lic servitude, and that therefore it was right-, upon which its tracks were laid is concerned, fully using its road or right of way along it had precedence in the use, for it was a part of that highway, but that in such use it was required to operate its cars with ordinary care so as to avoid injury to members of the public who might rightfully be upon that part of the highway so occupied by its tracks; that the traction company had precedence in point of passing over that part of the highway occupied by its tracks, but in the exercise of such precedence it was required to do so with the fact in mind that the public had also a right to use portions of the public highway for the crossing of its tracks at points appointed therefor. And then the jury was told that if, upon the occasion in question, defendant traction company and its officials in charge of its car failed to use ordinary care as it approached and passed over that crossing, so as to unnecessarily endanger the lives or safety of persons who might be rightfully using the same, and as a proximate result thereof decedent lost her life, then they should find for the plaintiff; but if, on the contrary, the jury should believe from the evidence the traction company and its motorman were at the time using ordinary care for the protection of travelers upon the highway at said crossing, they should find for defend ant. The three essential differences between the instruction offered by the plaintiff and the one given by the court are (1) that the latter, while practically defining the duties of the defendants in the same way as did the instruction offered by plaintiffs, did not specifically authorize a recovery if the motorman negligently failed to give the signals or to run his car at a reasonable speed and have the same under reasonable control as it approached the crossing; (2) the instruction given by the court made no reference to the character of the crossing; and (3) the instruction of the court said to the jury as a matter of law that the traction company had precedence in point of passing over such part of the highway as was occupied by its tracks, but that its right of precedence must be exercised with the fact in mind that the public also had a right to use such portions of the highway for crossings as were appointed for that purpose. [1] The complaint by plaintiff that the latter recital in the instruction was equivalent to saying to the jury that the defendant had the exclusive right to the use of such part of the highway as was covered by its tracks is not justified, for the right of precedence to the use and the exclusive right to the use are essentially different things. When the traction company was given the right by the counties to occupy an unused portion of the public highway, to the end that it might thereby render a service to the public, necessarily, it was contemplated known that its cars must necessarily run upon its tracks, and upon the tracks so laid in accord with the right granted; and while that right of precedence was not equivalent to an exclusive right to the use, the instruction declared it must always be used by the traction company with a due regard to and in recognition of the rights of the public to use certain portions of it at crossings. That recital, therefore, in the instruction was only the statement of an obvious truth, and could not have been misunderstood by the jury. [2] If it be conceded that it might have been proper for the court, under the evidence as to the obstructions, to have, in substance, said to the jury that the duty of the defendant in the exercise of ordinary care was higher and greater in the approach to a dangerous crossing, and that in determining whether or not defendants were guilty of negligence they might consider the character of the crossing as disclosed by the evidence, yet we find in this case that the evidence was very largely directed by both parties to the nature and extent of the obstructions as bearing upon the duty of the defendants in approaching the crossing. Clearly, therefore, this oversight, if it was one, could not have been prejudicial to the plaintiff, because the nature and extent of these obstructions, as bearing upon the nature of the crossing and the duty of the defendant in approaching it, were gone into at great length in the evidence by both parties. [3] It would have been better if the court had specifically instructed upon the duties of the motorman as to the giving of signals, and as to the speed and control of his car as he approached the crossing, and directly authorized a recovery for the plaintiff if the motorman was negligent in either of these respects. But, as before recited, these questions were the vital ones in the case as disclosed throughout the trial in the introduction of evidence by both parties. It must have been understood by the jury at all times that these were the things upon which the outcome of the litigation depended, and, when the court authorized a recovery for the plaintiff, if the jury believed from the evidence that the motorman failed to use ordinary care as it approached and passed over the crossing which resulted in the death of decedent, and stated