Scott v. O'Brien. towards her. Such testimony would have a tendency to negative the idea that defendant was trying to induce his son to abandon the plaintiff. It was substantive testimony of verbal acts tending to show that he was trying to induce his son to live with plaintiff, and that the son's refusal to do so was not brought about by his conduct. The expression of the son, made long before the commencement of the suit, that he would not live with the plaintiff on the land offered by defendant, or anywhere else, was certainly competent as bearing upon his feelings towards her. The court permitted defendant to show what he did to induce his son to live with plaintiff. What he said to accomplish the same purpose was a part of the res gestae, and was, it seems to us, equally admissible." We think the evidence offered by appellant was within the rule above laid down. It was a part of the res gestae. The question was: Did the appellant, by her intentional conduct, alienate the affections of appellee's husband, or did the husband voluntarily leave his wife, or transfer his affections to appellant, or seek appellant, not because he loved her, but for the purpose of obtaining her money? The real facts in issue can only be determined from the acts and conduct of appellant and appellee's husband, and from the conversations and communications which passed between them. The only way the jury could properly determine the issue involved was to have all these facts properly before them. It is true the admission of such testimony may give opportunity for perjury; but the fact that a witness might lie in reference to matters about which he has a right to testify, is not a good reason for excluding such testimony. The jury, who are the judges of the weight to Scott v. O'Brien. be given the testimony, will consider such alleged conversations in the light of appellant's conduct as shown by other witnesses, and in the light of all the circumstances of the case, and they will be able to determine what credit should be given to such evidence. For the reasons given, we also think that the testimony to the effect that appellee's husband remarked shortly after the death of appellant's husband "that the little widow with her money would be a good catch," as well as his conversations and letters showing constant demands on his part for money, were admissible. Such evidence tends to show his motive and purpose in seeking the companionship of appellant, and goes to rebut the idea that she was the enticer. We further think it was competent for appellant to prove in this case her financial condition, not, however, for the purpose of increasing or diminishing the amount of damages, but for the sole purpose of showing the motive of appellee's husband in seeking appellant's society. In admitting such testimony, the court will admonish the jury accordingly. It will be unnecessary to set out in full the instructions given by the court. Suffice it to say that they do not properly present appellant's defense. Upon the next trial, the court will instruct the jury as follows: "No. 1. If you believe from the evidence that the defendant, Florence Scott, by her acts, wiles, or blandishments, intentionally alienated or took away from plaintiff her husband's affections, you will find for plaintiff, and award her such damages as you believe will fairly compensate her for the injury, if any, resulting to her feelings, for the loss of her husband's comfort and society, if there was such loss, Scott v. O'Brien. and for the loss of her husband's support, if there was such loss, except to the extent that he has contributed, or may by law be compelled to contribute to her support not exceeding the sum of $10,000, the amount asked for. Unless you so believe, you will find for the defendant. "No. 2. If you believe that the defendant alienated from plaintiff her husband's affections in the manner set forth in instruction No. 1, and further believe that defendant's conduct in causing such alienation was wanton and malicious towards, and with the design. to humiliate plaintiff, then, in addition to compensatory damages, you may, in your discretion, award plaintiff punitive damages, not exceeding in all, however, the sum of $10,000. "No. 3. Although you may believe from the evidence that plaintiff's husband transferred his affections from plaintiff to defendant, yet if you further believe plaintiff's husband alienated his own affections from plaintiff without any intentional misconduct on the part of defendant, or that such alienation was occasioned, by some other cause over which defendant had no control, or exercised no intentional direction or influence, then you will find for the defendant." Judgment reversed and cause remanded, with directions for a new trial consistent with this opinion. Petition for rehearing by appellee overruled. Nashville C. & St. L. Ry. Co. v. Russell. CASE 2.-ACTION BY T. E. RUSSELL AGAINST THE NASHVILLE, CHATTANOOGA & ST. LOUIS RAILWAY CO., FOR KILLING STOCK.-May 12. Nashville C. & St. L. Ry. Co. v. Russell Appeal from Marshall Circuit Court. W. M. REED, Circuit Judge. Judgment for plaintiff, defendant appeals - Affirmed. 1. Railroads "Cattle Guards"-Sufficiency-Statutory Provisions -Construction.-The fact that a cattle guard was the same as that in general use on defendant's railroad and on other roads is not conclusive evidence that it was a sufficient cattle guard within the meaning of Ky. St. 1903, section 1793, providing that all corporations and persons owning and operating railroads shall erect and maintain cattle guards at all terminal points, and fences constructed along their lines, for, though the statute does not prescribe the character of cattle guards to be used, it is the manifest intention that they should be reasonably sufficient to prevent cattle from crossing, for otherwise they would be of little or no service, and while cattle guards need not be so constructed that cattle cannot pass over them, the company should at least exercise ordinary care to provide and maintain guards reasonably sufficient for the purpose intended, and the mere erection of cattle guards, however sufficient they may be, does not meet the demands of the statute requiring that they shall be maintained as well as erected. 2. Same-Evidence-Admissibility.-While the sufficiency of a cattle guard cannot be conclusively determined by either the opinion of railroad experts or farmers owning land adjoining a railroad, evidence is admissible to show that a cattle guard is one in general use by well managed railroads, and that it is of the most approved make and construction, and it is equally competent for the person attacking its sufficiency to Nashville C. & St. L. Ry. Co. v. Russell. show that cattle had passed over it, as showing that it does not answer the purpose for which it was intended. 3. Same-Questions for Jury.-Whether a cattle guard was reasonably sufficient to prevent cattle from crossing it, held, under the evidence, for the jury. 4. Appeal-Review-Presumptions-Propriety of Ruling of Trial Court-Discharge of Jurors.-Where a court discharged jurors on plaintiff's motion after the jury had been accepted, and while defendant's counsel was stating the case, but the record did not show why the trial judge took the action, it will be assumed on appeal that he had sufficient reasons for his ruling. 5. Same-Harmless Error-Presumption as to Prejudice to Anpellant. Where it does not appear from the record on appea! that appellant was prejudiced by the ruling of the court in discharging certain jurors after the jury had been accepted, and while defendant's counsel was stating the case, prejudice will not be assumed by the court on appeal. WHEELER, HUGHES & BERRY for appellant. POINTS AND AUTHORITIES. 1. It was error in the court to permit the appellee to challenge and dismiss from the jury two of the members thereof after the jury had been sworn, and to place two other men on the jury in their places. 2. A peremptory instruction should have been given. (L. H. & St. L. Ry. v. Beauchamp, 21 Ky. Law Rep., 1476; Kentucky Statutes, 1793.) OLIVER, OLIVER & MCGREGOR for appellee. LEGAL QUESTIONS PRESENTED AND AUTHORITIES CITED. 1. The cattle guard required by section 1793 Kentucky Statutes, is such an appliance as will prevent animals from passing over same. Where the statute fails to prescribe how such cattle guards shall be constructed, a compliance with the statutory provisions is by constructing and maintaining such a device as meets the requirements of the common law-an appliance that will effectually prevent stock from crossing over same. (Kentucky Statutes, 1793; Thompson on Negligence, 2d Ed., v. 2; Sec. 2079, 2082, p. 720; L. H. & St. L. Ry. v. Beauchamp, 21 Ky. Law Rep., 1476; Illinois Central R. R. Co. v. Stanley, 96 S. W. Reporter, 846.) |