Rep. 642; L. & N. R. Co. v. Wathen, 49 As, in our opinion, no error was committed by the circuit court in giving the peremptory instruction, the judgment is affirmed. pellant's intestate was due to the negligence | Ky. Law Rep. 803; Railroad Co. v. Humof the appellees, his own negligence, or that phrey's Adm'r, 45 S. W. 503, 20 Ky. Law of either. In other words, the cause of the death is purely a matter of conjecture. As stated in Early's Adm'r v. L. H. & St. L. R. Co., 115 Ky. 13, 72 S. W. 348, 24 Ky. Law Rep. 1807: "There is no presumption of negligence against the appellee, any more than there is a presumption of contributory negligence on the part of the deceased. It was incumbent on the appellant to prove negligence on the part of appellee's servants in charge of the train, or facts from which such negligence could properly be inferred." | The rule here applicable is well stated in Hughes v. Cincinnati, etc., R. Co., 91 Ky. 526, 16 S. W. 275, 13 Ky. Law Rep. 72, as follows: "We are left to theorize as to it (cause of death). One suing to recover damages for injury arising from another's neglect must offer some testimony conducing to show that it was so occasioned. Negligence cannot be presumed in a case like this one. McDONALD v. McDONALD. (Court of Appeals of Kentucky. Nov. 7, 1913.) 1. ATTORNEY AND CLIENT (§ 130*)-FEES-EFFECT OF DISMISSAL OF APPEAL. The dismissal of an appeal from a judgment dismissing a wife's suit for alimony would not affect the rights of her attorney to a fee for his services. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 292, 293, 295, 296, 306, 307, 311; Dec. Dig. § 130.*] 2. APPEAL AND ERROR (8 782*)-DISMISSAL AMOUNT INVOLVED. Under Ky. St. § 950, providing that no appeal shall be taken to the Court of Appeals from a judgment for the recovery of money if the value in controversy be less than $200, where a husband and wife agreed that her appeal from a judgment dismissing her suit for alimony should be dismissed, a dismissal would not be denied for the purpose of protecting her attorney's right to a fee for his services; the fee which he claimed being only $100. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3123, 3124; Dec. Dig. § 782.*1 The presumption is the other way. It cannot be found without evidence. The complaining party must not only show the injury, but also some evidence tending to show the other party is to blame for it. Mere proof of the injury, with attending circumstances showing that the party charged with neglect may be blameless, or may be at fault, will not do. In such a case there is no evidence tending to show that the injury was due to neglect. Circumstances are merely presented upon which one may theorize as to the cause of the accident. The burden of showing neglect rests upon the complainant, and under such circumstances he has offered no evidence tending to show it. He has merely presented two or more states of case upon which one may theorize as to the cause of the accident. Here, first, J. D. Tuggle, of Barbourville, for appellee. A. G. Patterson, of Pineville, for appellant. the deceased may have been struck by the lower roof of tunnel number seven; or, second, by that of number six; or, third, by the hanging timber of number seven; and only in the latter case could there be any liability upon the part of the company." In Louisville Gas Co. v. Kaufman, 105 Ky. 131, 48 S. W. 434, 20 Ky. Law Rep. 1069, the doctrine under consideration is thus tersely stated: "When the question is one of negligence or no negligence, it is well-settled law that, where the evidence is equally consistent with either view-the existence or nonexistence of negligence the court should not submit the case to the jury, for the party affirming the negligence has failed to prove it." Strock's Adm'r v. L. & N. R. Co., 145 Ky. 150, 140 S. W. 40; Stuart's Adm'r v. Nashville, etc., R. Co., 146 Ky. 127, 142 S. W. 232; L. & N. R. Co. v. Vittitoe's Adm'r, 41 S. W. 269, 19 Ky. Law Rep. 612; Wintuska's Adm'r v. L. & N. R. Co., 20 S. W. 819, 14 Ky. Law Rep. 579; Lou. St. L. & T. Ry. Co. v. Terry's Adm'r, 47 S. W. 588, 20 Appeal from Circuit Court, Bell County. Action by Mae McDonald against V. C. McDonald. From a judgment dismissing the action, plaintiff appeals. On motion to dismiss the appeal. Motion sustained, and appeal dismissed. SETTLE, J. This action was instituted by the appellant against the appellee in the Bell circuit court October 8, 1912, for alimony; a divorce not being asked. Appellee's answer contained a plea in abatement; it being therein alleged that appellant was not a resident of Bell county, for which reason the circuit court of that county was without jurisdiction to grant the relief prayed in the petition. Proof was taken in support of the plea in abatement, and, upon the submission of the case, the circuit court sustained the plea and dismissed the action. that judgment this appeal was prosecuted. From Appellee has entered a motion to dismiss the appeal and in support of the motion filed a certified copy of a judgment of the Knox circuit court, rendered January 8, 1913, in an action wherein the appellant, Mae McDonald, was plaintiff and the appellee, V. C. McDonald, defendant, which judgment divorced appellant from the bonds of matrimony which she had previously entered with ! appellee, restored her to all the rights and was not consulted and had no notice of the privileges of an unmarried woman, including settlement between the parties contained in her maiden name, Mae Davidson, and