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ion as lays down a contrary rule is now Withdrawn.  The court is further of the opinion that in a suit to have property, alleged to have been Omitted, assessed, the burden is on the commonwealth to show that there was omitted, from the report made by the corporation, property that should have been reported, and the nature and value of such property, and when it does this, then the burden is on the corporation to Show, by clear and convincing evidence, that, notwithstanding the omission, the board in making its assessment considered and assessed the Value of the omitted property on information gathered from sources outside of the report. Hillman Land & Iron Co. v. Comm., 148 Ky. 331, 146 S. W. 776, L. R. A. 1915C, 929; Kentucky Heating Co. v. Comm., 174 Ky. 142, 192 S. W. 4.  If the court in which the proceeding is instituted finds that the property sought to be assessed was omitted, then the court should determine, from a consideration of the report made by the corporation to the assessing board and the assessment made by the board and Such other pertinent and competent evidence as may be offered, in what amount, if any, the assessment made by the board Should be increased by reason of the value of the property found to be omitted, and should certify the increase So found in exceSS of the Valuation fixed by the board, in the manner provided in the Statutes. For the reasons stated, the petition for rehearing is sustained, and the opinion modified as indicated.
(180 Ky. 724) DUREIAM W. ELLIOTT et al.
(Court of Appeals of Kentucky. May 28, 1918.)
1. PLEADING 6:2312 – EXHIBITS – CONFLICT WITH ALLEGATIONS. In a suit on notes, the petition, filed September 15, 1916, making part of itself the notes, none of which were due until January 1, 1917, did not state a cause of action, since if an exhibit referred to and filed contradicts an allegation of the pleading, the exhibit will control the allegation, unless it be expressly impeached or explained by the facts stated in the pleading. 2. COSTS (3:50—FAILURE TO DEMUR. By reason of defendant's failure to demur to the defective petition, he is liable for all COStS. 3. PRINCIPAL AND SURETY 6->185—RIGHT OF SURETY – INDEMNITY - PRINCIPAL AND TRANSFEREE. Where the purchaser of land executed two purchase-money bonds, with sureties, and transferred the land to one who agreed to satisfy the bonds, but who failed to pay one of them, so that the sureties were required to pay it, the purchaser and his transferee were liable to the sureties for the amount they paid in Satisfaction of the bond. 4. JUDICIAL SALEs @:1—SALE TO DISCHARGE LIEN. Where a sum was a prior lien on the land involved, it was not error to order a sale of enough of the land to pay the item before notes secured by an inferior lien became due, under
Civ. Code Prac. § 694, as to sale of realty for debt, as amended by acts 1916, c. 105. 5. JUDICIAL SALES @:39—INADEQUATE PRICE, Judicial sale of land worth $1,500 for $916 Was at a grossly inadequate price. 6. JUDICIAL SALEs &=40 – SETTING ASIDE – INADEQUACY OF PRICE. Though inadequacy of price, alone is not a sufficient ground to set aside judicial sale, when the price paid is greatly disproportionate to the actual value, only slight additional circumstances are required to make it the chancellor’s duty to set aside the sale. 7. JUDICIAL SALES @:40 – INADEQUACY OF PRICE-SETTING ASIDE. Where judicial Sale of Only a Sufficiency of the land to raise the amount of a prior lien, about half the advertised sum of $897, was authorized, but the land, worth $1,500, was sold as a Whole to plaintiffs for the inadequate price of $916, merely sufficient to satisfy the amount of plaintiffs' lien debts against the land, to the exclusion of an inferior lien held by a defendant, and it was certain the land would bring $1,500 on another sale, and that not only plaintiffs but defendant, would realize the full amount of their indebtednesses, with something over, the chancellor should have set aside the sale, in view of the circumstances and the inadequacy of the price. Appeal from Circuit Court, Washington County. Action by D. B. Elliott and another against C. O. Durham and J. A. Young, wherein the first defendant's land was sold in Satisfaction of plaintiffs' judgment against him, and defendant filed exceptions to the report Of Sale, which was confirmed, and, from the judgment of confirmation and the original judgment against him, defendant appeals. Judgment confirming sale set aside, and that part of the Original judgment against defendant based on notes not due reversed, and CauSe remanded.
