(238 S.W.) JAMES et al. v. GEIGER et al. 1922.) Sheriffs and constables 102-Sheriff' held not required on request of bail to arrest one already in jail. house which they contemplated purchasing was in a respectable locality, next door to a church, and not far from the residence of the paternal grandfather and grandmother (Court of Appeals of Kentucky. March 24, of the children, and that the latter would be of great assistance to the mother in raising, training, and supporting the children; that the mother, because of the affliction of her oldest child and the extreme youth of the younger ones, could not go out into the world and make a living for herself and them, but was required to stay at home and give her whole time and attention to them; that the property in question was well worth the $3,000, and the title thereto was good, and the widow herself testified that she was willing to put in $1,000 of her own money to ward the purchase of the place, and have the title taken to her and her children proportionately. It might be, under normal conditions, that it would be better for this woman and her infant children to rent property at moderate prices rather than to expend any considerable portion of their funds in the purchase of a home; but from the evidence in this record and what is generally known about housing conditions in most communities, it appears that it would be certainly most inconsiderate, if not even much worse, to prevent this woman and the guardian of her infant children from providing for herself and them a moderately comfortable home, which it appears they cannot have in any other way. Under the provisions of section 4706, Kentucky Statutes, it is made lawful for persons holding funds in fiduciary capacity to invest the same in real estate, and under the facts and circumstances disclosed in this record we can see no legitimate objection to authorizing this guardian to accept the generous offer of the mother of these children, and put at least $2,000 of their money with $1,000 of her money and invest it in a home for them, taking the title in proportion to the money furnished. The rearing, training, and support of infant children is the most sacred trust confided to men or women, and nothing can be more important than that they, in their infancy, should be not only brought up with proper surroundings, but that they should be provided with a comfortable home, with nutritious food, and warm clothing. We doubt not that the best place these children can be reared is in the neighborhood or locality near to their paternal grandparents. For the reasons indicated, the judgment is reversed, with directions to enter a judgment authorizing the guardian to expend not exceeding $2,000 of the infants' money in the purchase of a home in conjunction with $1,000 to be furnished by their mother, and that the title be taken in proportion to the amount so furnished. to Where one at liberty under bail was arrested and placed in jail upon another charge, and while so confined surety obtained certified copy of bail bond and indorsed thereon, "I hereby authorize J. G., sheriff, execute this process on J. B. [the accused]," reading it to the accused and leaving him in the sheriff did all that was required of him by jail, without formal surrender to the jailer or the taking of a receipt, and surety could not recover from sheriff by reason of forfeiture of bond after accused's escape, under Cr. Code Prac. §§ 86, 87. Appeal from Circuit Court, Boyd County. Action by A. L. James and others against E. Poe Harris and J. L. Smith, both of CLARKE, J. Appellants, A. L. James, J. L. Rucker, and J. G. Rucker instituted this action against James E. Geiger, former sheriff of Boyd county, Ky., and the surety on his official bond to recover $2,000 damages for an alleged breach of the bond. A demurrer was sustained to the petition, and, upon plaintiffs declining to plead further, the petition was dismissed, and they have appealed. The following facts constitute the alleged breach relied upon for recovery: Appellants were sureties upon the bail bond for one John Branham in the sum of $2,000, which required him to answer an indictment in the Boyd circuit court at the January term, 1918. While Branham was at liberty under this bond, he was arrested and placed in jail in Boyd county upon another charge. While he was so confined and before the date he was required to answer under the bail bond one of his sureties thereon, A. L. James, obtained a certified copy of the bail bond from the clerk of the Boyd circuit court and made the following indorsement thereon: Boyd county, to execute this process on John "I hereby authorize J. E. Geiger, sheriff of Branham. This January 5, 1918. A. L. James." James then delivered this paper to Geiger, who in turn delivered it to his deputy, R. G. Brown for execution. On January 5, 1918, the deputy sheriff attempted execution thereof