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completing a street improvement, on failure of a contractor, without advertising for further #-Bases v. Town of Paintsville, 179 S. W.
&=385 (Ark.) A city is liable for damages to abutting owner from change of grade of street.— Eickhoff v. City of Argenta, 179 S. W. 367. G:400 (Ark.) Kirby's Dig. § 5672, providing that street improvements shall be made with reference to grades as fixed by the city ordinances, held to impose liability for damages caused by change of established grade on city, and not on improvement district.–Eickhoff v. City of Argenta, 179 S. W. 367. Q:404 (Ark.) Complaint against an improvement district held fatally defective for failure to allege that the district was created for the purpose of grading the street in front of plaintiff’s buildings.–Eickhoff v. City of Argenta, 179 S. W. 367.
(E) Assessments for Benefits, and Special Taxes.
<>406 (Ky.) Ky. St. § 3706, expressly empowers trustees of a town of the sixth class to construct sewers and streets, and assess abutting property, not exceeding 50 per cent. of the value of the land.—Bayes v. Town of Paintsville, 179 S. W. 623. Q:407 (Ky.) Assessment of cost of curbing and guttering against abutting property held not double taxation, on theory that bonds issued for reconstruction of street was also intended to cover the curbing and guttering.—Shuey V. Trapp, 179 S. W. 578. <=407 (Ky.) A local assessment for the cost of a local improvement held not a “tax” within Const. §§ 157, 171, limiting tax rate and requiring uniformity of taxes.—Vogt v. City of Oakdale, 179 S. W. 1037.
Ky. St. § 3643, providing for local assessments for street improvements, held constitutional. Q=413 (Ry.) Where its charter required a street railroad company to conform its tracks to the grade of the street and keep the portion occupied in good repair, the cost of improving that portion should be assessed against the railroad company, and not abutting owners.-City of Maysville v. Davis, 179 S. W. 463.
Under Ky. St. §§ 3567, 3573, 3576, abutting owners on street may be charged with an improvement, notwithstanding that portion oc: cupied by car tracks was left unimproved, and the ordinance authorizing a change was invalid, the engineer having authorized the change, and the work having been accepted.-Id. Q->414 (Ky.) Under Ky. St. §§ 3565, 3566, cost of curbing and guttering held properly assessed against abutting property, though done in connection with reconstruction of the carriage#. of the street.—Shuey v. Trapp, 179 S. W. Q=430 £ The Owner of a lot by conveying the front eight feet, reserving right to use it for ingress and egress, with provision against construction thereon, cannot exempt the rest from assessment for street improvement, as not abutting on the street.—Bayes v. Town of Paintsville, 179 S. W. 623. Q=>446 (Ky.) Abutting owners held not entitled to object to a change in the method of improving a street, where the city could not secure removal of car tracks, the change not increasing the expense.—City of Maysville v. DaViS, 179 S. W. 463. C>446 (Ky.) That by the plan of paving streets and constructing sewers, the sewer pipes are smaller in some streets than others does not invalidate the assessments in streets having the larger pipes, absent a showing of fraud in adopting the plan.—Bayes v. Town of Paintsville, 179 S. W. 623.
(F) Enforcement of Assessments and Special Taxes,
C>562 (Ky.) An assessment for street improvement held not invalidated by changing plan and ordinance, and letting work under the new ordinance, after a contract for some of the work under the first ordinance has been completed.—Bayes v. Town of Paintsville, 179 S. W. 623. The property owner cannot, in an action by a municipality to enforce a lien for payment of an apportionment warrant for a street improvem: assert a counterclaim or set-off against it. Q=>567 (Ky.) One must allege and prove a wrong basis of apportioning cost of a street improvement, and consequent damage, to have relief on that ground against his assessment.— Bayes v. Town of Paintsville, 179 S. W. 623.
X. POLICE POWER AND REGULATIONS.
(A) Extent, and Exercise of
3:591 (Tex.Civ.App.) Provision of ordinance licensing and regulating motor busses, requiring an inspection and a new certificate weekly, held not objectionable, as a municipal delegation of police power intrusted to it by the state.—Booth v. City of Dallas, 179 S. W. 301.