W. C. McChord, of Springfield, for appellant. W. F. Grigsby and J. H. McChord, both of Springfield, and T. B. McGregor, of Frankfort, for appellees.
CLARKE, J. In the suit of People's Deposit Bank against him, J. A. Young became the purchaser of 70 acres of land, and in payment therefor executed two purchase-money bonds for $375 each, due in 6 and 12 months, with appellees, D. B. and W. B. Elliott, as sureties thereon. Three days after the first of these bonds became due, Young, by written assignment, transferred his purchase of the land to appellant, C. O. Durham, in consideration Of the latter'S agreement to Satisfy the purchase-money bonds “and Other valuable considerations,” which assignment was filed in that action and an Order entered, directing the court's commissioner to convey the land to Durham when he had paid the purchase-money bonds. Durham paid the first bond, then due, and took possession of . the land, but he failed to pay the second bond due April 25, 1916, and appellees, being sureties thereon, Were required to pay Same, which they did September 9, 1916. As a part Of the consideration of the assignment Of the
&=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
purchase of the land to Durham, he executed three notes to Young for $202.86% each, due January 1, 1917, January 1, 1918, and January 1, 1919, respectively. The first two of "these notes Young assigned to D. B. Elliott. In each of the notes is a provision that all Shall become due and payable upon the failure to pay any one when due. On September 15, 1916, appellees instituted this action against Durham, in which the above facts are recited, and the two notes owned by D. B. Elliott are filed and made part of the petition, and it is further alleged all of the notes executed by Durham were, by his agreement with Young, to become due and payable at once, if he failed or refused “to pay any of the unpaid purchase money” when due. Judgment was asked against Durham for the $405.80, with interest, which plaintiffs were paid as sureties in satisfaction of purchase-money bond in the bank case, and which defendant had agreed but failed to pay, for the amount of the notes assigned by Young to D. B. Elliott for $202.86 each and interest, and that the $405.80 be adjudged a first lien and the total of the two notes a Second lien On the 70 acres of land, and that it be sold in satisfaction of the judgment. J. A. Young was made a defendant, and required to set up his lien note, the third of the series executed to him by Durham, and this he did by answer and cross-petition filed November 3, 1916, in open court. Upon the Same day the defendant, Durham, having been summoned and having failed to answer the petition, a default judgment was entered against him as prayed in the petition. The note of cross-petitioner was adjudged a lien upon the land of equal rank with the notes owned by plaintiffs but inferior to their lien for the $405.80 they paid in Satisfaction of the purchase-money bond in the bank case, and the land was ordered sold in Satisfaction of plaintiffs' judgment. In pursuance thereof the master, as directed, after appraisement at $1,300, sold the land as a whole on November 27, 1916, to the plaintiffs for $916. Defendant filed exceptions to the report of sale, upon the trial of whieh the sale was confirmed; and he has appealed from that judgment and the One entered against him. On NOWember 3, 1916.  1. The only ground relied upon for a reversal of the judgment of November 3, 1916, and in fact the only ground upon which he could have relied, as that was a default judgment, is that the petition did not state a cause of action, in that the tWO notes Of $202.86 each are shown by the petition not to have been due when the petition was filed and the judgment Was entered. In this he is correct, because, by the terms of the notes filed with and made a part of the petition, none of them was due until January 1, 1917, while the petition was filed September 15, 1916, and the judgment entered on November 3, 1916. It is true that there is a charge in
