of one vote which would have been cast for him had not the polls closed too soon, the contestee received 27 legal votes and the contestant 23 legal votes. It therefore follows that the election should not have been set aside, but that the contestee should have been declared elected.

Judgment reversed and cause remanded, with directions to enter judgment in conformity with this opinion.

minutes before 5 o'clock. It is only claimeded, and the contestant was given the benefit that one voter was prevented from voting by intimidation, and that one voter was prevented from voting by the closing of the polls before the hour fixed by law. It further appears that about 20 per cent. of the votes cast were illegal, but they were almost evenly distributed between the two candidates. It is well settled that an election affected by fraud, intimidation, or other illegality should be set aside only when it cannot be determined by any reasonable method on which side a majority of the legal votes were cast. Wallbrecht et al. v. Ingram et al., 164 Ky. 463, 175 S. W. 1023. The determination of this question is not difficult in this case because the election was viva voce, and it can be readily ascertained who the illegal voters were and for whom they voted, and what voters were prevented from voting by intimi

dation or other misconduct.

Of the contested votes for Goff, the evidence in our opinion shows that Julia Ann Holloway, Sarah Holloway, Virgie Blackburn, Lydia Kendrick, and Sarah Kendrick were able to read and write, and that Charles Billiter was a resident of the district, and all were qualified to vote. On the other hand, it is conceded that Mary Golf, Lydia Holloway, Rebecca Billiter, Susie Justice, and Almeda Billiter could not read and write, and were therefore disqualified. Deducting these votes from 32 makes the number of legal votes which Goff received 27.

Of the contested votes for Daniels, Texie Smith, Barnara Justice, Margaret Justice, Dollie Justice, and Elizabeth Billiter all admit their disqualification. It further appears that John Smith was an infant when he voted; that Ida Devins was a nonresident of the district; and that Nannie Hunter, who had been a nonresident for several years, had not been a resident of Kentucky for a year at the time of the election. Deducting these eight votes from the 30 votes received by Daniels makes his legal votes 22, unless the votes of J. T. Billiter and Eliza Smith should be counted on the ground that the former was prevented from voting by intimidation, and the latter was prevented from voting by the closing of the polls before the hour fixed by law. Fairly considered, the evidence does not show that J. T. Billiter was prevented from voting by intimidation. It merely shows that he refrained from voting because he did not want to cause any hard feeling between neighbors. It is by no means clear that Eliza Smith was prevented from voting by the closing of the polls, since it was not shown that she asked to vote, but even if it be conceded that she was prevented from voting and would have voted for Daniels, the addition of her vote would have made his vote only 23.

[2] Here, then, we have a case where it is clear that after all illegal votes were reject

(181 Ky. 100)

WALDEN v. CUMBERLAND R. CO.
(Court of Appeals of Kentucky. June 11, 1918.)
COMMERCE 27(5) — EMPLOYERS' LIABILITY
ACT-EMPLOYED IN INTERSTATE COMMERCE.

tracks on his way to repair the dwelling house
A railroad employé injured while on the
of the general manager was not at the time em-
ployed in interstate commerce within the federal
Employers' Liability Act (Act April 22, 1908,
C. 149. 35 Stat. 65 [U. S. Comp. St. 1916, §§
8657-8665]).

Appeal from Circuit Court, Knox County. Action by William Walden against the Cumberland Railroad Company. Judgment for defendant, and plaintiff appeals. firmed.

B. B. Golden, of Barboursville, for appellant. Black & Owens, of Barboursville, for appellee.

CARROLL, J. The opinion on a former appeal of this case, which may be found in 166 Ky. 371, 179 S. W. 245, states the facts so fully that it is not necessary to repeat them here. In the former opinion, the case, on the appeal of the railroad company, was reversed, with directions to instruct the jury to find for it on the evidence found in that record. On a return of the case, the appellant, Walden, filed an amended petition, setting up that at the time of the injuries he complained of the Cumberland Railroad Company was engaged in interstate commerce, and he was employed by it in such commerce, and on this new issue, at another trial, three witnesses were introduced by Walden seeking to establish the averments of his amended petition. The other evidence on this second trial consisted of the evidence heard on the first trial from which the former appeal was prosecuted. The result of the second trial was that the lower court directed the jury to return a verdict for the railroad company, and from that ruling the case comes here; therefore, it will only be necessary to consider the effect of the new evidence offered on the last trial, which consisted entirely, as we have said, of an attempt to bring the case within the scope of the federal Employers' Liability Act.

We do not think the new evidence sufficient to show that the railroad company was engaged in interstate commerce, but, if we

should be mistaken about this, it is very | power plant for the purpose of taking out clear that Walden, who was injured while certain boilers within the building. In addiwalking on the tracks on his way to repair a tion to other allegations not material, the dwelling house occupied as a residence by petition contains the following: the general manager of the railroad com- "That while the plaintiff was engaged in said pany, was not at the time employed by the work, and acting under the orders and directions company in interstate commerce, or in a serv-dered, and directed to remove certain bricks of his foreman, the plaintiff was required, orfrom the lower portion of the breach made in said wall, and while executing said order under the command of and as required by his said foreman a portion or portions of the wall above fell, striking the plaintiff upon the head, and throwing the plaintiff backward against the aforesaid boilers."

ice so closely related thereto as to be a part thereof.

Wherefore the judgment is affirmed.

(181 Ky. 25)

ROY v. LOUISVILLE GAS & ELEC

TRIC CO.

A demurrer was sustained to the petition,

(Court of Appeals of Kentucky. June 7, 1918.) whereupon plaintiff filed the following amend

1. MASTER AND SERVANT

222(2)-ASSUMPTION OF RISK-COMMAND OF FOREMAN. Where a laborer, engaged in removing a portion of a brick wall, at the direct command of the employer's foreman proceeded to remove bricks at a point where work had been done the day before, and it was thought the wall was dangerous, he did not assume the risk of injury by a brick or bricks falling upon him as he stooped over, unless the danger was so obvious and imminent that an ordinarily prudent person would have refused to encounter it.

ment:

"That at the time and place mentioned in the petition the plaintiff did not know that it was dangerous for him to work at the time and place and in the manner alleged in the petition and as directed by his said foreman, and did not know that said portion of the wall above was likely to fall and strike the plaintiff, but that said defendant and said foreman and the other officers, agents, and employés of the defendant, superior in authority to the plaintiff, knew said facts and each of them, or could have discovered them by the exercise of ordi

2. MASTER AND SERVANT 288(12)-ASSUMP-nary care." TION OF RISK-QUESTION FOR JURY.

In laborer's action for injury in removing portion of brick wall at command of foreman, whether danger was so obvious and imminent that an ordinarily prudent person would have refused to encounter it, so that he assumed the risk, held for the jury.

3. MASTER AND SERVANT 107(5)-INJURIES TO SERVANT-CREATION OF DANGER.

Where a laborer was injured in removing a portion of a brick wall by the fall of a brick upon him from a portion of the work done the day before and not by himself, the employer was not entitled to a peremptory instruction on the ground the servant himself created the danger during the progress of the work.

4. MASTER AND SERVANT 285(3)-INJURIES TO SERVANT-MODE OF INJURY-QUESTION FOR JURY.

In an action for injuries to a laborer removing a portion of a brick wall, whether the laborer was struck on the head by a brick or a portion of the wall, as he alleged, held for the jury.

According to plaintiff's evidence, he had been at work for defendant at another place and was ordered to report at the power plant on Monday, December 13th. At that time defendant's employés were there engaged, under a foreman named Christiansen, in tearing out a portion of the wall. When plaintiff arrived he was put to work with a wheelbarrow and directed to wheel and stack the bricks which others had removed from the wall. Towards the close of the day' work, plaintiff saw other laborers remove from the upper portion of the wall an iron beam which had been placed there when the building was built for the purpose of supporting the bricks. Plaintiff took no part in ' this work, but saw several bricks fall while the beam was being removed. Monday evening plaintiff and several other laborers hung a tarpaulin over the opening in the wall. On the following morning plaintiff reported for work, and the foreman ordered some of the men to remove the tarpaulin from the opening. He then directed them to enlarge the opening by digging out some of the bricks Elmer C. Underwood and Beckham Over- at the top of the opening. At this time the street, both of Louisville, for appellant. Matt opening in the wall was about 14 feet in O'Doherty, of Louisville, for appellee. height and the lower part was about 4 feet from the ground. When the laborers startCLAY, C. In this action for personal in-ed to remove the bricks at the top of the juries by George Roy against the Louisville opening, the company's superintendent apGas & Electric Company, the trial court at the conclusion of plaintiff's evidence gave a peremptory in favor of the defendant, and plaintiff appeals.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch, First Division. Action by George Roy against the Louisville Gas & Electric Company. Judgment for defendant and plaintiff appeals. Reversed, and cause remanded for new trial.

