been violated by the amendment of the articles of incorporation, or by the sale of the bridge property to the Louisville & Nashville Railroad Company; for the city had no right to demand that the Bridge Company should continue in existence, and thus continue to be liable for a franchise tax to it. When it collects its tax on the physical property its contract right is satisfied. The franchise of the Henderson Bridge Company is now owned by the Louisville & Nashville Railroad Company, and the value of this franchise goes to swell the value of the franchise of the Louisville & Nashville Railroad Company. The fact that the city does not receive as much tax from the railroad company as it did from the Bridge Company is no more material than if the city got a larger sum from the railroad company than it would get from the Bridge Company. Taxation laws must be uniform, and it is impossible to avoid occasional inequalities. The Bridge Company having the legal right to sell out and having exercised its right in a legal manner, the city cannot complain.

Under sections 4096 and 4098, Kentucky Statutes, the physical properties of the Bridge Company are to be valued "for the purpose of being operated as a carrier of freight and passengers," including engines and cars, depot grounds and improvements and other real estate. When the physical property of the Bridge Company is assessed under this rule and the city collects its taxes on the assessment it collects taxes "on the approaches to said bridge or any building erected by said Bridge Company within the corporate limits of said city, the bridge itself and all appurtenances thereto, within the limits of said city," as provided in the ordinance. The city has no vested right to anything more. If the Legislature should repeal sections 4077-4081, Kentucky Statutes, and make no provision for a franchise tax, leaving the law as it was in 1882 when the contract was made, the city could not complain.

Judgment reversed and cause remanded for a judgment as above indicated. Judge Turner dissents.

Chesapeake & Ohio Railway Company v. Robbins.

(Decided June 20, 1913).

Appeal from Bath Circuit Court.

Damages-Overflow from Obstruction of Creek-Negligence Omission to Pass on Question Raised by Cross Appeal-Extension of Opinion. In the original opinion in 154 Ky., 387, the question raised by appellee's cross appeal was inadvertently overlooked. The claim for damages arising out of the overflow of the personal property was properly pleaded, and its consequent injury sufficiently alleged. There was no question of limitation, and appellee's right to a recovery of damages for the injury to the personal property is apparently as valid as was her claim for damages for injuries sustained to her real estate, and the lower court erred in sustaining the demurrer to the amended petition, so the judgment sustaining the demurrer to the amended petition is reversed, though the judgment from which the main appeal was prosecuted was properly affirmed.

SHELBY & SHELBY, LEWIS APPERSON, R. N. NORTHCUTT and H. C. GUDGELL for appellant.

C. W. GOODPASTER, JOHN A. DAUGHERTY for appellee.

EXTENSION OF THE OPINION BY JUDGE SETTLE-Reversing on Cross Appeal.

In the opinion handed down in this case we inadvertently overlooked and omitted to pass on, the question raised by appellee's cross appeal. It appears from the record that after the principle issues had been completed, appellee filed an amended petition, wherein it was, in substance, alleged that at the time of the first overflow of her lots and houses by the alleged obstruction of the waters of Salt Lick and Mud Lick Creeks from the abutments, piers and embankments, connected with apellant's bridges over those streams, she owned and had in one of the houses household goods of value, which were subjected to overflow and thereby damaged to the amount of $205. For some reason not stated in the record, the circuit court sustained a demurrer to the amended petition, to which appellee, at the time excepted, and the cross appeal presents for review this ruling. We think the court erred in sustaining the demurer. The claim for damages arising out of the overflow of appellee's personal property was properly pleaded and its consequent injury sufficiently alleged. There was no question of

limitation, and appellee's right to a recovery of damages for the injury to the personal property, is apparently as valid as was her claim to damages for the injuries sustained, from the same cause, and at the same time, to her real estate. If she had a right of action for the latter she has for the former, on the grounds stated in the original opinion. At any rate she should have been allowed an opportunity to establish her right to the damages to the personal property claimed. So while the judgment, from which the main or original appeal was prosecuted, was properly affirmed, the judgment sustaining the demurrer to the amended petition must be and is reversed on the cross appeal, and remanded for a trial as to the question of damages claimed to the personal property.

1.

2

3.

Campbell v. Mobile & Ohio Railroad Company.

Campbell v. Same.

(Decided June 20, 1913).

Appeals from Hickman Circuit Court.

