7 o'clock a. m., and all the witnesses agree | davit further shows that since the subpoena that it was a dark and foggy morning. * Mr. Nussbaum testified that decedent drove slowly. The gong on the car was not sounded, and the car was going "mighty fast." After the car struck the wagon, it ran less than 30 or 40 feet. N. F. Patton stated that the car was going "pretty fast." Did not hear the gong sounded. When he got to the corner, he saw the horse and wagon standing perfectly still over the car track. At that time the street car was about 40 feet distant. After the car struck the wagon, the rear end stopped near Nussbaum's grocery, but a little further away. John C. Straub, a deputy sheriff, testified that the rear end of the car was about 20 feet beyond Nussbaum's. The horse was standing opposite the car. Mrs. Nussbaum testified that decedent left the store and got right into the wagon. He turned slowly around. His horse was walking. Did not hear the gong sounded. The car was going "awful fast." Her husband called to decedent, but decedent paid no attention to him. Decedent seemed to be in a hurry. He was standing in the wagon. The car ran about 30 feet. For the defendant the motorman testified that it was a dark and foggy morning, and he rang the bell continuously as the car went out Preston street, and rang it just before the accident. When he saw decedent's wagon it was standing by the curb. The horse was facing south. It was only 15 feet away when the wagon turned across the track. He immediately reversed the car, and did all in his power to stop it. From the time the horse began to cross the track his car went only 22 or 25 feet. After the car struck the wagon it went about 8 feet. The car was going about 5 miles an hour. Did not see decedent look up when the gong was sounded. Was a few minutes behind time. The whole thing happened in a very short time. After the gong sounded it was too late for decedent to get out of the way. Prior to that time, however, witness had been sounding the gong. was returned affiant had been notified that Hudson was in Cincinnati, and affiant did not ascertain that the witness was not in Louisville until the subpoena was returned. It was then too late to take his deposition. Exactly on what ground the continuance was refused does not appear. It is claimed, however, that the action of the trial court was based on the fact that the subpoena did not contain the address of the witness. If so, that ground was sufficient, in view of the fact that the affidavit states that the last known address of the witness was furnished to the sheriff. The Code does not require the address of the witness to be stated in the subpoena. Doubtless in a large city like Louisville, where it is impossible for the sheriff and his deputies to know the names and addresses of any large portion of its inhabitants, a rule requiring that the address of the witness be furnished to the sheriff is not unreasonable. The purpose of requiring the address of the witness to be stated in the subpœna is to enable the sheriff to find the witness. The same purpose may be accomplished by giving to the sheriff a written slip containing the address of the witness. That being true, we conclude that the rule requiring the address to be stated in the subpoena is unreasonable. We find nothing else in the affidavit tending to show a want of diligence on the part of the defendant. The accident happened January 25, 1913. On March 8th the case was set for trial on June 9, 1913. More than five days before the date the case was set for trial, a subpoena, with the last known address of the witness, was placed in the hands of the sheriff. While it is true that the witness had left defendant's employ, defendant had no reason to assume that because of this fact the witness had actually left the city of Louisville. Having placed the subpoena in the hands of the sheriff five days before the case was set for trial, and having then given to the sheriff the last known address of the witness, and not having learned that the witness was out of the city until the subpoena was returned "not found," we conclude that defendant did all that could be reasonably required of it to procure the attendance of the witness. That being true, the trial court erred in refusing to grant a [1, 2] 1. The first error relied on is the refusal of the court to grant a continuance on account of the absence of J. F. Hudson, the conductor in charge of the car at the time of the accident, or to permit the affidavit for continuance to be read as the deposition of the absent witness. The affidavit was made continuance. by defendant's general superintendent. It sets out the facts to which Hudson, if present, would testify. Of the relevancy and materiality