was overruled by the lower court. In considering this ruling of the lower court we said, after referring with approval to the excerpt supra, from Preston v. Price, that: "Conceding, for the purpose of this case, that the answer could be filed in a case like this after 20 days have expired, and thus violate the plain provisions of the statutes, we are of the opinion that the excuse offered for not filing in the time stated in the statutes is not sufficient. The provisions of the Civil Code with reference to filing of pleadings have nothing to do with this case. The statutes make specific provisions for the filing of pleadings in contested election cases, and it does not provide that any excuse shall avail." But further said that "the excuse for not filing the answer within the time required was not sufficient." In Weller v. Muenninghoff, 155 Ky. 77, 159 S. W. 632, the question of the right to permit a pleading to be filed after the expiration of the statutory time was again considered, but the point here involved was not decided. excuse for not filing these replies in time sufficient? This record presents a most curious and unusual state of facts. There were two sets of contest suits between the same parties for the same offices. The first set of these suits was filed after the first certificates were issued by the election commissioners, and the second set of suits was filed after the second certificates had been issued by the commissioners. The grounds of contest and counter contest in each of these first set of suits the pleadings, which consist cases were substantially the same. In the of petitions, answers, and replies, were made up in time, and these pleadings furnished to each of the parties full information of the grounds of contest that were relied on in the It further appears from the record that the parties commenced taking depositions on January 2d, and that a great many of the numerous depositions, taken by both parties to be read and that were read on the trial, were taken before the answers in the second contest suits were due or were filed, and of course before the replies in any of these cases were due. Indeed, the taking of depositions was commenced before the second contest petition of Broaddus was filed. The reason for this was that the parties were anxious to have the cases speedily disposed of, and were fully advised as to the issues by the pleadings in the first set of contest cases. The Legislature, in providing for the contest of elections, recognized the importance of having this class of cases speedily disposed of, and the liberal rules of pleading that obtain in ordinary cases should not be applied to contested election suits. These contested election cases have been put by the statute in a class by themselves, and all of the statutory requirements in respect to them must be substantially complied with; but, notwithstanding the mandatory nature of the statute, this court has never committed itself to the doctrine that it is indispensable in every case and under all circumstances that the answer and reply shall be filed within the statutory time, or to the doctrine that no excuse, however reasonable or sufficient it may be, will operate to extend the time within which these pleadings may be. filed. It has, however, decided in effect, and we think correctly, that when an answer or reply is offered to be filed after the statutory period has expired, it should be accompanied by affidavits or other proof showing good reasons why the pleading was not filed in proper time, for unless a good excuse is shown, the statute is peremptory and must "The plaintiffs shall begin taking their evibe complied with. If, however, the answer dence January 1, 1914, and continue taking 21 or reply is filed very soon after it is due, take for 24 juridical days their evidence. This juridical days, and the defendants shall then and it affirmatively appears that a good ex- applies to evidence in chief, and in the event cuse for the delay existed, arising out of un- either party concludes taking his evidence soonusual or extraordinary conditions appear-shall commence taking immediately upon the er than the time mentioned, the other party ing in the record as in this case, or due to announcement of such conclusion, and each accident or surprise which ordinary prudence party agrees to announce as soon as finished in could not have guarded against, or resulting chief. The plaintiffs mentioned shall then have from unavoidable casualty or misfortune, dence in rebuttal." six juridical days in which to take their eviand also that the substantial rights of the adverse party were not prejudiced by the delay, we think the matter of allowing or refusing to permit the pleading to be filed is within the sound discretion of the trial court. But nothing short of an excuse resting on one of these grounds will be available or deemed sufficient to avoid the statute. As