of a school. He says that about the 1st of January, 1910, Johnson, who had succeeded Stewart, came to the store to make a settlement or collect the account, and Powell & Co. sent for Ramey to come over to the store to assist them. He says that they got out the invoices and receipts, and that Johnson figured a balance of $6.15; $5 was then paid, leaving a balance of $1.15. Johnson admits the visit, but says that he only had with him an unitemized statement showing the $240.63 balance due. He knew nothing of the several invoices and credits going to make up the bal the deputy sheriff, and his time was almost | the store about the last of July to take charge wholly taken elsewhere by the duties of his office, and Ramey was unlettered, and not often about the store. The business was conducted by inexperienced clerks, who served a month or so at a time, and there were four of them altogether. As the goods were sold, invoices were sent, and, when Stewart visited them, he sometimes made collections, and would credit payments on the invoices, and also write a receipt for the same amount in a book kept by Powell & Co. at the store for that purpose. The payments noted on the invoices and entered on the receipt book show from the dates and amounts that they cover-ance. The invoices and receipts in the posed the same transaction, but on the trial Powell & Co. claimed credit for both amounts. By this manifest duplication of receipts, and by offering in evidence two other receipted invoices aggregating $146.33, for goods sold to Mart Ratliff & Co. and the $42.62 overpaid Ratliff item set up in the counterclaim, they insist that they have paid Kitchen, Whit & Co. as much or more than the $476.45 worth of goods which they purchased. None of the Ratliff items are included in the account sued on. It is evident that the $146.33 receipted invoices of Ratliff & Co., were papers left in the store when Ratliff went out of business, and there is no evidence that they were paid by Powell & Co. The notation of payment is dated on one of the invoices July 10, 1909, and the other July 13, 1909. Bart Ramey testifies that he was clerk in the store at that time, and says that if he paid them it was without authority, but does not say that he did pay them. In other words, he says that all he was authorized to pay was the $32.42 account of Ramey & Co. No witness testifies that Powell & Co. paid these invoices, and one of these, a $78.04 invoice, as copied into the record, shows that the payment was made by Jim Ratliff. More than this, and it is not denied, Mart Ratliff testifies that when he sold to Powell & Co. they agreed to pay all of his outstanding accounts. No doubt, he represented to Powell & Co. that $32.42 was all that he owed to appellant, for he says that Stewart had told him that was the amount due, but he says that for some time afterwards merchandise continued to come to the store in the name of Ratliff & Co., or rather that on several occasions goods would be brought to his house billed to him, and he would give directions to take them on down to the store. He says that he complained to Powell & Co. about buying goods in his name. These invoices were made out in May, and, as above stated, the witnesses did not show when these business transfers occurred; but, if they were purchases actually made by Ratliff, there is no proof that Powell & Co. paid them. If they were purchases made by Powell & Co. in Ratliff's name, then they got the goods and ought to have paid for them. Bart Ramey was a young teacher, and left session of Powell & Co. were gotten out, and they did make some calculations with reference to them. Counting the duplicated receipts, they figured a balance; but they made no settlement, and no one testifies that they did. It is plain from the testimony of Bart Ramey and Johnson that the calculations they made were drawn from the duplicate receipts upon which, in our opinion, the appellees have erroneously based their defense. We do find one error in the account. There is an item of $24.50 charged for meat. The evidence shows that some of this meat was spoiled, and that Stewart told them to return what they had on hand, and their account would be credited for $24.50. The net weight of the meat returned figured $15.93, and appellant only credited the account with that sum. Allowing a credit of $24.50 instead of $15.93, it would show a balance due appellant of $231.06, and, on return of the case, judgment should be entered against appellees for