PRINCIPAL AND AGENT-Continued-
Abandonment of Contract-Quantum Meruit.-Where a real
estate broken opens negotiations for the sale of land to a
possible purchaser, but the seller withdraws the property
from the market before the sale is completed, the broker,
although he can not recover his commission under the con-
tract, he may, nevertheless, recover damages upon a quan-
tum meruit for the value of his services rendered up to that
time. Idem
6. Fraud of Agent.-Act of an agent in accepting in satisfac-
tion of a debt due his principal a check that he knows has
been obtained by means of a fraud practiced on the bank
on which it was drawn, will not estop the innocent principal
from recovering from the bank the amount of the check
which has been turned over to the principal by the agent.
Robinson & Co., et al. v. Bank of Pikeville, et al..
1. Where a surety signs a bond guaranteeing the official good
conduct of one who purports to be a public official, he will
not be heard to say that his principal was not such offi-
cial. Caperton's Exr., et al. v. State Bank & Trust Co. of
Richmond, Ky. .
Release of Surety.-Mere indulgence of the creditor to his
debtor will not release a surety. But if the creditor extend
to the principal the right to pay at some future definite time,
however short, without the consent of the surety, the latter
is released. Idem .
PROMISE TO PAY-See Limitation, 1, 2.
RAILROADS-See Master and Servant, 4.
1. Action Against, for Death-Failure of Proof.-In an action
against a railroad company to recover damages for the death
of a person, the evidence showed that he was killed at a
public crossing, but there was no proof that his death was
caused by the negligence of the company, and there could
be no recovery. Stuart's Admr. v. N. C. & St. L. R. R. Co.. 127
Evidence of Negligence-When Sufficient to Authorize Sub-
mission to Jury.-When there is evidence that a traveler
is struck and killed by a train at a public crossing where he
has a right to go and be, and it is shown that the train did
not give the usual or statutory signals for its approach to the
crossing, the inference of negligence is sufficient to take the
case to the jury, although there may be no eye witness to the
accident or other evidence as to how it happened. Idem..... 127
Presumption of Negligence.-Where a person is found dead
at a crossing, no presumption of negligence will be indulged
in against the deceased, nor is it required that the plaintiff
who is seeking to recover damages for his death shall show
that he was free from blame. But in all cases of this char-
acter, there must be some evidence to show that the de-
ceased lost his life through the negligence of the defendant.
A recovery cannot be had on mere surmise or speculation as
to how the injury happened, nor will it be presumed that the
defendant was negligent. If the injury may as reasonably
be attributed to a cause that will excuse a defendant, as to a
cause that will subject it to liability, a recovery cannot be
had. Idem. .
Cars Loaded at the Elevator in Latonia Should not be Rout-
ed from There, but Taken Over to Covington and There Rout-
ed, and are at the Risk of the Owner Until Delivered to it at
the Elevator.-It was a custom between a grain company and
the railroad company that cars loaded at the elevator in
Latonia should not be routed from there, but taken over to
the yards in Covington and there routed, a bill of lading be-
ing given in Latonia in the usual form showing that the car
was to be taken to a certain track in Covington. Held, that the
cars were at the risk of the carrier and held as carried from
the time they were delivered to it at the elevator and the bill
of lading given, where the car was lost before it reached
the Covington track, although the final destination of the car
was then unknown. Cincinnati Grain Co. v. L. & N. R. R.
Co. . .
Liability for Fires.-Railroad companies are liable for prop-
erty destroyed by fire by sparks thrown from an engine, if
the engine is not equipped with the most approved spark ar-
rester, or the engine is operated in a negligent manner. L. &
N. R. R. Co. v. Home Ins. Co., et al. . . . . .
281
Evidence of Other Fires.-In an action to recover damages
for property destroyed by fire by sparks thrown from an
engine, it is competent to show that sparks were thrown from
the same or other engines within a reasonable time before
and after the time of the fire under investigation. Idem..... 281
Value of Property.-The plaintiff in cases like this is entitled
to recover the value of the property destroyed, and in deter-
mining its value it is competent for either party to introduce
as evidence every relevant fact that will throw light upon
the value of the property. Idem......