in the following manner as truthfully appears in his return, as amended on April 11th: For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexe Thereafter Branham escaped from jail and did not appear as required by the bail bond, and same was declared forfeited, and later the bail were required to and did pay $2,000 "By leave of court the undersigned amends | resting officer shall do more than make the his return herein, and for amendment states arrest, although that implies that he must that he executed the within attested copy of deliver the defendant, when arrested, to the the bail bond by reading same to John Bran- bail or the jailer, but it does not imply that ham, then and there confined in the county jail in Boyd county, Ky., leaving the said John the arresting officer for the bail shall take Branham in said county jail. This April 11, the receipt from the jailer, which must be 1918. J. E. Geiger, S. B. C., by R. G. Brown, done to relieve the bail of liability on the D. S." bond. When, therefore, the defendant is alecution is pending, it would seem that there ready in jail in the county in which the prosis no necessity whatever for the bail to have him rearrested by an officer in order to relieve themselves of liability upon the bond, ticns it is made their duty, and not the arsince they could do this, and under these secresting officer's, by simply delivering a certified copy of the bail bond to the jailer and taking a receipt as provided in section 86. Of course, if the officer did it for them as their agent, it would inure to their benefit, but the statute does not impose any such duty on the officer. and costs in satisfaction of the bond. After setting up these facts it is alleged in the petition that the sheriff, in violation of his duty, failed to make formal surrender of Branham to the jailer and to take a receipt from the jailer as required by law so as to relieve the plaintiffs from liability on the bond. Sections 86 and 87 of the Criminal Code provide the procedure to be followed by sure ties to surrender their principal and be discharged as sureties. They are as follows: "Sec. 86. At any time before forfeiture of their bond, the bail may surrender the defendant, or the defendant may surrender himself to the jailer of the county in which the prosecution is pending, but the surrender must be accompanied with a certified copy of the bail bond to be delivered to the jailer, who must detain the defendant in custody thereon as upon a commitment, and give a written acknowledgment of the surrender; and the bail shall thereupon be exonerated." "Sec. 87. For the purpose of surrendering the defendant the bail, at any time before judgment against them, and at any place within the state may arrest him; or by an indorsement upon a certified copy of the bail bond or recognizance, signed by them, may direct the arrest to be made by any peace officer in the state, or by any other person over twenty-one years of age designated in the indorsement." It will be noticed that section 86 provides how the sureties may relieve themselves of their liability on a bail bond by surrendering the defendant or when he surrenders himself to the jailer of the county in which the prosecution is pending; that is, they or some one for them must procure a certified copy of the bail bond, deliver it to the jailer, and take from him a written acknowledgment of the surrender. Section 87 provides only how the bail may procure his arrest "for the purpose of surrendering the defendant." These sections do not provide that the ar But, even if this were not true, as seems clearly the case, the indorsement on the bail bond made by Mr. James, one of the sureties, does not even direct, as the statute provides, that the officer to whom it was addressed should arrest the defendant, and without such direction so to do it was certainly not his duty, and we seriously doubt if he had the authority, to arrest the defendant. This is an extraordinary statutory provision which empowers one without official capacity to issue a warrant of arrest, and. when a person so empowered does not even direct the officer to arrest the defendant, it is hard to see how he could justify himself if he did so. The indorsement on the bail bond only authorized the sheriff "to execute this process on John Branham." It was not a process of any kind, and could not be unless and until the bail or some of them made it such by directing the sheriff or other person to arrest the defendant. The deputy sheriff, in attempting to "execute this process on John Branham," which was only a certified copy of the bail bond, read it to Branham, who was then in jail, and doubtless this is what he considered a proper execution of such paper, and we are not inclined to criticize his judgment about the matter. It is our judgment, therefore, that the court did not err in sustaining the demurrer to the petition. Judgment