tion. Injury alone is not sufficient to support an action arising from the alleged negligence of the defendant. There must be a concurrence of wrong and injury. If a person does an act which is not unlawful in itself, he can not be made liable in damages for the resulting injury, unless he does the act at a time or in a manner or under circumstances which will render him chargeable with a want of proper regard for the rights of others."

Other instructive cases generally supporting the principles announced are Elam v. City of Mt. Sterling, 132 Ky., 657; Cincinnati Railroad Co. v. Commonwealth, 80 Ky., 137; Piollet v. Simmers, 106 Pa. State, 95, 51 Am. Rep., 497; Macomber v. Nichols, 34 Mich., 212, 22 Am. Rep., 522; Loberg v. Town of Amherst, 87 Wis., 634, 41 Am. St. Rep., 69; Kingsbury v. Deadham, 13 Allen (N. Y.) 186, 90 Am. Dec., 191; Lynn v. Hooper, 93 Me., 46, 47 L. R. A., 752.

Did the fact that the wire was left at the place where it was put for several days, convert into an actionable wrong that which was lawful in its origin? We think not. As stated, the evidence shows that work had been commenced in stringing the wire, in connection with which the coils in question were to be used, but had not progressed to the point where this wire was located. Of course these two small coils of wire could have been easily and conveniently moved and replaced at any time, or immediately before being used, but, considering the size of these coils of wire, it cannot fairly be said that the mere fact that they were permitted to remain on the side of the road for the time mentioned created a liability that except for this would not have existed. There was nothing in the appearance or size of these coils of wire that would cause a person of reasonable prudence to anticipate that they would frighten horses. Of course, what is a reasonable time, in matters like this, must depend largely on the nature and quality of the thing, and on how long it has been permitted to remain where it was put and the right of the person to locate it, but when a telephone company, in stringing its wires, places, as it has the right to do, small coils of wire along the road, to be used as the work progresses, of such a size, nature and quality as not to make it actionable negligence to place them by the side of the road, it would be extending beyond all reasonable limits the doctrine of liability to say that because the wire was left a day or a week longer than it might have been, the company is liable, when it

would not have been if it had used the wire on the day or the day following the day it was placed there.

Upon the whole case we are of the opinion that the jury should have been directed to find a verdict for the telephone company, and if there is another trial, and the evidence is in substance as it was on the last trial, the court will so instruct the jury. The judgment in the damage case is reversed for proceedings in conformity with this opinion, and the judgment in the case seeking a new trial is affirmed.

Louisville & Nashville Railroad Company v. A. Waller & Company.

1.

2.

(Decided September 25, 1913).

Appeal from Henderson Circuit Court.

Carriers-Demurrage Charges-Right of Consignee to Set-off Claim for Damages.-In an action by a common carrier to recover demurrage charges, the consignee pleaded and proved in defense of the action that the demurrage charges resulted from a failure of the carrier to deliver to it cars, which, if delivered, would have prevented the creation of demurrage fees, and this defense was held valid.

Carriers-Demurrage Charges-Right of Consignee to Set-offDamages. In this case the claim for demurrage charges asserted by the carrier was based on rules and regulations adopted by the railroad companies of this State many years ago, no State or Federal statute or regulation made in pursuance thereof being relied on, and so the question whether the consignee would have the right to off-set demurrage charges by a claim for damages if the demurrage charges arose and were asserted under a Federal statute or regulation made in pursuance thereto, or by virtue of the fact that they appeared in its public tariff rate, is not decided.

J. C. WORSHAM, TRABUE, DOOLAN & COX and CHAS H. MOORMAN for appellant.

CLAY & CLAY and DORSEY & DORSEY for appellee.

OPINION OF THE COURT BY JUDGE CARROLL-Affirming.

The appellant as plaintiff below brought this suit against the appellee to recover the sum of $410 for car service demurrage. It is averred in the petition that "the plaintiff, and other railway companies in Kentucky,

some years ago, established rules for the handling of their freight cars with a view to promote the speedy loading and unloading of same, to facilitate traffic and commerce, and enable them to keep their cars in use, which rules were well known to the defendant and had been acted upon by it in its dealings with the plaintiff prior to the beginning of the claim herein set up. By said rules, when cars were furnished to the patrons of the road to be loaded or unloaded, it was provided that for every twenty-four hours, or fraction thereof, which each car was held beyond forty-eight hours, excluding Sundays and legal holidays, after it was placed for the use of the patron, he should pay $1.00 to the road furnishing the car.

