(288 S.W.)

LOUISVILLE FIRE BRICK WORKS v.
TACKETT.

(Court of Appeals of Kentucky. Nov. 23, 1926.)

1. Pleading
369(1)-Where plaintiff's
amended petition, in addition to setting up an-
other cause of action, reiterated all allegations
of original pleading, he should not be required
to elect which cause of action he would pros-
ecute.

Where plaintiff's amended petition in second trial, in addition to setting up another cause of action, reiterated and reaffirmed all allegations of original pleading, he should not be required to elect which cause of action he would prosecute, where he did not abandon cause set up in original petition.

2. Appeal and error 1097(1), 1195 (1).

Opinion on former appeal is the law of the case in same action, and precludes lower and appellate court from considering questions there decided.

3. Damages 132(6)—$4,000 held not excessive where pelvic bone and bones of foot were fractured and permanent injuries received which decreased earning power one-fourth.

$4,000 verdict held not excessive, where plaintiff was confined in hospital for 30 days, walked on crutches for 6 or 7 months, and suffered fractures of pelvic bone and bones of foot, decreasing his earning power by one-fourth.

Appeal from Circuit Court, Carter County. Action by Lee Tackett against the Louisville Fire Brick Works. Judgment for plaintiff, and defendant appeals. Affirmed.

John M. Theobald, of Grayson, and Fred Forcht, of Louisville, for appellant.

Waugh & Howerton, of Ashland, for appel

lee.

MCCANDLESS, J. This is a second appeal. A statement of the facts and legal questions involved appears in the former opinion reported in 203 Ky. 367, 262 S. W. 299, and but little need be added thereto.

In

Appellee, a miner, while removing clay from a room of appellant's mine, was injured by a quantity of slate which fell upon him from the roof. In the original petition his cause of action was based on the failure of the defendant to furnish him with a reasonably safe place in which to work. On the first trial he recovered judgment for $6,000. the appeal from that judgment the points chiefly emphasized by appellant were that the petition was defective in failing to allege that plaintiff did not know the dangerous condition of the room in which he was working, and "that the court erred in instructing the jury upon the 'safe place' doctrine rather than upon the theory that the place was made dangerous by the work the plaintiff was engaged in doing."

trial the defect in the petition was cured by the verdict. It also held that the facts of the case brought it within "the safe place

doctrine," and that the trial court did not

err in instructing the jury on that theory, the form and sufficiency of the given instructions being tacitly approved. But the opinion continued:

"There was evidence, however, for plaintiff, that defendant's mine foreman and timbermen, after being notified by plaintiff of the condition the foreman directed him in the meantime to of the mine roof, promised to timber it, and that load out the fire clay already shot down. Upon the other hand, the evidence for the defendant is, that after plaintiff called attention to his roof, he was told to stay out from under it until it could be timbered. Under all the proof, the roof fell and hurt plaintiff while he was loading out the fire clay previously shot down, and shortly after he called the foreman's attention to his roof.

"So the jury should have been instructed, but were not, on this, the real issue on the proof. No instruction was offered, however, correctly, or even directly, submitting this issue, but we have finally concluded that instructions 3 and 4, offered by defendant, sufficiently suggested the issue to require the court to submit it, and that for this error the judgment ought to be reversed, in order that this issue of fact, really determinative of the case, may be clearly submitted to and decided by the jury."

On a return of the case plaintiff filed an amended petition correcting the defects mentioned above and elaborating the issues suggested by the court as its ground of reversal. The defendant moved the court to require plaintiff to elect which of the two causes of action he would prosecute that set up in the original petition or that relied on in the amended petition. This was overruled and issues joined. On a second trial substantially the same evidence was introduced as on the first, and the same instructions were given, with the addition of others covering the issues suggested by this court in its former opinion. Plaintiff recovered $4,000, and defendant appeals.

[1, 2] It is strongly argued that under the facts plaintiff's only cause of action is that set up in the amended petition; that this pleading was inconsistent with the original petition and in relying upon it plaintiff abandoned his original cause of action; that therefore the court erred in failing to require him to elect, and also in submitting the issues joined in the original petition. Evidently plaintiff did not abandon the cause of action set up in his original petition, as the amendment positively reiterated and reaffirmed all the allegations of the original pleading. Nor did the court err in overruling the motion to require plaintiff to elect which of the two alleged inconsistent causes of action stated in his pleadings he would This court held that as practiced in that prosecute, nor in instructing the jury upon

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Verdict that testator was mentally incapable of making will and that purported will was not his last will and testament held not against pre-paper was proved by the two attesting witponderance of evidence.