XI. USE AND REGULATION OF PUB-
(A) Streets and Other Public Ways.
&=680, 681 (Ky.) Ky. St. § 3636, regulating municipal franchise grants, must be strictly followed.—Eastern Kentucky Home Telephone Co. v. Hatcher, 179 S.W. 7.
&=682 (Ky.) An exclusive franchise to electric light and power company held beyond the power of a city to grant.—City of Princeton v. Princeton Electric Light & Power Co., 179 S.W. 1074. A franchise for more than 20 years is beyond the power of the city to grant.—Id. A grant by a city of a franchise to an electric light and power company for 10 years, to begin about 4% years later, is invalid.—Id.
Q=683 (Ky.) Purpose of Const. § 164, is to prevent municipalities from granting franchises without sufficient consideration, by compelling them to receive bids after advertisement.—City of Princeton V. Princeton Electric Light & Power Co., 179 S. W. 1074. Under Const. § 164, a city, advertising for the sale of a franchise with the right to exercise it for 10 years, cannot grant a valid franchise for a greater number of years.—Id. An ordinance of a city granting a franchise for 10 years, enacted without advertising and receiving bids as required by Const. § 164, is void.—Id C: 684 (Ky.) Any ambiguity in an ordinance granting a franchise as to the time in which it is to be enjoyed will be construed more strictly against the grantee.—City of Princeton v. Princeton Electric Light & Power Co., 179 S. W. 1074. G=697 (Tenn.) Where a statute regulates jitneys and prohibits their operation, except upon conditions named, but they are operated in violation of law, with danger to persons and property, they may be enjoined at the suit of an individual showing special damage.—Memphis St. Ry. Co. v. Rapid Transit Co., 179 S. W. 635. Relief by an injunction against a nuisance, obstructing the highway, need not be sought by an abutting owner, but may be had by any individual who can show special damage to himself.
<>703 (Tenn.) The Legislature, being endowed with police power to regulate the use of streets in public places, may prescribe the conditions with which jitneys must comply in order to S. W. 631
&=703 (Tenn.) Under Acts 1915, c. 60, a jitney company is altogether Without right to do business on the streets of a city, which has passed no ordinance pursuant to the act, and the defendants have failed to procure any license or execute any bond under the act.—Memphis St. Ry. Co. v. Rapid Transit Co., 179 S. W. 635.
<>703 (Tex.Cr.App.) Under Austin city charter, held, that the city could enact all reasonable ordinances necessary to regulate the handling of automobiles, including jitneys, and the use of street by persons operating them in the carriage of passengers for hire.—Ex parte Bogle, 179 S. W. 1193.
A jitney ordinance requiring an indemnity bond or filing of insurance policy as prerequisite to a license held not objectionable as creating a liability against the licensee or his bondsmen in favor of strangers to the licensee and licensor.-Id.
G: 705 (Mo..App.) Ordinance limiting speed of automobiles to 12 miles an hour held not to authorize such speed under all circumstances and not conclusive that speed of 10 miles an hour was not negligence.—Ginter v. O’Donoghue, 179 S. W. 732. Under Rev. St. 1909, § 8523, care required of automobile driver held to be determined according to attending and surrounding circumstances and the exigencies of the situation.—Id.
&: 705 (Mo..App.) Owner of automobile, driven by chauffeur negligent in failing to see boy approaching street crossing on roller skates at a negligent rate of speed in time to stop the car to avoid a collision, held liable for the boy’s death.—Hopfinger v. Young, 179 S.W. 747.
