SETTLE, J. Appellee is a corporation owning and operating a distillery in Nelson county. Connected with the distillery are two mills, run by steam, in which meal is made for the manufacture of whisky. One of these mills is known as the "Noy Patent," and the other as the "Gray Patent." Appellant is a skilled machinist of many years' experience, a large part of which had been passed in appellee's service. Both mills were set up and put in operation by appellant as an employé of appellee; the Gray mill last. This mill was an old one, and had not been in use for some time, for which reason it was taken apart and repaired by appellant before he set it up and started it to running. After starting the mill, appellant, in attempting to test the quality of the meal it was producing, had the misfortune to get his hand caught between the rollers and greatly mangled, which necessitated its amputation. For the injuries thus sustained he sued appellee in the circuit court, laying his damages at $10,000.

It was charged in the petition that appellant's injuries were caused by the gross negligence of appellee in having and using in its distillery an unsafe and defective mill, dangerous to operate, which fact was known to it, but unknown to appellant, and that he was required to test the work of this mill without warning from appellee of the danger of doing so. The answer of appellee specifically denied the negligence complained of and averred the skill and experience of appellant as a mill machinist; that the mill in question was repaired, set up, and put in operation by him under appellee's employment; that by the terms of such employment it was his duty to keep it in repair and test its work; that he was familiar with the mill in all its parts and whatever danger there was in operating it; and, finally, that in receiving his injuries appellant was himself guilty of negligence, but for which he would not have been injured. The trial resulted in a verdict for appellee; the jury having so found under a peremptory instruction given by the court at the conclusion of appellant's evidence. Consequently judgment was entered dismissing the petition at appellant's cost.

It was contended by appellant in his motion and grounds for a new trial, and is now urged in his behalf, that the peremptory instruction was authorized, for the reason that it was the duty of appellee to furnish appellant, while in its service, with reasonably safe machinery and place for the performance of the work required of him, and that appellant was himself under no legal duty to examine or discover defects or danger in the machinery or place of work, unless they were patent and obvious to a person of his understanding and experience. Such is undoubtedly the rule of law where examination and inspection is not in the line of the servant's employment or duty. So, in determining

whether the rule contended for by learned counsel for appellant should apply to this case, we must look to the facts presented by the evidence introduced in his behalf. The facts, in brief, are: That appellant was and is an experienced machinist, skilled in the work of repairing, setting up, and operating such mills as those of appellee; that he had shortly before he was injured, taken apart, repaired, set up, and put into operation the mill by which he was injured; that there was no defect in the mill or any of its parts at the time appellant was injured, and no obstruction to or change in the mill had occurred between the time of his starting it and the receiving of his injuries. Appellant was, therefore, thoroughly familiar with the mill and all its parts, and he, above all others, knew the dangers that were likely to exist or arise in operating it. It was his duty to test the quality of the meal the mill produced, which duty could be performed only by inserting his hand in the meal and pressing or sifting it with the fingers. In testing the meal it was likewise his duty to use ordinary care to protect himself from injury. According to his own testimony, there was but one way in which appellant could have been injured by the mill, and that was to get his fingers caught between the rollers, as was done. As he attempted with his hand to catch the meal falling from the meal board, which conducts it from the upper rollers and drops it into those below, with the slight vibratory motion necessary to prevent its adhering to the meal board, his hand struck against the meal board, which in turn knocked his fingers against the rollers below, causing them to be caught therein and greatly mangled. By getting the meal from the receptacle designed for it after leaving the rollers, appellant might have made the required test without risk or injury to himself; but, in attempting it as he did, he admitted upon the witness stand that he undertook a risk that he at the time knew was attended with great danger. He therefore assumed the risk with full knowledge of the danger. Consequently the injury which followed resulted solely from his own negligence. It is idle to say that one who possesses the skill necessary to make a machine, or to repair, put together, and operate it, needs to be told how to approach or run it, or to be protected or even warned against the probable dangers that might occur from its use.

It is, however, insisted for appellant that the danger he encountered in making the examination of the meal was increased by the want of sufficient light in the room where the mill was situated and the dust arising from the mill. If these conditions existed, they were necessarily known to appellant when and before his injuries were received, and should have deterred him from the attempt to test the work of the mill under such unfavorable circumstances, or at any rate im

he could have, with perfect safety, rung the bell, as his duty required; but, instead of doing this, when occupying the most precarious position possible, he let go the safe stay provided, and in consequence fell off the train. It was the duty of appellee, when he accepted employment from the defendant, to exercise ordinary care for his own safety, and not knowingly to expose himself to unnecessary risks or dangers connected with his employment; and, having done so, he is not entitled to recover. We are of the opinion that under this state of fact a peremptory instruction to find for appellant should have been given. Judgment reversed, and cause remanded for proceedings consistent with this opinion." I. C. R. R. v. Mercer, 70 S. W. 287, 24 Ky. Law. Rep. 908.

On the return of the case to the circuit court it was tried again, and the court, being of the opinion that the evidence introduced on that trial was not the same as shown in the transcript on file when the above opinion was delivered, overruled the defendant's motion to instruct the jury peremptorily to find for the defendant; and, the jury having again found for the plaintiff, the defendant appeals. On the second trial of the case, the appellee, in response to his own counsel, stated as follows: "A. After putting in the fire I took hold with my right hand, caught hold of the right handhold-that is, the handhold here-pulled myself up in the cab, first put my foot on the step and my left foot on the platform, and turned loose with my right foot in the act of ringing the bell, when the cord broke, and I fell backward. That is the last I remember. If I did not make that statement on the other time of court, I aimed to tell about my foot coming away from there." Further on he also made these statements: "A. After putting in the fire near the Rosine tunnel, I turned and caught hold of the handhold with my right hand, right foot on the step about 18 inches up, and put my left foot on the platform and turned loose of the handhold with my right hand, and fetched the other foot up in the act of getting in the seat. The cord broke, and I fell backwards and struck something. That is the last I remember. Q. 158. At the moment the cord broke, where were you at that time -at the moment the cord broke? A. Just in the act of getting in the seat when the cord broke. Q. 159. Inside of the cab, on the 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 portion of your body was outside of the cab at the time the cord broke. A. No, sir. Q. 162. With which hand did you take hold of the bell cord to ring the bell? A. Right hand. Q. 163. How far is the seat on which you set from the door, or rear of the cab? A. In the neighborhood of five feet from where you step up."

The only difference that we can see between this testimony and the testimony as given in

the transcript on the former trial is that here the appellee states that he was not in the gangway when he fell, but five feet within the cab; but we cannot see that the place from which he fell is material or that it is material whether he was in the act of taking his seat, or in the act of getting upon the step when he fell. No witness testifies to the occurrence but himself. The case must be determined upon his evidence. He assumed, when he entered the service of the railroad company as fireman, all the risks of the service which are fairly incidental to it. The railroad company undertook to furnish appliances for the service reasonably safe for the purposes for which they were intended, but it did not undertake to furnish appliances which should be safe for purposes for which they were not intended. The bell cord was placed upon the engine to ring the bell. It was not placed there to secure the fireman in case he lost his balance. If, while appellee was throwing coal into the firebox, he had lost his balance, and in attempting to recover himself had caught the bell cord, and it had broken, it would not be maintained that he could recover because the bell cord was not sufficient to sustain his weight when he had thus lost his balance. The fact that he lost his balance while attempting to ring the bell does not alter the case. The bell cord was not intended for his security in one case more than in the other, in case he lost his balance. The use of the bell cord to prevent himself from falling off the seat, or falling down as he was getting into the seat, was not one of the things which the master had a right to anticipate or was required to guard against. It required very slight force to ring the bell, and did not require that appellee should put his weight upon the rope. He lost his balance, not because he was ringing the bell, but because of the lurch of the engine in going around the curve; but this is one of the ordinary risks of the service, which he was required to guard against. To hold the railroad company responsible under the facts of this case would be to hold it liable for the breaking of the bell cord when put to a use for which it was not intended, although it was entirely sufficient for the purpose for which it was intended. Under the evidence the court should have peremptorily instructed the jury to find for the defendant. Judgment reversed, and cause remanded for further proceedings consistent herewith.

FLINT v. ILLINOIS CENT. R. CO. (Court of Appeals of Kentucky. Sept. 20, 1905.) 1. APPEAL-RECORD-QUESTIONS REVIEWABLE. Refusal to allow a deposition to go to the jury cannot be reviewed; the bill of exceptions not containing the deposition, nor showing that the court passed on the exceptions filed to it. 2. BILL OF EXCEPTIONS-SUPPLEMENTAL BILL. An instrument cannot be considered as a supplemental bill of exceptions; it not having the signature or approval of the trial judge.

