for his injuries, on the ground that the servants of the company in charge of the locomotive were looking at him and seeing that his team was frightened, and, perceiving the danger in which he was placed, continued to blow the whistle until they made the team run off. The evidence of the defendant was to the effect in substance that only the usual signals were given, that the team became frightened at the train, and not at the whistling of the locomotive. It also showed that the plaintiff had said that the team he was driving consisted of a young mule and a horse, which ran away every chance it got. The jury found for the plaintiff in the sum of $1,500, and the defendant appeals from the judgment entered on the verdict.

The defendant pleaded contributory negligence on the part of the plaintiff, and at the conclusion of all the evidence asked an instruction submitting the issue to the jury. The court refused the instruction, and of this it complains. We think there was some evidence that the plaintiff knew his team was liable to run off. He had stopped and asked the track walker if a train was coming, and, as soon as he learned it was coming, he had gotten out of the wagon and unhitched the traces. The train had stopped at the tipple, and he had had plenty of time to take his horses out before the train reached him. It was therefore a question for the jury whether he exercised ordinary care under the circumstances; and instruction B asked by the defendant on the trial, submitting this issue to the jury, should have been given. The court gave no instruction on contributory negligence.

The court instructed the jury as follows: "(1) The court instructs the jury that if they believe from the evidence that the agents and servants of the defendant in charge of its engine saw the plaintiff and his team, and saw that the team had taken fright, and then negligently sounded the whistle and thereby caused the team to run away and injure and damage the plaintiff, they will find for the plaintiff.

"(2) The court instructs the jury that the defendant in operating its engine has the right to make all noises usual and necessary in the operation of its engine and cars, and to make such signals with the whistle and at such times as may be necessary, for the proper protection of the lives and property in its charge, and, if the jury believe from the evidence that the whistling of which plaintiff complains was usual and necessary in the operation of its train, or such as was necessary for the protection of the lives and property in its charge, you should find for defendant, unless you should further believe that, after discovering the plaintiff's team was frightened, those in charge of the engine negligently caused unusual and unnecessary whistling, and thereby caused the team to run and injure plaintiff.

"(3) The court instructs the jury that if

they believe from the evidence that, at the time of the whistling complained of by the plaintiff, the agents and servants of the defendant had not discovered plaintiff's team and its fright, they will find for the defendant.

"(4) The court instructs the jury that the law requires the defendant to ring its bell or sound its whistle on its engine continually for not less than 825 feet just before reaching a public crossing; and, if the jury believe from the evidence that the whistling complained of by the plaintiff was done in obedience to this law, you will find for the defendant, unless you further believe from the evidence that those in charge of the engine saw the fright of plaintiff's team, and, after seeing it, knew or by the exercise of ordinary care would have known that such whistling would cause the team to take additional or increased fright, yet negligently blew or continued to blow the whistle and thereby caused the team to run and injure the plaintiff.”

As there was some evidence that the men on the engine were looking at Martin and saw the danger in which he was placed, the motion of the defendant that the jury be instructed peremptorily to find for it was properly overruled. When those in charge of a railroad train see that a team is frightened on an abutting highway, they should use such care as may be usually expected of an ordinarily prudent person under the circumstances for the safety of the traveler on the highway. They are not required to watch the highway, but, when they do perceive the danger in which a traveler has been placed, they may not recklessly disregard his safety and sound the whistle unnecessarily, when they know that to do so will increase his peril. In running the train they are the agents of the defendant, and their negligence in running the train is the negligence of the defendant. All the acts of the men in charge of the locomotive shown here were done in the line of their employment. If the servant's act is within the scope of his authority, it is immaterial whether he acts negligently or wantonly. Licking Rolling Mills v. Fischer, 8 Ky. Law Rep. 89; Williams Adm'r v. Southern R. R. Co., 115 Ky. 320, 73 S. W. 779. The case of Louisville & Nashville R. R. Co. v. Smith, 107 Ky. 178, 53 S. W. 269, was very similar to this case. It was there held that, although the employés of the railroad company were under no obligation to look out for the team on the highway, yet, if they in fact saw the danger in which the traveler was placed, then they should, if necessary in the exercise of ordinary care, cease blowing the whistle as a signal for the crossing, and should resort to the bell as the statute provides either mode of giving warning for the crossing. In L. & N. R. R. Co. v. McCandless, 93 S. W. 1041, 29 Ky. Law Rep. 563, the question was re