of these facts there can be no question. The only question is: Does the affidavit show due diligence? It appears from the affidavit that Hudson was in the defendant's employ at the time of the accident. A subpoena for Hudson was placed in the hands of the sheriff five days before the case was set for trial. At that time the last known address of the witness in Jefferson county was given to the sheriff. The sub [3-5] 2. It is next insisted that the court erred in refusing to direct a verdict in favor of the defendant. This position is predicated not only on the claim that the evidence fails to show negligence on the part of the defendant, but conclusively shows contributory neg ligence on the part of decedent. The accident in this case occurred at the intersection of Preston and Brandeis streets. As has repeatedly been held, it was the duty of the motorman in approaching this crossing to have the car under reasonable control, and to give timely warning of its approach, to its cars at an unreasonable rate of speed, and then claim that they are excused from liability on the ground that the person injured came so suddenly on the track in front of the approaching car that the motorman could not, in the exercise of ordinary care, prevent the injury. This principle applies only in cases where the car is being operated at a reasonable rate of speed. Netter's Adm'r v. Louisville Ry. Co., 134 Ky. 678, 121 S. W. 636; Louisville Ry. Co. v. Buckner, 113 S. W. 90; Goldstein's Adm'r v. Louisville Ry. Co., 115 S. W. 194; Louisville Ry. Co. v. Gaar, 112 S. W. 1130; Lexington Ry. Co. v. Vanladen, 107 S. W. 740, 32 Ky. Law Rep. 1047; Hymarsh's Adm'r v. Paducah Traction Co., 150 Ky. 109, 150 S. W. 9; Louisville Ry. Co. v. Sheehan's Adm'x, 146 Ky. 168, 142 S. W. 221. Judgment reversed, and cause remanded for new trial consistent with this opinion. avoid injuring persons on or about to use stances, the street car company cannot run defendant's tracks. While defendant's motorman claims that the horse and wagon were standing perfectly still when he saw them at a point about 100 feet distant, and there was nothing to indicate that the horse would suddenly be driven across the track, at the same time this fact did not dispense with the duty of the motorman to have the car under reasonable control, and to give timely warning of the approach of the car. While the motorman says that he was going only five miles an hour, he admits that he was a few minutes late. The witnesses for the plaintiff say that the car was going "mighty fast" and "awfully fast." There is also evidence to the effect that the car was about 40 feet distant when the horse turned across the tracks. Three witnesses for the plaintiff say that the gong was not sounded. Under these circumstances, there was sufficient evidence of defendant's negligence not only to take the case to the jury, but to sustain its finding. Nor can we say as a matter of law that decedent himself was guilty of contributory negligence. The "stop, look, and listen" doctrine had never been applied in this state. All that is required of the injured party is the exercise of ordinary care. Of course, if 1. the evidence conclusively showed that proper warning of the approach of the car was given, and that decedent heard this warning, or that decedent saw the car approaching, and, notwithstanding this fact, endeavored to cross in front of the car, a different 133.*] question would be presented. In crossing 2. DEEDS (§ 211*)—EVIDENCE-SUFFICIENCY— the track decedent was not required to rely on his eyes alone. He had the right to rely on defendant's giving timely warning of the approach of the car. There being evidence that such warning was not given, we see nothing in the facts of this case to take it out of the general rule that the question of contributory negligence is ordinarily for the jury. GLASS et al. v. BRADFORD. (Court of Appeals of Kentucky. June 19, 1914.) HUSBAND AND WIFE (§ 133*)—Property OF PARTIES-EVIDENCE. Evidence held to show that money loaned and notes taken therefor belonged to a wife and her mother, freed from any claim of the hus band. [Ed. Note. For other cases, see Husband and Wife, Cent. Dig. §§ 487-494; Dec. Dig. § ADMISSIONS. Evidence in partition held to show that the name of plaintiff's ancestor was included as grantee in a deed by mistake, so that title to all the land was in the other grantees. [Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 637-647; Dec. Dig. § 211.