for injuries claimed to have been caused by the A verdict in favor of a coal miner, suing negligence of an incompetent foreman employed by defendant in violation of law, cured the error, if any, in failing to charge that the foreman had not had a certain number of years' experience.

a trunk railroad are obvious enough. But, if (4. PLEADING (§ 433*)-DEFECTS AND OBJECit be so that the street ought to be closed, it TIONS-AIDER BY VERDICT. should be closed by law, not by usurpation. If closed by law, the owners of property affected by it would be paid for what was thereby taken for the public's use and safety. But no argument of expediency can justify appellees' destroying or taking a public street to the injury of private owners although for the public benefit.

A juror on his voir dire qualified, declaring that he had not formed nor expressed an opinion concerning the merits of the case. But he had. The fact was not learned by appellant till after the juror had signed and returned the verdict, and the jury discharged.

This was urged as a ground for a new trial. Being established, it should have prevailed. The judgment is reversed, and cause remanded for a new trial under proceedings consistent herewith.

MAJESTIC COLLIERIES CO. v. McCOY. (Court of Appeals of Kentucky. March 3, 1909.)

1. MASTER AND SERVANT (§ 216*) NEGLIGENCE OF FELLOW SERVANT-ASSUMPTION OF RISK.

A servant does not assume the risk of a fellow servant's negligence if the master was negligent in selecting and employing a laborer incompetent to do the work he was put to do. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 567-573; Dec. Dig. § 216.*]

2. MASTER AND SERVANT (§ 169*)-EMPLOYMENT OF COAL MINE FOREMAN-STATUTORY

REGULATIONS.

The Code of West Virginia provides for an elaborate system of mine inspection and regulation, for the proper ventilation of coal mines, and the promotion of the health and safety of workmen. It requires, by Code Supp. 1907, § 410, that the operator or agent of a mine shall employ a competent or practical inside overseer called a mine foreman, who shall be an experienced coal miner, or any person having five years' experience in a coal mine, and specifically prescribes his duties. Held, that the statute intended that only a competent, practical mine foreman should be employed, regardless of experience; and if he was not known to be so, it might be assumed that he was competent till his employer was notified to the contrary, and if he was known to be incompetent, his employment was negligent, no matter what his experience.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 169.*]

[Ed. Note.-For other cases, see Pleading, Dec. Dig. § 433.*]

5. MASTER AND SERVANT (§ 216*)-INJURIES TO MINER-ASSUMPTION OF RISK-NEGLIGENCE OR INCOMPETENCY OF FOREMAN.

A miner does not assume the risk, unless obviously perilous, arising from failure of his foreman to furnish posts and perform duties imposed by statute for his safety, and this is particularly true when such failure is due to the foreman's incompetency.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 567-573; Dec. Dig. § 216.*]

6. MASTER AND SERVANT (§ 235*)-INJURIES TO MINER-CONTRIBUTORY NEGLIGENCE.

A miner suing for injuries caused by a falling roof, due to the lack of suitable posts, did not himself examine the roof on returning to the room after firing the last shot in blasting coal from its face, but his brother, who was his "buddie," and with him at the time, did examine it by sounding it with his pick, and it gave them no warning of its dangerous condition. Held, that this did not amount to contributory negligence.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 235.*]

7. MASTER AND SERVANT (§ 289*)-INJURIES ΤΟ COAL MINER-CONTRIBUTORY NEGLIGENCE QUESTION FOR JURY.

Whether it was contributory negligence was a question for the jury.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1089-1132; Dec. Dig. § 289.*]

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

Action by Wayne McCoy against the Majestic Collieries Company. From a judg ment for plaintiff, defendant appeals. Affirmed.

Butler & Moore and Strother, Taylor & Flanagan, for appellant. Roscoe Vanover and C. M. Whitt, for appellee.

O'REAR, J. Appellee, a coal miner, was injured by falling slate while working in appellant's mine in West Virginia. It is conceded that appellant's liability is to be tested by the laws of that state then in force. It is charged in the petition in this case that

3. Master and Servant (§ 259*)—ACTION FOR appellant had negligently employed and reINJURIES PLEADING INCOMPETENCY OF tained in its service, for some days before

FOREMAN.