that sum. Except the meat item, the appellees have been credited with all that the evidence shows they paid. The judgment is therefore reversed for proceedings in conformity with this opinion. It is affirmed on the cross-appeal. COON v. KENTUCKY & I. T. R. CO. A railroad company maintaining over a street, pursuant to a consent from the city, a with a smooth surface on top from 28 inches to viaduct and a retaining wall 20 inches wide, 15 feet above the street, does not maintain a dangerous instrumentality attractive to children, children from climbing on the wall, and is not and it need not construct barriers to prevent liable for injuries to a child climbing on the wall and falling to the street below. [Ed. Note. For other cases, see Negligence, Cent. Dig. §§ 33, 34, 129; Dec. Dig. 23.] Appeal from Circuit Court, Jefferson County, Common Pleas Branch, Third Division. Action by Louis S. Coon, suing by his next friend, against the Kentucky & Indiana Terminal Railroad Company. From a judgment of dismissal rendered on sustaining a demurrer to the petition, plaintiff appeals. | 1127, 24 Ky. Law Rep. 2342, the defendant, Affirmed. Eugene Hubbard and Alpha Hubbard, both of Louisville, for appellant. Humphrey, Middleton & Humphrey, of Louisville, for appellee. CLAY, C. Plaintiff, Louis Sterling Coon, suing by his next friend, brought this action against defendant, Kentucky & Indiana Terminal Railroad Company, to recover damages for personal injuries. Defendant's demurrer to the petition was sustained, and the petition dismissed. Plaintiff appeals. It appears from the petition that defendant is a railroad company with authority to own, maintain, and operate a line of railroad in the state of Kentucky and elsewhere, and to own, maintain, and operate viaducts, bridges, and trestles over and upon the streets and thoroughfares of the city of Louisville. With the consent of the city, the company built a viaduct about 60 feet long and 50 feet wide and 20 feet high, extending across Montgomery street between Thirtieth and Thirty-First streets in that city. The without permission from the city, left a pile In the A child four years of age threw a match into the box, which caused an explosion, which injured plaintiff. It was held that, where a gas company maintained a pipe line in a highway, it was bound to protect it to prevent injuries to persons and children lawfully in the highway. north side of the viaduct consists of a concrete retaining wall. The wall is about 20 inches wide, with a smooth surface on top, and the west end is about 28 inches above the street. From the west end the wall gradually ascends until it reaches a height of 15 feet from the street. The children in the neighborhood find the wall attractive, and are in the habit of climbing upon it. This fact was known to the defendant. The plaintiff is an infant 14 years of age. The plaintiff climbed the wall, and, when he reached a point about 11 feet from the street, fell and was severely injured. It is alleged that his injuries were due to the gross careless-maintained by defendant, and was killed. ness and negligence of the defendant in failing to guard and protect the wall in such a way as to prevent injuries to children. On the other hand, a recovery was denied in Louisville & Portland Canal Co. v. Murphy, 9 Bush, 522, where a little girl five years of age fell through the railing of a bridge The evidence showed that the bridge was in good condition for purposes of travel. The court held that the defendant was not required to make its approach safe for children, but was required only to make it safe for the purposes of ordinary travel. In the case of Schauf's Adm'r v. City of Paducah, 106 Ky. 228, 50 S. W. 42, 20 Ky. Law Rep. 1796, 90 Am. St. Rep. 220, it was shown that the city maintained a gravel pit which was filled with water. A little boy seven years of age walked into the water in pursuit of a bird. He got beyond his depth, and was drowned. A recovery was denied. In the case of Mayfield Water & Light Co. v. Webb's Adm'r, 129 Ky. 395, 111 S. W. 712, 33 Kỵ. Law Rep. 909, 18 L. R. A. (N. S.) 179, 130 Am. St. Rep. 469, a wire heavily charged with electricity ran in close proximity to a teleDe-phone pole. The wire was 18 feet from the ground. From the telephone pole two guy wires ran to the ground at an angle of about 45 degrees. A boy 11 years of age climbed up the guy wires. His head came in contact with the electric wire, and he was instantly Plaintiff bases his right to recover on