Appellee, Annie Burns, brought this action against appellant, James Greene, to recover damages for personal injuries alleged to have been received through the negligence of one of appellant's servants. The jury awarded her $400. From the judgment based thereon, this appeal is prosecuted.

Appellant insists that the court erred in failing to award him a peremptory instruction.

Appellee testified that she went into Greene's store in company with a clerk by the name of McMeekin. He took her up on the elevator to the third floor, where he showed her some extension tables. She told him that Mr. Greene had said he had an extension table which sold at $20 that he would let her have for $14. McMeekin said. he would show her those tables. He walked over and exhibited a common table and opened it. She informed him that she did not like that one, inquired as to the price of another table, and was informed that it was $20. She then describes the accident in the following language: "He opened up the table to show me a spring or lock or something in there. It seemed like a spring or something under the table. I had my hand on the table, and looked under it. I had my hand on the table with my thumb down in the open part. He says, 'I advise you to take this table, it is a good oak table and will match your sideboard.' I took a look at it, laid my hand on the table, and looked down under it, and the next thing I knew he closed the table. I hollooed Oh, Oh! and looked right at Mr. McMeekin and Mr. McMeekin looked at me and looked excited. His face was real red and he had his hands on the table. I showed him my thumb and I said, "That has ruined my hand.' Then he went back to the other table, it seemed like he was in such a hurry to tell me about the other table, and commenced talking about the other table," etc., etc. She further testified that the table on which her thumb was injured was a round, pedestal table, and was not open at the time McMeekin first showed it to her. While appellee testified that McMeekin closed the table, she failed to say that she saw him close it.

Appellee's daughter, Annie Burns, a child nine years of age, testified that she accompanied her mother to appellant's place of business on the occasion in question. When her mother was looking under the table McMeekin touched the table and hurt her mother's hand. On cross

examination she stated that she was standing between McMeekin and her mother, and McMeekin was at her back.

Assuming that the evidence shows that appellee's thumb was injured by the table's being closed, and that McMeekin closed the table, is that sufficient to justify the submission of the case to the jury? There is nothing in the evidence to warrant the assumption that the table automatically closed itself; therefore, it can not be said that the table itself was dangerous. It may be conceded that McMeekin, in displaying the table and in opening and closing it, was bound to exercise ordinary care not to injure appellee. Appellee did not testify that McMeekin knew that her thumb was between the leaves of the table, or to any fact from which it could be reasonably inferred either that he knew, or by the exercise of ordinary care could have known, that such was the case. To sustain the charge of negligence, it was absolutely necessary to show that one of these states of fact existed; mere proof of the fact that the table was closed and appellee's hand was hurt, is not sufficient. As appellee's evidence, considered in the most favorable light to her, did not go any further than this, we conclude that the court erred in refusing the peremptory instruction requested by appellant.

Judgment reversed and cause remanded for a new trial consistent with this opinion.

Trussle v. Cincinnati, New Orleans & Texas Pacific Railway Co.

(Decided March 11, 1911

Appeal from Jessamine Circuit Court.

Fellow Servants.-Laborers in the same gang and reporting to the same foreman, and engaged in the same department and the same grade of a common employment, are fellow-servants notwithstanding the fact that they are working forty feet from each other, and where one is injured by the negligence of the other the master is not liable.

EVERETT B. HOOVER, ROBT. HARDING and E. V. PURYEAR for appellant.

JOHN GALVIN and N. L. BRONAUH for appellee.

OPINION OF THE COURT BY WM. ROGERS CLAY, COMMISSIONER-Affirming.

Appellant, Silas Trussle, brought this action against appellee, Cincinnati, New Orleans & Texas Pacific Railway Company, to recover damages for personal injuries alleged to have been due to the negligence of said company. At the conclusion of the evidence for appellant the court awarded the railway company a peremptory instruction. To review the propriety of this ruling, Trussle has appealed.

