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caused it, he did not know. Had thought E. Sanders, a concrete contractor, W. C. that she would improve, but was disappoint-Hager, a journalist, Harry Jack, a journalist, ed at finding her looking so thin and worn. and his wife, W. C. Lee, who travels for the Her spine was very tender to the touch, and Courier-Journal Company, C. M. Brame, who her condition never improved. Thought that travels for the Bowling Green Nursery Comher health would be permanently impaired. pany, and W. P. Vancleave, a farmer residOn cross-examination stated that the con- ing at Hodgensville, all testified that they gested condition of the lungs had disap- were on the train in question, and that the peared. train was moving slowly and stopped in the ordinary way, without any unusual jar or jerk.

Dr. W. S. Clark stated that he had known plaintiff for three or four years, had been her family physician. Prior to her alleg- Mrs. Talkington testified that plaintiff vised injuries, she was a stout, healthy wo-ited her on Sunday afternoon and Monday man. When he was first called to treat her following the derailment. Plaintiff told her on December 30, 1910, she was suffering with of the derailment, but made no complaint a pain in her back and in her side. Her of having been injured in any way, or of temperature was 102. Found her sixth or being unwell. Plaintiff had no hemorrhages seventh rib on the right side broken near the at her house. spine. She was very tender along the spine, Dr. Lewis S. McMurtry, a specialist in the and very nervous. Saw her various times diseases of women and abdominal surgery, thereafter. Examined her during the month testified that he examined plaintiff under of April, 1911. She was still tender along order of court on April 12, 1911. When he the spine near the broken rib, but had no made the examination, Drs. Clark, Wood, and fever. Made a vaginal examination, but was Willmoth were present. He found nothing unable to discover anything wrong there. the matter with her lungs, spine, bowels, or She claimed to have had hemorrhages from womb. There was no evidence of any injury the bowels, but he knew nothing as to this to the bowels. He had never known, in a except what she said. When he first exam-practice of 30 years, an instance of hemorined her, he thought she would recover, but rhage of the bowels from a blow on the she had not done so. She had lost a good surface of the body. Could not understand deal of flesh, her appetite was bad, and she how a blow on the surface of the abdomen frequently had to take a narcotic before she could produce a hemorrhage from the alimencould sleep. On cross-examination he stated tary canal. If it were possible to give a that there was nothing wrong with her womb blow causing such injury, it would be in the or female organs when the examination was abdomen, and the plaintiff could not sit up made in April. He visited her frequently be- or walk. Found plaintiff's uterus in its natfore the alleged injury. She had painful ural condition, and her ovaries and tubes menstruation. Frequently he had to give normal and free from diseases and adhesions. her something to relax her. As soon as the Found no trouble with the kidneys. Never period was established, she would be up. heard of such a thing as falling of the womb This condition rarely ever lasted over 12 or being caused by a blow to the womb while 14 hours. When he first saw her, in Decem- sitting down. Plaintiff, however, was not ber, 1910, she probably had a slight attack well. Her nutrition was not good. Her genof pneumonia. He gave her medicine ordi- eral nervous tone was below par. This may narily given to relieve a severe cold, and the be due to a variety of causes, and is not an congestion of the lungs cleared up in eight or organic disease. Great pains during the mennine days. strual period are often associated with neurasthenia. The duration of pneumonia from traumatism is from 12 to 14 days.

H. C. Houtchens, plaintiff's brother-in-law, testified that she came to his house about 9 o'clock. She looked tired and worn out. She retired in about an hour. On Sunday she seemed worse, and got worse all the time she was there. Then she came back to his home in about six months. Did not recall any visit in January, 1911.

Dr. L. Koontz testified that he was a surgeon and examined plaintiff in connection with Dr. McMurtry on April 12, 1911. The examination was thorough. Found no evidence of any injury to the spine. Never knew of a hemorrhage of the bowels being The evidence for the defendants is as fol- caused by a blow on the outside of the body. lows: Miss Sallie Heiner and Miss Ada May We do find hemorrhages of the bowels from Meredith, who were seated just across the other causes. Plaintiff's uterus and tubes aisle from the plaintiff, testified that the were in normal condition. train was going slowly at the time it stop- trouble with the lungs, spine, or kidneys. ped, and that there was no unusual jerk or The reflexes were normal. Plaintiff had jar of the train. Neither of these witnesses neurasthenia, and this was not caused by any knew that the train was derailed until some organic trouble. The painful conditions durone came into the train and informed them ing menstruation are evidence of neurastheof this fact. They both say that the plain- nia. tiff was not thrown or jerked in any way.

