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offered in evidence, and therefore the plaintiff failed to prove that the city had authorized Gnau to use the street.

Under section 2775 of the Kentucky Statutes, the Courts are required to take judicial notice of the ordinances of the city of Louisville, and this statute dispenses with the neCeSSity Of introducing these ordinances in evidence. It was no more necessary to introduce the ordinance of the city relied on than it. Would have been to introduce a section of the Kentucky Statutes under which an action Was brought. Weiss v. Commissioners of Sewerage, 152 Ky. 552, 153 S. W. 967.

In the instructions the court, after reciting that Gnau had obtained permission to make improvements upon his property, and that this gave him the right to use a part of Magnolia avenue for the purpose of placing his building material therein, further instructed the jury that:

It was the duty of Gnau and House to “so place and guard said lime bed as to render the street reasonably safe for persons lawfully using same; and if you believe from the evidence that said lime bed was attractive or inviting to children, and it was dangerous for them to go upon it, and that the said Gnau and House knew, or by the exercise of ordinary care could have known, that the said lime bed was attractive or inviting to children, and that it was dangerous for them to go upon it, if it was so attractive or inviting and dangerous for them to go upon it, then it was their duty to exercise ordinary care to prevent injury to children using the street by adopting and enforcing such precautions as were reasonably sufficient for that purpose; and if you shall believe from the evidence that Magnolia street at the time and place mentioned was not reasonably safe for use by the public by reason of the lime bed referred to in the evidence, and if you shall further believe from the evidence that Gnau and House negligently failed to adopt and use such precautions in guarding said lime bed as were reasonably necessary to protect children using said street from injury, and that by reason of such failure upon their part, or of either of them, or any of their employés, if they or any of them did so fail, the plaintiff received the injuries of which he complains, the law is for the plaintiff as against the defendants Gnau and House, and the jury should so find.”

“But, unless you shall so believe from the evidence, the law is for the defendants Gnau and House, and the jury should so find.”

In the Second instruction the jury Were told that:

“It was the duty of the defendant city of Louisville to keep its streets and highways, including Magnolia avenue, at the place indicated in the evidence, in a reasonably safe condition for use by persons lawfully using the same, and to exercise ordinary care to cause the precautions referred to in the first instruction to be taken by the defendants Gnau and House while the lime bed referred to in the evidence remained in the street for the construction of said building under said permit; and if the jury shall believe from the evidence that Magnolia street, at the time and place mentioned, was not reasonably safe for use by the public by reason of the lime bed referred to in the evidence, and if the jury shall further believe from the evidence that the defendant the city of Louisville failed to exercise ordinary care to cause the precautions referred to in the first instruction to be taken by Gnau and House, and that by reason of its negligence in that regard, if it was negli

