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SETTLE, J. Appellee is a corporation whether the rule contended for by learned owning and operating a distillery in Nelson counsel for appellant should apply to this county. Connected with the distillery are two case, we must look to the facts presented by mills, run by steam, in which meal is made

the evidence introduced in his behalf. The for the manufacture of whisky. One of

facts, in brief, are: That appellant was and these mills is known as the “Noy Patent,"

is an experienced machinist, skilled in the and the other as the “Gray Patent.” Ap

work of repairing, setting up, and operating pellant is a skilled machinist of many years'

such mills as those of appellee; that he had experience, a large part of which had been

shortly before he was injured, taken apart, repassed in appellee's service. Both mills were

paired, set up, and put into operation the mill set up and put in operation by appellant as

by which he was injured; that there was no an employé of appellee; the Gray mill last.

defect in the mill or any of its parts at the This mill was an old one, and had not been in use for some time, for which reason it

time appellant was injured, and no obstrucwas taken apart and repaired by appellant

tion to or change in the mill had occurred bebefore he set it up and started it to running.

tween the time of his starting it and the After starting the mill, appellant, in attempt.

receiving of his injuries. Appellant was, ing to test the quality of the meal it was

therefore, thoroughly familiar with the mill producing, had the misfortune to get his hand

and all its parts, and he, above all others, caught between the rollers and greatly man

knew the dangers that were likely to exist gled, which necessitated its amputation. For

òr arise in operating it. It was his duty to the injuries thus sustained he sued appellee

test the quality of the meal the mill produced, in the circuit court, laying his damages at

which duty could be performed only by in$10,000.

serting his hand in the meal and pressing or It was charged in the petition that appel- sifting it with the fingers. In testing the lant's injuries were caused by the gross neg

meal it was likewise his duty to use ordinary ligence of appellee in having and using in its

care to protect himself from injury. Accorddistillery an unsafe and defective mill, dan

ing to his own testimony, there was but one gerous to operate, which fact was known to way in which appellant could have been init, but unknown to appellant, and that he

jured by the mill, and that was to get his finwas required to test the work of this mill gers caught between the rollers, as was done. without warning from appellee of the dan. As he attempted with his hand to catch the ger of doing so. The answer of appellee spe- meal falling from the meal board, which concifically denied the negligence complained of

ducts it from the upper rollers and drops it and averred the skill and experience of appel. into those below, with the slight vibratory lant as a mill machinist; that the mill in motion necessary to prevent its adhering to question was repaired, set up, and put in

the meal board, his hand struck against the operation by him under appellee's employ

meal board, which in turn knocked his finment; that by the terms of such employment

gers against the rollers below, causing them it was his duty to keep it in repair and test to be caught therein and greatly mangled. By its work; that he was familiar with the mill getting the meal from the receptacle designin all its parts and whatever danger there ed for it after leaving the rollers, appellant was in operating it; and, finally, that in re- might have made the required test without ceiving his injuries appellant was himself risk or injury to himself ; but, in attempting guilty of negligence, but for which he would it as he did, he admitted upon the witness not have been injured. The trial resulted stand that he undertook a risk that he at the in a verdict for appellee; the jury having so time knew was attended with great danger. found under a peremptory instruction given He therefore assumed the risk with full by the court at the conclusion of appellant's knowledge of the danger. Consequently the evidence. Consequently judgment was en- injury which followed resulted solely from tered dismissing the petition at appellant's his own negligence. It is idle to say that one cost.

