contract to pay therefor will be implied, in | to give plaintiff judgment for the sum of the absence of an agreement to the contrary, $434.21 and the further sum of $59.64. which the evidence fails to show. There being no dispute as to the value of the pasturage, it follows that plaintiff's claim therefor was properly allowed. [5] It appears that certain hogs were purchased from a man by the name of Preece and $300 paid therefor. Afterwards, Preece, in consideration of his release from the contract to furnish the hogs, paid to defendants the sum of $325. Plaintiff says that no portion of this sum was ever paid him. Defendants' agent claims that in some way not explained it was paid. The defendants' books do not show that it was paid. With the testimony in this form, the commissioner and the chancellor did not err in holding that the plea of payment was not sustained, and the judgment in favor of plaintiff for $162.50, or one-half of the sum refunded by Preece, was therefore proper. [8] On the cross-appeal it is insisted that the court erred in not adjudging the plaintiff one-half of $796.72, interest charged against the partnership in 1913 and 1914. It appears that during those years certain cattle were sold to certain farmers at a certain price under an agreement by the partnership to purchase them later on at an increased price. In payment for the cattle the farmers executed their notes bearing interest. It is the contention of the plaintiff that this interest was not only collected from the farmers, but was subsequently charged against the partnership, thereby enabling them to collect the interest twice. We find, however, that plaintiff merely sued to recover half of the interest paid by the farmers on the ground that it was a partnership profit in which he was entitled to share. No issue was made in the pleadings that a portion of this interest, amounting to $796.72, was improperly charged against the partnership, and that plaintiff was entitled to recover one-half thereof. Since plaintiff did not sue for a settlement of the partnership, but elected to sue for sums due in certain specific transactions, his recovery should be confined to those transactions and should not embrace items not specifically pleaded. For this reason it was not error to refuse plaintiff judgment for one-half of the sum [6] With respect to the Kiser, Ellis, and Lambert cattle, upon which, it is claimed by the plaintiff, there was a profit, it is sufficient to say that a check for $1,220 given by the purchaser of these cattle was not paid but has been placed in the hands of a lawyer for collection. Unless this check is paid, there is no profit in the transactions, and it was error to render judgment in favor of the plaintiff for $138.41, one-half of the alleged profit. This decision, however, is without prejudice to future action by plain- | of $796.72. tiff in case the check for $1,220, or a sufficient portion thereof, is hereafter collected to show a profit on these transactions. We think the letter from defendants' agent is sufficient to show that plaintiff was interested in the Queen cattle. However, the profit on this transaction was only $51.25, and it was error to give judgment for the full amount instead of one-half. It is admitted that plaintiff received his one-half of the profit on the T. R. McGlothin cattle. That being true, no judgment in his favor for $52.47 should have been rendered. Judgment affirmed on the cross-appeal and reversed on the original appeal, with directions to enter judgment in conformity with this opinion. KINGKAD v. CITY OF COVINGTON. (Court of Appeals of Kentucky. Feb. 20, 1920.) 1. MUNICIPAL CORPORATIONS 822(5) IN STRUCTION THAT CITY WAS NOT LIABLE FOR An instruction which absolved city from liability if catch-basin cover the claimed tilting of which caused plaintiff's injuries, was displaced by third persons immediately before inwould not cause cover to tilt held supported by jury or if alleged defect in the supporting lugs [7] With respect to the Hill & Garver transaction our conclusion is as follows: The weight of the evidence is to the effect that Richards, defendants' agent, was sent to Ohio with authority to make settlement with When Richards arrived, Hill & Garver were claiming one-half of the profits. He finally settled with them by giv-evidence. ing them one-third of the profits. There remained for both plaintiff and defendants 2. APPEAL AND ERROR 1033(5)—INSTRUC Hill & Garver. only two-thirds of the profits. In other words, two-thirds of the entire profit on the whole transaction was all the profit so far as plaintiff and defendants were concerned. Hence, when plaintiff received one-half of this profit, he got all he was entitled to under the contract. It was therefore error TION ABSOLVING CITY FROM LIABILITY FOR In action for injury to plaintiff from the claimed tilting of a catch-basin cover, an instruction, absolving city from liability of third persons displaced