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E. B. Beard, of Shelbyville, and Edwards, Ogden & Peak, of Louisville, for appellant. Willis, Todd & Bond, of Shelbyville, and W. W. Bulleit, of New Albany, Ind., for appellee.
CLAY, C. Prior to January 1, 1912, Chas. A. Kochenrath was conducting in the city of New Albany, Ind., the business of a wholeSale and retail liquor dealer under the name of the City Bottling Works. Besides beer and Whisky he sold mineral Water, temperance beer, dry beer, etc. The greater portion of his business was what is known as mail order business. On January 17, 1912, Kochenrath by a Written contract which became effective January 1, 1912, sold and conveyed his busineSS to Otto W. Christman for a large COnSideration, a part of which was represented by a note for $4,000 secured by a mortgage on real estate located in Shelbyville, Ky. By the contract in question, Kochenrath obligated himself not to engage directly or indirectly in the manufacture or Sale, either WholeSale Or retail, Of Spirituous, Vinous, malt liquors, mineral Water, kolas, temperance beer, dry beer, etc., in any portion of the State of Indiana for a period of five years. A few months later Kochenrath violated his contract by engaging in the same business in the city of New Albany under the name of the Crescent Liquor Company.
In the year 1914 Kochenrath brought Suit against Christman in the Shelby Ville circuit court to collect the note for $4,000 subject to a credit of $1,000, paid September 8, 1912, and to enforce his mortgage lien. Christman interposed a COunterclaim for damages in the sum of $10,000, based on Kochenrath’s violation of the contract of sale. After proof had been taken by deposition and the case had dragged along for about three years, Kochenrath dismissed his petition without prejudice, and asked a transfer of the action to the Common-law docket for the trial Of the iSSue Of damages. This motion was overruled, and the case then submitted. The court held as a matter of law that the contract was valid, and had been Violated by plaintiff. It further held as a matter of fact that defendant had been damaged in the Sum of $4,000 by the Violation of the contract. Judgment Was entered accordingly, and Kochenrath appealS.
[1, 2] It will be observed that by the agreement in controversy the Seller disposed of the entire busineSS, and that the restraint imposed is ancillary to the contract of sale, and therefore the contract falls Within the rule that the restraint imposed must be incident to, and in Support Of, another COntract or sale in which the purchaser acquires some interest in the business needing protection. 13 C. J. 477; Barrone V. MOSeley, 144 Ky. 698, 139 S.W. 869; Nickell v. Johnson, 162 Ky. 520, 172 S. W. 938. It will also be obServed that the restraint is limited both as to time and place. Hence the Only question
to be determined is whether the restraint is no more than is reasonably necessary for the protection of the business transferred, and is not so large as to interfere with the interest of the public. 13 C. J. 475, 476; Linneman V. Allison, 142 Ky. 309, 134 S. W. 134. At one time it was the rule in certain jurisdictions that an agreement not to carry On a business anywhere within a state was invalid (More v. Bonnet, 40 Cal. 251, 6 Am. Rep. 621; Taylor V. Blanchard, 13 Allen [Mass.] 370, 90 Am. Dec. 203; Lawrence v. Kidder, 10 Barb. [N. Y.] 641); but in the later cases this doctrine has been rejected (13 C. J. 472; Oregon Steam Nav. Co. v. Winsor, 20 Wall. 64, 22 L. Ed. 315; Beal v. Chase, 31 Mich. 490; National Ben. Co. v. Union Hospital Co., 45 Minn. 272, 47 N. W. 806, 11 L. R. A. 437; Diamond Match Co. v. Roeber, 106 N. Y. 473, 13 N. E. 419, 60 Am. Rep. 464; Cowan V. Fairbrother, 118 N. C. 406, 24 S. E. 212, 32 L. R. A. 829, 54 Am. St. Rep. 733; Herreshoff v. Boutineau, 17 R. I. 3, 19 Atl. 712, 8 L. R. A. 469, 33 Am. St. Rep. 850). Furthermore, the nature of the business restrained has an important bearing on the question of reasonableness. 13 C. J. 475; American Brake Beam Co. v. Pungs, 141 Fed. 923, 73 C. C. A. 157. Following this rule, it was held that an agreement not to carry on the liquor business was Valid on the ground that the business was not a trade to be encouraged. Harrison V. Lockhart, 25 Ind. 112. Indeed it has also been held that a combination of persons and firms in a city for the control of beer and the cessation of competition inter se was not void at common law as against public policy, although in restraint of trade, on the ground that beer is not an article of prime neceSSity, and its Sale is closely restricted by public policy. Anheuser-Busch Brewing ASS'n V. Houck (Tex. Civ. App.) 27 S. W. 692. Here, to, plaintiff Was engaged in Selling liquor a business not favored by the law. He had an