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art to so construe its provisions as to destroy the testamentary act of the testatrix, and if no other reason exists for denying the probate of this paper, it should be admitted to probate as the last will of Mrs. Stewart, formerly Jacob.

The judgment is reversed, and cause remanded for proceedings consistent with this opinion.

WILLS, REVOCATION OF, BY MARRIAGE. — As to the revocation of a will by marriage and the birth of a child, see Young's Appeal, 39 Pa. St. 115; 80 Am. Dec. 513, and note 516-519; note to Harwell v. Lively, 76 Am. Dec. 656; note to Graves v. Sheldon, 15 Am. Dec. 659-661; note to Pickens v. Davis, 45 Am. Rep. 342. In Fellows v. Allen, 60 N. H. 439, 49 Am. Rep. 328, and note 329-331, the rule is laid down as to when a woman's antenuptial will is not revoked by her marriage. And also in In re Hunt, 81 Me. 275.

Where a husband before marriage covenants with his intended wife that she may dispose of her property by will, a will made by her to that effect during coverture is valid, even though the property is not held for her by trustees: Barnes v. Irwin, 2 Dall. 192; 1 Am. Dec. 278. Compare note to Cutter v. Butler, 57 Am. Dec. 340-349.

LOUISVILLE AND NASHVILLE R. R. Co. v. BERRY.

[88 KENTUCKY, 222.]

EVIDENCE, ADMISSIBILITY OF, FOR PURPOSE OF IMPEACHMENT OR TO ESTABLISH NEGLIGENCE. — In an action against a railroad company to recover for personal injury to a boy fourteen years of age, not a trespasser, and conclusively shown to have been injured because of a defective railroad platform, by means of which he was thrown under a moving train and crushed, evidence on the part of the defense that such boy was in the habit of jumping on moving trains at that place, and had been warned of the danger, is incompetent to contradict his testimony as to the manner in which he received the injury, or to show that it was caused through his negligence.

Barnett, Noble, and Barnett, and William Lindsay, for the appellant.

Baker, Kinney, and Kinney, O'Neal, Jackson, and Phelps, and James W. Head, for the appellees.

PRYOR, J. The appellee Berry, a boy about fourteen years of age, at the instance of Mrs. McGee, with whom he lived and by whom he was controlled, accompanied a lady and her child to the depot of the defendant, to aid her in boarding the train. It was after night, and dark, when the train approached. The platform from which passengers get on and off the train lies between the two tracks of the railway, and is about four feet wide, with the edge of the cars, when they reach the plat

form, extending over it some four or five inches. After the boy had reached the platform and the lady had entered the car, the boy, on leaving the platform, stepped with one foot into a hole that had been caused by the rottening of the plank, causing the appellee to fall, with one leg protruding, under the wheels of the cars as they moved off, crushing his ankle and foot in such a manner as required his leg to be amputated. That the company knew of the defect in the platform, or by the exercise of ordinary care should have known it. He claimed and was awarded compensatory damages for the injury sustained. The case went to the superior court, and was there affirmed, and an appeal was then prayed and granted to this court.

The boy testifies as to the fall caused by the defect in the platform, and the injury received. The hole in the platform at the place where the boy says he was injured was visible, and caused by the decay of the timber; blood was seen near the place where the injury occurred, and he was carried from the spot by those who heard his cries of distress in that direction.

The foot or ankle was crushed as the train moved off. That the platform was much out of repair, and had been for a long time, is sustained by the weight of the testimony, and the injury to this boy caused by this defect in the platform, that should have been observed and remedied by the defendant's employees. We are satisfied from the testimony that the injury resulted from the causes alleged in the petition; but the appellant, in making out its defense, insisted on proving by the appellee and others that he was in the habit of jumping on the cars when they stopped at the station, and had been warned of the danger, and hence the jury had the right to infer that it was the boy's own negligence that caused the injury, and not the defect in the platform. If the habit of the boy had been established, as the appellant offered to prove, it would not have authorized the jury to say that he was stealing a ride on the cars, and in getting off caused the injury. It is shown that he was sent to the depot by the lady with whom he lived; that he accompanied the passenger to the train at her instance, and had the right to be on the platform at the place where he was injured. That he was at this particular spot, and was injured by reason of the defective and rotten plank, is sworn to positively by the boy, and his statement corroborated by circumstances that are convincing; and

the mere fact that he had been in the habit of exposing himself to danger on former occasions, or had theretofore placed himself in positions where he might have been injured in the same manner, was not only insufficient to contradict the testimony on that subject offered by the plaintiff, but was incompetent for any purpose. Neither the boy's habits or his bad character constituted a defense to the recovery. The opinions of one or more witnesses for the appellant were per mitted to go to the jury, to the effect that the boy was not injured in the manner stated by him, and an instruction given by the court, to the effect that if the boy was stealing a ride on the train of appellant, and thereby caused the injury, the company was not responsible. Whether there was proof to authorize such an instruction it is not necessary to determine, but the fact that he had previously been guilty of such negligence threw no light on the issue made. Such misconduct on the part of the appellee did not prevent him from recovering, if injured by reason of this defect in the platform.

In Gahagan v. Boston etc. R. R. Co., 1 Allen, 187, 79 Am. Dec. 724, the issue presented was as to the negligence of the company in the use of the highway at the time the plaintiff's intestate received the injury for which the recovery was asked. The plaintiff offered to prove the habit of the company at other times in the use of the highway, to show negligence, and the court held that it had no legitimate bearing on the issue, and was properly excluded.