the cover "immediately before For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (218 S.W.) plaintiff stepped on it" was, under the evidence, | safety, and that the accident to plaintiff would too favorable to plaintiff. Appeal from Circuit Court, Kenton, County, Criminal, Common-Law, and Equity Divi sion. Action by Ruth Kingkad against the City of Covington. Verdict and judgment for defendant, and plaintiff appeals. Affirmed. B. F. Graziani, of Covington, for appellant. John Shepard and A. E. Stricklett, both of Covington, for appellee. CLAY, C. Ruth Kingkad brought suit against the city of Covington to recover damages for personal injuries. From a verdict and judgment in favor of the defendant, plaintiff appeals. At the time of the accident the city main tained a catch-basin in the sidewalk of Main street. Over the catch-basin was an iron covering with three lugs, which held it in position. While walking along the sidewalk, plaintiff stepped on the covering, which tilted or slipped from its place and caused plaintiff's left foot to go through the opening, and the weight of her body to go on her right foot with such force as to injure her ankle. According to plaintiff's evidence, one of the lugs was broken off and was rusty, and when a heavy person would step on the covering opposite to where the lug was off, the covering would tilt. After the accident, plaintiff walked to her home by holding onto the fence, and called a physician, who bandaged her ankle. According to the evidence for defendant, it was impossible to tilt the covering by stepping on it. It was also shown that plaintiff had stated that she had suffered from a fractured ankle before that time. One witness testified that the children of the neighborhood were in the habit of removing the covering to see the ducks pass by; that she saw them engaged in this pastime nearly every time she looked out of the window, and, although she could not say that they removed the covering on the occasion in question, she did see them playing about the catch-basin. Another witness testified that she passed by the catch-basin just a 'few minutes before the accident, and the lid was on all right. [1, 2] Plaintiff complains of the concluding paragraph of the following instruction: "If you believe from the evidence that at the time and place and under the circumstances described in the proof plaintiff was not herself in the exercise of ordinary care for her own not have happened but for such failure to exercise such care (if such there was); or if you believe from the evidence that the lid or cover of the manhole was not rendered unsafe by the absence of a supporting lug or cleat; or, if you believe it was so rendered unsafe, but that defendant did not and by the exercise of ordinary care could not have known of such condition a sufficient length of time before the injury to plaintiff to have enabled it by the exercise of such care to have remedied such condition in time to have avoided the injury to plaintiff; or if you believe from the evidence that the lid or cover of the manhole was not caused to tilt when plaintiff stepped upon it by reason of the absence of the lug; or if you believe from the evidence that the lid was displaced from its ordinary resting place immediately before plaintiff stepped upon it, and it was in said way caused to tilt, and plaintiff was in such manner caused to be injured-then in either or any of said events you will find for defendant." It is true that in the recent case of City of Covington v. Rosenberg, 177 Ky. 411, 197 S. W. 786, Ann. Cas. 1918E, 229, the court held that the city was not entitled to a peremptory instruction on the ground that it was impossible to tell from the evidence whether the covering was caused to tilt by the defective lug, or the fact that it was improperly placed by some boys playing in the neighborhood. In that case the court said: "The lid is as safe for travel over it when put on by one person as when put on by another. It is only the defects in the lid which render the sidewalk unsafe." In this case, however, there was evidence that the defective lug could not have caused the covering to tilt. In view of this fact, and of the further fact that boys were seen playing about the manhole, that they were in the habit of removing the covering, and that the covering was in proper position just a few minutes before the accident, we cannot say that there was no evidence on which to base that portion of the instruction complained of. Under the circumstances, the jury had the right to conclude that the accident was not caused by the defective lug, but by the fact that the covering had been taken up and replaced by persons other than employés of the city, and that this had occurred such a short time before the accident that the city was not charged with notice thereof, and the use of the words "immediately before plaintiff stepped upon it" was more prejudicial to the defendant than to the plaintiff. Judgment affirmed. o'clock on the afternoon of March 16, 1917, LOUISVILLE & N. R. CO. v. STIDHAM'S and walked to Quicksand, about three miles ADM'X. (Court of Appeals of Kentucky. Feb. 20, 1920.) 