fendant and J. A. Young, to whom the notes Were executed, that they were to become due and payable upon the failure of the defendant to pay any part of the purchase price Of the land when due, and that the purchaseLooney bond due April 25, 1916, was a part of the purchase price, and defendant had failed to pay it when due, but this allegation is in direct conflict with the provision of the notes. An exhibit, if in conflict with the allegations of a pleading, cannot aid the pleading, but may render it bad; and if an exhibit referred to and filed contradicts an allegation of the pleading, the exhibit will control the allegation, unless the exhibit be expressly impeached or explained by the facts stated in the pleading. Bush v. Madeira's Heirs, 14 B. Mon. 172; Newman’s Pleading and Practice (3d Ed.) vol. 1, § 204c.; Black v. O'Hara, Adm’r, 175 Ky. 623, 194 S. W. 811. In the instant case, the exhibits contradict the allegations of the petition, and being unimpeached, it follows that, the pleading setting up these two notes did not state a cause of action, and the judgment to that extent is erroneous and must be reversed. Martin V. Ky. Lands Investment Co., 146 Ky. 525, 142 S. W. 1038, Ann. Cas. 1913C, 332; Stamper v. Forman-Earle Co., 158 Ky. 324, 164 S. W. 937.  By reason of the failure of the defendant to demur to the defective petition, he is liable for all costs incurred. Moore v. Moxey, 39 S.W. 420, 19 Ky. Law Rep. 160; Combs V. Pridmore, 43 S. W. 681, 44 S. W. 107, 19 Ky. Law Rep. 1934; Bush v. Louisville Trust Co., 73 S. W. 775, 24 Ky. Law Rep. 2182; Civil Code, § 93, subsec. 2. [3,4] The petition, however, does state a cause of action with reference to the $405.80, which plaintiffs as his surety paid in Satisfaction of the purchase-money bond executed by Young in the bank case, and which Durham in the purchase of the land from Young had obligated himself to pay, and as to this item the judgment is not erroneous. As this sum was a prior lien upon the land, it was not error to order a sale of sufficiency of the land to pay this item before the notes Secured by an inferior lien became due. Civil Code, § 694, as amended, Acts 1916, p. 656. [5–7] 2. Among the exceptions to the report of sale we need notice but two, viz. that the price at which the land sold was grossly inadequate, and that the commisSioner, in advertising the amount of debt and costs to be made, named an amount greatly in excess of that to be realized under the judgment. Upon the first proposition, the defendant introduced proof to show that the land, which was appraised at $1,300 before the sale and sold for $916, was upon that day of the market Value of $1,500, and tendered a bond Of his father-in-law, Robert Mattingly, with surety conceded to be good for the amount; that if a resale should be ordered Sition to this, the plaintiffs introduced several witnesses to show that the land was not worth more than $1,000 to $1,050, and one
Witness who said that it was worth only $700
or $800. The fact that the land was appraised by disinterested landowners on the day of the sale at $1,300 and in the bank case at $1,400, in connection with the offer and bond of Mattingly to bid $1,500 is convincing that it Was WOrth that Sum, and that the Sale to plaintiffs at $916 was at a grossly inadequate price. Inadequacy of price alone, however, is not sufficient ground to set aside a sale. Stump v. Martin, 9 Bush, 285. But when
the price paid is greatly disproportionate to the actual value of the property, only slight additional circumstances are required to make it the duty of the chancellor to set aside the sale. Bean V. Haffendorfer, 84 Ky. 685, 2 S. W. 556, 3 S. W. 138, 8 Ky. Law Rep. 739; Columbia F. & T. Co. v. Bates, 74 S. W. 248, 24 Ky. Law Rep. 2412; Morris v. McCadden, 63 S. W. 435, 23 Ky. Law Rep. 539; Costigan V. Truesdale, 119 Ky. 70, 83 S. W. 98, 26 Ky. Law Rep. 971, 115 Am. St. Rep. 241.
The land Was advertised and Sold as a whole for the purpose, as stated in the advertisement, of raising $897, whereas, at that time, a sale was authorized for Only a Sufficiency of the land to raise about half of that sum; and it was sold to plaintiffs for an amount barely sufficient to satisfy their lien debts against it, to the exclusion of the lien held by Young. At another sale it is made certain that not Only plaintiffs, but Young as well, will realize the full amount of their indebtednesses, with something Over for the defendant. These are circumstances which, we think, added to the gross inadequacy of the price at which the land was sold, imposed upon the chancellor the duty to have set aside the Sale.
Wherefore the judgment confirming the sale is set aside, and that part of the judgment of November 3, 1916, based upon the notes not then due, is reversed, and the cause is remanded for proceedings consistent hereWith.
(180 Ky. 743) OHIO VALLEY ELECTRIC RY. CO. v. BRUMENIELD'S ADM’R. *
(Court of Appeals of Kentucky. May 28, 1918.)