to them in the instruction that it was the duty of defendant company to operate its cars with ordinary care so as to avoid injury to persons who might be rightfully using the crossing, they must have understood from the whole conduct of the trial, and from this language in the instruction, that they were authorized to find a verdict for the plaintiffs if the signals were not given upon the approach to the (273 S.W.) ed at a reasonable rate of speed and under ascertain for her own safety whether or not proper control. Under the facts of this case, it was safe for the automobile to cross the as disclosed throughout the record, this over- track, and her duty to notify the driver sight in the instruction cannot be said to be thereof of the approach of the trolley car, prejudicial. Pugh v. Eberlein, 190 Ky. 386, if she knew of such approach, or could have 227 S. W. 467; McMillen & Hazen Co. v. known of the same, by the exercise of ordiSlusher, 145 Ky. 539, 140 S. W. 657; Civil nary care. Milner's Adm'r v. Evansville R. Code, §§ 134, 338, and 756. Co., 188 Ky. 14, 221 S. W. 207. On the whole case we have concluded that the parties were given a fair trial, and that there was no error prejudicial to the substantial rights of plaintiffs. Judgment affirmed. et al. (Court of Appeals of Kentucky. June 12, 1925.) [4] The trolley car was rightfully occupying a part of a public highway, and the crossing in question was a little-used farm crossing. The traction company was operating its cars on a part of this highway in the exercise of a duty to the public, and there was imposed upon it by the instruction the exercise of ordinary care to give proper signals as it approached this private crossing, HONAKER v. CHESAPEAKE & O. RY. CO. to have its car under reasonable control, and to operate the same at a reasonable speed as it approached. In the absence of a statute fixing other and different duties upon the traction company, no greater duty seems to be imposed upon it by the facts of this case; and where there is evidence as to the nature and character of the crossing which might impose a higher duty upon those operating the car, it would seem to be a practical solution of the difficulties in framing an instruction to leave to the jury to say, under the facts and circumstances, whether the same was operated as an ordinarily prudent person would under similar circum stances. [5] It is further argued for appellants that the court erred in giving an instruction on contributory negligence, because, as claimed, there was no evidence to authorize it. Without going at length into the evidence it is sufficient to say that there were facts and circumstances from which it might have been believed that the decedent and each of the occupants of the car, all of whom had passed over that crossing before on that same day, and were more or less familiar with the sur roundings, did not exercise due care for their own safety when the automobile was driven on the track. And when there is evidence from which contributory negligence may be found, it is always proper to submit that question to the jury, and the scintilla rule applies as well to contributory negligence as to other negligence. L. & N. R. Co. v. McNary's Adm'r, 128 Ky. 421, 108 S. W. 898, 32 Ky Law Rep. 1266, 17 L. R. A. (N. S.) 224. 129 Am. St. Rep. 308; C. & O. R. Co. v. Warnock's Adm'r, 150 Ky. 79, 150 S. W. 29. [6] The instruction on contributory negligence properly advised the jury that, while the negligence of the driver of the automobile was not to be imputed to the decedent who was a guest therein, decedent was not herself relieved from exercising ordinary care for her own safety in approaching and attempting to cross the car tracks, but that it was her duty to exercise ordinary care to 1. Waters and water courses 178(2)-Rule of damages for flooding of land caused by railroad stated. Damages for obstructions by railroad, causing flooding of land, may be recovered as follows: A single recovery where structure is permanent and properly built; recurring recoveries where structure is permanent and negligently built, except where cost of alteration to avoid recurring injury would be so unreasonable that it could not be required; recurring recoveries for temporary structure as injuries occur. 2. Waters and water courses 178 (2)-Purchaser of land, with knowledge of condition of railroad fill, held not precluded from recovering for recurring injuries from flood. Purchaser of land, suing railroad for damages from flooding due to negligent construction of fill 12 years previously, held not precluded from recovery on ground that, having purchased with knowledge of condition, he was estopped, or on ground that structure, being permanent, no recovery could be had for recur ring injuries; there being no evidence as to cost of correcting defect. Appeal from Circuit Court, Pike County. Action by J. B. Honaker against the Chesapeake & Ohio Railway Company and the city of Pikeville. Judgment was rendered for defendants on a directed verdict, and plaintiff appeals. Reversed as to the railway company, and affirmed as to the city. Roscoe Vanover and O. A. Stump, both of Pikeville, for appellant. Kirk, Kirk & Wells, of Paintsville, and Browning & Reed, of Ashland, for appellee Chesapeake & O. Ry. Co. Stratton & Stephenson and A. L. Ratliff, all of Pikeville, for appellee City of Pikeville. DIETZMAN, J. At the close of the appellant's case in the court below, the court peremptorily instructed the jury to find for the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 273 S.W.