whose property may abut on a street on which a railway may be granted a right of way, from recovering from such railway any damage that may be done to said property by the occupation or uses of said street by such railroad."

and other regulations as do not conflict with general laws." The power claimed for the city of Prestonsburg is not conferred by the subsections of the statute referred to.

In C., N. O. & T. P. Ry. Co. v. Commonwealth, 126 Ky. 712, 104 S. W. 771, 31 Ky. In C. & O. Ry. Co. v. Maysville, 69 S. W. Law Rep. 1113, 17 L. R. A. (N. S.) 561, we 728, 24 Ky. Law Rep. 615, the validity of an held that these provisions, which apply equalordinance of the city of Maysville, requiring ly to cities of the sixth class (section 3704, the erection of safety gates at points where subsec. 7), together with those of section 786, the streets were crossed by the railroad, was Kentucky Statutes, were broad enough to alattacked by the Chesapeake & Ohio Railway low the adoption by the board of council of Company. Among other objections to the or- police regulations, not conflicting with gendinance, it was urged that the city council eral laws, by which a railroad company may had no authority to pass it, and that only be required to use such reasonable precauthe Railroad Commission of the state could tions as to the speed of its trains, the giving compel the erection of safety gates at such of signals in approaching a crossing or passcrossings. In overruling this contention we ing through its limits, as may be needful for said: "Subsection 25 of section 3490, Ken- the safety of the public. Indeed, such autucky Statutes, which is a provision of the thority is expressly conferred by section 786, charter of cities of the fourth class, to which Kentucky Statutes, which provides: "Every appellee belongs, expressly provides that the [railroad] company shall provide each locoboard of council may compel any railroad to motive engine passing upon its road with a erect and maintain gates at any and all street bell of ordinary size, and steam whistle, and crossings. It is clear that under this provi- such bell shall be rung, or whistle sounded, sion of the charter the city council were au- outside of incorporated cities and towns, at a thorized to adopt the ordinance complained distance of at least fifty rods from the place of. The Railroad Commission are only au- where the road crosses upon the same level thorized by section 774, Id., to require the any highway or crossing, at which a signerection and maintenance of gates at high- board is required to be maintained, and such way crossings within a mile of the corporate bell shall be rung or whistle sounded continlimits of any city or town of this common-uously or alternately until the engine has wealth. The city authorities are exclusive- reached such highway crossing, and shall ly clothed with the power to regulate this matter within the city limits."

As the authority conferred upon cities of the fourth class by the section, supra, is not found in any provision of the charter of cities of the fifth class, it is obvious that the council of the city of Prestonsburg were without authority to pass the ordinance of which appellant complains. We are not called upon to decide whether the Legislature, as it was clearly competent for it to do, should have conferred upon the city council of cities of the fifth class authority to compel railroads to erect and maintain gates at street crossings within the city limits, but whether it has granted such authority, or whether such authority is implied from any provision found in the statutes with reference to cities of that class.

give such signals in cities and towns as the legislative authorities thereof may require."

But it has never been held in this jurisdiction that under and by virtue of such general police powers the municipality may compel a railroad company to erect and maintain, at its own expense, safety gates at crossings within its limits. Such power must be expressly conferred, as provided by subsection 25, § 3490, Kentucky Statutes.

In P., C., C. & St. L. Ry. Co. v. Town of Crown Point, 146 Ind. 421, 45 N. E. 587, 35 L. R. A. 684, the question involved was as to the power of incorporated towns to compel, by ordinance, a railroad company to keep a watchman and erect and maintain gates at points where the railroad tracks cross a street, and impose penalty for failure so to do. Authority to pass the ordinance was claimed under sections 3333, 3367, Horner's (Indiana) Revised Statutes 1897, whereby towns are given "exclusive control over the streets, alleys and highways and bridges within the incorporated limits of such towns." In the opinion it is said:

It is insisted for appellee that authority to pass the ordinance in question is conferred by subsections 1 and 7, § 3637, Kentucky Statutes, applicable to this class; also from the general police power appertaining to the government of such a municipality. The first of the subsections referred to provides: "The "It is clear said sections 4357 (3333) and city council of such city shall have power to 4404 (3367), supra, do not in express words pass ordinances not in conflict with the Con- grant the power to pass the ordinance in stitution or laws of this state or of the Unit- question. Can such power be fairly implied ed States." The last declares that the coun- from those expressly granted, or is such cil is empowered "to do and perform any power essential to the declared objects or and all acts and things necessary and proper purpose of the corporation? We think not. to carry out the provisions of this chapter, It may be admitted that incorporated towns and to exact and enforce, within the limits have the power to regulate public travel

fourth class, whose charter (section 3490, subsec. 25) gives its council a supervising control of and over the use of its streets and public grounds by railroads, and power to compel them to erect and maintain gates at any or all street crossings, we had under consideration the validity of an ordinance which required a railroad company to wall and arch its road upon its own ground within the city limits, and we held that, while the city council might, under the authority conferred by its city charter, by ordinance, exercise a reasonable control over the manner in which the railroad company constructs or operates its railroad upon or in crossing its streets or public grounds, it could not, in the absence of express statutory authority, control the manner of its constructing its road on its own ground, although situated within the corporate limits of the city.

reasonably safe at all times for those who go upon them, and to enact ordinances for the protection of health, life, and property. It is true that the persons and property of those who attempt to cross a railroad track are subject to risk. The question, however, is not whether the incorporated town has a right to protect its inhabitants or their property, but whether it has the right to compel the railroad company to do so at its own expense. The propositions are essentially different. It is not enough to show that incorporated towns have been given the power to regulate travel upon the streets, and to protect life and property. It may be that, under the provisions of the statute above set forth, incorporated towns have the power to keep watchmen and erect and maintain gates at points where a railroad crosses the streets of the town; but this, if true, would not uphold the ordinance in question. Under such a power, if it exists, the watchman We have not considered the question of must be employed and the gates erected and expense to which appellant would be submaintained at the expense of the town. To jected by the enforcement of the ordinance, sustain the ordinance it must be shown that its complaint as to the unreasonableness of they have been empowered to compel rail-its provisions, or the oppressive effect of road companies, at their own expense, to em- their enforcement, but must hold it unconploy a watchman and erect and maintain stitutional and void, because of the want of gates at each street crossing-the agency authority in the council of the city of Preshere invoked to accomplish the object. tonsburg to pass it. Such authority may yet * There is a wide difference between be conferred by the Legislature upon cities the power to compel the employment of of the fifth and sixth class, but until it is watchmen and the erection and maintenance done they must content themselves with the of gates and the power to regulate the speed passage of such proper ordinances as will of cars within the corporate limits of a compel railroad companies, in running trains town. The object in the latter case is to be through their limits and approaching crossattained by the management and use by the ings therein, to adopt such reasonable sigcompany of its machinery, and such regula-nals, and such reasonable precautions as to tion relates to how the company shall manage its own property within the corporate limits; while the requirement of gates and watchmen relates to how the company shall compel or induce others upon the streets to regulate themselves and their property when approaching and about to cross its tracks. Sections 4357 (3333) and 4404 (3367), supra, may authorize an ordinance, not unreasonable in its terms, to prevent the standing of cars and other obstructions on railroad tracks at street crossings, so as to obstruct the same, or an ordinance regulating the speed of railroad trains within the corporate limits of a town, but most certainly not an ordinance to compel the railroad company to keep, at its own expense, a watchman and to erect and maintain a gate on each side of the track at each street crossing. It follows that the court erred in overruling the demurrer to the complaint. Judgment reversed. Cooley, Constitutional Limitations, 233, 234; Minturn v. Larue, 64 U. S. (23 How.) 435, 16 L. Ed. 574; Bloom v. Xenia, 32 Ohio St. 465; Toledo, W. & W. R. Co. v. Jacksonville, 67 Ill. 37, 16 Am. Rep. 611. In City of Versailles v. Kentucky Highland R. R. Co., 153 Ky. 83, 154 S. W. 388, the city of Versailles being a city of the

speed, as will give warning of their coming and reasonable opportunity to persons using the streets to avoid collision with them.

