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ed with running the interstate trains. This is true no less of a line which is used for the passage of both interstate and intrastate trains. State Commerce who carries rivets, nuts, and bolts to a bridge crew who are repairing a bridge over which interstate trains pass, even though at the time of the injury he be walking along the track carrying the supplies at a point distant from the bridge. It was also held in the case of L. & N. Railroad CO. v. Walker's Adm’r, 162 Ky. 209, 172 S. W. 517, that a laborer, on a trestle, used by a railroad company in intrastate and interstate commerce, is engaged in interstate commerce within the meaning of the Federal Employers' Liability Act; and if said employé is injured after working hours, but while walking along the tracks going to boarding cars in which he eats and sleeps after the day’s work, he is nevertheless entitled to recover. A carpenter injured while working on an extension to a railroad repair shop was held engaged in work in aid of interstate Commerce, where an old structure was already in use as an instrumentality of such commerce. Thompson v. C., N. O. & T. P. Ry. Co., 165 Ky. 256, 176 S. W. 1006, Ann. Cas. 1917A, 1266. A case very similar to the one at bar is C., N. O. & T. P. Ry. Co. v. Tucker, 168 Ky. 144, 181 S.W. 940, where it was held that a section hand while assisting in lifting a steel rail from its resting place on the right of way, preparatory to bearing it to the roadbed to be employed in repairing the track, was engaged in interstate commerce. One engaged in Operating a turntable in a railroad yard, which table is used in handling interstate trains, is engaged in interstate commerce, and entitled to the benefits of the Federal Employers' Liability Act. C. & O. Ry. Co. v. Kornhoff, 167 Ky. 353, 180 S. W. 523. So, also, is a pan puller in a railroad yard engaged in dumping ashes from an engine, used to propel interstate trains, employed in interstate commerce, and entitled to the benefits of the Federal Employers' Liability Act. C., N. O. & T. P. Ry. Co. v. Clarke, 169 Ky. 662, 185 S. W. 94. A baggage master, whose run was from Cincinnati, Ohio, to Maysville, Ky., and who was injured at Maysville, while assisting in side-tracking the train to permit the passage of another, held to be engaged in interstate commerce and entitled to the benefits of the act. C. & O. Ry. Co. v. Shaw, 168 Ky. 537, 182 S. W. 653. A very interesting recent case is Hargrove V. Gulf, C. & S. F. Ry. CO. (TeX. Civ. App.) 202 S. W. 188. This case appears to extend the rule So as to include an employé of an interstate carrier who is assisting in loading rails already removed from the track, and not again to be so used. Appellee railroad relies upon the case of Illinois Central R. Co. v. Kelly, decided January, 1916, and found in 167 Ky. 745, 181
Likewise is one engaged in inter
S. W. 375. That case is SOmewhat Similar to the One under consideration, but easily distinguishable from it. Kelly was engaged in loading steel which had been removed from the tracks, to be carried for storage at Some Other place, or to be sold and disposed of as scrap iron, and not to be employed in repairing the tracks. If the steel which Kelly was injured by loading had been intended for the repair of the track at some other place in the line of the interstate carrier, as is claimed by Probus in this case, Kelly would have been entitled to the benefits of the Federal Employers' Liability Act.
 Under the evidence presented, we conclude that the trial court should have submitted to the jury, under proper instruction, the question of whether the appellant Probus WaS engaged in intrastate COmmerce, or interstate commerce; and, if the jury found from the facts that Probus was engaged in intraState COmmerce, it Should then have been directed to find and return a Verdict for Probus, if it further believed from the evidence that Probus was injured, and his injury was the result, in whole or in part, of the negligence of the railroad company, or of those employed with Probus in handling the rails.
For the reasons indicated, the judgment is reversed for a new trial in conformity to this opinion.
(181 Ky. 45) BUSKIRK et al. v. CAUDILL." (Court of Appeals of Kentucky. June 11, 1918.)