-6 appellees who were the defendants there, and, the appellant appeals. The petition is very inartfully drawn, but in substance it avers that the appellee Chesapeake & Ohio Railway Company had constructed a railroad fill across the mouth of a hollow known as France's Hollow in the city of Pikeville, up which hollow a street runs known as Kentucky avenue, that it and its codefendant, the city of Pikeville, negligently constructed drain pipes under this railroad fill, and that, by reason of such negligent construction, the drain pipes were wholly insufficient to carry off the natural drainage of - France's Hollow, thereby causing water to back up on appellant's lot, which greatly depreciated the value of the use of said lot. Appellees traversed this petition and pleaded certain affirmative defenses, but, as their side of the case was never reached, it is not material to notice these affirmative defenses at this time. injuries at a reasonable expense, or at an expense commensurate with the damages done by reason of its existence, then there must be a recovery once for all. It was on this last rule that this court rested the case of Payne, Agent, v. Smith, 198 Ky. 564, 249 S. W. 995, relied on by appellee, the Chesapeake & Ohio Railway Company. In the case before us, however, the evidence shows that the water could not get out under the fill of the railway company on account of the inadequacy of the culvert or drain pipe and on account of the clogging up of the grate bars over the drain pipe, and that this condition had existed for a long time and at every hard rain. A fair inference from this testimony is that these culverts were not constructed of an adequate size to carry off the natural drainage of this hollow, and, if this be true, it was undoubtedly a negligent construction. Hence under rule 2 of the Bennett Case, supra, there can be recurring recoveries for recurring injuries done, and, if there can be recurring recoveries, it must follow that the recovery is in the person who owns the land at the time the injury is done for which there may be a recovery. Cf. Lexington & E. Ry. Co. v. Crain, 182 Ky. 695, 207 S. W. 447. It does not matter then whether or not such owner knew of the conditions at the time he purchased his ground. The reason for the rule denying recovery to a person who has purchased land, knowing of the liability of overflow, where the obstruction is permanent, and there must be one recovery for all, is that such purchaser, knowing conditions and knowing that no repair work can be required of the railroad, is presumed to take these facts into consideration in making his purchase, and to fix the purchase price accordingly. City of Richmond v. Gentry, 136 Ky. 319, 124 S. W. 337, 136 Am. St. Rep. 255. But, where the purchaser has a right to expect that the railroad will rectify conditions, or, if it fails to do so, it can be held in damages from time to time for such failure, there is no presumption that these matters are taken into consideration in fixing the purchase price, and, if there can be recurring recoveries, the person owning the land at the time of the injury must necessarily be the one who has the "(2) For a structure unlawfully or negligent-right to such recovery, as he is the person inly built, though intended to be permanent, re-jured. curring recoveries for such improper or negli- There is no evidence in this case to take it gent construction may be had as the injuries The evidence, with all the inferences which must be accorded it on a motion for a peremptory, shows fairly satisfactorily that during ordinary hard rains, on account of the small size of the drain pipes under the fill in question, and on account of the insufficient grating over these drain pipes, water which drains down France's Hollow to this fill backs up over appellant's lot, greatly depreciating the value of its use. The evidence further discloses that this fill has been located at this point for a great number of years -for at least more than 12. It also satisfactorily appears that appellant at the time he bought his lot in France's Hollow knew of the conditions of which he now complains. For this last reason, the court thought appellant was estopped to prosecute this action, and on this theory it peremptorily instructed the jury as stated. In so doing, the court erred. [1, 2] In the case of L. & N. v. Bennett, 196 Ky. 679, 246 S. W. 121, this court restated the rules applicable to recovery sought for land flooded by obstructions created by railroads on their right of way, thus: "(1) A single recovery must be had for all damages resulting from a permanent structure properly built. out of rule 2 of the Bennett Case, supra. It may be that the expense of correcting the situation here will be too great or out of proportion to the damage done appellant's lot, in which state of case the rule in Payne v. Smith, supra, will apply. But the burden of showing this in on the railroad, and, since it offered no proof on the trial, we are left without a scintilla of evidence on this point. All we have is a case of negligent construction, for which we have held there may be recurring recoveries. (273 S.W.) So far as the city of Pikeville is concerned, the judgment is affirmed. So far as the railroad company is concerned, it is reversed. LOUISVILLE MILLING CO. v. TURNER et al. (Court of Appeals of Kentucky. June 9, 1925.) 