viewed and the rule before announced was adhered to. In instruction 1 on another trial, after the words "negligently sounded the whistle," the court will insert the words "or negligently made noises which were not reasonably necessary in the operation of the train and could have been avoided by ordinary care." In instruction 2, in place of the word "necessary," the court will use the words "reasonably necessary." In lieu of instruction 3, on another trial, the court will instruct the jury that the defendant is not liable for any whistling that was done, or for any noise that was made before those in charge of the train discovered plaintiff's team and its fright; and that if the plaintiff's team took fright and ran off, not because of the whistling that was done by those in charge of the engine, but because of the train and the noise that was reasonably necessary in its operation, and that those in charge of the train could not by ordinary care have averted the running away of the team after they perceived the team and its fright, they should find for the defendant. In instruction 4, after the words "just before reaching a public crossing," the court will add these words, "but if those in charge of the engine saw Martin's team, and saw that it was frightened, then it was incumbent on them to use ordinary care for his safety, and they should not have used the whistle, but should have used the bell if in the exercise of such care this was necessary." The remainder of instruction 4 should be omitted. On another trial the court will permit the defendant to show by its witnesses what whistling the train did and why these whistles were blown. It will also permit it to prove by its witnesses what noises the train made; and, where the witnesses are acquainted with the running of trains and know what noises are reasonably Lecessary in the operation of trains, they may be permitted to testify whether or not the whistling and noises which are shown were usual and reasonably necessary in the operation of the train. The court on the trial erred in refusing such evidence offered by the defendant.

The engineer being dead, the plaintiff cannot testify as to anything the engineer did or omitted to do, as under section 606 of the Civil Code of Practice no person may testify for himself concerning any act done or omitted to be done by one who is dead, and it has been repeatedly held that, where the agent with whom a transaction occurred is dead, the other party may not testify for himself as to the transaction. What the status of the case would be if we leave out of view the plaintiff's testimony as to the engineer we need not consider, as there was no objection to the testimony, and, if objection had been made, the plaintiff might have offered other evidence on the subject. Mut. Life Ins. Co. v. O'Neil, 116 Ky. 742,

110 S.W.-52

76 S. W. 839; Park Commissioner v. Marritt, 80 S. W. 166, 25 Ky. Law Rep. 2081. Judgment reversed, and cause remanded for a new trial.

ILLINOIS CENT. R. CO. v. ELLIOTT. (Court of Appeals of Kentucky. May 21, 1908.) 1. EMINENT DOMAIN INJURY TO PROPERTY NOT TAKEN-NOISE FROM TRAINS.

One whose property does not adjoin a right of way cannot recover for damage from the noise of operating trains.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 18, Eminent Domain, §§ 264, 281.]

2. SAME-OBSTRUCTION OF STREET AND ALLEY. Under Const. § 242, providing that one vested with the privilege of taking private property for public use shall make compensation for the property taken or injured, one whose property adjoins a street and an alley may recover damages for the obstruction thereof by construction of a railroad across them, though at points not abutting his property.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 18, Eminent Domain, § 259.]

3. SAME-TEMPORARY OBSTRUCTION-MEASURE OF DAMAGES.

Where a railroad obstructs, without right, a street, by construction of its road, but afterwards removes the obstruction, by constructing a proper crossing, the measure of damages to property on the street is the diminution in the value of the use of it during the continuance of the obstruction caused thereby.

4. SAME-DAMAGES FROM CINDERS AND SMOKE. Though property does not adjoin a railroad right of way, damages to it from cinders, soot, and smoke thrown on it from trains are recoverable, though taken there by ordinary winds, but not when taken there by unusual winds. 5. SAME-INSTRUCTIONS-MEASURE OF DAM

AGES.

A railroad not being, as claimed, liable for damages to property, not on the right of way, from noise of the trains, but only for damages from obstruction of the street, which it adjoins, and from cinders, soot, and smoke cast on it from the trains, the court should not instruct that the measure of damages is the difference in the value of the property just before and just after the road was constructed; but should state it as any difference in the value of the property with the cinders, soot, and smoke and obstruction, and what it would be without them.

Appeal from Circuit Court, Ballard County. "To be officially reported."

Action by Mrs. A. O. Elliott against the Illinois Central Railroad Company. Judgment for plaintiff. Defendant appeals. Reversed, and remanded for new trial.

Trabue, Doolan & Cox, Robbins, Thomas & Corbett, and J. M. Dickinson, for appellant. J. B. Wickliffe, for appellee.