Railroads-Action for Killing of Live Stock at a Crossing-Presumption of Negligence.-In an action against a railroad company for the killing of live stock at a grade crossing, the burden being upon the company to overcome the presumption of negligence, and it having failed to show a compliance with section 786 of the Kentucky Statutes, that presumption was not

overcome.

nals.

Railroads-Negligence Imputed by Section 809 Ky. Stats. SigOn the question of whether a railroad has relieved itself of the negligence imputed to it by section 809, Ky. Stats., where cattle are killed at a highway grade crossing, until it has shown that it gave the necessary signals as provided in section 786, there has been put one opinion by this court, and it seems to assume that where the company sought to overcome the prima facie case against it, that it must show that the signals for the crossing were given as required by the section. (See 22 R., 666). Railroads Signals at Crossings-Section 786 Ky. Stats.-There is nothing in the language of section 786 of the Kentucky Statutes from which it might be inferred that its requirements were intended only for the protection of human beings; it is sufficiently broad to hold the company negligent for a failure to observe its provisions whether men or stock may be killed or injured at a grade crossing if its provisions are violated.

BENNETT, ROBBINS & THOMAS for appellant.

E. T. BULLOCK for appellee.

OPINION OF THE COURT BY JUDGE TURNER-Reversing.

On the morning of September 16, 1911, about 3:20 a. m., appellee's South-bound fast train running at the rate of fifty-five miles an hour killed two horses at a grade crossing in Hickman county.

One of the horses belonged to appellant, R. L. Campbell, and the other to Mrs. Jennie Campbell. The two actions by agreement were heard together in the lower court, and will be heard together here.

The court after the introduction of all the evidence gave a peremptory instruction to find for the defendant, and the plaintiffs appeal.

The court placed the burden of proof on the defendant, and it introduced the engineer and fireman in charge of the train, who were the only eye witnesses to the occurrence. They stated in substance, that the train was a little late and was running about fifty-five miles an hour; that the crossing in question is on a curve, and North of the crossing and in this curve is a cut; that upon the occasion in question, the fireman was on the East side of the cab, which was the outside of the curve, and the engineer was on the West side; that in the dirt road just East of the railroad crossing was a depression, and that by reason of the cut in the curve and the depression in the dirt road, stock approaching the crossing from the East on the dirt road could not be seen for a very great distance. The fireman stated that he was looking out and when from 60 to 100 feet from the crossing, for the first time, he saw several horses rapidly running on the dirt road toward the crossing from the East, and immediately notified the engineer, but that before anything could be done, and almost simultaneously with such notification the engine and horses met on the crossing; that between the time he notified the engineer and the collision, there was no time to give the stock signal. They state they did not give the stock signal or put on the brakes after discovering the stock because there was no time to do so. The train was equipped with an electric headlight, and modern air-brakes which were in perfect order. Neither of them stated whether or not the signal for the crossing was given as required by section 786 of the Kentucky Statutes.

The evidence of the plaintiffs was given by witnesses who were not present at the time of the injury, and who were not at the place of the injury for several hours thereafter; but they undertake to state such facts locating the bodies of the two horses, the places where blood was seen, and other signs indicating the point where the horses were struck and that certain tracks were seen on the West side of the railroad indicating that some horses had approached from that side and that no tracks were then discernible approaching the crossing from the East side; and from these circumstances it is argued that the physical facts disclose a state of case which justified a submission to the jury of the question of negligence. The evidence further shows that each of the horses were struck on the rump by the engine and thrown to the West side of the track; this fact, if it shows anything, is an indication that the horses were going from East to West as testified to by the fireman and engineer, and were almost across the track when struck; if they had been struck on the rump while going from West to East, it seems that they would have been knocked off on the East side of the track.

The engineer and fireman are unimpeached, their testimony is clear, explicit and easily understood and they fully agree about it. From our understanding of the physical facts and the location of the ground, they furnish no sufficient ground for submission of the question of negligence to the jury in the face of the testimony of the engineer and fireman, if there was no negligence before the train men discovered the horses.

Section 809 of the Kentucky Statutes provides, among other things:

"And the killing or injury of cattle by the engine or cars of any company shall be prima facie evidence of negligence and carelessness on the part of the company, its agents and servants."

Section 786 of the Kentucky Statutes is as follows:

"Every company shall provide each locomotive engine passing upon its road with a bell of ordinary size, and steam whistle, and such bell shall be rung, or whistle sounded, outside of incorporated cities and towns, at a distance of at least fifty rods from the place where the road crosses upon the same level any highway or crossing, at which a sign-board is required to be maintained, and such bell shall be rung or whistle sounded contin