-

In an action by a coal miner for injuries and at the time of appellee's injury, an inbased on the negligence of his foreman, who competent mine boss, who negligently failed was claimed to be incompetent, it was suffi- to inspect the roof of the mine from which cient to allege that he was incompetent, and the slate fell that injured appellee, and who known by defendant to be so, and it was not necessary to allege that he had not had five years' experience, which the statute authorizes an employer to assume as sufficient till he knows the contrary, but does not absolutely require it if the foreman is otherwise competent. [Ed. Note. For other cases, see Master and Servant, Dec. Dig. § 259.*]

failed to furnish appellee sufficient or suitable props to support the roof, as a result of which the injury occurred. It is conceded that in West Virginia the mine boss and the miners are fellow servants. Still the law there is, as it is elsewhere, that one servant

does not assume the risk arising from the measurements in a book having a form prenegligence of a fellow servant if the master scribed by the chief of the department of was negligent in the selection and employ- mines. An anemometer shall be provided ment of a laborer who was incompetent to for this purpose by the operator of the mine." do the work which he was put to do. As to The regular mine foreman, who is somethe qualifications of a mine boss a statute of times called the mine boss, became sick some West Virginia thus provides (section 410, days before appellee's injury. He turned W. Va. Code Supp. 1907): "Sec. 15. In or- over the superintendency of the mine to the der to better secure the proper ventilation of track repairer, the next in rank. Appellant's every coal mine and promote the health and general superintendent came along in a day safety of the persons employed therein, the or so, and learned that the mine had been operator or agent shall employ a competent placed under this track layer. He went to or practical inside overseer, to be called see the regular mine foreman about it, who mine foreman, who shall be a citizen of this told him that this man was careless and state and an experienced coal miner, or any otherwise incompetent, and advised him to person having five years' experience in a employ another man who was recommended coal mine, who shall keep a careful watch as having more experience. But the superover the ventilating apparatus and the air- intendent says that he knew there was not ways, travelingways, pumps and drainage, a good feeling between the old foreman and and shall see that as the miners advance the track layer, and exercised his own judgtheir excavations, proper break-throughs are ment in the matter, after looking into his made, to properly ventilate the mine, and work. The new foreman had been employed that all loose coal, slate and rock overhead at this mine but a short time, probably a in the working places and along the haul- month or so, and was but a mere youth, ways be removed or secured so as to prevent about 20 years old. The evidence leaves no danger to persons employed in such mines; doubt that he was not sufficiently experiencand that sufficient props, caps and timbers, ed to be a competent mine foreman. He did as nearly as possible of suitable dimensions, not inspect the miners' rooms to see as to are furnished for the places where they are their condition; he did not sound the roofs to be used, and such props, caps and timbers and walls, and did not see to other matters shall be delivered and placed at such points which were necessary in insuring the safety as the rules for the government of each re- of the men; he did not promptly furnish, or spective mine provides for them to be deliver- require to be furnished, to the miners the ed; and every workman in want of props, props called for by them, and which were cap pieces and timber shall notify the mine necessary in shoring up the roof where they foreman, or such other person who may be were working; he did not know the name or designated for that purpose, at least one day use of some of the instruments required by the in advance giving the length and number of law for testing the air in the mines. There props or timbers and cap pieces he requires; was evidence that this young man had been but in case of an emergency the timbers may working in and about coal mines for 8 or 10 be ordered immediately upon the discovery years-since he was a child. Probably he had of any danger; and it shall be the duty of mined coal for as long as 5 years. The West each miner to properly prop and secure his Virginia statute quoted we think contemplace in order to make the same secure for plated the employment of competent, practihim to work therein. The said mine fore- cal mine foremen. It was not so material man shall have all water drained and hauled whether they had spent many years in mines out of the working places where the same is if they were competent to be foremen. But practicable, before the miners enter and said we are not told that the state required an exworking places kept dry as far as practicable amination by a board of miner's, or by the while the miners are at work; it shall be the chief of the State Department of Mines, as duty of the mine foreman to see that the to their efficiency. Competency was the cross-cuts are made as required by law and point aimed at, however. The statute asthat ventilation shall be conducted through sumes that one who has had 5 years' exsaid cross-cuts into the rooms by means of perience in a coal mine is presumably comcheck doors placed on the entries of other petent to be a mine foreman. But we cansuitable places, and he shall not permit any not think the Legislature of West Virginia, room to be opened in advance of the ventila- evincing such care as was done in the elabotion current. Should the mine inspector dis- rate system of mine inspection and regulacover any room, entry, airway or other work- tion in the statute before us, from which the ing places being driven in advance of the foregoing quotation is made, intended to air current contrary to the requirements of allow mine operators to knowingly employ this act he shall order the workmen work- incompetent foremen merely because the ing such places to cease work at once until latter may have had 5 years' experience in the law is complied with. And the mine coal mines. On the contrary, we think it foreman shall measure the air current at was intended that only competent, practical least twice each month at the inlet and out- mine foremen should be employed. If the let and at or near the faces of the advanced foremen were known to be competent, they

out reference to their experience; but, if they were not known to be competent, the employer might assume, from their having had 5 years' experience in coal mines, that they were competent until the contrary was brought to their knowledge. But if they were known to be incompetent, their employment was negligence, no matter what experience they may have had. In the petition in this case it was not charged in terms that the young man, employed by appellant as foreman at the time of appellec's injury, had not had 5 years' experience in coal mines, although it was charged that he was incompetent, and was known by appellant to be so. It is claimed that the omission to charge that the foreman had not had 5 years' experience made the petition deficient. But, construing the statute as we have above, we hold that the allegation was sufficient. Besides, an issue was joined on the allegation as made, the proof covered both phases of the statute, as did the instructions of the court, and the verdict for appellee necessarily cured the error in the pleading, if there had been the error now claimed by appellant. Hill v. Ragland, 114 Ky. 209, 70 S. W. 634.