gent, the plaintiff received the injuries of which he complains, then the law is for the plaintiff as against the city of Louisville, as well as Gnau and House, and the jury should so find.” “But, unless you shall so believe from the evidence, the law is for the defendant the city of Louisville, and the jury should so find.” These instructions are criticized both by the city and Gnau, but we think they fairly Submitted the law of the case as to both of these defendants. It will be noticed that the first instruction told the jury that it was the duty of Gnau and House to so protect the lime bed as to render the street reasonably safe for persons lawfully using the Same, and that, if the lime bed Was attractive Or inviting to children, as well as dangerous for them to go about, and Gnau and House knew, or by the exercise of ordinary care could have known, this fact, it was their duty to exercise ordinary care to adopt such means of protecting the bed as were reasonably sufficient to guard it against use by children, and if they failed to adopt such precautions as were reasonably sufficient, they Were guilty of negligence. [3-5] The second instruction charged the city with the duty of keeping the street in reasonably safe condition, and With the further duty of exercising the care with respect to children that was imposed upon Gnau and House, and that if it failed to exercise the care indicated, it was guilty of negligence. The city was under a duty to exercise ordinary care to keep its Streets in reasonably safe condition for public travel, and this duty imposed upon it the necessity of keeping them in Such condition, not only for adults, but for all others who had the right to use them. Children have as much right to use the StreetS aS grOWn perSons, and the city has not performed its duty when it maintains its streets in reasonably safe condition for the use of adults, but leaves them in an unsafe condition for use by children. If it requires a higher degree of care to keep the streets safe for use by children than it does to keep them safe for use by adults, then the city must exercise this degree of care, as the ordinary care exacted of the city in the maintenance of its Streets means Ordinary care in respect to all who have the right to use the streets. It cannot excuse itself from liability, as attempted in this case, by saying that this lime bed Was in a Well-lighted Street and so conspicuous as that no adult, in the exercise of reasonable care, would walk or go into it, and so, having exercised this measure of care, it was not required to keep the place reasonably safe for children. The city must take notice of the use of its streets by children, and if it places, or permits to be placed, in the streets, an attractive nuisance that is dangerous to children of immature years and thoughtless habits, it will be answerable for any injury they sustain in consequence of its failure to exercise ordinary care to keep its streets in reasonably safe condition for use by children. The measure of care required of a city and its duty in respect to its Streets extends alike to all classes using the streets, the old and young, the Strong and the Weak, and it OWeS to each of them precisely the same degree of care, although this measure of care may impose upOn it the necessity of taking greater precautions as to One class than Would be required as to another class. This does not mean that under any circumstances the city is obliged to do more than exercise Ordinary Care to keep its Streets in reasonably Safe condition for use. It Only means that it must take notice Of the different Classes Of people that use its streets, and must maintain them in order for use by these several classes, although this may demand more care than would be necessary if only one class of people used the Streets. [6] The city granted permission to Gnau to place this obstruction Or attractive nuisance to children in the Street, and therefore it OccupieS precisely the Same attitude as if it had placed this obstruction in the street. The city could not, by granting this permisSion, relieve itself of the duty it owed to keep its streets in reasonably safe condition for use. The duty of keeping its streets in condition for use is an absolute duty that the city cannot delegate to others and thereby excuse itself. When it grants permission to another party to place an obstruction in its Streets, it must take notice of the nature and character of obstruction So placed and the manner in Which it is maintained, and see to it that it does not make the street unsafe for use by the public. If this were not so, the city could, by granting permits to occupy its Streets, relieve itself entirely of the duty it owes the public; and we do not know of any authority that Would countenance a doctrine like this. [7] In the case we have the property owner, Gnau, Secured from the city the right to place this lime bed in the street, but this did not have the effect of excusing the city from the care imposed upon it, or have the effect of excusing Gnau from the duty he Owed not to leave the street in such condition as to be unsafe for the uses to which it was set apart and dedicated. If Gnau, withOut obtaining permission from the city had placed a dangerous obstruction in the street, there could be, of course, no question about his liability in damages to any person injured by the obstruction, if it developed that it rendered the Street unsafe for public travel, and in such a state of case the city would be jointly and equally liable with Gnau if it had notice of the obstruction in time to take Such measures as might be necessary to remove or protect it. Now, this duty and corresponding liability of Gnau was not diminished by the fact that he obtained permission to place the obstruction in the street. The city did not give him the right to un