extensive trade covering a large portion of the State Of Indiana. The buSineSS Was COnducted by mail orders received at New Albany, his place of business. Because of this feature, plaintiff could have Conducted the Same buSineSS SucceSSfully at any Other point in the State, had it not been for the restraint imposed by the contract. . The effect WOuld have been to engage in direct competition with the defendant, and thus deprive him of a large portion of the good Will and trade which he secured by his contract of purchase. We therefore conclude that no question of public interest is involved, and that the restraint imposed by the contract in question Was no more than Was reasonably necessary for the protection of the business purchased by the defendant, and that the court did not err in adjudging the restraint to be valid. [3-6] But it is insisted that the court erred in fixing the damages at $4,000. The evidence shows a deliberate Violation of the contract
by plaintiff. When he sold out the business to defendant he retained a mailing list of the customers of the firm both in Indiana and Kentucky. When on the stand he refused to exhibit the books of the new business in Which he had engaged, Or to furnish a list of his customers, or to give any information conCerning the amount of business which he did. After considerable delay, however, the defendant did secure the deposition of plaintiff’s bookkeeper, who testified in substance that plaintiff's new concern did a business averaging about $24,000 a year. One-fourth of this business was done on orders received from Indiana, and three-fourths on Orders received from Kentucky. The profits averaged 18 per cent. or about $4,300 a year. As but One action for damages could be maintained by defendant, We think it clear that he was entitled to recover all damages accruing up to the time of the trial. Davis V. Brown, 98 Ky. 475, 32 S. W. 614, 36 S. W. 534, 17 Ky. Law Rep. 1428. As the busineSS Was a mail Order business, clearly it was not contemplated by the parties to the contract that plaintiff could establish his headquarters at Some place in Indiana and not be guilty of a violation Of the contract if he merely filled there orders which were received from persons residing in Kentucky. On the contrary, when plaintiff in response to Such Orders delivered the liquor called for to the common carrier, the sale took place in the state of Indiana Within the meaning of the contract. We therefore conclude that the profitS On Such Sales must be taken into consideration in determining the question of damages. Of course the damageS Which defendant Sustained should not be measured by the entire profits which plaintiff made, but Only by the profitS Of Which defendant Was deprived by plaintiff's Violation of the contract. Not only does the evidence show that plaintiff made an average profit of over $4,000 a year for Several years, but it also shows that defendant’s profits materially decreased after the first year. Of course the mere difficulty of ascertaining the amount of damage affords no reason for refusing damages. Here defendant was awarded only a Small amount of the profits which plaintiff made, and We think the evidence considered as a Whole Supports the conclusion that the damages fixed by the trial Court were actually sustained. At any rate they are not SO exceSSive aS to justify a reversal, of the judgment on that ground. . [7, 8] Another error relied on is the refusal Of the trial Court to transfer the case to the COmmon-law docket for the trial Of the ISSue of damages. The point is made that when the petition seeking an enforcement of plaintiff’s lien was dismissed, the equitable, feature of the action Was eliminated, and there was left only the common-law issue of damages which plaintiff then had the right to have tried by a jury. We have frequently Written that Where a litigant desires to have
an issue at law arising in an equitable action tried by a jury, the motion to have the case transferred for Such purpose must be made at the time the pleading tendering the issue is filed or within a reasonable time thereafter. Lewis V. Helton, 144 Ky. 595, 139 S.W. 772. Here plaintiff’s motion was not made until about three years after the issue was tendered and the case had been fully prepared for trial in equity. Though the dismissal of the petition left only the issue of damages, it was nevertheless the same issue of fact tendered by defendant's answer and counterclaim. Having lost his right to a jury trial by his failure to move therefor in proper time, he . could not restore this right by first dismissing the petition, and then making the motion to transfer. We therefore conclude that the trial court did not err in refusing to transfer the case to the common-law docket for the trial of the issue of damages.
