Whether or not the petition in a servant's show the reasons that influenced the trial ing his contributory negligence, it was cured by court in ordering a new trial. Norvell v.

answers affirmatively alleging that plaintiff was Paducah Box & Basket Co., 157 Ky. 703, 163 denied by reply, so that issue was joined, and

guilty of contributory negligence, which was S. W. 1106; Greenberg v. Hyman & Oppen- the case submitted thereon. heim, 159 Ky. 618, 167 S. W. 914; McLemore [Ed. Note.-For other cases, see Pleading, v. Evansville & Bowling Green Packet Co., Cent. Dig. $$ 1343–1347; Dec. Dig. Om403.] 160 Ky. 566, 169 S. W. 1006.

2. MASTER AND SERVANT O264-PLEADINGS [14] It has been frequently announced by AND ISSUES-INDEPENDENT CONTRACTOR. this court that the discretion of the trial the petition alleged that it occurred on the de

In a servant's action for injury wherein court in granting a new trial will not be fendant railroad's property, that the railroad had interfered with unless it appears to have employed a contractor, and that both had embeen abused, or it appears that in granting ployed plaintiff to work there, and where the it the court transcended its authority under railroad and the contractor admitted that the

by the Code. Wilhelm v. Louisville Ry. Co., move all the stone and other material out of the 147 Ky. 196, 143 S. W. 1013; Conley v. Cen- tunnel by the yard, according to specifications, tral Kentucky Traction Co., 152 Ky. 764, and the reply to the answer of the railroad con

troverted its allegations as to the contractor's 154 S. W. 41.

doing the work by the yard or according to In this case it appears that the plain-specifications, but did not join issue on the conKy.j

MASON & HURST CO. V. FELTNER

223

tractor's answer in such regard, the issue rais- / Whether or not the petition was defective in ed was whether the work was done by an in- this regard, the answers cured it. This was dependent contractor.

[Ed. Note.--For other cases, see Master and denied by reply, so that issue was joined and Servant, Cent. Dig. 88 861-876; Dec. Dig. Om the case submitted upon these propositions. 264.]

[2] The appellant Lexington & Eastern 3. MASTER AND SERVANT C265ACTION FOR Railway Company contends that the court

INJURY-BURDEN OF PROOF-INDEPENDENT erred in failing to direct the jury peremptoriCONTRACTOR.

Under such pleadings, the burden was only to find for it, because, as it says, there is the railroad to establish the fact that the work no proof to sustain the allegation that the was done by an independent contractor. plaintiff was employed by the railroad. The

[Ed. Note.--For other cases, see Master & Serv- injury occurred while he was employed and ant, Cent Dig. 88 877–908, 955; Dec.Dig. Cwm 265.] at work on its property where it was having 4. MASTER AND SERVANT 101, 102, 265–a tunnel driven. The petition charged that BOILER EXPLOSION-PRESUMPTION-NEGLI- the railroad had "employed" the Mason & GENCE.

A master operating a boiler is required to Hurst Company to do this work, and that exercise ordinary care to prevent injury, and both companies had “employed” the boy to an explosion does not give rise to a presump- work there. tion of negligence.

Appellants find separate answers, and each [Ed. Note.-For other cases, see Master and Servant, Cent. Dis. $$ 135, 171, 174, 178-184, admits “that Mason & Hurst Company were 192, 877-908, 955; L'ec. Dig. Om101, 102, 265.] employed to and did build for the railroad 5. APPEAL AND ERROR O 172 QUESTIONS

company the tunnel in question, and that the NOT RAISED BELOW.

Mason & Hurst Company” contracted with it In a servant's action for injury from a boil. (the railroad) to move all the stone and other er explosion, where the petition only showed material out of the tunnel at so much per that he was under 21 years of age, and only charged negligence with respect to defendant's cubic yard, and that they were to do said operation of the boiler, his recovery was lim- work according to plans and specifications ited to the negligence alleged, and he could not furnished by it. A reply was filed to the anfor the first time on appeal raise the issue that swer of the railroad which controverted the he was only 13 years of age, and was employed swer of the railroad which controverted the in violation of Ky. St. $ 331a, subsec. 9, making allegations with reference to Mason & Hurst it unlawful to employ a child under 16 in work Company doing the work under contract or dangerous to life, and under which the doc- by the yard, or according to plans and specifitrines of assumed risk, fellow servant, and con- cations. It is immaterial that issue was not tributory negligence do not apply.

