are, in the nature of things, so engrossed with, it in motion; or, after leaving the car in their duties as to render it impossible for motion he could, after removing the obstructhem to keep in mind the location of every tion, have waited for it to pass the post and dangerous obstruction along the railroad place of danger and again climbed upon it tracks. Forgetfulness as to such obstructions, without stopping it. But instead of taking in one engaged in the daily occupation of either of these safe methods of avoiding operating a railroad train or interurban elec- the danger ahead, he took the only course tric car, does not of itself constitute negli- that could have resulted in his death. gence. The decedent, Hammond, was not a Even had the decedent not been charged with railroad operative, and the law as to the the duty of inspecting the tipple in its variright of recovery by train operatives does not ous parts to ascertain whether it was reaapply to such a state of facts as is present- sonably safe for the performance of the work ed in this case. Trosper v. East Jellico Coal required of appellant's employés, it could not Co., 135 Ky. 406, 122 S. W. 205. be said that his attempt to get upon the car while in motion, in the face of the obvious risk to be encountered in so doing, was excusable on the ground of his forgetfulness of the danger; for there is nothing in the evidence to justify such a conclusion. Nor can it be said that he was confronted by an emergency that compelled the action taken by him. If there was an emergency, it was caused by his negligence in failing to stop the car, when he got it, to remove the obstruction that he saw upon the track, or in attempting to again get on it while in motion. One cannot by his negligence create an emergency, and at the same time avail himself of it, to profit by the consequences of such negligence. As said in Wilson v. Chess & Wymond Co., 117 Ky. 567, 78 S. W. 453, 25 Ky. Law Rep. 1655: [4] The coal cars used at appellant's tipple were never rapidly moved by its employés, but slowly, a single car at a time, requiring only such control as would be maintained by a single man at the brake. It appears from the evidence that the decedent frequently moved the coal cars himself; and that on the occasion of receiving the injuries that caused his death, Hammond knew of the presence of the pile of timbers between the railroad tracks near the tipple, for, as foreman of the tipple, he had caused them to be placed there. When he discovered the presence of one of the timbers on the track in front of the car upon which he was acting as brakeman, the car was 30 feet from the tipple, and even a greater distance from the obstruction on the track. The evidence is all one way as to the following facts: That when Hammond left the car to remove the obstruction from the track it was moving slowly, and he had it under perfect control; that after he had removed the timber from the track he returned, meeting the car, which was still in motion, and while it was in motion attempted to get upon it without stop ping it, having placed one of his feet in the iron stirrup at the side and front of the car and the other on the front beam, when his body was caught between the car and post and so badly crushed as to cause his death. The situation as thus shown by the evidence manifests the decedent's negligence, and that, but for such negligence, he would not have been injured or killed. In front of the car he was controlling was a place of danger which was known to him as tipple foreman, or would have been known to him but for his negligence in failing to perform the duty of inspecting the tipple and its various parts. Yet with this knowledge, after removing the obstruction from the track in front of the car, he negligently attempted to get upon it while it was still in motion, in doing which he voluntarily put himself in a place of known danger and thereby lost his life. There were two ways in which he could have removed the obstruction from the track without subjecting himself to danger. First, by stopping the car before leaving it to remove the obstruction, and again getting upon the car and to his place at the brake, before putting "The duty of the master to furnish a safe, or reasonably safe, place in which the laborer may do his work is frequently either misunderIn the first place, the stood or misapplied. master is not required to furnish an absolutely safe place. If the work is in and of itself dangerous, the master does not insure against such danger. On the contrary, there is nothing better settled than that the servant assumes the ordinary risks and hazards incident to the character of his work. Whatever may be the moral obligation resting upon those who employ people in hazardous work to furnish them the safest possible means to protect them from injury, the law does not forbid a laborer undertaking a hazardous employment with full knowledge of its dangers, if he wants to. If he does, the law leaves the risk upon him, for he has assumed it. There is no feature of the law of negligence better settled than this." [5] According to the view we are constrained, by the evidence, to take in this case the contributory negligence of the decedent was A servant is not enticlearly established. tled to recover for negligence of the master if he himself is also guilty of negligence without which the accident would not have occur red. The refusal of the circuit court to grant the peremptory instruction directing a verdict for the appellant was error. This conclusion makes the consideration of other questions, urged by the appellant, unneces sary. Judgment reversed, and cause remanded for a new trial consistent with the opinio HANNAH, J., not sitting. HODGEN v. HODGEN. (Court of Appeals of Kentucky. Oct. 14, 1914.) 