the "turntable" cases, or the "attractive nuisance" doctrine. We deem it unnecessary to discuss the doctrine at length. Numerous cases illustrating the different phases of the rule may be found in the editorial note to the case of Wheeling & L. E. R. Co. v. Harvey, 19 L. R. A. (N. S.) 1136. Other discussions of the question may be found in the notes to Walsh v. Pittsburg R. Co., 32 L. R. A. (N. S.) 559. This court has applied the doctrine and sustained a recovery in a number of cases. Thus in Bransom's Adm'r v. Labrot, etc., 81 Ky. 638, 50 Am. Rep. 193, the defendant owned a vacant lot between two streets in Frankfort. The lot had been used by the public for a number of years. fendant used it for stacking lumber. One of the piles of lumber was negligently stacked. Plaintiff's intestate, a little boy, while playing on or near the unsafe pile of lumber, was struck by the falling lumber and killed. tendency of the more recent cases was to restrict rather than enlarge the turntable cases, held that the facts did not warrant a recovery. In the case of Hermes' Adm'r v. Hatfield Coal Co., 134 Ky. 300, 120 S. W. 351, 23 L. R. A. (N. S.) 724, the coal company maintained a coal chute in the city of Covington. A ladder ran from the ground to the top of the chute. A boy ten years of age climbed up the ladder and, while looking into the chute, fell and broke his neck. In denying a recovery the court said: "If the defendant company is responsible in the case at bar, then it is difficult to limit the rule which would hold a defendant responsible for the trespasses of children. There are very few things which do not afford an opportunity for headlong infancy to injure itself." plaintiff had been injured, there would have been greater reason for holding the defendant liable. It is also suggested that a fence or a guard rail might have been constructed at the lower point of the wall. As this would have rendered access to the wall a little more difficult, the natural result would have been to increase the number of climbers, and not only add to their danger by furnishing them something else to fall from, but to impose upon the defendant the further duty of also guarding and protecting the additional guard rail or fence. In our opinion, the retaining wall in question was not such a dangerous instrumentality or thing as to impose on the defendant any liability for its original construction or its failure to construct barriers to prevent boys from climbing on it. It follows that the trial court properly sustained the demurrer to the petition. Judgment affirmed. In the case of Myer v. Union Light, Heat & Power Co., 151 Ky. 332, 151 S. W. 941, 43 L. R. A. (N. S.) 136, the evidence showed that the light company furnished electricity to a church in Covington. Its wires passed down the side of the building and through a transformer into the cellar. A boy ten years of age, while hunting for a ball, climbed the (Court of Appeals of Kentucky. Feb. 23, 1915.) fence inclosing the church yard, and, coming in contact with defendant's wires, was injured. A recovery was denied. FRANKS v. COMMONWEALTH. 1. BURGLARY 41. - EVIDENCE- QUESTIONS On a trial for breaking into a whisky warehouse with intent to steal, evidence held sufficient to make a question for the jury and sup port a conviction. Counsel for appellant contend that the facts of this case bring it within the rule laid down in the case of Harper v. Kopp, supra, because the retaining wall was placed in a public street where plaintiff had the right to be. As before stated, however, the court rested its decision in the Kopp Case upon the fact that the defendant, without permission from the city authorities, stacked his lumber in a public street, where, because of its unguarded condition, it was dangerous to young children. In the case under consideration, the defendant was authorized by the city to build a viaduct and construct a retaining wall. The wall was placed where the defendant had the right to place it. The only ground, therefore, for holding the defendant liable, is that it maintained in a public place, in an unguarded and unprotected condition, a dangerous instrumentality or thing that was attractive to children. It could hardly be said that a retaining wall like the one in question is dangerous. It is not like a stack of lumber composed of separate pieces that are liable to fall at any house with intent to steal, where there was eviOn a trial for breaking into a whisky waretime. On the occasion of the