[Ed. Note.-For cases in point, see vol. 21, Cent. Dig. Exceptions, Bill of, § 95.]

DUTY OF COMPANY.

All that a railroad company owes to a trespasser on its track is that, after the trainmen discover him, they exercise reasonable care and all reasonable means at their command to stop the train in time to prevent accident.

[Ed. Note.-For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1238, 1276--1280.] 4. APPEAL-CONFLICTING EVIDENCE.

A verdict cannot be disturbed on appeal as against the weight of evidence, but only where there is no evidence to support it.

Appeal from Circuit Court, McCracken County.

"Not to be officially reported."

Action by Lena Maud Flint, an infant, by next friend, against the Illinois Central Railroad Company. Judgment for defendant. Plaintiff appeals. Affirmed.

SETTLE, J. The appellant, Lena Maud Flint, an infant, and her next friend, by this action sought to recover of appellee, Illinois Central Railroad Company, $2,000 in damages for injuries to her person, alleged to have been received by the negligence of its servants in charge of a freight train which overtook her while crossing appellee's trestle at Dawson Springs, and to avoid collision with which she was compelled to jump from the trestle, a distance of 22 feet, to the ground, whereby she broke her wrist, wrenched her back, and received other injuries of a permanent character. Appellant's cause of action was based upon the theory that her peril while upon the trestle was known to the engineer of appellee's approaching freight train in time for him to have stopped the train before it reached her, which, if done, would have prevented her injuries. The defense interposed by appellee's answer was that in going upon the trestle appellant was a trespasser; that those in charge of the approaching train were under no duty to keep a lookout for a mere trespasser, such as appellant, or to give her warning of the coming of the train, but only to exercise reasonable care to avoid injury to her after discovering her peril; that such care was used when and as soon as her presence on the track became known to those in charge of the train, but that, there not being time to stop the train after their discovery of her peril, her jumping from the trestle and consequent injuries were unavoidable as far as appellee was concerned; and, finally, that in the matter of receiving her injuries appellant was herself guilty of negligence, but for which they would not have been received. The trial resulted in a verdict and judgment for appellee, of which, and the refusal of the lower court to grant her a new trial, appellant now complains.

It is contended by counsel for appellant that the trial court erred to her prej

udice in refusing to her the right to read upon the trial the deposition of Ben Dame, and also erred in giving and refusing instructions. As to the deposition of Dame, it is sufficient to say that the bill of exceptions signed and approved by the circuit judge does not show that the exceptions filed to the deposition were ever passed upon by the court, nor does it contain the deposition in question. Consequently we are unable to say whether it should have been allowed to go to the jury as competent evidence or not. We are not at liberty, either, to consider the alleged supplemental bill of exceptions, purporting to contain a copy of Dame's deposition, which appellant has offered to file in this court. As it does not contain the signature or approval of the circuit judge in whose court the trial was had, it is in no sense to be treated as a part of the record upon this appeal, and can therefore have no effect upon the decision of the appeal by this court.

A careful examination of the instructions given by this court convinces us that they are free from error. By them the jury were in substance told that, unless they believed from the evidence that appellee's engineer, in charge of the locomotive of the train by which appellant was forced to jump from the trestle, after discovering her peril, could by the exercise of reasonable care and all reasonable means at his command have stopped the train in time to have prevented her injuries, they should find for appellee. This was certainly a correct statement of the law, and presented the only hypothesis upon which a recovery would have been allowed. Nor was it error for the instructions to state that in going upon the trestle appellant was a trespasser, and that appellant's servants in charge of the train were under no duty to keep a lookout for trespassers, or to give them warning of the approach of the train by the sounding of the engine and whistle or ringing of the bell. Neither was it improper for the instructions to advise the jury in substance that appellant was not entitled to recover because of the defective whistle upon appellee's engine, as no issue was made, or could properly have been made, by the pleadings on that score, in view of appellant's attitude as a trespasser upon appellee's right of way. We are further of opinion that the instructions asked by appellant were properly refused by the trial court, for they ignored the fact that appellant was a trespasser, and held appellee and its trainmen to the same degree of care in respect to her safety that would legally be required of them toward one rightfully upon appellee's trestle or track. In brief, we think the instructions given by the court were on the whole reasonably accurate and explicit in their statement of the law applicable to the state of case presented by the pleadings and proof, and left nothing unsaid that was required for the guidance of the jury.