&=706 (Ky.) Under Civ. Proc. § 129, variance between petition and proof in action against automobile owner and his chauffeur for injuries sustained by plaintiff in collision with the car # immaterial.—Weil v. Hagan, 179 S. W.
c3:3706 (Mo..App.) Where an action for injuries to a person struck by an automobile is not submitted specifically upon the theory of the humanitarian or last chance doctrine, contributory negligence will defeat a recovery.—Ginter v. O'Donoghue, 179 S. W. 732. Contributory negligence of person struck by conveyance not confined, like a street car, to tracks suggesting danger, held ordinarily a question for the jury.—Id. Evidence held not to show conclusively that plaintiff failed to look for vehicles before crossing street or looked so carelessly as not to see what should have been seen.—Id Act of crossing street at a place other than a crossing at a street intersection, though to be £d. held not negligence as a matter of a W.-ICl. Plaintiff in walking 15 or 20 steps, or about 33% feet, after looking for automobiles before starting across street, held not negligent as a matter of law in failing to continually look behind her.—Id.
operate.—City of Memphis v. State, 179 |
placed the obstruction in the street itself.—Gnau v. Ackerman, 179 S. W. 217. Where an obstruction placed in a street by a property owner with the permission of the city made the street unsafe, the city and the property owner were jointly and severally liable for resulting injuries.—Id. Q=762 (Ky.) Duty of city to keep streets and sidewalks reasonably safe extends to defects caused by acts of third persons.—Eagan v. City of Covington, 179 S.W. 1026.
C:763 (Ky.) City held bound to exercise ordinary care to keep streets reasonably safe for use by children as well as adults.—Gnau v. Ackerman, 179 S. W. 217.
If higher degree of care is required to keep streets safe for children than for adults, city held b'd to exercise such higher degree of Call'o.-ICl.
C=767 (Mo..App.) A municipality need not keep its streets free from ruts, and the fact that a truck driver's wheel went into a rut, he being thrown out, did not render the city liable, unless the rut rendered the street not reasonably safe for travelers exercising ordinary care.Morrill v. Kansas City, 179 S.W. 759. G:788 (Ky.) Where city authorized obstruction of street by building material, held actual notice was not necessary to make it liable for injuries.—Gnau v. Ackerman, 179 S. W. 217 <>788 (Ky.) City held not liable for injuries from defective sidewalk caused by act of third person, unless charged with knowledge of de#" v. City of Covington, 179 S. W. City held not liable for injuries from defective sidewalk caused by overflow in the absence of knowledge of defect.—Id. 3:2805 (Mo..App.) Where a walk is not glaringly dangerous, a pedestrian may use it exercising ordinary care, but, if so glaringly dangerous that an ordinary person would not use it, the mere use of the walk Will preclude recovery against the city.—Morgan v. City of Kirksville, 179 S. W. 755. G>808 (Ky.) That property owner placing obstruction in the street obtained the right to do so from the city held not to relieve him from the duty of leaving the street in a safe condition.—Gnau v. Ackerman, 179 S. W. 217. Where an obstruction placed in a street by a property owner with the permission of the city made the street unsafe, the city and the property owner were jointly and severally liable for resulting injuries.—Id. Property owner authorized to place building material in the street held liable for negligence of contractors employed by him.—Id. C>812 (Mo...App.) Under Laws 1913, p. 545, plaintiff truck driver, injured by defendant city's defective street, could maintain his action; his petition being filed within 6 days of the accident, and the city’s answer within 30 days.— Morrill v. Kansas City, 179 S. W. 759. G->818 (Mo..App.) Where there was nothing to show that the condition of a sidewalk had not changed, evidence of its condition at the time of a second trial was inadmissible.—Morgan V. City of Kirksville, 179 S. W. 755. 3>821 (Ky.) Where but one inference can be drawn from evidence as to liability of city on constructive knowledge of street defect, question is for court.—Eagan v. City of Covington, 179 S. W. 1026. Q->821 (Mo...App.) In an action against a city for injuries to plaintiff truck driver through the unsafe condition of a street, it was within the jury's province to determine whether the city had been negligent in the premises.—Morrill v. Kansas City, 179 S. W. 759. &=822 (Mo..App.) An instruction in an action
by one injured in a fall on a walk held erroneous, as making a mere attempt to use a de
fective walk negligence without regard to the manner of the use.—Morgan v. City of Kirksville, 179 S.W. 755.
XIII. FISCAL MANAGEMENT, PUBLIC DEBT, SECURITIES, AND TAXATION.
(A) Povver to Incur Indebtedness and Ex- penditures.