1. RAILROADS 398 (1)—EVIDENCE INSUFFICIENT ΤΟ SHOW NEGLIGENT KILLING BY TRAIN. In an action for the death of a person whose body was found near railroad tracks, on which he was walking when last seen alive, evidence held insufficient to show that he was killed by a train, or that there was any negligence in its operation. distant. He was seen at Quicksand that afternoon. The last person who saw him alive was Mrs. Viers, who saw him as he passed her house between 6 and 7 o'clock that evening, walking along defendant's railroad tracks, going in the direction of Jackson. Her home is between Quicksand and Dumont. His body was found the next morning, be tween 4 and 5 o'clock, between Dumont and Jackson, near the mouth of Stray Branch Two men walked along the railroad tracks from Quicksand to Jackson between 8 and 9 2. RAILROADS 369(3)-NO DUTY TO LICEN- o'clock that evening, but his body was not SEE TO MAINTAIN LOOKOUT ON BACKING EN- In the open country, where persons have no A railroad company's liability for failure to maintain a lookout on the tender of a backing engine depends on principles of law, and not on the rules of the company, and a rule requiring a lookout is not admissible in behalf of plaintiff in an action for death. Appeal from County. Action by S. B. Stidham's administratrix against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded. at that time at the place where it was found the next morning, nor did they see anything of him on the trip. A train known in the evi dence as the "shifter," going from Quicksand to Jackson, stopped at Dumont station a 9:40 that evening for orders, and then proceeded to Jackson. This train consisted of a switch engine and three or four cars. The engine was in front and pulling the cars, but it was backing. On the end of the tender, which was the front of the train, was a lighted headlight, and across the end of the tender, about waist high to a man standing on the track, there is a beam some 6 or 8 inches wide, to the center of which is attached the drawbar. Decedent, when found, was lying on his Circuit Court, Breathitt face in a pool of blood alongside of the track, with his head toward Jackson and his feet a short distance beyond a cattle guard. There was a circular cut or bruise about the size of a 50-cent piece over his right eye: his face was scratched and bruised, as though from falling in crushed rock. There was a bruised place on his back, about 6 inches wide, above his hips, and another on th calf of his right leg, about 3 inches wide and 5 or 6 inches long. Between his feet and the cattle guard the rubber heel of his right sho was found, and there was an indentation O. H. Pollard, of Jackson, J. M. Benton, of Winchester, and Benjamin D. Warfield, of Louisville, for appellant. Ryland C. Musick, of Jackson, and Ed. C. O'Rear and J. B. Adamson, both of Frankfort, for appellee. CLARKE, J. This is an appeal by the de fendant, Louisville & Nashville Railroad Company from a judgment for $17,000 in favor of the administratrix of Samuel B. Stidham for his death. The refusal of the court to direct a verdict for the defendant is the chief reliance for a reversal. Counsel for plaintiff admit: "That the burden is upon us to show affirmatively (1) that deceased was killed by a train of the railroad company; (2) that he was a licensee upon its track at the point at the time he lost his life; and (3) that his death resulted from the negligent operation of the train by which he was killed." [1] The only evidence introduced to establish the first and third of these propositions is in substance as follows: upon the remaining part of the heel of his shoe. Plaintiff argues that these facts, not only tend to prove that decedent's right heel be came fastened in the cattle guard as the train approached, that the beam on the tend er of the backing engine struck him in th back, causing the wound found there, and knocking him forward with such force as to make the wounds on his face, but also to refute any other theory as to how he was killed; that, if decedent had been killed by any one striking him with some instrument in the face, the scratches would not have been there; that he would have been found lying on his back, and not on his face, and the heel would not have been off of his shoe and where it was found. This is, however, in our judgment, but one Decedent left his home in Jackson about 2 of several equally plausible explanations or For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (218 S.W.) the part of the defendant not to have a man stationed on the front end of the tender to maintain a lookout for persons whose presence upon the tracks ought to have been an theories as to how decedent may have met his death. Even if we assumed he was killed