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(180 Ky. 653)

of the losing plaintiff to appeal is the sum JULIAN V. UNITED CLOTHING STORES. that his evidence shows him entitled to re(Court Appeals of Kentucky. May cover. 3 Corpus Juris, 397; Wilson v. Dick21, 1918.)

enson County Bank, 159 Ky. 102, 166 S. W. 1. APPEAL AND ERROR 56 - AMOUNT IN 790; Chenault v. Bank of Arlington, 159 Ky.

Om CONTROVERSY.

104, 166 S. W. 789, and cases in note 8a When the right to appeal is dependent upon to section 950 of the Kentucky Statutes. the amount in controversy, the judgment fixes the amount governing the right of an appeal

In the Chenault Case, which was an appeal by the defendant, but the amount governing by plaintiff who lost below, the amount the right of the 'losing plaintiff to appeal is sought to be recovered by the petition was the sum that his evidence shows him entitled

$200, but the proof conclusively showed that to recover. 2. APPEAL AND ERROR @w 361(2)—AMOUNT in no event was he entitled to recover a IN CONTROVERSY.

greater sum than $120. This court dismissed Under Ky. St. $ 950, subsec. 3, providing the appeal, saying: that where the amount in controversy is $200, exclusive of interest and cost, and less than by appellant at $200, the evidence introduced

"While the petition lays the damages sued for $500, appeal shall be taken by filing a copy of in his behalf on the trial, as furnished by the the record with the clerk of the court of ap- bill of exceptions, conclusively shows the dampeals and the appellant entering a motion for the granting, of an appeal, where during the ages, if any were sustained by him, to be far trial of a suit in circuit court to recover $500 less than that amount, and that they did not

* The fact that the damplaintiff admitted a credit reducing the amount ages claimed in the petition amount to $200 he would be entitled to recover in any event cannot give this court jurisdiction of the ap; to $484, appeal was improperly prosecuted un- peal, where the plaintiff's own evidence and der an order granting it by the circuit court, all the evidence heard on the trial in the court rather than by motion by appeal in the Court below clearly shows, as in this case, that the of Appeals.

damages actually sustained by him were less Appeal from Circuit

Court, Fayette than $200." County.

Under that rule the amount involved here, Action by T. G. Julian against the United so far as appellant is concerned, is only Clothing Stores. From judgment for defend the sum of $484. ant, plaintiff appeals. Appeal dismissed. [2] Subsection 3 of section 950 of the Ken

J. A. Edge, of Lexington, for appellant. tucky Statutes provides that in all cases J. N. Elliott, of Lexington, and Manton Da- where the amount in controversy is as much vis, of St. Louis, Mo., for appellee.

as $200, exclusive of interest and cost, and

less than $500, the appeal shall be taken by THOMAS, J. Plaintiff, the eppeilant,

filing a copy of the record with the clerk of brought this suit against the defendant, the the Court of Appeals and the appellant enappellee, to recover rent for a store building tering a motion for the granting of an apin Mt. Sterling, Ky., for the first eight peal. In such cases no áppeal can be prosemonths of the year 1914, which was fixed cuted under any order granting it by the cirat $80 per month, subject, however, to a

cuit court. Searcy v Golden, 172 Ky. 42, 188 credit of $140, which plaintiff admitted that S. W. 1098, and Childers v. Ratliff, 164 Ky. he had collected from a subtenant under the 123, 175 S. W. 25. The remedy is by a modefendant, who, it was claimed. had the tion for an appeal to be made in this court. property rented, leaving a net balance of Same cases, and Oman-Bowling Green Stone $500, for which judgment was asked. A can- Co. v. L. & N. R. R. Co., 169 Ky. 832, 185

. cellation of the lease was insisted upon in S. W. 118. the answer, and it made an issue as to de- from the order of the circuit court granting

The appeal now before us is prosecuted fendant's liability for any part of the rent. Upon trial, the jury under instructions from it. No motion has been made in this court the court returned a verdict for the defend- for an appeal, and under the authorities, ant, and complaining of it the plaintiff pros- supra, the appeal must be, and it is, dis

missed. ecutes this appeal. We find ourselves without jurisdiction to consider and determine

(180 Ky. 697) any of the questions presented, because the

WILLIAMS V. INTER-SOUTHERN appeal has not been properly prosecuted.