1. HUSBAND AND WIFE (§ 283*)-SEPARATE MAINTENANCE-RIGHT OF WIFE. Where the differences between a husband and wife, which resulted in the husband's leaving home, were caused by the wife's ill health and the husband's failure to make demonstrations of his affection, although his wife was very high-strung and exacting, the wife is properly granted an allowance for maintenance of herself and infant child. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 1062-1073; Dec. Dig. & 283.*1 2. HUSBAND AND WIFE (§ 283*)-SEPARATE MAINTENANCE-ALLOWANCE Where a husband left home without justification and did not return, though requested to do so by his wife, a monthly allowance for her separate maintenance is proper, as the husband could effect a reconciliation, and his chief source of income was from his profession. [Ed. Note.-For other cases, see Husband and Wife, Cent. Dig. §§ 1062-1073; Dec. Dig. 283.*] 3. HUSBAND AND WIFE (§ 298*)-SEPARATE MAINTENANCE-ALLOWANCE-AMOUNT. Where a husband, who had an income of about $2,000, the bulk of it being derived from his practice as a dentist, left his wife without justification, an allowance of $85 per month for her support and that of their infant child is not excessive. return. He declined to do so, and since said of others. We deem it unnecessary to set out at length the little incidents relied on by each party to show that the other was at fault. [Ed. Note.-For other cases, see Husband It is apparent that plaintiff was of an affecand Wife, Cent. Dig. § 1093; Dec. Dig. §tionate disposition, and perhaps her affection 298.*] Appeal from Circuit Court, Marion County. Action by Bessie Hodgen against William S. Hodgen for support and maintenance. From an allowance to plaintiff, defendant appeals. Affirmed. H. W. Rives, of Lebanon, for appellant. William W. Spalding, of Lebanon, for appel lee. CLAY, C. Plaintiff, Bessie Hodgen, brought this action against her husband, William S. Hodgen, to recover support and maintenance for herself and an infant child, six years of age. The chancellor made her an allowance of $85 a month. Defendant appeals. was of rather an exacting character. Her nature demanded from her husband those little attentions which are always indicative of love, and which the husband should not fail to give, especially where they are absolutely essential to his wife's happiness. We may refer to one or two instances which show defendant's attitude towards his wife. His wife was sick in bed. He returned from his office in the evening. She asked him to come sit by her and hold her hand. He replied that he had been on his feet all day and was tired. She burst into tears, and upbraided him for his lack of interest. He called on his mother-in-law to quiet her, when the only soothing she needed was some [1] Plaintiff and defendant were married demonstration of his love. When she went early in the year 1906. After their marriage, on a visit to her sister in Louisville it does they boarded at the home of defendant's par- not appear that he was advised of the fact ents, and remained there for about 18 months. that she would be operated on. After the On April 25, 1907, their only child, Will S. operation took place plaintiff's father was Hodgen, Jr., was born. Later on they went advised of the fact, and immediately bore to housekeeping, and kept house until the the news to defendant. The operation was month of October, 1911, when plaintiff went of a serious character. Defendant did not go to visit her sister in Louisville. On October to his wife until about eight days later. 27th, plaintiff was operated on for some fe- When he did go, he remained in the room male trouble, and at the same time her ap- with plaintiff for only a short while, and pendix was removed. She then returned to then expressed a desire to go out and see Lebanon, and for some time she and her hus- the city of Louisville, which he had not seen band made their home with her parents, who for some time. It is true we cannot look lived in the country. After leaving the home into the home of these parties and appreciof her parents, they again went to house- ate fully the provocation for defendant's keeping. On June 1, 1912, defendant left conduct. It may be that plaintiff frequently his home. On June 4th of the same month complained to him of his lack of affection. plaintiff wrote him a letter asking him to It may be that her complaints were at times For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes [2, 3] But it is insisted that the allowance of $85 a month is out of proportion to defendant's property and income, and that it would be more in harmony with the later opinions of this court to award plaintiff a lump sum. The evidence shows that defendant settled on his mother about $5,000 worth of bonds in trust for his child. The income, however, was to the mother as long as she lived. In addition to this property, which for the purpose of this case may be taken into consideration, plaintiff has certain real estate upon which he receives a net income of $450. His net income from his dental practice is about $1,400. It may be safely said, therefore, that he has an income in excess of $2,000 a year. Taking into consideration defendant's income, and the social standing of the parties, we conclude that an allowance of $85 a month, or $1,020 a year, is altogether reasonable. While in later cases of an absolute divorce, we have adopted the rule to award a lump sum, yet in a case like this, where there has been a mere separation from bed and board, and the defendant's chief source of income is from his profession, we see no reason for changing the method or amount of payment fixed by the chancellor, in view of the fact that these matters are still under his control, and may be altered to meet any change in the condition of the parties. without adequate cause. At the same time it, provision for the maintenance and support conclusively appears from the record that of his wife and child. plaintiff was unhappy, and this unhappiness grew out of the belief that defendant no longer loved her. That part of it was due to her imagination may be true, but that much of it was due to his natural coldness and indifference the record leaves no room to doubt. Defendant justifies his abandonment of his wife by the production of certain papers written by her, and which he filed with his answer. We deem it unnecessary to copy these papers in full. They are not addressed to any one, and are not susceptible of the construction that plaintiff was in love with any one else. In these letters she refers to the fact that she married the one that she loved best, but not the one that loved her best. She speaks of her husband's lack of affection, and of her consequent unhappiness. While it is true that she speaks of some unknown person who had loved her, and whose love had never changed, and of the fact that he had come to her in her dreams and had made her happy, there is no suggestion of impurity or unfaithfulness on her part, but merely an expression of the consolation afforded her by the fact that some one else loved her and stayed by her in her unhappiness. Indeed, the letters are nothing more than the outpourings of a sensitive heart, made unhappy by the belief that her husband, whom she had loved best, no longer loved her, and a silent appeal to some one else to come and help her bear her troubles. The chancellor made no order with referIt does not appear that these letters to an un-ence to the custody of the child, but reserved known person were ever intended for human this question for future adjudication. In eyes. They were not addressed to any one, view of this fact, we express no opinion of nor were they ever given to any one to be the question, but for the present leave the delivered. Since, in our opinion, they do not determination of it to the chancellor, with contain even a suggestion of impurity or un- full confidence that he will place the child faithfulness, we conclude that they do not where its welfare will be best subserved, and offer any reasonable ground for defendant's at the same time give to the other parent a abandonment of his wife, especially in view reasonable opportunity to see and visit the of the fact that they were the offspring of a child. condition of mind which defendant had helped to bring about by his own indifference, which, considered in the light of her highly organized and nervous temperament, and her natural tendency to melancholia, of which he was fully aware, amounted to a species of cruelty on his part. While we cannot say that plaintiff was altogether free from fault, yet when we consider that on the one side is a woman of a nervous and sensitive nature, demanding love and affection, while on the other side is a man of more than ordinary force and strength, who begrudged her those little attentions which would have gratified the cravings of her heart, we conclude that his fault is the greater. Out of it grew those conditions which are in a great measure responsible for any shortcoming which may be justly charged to plaintiff. It follows that the chancellor did not err in requiring the defendant to make suitable Judgment affirmed. PHILADELPHIA VENEER & LUMBER CO. v. GARRISON. (Court of Appeals of Kentucky. Oct. 16, 1914.) 1. PLEADING (§ 320*)—BILL OF PARTICULARS— RIGHT TO. In an action upon a logging account, where plaintiff, who could neither read nor write, relied on defendant to keep the account, defendant is not entitled to a bill of particulars of the account; the information being more within its knowledge than that of plaintiff. [Ed. Note.-For other cases, see Pleading, Cent. Dig. § 972; Dec. Dig. § 320.*] 2. ASSIGNMENTS (§ 48*) -EQUITABLE ASSIGNMENT-WHAT CONSTITUTES. Any order which makes an appropriation of a debt or fund amounts to an equitable assignment, where it is such as gives the assignee a present interest in the chose, even though, *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes as between the assignee and assignor, it was intended only as security. [Ed. Note. For other cases, see Assignments, Cent. Dig. § 133; Dec. Dig. § 48.*] 3. ASSIGNMENTS (§ 58*)-VALIDITY-ACCEPTANCE-NECESSITY. The acceptance of an assignment of a debt by the debtor is unnecessary to enable the assignee to maintain an action where the assignment is for the full amount of the debt. [Ed. Note. For other cases, see Assignments, Cent. Dig. §§ 121-123; Dec. Dig. § 58.*] 4. ACTION (§ 24*)-EQUITABLE DEFENSES IN ACTIONS AT LAW EQUITABLE ASSIGNMENTS-EFFECT. The fact that an equitable assignment is set up in an action at law, instead of an equitable action, will not prejudice the merits of the case, being at most cause for transferring it to the equity docket. balances due under certain logging contracts. A somewhat detailed statement of those contracts, in their chronological order, is necessary to fully understand the case. (a) Appellant owns a boundary of land and the timber trees standing thereon, situated on the waters of Little Clear creek, near Carlsbad station, in Bell county, Ky. It also operates a sawmill at Knoxville, Tenn. For the purpose of having the trees cut down and sawed into logs and loaded upon cars at Carlsbad station, appellant entered into a written contract on May 8, 1907, with Z. B. Garrison, whereby Garrison agreed to cut and deliver the poplar timber, upon cars at Carlsbad station, for $10 per thousand feet. The oak, chestnut, and other timber was to [Ed. Note.-For other cases, see Action, Cent. be delivered at two designated sawmills in Dig. $ 153-155; Dec. Dig. § 24.*] the neighborhood, and for that service the 5. TRIAL (§ 11*) TRANSFER OF CAUSE TO EQUITY DOCKET. company agreed to pay $4 per thousand feet. Civ. Code Prac. § 10, subsecs. 2, 3, 4, pro- Garrison further agreed to complete the vide that the defendant, by motion made when work within two years, and that 20 per cent. or before answer, may have an ordinary action of the contract price should be retained by transferred to the equity docket, if it should have been an equitable action, that the court may, the company as a forfeit "until the complewithout motion, order the transfer, if either tion of the job"; it being further "distinctly party be entitled to such transfer, and that the understood and agreed that, if the said Garcourt may, in its discretion, either with or without motion, transfer an action from the ordi- rison should fail to complete his contract, the nary to the equity docket, whenever such trans- said 20 per cent. retained to be forfeited." fer is necessary because of the peculiar questions Garrison worked under the contract until involved, or because the case involves accounts some time in February, 1909, when, according so complicated as to render it impracticable for to appellant, Garrison agreed to cancel the the jury to intelligently try the case. action involving complicated accounts, consist- hardwood part of the contract upon the aping of numerous items of credit and charge pellant paying Garrison the $2 per thousand extending over a period of four years, the defendant made no motion for transfer to the equi- feet which had been retained on all the ty docket until the day the case was set for hardwood timber gotten out by him to that trial. Held that, the action being so complicat- date, and extending for one year the time ed that it could not be intelligently tried by a for getting out the poplar timber. At that jury, the court should, on its own motion, have transferred the cause to equity. time Garrison had earned $3,409.87 in getting out hardwood timber; the retained portion thereof being $681.95. This last-named amount was paid to him on February 26, 1909. In an [Ed. Note. For other cases, see Trial, Cent. Dig. §§ 28-30; Dec. Dig. § 11.*] 6. SET-OFF AND COUNTERCLAIM (§ 34*)-SUBJECT-MATTER-ACTION FOR BREACH OF CONTRACT-EXPENDITURES. Where plaintiff's breach of earlier logging contracts necessitated defendant's paying an increased price to have the contracts completed, defendant is, in an action for sums due on the contracts, entitled to set off his increased expenditure as a counterclaim. [Ed. Note. For other cases, see Set-Off and Counterclaim, Cent. Dig. §§ 56, 57; Dec. Dig. § 34.*] (b) During the spring and summer months of 1909, Z. B. Garrison did but little work, and failed to carry out the contract of May 8, 1907. In August, 1909, he applied to Yost, the agent of appellant, to know if appellant would consider Garrison taking Granville Garrison in as a partner on the work he was doing. The company consented to the arrangement, but Granville Garrison would not agree to work under the contract of May 8, 1907; and in order to induce Granville Garrison to undertake the work, Z. B. Garrison agreed to the cancellation of the contract of May 8, 1907, and to the making of a new contract on August 19, 1909, between the company as the party of the first part and Z. J. C. Jones, of Pineville, and D. K. Rawl- B. Garrison and Granville Garrison of the ings, of London, for appellant. James M. Gil- other part. Garrison's retained money on bert, of Pineville, and W. R. Lay, of Barbour-poplar logs then amounted to $283.08. ville, for appellee. Appeal from Circuit Court, Bell County. Action by Wiley Garrison and another against the Philadelphia Veneer & Lumber Company. From the judgment plaintiff Wiley Garrison, defendant appeals. Reversed and remanded, with directions to transfer to equity docket. Under this new contract the Garrisons agreed to cut and deliver on board the cars MILLER, J. This is an action at law at Carlsbad station all the poplar trees of a filed by the appellee, Wiley Garrison, against specified description on appellant's said land the Philadelphia Veneer & Lumber Company, for $10 per thousand feet. Of the contract a Pennsylvania corporation, to recover the price, 50 cents per thousand was to be paid For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes to appellant for the use of its tramway;, aggregating 148,340 feet, at the end of the $4.50 thereof was to be paid when the logs tramway; but