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rect the jury to return a Verdict Sustaining

the Will. Judgment reversed, and cause remanded

for a new trial consistent With this opinion.

(181 Ky. 132) CORNETT'S ADM'R. v. LOUISVILLE & N. R. CO.

(Court of Appeals of Kentucky. June 14, 1918.)

1. RAILROADS @:369(3)—PERSONAL INJURIES –DUTY TO MAINTAIN LOOKOUT. In action for the death of plaintiff's decedent struck by defendant's train while seated msleep unconscious on a track infrequently used by pedestrians within an incorporated town at 10 o’clock at night, failure of defendant’s engineer to keep a lookout did not make it error to direct a verdict for defendant, since the duty of keeping a lookout depends not on the fact that the injury occurred in an incorporated town but on whether the company's track was used by the public in such large numbers with the knowledge and acquiescence of the company that the presence of persons on the track should have been anticipated. 2. RAILROADS @:356(1)—PERSONAL INJURIES —“TRESPASSERS.” One who sits down upon a railroad track and goes to sleep or becomes unconscious is a “trespasser,” though at a point where persons are accustomed to cross the track. [Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Trespasser.] 3. RAILROADS @->400(14) – PERSONAL INJURIES-QUESTIONS OF FACT. In an action for the death of a person struck by a railroad train while asleep or unconscious on the track, evidence as to the engineer's failure to exercise ordinary care to avoid the accident after discovering decedent's peril held not sufficient to take the case to the jury.

Appeal from Circuit Court, Ketcher County.

Action by Gideon Cornett's administrator against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Hays & Newman and Wm. G. Dearing, all of Whitesburg, for appellant. Morgan & Harvie and D. I. Day, all of Whitesburg, Benjamin D. Warfield, of Louisville, and Saml. M. Wilson, of Lexington, for appellee.

CLAY, C. On July 17, 1915, Gideon Cornett was struck and killed by a train operated by the Louisville & Nashville Railroad Company. In this action by his administrator to recover damages for his death, the trial court at the conclusion of plaintiff's evidence gave a peremptory in favor of the defendant. Plaintiff appeals.

The accident occurred in Blackey, an incorporated town of 60 or 75 inhabitants. The toWn consists Of Several Small Stores On One side of the railroad and three Section houses, the depot, School, and a few Scattered residences on the other side. Just in front of the storehouses is a Sidewalk, and to the east of the Sidewalk is a Street. A few feet to the east Of the Street is the railroad

track. The accident occurred about 10 O'clock at night. While no one testified that Cornett was intoxicated, it is apparent from the testimony that he had been drinking both whisky and brandy. A few minutes before the accident, he sat down on defendant's track at a point about 220 feet north Of the depot. At the time of the accident his face was in his hands, and his elbows were resting on his knees. While in this position he was struck by an engine drawing 32 cars. Only the wheels of the poney truck passed over his body. Two witnesses Saw the engine When it Was about 75 feet away, and endeavored to attract the attention of the deceased to the approaching train by calling to him, 2nd also tried to reach him in time to prevent the accident. The train Was moving at about four miles an hour, and the engineer, Who Was expecting . a signal from the rear, would first look to the rear and then along the track in front Of his engine. According to his evidence and that of the other witnesses, there was a small dog near the deceased. When the engineer first Saw the Object On the track he thought it was a hog. He was then from 30 to 35 feet away. He immediately applied the Service brakes and brought the train tO a stop just as the two small wheels in front passed over the body of the deceased. [1, 2] It is first insisted for appellant that the peremptory should not have gone because the company was under the duty of maintain a lookout, and, had a proper lookout been maintained, the peril of deceased would have been discovered in time to avoid the injury. This COntention is based On the fact that Blackey is an incorporated town, and that there was evidence tending to show that people in large numbers frequently gather about the depot and pass to and fro across the trackS. In the more recent CaSeS We have ruled that the duty Of keeping a lookout depends, not on the fact that the place of injury was in an incorporated city or town, but on whether the company's track at the place of the accident was used by the public in such large numbers with the knowledge and acquiescence of the company that the presence of persons on the track should be anticipated. C. & O. Ry. Co. v. Dawson's Adm’r, 159 Ky. 296, 167 S. W. 125; C. & O. Ry. v. Warnock's Adm’r, 150 Ky. 75, 150 S. W. 29; Corder's Adm'r v. C., N. O. & T. P. Ry. Co., 155 Ky. 536, 159 S.W. 1144; C. & O. Ry. Co. v. Berry's Adm'r, 164 Ky. 280, 175 S. W. 340. Here there was no proof of the habitual use by the public in large numbers of defendant's track at the place Of the accident. The evidence ShOWed that the accident occurred at 10 o'clock at night, and that only occasionally would a person use the track at the place of the accident. It is therefore clear that defendant was under