HOBSON, J. Mrs. A. O. Elliott is the owner of two lots in the town of Wickliffe, Ky., at the corner of Front and Court streets, on which she resides and conducts a hotel. Prior to the year 1904, the line of the railroad ran west of Mrs. Elliott's house near the Mississippi river, which gradually encroached upon the railroad track; and, to avoid this trouble, the railroad company

There was proof introduced on the trial showing that, by reason of the smoke and cinders and the noise of passing trains, Mrs. Elliott's house was unsuited for a hotel, and had been depreciated in value something like $2,000 or $3,000 by the change of the road. The court instructed the jury as follows:

(1) The court instructs the jury that if they believe from the evidence that defendant constructed a railroad in such proximity to the home of the plaintiff that the noise of defendant's trains and the smoke and dirt that passes from defendant's engines to plaintiff's property renders her house less comfortable as a residence, and less valuable by reason thereof, or if you believe from the evidence that if defendant in constructing its road obstructed, stopped up, or destroyed a portion of Front or First street and a portion of the alley in the rear of plaintiff's property, and that, by reason of such obstruction, stoppage, or destruction of said street or alley, plaintiff's property has been damaged, then you will find for plaintiff such damages as you may believe she has sustained by either or both of the above causes, not exceeding the sum of $4,000, and in measuring such damages, if any, you will consider the value of her house and lot immediately before the defendant constructed its road and began to operate over it, and the value of the same property immediately thereafter, caused proximately by the two causes mentioned; that is to say, by any increase in dirt, noise, or smoke or by diminution in value of the property through the destruction of portion of Front street and of the alley in rear of said property.

"(2) The court instructs the jury to find for the defendant unless the jury believes from the evidence that, by the change of the defendant's railroad, it was placed nearer to the plaintiff's property, and that there was increased noise and smoke thrown upon and around her property from what it had former been subjected to, and by reason of such increased noise and smoke her property was diminished in value. The law is for the defendant, and you should so find, unless you may further believe from the evidence that the destruction of First street or the alley in the rear of plaintiff's property was the proximate cause of the injury to plaintiff's property, in which latter event you should find for plaintiff the difference in value, if any, between said property immediately before said street and alley were obstructed or destroyed and the value of same immediately afterward, and unless you believe the latter proposition or the one presented above the law is for defendant, and you should so find.

(3) The court instructs the jury that the defendant had the right to move its track from the west side to the east side of the plaintiff's property, and the jury cannot find any damages resulting to her property solely

from the change of location of its railroad." A great deal of evidence was admitted on the trial as to the annoyance caused by the noise from the trains. One witness said that "it seems like the train is running in at your window if you happen to wake up at night upstairs on the north side of the house." All the evidence as to the noise made by the trains should have been excluded, and the instruction should not have allowed any recovery on account of noise. The running of a railroad train is a lawful business carried on upon the owner's own property. The noise is inseparable from the running of the trains. No amount of care can prevent it. Mrs. Elliott's property does not adjoin the right of way, and, if she can maintain an action for this noise, every property owner in the town could maintain a like action, and so could all those along the right of way. That an abutting owner on a street cannot recover for the noise made by the trains was held in Cosby v. Owensboro R. R. Co., 10 Bush, 294; C. & O. R. R. v. Gross, 43 S. W. 203, 19 Ky. Law Rep. 1926; L. & N. R. R. Co. v. Kleymeier, 105 Ky. 609, 49 S. W. 484; and in a number of other cases, this court, in defining what may be recovered for, has omitted noise from passing trains. See Railroad Co. v. Combs, 10 Bush, 392, 19 Am. Rep.. 67; Henderson Belt R. Co. v. Dechamp, 95 Ky. 219, 24 S. W. 605; Willis v. K. & I. Bridge Co., 104 Ky. 186, 46 S. W. 488.

There was proof on the trial that the railroad made a cut across Front street and across the alley in the rear of Mrs. Elliott's lot, thus entirely obstructing travel along Front street or along the alley. It is insisted that, as this obstruction of the alley and of Front street is at a point not abutting the property of Mrs. Elliott, she cannot recover for it. There are authorities sustaining this view, but the rule in Kentucky is otherwise. In Transylvania University v. Lexington, 3 B. Mon. 27, 38 Am. Dec. 173, the court said: "Every owner of ground on any street in Lexington has a right, as inviolable as it is indisputable, to the common and unobstructed use of the contiguous highway, so far as it may be necessary for affording him certain incidental easements and services, and a convenient outlet to other streets. And of this right the Legislature cannot deprive him, without his consent, or a just compensation in money. The extent of this appurtenant right, depending on circumstances, may not in a particular case be easily definable with mathematical precision. As far as it exists, however, it partakes of the character of private property, and is therefore protected by the fundamental law as property. But it cannot, as to each proprietor of ground, be coextensive with all the streets and alleys of the city. As a private right, it must, like that of vicinage, be limited to its own nature and end; that is, chiefly by the necessity of convenient access to, and outlet from, the

ground of each proprietor." This case was followed in Gargan v. Louisville, etc., R. R. Co., 89 Ky. 212, 12 S. W. 259, 6 L. R. A. 340; Bannon v. Rohmeiser, 90 Ky. 52, 13 S. W. 444, 29 Am. St. Rep. 355; Wickliffe v. I. C. R. R. Co., 108 S. W. 243, 32. Ky. Law Rep. 1159. As far as appears from the evidence, the obstructions in the street and the alley are permanent, and, if the condition remains at the trial, the measure of damages for the obstruction will be the diminution in value of the property by reason of it. But the defendant has no right to obstruct the highway, and, if it shall remove the obstruction by putting in a proper crossing, the measure of damages will be the diminution in value of the use of Mrs. Elliott's property during the time the obstruction was continued. L. & N. R. R. v. Carter, 76 S. W. 364, 25 Ky. Law Rep. 759; Id., 77 S. W. 719, 25 Ky. Law Rep. 1303.