1. MASTER AND SERVANT ©: 287(8) 289(26)INJURIES TO SERVANT—CONTRIBUTORY NEGLIGENCE—QUESTIONS FOR JURY. Evidence that the servant who was killed was subject to the orders of another servant, and that it was not his duty to close a switch unless ordered to do so, made the questions of whether they were fellow servants and whether deceased was negligent jury questions, when he was killed by a train which ran into the track on which he was Working through the open switch.
2. MASTER AND SERVANT 3:137(4)—INJURIES To SERVANT—NEGLIGENCE OF OTHER SERVANTS, Where conductor of logging train was required to stay on the front of the train to keep a lookout, the mere fact that it was the custom to keep a spur switch closed did not relieve him of the negligence in failing to keep a lookout when the train ran on the Spur through the open switch and struck the car under which deceased was working.
3. MASTER AND SERVANT ©->198(11)—INJURIES TO SERVANT—“FELLOW SERVANT.’’ Conductor and engineer of a logging train were not fellow servants of a helper on a log loader used in loading the cars of the train. [Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Fellow Servant.]
4. MASTER AND SERVANT ©2333 - INJURIES TO SERVANT—NEGLIGENCE OF OTHER SERVANTS—LIABILITY OF MASTER. The master may be held liable for the negligence of his employés, although the employés are acquitted of liability.
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5. REMOVAL OF CAUSES @:49(3)—GROUNDS. In action for death of servant Where there
was evidence that deceased's foreman was guilty of gross negligence, the action against the foreman and the employer, which was a nonresident corporation, could not be removed to the federal court merely because no recovery WaS obtained against the resident defendant.
Appeal from . Circuit Court, Breathitt County.
Suit by Isham Caudill, administrator of Joseph Caudill, deceased, against the Huntington Contracting Company and U. B. BuSkirk and another, copartners under the firm name of the Kentucky River Hardwood Company and another. Judgment On Verdict against Buskirk and his partner, and they appeal. Affirmed.
Chester Gourley, of Jackson, for appellants. E. E. Hogg, of Bonneville, and J. M. McDaniel, of Beattyville, for appellee.
CLAY, C. Isham Caudill, as administrator of Joseph Caudill, deceased, brought this suit against the Huntington Contracting Company, U. B. Buskirk, and S. M. Croft, as partners doing busineSS under the firm name of Kentucky River Hardwood Company, and Brad Hoover, to recover damages for his death. The jury returned a verdict in favor of plaintiff for $10,000 against Buskirk and Croft, as partners, and they appeal. At the time of the accident, which occurred on February 17, 1913, Buskirk and Croft were the owners of a large quantity of standing timber on the South fork of QuickSand and Other Waters of the North fork Of Kentucky river in Breathitt county. For the purpose of removing the timber they built and operated a narrow gauge railroad about 21 miles in length. About 7 miles above POrtSmouth and about, 15 mileS from the terminus at Quicksand, there was a spur track leading from the main line up Jim's Branch for a distance Of 2 Or 3 miles. BUSkirk and CrOft COntracted With the Huntington Contracting Company, a corporation, to operate the railroad and log their timber. To facilitate the work several self-operating steam log loaders were used. The crew of one of these log loaders consisted of Brad HooVer, the “loader man,” LaWrence Shannon, the “top loader,” Carl Strong, the “tong hooker,” and the deceased, Joe Caudill, Who was known as a “gin” hand. Just prior to the accident the loader was placed on the Jim's Branch spur, and the engine and certain cars then ran down to SpiceWOOd. While the engine was gone the log loader Went Out on the main track to take Water, and on its return to the Spur, the SWitch Was not closed. About 30 minutes later, the engine returned with 14 empty cars in front. At that time Joe Caudill, Who Was 17 years of age and had been at work for about three weeks, was ordered by Hoover to go under
the loader for the purpose of doing Some WOrk. The loader Was then about 70 feet from the switch, and the approaching train came in contact With the loader and killed Caudill. According to the evidence for plaintiff, it was Caudill's duty to obey the orders and directions of Hoover, and not Caudill’s duty to close the SWitch unless directed by Hoover. There was also evidence to the effect that it was the duty of the conductor, who was in the engine at the time, to be on the front of the train for the purpose of keeping a lookout, that the open switch could have been seen for a distance of about 150 feet, and that the train, which was going at the rate of about 4 miles an hour, could have been stopped within a distance of 30 or 40 feet. According to the evidence for defendants, the members of the loader CreW Were under the control of Charles Wright, the scaler, and Hoover had no authority Over Caudill. The defendants also showed that it was the duty of Caudill, who had opened the switch, also to close it, and that it was the uniform custom to have the Spur Switch closed on the return of the train from SpiceWOOd.  