1. COMMERCE Q=27(1)—FEDERAL EMPLOYERS’ LIABILITY ACT. An action by an injured employé of a railroad to recover damages under the federal Employers' Liability Act (Act April 22, 1908, c. 149, 35 Stat. 65 [U. S. Comp. St. 1916, §§ 8657–8665]) cannot be maintained unless the railroad company at the time was engaged in interstate commerce, and the employé at the time of the injury was also engaged in such COmmerce. 2. MASTER AND SERVANT ©:276(1)—EMPLOYMENT IN INTERSTATE COMMERCE—SUFFICIENCY OF EVIDENCE. In an action under the federal Employers’ Liability Act for injuries to the employé of a
railway while dumping ties into a fill, evidence held to show that the ties and other rubbish were put into the fill to strengthen and make it safer. 3. COMMERCE (3:27(8)—FEDERAL EMPLOYERS' LIABILITY ACT – ENGAGEMENT IN INTERSTATE TRANSPORTATION. If old ties were being thrown over an interstate railway's embankment or fill to strengthen and make it safer for use in transportation, the railway’s servant, when injured in such work, was engaged in interstate transportation, or in work so closely related as to be practically a part of it. 4. COMMERCE &27(5)—FEDERAL EMPLOYERs’ LLABILITY ACT – ENGAGEMENT IN “INTERSTATE COMMERCE.” To entitle the injured servant of a railway to recover under the federal Employers' Liability Act, it is not indispensable that the servant should have been engaged in interstate transportation in the sense that he was assisting in the operation of a train engaged in such commerce, or in the repair of trains, fixtures, appliances or tracks, the repair of which was at the time necessary in the conduct of . interstate transportation business; it being sufficient if he was engaged in Work So closely related as to be practically a part of such busiIleSS. [Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Interstate Commerce.]
5. APPEAL AND ERROR 3:1064(1)—INSTRUCTION-HARMLESS ERROR. In an action for injuries under the federal Employers' Liability Act by the employé of a railway, the instruction that the jury could only find such damages as would represent the present cash value of such money as might have been earned by plaintiff, except for the impairment or destruction of his power to earn caused by his injuries, was not so substantially Wrong as to constitute reversible error, particularly Where the railway offered no instruction presenting its view urged on appeal.
Appeal from Circuit Court, Boyd County.
Action by James Brumfield against the Ghio Valley Electric Railway Company. From judgment for plaintiff, defendant appeals; plaintiff dying and his administrator prosecuting the action as appellee. Affirmed.
Hager & Stewart, of Ashland, and Jno. L. Smith and GeO. B. Martin, both of Catlettsburg, for appellant. John W. Woods, of Ashland, for appellee.
CARROLL, J. The Ohio Valley Electric Railway Company owns and operates a line of electric railway in the states of Kentucky and West Virginia, and at the time Brumfield received the injuries Out Of... which this litigation arose the railway company was admittedly engaged in interstate commerce; Whether Brumfield WaS engaged in Such colmmerce at the time he received the injuries complained Of, although he Was then an employé of the railway company, is one of the principal issues in the case. Brumfield, since the judgment appealed from was rendered, has died, and the action is now being prosecuted by his administrator, and it is the contention of the administrator, as it was the contention of Brumfield during his life, that
Q: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes *Rehearing denied.
he was engaged in interstate commerce at the time, When as an employé of the railway company he was injured; while the railway company insists that Brumfield was not employed by it in interstate commerce at that time.  There is no difficulty about the law upOn this point, because an action by an injured employé to recover damages under the federal Employers' Liability Act cannot be maintained unless the railway company was at the time engaged in interstate commerce, and he was, at the time the injury complained of occurred, engaged by it in such commerce. When, however, it comes to applying the law to the facts of the particular case, it is often a matter of serious difficulty to determine Whether the injured employé WaS, at the time he received the injuries complained of, employed by the interstate carrier in a Work connected With interstate commerce, and this question must, in every case, be determined by the facts of the particular CaSe. Therefore We Will relate, With Some particularity, the facts of this case for the purpose of ascertaining whether Brumfield, When injured, Was employed in interstate COmmer'CO. The railway company operated an electric railway running from Ashland, in the state of Kentucky, to Huntington and other points, in the state of West Virginia, and it is conceded, as we have said, that in July, 1914, When Brumfield Sustained the injuries that were the basis of this suit, it was engaged in interstate commerce. Brumfield, at the time, was what might be called a section hand, or trackman, and as one of a crew of men, was engaged, with the other men, in helping to move a lot Of Old and WOrthleSS ties from where they had been thrown by the side of the track of the railway company in Huntington, to a fill On its line of railway between Huntington and Ashland. On this line of railway between these points there had formerly been a trestle, but a few years before the accident to Brumfield the railway company had made an embankment or fill to take the place of the trestle, and in making this fill it used ties, cinders, ashes, and other refuse picked up at different places on its line. After the fill had been Sufficiently constructed to permit the passage of cars Over it, it continued to dump on the sides of it ties, ashes, cinders, and other refuse gathered at different places along its line for the purpose, as contended by Brumfield, of strengthening the fill; while the railway company contend that it dumped this matter there, not to strengthen the fill, but because it was a convenient place to dispose of useless stuff. Brumfield and his crew on July 14, 1914, loaded a truck with the old and worthless ties picked up along the track of the railway in Huntington, and run the truck out to this fill for the purpose of throwing
