Robt. Harding, J. W. Rawlings, Stone & Stone and Emmet V. Puryear for appellee.

Appeal from Casey Circuit Court.

Opinion of the court by Judge Barker.

This action was instituted in the Lincoln Circuit Court by the appellee to recover damages from the appellant for the death of his intestate, caused, as it was alleged, by the negligence of appellant's agents and servants.

The appellee is a corporation, owning and operating a turnpike road in Lincoln county, Kentucky. Della Moore, a girl of some fourteen years of age, in company with her mother, was driving a phaeton along the turnpike road; while in the act of passing under the tollbar of one of appeilant's tollgates, the top of the phaeton was caught by the bar, and before the horse could be stopped the front wheels of the vehicle were raised from the ground some two feet, whereupon the girl either jumped, because of fright, or was thrown out of the phaeton to the ground, receiving injuries from which she shortly thereafter died.

The case, after the issues were made up, was transferred on motion of the appellant to the circuit court of Casey county, this action of the court being based upon the claim that there was great prejudice existing against turnpike companies in Lincoln county. The first trial resulted in a verdict by th jury in favor of appellee, awarding him damages in the sum of $17,000. T verdt was set aside, and appellant awarded a new trial by the circuit ju ge ·rward a second trial was had, resulting in a verdict for appellee i m of $15,000. Appellant's motion for a new trial having been overrule e case was appealed to this court, and reversed, alone upon the ground that the verdict was so excessive as to indicate that it was the result of prejudice or passion. The opinion of the court referred to is found in 23 Ky. Law Rep., 1885, and recites the facts of the accident so fully as to render it unnecessary to reproduce them here at any great length or detail. Upon the return of the case a third trial was had, in which the jury returned a verdict in favor of appellee for the s 1 of $13,000. Appellant's motion for a new trial having been over

as again appealed to this versal are as follows: is motion for a continu

ance, and forcing it to trial in the absence of importa t witnesses.

2d. That the court erred in permitting both John J. Moore, the appellee, and his wife, Mrs. Mattie Moore, to testify in the case.

3d. Because of misconduct of appellee's counsel in making the closing argument to the jury.

4th. That the verdict was palpably contrary to the evidence, and excessive. Appellant's motion for a continuance ought not to have been sustained under the circumstances. It clearly appeared that nearly all the witnesses of whose absence it complained were without the jurisdiction of the court, and there was no reasonable probability that their presence could be had by a continuance, and their depositions had been taken prior to the trial. The question of continuing a case because of the absence of witnesses is one addressed to the sound discretion of the court, as was held in the case of McClurg v. Iglehart, 17 Ky. Law Rep., 913, and we do not think that the

trial judge abused his discretion in overruling appellant's motion for a continuance.

The record does not bear out the contention of appellant that both John J. Moore and his wife, Mattie Moore, testified. It is true that on the motion for a continuance appellee introduced John J. Moore to show that one of the witnesses, of whose absence appellant was complaining, lived without the jurisdiction of the court. This was a matter happening before the trial, and his testimony was addressed alone to the court. Mrs. Mattie Moore testified upon the trial of the case, which she had a right to do, under the rulings of this court upon the former appeal.

The misconduct of counsel for appellee, complained of, consists in the following statement made by him at the close of his argument to the jury: "It was necessary to introduce this cap, not for the purpose of wringing a heartrending cry from the mother, as stated by you, Judge Denton, but for the purpose of showing the blood on the inside of it, made four years ago (shows spot to the jury). The cap is introduced in evidence, that is, the cap; I expect the best evidence is the blood spot itself. Remember, four years ago, gentlemen of the jury, this happened, right on that pure child's head. We tell you over and over that she had a blow there (displaying the cap). There is the evidence of the blow, the blood spot on the cap as it struck."

We do not think that this statement, considering the evidence in the case,. was entirely unwarranted. The cap which was introduced in evidence was. shown to be the one used by the little girl at the time she was injured There was evidence for appellee conducing to show that she had been stink ofid the head by the careless pulling down of the tollbar by appellant'sant, and there was no dispute as to the fact that the injuries she receiv lista profuse bleeding about her head, the difference in the evidence big as to whether this blood came from a cut on the scalp, or from the cavity of the ear. There was, doubtless, blood on the cap, and we can not see why counsel for appellee should not have referred to it in the argument in the manner that he did; certainly we can not say that, in so doing, he was guilty of misconduct.