who possesses the skill necessary to make a It was contended by appellant in his mo- machine, or to repair, put together, and opertion and grounds for a new trial, and is now ate it, needs to be told how to approach or urged in his behalf, that the peremptory in- run it, or to be protected or even warned struction was authorized, for the reason that against the probable dangers that might occur it was the duty of appellee to furnish appel- from its use. lant, while in its service, with reasonably It is, however, insisted for appellant that safe machinery and place for the perform- the danger he encountered in making the exance of the work required of him, and that amination of the meal was increased by the appellant was himself under no legal duty to want of sufficient light in the room where the examine or discover defects or danger in the mill was situated and the dust arising from machinery or place of work, unless they were the mill. If these conditions existed, they patent and obvious to a person of his under- were necessarily known to appellant when standing and experience. Such is undoubt- and before his injuries were received, and edly the rule of law where examination and should have deterred him from the attempt inspection is not in the line of the servant's to test the work of the mill under such unemployment or duty. So, in determining favorable circumstances, or at any rate impelled him to exercise the greater care in H. P. Taylor, Pirtle & Trabue, and J. M. making it. It does not, however, appear Dickinson, for appellant. E. P. Neal and W. from the evidence that there was any less H. Barnes, for appellee. light in the millroom when appellant was injured than usual, or when the mill was set HOBSON, C. J. Appellee, Mercer, was a up and put in operation by him. We con- fireman in the service of appellant on one of clude, therefore, that the evidence disclosed its locomotives running between Paducah by the record presented no ground for fasten

and Louisville. On August 6, 1899, while ing upon appellee responsibility for appel- serving as fireman, he fell from the engine as lant's injuries; but, upon the other hand, it it was running rapidly near Rosine, Ky., shows that they resulted from his own neg

sustaining serious injuries. to recover for ligence.

which he filed this suit. The boiler of the In many cases decided by this court the engine extended back to the gangway in front master has been held liable for injuries re- of the tender; the cab being made on both sulting to the servant from the negligence of

sides of the boiler. The engineer occupied the former in failing to provide him with the seat on the right side of the boiler, and reasonably safe tools, machinery, or place to the appelles on the left. The boiler so obwork; but in no case has such liability been structed the view that they could not see held to exist where, notwithstanding the neg

each other when in the cab. It was a part ligence of the master, the servant knew of of appellee's duty to fire the engine and ring the defect or danger in tool, machinery, or

the bell. The bell was rung by means of a place of work, or such defect or danger was small rope, one end of which was fastened so obvious as to be readily discernible, or to the bell and the other end to the top of where examination and inspection was in the the cab. The sole use for which the rope line of the servant's duty. L. & N. R. R. Co. was intended was to ring the bell, which rev. Foley, 94 Ky. 220, 21 S. W. 866 ; McCormick quired very little force. Appellee testified Harvesting Machine Co. v. Liter, 66 S. W. 761, that the rope was an old one, and not in good 23 Ky. Law Rep. 2154; Wilson, Adm'r, v. condition; that before starting from PaChess & Wymond, 78 S. W. 453, 25 Ky. ducah he called the attention of the engineer Law Rep. 1655 ; Pfisterer v. Peter & Co., 78 to it, and the engineer said it was sufficient. S. W. 450, 25 Ky. Law Rep. 1608; Champion The engineer could not see the appellee at Ice Mfg. Co. v. Carter, 51 S. W. 16, 21 Ky. the time he fell, and the appellee himself is Law Rep. 211; Weidemann Brewing Co. v. the only witness as to how the accident Wood, 87 S. W. 772, 27 Ky. Law Rep. 1012. occurred. The case has been heretofore beIn the case at bar appellant, according to the fore us (70 S. W. 287), and in disposing of it proof, knew and voluntarily encountered the on the former appeal the court, referring to danger of testing the quality of the meal in the testimony of the appellee, said: "In the manner in which it was attempted by response to a request from his attorney to him, and, in addition, it was his duty, under detail to the jury exactly how the accident his employment by appellee, to examine and occurred, he said: 'On the 6th of August, know that the machinery of the mill was in

1899, I left Paducah on the train No. 202, proper condition, reasonably safe for use, engine 373, on its way from Paducah to and free from defects.

Louisville. When I came near the Rosine There was no error, therefore, in the gly- tunnel, I put in a fire, and was starting to ing of the peremptory instruction. Where my seat, taking hold of the handhold with fore the judgment is affirmed.

my right band, and putting my right foot upon the step, and then my left foot upon the

platform of the cab. I then turned loose the ILLINOIS CENT. R. CO. V. MERCER.

handhold with my right hand, and reached

to get the bell cord to ring the bell. The (Court of Appeals of Kentucky. Sept. 20, 1905.)

cord broke with me, and I went backwards.