Judgment affirmed. f
(Court of Appeals of Kentucky. May 31, 1918.) 1. #idence Q: 2 - FAILURE TO PERFORM UTY.
... It being elementary that negligence is the failure to perform a duty, there can be no negligence where there is no duty.
2. RAILROADS @:369(3), 372(4) — LookouT, SIGNALS, AND SPEED.
A lookout duty arises only when the public generally with the company’s knowledge and acquiescence have continuously used the tracks for such a period that the presence of persons thereupon ought reasonably to be anticipated, in . which case the company owes to persons using its track, the duty to give warning of the approach of its train, and to operate its trains at such a speed as may enable the engineer to stop it before injury has been inflicted.
3. RAILROADS @:372(1)–SPEED OF TRAIN.
In the absence of a prohibitory statute or ordinance, a railroad company may ordinarily run its trains at such speed as it sees fit, and a charge of negligence cannot be predicated on such speed, unless attendant circumstances make it negligence.
4. RAILROADS C: 370, 372(5)—LooKoUT, SIGNALS, AND SPEED.
There being no statute regulating the speed of trains in the country whenever a railway track passes through a populous community, or at a place where the presence of persons may reasonably be expected, it is the company’s duty to keep a lookout to give notice of the train’s approach, and to moderate the speed, to the extent necessary for the protection of the public.
5. RAILROADs Q:372 (4)-SPEED.
The speed of a train running through the country at 1:25 o'clock p. m. will not constitute negligence to persons on the track whose presence is unnecessary.
6. RAILROADS @:369(1)—INJURY TO PERSON ON TRACK-SIGNALS. The rule that one about to use a private crossing may rely upon and have the benefit of signals usually given for a nearby public crossing does not extend to persons using the track.
6->For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
7. MASTER AND SERVANT ©137(4) — INJURY To, RAILwAY EMPLOYE–NEGLIGENCE. ... To a railway signal man injured by collision while operating a motor car the company owed only the duty of protecting him after discovering his presence upon the track; the company not owing such employé a lookout, duty, nor operating its train, causing such collision, at an excessive or dangerous speed. 8. MASTER AND SERVANT ©:286(34)—INJURY TO RAILWAY EMPLOYE – PEREMPTORY INSTRUCTIONS. Where a railway company owed its signal inspector only the duty of protecting him after discovering his presence on the track, and engineer's testimony that he made every effort to prevent collision with the employé's motor car upon discovering it 70 feet in front of him was uncontradicted, a peremptory instruction in the employer's favor should have been given. Appeal from Circuit Court, Jessamine County. Action by Ray Carter against the Cincinnati, New Orleans & Texas Pacific Railway Company and others. From judgment for plaintiff of $3,300 against the railway Company, such defendant appeals. Reversed.
Bronaugh & Bronaugh, of Nicholasville, and John Galvin, of Cincinnati, Ohio, for appellant. C. C. Bagby, Chenault Huguely, and Bagby & Huguely, all of Danville, and E. B. Hoover, of Nicholasville, for appellee.
MILLER, J. The appellant operates a railroad from Cincinnati, Ohio, to Chattanooga, Tenn., passing through Jessamine county, Ky. It maintains an electric block Signal System for the protection of its trains. This block system is divided into districts or sections, each section being under the control of a maintainer Or Signal inspectOr, Who personally looks after the maintenance of the blocks, making repairs, and seeing that they are kept in Working Order.
What is known as the Nicholas Ville Section extends from a point north of Brannon near milepost 84 to a point a Short distance north of Wilmore near milepost 95, and was on December 23, 1915, under the charge of the appellee, Ray Carter, as signal maintainer. Carter had been in the Service Of the appellant in various capacities since 1907, and had been signal inspector and maintainer for about Six years. He was an experienced railroad man, acquainted with the time card and the manner of running extra trains. For the purpose of traveling over his section in the performance of his duties as signal maintainer and inspector of the Several Signal Stations in his Section he used a gasoline motor car or track Velocipede, which was furnished him by the company.
