On the 23d day of May, which was the third day of the term, the following order was entered by the court:

"This cause coming on to be heard upon the motion of the plaintiff to be allowed to dismiss this action without prejudice, and the defendant F. L. Price appearing, objected to said motion, and also moved the court to dismiss this cause absolutely, and dissolve the injunction herein granted by the clerk of this court, and also having filed in support of said motion his affidavit, which is hereby made a part of the record herein, and the court having considered said motion and being advised, adjudges: (1) That the motion of the plaintiff to be allowed to dismiss this suit without prejudice be, and the same is hereby, denied, and said motion is overruled; (2) it is further adjudged that the defendant F. L. Price's motion to dismiss this action absolutely be, and the same is hereby, sustained, and said cause is hereby dismissed absolutely; (3) it is further adjudged by the court that the restraining order and temporary injunction, heretofore granted in this cause by C. T. McCormick, clerk of this court, be, and the same is hereby, dissolved, set aside, and held for naught, and is of no further force and effect, and it is further adjudged by the court that the defendant F. L. Price recover of the plaintiffs, Tandy & Farleigh Tobacco Company, his costs herein expended, for which execution may issue after 10 days herefrom."

answer be treated as a set-off or counterclaim

against the plaintiff, nor indeed could he have done so in the absence of allegations tending to support such claim on his part against the plaintiff, but only asked that the action be dismissed absolutely, instead of without prejudice to a future action. We know of no rule whereby a court may dismiss an action absolutely, except upon hearing upon its merits, unless the party plaintiff moves the court to make such order. In this case the action was filed on March 21st, and on the first day of the first succeeding term the plaintiff moved to dismiss the action without prejudice. No property had been obtained under or by reason of the processes of the court in the case. It may be that the tobacco had been wrongfully appropriated by the Tandy & Farleigh Tobacco Company, but, if so, it was not through, or by, reasons of the processes of the court; and if the tobacco was or had been wrongfully appropriated by the tobacco company, that was an independent cause of action which the defendant Price was en

It will be observed that the only question presented upon this appeal is the right of the plaintiff to dismiss its action without prejudice to a future suit before final submission of the action to the jury or court, if the trial be by court. This question has been before this court frequently. Section 371, Civil Code, provides:

"An action, or any cause of action, may be dismissed without prejudice to a future action; *** by the plaintiff before the final submission of the case to the jury, or to the court, if the trial be by a court."

This precise question was before the court in the case of Ohio Valley Electric Railway Co. v. Lowe, 167 Ky. 132, 180 S. W. 61, and it was there held that a plaintiff may dismiss his action without prejudice to a future action at any time before the cause is finally submited to the jury or to the court, if the trial be by the court. See, also, Northwestern Mutual Life Insurance Co. v. Barbour, 95 Ky. 7, 23 S. W. 584, 15 Ky. Law Rep. 394; Schwartz v. C. & O. Ry. Co., 181 Ky. 1, 203 S. W. 852.

The rule seems to be well settled that a plaintiff may dismiss his action without prejudice to a future action at any time before the case is finally submitted to the jury, or to the court, if the trial be by the court, and this though the defendant object to the dismissal. At the time the plaintiff entered this motion to dismiss the action the defendant Price had given notice that he would, on

company irrespective of the proceedings in the action for specific performance, unless Price had sought to have relief by way of counterclaim, which he did not elect to do. A dismissal without prejudice to a future action would have afforded Price every relief to which he would have been entitled had the court dismissed the action absolutely; hence no right of the defendant Price would have been lost or invaded by the court sustaining the motion of appellant to dismiss the action without prejudice.

The old case of Rogers v. Bradford, 8 Bush, 163, is cited and relied upon. In that case it is held that in an action to recover specific personal property, where the plaintiff has executed the required bond to perform the judgment of the court, "by returning the property if a return thereof shall be adjudged," and where by reason of the order and bond the plaintiff has obtained and withholds the property which is the subject of the action, he may not dismiss his cause to the prejudice of the claimant of the property, because, as is said in that case, "the defendant's claim for the return of the property taken from him in advance of judgment by an order of the court, * was of the nature of an action against the plaintiff, and could not be defeated or prejudiced by his refusal or failure to comply with the conditions of the bond." That rule has no bearing upon a situation such as we have here, and is easily distinguishable from the

*

*

It was therefore error of the lower court to overrule the motion of the plaintiff, Tandy & Farleigh Tobacco Company, to dismiss its cause without prejudice to a future action. Judgment reversed.