re- the written agreement of December 23, 1912; quired of appellee the payment of her costs that the attorney representing appellant in in the action. In addition to the certified the suit for a divorce from her husband copy of the judgment referred to, appellee which she brought in the Knox circuit court also filed a certified copy of a written com- was not employed in and had no connection promise and settlement entered into between with the action in the Bell circuit court himself and appellant December 23, 1912, which resulted in the appeal to this court; whereby it was agreed that appellant would that the $15 which appellee obligated himself dismiss this appeal; that appellee would in the written agreement of December 23, dismiss an action then pending in the Knox 1912, to pay of the fee due him for his servcircuit court which he had brought against ices as attorney for appellant in the action her for a divorce; that he would turn over in the Bell circuit court is wholly inadequate to her certain personal property mentioned to compensate him for such services; and in the writing; and that he would pay to that he expended of his own money, in court her $200-$40 cash in hand, $60 in a certified costs in the Bell circuit court and for copycashier's check on the First National Bank ing the transcript for the appeal prosecuted of Barbourville payable January 15, 1913. from the judgment of the Bell circuit court, For the remaining $100 appellee executed $16, which the written agreement between apto her a bankable note payable on or before pellant and appellee makes no provision for the 1st day of January, 1914, without inter- repaying him. Finally the response concludes est. Appellee also assumed the payment of with the following statement: "He says that, $15 of whatever fee appellant would have if this honorable court should elect to disto pay the attorney who brought for her miss this case upon the showing made, he the suit for alimony in the Bell circuit court, should be protected to the extent that a realater appealed to this court. In addition to sonable attorney fee be secured to him to be the agreement on the part of appellant to paid by the appellee under the proceeding dismiss, in this court, the appeal prosecuted and in the Bell circuit court, including a from the judgment of the Bell circuit court, judgment for costs against the appellee. He she obligated herself, by the writing in ques- says that the sum of $100 is reasonable for tion, to file in the Knox circuit court an ac- the services rendered by him herein in the tion against appellee for a divorce and prose- preparation of this case, and that same cute same, in good faith, to judgment, with- should be directed to be allowed by the lower out asking for alimony or an allowance pen- court in the event this appeal is dismissed, dente lite. to be paid by the appellee, V. C. McDonald." Pursuant to the above agreement, appellant brought suit against the appellee in the Knox circuit court for a divorce and, after taking proof in support of the grounds alleged therefor, obtained the divorce, as shown by the certified copy of the judgment of the Knox circuit court filed, as before stated, in this court. It is not claimed by appellant that appellee has failed to comply with any obligation imposed upon him by the agreement in question. Indeed, the agreement, except as to the dismissal in this court of the appeal taken from the judgment of the Bell circuit court, seems to have been carried out by the parties according to its terms. [1] It is manifest that opposition to the dismissal of the appeal does not come from the appellant, and equally manifest that the attorney's opposition arises out of his belief that such dismissal would operate to deprive him of the fee to which he feels he is entitled for the services he rendered appellant in the action brought by her in the Bell circuit court. The attorney's right to a fee cannot be affected by the dismissal of the appeal taken from the judgment of the Bell circuit court. That question is not before us for adjudication; nor could the reversal of the judgment of the Bell circuit court affect the rights of appellant and appellee as to Appellant is not resisting the motion of the question of divorce. The divorce has appellee to dismiss the appeal from the judg-been granted the former in another action, ment of the Bell circuit court, but such resist- and from that judgment of divorce there is ance is made by the attorney who represent- and can be no appeal. ed her in the case in the Bell circuit court and in taking the appeal; the grounds of such resistance on his part being stated in a written response which he has filed to the motion to dismiss. The response is subscribed and sworn to by the attorney alone. It is not therein claimed that the respondent represents appellant in opposing the motion to dismiss the appeal; on the contrary, it is in substance stated in the response that it would be a great injustice to him (the attorney) to dismiss the appeal upon the showing made in support of the motion; that he [2] With the question of divorce out of the way, what is there before us but the question of the right of appellant's attorney to a fee for services rendered by him in appellant's behalf in the action in the Bell circuit court? And this question, as before stated, we cannot decide even if the appeal from the judgment of the Bell circuit court could be treated as one prosecuted by appellant for the purpose of recovering of appellee