it unsafe for public use, and When the city granted this permission to Gnau it undertook, as between it and persons using the Street, that Gnau Would not place any dangerous obstructions in the public Way, and Gnau undertook that he would not do anything that Would make the Street unsafe for public use. [8] If, then, the use that Gnau made of the Street made it unsafe for public use, both the city and Gnau became jointly and severally liable for injuries suffered in consequence thereof. Their measure of duty and liability was precisely the Same. [9] It is scarcely necessary to add that Gnau was responsible, not only to the city, but to the public, for any negligence On the part of Contractors employed by him to do the Work. He could not excuse himself from either his duty Or his liability by employing Other perSOns to do what he had been granted permission by the city to do. The City gave permission to Gnau to place material in the street, and if he, under that grant, permitted or authorized others to do what he had the right to do, he, Of course, aSSumed responsibility for their conduct, although they might also be liable, in connection with Gnau and the City, to any perSon injured by reaSOn Of their negligence: The principles we have set forth as governing in this case are fully Supported by the following authorities: Bransom's Adm'r V. Labrot, 81 Ky. 638, 50 Am. Rep. 193; U. S. Natural Gas Co. v. Hicks, 134 Ky. 12, 119 S. W. 166, 23 L. R. A. (N. S.). 249, 135 Am. St. Rep. 407; Sydnor v. Arnold, 122 Ky. 557, 92 S. W. 289, 28 Ky. Law Rep. 1250; Louisville R. CO. V. ESSelman, 93 S. W. 50, 29 Ky. Law Rep. 333; Snare & Triest Co. v. Friedman, 169 Fed. 1, 94 C. C. A. 369, 40 L. R. A. (N. S.) 367. There is Some complaint made of the action of the trial court with respect to argument Of Counsel, but we find no objection to the COurse pursued by the trial Court. [10, 11] It is next contended on the part of both appellants that the Verdict is excessive, We do not think SO. This little boy has been made a Cripple for life. Aside from the other burns upon his body, his left hand and arm are not only dreadfully disfigured, but their use is totally destroyed. Just what ought to be or should be reasonable compensation for an injury like this it is not possible to determine With mathematical accuracy, or, indeed, with even reasonable accuracy. No rule has ever been or ever can be laid down by which the damages allowable in personal injury cases may be Carefully measured or Computed. The best that can be done under these Circumstances is to leave What is fair and right to the judgment and discretion of the 12 men Who compose the jury, and their judgment and discretion We are not authorized to, and will not, interfere with, unless it appearS that their aSSeSSment WaS influencable as to appear at first blush entirely disproportionate to the injuries Sustained. Neither of these conditions appear in this case, and therefore we will not disturb the judgment On the ground that it is exceSSive. L. & N. R. R. Co. v. Mitchell, 87 Ky. 327, 8 S. W. 706, 10 Ky. Law Rep. 211; Louisville R. Co. v. Bryant, 142 Ky. 163, 134 S. W. 182; L. & N. R. R. Co. v. Pedigo, 129 Ky. 664, 113 S. W. 116. [12] Another ground urged for reversal is that the court erred in Setting aside the first verdict for $1,000. The Code provides, in Section 341, that: “A new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation. * * *” Under this section the trial court is not authorized to grant a new trial in personal injury cases on the sole ground that the recovery is inadequate, independent of a recovery for Special damages, if Such damageS are claimed. But if the inadequacy of the Verdict is attributable to errors committed during the trial of the case, or if a new trial should be granted for other errors than the Smallness of the damages, the mere Circumstance that the damages are inadequate, Or that this may be One of the CauSeS for granting a new trial, does not interfere with the right of the court to set aside the verdict. Pendley V. I. C. Railroad, 92 S. W. 1, 28 Ky. Law Rep. 1324; Gaines V. Madisonville, Hartford & Eastern R. R. Co., 143 Ky. 250, 136 S. W. 230. [13] Of course, if it appeared that the trial court set aside the first Verdict Solely On account of the smallness of damages, we would have a case coming directly Within the proVision of the Code denying to the trial Court the right to set aside the Verdict on this ground. But where grounds other than the inadequacy of the verdict are relied on to obtain a new trial, and these grounds, or Some of them, are sufficient to justify the trial court in directing a new trial, We will not assume that the new trial was granted solely because the recovery was inadequate, When the record, as in this case, does not show the reasons that influenced the trial court in ordering a new trial. NorVell V. Paducah Box & Basket Co., 157 Ky. 703, 163 S. W. 1106; Greenberg V. Hyman & Oppenheim, 159 Ky. 618, 167 S. W. 914; McLemore V. Evansville & Bowling Green Packet Co., 160 Ky. 566, 169 S.W. 1006. [14] It has been frequently announced by this court that the discretion of the trial court in granting a new trial will not be interfered with unless it appears to have been abused, or it appears that in granting it the court transcended its authority under the Code. Wilhelm V. Louisville Ry. Co., 147 Ky. 196, 143 S. W. 1013; Conley v. Central Kentucky Traction Co., 152 Ky. 764, 154 S. W. 41. In this case it appears that the plain

tiff asked for a new trial on other grounds than the Smallness of the verdict, and we think the court, in the exercise of a sound discretion, may have granted the new trial On other grounds than the smallness of the Verdict.