.

LIFE

INS. CO. During the trial the plaintiff admitted a just credit, for which he had made no allowance (Court of Appeals of Kentucky. May in his petition, of the sum of $16, which would

24, 1918.) reduce the amount to which he would be en- INSURANCE Om 232 - LIFE INSURANCE titled to recover in any event to the sum of CANCELLATION-RIGHT OF ADMINISTRATRIX $484.

TO RECOVER.

Where the insured, having paid eight pre[11 The law is well settled that when the miums and borrowed full loan value, notified right to appeal is dependent upon the amount the company, when the ninth premium was in controversy the judgment fixes the amount past due and the amount of the loan and the

interest thereon exceeded the amount paid, to governing the right of an appeal by the de

return the amount of the ninth premium and fendant, but the amount governing the right interest and to keep the policy, if he were re

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

quired to have a new certificate of health for , stated only upon payment of his debt, acreinstatement, and the company canceled the companied by a physician's certificate that policy, his administratrix could not recover.

he was in good health. Appeal from Circuit Court,

Circuit Court, Christian On December 4th the company wrote WilCounty.

liams, notifying him that his period of grace Action by Elizabeth C. Williams, as ad- expired on that day, urging him to send a ministratrix of Benjamin W. Williams, de- check for his unpaid balance, and saying he ceased, against the Inter-Southern Life In- could be reinstated upon presenting the reqsurance Company. From a judgment for de- uisite health certificate. illiams ignored fendant, plaintiff appeals. Affirmed.

this letter. On January 28, 1914, the comGeo. H. Galloway, of Bowling Green, and pany again wrote him to the same effect. Trimle & Bell, of Hopkinsville, for appel- On February 2, 1914, Williams sent the comlant. Helm Bruce and Clarence C. Smith, pany a check for $8.68 to pay his balance both of Louisville, and Hunter Wood & Son, due November 4, 1913, but failed to send the of Hopkinsville, for appellee.

health certificate. Williams explained that

he had moved from Trenton, Ky., to HopMILLER, J. By this action the appellant, kinsville, Ky., that his health was good, and as the administratrix of the estate of Ben that if the company required him to go back jamin W. Williams, deceased, sought to re- to Trenton to be examined there by Dr. Gowcover $1,000 under a policy issued November er it "could just return his check and cancel 4, 1905, upon the life of the decedent. The the policy.” On February 24th, and again amount of the cash surrender value of the on February 28th, the company wrote Wilpolicy is the only disputed fact, and it is liams, requesting him to submit to a physisettled by an express provision of the policy. cal examination, and advising him that until The policy was issued upon the 20-payment an examination was made his remittance life plan, and the annual premium was $38.34, could not be applied in payment of his prewith a grace of 30 days for its payment. mium. The company wrote Williams simiWilliams paid 8 premiums. At the time he lar letters on March 7th and March 25th, to paid the eighth premium, on November 4, which he made no reply. Finally, on May 1912, Williams borrowed $182 from the com- 4, 1914, the company sent Williams a check pany, which was the full loan value, and for $41.53 in satisfaction of his two payonly 14 cents less than the full cash surren- ments made as above explained, advising him der value of the policy. Williams executed that his policy had lapsed, but that, if he his note to the company for $182, bearing in- should care to reconsider and reinstate the terest at 5 per cent., payable annually in policy, it would instruct Dr. Stone to make advance. When the ninth premium became the necessary examination. To this letter due on November 4, 1913, the company had Williams replied on May 5th, acknowledgapportioned a dividend of $5.91 upon this ing the receipt of the company's letter and policy, which was credited upon the premi- check, and saying that “rather than be exum, leaving $32.43 due thereon. There was amined you may keep my policy.” The com