accident, it did dence that T. saw two men near the warehouse not fall or break. The only sense in which before daylight on the night the breaking ocit could be said to be dangerous is that it curred, one of whom was about defendant's size. was easy to climb, and easy to fall from; before daylight the same morning accused and that they were carrying something heavy, that but, for that matter, so is every tree, every another man appeared at the house of a witness pole, every fence, every ladder, every railing with baskets which they stated contained or set of steps, that the owner may have whisky, that one of them said that if T. followed them they would kill him, that two days latabout his premises. It is charged in the peti-er they were together and had several pints of tion that defendant was negligent in not whisky, that a three-gallon jug, resembling one constructing the protecting wall in such a taken from the warehouse, was near by, and way that it could not be climbed. It is sug-breaking bottles containing whisky, the admisthat, when officers approached, accused began gested that spikes could have been placed on sion of the testimony of a witness as to his it. Manifestly, if this had been done, and identification of whisky purchased from accused [Ed. Note.-For other cases, see Burglary, Cent. Dig. §§ 94-103, 109; Dec. Dig. ~41.] 2. CRIMINAL LAW 1159-APPEAL-REVIEW -QUESTIONS OF FACT. dence was not flagrantly against the evidence, Where the jury's finding on conflicting evithe verdict will not be disturbed by the Court of Appeals. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. $$ 3074-3083; Dec. Dig. 1159.] 3. CRIMINAL LAW 371-EVIDENCE OF OTHER OFFENSES-ADMISSIBILITY. On a trial for breaking into a whisky warehouse with intent to steal, though evidence that lation of the local option law, it was admissible accused sold whisky to a witness showed a vioto show that accused, and not another person present when the sale was made, had possession of a large quantity of whisky at the place of the sale, and it was also competent to show a motive for the act with which he was charged. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 830-832; Dec. Dig. 371.] 4. CRIMINAL LAW 1169-HARMLESS ERROR -ADMISSION OF EVIDENCE. demurrer to the petition, plaintiff appeals. | 1127, 24 Ky. Law Rep. 2342, the defendant, Affirmed. Eugene Hubbard and Alpha Hubbard, both of Louisville, for appellant. Humphrey, Middleton & Humphrey, of Louisville, for appellee. without permission from the city, left a pile of lumber stacked in the streets. A child six years of age, while playing about the lowed because the defendant stacked the lumber, was injured. A recovery was allumber in a public street, where its unguarded condition made it attractive and dangerous for young children. In the case of Louisville Railway Co. v. Esselman, 93 S. W. 50, 29 Ky. Law Rep. 333, the railway company stacked, in one of the streets of Louisville, certain building materials to be used in the CLAY, C. Plaintiff, Louis Sterling Coon, suing by his next friend, brought this action against defendant, Kentucky & Indiana Terminal Railroad Company, to recover damages for personal injuries. Defendant's demurrer to the petition was sustained, and the peti-reconstruction of its power plant. Part of tion dismissed. Plaintiff appeals. It appears from the petition that defendant is a railroad company with authority to own, maintain, and operate a line of railroad in the state of Kentucky and elsewhere, and to own, maintain, and operate viaducts, bridges, and trestles over and upon the streets and thoroughfares of the city of Louisville. With the consent of the city, the company built a viaduct about 60 feet long and 50 feet wide and 20 feet high, extending across Montgomery street between Thirtieth and Thirty-First streets in that city. The north side of the viaduct consists of a con crete retaining wall. The wall is about 20 inches wide, with a smooth surface on top, and the west end is about 28 inches above the street. From the west end the wall gradually ascends until it reaches a height of 15 feet from the street. The children in the neighborhood find the wall attractive, and are in the habit of climbing upon it. This fact was known to the defendant. The plaintiff is an infant 14 years of age. The plaintiff climbed the wall, and, when he reached a point about 11 feet from the street, fell and was severely injured. It is alleged that his injuries were due to the gross carelessness and