a reasonable fee for the benefit of her attorney, because the amount of the fee claimed by him is only $100. Section 950, Kentucky Stat utes, provides: "No appeal shall be taken Being of the opinion that the right of the appellee to a dismissal of the appeal is fully supported by the record filed as a basis of his motion therefor and the failure of appellant to show cause against the dismissal, his motion is sustained, and the appeal is hereby dismissed. with force the car in which Franklin was at work. In this action to recover damages for his death the petition charged: That the mine of the Rose Creek Coal Company was situated on a spur track connected with the line of the appellee railroad company. That the spur track was constructed and owned by the coal company. That when coal cars were needed by the coal company they were placed by the railroad company on this spur track and thence run to the mine or the place where they were needed by employés of the coal company; the cars rolling of their own momentum from the place where they were put by the railroad company down the incline spur track to the point where they were used by the coal company. It was further FRANKLIN'S ADM'R v. LOUISVILLE & averred in the petition "that one of said N. R. CO. (Court of Appeals of Kentucky. Oct. 30, 1913.) [Ed. Note.-For other cases, see Pleading, Cent. Dig. 88 711, 712; Dec. Dig. § 214.*] 2. RAILROADS (§ 275*) ANCES-LIABILITY. Where a railroad company which furnished cars to a coal company knew that they were to be let down an inclined switch as needed, it is liable for injuries to a servant of the coal company, occasioned by a defective brake on a car so supplied, where the servants of the coal company manipulating the car could not have discovered the defect so as to avoid the accident; the railroad company, having impliedly invited such servants to use its appliances, is bound to use ordinary care to protect them. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 873-877; Dec. Dig. § 275.*] 3. RAILROADS (§ 275*) DEFECTIVE APPLIANCES LIABILITY OF COMPANY. Where the servant of a coal company is injured by reason of a defective car furnished by a railroad company for the hauling of coal, the railroad is liable only if it knew, or might in the exercise of ordinary care have ascertained, the defect and the servants of the coal company cars owned, operated, and maintained by defendant, and so set in by the defendant upon said switch of said Rose Creek Coal Company to be loaded with coal on or about said date was, at the time same was so set in upon said switch and for a long time theretofore had been, negligently caused and perDEFECTIVE APPLI-mitted by defendant to be and remain in a dangerous, unsafe, and defective condition, and the hand brake on said car was negligently and improperly rigged by defendant and was unsafe and dangerous and was and had been for several days theretofore, by the defendant caused and permitted to be and remain defective and out of order, and out of repair, so that the movements and speed of said car when being moved singly upon the track could not be controlled by means of said brake, all of which facts said defendant and its agents and servants knew, or by the exercise of ordinary care could have known, at the time said car was so supplied and furnished to said Rose Creek Coal Company, and the defendant was guilty of gross negligence in supplying and furnishing said car in said condition. Thereafter, on said November 12, 1909, the agents and servants and employés of the said Rose Creek Coal Company acting in a careful and prudent manner and in the ordinary discharge of their duties to their said employer, attempted to move said defective car with said improper and defective brakes down said incline track to said coal tipple of said company to be loaded with coal for shipment over said defendant's railroad for market, when by reason of the condition and character of said car and said brakes hereinabove set out, the movements thereof could not be controlled by said agents and servants of said Rose Creek Coal Company, and said car, without fault on CARROLL, J. A. R. Franklin, an employé their part, was caused by its own momenof the Rose Creek Coal Company, was killed tum to run rapidly down said incline track to while engaged at work on a partially loaded said coal tipple, where said car so in motion coal car at the coal tipple of the coal company ran into and struck a partially loaded car by being thrown from the car. The accident of coal standing under said coal tipple, and was due to the fact that an empty car going the impact and concussion caused by said at rapid speed down an incline track struck collision knocked or threw plaintiff's dece could not have so ascertained it. [Ed. Note.-For other cases, see Railroads, Cent. Dig. §§ 873-877; Dec. Dig. § 275.