affirmed. (238 S.W.) BRESLIN v. SPRIGG. was paid $137.50 for services rendered to others within said dates. "The court finds as a matter of law that (Court of Appeals of Kentucky. March 21, plaintiff is entitled to recover the amount claimed in his petition, $1,333.33, less said sums above stated, which are $480, in the aggregate, with interest." cer [1] This finding is fully supported by the evidence, although there is evidence to the contrary. Sprigg testified that on a tain day, and at a certain place in Elizabethtown, he and Breslin entered into a verbal contract by which Breslin was to pay him $200 per month for his services, straight time, and was to provide him with work, and that in pursuance to that contract Sprigg entered upon the work and performed such as Breslin gave him to do, and, although he was offered other positions at good wages, Breslin persuaded him not to accept other employment but to continue in his employment; that he worked from September 15th to April 5th; that he had been paid only the sum of $442.50; and that there G. K. Holbert, of Elizabethtown, for ap- was then due him from Breslin the sum of pellant. $853.33. Sprigg was the only witness who H. L. James, of Elizabethtown, for appel-testified in chief for the plaintiff. lee. SAMPSON, J. Appellee, Sprigg, filed his action in the Hardin circuit court against appellant, Breslin, charging that he and Breslin had entered into a contract by which the latter had employed Sprigg to work for him at $200 per month, straight time, be ginning September 15, 1919; that pursuant to said contract he did begin to work for Breslin on the 15th of September, 1919, and continued in his employ up to the 5th day of April, 1920; that said services at the rate of $200 per month amounted to $1,333.33 for said time; and that he had been paid on said services only $442.50, leaving a balance due him of $890.83. Breslin took the stand in his own behalf and testified that he did not employ Sprigg by the month but only to do special jobs: that he did not promise to pay him $200 per month or any other specified sum; and that while Sprigg had done some work for, him he had paid him in full. In rebuttal a witness named Adams was called who testified that on one occasion Breslin had sent word by the witness to Sprigg that he wanted to see him and make a settlement, and this evidence supports the statement of the plaintiff Sprigg. This was all the evidence heard on the trial. The court decided that the plaintiff, Sprigg, was entitled to recover, and so adjudged. The evidence for the two parties was almost exactly contrary and By answer Breslin denied that he had em- numerically of the same strength, except ployed Sprigg by the month, or in any way, that Adams was called in rebuttal. It except to do some special work, and averred therefore became a mere matter of credibilthat he had paid him in full for all serv-ity, and the trial court decided that Sprigg ices rendered. A trial was had, a jury being had related the facts. waived, and the law and facts submitted to the court, who found for the plaintiff, Sprigg $853.33. In the judgment the court makes a separate finding of fact and law iu the following form: [2] It is a well-recognized rule that, where the facts are submitted to the court in a common-law action, the finding of the court is entitled to the same weight as the verdict of a properly instructed jury. Coleman v. Meade, 13 Bush, 358; Hall v. Roberts, 74 S. W. 199, 24 Ky. Law Rep. 2362. We would not be authorized, therefore, to disturb the finding of the court in this case unless it were flagrantly against the weight of the "The court finds as a fact that prior to September 15, 1919, in said year, the defendant employed the plaintiff, W. C. Sprigg, to begin work for him on September 15, 1919, straight time, at $200 per month; that said contract continued in force until and including April 5, 1920. The court further finds that the defendant paid said Sprigg $342.50 for services ren- Finding no error to the prejudice of appeldered within said time, and that said Sprigglant, Breslin, the judgment is affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes evidence. making several trips each day, known as the "Shifter." This suit was filed by the administratrix of decedent against defendant to recover damages for the alleged negligent killing of him by defendant, which negligence, as alleged, consisted in the failure of those in Railroads 370-Lookout not required in charge of the "Shifter" train to anticipate sparsely settled country district. In a sparsely settled country district, operators of trains need not anticipate the presence of persons on the track, and take precautionary measures to prevent a collision with them, though during the day and night persons to a number variously estimated at from 15 to 150 there walk on the track. the presence of decedent upon the track, and