[Ed. Note. For other cases, see Appeal and joined on the Mason & Hurst answer in this Error, Cent. Dig. $$ 1070-1078; Dec. Dig. regard. The issue raised by the pleadings Om 172.]

was whether the work was done by an indeAppeal from Circuit Court, Perry County.

pendent contractor. Action by Bert Feltner, by his next friend,

[3] Under the pleadings, the burden was against the Mason & Hurst Company and upon the railroad to establish that fact, beanother. Judgment for plaintiff, and defend- cause its answer affirmed it. Although there ants appeal.

is an absence of proof on the question, still Reversed and remanded for

it can only operate to the disadvantage of new trial.

the railroad and not to the appellee. Wootton & Morgan, of Hazard, Samuel M. A more serious question is whether there Wilson, of Lexington, and Benjamin D. War-was evidence to sustain the charge of negfield and Chas. H. Moorman, both of Louis- ligence in the operation of the boiler which ville, for appellants. F. J. Eversole, and exploded. The boiler was located about 175 Hogg & Johnson, all of Hazard, for appel- yards from the mouth of the tunnel, and lee.

steam was piped from it to the tunnel to

operate drills. The plaintiff was employed NUNN, J. Appellee, an infant under 21 as a water boy, but it was his duty also to years of age, brought this action by his father, run errands. At the time in question there as next friend, against the Mason & Hurst was a failure of steam supply at the drills Company and the Lexington & Eastern Rail in the tunnel, and the drill men sent the boy way Company to recover damages for injuries to the boiler to notify the fireman of the received in a boiler explosion, and obtained fact and request him to turn on the steam. a verdict and judgment against them jointly When he got nearly to the boiler and had for $2,500. There was proof that he was just spoken to the fireman the explosion ocbadly scalded about the head and face, and curred. Nothing more is known or told about one eye and one ear permanently injured. the circumstance, except that the boy saw

[1] The appellants seek a reversal upon two Austrians packing water for the boiler. several grounds. The first is that the peti- One of them was near by, and the other was tion does not negative contributory negli- going down the river bank with two buckets. gence. The appellants, by separate answers, Several days later the Mason & Hurst Comaffirmatively set up that the plaintiff was pany sent a man named Gambrel to repair guilty of contributory negligence, and but the boiler. Describing the boiler as he found for which he would not have been injured. | it, he says:

Yes."

"The stay bolts had given way that holds the Statutes. By that section it is made unlawcrown sheet up to the outside of the boiler. ful to employ a child under 16 years of age The tensile of the boiler was weak.”

to work in any occupation dangerous to life, Without a show of further facts upon limb, or health. In such cases the doctrine which to base an opinion he was asked to of assumed risk, fellow servant, and contribuventure one upon the "cause of the bolts tory negligence have no application. Had the coming loose and the crown sheet falling." petition been framed and the case practiced He answered:

on that theory, the sole question for submis“The water gets off the top of the crown sion to the jury, under the proof as we now sheet and you've got a high pressure, and that causes the tensile strength of the boiler to give have it, would have been whether the occupaway, and that pulls out the stay bolts that bolts tion of the boy at the time was dangerous to it up. Q. That is turning the water on? A. life or limb. L., H. & St. L. Ry. Co. v. Lyons,

155 Ky. 396, 159 S. W. 971, 48 L. R. A. (N. S.) Manifestly if the water is permitted to 667; Stearns Coal & Lumber Co. v. Tuggle, get too low in any boiler, and cold water is by, etc., 156 Ky. 714, 161 S. W. 1112. The turned in upon high steam pressure, an ex: appellee's difficulty is that he is seeking to plosion will result, but the witness Gambrel raise these issues for the first time on appeal. was not there at the time of the explosion, From the petition it is merely made to apand does not intimate that such conditions pear that the boy is under 21 years of age, existed in this case. There is no proof about and even that statement is made to justify the stage of water in the boiler, or the the suit by his next friend. The only negliamount of steam pressure, or of any attempt gence charged had reference to the operato turn water into the boiler.