*

The verdict complained of this case is the third one rendered, and we are now asked to reverse tient because the verdict is contrary to the weight of the evidence, bessive. Section 341 of the Code contains the following: * * "N more than two trials be granted to a party upon the ground that the verdict is not sustained by the evidence." In the case of the Louisville & Nashville R. R. Co. v. Graves' Ass'ee, 78 Ky., 74, this court held that where there had been three verdicts for the plaintiff, the case would not be reversed because the third verdict was contrary to the weight of the evidence. Judge Cofer, in delivering the opinion of the court, said: "As before remarked, there is some evidence conducing to sustain the verdict. Questions of fact belong, under our judicial system, to the jury, with a discretionary power in the court to set aside their finding when clearly against the weight of the evidence; but the court does not then take the case from the jury and decide the questions of fact, but must refer it to another jury; and so long as there is some evidence to sustain the cause of action or defense the case must, after each reversal, go again to a jury. If counsel is right in his position, that when the court reverses once because vol. 25-2

the verdict is against the evidence, it must continue to do so as long as the evidence is the same, there can be no end to litigation, unless the jury will give way to the court. This might render the litigation in a case interminable, and would sap the very foundation of the jury system. Questions of fact belong primarily to the jury, and the court only interferes to prevent injustice from haste, inadvertence, or prejudice; and as the court has no authority to decide questions of fact in a case properly triable by a jury, if there be any evidence proper to be considered by the jury, if the jury will not give way the court must, that there may be an end of litigation.'

To the same effect is the case of the Louisville & Nashville R. R. Co. v. Adams, 10 Ky. Law Rep., 713, and the Louisville & Nashville R. R. Co. v. Ballard, 88 Ky., 159.

Perceiving no error in the record we feel constrained to affirm the judg

ment.

SISK v. GARDINER.

(Filed May 22, 1903-Not to be reported. )

Injunction-Schools-Validity of vote authorizing issue of bonds and election of trustees-This appeal involves the validity of an election by which an issue of $25,000 was authorized to build a school house for a graded common school in Madisonville, a city of the fourth class; also the validity of an election for school trustees for said school under and by virtue of section 4489, Kentucky Statutes. It is insisted that an injunction was improperly refused because the election should have been held on a regular election day, and was void because the vote was not taken by secret ballot and because women were permitted to vote. Held-That under section 4464, Kentucky Statutes, the election was not required to be held on a regular election day, and under section 4467, Kentucky Statutes, such elections are required to be held viva voce. Said election was not void because women were permitted to vote. As section 4458, Kentucky Statutes, permits women possessing certain qualifications to vote in such elections, it will be presumed that any women that may have voted were qualified to do so.

Ruby Laffoon and W. C. Hopewell for appellant.

C. J. Waddill and Lee Gibson for appellee.

Appeal from Hopkins Circuit Court.

Opinion of the court by Judge Barker.

Appellees are the school trustees of the city of Madisonville, Ky., and appellant is a male white citizen, residing and owning property and being a lawful voter therein. This action was instituted in the Hopkins Circuit Court for the purpose of enjoining the appellees from issuing $25,000 of bonds for the purpose of raising money sufficient to erect a graded common school building, under and by virtue of an election held for that purpose.

The petition of appellant sets out, with great particularity and minuteness, all of the proceedings, upon the regularity and validity of which is based the right of the appellees to issue the bonds in question. A general demurrer was filed by appellees to the petition, and was sustained by the circuit court. Appellant declining to amend his petition, the court thereupon dismissed it; and from this judgment he has appealed.

Madisonville is a city of the fourth class, and on the second day of December, 1902, under and by virtue of the provisions of section 4489 of the Kentucky Statutes, there was submitted to the qualified voters of the city the following question: "Shall the city of Madisonville, Ky., accept the provisions of an act of the general assembly of the Commonwealth of Kentucky, entitled 'An act to provide for an efficient system of schools throughout the State,' approved July 6, 1893, being article 10, chapter 113 of the Kentucky Statutes, and establish a graded common school therein?”

