in the office of the clerk of the Marion county court a statement of contest and grounds thereof, contesting the result of the local option election held in and for the city of Lebanon on August 11, 1910, under order of the Marion county court at the June term, 1910, thereof, and will prosecute and maintain the said contest as provided by law in such cases. Said contestants above named and each of them give you this notice that you shall not permit or record the certificates upon the records of the Marion county court."

Copies of this last mentioned notice, on the day of its delivery to the county judge, were posted, one at the courthouse door and three others at public places in the city of Lebanon, and were caused to be published in a newspaper published in the city of Lebanon in two consecutive issues thereof, issued first after the notice was given.

Section 2566, of the Kentucky Statutes, regulating the procedure for the contest of local elections, provides:

"(2) Any number of the citizens and legal voters, but not less than ten, of the county, city, town, district or precinct in which the election has been held, shall have the right to contest any election held under this law, and shall be designated the contestants. Such contestants shall, within ten days after the final action of the examining board, file in the office of the clerk of the county court a written statement of the grounds of the contest, and shall cause a copy thereof to be served on the county judge, and shall give notice thereof by written or printed notices to be posted at the courthouse door of the county, and in three or more public places in the county, city, town, district or precinct in which the election has been held, and shall cause the same to be published in some newspaper of the county, when possible, for two consecutive issues, commencing not later than the first issue of the paper after filing the statement. When a notice of the contest shall be executed on the county judge, the certificate shall not be recorded. (3) Any number of the citizens an dlegal voters, not less than ten, of the county, town, district, city or precinct in which the election has been held, may resist the contest by filing in the office of the clerk of the county court a statement controverting the grounds of the contestants, and may state any additional grounds to sustain the election, and they shall be designated as the contestees."

It seems to us that the requirements of this statute were fully and accurately complied with by the contestants. A written statement of the grounds of contest was filed in the office of the clerk of the county court within ten days after the final action of the examining board, and within the said ten days a copy of this statement was served on the county judge. Within the said ten days, notice of the fact that the statement was filed in the office of the county clerk was published in the manner required by the statute. The statute does not require the publication of a copy of the written statement setting out the grounds of contest that is filed with the county clerk. It is only necessary that notice of the fact that this statement has been filed shall be published, and this notice need not contain the grounds of the contest. Evidently the only reason for requiring the publication of the notice was to apprise the public of the fact that the election would be contested, so that any person desiring to controvert the grounds of contest might have opportunity to do so. (Derickson v. Conlee, 133 Ky., 373.)

It is further insisted that the contestants were estopped from contesting the election, because they participated in it; but this point is not well taken. Elliott v. Burke, 113 Ky., 479.

Wherefore, the judgment is affirmed.
JUDGE O'REAR not sitting.

Reccius v. Weber, et al.

(Decided February 9, 1911.)

Appeal from Jefferson Circuit Court
(Chancery Branch, Second Division).

Alley-ways-Subdivision of Lots-Use of Alleys-Common Use of Adjacent Owners.-The owners of a lot fronting 150 feet on G. Avenue, by 200 feet on 28th street, caused it to be laid off into seven lots, each fronting on 28th street, five of them having a frontage of 30 feet each, and two of them 25 feet each. An alley or passway 10 feet wide was cut off the back end of these lots, leaving each lot 140 feet in depth. Appellant bought the two 25 feet lots and appellees the other five. Appellant built a stable on the alley in the rear of his lots and then closed it to the use of the other lotowners. All the owners, including appellant, bought with the understanding that the passway was retained for their common use. The deed to one of

the appellees made after appellant's deed refers to the alley as follows: "Then southwardly along said line of 28th street 30 feet and extending back westwardly of that width throughout, between lines parallel with Garland avenue 140 feet to a private alley 10 feet wide heretofore established by first party for the use and benefit of the property owners abutting thereon." Held, the the language plainly shows a dedication of the alley for the use and benefit of the property owners.

B. F. GARDNER for appellant.

LEE HAMILTON for appellees.

OPINION OF THE COURT BY JUDGE LASSING-Affirming.

One Alexander Cassella was the owner of a lot or parcel of ground in Louisville, Kentucky, on the corner of Garland avenue and 28th street, fronting 150 feet on Garland avenue by 200 feet on 28th street. For the purpose of effecting a sale of it, he caused this parcel of ground to be cut up into seven lots, each fronting on 28th street, five on them having a frontage of 30 feet each, and two 25 feet each. An alley or passway, 10 feet in width, was cut off of the back end of these lots, so that each was 140 feet in depth. The appellant Reccius bought the two 25 foot lots, and the appellees the other lots. Reccius built, or caused to be built, a stable or shed on the passway or alley in the rear of his lots, and thus closed it to the use of the other owners. To compel him to remove the building and open the passway, this suit was brought.