no duty to maintain a lookout. We may further add that one who sits down upon a railroad track and goes to sleep or becomes unconscious is a trespasser, though at a point where persons are accustomed to cross the tracks in large numbers. Lyon's Adm'r v. I. C. R. R. Co., 59 S. W. 507, 22 Ky. Law Rep. 1032; L. & N. R. R. Co. v. Bay's Adm'r, 142 Ky. 407, 134 S. W. 450, 34 L. R. A. (N. S.) 678.

[3] The only question remaining for deciSion is whether the engineer exercised ordinary care to avoid injuring the deceased after his peril was discovered. It is insisted for appellant that the testimony of Fess Whitaker was sufficient to take the case to the jury, because he stated that the train could have been stopped instantly by applying the emergency brakes. This, however, is not the effect of his evidence. On being asked to tell the jury Within What distance the train could have been Stopped by applying the emergency brakes, he replied: “Instantly, just like they did. They stopped it instantly that night.” The engineer testified that the night was misty and the track slippery. He discovered the presence of deceased. On the track When about 30 Or 35 feet away. He immediately applied the service brakes, and could not have stopped the train SOOner if he had used the emergency brake. Fairly considered, there is no conflict between Whitaker's Statement and that of the engineer. Though Whitaker did say that the train could have been stopped instantly by applying the emergency brake, he qualified this Statement by adding: “Just like they did. They stopped it instantly that night.” In cases of this kind the law does not look to bare possibilities, but Only to what could have been done under the circumstances by the exercise of Ordinary care. Viewing the case in this light, We conclude that the evidence of the engineer's failure to exercise Ordinary care to avoid injuring the deceased after his peril Was discovered was not sufficient to take the case to the jury.

Judgment affirmed.

(181 Ky. 117) MANCHESTER NAT. BANK v. HERNDON.

(Court of Appeals of Kentucky. June 14, 1918.)

1. USURY 6->15–WHAT CONSTITUTES. Where the cashier of a bank received in his own name a note for $1,000, given as part consideration for a loan of $3,000 from the bank, for which a note was given to the bank, there was usury, where the cashier in fact held the note for the bank.

2. BANKS AND BANKING &=262—REPRESENTATION BY CASHIER-KNOWLEDGE-HOLDER IN DUE COURSE. Where a cashier of a state bank had knowledge that a note held by it was usurious, and was active in converting such bank into a na

tional bank of which he became vice president, his notice of the note's infirmity is notice to the national bank.

3. APPEAL AND ERROR &a=1009(3)—REVIEW OF EQUITY CASES—FINDINGS. Where the proof is contradictory and the mind is left in doubt upon a question of fact, the finding of a chancellor will not be disturbed On appeal.

Appeal from Circuit Court, Scott County. Action by the Manchester National Bank against Charles T. Herndon. Judgment for defendant, and plaintiff appeals. Affirmed.

Jas. F. Askew, of Georgetown, Robt. B. Franklin and Robt. C. Talbott, both of Lexington, and JOS. P. Sadler, of Richmond, Va., for appellant. Saml. M. Wilson, of Lexington, and Wm. P. De Saussure, of, Richmond, Va., for appellee.

MILLER, J. The appellant, the Manchester National Bank, is a banking corporation Created under the banking laws of the United States with its place of business in Richmond, Va. In June, 1913, the Manchester National Bank instituted this action in the Scott circuit court, against the appellee, Charles T. Herndon, upon five promissory notes aggregating, with interest, something over $8,000. The several notes which were made the basis of the action may be briefly described as follows: (1) A note dated February 7, 1913, for $3,414.20; (2) a note dated February 28, 1913, for $486.63; (3) a note dated March 7, 1913, for $1,307.17; (4) a note dated March 31, 1913, for $1,149.43; and (5) a note dated April 8, 1913, for $1,623.42. These five notes did not represent Original transactions, but in each instance the note WaS the culmination of a Series of renewals. An attachment was taken out and levied upon a farm of about 118 acres of land in Scott COunty, OWned by Herndon. In his answer Herndon alleged that the Second and fourth notes above described wholly represented usury exacted from him by the bank; and . that the accumulated interest contained in the first note was tainted with usury, and for that reason no interest at all can be collected thereOn under Section 2822 Of the Virginia Code Of 1887. Herndon further anSWered that the Manchester National Bank Was not a bona fide purchaser Of these notes for value, in due course, and without notice, but that it had acquired all of them under Such circumstanceS as charged it With notice of the usury therein.