[15] Another reason assigned for reversal is that there was no evidence to show that the little boy had been attracted to the sand pile, or that it was What may be called an attractive nuisance. There was evidence that other children had been playing in this Sand pile for Several days, and no direct evidence Was needed to Show that the little boy who was injured had been attracted to the sand pile or that it was what may be Called an attractive nuisance. That a sand pile is attractive to children and a place where they delight to play is a matter of Such common knowledge in the everyday affairs of life that courts and juries may take notice of it without direct evidence On the subject. 4 Wigmore on Evidence, § 2570; Craig V. Durrett, 1 J. J. Marsh. 365, 19 Am. Dec. 103; Baum v. Winston, 3 Metc. 127. Every person who ever saw a pile of Sand in an accessible place where young children play knows its attractiveness for them. Everybody further knows that an ordinary Sand pile is perfectly Safe for children to play in at all times and under all circumstances, and when an ordinary sand pile, located in a place accessible to children, is Converted into a place of great danger, as, for example, when a bed of slaking lime is put in the middle of it, the person who converts this place of perfect safety into a place of extreme danger needs to be careful how he protects it.

The judgment is affirmed.

MASON & HURST CO. et al. V. FELTNER. (Court of Appeals of Kentucky. Oct. 19, 1915.)

1. PLEADING 3:403—DEFECTIVE PETITIONCURE BY ANSWER. Whether or not the petition in a servant’s action for injury was defective in not negativing his contributory negligence, it was cured by answers affirmatively alleging that plaintiff was guilty of contributory negligence, which was denied by reply, so that issue was joined, and the case submitted thereon. [Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 1343–1347; Dec. Dig. 3:403.]

2. MASTER AND SERVANT ©->264—PLEADINGS AND ISSUES-INDEPENDENT CONTRACTOR.

In a servant's action for injury wherein the petition alleged that it occurred on the defendant railroad's property, that the railroad had employed a contractor, and that both had employed plaintiff to work there, and where the railroad and the contractor admitted that the contractor was employed by the railroad to move all the stone and other material out of the tunnel by the yard, according to specifications, and the reply to the answer of the railroad controverted its allegations as to the contractor's doing the work by the yard or according to specifications, but did not join issue On the Contractor's answer in such regard, the issue raised was whether the work was done by an independent contractor.

G->For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

[Ed. Note—For other cases, see Master and £nt Cent. Dig. $$ 861-876; Dec. Dig. Q:

3. MASTER AND SERVANT ©:265–ACTION FOR INJURY-BURDEN oR PRooF—INDEPENDENT CoNTRACTOR. Under such pleadings, the burden was on the railroad to establish the fact that the work was done by an independent contractor. [Ed. Note.—For other cases, see Master & Servant, Cent Dig. §§ 877–908, 955; Dec. Dig. Q:265.]

4. MASTER AND SERVANT ©->101, 102, 265– BOILER EXPLOSION—PRESUMPTION—NEGLIGENCE. A master operating a boiler is required to exercise ordinary care to prevent injury, and an explosion does not give rise to a presumption of negligence. [Ed. Note.—For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178–184, 192, 877–908, 955; Dec. Dig. 8:2101, 102,265.]

5. APPEAL AND ERROR & 172 – QUESTIONS

NOT RAISED BELOW.

In a servant's action for injury from a boil

er explosion, where the petition only showed that he was under 21 years of age, and only charged negligence with respect to defendant’s operation of the boiler, his recovery was limited to the negligence alleged, and he could not for the first time on appeal raise the issue that he was only 13 years of age, and was employed in violation of Ky. St. § 331a, subsec. 9, making it unlawful to employ a child under 16 in work dangerous to life, and under which the doctrines of assumed risk, fellow servant, and contributory negligence do not apply.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1070–1078; Dec. Dig. 6:172.]

Appeal from Circuit Court, Perry County.

Action by Bert Feltner, by his next friend, against the MaSOn & Hurst Company and another. Judgment for plaintiff, and defendants appeal. ReVersed and remanded for new trial.

Wootton & Morgan, of Hazard, Samuel M. Wilson, of Lexington, and Benjamin D. Warfield and Chas. H. Moorman, both of LouisVille, for appellants. F. J. EverSole, and Hogg & Johnson, all of Hazard, for appellee.