*] Appeal from Circuit Court, Scott County. Consolidated actions by F. W. Thomasson, administrator de bonis non of W. G. Glass, deceased, against Jane Bradford, and by the heirs of W. G. Glass, deceased, against Jane Bradford. From a judgment for Jane Bradford, Asa S. Glass and others appeal. Affirmed. Bradley & Bradley and B. M. Lee, all of Georgetown, for appellants. J. F. Askew, of Georgetown, and J. C. B. Sebree, of Stamping Ground, for appellee. [6] 3. It is next insisted that the court erred in refusing the following instruction: "The court instructs the jury that the defendant's motorman was not bound in the exercise of ordinary care to anticipate that plaintiff's decedent would change the course of the wagon at the time he appears from the evidence to have done so; and defendant's said motorman was not, in the exercise of ordinary care, required to check the speed of his car with a view to averting a collision with said wagon until he saw, or by the exercise of ordinary care could have discovered, decedent's peril." This instruction was properly refused. HANNAH, J. Mrs. Jane Bradford is the While it is true that defendant's motorman widow of B. M. Bradford, who died a resiwas not bound to anticipate that the de- dent of Stamping Ground, intestate, and leavcedent would change the course of the wag-ing an estate consisting of both real and peron, yet he was still under the duty of having sonal property. his car under reasonable control, and of giv- The Bradfords had only one child, a daughing timely warning of its approach. Nor is it ter, who married W. G. Glass. This daughtrue that the motorman was not required to ter and her husband lived with the parents check the speed of the car until, in the exer- of the wife until the death of Bradford in cise of ordinary care, he could have discov-1878, after which they continued to reside ered decedent's peril. Under such circum- with the wife's mother. Glass and his wife had only one child, a |isfaction of said notes: this being the condaughter, who married J. G. Blanton. The Blantons lived with Mrs. Bradford and the wife's parents until Mrs. Blanton died, childless, after which Blanton continued to live with the family of his deceased wife until his own death. After the death of Bradford, Glass attended to all the business of his wife and her mother; no administrator having been appointed of the Bradford estate, and no division ever having been made between the mother and daughter, except perhaps a verbal agreement between the two that the house where they lived should be the mother's, and a farm the daughter's. Glass continued to manage all matters pertaining to the estate and the property of his wife and her mother until his own death. It appears that, at the time of his death, Bradford was the owner of some lands in Texas. In 1901 or 1902 Mrs. Bradford and Mrs. Glass sold these lands for $3,500. This money Glass handled as the agent of his wife and her mother. Of this sum, at the request of Mrs. Glass and her mother, $1,200 was expended for medical services for Mrs. Blanton, $500 was loaned to the firm of Glass & Yates, and a note taken therefor payable to Mrs. Glass, and the remaining $1,800 was loaned to Glass & Yates (the Glass of the firm being a nephew of W. G. Glass), and the notes therefor, seemingly without the knowledge of Mrs. Glass or Mrs. Bradford, were taken payable to Glass himself. Upon the death of Glass, these notes for $1,800 were found among his effects. His wife was administratrix of his estate; and she and Mrs. Bradford objected to the appraisers making an appraisement of these notes as part of Glass' estate, notwithstanding which objection the appraisers included them in their report. Whereupon Mrs. Glass moved the court to strike these notes from the report of the appraisement upon the ground that they were, in point of fact, the property of herself and her mother and not of the estate of her husband. Pending her administration of the estate of her husband and the controversy in respect of these notes, she herself died; F. W. Thomasson becoming administrator de bonis non of the estate of W. G. Glass, and Mrs. Bradford becoming administratrix of the estate of her daughter. Thomasson, administrator, instituted an action in the Scott circuit court to settle the estate of W. G. Glass; the only question in which, so far as it affects this appeal, being whether the notes mentioned were the property of W. G. Glass' estate or of Mrs. Bradford. sideration, as is shown by recital in the deed of conveyance. This deed was made to "Jane Bradford, widow of B. M. Bradford, Mary Glass, a child of said Bradford, deceased, and W. G. Glass, husband of Mary Glass." Its date was May 13, 1878. The details of this transaction were handled by Glass himself, acting for his wife and her mother, and there is no evidence indicating that Mrs. Glass or Mrs. Bradford, at any time before the death of Glass, knew that his name was mentioned in the deed. After the death of Glass, his heirs instituted an action in the