In opening and keeping the highways and The sprinkling of streets is a public streets therein in a reasonably safe condipurpose within the meaning of a constitution for travel thereon by the public, and in tional provision that taxes shall be levied only for such purposes.

"The general assembly shall provide by law! It will thus be seen that there is ample an annual tax, which, with other resources, statutory authority to uphold the sprinkling shall be sufficient to defray the estimated of the municipal highways at the public exexpenses of the commonwealth for each fis- pense. cal year. Taxes shall be levied and col- The Constitution forbids the collection of lected for public purposes only. They shall any tax except for a public purpose. Is the be uniform upon all property subject to tax- sprinkling of the streets a public purpose? ation within the territorial limits of the au- If so, the city has a right to collect the tax; thority levying the tax; and all taxes shall if not, the ordinance, to the extent to which we levied and collected by general laws." it authorizes a levy for this purpose, is void. Section 181: "The general assembly shall Cooley, in his work on Taxation, 3d ed. vol. not impose taxes for the purposes of any 1, p. 211, says: "It is not doubted that the county, city, town, or other municipal cor- preservation of the public health is a public poration, but may, by general laws, confer purpose of prime importance. Sanitary regon the proper authorities thereof, respective-ulations are indispensable in large towns, ly, the power to assess and collect such taxes." These two sections comprise the constitutional provisions regulating the subject in hand. The charter provisions applicable to the question are as follows:

"Sec. 2980. Each city shall raise a revenue from ad valorem taxes, and a poll tax and license fees, and to that end the common council of each city is hereby authorized and empowered to provide each year, by ordinance, for the assessment of all real and personal estate within the corporate limits thereof subject to taxation for state purposes, and shall levy an ad valorem tax on same, not exceeding the rate and limits prescribed in the Constitution, and for school

purposes not exceeding 50 cents on each $100 of taxable property therein, or such portion of poll tax or license fees as the council may designate; to levy a poll tax not exceeding $1.50 on each adult male inhabitant thereof.

"Sec. 2981. In the ordinance fixing for any year the tax rate, the general council shall subdivide its levy as follows: A levy for schools, a levy for the sinking fund, a levy for police purposes, a levy for the fire department, a levy for street and sewer cleaning, a levy for sprinkling streets, a levy for reconstruction of streets, a levy for street repairs, a levy for construction and repairs of sewers, a levy for the house of reform, a levy for charitable institutions, a levy for parks, a levy for library purposes, and a levy for general purposes and a deficit tax. The general council shall cause the foregoing levies to be made for the purpose stated by an ordinance fixing the tax rate each year."

but they may be made for every locality. The right to provide for draining low lands for the purpose is well settled, and the right to protect low lands from overflow may also be justified on the same reasons."

It cannot be doubted, at this day, that whatever is necessary for the preservation of the public health and safety is a public purpose, within the meaning of § 171 of the Constitution. For the purpose of furnishing the citizens with pure water, waterworks may be established, and public wells dug and maintained. That the public highways may, without peril, be traveled at night, they may be lighted at the public expense. That the people may have convenient and wholesome places for resort, public parks may be established and kept. For the education of the young, public schools are conducted. For the support of the indigent aged, almshouses are provided. For the reformation of vicious young, reformatories are maintained. For the relief of the sick, hospitals are provided. For the protection of the public health, nuisances are abated, streets and sewers are flushed and cleaned. As a protection against conflagration, fire departments are established; and as a safeguard for life and property, police departments are organized. It cannot be successfully denied that the dust upon the streets of large cities is a fruitful source of disease, as well as of annoyance, to the citizens. The same principle which authorizes the streets to be cleaned for the purpose of preventing noisome odors and epidemics of disease authorizes them to be sprinkled.

The cases cited by counsel for appellants "Sec. 2825. The board of public works are not pertinent to the question in issue. shall have exclusive control over the conClark v. Louisville Water Co. 90 Ky. 515, 14 struction, reconstruction, cleaning, repairing, S. W. 502, establishes the principle that the platting, grading, improving, sprinkling, lighting and using of all streets, alleys, ave- property of that corporation is subject to nues, lanes, market-houses, bridges, sewers, state taxation; but it does not thereby follow drains, wells, cisterns, ditches, culverts, that the city may not contract with the corcanals, streams and water courses, side-poration for the furnishing to its citizens walks, curbing, and the lighting of public places."

pure water. This reasoning on the part of counsel confounds the public service with

Goodman, Appt.,

v.