(180 Ky. 733; 181 Ky. 227)

LOUISVILLE & N. R. CO. v. ELMORE'S ADM'R.*

(Court of Appeals of Kentucky. May 28, 1918. Modified Opinion, June 21, 1918.) 236(15)-INJURY

1. MASTER AND SERVANT TO RAILWAY EMPLOYÉ.

Those employed upon railroad tracks are required to take notice of and anticipate the running of trains.

2. MASTER AND SERVANT

137(4)-INJURY TO RAILWAY EMPLOYÉ-CARE REQUIRED. The operators of trains are not generally required to anticipate employés' presence upon the track, or to take necessary steps to prevent injuries to them, except after discovering their peril; consequently such employés are are not entitled to demand that signals of the train's approach be given. There being no such duties owing, there would be no negligence in failing to perform them.

Modified Opinion.

3. MASTER AND SERVANT 137(4) - INJURY TO RAILWAY EMPLOYÉ-HEADLIGHT.

As to a section hand, using a hand car to transport himself home after work, the railway company was required to have its engines equipped with headlights; such employé being a li

censee.

4. MASTER AND SERVANT 286 (34)-INJURY TO RAILWAY EMPLOYÉ QUESTION FOR JURY. In an action by section employé, injured by collision between a hand car on which he was returning home after work and a train, held, that the question of defendant's negligence in failing to have its engine headlight burning was for the jury.

5. MASTER AND SERVANT 289 (22)-INJURY TO RAILWAY EMPLOYÉ QUESTION FOR JURY -CONTRIBUTORY NEGLIGENCE.

Where a section employé's hand car collided with a second section of a regular train, and the signal boards by the track, indicating whether a train was in the block, could not be observed by the employé on account of the direction in which he was going, his contributory negligence held a question for the jury.

Appeal from Circuit Court, Madison

County.

Action by John Elmore's administrator against the Louisville & Nashville Railroad Company. Judgment for plaintiff of $1,200, and defendant appeals. Reversed, with directions. Modified on subsequent opinion.

Burnam & Burnam, of Richmond, Shelby, Northcutt & Shelby, of Lexington, and Benjamin D. Warfield, of Louisville, for appellant. Chenault & Wallace, of Richmond, for appellee.

the rear and colliding with the hand car. His administrator brought this suit against the railroad company to recover damages accruing to his estate because of his death, charging in a general way that the decedent was killed as a result of the negligence of the defendant, its agents and servants, in the operation of the train which collided with the hand car. The answer contained a general denial of the averments of the petition and a plea of contributory negligence, which was denied, and upon trial the plaintiff recovered a judgment for the sum of $1,200. Complaining of the judgment, the defendant prosecutes this appeal.

The accident occurred some 22 or 3 miles north of the town of Berea, about 50 or 60 yards south of a private crossing, and something near a mile north of a public crossing. The hand car and the train were both moving north. Between Berea and the place of the accident there was but one public crossing, being the one just mentioned, but there were some two or three private crossings, and it is insisted by plaintiff, both in the evidence introduced and in argument of counsel here, that the defendant was negligent in failing to give signals for not only the public crossing about a mile south of the place of the accident, but likewise failed to signal for the private crossing between the place of the accident and Berea, which, if done, as is insisted, plaintiff's decedent would have had warning of the approach of the train in time to avoid the accident. It is further insisted upon as an act of negligence that the train which produced the collision was not equipped with a headlight, or, if so, that it was not burning so as to enable the decedent to discover the approach of the train from the rear by the reflection of the light upon the track ahead, and thereby enabling him to avoid the accident.

The proof shows that at that hour of the day and at that season of the year it was practically dark. Elmore was a section hand, and had been at work as such for 15 or 16 years. The day's work had closed at 5 o'clock, and the crew had gone into Berea, but Elmore and two other section hands. lived north of Berea, near the railroad track, and with the permission of the section boss they used the hand car to transport themselves to their respective homes. One of them had left the car at the public crossing, while the decedent and another proceeded along the track, and were both on the car at the time of the collision; the companion of the decedent receiving slight injuries, from which he eventually recovered.

that signals were given for that crossing, and for at least some of the private crossings between the place of the accident and Berea. No one disputes but that the proper signals were given for the town of Berea, and which were heard by a number of people in the vicinity of the accident, as were also the signals given at the public crossing, but the surviving companion of the decedent, as well as one or two other witnesses who testified for the plaintiff, say that they did not hear such signals. They do not show that they were in a condition to hear the signals had they been given, except the fact that they were near enough to have heard them if they were so circumstanced at the time, and their attention was not otherwise attracted.

Upon the point concerning the burning of the headlight, all the evidence shows that there was a burning headlight, and the only circumstance even slightly indicative of the contrary is that the surviving companion of the decedent says that he did not see any reflection of the light upon the track around and ahead of the hand car before the collision. Besides the servants in charge of the train, and others upon it, testifying to the burning of the headlight, witnesses who saw the train back up after the accident say that it was then burning.

However, the question still remains whether the defendant is liable for either of such alleged acts of negligence, for if it did not owe a duty to decedent to give the signals which it is claimed were not given, or to have the engine equipped with a headlight, it would necessarily follow that it was not guilty of negligence in failing to do either of those things. In support of the contention that it was negligence to fail to give the signals complained of, we are referred to the case of Cahill v. Cincinnati, etc., Ry. Co., 92 Ky. 345, 18 S. W. 2, 13 Ky. Law Rep. 714, and other cases from this court following it. In that case it was held that one about to use a private crossing constructed for his benefit under a contract with the railroad company was entitled to rely upon and have the benefit of signals at a nearby public crossing, which signals had been customarily relied upon by those entitled to use the private crossing, and that a failure to give signals at the public crossing would constitute negligence, toward one about to use the private crossing under the circumstances narrated. But the rule was strictly confined in its application to the benefit of one about to use the private crossing in passing over the railroad track, and this court has consistently confined the application of the doctrine of that case within such limitations, and has never extended it to cases other than for the protection of those about to use the private crossing. N. N. & M. V. Ry. Co. v. Deuser, 97 Ky. 92, 29 S. W. 973, 17 Ky. Law Rep. 113; L. & N. R. R. Co. v. Vittitoe, 41 S. W. 269, 19 Ky. Law Rep. 614; Elliott v. L. & N. R. R. Co., 99 S. W. 233, 30 Ky. Law Rep. 472; C., N. O. & T. P. Ry. Co. v.

Harrod's Adm'r, 132 Ky. 445, 115 S. W. 699; L. & N. Ry. Co. v. Redmon's Adm'x, 122 Ky. 386, 91 S. W. 722, 28 Ky. Law Rep. 1293: L. & N. Ry. Co. v. Jenkins, 168 Ky. 512, 182 S. W. 626; L. & E. Ry. Co. v. Smith's Adm'r, 172 Ky. 117, 188 S. W. 1091. The same confining effect to the requirement of signals was announced in the case of Shackleford's Adm'r v. L. & N. R. R. Co., 84 Ky. 43, 4 Am. St. Rep. 89, decided by this court some five years prior to the Cahill Case. Since the decedent was not using nor attempting to use any character of crossing at the time he was injured, the rule sought to be invoked by counsel for appellee has no application under the facts of this case. If it be conceded—a fact which we do not feel called upon to determine-that decedent at the time of his death was rightfully upon the track of the defendant because of the permission of the section foreman for him to use the hand car, he still occupied no greater relationship to the defendant than the foreman of a section crew engaged in working upon the track during work hours, for at the time the car was in his and his companion's charge, and it was being used by them for their own benefit. They were in charge of that car at that time, and there is no question here as to whether they were at the time performing duties for the master who would then be obligated to furnish a reasonably safe hand car, because the injury complained of is not the result of any such failure. Assuming, then, that defendant owed to the decedent at the time the same duties that railroad companies generally owe to those working upon its tracks, let us briefly consider what such duties are, and whether under them the defendant is liable in this case.

The two cases of C., N. O. & T. P. Ry. Co. v. Swann's Adm'x, one reported in 149 Ky. 141, 147 S. W. 889, the other in 160 Ky. 458, 169 S. W. 886, L. R. A. 1915C, 27, had under consideration, according to our view, the direct question here involved. Swann, the decedent, was the acting foreman of a crew engaged in work upon or about the defendant's tracks. He was killed by being struck by one of defendant's trains. He was at that time working for the defendant, and it was complained that the master was guilty of negligence in running its trains at an excessive rate of speed, and that it failed to give signals of its approach to the place where Swann was working. In each case it was held that it was Swann's duty to himself ascertain and learn of the approach of trains, and to keep out of their way. A number of cases are referred to in that opinion, both. from this and other courts, and upon a final summing up the court said:

"It was the duty of Swann, as foreman of this work, to keep advised of the time of trains, so that he might warn the men under him of their approach, and also to keep the track free from tools and material used by the men in the progress of the work, and he was required to and did keep a watch as well as a time card.