had proven unsatisfactory, or that some better plan of maintaining them- had been discovered. It is not material, therefore, that the office of supervisor of roads was abolished because the fiscal court had, as alleged in its answer, adopted rules as provided by section 4748, Kentucky Statutes, for keeping up the roads of the county. We are not concerned with and need not discuss the reasons that influenced the court to discontinue the office; it is sufficient that it was discontinued. It is patent that at the time the county judge attempted to appoint appellant supervisor of roads for Jefferson county there was no vacancy to be filled, because the office had been abolished by the fiscal court two years before. Moreover, had there been a vacancy at that time, the county judge would have been without power to fill it, as the fiscal court was then in session and a regular term being held.

A fiscal court can only appoint a supervisor of roads at or during a regular term, even to fill a vacancy; and the authority to appoint conferred by section 4313, supra, upon the county judge, can be exercised by him. only when a vacancy exists and the fiscal court is not holding a regular term, the appointee to fill the vacancy till the next regular term of the fiscal court.

Finding no error in the judgment of the circuit court, the same is affirmed.

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L. & N. R. R. Co. v. Roe, By, et al.

(Decided February 24, 1911.)

Appeal from Whitley Circuit Court.

Instruction-Right to Peremptory.-Where a railroad freight brakeman was knocked from the top of a box car and injured by an over-head tunnel-gauge situated half a mile from the tunnel and unprotected by a "telltale" or other device to notify the brakeman of the presence of the tunnel gauge, the trial court did not err in overruling defendant's motion for a peremptory instruction..

Same-Damages.-Where the damages awarded are not more than strict compensation, the verdict will not be set aside, although the jury were instructed that they might, in their discretion, award punitive damages if they found the negligence was gross.

Instructions-To be Read as a Whole.-An instruction must be read as a whole; and if, when so considered, it fairly and fully

presents the question at issue to the jury, their verdict will not be disturbed.

H. H. TYE, J. W. ALCORN, CHAS. H. MOORMAN and BENJ, D. WARFIELD for appellant.

J. N. SHARP for appellee.

OPINION OF THE COURT BY JUDGE MILLER-Affirming.

The appellee, Roe, aged nineteen and a freight brakeman in the employment of the appellant Railroad Company, was injured on September 13th, 1907, while in the discharge of his duties near Solway, Tennessee, immediately north of the "Copper Ridge Tunnel."

On April 1907, an accident in the tunnel had resulted in a caving in of about 319 feet of the tunnel, thereby closing it for that distance and rendering it unfit for the use of appellant's trains. It was not until June 20th, 1907, that appellant succeeded in clearing the tunnel so that it could be used by its trains; and during the period between April 21st, 1907, and June 20th of that year, appellant used the tracks of the Southern Railway Company over a different route. By June 20th the debris had been removed from the tunnel, and it was again used for the passage of appellant's trains. It was necessary however, that the tunnel should be made safe for future use; and with that purpose in view, the appellant put a force of from 50 to 75 men at work enlarging the tunnel opening through the mountain and putting in a concrete lining in place of the timber lining that had theretofore supported the opening. It was considered that the concrete lining was to be preferred, both on account of its strength and durability and the elimination of the danger from fire. This work took about three months, and was not completed until about September 28th, 1907. During the time the improvements were being made in the tunnel, appellant sent about 25 trains. through the tunnel every day. In order to carry on the work, scaffolding and other appliances used in that character of work were erected in the tunnel; and this necessarily reduced the space therein which would ordinarily be used for the trains. The timbers were so arranged as to leave sufficient space only to permit cars of ordinary size to pass through the tunnel; and in order to guard against sending into the tunnel cars that were too large to pass safely through the opening while the

scaffolding was there, a tunnel-gauge was constructed about a half-mile distant from each opening of the tunnel. These gauges were constructed by placing poles upon either side of the track, and by placing over the track and attached to the poles, light pieces of timber that would leave a space in width and height on the sides of and above the track that was equal to the open space left between the timber in the tunnel through which the cars would pass. In this way it was easy to determine when a car was too large to go through the tunnel without striking the scaffolding; for, if the car either by its great width, or its height, would strike the side or top of the tunnel-gauge, either of those facts would show that the car was too large to pass safely through the tunnel; and it would then be cut out of the train and sent back. The tunnel was about 2,300 feet in length, and this precaution was necessary for the protection of the men at work inside of the tunnel.