At the election so held the qualified voters of Madisonville, by a large ́majority, accepted the provisions of the act in question, and authorized the establishment of a graded common school in the city. Afterwards, on the 14th day of April, 1903, an election was held by the qualified white voters of the city of Madisonville, for the purpose of taking their sense on the proposition as to whether or not the city should establish and maintain a graded common school for white children, and should purchase, erect and equip a suitable building therefor, to cost not exceeding $25,000, by the levy and collection of an annual tax of 50 cents on each $100 worth of property in the city owned by white persons and corporations, and by the levy and collection of an annual head tax of $1.50 on each white male inhabitant over the age of twenty-one years residing in the city of Madisonville, and for the election of six school trustees. At the election so held the qualified voters, by largely more than a two-thirds majority, voting viva voce, pronounced in favor of the proposition submitted to them, and it was, therefore, carried; and the appellees were elected school trustees for the district of Madisonville.

A comparison of the allegations of the petition with the provisions of article 10, chapter 113 of the Kentucky Statutes, shows that all the provisions of the statute were carefully and faithfully performed in holding both of the elections referred to above. Appellant contends that the judgment dismissing his petition should be reversed, first, because the election should have been held on a regular election day; second, it was void because the vote was not taken by secret ballot third, it was void because women were permitted to vote.

Section 4464 authorizes the elections involved in this litigation to be held either upon a regular election day or on any other day fixed in order. Section 155 of the Constitution is as follows: "The provisions of sections 145 to 154, inclusive, shall not apply to the election of school trustees and other common school district elections. Said elections shall be regulated by the general assembly, except as otherwise provided in this Constitution."

As the elections under discussion were common school district elections, they were not required to be held on a regular election day, and the case of Belknap against the city of Louisville has no application to the question at bar. A secret ballot was not necessary. Section 4467 of the Kentucky Statutes requires that elections such as those under discussion be held viva voce, the provision in this regard being as follows: "On the day set apart for the election the officer shall open a poll, and shall propound to each voter who may vote the question: 'Are you for or against the graded common school tax?' and his vote shall be recorded for or against the same, as he may direct."

The record does not show that women were permitted to vote at the elec tions in question; but if they were, the elections would not have been, for that reason, void. Section 4458 of the Kentucky Statutes provides that any widow or spinster residing in any school district, who is a taxpayer, or who has children within the age fixed by the common school law to be educated shall be deemed a qualified voter under this statute. (Chapter 113.) If women. were allowed to vote at the elections in question, the presumption will be indulged that they belonged to the class which the statute declares to be legal voters in matters relating to common schools. All the provisions of the statute regulating and concerning the elections involved in this litigation, having been scrupulously followed by the officers having them in charge, we conclude that the elections so held were legal and valid; that the appellees were duly and legally elected as school trustees for Madisonville; that thetax submitted to the qualified voters was legally carried, and that the issue and sale of the bonds complained of may be lawfully made by the trustees and this having been the conclusion reached by the chancellor, his judg-ment, dismissing appellant's petition, is affirmed.

COMMONWEALTH v. CANTRILL, JUDGE.

(Filed May 22, 1903-Not to be reported.)

Mandamus-Refusal of circuit judge to vacate the bench-A circuit judge, who had by a former decision of this court been adjudged to have improperly refused to vacate the bench on the trial of a case, who refuses on a return of the case to vacate the bench will be compelled by mandamus of the court to obey the mandate issued on the former appeal.

R. B. Franklin, Commonwealth's attorney, for appellant.

Opinion of the court by Judge Hobson.

In Powers v. Commonwealth, 24 Ky. Law Rep., 1007, decided December 3, 1902, it was held that the affidavit filed by the defendant was sufficient to require the circuit judge to vacate the bench. After discussing the question at some length the court said: "We conclude that the trial court erred in notvacating the bench upon the motion and affidavit discussed.”

For this reason, and others indicated in the opinion, the judgment was reversed and cause remanded "for a new trial under proceedings not inconsistent with the opinion. After the mandate was filed in the circuit court the defendant entered a motion that the circuit judge vacate the bench, and his attorneys being unable to agree with the Commonwealth's attorney upon the selection of a judge to try the case, moved the court to direct the clerk to certify the facts to the governor in order that he might appoint a judge to try the case.

The court overruled the motion. The Commonwealth's attorney thereupon entered a motion in this court, to which the circuit judge entered his appearance, asking a rule absolute, requiring him to vacate the bench in order that such steps may be taken as are required by law for the commission of a special judge to try the case.

The opinion in the case of Powers v. Commonwealth, above referred to, is binding on the circuit court and no less on this court. On the return of the