court upon the motion of appellee and over | and appellee has only to go and possess himthe objection of the appellant, and is the instruction given which fixed the measure of damages by which the jury was to be guided in making its verdict, if it should find for appellee, and is as follows: "If your finding be for the plaintiff, you will find for the plaintiff the difference in value of said automobile before and after it was injured, at the time of said injury of same, not to exceed, however, the sum of $650." self of it. The title to the property has not changed. The appellee did not attempt to do anything to minimize his loss by having the machine repaired or otherwise. We To say that a secondhand automobile has not a market value would be the same as to hold that wagons and carriages, after a period of use, have not a market value, because no two of them would be in exactly the same condition, as to use, "wear, and tear." The contention of appellant is that the If an action was pending for destruction of measure of damages was the difference in the or injury to a wagon or carriage, after a market value of the automobile just before period of use, the owner would certainly be it received the injuries and just after it re- limited in his recovery to the reasonable ceived the injuries, while the appellee com- market value of the article immediately beplains of the action of the court in limiting fore its destruction, if the injury suffered by the amount of his recovery to $650, when the it was irreparable, or the difference between amount sought by him in his petition was its reasonable market value immediately be$750. The argument is advanced that the measure of damages fixed by the instruction fore the injury and immediately thereafter if it was susceptible of being repaired. is correct, because a secondhand automobile has no market value, although it has a real see no reason why the same rule should not has no market value, although it has a real apply to injuries to an automobile. It is a value for use. It becomes necessary to recite the evidence given upon the trial as to biles in all stages of use and repair are bematter of common knowledge that automothe value of the automobile and its injuries. ing daily exchanged in barter and sales. If The appellee gave evidence to the effect that the machine and its attachments cost him automobile suffers injuries, the damages to an automobile is totally destroyed, or if an the sum of $750 nine months before the in- the owner from the destruction or injury of juries complained of; that he had used it, the machine, alone, cannot be more than his since he had owned it, in traveling about 1,600 miles; that he had certain repairs loss, which in the first instance is its value 1,600 miles; that he had certain repairs immediately before its destruction, and, in made upon it, a short time before the in- the second instance, is the difference bejuries occurred, had tested the machine fultween its value in its injured condition and ly; that it had by reason of its use become its value before the injuries. To fix these "limbered up," and was really a better machine than when he purchased it. All of this values, the law refuses to leave it to the imagination of the owner of the injured was competent evidence as tending to estab-property, or to the opinion which a jury Ilish its market value. Other evidence was given tending to prove that the market value of the machine, at the time of the injuries to it, was $500; that the market price of a new machine of the kind and make of the appellee's, at the time of the injuries to it, was $650; that the use of a machine of the kind and make of appellee's, for the length of time his had been used, in a proper and reasonable way, reduced the value of such a machine from one-third to one-half of its original value; that the machine in its injured condition was of the value of $150; and that it was susceptible of being repaired. The appellee, after the injury, seems to have abandoned the machine, and the appellant caused it to be removed into one of its depots, where it has remained ever since. The appellee insists that he ought to recover the full value of the machine, immediately before its injury, because the appellant had converted the machine to its own use. The petition does not allege any conversion of it by appellant, and does not rely upon such a cause of action, but is simply an action to recover for the damages it suffered. Appellee has never made any demand for its pos session, and, so far as the record shows, there has been no conversion of it, and no may set up as the criterion of value, and which may vary in different cases and with each jury, but has adopted the market value, as