&=871 (Tenn.) Priv. Acts 1913 (1st Ex. Sess.) c. 18, providing for improving the streets of Bristol and issuance of bonds held not in violation of Const, art. 2, § 29, as pledging the credit of the city for abutting owners who were specially assessed for part of the improvement. —Imboden v. City of Bristol, 179 S.W. 147.
(C) Bonds and Other Securities, and Sinking Funds.
&:918 (Tenn.) Where the credit of a city or county is to be used for a proper city or corporation purpose, bonds may be issued, if due authority is given by the ILegislature, without a submission of the matter to a vote of the I'le-Imboden v. City of Bristol, 179 S. W. 7. XV. ACTIONS.
Q: 1027 (Ky.) Where a city brought suit to protect its rights as against a public service corporation operating under a void franchise, the petition of a citizen to be made a party plaintiff held properly rejected.—City of Princeton v. Princeton Electric Light & Power Co., 179 S. W. 1074
MUNICIPAL COURTS. See Courts, 3:189; Criminal Law, @:84.
MUTUAL AID SOCIETIES.
See Beneficial Associations.
MUTUAL BENEFIT INSURANCE. See Insurance, @->687–825.
See Contracts, 3:10.
See Death, 8:05.
See Beneficial Associations; Building and Loan Associations, 3:34. C>14 (Mo..App.) Identity of name, in the absence of proof to the contrary, is identity of person.—Eaker V. Harvey, 179 S. W. 985.
See Banks and Banking, @:262.
NECESSARIES. See Husband and Wife, @:19.
NE EXEAT. See Constitutional Law, 3×83.
&=3 (Tenn.) The writ of ne exeat will not issue for demands uncertain or contingent, and either the demand or its enforcement must be of an equitable nature.—Caughron V. Stinespring, 179 S. W. 152.
&=>6 (Tenn.) A bill, praying the issuance of a writ of ne exeat, must, by positive allegations or by facts showing the intention, set forth defendants' intended departure from the state
(C) Condition and Use of Land, Buildings, and Other Structures.
C>29 (Mo..App.) Railroad company’s failure to keep gate of stock pen reasonably safe held not actionable unless it owed to injured person the duty of keeping its stock pen and premises reasonably safe.—Woods v. Missouri Pac. Ry. Co., 179 S. W. 727. C>32 (Mo..App.) Person selling live stock to shipper and entering railroad stockyards for purpose of delivering them held an invitee to whom the company owed the duty of ordinary care.—Woods v. Missouri Pac. Ry. Co., 179 S. C>32 (Tenn.) A policeman, injured while examining private premises without the owner's consent, is a mere licensee, as to whom the owner need not keep the premises safe, but must only refrain from willful injury.—Burroughs Adding Mach. Co. v. Fryar, 179 S. W. 127.
III. CONTRIBUTORY INEGLIGENCE. (A) Persons Injured in General.
Q:68 (Tex.) It is a maxim that no one is bound to anticipate another's negligence.—St. Louis Southwestern Ry. Co. of Texas v. Arey, 179 S. W. 860. . G=83 (Tex.Civ.App.) The doctrine of discovered peril has no application, in the absence of actual knowledge by the person inflicting the injury of the peril of the person injured in time to avoid the injury by use of the means at hand. —St. Louis Southwestern Ry. Co. of Texas v. Aston, 179 S. W. 1128.
(C) Imputed Negligence.
C: 93 (Mo..App.) The negligence of a driver of a wagon cannot be imputed to a person who is injured while riding therein, at the driver's inVitation.-Ingino V. Metropolitan St. Ry. Co. 179 S. W. 771. Q:96 (Mo...App.) Father of two year old child, who permitted her, upon becoming engrossed in his newspaper, to run into the street, where she was struck by an electric car, held not negligent.—Albert v. St. Louis Electric Terminal Ry. Co., 179 S. W. 955.
(D) Comparative Negligence.
C: 101 (Ky.) The contributory negligence of the injured servant will, under the federal Employers' Liability Act, only reduce the recovery. —Cincinnati, N. O. & T. P. Ry. Co. v. Nolan, 179 S. W. 1046. C: 101 (Tex.Civ.App.) Contributory negligence on part of an employé merely diminishes the amount of his recovery.—Pecos & N. T. Ry. Co. V. Winkler, 179 S. W. 691.