There was no

[1] The defendants were not entitled to a

charged that the coach in which plaintiff was riding was derailed, while the proof showed that, as a matter of fact, it was not derailed, but remained on the track. The negligence specified in the petition is "the carelessness of the defendants and each of them in the construction, maintenance, and operation of the tracks, roadbeds, switches, and turnouts and the operation of said trains and defects in said locomotives and cars" by which plaintiff's said injuries were produced and inflicted. It is true that the petition does allege that, by the joint and concurrent negligence and culpable carelessness of defendants, and each of them, the coach in which plaintiff was riding was wrecked, derailed, and thrown off the track, thereby seriously, permanently, and painfully injuring the plaintiff, etc. The derailment of the coach is not the ground of negligence relied on, but merely the result. The fact that the plaintiff alleged too much will not defeat a recovery. [2, 3] There was evidence tending to show that the switch was turned under the train while in motion by a Louisville & Nashville switchman, and that the train itself was wrecked. If the train was wrecked by the negligence of the defendants, and plaintiff was thereby injured, she is entitled to recover, even though the coach in which she was riding was not derailed.

The railroads did not introduce any evidence to the effect that it was not a Louisville & Nashville switchman that threw the switch, or that the accident did not happen upon the Louisville & Nashville track. In the absence of such evidence, we think the testimony of Charlie Taylor was sufficient to take the case to the jury on that question. If it be true that the accident hap pened on an Illinois Central train, and that the switch was turned by a Louisville & Nashville switchman, and the tracks were leased by the Chicago, St. Louis & New Orleans Railroad Company to the Illinois Central Railroad Company, and jointly used by the Illinois Central Railroad Company and the Louisville & Nashville Railroad Company, a fact which seems to be admitted by the pleadings, then we conclude that, for the negligence of the switchman, all three of the railroad companies are liable. McCabe's Adm'x v. Maysville & B. S. R. Co., 112 Ky. 861, 66 S. W. 1054, 23 Ky. Law Rep. 2328; I. C. R. Co. v. Sheegog's Adm'r, 126 Ky. 254, 103 S. W. 323, 31 Ky. Law Rep. 691; L., H. & St. L. R. Co. v. Kessee, 103 S. W. 261, 31 Ky. Law Rep. 617.

hoit to detail in part the history of her case as given by plaintiff. Where a physician examines a witness for the purpose of treatment, he may testify to what the patient said. Where, however, he examines a patient for the purpose of qualifying himself as a witness, he will not be permitted to do so. Dr. Wilhoit admits that he examined plaintiff for the purpose of testifying. That being true, what the plaintiff said to him was not admissible as evidence. C. & O. R. Co. v. Wiley, 134 Ky. 461, 121 S. W. 402.

[6] It was likewise improper to permit Mrs. Harrison Roberts, over defendants' objection, to pronounce the plaintiff "a well woman prior to the alleged injuries." She was not an expert, and should not have been permitted to give an opinion on such matters. She had a right to describe the appearance of plaintiff, before and after the accident, and to tell any facts she knew in connection with the plaintiff's ability or lack of ability to move about and perform her usual household duties, thus leaving to the jury to determine the conditions from the facts so testified to. Illinois Life Insurance Co. v. De Lang, 124 Ky. 569, 99 S. W. 616, 30 Ky. Law Rep. 753.

[7] When counsel for defendants asked Miss Bertha Morgan if there was any such jolt or jar as would throw a person about in the seat, the court should have permitted the witness to answer. The same ruling should have been made when the witness T. E. Sanders was asked, "Did that stop of the train jerk you or anybody there in your view, Mr. Sanders?"

[8] The weight of the evidence is to the effect that no unusual jar or jerk attended the stopping of the train on which plaintiff was riding, and that plaintiff was not jerked or thrown at the time the train stopped. Conceding, however, that she was, the evidence is by no means satisfactory that the injuries which she claims to have suffered were caused by any jar or jerk which she received on the occasion in question. Prior to the time of the alleged injury, plaintiff suffered greatly from suppressed menstruation; so much so that her own witness and physician testified that it was frequently necessary to give her medicine to relieve this condition. This of itself was sufficient to account for the congested condition of the uterus, and it is altogether improbable that this condition was in any wise contributed to by any shock that she received on the train. Nor is there any definite testimony tending to show that the hemorrhages of the bowels from which she claims to have suf fered were probably produced by a blow. Old and prominent physicians testified that, in a number of years of practice, they never knew of such a thing. To have caused this condition, the blow must have been a very severe one, and it is hardly probable that

[4] The court improperly permitted the plaintiff to testify that no one of the employés on the train on which she was riding assisted her off the train. She states that she did not inform any one that she was injured. Unless they knew that she was injured, there was no necessity for offering her any assistance.