at the place where he was found, it might as reasonably be inferred from the evidence that he was struck on the forehead by anticipated. But clearly such were not the reassailant, fell upon his back against the tie, quirements of prudent operation in this case, which caused the bruise found there, and even if he had been a licensee. The place rolled over on his face. Surely in such an where plaintiff contends decedent was killed encounter he might have lost the heel of his by defendant's train was out in the country, shoe and received the bruises described, as and where he had no right to be, unless by well as if he had been struck by the train. sufferance. Not only so, but plaintiff's theory, even if it could be sustained to the extent that decedent was killed by defendant's train, fails completely as to the way in which he was killed, as every attendant circumstance might have been present, had he been killed in attempting to get on, or from stumbling against, one of the moving cars of the train at or near the cattle guard. The proven facts on this point are in no wise analogous to those of L. & N. Ry. Co. v. Bay's Adm'r, 142 Ky. 400, 134 S. W. 450, 34 L. R. A. (N. S.) 678, or L. & N. Ry. Co. v. Taylor's Adm'x, 158 Ky. 663, 166 S. W. 199, upon which plaintiff relies, but are such as to bring the case rather under Caldwell's Adm'r v. C. & O. Ry. Co., 155 Ky. 609, 160 S. W. 158, a much stronger case for the plaintiff than this, and like cases. The evidence of usage in the nighttime, when decedent is supposed to have been killed by defendant's train, and by reason of which it is claimed he was a licensee, to whom a duty of lookout was due, is furnished by two witnesses, who testify that upon occasions they had seen several persons walking on the tracks at or near the place, and one other, who states quite indefinitely, in answer to a question as to the amount of travel at this place after 8 or 9 o'clock at night: "Well, they are traveling it all the time." That under such circumstances a railroad company, in backing an engine over its tracks, must not only maintain a lookout, but to make it effective must place a man on the front end of the tender, is to us a novel contention, and one wholly unsupported by any authority so far as we know. for the plaintiff, a peremptory instruction for the defendant has been approved or ordered, among which, in addition to the Caldwell Case, supra, are Stuart v. N., C. & St. L. Ry. Co., 146 Ky. 127, 142 S. W. 232, Sutton's Adm'r v. L. & N. Ry. Co., 168 Ky. 81, 181 S. W. 938, and Hearell v. I. C. R. Co., 185 Ky. 41, 213 S. W. 561. But weaker still is plaintiff's case when it comes to the question of negligence, even if we might assume defendant was under a Hence not only is there no proof of negliduty of maintaining a lookout at the place gence, but it is mere matter of speculation where decedent was found, and at the time and guesswork as to how or by what agency it is claimed he was killed, which fact was decedent lost his life, and the court erred in not, however, established, since the usage not directing a verdict for the defendant. proven was clearly insufficient to make licen-In many like cases, which were much stronger sees of persons using the tracks at that time and place. There is no proof whatever in the entire record of any negligence in the operation of this train, unless it, too, can be inferred from the character of wounds found upon the body of deceased, the loss of the heel of his shoe, and the way his body was lying when found. To accomplish this result it must be inferred from these facts, not only that decedent was killed while standing upon the track with his foot fastened in the cattle guard as the train approached, but also that he was so stationed for a sufficient time for the engineer to have seen him in time to have stopped the train before it struck him. The possibility that he may have stepped in front of the train too late for the engineer to have stopped the train before striking him, or even to have seen him at all, or that he was killed by attempting to get on the train after the engine had passed him, must be excluded ¦ A. (N. S.) 816. from consideration and without evidence to warrant it. [2] That counsel realize this weakness in their case, in part at least, is evident from their contention that it was negligence upon [3] The court also erred in permitting plaintiff to introduce, over defendant's objections, evidence of the company's rules with reference to the engineer and fireman keeping a lookout, since defendant's liability to plaintiff depends, not upon a breach of duty the employé owed the company, but upon the breach of a duty due decedent, which must be determined by the principles of law, and not by rules of the company for the guidance of its employés. L. & N. R. Co. v. Dyer, 152 Ky. 264, 153 S. W. 194, 48 L. R. Since, for these reasons, a reversal must be ordered, other questions presented need not be and