appellant stoutly denies that were delivered at the end of the tramroad; all of the 624 logs were ever received at $3 per thousand to be paid when the logs Knoxville, and insists that only 605 logs, agwere measured and loaded on the cars and gregating 117,531 feet, were ever received ready for shipment; and the remaining $2 of at Knoxville. The shortage of 19 logs is the contract price was to be paid when the not accounted for. This transaction is made Garrisons had completed their work, and, in the basis of the first paragraph of the peticase they should fail to complete their work tion, wherein appellee sued for the balance according to the terms of the contract, "the of $129.79 alleged to have been retained on said $2 on each 1,000 feet of said logs should| 148,340 feet of logs; and in this paragraph be forfeited to and kept by the party of the appellee further sued to recover $341.22 alfirst part." Said contract of August 19, leged to be due him as the second payment 1909, contained this final clause: of $5 per thousand feet on 64,244 feet of logs which they claimed had been delivered at Knoxville, but not paid for. "In consideration of this contract, the party of the first part and Z. B. Garrison, of the second part, do hereby agree and declare that the written contract between them of date May 8, 1907, touching logs to be cut on the aforesaid land, and all subsequent written or parol modifications thereof, are no longer of any binding force, but are wholly merged in or superseded by this contract." In its answer appellant traversed these two claims, and not only alleged that only 117,531 feet of logs had been delivered at Knoxville under the contract for which it had fully paid, but that, in order to have In the spring of 1910, Z. B. Garrison, with the remainder of the logs delivered accordout consulting appellant, sold out his inter- ing to the contract, it had been compelled est in the contract to Granville Garrison, to go to an additional expense and sustainwho, in about July, 1910, abandoned the worked losses, aggregating $700, which it asserted and refused to further carry out his contract, although he was urged to do so by the ap pellant; and upon his failure to continue the work, appellant made other arrangements for the delivery of the logs called for by the contracts of May 8, 1907, and August 19, 1909. (c) Shortly after the abandonment of the contract of August 19, 1909, the appellant made a verbal contract in the month of September, 1910, with the appellee, Wiley Garrison, Z. B. Garrison, and J. H. Wyatt, by which the three-named parties were to complete the delivery of certain logs found within a certain boundary, which Granville Garrison had failed to deliver while working under the contract of August 19, 1909. Under this verbal contract appellee claimed $72.56 was due him; and as the appellant expressly conceded this claim to be correct, nothing further need be said concerning it. (d) The work which originally had been undertaken by the Garrisons under the contracts of May 8, 1907, and August 19, 1909, remaining unfinished, and appellant being desirous of completing it, it made another contract with the appellee, Wiley Garrison, and Z. B. Garrison on September 30, 1910, whereby they were to deliver, on the cars at Carlsbad station, all the poplar timber and logs which Granville Garrison had abandoned and left in the woods. For this they were to get an increased price of $12 per thousand feet-$2 more than the original contract price and payable as follows: $5 per thousand feet when the logs were delivered at the end of the tramway, $5 per thousand feet when the logs were received at Knoxville, and the remaining $2 per thousand when the entire work was completed. It is agreed by the parties that under this contract the Garrisons delivered 624 logs, as a counterclaim against the Garrisons. Eliminating, therefore, from further con sideration, appellee's claim for $72.56 asserted in the second paragraph of the petition, which appellant concedes to be correct, we have remaining for consideration the first and third paragraphs of the petition-the first asserting the claim of $129.79, the unpaid balance retained on 148,340 feet of logs claimed to have been delivered at Knoxville and the further sum of $341.22, being the under the contract of September 30, 1910, second payment of $5 per thousand on 68,244 feet of lumber claimed to have been de and the third paragraph of the petition, in livered at Knoxville under the same contract, which appellee claimed $283.08 as the re tained portion of his money earned under the contract of May 8, 1907. Wiley Garrison sued partly in his own right and also as assignee of Z. B. Garrison, joining Z. B. Garrison as plaintiff, under the following order, or assignment: "Pineville, Ky., Oct. 19, 1911. "Philadelphia Veneer & Lumber Co.: coming to me; also the retain. Pay everything "Please pay Wiley Garrison what money is that is coming to me, over to Wiley Garrison. "Witness: C. B. Bird." his "Z. B. X Garrison. mark Upon the presentation of the assignment to appellant, it wrote Z. B. Garrison, on October 21, 1911, informing him that the assignment had been presented, and asking him to advise appellant as to its correctness. Appellant made no objection to accepting the order. It only wanted to be assured of its genuineness. The jury returned a verdict for the four amounts claimed, aggregating $826.65; and from a judgment for appellee upon that ver |