"On the 23rd of September, 1906, and on various dates thereafter up to and including April 9, 1907, the plaintiff furnished to the defendant at its special instance and request various cars loaded with freight for the defendant, but it failed to unload them within the time prescribed by said rules, and held them for such time beyond the forty-eight hours it was entitled to hold them as to amount in the aggregate to 410 days, whereby the defendant became indebted to the plaintiff in the sum of four hundred and ten dollars for the detention of said cars. The defendant was duly notified of the placement of said cars for unloading, but notwithstanding held them beyond the time allowed, as above set forth."

In an answer, counterclaim and set-off, the appellee set up its defense in six paragraphs, and while not controverting the claim sued on, sought to avoid a recovery by the matter asserted in its counterclaim and set-off.

The lower court sustained a demurrer to the first, second, third and fourth paragraphs of the answer and counterclaim, but overruled the demurrer to the fifth and sixth paragraphs in which it was averred that the "Defendant states that the demurrage, on account of which the plaintiff sues, accrued through no fault of this defendant, but accrued solely and only because of the failure and refusal of the plaintiff to furnish it cars in which to ship its grain. That its elevator was full, and it could not unload the grain from the cars in question until it was furnished cars in which to ship the grain in the elevator, which the plaintiff failed and refused to furnish, though requested so to do, and it also refused to permit the defendant to unload and reship in the same cars for which demurrage is charged. If it had

furnished such cars or permitted defendant to unload and reship in the same cars, this defendant would and could have unloaded the grain in the cars on account of which this action is brought within the time allowed for that purpose, and said demurrage would not have accrued.

"The cars used for which demurrage is charged in the petition were weak, dilapidated, and of an inferior quality, such as were not fit to use, and could not be used and were not used in the regular course of the plaintiff's business. The said cars were shop cars, and were only used by the plaintiff to haul the grain from the railroad wharfboat on the Ohio River to the elevator of the defendant, and to the Henderson Elevator, a distance of about half a mile. Said cars were such as the plaintiff, under the rules mentioned in the petition, had no right to charge demurrage for, and for this reason this defendant is not liable for said demurrage, and the plaintiff has no right to charge for or to collect said demurrage."

On the issues presented by the petition and in the fifth and sixth paragraphs of the answer, which was controverted by a reply, the parties went to trial before a jury. During the progress of the trial, which took place four years after the answer had been filed and the demurrer sustained to the paragraphs mentioned, and after the evidence for the appellee had been heard, the appellant moved the court to suspend the trial and permit it to prepare and file an amended reply, setting up that during the time the charges for demurrage sued for, accrued "there was an unusual, unforseen and unprecedented demand for cars on plaintiff's line of railroad; that said condition existed on all railroads throughout the United States at said time; that the plaintiff had on hand at such times a sufficient equipment to take care of and handle its usual and ordinary business; that during said months it furnished the defendant with its pro rata proportion of plaintiff's equipment of cars; and that any failure, refusal or inability to furnish defendant more cars than it did furnish it was due to the said unprecedented, unusual and unforseen press of business."

The bill of exceptions shows that the proposed amend ment was not reduced to writing or tendered, and the motion to give time to prepare and file it was overruled

on the ground that the issues should have been made up earlier.

After the evidence was in, the court instructed the jury in substance that it was the duty of the appellant, upon reasonable notice, to furnish appellee a reasonably sufficient number of cars to supply its demand, and if they believed from the evidence that during the time the items of demurrage accrued the appellant, after reasonable notice, failed to furnish the required cars, and by reason of such failure it was unable to unload and release the cars upon which demurrage was charged, they should not allow any demurrage on such cars as were held on account of the failure of the appellant to supply requested cars.

The only instruction offered by appellant was based on the amended reply it proposed to, but never filed, and of course the instruction was properly refused. The jury returned a verdict in favor of appellant for an item of demurrage amounting to six dollars about which there was no dispute, and complaining of the rulings of the lower court that in effect denied it the right to recover the full amount claimed, it brings the case here for review.

No excuse was offered for the long delay in tendering the amended reply proposed to be offered during the trial, and we are not disposed to say that under the circumstances the trial court abused its discretion in refusing to give time during the trial to prepare the suggested reply.

With this matter out of the way the only issue in the case-as the amount of the claim for demurrage was admitted-was the right of appellee to defeat the demurrage by the defense that it was occasioned by the failure of the appellant to furnish it sufficient cars to enable it to unload the cars upon which demurrage was charged before any demurrage accrued, and this really resolves itself into the question whether or not the consignee has the right in a suit by a carrier for demurrage fees to offset the claim by damages that he has suffered by the negligence of the carrier connected with its claim for demurrage or its failure to perform a duty which if performed would have prevented the accrual of demurrage charges. Assuming, therefore, that the defense asserted by appellee was valid and made out by the evidence, and that the issue arising on this defense was properly submitted to the jury as we may do upon the authority of