*] Appeal from Circuit Court, Hopkins County. Action by A. R. Franklin's Administrator against the Louisville & Nashville Railroad Company. From a judgment sustaining a demurrer to the petition, plaintiff appeals. Re versed and remanded. Gibson & Kincheloe and Gordon & Gordon & Cox, all of Madisonville, for appellant. C. J. Waddill, of Madisonville, and Fred P. Caldwell, C. H. Moorman, and Benjamin D. Warfield, all of Louisville, for appellee. In support of the ruling of the trial court, counsel for the railroad company rely chiefly on the case of Logan v. Cincinnati, New Orleans & Texas Pacific Ry. Co., 139 Ky. 202, 129 S. W. 575. In that case, as it appears from the opinion, the Kentucky Barytes Company had a spur track running from the line of the Louisville & Atlantic Railroad Company to its mill, and it was the custom of the railway company to deliver cars consigned to the barytes company on this spur track at a point near the line of the railway. When the material in the cars so left on the spur track was needed by the barytes company, its employés pushed them to the place where it was used. The brake upon a car loaded with dent, A. R. Franklin, who was then and there, and with knowledge of the manner in which employed as a laborer by said Rose Creek the car would be run from the place it was Coal Company, off of said car and beneath left to the place it was needed for use by the the wheels thereof." To this petition a gen- coal company. eral demurrer was sustained, and thereupon an amended petition was filed charging "that the defective and dangerous condition of said car and of the brakes thereof was not known to decedent or to the agents or servants of the Rose Creek Coal Company who were engaged in moving said car, or any agent or servant of the Rose Creek Coal Company, nor could said dangerous and defective condition of said car have been discovered by any employé of the Rose Creek Coal Company, or by the decedent, by a casual or ordinary inspection, nor could said dangerous and defective condition of said car and the brakes thereof have been discovered by decedent or any agent or servant of the Rose Creek Coal Company by exercise of ordinary care; that | barytes placed on this spur track was in such the agents and servants of said Rose Creek Coal Company charged with the duty of moving said car, in the exercise of care, prudence, and diligence, made every effort to check and stop the movements of said car; that said car was caused to start immediately upon being uncoupled from the remaining cars, by reason of the inherently and imminently dangerous condition and character of its brakes, and that by reason of the defective and inherently and imminently dangerous condition of said brakes and said cars, they were unable to check, control, or stop the movements of said car, and that the movement of said car, started by its own weight, and moving by its own momentum, was the direct and proximate cause of the fatal injury to plaintiff's decedent." A demurrer was also sustained to this pleading, and, the plaintiff declining to plead further, his petition as amended was dismissed, and he appeals. a defective condition as to render it useless in controlling the movements of the car, and this was known to the railway company when it was set on the spur track. The servants of the railroad company, realizing the defective condition of the brake, in order to prevent the car from running down the grade of the spur track, chocked the wheels of the cars with timbers and rocks, thereby leaving it immovable and in a safe condition. A few days after this the employés of the barytes company undertook to move this car from the place at which it had been left by the railway company to the mill of the barytes company. These employés, before moving the car, discovered the defective condition of the brake, and by testing it found that it would be of no use in controlling the movements of the car. But notwithstanding this fact they concluded that by using a piece of timber to chock the wheels they could run it safely to the mill. Thereupon they removed the chocks placed by the servants of the railway company and which held the car stationary, and started it by pushing. When the car was thus started the employés of the barytes company could not control it, and it ran at a rapid speed down the incline spur track to the mill and there struck a car, causing it to move forward and inflict injuries on Logan, of which he complained in his suit. The trial court under these facts directed a verdict in favor of the railway company, and in affirming that judgment, after relating the foregoing facts, we said: [1, 2] In disposing of the case we must accept as true the averments of the petition as amended. Accepting them as true, did the pleading state a cause of action? We think it did. It is true the car having the defective brake was left on the spur track by the railroad company to be taken charge of by employés of the coal company, and managed and operated by them from the place at which it was left to the place at which it was needed by the coal company. It is also true that the spur track was owned and controlled by the coal company, and, further, that no employé or person connected with the "The peremptory instruction was granted railroad company had anything to do with because the trial court was of opinion that the movement of the car causing the collision the failure of the appellees to repair the brake between the time it was left on the spur of the car, or to equip it with a proper brake, track and the time of the collision. With was not the proximate cause of appellant's these facts admitted, it is apparent that the injuries, and in this conclusion we are conliability of the railroad company, if any there strained to concur. It may be conceded that be, consists in the fact that it placed the appellees were negligent in delivering to the car, without a brake or with a defective Kentucky Barytes Company the car with a brake, on the spur track when it knew, or defective brake, but they were not liable for by the exercise of ordinary care could have the injuries received by the appellant, as pany, from that company's