In Cincinnati, N. O. & T. P. Ry. Co. v., and secure; therefore the repair of an emHansford, 173 Ky. 126, 190 S. W. 690, it bankment over which trains used in interstate appears that Hansford, an employé of the transportation run is just as much a part company, was injured while loading on a of interstate transportation as are the rails flat car unused steel rails which had there- and ties and cars themselves. tofore been removed from the track and left on the right of way, and the court held that it could not be said that Hansford was engaged either in interstate transportation or any work so closely related to it as to be practically a part of it, saying:

ing to remove was immediately taken from of an interstate railroad, killed while carrythe place where it was found to the place where it was to be used, according to the contention of Brumfield and the finding of the jury, in interstate transportation, and Brumfield was injured while assisting in unloading the material at the place where it was néeded in such transportation, and therefore the cases relied on are not applicable to the facts of this case.

years of age," and the court said that an in- | by them, and when they are given a general distruction presenting the idea that the assess-rection to fix the damages at such a sum as ment should be made on a present cash value basis should be given, and directed a new trial because of the failure of the trial court to give the requested instruction or one presenting the idea outlined by the court.

In this case, however, the railway company, although it saved an exception to the instruction given, did not offer any instruction on the subject of the measure of damages, and as the instruction complained of told the jury that they could only find such damages as would represent the present cash value of such labor or money as might have been earned by Brumfield, except for the impairment or destruction of his power to earn money caused by the injuries he received, this instruction, although perhaps not worded in the precise phraseology contemplated by the court in the Kelly Case, was not so substantially wrong as to constitute reversible error, especially in view of the fact that no instruction presenting the view urged by counsel in brief was offered.

Upon this point, we said in Illinois Central Railroad Co. v. Skinner's Adm'x, 177 Ky. 62, 197 S. W. 552, in considering a like ques

tion that:

"The instruction given in the instant case is correct, except that it does not expressly limit the recovery to the present value of future payments by deceased to his dependents; nor does it exclude that idea, for it directs a return in such a sum as would reasonably compensate' deceased's dependents for their loss, which might easily have been construed by the jury as being done by awarding only the present value of future payments-in fact, that is what it does mean-and the verdict returned may have been reached upon that idea, since deceased's proved earning capacity and life expectancy might have supported a larger verdict, although the loss was reduced to its present value. Under such circumstances, if defendant desired a more specific instruction upon the question of present value, it should have offered such an instruction and, having failed to do so, cannot now complain."

In Cincinnati, N. O. & T. P. Ry. Co. v. Jones' Adm'r, 177 Ky. 485, 197 S. W. 932, we also said, in response to the criticism of an instruction upon the measure of damages upon the ground that it did not conform with the rule laid down in the Kelly Case, that:

of the loss sustained, and are assisted by such would be equivalent to the present cash value competent evidence as the parties may offer, they must be trusted to ascertain in their own way what the present cash value of the loss

would be."

A case directly in point, holding that the instruction given by the court was substantially correct is Louisville & Nashville Railroad Co. v. Holloway, 246 U. S., 38 Sup. Ct. 379, 62 L. Ed., decided by the Supreme Court of the United States in April, 1918, and reported in L. R. A. advance sheets, issue May 15, 1918. In that case the instruction given was:

plaintiff, being such an amount in damages as
"The measure of recovery, if you find for the
will fairly and reasonably compensate the wid-
ow of the said John G. Holloway, deceased, for
the loss of pecuniary benefits she might reason-
killed. not exceeding the amount claimed, to wit,
ably have received if the deceased had not been
$50,000."

read as follows:
And an offered and refused instruction

"The court instructs the jury that if they shall find for the plaintiff, their verdict cannot, in any event, exceed a sum which will yield, at interest at 6 per cent., a sum which will represent the proven pecuniary benefits which Mrs. Holloway received from her husband in his lifetime, and had reasonable expectation of receiving from him if he had not been killed. And the court further instructs the jury that the amount so awarded by them should be diminished by such amount as that, by using the interest and a part of the principal sum each year, the principal sum will have been exhausted at the expiration of decedent's expectancy of 28.62 years."

In holding that the trial court did not commit error in giving the instruction, or in rejecting the offered one, the court said:

"The instruction given, though general, was correct. It declared that the plaintiff was enas will fairly and reasonably compensate' the titled to recover 'such an amount in damages widow for the loss of pecuniary benefits she husband's death. This ruling did not imply that might reasonably have received' but for her the verdict should be for the aggregate of the several benefits payable at different times, withwhole amount of the verdict would be presently out making any allowance for the fact that the paid at one time. The instruction bore rather an implication to the contrary; for the sum compensate. The language used was similar was expressly stated to be that which would to that in which this court has since expressed "It is true that this instruction did not give in Chesapeake & O. R. Co. v. Kelly, supra, 241 the jury any criterion by which they should esti- U. S. 489, 36 Sup. Ct. 630, 60 L. Ed. 1117, L. mate the present cash value of the sum to be R. A. 1917F, 367, the measure of damages awarded as damages, nor do we know that it which should be applied. The company had, of was necessary that they should have been spe- course, the right to require that this general incifically instructed upon this point. In fact, it struction be supplemented by another calling atwould be rather difficult to draft an instruction tention to the fact that, in estimating what furnishing a formula as to the present cash val- amount would compensate the widow, future ue that would be helpful to the jury or assist benefits must be considered at their present valthem to fix the damages according to this meas- ue. But it did not ask for any such instruction. ure with any sort of accuracy. When juries Instead, it erroneously sought to subject the juof plain men in cases like this come to deter- ry's estimate to two rigid mathematical limimine the amount of damages that should be tations: (1) That money would be worth to the awarded, they cannot well be intelligently guid- widow 6 per cent., the legal rate of interest; ed by scientific or mathematical rules. In the (2) that the period during which the future benvery necessity of things they must take a gener-efits would have continued was 28.62 years-the al survey of the case and determine from all life expectancy of the husband according to one the facts and circumstances before them what of several well-known actuarial tables. The would be reasonable and fair compensation to company was not entitled to have the jury inthe dependents for the pecuniary loss sustained structed as matter of law either that money was 203 S.W.-35

"We, the undersigned, find for the plaintiff, A. W. Vaughn, in the sum of nine thousand ($9,000.00) dollars, the said sum to be equally divided by the city of Louisville and Ed. G. Duckwall, owner of the Daisey Boarding Livery Stable."

tached vehicles or other obstructions to constantly be and remain in a street at a point which will render the street not reasonably safe for travel by the public. To do so is negligence on the part of the city. If Upon this verdict the court rendered a Vaughn was negligent in failing to see and judgment in favor of the plaintiff, Vaughn, avoid the shafts of the wagon, and this neglifor the sum of $4,500 against the city of gence on his part so contributed to his inLouisville and a like sum against Ed. G. jury that but for it he would not have been Duckwall, and each of the defendants prose-mits he saw the vehicles standing in the edge injured, his recovery is barred. Vaughn adcute and appeal.

The evidence for the plaintiff tends to show that as he started from the pavement to board the car, immediately before his injury, he had his eyes fixed upon the approaching car in an endeavor to read the name of the street or town to which the car was destined. And while he observed the two wagons in the street near the pavement, he did not see or observe the shafts over which he stumbled and fell. He testifies that the shafts were almost exactly opposite the rear entrance of the interurban car which he attempted to board, and therefore at a point at which passengers would be while boarding and alighting from interurban cars. He further shows that the street at that time and place was quite dark, and that he was not acquainted with the fact that the livery stable owners had theretofore habitually placed vehicles in the street at that point.

The evidence for the defendants is to the effect that Vaughn, who had just arrived at the street intersection and who had observed the location of the wagons, negligently attempted to leave the pavement, crossing over the wagon shafts in his hurried effort to catch the car, and did not look where he was stepping, and that his fall was the result of his own carelessness. The evidence fully establishes the fact that vehicles were habitually placed and allowed to remain in the street near the point of the injury by the defendant Duckwall, who owned and kept the livery stable at that place, and that this custom had prevailed for many months before

the accident.

It is practically admitted also that the agents of the city who had supervision of its streets, including its police officers who patrolled Green street at that point, knew, or by the exercise of ordinary diligence should have known, of the custom and habit of the livery stable owners to place vehicles in the street at that point, and that the same in some measure obstructed the highway.

of the street before his injury, but he says he did not see or observe the shafts, and that his mind and attention were fixed at the time on the approaching car, and he did not think of, or have his attention called to, the wagons or shafts. That was a public street and a place at which Vaughn had a right to be, and to presume to be safe for travel. Under such circumstances it was not negligence as a matter of law for Vaughn to leave the pavement and proceed towards the car, at a proper place in the street, without closely observing the ground, especially when his mind and attention was attracted by and directed to an approaching car upon which he was attempting, in the hazy darkness, to discover the name. When a pedestrian has notice of the dangerous condition of a street he is bound to exercise care commensurate with the necessities of the situation, but even with such notice or knowledge, if his attention be momentarily diverted and he does not see the obstruction, he will not be denied a recovery. City of Ashland v. Boggs, 161 Ky. 728, 171 S. W. 461, Ann. Cas. 1916B, 1005; Merchants' Ice & Cold Storage Co. v. Bargholt, 129 Ky. 60, 110 S. W. 364, 33 Ky. Law Rep. 488, 16 Ann. Cas. 965; City of Louisville v. Brewer's Adm'r, 72 S. W. 9, 24 Ky. Law Rep. 1671; City of Maysville v. Guilfoyle, 110 Ky. 670, 62 S. W. 493, 23 Ky. Law Rep. 43; City of Paducah v. Simmons, 144 Ky. 640, 139 S. W. 851; City of Madisonville v. Pemberton's Adm'r, 75 S. W. 229, 25 Ky. Law Rep. 347. Under facts similar to those in this case this court has several times held that whether the plaintiff was guilty of contributory negligence such as would defeat a recovery was a question peculiarly within the province of a jury. This question was properly submitted to a jury in this case and found against appellants.