Appeal from Circuit Court, Warren County. Application by Ben Carter and others for the probate of the will of Bailey P. Carter, deceased. From a judgment in favor of the contestants, Robert Carter and others, denying the probate, the proponents appeal. Af-appreciate the nature and value of his prop

Rodes & Harlin, of Bowling Green, for making a rational survey of his estate and appellants. disposing of it, according to a fixed purpose W. B. Gaines and N. P. Sims, both of of his own. The court submitted to the jury Bowling Green, for appellees.

only the question of mental capacity to make the will, thus holding, it would seem, that SAMPSON, J. The will of Bailey P. Car- there was not sufficient evidence of undue inter, who died a resident of Warren county influence to carry the case to the jury upon that

(288 S.W.)

question. Among the witnesses for the con- that he had been practicing about 25 years in testants was Dr. W. A. Francis, a regularly and around Bowling Green; that he gradupracticing physician, now located in Bowling ated from Vanderbilt University and had proGreen, but formerly residing in the country fessionally attended the testator in his illness. five or six miles from Bowling Green in the neighborhood where the testator lived. The witness stated that he had been practicing medicine for about 47 years, and had been the family physician of the deceased for several years before his death, and had professionally treated the testator on several occasions. When asked if the testator had, during the time the doctor had known him, sufficient mind to make a survey of his property, and know the objects of his bounty, and have sufficient will power to dispose of his property, according to a fixed purpose of his own, the witness said:

"No, sir; I don't think so; I do not think he could concentrate his mind long enough on anything, because he might be talking to you on one subject, and in a second he might be talking to you about something else. He was not very bright in the beginning. He had some kind of infection that threw him down and for weeks after he would not be able to do anything-some kind of heart trouble, and part of the time he was unconscious or semiconscious, and would reach out and pull things to him and mutter."

The witness then testified that the testator

about the time of the making of the will charged the witness (his family physician) with stealing chickens and eggs.

"Q. Did you resent that? A. No; he was childish, and I did not care anything about it.

"Q. All the years you have known him, you say he was weak mentally? A. Oh, yes. "Q. Was he a man who was easily influenced? A. Oh, yes; just like a child."

"Q. From your personal contact and acquaintance with him and your chance to observe him, and from your knowledge of him, I will get you to state if, during any of the time that you saw him when you would be at your office and he would be to see your father, and when you would be there to see his wife and you treated him, did you observe from his actions or conduct anything to indicate that he was of unsound mind, or that he didn't know his children, or what he had, or wouldn't know his acquaintances, or anything of that sort? A. No, sir.

"Q. Did you ever at any time observe in the old man anything that was abnormal, so far as mental faculties were concerned? A. No, sir.

*

"Q. During all these times that you saw him and were with him, did you consider him of unsound mind? A. No, sir.

"Q. It was testified here by one man that he his manner or his conversation to indicate that was an imbecile. Did you ever see anything in he was an imbecile, or in such a condition as that? A. No, sir; nothing whatever."

[1, 2] Some 20 or more lay witnesses testified in substance, that the testator was a man of good common sense, though uneducated, and was fully able to make a survey of his with respect to the objects of his bounty. property and was not unaware of his duty

While there were more witnesses who testified to the normal mental condition of the testator than there were persons testifying that he was mentally unbalanced, it cannot be said that the verdict is palpably against the weight of the evidence. The jury, no doubt, knew the witnesses and, perhaps, the parties, and was able to judge of their credibility, and, unless the verdict be palpably against the weight of the evidence, this court is not authorized to disturb it. It cannot be said in this case that the verdict of the jury is flagrantly against the weight of the evidence, although it does appear that the majority of those testifying support the contention of the propounders of the will. No complaint is made of the instructions of the court submitting the case to the jury, nor of anything save that the verdict of the jury finding the paper not to be the last will and testament of the testator is flagrantly against the weight of the evidence.

The witness also related several circumstances in the life of the deceased which tended to show that he was childish and not well balanced mentally. At the time of the making of the will, the testator was about 81 years of age and he lived about two years thereafter. The lay witnesses gave testimony concerning numerous incidents in the life of the testator which indicated he was mentally weak or was unbalanced in mind. Some of this evidence was quite convincing, while much of it was concerning minor matters and had little relevancy and less probative value. For the propounders, Dr. W. F. Cartwright testified that the testator was a man of good As there was much evidence heard by the common sense and fully able to know the ob- jury warranting the verdict returned, it canjects of his bounty, make a survey of his prop-not be set aside as unsupported or as flagranterty, and dispose of it, according to a fixed ly against the evidence, purpose of his own. Dr. Cartwright testified

Judgment affirmed.