LOUISVILLE & NASHVILLE RAILROAD
COMPANY.

the instrumentalities by which that service | J. M. CRADDOCK, Admr., etc., of Isaac is effectuated. Whatever public service the municipal corporation may itself perform it may hire others to perform for it, if it appears that the latter method is the cheapest and the best, unless there be some constitutional or statutory inhibition. In the case of Louisville v. Com. 1 Duv. 295, 85 Am. Dec. 624, it was held that the fire engines of 1. the city of Louisville were not exempt from state taxation; but no one has ever doubted that the maintenance of a fire department for the purpose of preventing conflagrations is a public service, or that the levy of taxes for its maintenance is authorized.

It is the duty of cities to clean its public highways, that they may not become a nuisance. If, in their wisdom, they see fit to hire others to perform this service, it does not follow that the carts used by the contractors are exempt from taxation; nor can it be deduced therefrom that, because. they are not exempt, the cleaning of the streets is not a public service. And yet this is the sole contention of appellants. Logic could

2.

Those

in charge of a locomotive are not bound to discover at the earliest possible moment the presence of infants on the track at a place remote from highway crossings, or other places where their presence might not be anticipated, nor to stop the train upon discovering an object upon the track until it is seen to be a person; the duty in such cases being the same as in case of adults.

The mere occasional passage of pedestrians along an inclosed railroad track with the knowledge of the railroad company is not sufficient to convert a trespasser into a licensee, or to change the degree of care due him by the railroad company.

(December 1, 1903.)*

not be more faulty or inconsequential. The A the Circuit Court for Hart County in faPPEAL by plaintiff from a judgment of Louisville Tramway Company is a corporation organized for the purpose of sprinkling the public streets more rapidly and cheaply, by utilizing the street-car tracks, than could otherwise be done. We are able to perceive no reason why the municipality may not contract with it to perform this service, so essential to the health, happiness, and con

venience of all its citizens.

The owners of property abutting upon the highways sprinkled may get some local advantage distinguishable from that of the traveling public; but this always happens in the performance of public duties. If a park is established, those who own property near by enjoy an increased value thereof by reason of its proximity to the public pleasure ground, but it does not follow that the establishing of parks is any less a public purpose for this reason. The establishing of a state college in a given city affords that city a local advantage not enjoyed by other cities of the commonwealth; but no one would question that education is a public purpose be

cause of this fact. All the citizens have a right to travel the public streets, and, in order that their health and convenience may be conserved, the city may provide that they are reasonably safe, clean, and free from substances deleterious to the public health. As sprinkling the public ways clearly comes within the constitutional requirement of a public purpose, the judgment of the lower court dismissing the petition seeking to enjoin the levy and collection of the tax for that purpose is affirmed.

vor of defendant in an action brought to
recover damages for the alleged negligent
killing of plaintiff's intestate. Affirmed.
The facts are stated in the opinion.
Messrs. McCandless & James, for ap-
pellant:

defendant ought not to have been given.
The peremptory instruction to find for the

Illinois C. R. Co. v. Walters, 22 Ky. L. Rep. 137, 56 S. W. 706; Eskridge v. Cincinnati, N. O. & T. P. R. Co. 89 Ky. 372, 12 S. W. 580; Fugate v. Somerset, 97 Ky. 48, 29 S. W. 970; Morris v. Louisville & N. R. Co. 22 Ky. L. Rep. 1593, 61 S. W. 41; Dolfinger v. Fishback, 12 Bush, 474.

The evidence was sufficient to justify the jury in finding that those in charge of the train saw the peril of the deceased in time to have prevented his injury by the exercise of ordinary care.

Shearm. & Redf. Neg. §§ 58, 59, 483; Becker v. Louisville & N. R. Co. 110 Ky. 474, 53 L.. R. A. 267, 96 Am. St. Rep. 459, 61 S. W. 997: Meeks v. Southern P. R. Co. 56 Cal. 513, 38 Am. Rep. 67; East Tennessee & G. R. Co. v. St. John, 5 Sneed, 524, 73 Am. 66 Mich. 390, 33 N. W. 867; Vanarsdell v. Dec. 149; Keyser v. Chicago & G. T. R. Co.

NOTE. AS to care required of railway company to prevent injuring children on track, see R. Co. 25 L. R. A. 784, and note; Barney v. Hannibal & St. J. R. Co. 26 L. R. A. 847; Roth v. Union Depot Co. 31 L. R. A. 855; Gunn v. Ohio River R. Co. 36 L. R. A. 575; Mack v.

also, in this series, Bottoms v. Seaboard & R.