There was evidence for both the appellee and the appellant, showing the movements of the boy from the time he reached the depot until he was injured, and from that evidence the jury returned their verdict. "As a general rule, therefore, it is inadmissible when the issue is whether A did a particular thing, to put in evidence the fact that he did a similar thing at some other time. To admit evidence of such collateral acts would be to oppress the party implicated, by trying him on a case as to which he has no notice to prepare, and sometimes by prejudicing the jury against him by publishing offenses of which, even if guilty, he may have long since repented, or may have long since been condoned ": 1 Wharton on Evidence, sec. 29.

The effect of such testimony as was excluded in this case, if permitted to go to the jury, would have been to prejudice the jury, or at least lead their minds to the conclusion that if a bad boy, although injured by the neglect of the company,

his measure of compensation should be lessened by reason of his reckless or mischievous habits.

We perceive no objection to the instructions; in fact, they were more favorable for the appellant than they should have been; nor does the alleged misconduct of the juror or counsel for the defendant authorize a reversal.

The judgment below is therefore affirmed, with damages.

NEGLIGENCE-EVIDENCE-Evidence of previous accidents of a similar nature are not admissible in an action against a railroad company for negli. gence: Southern R. R. Co. v. Kendrick, 40 Miss. 374; 90 Am. Dec. 332, and note; Bridger v. Asheville etc. R. R. Co., 27 S. C. 456; 13 Am. St. Rep. 653; Hudson v. Chicago etc. R. R. Co., 59 Iowa, 581; 44 Am. Rep. 692, and note 694-696; Parker v. Portland P. Co., 69 Me. 173; 31 Am. Rep. 262; Hodges v. Bearse, 129 Ill. 87.

In an action for personal injuries sustained by reason of an obstruction in a highway, evidence that others passed safely is not competent: Branch v. Libbey, 78 Me. 321; 57 Am. Rep. 810, and note.

Evidence that other railroad companies maintained bridges similar to the one by which plaintiff was injured is not competent in an action by an employee for injuries sustained through the negligent construction of a railroad bridge: Louisville etc. R'y Co. v. Wright, 115 Ind. 378; 7 Am. St. Rep. 432. To the same effect is Engel v. Smith, 82 Mich. 1.

LOUISVILLE AND NASHVILLE R. R. Co. v. Logan.

[88 KENTUCKY, 232.]

RAILROADS -RIGHT TO EJECT DRUNKEN and DisorderLY PASSENGER. Where the conduct of an intoxicated passenger, too drunk to take care of himself, is so violent or indecent as to excite alarm, or insult other passengers, or if he interferes with the management of the train by pull. ing the bell-rope, or otherwise, or threatens, with an opened knife, to take the life or do bodily harm to the conductor, or attempts to deter or intimidate him while in the performance of his duties, he has the right to put him off the train at night and between stations, using no more force than is reasonably necessary for the purpose, and putting him off the track out of the way of that train. The company is not then liable if such passenger subsequently goes upon the track, and is run over and killed by another train belonging to it.

William Lindsay and W. J. Lisle, for the appellant.

Harrison and Belden, for the appellee.

LEWIS, C. J. Appellee, widow of E. V. Logan, brought this action to recover damages for destruction of his life by the alleged willful neglect of the servants of appellant, the material facts of the case being as follows:

The deceased, about half-past ten o'clock at night, June 19,

1883, at Lebanon, got on a passenger train bound from Louisville to Knoxville, Tennessee, to go to a station where he resided, fourteen miles distant. He was at the time intoxicated; stumbled or slipped and fell on the depot platform; was helped upon the car platform; and, in the opinion of two witnesses, too drunk to take care of himself, though he was also boisterous, profane, and disposed to be quarrelsome.

Upon being requested by the conductor, soon after the train started, to pay his fare, he asserted he had paid it, which was untrue, and in reply to the statement of the conductor he had not, he said, with an oath, he would not; that there were not men enough on the train to put him off, at the same time pulling out his knife, and did not pay until the conductor and brakeman had proceeded with him to the car platform for the purpose of putting him off. After receiving his fare, the conductor left him in the smoking-car, where his seat was, and proceeded to the ladies' car to collect fare from those who had boarded the train at Lebanon, and while so engaged the deceased, leaving the smoking-car, went behind him, having, as some of the witnesses testify, a knife opened in his pocket, and assuming a menacing attitude, applied to him, in a loud tone of voice, such profane, opprobrious, and threatening language as to cause general excitement among the passengers, one lady being so much frightened that she implored the conductor to remove him from the car. The deceased then returned to the smoking-car, and upon being soon after approached and admonished by the conductor to keep his seat and be quiet, he drew his knife, and threatened to kill him; and after the conductor returned to the ladies' car, the deceased again tried to enter it, but being unable to do so because the door had been locked to keep him out, he, on his way back to the smoking-car, pulled the bell-rope the number of times required to stop the train, and it was, in obedience to his signal, stopped by the engineer. The conductor then went into the smoking-car, and telling the deceased, who, though he had just taken his seat, pretended to be asleep, that he would not permit any one to pull the bell-rope, and paying back his fare, with the aid of the brakeman put him off the train, and left him. The place where it was done is about four miles from Lebanon, two from the nearest station south, about one hundred and fifty yards from a private crossing of the railroad north, and two hundred from the nearest farm-house. Early the next morning the muti

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