The Montgomery advertiser., 1908-04-03
ROYAL v. eoss. ET AL.

ROYAL V. GOSS, EI A@ E3ectrn December is, 1907. 45 So. Rep. as1.l
 n. Contracts; duress; enect.--A con .~set n,s5s under duress is. ordinarily. voidable only and subject to repuoia- tion or afnrmance by the party s ma As s If. hut when the duress IS so seveIe to render the party contractins an tnrnaton merely to register the VII vI tre nartv exercising the duress u void. The contract In tnis tss to come under the hrst ciass facts shown. ,rrocent ..-.ssssr. .ssect on~--A deed executed nader duress. though voidapie asalns' ..s ..ou,aacing ir the duress or Witn Sa.,.. tn.reof. upon the vendors sea scnshiv disafsrmins the deed ana piac. inr fine parties in statu quo. no. voldable as against purchs Aoi value without notice. r. ,,. .h..
 Contract; duress--Ine rue tnat .~r,,ss to agreements void for duress, srS their rescission. Is the same as hst snnIied fo the vescission or con trerts obtained by fraud.
 Cancellation of instruments; le- ~si and equitable: restoration---A court If law has the power only to enforce \ contract or to declare 1t null and votd while a court of equity may en- sores the contract or declare 1t void oy voidable and annui 1t upon condi-. tions that the parties thereto be placed
 s. ssme.-where a purchaser paid q mortgage on the land, which was part of the consideration of the deed. the grantor seeking to avoid the deed for duress must repay the amount so paid on the mortgage within q reason able time after the removal of the du- ress, or the deed will be binding.
 c. Husband and wife; conveyance by wife: yalidity.-Where the husband is insane the wife may convey her real estate as if she were single. Section 2s2s. Code 1s9a. .
 T. Appeal; questions; reviewable; harmless error.--Where the judgment Is for the proper party and the mat ters sought to be reviewed will not af- feet the result. or could not, on anoth- CT trial, change the result, the rulings as to such matters are harmless error.
 Appeal from Jefferson Circuit Court.
 Heard before Hon. A. A. Coleman.
 Affirmed. Opinion by Anderson, J.
 Tyson. c. J.. and Simpson and Den son. JJ.. concur.
 LOUISVILLE AND NASHVILLE RAIL-
 ROAD COMPANY V. YOUNG. Damages for Death of Employe-(De-
 cided Dec. 19, 1907.--45 South, 2Ss).
 l, Master and servant; injury to ser want; proximate cause: contributory negiigence.-Where subsequent negli- gence is relied on for recovery, after contributory negligence on part of plaintif, 1t is incumbent upon plaintiff to show that. after becoming aware of plaintiffs peril, the employe to whom, negligence Is charged failed to exer- else due care and diligence 10 avert Injury. and that as a promixate con- sequence thereof injury resulted.
 2. Negligence; last clear chapce.-- The contributory negligence that would bar a recovery, when liability is sought to be fixed by subsequent neg ligence, is such negligence on the part of the injured party as is concurrent with or subsequent negligence of the party charged.
 3, Master and servant; injury to ser- want; contributory negligence; discov- cred pertl-The duty of one in charge Of an engine to use all appliances known to stop the engine to avert the injury after discovery of peril of the party injured Is not met by proof of good faith and honest intention to do so, as an answer to the imputation of simple negligence.
 {. Same; question for jury.-wheth- CT or not the engineer as a reasonably prudent operative was negligent in signalling the approach of his engine was under the evidence in this case a question for the jury with the plain tin carrying the burden.
 D. Same; Knowledge of danger.--To constitute good count. predicated on the subsequent negligence of an en- ployes after eontributory negligence Of the injured party, 1t must be al- legged that the party charged with such negligence, or his servant, knew of the per.lous position, or knew that by, his conduct he was probably about to be imperiled, and that the party charged with negligence was negff- gent in not averting injury, and that the injury was the proximate conss. quence of such negligence.
 G. Same; instruction.--A charge as- serting that unless the jury were req sonably satisfied that defendants en- gineer knew of the peril or impending danger of the person injured and fail ed to exercise due care to avert the injury and fatal injury resulted from that negligence. plaintiff could not re-. cover. correctly stated the law.
 '. Railroads: injury to persons on track; care required.-The negligence which constitutes liability for injury to a person on track consists in a promptly every appliance at hand known to prudent men to stop the en. zine. and not in the ultimate effect produced on the movement of the en. zine by the efforts of the engineer.
 Appeal from Morgan Circuit Court.
 Heard before Hon. Osceola Kyle.
 Reversed and remanded. Opinion by Mcclellan. J.
 Dowdeli. Simpson and Anderson, JJ.. concur.
 
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