to take the necessary precautions for his safety, since it was averred that he was at a place on the track where, because of the acquiescence in the use of it by pedestrians, his presence should have been anticipated. Appropriate pleadings made the issues, and upon trial there was a verdict in favor of Appeal from Circuit Court, Breathitt plaintiff for the sum of $17,000, which this County. Action by Samuel B. Stidham's administratrix against the Louisville & Nashville Rail road Company. Judgment for plaintiff, and defendant appeals. Reversed, with directions for new trial. See, also, 187 Ky. 139, 218 S. W. 460. Benjamin D. Warfield, of Louisville, and O. H. Pollard, of Jackson, for appellant. court reversed in an opinion reported in 187 Ky. 139, 218 S. W. 460, upon the two grounds that the proof failed to establish any negli gence against the defendant, i. e., that the use of the track at the place where decedent's body was found was not shown to be such as required the company to anticipate the presence of persons thereon or to take any precautionary measures for their protection, and that the proof failed to show that decedent was killed by a collision with any E. C. O'Rear and William L. Wallace, both of Frankfort, and Ryland C. Musick, of Jack-train of defendant, much less by the only son, for appellee. THOMAS, J. Between 4 and 5 o'clock in the early morning of March 16, 1917, the dead body of Samuel B. Stidham was found lying face downwards in a path just out from the ends of the cross-ties on a fill upon which was the track of the appellant and defendant below, Louisville & Nashville Railroad Company, and on that part of its road running from Jackson, in Breathitt county, to Hazard and other places in Eastern Kentucky, and a little less than two miles from the corporate limits of Jackson, the point being between 300 and 400 yards north from a way station called Dumont, from which station there is a spur track running to the town of Quicksand, about one mile distant and where there is located a large saw milling operation. The body was found a few feet from a cattle guard; there was a dent in the skull about the size of a silver quarter of a dollar, and some scratched places on the face, and the nose was mashed. There was a bruised place on one of the legs, and also one across the back near the waist line. Some of the witnesses saw some small red spots on the ends of some of the nearby ties which they took to be blood, but the first ones to reach the body said they saw no blood except what had accumulated under the face. At the time the body was found it was stiff, and, according to the opinions of some of the witnesses. death had occurred some five or six hours beforehand. At that time there was a local train which operated between Jackson and Quicksand, one which the petition alleged produced it; and it was held that the court erred in failing to direct a verdict for defendant. After the return of the case plaintiff amended her petition by alleging that those in charge of the "Shifter" train actually saw decedent's presence upon the track in time by the exercise of ordinary care to have prevented a collision with him, and they negligently failed to do so. That pleading was denied, and upon trial there was a verdict in favor of plaintiff for the sum of $15,000, which the court declined to set aside on the motion for a new trial, and from the judgment pronounced upon the verdict this appeal is prosecuted. The chief contention made by defendant for a reversal of the judgment is the same as it made and we sustained on the former appeal, which is that the court erred in failing to sustain its motion for a peremptory instruction. Complaint is also made of the instructions of the court to the jury as well as of evidence introduced by plaintiff, and we think the record justifies each of the complaints, but in the course of the opinion we will discuss only such as we deem proper. According to the record Jackson is a town of between 1,500 and 2,500 people, according to the estimates of the witnesses who testified to the fact, while the town of Quicksand, three miles from Jackson, has a population of between 400 and 1,000, according to the same character of testimony. There is no town at all at the place, Dumont, but between it and Jackson there are three creeks running into the Kentucky river, and up and For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (238 S.W.) to the highest estimate, was between 25 and 30 persons. We have been cited to no case holding that the use of the track by pedestrians to the extent indicated was sufficient to impose upon the operators of trains the duty to anticipate the presence of persons thereon, and to take the required precautionary measures to prevent a collision with them. The cases cited and relied on by counsel for plaintiff, an il down them there are a few scattering houses located all the way