and it was while engaged in unloading the truck at the fill that Brumfield received the injuries that subsequently resulted in his death. At this point, it is convenient to say that Brumfield testified on the trial Of the case, but died after judgment for $10,000 had been given in his favor, and so his administrator is the appellee on this appeal. It may also be here said that the railway company is not making, on this appeal, any question about the size of the verdict, or that the injuries Sustained by Brumfield were not caused by its negligence. Coming now to set out in more detail the evidence as to the purpose for which these ties were being dumped at the fill, Brumfield testified, in substance, that he was a section hand, WOrking With a Section CreW, doing Such things as were needed in the repair of the , track; that the crew would haul Old brick and dirt and ties from places where they had been thrown by the side of the track to the fill, and he understood that the purpose of putting the ties and other stuff at the fill was to Widen and strengthen the roadbed at that place; that before the day Of his injury he had helped to unload at this fill rock, dirt, ties, and other stuff, carried from different places on the line; that a great many other ties he had helped to unload there, and thrown down the side of the fill, had been covered up with ashes, cinders, and other refuse; that by the use of this material, in this way, the fill was made wider and in fact at the time Of the trial WaS about tWO feet Wider than at the time he was hurt. William Gunther, who had Worked for the railway as a foreman from 1900 until March, 1914, testified, in substance, that When the Culvert WaS taken Out and an embankment made in its place, cinders, dirt, ashes, ties, and other kinds of rubbish were used in making the fill; that ties thrown Over the embankment Would be COVered up With the other rubbish; that after the cars commenced running over the fill it was made wider by ties and other rubbish thrown on the sides; that the purpose of widening the fill was to make it more Substantial. M. D. Schaffer, who was supervisor of the tracks of the company in 1914, testified: “Q. What were your duties with reference to the track at that time? A. Well, I had that part of it to look after, keep it in running condition, and also had the new work to take care of, if they built any new line, or any thing of that kind. Q. Look after the making of the fills? A. Well, yes. Q. And take care of the refuse and ashes and things of that kind? A. Yes, to a great extent. Q. What was it customary to do with the ashes and refuse ties that you got out of the track where you was changing it? . A. Well, they went to make fills mostly. * * * Q. Now, to refresh your memory I will ask you if Mr. Magoon didn’t give you some order about 1914, July, with reference to the putting of the stuff in this fill that had been cleaned up along the track, putting it in this fill at Camden Park? A. Yes, he always wanted everything put, in place to keep—to protect the fill. Q. Were the ties put in there for the same purpose as the rest of the material was? A. Yes, sir. Q. State whether or not in July, 1914, along there, you put material into this fill for the purpose of protecting it and strengthening it at that point. A. I can’t say at that time, of course, but before that, I can’t say that it was; no, sir. At this particular time, I don’t know, I can’t say that it was absolutely necessary; they put it in there and had been throwing the stuff there for a number of years, I don't know - how long a while, of course the order never was annulled. Q. When was the order annulled? A. I believe it was about last March, a year ago somewhere. Q. About March, 1915? A. Yes, I think it was March, as well as I remember. Q. Now you say it wasn’t necessary to put stuff in there to protect the fill, what did you mean, now, in July, 1914? A. Well, I judge it was not in any sense necessary to protect it., Q. Was not? Do you know how it was at that time? A. I don't know about that, as I said they had been putting stuff in there for a number of years and the order had never been countermanded and stuff was still being put in it. Q. Up to what time? A. Up until last March. Q. Since July, 1914, how much stuff have they put on that fill on the south side next to the river? A. Well, I can’t say. I don’t know how much, considerable; they have hauled ties there and have hauled dirt there, and they hauled ashes there. Q. State whether or not they covered up the ties put in there in July, 1914. A. O, yes, covered up a good many of them. Q. Tell the jury what order, if any, you had from Mr. Magoon with regard to cribbing the ties put in there? A. Yes, he called my attention to that; said to me to have the men crib the ties in there to protect the fill—to keep the water from it. Q. What do you mean by cribbing ties? A. That is to pile them in a manner so that they would hold the dirt at the foot of the fill, cross-pile them at the foot of the fill. Q. What did you do with the dirt then? A. The dirt then, it would go down to the ties and catch there and hold instead of going on and leaving them. Q. That protected the fill didn’t it? A. Yes, supposed to.”