the one most tangible and the one which can be most easily and certainly laid hold of. This question has been definitely settled by this court in former adjudications, and is now beyond the sphere of controversy. In the case of Weil v. Hagan, 161 Ky. 292, 170 S. W. 618, the rule was laid down as follows: "In the case of injury to personal property, the measure of damages is the difference between its market value before, and its market value after, the injury.” In the recent case of Southern Ry. Co. in Ky. v. Kentucky Grocery Co., 166 Ky. 94, 178 S. W. 1162, the following was declared to be the rule in the cases of destruction or injury to personal property: "Where an injury to personal property does not effect its destruction-that is, where it is susceptible of repair-the measure of damages is the difference between the reasonable market value of the property immediately before the injury at the place thereof, and its reasonable market value immediately after the injury at the place thereof." If the destruction of personal property is so complete that it is not susceptible of re able market value immediately before its [and specific performance denied. The Taydestruction. lors appeal. [2] With regard to the fact of the court fixing the maximum amount which appellee could be allowed to recover at $650, instead of $750, the amount sued for, it was not error for the court to fix the maximum amount at the greatest, which any evidence conduced to show was the difference between the market value of the machine immediately before the injuries to it and its market value immediately thereafter. For the error embraced in the instruction, supra, the judgment will have to be reversed, and it will not be necessary to discuss the other grounds of reversal relied upon, as upon another trial other facts may be in evidence which the present record fails to show. The judgment is reversed, and cause remanded for further proceedings consistent with this opinion. TAYLOR et al. v. DEDMAN. (Court of Appeals of Kentucky. Oct. 22, 1915.) DEEDS129-CONSTRUCTION-ESTATE CON VEYED. Where it appeared from the terms of a deed that the intention of the parties thereto was that the grantees should each have a life estate which should not be subject to their debts or to the control of their husbands, and which was not to be incumbered, and that upon the death of both the grantees the property should go to the children of one of them, if she had any, the grantees took a life estate merely, and not the fee-simple title, although the granting part of the deed conveyed the property to the grantees jointly without limitation. [Ed. Note.-For other cases, see Deeds, Cent. Dig. §§ 351, 360-365, 416-430, 434, 435; Dec. Dig. 129.] The case turns on the proper construction of a deed dated March 26, 1892, and executed and delivered by Phil B. Thompson and wife to Mollie Young and Missie Passmore, which, omitting the description of the property conveyed, is as follows: "This indenture made and entered into this 26th day of March, 1892, between Phil B. parties of the first part, and Mollie Young and Thompson, Sr., and Mat. A. Thompson, his wife, Missie Passmore, daughter of Mollie Young, of the second part. Witnesseth: That parties dred and thirty-six dollars and eighteen cents of the first part, in consideration of three hun($336.18), payable one day after date, for which sum the said Mollie Young has this day executed her note, and for the payment of which said note a lien is hereby retained on the house and lot hereby conveyed, have this day by their presents do bargain, sell, and convey unto the party of the second part, the following described property, situated in the town of Harrodsburg, county of Mercer, and state of Kentucky, and bounded as follows: [Here follows description.] To have and to hold to the parties of the second part, their heirs and assigns forever, with clause of general warranty, provided that the property hereby conveyed shall not be subject to the debts now owing or that may be hereafter contracted by said parties of either. The right of the said Mollie to use and occupy the same as a home shall not be liable in law or equity to be sold or rented out. *** The right of said Missie Passmore to occupy the same as a home shall not be liable in law or equity to be sold or rented out. The said property on the death of said Mollie Young shall be the absolute property of Missie Passmore, provided Missie Passmore should outlive the said Mollie Young. "Should said Mollie Young outlive the said Missie Passmore, then the property to be the the said Missie Passmore have any child or absolute property of Mollie Young. Should children, upon the death of Mollie Young and said Missie Passmore, the property