1. Railroads 376(4)-Railroad engineer, discovering unknown object on track, held not roquired to check speed, and proceed on assumption that it was human being.

Where railroad engineer discovered object on track and could not tell what it was, and there was nothing in surroundings to impose duty on him to know what it was, he was not required to check speed of train, and proceed on assumption that object might be a human being. 2. Railroads 400 (8).

Evidence of negligence in failing to stop train or give warning when engineer saw object on track, which turned out to be human being, held for jury.

Appeal from Circuit Court, Letcher County. Action by Stephen Ison's administrator against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, de fendant appeals. Reversed and remanded,

with direction.

Woodward, Warfield & Hobson, of Louisville, Morgan & Harvie and Fields, Day & Fields, all of Whitesburg, and C. S. Landrum, of Lexington, for appellant.

R. Monroe Fields, of Whitesburg, for ap pellee.

A. It was a slight curve; we come off of a slight
curve just before we run over the body.
"Q. How far from the body? A. I would
say about 80 or 90 feet.

"Q. 80 or 90 feet. A. Yes, sir.

"Q. Did you see this man before you run over him? A. I saw an object on the track that afterwards I suppose proved to be the man.

"Q. Did you know what the object was? A. No, sir; I couldn't tell in that short distance I had to see him what it was.

"Q. What did you take it to be? A. Well, I was debating in my mind what it might have been, the possibility of its being some form of stock, or possibly a hog or dog, or maybe a few blocks of coal or some cinders; I was debating that in my mind.

"Q. You first saw it when you were 80 or 90 feet away from it? A. Yes, sir."

He testified further that he did not blow the whistle or ring the bell or apply the brakes in an effort to stop the train until over the object after the engine had run which he had seen, when, smelling the odor of whisky, he thought possibly it was a man. He then stopped the train and upon investigation found appellee's intestate had been run over, and that his head had been severed from his body. A broken bottle found where he had been accounted for the whisky odor. Appellee introduced other testimony, which he insists was sufficient to establish that the train in question, traveling at the rate of speed, 12 miles per hour, testified to by the engineer, could have been stopped in approximately 50 feet. Hence it is insisted for ap pellant that the evidence authorized the sub

SANDIDGE, C. Appellee, Stephen Ison's administrator, recovered judgment in the Letcher circuit court against appellant, Louis-mission of this case to the jury and supports ville & Nashville Railroad Company, for $2,500, in an action against it for the death of his intestate, alleged to have been caused by its negligence.

the verdict returned. The cross-examination of the engineer developed that the object which he saw, concerning which he testified for appellee, as above quoted, was lying down on the railroad between the rails. Three witnesses testified for appellee that they passed his intestate shortly before he was run over and that he was then sitting on the right rail of the track as they were proceeding, with his feet between the rails, bent over with his hands on his legs and his head on his hands. The testimony of one of those witnesses established that he had been drinking shortly before that. One of them estimated the time that elapsed after they passed him before the train ran over him at 10 or 15 minutes, another at 5 or 6 minutes, and the other at a "few minutes." testimony establishes then that it was night; that the train came off of a curve; and that when about 90 feet from him the engineer

Appellant insists that the trial court erred in refusing to peremptorily instruct the jury to find for it at the close of appellee's evidence and at the close of all the evidence. It is conceded that appellee's intestate was a trespasser upon appellant's right of way, and that therefore those in charge of its train which ran over and severed intestate's head from his body owed him no duty except to use ordinary care to prevent injury to him after discovering his peril. The engineer in charge of the train was introduced as a witness for appellee. He testified that the train was composed of the engine, tender, three loaded freight cars, and a caboose. It was about 7:20 o'clock p. m., September 11, 1924, and dark. The following quotation embodies all of the testimony found in the rec-discovered an object on the track. He testiord tending to establish negligence upon the part of appellant after the peril of appellee's intestate was discovered, or when if at all his peril was discovered before he was killed:

"Q. How was the track immediately south or down the creek from where this man was run over, whether it was a straight track or not?

