trying to adjust the trolley with the other, he would naturally have his eyes to the rear so that he could see the trolley which he was trying to adjust and this would throw the back of his head toward the pole; his head would naturally be thrown outward in the effort to see the trolley and adjust it. While it is true no witness saw him strike the pole the circumstances are fully as convincing as any positive testimony could be; for there is nothing else in the record to account for the bump, the jar of the car or the twinkle of the lights.

It is true that on behalf of the defendant a number of witnesses were introduced who testified that Hardin's body was found from twenty to forty feet east of the pole. But we do not regard this fact as entitled to much weight for the reason that being a stout young man, having his hand gripped tightly upon the handhold when the car was running rapidly, he would not unreasonably be carried some feet beyond the pole before his grip upon the handhold relaxed. We, therefore, conclude that not only there was some evidence that Hardin was struck and killed by the pole but that the weight of the evidence sustains the verdict of the jury.

It is complained that in the first instruction, the court did not say anything about contributory negligence; but while this is true, the court by another instruction, told the jury that although they might believe from the evidence that the defendant was guilty of negligence as set out in instruction 1, yet if they further believed from the evidence that the deceased failed to use ordinary care for his own safety, and but for this would not have been hurt. they should find for the defendant. The instructions of the court are to be read together, and when the court expressly referred in this instruction to No. 1, the jury could not have failed to understand the meaning of the two instructions.

Lastly, the appellant complains that the following instruction asked by it was refused:

"If the jury believe from the evidence that the deceased knew of the proximity of said pole or if it was patent to persons of his experience and understanding, they should find for the defendant."

If this instruction had been given it would have been under the evidence misleading. It was not incumbent on the deceased to anticipate that a pole had been placed so near the track as to endanger him in the proper and usual discharge of his duties, and he was not required to be on

the lookout for such a pole. He had a right to presume that he could safely discharge his duties in the ordinary way unless he knew of the danger. The fact was, however, the pole was there and it was patent to a person of his experience and understanding if he had looked. He did not look because he did not realize the danger, and as the car approached the pole had his back to it with his eyes on the trolley. The instruction was, therefore, properly refused, and without going into the details of the evidence we deem it sufficient to say that if a proper instruction on the subject had been given it would have had no effect on the result of the trial. The defendant was clearly negligent in maintaining its pole so close to the track, and to exempt it from responsibility on the ground that the deceased assumed the risk, it should appear that he knew of the proximity of the pole and that the danger from it was patent to a person of his experience and understanding. There was much in the evidence for the defendant to the effect that the deceased was negligent in going outside of his car while in motion to change the trolley; but this issue was fairly submitted to the jury by the instructions of the court, and on the whole record we conclude that the appellant had a fair trial on the merits of its case.

Judgment affirmed.

1.

2.

Beasly, et al. v. Furr.

(Decided June 6, 1913.)

Appeal from Garrard Circuit Court.

Judgment-Vacation of-New Trial.—A judgment will not be vacated or a new trial granted after the term at which it was rendered, except upon the grounds, or some of them, provided by section 518, Civil Code, and where a petition for the vacation of such judgment and new trial and the record of the action in which the judgment was rendered made a part of the petition, show that the petitioner was duly summoned in the first action and had ample opportunity to make defense, the judgment will not be set aside or a new trial granted upon the mere allegation that the debts sued on had been paid before the judgment was rendered; there being no fraud alleged in the procurement of the judgment.

Judgment-Petition for Vacation of-Conclusion of Pleader.The allegation that the petitioner did not discover that the judg

ment had been rendered until after the term at which it was entered, and that he could not by reasonable diligence have sooner discovered the fact, is a mere conclusion of the pleader, and is disproved by the admissions of the petition and the record in the former action; therefore, a demurrer to the petition was properly sustained.

R. H. TOMLINSON for appellants.

H. CLAY KAUFFMAN, H. L. WALKER for appellee.

OPINION OF THE COURT BY JUDGE SETTLE-Affirming.