Scott circuit court for the sale and division of the proceeds of sale of this property, which is indivisible, claiming an undivided one-third interest therein. This action Mrs. Bradford defended, asserting that the name of W. G. Glass was inserted in the deed without her knowledge or the knowledge of her daughter; that same was done through fraud or mistake; that the consideration of said conveyance was the money owing by McMillin to the estate of B. M. Bradford, and claiming ownership of the whole of said property in her own right and as heir at law of her daughter, Mrs. Glass. The two cases mentioned were consolidated in the circuit court, and, upon submission, the chancellor held that the two notes, amounting to $1,800, were the property of Mrs. Bradford, and that she was also the owner of the whole of the real estate sought to be partitioned by sale; and a judgment was entered to that effect. From that judgment this appeal is prosecuted by the heirs of W. G. Glass and the administrator of his estate. [1] 1. The questions presented are purely questions of fact. It was shown by a nuinber of witnesses that Glass stated on all occasions, when he spoke concerning the notes heretofore mentioned, that the money loaned to Glass & Yates was the property of his wife and her mother, and that the notes were theirs; that he stated to the assessors, when listing his property, that these notes were the property of the women, and that he owned no notes. It was also shown that he paid them from time to time the interest received thereon from the parties to whom the money was loaned. The cashier of the bank in which the $3,500 was deposited by Glass testified that same was received for the Texas lands; that on more than one occasion Glass told him that this money which was loaned to Glass & Yates belonged to Mrs. Bradford and Mrs. Glass; that the interest on these notes, paid from time to time, was paid in checks; and that Glass would cash these checks as they It further appears that, at the time of his came in and always take this money to Mrs. death, Bradford was the owner of notes ag- Bradford and Mrs. Glass. That the money gregating something over $2,000, signed by so loaned belonged to the women there can one McMillin, and secured by mortgage on be no doubt, and this fact, in connection with some real estate in or near Stamping Ground. the declarations made by Glass himself as to McMillin voluntarily surrendered this prop- the ownership of the notes, was sufficient to [2] 2. As to the land sought to be sold, the deed itself shows that the consideration therefor was the money owing by McMillin to the Bradford estate. In addition, it was shown by about 20 witnesses that Glass, on all occasions when the subject was under discussion, disclaimed ownership of the McMillin property, and asserted that it was the property of his wife or his wife and her mother. He consulted with and followed their directions with reference to repairs thereon, paid to them the rents, and at all times in their presence recognized this land as their prop erty. The evidence of a universal disclaimer of ownership or interest in the land, together with the fact that Glass paid none of the consideration, is sufficient to warrant the inference that the name of Glass was placed in the deed as joint grantee by mistake. Upon a consideration of the whole case, we believe the finding of the chancellor was right. The judgment is therefore affirmed. | and second sets, instead of striking the first [Ed. Note.-For other cases, see Elections. 4. ELECTIONS (§ 299*) -CONTEST-BALLOTSRECOUNT-PRELIMINARY PROOF. Where a party to an election contest desires that the ballot boxes be opened and the ballots recounted, he must tender in connection with his motion evidence that the boxes had been carefully and properly preserved and not tampered with since their return by the officers of the election, which evidence may be by depositions or by witnesses, and if it appears that the boxes have been opened by unauthorized persons, the motion must be denied. [Ed. Note.-For other cases, see Elections, Cent. Dig. §§ 306, 307; Dec. Dig. § 299.