, also due the annual interest charge of $9.10 pany closed the correspondence on May Sth, upon the note. Accordingly, when the ninth by acknowledging the receipt of Williams ' premium became due, Williams' account with letter of May 5th, and advising him that he the company stood as follows:

had secured the full cash value of his policy Ninth premium, due November 4, 1913 $38.34 in the loan of 1912, and that the return of Less dividend credited thereon

5.91 the $41.53 to Williams "settles in full of all

amounts due you under the policy." NothLeaving net balance on premium of $32.43 ing further passed between the parties, and Plus one year's interest on loan

9.10

Williams died in the following July. Total due $41.53 The case was, by agreement, tried by the

, The usual premium notice was mailed to court without a jury, and resulted in a judg

a Williams' on October 9, 1913, and was receiv- ment for the company. The plaintiff appeals. ed by him. Williams, however, mislaid the The plaintiff rested her case below, and notice, and presumably, acting from mem- now asks a reversal, upon two grounds: (1) ory, on November 21st, he sent the company That the company brought about the surrena check for $32.85. The company cashed the der of the policy through false representacheck and placed the proceeds in an account tions; and (2) that when the premium bedesignated as "Items Subject to Return," came due on November 4, 1913, the cash surwrote Williams, reminding him that his check render value of the policy exceeded Wilwas $8.68 short of the amount due the com- liams' indebtedness to the company by $21.pany, and requesting a check for the bal- 04, and that the policy did not lapse for that ance. The grace period for the payment of reason. the premium expired December 4, 1913, and The first ground is not sustained by any by the terms of the note, if the amount of proof, and will be passed without further the loan, with interest, should equal or ex- comment. The second ground is based upon ceed the cash value of the policy, the policy a mistake of fact, since the policy, on its should lapse, without demand or notice, and, face, shows that its cash surrender value,

$182.14, and not $211.72, as claimed by ap- ington, for appellants. J. M. Benton, of pellant. But, without going into a discus- Winchester, and Shelby, Northcutt & Shelby, sion of that feature, we deem it sufficient to of Lexington, for appellees. say that Williams agreed to the cancellation of his policy and received back his mon- HURT, J. William Piersall and Phillip ey, amounting to $41.53. He never after- Black were traveling from Lexington in the wards made any claim against the com- direction of Winchester in an automobile, pany, and the company certainly never there which was owned and being driven by Black. after had any money whatever in its hands At a public crossing of the track of the that could have been applied to the payment Chesapeake & Ohio Railway Company over of the ninth premium. Williams and the the pike, upon which they were traveling at company having agreed upon a settlement of Pine Grove, the automobile and a fast train the differences between them, it will not be of the railway company collided and caused disturbed after his death.

the deaths of both of the occupants of the Judgment affirmed.

automobile. An action was instituted by the

administrator of each of the decedents (180 Ky. 659)

against the railroad company and its enPIERSALL'S ADM'R v. CHESAPEAKE & gineer and fireman, who were operating the 0. RY. CO. et al.

train, to recover from them the damages

sustained by each of their estates because BLACK'S ADM'R V. SAME.

of their deaths. The contention of the ad(Court of Appeals of Kentucky. May 24, 1918.) ministrators of the deceased parties is that 1. NEGLIGENCE Cw136(8)–QUESTIONS OF LAW the ones who were operating the train negliAND FACT.

Where there is no contradiction as to the gently ran the train against the automobile facts of a personal injury case, the question as as it was crossing over the track of the railto whether or not there was actionable negli- road, and thus caused the death of the ocgence is one of law for the court.

cupants, while the railroad company denies 2. RAILROADS 310- PUBLIC CROSSINGS - that there was Om

that there was any negligence in the operaCARE REQUIRED.

When a railroad train approaches a public tion of the train, or that the train was run crossing, it is the duty of the company to give against the automobile, but, upon the other such warnings of the approach of the train, and hand, that the deaths of the occupants were to take such precautions to avoid injury to caused by their negligently running the aupersons using the crossing, as is commensurate tomobile against the train as it was passwith the danger of the particular crossing, although such warning need not be effective, so ing over the crossing, or at least that they as to amount to a guaranty of the safety of failed to exercise ordinary care for their persons using the crossing.

own safety in attempting to cross the track 3. RAILROADS Om 350(5)–PUBLIC CROSSINGS- at the time, and that such negligence so CARE REQUIRED—QUESTIONS OF FACT.

