in doing so, the company's duty to provide | ed to perform this duty, and that as a direct rehim with a reasonably safe place obtained. [3] This case is somewhat analogous to those wherein the servant is injured while going to or from his place of work in a mine. The rule in such cases is that the duty to provide a reasonably safe place includes the places where the servant properly passes in going to and from his actual working place. See Fluehart Collieries Company v. Elam, 151 Ky. 47, 151 S. W. 34; Broadway Coal Mining Co. v. Robinson, 150 Ky. 707, 150 S. W. 1000; Jellico Coal Mining Co. v. Woods, 154 Ky. 683, 159 S. W. 530. If the plaintiff in the instant case had been passing this spot where the explosion occurred, on his way to or from the face of the coal at the back end of the room, which was his place of work, and which was about 50 feet from the place where he was injured, he certainly would come within the safe place doctrine; and we think the mere fact that he was temporarily assisting Woods to prepare the place so that he could commence his work, would not operate to exclude him from the benefits of the obligation of that doctrine, for he was there in obedience to the orders and instructions which he had theretofore received from the company's mine foreman. 3. The court admitted evidence and gave an instruction covering defendant's plea that Woods was an independent contractor, and appellant complains of this. It was error to admit this evidence and to give such an instruction. Woods was not an independent contractor. Bon Jellico Coal Co. v. Murphy, 161 Ky. 450, 171 S. W. 160. In fact, Woods denied that he even asked plaintiff and his brother to assist in moving the track or setting the timbers, and there was no evidence to support defendant's claim that plaintiff was working for Woods. 4. There was a plea of contributory negligence, and some evidence that the plaintiff knew that the miner in the adjoining room was boring a hole in the wall and placing a shot, notwithstanding which knowledge he (the plaintiff) continued to work in the room where he was injured. The defendant was entitled to an instruction on contributory negligence, but the ones given (Nos. 4 and 6) were prolix and confusing. There was no material conflict in the evidence. There were but three real issues to submit to the jury: (1) Did defendant exercise ordinary care to furnish plaintiff with a reasonably safe place in which to work; (2) was defendant guilty of contributory negligence; (3) the measure of damages. Upon another trial, the court will give the following instructions: "No. 1. It was the duty of the defendant to exercise ordinary care to provide the plaintiff at the time when and the place where he was injured, with a reasonably safe place in which to work considering the character and nature of his employment; and if the jury believe from the evidence that the defendant negligently fail sult of such failure (if any such failure there find for plaintiff; and unless they so believe, or was) the plaintiff was injured, the jury will if they should believe as in instruction No. 2, they will find for the defendant." exercise ordinary care for his own safety at the "No. 2. It was the duty of plaintiff, Moses, to time and place of his injury; and if the jury believe from the evidence that he failed to perform this duty, and that such failure (if any jury to such an extent that but for it he would there was) upon his part, contributed to his innot have received such injury, then the jury will find for the defendant, altough they should believe from the evidence that defendant was negligent as defined in instruction No. 1." "No. 3. If the jury find for plaintiff, they will award him damages in such sum as they may believe from the evidence will reasonably compensate him for such mental and physical pain as he has suffered and is reasonably certain to suffer, if any, as the direct result of his injuries; and, if the jury believe from the evidence that his injury is permanent, they will award the evidence will reasonably compensate him him such further sum as they may believe from for the permanent impairment of his power to earn money, if any, the whole of said finding, however, not to exceed the amount claimed in the petition, $30,000." defining negligence and ordinary care, and These 3 instructions, together with one one permitting 9 or more of the jury to agree, are all the instructions that should be given, if the evidence on another trial be substantially the same. [4] 5. The trial of the case consumed one whole day. There were 16 witnesses examined. The court limited the argument to 20 minutes There were 8 instructions given. on a side, and we think this time insufficient to present reasonably the several matters necessary to be brought to the attention of the jury under the evidence and the instructions given. For the reasons indicated, the judgment is reversed. VASA CO. v. OHIO VALLEY BANKING & TRUST CO. (Court of Appeals of Kentucky. Nov. 23, 1915.) 