*] Appeals from Circuit Court, Estill County. Consolidated election contest between Ancil Powell and John Horn, G. W. Powell and William Broaddus, and R. E. West and J. E. Alexander. From a judgment in favor of Horn, Broaddus, and Alexander, the Powells and West appeal. Affirmed. Clarence Miller, of Irvine, G. W. Gourley, of Beattyville, and O'Rear & Williams, of Frankfort, for appellants. R. R. Friend, of Irvine, Pendleton, Bush & Bush, of Win POWELL v. HORN. SAME v. BROADDUS. chester, and R. W. Smith, of Irvine, for ap WEST v. ALEXANDER. (Court of Appeals of Kentucky. June 19, 1914.) MANDATORY pellees. CARROLL, J. These three appeals, prose1. ELECTIONS (§ 286*)-CONTEST-PLEADINGS cuted on the same record, are election con-FILING-TIME STATUTES tests from the county of Estill, involving the OR DIRECTORY PROVISIONS. offices of county clerk, sheriff, and jailer. At the November election, 1913, Ancil Powell was the Republican candidate for jailer, and John Horn his Democratic opponent. G. W. Powell was the Republican candidate for sheriff and William Broaddus was his Democratic opponent. J. E. Alexander was the Democratic candidate for county clerk, and R. E. West was the Republican candidate. The time prescribed by Ky. St. § 1596a, for the filing of pleadings in an election contest, is not mandatory, and hence the allowing or refusing to permit a pleading in such contest to be filed after time, when the delay is short and the adverse party will not be prejudiced, is within the sound discretion of the court, provided a proper excuse for the delay is presented. [Ed. Note. For other cases, see Elections, Cent. Dig. §§ 278, 279; Dec. Dig. § 286.*] 2. ELECTIONS (§ 286*)-CONTEST-PLEADING- The election commissioners, when they first REPLY-FILING-DELAY. Where there were two sets of election contests between the same parties for the same offices, the first set being filed after the first election certificates were issued by the commissioners and the second set after the second certificates had been issued by the commissioners to the contestants after the commissioners had been required to count a rejected precinct, the grounds of Contest and counter contest in each of the cases being substantially the same, the pleadings in the first set having all been filed in time, and the issues raised being the same in both, it was not an abuse of discretion to permit the filing of replies in two of the contests in the second set, one and six days, respectively, after the time therefor had expired. [Ed. Note. For other cases, see Elections, Cent. Dig. §§ 278, 279; Dec. Dig. § 286.*] 3. ELECTIONS (§ 305*) - CONTEST PROCEEDINGS-CONSOLIDATION. Where there were two sets of election contests between the same parties for the same offices, the first set being filed after the first election certificates were issued by the election commissioners and the second set after the second certificates had been issued to the contestants after the commissioners had been compelled to count a rejected precinct, the fact that the court erroneously consolidated the first assembled to canvass the returns, refused to count the votes in Riddell precinct, a Democratic stronghold, and, as the result of this the Republican candidates had a majority of the votes, and accordingly certificates were issued by the commissioners to all of the Republican candidates for county offices. After this, and on December 13th, the commissioners reassembled and the vote in Riddell precinct was counted by them as directed in Riddell v. Grinstead, 156 Ky. 319, 160 S. W. 1069, and thereupon the vote, in respect to the parties to this contest, was ascertained by the election commissioners to be as follows: In the county clerk's race, J. E. Alexander, Democrat, received 1,224 votes, and R. E. West, Republican, 1,220 votes; in the sheriff's race, William Broaddus, Democrat, re ceived 1,231 votes, and G. W. Powell, Republican, 1,231 votes; in the jailer's race, Ancil Powell, Republican, received 1,227 votes, and John Horn, Democrat, 1,226 votes. As the vote between Broaddus and Powell was a tie, the contest was settled lot, Powell, Republi can, winning. Certificates of election were | reply filed by Broaddus on February 2d bethen issued by the commissioners to Alex- cause it was filed more than 10 days after ander, G. W. Powell, and Ancil Powell. Aft- the day on which the answer and counter er these certificates had been issued, Broad- contest had been filed, and further moved dus brought a suit contesting the election of that the allegations of his answer and G. W. Powell, West brought a suit contest- grounds of contest be taken as confessed. ing the election of Alexander, and Horn On the same day Ancil Powell moved the brought a suit contesting the election of An- court to strike from the record the reply filed cil Powell. Upon a trial of these contests by Horn on February 2d, because it was filed in the circuit court, it was adjudged that more than 10 days after the day on which Alexander, Broaddus, and Horn were elect- the answer and counter contest were filed, ed, and this appeal is prosecuted by West, and further moved the court that the allegaG. W. Powell, and Ancil Powell. tions of his answer and counter contest be taken as confessed. But each of these motions was overruled by the trial court. Before taking up what may be called the merits of the case, we will dispose of