call the attention of | Company. If, as a matter of fact, the per-
son turning the switch was the employé
of that company and turned the switch un-
der the moving train, his conduct showed
such a wanton and reckless disregard. for
human life as to authorize the infliction of
exemplary damages. Louisville & Nashville
R. R. Co. v. Smith, 135 Ky. 462, 122 S. W.
806.

would have failed to some one on the train to the fact, or would have failed to mention it to her friend, Mrs. Talkington, with whom she spent the day. If it be true that she suffered greatly from suppressed menstruation, as she herself admits, and as Dr. Hall testifies, and if it be true, as Dr. Woody says, that she was subject to great flooding when her periods came, it is much more probable that the neurasthenia from which she is suffering is due to this condition rather than to any blow that she received on the occasion of the wreck. The congested condition of her lungs has passed away. Her rib, if it was fractured, has grown together. Her kidney is not shown to have been permanently injured. We therefore conclude that a verdict of $7,500, under these circumstances, is excessive.

Instruction No. 1 is not subject to the criticism that it assumes that the switchman operating the switch was the agent of the three railroad companies. The court told the jury that he was the agent or employé of the three defendants only in the event that the jury believed from the evidence that he was the employé of the Louisville & Nashville Railroad Company. On another trial the court, in submitting the questions set forth in instruction No. 2, will also submit the question whether or not plaintiff was thereby injured.

[10] Our attention has been called to several instances where counsel for plaintiff went outside of the record in arguing the case to the jury. We have uniformly held that counsel, in making their arguments to the jury, should confine themselves to the law and the evidence, and should not go outside of the record for the purpose of bringing to the attention of the jury matters which have no bearing whatever on the questions at issue, and which are conveyed to the jury for the sole purpose of inflaming their passions and exciting their prejudice. L. & N. R. Co. v. Crow, 107 S. W. 808, 32 Ky. Law Rep. 1145; Ky. Wagon Mfg. Co. v. Duganics, 113 S. W. 129; I. C. Ry. Co. v. Proctor, 122 Ky. 92, 89 S. W. 714, 28 Ky. Law Rep. 598; L. & N. R. Co. v. Payne, 138 Ky. 274, 127 S. W. 993, Ann. Cas. 1912A, 1291. We deem it unnecessary to take up and consider the alleged instances of misconduct, but will content ourselves with calling the attention of counsel for the necessity of confining their arguments within the limits indicated.

[9] It was not error to give an instruction authorizing the recovery of punitive damages Judgment reversed, and cause remanded against the Louisville & Nashville Railroad | for new trial consistent with this opinion.

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DOLPHIN v. KLANN.

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Where a survey is illegal in a matter (Supreme Court of Missouri, Division No. 2. which the court knows about, it will not preNov. 13, 1912. Rehearing Denied sume that it is correct in those particulars as to which it is not informed.

Dec. 10, 1912.)

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Under Rev. St. 1909, § 10290, requiring one laying out an addition to cause to be made an accurate plat particularly describing lots by numbers and their precise length and width, the law presumes that an accurate survey and marking on the ground formed the basis for a plat, so that the lots may be identified.

[Ed. Note.-For other cases, see Boundaries, Cent. Dig. §§ 146-152; Dec. Dig. § 33.*] 3. BOUNDARIES (§ 33*)-Plats-Surveys. A plat of an addition comprising land bordering on a railroad right of way showed that the course of the railroad was not straight. The lengths of the lines running east and west as boundaries of the lots were marked on the plat. The lots bordering on the railroad were irregular in shape, and the lengths of their boundaries were marked accordingly. An old fence was placed in accordance with courses and distances called for. Held to justify a finding that a survey was actually made before the making of the plat, and a surveyor seeking to establish different lines must show good grounds therefor.

FOR DISTANCES.

Cent. Dig. §8 264-267; Dec. Dig. § 53.*] [Ed. Note.-For other cases, see Boundaries, 9. BOUNDARIES (§ 10*)-ADDITIONS-PLATS.

A plat of an addition must be taken as a whole, and a corner will not be so changed as to cause a shifting of the position of all the lots in the addition.

Cent. Dig. §§ 90, 91; Dec. Dig. § 10.*] [Ed. Note.-For other cases, see Boundaries,

Blair, C., dissenting.

Appeal from Circuit Court, Greene County; Jas. T. Neville, Judge.

Action by John Dolphin against Bertha Klann. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.