further illustrating that the parties understood the issues and really treated them as made up in the first contest suits, it was agreed by the parties on January 1, 1914, that: In addition to this, the attorney for Broaddus and Horn filed a lengthy affidavit setting out additional reasons for the delay in filing these replies, but we do not hold that this affidavit in itself would be sufficient to excuse the delay. What we do hold is that under the unusual and extraordinary condi abuse of discretion to permit these pleadings | which they were kept was entered by some to be filed. [3] Another complaint is of the action of the lower court in consolidating the first and second sets of contest suits. Of course the first contest suits have nothing to do with this contest. They should have been stricken from the files, but manifestly the order of the court in consolidating the cases did not prejudice the rights of the appellants, except to the extent that it imposed on them the necessity of having the pleadings in this first set of contest suits copied as a part of the record for this court; nor was it error to consolidate and hear together the three last suits, as the evidence, except in a few particulars, covered all the cases. [4] It is further urged that the trial court committed error in refusing to recount the ballots in Miller's Creek and Thomas precinct on the motion of Ancil Powell, G. W. Powell, and West. This motion, it appears, was made in court on the 10th day of April, when the cases were called for trial, and the record shows that it was not accompanied by any offer to show the condition of these ballot boxes, or either of them, or the manner in which they had been preserved between the time of their delivery to the clerk in November, 1913, and the day the motion was made, although there was evidence in the record showing their condition between November 13th and February 20th. In short, the whole of the record upon the subject of counting the ballots in these boxes merely shows that counsel for the parties named "moved the court to require the ballot boxes in Miller's Creek and Thomas precinct to be brought into court and opened, and that a recount of the ballots therein be had, to which counsel for the opponents of the parties so moving objected, and, the motion being submitted, the court, advised on the pleadings and proof in the record, overruled said motion, to which the parties making the same except." This being the condition of the record, the question arises, Did the parties making this motion present it in such a manner as to make available the alleged error of the trial court in refusing to count the ballots in these boxes? Some time in February the evidence of the county clerk, as well as that of the circuit clerk, into whose custody these boxes had been delivered by the county clerk, was taken to show the condition of these boxes and the manner in which they were kept between the time of their delivery to the county clerk by the officers of election and the time the depositions of these clerks were taken, but there was no evidence offered, and there is none in the record, to show the condition of these boxes, or how they were preserved between the time when the depositions of these clerks were taken and the motion to open the boxes was made. It does, however, appear that while these boxes and the other election boxes were in person or persons, without the knowledge or consent of the county clerk, and one of the ballot boxes stolen and carried away from the office; and it further appears that while these boxes were in the custody of the circuit clerk, the room in which they were kept was unlawfully entered by some persons, without the knowledge or consent of the circuit clerk. These undisputed facts, showing that persons who would tamper with, mutilate, or destroy ballots or boxes had access to the place in which these boxes and ballots were kept, made it especially incumbent upon the parties tendering them as evidence to offer some proof that the boxes tendered had not been disturbed, and we think their failure to do so fully justified the trial judge in not opening these boxes and recounting the ballots. In the contested election case of Browning v. Lovitt, 139 Ky. 480, 94 S. W. 661, it was said upon this subject: "When the box of this precinct was produced before the court, it showed that it was not in the condition that the law requires, as one lock was gone entirely; but aside from the condition of the box an inspection of the ballots which have been brought to this court makes it plain that an election thief had been at work. When a recount is demanded and made, if the box appears to have been opened since its delivery to the clerk by the officers of the election, or if the ballots show evidence of having been tampered with, the court should reject them and accept the certificate of the officers of the election as the correct