was his "buddie," and was with him at the time, did examine it by sounding it with his pick, and it gave them no warning of its dangerous condition. This did not amount to contributory negligence. But whether it was or not, the question was one for the jury, and was submitted to them in the instructions given by the court.

Upon the whole case we fail to see any error in the record prejudicial to appellant. The judgment is affirmed, with damages.

DISMAN v. FLIPPIN'S ADM'X.

(Court of Appeals of Kentucky. March 3, 1909.) 1. WILLS (8 601*) - CONSTRUCTION-NATURE OF ESTATE DEVISE OF FEE - REPUGNANT PROVISIONS.

By a clause disposing of the balance of a he gave the same "to her and her heirs for testator's real estate in favor of his daughter, ever without the right to her or her husband ever to sell or transfer the same, yet should she leave heirs they may sell and dispose of it gave an absolute estate, which was not cut down as other land." Held, that the granting words by the subsequent words, and hence the daughter took a fee-simple estate whether the attempted restraint on the power of the alienation' was valid or not.

[Ed. Note.-For other cases, see Wills, Cent. Dig. § 1344; Dec. Dig. 8 601.*]

2. JUDGMENT (§ 66S*)-CONCLUSIVENESS ON PARTIES.

A party to a suit is bound by the judgment, unless it is vacated for cause and in the manner allowed by law, as by obtaining a new trial, or by a seasonable appeal to the court of jurisdiction.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 1181; Dec. Dig. § 668.*]

Appellant contends that the proximate cause of appellee's injury was his failure to prop his roof, or to inspect it after he had shot the blast of coal from the face of the room near where the roof fell. As to the first proposition appellee testified, as did his brother who was working with him, that he had for several days been requesting the mine foreman to send them props, but he had failed to do so. The foreman admits the request, but not as frequently as appellee claims it was, and excused his failure by saying he had directed another employé to bring in the posts; also that there were A judgment obtained by fraud may be void some posts lying near, about 50 or 60 feet under some circumstances, but if a party has a away, which appellee might have used. Ap-in an action of which the court has jurisdiction legal right to a judgment of a particular tenor, pellee says that the last-named posts were as well as of the parties, the motive prompting too long. The danger from the lack of suit- the successful litigant will not be inquired into able posts was actual, but not so apparent in a collateral proceeding. or imminent as to make it rash for one to

work as appellee was doing without them. He was tempted to and did use his posts sparingly, as he had to lose his own time in pulling them from an abandoned part of the mine. It was just such temptation and hazard that miners will let themselves be subjected to that the statute was evidently aimed to prevent. The miner does not assume the risk, unless obviously perilous, arising from the failure of the mine foreman to furnish the posts and perform the other duties imposed by the statute for the safety of the miners, and particularly is this true when such failure is due to the incompetency of the mine foreman.

Appellee did not himself examine the roof of the mine upon returning to the room after firing the last shot. But his brother, who

3. JUDGMENT (§ 509*)-COLLATERAL ATTACKOBTAINING BY FRAUD-MOTIVE oF SUCCESSFUL LITIGANT.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 952; Dec. Dig. § 509.*]

4. EXECUTORS AND ADMINISTRATORS (§ 380*)—
SALE OF LANDS TO ADMINISTRATRIX-AC-
TION TO RECOVER LAND GROUNDS FOR
AVOIDANCE OF SALE.

So long as an administratrix kept within her legal duties and rights, which included her right to sue to settle the estate and prosecute the suit to judgment, as well as to have confirmed her bid for lands sold pursuant thereto, if she was the best and highest bidder, and if the sale was without irregularity, her motive in suing is immaterial, and that she may have contemplated oppressing or humiliating a party thereto claiming under a rejected will is not a matter for determination, in a suit by one claiming as devisee under such will to recover the land, so long as the administratrix acted within her legal right.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. §§ 1545, 1546; Dec. Dig. § 380.*]

A judgment ordering a sale of land to pay debts of an estate was erroneous in directing a deed to the purchaser before the expiration of time for redemption, but it was not

5. EXECUTORS AND ADMINISTRATORS (§ 349*)- up by the judgment of the circuit court, apSALE OF LAND TO PAY DEBTS-JUDGMENT pellant brought this suit to recover the lands THEREFOR-VALIDITY. devised to her by the fourth clause above quoted, alleging that the appellee as administratrix had fraudulently procured the sale of the land in the circuit court to defeat the [Ed. Note. For other cases, see Executors and operation of the will. Appellant was a parAdministrators, Cent. Dig. § 1446; Dec. Dig. §ty to the suit to settle the estate of her tes349.*]

void.