It is not for us to say whether or not the

verdict of the jury is in accord with the weight of the evidence. In the absence of error on the part of the trial court, we are without authority to disturb the verdict of a jury, unless convinced that it is wholly unsupported by evidence, or is the result of passion or prejudice on the part of the jury, neither of which grounds exist in this case. We have, however, found the evidence conflicting; that of appellant conducing to prove that her presence upon the trestle and consequent peril were known to appellee's engineer in sufficient time for him to have stopped the train before it reached her. Upon the other hand, appellee's evidence tended to prove that the train could not have been stopped after the discovery of her peril by the trainmen in time to have prevented her injuries. It was, however, the province of the jury to weigh the evidence and determine in whose favor it preponderated, and as, in arriving at a verdict, they were properly guided by the instructions given by the trial judge, their decision of the case must be accepted by this court and submitted to by the parties. Wherefore the judgment is affirmed.

BRADFORD v. HUFFMAN. (Court of Appeals of Kentucky. Sept. 21, 1905.) 1. LOGS AND LOGGING-TIMBER TO BE CUTCONTRACT OF SALE-AMBIGUITY.

A contract of sale of "a certain lot of timber situated on Rhodes Branch, about three miles from Williamsburg," is practically demonstrated by the acts of the parties to be sufficiently definite and certain as to the timber sold; 200,000 feet being delivered and received. 2. SAME AMOUNT SOLD.

A contract of sale of "a certain lot of timber situated on" a certain tract, the kinds and dimensions being specified, and the prices per 1000 feet being given, the seller to continue hauling till all the timber is delivered, he "further agreeing to deliver not less than 200,000 feet," is a sale of all the timber of the specified kinds and dimensions on the tract; the reference to the 200,000 feet being merely a guaranty that there will be at least that amount.

[Ed. Note. For cases in point, see vol. 33, Cent. Dig. Logs and Logging, §§ 8, 9.]

Appeal from Circuit Court, Whitley County. "Not to be officially reported.” Action by Joseph Bradford against C. G. Huffman. Judgment for defendant. Plaintiff appeals. Reversed.

Tye & Denham, for appellant. Sharp & Siler, for appellee.

BARKER, J. The appellant, Joseph Bradford, instituted this action in the Whitley circuit court to recover of the appellee, C. G. Huffman, damages for breach of a written contract for the sale and delivery of timber. The contract in question is as follows:

"This article of agreement, made this 3d day of July, 1899, between Joe Bradford, of Whitley county, Ky., of the first part, and C. G. Huffman, of the second part, witness

88 S.W.-67

"All of the above timber to be delivered at the above stated prices to a suitable yard. Said Bradford to furnish right of way over any lands nearest for the hauling of said lumber to the county road free of charge, and deliver all of it by May 15, 1900. This time is not extended to May 15 for any poplar, oak, and pine, but for the benefit of hauling in chestnut oak after pealing of tanbark is done. Said C. G. Huffman agrees to furnish merchandise from time to time for the convenience of men employed to do the work, and measure up once a month after 1st of October, and pay cash for all amounts due after deducting the amount furnished in merchandise. Said Bradford shall commence work hauling logs not later than September 1, 1899, and continue regular until all the timber is delivered. Said Bradford further agrees to deliver not less than 200,000 feet of all classes of timber above specified.

"In witness whereof the parties hereto have signed their names this 3d day of July, 1899. Joseph Bradford. "C. G. Huffman." The petition, after setting out substantially the terms of the contract, alleges that appellant cut, hauled, and delivered to the appellee, under its terms, 200,000 feet of lumber; that there were as many as 200,000 additional feet of timber of the grades, kind, and quality mentioned in the contract on the boundary of land contemplated by its terms, which appellant was ready and willing to cut, haul, and deliver to the appellee, but which he was prevented from doing by the appellee's breach of his part of the contract in refusing to measure and pay cash for the timber monthly, as he had agreed to do, and by ordering the appellant to desist from hauling any more after the 1st of May, 1900; that of the 200,000 feet of timber which the appellee refused to permit the appellant to cut and deliver there was as much as 50,000 feet of "first-class oak logs, 20 inches and up," for which he would be entitled to $7.50 per 1,000 feet when delivered at the millyard, and as much as one hundred and fifty thousand feet of "common oak logs, 14 inches and up," for which he would be entitled to $5 per 1,000 feet when delivered at the mill