On December 23, 1915, Carter left the telegraph office at the Nicholasville station about noon and went to his home for dinner. After dinner Carter returned to the toolhouse, Where he kept his motor car, and placed it on the side or passing track, and proceeded southwardly, intending only to go
down to the yard and do some work. However, after he had arrived at the yard and found that he had left the necessary tools at home, he changed his mind, and proceeded on his motor car towards the South end Of his Section. He COntinued On the Side track until he reached the Harrodsburg turnpike crossing, where he transferred his motor car from the side track to the main track, and proceeded on his way. Although Carter did not, at any time, inform himself of the location of the trains upon the track, he doubtless knew the Schedule of the regular trains. At Jessamine station Carter met a freight train closely followed by what is known as the High Bridge hill engine. He took his motor car off the track, let this train and engine paSS, and then placed his car back on the track and COntinued his journey. At a point about 2 miles south of Jessamine station there is a rock cut 10 or 12 feet deep and between 500 and 600 feet long. Entering this cut from the north the track curves to the left. South of the cut there is a fill, and South Of the fill is another cut Which extends southwardly to an overhead bridge near the Wilmore cemetery. The signal block Or Section 95–1 is located at the north end of the Second cut; and about 35 or 40 yards north of this signal block there is located what is known in the record as the “triangle.” The triangle is a post with a triangle on its top and has Some connection with the electric block system. The distance between the tWO cuts is about the distance of ten telegraph poles, or 1,350 feet, and the curve continues through both cuts. When Carter had reached a pôint between the two cuts somewhere near the triangle he was run upon and hit from behind by a train composed of an engine and a caboose approaching from the north, and running as an “extra,” at a Speed of about 25 or 30 miles an hour. Carter Was knocked from the track and severely injured. The motor car landed on the pilot of the engine, from Which it Was removed after the train had stopped at a point 150 or 200 yards south of the place of the accident. The engine Which hit Carter Was a large engine Of the type known as the 700 class. It was equipped with an automatic bell, which had been ringing since the train left Lexington. About 300 yards north of the place of the sccident the engine gave the usual signal for the road crossing at the bridge South of the point of the accident. It did not, however, give a crossing signal at the signal post which stood near the place of the acCident. The proof shows that a man standing on the track at the place Of the accident and looking northwardly could see the track for a distance of 300 yards. But Rose, the engineer, testified without contradiction that, being on the right or outside of the curve as he proceeded southwardly, the boiler of his engine obstructed his view as he passed around the curve to such an extent that he did not see Carter until he Was Within 70 feet of him, and that he then immediately put on the emergency brake, and did everything that he possibly could have done to prevent the collision. Carter brought this action against the railroad company, Rose, the engineer, and Baker, its conductor, and obtained a verdict and judgment for $3,300 against the company. Rose and Baker were exonerated by a peremptory instruction. The company appeals. The appellee rested his case upon three alleged grounds of negligence upon the part of the company: (1) That the train was running at a high and dangerous Speed; (2) that the company failed to maintain a proper lookout for the appellee; and (3) it failed to give him timely Warning Of the train's approach. Many other questions, such as contributory negligence upon the part of Carter, his asSumption of risk, and Whether the train and Carter were at the time engaged in interState Or in intrastate commerce, have been discussed and relied upon by the company; but in our opinion the case is to be disposed of under the grounds relied upon by the appellee to SuStain his judgment.  