vote in the precinct. "In this connection a question of practice is presented that should be disposed of. For the purpose of showing the condition of the box and ballots at the time of the recount, the contestants during the * *hearing before the lower court introduced witnesses to testify as to the condition of the boxes and ballots when they were brought before the court and opened, and this testimony is exhibited in the form of a bill of exceptions duly signed by the judge. The appellees insist that this evidence cannot be considered because the Kentucky Statutes, section 1596a, in providing how elections shall be contested, specifies the manner in which evidence shall be taken, and makes no provision for the hearing of oral evidence by the court. be introduced at the time as to the condition Unless, however, oral evidence is permitted to of the box and ballots when they are before the court, it would not be possible for this court to understand the condition of them if the box and ballots were not brought here, and if ordered here and lost or tampered with in transit, there would be no evidence on appeal of their condition at the time of the recount, record a statement of fact as to their condiunless the court saw proper to embody in the tion. We think, therefore, that it is proper for either party to introduce before the court, during the hearing, witnesses who in the presence of the court and the parties have examined the box and ballots to testify as to their condition, and this evidence should be manifested in the form of a bill of exceptions regularly signed this evidence in connection with the box and by the judge, and when brought to this court ballots, if sent here, will be considered by this court." In Baker v. Dinsmore, 138 Ky. 277, 127 S. W. 997, it appears that Dinsmore asked that The recounted, to which Baker objected. court overruled his objection and ordered the box to be brought into court, unlocked the box, took out the ballots, and recounted them. In holding that the ballots in this box should not have been counted, we said: "The lower court had no legal right to open the ballot box and recount the ballots over the objections of appellant until it was satisfactorily proved that the ballot box had been kept as required by the statutes, that the ballots had not been tampered with since the election, and that the ballots offered in evidence were the identical ones cast. Under the authority of Edwards v. Logan, 114 Ky. 312 [70 S. W. 852, 75 S. W. 257], this is indispensable. The record is silent upon this question. In other words, the record does not show that these requirements were observed before the delivery of the box containing the ballots counted to the court; nor does it show anything with reference to the condition of the box or the preservation of the ballots, or whether the ballots were found in the box in the condition which the law requires the election officers to put them in. In the case of Edwards v. Logan, supra, the court said: 'But, before a recount of the ballots should be allowed to rebut the presumption of the correctness of the official returns, it should be proved satisfactorily that the ballots had not been tampered with since the election, and that those offered in evidence are the identical ones cast. * * * That presumption of the integrity of the ballots cannot attach, however, until it is first shown that they came from the officer whose duty it is by law to have and preserve them, and that they are apparently in the condition of preservation prescribed by the statute.' We understand from this opinion that these facts must be shown by the party seeking to have the court open the box and recount the ballots, and that it cannot be done until this much is shown. When this is done, in order to prevent the ballots from being recounted the other party must show that the ballots have been tampered with, or that access has been had to them by persons [not] authorized by law. As there is no proof in the record that the ballots came from the officer whose duty it was under the law to have and preserve them, that they had been so kept since the election, and that they were apparently in the condition of preservation prescribed by statute, without this showing of the integrity of the ballots, they were not of equal dignity as evidence of the result of the election as the certificate of the election officers. See the case of Edwards v. Logan, supra. Therefore we are of the opinion that the court erred in counting the ballots in the box over the objections of appellant's counsel." To the same effect are Hackney v. Justice, 159 Ky. 167, 166 S. W. 760; Hamilton v. Young, 81 S. W. 682, 26 Ky. Law Rep. 447; Galloway v. Bradburn, 119 Ky. 49, 82 S. W. 1013; Bailey v. Hurst, 113 Ky. 699, 68 S. W. 867, 24 Ky. Law Rep. 504. mony, if it is taken on a hearing of the case. When it is shown in this manner that the boxes have not