I struck something, and that was the last MASTER AND SERVANT LOCOMOTIVE FIRE


I remembered. In other words, appellee CORD ASSUMPTION OF RISK.

admits that, while standing with his right A railroad company is not liable for in- foot on the step leading from the gangway jury to its firemen, who, while ringing the bell,

to his cab and his left foot on the cab floor, losť his balance because of a lurch of the locomotive in going round a curve, one of the or

he let go the handhold, a permanent and dinary risks of the service assumed by him, secure brace, and seized the bell cord, as the thereby throwing his weight on the bell cord,

train was running around the curve at the which broke, causing him to fall; the company being required to furnish a bell cord strong

rate of 25 miles an hour, which threw his enough only for the purpose for which it was

whole weight on the bell cord-a purpose for intended, the ringing of the bell, and not the which it was never intended--and it gave way. supporting of the fireman.

It seems to us that from appellee's own tesAppeal from Circuit Court, Ohio County. timony there can be no escape from the con"Not to be officially reported."

clusion that his fall was due to his own DegAction by J. W. Mercer against the Illinois ligence in releasing his hold upon the brace Central Railroad Company. Judgment for and seizing the bell cord. One step more plaintiff. Defendant appeals. Reversed. would have carried him into the cab, where he could have, ivith perfect safety, rung the the transcript on the former trial is that here bell, as his duty required; but, instead of the appellee states that he was not in the doing this, when occupying the most preca- gangway when he fell, but five feet within the rious position possible, he let go the safe cab; but we cannot see that the place from stay provided, and in consequence fell off which he fell is material or that it is matethe train. It was the duty of appellee, when rial whether he was in the act of taking his he accepted employment from the defendant, seat, or in the act of getting upon the step to exercise ordinary care for his own safe- when he fell. No witness testifies to the octy, and not knowingly to expose himself to currence but himself. The case must be deunnecessary risks or dangers connected with

termined upon his evidence. He assumed, his employment; and, having done so, he when he entered the service of the railroad is not entitled to recover. We are of the

company as fireman, all the risks of the seryopinion that under this state of fact a per- ice which are fairly incidental to it. The emptory instruction to find for appellant railroad company undertook to furnish applishould have been given. Judgment reversed, ances for the service reasonably safe for the and cause remanded for proceedings consist- purposes for which they were intended, but it ent with this opinion.” I. C. R. R. v. Mer- did not undertake to furnish appliances which cer, 70 S. W. 287, 24 Ky. Law. Rep. 908. should be safe for purposes for which they On the return of the case to the circuit

were not intended. The bell cord was placed court it was tried again, and the court, being upon the engine to ring the bell. It was not of the opinion that the evidence introduced on

placed there to secure the fireman in case he that trial was not the same as shown in the lost his balance. If, while appellee was transcript on file when the above opinion

throwing coal into the firebox, he had lost his was delivered, overruled the defendant's mo

balance, and in attempting to recover himself tion to instruct the jury peremptorily to find had caught the bell cord, and it had broken, for the defendant; and, the jury having it would not be maintained that he could reagain found for the plaintiff, the defendant cover because the bell cord was not sufficient appeals. On the second trial of the case, the

to sustain his weight when he had thus lost appellee, in response to his own counsel,

his balance. The fact that he lost his balance stated as follows: "A. After putting in the

while attempting to ring the bell does not alfire I took hold with my right hand, caught ter the case. The bell cord was not intended hold of the right handhold—that is, the hand

for his security in one case more than in the hold here--pulled myself up in the cab, other, in case he lost his balance. The use of first put my foot on the step and my left foot

the bell cord to prevent himself from falling on the platform, and turned loose with my

off the seat, or falling down as he was getting right foot in the act of ringing the bell, when

into the seat, was not one of the things which the cord broke, and I fell backward. That is

the master had a right to anticipate or was the last I remember. If I did not make that required to guard against. It required very statement on the other time of court, I aimed

slight force to ring the bell, and did not reto tell about my foot coming away from

quire that appellee should put his weight upon there.” Further on he also made these state

the rope. He lost his balance, not because he ments : "A. After putting in the fire near

was ringing the bell, but because of the lurch the Rosine tunnel, I turned and caught hold

of the engine in going around the curve; but of the handhold with my right hand, right

this is one of the ordinary risks of the servfoot on the step about 18 inches up, and put

ice, which he was required to guard against. my left foot on the platform and turned loose