Where justified by the facts, it may be prop- contributed to their deaths; that but for er to submit to the jury the question whether it they would not have suffered any injury. a railroad in the exercise of proper care should The charges of negligence against the dekeep a flagman at public crossings or adopt cedents were denied by the administrators. some other precaution to protect the public. 4. RAILROADS 350(11) - CROSSING ACCI. The evidence applying to each of the actions DENTS-QUESTIONS OF FACT–SPEED.

being to a large extent necessarily the same, In an action for death of a passenger in an they were heard together in the circuit court, automobile through being struck by a train at a railroad crossing, plaintiff was not entitled to and at the conclusion of all the evidence, have the question of negligent speed of the train which was offered by the plaintiffs, the court submitted to the jury where the crossing was sustained a motion to direct the jury to located in the open country, and was not excep- find a verdict for the defendants in each actionally dangerous. 5. RAILROADS 310-CROSSING ACCIDENTS- tion, and rendered a judgment denying the EVIDENCE.

relief sought, and dismissing the petition in In an action for the death of a passenger in each case. From the judgment in each acan automobile struck by defendant's railroad | tion the plaintiff has appealed, and seeks a train at a public crossing, where the uncon- reversal upon the ground that the court erred tradicted evidence showed that the customary and statutory warnings were given, and that in peremptorily directing the jury to find a the peril of decedent was not discovered until verdict for the defendants. it was impossible to avoid the collision, there

[1] The particular ground upon which the was no negligence on defendant's part.

court based its action in directing the verAppeal from Circuit Court, Clarke County. dict as it did does not from the record ap

Actions by William Piersali's administra- pear; hence it will be first considered whethtor and Phillip Black's administrator againster the evidence heard tended to prove any acthe Chesapeake & Ohio Railway Company tionable negligence upon the part of the deand others. From judgment for defendants fendants, which was the proximate cause of on a directed verdict in each case, plaintiffs the deaths of the decedents, or in other appeal. Affirmed in each case.

words, whether there was any issue made in Pendleton & Bush and B. R. Jouett, all of the evidence of negligence on the part of the Winchester, and Franklin & Talbott, of Lex. I defendants which necessitated the submission

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

of the issue to the jury, for if there was no , of the crossing. There are two storehouses contradiction as to the facts, the question as within the same radius; one to the north to whether or not there was actionable neg- and the other to the south of the crossing, ligence was a question of law for the court. but at what distances from it does not apL. & P. Canal Co. v. Murphy, 9 Bush, 522; pear. The pike, as it approaches the crossDolfinger v. Fishback, 12 Bush, 478; L. & ing from the north, has an ascending grade N. R. R. Co. v. Raines, 23 S. W. 505, 15 Ky. of 3 feet in 100 feet, from about 250 feet to Law Rep. 423; L. & N. R. Co. v. Breeding, the northward up to the crossing. From a 13 Ky. Law Rep. 397.