been tampered with, the court should open and count the ballots, if it appears that the ballots have not been tampered with or mutilated since their return by the election officers. Coming now to consider the facts in relation to illegal votes alleged to have been cast and counted for both contestants and contestees, it appears to be admitted in the brief of counsel for the appellants that 43 illegal votes were cast for them, and it appears to be admitted in the brief of counsel for the appellees that 48 illegal votes were cast for them. In addition to these admitted illegal votes, a number of votes were contested by both appellees and appellants upon the ground that they had been voted openly, without the voters being sworn, or that they were nonresidents, or minors, or had been convicted of a felony and not pardoned. The evidence relating to all of these challenged votes was carefully read and considered by three members of this court, who acted together in examining the record, and our conclusion is that in addition to the admitted illegal votes cast for appellants, 12 other illegal votes were cast and counted for them, making the total illegal votes for the appellants 55. And that in addition to the admitted illegal votes cast for the appellees, they received three illegal votes, thus making the total number of illegal votes received by appellees 51. cording to this tabulation, in the sheriff's race, where each of the candidates received, as shown by the election returns, 1,231 votes, the appellee, Broaddus, for sheriff has a majority of 4 votes over his opponent, G. W. Powell. In the clerk's race, the appellee, Alexander, received 1,224 votes and the appellant, West, 1,220 votes. Deducting from the vote received by Alexander 51 votes, and from the vote received by West 55 votes, Alexander has a majority of 8. In the jailer's race the appellee Horn received 1,226 Votes and the appellant Powell 1,227. Deducting from the votes received by Horn 31 votes and from the votes received by Powell 55 votes, Horn has a majority of 3. Ac We took off of the Republican votes, in addition to the admitted votes, Gilbert Holland, Charles Holland, Albert Powell, Elihu Tipton, Homer Wallace, Dan Barnes, John Dozier, Elza Wells, Andy Lutes, Price Powell, These cases we think establish very clearly Erby Bicknell, and Van Horn. From the that the party who desires to have ballot Democratic votes we deducted the votes of boxes opened and ballots counted, on the the following persons as illegal: Joseph hearing of an election contest, must tender, Hinds, Pete King, and W. H. Hyden. In adin connection with his motion, evidence that dition to these the votes of Oscar Ballard, the boxes have been carefully and properly Jake Hughes, and Buck Johnson, who voted preserved and not tampered with since their for appellants, were challenged. It is exreturn by the officers of the election. This tremely doubtful if these men were legal votevidence may be offered either in the formers, but as their votes did not affect the reof depositions or by witnesses that the court sult, we let them stand as they were cast. may permit to testify orally, preserving in The evidence as to these 15 named illegal stances very conflicting. But it would serve made but six or eight trips as a brakeman, no useful purpose to extend this opinion in that his duties required him to be on the train, discussing the reasons that influenced us in and he had a right to assume that the engineer would run the train at a speed enabling rejecting the votes. It is, we think, sufficient him to get on, and that he was standing by the to say that we have given to this large rec- track facing the train, and could tell nothing as ord unusually careful and painstaking at- to its speed until it was close to him, the court's failure to correct an instruction on astention, and our conclusion was reached on-sumed risk to embody the theory of extraordily after all the evidence relating to these vot-nary assumed risk, and to give the instrucers had been carefully read. tion as corrected, was not error. Upon the whole record, we think the judgment in each case should be affirmed; and it is so ordered. CHESAPEAKE & O. RY. CO. v. DE ATLEY. (Court of Appeals of Kentucky. June 19, 1914.) 1. MASTER AND SERVANT (§ 285*)-INJURY TO BRAKEMAN-PROXIMATE CAUSE QUESTION [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1068-1088; Dec. Dig. § 288.*] Carroll, J., dissenting. Appeal from Circuit Court, Mason County. Action by John J. De Atley against the Chesapeake & Ohio Railway Company for personal injuries. From judgment for plaintiff, defendant appeals. Affirmed. Worthington, Cochran & Browning, of Maysville, for appellant. Allan D. Cole, of Maysville, and Holmes & Ross, of Carlisle, for appellee. CLAY, C. In this action for damages for personal injuries against defendant, the Chesapeake & Ohio Railway Company, plaintiff, John De Atley, recovered a verdict and judgment for $9,050. The railroad company appeals. FOR JURY. In a brakeman's action for injuries received in attempting to board, in the course of his employment, a train going at a high speed, the question whether the speed was the proximate cause of his injury was for the jury, though his own evidence disclosed that his foot slipped off the step, and he was thrown loose by his own weight and the speed of the train. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. $$ 1002, 1003, 1007, 1008, 1016, 1035, 1043, 1053; Dec. Dig. § 285.*] 2. MASTER AND SERVANT (§ 295*)-INJURY TO BRAKEMAN ASSUMED RISK-REFUSAL OF INSTRUCTION. In a brakeman's action for injuries from being thrown, in the course of his employment in interstate commerce, from a train which he attempted to board while it was going at high speed, an instruction that he assumed all the ordinary risks and hazards of his employment was properly refused, where the evidence show-ing acquainted with his duties and qualifying ed that the risk was an extraordinary one. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1168-1179; Dec. Dig. 8 295.*] 3. MASTER AND SERVANT (§§ 204, 228*)—INJURY TO SERVANT "CONTRIBUTORY NEGLIGENCE" "ASSUMED RISK"-FEDERAL EMPLOYERS' LIABILITY ACT. According to the evidence for plaintiff, he entered defendant's service as brakeman on December 10, 1910. At that time he was 19 years of age. Prior to that time he had made two trips as brakeman between Covington and Russell for the purpose of becom himself for the work. At the time of the accident, which occurred on January 22, 1911, he was head brakeman on train No. 95, a fast west-bound manifest freight train. When the train reached Springdale, a point about six miles east of Maysville, the engineer told plaintiff to call the operator and see if he The distinction between "assumed risk" could get an order or the time on train No. 1. and "contributory negligence," the former resting on the intelligent acquiescence and knowl- Train No. 1 was a fast passenger train from edge of the danger and appreciation of the risk the east. The engineer wanted to know if naturally incident to the employment or arising his train had time to get into Maysville withfrom the particular situation in which the work is done, and the latter resting on the breach of out danger from a collision with No. 1. duty to exercise ordinary care, is of great im- Plaintiff was unable to understand the operportance in cases arising under the federal Em-ator over the phone, and so reported to the ployers' Liability Act (Act April 22, 1908, c. 149. 35 Stat. 65 [U. S. Comp. St. Supp. 1911, p. 1322]), since assumed risk bars a recovery, while contributory negligence merely diminishes the amount of recovery. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 544-546, 670, 671; Dec. For other definitions, see Words and Phrases, vol. 2, pp. 1540-1547; vol. 8, p. 7617; vol. 1, pp. 589-591; vol. 8, pp. 7584, 7585.] engineer. Plaintiff then got into the cab of the engine, and the train proceeded to the coal docks, a point about 460 yards east of F. G. Cabin, where it stopped for coal and water. Plaintiff was then directed by the engineer to go forward to the F. G. Cabin and ascertain from the operator how much time they had on train No. 1. Plaintiff proceeded to the tower, made the inquiry of the 4. MASTER AND SERVANT (§ 288*)-INJURY TO operator, and was advised that the train BRAKEMAN-EXTRAORDINARY ASSUMED RISK had time to go on to Maysville. After acquirWhere, in a brakeman's action for inju-ing this information, plaintiff went down to ries from being thrown, in the course of his the platform in front of the tower. At that employment in interstate commerce, from a time his train was approaching. When it train which he attempted to board while it -INSTRUCTIONS. was going at high speed, the evidence showed reached the platform he attempted to board that plaintiff was only 19 years of age, and had the engine. He caught hold of the grabiron, and put one foot on the step. The speed of "Have you anything on No. 1?" Witness rethe train and his weight threw him loose, .peated the question to the dispatcher, who and his foot slipped off. The tender ran replied: "No. 95 has 10 minutes on No. 1. over his leg and cut it off. He thought that the train was running slow enough for him to get on. He could not judge the speed. The engine did not look to be running very fast. Plaintiff further stated that he had on a number of occasions been directed to walk ahead of his train to a telegraph office for orders, and board the train as it came by. On cross-examination he was unable to name a single place or instance where this had occurred. We are expecting her back over here at Maysville." Witness repeated the answer to plaintiff. After remaining there a short time plaintiff left the tower. Saw plaintiff make a leap for the train and fall. He further stated that