For the reasons indicated, the judgment is reversed and cause remanded, with directions to the circuit court to perpetuate the injunction.

UNITED IRON WORKS CO. v. BOWLING. (Court of Appeals of Kentucky. May 9, 1913.) 1. EVIDENCE (§ 598*)-WEIGHT OF EVIDENCE -QUESTION FOR JURY.

The jury may accept the testimony of a party unsupported by any other witness and contradicted by the testimony of two employés of the adverse party.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. 8 2450-2452; Dec. Dig. § 598.*] 2. MASTER AND SERVANT (8 190*)-FELLOW SERVANTS WHO ARE.

Where a servant superior in authority ant inferior in authority, the two were not felcaused by his gross negligence injury to a servlow servants, though at the time the former was temporarily engaged in the same kind of service as the injured servant, but without laying aside his authority.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 449-474; Dec. Dig. § 190.*]

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r indexes

3. MASTER AND SERVANT (§ 216*)—INJURY TO SERVANT-ASSUMPTION OF RISK.

An employé in the bottom of a tank adjusting in their proper places timbers of considerable size which were lowered to him from the top does not assume the risk of injury by timbers falling on him, where he may not perform his duties, and at the same time see to the lowering of the timbers, but he may trust the man above him to lower the timbers properly, especially when the man above him is the superintendent directing the work.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. 88 567-573; Dec. Dig. 216.*]

Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Fourth Division. Action by I. N. Bowling against the United Iron Works Company. From a judgment for plaintiff, defendant appeals. Af. firmed.

Duffin, Sapinsky & Duffin, of Louisville, for appellant. John C. Strother and Strother & Hamilton, all of Louisville, for appel

lee.

SETTLE, J. Appellee recovered in this action in the court below a verdict and judgment against appellant for $540 in damages for an injury to his person alleged to have been caused by the gross negligence of its servant, appellee's superior. Appellant complains of the recovery, hence this appeal.

no reason is apparent for disturbing the verdict; therefore, there is no merit in appellant's complaint that the trial court erred in refusing the peremptory instruction asked by it.

It is insisted for appellant that its foreman, Royce, in performing the duties of Koch, was with respect to appellee a fellow servant, hence, if appellee's injury was caused by his negligence, he should not have been permitted to recover; furthermore, that the trial court erred in refusing an instruction offered by it, which would have left it to the jury to determine whether Royce was a fellow servant.

[2] The refusal of this instruction was not error, for there was no evidence upon which to base it. We have repeatedly held that where the servant, superior in authority to the one injured, by his gross negligence at the time of the injury he is temporarily causes the injury of the latter, the fact that engaged in the same kind of service or character of work with the injured servant, does In I. C. R. not make them fellow servants. R. Co. v. Coleman, 59 S. W. 13, 22 Ky. Law Rep. 878, we held that where a yardmaster and a laborer in the employ of the railroad company were engaged in manual labor on a lever, and the laborer was injured through When injured, appellee was at work in a the gross negligence of the yardmaster, the refrigerator tank in process of construction doctrine of fellow servant did not apply and for use in the Henry Watterson Hotel, Louis- the railroad company was liable for the inville. He was in the bottom of the tank jury. Board v. C. & O. Ry. Co., 70 S. W. adjusting to their proper places timbers 625, 24 Ky. Law Rep. 1079. The authorities of considerable size and weight, which were relied on by appellant's counsel are not in lowered to him from the top of the tank, conflict with these cases, and one of them, three or four feet above him. The space Ashland Coal & Iron Co. v. Wallace, 101 Ky. in which appellee labored was so limited 626, 42 S. W. 744, 43 S. W. 207, is discussed that he had to remain in a stooping position in I. C. R. R. Co. v. Coleman, supra, and its in performing his work. While in this sit- dissimilarity to the latter case shown. uation appellant's foreman, Royce, who was directing appellee and one Koch in the work of constructing the tank, and was temporarily performing some of the duties of Koch, whom he had excused for an hour to attend to some outside matter, let one of the timbers he was attempting to lower into the tank fall to the bottom, which struck and badly injured one of appellee's legs.