to be the property absolutely of said child or children, nor shall the right of said child or children to use and occupy the same be held liable in law Appeal from Circuit Court, Mercer County. or equity for any debts of said Mollie Young or Suit by Missie Taylor and her husband Missie Passmore, or child or children. The against J. O. Dedman for specific perform-right of said Mollie Young or Missie Passmore Judgment for defendant, and plain- to be subject to the control of any husband said to use and occupy said property as a home not tiffs appeal. Affirmed. ance. R. W. Keenon, of Harrodsburg, for appellants. C. E. Rankin, of Harrodsburg, for appellee. Mollie Young or Missie Passmore has or may have. Nor shall the husband of either of them have any right or title to said property as to use or possession of the same. The property in no event to be subject to the debts of said Mollie Young or Missie Passmore, or both. Nor shall the said Mollie Young or Missie Passmore, or either or both of them, incumber said property by any lien of any kind." In construing deeds it was formerly held that, in case of clear repugnance between the nature of the estate granted and that limited in the habendum, the latter yields to the former. Ratliffe, etc., v. Marrs, etc., 87 Ky. 26, 7 S. W. 395, 8 S. W. 876, 10 Ky. Law Rep. CLAY, C. On November 24, 1914, Missie Taylor and her husband, James N. Taylor, entered into a written contract with J. O. Dedman, whereby, in consideration of the sum of $450 to be paid upon execution and delivery of the deed, they agreed to convey to him the fee-simple title to certain property located in Mercer county. On November 25, 1914, the Taylors tendered to Dedman 134. But in the more recent decisions of this a deed to the property and demanded pay- court the tendency has been to relax the ment of the purchase price. Dedman refus- strictness of the technical rule of construced to accept the deed on the ground that Mis- tion above announced, and to construe a deed sie Taylor owned only a life estate in the according to the intention of the grantor property. Thereupon this suit was brought as gathered from the whole instrument. to enforce the contract. The contention of Thus in Dinger v. Lucken et al., 143 Ky. 850, Dedman was sustained by the chancellor, 137 S. W. 776, the court said: "The rule is that where by a deed a fee is clearly intended that Mollie Young and Misgranted, and the deed as a whole shows an in- sie Passmore should each have a life estate tention to vest the grantee with a fee, an at- in the property, which would not be subject tempted limitation upon the fee will be disregarded. But in all cases the effect of the deed to their debts or the control of their husturns upon its proper construction when read bands, and which should not be incumbered as a whole; and if upon the whole instrument in any manner whatsoever, and upon the death it appears that the grantor's intention was to vest a less estate than a fee in the grantee, that of both Mollie Young and Missie Passmore intention will be carried into effect; for deeds, the property should go to Missie Passmore's like other instruments, must be construed ac- children, if she had any. That being true, cording to the intention of the parties where that intention is sufficiently expressed in the in- Missie Passmore and her husband are unable to convey the fee-simple title to the property to Dedman, and the chancellor properly so adjudged. strument." So it is held that technical words in the granting or habendum clause importing a fee must yield to subsequent clauses limiting the interest of the grantee to a life estate. Atkins v. Baker, 112 Ky. 877, 66 S. W. 1023, 23 Ky. Law Rep. 2224; Lawson, etc., v. Todd, etc., 129 Ky. 133, 110 S. W. 412, 33 Ky. Law Rep. 557; Wilson v. Moore, 146 Ky. 679, 143 S. W. 431. With these rules of construction in mind, let us examine the provisions of the deed in question. The parties of the second part are Mollie Young and Missie Passmore. By the granting clause the property is conveyed to them jointly without limitation. The first part of the habendum clause imports a fee, as evidenced by the use of the words "their heirs and assigns forever." Then follow certain provisions protecting both the right of Mollie Young and Missie Passmore to occupy the premises as a home. It is further provided that, if Missie Passmore outlive Mollie Young, the property shall be the "absolute property of Missie Passmore." On the other hand, if Mollie Young survived Missie Passmore, the property was to be the "absolute property of Mollie Young." If the deed concluded here, there would be no question as to the estate which Missie Passmore would take, but the deed further provides that, should the said Missie Passmore have any child or children, upon the death of Mollie Young and said Missie Passmore the property should be the property absolutely of said child or children. Then follow certain provisions for the protection of the right of the children to use and occupy the premises. There also follow additional provisions protecting Mollie Young and Missie Passmore against their husbands and providing that neither Mollie Young nor Missie Passmore should incumber the property by any lien of any kind. With the validity of all these restrictions we are not now concerned. We mention them merely for the purpose of showing how carefully the parties were looking after the interest of Missie Passmore's children by not only providing that upon the death of both Mollie Young and Missie Passmore the property would be theirs, but by further providing that it should not be liable in their hands for any debts incurred by either Mollie Young or Missie Passmore. Considering the instrument as a whole, the conclusion cannot be escaped that the parties to the instrument Judgment affirmed. GNAU et al. v. ACKERMAN. * (Court of Appeals of Kentucky. Oct. 19, 1915.) 1. MUNICIPAL CORPORATIONS 788 - OBSTRUCTIONS OF STREETS-LIABILITY OF CITY -NOTICE. A city which authorized a part of its street to take notice of the nature and character of the to be obstructed by building material was bound obstruction, and notice that a bed of slaking lime had been placed in the street was not necessary to render it liable for injuries to a child who fell in the lime. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1641-1643, 1646, 1652; Dec. Dig. 788.] 2. EVIDENCE 32-JUDICIAL NOTICE-MU- to the city of Louisville, that the court shall 763-DEFEC 3. MUNICIPAL CORPORATIONS A city is under the duty of exercising ordinary care to keep its streets in a reasonably safe condition for public travel by children as maintaining its streets in a reasonably safe conwell as adults, and does not perform its duty by dition for the use of adults, but leaving them in an unsafe condition for use by children. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1612-1615; Dec. Dig. 763.] 4. MUNICIPAL CORPORATIONS 763 - DE FECTIVE STREETS-LIABILITY OF CITY. If a higher degree of care is required to keep streets safe for use by children than to keep cise such degree of care, since, while it is not them safe for use by adults, the city must exerobliged to do more than to exercise ordinary care, it must exercise ordinary care in respect to all who have the right to use the streets, and necessity of taking greater precautions as to one this measure of care may impose upon it the class than would be required as to another class. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1612-1615; Dec. Dig. 763.] 5. NEGLIGENCE 23-THINGS ATTRACTIVE TO CHILDREN STREETS OBSTRUCTIONSLIABILITY. If a city places in its streets an attractive nuisance dangerous to children of immature years and thoughtless habits, it will be answerable for any injury they sustain in consequence of its failure to exercise ordinary care to keep For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes its streets in reasonably safe condition for their use. [Ed. Note.-For other cases, see Negligence, Dec. Dig. 23.] 6. MUNICIPAL CORPORATIONS mm 762 STREETS-OBSTRUCTIONS-LIABILITY. A city granting permission to a property owner to place an obstruction or nuisance attractive to children in the streets occupied precisely the same attitude as if it had placed the obstruction in the street itself, and was bound to see that the obstruction did not make the street unsafe for use by the public, as it could not delegate to others the duty of keeping its streets safe and thereby excuse itself. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1605-1611; Dec. Dig. 762.] 7. MUNICIPAL CORPORATIONS 808 STREETS-OBSTRUCTIONS-LIABILITY. That a property owner who placed a bed of slaking lime in the street had secured from the city the right to do so did not excuse him from the duty of not leaving the street in such condition as to be unsafe for street purposes. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. 88 1684-1687, 16901694; Dec. Dig. 808.] 8. MUNICIPAL CORPORATIONS 762, 808STREETS OBSTRUCTIONS-LIABILITY. Where an obstruction placed in a street by a property owner with the permission of the city made the street unsafe, the city and the property owner were jointly and severally liable for resulting injuries. account of smallness of the damages in an ac- Where grounds other than the inadequacy of the verdict are relied on to obtain a new trial of a personal injury action, and are sufficient to justify the trial court in directing a new trial, and the record does not show what reasons influenced the trial court in ordering a new trial, it will not be assumed that the new trial was granted solely because the recovery was inadequate contrary to Civ. Code Prac. § 341. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3425, 3426, 3772-3776; Dec. Dig. 933.] 14. APPEAL AND ERROR 977 REVIEW The discretion of the trial court in granting a new trial will not be interfered with unless it appears to have been abused, or unless it appears that the court transcended its authority under the Code. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 3860-3865; Dec. Dig. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1605-1611, 1684-977.] 1687, 1690-1694; Dec. Dig. 762, 808.] 9. MUNICIPAL CORPORATIONS 808-LIABIL ITY FOR NEGLIGENCE OF CONTRACTOR. A property owner granted permission by the city to place building material in the street was responsible for any negligence on the part of the contractors employed by him, as he could not excuse himself from his duty or liability by employing other persons to do what he had been granted permission to do. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1684-1687, 16901694; Dec. Dig. 808.] A boy between two and three years old fell into a bed of slaking lime, and was so badly burned as to be made a cripple for life. His left hand and arm were dreadfully disfigured and their use totally destroyed, and his right hand, as well as other parts of his body, were also badly burned. Held, that a verdict for $10,000 was not excessive. [Ed. Note. For other cases, see Damages, Cent. Dig. §§ 372-385, 396; Dec. Dig. 132.] 11. APPEAL AND ERROR AMOUNT OF DAMAGES. 15. EVIDENCE 5-JUDICIAL NOTICE-MATTERS OF COMMON KNOWLEDGE. In an action for injuries to a boy two or three years old who fell into a bed of slaking lime in the center of a bed of sand in the street, where there was evidence that other children had been playing in the sand pile for several days, direct evidence that the injured boy was attracted to the sand pile or that it was an attractive nuisance was not required, as it is a matter of such common knowledge that courts and juries may take notice of it without evidence that a sand pile is attractive to children. [Ed. Note.-For other cases, see Evidence, Cent. Dig. § 4; Dec. Dig. 5.] Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Third Division. Action by John L. Ackerman, by next friend, against P. J. Gnau and others. Judgment for plaintiff, and defendants appeal. Affirmed. Pendleton Beckley and W. J. O'Connor, both of Louisville, for appellant city. 1004-REVIEW-O'Doherty & Yonts, of Louisville, for appellant P. J. Gnau. Arthur H. Mann and Kohn, Bingham, Sloss & Spindle, all of Louisville, for appellee. The damages allowable in personal injury cases cannot be carefully measured or computed, but must be left to the judgment and discretion of the jury, with which the court is not authorized to, and will not, interfere, unless it appears that their assessment of damages was influenced by passion or prejudice, or is so unreasonable as to appear at first blush entirely disproportionate to the injuries. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3944-3947; Dec. Dig. 1004.] CARROLL, J. In August, 1911, John Ackerman, a little boy between two and three years of age, sustained severe, painful, and permanent personal injuries by falling into a bed of slaking lime, commonly known as a mortar bed, which had been placed in INADE- the carriageway of Magnolia avenue, one While, under Civ. Code Prac. § 341, pro- of the streets of the city of Louisville. To viding that a new trial shall not be granted on recover damages for the injuries so sustain 12. NEW TRIAL 75 GROUNDS QUACY OF DAMAGES. ed, he brought this suit by his father, as next | stroyed, and his right hand was badly friend, against P. J. Gnau, the owner of the burned, as were other parts of his body. adjacent building in which it was intended to use the mortar that was being prepared for use, T. F. House, who had the contract for building the house, and the city of Louisville. The petition, after making the usual averments in cases of this kind, further set out: "That the mortar bed was in a depression made in the center of a pile of sand, and had the appearance to children of an ordinary sand pile, and in its nature was attractive and alluring to, and did attract, children of tender years, including the infant plaintiff, all of which was or could, by the exercise of ordinary care, have been known by the defendants and each of them, but nevertheless they failed to guard or barricade the mortar bed so as to exclude children therefrom." On the first trial of the case there was a verdict in favor of appellee for $1,000, which was