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If cattle or other damages may be

stock are killed,

§ 2. If by the locomotives or cars of a railroad company cattle or other stock shall be killed or injured on the track of said road adjoining the lands belonging to or in the occupation of the owner of such cattle or stock, who has not received compensation for fencing said land along said road, the loss shall be divided between the railroad company and the owner of such cattle or stock, unless the killing or injury arose from the willful act, or carelessness, or negligence of the agents or servants of such company; in which case the whole loss shall be paid by such company.

section apply to all persons, companies, and cor

§ 3. If the life of any person or persons is lost or de- Provisions of first stroyed by the willful neglect of another person or persons, company or companies, corporation or corporations, their porations. agents or servants, then the widow, heir, or personal representative of the deceased, shall have the right to sue such person or persons, company or companies, corporation or

that the engineer served on a passenger, and the brakesman on a freight train, does not affect the reason and policy of implying, as between themselves, such associations, knowledge, and trust, as to have induced an undertaking mutually to risk all the contingencies which the ordinary skill and care of each other in his line of service could not avert. (Ibid.)

3. Gross neglect is either an intentional, or such a reckless disregard of security and right, as to imply bad faith, and therefore squints at fraud, and is tantamount to the magna culpa of the civil law, which, in some respects, is quasi criminal. (Ibid; L. & N. R. R. Co. vs. Filbern's adm'x, 6 Bush, 574.)

4. If the employee or agent complaining of hurt contributed to it by his own negligence, he cannot recover damages from the railroad company, unless its co-operating agent, charged with gross neglect, could have avoided the impending danger by the observance of ordinary diligence, notwithstanding the neglect of the complaining party. (Ibid; L., C. & L. R. R. Co. vs. Mahoney's adm'r, 7 Bush, 235.)

5. In an action against a railroad company for damages, for injuries sustained by a passenger, there being no proof of gross negligence or wanton recklessness, the assessment ought to be compensatory or indemnifying only, and not for smart money. (Kentucky Central Railroad Company vs. Dills, 4 Bush, 593.)

6. If the damage resulted to the passenger solely from the negligence of the company's agents, it is liable for compensatory damages; or,

If it resulted solely from the negligence or temerity of the passenger himself, he is entitled to nothing (L. & N. R. R. Co. vs. Sickings, 5 Bush, 1); or,

If it was a compound result of negligence on both sides, then, as the passenger's own fault was contributory to it, he can recover nothing, unless the managing agents saw his perilous condition, and might, by ordinary diligence, have prevented the injury. (Ibid.)

7. Railway companies are liable to strangers for the failure of their agents and employees to exercise ordinary diligence and care in operating their trains. (L. & N. R. R. Co. vs. Collins, 2 Duvall, 116.)

8. Whether the facts developed on the trial sustain the charge of willful neglect is the peculiar province of the jury to determine. (L., C. & L. R. R. Co. vs. Mahoney's administrator, 7. Bush, 235.)

The con

9. An action may be of that peculiar kind in which all the attendant circumstances of aggravation, which go to characterize the wrong complained of, may be given in evidence. dition of the family of the deceased may directly and essentially affect the question of damages. (Ibid.)

10. It is competent to prove the probable period of the natural life of the deceased by reference to a recognized American life-table. (Ibid.).

corporations, and recover punitive damages for the loss or destruction of the life aforesaid. (a)

Railroad companics to pay full

pay

§ 4. All railroad companies in this Commonwealth shall full damages to the owners of horses and other stock damages for kill they may negligently or carelessly kill or damage, by their cars or agents, along said roads or its branches, within said Commonwealth.(b)

ing or injuring stock.

5. That the killing or damaging of any horses, or other stock, by the cars along said roads or branches, shall be prima facie evidence of carelessness and negligence of said

company.

(a) The right to recover damages for personal injuries, where the commission of the act com. plained of has been accompanied with circumstances of aggravation, has been repeatedly recognized by this court as proper; and this must now be regarded as the settled law in this State. (Simpson, C. F., Chiles vs. Drake, MS. Opinion, June, 1859.)

Killing or dam aging stock pri

ma facie evi

dence of negli

gence.

2. It appeared upon the trial that the defendant improperly presented a loaded pistol, in a room where many persons were present, and while he held it in his hand it was discharged, the load striking and killing plaintiff's husband. The person killed was not the one with whom defendant was quarreling, nor the person whom he intended to injure; but the act of drawing a loaded pistol, with the intention of using it, in a room where there were many persons together, manifests such an utter disregard of the consequences which might result from the use of the weapon, as leaves the party without any excuse for his conduct. The killing, although not intentional, was the result of perfect recklessness, and as such, rendered the defendant liable for the civil injury which was produced by his willful negligence. (Ibid.)