The argument that a peremptory instruction should have gone, not only on the ground that Hoover and Caudill Were fellow servants, but for ~the further reason that Caudill was guilty of contributory negligence in not closing the Switch, loses its force When it is recalled that there was substantial evidence to the effect that Caudill was subject to the Orders of Hoover, and that it Was not the duty of Caudill to close the SWitch unless directed to do so by Hoover, thus making the question of fellow servant and contributory negligence One for the jury.  But it is insisted that the trial court erred in authorizing a recovery for the negligence of those Operating the train. In this connection it is argued that, as it was the custom to have the Spur SWitch closed upon the return of the train from SpiceWOOd, those in charge of the train had no reaSOn to anticipate that it would be open, and Were therefore not charged With the duty Of keeping a lookout. It must be remembered that the engine was in the rear and Was pushing about 14 empty cars. The train Was about 330 feet long. Both the engineer and conductor were in the engine. The conductor teStifies emphatically that it WaS his duty to be on the front end of the train, and that if he had been there he could have Seen that the SWitch was Open When about 50 yards away. Not only so, but the loader was about 70 feet from the switch, and if the conductor had been on the front end of the train he could have Seen that the train Was going On the Spur track and towards the loader in time to have signaled the engineer to stop it within a distance of 30 or 40 feet. Clearly, where an employé is charged with a particular duty, he cannot be relieved from the performance of that duty by the mere asSumption that Some One else Will not be negligent. Under the circumstances We COnclude that the court did not err in holding that the defendants Were negligent in not having Some one on the train in a position to keep an effective lookout, and in submitting this issue of negligence to the jury.  Nor can We say that the engineer and conductor in charge of the train were fellow servants of Caudill. While it may be true that those in charge of the train had Occasional duties to perform in connection with the loader, they and the “gin” hands were, as a matter of fact, engaged in Separate departments of work, and their duties were not Such as to bring them into Such relations that they could exercise an influence upon each other promotive of proper caution. Milton’s Adm'r V. Frankfort & V. Traction Co., 139 Ky. 53, 129 S. W. 322; Stearns Coal Co. v. King, 167 Ky. 719, 181 S. W. 329.  The point is also made that, the trial Court Should have entered judgment upon the verdict in favor of the appellants, because no verdict was returned against Hoover, their negligent employé. Whatever the rule may be in other jurisdictions, it is well Settled in this state that the master may be held liable for the negligence of his employé, even though the employé be acquitted of liability. Chesapeake & O. Ry. Co. v. DawSon's Adm’r, 159 Ky. 301, 167 S. W. 125; Broadway Coal Mining Co. v. Robinson, 150 Ky. 707, 150 S. W. 1000. It therefore follows the appellants were not entitled to a judgment notwithstanding the verdict because there was no finding against Hoover, their negligent employé.  Upon the institution of this suit in the Breathitt circuit court, all the defendants filed a petition and bond for removal of the cause to the United States District Court for the Eastern District of Kentucky, on the ground of diversity of citizenship. The petition was sustained, and the order of removal made. Subsequently it was made to appear in the Federal court that Brad Hoover, one of the defendants, was a resident of Kentucky, and the CauSe WaS remanded to the State Court. At the conclusion Of the evidence heard On the trial, Buskirk and Croft, and the Huntington Contracting Company, again filed their petition and bond for removal on the ground of Separable controversy and fraudulent joinder, and it is claimed that their petition for removal should have been granted because no case was made Out against Brad Hoover, the local defendant. Whether if that had been true a removal would have been proper at that time it is unnecessary to determine. It is Sufficient to say that there was substantial evidence that Hoover was superior in authority to the deceased, and that he was guilty of
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- (181 Ky. 4) COMMONWEALTH V. ADAMS EXPRESS CO. * (Court of Appeals of Kentucky. June 7, 1918.) INTOXICATING LIQUORS ce-ol63—FURNISHING ON ELECTION DAY—CONSTRUCTION OF STATTJTE. Ky. St. § 1575, making it a misdemeanor to furnish intoxicating liquors to a person in a precinct upon the day of any election therein, does not prohibit furnishing of liquor to a person in a school subdistrict, although an election of school trustees was being held in another subdistrict in same precinct. Appeal from Circuit County. Adams Express Company was acquitted of furnishing intoxicating liquors on election day, and the Commonwealth appeals. Affirmed.