Appellant charged in his petition that "the defendant's servants, who were engaged in work at a point and place about forty feet or more above the place where the plaintiff was directed to go and required to work, and who were out of the sight of this plaintiff, by their gross negligence in shoveling and handling and working at said place aforesaid, caused, suffered and permitted dirt, rock and stone to fall, roll and be thrown down upon the plaintiff, from said place aforesaid, a portion of which rock, stone and dirt struck and severely injured this plaintiff's hand," etc.

Appellant was a laborer in appellee's employ. He belonged to a force of laborers known as Williams' gang. On the morning of September 18, 1909, appellant and Milton Rawlings were put to work tearing loose the forms from some concrete work under High Bridge over the Kentucky river. Herbert Winkle and Dan Reynolds, two other members of the same gang of workmen, and who were that day working under the same foreman, were engaged about forty feet higher up on the cliff in making an excavation in which other concrete work was to be laid in a form. Neither Herbert Winkle nor Dan Reynolds was superior in authority to appellant. When appellant went to work that morning he knew that Winkle and Reynolds had been working where they were employed for several days. He knew that they were throwing rock and dirt from the place where they were at work, and that it was rolling down the cliff and within a few feet of him. Between ten and eleven o'clock in the morning a rock, which was thrown from a shovel handled by Herbert Winkle, who was working on the cliff about forty feet above appellant, rolled down the cliff and struck appellant on the hand, causing the injury complained of. Appellee defended on the ground that appel

lant and the party causing the injury were fellow-servants.

Here appellant and the servant causing his injury were members of the same gang of laborers and were engaged in a common employment. Appellant was tearing away the wooden form around the concrete structure that had recently been made, while Winkle was engaged in making an excavation in the side of the cliff in which to build another structure. Not only that; they were engaged in the same grade of the common employment, as neither one could receive from or give orders to the other. The fact that they were forty feet apart does not alter the rule. The facts of this case bring it within the rule laid down in Martin v. Mason-Hoge Co., 91 S. W., 1146, and Fort Hill Stone Co. v. Orm's Admr., 84 Ky., 183. Being engaged in the same department of a common employment, and being of equal rank in that employment, appellant and Winkle were fellow-servants. That being true, appellant assumed the risk of the injury, and the railroad company is not liable. It follows that the trial court properly instructed the jury to find for appellee. Judgment affirmed.

Trustees of Princeton Graded Common Schools, et al. v. Stone.

1.

2.

3.

(Decided March 14, 1911.)

Appeal from Caldwell Circuit Court.

Graded Common Schools-Fourth Class Cities.-A city of the fourth class may by vote of the people establish a graded common school in lieu of the school provided for by the act governing cities of the fourth class.

Election Ordered.-An election for this purpose may be ordered by the mayor, the order being directed to the sheriff and the offi cers of election being appointed by the sheriff.

Boundary-Outside the City.-When the city has established a graded common school by an election held for that purpose, the boundary of the district may be extended so as to take in ter ritory outside the boundary of the city.

4. Finding of Trustees - Annexation-Presumption.-Where the trustees make a finding that a majority of the legal voters have consented to the annexation of the territory, the presumption is that they did their duty, and that their finding is correct.

R. W. LISANBY for appellants.

HODGE & HODGE and S. D. HODGE for appellee.

OPINION OF THE COURT BY CHIEF JUSTICE HOBSONReversing.

Princeton is a city of the fourth class. The public schools in cities of the fourth class, when regulated by the act for the government of these cities, are governed by sections 3588-3606, Kentucky Statutes, and under these provisions the school district must cover the same territory as the city boundary. But the same General Assembly which passed the law governing cities of the fourth class also passed an act providing for graded common schools. (See Ky. St., 4464-4500.) By section. 4489 it is provided that any city of the first, second, third or fourth class may accept the provisions of the act and establish graded common schools subject thereto, at an election held for that purpose. Pursuant to this section, the city of Princeton on June 18, 1908, held an election at which the majority voted to accept the provisions of the act and establish a graded common school thereunder. Afterward on October 20, 1908, they held another election at which they elected trustees pursuant to the