(b) As to passengers on a railroad train, the company is bound by the highest obligations of morality and law to run their engines and trains with the most scrupulous vigilance and care. (Tonawando Railroad Company vs. Manger, 5 Denio, 255; Chicago and Mississippi Railroad Company vs. Patchen, 16 Illinois Reports, 198; Redfield on Railroads, 323.) The paramount duty of a conductor is to watch, with the utmost vigilance, over the safety of the persons and property in his charge, subject to which is his duty to use ordinary care to avoid unnecessary injury to animals straying on the road. (C. C. & C. R. R. Co. vs. Elliott, 4 Ohio State Reports, 474.) It was the duty of the court to instruct the jury as to this paramount and superior obligation, under which the company was acting; and in failing so to instruct, there was error to the prejudice of the defendant. (Wood, F., Louisville and Frankfort Railroad Company vs. A. M. Ballard, 2 Metcalfe, 180.)

2. A railroad company is not liable for injuries inflicted by its engines and trains upon cattle straying upon the track of the road, unless such injury was caused by the wanton and reckless negligence of the company or its agents. (Frankfort Railroad Company vs. Milton, 14 B. M., 75.) And this is necessarily so, because of the exclusive right the company has to the occupation and use of its road-bed and track, and the peculiar nature and exigencies of the business in which it is engaged. (Chicago and Mississippi Railroad vs. Patchen, 16 Illinois Reports, 198.) Speed in the transit and exact punctuality in the arrivals and departures of the trains, and their various connections, are imperatively required in this mode of conveyance. They are lawful, and the vital interest of the public require that they shall not be interfered with. (Ibid.)

3. In order to promote and preserve these essential characteristics of railroad management, and to insure, as far as human prudence can insure, the safety of persons who may be passengers upon trains of railway cars, it is necessary that the tracks of such ways be kept free from obstructions of all sorts. (L. &. F. R. R. Co. vs. Milton, 14 B. M., 75.) There is a peculiar obligation upon the owners of cattle to keep them off the track of railways. And if they are found there, whilst railroad companies and their agents are not allowed to omit all care, and willfully and wantonly injure them, by running engines and trains over them, yet said companies are not to be held liable for injuries inflicted under such circumstances, unless it is proved that the companies, or their agents, have been reckless, wanton, and willful. (Ibid.)

NOTE. By the 5th section, the killing or damaging of stock is now prima facie evidence of carelessness and negligence.

4. The railroad company is not responsible for the value of a mule which passed through a gap in the fence, near the railway, jumped on the track, only about fifty yards ahead of the loco

§ 6. That whenever any stock may be killed or crippled by any train of cars or locomotive upon any railway within this State, it shall be lawful for the owner of the stock so killed or crippled, after first giving the nearest station agent of the company to which said railway shall belong written notice of his intention, to apply to a justice of the peace within the district in which said stock may have been killed or crippled; and said justice shall appoint three discreet and disinterested housekeepers of his county a board of appraisers, who, after being duly sworn, shall examine the stock so killed or crippled, and affix a value upon the same if killed, or assess the damages to the same if crippled, and return to said justice a written report, carefully describing the stock, stating whether they were killed or crippled, and also setting out the valuation or assessment of damage made by them; which report said justice shall preserve as a part of the records of his office.

killed or crippled

Owner of stock may give notice to nearest depot agent and have stock appraised.

If company fail

for sixty days to

to pay

thereto.

§ 7. In case the company shall fail, for the space of sixty days, to pay to the owner of the stock so killed or crippled pay the assessed the full amount assessed by said board of appraisers, and 25 per cent. in one half the costs attending the assessment, he shall have the right to institute an action, in any court in the county of competent jurisdiction, on the original cause of action; and if upon the trial of this action he recovers a verdict for an amount equal to the amount assessed in his favor by said board of appraisers, it shall be the duty of the court to render judgment in his favor for the amount of said verdict, and twenty-five per centum in addition thereto; but if he fails to recover a verdict for an amount equal to said assessment, the costs of the action shall be taxed against him.

appraisers.

§ 8. The justice of the peace and the three appraisers Fees of justice & shall receive for their services under this act, each, the sum of one dollar, to be paid equally by the railroad company, owner or owners of the stock killed or crippled.

motive, and was killed by an inevitable collision, there being no proof of negligence, unskillfulness, defective machinery, or recklessness. (L. & N. R. R. Co. vs. Wainscott, 3 Bush, 149.)