Roe was front brakeman on a north-bound freight train, composed of from 30 to 35 cars. After the train had passed through the southern tunnel-gauge and through the tunnel, it went on to a side track just north of the tunnel for the purpose of permitting a southbound train to pass. After the south-bound train had passed, Roe's train started north, and he threw the switch that let his train pass on to the main track. He then climbed back to the top of a box car, and walked back to the fourth car for the purpose of transmitting to the engineer the signals that were expected from the fiagman when the rear end of the train had passed from the switch to the main track. When that was accomplished, it was necessary for the flagman to throw the switch, lock it, and get back on to the train; and as it required from one to two minutes for this to be done, the train was required to slow up in order that the flagman might regain the train. At this point the track curved to such an extent that the engineer could not see the flagman; and it was necessary for Roe, being the front brakeman, to pass the signals from the flagman to the engineer. While Roe was standing or walking along upon the top of the fourth box car, looking southwardly for the signal from the flagman, and with his back toward the engine, the car passed under the tunnelgauge and knocked him off, and on to a gondola car which was the next car in the train. His right arm was

broken near the wrist, his face was bruised, his knee was hurt, and, it is claimed, that his hearing in one ear has been permanently injured. He sued the company and recovered a verdict for $2,600.00, and from the judgment upon that verdict the company appeals.

The grounds relied upon by the appellant for a re versal are: (1) that the trial court erred in not sustaining appellant's motion for an instruction peremptorily directing the jury to find for it; (2) that the damages are grossly excessive, due, as it is claimed, to an instruction which authorized the jury to award punitive damages in addition to compensatory damages; and (3) that the court erred in instructing the jury, and also in refusing to give instructions asked by appellant.

The argument for a peremptory instruction for the appellant is based principally upon the fact that Roe had been working for appellant for a year; that the gauge was in full view of persons on the train; that appellee was an experienced brakeman; and further, that he knew of the existence of the tunnel-gauge that struck him and caused the injury. It is true, Roe had been working for appellant for about a year as a brakeman cn freight trains which passeu through the Copper Ridge Tunnel, but he had been sick and had laid off for some two weeks before he was hurt; and the train on which he was hurt was the first on which he worked after the gauge was erected. The only information that Roe had of the existence of the tunnel-gauge had been acquired a short time before the accident, while he was traveling over this route on the rear end of a passenger train, when his attention had been called to it by a fellow passenger. He saw it, but there is no evidence that he knew its size, the height of the top cross-piece of the gauge, or that he noticed its exact location with reference to the road. He says he did not know of the presence of the gauge at the time he was struck, and that no one had called his attention to it. The appellant contends, however, that notice had been given of the existence and location of the tunnel-gauge by bulletins posted upon the bulletin boards at the principal stations along the road, and it was Roe's duty under the rules of the company to read these bulletins for the purpose of protecting himself against injury from temporary obstructions which the company might find necessary to place along its track. Roe denies that he ever saw or read a bulletin in connection with the existence of this

tunnel-gauge, and there is no evidence beyond the fact that he saw it from the passenger train, above referred to, that he had ever seen or knew of it. The tunnelgauge had been placed there for the protection of the tunnel and the men at work in the tunnel. Under this state of facts, was the company entitled to a peremptory instruction? The duty of the company is laid down as follows in 26 Cyc. 1130:

"A railway company is bound to exercise reasonable care and diligence to prevent obstructions or erections on, over, or near its tracks which are a source of danger to its servants, and will be held liable for injuries occasioned by its neglect of duty.

"If a railway company knowingly maintains or permits a bridge over its track so low that brakemen cannot perform their duties on the top of the cars with reasonable safety, it is liable to a brakeman who, having no knowledge of the dangerous character of the bridge, is struck by it and injured while in the performance of his duty.

"In the absence of a statutory requirement on the subject, the failure of a railway company to maintain whipping straps, telltales, or bridge guards to warn brakemen who are on top of a train that it is about to pass under a bridge so low as to imperil their lives is not legal negligence, unless such devices are so manifestly serviceable as to command the consensus of intelligent railroad men, and such men do not honestly differ in judgment as to their utility.”

A tunnel-gauge, in construction and effect, is very similar to an over-head bridge, except that it is usually more dangerous to brakemen, since it generally leaves a smaller space above the top of the car. While a bridge may have any height above the top that convenience of construction may dictate, a tunnel-gauge, having been made for the purpose of measuring the contracted space within the tunnel, must necessarily be no larger than that contracted space. The question of a railroad's duty and liability to its employes in the construction of over-head bridges was carefully considered in Cincinnati, &c. R. Co. v. Sampson's Adm'r, 97 Ky. 65, where this court laid down the following rule as to the reciprocal rights and duties of the railroad company and its employes in cases of that character:

"The employe assumes the ordinary risks pertaining to an employment that is often and necessarily attend