To hold the railroad company responsible unof the handhold with my right hand, and

der the facts of this case would be to hold it fetched the other foot up in the act of getting

liable for the breaking of the bell cord when in the seat. The cord broke, and I fell back

put to a use for which it was not intended, wards and struck something. That is the although it was entirely sufficient for the purthet cordebreke, where were you at that time poidence the court should have peremptorilg -at the moment the cord broke? A. Just instructed the jury to find for the defendant. in the act of getting in the seat when the cord

Judgment reversed, and cause remanded broke. Q. 159. Inside of the cab, on the

for further proceedings consistent herewith. gangway, or where? A. Inside of the cab. Q. 160. Inside of the cab? A. Inside of the cab. Q. 161. State whether or not any por

FLINT v. ILLINOIS CENT. R. CO. tion of your body was outside of the cab at (Court of Appeals of Kentucky. Sept. 20, 1905.) the time the cord broke. A. No, sir, Q. 162.


Refusal to allow a deposition to go to the With which hand did you take hold of the

jury cannot be reviewed; the bill of exceptions bell cord to ring the bell? A. Right hand. not containing the deposition, nor showing that Q. 163. How far is the seat on which you set the court passed on the exceptions filed to it. from the door, or rear of the cab? A. In 2. BILL OF EXCEPTIONS-SUPPLEMENTAL BILL. the neighborhood of five feet from where you

An instrument cannot be considered as a

supplemental bill of exceptions; it not having step up."

the signature or approval of the trial judge. The only difference that we can see between [Ed. Note.-For cases in point, see vol. 21. this testimony and the testimony as given in Cent. Dig. Exceptions, Bill of, $ 95.]

3. RAILROADS TRESPASSERS ON TRACK udice in refusing to her the right to read DUTY OF COMPANY.

upon the trial the deposition of Ben Dame, All that a railroad company owes to a trespasser on its track is that, after the train

and also erred in giving and refusing instrucmen discover him, they exercise reasonable care tions. As to the deposition of Dame, it is and all reasonable means at their command to sufficient to say that the bill of exceptions stop the train iu time to prevent accident.

signed and approved by the circuit judge does (Ed. Note. -For cases in point, see vol. 41,

not show that the exceptions filed to the depCent. Dig. Railroads, 88 1238, 1276--1280.]

osition were ever passed upon by the court, 4. APPEAL-CONFLICTING EVIDENCE. A verdict cannot be disturbed on appeal as

nor does it contain the deposition in question. against the weight of evidence, but only where Consequently we are unable to say whether there is no evidence to support it.

it should have been allowed to go to the jury

as competent evidence or not. We are not Appeal from Circuit Court, McCracken

at liberty, either, to consider the alleged supCounty.

plemental bill of exceptions, purporting to “Not to be officially reported."

contain a copy of Dame's deposition, which Action by Lena Maud Flint, an infant, by

appellant has offered to file in this court. As next friend, against the Illinois Central

it does not contain the signature or approval Railroad Company. Judgment for defendant.

of the circuit judge in whose court the trial Plaintiff appeals. Affirmed.

was bad, it is in no sense to be treated as a Taylor & Lucas, for appellant. Wheeler, part of the record upon this appeal, and can Hughes & Berry, J. M. Dickinson, and Tra- therefore have no effect upon the decision bue, Doolan & Cox, for appellee.

of the appeal by this court.