It is also insisted that, as the railroad does not run along the street adjoining the plaintiff's property, she cannot recover anything for the smoke and dirt thrown on her property by the trains. The contrary rule was laid down in Willis v. K. & I. Bridge Co., 104 Ky. 186, 46 S. W. 488, and in L. & N. R. R. Co. v. Walton, 67 S. W. 988, 24 Ky. Law Rep. 9. Where a railroad throws smoke and cinders upon the property of another, it is a trespass upon the property, and this is an injury to the property, for which, by the express mandate of the Constitution, compensation must be made. Section 242 of the Constitution provides: "Municipal or other corporations or individuals invested with the privilege of taking private property for public use shall make just compensation for the property taken, injured or destroyed by them." Under this provision, where private property is injured by a railroad corporation, it must make just compensation for the injury, and it cannot make any difference whether the railroad is upon a street in front of the property or elsewhere.

The defendant asked the court to instruct the jury that there could be no recovery for smoke or cinders carried upon the property by currents of wind. The instruction was refused, and of this it complains. Elizabethtown, etc., R. Co. v. Combs, 10 Bush, 392, 19 Am. Rep. 67, the court said: "And, if his houses are damaged by having smoke, soot, or fire from passing engines thrown or blown into or against them, he is entitled to recover for this also." In Henderson Belt R. Co. v. Dechamp, 95 Ky. 224, 24 S. W. 605, the circuit court instructed the jury that the railroad company was not responsible for smoke or cinders carried upon the property by currents of wind. There was a verdict for the plaintiff, and the railroad company appealed. The judgment was affirmed, but the only question before the court was whether the instruction was prejudicial to the railroad company. In the subsequent case of L. & N. R. R. Co. v. Kleymeier, 105 Ky. 612, 49 S. W. 484, the

judgment was reversed for other reasons, and, at the conclusion of the opinion, it was held that the instruction should have been given. But what the court had in mind was unusual currents of wind. The air is hardly ever still. Cinders and smoke will usually float off to one side of the railroad. This may be ordinarily expected, and the defendant should be responsible for such consequences as must be anticipated; but it is not responsible for the smoke or cinders carried to adjoining property by unusual currents of wind, and on another trial the court will so instruct the jury.

The court erred in telling the jury that the measure of damages was the difference in value of the property just before and just after the road was constructed. By this measure of damages, the jury necessarily got into their minds that they should take into consideration the diminution in value of the plaintiff's property by reason of the change in the location of the railroad. On another trial the court will tell the jury that, if the increased cinders, soot, or smoke or the obstruction of the street or the obstruction of the alley diminishes the value of the plaintiff's property, then the measure of damages is the difference in value of the property with the cinders, soot, and smoke and obstruction of the street and alley as they are and what it would be without the increased cinders, soot, or smoke or the obstruction of the street or alley. The court will, in lieu of the second instruction, on another trial tell the jury that, unless the plaintiff's property has been diminished in value by reason of the increased cinders, soot, and smoke thrown from the trains upon the property or by reason of the obstruction of Front street or the alley in the rear of the property, they should find for the defendant.

Judgment reversed, and cause remanded for a new trial, and for further proceedings consistent herewith.

STILES, GADDIE & STILES v. LOUISVILLE & N. R. CO. (Court of Appeals of Kentucky. May 28, 1908.) 1. CARRIERS-CARRIAGE OF GOODS-NATURE OF LIABILITY AS COMMON CARRIER.

The common carrier of inanimate freight is an insurer of its safe delivery, except where the loss results from the act of God or the public enemy, or from the inherent infirmity of the goods.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 9, Carriers, § 481.]

2. SAME CARRIAGE OF LIVE STOCK - LossLIABILITY IN GENERAL.

Where plaintiff's horses were destroyed by a conflagration while in charge of a common car rier, the loss was in no wise connected with or the result of any infirmity in the animals themselves, so as to raise the question of the neg ligence or care of the carrier, but was one falling under the common-law rule, which makes the carrier an insurer of the safe delivery of goods committed to it for transportation.