use of the car in | We find it distinctly averred that the emits defective condition, unless their negli- ployés of the coal company did not know, gence was the proximate cause of such injuries; and, in order to establish proximate cause it was necessary that causal connection between appellees' negligence and the injury should have been shown, and that without such negligence the injury would not have been inflicted. * "Tested by the principles stated, we do not think the facts of this case warrant a finding that appellant's injury was the natural proximate consequence of appellees' failure to provide the car in question with a reasonably safe brake, or that it ought to have been foreseen by them in the light of the attending circumstances. The breach of duty upon which an action like this is brought must not only be the cause, but the proximate cause, of the injury complained of. If it cannot be said that the result would have inevitably occurred by reason of the appellees' negligence, it cannot be found that it did so occur, and appellant is not therefore entitled to re cover. "These undisputed facts show that the car was left by appellees on the spur track of the Kentucky Barytes Company in an altogether safe condition, where it remained 24 hours, and until turned loose by the servants of the barytes company, who permitted it to get beyond their control and injure appellant. In thus attempting to move the car the servants of the barytes company were guilty of negligence, and such negligence was the efficient cause of appellant's injuries. In other words, it was not on account of the defective brake that appellant received his injuries, but because of the manner in which the car was attempted to be moved by Wm. Davis and his assistant." We think it apparent from these extracts taken from the Logan Case that it is not susceptible of the construction attempted to be given it by counsel for the railroad company. The facts upon which the decision in the Logan Case was based, and the facts stated in the petition in this case as amended, to which a demurrer was sustained, are so very different on vital and controlling points that the Logan Case could not well be relied on as ruling this case. In the Logan Case the decision was put distinctly upon the ground that the act of the railway company in put ting a car with defective brakes on the spur track was not the proximate cause of the injury complained of. It was put distinctly upon the ground that the efficient cause of the injury was the act of the employés of the barytes company in negligently attempting to move the car with full knowledge of the fact that the brake was useless. Turning now for a moment to the facts of this case, we find it distinctly averred that the railroad company knew that the brake on the car in question was defective and and by the exercise of ordinary care could not have known, of the defective and useless condition of this brake, and started the car in motion believing that the brake would hold it. Assuming this to be true, the employés of the coal company were free from any negligence contributing to the death of Franklin. The car had been put on the track by the railroad company for the purpose of being moved to the coal mine by employés of the coal mine in the manner in which they moved it when this accident occurred. When the railroad company left this car on the spur track it knew the method by which it would be moved, and must have known that without a brake its movements could not be controlled on the descending grade to the coal mine. Assuming all this, the question remains, Did the act of the railroad company in placing this car with a defective and useless brake, to be used in the manner stated, create a liability on its part to an employé of the coal mine, who might be injured or killed because the movement of the car could not be controlled? Or, to put it in another way, Did the railroad company owe any duty to the employés of the coal mine? If it did owe them the duty to exercise ordinary care to have its cars in such condition as that they might be operated with reasonable safe ty by competent persons, then, under the circumstances stated in the petition, it committed a breach of that duty for which it should be required to respond in damages. If it did not owe to the employés of the coal mine any duty to exercise ordinary care to keep its cars in reasonably safe condition for their protection, no liability attaches to it for the death of Franklin. Its liability only arises in the event it owed it a duty and failed to perform it. Let us now see what duty, if any, it owed. We had occasion in the case of L. & N. R. R. Co. v. Freppon, 134 Ky. 650, 121 S. W. 454, to consider the duty and obligation of a railroad company under facts somewhat similar to the facts of this case. In the Freppon Case an employé of the Henderson Tobacco Extract Company was injured in attempting to open a defective and unsafe door of a car owned and used by the railroad company, which had been placed by the railroad company on a switch owned by it that ran from the main line to the factory at which the car was to be unloaded. In that case the railroad company insisted that it owed no duty to Freppon, and was not responsible to him in damages because he was not injured while in its employment or while performing any service for it, and as there was no contractual relation existing between Freppon and it, there was no obligation on its part to furnish him safe appliances or a |