negligence of the defendant in failing to guard and protect the wall in such a way as to prevent injuries to children. Plaintiff bases his right to recover on the "turntable" cases, or the "attractive nuisance" doctrine. We deem it unnecessary to discuss the doctrine at length. Numerous cases illustrating the different phases of the rule may be found in the editorial note to the case of Wheeling & L. E. R. Co. v. Har vey, 19 L. R. A. (N. S.) 1136. Other discussions of the question may be found in the notes to Walsh v. Pittsburg R. Co., 32 L. R. A. (N. S.) 559. This court has applied the doctrine and sustained a recovery in a number of cases. Thus in Bransom's Adm'r v. Labrot, etc., 81 Ky. 638, 50 Am. Rep. 193, the defendant owned a vacant lot between two streets in Frankfort. The lot had been used by the public for a number of years. Defendant used it for stacking lumber. One of the piles of lumber was negligently stacked. Plaintiff's intestate, a little boy, while playing on or near the unsafe pile of lumber, was struck by the falling lumber and killed. the materials consisted of heavy iron I-beams. While a boy 11 years of age was playing on the beams, one of them fell over and injured his leg. Judgment in favor of the boy was affirmed on the ground that the material was so negligently stacked as to constitute a dangerous instrumentality. A recovery was also allowed in Brown v. C. & O. Ry. Co., 135 Ky. 798, 123 S. W. 298, 25 L. R. A. (N. S.) 717, In the which was a typical turntable case. case of U. S. Gas Co. v. Hicks, 134 Ky. 12, 119 S. W. 166, 23 L. R. A. (N. S.) 249, 135 Am. St. Rep. 407, defendant maintained a defective gate valve in its pipe line underneath a street. Because of the defect the gas leaked. A child four years of age threw a match into the box, which caused an exploIt was held sion, which injured plaintiff. that, where a gas company maintained a pipe line in a highway, it was bound to protect it to prevent injuries to persons and children lawfully in the highway. On the other hand, a recovery was denied in Louisville & Portland Canal Co. v. Murphy, 9 Bush, 522, where a little girl five years of age fell through the railing of a bridge maintained by defendant, and was killed. The evidence showed that the bridge was in good condition for purposes of travel. The court held that the defendant was not required to make its approach safe for children, but was required only to make it safe for the purposes of ordinary travel. In the case of Schauf's Adm'r v. City of Paducah, 106 Ky. 228, 50 S. W. 42, 20 Ky. Law Rep. 1796, 90 Am. St. Rep. 220, it was shown that the city maintained a gravel pit which was filled with water. A little boy seven years of age walked into the water in pursuit of a bird. He got beyond his depth, and was drowned. A recovery was denied. In the case of Mayfield Water & Light Co. v. Webb's Adm'r, 129 Ky. 395, 111 S. W. 712, 33 Ky. Law Rep. 909, 18 L. R. A. (N. S.) 179, 130 Am. St. Rep. 469, a wire heavily charged with electricity ran in close proximity to a telephone pole. The wire was 18 feet from the ground. From the telephone pole two guy wires ran to the ground at an angle of about 45 degrees. A boy 11 years of age climbed up the guy wires. His head came in contact with the electric wire, and he was instantly tendency of the more recent cases was to restrict rather than enlarge the turntable cases, held that the facts did not warrant a recovery. In the case of Hermes' Adm'r v. Hatfield Coal Co., 134 Ky. 300, 120 S. W. 351, 23 L. R. A. (N. S.) 724, the coal company maintained a coal chute in the city of Covington. A ladder ran from the ground to the top of the chute. A boy ten years of age climbed up the ladder and, while looking into the chute, fell and broke his neck. In denying a recovery the court said: "If the defendant company is responsible in the case at bar, then it is difficult to limit the rule which would hold a defendant responsible for the trespasses of children. There are very few things which do not afford an opportunity for headlong infancy to injure itself." In the case of Myer v. Union Light, Heat & Power Co., 151 Ky. 332, 151 S. W. 941, 43 L. R. A. (N. S.) 136, the evidence showed that the light company furnished electricity to a church in Covington. Its wires passed down the side of the building and through a transformer into the cellar. A boy ten years of age, while hunting for a ball, climbed the fence inclosing the church yard, and, coming in contact with defendant's wires, was