L. & N. R. R. Co. vs. Penrod's Admr.

son to apprehend that injury would result to him if the usual and customary noises and proper and necessary signals incident to the movement of the train were given. There being no allegation of negligence in failing to give proper signals of the approach of the train, and the peti tion setting out distinctly in what the negligence sued for consisted, it was error to submit this matter to the jury; for the object of written pleading is to apprise the opposite party of the nature of the claim he is to meet, so that he may prepare his defense.

The proof does not show that appellant's servants saw or knew of the intestate's peril, nor does it show that they made any unneccessary or improper noises. It appears that the usual backing signals were given, as it was clearly proper should have been done in moving the train iu a city. The only other noise shown was from the escape of steam when the engine was reversed, which, under the uncontradicted testimony, was both usual and necessary. Appellant's servants in charge of its train were not re quired to keep a lookout on the adjacent premises, and they owed the intestate no duty to avoid noises until they perceived his danger. We do not think the evidence, as a whole, warranted a recovery on either of these grounds. It was usual for the trains to make a good deal of noise at this point, and there is nothing in the evidence to show this improper. Persons, therefore, in the neighborhood should have governed their business accordingly. It is indispensable to the operation of railroads to have switches and additional tracks about their stations. Engines can not be safely reversed without letting off steam, and it is peculiarly necessary to give ample notice when a train is to be backed in a city. If the rule were otherwise, we do not see how train yards can be

L. & N. R. R. Co. vs. Penrod's Admr.

maintained in a city at all. To hold appellant liable here on this ground would be, in effect, to declare it negligence to blow a whistle under such circumstances. The proof is clear that the horses began prancing and backing when the train was at the crossing, and then when it whistled and let off steam, and came back towards them, they ran off. There was nothing to apprise the trainmen of the intestate's danger, and no evidence of any negli gence on their part in proceeding with the operation of their train.

It was the duty of the appellant, however, in running its trains through the city, to give the signals of its approach to the street crossings required by law, and although the intestate was not using the street crossing, he had a right to rely on these signals being given. While this is not the rule in the country, 'in cities, where the population is crowded, and persons must necessarily he about the railroad tracks with teams, a just regard for human life can not permit trains to be operated without reasonable notice of their approach. On the return of the case, appellee may amend his pleading, if he desires to do so, so as to present this ground of recovery.

The proof shows that the team the intestate was driv ing was afraid of the train, and that he had been cautioned to be particular with them in the lane, and told that they would not stand in that lane unless they were held. lt also shows that it was about train time when the accident occurred; that the intestate wrapped the lines around the front of the wagon, and then got in the back part of it, and was shoveling the coal rapidly into the coal house, when the train came up; that when the horses started he grabbed for the lines, but whether he reached them or not the witnesses could not tell. On this proof, the court

May v. Ball, et. als.

should have instructed the jury that, if the team was likely to be frightened by the trains, and the intestate knew it, and also knew of the approach of the train, or had reason to know it, he was guilty of contributory negligence, and could not recover. The object of giving signals of the approach of a train is to apprise people of its coming. There is some evidence in the record that the deceased was facing the train as it approached him, and, if he knew of the approach of the train, there can be no recoverv on the ground that the signals were not given. Judgment reversed, and cause remanded for further proceedings not inconsistent with this opinion.

CASE 25-ACTION ON BOND OF RECEIVER-MARCH 29.

May v. Ball & Others.

APPEAL FROM MASON CIRCUIT COURT.

REVERSED ON PETITION FOR REHEARING.

For former opinion, see 54 S. W. R., p. 851.

(No briefs in record.)

FINAL ORDER-SURETIES ON RECEIVER'S BOND-LIMITATION OF ACTIONCONTRIBUTION-SUPERIORITY OF EXECUTION LIENS.

1. A judgment decreeing a sale of land in satisfaction of an ascertained lien is a final order from which an appeal lies.

2. A surety on a receiver's bond may discharge the obligation and proceed against the principal for indemnity, without waiting for suit against him.

3. Where a receiver executed a bond stipulating that he would pay the money held by him, whenever ordered by the court, a surety who has discharged the bond may enforce a mortgage of indemnity given him by the principal, as against the purchaser of the mortgaged property, although more than seven years had

May v. Ball, et. als.

elapsed since the execution of the original bond, especially in the absence of anything in the bond or pleadings, to show who was entitled to collect the money or to procure an order of court for its payment.

4. The obligors having undertaken that the receiver would pay the interest semi-annually, to a named person, the statute of limitation began to run as to each installment of interest, when it was due, and the right of action against the surety was barred in seven years from that time.

5. A surety can not enforce a mortgage executed by the principal to indemnify him, as against a purchaser of such mortgaged property, when he might have defeated a recovery against himself, as surety, by pleading limitation, because such purchaser has the right to make any defense that the surety might have made. 6. The lien of the plaintiffs in an execution was lost by their order to the sheriff to return it.

OPINION OF THE COURT BY JUDGE GUFFY-REVERSING.

This appeal was dismissed on motion of the appellees upon the assumption that the order appealed from was not a final order, and therefore not appealable. Afterwards the appellant filed a petition for rehearing, and upon a more careful consideration of the case it appears that the appellant claimed to be the owner in fee of a considerable portion of the land in contest, and the judgment appealed from held that said land was subject to sale to satisfy the claim of the appellees, and gave them priority over the appellant. Hence it follows that the judgment appealed from was a final order, so far as the title of appellant was concerned, and therefore the appeal must be entertained, and the former opinion dismissing the appeal is now withdrawn.

On the 25th of May, 1897, the appellee W. W. Ball and others instituted their action in the Mason Circuit Court against H. H. Cox and others. We copy as follows from the petition: "The plaintiffs, W. W. Ball, A. M. J. Cochran, Robert A. Cochran, James Cochran, William D. Coch

May v. Ball, et. als.

ran, and Horace J. Cochran, state that on October 28, 1885, in the action then pending in the Mason Circuit Court of James Wormald's Executor v. The Maysville & Mason County Library & Historical & Scientific Association, said court duly appointed the defendant, H. H. Cox as trustee or receiver of said court, by its order duly made and entered of record; and in pursuance of the order of court, and in order to qualify as said trustee or receiver of said court in said action, and receive the funds, said H. H. Cox and his two sons, the defendants Orlando Cox and Henry Cox, now deceased, as principals, executed a bond to the Commonwealth of Kentucky for the sum of thirty-seven hundred dollars, with interest from said October, 1885, payable on the order of the court, and the plaintiff W. W. Ball and one Robert A. Cochran, Sr., became his sureties on said bond. Said bond was approved by said court in this action, and it and the orders appointing said Cox and approving said bond are a part of the records of this court, and referred to and make a part hereof, and copies will be filed if required. Said H. H. Cox accepted said appointment, and duly qualified as said receiver or trustee, and as said officer said court placed in his hands the sum of $3,700, which he and the other other parties to said bond agreed and COVenanted in said bond should be paid by him according to the order of said court, together with interest at six per centum per annum from said October 23, 1885." It is further alleged in the petition that on the said day the defendants H. H. Cox and wife, in order to secure said Cochran and Ball from all loss through or arising out of their suretyship, mortgaged to them certain property, which is described in the petition. It is further alleged that Henry Cox, the other principal in the bond, died un