1. APPEAL AND ERROR 671-QUESTIONS REVIEWABLE-SUFFICIENCY OF EVIDENCE-REC ORD. Where there is no bill of evidence in the record, the court can only determine whether the pleadings support the judgment. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2867-2872; Dec. Dig. 671.] 2. BANKS AND BANKING 226 LIABILITY OF BANK TO CUSTOMER-PLEADINGS. its customer, which alleges that the customer A petition, in an action against a bank by purchased property from a third person for $6,500, executing notes for deferred payment, that the deed stipulated that if any of the notes were not paid within 30 days after maturity the whole price should become collectable; that a note was placed with the bank for collection; that at the time of the maturity of the note the customer was entitled to a credit on the books of the bank in excess of the amount of the note, which fact was known to the bank, but was unknown to the customer; that, by reason of the refusal of the bank to correctly state the customer's account, the customer was unable to pay the note; and its property. The answer was a traverse of that to prevent loss the customer sold the prop- the averments of the petition, and a stateerty for $5,000, though reasonably worth $6,500 ment of fact. On a trial of the case there -states no cause of action for failing to aver that the customer could not have raised the mon- was a directed verdict for the bank, and the ey to pay the note, or could not have made other Vasa Company appeals. arrangements satisfactory to the vendor, and for failing to aver that the property could have been sold for more than $5,000. [Ed. Note. For other cases, see Banks and Banking, Cent. Dig. §§ 867-870; Dec. Dig. 226.] Appeal from Circuit Court, Henderson County. [1] There is no bill of evidence with the record, and so we are concerned only with the sufficiency of the pleadings, or rather the sufficiency of the answer, to support the judgment, and there is, of course, no question about this. Myers v. Saltry, 163 Ky. 481, 173 S. W. 1138; Meyers v. Same, 164 Ky. 350, 175 S. W. 626. Action by the Vasa Company against the Ohio Valley Banking & Trust Company. not state any cause of action, and conse[2] But, aside from this, the petition does From a judgment for defendant, plaintiff ap-quently, if the evidence were here, it would peals. Affirmed. John C. Worsham, of Henderson, for appellant. Montgomery Merritt and Yeaman & Yeaman, all of Henderson, for appellee. CARROLL, J. The substance of the petition in this case is: That the Vasa Company, a corporation, in November, 1912, purchased a storehouse in the city of Henderson from Mrs. Bucholz for the sum of $6,500, executing its notes for deferred payments amounting to $4,000. That the deed to the property provided that, if any of notes for the unpaid purchase money were not paid within 30 days after maturity, the whole of the purchase money should become collectable. That one note for $300 fell due in May, 1913, and was before maturity placed with not help the case for the appellant. There is no averment that it could not have raised the money to pay this $300, or that it could not have made other arrangements that would have satisfied Mrs. Bucholz, or have effected a postponement of the sale. There is no averment that the property could have been sold at the time it was sold for more than $5,000. It may, as averred, have been reasonably worth $6,500, but whether it could have been put on the market and sold for more than $5,000 is not made to appear. There are other objections to the sufficiency of the petition, but we are well satisfied that it did not state any cause of action, and the judgment is affirmed. NOLAN. the Planters' Bank, now the Ohio Valley CINCINNATI, N. O. & T. P. RY. CO. v. Banking & Trust Company, for collection, and the bank demanded of it payment of the note. That it did not, as it then believed, have the money with which to pay the note, and Mrs. Bucholz notified it that unless the note was at once paid she would bring suit to enforce her lien. That, in order to prevent loss of what it had paid on the purchase price, it sold the house for $5,000, although it was reasonably worth $6,500, losing thereby $1,500. It further averred: That, prior to the maturity of the note, it kept an account with the bank, and during said time it had left various notes with the bank to be discounted and placed to its credit, and at the time the purchase-money note matured it was entitled to a credit on the books of the bank of $2,420, which fact was known to the bank but was unknown to it, because the bank informed it that it had no sum to its credit and refused to give it a statement of its account, although the same was demanded. That at the time the note matured it did not have sufficient funds, exclusive of this $2,420, to pay the purchase-money note, and, by reason of the refusal of the plaintiff to inform it of the correct state of its account, it was unable to pay the note. It was further averred that in September, 1913, it was notified by the bank that it had a balance of $2,420. That if it had known this fact it could have paid said note and saved (Court of Appeals of Kentucky. Nov. 23, 1915.) 1. NEGLIGENCE 101-COMPARATIVE NEGLI GENCE INJURIES TO SERVANT-FEDERAL EMPLOYERS' LIABILITY ACT. The contributory negligence of the injured servant will, under federal Employers' Liability Act April 22, 1908, c. 149, 35 Stat. 65 (U. S. Comp. St. 1913, §§ 8657-8665), only reduce the recovery. An award of $9,500 in favor of a brakeman 22 years of age, who was earning $105 per month, for an injury resulting in the forcing of the femur into the hip joint so that the leg is not excessive in view of the fact that a prior became shortened and permanently stiffened, jury had awarded $10,000. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 372, 385, 396; Dec. Dig. 132.j Appeal from Circuit Court, Lincoln County. Action by Edward Nolan against the Cincinnati, New Orleans & Texas Pacific Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed. K. S. Alcorn, of Stanford, and John Galvin, of Cincinnati, Ohio, for appellant. Emmet Puryear, Robt. Harding, and John W. Rawlings, all of Danville, and P. M. McRoberts, of Stanford, for appellee. HANNAH, J. Edward Nolan sued the Cincinnati, New Orleans & Texas Pacific Railway Company, in the Lincoln circuit court, to recover damages. for injuries received by him when a handhold on top of a freight car gave way and precipitated him to the ground, in the course of his employment as head brakeman on one of the defendant's trains at Stearns. There was a verdict and judgment in plaintiff's favor in the sum of $10,000, which upon appeal was reversed. C., N. O. & T. P. Ry. Co. v. Nolan, 161 Ky. 205, 170 S. W. 650. Upon a second trial, there was a verdict and judgment in favor of the plaintiff in the sum of $9,500; and the defendant company again appeals. Appellant complains of the instruction on the measure of damages, but the instruction given conforms to the direction of this court contained in the opinion on the former appeal. Appellant also complains of the instruction on contributory negligence, but the one given is that approved in C., N. O. & T. P. Ry. Co. v. Goode, 163 Ky. 60, 173 S. W. 329. [1, 2] Appellant also complains that the verdict is excessive. Appellee at the time of the injury was 22 years of age, earning $105 per month. The injury was one affecting the femur, or rather the head of the femur (or hip bone) at the point where it works in its socket in the pelvic bone. The evidence for the plaintiff was to the effect that his fall from the car caused a fracture somewhere about the neck of the femur at the socket, resulting in the forcing of the bone up into this socket-an impacted fracture. The injured leg is shorter than the other by an inch or an inch and a half; and, according to the evidence for the plaintiff, the whole leg is perfectly stiff, and this condiwhole leg is perfectly stiff, and this condition is doubtless permanent, not only at the hip, but also at the knee and ankle. In other words, if the evidence for the plaintiff is to be given credence, he is permanently deprived of the use of the entire injured leg. The accident occurred in the night as plaintiff was climbing down off of the top of a freight car, he at the time being alone. And, although under the federal Employers' Liability Act (under which this action was brought) contributory negligence on the part of the plaintiff would have reduced the recovery, there was no evidence to support any claim for a reduction of the damages on that account. From the nature of the injuries, plaintiff's suffering must necessarily have been intense, and this suffering the proof shows continued to the day of trial, and doubtless will continue for some time. In view of these circumstances, and the fact that a former jury fixed the damages at $10,000, we are unable to say