[1] It is claimed by appellee that Royce was grossly negligent in thus allowing the timber to fall upon him, and such was the evidence in his behalf, furnished by his testimony alone. On the other hand, Royce, and another employé of appellant, who was present, testified that the falling of the timber was not caused by Royce's negligence, but was accidental and could not have been prevented by the exercise of ordinary care on his part. This evidence all went to the jury, and they had the right to accept appellee's testimony, though unsupported by any other witness, instead of that of appellant's two witnesses. This they did, and

In the Wallace Case there was a contrariety of evidence as to the authority of Mayberry, the alleged superior, through whose negligence it was claimed the plaintiff was injured, hence it was held that the question of authority was properly submitted to the jury. In the Coleman Case there was no such conflict in the evidence, and the same is true of the instant case. Although Royce temporarily performed some of the duties of Koch, his authority as appellant's superintendent was not laid aside. He continued to direct appellee in his work and remained his superior.

[3] There was no error in the court's refusal of the instruction on the question of assumption of risk. Such an instruction was not authorized by the evidence. In the nature of the case there could have been no assumption of risk. Appellee was working in a place where he could not see what was going on above him; he could not perform his duties and at the same time see to the lowering of the timbers from above. Necessarily he had to trust the man above him

to do that properly, and to take it for grant- | and that at the same time he owed the plained that he would use ordinary care in its tiff a balance of $7.27 for goods delivered durperformance. Especially was this true when ing the fall season of 1904, making a total the man above was his superintendent and balance of $865.05 then due the plaintiff. directing him in his work. The instructions of the court correctly gave the jury all the law of the case.

The record is free of reversible error; agreed value of $385.25, which, when added therefore the judgment is affirmed.

By the ancient common law the original writ appropriate to the cause of action was first sued out, and the declaration was afterward filed; and this course was also permitted at law by the former practice in this The only question before us, therefore, is state. Section 39 of the Code of Practice the sufficiency of the petition. The petition provides, however, that an action is comalleges that on July 1, 1905, Adams, as sell- menced by filing, in the office of the clerk ing agent for the plaintiff, had on hand fer- of the proper court, a petition stating the tilizers theretofore furnished to him by the plaintiff's cause of action; while section plaintiff, amounting to the sum of $857.78, 90 provides that a petition must state facts For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

which constitute a cause of action in favor
of the plaintiff against the defendant.
In 31 Cyc. 101 the general rule by which
the sufficiency of a petition under our re-
formed method of pleading is to be tested
is stated as follows: "The test of sufficiency
frequently applied is whether the declara-
tion informs defendant of the nature of the
demand, so that he may not be misled in the
preparation of his defense. If it does this,
it is sufficient, although inartificially drawn.
If facts are alleged which entitle plaintiff
to any relief in the court where the action
is commenced, the pleading will be held to
state a cause of action, even though the
pleading contains a demand for relief to
which plaintiff is not entitled. And if suffi-
cient facts are stated to make a good cause
of action, the pleading is not vitiated by
the further averment of legal conclusions
respecting the effect of the facts alleged.
Vagueness, uncertainty, or other formal de-
fects will not be deemed fatal under rules
permitting liberal interpretation, if a good
cause of action can be gathered from the
pleading."