subsequently on motion of appellee set aside by the trial court, and on the second trial of the case there was a judgment in favor of appellee for $10,000 against Gnau, the city, and House, one-third, as found by the jury, to be paid by each of them. It appears that House is insolvent, and so no appeal is prosecuted from the judgment against him. The only substantial dispute in the evidence grows out of the widely differing testimony as to whether this sand pile was barricaded or protected in any manner after the lime bed had been made. Witnesses for the plaintiff said that there were no boards or other barriers around the pile, or any covering on top of it, and that the sand pile, the center of which had been hollowed out for the purpose of containing the lime to be slaked, was about 18 inches high around the edges; while witnesses for the defendants said that the sand pile with the lime in the center was inclosed by boards and also covered by boards. If the precautions described by witnesses for appellants had been taken, it seems very improbable that the child could have gotten in the bed of slaking lime, and the weight of the evidence tends to support the view that there was no barrier of any kind placed around the sand pile or any covering placed on top of it. There was an electric street light near by, and some of the witnesses say a red lantern had been put up at the sand pile, but, whether the lantern was there or not, the electric light was sufficient to plainly disclose to any adult person using the street the presence of the mortar bed; but, of course, this little boy gave no heed to either the red light, if there was one, or the electric light. He only knew, in his childish way, that there was a sand pile there, and into that sand pile he wanted to and did go, totally ignorant of the burning lime in the middle of the sand and unconscious of the danger of playing in or about it. The facts are substantially as follows: The defendant Gnau, who was the owner of a lot on Magnolia avenue, obtained a permit from the city to erect a house thereon, which permit carried with it the right to make use of the adjacent street in accordance with the city ordinance on the subject. This ordinance provided that when a building permit was issued the applicant therefor might use a designated portion of the street in front of the premises being improved for the purpose of placing thereon building material: and in accordance with this permit and the ordinances of the city, the mortar bed in question was placed in the carriageway of Magnolia avenue. The pile of sand had been placed in the street some days before the lime bed was made, and the children of the neighbornood had been playing in this sand from the time it was placed in the street until a few hours before the plaintiff fell into it. The lime bed, however, was not made in the sand nor had the lime commenced to be slaked until late in the afternoon of the day on which the plaintiff was injured. The parents of the plaintiff lived in a house about 100 feet from this mortar bed, which consisted of a bed of sand probably 12 inches deep and about 9 feet long and 12 feet wide, with a bed of slaking lime in the center. Between 7 and 8 o'clock at night the plaintiff ran out of his mother's house into the street and went immediately, as any child would, [2] The further argument is made for the to this bed of sand, and in a moment after-city that, although the plaintiff introduced wards his screams were heard by Jacob in evidence a permit issued by the city to Loeb, who was passing, and he at once went to the bed, took the child out, and carried him to his mother. The little boy was hor [1] The city moved the court to direct a verdict in its favor because the evidence showed that it did not have any notice of the fact that lime had been put in the sand bed for the purpose of slaking between the time it was placed there and the time of the accident, a few hours afterwards. There would be much force in this position if it were necessary to bring notice home to the city in order to charge it with liability for the accident. But it is well settled in this state that, where a city authorizes work to be done and a part of its street to be obstructed by material while the work is in progress, it must take notice of the nature and character of the obstruction which it has authorized. City of Louisville v. Keher, 117 Ky. 841, 79 S. W. 270, 25 Ky. Law Rep. 2003; Blocher v. Dieco, 99 S. W. 606, 30 Ky. Law Rep. 689; De Garmo v. Vogt, 151 Ky. 847, 152 S. W. 969; Town of Bellevue v. Rentz, 152 Ky. 426, 153 S. W. 732. Gnau, the ordinance of the city granting to persons having permits to build the right to use portions of the street for the purpose |