For the railway company, Fairchild, Harris, Humphrey, and other witnesses testified that these Old ties and Other rubbish Were thrown over the banks of this fill merely because it was a convenient place to get rid of Such useless rubbish, and not With any purpose of strengthening or making safer the 'fill. With the evidence on this issue in this condition, the court told the jury that:
If they should “find and believe from the evidence that the old refuse ties that were being unloaded from the defendant's car by the plaintiff, and other servants of the defendant, at the time of the accident in question were to be used in repairing or strengthening the fill at said point and were unloaded there by defendant for said purpose, then and in this event plaintiff and defendant were both engaged in interstate commerce at the time of the accident; and, on the other hand, if the jury shall believe from the evidence the defendant, or its servants in charge of the work of unloading said ties at the time and place in question, threw them on or over the top of the fill in question as an easy or cheap way to get rid of them and without any purpose or design to repair or strengthen said fill, then and in this event the plaintiff and defendant in doing said work were not then engaged in interstate commerce, and the plaintiff is not entitled to recover under said act.”
 It Will thus be Seen that the instructions clearly directed the minds of the jury to the issue between the parties as to whether Brumfield was engaged in interstate Commerce, and the jury, under the evidence and instructions, found that Brumfield was engaged in such commerce. Whether he was or not depended on a disputed question of fact, and we think there was sufficient evidence tending to show that these ties and the other rubbish Were put at this fill for the purpose of strengthening and making it safer to warrant the jury in finding for Brumfield upon this issue as they must have done, or OtherWise their Verdict Would not have been in his favor. Our attention has been directed by counsel for the railway Company to several cases that, it is contended, Support their position that the evidence was not sufficient to take the case to the jury upon the ground that Brumfield was engaged in interstate commerce, and therefore the court should, at the close of the evidence, have directed the jury as requested to return a Verdict for the railway company, and these cases we will now proceed to briefly notice and point Out What We conceive to be the material difference between them and the case We have.
In Illinois Cent: R. Co. v. Kelly, 167 Ky. 745, 181 S. W. 375, it appears from the opinion that Kelly, a track repairer in the service of the company, was engaged in loading on a flat car from its right of way unused rails which had theretofore been removed from its track and left on the right of Way beside it, and, it not appearing that these rails were being removed for the purpose of using them in any manner or way connected with interstate transportation, the court held that Kelly, in merely removing old rails from a place where they had been put, was not engaged in interstate commerce. But further said:
“If appellee had been injured while unloading rails that were to be used, and were later used, in repairing appellant's railroad track, there could have been no doubt of his right to maintain the action under the federal Employers' Liability Act; but such was not the case. The rails, by one of which he was injured, had been removed from the track and new ones put in their places several days before he was injured. When taken from the track the old rails Were laid out on the ground or subgrade, outside of and parallel with the track, the space occupied by them being about four feet in width; and, as thus placed, they could not, even if allowed to permanently remain, have interfered with appellant's use of the track or its business as a carrier, and there was nothing in the evidence conducing to show that it was the intention, of appellant to use these rails in its track elseWhere, or that they were so used or even fit for such use. In view of this situation, we are unable to see how the later work of gathering up these old rails for the purpose of storing them elsewhere, or, perhaps, selling them as scrap steel, can in any sense be considered as a repairing of the track, or as necessary to appellant's engaging in interstate commerce. In other words, the evidence fails to show that there was any duty resting upon appellant as a # of interstate commerce to remove the I allS.