Chas. H. Morris, Atty. Gen., D. O. Myatt Asst. Atty. Gen., and J. B. Snyder and W. B. Early, both of Williamsburg, for the CommOnWealth. LaWrence MaxWell and JOSeph S. Graydon, both of Cincinnati, Ohio, and Tye & Siler, of Williamsburg, for appellee.
MILLER, J. This appeal presents the question whether a common Carrier by express, which carried a shipment of liquor from a licensed dealer in Covington, Ky., to the purchaser thereof at Savoy, in Whitley county, Ky., and there delivered it to the purchaser in the regular course of business, violated section 1575 of the Kentucky Statutes; the delivery having been made on a day when no election was held at Savoy or in the school district within which Savoy is located, although Savoy and the said school district Were included in a Voting precinct in some parts of which a general school election for electing trustees was then being held.
Section 1575 of the Kentucky Statutes reads, in part, as follows:
“Whoever sells, loans, gives or furnishes to any person or persons, either directly or indirectly, spirituous, vinous or malt liquors, or any other intoxicating drink, in any precinct, town, city or county of this commonwealth, upon the day of any general or primary clection therein, shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined the sum of not less than twenty-five nor more than fifty dollars for each offense, which may be recovered by proceedings in any court of competent jurisdiction, or by indictment in the circuit court.”
By a stipulation of record it is agreed that prior to October 7, 1916, Isham Alder, a resident of Savoy, in Whitley county, transmitted in regular course of mail to John Doe, a licensed dealer in intoxicating liquors at COVington, in Kenton County, an Order for one gallon of liquor to be shipped by John DOe OVer the lines Of the Adams Express Company to said Ishan Alder at Savoy, in Whitley county; that Alder sent the purchase price of the liquor with the order, and the money was accepted by John Doe in full payment of the liquor which he thereafter, on October 6, 1916, in pursuance of the Order, delivered to the defendant the Adams Express Company at its office in Covington, Kenton county, marked and labeled as required by the act of March 9, 1914 (Laws 1914, c. 7); that the express company on the following day delivered the whisky to Alder at Savoy in the regular course of business as a common carrier by express; and that Alder then paid the defendant the express charges for the carriage of the shipment from Covington to Savoy. It is further agreed that On October 7, 1916, a general School election was held in about one-half of the common school subdistricts of Whitley County, as provided by law, for the purpose of electing common School trustees in the various subdistricts in the county; that SaVOy Was located in a COmmon School Subdistrict Wherein no School election for any purpose was held on October 7, 1916, but that there Were Other common School Subdistricts in the voting precinct wherein Savoy is located, and in which common school subdistricts elections were held on October 7, 1916; and that the express company had no Ownership or interest in the liquor thus delivered to Alder, or any other connection with the transaction, except as above narrated. Upon a trial by the circuit court without the intervention of a jury the express company was acquitted, and the commonwealth appealed. Appellee contends that the judgment of the circuit court Should be Sustained under either of two views of the statute; first, that the case does not come Within the terms Of the Statute Which denounces One Who “sells,” “loans,” or “furnishes” intoxicating liquors; and, second, that the statute is not broad enough in its terms to COVer a Case like the One at bar where no school election was held in the Savoy subdistrict on the day of the delivery of the whisky to Alder, although an election was held in other subdistricts of the precinct. Passing the first contention, and Without deciding whether the appellee “furnished” the intoxicating liquor to Alder, We think it clear under the second View of the case above suggested that the judgment of acquittal was proper. It is true the statute denounces the sale, loan, gift, or furnishing of liquor to any person in any precinct upon the day of any general or primary election, and does