are not now decided. Wherefore the judgment is reversed, and the cause remanded for a new trial. G. R. Brown and wife, provided G. R. Brown SAVELLS et al. v. BROWN'S GUARDIAN should die without children these lands at G. et al. R. Brown's and wife's death is to belong to my daughter, Mary A. Franklin or to my grand (Court of Appeals of Kentucky. Feb. 20, 1920.) children or their heirs, although if G. R. Brown 1. DEEDS 93-CONSTRUCTION TO EFFECTUATE EVIDENT INTENTION. Deeds should be construed so as to effectuate the grantor's intention as gathered from the whole instrument, and, where it appears the intention was to vest in the grantee a less estate than a fee, such purpose will not be defeated by any technical rule of construction, but will be given effect. 2. DEEDS 129(4)-CONSTRUCTION AS GIVING LIFE ESTATE TO GRANTOR'S SON WITH REMAINDER TO CHILDREN, ETC. Deed of gift by a father to his son, to take effect at the father's death, whereby the father reserved all the land for life, and deeded to the son's children at the death of the son and his wife, providing that, if the son should die without children, the land at the death of the son and his wife should belong to the father's daughter, or to his grandchildren or their heirs, gave the son a life estate only, with remainder to his children, but, if he left no children, with remainder to the father's daughter or her children. 3. DEEDS 105-CONVEYANCE ΤΟ "CHILDREN" IN REMAINDER DOES NOT BENEFIT ADOPTED CHILD OF LIFE TENANT. In case of conveyance by a father to his son for life, with remainder to the son's children, but, in case he has no children, to others, the word "children" does not include an adopted child of the son, unless the language of the instrument makes such intention clear. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Children.] Appeal from Circuit Court, Trigg County. Suit by Felmer Spurrier Brown's guardian and others against Eury Savells and others. From judgment for plaintiffs, defendants appeal. Reversed, and cause remanded, with directions to enter judgment in conformity with the opinion. G. P. Thomas, of Cadiz, and G. E. Fooshee, of Golden Pond, for appellants. Denny P. Smith and G. W. Ryan, both of Cadiz, and N. W. Utley, of Eddyville, for appellees. CLAY, C. The question presented on this appeal is the proper construction of the following deed: "This indenture made and entered into this the first day of May, 1890, by and between J. H. Brown and G. R. Brown his son, all of Trigg county, state of Kentucky, witnesseth that the said J. H. Brown makes this deed of gift to G. R. Brown his son of the following tracts or parcels of land. This deed of gift is to take effect at the said J. H. Brown's death, said J. H. Brown reserving all the land during his natural life, and further deeds the following lands to G. R. Brown's children at the death of and wife Arzella Brown should leave children The facts are as follows: At the time of the conveyance, the grantor, J. C. Brown, had two children, G. R. Brown and Mary A. Franklin. G. R. Brown and his wife, Arzella Brown, lived with the grantor on the land in controversy. The grantor died about a year after the execution of the deed. On September 24, 1903, G. R. Brown and wife adopted the infant, Felmer Spurrier Brown. Thereafter, G. R. Brown died, and subsequently his widow, Arzella Brown, married A. S. Savells. G. R. Brown and wire never had any children. After the death of G. R. Brown, Mary A. Franklin, the grantor's daughter, died leaving as her only heirs at law a daughter, Mrs. Millie Birdsong, and Eury Savells, the only child of her deceased daughter. This suit was brought by the guardian of Felmer Spurrier Brown, the adopted daughter of G. R. Brown and wife, and Felmer Spurrier Brown, for a construction of the deed. The court adjudged that G. R. Brown took the fee, and that upon his death the land passed to his adopted child, Felmer Spurrier Brown, subject to the life estate of his widow, Arzella Brown Savells. Eury Savells and others appeal. [1, 2] It is the settled rule in this state that deeds should be construed so as to effectuate the intention of the grantor as gathered from the whole instrument, and, where it appears that the grantor intended to vest in the grantee a less estate than a fee, his purpose will not be defeated by any technical rule of construction, but will be carried into effect. Wilson v. Moore, 146 Ky. 679, 143 S. W. 431; Lawson v. Todd, 129 Ky. 133, 110 S. W. 412, 33 Ky. Law Rep. 557. While the deed in question departs somewhat from the prevailing form, there is no doubt as to what the grantor intended. Though the deed is described as a "deed of gift to G. R. Brown, his son," the subsequent provisions, which are repeated over and over again, make it clear that the son was to have only a life estate with remainder to his children, but if he left no children, the property at the death of his For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |