Owensboro City Railroad Co. v. Wall. (Decided February 7. 1911.) Appeals from Daviess Circuit Court. Street Railways-Action Against for Personal Injuries-NegligenceInstructions. Where one was injured by the buggy in which he was riding being struck by a street car and his horse becoming frightened, an instruction advising the jury, in the trial of an action for damages, that when the motorman saw the horse was frightened he should have used reasonable care under the circumstances, to not frighten it again, and if he had reasonable grounds to believe that it would frighten the horse to move the car he should not have done so, and moving it was negligence, properly submitted the question to the jury. E. B. ANDERSON, ALBERT W. FUNKHOUSER and ARTHUR FUNKHOUSER for appellant. L. P. TANNER for appellee. OPINION OF THE COURT BY JUDGE NUNN-Affirming. Appellee, late one afternoon, with his wife and children, was driving over the city of Owensboro, and when coming from the end of Breckinridge street, a street car, going the opposite direction, approached him across the tracks of a steam railroad making a considerable noise which frightened appellee's horse. The horse turned the buggy around but was caught by a friend of appellee and stopped, and the motorman stopped the car. Appellee and his friend made an examination and found that one of the shafts was broken near the cross-bar, and they took a hitch rain and rope and began to tie it up. The motorman told them that he could not wait on them any longer, and they began parleying with him trying to prevail upon him to wait until appellee got into his buggy before he started the car. When appellee got into his buggy he started off in the direction the car was going with the intention of turning out the first street he came to, to a place of safety. As appellee started, the motorman started the car, and, according to appellee's testimony, traveled faster than he was traveling and overtook him at the street which he intended to turn out and just as he was turning out, frightened his horse and caused him to begin to run and kick. Appellee stated that he found that he could not stop the horse so he turned him into a wire fence; that his knee was injured, and that the horse and buggy were damaged for which he sued the company and recovered $397.50. Appellant's testimony agrees with appellee's, except that it shows that the car was not run upon or near the horse; that appellee had turned into another street and gone away from the car when the horse became suddenly frightened and ran away. The court gave the jury three instructions; one on the question of damages, if they should find for plaintiff, and the other two, we copy: "1. Gentlemen of the jury, if you believe from the evidence that while plaintiff was passing along Breckenridge street in or near the city of Owensboro driving a horse attached to a buggy in which he and his family were riding at the time and the said horse became frightened at a car belonging to the defendant, Owensboro City Railroad Company, and in charge of one of its servants, and after said agent discovered that said horse was frightened at his car he stopped his car and negligently, carelessly and willfully failed to keep it stopped reasonably long enough time for the plaintiff to reach a place of safety, or ran said car close to said horse and by reason thereof said horse became frightened, ran off and injured the plaintiff's knee, damaged his buggy and injured the horse, then you ought to find for the plaintiff and so state in your verdict.' "3. If you believe from the evidence that you have heard that the injuries of which the plaintiff complains in his petition and evidence were the result of his own negligence or carelessness, and but for his contributory negligence and carelesness, if any, he would not have been injured or damaged, then you ought to find for the defendant; or, if you believe from the evidence that the horse which the plaintiff was driving was vicious, wild and unmanageable, and by reason of that alone he received his injuries, then you ought to find for the defendant.' The court should not have given the peremptory instruction asked for by appellant. When it saw that the horse was frightened it should have used reasonable care, under the circumstances, to not frighten it again, and if those in charge of the car had reason to believe that it would frighten the horse to move the car near it, they should not have done so, and if they did, they were guilty of negligence. The instructions submitted this question to the jury, and we are not willing to disturb its finding. For these reasons, the judgment of the lower court is affirmed. Real Brink, et al. v. Edwards Corrugating Co. (Decided February 7, 1911.) Appeal from Kenton Circuit Court. Property-Action for Injury to-Person in Possession has Right to Recovery. One in possession of real property has a right to recover for an injury to his possession, and is entitled to maintain such action, although he does not show title from the Commonwealth, nor fifteen years, open, notorious, adverse posses sion. F. J. HANLON for appellants. WM. A. BYRNE for appellee. OPINION OF THE COURT BY JUDGE NUNN-Reversing. Appellants, in their petition and amended petitions, asserted that they were owners and in possession of a certain described house and lot in Covington, Kentucky; that