NUNN, J. Appellee, an infant under 21 years of age, brought this action by his father, aS next friend, against the Mason & Hurst Company and the Lexington & Eastern RailWay Company to recover damages for injuries received in a boiler explosion, and obtained a Verdict and judgment against them jointly for $2,500. There was proof that he was badly Scalded about the head and face, and One eye and One ear permanently injured.

[1] The appellants seek a reversal upon Several grounds. The first is that the petition does not negative contributory negligence. The appellants, by separate answers, affirmatively set up that the plaintiff was guilty Of Contributory negligence, and but for Which he Would not have been injured.

Whether or not the petition was defective in this regard, the answers cured it. This Was denied by reply, so that issue was joined and the case submitted upon these propositions. [2] The appellant Lexington & Eastern Railway Company contends that the court erred in failing to direct the jury peremptorily to find for it, because, as it says, there is no proof to sustain the allegation that the plaintiff was employed by the railroad. The injury occurred While he was employed and at work on its property, where it was having a tunnel driven. The petition charged that the railroad had “employed” the Mason & Hurst Company to do this work, and that both companies had “employed” the boy to Work there. Appellants find Separate anSWerS, and each admits “that Mason & Hurst Company were employed to and did build for the railroad company the tunnel in question, and that the Mason & Hurst Company” contracted with it (the railroad) to move all the stone and other material Out Of the tunnel at SO much per cubic yard, and that they were to do said work according to plans and specifications furnished by it. A reply was filed to the anSWer Of the railroad Which Controverted the allegations with reference to Mason & Hurst Company doing the Work under contract Or by the yard, or according to plans and Specifications. It is immaterial that issue was not joined on the Mason & Hurst anSWer in this regard. The issue raised by the pleadings was whether the work was done by an independent contractor. [3] Under the pleadings, the burden Was upon the railroad to establish that fact, because its answer affirmed it. Although there is an absence of proof on the question, Still it can only operate to the disadvantage of the railroad and not to the appellee. A more Serious question is Whether there was evidence to sustain the charge of negligence in the Operation of the boiler which exploded. The boiler Was located about 175 yards from the mouth Of the tunnel, and steam was piped from it to the tunnel to operate drills. The plaintiff Was employed as a water boy, but it was his duty also to run errands. At the time in question there was a failure of steam Supply at the drills in the tunnel, and the drill men sent the boy to the boiler to notify the fireman of the fact and request him to turn on the steam. When he got nearly to the boiler and had just spoken to the fireman the explosion Occurred. Nothing more is known or told about the circumstance, except that the boy Saw two Austrians packing Water for the boiler. One of them was near by, and the Other was going down the river bank With two bucketS. Several days later the Mason & Hurst Company sent a man named Gambrel to repair the boiler. Describing the boiler as he found it, he says:

“The stay bolts had given way that holds the crown sheet up to the outside of the boiler. The tensile of the boiler was weak.” Without a ShoW of further facts upon which to base an opinion he was asked to Venture One upon the “cause of the boltS coming loose and the crown sheet falling.” He anSWered: “The water gets off the top of the crown sheet and you’ve got a high pressure, and that causes the tensile strength of the boiler to give way, and that pulls out the stay bolts that bolts # up. Q. That is turning the Water on ? A. eS. Manifestly if the water is permitted to get too low in any boiler, and cold water is turned in upon high Steam pressure, an explosion will result, but the witness Gambrel was not there at the time of the explosion, and does not intimate that Such conditions existed in this case. There is no proof about the stage of water in the boiler, or the amount of steam pressure, or of any attempt to turn Water into the boiler. The petition charges that: “The injuries were caused by the negligence and carelessness of defendants in the operation of said boiler and by the negligence and carelessness of the servants of defendants who operated and managed said boiler at the time.” We have made reference to the only evidence on the proposition. It does not ShoW that the appellants or their Servants Were negligent Or Careless in the Operation or management of the boiler. The only thing established is the fact of the explosion and the Condition of the Stay bolts and crown Sheet afterwards—a condition common to most boiler explosions, negligent or not. [4] The case resolves itself down to whether a boiler explosion gives rise to the preSumption of negligence; that is, Whether the doctrine of res ipsa loquitur applies. This Was answered in the negative in the recent case of Branham's Adm'r v. Buckley, 158 Ky. 848, 166 S. W. 618, where in a case like this the duty Of the defendants was the exercise of ordinary care to prevent injury: “The fact of an explosion of a steam boiler creates no presumption of negligence.” In addition to the cases there cited, Louisville Gas Co. v. Kaufman, Straus & Co., 105 Ky. 131, 48 S. W. 434, 20 Ky. Law Rep. 1069, is to the same effect. A leading case On the subject is Huff V. Austin, 46 Ohio St. 386, 21 N. E. 864, 15 Am. St. Rep. 613. We quote:

“Instances are not infrequent of steam boiler explosions where there has been no want of ordinary care and skill in their management, and even where there has been the greatest care; and explosions of steam boilers have happened of so mysterious a character that they could not, with confidence, be assigned to any known cause.”

[5] In reply to this appellee Calls attention to the fact that the evidence shows the boy was only 13 years old at the time of his injury, and that he Was employed in Violation of Section 331a, subsec. 9, Kentucky

Statutes. By that section it is made unlawful to employ a child under 16 years of age to Work in any occupation dangerous to life, limb, Or health. In Such cases the doctrine Of assumed risk, fellow servant, and contributory negligence have no application. Had the petition been framed and the case practiced on that theory, the sole question for submisSion to the jury, under the proof as we now have it, would have been whether the occupation of the boy at the time was dangerous to life or limb. L., H. & St. L. Ry. Co. v. Lyons, 155 Ky. 396, 159 S.W. 971, 48 L. R. A. (N.S.) 667; Stearns Coal & Lumber Co. v. Tuggle, by, etc., 156 Ky. 714, 161 S. W. 1112. The appellee's difficulty is that he is seeking to raise these issues for the first time On appeal. From the petition it is merely made to appear that the boy is under 21 years of age, and even that statement is made to justify the Suit by his next friend. The Only negligence charged had reference to the operation and management of the boiler. Appellee for recovery is confined to the negligence alleged. As the record stands on this appeal, we are compelled to reverse the judgment, because there is no evidence Of the negligence alleged. The case is reversed and remanded for a new trial COnSistent hereWith.

DWIGGINS WIRE FENCE CO. v. PATTER-
SON.
(Court of Appeals of Kentucky. Oct. 19, 1915.)

1. CONSTITUTIONAL LAW (3:48 – CONSTRUCTION IN FAVOR OF CONSTITUTIONALITY. The courts will not declare an act unconstitutional unless it is plainly so, and, in case of doubt, will resolve the doubt in favor of its validity. [Ed. Note.—For other cases al Law, Cent. Dig. , § 46; Statutes, Cent. Dig. $ 56.]

2. CONSTITUTIONAL LAW (3:287—POLICE POWER—SCOPE-FRAUD. The state has power to regulate the acquisition, enjoyment, and disposition of property, and to prevent fraud and protect its citizens against the consequences of fraud. Police regulations are not rendered invalid because they may incidentally affect the exercise of some right guaranteed by the Constitution, and it is only where they are unreasonable or constitute an unjustifiable impairment or abridgment of the right that the courts will declare them invalid. [Ed. Note—For other cases, see Constitution# £aw. Cent. Dig. §§ 156–171; Dec. Dig. 8:

3. CONSTITUTIONAL LAW (3:287—FRAUDULENT CONVEYANCES @->3—DEPRIVATION OF PROPERTY—BULK SALES ACT. The Sales in Bulk Act (Laws 1904, c. 22) §§ 1–4 (Ky. St. 1915, § 2651a), enacted to prevent fraudulent sales, and providing by section 1 that sales by a merchant of any part of his stock other than in the ordinary course of trade, or a sale of his entire stock in bulk, shall be fraudulent and void as against the seller's creditors unless the purchaser shall inquire of the seller as to the names and residences of each of the seller's creditors in the

see Constitutionec. Dig. Q:48;

C: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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