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not in terms limit the prohibition to that portion of a precinct in which an election is held. The statute is general in its terms, and When strictly construed would prevent the furnishing of liquor in a school Subdistrict in which no election was held, provided an election was held in some other school subdistrict in the same precinct. But this would be giving the statute too narrow a construction. The purpose of the statute was to prevent the presence and use of liquor at elections, and that being true it should not be so conStrued as to prevent the furnishing of liquor to a man in a territory, whether it be called a School Subdistrict or a precinct, in Which no election was held. That this was the purpose of the statute appears from the following language taken from the opinion of this court in Ford v. Moss, Judge, 124 Ky. 290, 98 S. W. 1015, 30 Ky. Law Rep. 428:
“The Constitution required the General Assembly to enact necessary laws to restrict or prevent the sale or gift of such liquors on election days. There is nothing in the section (section 154, Const.) to indicate that the convention deemed the use of such liquors as less hurtful on one election day than another. The general purpose seems to include all election days. Sober judgment, peace, and good order are deemed desirable and necessary for the exercise of the high duty of citizenship on all days when the electors are called upon to select their servants, or to vote upon public measures. There is no matter of more importance, or which has been shown more regard by the constitutional convention, or by the various General Assemblies of the state, than the interest of the people in their common schools.” -
The purpose of the Legislature in enacting this statute clearly being to guard elections against the presence and influence of liquor, it Would seem necessarily to follow that the statute does not apply to territory in which no election is held, and that, the liquor having been delivered to Alder in a School Subdistrict in Which no election Was held, the circuit court properly acquitted the appellee.
(181 Ky. 70) BLACKFORD v. ST. LOUIS, I. M. & S. RY. CO. et al.
(Court of Appeals of Kentucky. June 11, 1918.)
1. CARRIERS 6230–INTERSTATE SHIPMENTS— SCHEDULE OF RATES. Both shipper and carrier are bound by the schedule of rates filed with the Interstate Commerce Commission, and the charging of a lesser rate, whether through mistake or otherwise, is illegal and void. 2. CARRIERS @:30—INTERSTATE SHIPMENTS— POSTING OF RATES. Failure of carrier to post in its station a copy of rates filed with Interstate Commerce Commission will not relieve the carrier or shipper from its binding effect. 3. EVIDENCE Q->65–RATES FILED WITH INTERSTATE COMMERCE COMMISSION–KNOWLEDGE OF SHIPPER—PRESUMPTIONS. A shipper is conclusively presumed to have knowledge of the rates fixed in the schedule filed by the carrier with the Interstate Commerce Commission.
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4. CARRIERs 3:223—INTERSTATE SHIPMENTS OF LIVE STOCK-DUTY OF SHIPPER TO PAY LEGAL RATES. Where plaintiff shipper of a carload of horseS, through mistake of agent in naming total amount, paid initial carrier a lesser rate than that fixed by schedule on file with the Interstate Commerce Commission and in effect at date of shipment, it was his duty to pay the additional amount, demanded by delivering carrier on arrival of shipment, and where he failed to do so, he could not recover for damages for delay in unloading due to failure to pay additional amount. Appeal from Circuit Court, Jefferson County, Common Pleas Branch; Second Division. Action by G. L. Blackford against the St. Louis, Iron Mountain & Southern Railway Company and another. Judgment for defendants, and plaintiff appeals. Affirmed.