To diminish recovery by servant on account of contributory negligence, the employer need not show that the servant knew of the danger, but it is sufficient to show that he did not exercise due care.—Id.
IV. ACTIONS. (B) Evidence.
&: 121 (Ky.) Negligence will not be presumed, but must be alleged and proven.—Lucas Land & Lumber Co. v. Cook's Adm’r, 179 S. W. 582 <> 122 (Ky.) The burden is on the defendant to show contributory negligence.—Southern Mining Co. v. Lewis' Adm’r, 179 S. W. 1067. <> 134 (Ky.) It is not necessary to establish negligence by eyewitnesses; circumstantial evidence is sufficient.—Southern Mining Co. v. Lewis' Adm'r, 179 S. W. 1067. <> 134 (Tex. Civ. App.) Negligence cannot be established by mere conjecture without evidence of actual negligence or of facts from which it can be inferred.—St. Louis Southwestern Ry. Co. of Texas V. Aston, 179 S. W. 1128.
(C) Trial, Judgment, and Revie W.
C: 136 (Mo..App.) In determining whether plaintiff's negligence appears as a matter of law, plaintiff held entitled to all evidence favorable to her and all reasonable inferences from the facts in evidence.—Ginter v. O'Donoghue, 179 S. W. 732. &= 136 (Tex.) Whether negligence of plaintiff contributed to injury held for the jury, unless such conclusion is irresistible.—Wells Fargo & Co. v. Benjamin, 179 S. W. 513.
Where evidence conflicts as to plaintiff’s anticipation of danger, question of contributory negligence is for the jury.—Id. 3: 141 (Tex.) In an action for personal injuries defendant is entitled to charge grouping facts relied upon to establish contributory negligence.—Wells Fargo & Co. v. Benjamin, 179 S. W. 513.
(F) Verdict or Findings Contrary to Law or Evidence.
G:75 (Ky.) Civ. Code Prac. § 341, prohibiting new trials of personal injury actions for inadequacy of damages, held not to prevent new trial for errors causing inadequacy or for other errors, though the damages are inadequate.— Gnau V. Ackerman, 179 S. W. 217. &=75 (Mo..App.) In action for damages for breach of contract concerning assets and management of a corporation, where the evidence tended to show damages in a substantial amount, the trial court was within its discretion in setting aside a verdict for plaintiff for $1.— Powell v. Batchelor, 179 S.W. 751.
<>76 (Ky.) Setting aside a verdict for $12,000 held, under the evidence, not abuse of discretion
by lower court.—Beall v. phone Co., 179 S. W. 251
(G) Surprise, Accident, Inadvertence, or Mistake.
3:997 (Ky.) A new trial for surprise will not be granted, where no objection was made to the evidence alleged to constitute surprise and no motion was made for postponement or continuance of the case.—Hudson Engineering Co. v. Shaw, 179 S. W. 1083.
(H) Newly Discovered Evidence.
&= 100 (Ky.) Where the defeated party neglected to call a witness solely because he said he would not testify because of his privilege against incriminating himself, his evidence is not newly discovered so as to Warrant a new trial.—Liverpool & London & Globe Ins. Co. V. Wright, 179 S. W. 49. Q+ 102 (Ky.) Where defendant could easily have discovered certain evidence at the trial of a case, which was pending for 3% years, but he failed to produce it, he cannot have a new trial on the ground of newly discovered evidence.—Hudson Engineering Co. v. Shaw, 179 S. W. 1083. &= 102 (Tex.Civ.App.) Defendant is not entitled to a new trial on the ground of newly discovered evidence, a deed of trust, of which the circumstances put him on inquiry.-Ablon V. }:eler & Motter Mercantile Co., 179 S. W.