peared and countermanded the order. At the same time he directed the foreman to have the men dig out the bricks at the bottom of the opening. Thereupon the foreman directed a negro by the name of Cochran and plaintiff to climb up in the opening and bricks at the bottom with a pick Before this order was given one

At the time of the accident, which occurred on December 14, 1915, plaintiff, together with other laborers, was engaged in removing a to loose the certain portion of a brick wall on defendant's and chisel.

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

of the workmen said to the foreman that I cannot say as a matter of law that the danthe wall looked pretty dangerous to him. ger was so obvious and imminent that an The foreman then said, "That is all right; ordinarily prudent person in plaintiff's sityou fellows go up there and dig those bricks uation would have refused to encounter it, out." Plaintiff then proceeded with the but conclude that this was a question for work, as he thought the foreman knew bet- the jury. ter than he did. After working a while, [3] The point is also made that the persomething fell from above and struck plain- emptory was proper because plaintiff himtiff in the back of the head. Plaintiff then self was engaged in creating the danger durfell from the hole against the boiler and re- ing the progress of the work. It must be received a wound in the back of his head. He membered, however, that the upper portion further stated that there was nothing above of the wall was cut out and the support reto fall except bricks. On cross-examination moved the day before, and that plaintiff took plaintiff stated that he knew the wall was no part in that work. When injured he was dangerous. After other evidence as to the working on the lower portion of the wall, extent of plaintiff's injuries, the defendant and his injury was not caused by the work moved for a peremptory. Before the per- then being done. This is not a case, thereemptory was passed on plaintiff tendered an fore, where the servant was engaged in creamended petition pleading defendant's fail- ating the danger during the progress of his ure to furnish him a reasonably safe place work, but a case where the danger had alfor work and an assurance of safety on the ready been created and existed at the time part of the foreman. The trial court refused the foreman ordered the work to be done. to permit the amended petition to be filed, and Hence we conclude that the defendant was directed the jury to return a verdict in favor not entitled to a peremptory instruction on of the defendant. the ground that plaintiff himself created the danger during the progress of the work. Ada Coal Co. v. Linville, 152 Ky. 2, 153 S. W. 21; Proctor Coal Co. v. Price's Adm'r, 172 Ky. 627, 189 S. W. 923; Borderland Coal Co. v. Kirk, Adm'r, 180 Ky. 691, 203 S. W. 534.

[4] While it is true that neither plaintiff nor any one else testified that he was struck by a brick, yet in view of the fact that he claims to have been struck in the back of the head while leaning over, and of the physical conditions under which he worked, we think it was for the jury to say whether he was struck by a brick or a portion of the wall, as alleged in the petition.

[1, 2] The peremptory appears to have been given because plaintiff himself stated that he realized the danger. Ordinarily, of course, this fact would be sufficient to defeat a recovery, for the servant assumes the risk where he knows and appreciates the danger, or the danger is so obvious that an ordinarily prudent person in his situation would have known and appreciated it. C. & O: Ry. Co. v. De Atley, 159 Ky. 687, 167 S. W. 933; Stearns Coal & Lumber Co. v. Calhoun, 166 Ky. 607, 179 S. W. 590. But this rule is subject to the qualification that, where the master or his representative is present and gives the servant a direct command to proceed with the work, the servant, though aware of the danger, does not assume the risk, unless the danger is so obvious and imminent that an ordinarily prudent person in his situation MOORMAN et al. v. LOUISVILLE TRUST would have refused to encounter it, and or

Judgment reversed, and cause remanded for a new trial consistent with this opinion.

is

LAWSUITS.

CO. et al.

(181 Ky. 30).

always a chance to lose in any kind of a lawsuit, and especially in a will contest. WILLS 651-NONCONTEST CLAUSE-VA

LIDITY.

A clause in a will devising personalty, providing for forfeiture in case of contest, with a gift over, is not absolutely void. 3. INFANTS 113-ACTIONS BY INFANTS— CONCLUSIVENESS.

dinarily this is a question for the jury. (Court of Appeals of Kentucky. June 11, 1918.) Stewart Dry Goods Co. v. Boone, 175 Ky. (Court of Appeals of Kentucky. Junė 11, 1918.) 271, 194 S. W. 103; Yellow Poplar Lumber 1. EVIDENCE 43(1) - JUDICIAL NOTICECo. v. Bartley, 164 Ky. 763, 176 S. W. 201. The court will take judicial notice that there Here the petition as first amended alleged the dangerous condition of the place where plaintiff was required to work and the fur-2. ther fact that plaintiff was acting under the orders and instructions of his foreman. Not only so, but the evidence shows that, notwithstanding the fact that the foreman's attention was called to the dangerous condition, he nevertheless gave plaintiff a specific command to proceed with the work. The evidence further shows that the opening in the wall had been cut out and the support removed the day before. In order to remove the bricks it was necessary to use a pick and chisel. Viewing the case in the light of this fact, and of the further fact that all bricks likely to fall had fallen, we

Infants are bound the same as adults by judgments in actions prosecuted in their names and for their supposed benefit in the manner prescribed by law, even though the result might ble likewise for the legal consequences of such prove the action unwise, and they are responsiactions.

4. INFANTS 73-WILL CONTEST-SUIT BY NEXT FRIEND-DISMISSAL-DISCRETION OF COURT.

Where a will provided that part of the income of a trust fund should be paid to an infant

legatee until the portion not used should amount | and comfortable support of my son Charles, and to $200,000, and that when the legatee became after his death the principal and unused income 25 years old such sum should be paid to her, of this share shall be disposed of as in this will and further provided for forfeiture in case of hereinafter directed. contest, with gift over, the refusal of the probate court to allow a contest by the infant's next friend by appealing from probate was not an abuse of discretion, where by postponing the contest until the infant arrived at her majority she could make the election for herself, although if the will were set aside she would inherit over $1,250,000.

Humphrey, Middleton & Humphrey and Trabue, Doolan & Crawford, all of Louisville, for appellants. Helm Bruce, Ben F. Washer, Fred Forcht, Lawrence Leopold, and Bruce & Bullitt, all of Louisville, for ap-ceive such portion of the income of this trust as pellees.

Moorman.

is now the statutory guardian of Lucy Elizabeth | record from which the court would conclude that the next friend is not a competent and suit"On August 23, 1917, Lucy Elizabeth Moorable person to act in that capacity, and the man, the infant, through Nicholas H. Dosker, fact that the only other relative the infant has, her next friend, filed statement of appeal, al- its maternal grandmother, has requested such leging that the paper probated was not the true action on the part of the next friend, makes this last will and testament of C. P. Moorman, de- course not at all one of intermeddling or a volceased, because of lack of testamentary capacity, unteer without grounds to investigate and prosand also because of undue influence exercised in ecute this proceeding. The mere wish of the its making, in which all the parties interested grandmother, Mrs. Warran, to have the contest were made defendants and duly summoned, in- made and prosecuted cannot be considered by cluding the executor and trustee, the Louisville the court a sufficient reason therefor. She is Trust Company, and the statutory guardian, prompted manifestly by laudable and natural Kentucky Title Savings Bank & Trust Company, affection for her granddaughter, but she may or and Charles P. Moorman, Jr. The trustee and may not realize the responsibility which attachCharles P. Moorman, Jr., filed special demures to the course being pursued. rer to the statement, on the ground that the plaintiff and appellant has not the legal capacity to sue or maintain the proceeding. They also move the court to require the next friend to execute bond to protect Lucy Elizabeth Moorman against loss or damage which may be sustained by reason of the proceeding. They file also a plea in abatement on the general ground that the proceeding is against the real interest of Lucy Elizabeth Moorman, and, further, that Joan Moorman, while she was guardian, accepted as guardian certain benefits under the will. The appellant files answer to the plea in abatement, denying the contention that the proceeding is against the best interest of Lucy Elizabeth, and denying also that Joan Moorman, as guardian, accepted anything under the will other than cer tain items of expense for the maintenance and care of Lucy Elizabeth, and exhibit copies of correspondence between the Kentucky Title Savings Bank & Trust Company, guardian of Lucy Elizabeth, and Mrs. Elizabeth C. T. Warren, maternal grandmother of Lucy Elizabeth, and also letter from Mrs. Warren to Nicholas Dosker, and a letter from Dosker to counsel for appellant in this case. In a response the defendants disclaim any plea of estoppel, on the ground that Joan Moorman, as guardian, accepted benefits under the will, but aver that the facts thus pleaded were for the purpose of bringing before the court the question of the right of Nicholas Dosker to sue as next friend, because, as the defendants claim, such action is against the best interests of the infant.