Killing of Person at Private Crossing-Evidence-Negligence
of Railroad.-Appellee's intestate in attempting to ride horse-
back over appellant's railroad track at a private crossing,
was run over by its passenger train at a point on the track
330 feet west of the crossing, and himself and the horse
killed. Held, 1st, That as appellee's evidence conduced to
prove appellant's train failed to give any signal of its ap-
proach to the private crossing, or for a public crossing a half
or three quarters of a mile therefrom; that it was the cus-
tom of its trains to give such signals for both the public and
private crossing; and that person using the private crossing
were accustomed to rely upon such signals, this evidence to-
gether with the frightening of intestate's horse at the cross-
ing by the train and his uncontrollable flight down the rail-
road track, shown by his tracks in the snow and indenta-
tions in the cross-ties by his iron shod feet, authorized the
submission of the case to the jury, whose province it was to
determine from the evidence referred to, and that of appel-
lant, strongly contradictory thereof, whether the death of the
intestate was due to the negligence of appellant's engineer
in charge of the train, or his own negligence. C. & O. Ry. Co.
v. Young's Admr.
Proximate Cause.—If, as appellee's evidence tended to prove,
the running of the intestate's horse down the railroad track
resulted from his becoming frightened at the train, and the
consequent inability of the rider to control him, such fright
and uncontrollable running of the horse could not have been
the proximate cause of the rider's death, if the fright of the
horse was caused by the negligence of appellant's engineer,
but on the contrary constituted merely an incidental or in-
tervening cause set in motion by the engineer's primary negli-
gence. Therefore, the latter's negligence was the proximate
cause of the intestate's death. Idem...
10. Instructions.-The instructions, though, in some respects in-
accurately expressed, were on the whole, not prejudicial to
appellant. Idem
11. Killing of Trespasser on Railroad Track-Liability of Rail-
road Company for Causing Death.-The law does not impose
upon those in charge of railway trains, the duty to keep a
lookout for trespassers who may be upon the track, in the
country, away from public crossings, and hence in order to
hold the company liable for the injury, plaintiff must show
not that those in charge of train were in a position to see,
but, either that they did see or were in a position where they
could not help but see the perilous position of the trespasser.
Tennessee Central Railroad Co. v. Cook, Admr. of Reeves, De-
ceased
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12. Shipper-Bill of Lading-Assigning His Rights-Cannot Pros-
ecute Appeal. The shipper under a bill of lading, having as-
signed his rights to another, is not the real party in in-
terest in a suit against the carrier on the bill of lading, and
cannot prosecute an appeal in his name alone from a judg-
ment dismissing the petition, where he sued for the benefit
of the assignee, alleging that the assignee was entitled to any
judgment that was rendered in the action and the assignee
did not appeal. Lampkin v. Mobile & Ohio R. R. Co........ 514
13. Duty Owing to Licensees and Trespassers. A railroad com-
pany, in the operation of its trains at places where the ha-
bitual and continuous use of its tracks by the public imposes
upon it the duty of anticipating the presence of travelers,
is required to keep a lookout, to give reasonable warning
of the approach of trains, and operate them at a reasonable
speed; but no duty is owing to a trespasser except to exer-
cise ordinary care to avoid injury to him after his peril is
discovered. Sublett's Admr. v. C. & O. Ry. Co...... .... 530
14. Licensees, Who Are.-Where large numbers of the public
habitually and continuously use the tracks of a railroad com-
pany, with its knowledge and consent or its implied acquies-
cence, they are to be treated as licensees and accorded the
protection owing to this class of persons; but, as a gen-
eral rule, the public in the use of the tracks will not be
treated as licensees except in cities and thickly populated
communities. Idem
15. Trespassers, Who Are.-All persons are trespassers who,
without right so to do, use the tracks of a railroad company
at places where the public have no right to be or at places
where the use of the tracks by the public is not of such a
character as to convert the users into licensees. Idem...... 531
16. Negligence-Persons Using Track.-A railroad company in
running its train through an incorporated town of 900 in-
habitants at a time and place where the presence of per-
sons on its tracks may be reasonably anticipated, at the
rate of from forty to forty-five miles an hour, is guilty of
negligence. Smith's Admr. v. C., N. O. & T. P. Ry. Co, et
al..