This is an ejectment suit to recover possession of a strip 122 feet wide, which the plaintiff alleges is the east part of lot 20 in block 2 of Chamberlain's addition to Springfield. The defendant claims that the strip constitutes the west part of lot 21 in said block. It is agreed that plaintiff owns lots 19 and 20 and that the defendant owns lots 21 and 22, and the dispute is as to the boundary line. The case was tried without a jury. On the written request of defendant, the court made a special finding of the facts and found for plaintiff. The defendant has appealed.

[Ed. Note.-For other cases, see Boundaries, On March 21, 1887, one McCann conveyed Cent. Dig. § 146-152; Dec. Dig. § 33.*] to Chamberlain a tract of land described as 4. BOUNDARIES (§ 3*)-MONUMENTS-CALLS follows: "Beginning in the center of WalAn unmarked line is not a natural or arti-nut street as laid down in Robberson's addificial monument, and does not, when called for tion to the city of Springfield, Mo., eleven in a deed, overcome a call for distance; but hundred and twenty-three (1,123) feet east the latter will prevail.

[Ed. Note. For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. § 3.*] 5. BOUNDARIES (§ 3*)-SURVEYS-CALLS FOR DISTANCES.

Where a surveyor was not the county surveyor when he made a resurvey of a platted addition, and he did not give any data from which he made the survey, such as his starting points, the survey did not overcome the calls for distances in the plat.

[Ed. Note. For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. § 3.*] 6. BOUNDARIES (§ 55*)-ILLEGAL SURVEYS.

A survey which violates the act of Congress requiring that, in subdividing fractional sections on the west side of a township, the surplus over 40 chains in width shall go to the west side of the section, is illegal.

[Ed. Note.-For other cases, see Boundaries, Cent. Dig. §§ 278, 279; Dec. Dig. § 55.*] 7. EJECTMENT (§ 86*) - POSSESSION OF DEFENDANT-TITLE OF PLAINTIFF.

Where, in ejectment, defendant was in possession claiming under a plat of an addition as actually laid out on the ground, plaintiff could not recover except by affirmatively showing a better right.

[Ed. Note.-For other cases, see Ejectment, Cent. Dig. §§ 238-245; Dec. Dig. § 86.*]

of the range line dividing range twenty-one (21) and twenty-two (22); thence east along center of Walnut street projected four hundred ninety-six and three-tenths (496.3) feet to the west line of the right of way of the Springfield & Southern Railway; thence south and east on and along said west line of the right of way nine hundred fifty-four (954) feet to a point on the east line of the west half of the southwest quarter of the northeast quarter of section nineteen (19), township twenty-nine (29) north, range twenty-one west of the fifth (5th) P. M.; thence south on said line one hundred and seventy (170) feet to the center of Cherry street projected; thence west on and along said center of Cherry street projected six hundred and sixty-two (662) feet to the center of said section nineteen (19); thence north and along the line dividing the east and west halves of section nineteen (19) four hundred and seventy-two (472) feet to the center of Elm street projected; thence west on and along the center of said Elm street projected three hundred and thirty (330) feet; thence north five hundred and

on a part of that line as claimed by the defendant there was, shortly before the trial, an old fence which had inclosed defendant's garden.

nineteen feet to the center of Walnut street where defendant claims that it is, and that projected; the place of beginning. Reserving for the ordinary purposes of roads and highways a strip of thirty (30) feet off the north and south side and sixty feet through the center portion running from the point where Elm street projected joins this tract of land to the right of way of the Springfield & Southern Railway."

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The plaintiff claims that the east boundary of the W. 2 of the S. W. 4 of the N. E. 4 of the section is 18 feet further east than is called for by the distance of 954 feet along the right of way, and that the description in the plat should be so construed as to hold that such line is the east boundary of the addition. Plaintiff also claims that the center of the section is 12% feet further east than is called for by such measurements.

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1123 FT. EAST OF RANGE LINE

519 FT. TO BEGINNING

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Mr Culler, who had been county surveyor for 32 years, made a survey by which he located the line between the parties at the place contended for by the defendant.

It is conceded by the evidence on both sides that the starting point and the distance along the north boundary of the addition are correct, and that by following the right of way of the railroad southeastward- Mr. Phillips, who had been county surveyly the distance of just 954 feet called for, or and city engineer and surveyor under the and running thence south 170 feet just reach-government, testified as follows: "Q. Now es the center of Cherry street, and that run- I will ask you, in accordance with that, ning thence west with Cherry street 662 feet where the west line of Mr. Dolphin's lot just reaches an old post and wire fence, which runs a short distance north and is thence continued by a hedge fence; and such evidence of both sides shows that, with the boundaries of the addition thus run, the

No. 19 would be, according to Mr. Culler's survey there? Where would it be in reference to the poles of the street railroad company in the street there? A. It would be in the neighborhood of 12 feet west. Q. In the

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