In the meantime Herndon sold his farm; and, in order to make a title to the purchaser, he paid the notes sued on with interest, aggregating $8,436.07, under an agreed Order reciting that there was still a controversy betWeen Herndon and the bank as to the latter's right to have and retain (a) the sum of $623.03, which was the accrued interest upon the first note sued on, which was originally given for $3,000; (b) the sum of $514; be

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ing the Second note above described for $486.63, with the interest thereon; and (c) the further sum of $1,209.80, being the fourth note sued on, with interest, it having been Originally given for $1,149.42. It will thus be Seen that the third and fifth notes Sued. On have been eliminated from this action, and that the controversy now between the parties relates alone to the first, second, and fourth notes above described. Herndon contends that, When he executed the first note, which was originally given for $3,000, the bank required him to execute to it, as a bonus for the loan, another note for $1,000, which is now the fourth note sued on, which, with interest, amounts to $1,209.80, and, further, that since the note for $3,000 embraces accrued interest aggregating $623.03, the bank is not entitled to recover either $1,209.80 or $623.03, since they both represent uSury upon the Original note for $3,000. This claim, as above stated, is based upon the Virginia Code, which forfeits all interest where usury has been charged. [1] The appellant, the Manchester National Bank, is the successor of the Bank of Manchester, a state bank. The original note for $3,000 was given to the Bank of Manchester. Simultaneously with the execution of the note for $3,000 to the Bank of Manchester, and, according to Herndon's claim, as a part of the transaction, he executed the note for $1,000 (now $1,209.80) to Clarence Vaden, who was then the cashier of the Bank of Manchester. The appellant contends that the note for $1,000 represented a private transaction between Herndon and Waden, and that the Bank of Manchester had nothing to do with it; and that it was finally bought by the appellant for value and without notice of its infirmity. The circuit court Sustained the contention of Herndon as to each of these claims by directing a recovery thereof from the bank, which now appeals, complaining that the court was in error in allowing Herndon to recover any one of these claims. It is clear that Herndon's right to recover the first item of $623.03, which is the accrued interest on the note for $3,000, is dependent upon his right to recover the third item in controversy, Which represents the original alleged bonus note for $1,000, which, when finally paid, amounted to $1,209.80. If the note for $1,000 was given as a part consideration for the Original loan of $3,000, it clearly constituted usury which, under the Virginia Code, would exclude both the first and the last items now in COntroversy. A great deal of testimony has been taken upon the genesis of the $1,000 note, and several explanations have been Suggested in connection with this transaction. Without, however, going into a detailed Statement of these numerous transactionS, We think the finding of the chancellor, to the effect that the note for $1,000 was given as a part of the