A careful examination of the instructions SETTLE, J. The appellant, Lena Maud given by this court convinces us that they Flint, an infant, and her next friend, by this are free from error. By them the jury were action sought to recover of appellee, Illi- in substance told that, unless they believed nois Central Railroad Company, $2,000 in from the evidence that appellee's engineer, damages for injuries to her person, alleged to in charge of the locomotive of the train by have been received by the negligence of its which appellant was forced to jump from the servants in charge of a freight train which trestle, after discovering her peril, could by overtook her while crossing appellee's trestle the exercise of reasonable care and all reaat Dawson Springs, and to avoid collision sonable means at his command have stopwith which she was compelled to jump from ped the train in time to have prevented her the trestle, a distance of 22 feet, to the injuries, they should find for appellee. This ground, whereby she broke her wrist, wrench- was certainly a correct statement of the law, ed her back, and received other injuries of and presented the only hypothesis upon which a permanent character. Appellant's cause a recovery would have been allowed. Nor of action was based upon the theory that was it error for the instructions to state her peril while upon the trestle was known that in going upon the trestle appellant was to the engineer of appellee's approaching a trespasser, and that appellant's servants freight train in time for him to have stopped in charge of the train were under no duty the train before it reached her, which, if to keep a lookout for trespassers, or to give done, would have prevented her injuries. them warning of the approach of the train The defense interposed by appellee's answer by the sounding of the engine and whistle or was that in going upon the trestle appellant ringing of the bell. Neither was it imwas a trespasser; that those in charge of the proper for the instructions to advise the jury approaching train were under no duty to keep in substance that appellant was not entitled a lookout for a mere trespasser, such as ap- to recover because of the defective whistle pellant, or to give her warning of the coming upon appellee's engine, as no issue was made, of the train, but only to exercise reasonable or could properly have been made, by the care to avoid injury to her after discovering pleadings on that score, in view of appellant's her peril; that such care was used when and attitude as a trespasser upon appellee's right as soon as her presence on the track be- of way. We are further of opinion that the came known to those in charge of the train, instructions asked by appellant were propbut that, there not being time to stop the erly refused by the trial court, for they train after their discovery of her peril, her ignored the fact that appellant was a tresjumping from the trestle and consequent in- passer, and held appellee and its trainmen juries were unavoidable as far as appellee to the same degree of care in respect to her was concerned; and, finally, that in the mat- safety that would legally be required of them ter of receiving her injuries appellant was toward one rightfully upon appellee's trestle herself guilty of negligence, but for which or track. In brief, we think the instructions they would not have been received. The trial given by the court were on the whole reasonresulted in a verdict and judgment for appel-ably accurate and explicit in their statement lee, of which, and the refusal of the lower of the law applicable to the state of case court to grant her a new trial, appellant presented by the pleadings and proof, and now complains.

left nothing unsaid that was required for It is contended by counsel for appellant the guidance of the jury. that the trial court erred to her prej- It is not for us to say whether or not the

verdict of the jury is in accord with the


That the said Joe Bradford has this weight of the evidence. In the absence of er- day sold to said Huffman a certain lot of ror on the part of the trial court, we are timber situated on Rhodes Branch, about 3 without authority to disturb the verdict of a miles from Williamsburg, at the following jury, unless convinced that it is wholly un- prices, delivered to a point suitable for a supported by evidence, or is the result of pas- | millyard: sion or prejudice on the part of the jury,

First-class poplar logs, 20 inches and up neither of which grounds exist in this case.

in diameter, 12, 14, and 16 feet long... $8 00 We have, however, found the evidence con- Second-class logs, 12 inches and up.....

5 00 flicting; that of appellant conducing to prove

Ash, first-class, 20 up.

8 00 that her presence upon the trestle and conse

Ash, second-class, 14 up.

5 00 Chestnut, 12 up, sound logs.

6 00 quent peril were known to appellee's engineer Oak, first-class, 20 and up..

7 50 in sufficient time for him to have stopped the Oak, common, 14 and up..

5 00 train before it reached her. Upon the other Pine, 2 inches and up, 10, 12, 14, 16, 18,

and 20 feet.......