point upon the pike 100 feet to the north of The Pine Grove station or depot is a build- the crossing and probably further, a person ing, which is situated upon the north side of in an automobile approaching the crossing the railroad track and about 15 feet from from the northward can see a train apthe middle of it. In front of the building proaching the crossing from the east at a and within a foot or two of it there is erect- point 500 feet to the east of the crossing, and ed an iron post about 4 inches in diameter, his view of an approaching train is not obwhich is called a signal tower. Upon the scured in any way until he arrives at a point south side of the track and about the same 57 feet from the track, when his view of a distance from it as the depot building is a train approaching from the east is cut off house used for a warehouse. Directly north by the depot building for a distance of 42 of the depot building and about 19 or 20 feet and until he passes the depot and is 15 feet from it is a small storehouse, and 200 feet from the track, when he can see such of 300 feet east of the storehouse, but some a train at a point 900 feet or further to the what closer to the track, is a small outhouse east of the crossing, and when upon crossing of some character or other. The railroad or within a few feet of it can see an aptrack at this point is a line from Winchester proaching train upon the track for a mile or to Lexington, and follows a course which is more. from the east to the west, and for a dis- Four eyewitnesses of the tragedy testified tance of about 10 miles to the east and to upon the trial. Two of them were the enthe west of the station, though how far ei- gineer and fireman in charge of the train, ther way the evidence does not disclose, the and the other two were persons who resided track is substantially a straight line, and beside the pike along which the decedents has a slight ascending grade from about approached the crossing, and at a point about 2,500 feet east of the station to about 900 85 steps, of 3 feet each, or 255 feet, to the feet east of the station, from which point it west of the crossing, and who were, at the has a descending grade of approximately time, in plain view of the crossing over the eight-tenths of 1 per centum to a point railroad track as well as the pike, from the which is 2,000 or more feet to the westward place where they were to the crossing. They of the station. Coming from the east the both testified to having heard the steam track passes through a cut, which, at a point whistle of the approaching train give a long 9T0 feet to the east of the station, is about signal when at the whistle post to the east 20 feet in depth, and decreases in depth un of the station, and just at that time the decetil 500 or 600 feet of the station, where it is dents passed them in the automobile, and only 5 or 6 feet in depth, and disappears traveling at a rate of 15 to 20 miles per hour. before arriving at the station. It does not The automobile continued on toward the appear that a train is hidden from view by crossing, and one of these parties testified the cut in any place within 300 yards of the that it made no check in its speed, until it station when viewed from any point in the collided with the train, but the other said neighborhood of the station, and from the that when it began to go around the curve crossing a train may be seen approaching in the pike, 70 or 80 feet from the crossing, the station from the east for a mile or two. its speed seemed to slightly decrease, and as A whistling post for the station is erected it was passing around the curve at a dis2,570 feet east of the station.

tance of from about 40 to 60 feet from the The pike, which the decedents were travel crossing they heard the whistle on the aping from Lexington, approaches the cross- proaching train sounding the signals for the ing from a direction slightly north of west, crossing. One said four and the other that but when it arrives within 60 or 70 feet of three signals were given by the whistle, and the crossing the pike curves sharply to the the last one was given when the engine was southward, and passes over the railroad about 80 feet from the crossing. The autotrack at the grade at right angles to the mobile did not stop nor make any check in track and immediately to the west of the its movements, except as stated, but went depot and the warehouse, which is on the forward, and at the crossing it and the train, opposite side of the track from the depot. as the witness described it, "met." Near the pike to the north and south of the Neither of the occupants of the automocrossing and near to another pike, which in- bile were seen by these witnesses to do anytersects the one above described to the north thing which indicated that they were taking of the crossing, there reside about one dozen any precautions to learn of the approach of The engineer and fireman were offered by lost their lives. The duties of a railroad com

1 the plaintiffs as witnesses for them, and tes- pany when one of its trains is approaching a tified that at about 350 yards east of the public crossing is broadly and correctly stated crossing the signal for the crossing was given to be to give such warnings of the approach of by the whistle and three others between that the train, and to take such precautions to point and the crossing, and the fireman tes- avoid injury to persons using the crossing as tified that the whistle was sounded prac- is commensurate with the danger of the partically all the way from the whistling post ticular crossing. This does not, however, to the crossing. Two other witnesses, who mean that the means of warning employed lived, as one testified, three-fourths of a mile shall be effective, so as to amount to a guaraway, and the other said 112 miles away, al- anty of the safety of persons using the crossthough both lived at the same house, but ing, but the means should be such as an orneither of whom saw the train at the time. dinarily prudent person would adopt in the testified to having heard the signals given by operation of a railroad train at the particular the whistle in quick succession when the crossing. C. & 0. Ry. Co. v. Gunter, 108 Ky.

.