It being elementary law that negligence is the failure to perform a duty, there can be no negligence Where there is no duty. Schulte's Adm'r V. L. & N. R. R. Co., 128 Ky. 627, 108 S. W. 941, 33 Ky. Law Rep. 31; C. & O. Ry. Co. v. Nipp's Adm'x, 125 Ky. 49, 100 S. W. 246; C., N. O. & T. P. Ry. Co. v. Harrod's Adm’r, 132 Ky. 445, 115 S. W. 699; Watson’s Adm'r v. C. & O. Ry. Co., 170 Ky. 259, 185 S. W. 852. What was the duty of the railroad company to Carter under the facts of this case? Carter insists that the company owed him the duty of not running its train at a dangerous Speed, which in this case did not exceed 30 miles an hour, that it owed him a lookout duty, thereby imposing upon the company the duty of exercising ordinary care in discovering the plaintiff's presence upon the track, and to give him timely warning of the train's approach. On the other hand, the company claims that it had the right to run its train in the country at any speed so that it did not endanger the safety of the train or its passengers; and, further, that the proof conclusively shows that the train was not running at a dangerous speed; that it did not owe appellee any lookout duty under the circumstances, but only to protect appellee after his peril was discovered; and that the engineer did everything within his power to Save the appellee after his presence upon the track was discovered. We Will consider the several points briefly.  This court has often declared that a
©: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
tracks no duty except to exercise ordinary care for his safety after his presence upon the track has been discovered, unless the company owes him a lookout duty. But a lookout duty arises only where the public generally, With the knowledge and acquiescence of the company, have continuously used the tracks for such a period of time that the presence of perSons upon the track where it is so used ought reasonably be anticipated. In such cases the company owes to persons thus using its track the duty to give warning of the approach of its train, to keep a lookout, and to operate its train at such a Speed as may enable the engineer to stop it before injury has been inflicted. I. C. R. R. Co. v. Murphy's Adm’r, 123 Ky. 787, 97 S. W. 729, 30 Ky. Law Rep. 93, 11 L. R. A. (N.S.) 352, L. & N. R. R. Co. v. McNary's Adm'r, 128 Ky. 414, 108 S. W. 898, 32 Ky. Law Rep. 1266, 17 L. R. A. (N.S.) 224, 129 Am. St. Rep. 308, I. C. R. R. Co. v. France's Adm’r, 130 Ky. 26, 123 S. W. 336, C. & O. Ry. Co. v. Warnock's Adm’r, 150 Ky. 74, 150 S. W. 29, and C. & O. Ry. CO. V. Dawson's Adm'r, 159 Ky. 296, 167 S. W. 125, are a few of the cases announcing this doctrine. But Carter also owed a duty to the company. L., H. & St. L. Ry. Co. v. Jolly's Adm’r, 90 S. W. 977, 28 Ky. Law Rep. 990, is, in its controlling facts, quite like the case at bar; and in defining the duty of an employé using a tricycle on the track the court there said:
“When he took the tricycle out on the railroad track, it was incumbent upon him to keep out of the way of the train. It was not incumbent on the railroad company to keep a lookout for him at places where the presence of persons on the track was not to be anticipated, and it owed him no duty until his presence on the track was discovered by those in charge of the train. Dilas Adm'r v. C. & O. R. R. Co., 71 S. W. 492, 24 Ky. Law Rep. 1347; Jacob's Adm'r v. C. & O. R. R. Co., 72 S. W. 30S, 24 Ky. Law Rep. 1879.”
To the same effect, see I. C. R. R. Co. v. Tyson's Adm'x, 108 S. W. 863, 32 Ky. Law Rep. 1390; C., N. O. & T. P. Ry. Co. v. Harrod's Adm’r, 132 Ky. 445, 115 S. W. 699; C., N. O. & T. P. Ry. Co. v. Yocum's Adm’r, 137 Ky. 117, 123 S. W. 247, 1200; C. & O. Ry. Co. v. Mountjoy's Adm’r, 148 Ky. 282, 146 S. W. 371; L. & N. R. R. Co. v. Seeley’s Adm'r, 180 Ky. 308, 202 S. W. 638; and the very recent case of L. & N. R. R. Co. v. Elmore's Adm’r, 180 Ky. 733, 203 S. W. 876, and the cases there cited.
[3,4] Neither can appellee complain of the speed of the train. The general rule is that in the absence of a prohibitory statute or ordinance a railroad Company may Ordinarily run its train at Such Speed as it sees fit, and that a charge of negligence cannot be predicated On the Speed at Which a train is run, unless there are attendant circumstances which make Such Speed negligence. Hummer's Ex’r v. L. & N. R. R. Co., 128 Ky. 486, N. R. R. Co. v. Engleman’s Adm’r, 135 Ky. 515, 122 S. W. 833, 21 Ann. Cas. 565; Louisville Ry. Co. v. Smock, 147 Ky. 345, 144 S. W. 40; note in Ann. Cas. 1914B, 602. There is no Statute in this State regulating the Speed of trains in the country; but whenever the track passes through a populous community, Or at a place Where the presence Of perSons upon the track may reasonably be expected, it is the duty of the company to keep a lookout for such persons, to give notice of the approach of its trains, and to moderate their Speed to the extent that may be necessary for the protection of the public. I. C. R. Co. v. Flaherty, 139 Ky. 147, 129 S. W. 558; I. C. R. R. Co. v. Morphy's Adm’r, 123 Ky. 787, 97 S. W. 729, 30 Ky. Law Rep. 93, 11 L. R. A. (N.S.) 352, and Cases there cited.