5. Had the mule been on the railroad track far enough ahead to enable the engineer, by proper means, to stop the locomotive before it reached the animal, or to have enabled it to retard the train's progress until the mule could have been driven out of all danger of collision, it was his duty to see and save the mule; and, failing to do so, the railroad company would have been responsible for its value. (Ibid.)

6. Actions against the Louisville, Cincinnati and Lexington Railroad Company, for injuries to stock, must be brought within six months after such injury. (O'Bannon vs. L., C. & L. R. R. Co., 8 Bush, 348.)

NOTE. The same law applies to the Louisville and Nashville Railroad Company.

apply to railroad

Provisions not to company whose

road is

2 R. S., 51. Before whom insolvent debtor to be brought to obtain discharge.

Jailer to obey

warrant.

Form of.

Discharge.

§ 9. The provisions of the last three preceding sections shall not apply to any railroad company which shall inclose its entire line of road with a good and lawful fence, and good and sufficient cattle-gaps, and keep the same in repair.

CHAPTER 58.

INSOLVENT DEBTORS.

ART. 1. Manner of their discharge.

"" 2.

1. Ten days' notice of the time and place of such appli

to be given.

Ten days' notice cation, and a copy of the schedule of the property he intends to surrender, must be given to the adverse party, or his agent or attorney, if in the county.

2. The keeper of the jail shall obey the warrant.

Sales of choses in action, &c., of Insolvent Debtors.

ARTICLE I.

Manner of their Discharge.

§ 1. Any person taken or charged in execution in any civil case, may, by petition, apply for a discharge to two justices of the peace, or the presiding judge of his county, or the police judge of the county town, who shall, by warrant, under their or his hands, require the keeper of the jail to bring the body of the petitioner before them or him, at the court-house, on a specified day, and a list of the several executions with which he may stand charged.

3. The petitioner, when brought before the judge or jusSchedule on oath tices, shall subscribe and deliver a schedule of his whole

to be delivered.

estate liable for his debts, and take an oath or affirmation in substance as follows:

I, A B, do swear (or affirm) that the schedule now delivered contains, to the best of my knowledge and belief, a full, true, and perfect account and discovery of all the estate and effects unto me in anywise belonging, and of such debts as are owing to me, or in trust for me, which are liable for my debts; and that I have not, directly or indirectly, sold, assigned, or otherwise disposed of, in trust or otherwise, for my use or the benefit of another, or concealed any part of my effects whereby to secure the same, to receive or expect any profit or advantage from the same, to defraud any creditor to whom I am in anywise indebted.

4. Upon the delivery of such schedule, properly verified, the judge or justices (unless it be made to appear that the

petitioner has acted fraudulently) may, by warrant, command the keeper of the jail to discharge the petitioner forthwith; and the warrant shall be a justification to the keeper of the jail for such discharge.

be filed.

5. The schedule, so subscribed and verified, with the peti- Schedule, etc., to tion and warrant, shall be returned to, and kept safely on file by the clerk of the county court of the county in which the prisoner was confined.

clerk.

§ 2. It shall be the duty of the clerks of the circuit and chancery courts of this Commonwealth to keep a registry of all suits brought to settle insolvent estates in said courts; and, upon the filing of any petition for the settlement of any such estate and distribution of the assets, to notify the clerk of the county court of their respective counties of that To notify county fact; and, upon a decree directing the distribution of such estate, to report the same, together with the style of the suit on which the estate was settled, to the clerk of the county court of their respective counties within thirty days after the rendition of such decree; and said clerk shall keep an alphabetical register of the same, with the style of the suit in which such estate was settled.

Duty of clerks to of suits to settle

keep a registry

estates.

clerk.

§ 3. It shall be the duty of the county court clerk of the Duty of county county wherein such estates are settled, as provided in the second section of this article, to receive, file, and record such notice and style of suit in the volume used for recording settlements, and to make proper entries upon the register of

estates.

§ 4. For services rendered under sections two and three Fees of clerk. of this article, the clerks of circuit, chancery, and county courts shall be entitled to the same fees now allowed by law for similar services in other cases, the same to be taxed by the circuit or chancery court clerks as part of the costs of the action. The county court clerks shall charge their fees to the plaintiff in such suits.

in sheriff in trust.

§ 5. The right of the petitioner to the effects described in Property vested the schedule (saving his wife's dower in the lands, if any) shall be vested in the sheriff of the county in which the prisoner was confined, in trust for the use of the creditors under whose executions he stood charged, and the sheriff shall perform the trust though his term of office expires.

1. The sheriff shall sell such effects, and pay over the pro- Sheriff to sell. ceeds to the execution creditors, retaining his commission.

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