tion and management of the boiler. AppelThe petition charges that:

lee for recovery is confined to the negligence "The injuries were caused by the negligence and carelessness of defendants in the operation

alleged. of said boiler and by the negligence and care

As the record stands on this appeal, we are lessness of the servants of defendants who oper- compelled to reverse the judgment, because ated and managed said boiler at the time.

there is no evidence of the negligence alleged. We have made reference to the only evi- The case is reversed and remanded for a dence on the proposition. It does not show new trial consistent herewith. that the appellants or their servants were negligent or careless in the operation or management of the boiler. The only thing established is the fact of the explosion and DWIGGINS WIRE FENCE CO. v. PATTER

SON. the condition of the stay bolts and crown sheet afterwards—a condition common to (Court of Appeals of Kentucky. Oct. 19, 1915.) most boiler explosions, negligent or not.

1. CONSTITUTIONAL LAW Cm 48 — CONSTRUC

TION IN FAVOR OF CONSTITUTIONALITY. [4] The case resolves itself down to wheth

The courts will not declare an act unconer a boiler explosion gives rise to the pre- stitutional unless it is plainly so, and, in case sumption of negligence; that is, whether the of doubt, will resolve the doubt in favor of its doctrine of res ipsa loquitur applies. This

validity.. was answered in the negative in the recent al Law, Cent. Dig. $ 46; Dec. Dig. www48;

[Ed. Note.-For other cases, see Constitutioncase of Branham's Adm'r v. Buckley, 158 Ky. Statutes, Cent. Dig. $ 56.] 848, 166 S. W. 618, where in a case like this 2. CONSTITUTIONAL LAW Cm 87–POLICE Powthe duty of the defendants was the exercise ER--SCOPE-FRAUD. of ordinary care to prevent injury:

The state has power to regulate the ac“The fact of an explosion of a steam boiler erty, and to prevent fraud and protect its citi

quisition, enjoyment, and disposition of propcreates no presumption of negligence.”

zens against the consequences of fraud. Police In addition to the cases there cited, Louis-regulations are not rendered invalid because ville Gas Co. v. Kaufman, Straus & Co., 105 they may incidentally affect the exercise of Ky. 131, 48 S. W. 434, 20 Ky. Law Rep. 1069, it is only where they are unreasonable or

some right guaranteed by the Constitution, and is to the same effect.

constitute an unjustifiable impairment, or A leading case on the subject is Huff v. abridgment of the right that the courts will deAustin, 46 Ohio St. 386, 21 N. E. 864, 15 Am. clare them invalid.

[Ed. Note.-For other cases, see ConstitutionSt. Rep. 613. We quote:

al Law, Cent. Dig. $$ 156–171; Dec. Dig. Om “Instances are not infrequent of steam boil. 87.] er explosions where there has been no want of ordinary care and skill in their management, 3. CONSTITUTIONAL LAW Ow87–FRAUDULENT and even where there has been the greatest

CONVEYANCES O3—DEPRIVATION OF PROPcare; and explosions of steam boilers have hap

ERTY-BULK SALES ACT.

The Sales in Bulk Act (Laws 1904, c. 22) so $ could not, with confidence, be assigned to any vent fraudulent sales, and providing by sec known cause.”

tion 1 that sales by a merchant of any part of [5] In reply to this appellee calls atten- his stock other than in the ordinary course of tion to the fact that the evidence shows the trade, or a sale of his entire stock in bulk, boy was only 13 years old at the time of his shall be fraudulent and void as against the sell

er's creditors unless the purchaser shall ininjury, and that he was employed in viola- quire of the seller as to the names and resition of section 331a, subsec. 9, Kentucky ) dences of each of the seller's creditors in the

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