injured. A recovery was denied. plaintiff had been injured, there would have been greater reason for holding the defendant liable. It is also suggested that a fence or a guard rail might have been constructed at the lower point of the wall. As this would have rendered access to the wall a little more difficult, the natural result would have been to increase the number of climbers, and not only add to their danger by furnishing them something else to fall from, but to impose upon the defendant the further duty of also guarding and protecting the additional guard rail or fence. In our opinion, the retaining wall in question was not such a dangerous instrumentality or thing as to impose on the defendant any liability for its original construction or its failure to construct barriers to prevent boys from climbing on it. It follows that the trial court properly sustained the demurrer to the petition. Judgment affirmed. On a trial for breaking into a whisky warehouse with intent to steal, evidence held sufficient to make a question for the jury and sup port a conviction. [Ed. Note.-For other cases, see Burglary, Cent. Dig. §§ 94-103, 109; Dec. Dig. ~41.] 2. CRIMINAL LAW 1159-APPEAL-REVIEW -QUESTIONS OF FACT. dence was not flagrantly against the evidence, Where the jury's finding on conflicting evithe verdict will not be disturbed by the Court of Appeals. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. 1159.] 3. CRIMINAL LAW 371-EVIDENCE OF OTHER OFFENSES-ADMISSIBILITY. On a trial for breaking into a whisky warehouse with intent to steal, though evidence that lation of the local option law, it was admissible accused sold whisky to a witness showed a vioto show that accused, and not another person present when the sale was made, had possession of a large quantity of whisky at the place of the sale, and it was also competent to show a motive for the act with which he was charged. Counsel for appellant contend that the facts of this case bring it within the rule laid down in the case of Harper v. Kopp, supra, because the retaining wall was placed in a public street where plaintiff had the right to be. As before stated, however, the court rested its decision in the Kopp Case upon the fact that the defendant, without permission from the city authorities, stacked his lumber in a public street, where, because of its unguarded condition, it was dangerous to young children. In the case under consideration, the defendant was authorized by the city to build a viaduct and construct a retaining wall. The wall was placed where the defendant had the right to place it. The only ground, therefore, for holding the defendant liable, is that it maintained in a public place, in an unguarded and unprotected condition, a dangerous instrumentality or thing that was attractive to children. It could hardly be said that a retaining wall like the one in question is dangerous. It is not like a stack of lumber composed of separate pieces that are liable to fall at any house with intent to steal, where there was eviOn a trial for breaking into a whisky waretime. On the occasion of the accident, it did dence that T. saw two men near the warehouse not fall or break. The only sense in which before daylight on the night the breaking ocit could be said to be dangerous is that it curred, one of whom was about defendant's size. was easy to climb, and easy to fall from; before daylight the same morning accused and that they were carrying something heavy, that but, for that matter, so is every tree, every another man appeared at the house of a witness pole, every fence, every ladder, every railing with baskets which they stated contained or set of steps, that the owner may have whisky, that one of them said that if T. followed them they would kill him, that two days latabout his premises. It is charged in the peti- er they were together and had several pints of tion that defendant was negligent in not whisky, that a three-gallon jug, resembling one constructing the protecting wall in such a taken from the warehouse, was near by, and way that it could not be climbed. It is sug-breaking bottles containing whisky, the admisthat, when officers approached, accused began gested that spikes could have been placed on sion of the testimony of a witness as to his Manifestly, if this had been done, and identification of whisky purchased from accused it. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 830-832; Dec. Dig. 371.] 4. CRIMINAL LAW 1169-HARMLESS ERROR -ADMISSION OF EVIDENCE, |