Much complaint is made of the instructions by both appellants; each insisting that a peremptory instruction should have been given to find for both defendants. A motion The chief complaint of appellants is: (1) to this effect was made by each in the lower That appellee, Vaughn, was guilty of con- court, and overruled. Since we have already tributory negligence, but for which he would determined that the questions of negligence not have received his injury; and (2) the and contributory negligence, under the facts erroneous instructions of the trial court. As- of this case, were properly for the jury, it serting that appellee, Vaughn, was guilty of contributory negligence but for which he would not have received his injury, appellants urge a reversal should be granted.

[1-5] A municipality must not allow de

is now unnecessary to enter into a discussion of the motion for a directed verdict, except to say that the trial court did not err in overruling the motion as to both defendants. [6] Instruction No. 1 submitted to the jury

the case against the livery stable. As mat-ons there, it was incumbent on the city and ter of law, the owner of the livery stable its street officers to anticipate the presence was liable for the injury if it resulted di- of such obstructions at such place, especially rectly from the wrongful act of such owner during the hours in which the wagons are in leaving the vehicles in Green street at the shown by the evidence to have always been point in question, unless Vaughn was him- there. The mere fact that the city could not self guilty of such contributory negligence as tell when a given wagon was standing at a but for which he would not have been in- certain point on the street in this vicinity jured. was of no consequence, if it knew from use and custom that wagons would be at that point; it was liable for the injury if the street at that point was rendered not reasonably safe by the obstructions placed there by the livery stable owner with the acquiescence of the city.

[7] The stable owner left the vehicles in the street. Vaughn says the shafts were in the gutter of the street and that he stumbled over them and fell, at a time when he was attempting to cross the street at the usual place and in the customary manner, which is to say, he was employing ordinary care for his own protection. There was evidence tending to prove that because of the wagons in the street at that point the street was not reasonably safe. Upon these facts the court instructed the jury to find for plaintiff, Vaughn, only in case it should believe from the evidence that the stable owner and his agents placed the wagons in the street and same were there at the time and before the injury, and that by reason of the presence of the wagons at that point the street was rendered not reasonably safe, and plaintiff Vaughn was caused to and did fall and was injured as a direct result of the obstruction in the street, at a time when he was exercising ordinary care for his own safety. Otherwise the jury was told to find for defendant Duckwall. This instruction very clearly submitted the questions involved to the jury.

With the issues and evidence thus made up the trial court instructed the jury to find for plaintiff, Vaughn, against the city of Louisville in case it believed from the evidence that the owner of the livery stable and his agents had, through a long period of time continuously theretofore and then, stored vehicles in the street at the point where Vaughn was injured in such way and manner as to render the said street at that point not reasonably safe at the time of the injury, and that the agents of the city knew, or by the exercise of ordinary care should have known, of this constant use of the streets to store wagons, and from such knowledge, if it existed, in the exercise of ordinary care would reasonably anticipate the presence of vehicles on the street at said time and place, and in fact such wagons were then on the street, and plaintiff, Vaughn, in the exercise of ordinary care, fell over the shafts and was injured thereby as a direct result of the failure of the city to have and keep its street at said point in

should be for the plaintiff; otherwise for think the instructions fairly presented the the defendant. Upon the whole case, we think the instructions fairly presented the law applicable to the issues involved.

[8] The second instruction presents great er difficulties. It attempts to present the case against the city of Louisville. To thoroughly understand this instruction one must remember that the evidence did not show a reasonably safe condition, the verdict that one certain wagon had been left continually in the street at the point of injury, but that several different wagons had been placed along that side of the street near and over the point in question, and, further, that no one of the vehicles remained in the street continually, but only at certain intervals from 6 a. m. till 1 a. m. the next day. From the evidence we learn that the city authorities who had charge of the streets knew, or had ample opportunity to have known, of the continuous habit of the stable owner to place wagons in the street at that point, and notwithstanding such notice or knowledge failed to prevent, or attempt to prevent, such wrongful use of the public street for storage of vehicles. Under such a state of facts it was not possible for the city authorities in charge of the streets to know that a given wagon was standing in the street at that point, except when looking directly at the wagon, but from such long and uninterrupted custom of the stable owner to place wag-firmed.

As there was a controversy as to who own ed the livery stable, E. G. Duckwall or his brother, C. B. Duckwall, the court also submitted that question to the jury by proper instruction, and the jury found Ed G. Duckwall to be the owner of the stable. The evidence considered, we are constrained to the belief that the jury correctly found the fact.. The jury was also told that the city was not liable for injury occasioned by obstructions. placed in the street by third persons, unless such obstruction was known to the defendant city, or had remained in the street for such length of time and under such circumstances as to charge the city and its officers. in charge of its streets with notice thereof.

Perceiving no error to the prejudice of either, of appellants, the judgment is af