6. EXECUTORS AND ADMINISTRATORS (§ 380*)— SALE OF LAND TO PAY DEBTS-ERRONEOUS JUDGMENT-REMEDY OF OBJECTING PARTY. The remedy of a party objecting to an erroneous judgment for the sale of lands of an estate to pay debts is by seasonable appeal to the proper court, and she cannot allow such remedy to lapse and then sue the purchaser to recover the lands.

[Ed. Note. For other cases, see Executors and Administrators, Cent. Dig. § 1556; Dec. Dig. § 380.*]

Appeal from Circuit Court, Monroe County. "Not to be officially reported."

tator, brought by appellee as above mention-
ed. There has not been an appeal from the
In this case the court
judgment in that case.
adjudged that appellant was barred by the
judgment in the settlement suit, and dismiss-
ed her petition. The children of appellant
ask to be permitted to plead, alleging that
they took an interest in the lands devised
by the fourth clause of Francis M. Flippin's
will. The lower court construed that they
took nothing. Hence they were not permitted
to become parties to this action. They also
appeal.

We think that appellant Mary Frances DisSuit by Mary Frances Disman against man took the fee to the land devised by the Francis M. Flippin's administratrix to recov-fourth clause of the will. The devise was to er lands devised to plaintiff. From a judg- her alone. There was an attempt to suspend ment for defendant, plaintiff appeals. Af the power of alienation only. The testator, instead of forbidding alienation altogether,

firmed.

Baird & Richardson, for appellant. W. Lattempted merely to restrain the alienation Porter, for appellee.

But

of the land by his devisee, allowing that thereafter it might be sold and conveyed. O'REAR, J. Francis M. Flippin died tes- The sentence "yet should she leave heirs tate in 1899. His will was rejected by the they may sell and dispose of it as other county court, and his widow was appointed lands," was intended, we think, to remove a and qualified as administratrix. Presently restraint imposed before in the will, and thereafter she instituted a suit to settle his which but for the saving clause just quoted estate, alleging his insolvency. All the land would have been absolute, if legal. of the decedent, three tracts, were alleged to whether the attempted restraint upon the have been worth less than $1,000, and she power of alienation was valid or not, neverclaimed and was allowed a homestead, and theless the devisee was invested with the all the land was so allotted to her. There fee. She was the sole owner. Having been were some debts proved against the estate, a party to the suit to settle the estate of the and the land was sold subject to the widow's decedent, she was bound by that judgment, right of homestead. The land so subject was unless it was vacated for cause and in the sold for $125 to the widow, bringing less than manner allowed by law, as by the obtention two-thirds of its appraised value. The sale of a new trial in that action, or by appeal to was confirmed, and deed made to the widow this court within the time when this court within a year after the sale. Thereafter ap- had jurisdiction of the appeal. Having failed pellant, who was a devisee under the will of to pursue either course, she is barred by the Francis M. Flippin, prosecuted an appeal to | judgment, although it was erroneous, unless the circuit court from the order of the county court rejecting the will. By the judgment of the circuit court the will was ordered probated. The will made certain provision for the testator's widow, but she renounced the will within a year after it was probated. The fourth clause of the will reads as follows: "Fourth, I give and bequeath to my natural child now named Mary Frances Disman all the balance of the real estate of which I may die seised, to her and her heirs forever without the right to her or her husband ever to sell or transfer the same, yet should she leave heirs they may sell and dispose of it as other land." The testator by his will gave his other lands described in the will to his widow. After the will was set

it is void.

A judgment obtained by fraud may be void under some circumstances. But if a party has a legal right to have a judgment of a particular tenor entered, in an action of which the court has rightful jurisdiction, as well as jurisdiction of the parties, it will not be inquired into what motive A legal prompted the successful litigant. right is to be exercised regardless of motive. The administratrix had the legal right to have her accounts, as well as the estate, settled in a suit in equity in the circuit court for that purpose. The will has been rejected. Until the appeal was prosecuted the decedent was in law an intestate. So long as his personal representative kept within her legal duties and rights, which included her right

Appeal from Circuit Court, Estill County opinion. "Not to be officially reported."

Action by James E. Broaddus and another against Tandy Centers. Judgment for defendant, and plaintiffs appeal. Affirmed.

Chas. W. Friend and Smith & Smith, for appellants. Riddell & Friend, D. B. Redwine, and Gourley, Redwine & Gourley, for appellee.