that the verdict of $9,500 was so excessive as to indicate passion and prejudice in the assessment of damages and to justify a reversal of the judgment. N. & W. Ry. v. Thompson, 161 Ky. 814, 171 S. W. 451; E. T. T. Co. v. Jeffries, 160 Ky. 482, 169 S. W. 825; Citizens' Telephone Company v. Wakefield, 126 S. W. 127. Appellant argues that the verdict is evidently based upon the assumption that plaintiff has permanently lost the use of his leg, and contends that: "Even if the testimony tended to support the plaintiff in his claims as to his injuries, such a this court serve as a guide." verdict could not stand, if previous rulings of But the contrary is true. In the Jeffries Case, supra, the plaintiff lost a leg and was awarded $10,500, which this court held not excessive, and said: "We have affirmed verdicts in the following cases as not being excessive: L. & N. v. Moore, 83 Ky. 675, where a brakeman recoverSouth Covington Street Ry. v. Weber, 82 S. W. ed a verdict for $9,000 for the loss of a leg; 986, 26 Ky. Law Rep. 922, a verdict for $10,000 for the loss of a child's hand; L. & N. v. Smith [135 Ky. 462], 122 S. W. 806, a verdict lost one hand and was otherwise crushed; Price for $12,500 where a man forty-four years old & Lucas C. & V. Co. v. Haley [137 Ky. 305], 125 S. W. 720, a verdict for $9,000 in favor of a man 57 years old for the loss of an arm; and C. & O. Ry. v. Davis, 58 S. W. 698, 22 Ky. Law Rep. 748, where a boy 9 years old recovered $10,000 for the loss of a foot." Judgment affirmed. GOVER V. WILLIAMS. (Court of Appeals of Kentucky. Nov. 26, 1915.) APPEAL AND ERROR 1009-QUESTIONS OF FACT-CONFLICTING EVIDENCE. Where the evidence is conflicting, and on consideration of the whole case the mind is left in doubt, so that the court on appeal cannot determine with reasonable certainty that the chancellor erred, his finding will not be disturbed. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3970-3978; Dec. Dig. 1009.] Appeal from Circuit Court, Lincoln County. Action by B. G. Gover against Bettie Williams. Judgment for defendant, and plaintiff appeals. Affirmed. Emmet Puryear, of Danville, J. S. Owsley, of Stanford, and Robert Harding, of Danville, for appellant. P. M. McRoberts, of Stanford, for appellee. CLAY, C. Plaintiff, B. G. Gover, rented from the defendant, Mrs. Bettie Williams, her farm, consisting of about 235 acres, located in Lincoln county, for the years 1910, 1911, and 1912. By an agreed judgment entered in the Lincoln circuit court the rental contract was terminated and defendant given possession of her farm on December 31, 1911. Plaintiff brought this action against the defendant to recover the sum of $977.67, subject to a credit of $165.93. His petition is in eight paragraphs, and each paragraph contains a number of items. Defendant filed an against Daniel G. Parr's executor to subject property to taxation. From a judgment dismissing the proceedings, the Commonwealth appeals. Affirmed. answer and counterclaim containing 21 paragraphs, denying the allegations of the petition, and asking judgment on divers claims, aggregating $2,197.53, subject to a credit of $601.35, leaving due her an alleged balance of $1,596.18. The case was referred to the master commissioner to hear proof and settle the accounts between the parties. The commissioner made a report, to which plaintiff filed numerous exceptions. On the hearing by the chancellor the exceptions were ville, died testate, on December 30, 1903. MILLER, C. J. Daniel G. Parr, of Louisoverruled and the report confirmed. Judg M. J. Holt and A. Scott Bullitt, Co. Atty., both of Louisville, for the Commonwealth. O'Neal & O'Neal, N. T. White, and H. P. Reager, Jr., all of Louisville, for appellee. ment was then entered in conformity with The Fidelity Trust Company qualified as exthe report in favor of the defendant. Plain-ecutor of his will. By the eleventh clause of that instrument the testator devised the tiff appeals. We have carefully considered the evidence. In every instance it is conflicting. With but few exceptions, plaintiff and defendant are the only witnesses, and he testifies one way, while the defendant testifies the other. The case is one, therefore, where the commissioner and chancellor believed one witness, rather than another. In cases where the evidence is conflicting, and upon consideration of the whole case the mind is left in doubt, and this court cannot determine with reasonable certainty, that the chancellor has erred, it is our rule not to disturb his finding. Rawlings v. Fish, 151 Ky. 764, 152 S. W. 941: Wilson v. Ward, 151 Ky. 233, 151 S. W. 353; City of West Covington v. Dods, 