 In this case the train was not, at the time of the accident, running through a town Or Village, Or passing a point at which the presence of persons upon the track might reasonably have been anticipated. The accident occurred at 1:23 o'clock p. m. in the country. The speed of a train under these conditions will not constitute negligence to persons on the track, whose presence is unknown. Brown’s Adm'r V. L. & N. R. R. Co., 97 Ky. 228, 30 S. W. 639, 17 Ky. Law Rep. 148; Gregory V. L. & N. R. R. Co., 79 S. W. 238, 25 Ky. Law Rep. 1988. In Gregory v. L. & N. R. Co., supra, the court said:
“If at every curve, bridge, tunnel, cut, and fill not plainly in view for a long distance the train would have to slow up, give signals and warnings, and take extraordinary precautions on account of possible trespassers, because other trespassers were in the habit of using the track, it would so retard as to practically destroy the railroad business. On the contrary, it is the duty of these common carriers to serve the public by the diligent use of their tracks and means. . Their duties are onerous, and they are necessarily held to a high standard of strict performance in their discharge to the public with whom they must deal. To impose upon them this additional and extraordinary burden of policing their whole line of tracks, or to run their trains so slow and with such frequent warnings as to guard the safety of trespassers, would be equivalent to turning the right of way into a public highway for footmen. Such a rule would be against the public policy that considers alike the welfare of the public in securing to it rapid and safe service from the £arrier as well as the preservation of human life.
Neither is appellee in a position to complain that the company was remiss, in any degree, in failing to give him Warning of the approach of the train. In C., N. O. & T. P. Ry. Co. v. Harrod's Adm'r, 132 Ky. 445, 115 S. W. 699, where a brakeman was killed, it was claimed, as here, that the engineer of the train that killed Harrod was guilty of negligence in failing to give Warning of the approach of the train, and in running it at a high and dangerous speed. In that case,
it was the plaintiff's theory that if the situation was such as required certain signals and warnings to be given by moving trains at or near the point of the accident, Harrod was entitled to rely upon their being given, and if they were not given, it was negligence as to him. But in overruling that COntention the court Said: “The public have little or no option as to what highways they must travel. The public policy has been and is to require railroad companies to give certain warning signals at the highway crossing. Why? In order to apprise travelers upon the highways about to use the crossing that the railroad train was approaching and about to pass over it, so that the former might, as they probably could, by stopping their vehicles, keep out of the way of the train, or, if pedestrians, keep off the track while the train Was passing. AS trainS running at a high rate of speed cannot stop so easily, and cannot turn out of the Way at all, the Warning is to the users of the highway, so that the train can have a clear and unobstructed passage over the crossing. This warning, then, is not for the benefit of those on the train or elsewhere than at the railway highway crossing. * * * The failure to whistle for the crossing may have been negligence as to those of the public using the crossing, but for workmen about the yards half a mile away, though they may have come, very naturally, to rely upon it, it was not a duty owing to them, and its omission was not therefore negligence as to them.”  The rule announced in Cahill v. Cincinnati, etc., Ry. Co., 92 Ky. 345, 18 S. W. 2, 13 Ky. Law Rep. 714, that One about to use a private crossing was entitled to rely upon and have the benefit of Signals usually given for a nearby public crossing, has been strictly confined in its application to those perSons who used the CrOSSing, and does not extend to persons using the track. L. & N. R. R. Co. v. Elmore's Adm’r, supra, and the cases there cited. [7, 8] None of the witnesses placed the speed of the train at more than 30 miles an hour. It is clear, therefore, that since the company did not owe Carter a lookout duty, and was not operating its train at an excessive or dangerous speed, it owed him only the duty of protecting him after his presence upon the track was discovered. The engineer is, however, uncontradicted in his Statement that he did not discOVer Carter's presence upon the track until the engine was within 70 feet of him, and that he then did everything within his power to prevent the collision. So, we find, under the facts of this case, that the appellant was not negligent in any of the respects charged, and that the court should have Sustained the Company’s motion for a peremptory instruction. L., H. & St. L. Ry. Co. v. Jolly's Adm'x, 90 S. W. 977, 28 Ky. Law Rep. 989, C. & O. Ry. Co. v. Mountjoy's Adm’r, 148 Ky. 282, 146 S. W. 371, L. & N. R. R. Co. V. Elmore's Adm'r, Supra. Judgment reversed.