"The statutory guardian, Kentucky Title Savings Bank & Trust Company, though a party to this suit, has not responded in any way, and while, as appears in its letter to Mrs. Warren, it declines to prosecute the appeal, it nowhere says that in its judgment the appeal ought not to be prosecuted, by a next friend.

"Mrs. Joan Moorman, while she was guardian, did not prosecute the appeal, and since she had a $50,000 bequest under the will, she perhaps would not be expected to jeopardize her personal interest to have the validity of the will tested, so that her failure, while she was guardian, and the failure of the present statutory guardian, the Kentucky Title Savings Bank & Trust Company, do not aid the court in determining whether or not this appeal should be prosecuted.

"It is manifest upon the record that if the appeal is prosecuted, whatever the infant would gain through the appeal the executor and trustee would lose, and whatever the infant would lose by reason of the appeal the executor and trustee would gain, and therefore the advice from the executor that the proceeding is in conflict with the rights of the infant must be considered in the light of advice from one whose interests are directly in conflict with the interests of the infant so far as the contest is concerned.

"In the will itself there is such clear and unmistakable evidence that the testator considered his son, Charles P. Moorman, Jr., incapable not only of looking after his own estate, but of looking after himself, by reason of his being an invalid, the court cannot look to him for reason for acting the one way or the other upon the question involved. There is nothing in the

was

and the court does not doubt, if permitted by "The next friend has employed able counsel, the court, this proceeding would be thoroughly prepared, and the cause ably presented and the contest of the will vigorously prosecuted. contest of the will vigorously prosecuted. "The first question to be decided is, Has the court the power and is it the court's duty to determine whether or not the next friend will be friend of an infant is, and of necessity must permitted to prosecute the appeal? A next friend of an infant is, and of necessity must to a large degree be, acting under the direction In Longnecker v. and control of the court. Greenwade, 5 Dana, 516, an action had been father, Isaac Trimble, her next friend, for slanbrought by Lucy Ann Trimble, a minor, by her der. During the progress of the proceeding the father being insolvent, one Longnecker substituted as next friend. Pending the litigation, the infant and her father made a compromise of the suit, and at their united instance and against the consent of Longnecker as next friend, the suit was dismissed in the circuit court, and an appeal was taken by the next friend, and in sustaining the action of the lower court, the Court of Appeals says: "The court. in the exercise of sound discretion, may control a next friend of an infant plaintiff, as well as a guardian ad litem of an infant defendant, and should always in that respect do that which the infant's interests shall seem to require.' Robinson v. Talbot, 78 S. W. 1108, 25 Ky. Law Rep. 1914, the court dismissed a petition brought by a next friend over his objection, and say: 'It is the duty of the chancellor to protect the infants and to see that they are not prejudiced by any act or omission of the next friend; and to this end may, if he deems it necessary, revoke the authority of the next friend and substitute another, or dismiss suits instituted for the ostensible but not real, interest of the infants.' An elaborate discussion of this question is found in Swoope et al. v. Swoope, 173 Ala. 157, 55 South. 418 (31 Ann. Cas. [1914A] 935), in which the court reaches the same conclusion, as in the two Kentucky cases quoted, and there is an extensive note to this case in Annotated Cases, citing many authorities in support, and to the same effect is Stevens v. Cole, 7 Cush. (Mass.) 489, where it is said: "The name of a prochein ami being thus introduced into the process, without any previous order or sanction of the court, the power of supervision, so far as to prevent either an unauthorized use of the name of one as prochein ami, or the improper institution of a suit by a volunteer prochein ami in disregard of the interest of the infant, must, of course, remain with the court to be exercised on a motion to stay proceedings, or dismiss the action, and to this extent the court will control the use of the name of a prochein ami.'

"It is not contended by the appellant that the court is without power of control, but it is very earnestly contended that this is not a case for the exercise of control. In view of the conclusion based upon the authorities and sound reasoning that the court has the power and rests under the duty to protect the substantial interests of an infant and see to it that nothing