1. Master and servant court erred in sustaining the motion for the agreement on form 9 of the Workmen's Comperemptory instruction so far as the rail- pensation Board was entered into, dated road is concerned. However, so far as the April 16, 1920, and filed with the Workcity of Pikeville is concerned, there is no men's Compensation Board, showing that he proof of any negligent act on its part that had sustained a temporary injury, for which caused any damage here, and hence the lower compensation at the rate of $12 a week court correctly instructed the jury to find from March 3, 1920, was fixed by agreement for it. of parties. On April 16, 1920, they filed with the Board his receipt for $20.55; being the total amount due him under the Compensation Law, and he, in consideration thereof, released the employer from all claims and causes of action on account of the injury. On May 31, 1924, he filed an application and motion to reopen the case on the ground that he had suffered a change for the worse in his condition, and that the injury to him had proved entirely different from what he had supposed at the time. The milling company objected to the motion to reopen the case, the objection was overruled, and the motion was sustained by the Board. After a full hearing it awarded Turner compensation for 8 years at $12 a week from March 1, 1920, subject to a credit of $20.55 theretofore paid, and 20 weeks during which Turner was able to work, but in all not to exceed the sum of $5,000. The milling company took an appeal to the Jefferson circuit court. That court affirmed the award of the Workmen's Compensation Board. The milling company appeals. 419-Compensation case may be reopened by order of Board for change of conditions after settlement. In view of broad interpretation to be placed on Workmen's Compensation Act, under Ky. St. § 4987, and in view of sections 4894, 4896, 4897, 4901, 4930, 4932, 4943, Workmen's Compensation Board, under section 4902, held to have power to reopen case on change of conditions, after compensation had been fixed by agreement and release filed, and not restricted to diminishing or increasing compensation previously awarded and being paid pending applica tion. 2. Master and servant 419-Application to reopen compensation case need not be within year after injury. Where Compensation Board has made an award, and injured employee seeks compensation for disability subsequently accruing, under Ky. St. § 4902, application need not be made within one year after injury, as required by section 4914, in case of death. Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Third Division. [1] It is conceded on the appeal that there was sufficient evidence before the Workmen's Compensation Board on the question of injury to sustain the award of the Board, and the only question made is as to the power of the Board in the premises. Section 4902, Ky. St., is as follows: "Upon its own motion or upon the application of any party interested and a showing of change of conditions, mistake or fraud, the Board may at any time review any award or order, ending, diminishing or increasing the compensation previously awarded, within the maximum and minimum provided in this act, or change or revoke its previous order, sending immediately to the parties a copy of its subsequent order or award. Review under this section shall be had upon notice to the parties interested and shall not affect the previous order or award as to any sums already paid thereunder." Proceeding under the Workmen's Compensation Act by Arthur Turner and others for injuries, opposed by the Louisville Milling Company, employer. From judgment of circuit court affirming order of Compensation Board reopening the case and awarding compensation, the employer appeals. Affirmed. Humphrey, Crawford & Middleton and Louis Seelbach, Jr., all of Louisville, for appellant. W. T. McNally and Ben Chapeze, both of the Board is limited to "ending, diminishing It is earnestly insisted that the power of Louisville, for appellees. HOBSON, C. Arthur Turner was employed by the Louisville Milling Company at Louisville. On February 25, 1920, he was injured by an accident in the course of his employment in this way: While holding a chisel which another laborer was hitting with a sledge hammer, Turner was struck over the left eye with the hammer. The injury appeared slight at the time, and an or increasing the compensation previously awarded," and that the Board has no power to act unless compensation was then being paid and there was a pending order with reference to which compensation might be ended, diminished, or increased. This was the construction given to the English statute by the English courts. The Vermont statute, which practically followed the English statute, received the same construction by the Supreme Court of Vermont in Bosquet v. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes Howe Scale Co., 96 Vt. 364, 120 A. 171. The, ployee arising out of and occurring in the court there thus stated the reasons for its course of his employment and caused by trauconclusion: matic accidental injury." Ashland Iron & Mining Co. v. McDaniel, 202 Ky. 22, 258 S. W. 945. "A review is authorized for the purpose only of 'ending, diminishing or increasing' the compensation previously awarded or agreed upon. This necessarily implies a matter still pending with the commissioner-something capable of being ended, diminished, or increased. If the Legislature had intended to invest the commissioner with authority to reopen a compensation case that had been finally disposed of, it naturally would have employed language better suited to that purpose." But our statute is not fairly capable of that construction. In addition to the power of the Board to review any award or order ending, diminishing, or increasing the compensation previously awarded, it is provided that the Board may, at any time, change or revoke its previous order. These words were not in the Vermont statute or in the English statute. This provision necessarily gives to the Board the power, upon just cause shown, to revoke or change any order it has made at any time before expiration of the period for which the additional compensation would be payable. In addition to this, by section 4987, Ky. St., it is provided: "The rule of law requiring strict construction of statutes in derogation of the common law shall not be applicable to the provisions of this act." The English decisions and the Vermont case both rest upon the rule of strict construction, but our statute must be construed liberally with a view to promote its objects, and, taken as a whole, the plain purpose of the statute is to give the Board power from time to time to modify its awards as justice may require. While the question here presented was not before the court in any case heretofore decided, the rules for the construction of the statute have been thus laid down: "In interpreting such an act, all presumptions will be indulged in favor of those for whose protection the enactment was made, and who have by the terms of the act and by their own voluntary agreements been deprived of the enforcement of their rights in the courts of this state." Workmen's Compensation Board v. U. S. Coal & Coke Co., 196 Ky. 839, 245 S. W. 902. "This act has been in operation since its adoption in 1916, and a number of its provisions have been construed by this court and at all times a liberal construction has been adopted in order to effectuate its purposes, which are to afford a speedy and scientific adjustment of compensation for injuries sustained by an em The act, read as a whole, shows a clear legislative purpose to give to the Board large discretionary powers to work out justice in each case. Thus, after providing that certain persons shall be presumed to be wholly dependent, it is provided that other cases shall be determined in accordance with the facts of each case. Section 4894, Kentucky Statutes. Where there is doubt as to who in other cases are the proper dependents, the Board is to determine this. Section 4896. Certain injuries shall be considered a total disability and in all other cases the burden of proof shall be on the claimant to show this. Section 4897. Where the result is a combined effect of a previous and subsequent injury, the Board is to determine the compensation to be allowed for the subsequent injury. Section 4901. The Board may make rules not inconsistent with the act for carrying out its provisions. Section 4930. If the parties have filed an agreement in regard to compensation under the act, and the compensation has been paid, and the parties thereafter disagree, either party may make written application to the Board for a hearing in regard to the matter. Section 4932. All questions arising under the act, if not settled by agreement of the parties with the approval of the Board, shall be determined by the Board, except as otherwise provided in the act. Section 4943. In view of the broad powers which are thus committed to the Board by the other sections of the act, to give section 4902 the construction urged by appellant would be, not only to give no force to the words "or change or revoke its previous order," but would be to give that section a construction out of keeping with the plain purpose of the act as a whole. [2] By section 4914, Ky. St., a claim by the dependents on account of death of an employee must be made "within one year after such death." The case of Ashland Iron & Coal Co. v. Fowler, 208 Ky. 422, 271 S. W. 589, involved a claim of dependents for death, and rests on the provision of the statute applicable only "in case of death." Where the Board has made an award, and the employee himself seeks, under section 4902, Ky. St., compensation for disability subsequently accruing, this limitation is not applicable. Judgment affirmed. |