His deeds call for a lot 50 feet on 28th street by 140 feet deep. It is not claimed for him that any part of this alley is covered by his deeds; but he seems to rest his right to hold and use it on the theory that it has not been dedicated to and accepted by the city, and that therefore no one but his vendor can maintain such a suit. When appellant bought his lots, he was advised of the existence of this passway. Cassella told him of it-his deed called for it. All the owners, including appellant, bought with the understanding that the alley or passway was retained for their common use. The deed to appellee Hofmeister, made some years after appellant's deed, in describing the property conveyed, refers to this alley in the following language: "Thence southwardly along said line of 28th street 30 feet, and extending back westwardly, of that width throughout between lines parallel with Garland avenue, 140 feet to a private alley 10 feet wide,

heretofore established by first party for the use and benefit of the property owners abutting thereon." This language so plainly shows a dedication of this alley for the use and benefit of the lot owners that further comment is deemed unnecessary. The grantee Cassella could not deny its dedication if he would.

A question similar to that here presented was before this court in the case of Alexander v. Tabeau, 116 S. W., 356, and the court held, on facts no stronger than those here presented, that they were sufficient to show a dedication of the alley to a public purpose.

The case of Brissalaro v. Senour, 82 Ky., 353, relied upon by appellant, is not in point. The facts are entirely dissimilar.

Viewed from any standpoint, the judgment of the lower court was right, and it is, therefore, affirmed.

Louisville Railway Co. v. Bryant, et al.

(Decided February 9, 1911.)

Appeal from Jefferson Circuit Court
(Common Pleas Branch, Second Division).

of

1. Continuance-Motion Therefor-Affidavit Filed-Discretion Court. An affidavit filed in support of a motion for a continuance Lecause of the absence of a witness, must show, first, the exercise of due diligence to procure the witness' attendance; second, what the absent witness, if present, would swear to, and third that the affiant believes it to be true. When an affidavit meeting these requirements is filed it is the duty of the court to grant a continuance, unless opposing counsel consent that the affidavit be read as the deposition of the absent witness. When such consent is given the matter rests in the sound discretion of the court as to whether or not the continuance will be granted; and unless it clearly appears that his discretion has been abused the rulings of the trial court will not be disturbed upon appeal. 2. Negligent Operation of Street Car-Instructions to Jury.-Where a recovery is sought for injury received due to the negligent operation of a street car, it is not error for the court to instruct the jury that, in approaching a public crossing where the presence of pedestrians might be expected, it was the duty of the motorman to keep a lookout.

3. Same. Where an instruction is asked upon a given point and refused, if the same idea is presented in an instruction given, no ground of complaint is afforded.

4.

Excessive Verdict.-A. verdict, though large, or even excessive, will not be set aside upon that ground alone, unless it is made to appear that it could not have been founded upon the evidence, and must be the result of either caprice, passion or prejudice.

FAIRLEIGH, STRAUS & FAIRLEIGH, and HOWARD B. LEE for appellant.

DAVID W. BAIRD, POPHAM, WEBSTER & TRUSTY, and KOHN, BAIRD, SLOSS & KOHN for appellee.

OPINION OF THE COURT BY JUDGE LASSING-Affirming.

This is an appeal from the judgment of the Jefferson circuit court, awarding Jesse English Bryant, a boy four years old, $11,000 in damages for injuries received by him in being negligently run over by one of appellant's cars. The accident occurred on the morning of June 14th, 1909, while appellee was attempting to cross from the south side of Broadway, at its intersection with Seventh street, to the north side.

According to appellee's testimony, an eastbound car was approaching the crossing on Broadway, and a northbound car was approaching on Seventh street. The Seventh-street car stopped to permit the Broadway car to to pass, and its motorman signalled the motorman of the Broadway car to go ahead. Having been given the right of way by the Seventh street car, the Broadway car passed over both the west and east crossing of Seventh street without slackening its speed, and, as appellee was attempting to cross the street on the east crossing, he was run down and injured. His right leg was so mangled and mashed from the foot up that it had to be amputated half way between the knee and hip. His arm was lacerated, and his back and head bruised. The injury to his arm resulted in an enlargement of the ulna; and this injury the doctor testified, is probably permanent. Appellee's testimony tended to show that the rate of speed at which this car was traveling at the time it passed over Seventh street was excessive, that no signal of the car's approach to this crossing was given, and that the motorman, at the time he was crossing over Seventh street, was looking in the direction of the Seventh stret car instead of ahead of him.

Appellant's theory is that appellee ran into the side of the car as it was passing over the crossing, and fell under the car, and was run over by the hind trucks there