, train neared Pine Grove station. The engi- 362, 56 S. W. 527, 21 Ky. Law Rep. 1803; neer and fireman testified that the bell was Cin., etc., R. Co. v. Champ, 104 S. W. 988, 31 continuously rung from the time the first sig- ceptionally dangerous on account (f the con

Ky. Law Rep. 1054. If the crossing is exnal by the whistle was given until the cross-tour of the surface of the ground or on acing was reached. The fireman saw the au

The fireman saw the au- count of obstructions, which obstruct the view tomobile approaching when the train was or hearing in an exceptional way, and which about 40 feet away, and immediately the renders the usual and statutory signals of the emergency brakes were applied and every approach of a train inadquate for the protecthing done, which was possible to avoid in- tion of travelers upon the crossing, a greater juring the automobile or its occupants. The degree of care devolves upon both the railautomobile struck the pilot of the engine road and the traveler in approaching the upon its side at the point where it joins the crossing, in accordance with the increased engine, making a scar upon the end of the danger, and it is to be considered in determinstill, and tearing out two or three of the ing whether or not there was negligence in short bars, which were upon that side of the the operation of the train which causes an inpilot and near to the engine. The front jury, and also as to whether or not there was wheel of the automobile upon the east side contributory negligence, as the railroad comwas torn to pieces, but the one upon the op- pany and the traveler have a mutual and reposite side was uninjured. The machine was ciprocal duty of keeping a lookout to avoid thrown out upon the side of the track upon giving or receiving injury, and it has been which it was approaching, and the bodies of held that where the facts justified, it was the two occupants were found upon that side proper to submit to the jury the question of the railroad track about 30 feet westward whether the railroad, in the exercise of propof the point of the collision. The train was er care, should keep a flagman at the crossrunning from 45 to 50 miles per hour, and it ing, or adopt some other precautions to prowas stopped, according to the testimony of tect the public. L., C. & L. R. R. Co. v. Goetz, the engineer and fireman, at about 350 yards 79 Ky. 442, 42 Am. Rep. 227; Southern Ry. west of the crossing, but, according to other Co. v. Barbour, 51 S. W. 159, 21 Ky. Law Rep. witnesses, about twice that distance from 226; N. N. & M. V. Co. v. Stuart, 99 Ky. 496, the crossing Both engineer and fireman tes- | 36 S. W. 528, 18 Ky. Law Rep. 347; L. & N. tified that they were maintaining a lookout R. R. Co. v. Cummin's Adm'r, 111 Ky. 333, 63 while approaching the crossing, but the en- S. W. 594, 23 Ky. Law Rep. 681; C. & 0. Ry. gineer, on account of the proximity of the Co. v. Riddle, 72 S. W. 22, 24 Ky. Law Rep. approach of the automobile, could not see it 1687; Louisville, etc., Ry. Co. v. Lucas, 98 S. from the side of the engine which he occu- W. 308, 30 Ky. Law Rep. 359; Id., 99 S. W. pied, but the fireman testified that the auto-959, 30 Ky. Law Rep. 539; L. & N. R. R. Co. mobile approached and struck the pilot of v. Breeden, 111 Ky. 729, 64 S. W. 667, 23 Ky. the engine, as heretofore described.

A wit- Law Rep. 1021, 1763; Railroad Company v. ness testified that a few minutes after the Clark, 105 Ky. 571, 49 S. W. 323, 20 Ky. Law collision the engineer stated that the train Rep. 1375; 2 Thompson on Negligence, $ 1507 was running at the rate of 60 miles per hour, et seq.; Railroad Company v. Gunter, 108 Ky. but this statement was denied by the engi- 362, 56 S. W. 527, 21 Ky. Law Rep. 1803; Ky. neer.

T. & T. Co. v. Wilson, 165, Ky. 123, 176 S. W. [2, 3] It is a well-established doctrine that 991. actionable negligence arises from a failure to

Section 786, Ky. Stats., provides that when perform a duty which one owes to another, a train is approaching a crossing over a highand where there is no failure to perform a way outside of an incorporated city or town, duty, there is actionable negligence. where the railroad crosses the highway upon Hence it must be considered under the facts the same level, the steam whistle must be what the duties were which the ones operat- sounded or the bell must be rung at a point 50 ing the train in the instant case owed to the rods from the crossing, and then the whistle decedents at the time and place at which they must be sounded or bell rung continuously or

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