Thomas C. Mapother, of Louisville, for appellant. Helm & Helm and Benjamin D. Warfield, all of Louisville, and Edw. J. White, of St. Louis, MO., for appelleeS.
THOMAS, J. The appellant and plaintiff below, G. L. Blackford, on April 11, 1916, shipped from Hot Springs, Ark. to Louisville, Ky., seven race horses, among which was one named “Bookie.” The appellee St. Louis, Iron Mountain & Southern Railway Company was the initial carrier, while the delivering One Was the appellee LOuisville & Nashville Railroad Company, which took possession of the shipment at Memphis, Tenn. In the early afternoon of April 13th the Shipment, which was made in an Arms palace car of the largest and best-equipped size and especially designed for the shipment of horses, arrived in the city of Louisville. The rate which was quoted by the agent at Hot Springs to plaintiff for the shipment, and which was paid by him, was $176.10, but it was afterward discovered that this sum lacked $85.80 of being the rate for that character of shipments between the two points mentioned, which rate was on file with the Interstate Commerce Commission and in effect On the date of the shipment. Upon the arrival Of the stock in Louisville the Louisville & Nashville Railroad Company declined to permit the horses to be unloaded until the balance of the freight, $85.80, was paid. This was not done until the next morning, when the Stock was unloaded at Douglas Park in that city, and two days thereafter, on April 16th, the horse Bookie developed a case of pneumonia, from Which he died on April 24th, and to recover for his value, which is alleged to be $20,000, and for medicine and bill of the Veterinary surgeon, amounting to $52, plaintiff filed this suit against the two corporations, alleging that the detention Of the horses in the Car from the afternoon. Of April 13th until the morning of April 14th was the cause of Bookie contracting and developing pneumonia, and that the agent of the initial carrier had wrongfully quoted the freight on the ship
ment, which if he had done correctly it would have been paid and there Would have been no delay in unloading it at its destination. It is also alleged that because of the long haul the horses became “droopy,” and Bookie Was especially in that condition. When the shipment arrived at Louisville, and “plaintiff States that Said shipment was not unloaded and cared for and not delivered by the defendant Louisville & Nashville Railroad Company, and that it did not allow this plaintiff to unload and care for said stock until the morning of April 14, 1916, and SOme 19 hourS after its arrival at South Louisville, Ky., as aforesaid, being allowed by said defendant to remain confined in the car in Which it arrived at South Louisville during this interim.” Demurrers filed by each defendant were overruled, and in separate anSWers they denied the allegations of the petition and pleaded contributory negligence; in a third paragraph they relied upon the fact that the rate for this character of shipmentS had been filed With the InterState Commerce Commission and that the total amount of it was, according to the schedule So filed, the sum of $261.90, instead of $176.10, the amount paid by plaintiff at the beginning of the shipment. A reply completed the iSSues, and upon a trial of the case the court gave to the jury a peremptory instruction to find for the defendants, which WaS done, and the petition Was dismissed. To reverse that judgment this appeal is prosecuted. A part of section 6 of the Interstate Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 380 [U. S. Comp. St. 1916, § 8569]) is: “That every common carrier subject to the provisions of this act shall file with the Commission created by this act and print and keep open to public inspection schedules showing all the rates, fares, and charges for transportation between different points * on the route of any other carrier by railroad, by pipe line,
or by water, when a through rate and joint rate have been established.”
The common carriers subject to the proVisions of that act are interstate carriers, and it is not disputed in this case, but that the Shipment Was an interState Shipment. Neither is it disputed, but if So it is established Without contradictory proof, that at the time of the Shipment involved there had been filed with the Interstate Commerce Commission, in compliance with the InterState Commerce Act, a Schedule for rates of this character of shipment between Hot Springs, Ark., and Louisville, Ky., and it is likewise admitted that the freight between the two points mentioned on this character of shipment under the schedule so filed was $261.90 instead of $176.10, the amount paid at Hot Springs. A fact equally well established is that the agent at Hot Springs made a mistake in naming the total amount of freight between the two points.