from near the right of way to four miles therefrom. These facts appeared in the record when first before us, and also the statements of witnesses that a "great number of people" walked the track both during the day and the night at the place where the decedent's body was found, which is near halfway between Jackson and Quicksand, and in a very rugged portion of the country, as shown by a number of photo-lustration of which is C. & O. R. Co. v. Wargraphs introduced at the trial and brought here with the record. It is a sparsely settled portion of country, and is rough and mountainous. The cattle guard near which the body was found is shown to be a short distance from an abrupt curve around a point of the mountain which runs up to the south fork of the Kentucky river. On one side of the roadbed in rounding that point is a precipitous rock bluff, while on the other is an embankment running down to the river, and the headlight on an engine would not shine down the track until it rounded that curve, the decedent being killed, according to the theory of plaintiff, between 9 and 10 o'clock on the 15th of March, while the "Shifter" train was making its last trip for the day from Quicksand to Jackson. Under these circumstances we said in the first opinion referred to: "Hence not only is there no proof of negligence, but it is mere matter of speculation and guesswork as to how or by what agency decedent lost his life and the court erred in not directing a verdict for the defendant." It was also held in that opinion that the cases of Caldwell's Adm'r v. Chesapeake & Ohio R. R. Co., 155 Ky. 609, 160 S. W. 158; Stuart v. N. C. & St. L. Ry. Co., 146 Ky. 127, 142 S. W. 232; Sutton's Adm'r v. Louisville & Nashville R. R. Co., 168 Ky. 81, 181 S. W. 938; and Hearell, Adm'r, v. I. C. R. Co., 185 Ky. 41, 213 S. W. 561-furnished facts much stronger for the respective plaintiffs than the facts appearing in this case as then presented, but in each of them a peremptory instruction for the defendant was approved. nock's Adm'r, 150 Ky. 74, 150 S. W. 29, are instances where the injury occurred within or immediately near to an incorporated town, and where the evidence showed almost constant travel at or about the same hour of the day as that of the injury. It is true that we have held in a number of cases that the fact of the accident happening within or without an incorporated town is not decisive of the question, but nevertheless it so happens that the places of the accident in those cases were near an incorporated town in a thickly populated community, and the travel was so large as to require the application of the rule. We have been cited to no case, nor have we been able to find one, which holds that the railroad track in a sparsely settled country, a considerable distance away from any incorporated town, may be converted by the public in general into a public highway so as to require those operating trains to an ticipate the presence of persons upon the R. R. Co. v. Nipp's Adm'x, 125 Ky. 49, 100 "But the operation of this rule [anticipating the presence of persons on the track] has been confined to cities and thickly populated communities, and has not been, and will not be, extended to rural communities or sparsely settled regions, although footpaths crossing the track and the right of way may be used by a large number of persons each day." In that opinion it is recognized that in country districts traversed by lines of railway it is nothing uncommon for a number of persons going to schoolhouses, churches, stores, and other public places to travel the right of way and upon the railway tracks, even with the acquiescence of the company, in that it takes no affirmative steps to prevent it, yet it is therein said: The only additional testimony on the last trial, on the issue as to the use of the road at the particular point, consisted in estimates of the witnesses (some of whom testified on the former trial) as to the number of persons, according to their opinion, who walked the track at the point in question during each 24 hours, and some of them gave their estimates as to the number so using the track between the hours of 7, 9, and 10 o'clock at night. These estimates varied as to the number of persons traveling the track during the entire 24 hours from 15 to 30 persons, according to the witness Louis Hays, to 100 or 150, according to the witness Clay Watkins, and the greatest number who traveled the track In the case of Adkins' Adm'r v. B. S. & C. at night between 7 and 10 o'clock, according | R. Co., 147 Ky. 30, 143 S. W. 764, a demurrer "But this use by individuals of the tracks and right of way of railroad companies in places of this character [as stated above] does not convert them from trespassers into licensees. Nor does it impose upon the company thus use the tracks and right of way do so at any duty of lookout or warning. Persons who their peril." |