In the case at bar the effect of the petition is that on July 1st the defendant owed the plaintiff $865.05 for goods sold and delivered by the plaintiff to the defendant; that in the subsequent contract of 1905 defendant expressly promised to pay for any goods which remained in the defendant's hands upon any previous settlement; and that there remained in defendant's hands from a previous settlement goods amounting to $865.05, which includes the amount sued for. This was an express allegation of indebtedness, with a promise by defendant to pay it, and stated a cause of action. If if was not sufficiently specific, the defendant had the right to call for a bill of particulars showing the items; but as he did not do this, but waived that right by answering to the merits, he thereby treated the petition as sufficiently definite to inform him of the nature of the demand against him.

We are of opinion the circuit court erred in sustaining the demurrer to the petition. Judgment reversed and cause remanded, with instructions to overrule the demurrer to the petition, and for further proceedings.

and that none of them had any ill will towards him, or any motive for placing the caps in the journal, and that a chest had been broken open and caps taken therefrom, was admissible to render less probable the inference that an employé had placed the caps in the journal.

[Ed. Note.-For other cases, see Explosives, Cent. Dig. §§ 4, 5; Dec. Dig. § 8.*1 2. NEW TRIAL_(§ 108*) - GROUNDS - NEWLY DISCOVERED EVIDENCE.

A new trial for newly discovered evidence will not be granted unless the evidence is of a decisive character, and such as to render a different result reasonably certain.

Cent. Dig. §§ 226, 227; Dec. Dig. § 108.*]
[Ed. Note. For other cases, see New Trial,
3. NEW TRIAL (§ 108*) — GROUNDS-

DISCOVERED EVIDENCE.

NEWLY

Newly discovered evidence relied on as a ground for new trial in an action for injuries to a child by the explosion of nitroglycerine caps found in the journal of a steam shovel of defendant held not of such a decisive character as to render a different result reasonably certain.

[Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 226, 227; Dec. Dig. § 108.*]

Appeal from Circuit Court, Christian County.

Action by William Cooper Weaks, by Mrs. Willie Weaks, his guardian, against the McDowell Construction Company and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Breathitt & Breathitt and Downer & Rus sell, all of Hopkinsville, for appellant. Selden Y. Trimble and Trimble & Bell, all of Hopkinsville, for appellees.

CLAY, C. Plaintiff, William Cooper Weaks, suing by his guardian, Mrs. Willie Weaks, brought this action against the McDowell Construction Company and the Louisville & Nashville Railroad Company to recover damages for personal injury. The jury returned a verdict in favor of the defendants. Plaintiff appeals.

The Louisville & Nashville Railroad Company runs through the city of Hopkinsville. It contracts with the McDowell Construction Company to widen and deepen a certain cut in the suburbs of that city. The cut runs for a considerable distance, and in some places is as deep as 28 feet. On the west and southwest side of the cut, and near to it, there is a well-beaten path which has been used for many years by pedestrians in going to and from their places of business. Neither the railroad right of way nor the ground WEAKS v. MCDOWELL CONST. CO. et al. on the west side of the cut is inclosed. In (Court of Appeals of Kentucky. May 9, 1913.) carrying out its contract the McDowell Con1. EXPLOSIVES (§ 8*)-DANGEROUS PREMISES-struction Company used two steam shovels, INJURY TO CHILDREN-EVIDENCE-ADMISSI- each of which weighed many tons. Each of BILITY.

the steam shovels was on regular car trucks Where, in an action for injuries to a child by the explosion of nitroglycerine caps found in and wheels, and self-propelling. When stathe journal of a steam shovel of defendant, the tionary, the steam shovels were used for the theory of plaintiff was that an employé of de- purpose of lifting rock, earth, etc. As in the fendant had negligently placed the caps there, case of other car wheels, the ends of the axbut there was no direct testimony in support of the theory, evidence that the employés of de- les were fitted into journals, which were fendant knew that the caps were dangerous, filled with waste, oil, etc., for lubricating