Louisville Home Tele
Q: 19 (Tenn.) Under the express provisions of Const. art. 2, § 25, and Shannon's Code, § 1069, the election of a defaulter in the payment Of State revenue to the Office of clerk of the county board of road commissioners was absolutely void.—Hogan v. Hamilton County, 179 S. W. 128. 3:535 (Ky.) Under Const. § 236, and Ky. St. §§ 779a, 3755, held, that lapse of one year after the appointment of a special railway policeman before qualifying, raised the presumption that he did not execute the bond and take the oath within the prescribed 30 days after notice of appointment, so that the office was vacant.—Cincinnati, N. O. & T. P. Ry. Co. v. Cundiff, 179 S. W. 615
(D) De Facto Officers.
Q:243 (Ky.) A special railway police officer whose office had become vacant for failure to take the oath and execute his bond within the time prescribed by the Constitution was not a “de facto officer.”—Cincinnati, N. O. (& T. P. Ry. Co. v. Cundiff, 179 S. W. 615.
3:43 (Tenn.) The fact that one whose election as clerk of a county board of road commissioners was absolutely void was permitted by the county court to take the oath and to give bond added nothing to his rights, and he merely became a de facto officer and could assert no '#" V. Hamilton County, 179 S.
(F) Term of Office, Vacancies, and Holding Over.
<>49 (Ky.) Under Const. § 93, and Ky., St. § 779a, it was intended to create the office of special railway policeman for the constitutional four-year term, and failure to fix the term as one not longer than four years did not render the statute invalid.—Cincinnati, N. O. & T. P. Ry. Co. v. Cundiff, 179 S. W. 615. &=54 (Tenn.) The clerk of a county board of road commissioners entitled to hold over under the Constitution, after the void election of his intended successor, was the de jure officer entitled to serve and to receive the salary of the office.Hogan v. Hamilton County, 179 S.W. 128. <>55 (Ky.) Under Const. § 93, and Ky. St. § 779a, succession in office of special railway police officer was not contemplated, and, when the term of officer expired the office ceased, and another appointee was not a successor.-CincinW" N. O. & T. P. Ry. Co. v. Cundiff, 179 S.
III. RIGHTS, POWERS, DUTIES, AND LIABILITIES.
Q: 100 (Ky.) While under Const. §§ 161, 235, compensation of an officer not previously fixed may be fixed after his election, it may not thereafter be changed.—Hurt v. Morgan County, 179 S. W. 255. <> 100 (Ky.) Salary of county clerk as clerk of fiscal court, fixed before election of clerk, cannot be reduced after his election, under Const. §§ 161, 235.—Fiscal Court of Mercer County v. Gibbs, 179 S. W. 409. 3> 101 (Tenn.) In a suit against a county for salary due the clerk of the board of road commissioners, plaintiff might show that the person who had been nominally elected as his successor, and who had given bond and taken the oath of office, was a defaulter, and hence only a de facto officer.—Hogan v. Hamilton County, 179 S. W.
128. OPEN AND CLOSE.
C>3 (Mo..App.) A father who leaves his home wrongfully is liable to his wife for necessaries furnished by her to the minor children during his absence, even though he be divorced from her in a foreign state, and the decree does not award the custody of the children to either.Assman v. Assman, 179 S. W. 957
Where a wife, after leaving her husband, who was without fault, and going to a foreign state, returned, and, without the husband's knowledge or consent, induced her minor son to accompany her to such foreign state, her husband was not liable for such son's support by her thereafter.
That a father, after the mother had secretly carried off their son to another state, sent on the boy’s clothes with a letter of good advice to him, did not show a consent to the removal. C> 17 (Tex.Cr.App.) Under Acts 33d Leg. c. 101, § 1, it was immaterial that the child charged to have been deserted was born after defendant had deserted his wife.—Spicer V. State, 179 S. W. 712.
PAROL EVIDENCE. s'iminal Law, @:447; Evidence, @:397
See Interpleader, @:23.
For parties to particular proceedings or instruments, see the various specific topics.
III. NEW PARTIES AND CHANGE OF PARTIES.
&=40 (Tex.Civ.App.) Interveners, under their allegation that they were jointly interested with plaintiff in lands and waters in controversy, held proper parties.—Moore V. Toyah Valley Irr. Co., 179 S. W. 550.