4 50 band, appellee's evidence tended to prove that the train could not have been stopped after "All of the above timber to be delivered at the discovery of her peril by the trainmen the above stated prices to a suitable yard. in time to have prevented her injuries. It Said Bradford to furnish right of way over was, however, the province of the jury to any lands nearest for the hauling of said weigh the evidence and determine in whose

lumber to the county road free of charge, and favor it preponderated, and as, in arriving at

deliver all of it by May 15, 1900. This time a verdict, they were properly guided by the

is not extended to May 15 for any poplar, instructions given by the trial judge, their de

oak, and pine, but for the benefit of hauling cision of the case must be accepted by this

in chestnut oak after pealing of tanbark is court and submitted to by the parties.

done. Said C. G. Huffman agrees to furnish Wherefore the judgment is affirmed.

merchandise from time to time for the convenience of men employed to do the work, and

measure up once a month after 1st of OctoBRADFORD v. HUFFMAN.

ber, and pay cash for all amounts due after (Court of Appeals of Kentucky. Sept. 21, 1905.) deducting the amount furnished in merchan1. LOGS AND LOGGING-TIMBER TO BE CUT- dise. Said Bradford shall commence work CONTRACT OF SALE-AMBIGUITY.

hauling logs not later than September 1, A contract of sale of “a certain lot of timber situated on Rhodes Branch, about three

1899, and continue regular until all the timber miles from Williamsburg,” is practically demon

is delivered. Said Bradford further agrees strated by the acts of the parties to be suffi- to deliver not less than 200,000 feet of all ciently definite and certain as to the timber sold; 200,000 feet being delivered and received.

classes of timber above specified.

"In witness whereof the parties hereto 2. SAME-AMOUNT SOLD. A contract of sale of "a certain lot of tim

have signed their names this 3d day of July, ber situated on" a certain tract, the kinds and 1899.

Joseph Bradford. dimensions being specified, and the prices per

"C. G. Huffman.” 1000 feet being given, the seller to continue hauling till all the timber is delivered, he "furth

The petition, after setting out substaner agreeing to deliver not less than 200,000 tially the terms of the contract, alleges that feet," is a sale of all the timber of the specified appellant cut, hauled, and delivered to the kinds and dimensions on the tract; the reference to the 200,000 feet being merely a guaran

appellee, under its terms, 200,000 feet of lumty that there will be at least that amount.

ber; that there were as many as 200,000 ad[Ed. Note. For cases in point, see vol. 33, ditional feet of timber of the grades, kind, Cent. Dig. Logs and Logging, 88 8, 9.]

and quality mentioned in the contract on the Appeal from Circuit Court, Whitley County.

boundary of land contemplated by its terms,

which appellant was ready and willing to "Not to be officially reported.”

cut, haul, and deliver to the appellee, but Action by Joseph Bradford ist C. G. Huffman.

which he was prevented from doing by the

Judgment for defendant.

appellee's breach of his part of the contract tifl appeals. Reversed.

in refusing to measure and pay cash for the Tye & Denham, for appellant. Sharp & timber monthly, as he had agreed to do, and Siler, for appellee.

by ordering the appellant to desist from

hauling any more after the 1st of May, 1900 ; BARKER, J. The appellant, Joseph Brad- that of the 200,000 feet of timber which the ford, instituted this action in the Whitley appellee refused to permit the appellant to circuit court to recover of the appellee, C. G. cut and deliver there was as much as 50,000 Huffman, damages for breach of a written feet of "first-class oak logs, 20 inches and up,” contract for the sale and delivery of timber. for which he would be entitled to $7.50 per The contract in question is as follows:

1,000 feet when delivered at the millyard, "This article of agreement, made this 3d and as much as one hundred and fifty thouday of July, 1899, between Joe Bradford, of sand feet of "common oak logs, 14 inches and Whitley county, Ky., of the first part, and up," for which he would be entitled to $5 C. G. Huffman, of the second part, witness- per 1,000 feet when delivered at the mill

88 S.W.-67

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