In the summer or fall of 1912, appellee sued appellant in the Garrard Circuit Court upon two notes, one of $219 and the other $133.35. The larger note was secured by a mortgage on three small parcels of land situated in Garrard County, and the small note by a second mortgage on two of the three parcels of land covered by the first mortgage. In addition to asking a personal judgment on each of the notes, appellee also sought in the action, the enforcement of the mortgage liens in satisfaction thereof. A summons was duly issued and served upon appellant, and at the succeeding term of the court appellee obtained a personal judgment against him for the amount of each note with interest, and also for the enforcement of the mortgage liens in payment thereof. After the judgment was rendered, appellee by an entry on the record of his judgment, acknowledged payment of the larger note and satisfaction of the judgment to that extent. Thereafter, the master commissioner of the Garrard Circuit Court sold in satisfaction of the mainder of the judgment or small note, the two parcels of land embraced in the second mortgage, and appellee became the purchaser thereof at, substantially, their appraised value. The sale was reported to the court and confirmed, after certain exceptions filed thereto by appellant had been overruled. By order of the court, the commissioner made appellee a deed conveying him the lots and he thereafter obtained possession of them under a writ of habere facias possessionem.

After these proceedings were had, appellant instituted the present action by filing in the Garrard Circuit Court his petition asking the vacation of the judgment recovered against him by appellee and that he be granted a new trial in the action in which it was recovered. The circuit court being of opinion that the petition did not present sufficient cause for vacating the judgment, or for

the granting of a new trial, upon any of the grounds authorized by section 518, Civil Code, sustained a demurrer thereto and dismissed the action, and from the judgment manifesting these rulings, this appeal is prosecuted.

The only grounds set forth in the petition for the relief sought are, that the debts sued on in the action brought by appellee had been fully paid before the action was instituted, that he was not aware of the failure of appellee to give him credit for the payments he had made thereon, until after the rendition of the judgment, and could not by reasonable diligence have discovered such failure before the judgment was rendered. These averments are contradicted by the appellant's own conduct and disproved by the record in the action in which the judgment was recovered, which was filed with appellant's petition. It is inconceivable that, after being duly summoned in the action upon the notes and to enforce the mortgage liens, appellant would have allowed judgment against him by default, if the notes had been paid before the action was brought. It is not alleged in his petition that the judgment was obtained by fraud or that he was prevented from making a defense in the action by any thing done by appellee, and the allegation that he could not by reasonable diligence have discovered appellee's alleged failure to credit him with payments that discharged the debts, is a mere conclusion. Receiving as he did notice of the suit, through the service of a summons, he had ample time to discover that he had not been given the alleged credits, and ample time to have made defense to the action, but instead of doing so he suffered judgment to go against him. There was no showing of his having been prevented by accident or unavoidable casualty, from making a defense, and, moreover, the record of the former action, made a part of his petition, shows that he satisfied the larger note after the judgment was rendered, by conveying appellee one of the tracts of land covered by the first mortgage. These facts alone show that the debt had not been paid before the action was brought. In brief, the petition not only fails to show reasonable diligence on the part of appellant to inform himself of the object of the former action, or to discover that he had not been credited with what he had paid on the notes, but it also fails to show that he had, or can yet make, a good defense to the action. This being true he failed to show cause for vacating the judgment or for a new trial,

as authorized by section 518, Civil Code. It therefore follows that the circuit court did not err in sustaining the demurrer to the petition.

Judgment affirmed.

1.

Anderson, et al. v. Herring, et al.

(Decided June 6, 1913.)

Appeal from Garrard Circuit Court.

Wills-Construction of.-A devise by a testator, after payment of his debts, of all his estate to his wife for life, with remainder to his daughter, with a proviso, that if the wife remarried the property should be divided between her and the daughter, as the law directs, but that if the daughter should die "without heirs," the estate should go to the testator's "family relations" after the death of the wife, gave to the daughter a defeasible fee in the property devised, subject to the life estate of the widow and subject to be defeated in the event, she (the daughter) should die without children, before the termination of the particular estate; that is, before the death of the widow. As the daughter survived the widow, her title became an absolute or fee simple title. 2. Wills-Construction of.-It is a well recognized rule in the construction of wills, that where an estate is devised to one for life, with remainder to another, with the further provision that, if the remainderman should die without children or issue, then to a third person, the words, "dying without children or issue," are restricted to the death of the remainderman before the termination of the particular estate.

R. H. TOMLINSON for appellants.

L. L. WALKER for appellees.

OPINION OF THE COURT BY JUDGE SETTLE-Affirming.

Daniel M. Anderson died at his home in Lancaster, Garrard County, in January, 1878, survived by his wife, Nannie Anderson, and their only child, Eliza Anderson, who later became the wife of Fisher Herring. On the 3d day of January, 1878, Daniel M. Anderson made a will which, shortly after his death, was duly admitted to probate by the Garrard County Court. The testator's widow, Nannie Anderson, appointed by the will executrix without security, duly qualified as such.

The will, omitting the signatures of the testator and attesting witnesses, is as follows:

vol. 154-10.