The

fied that he did not know what it was and in the short distance and time he could see it he could not tell what it was. The evidence from the witnesses for appellee that when they passed him appellee's intestate was sitting on the rail does not tend in the least to contradict the engineer's testimony

(288 S.W.)

that when he saw the object it was lying on the right of way between the rails. The condition and position in which they testified he was when they passed him and the time that elapsed fully accounts for the change of the position of deceased between then and when the engineer first saw him.

who was killed in that instance was sitting upon one rail of the track. Many facts and circumstances appearing in that record which may be had by reference to the opinion, supra, tended to establish that fact, especially the testimony of a little girl who stated that she was looking at deceased when he was run over and killed and that he was then sitting upon one of the rails of the track. Hence it cannot be said that that opinion modified the rule, supra, to any extent, but rather that it recognized and applied it. It was held that a case was made for the plaintiff because there was evidence that the fireman in the engine cab discovered a human being on the track in time to be charged with the duty of warning him and of using the means at his command to prevent injury to him after discovering his peril. No such state of case is here presented.

[2] For the reasons indicated, this court is of the opinion that the trial court erred at the conclusion of the evidence for appellee and at the conclusion of all the evidence in refusing the peremptory instruction offered by appellant. In view of this conclusion, we deem it unnecessary to discuss or determine any of the other questions presented.

[1] The rule is firmly established in this jurisdiction that, where trainmen discover an object upon or dangerously near the track and cannot tell what it is, and there is nothing in the surroundings to impose the duty upon them to know what it is, the defendant does not have to check the speed of the train, and proceed upon the assumption that the object may be a human being. See Spiegel v. C., N. O. & T. P. R. Co., 170 Ky. 285, 185 S. W. 1138; C., N. O. & T. P. R. Co. v. Reynold's Adm'r, 102 S. W. 888, 31 Ky. Law Rep. 529; L. H. & St. L. R. Co. v. Hathaway's Executrix, 121 Ky. 666, 89 S. W. 724, 2 L. R. A. (N. S.) 498; Early's Adm'r v. L., H. & St. L. R. Co., 115 Ky. 13, 72 S. W. 348; Goodman's Adm'r v. L. & N. R. Co., 116 Ky. 900, 77 S. W. 174, 63 L. R. A. 657. The reasons upon which the rule above is founded are fully discussed in those opinions, and need not here be repeated. This case seems clearly to fall within that rule. There is no evidence in the record that the engineer could tell when he saw the object on the track that it was a human being. No other member of the train crew appears to have seen it. While the train was running the distance of 90 feet, he had an exceedingly small interval of time in which to look at the object to ascertain what it was. It was at a place where no lookout duty was imposed. Nothing in the surroundings required him to know what the object was. In that state of case, under the rule above, he was not re-1. quired to check the speed of the train or to proceed upon the assumption that the object might be a human being.

The judgment is reversed, and the cause remanded, with direction that appellant be granted a new trial, and for other proceedings not inconsistent herewith. Judgment reversed.

VENABLE'S EX'X v. THOMPSON et al.

(Court of Appeals of Kentucky. Nov. 23, 1926.) Mortgages 283 (2)-Agreement by mortgagee releasing part of property securing mortgage on sale of balance held to constitute release of mortgagors from payment of debt.

Where land partially securing mortgage was sold, agreement of mortgagee releasing mortgage on other property held, in effect, agreein view of circumstances showing mortgagee ment not to look to mortgagors for payment, was financing purchaser of land and subsequent failure to make demand on mortgagors for payment.

2. Mortgages 283(2).

Conveyance of mortgaged premises to pursideration for agreement of mortgagee to look chaser assuming mortgage held sufficient conto purchaser for payment of debt.

Appellee insists, however, that the rule above was modified by, and that the facts of this case bring it clearly within, the rule announced in Sowards, Administrator, v. C. & O. R. Co., 208 Ky. 840, 272 S. W. 32. As to this he is in error. In that case the fireman from the cab of the engine testified that he discovered the object on or near the track while the train was yet 500 feet away, but that he did not recognize it as a man. It was held that the other facts and circumstances in evidence were sufficient to make it a question for the jury whether he knew that the object he saw was a human being, notwithstanding his statement to the contrary. While being interrogated for plaintiff in that case, the engineer testified that while the train was about 500 feet away his fireman acted as though he saw a man on the track. The fire man testified that the object he saw was lying on the side of the right of way and out of danger. The other evidence of the case, however, tended to establish that the person lees.

Appeal from Circuit Court, Clark County.

James H. Thompson and others. Judgment Suit by O. R. Venable's Executrix, against dismissing the petition, and plaintiff appeals.

Affirmed.

J. F. Winn, of Winchester, for appellant.
Benton & Davis, of Winchester, for appel-

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