Poor farm until it was fully settled. In consideration of these services it was alleged that Emaline Wilds and her husband agreed they would each make a will, or by deed or otherwise make such provision that after the death of the survivor, Julia Readnour would receive a share in the combined estate of the two, equal in value to one-half of the value of the two farms.

It was further alleged that in 1900 appellees moved to the 87 acre farm and resided thereon until 1906; that they performed their part of the contract and after deducting the living expenses for both families during this time sufficient money was derived from the sale of crops to pay the balance due on the purchase price of the Poor farm.

The 87 acre farm was sold by Wilds and wife in March 1906, and the Poor farm was sold in 1912. It was claimed that appellant, Robert Hiner Pierce, (who had been adopted by Wilds and wife as their heir at law) because of his dissipated habits contracted many debts which he persuaded his adopted parents to pay, with the result that at the time the petition was filed there remained only the sum of about $3,500.00 of the combined estates of Emaline Wilds and her husband. At the time of the death of Emaline Wilds, in 1917, it is alleged this amount stood in her name.

In September, 1914, Emaline Wilds and her husband contracted with one Adams for the purchase of a 60 acre farm in Kenton county, on which $100.00 was paid in cash. During the pendency of a suit growing out of defects in the title to this farm, and which involved the settlement of certain questions of interest, the sum of $3,308.59, representing the remainder of their estate, was placed in escrow, but Emaline Wilds died before this controversy was disposed of.

It is said John B. Wilds has no property other than such interest as he might have in said $3,500.00. The two farms having been sold and John B. Wilds having denied making the contract sued on, at the same time declaring his purpose not to carry it out, appellees filed this suit fixing their damages at $4,500.00, for which sum they sought judgment. Following a settlement of the litigation involving the Kenton county farm they asked that said farm be finally subjected to the payment of any judgment appellees might recover in this action upon the expiration of the life estate of John B. Wilds. The fore

going is a substantial statement of the allegations of the petition.

The lower court entered judgment in favor of appellees against appellant Wilds individually and as administrator of his wife's estate in the sum of $4,500.00, subject to the life estate of said Wilds. It is to reverse said judgment that the present appeal has been prosecuted.

Other than the statement of two witnesses that Mrs. Wilds had said she wanted her niece, Julia Readnour, to have one-half of her property there was no attempt to prove any contract with Emaline Wilds.

According to the testimony introduced by appellees they remained on the 87 acre farm for six years, and performed all the services called for by their contract. The testimony by which they sought to show that the net proceeds of the crops raised were sufficient to pay the balance due on the Poor farm is far from convincing. When appellees moved to the 87 acre farm they took with them their three children, the oldest of whom was four years of age; they took but little else. During their occupancy of the farm they had a comfortable living and when they left in 1906 they had accumulated some little property.

Julia Readnour had been reared by Wilds and his wife since she was three years of age, but having been married. against their wishes she left their home and moved to Boone county. However, J. B. Wilds rendered her financial assistance in the purchase of a modest home and helped them in many ways, frequently furnishing provisions and clothing for the family.

Appellant Wilds positively denies making any contract with appellees, such as was alleged in the petition. He says the real purpose in having appellees move to the 87 acre farm was to have them closer since he and his wife found it necessary to help in their maintenance and support. That aside from the benefit, help and sustenance Readnour and his family derived from the farm, he, Wilds, says he frequently paid Readnour for his services and work done on the place. Wilds and others testify that the Readnours remained on the 87 acre farm for only four years, to-wit: from 1902 to 1906, and that while John Readnour rendered efficient service for the first two years, he, Readnour, received the entire benefit of the crops raised by him the last two years of his occupancy.

The proceeds from the sale of the 87 acre farm were applied in part payment on the 119 acre tract. The rec

ord shows that the debt on this latter farm was not lifted until 1912, notwithstanding the contention of appellees that by reason of their services there was sufficient income from the two farms by 1906 to pay the balance due on the purchase of the Poor farm.

Appellees admit they received the proceeds from the sale of tobacco raised on the 87 acre tract while they were there, but the parties give rather divergent views as to the quantity of tobacco so raised.

Appellee, Julia Readnour, doubtless made an honest effort to assist her aunt with her housework, but it is hardly possible with their houses about four miles apart that, considering her family of small children, she could, as she testifies, have performed all the duties of the Wilds' household.

The indigence of the Readnour household, the relationship of the parties and the fact that the appeals of the adopted son Robert had probably greatly depleted the family exchequer might make one hopeful of finding a more benevolent attitude toward Julia Readnour than is evidenced by the record, but courts are not keepers of litigants' consciences, nor dispensers of their charities.