to Herndon by the Bank of Manchester, is Supported by the proof, and that in that transaction Waden represented his bank. It is insisted, however, that when the plaintiff as a national bank Succeeded the Bank of Manchester and took Over its asSets for a consideration it became a bona fide purchaser for Value and Without notice of the usury contained therein. Vaden testified that he did not enter the note for $1,000 on the books of the Bank of Manchester, but put it in an envelope and kept it in his possession with other assets of the Bank of Manchester until some time in February, 1910, when he took it out of the envelope and turned it over with the other assets to the Manchester National Bank, and that the Manchester National Bank did not allow him anything for it, but placed it to the credit Of the Bank of Manchester. Clearly the note for $1,000 was never the property of Waden; it belonged to the Bank of Manchester, and was turned over, along with the Other assets Of that bank, to its Successor, the plaintiff in this action. [2] And it is further claimed that, although Waden was the Vice president of the appellant and was the active man in converting the Bank of Manchester into a national bank, his notice of the note’s infirmity cannot be imputed to the appellant bank because Waden was acting in his own behalf. This, however, erroneously assumes that Vaden was acting for himself. We think the circuit court was fully justified in its conclusion that Vaden represented both banks, and that he did not represent himself at any time in Connection with the note for $1,000; and, that being true, the rule that when a bank officer is personally interested in a note or Other matter pertaining to the bank’s affairs his knoWledge is not to be imputed to his bank because his interest is best served by concealing it has no application here. This question Was considered at length by this court in the late case of the Ohio Valley Banking & Trust Co. v. Citizens' National Bank, 173 Ky. 640, 191 S. W. 433, where it was pointed out that the exceptional rule, Which does not impute the Officer's knowledge to his corporation when the Officer is acting in his own interest does not apply when the same officer acts for both corporations. See, also, Citizens' Savings Bank V. Walden, 52 S. W. 953, 21 Ky. Law Rep. 739; Mutual Life Ins. Co. v. Chosen Friends Lodge, 93 S. W. 1044, 29 Ky. Law Rep. 394. Waden Was not Only the cashier of the Bank of Manchester, but he was, perhaps the most active of all concerned in the reorganization Of that bank as the Manchester National Bank, and was its vice president. Under these conditions Vaden's knowledge Will be imputed to appellant; and, thus having notice of the infirmity in the notes, it was not, Law, a holder in due course. Subsection 52 Of Section 2841A. Of the Code of Virginia (Va. Acts 1898, p. 896). The remaining item in dispute consists of a note Originally drawn. On December 8, 1910, for $428.50, which, with interest thereon, aggregates $514.69. This item of $428.50 was made up of two notes for $150 each; Some Of the accrued uSurious interest On the notes for $1,000 and $3,000, respectively, amounting to $100.75; interest on the two notes for $150 each amounting to $16.63; and an overdraft of $11.12. In giving judgment upon this item, the circuit court gave the appellant a credit for the overdraft of $11.12. That portion of this item is therefore not now in Controversy. The Chief controversy is over the two notes for $150 each. Appellant contends that it paid full Value for these notes, and without notice of any infirmity embraced therein; and, without attempting, in any way, to direct the court's attention to the particular proof relating to this item, in its brief it merely invites the court to examine the record, consisting of more than a thousand pages of proof, “to determine whether all or any of the items that went into the note for $428.50 were without consideration, as claimed by the defendant Herndon.” As to its contention that it acquired this note for Value, without notice of its infirmity, and in due Course, appellant Stands in the same position it occupied with respect to the other two items, and what has been. Said above upon those subjects applies equally here. The proof as to this item is SOmeWhat Confused, due probably to the appellant's method, after the merger of the two banks, of carrying Herndon's account partly on the books of the appellant, of which it sent him statements, and partly on the books of the Bank of Manchester, then in the appellant's possession, but of which it sent Herndon no StatementS. At first Herndon Seems to have been under the impression that these two notes for $150 each had been superseded by two subsequent notes aggregating about $2,500; but, after a more complete investigation Herndon became satisfied that he was mistaken in his first impression. He complained that he had never been credited with the proceeds of these two notes; and, the books of the bank showed that the first entry 203 S.W.–67

of these notes is of a renewal, in Which he iS credited with the proceeds of the new notes and charged with the payment of an old one. Waden testified that he was under the impression the notes were discounted and the cash paid over the counter for them; but Herndon, Mrs. Benet, and Bradley, the only persons who participated in this transaction upon the part of the defendant, all testified that they never, at any time, received cash over the counter of the bank, except by check. Furthermore When called upon to give his note for $428.50, in which these two notes of $150 each were consolidated with Other items, as above stated, Herndon protested, claiming there would have to be an adjustment of the matter upon a more thorough examination. At the time these notes Were executed Herndon was at college, having little ready money, but certain expectations from the estate of his father in Kentucky, and also from the estate of his grandmother. In order to get ready money from both of these sources, Bradley arranged with Vaden for Herndon to overdraw his account, giving Vaden from time to time a number of Small notes for the bank’s protection. It seems that these notes were not discounted, but were held by Waden for a short time until Herndon received Sufficient money from the sources above indicated, which was placed to his credit, thus covering his overdraft at the bank. Waden then returned the notes to Herndon, with the exception of these two for $150 each. Herndon remained at college until December, 1910, and received no statements from the bank until he called for them in April, 1911, when he got all of his monthly bank Statements at One time. Upon examining these statements, Herndon claimed he Was entitled to this credit. [3] While the proof upon this item is not entirely satisfactory upon either side, We do not feel justified in reversing the judgment. Where the proof is contradictory and the mind is left in doubt upon a question of fact, the finding of the chancellor will not be disturbed. Byassee v. Evans, 143 Ky. 415, 136 S. W. 857; Kirkpatrick, Ex’r, V. Rehkoph, 144 Ky. 134, 137 S. W. 862; Dotson v. Norman, 159 Ky. 786, 169 S. W. 527; Herzog v. Gipson, 170 Ky. 325, 185 S. W. 1119. Judgment affirmed.