they became the owners thereof by deed of date, November, 1902; that afterwards, in 1908, appellee placed a large trip hammer in its manufacturing establishment at the rear of this house and lot and about seventy-five feet therefrom; that appellee, by the use of this trip hammer, caused the walls of his house to vibrate and crack; that the windows and doors of the house had been damaged so that they would not work properly; that their cistern walls had cracked and let the water leak out; that the dropping of the hammer caused the tableware in the house to shake and drop from its support. Appellants further alleged that the use of the hammer annoyed them at all times, and especially in sickness; that each of them had one or two spells of sickness; that Henry Brink had the rheumatism for several months and the use of the hammer gave him great pain, and had rendered their house almost unhabitable. Appellee answered denying all the allegations, except that of possession of the house. Appellants' testimony sustained the allegations of the petition so far as the questions of damages were concerned, but at the conclusion of the testimony the court gave the jury a peremptory instruction to find in behalf of appellee because appellants had not connected their title with the Commonwealth nor shown fifteen years of continuous, adverse possession, claiming the property as their own. In other words, the court determined that appellants were not entitled to recover, although they showed that they had been in possession of the property since 1902. As we understand the law, the person in possession of real property has a right to recovery for an injury to his possession. It is true, he would not have a right to recover for an injury to the fee, unless he showed that he was the owner of the realty. See Deaton, et al. v. Burton, et al., decided February 1, 1911; Hall v. Deaton, et al., 24 Ky. Law Rep., 314, and Long v. L. & N. R. R. Co., 32 Ky. Law Rep., 774. In the last named case this court said: "The plaintiffs produced on the trial the deed which had been made for the property. They did not show title from the Commonwealth and this was unnecessary. They were in possession; if the defendant had wrongfully polluted their spring they may recover such damages as they have sustained without showing a title to the land. The defendant set up no claim to the spring and the person in possession may recover for a trespass or tort against a wrongdoer without showing title." Many other cases to the same effect might be cited, but the above cases make it plain that appellants were entitled to maintain their action, although they did not show title from the Commonwealth, nor fifteen years open, notorious, adverse possession. For these reasons, the judgment of the lower court is reversed and remanded for further proceedings consistent herewith. Local Duvall, et al. v. Merideth. (Decided February 7, 1911.) Appeal from Edmonson Circuit Court. Option-Contract for Sale of Whiskey in Local Option Territory-Such Contracts Void. It appearing from the writing sued on that the contract involved the sale of whiskey in local option territory, it is well settled that such contracts are void. LOGAN & GRIDER, JOHN A. LOGAN and N. T. HOWARD for appellants. M. M. LOGAN and ORA HAZELIP for appellee. OPINION OF THE COURT BY JUDGE NUNN-Affirming. This action was brought by appellants alleging that appellee agreed to pay them $500, with interest from October 1, 1907, until paid. They alleged that the note was held by the Grayson County National Bank and said that they would file a copy thereof in due time. Appellee answered and filed a copy of the note, which is as follows: "500.00. "Thirty-two months after date I promise to pay to Duvall & Music the sum of five hundred dollars without any interest and it is understood and agreed that if the contract here attached is not faithfully carried out by Duvall & Music this note is void and is not payable at all, though if the contract is carried out fully C. G. Merideth is to pay or cause to be paid to Duvall & Music $500.00 in whiskey at 90 cents per gallon put in bond. This 23d day of July, 1907. "C. G. MERIDETH." Appellee answered and alleged that he had bought a body of land from Noah Duvall at Bee Springs for $3,000.00, and had paid $2,500.00 in cash and executed a note for the balance, a copy of which appears above; that he erected a distillery and made a contract with Noah Duvall and appellants wherein he agreed to run the distillery nine months the first year, and ten months each during the other two years, and Noah Duvall and appellants were to pay all taxes, keep the books and do everything else in connection with the distillery except make the whiskey, and were to take the whiskey produced during the three years at 90 cents per gallon. He alleged that they failed and refused to take the whiskey except for four months; that he could have made so many gallons during the three years which, at 90 cents per gallon, would have amounted to over $7,000.00; which would have paid the note sued on and left them owing him over $6,000.00 under the contract, which he pleaded as a counterclaim against the parties to the action and Noah Duvall and S. M. Davis, who had signed the following bond: "Whereas Noah Duvall has made a contract with C. G. Merideth to lease from him a distillery to be put in |