17. Deaf Person-Crossing Track Where Passing of Trains May
Be Reasonably Anticipated-Contributory Negligence.—It is
the duty of a person crossing a railroad track at a place
where the passing of trains may be reasonably anticipated,
to use ordinary care to learn of the approach of a train and
keep out of its way; and if such person be totally deaf,
ordinary care requires him to use his eyes, the only means
by which he can ascertain the approach of the train. If he
fail to do so, and is thereby injured, he is guilty of con-
tributory negligence that will preclude a recovery, even
though the railroad may have been guilty of negligence in
running its train at too high a rate of speed. Idem.....
18. Evidence-Peremptory Instruction. In an action for damages
for the death of a person killed while crossing a railroad
track, evidence examined, and held that the trial court proper-
ly directed a verdict in favor of the defendants. Idem........ 568
19. Action Against for Damages for Injury to Employe-Evi-
dence-Joinder of Conductor and Engineer. In an action
against a railroad company for personal injuries in which
the conductor and engineer were joined as defendants, it
was improper to submit to the jury evidence of the use of the
outside angle cock as a means of stopping the train, for the
reason that to have used it at the time and place would have
subjected the user of it on the train to grave danger of losing
his life or suffering physical injury. C., N. O. & T. P. Ry. Co.
v. McElroy
20. Instruction-Insufficiency of Whistle.-Conductor.-An
struction which permitted the jury to find against the con-
ductor for the insufficiency of the whistle was objectionable,
for if the whistle were not sufficient the company alone was
responsible for it. The conductor had nothing to do with
furnishing the whistle and is not answerable for its defects.
¡I'dem
21. An instruction was also objectionable which permitted the
jury to find that the conductor should have used the outside
angle cock, which, as said before, evidence as to should not
have been admitted. Idem
22. Measure of Damages-Special Damages-Loss of Time-
Pleading. Temporary impairment of the power to earn
money is only another expression for loss of time; and in
order to recover special damages, such as loss of time, the
plaintiff must aver it in his petition. Idem
23. Crossing-Accident-Licensees-Where there was a foot cross-
ing in front of a passenger depot, over which from 25 to 75
people each day had crossed for many years, this use put
upon the company the duty of lookout, warning and reason-
able speed in the operation of its trains in reference to this
crossing. Louisville, Henderson & St. Louis Railway Com-
pany v. Lyons.
24. Duty as to Lookout, Warning and Speed.-Where the duty
of lookout, warning and reasonable speed is required, it is
negligence to omit the observance of either. Idem.........
25. Foot Crossing in Front of Depot-Warning. Where the use
by the public generally of a path across the tracks in front of
a depot was such as to put upon the company the duty of an-
ticipating the presence of persons on the track at this place,
the fact that its station whistle was sounded several hundred
feet from the depot was not sufficient warning to persons
on this crossing. Idem
26. Contributory Negligence-Effect
of. Although a railroad
company may be guilty of negligence, yet if the injured
party is guilty of such contributory negligence as that ex-
cept for his negligence the accident would not have happen-
ed, he cannot recover. Idem.....
603
27. Contributory Negligence-Question for Jury.-Where a
traveller approaching a public crossing stopped and looked
for a train, when one hundred feet from the crossing, but
did not afterwards stop or look or listen while walking
towards the track, and he was struck by a passing train at
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