We do not know what reason prompted John B. Wilds to declare his intention of depriving Julia Readnour of all share in his estate, if such in fact be the case. However, we are satisfied that not only have appellees failed to prove any semblance of the contract sued on with either John B. Wilds or his wife, but they have wholly failed to convince us of performance on their part of the alleged agreement with either Emaline Wilds or her husband. The judgment is accordingly reversed with instructions to enter an order dismissing the petition.

1.

Wolford v. Majestic Colleries Company.

(Decided October 28, 1921.)

Appeal from Pike Circuit Court.

Master and Servant-Negligent Operation of Coal Car-Pleading. -A petition alleging that plaintiff had sustained injuries through the reckless and negligent operation of a car operated by defendant coal company, upon which he had been invited by defendant's employes to ride and which invitation was in accordance with a custom of carrying passengers on said car, which had existed for eight or ten years, was known to, acquiesced in and approved by the company, states a cause of action.

2.

Master and Servant-Negligent Operation of Coal Car.-Though plaintiff had paid no fare, his presence on a car operated by defendant at the invitation of its employes, and in accordance with a long indulged in custom of carrying passengers thereon, same being with the knowledge, acquiescence and approval of the company, imposed upon the company the duty to exercise ordinary care for plaintiff's safety.

P. B. STRATTON and A. L. RATCLIFFE for appellant.

J. J. MOORE for appellee.

OPINION OF THE COURT BY JUDGE QUIN-Reversing.

In this suit instituted by appellant, damages were sought for injuries sustained by him growing out of the alleged negligence of appellee in the operation of a car on its line of railway between Cedar, W. Va., and the company's mine at Majestic, a distance of about two miles.

The lower court sustained demurrers to the petition and to the petition as amended, complaining of which this appeal has been prosecuted.

Appellee owns and operates a coal mine at Majestic, Ky., and so as to reach the main line of the Norfolk and Western Railway at Cedar, W. Va., it constructed a line of road along Poplar Creek from its mine to the station aforesaid. Over said line it operates a small car for the purpose of carrying express and mail, and, as alleged in the petition, used said car for the purpose of carrying passengers between Cedar, W. Va., and the company's mine.

It is alleged that while riding on the car aforesaid, due to its reckless and negligent operation and its high rate of speed, the car jumped the track and threw appellant therefrom and he thereby sustained certain injuries, as set out in the petition.

It is alleged that the company had been operating this car for eight or ten years and it had actual notice during said period that its agents, servants and employes, in charge of its operation, invited various persons to ride thereon, between the mine and Cedar, W. Va., and that they were carrying passengers on said car between said points by invitation; that defendant acquiesced in said use of the car in the carrying of passengers between said points by invitation, and ratified, acquiesced in and approved of the acts of its agents and employes in the oper

Vol. 192-21

ation of said car, and this acquiescence and approval covered a period of ten years. At the time of appellant's injury it is alleged that appellee's manager and mine superintendent, who had authority over all of the company's employes, was in charge of the operation of the car, and that appellant was on said car with the knowledge of said manager or superintendent.

The lower court was of the opinion that the petition as amended did not state a cause of action, but with this conclusion we cannot agree. This is not (a), the case of a person entering the car of a railroad company without the knowledge or consent of the company, but merely upon the invitation or with the acquiescence of employes who had no authority to give such permission, but (b), it presents a situation where, according to the petition as amended, not only was appellant invited to ride on the car by the company's employes, but this custom of carrying passengers on said car had existed for eight or ten years; was known to the company and it had acquiesced in and approved of this act of its employes in the carrying of such passengers.

In the first class of cases it is generally held that such permission does not make the person invited other than a mere licensee and the company is under no duty to protect him from injury, except that it shall not wantonly or willfully injure him, and it shall exercise ordinary care to protect him after discovering him in a dangerous position. 33 Cyc. 817; Dalton v. L. & N. R. R. Co., 22 Rep. 97, 56 S. W. 657. But where the officers of a company know of the custom of its employes in carrying passengers on a train not designed or intended for that purpose, and acquiesce therein, a different relation is involved. As to this latter class the company owes to them the duty of using reasonable or ordinary care for their safety, and the question of whether the company has discharged its duty of ordinary care towards such an invitee is usually a question of fact for the jury. 22 R. C. L. 929.

Owens v. Yazoo & Miss. Val. R. R. Co., 94 Miss. 378, 47 So. 518, 136 Am. St. Rep. 579, furnishes a good illustration of the second class of cases above referred to. Plaintiff in that case was a member of the family of a foreman of an extra section gang; they lived in camp cars, in other words, a moveable house; she was injured while crossing from one car to the other, due, as alleged, to the negligence of the company's employes in failing to make fast a board used as a walkway between the cars.