152 Ky. 617, 153 S. W. 964. Clearly the case is one calling for the application of the above rule. Judgment affirmed. COMMONWEALTH v. PARR'S EX'R. (Court of Appeals of Kentucky. Nov. 24, 1915.) residuum of his estate to trustees, who were directed to use it in providing and estab lishing, in the city of Louisville, or county of destitute women residents and citizens of the Jefferson, Ky., a permanent home for old and destitute women residents and citizens of the state of Kentucky, to be known as "Parr's Rest," "where feeble old women, who have no estate of their own, and who are unable to provide for themselves the necessaries of life, might find shelter and rest in their declining years." The trustees were directed to form a corporation, to be known as "Parr's Rest," for the administration of the trust; and that has been done. Owing to a contest over the probate of the will, the executor and trustee refrained from turning over the residuary estate to the board of managers of Parr's Rest, pending the contest. However, on August 23, 1904, the Fidelity Trust Company, as executor and trustee under the will, entered into a written contract with the board of managers of Parr's Rest, which recited that, in consideration of the executor's delivering to the trustees of Parr's Rest certain specified stocks and bonds of the aggregate value of $194,303.68, the board of managers of Parr's Rest appointed the Fidelity Trust Company its agent to hold said personal property for said board of managers until the 1st day of February, 1906, at which time the agency therein created should expire and said board of managers should have the right to receive from its said agent the property above described. The contract further provided, however, that, should a contest be filed against the probate of the will of Daniel G. Parr, the agency should continue until the contest should be finally settled, or in case no appeal should be taken the agency should continue until the expiration of the time in which an appeal could be taken; and, should no contest be instituted prior to February 1, 1906, the agency should then cease and the personalty above described should be turned over to the board of managers of Parr's Rest. The home known as Parr's Rest was established and opened for inmates in December, 1909. Appeal from Circuit Court, Jefferson After Mr. Parr's death, the State Revenue County, Chancery Branch, First Division. Agent instituted proceedings to recover taxes Action by the Commonwealth of Kentucky upon personalty which it was claimed Dan 1. TAXATION 241-EXEMPT FROM TAXA- tion. [Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 389-393; Dec. Dig. 241. For other definitions, see Words and Phrases, 2. TAXATION 241-EXEMPTION CHARITIES. The fact that a fund bequeathed to a trustee for the purpose of founding a home for old and destitute women is withheld by the trustee and executor from the board of managers of the home, pending a contest of the will, does not remove it from the protection of Const. § 170, providing that institutions of purely public charity shall be exempt from taxation, since the equitable title to the fund was nevertheless vested in the board of managers. [Ed. Note.-For other cases, see Taxation, Cent. Dig. §§ 389-393; Dec. Dig. 241.] iel G. Parr had failed to return for taxa- | Boyd [120 Pa. 624, 15 Atl. 553, 1 L. R. A. tion, for the years 1900 to 1904, both includ-417, 6 Am. St. Rep. 745], where the distinction ed; and that suit was settled by the payment of $2,701.20 by the executor. Of these five suits before us, which have been consolidated and heard as one case, one was brought by the commonwealth against the Fidelity Trust Company, as executor and trustee of Daniel G. Parr's estate, and the others are against Parr's Rest and the Fidelity Trust Company, trustee and agent of Parr's Rest; all being for the purpose of assessing for taxation for the years 1904 to 1909, inclusive, the residuum of the estate which was held during those years by the Fidelity Trust Company under the contract of agency, above recited. The cases were dismissed by the county court; and, upon an appeal to the circuit court and a trial de novo in that court, the chancellor held the property was exempt from taxation, and dismissed the proceedings in that court. From that judg ment, the commonwealth appeals. The exemption was granted under section 170 of the Constitution, which, among other things, provides that, "institutions of purely public charity" shall be exempt from taxation. See, also, Kentucky Statutes, § 4026. [1] That Parr's Rest is an institution of purely public charity, within the meaning of section 170 of the Constitution, there can be no question. 