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1. COMMERCE 6:527(8)—FEDERAL EMPLOYER'S LIABILITY ACT-NATURE OF SERVICE—“INTERSTATE COMMERCE.” A railway signal maintainer, who was furnished by his employer, an interstate carrier, a tricycle to make his rounds, was engaged in interstate commerce when returning to his home after leaving the last signal, within the meaning of the federal Employers' Liability Act (Act Cong. April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657–8665]). [Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.] 2. MASTER AND SERVANT 3:137(7)—INJURIES TO SERVANT—DUTIES OF MASTER. While it is true that a railway signal maintainer on the track with a tricycle must exercise ordinary care to learn of the approach of trains and keep out of their way, the railroad also owes him the duty to maintain a headlight on its engines in the nighttime. 3. NEGLIGENCE (3:101–EMPLOYER's LIABILITY ACT-CoNTRIBUTORY NEGLIGENCE—EFFECT. Under federal Employers' Liability Act, contributory negligence of a railroad employé on the tracks with a tricycle in not ascertaining from his time card or from the signal lights that a train was due did not defeat his cause of action for negligence of the railroad in not having a headlight on the engine in the nighttime, but only lessened the damage.

4. MASTER AND SERVANT 3:226(1)—ASSUMPTION OF RISK. A railway signal maintainer on the track with a tricycle does not assume the risk of the master's negligence in not furnishing a headlight for its engines, unless he knows of the negligent act, because the danger itself was created and concealed by the negligent act.

Appeal from Circuit Court, Rockcastle County. Action by Frank Mullins’ administratrix against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and de

fendant appeals. Affirmed.

Ashby Warren, of Louisville, John W. BrOWn and C. C. Williams, both of Mt. Vernon, and Benjamin D. Warfield, of Louisville, for appellant. L. L. Walker, of Lancaster, and Bethurum & Lewis, of Mt. Vernon, for appellee.

CLAY, C. Frank Mullins, an employé of the Louisville & Nashville Railroad Company, was struck by one of its trains and killed. He Was survived by his widow and three infant children. His widow qualified as his administratrix, and brought this suit under the federal Employers' Liability Act to recover damages for his death. The jury returned a verdict in favor of plaintiff for $5,000, and apportioned $2,000 to the widow and $1,000 to each of the infant children. Judgment was entered accordingly, and the railroad Company appeals.

On the division Where the accident occur

red the railroad company's line is double tracked and the block signal system is maintained. Deceased, who was 39 years of age, had been in the company's employ for 13 months, was a signal maintainer, and it was his duty to look after, repair, and maintain the electric signals on that portion of the company's road extending from Berea in Madison county to Sinks in Rockcastle County, a distance of 20 miles. From Berea to Snider, where deceased lived, is about 5 miles, and from Snider to Sinks about 15 miles. Mullins tunnel, Where the deceased was killed, is about 1 mile north of Sinks and 14 miles from Snider. On the morning of the day of the accident, deceased left his home at Snider about 9 O'clock to attend to his duties. For this purpose he was furnished a tricycle. The last Signal On the Southern end of his section was about 100 yards below Mullins Station. A few minutes before he was killed, he was seen in a telephone booth immediately south of the tunnel. When he reached the mouth of the tunnel On his tricycle, he Was Struck by the COmpany's fast passenger train from the south, and his body was found in the tunnel about 60 feet from the mouth. His tools and portions of his tricycle were scattered about the tunnel. The accident occurred at 4:28 p. m. December 17, 1915, and it was then dark and rainy. The train was on time. Though the train operatives testified to the contrary, there was evidence to the effect that the headlight on the engine was not burning at the time of the accident. | Besides Other instructions On the measure of damages, contributory negligence, assumed risk, etc., the trial court instructed the jury, in substance, that it was the duty of the railroad company to keep and maintain a headlight, properly lighted, upon the front of its engine when running in the dark, and if they believed from the evidence that the deceased, Frank Mullins, at the time he was struck and killed by defendant's train, was upon defendant's track, in the usual course of his employment, and that it was dark and the defendant's agents and employés in charge of the engine negligently failed to have the headlight on the front of the engine burning in its uSual and Customary manner, and that by reason thereof plaintiff was struck and killed by said train, then they should find for plaintiff. [1] The point is made that the case is not governed by the federal Employers' Liability Act, because the petition alleges that the decedent was en route to his home at the time of the accident, and there Was no evidence tending to show that he was authorized to use the tricycle for that purpose. We are not, however, disposed to take such a narrow view of the question. The tricycle was furnished decedent for the purpose of perform

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