a "19 order" is executed by the chief dispatcher, and the operator is supposed to hand it on the engine for the engineer and on the caboose for the conductor. The train was running between 10 and 12 miles an hour. By instruction No. 1 the court told the jury, in substance, that if defendant's engineer directed plaintiff to go to defendant's tower, or knew that plaintiff was at the tower on business connected with the operation of the train, then it was the duty of the defendant, its agents and servants in charge of the train, to exercise ordinary care to operate the train at such rate of speed as would not make plaintiff's attempt to board the train, under all the facts and circumstances, unusually hazardous, and if they believed that defendant, its agents and servants, negligently failed to perform said duty, and plaintiff was injured by reason of such failure, if any, the jury should find for the plaintiff. By instruction No. 2 the court told the jury that if they believed from the evidence that plaintiff went to the tower of his own volition, and that defendant's engineer did not know of his presence there, they should find for the defendant. Instruction No. 3 fixed the proper measure of damages, and instruction No. 4 presented in proper language the defense of contributory negligence. The court refused to give the following instruction, offered by the defendant: For defendant the engineer testified in substance as follows: When the train left Springdale plaintiff went forward to throw the switch on to the main track. Then he requested plaintiff to call up the operator at F. G. Cabin and find out how train No. 1 was running. When the train reached the coal docks, it was stopped for coal and water. He did not, at any time, direct plaintiff to go to the tower, and did not know that he had gone there. Supposed that plaintiff had gone back to look over the train, as it was his duty to do. When he finished coaling his engine he called in the rear flagman with the usual signal, to wit, five blasts of the whistle. After waiting a short time, some one about 15 cars back gave him the signal to go ahead. He then started the train. He supposed the man who had given the signal was De Atley. As a matter of fact, it was the conductor. When he got within about 300 feet of the tower he saw a man standing on the platform. Thought it was the operator with a message to hand to him. He crossed over to the fireman's side of the cab to take the message. When the train reached the platform he recognized De Atley. Just at that moment plaintiff attempted to board the engine. Plaintiff caught hold of the grabiron, his foot slipped, and he fell under the wheels. The emergency brakes were at once applied, and the train stopped. The fireman stated that he was in the engine cab all the time after leaving Springdale. Did not hear the engineer direct plaintiff to go to the tower, and did not know that he had gone. After leaving the coal docks, he started firing. Just before the engine reached the tower the engineer called to him to catch a message. He started to lean out the window, and saw plaintiff try to board the train. The conductor says he was in the caboose until the train reached the coal docks. He then started towards the engine, with orders to the effect that train No. 1 was running 10 minutes late. Did not reach the engine until after the accident occurred. Knew nothing in regard to the alleged order given by the engineer to [2] (2) The principal error relied on is the plaintiff to go to the tower. When about 100 failure of the court to give the requested infeet from the tower, and before he reached struction on assumed risk, though this dethe engine, he saw plaintiff on the platform fense was pleaded by the company. It is conwaiting for the train. The operator at F. G. ceded that the defendant company was enCabin stated that plaintiff came into his tow-gaged, and plaintiff was employed, in inter "The court instructs the jury that when the plaintiff, John J. De Atley, entered the service of the defendant, railroad company, as brakeman, he assumed all the ordinary risks and hazards of that employment or occupation; and if they should believe from the evidence that the ural and direct results of any of said risks, then plaintiff's injuries complained of were the nat they must find for the defendant." [1] (1) It is first insisted that the evidence fails to show that the speed of the train was the proximate cause of plaintiff's injury. In this connection it is insisted that plaintiff's own evidence discloses the fact that his foot slipped off the step, and he was then thrown loose by his weight and the speed of the train. We think, however, it was for the jury to say whether or not the speed of the train was the cause of plaintiff's injuries; for his foot might not have slipped, or his hold on the grabiron have been loosened, had it not been for the speed of the train. |