6 Cyc. 900; Ford v. Ford, 91 Ky. 575, 16 S. W. 451, 13 Ky. Law Rep. 183: Zable v. Louisville Baptist Orphans' Home, 92 Ky. 89, 17 S. W. 212, 13 Ky. Law Rep. 385, 13 L. R. A. 668; Trustees of Kentucky Female Orphan School v. City of Louisville, 100 Ky. 487, 36 S. W. 921, 19 Ky. Law Rep. 1916, 40 L. R. A. 119; Commonwealth v. Thomas, Trustee, 119 Ky. 208, 83 S. W. 572, 26 Ky. Law Rep. 1128, 6 L. R. A. (N. S.) 320; Widows' and Orphans' Home v. Commonwealth, 126 Ky. 386, 103 S. W. 354, 31 Ky. Law Rep. 775, 16 L. R. A. (N. S.) 829; City of Dayton v. Trustees of Speer's Hospital, 165 Ky. 60, 176 S. W. 361; Neptune Fire Engine & Hose Co. v. Board of Education, 166 Ky. 1, 178 S. W. 1138. In the case last above cited, we said: "Mr. Justice Gray, when on the Supreme Bench of Massachusetts, defined a charity in its legal sense as a gift to be applied consistently with existing laws, for the benefit of an indefinite number of persons, either by bringing their minds or their hearts under the influence of education or religion, by relieving their bodies from disease, suffering, or constraint, by assisting them to establish themselves in life, or by erecting or maintaining public buildings or works, or otherwise lessening the burdens of government. Jackson v. Phillips, 14 Allen [Mass.] 555. It is immaterial whether the purpose is called charitable in the gift itself, if it is so described as to show that it is charitable in its nature. Jackson v. Phillips, supra. While this last definition is perhaps not as concise as could be desired, it is nevertheless both clear and comprehensive, and is adopted by Perry in his work on Trusts as the most satisfactory definition of a charitable use; and it has lately been approved by the Supreme Court between the motive and the purpose of the gift is pointed out, and the purpose declared to be the true test. Without confining themselves to any one definition, but looking at the subject in its broadest significance, text-writers have generally classified charitable gifts as follows: (1) Gifts for eleemosynary purposes; (2) gifts for educational purposes; (3) gifts for religious purposes; and (4) gifts for public purposes. Bispham's Principles of Equity, § 120." [2] Appellant contends, however, that the legal title to this personalty, aggregating $200,000 in value, during the years involvedfrom 1904 to 1909, inclusive-was vested in the executors of Daniel G. Parr, and that it was not devoted to any charitable purpose until it was actually turned over to the managers of Parr's Rest in December, 1909; that the contract of August 23, 1904, was a mere pretext for the purpose of avoiding taxation for the years mentioned, and was of no real efficacy, because both the legal title and the possession of the property were still retained by the Fidelity Trust Company; and that although it pretended to hold the property, after August 23, 1904, as agent for the managers of Parr's Rest, it really held it as executor or trustee under the will. We do not, however, so understand the case. The equitable title to this fund was in the board of managers of Parr's Rest during those years, and the fact that the statute provided that the appeal to the circuit court to contest the probate of the will by the county court might be brought at any time within five years thereafter justified the executor, in this case, in retaining possession of the fund until the will was finally established. In no other way could the executor effectually protect itself, or the estate in its hands. In our opinion, the case is not affected by the contract of August 23, 1904. It was immaterial whether the Fidelity Trust Company held this fund as trustee under the will of Daniel G. Parr, or as the agent of the board of managers of Parr's Rest, since, in either case, it held the property for the use and benefit of the board of managers of Parr's Rest; and under section 170 of the Constitution its property was exempt from taxation. This question was set at rest by the opinion of this court in Norton v. City of Louisville, 118 Ky. 836, 82 S. W. 621, 26 Ky. Law Rep. 846. In that case, the testator devised the residuum of his estate for the establishment of a trust to be known as "Norton Trust Fund," the trustees thereof to be the same as the executors named in the will. The duration of said trust fund was fixed at five years from the date of the testator's death, he expressing the hope that during that period the trustees would be able to dispose of all of the testator's real estate; and, when that end should be accomplished and his estate |