South Bound R. Co. 40 L. R. A. 679; Trudell

v. Grand Trunk R. Co. 53 L. R. A. 271; and Jason v. Southern R. Co. 53 L R A. 913.

Louisville & N. R. Co. 23 Ky. L. Rep. 1666, | 26 N. E. 916; Nagle v. Allegheny Valley R. 65 S. W. 858.

age, and that he went upon the railroad to have crossed over before the arrival of right of way with a bag for the purpose of the train. The appellant also cites the case picking up pieces of coal which had fallen of the Cincinnati, N. O. & T. P. R. Co. v. from the tender of passing engines, and Dickerson, 102 Ky. 560, 44 S. W. 99, as authat he had been in the habit of doing this, thority for the contention that a higher deand had been cautioned, both by his father gree of care is required for railroad comand older brother, about the danger of pass- panies where the trespassers upon their ing trains. Robert Wilkerson, a brakeman tracks are infants of tender years than in the employ of the railroad company, was where such trespassers are adults. In that the only witness to the accident who testi- case a little girl, two years of age, was playfied. He was called by plaintiff, and testi- ing upon the railroad track; and, while the fied that he was sitting in the cab of the en- engineer testified that he did not see her ungine on the opposite side from the engineer, til he was within 20 feet of her, and too and gave the usual signals of the approach late to avoid the injury, he admitted that of the train to the public crossing; that the he saw the mother of the child running totrain was traveling at between 32 and 35 wards the track, waiving her hands, her hair miles an hour, and consisted of 28 loaded streaming in the air, apparently greatly exfreight cars; that after he had passed the cited. It also appeared that there was a public road crossing he saw an object on the straight track and nothing to obstruct the track about 150 yards ahead, which looked view for about 800 yards from where the like a piece of paper, but that when the en-accident occurred. It was decided in that gine had approached within about 30 feet of the object he discovered the deceased lying on the track between the rails; that the engineer immediately applied the brakes, and stopped the train after it had run about two car lengths farther than the length of the train (or, in other words, that the body of the boy was about two car lengths behind the caboose); and that it could not have been stopped any sooner, or in time to have avoided running over the deceased after it was discovered that the object upon the track was the deceased. The plaintiff introduced testimony tending to show that it was possible for the deceased to have been discovered by the engineer at the public cross ing, which was about 230 yards from the point where he was lying at the time he was killed and it is contended that this was sufficient evidence to have justified the jury in believing that decedent was seen by the defendant's agents in charge of the train in time to have avoided the accident; or that, in any event, it was sufficient evidence to have authorized the submission of the case to the jury. In response to this contention, it may be said that this court has repeatedly held that a railroad company owes no duty to trespassers upon its track at places not frequented by the public by right or permission, until their peril has been discovered. And we do not understand that this well-grounded rule was changed by the decision in Becker v. Louisville & N. R. Co. 110 Ky. 474, 53 L. R. A. 267, 96 Am. St. Rep. 459, 61 S. W. 997. That case was decided upon the ground that the testimony was sufficient to have authorized the belief that defendant's agents saw the children upon the bridge in ample time to have avoided injuring them, but negligently failed to take the necessary steps to do so, under the belief that the children upon the bridge had time

case that the motions and action of the infant's mother were sufficient to have apprised the engineer in charge of the train of the presence of some obstruction upon the track, and to have authorized the jury to believe that he actually became aware of the danger of the infant in time to have stopped the train before striking her. The facts in this case are not analogous to those in the Dickerson Case. Here deceased was entirely familiar with the danger of going upon the track of the railroad. He had been sent there frequently upon the same mission as that he was on when killed. He was old enough to appreciate the danger of the situation, and his view was unobstructed in both directions. He would have had ample time to have gotten off the track if he had been using ordinary care after he might have discovered an approaching train. In broad daylight he laid down between the rails, and it certainly cannot be said that it was negligence in the engineer in charge of the train not to have discovered his position of peril at the very first moment when it might have been discovered by one who went there for the express purpose of ascertaining whether such discovery was possible. Trains must be run on schedule time, and no duty is imposed upon those in charge to stop or slow up at the appearance upon the track of objects the nature of which is only discernible upon near approach. If the object seen by Robert Wilkerson had been at a highway crossing, or in the street of a town or city, where the presence of small children might be suspected, a different case would be presented, and a different standard of diligence could have been required. Appellee's engineer had no more reason to suppose an infant would be upon its track at the point where the accident in this case occurred than an adult, and owed no higher degree of