the question, raised by counsel for G. W. Powell and Ancil Powell, that as replies were not filed by Broaddus and Horn within the time allowed, the counter contests asserted by G. W. Powell and Ancil Powell should be treated as confessed, and therefore on the pleadings they were entitled to the certificate. A brief history of the course of these cases will aid in the solution of this question. It appears that on the 17th day of November, 1913, Alexander, Democrat, as plaintiff, filed his contest suit against West, Republican, and Broaddus, Democrat, filed his contest suit against G. W. Powell, Republican, and John Horn, Democrat, filed his contest suit against Ancil Powell, Republican. These suits were each filed before the vote in Riddell precinct had been counted. The answer and counter contest of each of the defendants were filed on November 27, 1913. On December 6th the plaintiffs in each case filed a reply to the answer in each case. All these pleadings were filed before the election commmissioners reassembled on December 13th, as directed in the case of Riddell v. Grinstead, and issued new certificates of election. When these new certificates were issued, the effect, of course, was the cancellation of the first certificates, and this neces [1] It is provided in subsection 12 of section 1596a of the Kentucky Statutes, that: "Within twenty days after the service of summons upon him the contestee shall file his averments of the petition and may also set answer which may consist of a denial of the up grounds of contest against the contestant, and if grounds are so set up they shall be especially pointed out and none other shall thereafterward be relied upon by said party. A reply may be filed within ten days after the answer or answers are filed, but its affirmative allegations shall be treated as controverted, and tion shall proceed as an equity action." no subsequent pleading allowed, and the ac If this statute is mandatory and strict compliance with it indispensable, the motions to strike the replies from the record should have been sustained, because the reply of Broaddus was filed one day after the 10 days had expired, and the reply of Horn 6 days after the 10 days had expired. In Preston v. Price, 70 S. W. 623, 24 Ky. Law Rep. 1090, the answer and counter contest was filed on December 9th and a reply was filed on December 19th, one day after the 10 days allowed by the statute had expired, and on motion of the contestee the reply was stricken from the record. In resisting the affidavits were filed attempting to excuse the motion to strike the reply from the record, delay, but these affidavits, as stated by the court, did not present any reasonable or sufficient ground to excuse the delay. And in holding that the court did not commit error in striking the reply from the record this court said: sarily abated the contests based on the first certificates. After the certificates of December 13th were issued, West, the Republican candidate for clerk, on December 20th, filed his contest suit against Alexander, and on January 10th, Alexander filed his answer and "We are not called upon to decide whether counter contest, and on January 17th West for good cause shown, or for unavoidable casfiled his reply. On January 3d Broaddus, ualty or misfortune, the time prescribed by the the Democratic candidate for sheriff, filed statute for filing a reply in an election case his contest suit against G. W. Powell, and on might be extended, for no such state of cause is shown. The whole statute, so far as it reJanuary 22d G. W. Powell filed his answer lates to contested election cases, shows the and counter contest. On February 2d Broad-legislative intent to be that such contests should dus filed his reply, which was merely a traverse of the affirmative averments of the answer and counter contest of Powell. On December 22d Horn, the Democratic candidate for jailer, filed his contest suit against Ancil Powell, and on January 17, 1914, Powell filed his answer and counter contest, and on February 2d Horn filed his reply, which was In Allen v. Brown, 144 Ky. 414, 138 S. W. merely a traverse of the averments of the 253, the answer was filed more than 20 day▾ answer and counter contest. When the court after the petition had been filed. But the convened in April, 10 G. Powell mov-motion of the plaintiff to strike the answer be railroaded through the courts, to the end that if the contestant should succeed in his contest, he might do so in time for his success to be of benefit to himself, and possibly to the public. We are of opinion, therefore, that the time specified within which a reply may be filed is mandatory, to the extent of requiring it to be filed within the time named, unless good cause be shown." |