WRITS OF ERROR DENIED-Cont'd | FOURTH DISTRICT Adams & Garrett v. Randle, 171 S. W. 256. Brown v. Yoakum, 170 S. W. 803. Galveston, H. & S. A. R. Co. v. Enderle, 170 Grand Temple & Tabernacle in State of Texas Jones v. Veltmann, 171 S. W. 287. Globe Loan Company v. Betancourt, 171 S. W. McCaleb v. Boerne Electric Power & Mfg. Co., 173 S. W. 1191. Martinez v. Medina Valley Irr. Co., 171 S. W. W. H. Norris Lumber Co. v. Harris, 177 S. W. Spiller v. Hollinger, 172 S. W. 175. 1035. Whitaker v. Shenault, 172 S. W. 202. FIFTH DISTRICT Ball-Carden Co. v. Ridgell, 171 S. W. 509. Houston & T. C. R. Co. v. Smallwood, 171 S. Murray Gin Co. v. Putman, 170 S. W. 806. St. Louis, S. F. & T. R. Co. v. Smith, 171 S. 515. FIFTH DISTRICT Terrell Sewerage Co. v. Stiles, 177 S. W. 1053. Texas Midland R. R. v. Fogleman, 172 S. W. SIXTH DISTRICT Texas & P. R. Co. v. Beaird, 169 S. W. 1050. SEVENTH DISTRICT Scates v. Rapid Transit R. Co., 171 S. W. 503. Rogers v. Harris, 171 S. W. 809. Smith v. Moore, 171 S. W. 822. 284. WRITS OF ERROR GRANTED FIRST DISTRICT Central Bank & Trust Co. of Houston v. Weiss, 170 S. W. 820. Wacaser v. Rockland Sav. Bank, 172 S. W. Hollinger v. Llano Granite & Marble Co., 173 Sanger v. First Nat. Bank of Amarillo, 170 S. Brown v. Fleming, 178 S. W. 964. W. 1087. Slaughter v. Boyce, 170 S. W. 259. Winkie v. Conatser, 171 S. W. 1017. EIGHTH DISTRICT Baldwin v. Jordan. 171 S. W. 1016. Barstow v. Ward County Irr. Dist. No. 1, 177 Bastrop & Austin Bayou Rice Growers' Ass'n Childs v. McGrew, 171 S. W. 506. Fidelity & Deposit Co. of Maryland v. Albrecht, 171 S. W. 819. Houston Lighting & Power Co., 1905, v. Conley, 171 S. W. 561. Marks v. Sambrano, 170 S. W. 546. Prince v. Taylor, 171 S. W. 826. Lone Star Canal Co. v. Broussard, 176 S. W. Miller v. Flattery, 171 S. W. 253. 649. THE SOUTHWESTERN REPORTER VOLUME 179 Where plaintiff and his witnesses testified to one state of facts, and defendant and his witnesses to another state of facts, a verdict for plaintiff was not flagrantly against the evidence, and the Court of Appeals could not substitute its judgment for that of the jury as to disputed questions of fact. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3935-3937; Dec. Dig. 1002.] 2. EVIDENCE lar, a check drawn by plaintiff to defendant's order, which plaintiff testified was delivered by him to defendant and subsequently charged to his account in the bank and represented money which he had loaned to defendant, was competent to impeach defendant, though the amount covered by the check was not a part of the loan represented by the note. [Ed. Note.-For other cases, see Witnesses, Cent. Dig. §§ 1273, 1275; Dec. Dig. 405.] Appeal from Circuit Court, Ballard County. Action by J. C. Grabble against A. M. Shelby. Judgment for plaintiff, and defend 155-ADMISSIBILITY-SIMILAR ant appeals. Affirmed. EVIDENCE OF ADVERSE PARTY. Where, in an action on a note claimed to have been given for borrowed money, defendant denied signing the note and sought to show that plaintiff did not have the means with which to make the loan in question, and plaintiff testified that he had a sum of money in a bank, the testimony of the cashier of such bank that plaintiff had a large sum on deposit at or about the time the loan was made was competent. [Ed. Note. For other cases, see Evidence, Cent. Dig. 88 445-458, 2148; Dec. Dig. 155.] 3. TRIAL 76-RECEPTION OF EVIDENCEOBJECTIONS-TIME FOR OBJECTIONS. Where the cashier of a bank testified from a memorandum concerning plaintiff's deposit in the bank, if defendant desired to object to such evidence as secondary evidence and to have the books produced, he should have objected and excepted at the time, and it was too late to object after the cashier's testimony had been completed. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 172, 183-190, 237; Dec. Dig. 76.] 4. EVIDENCE 368 DOCUMENTARY EVIDENCE-REQUIRING PRODUCTION. Where the cashier of a bank testified without objection from a memorandum concerning a deposit in his bank, and the books of the bank were not in the town where the trial was taking place, but in a neighboring town, and to require their production would probably have necessitated a delay or postponement of the trial, it was not error after he had completed his testimony to refuse to order their produc tion. [Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 444, 1540-1558; Dec. Dig. 368.] 5. WITNESSES 405-IMPEACHMENT-COMPETENCY OF IMPEACHING EVIDENCE. Where, in an action on a note claimed to have been given for borrowed money, defendant denied signing the note and testified that plaintiff never at any time loaned him a single dol J. B. Wickliffe, of Wickliffe, and Eaton & Boyd, of Paducah, for appellant. Hendrick & Nichols, of Paducah, for appellee. CLAY, C. This is a suit on a note for $850, dated March 1, 1912, and payable, 12 months after date, to the order of J. C. Grabble, purporting to have been signed and executed by A. M. Shelby. Shelby interposed a plea of non est factum and want of consideration. Plaintiff, J. C. Grabble, recovered a verdict and judgment for $837.50, with interest from the date of the note. Shelby appeals. [1] It is first insisted that the verdict is flagrantly against the evidence. Plaintiff testified, in substance, that he and the defendant had had various business transactions. On October 14, 1911, he loaned the defendant $350. In January, or February, 1912, he loaned the defendant $185. Later on in the month of February he loaned the defendant $235. The defendant was also indebted to him for certain fee bills. Finally he and the defendant made a settlement, whereby it was agreed that the amount due, including certain interest and fee bills, was $850. Thereupon plaintiff drew up the note for $850, and, on meeting the defendant, the latter signed the note in the presence of plaintiff and John Nichols. John Nichols testifies that he was present when the note was signed. It further appears from the evidence for plaintiff that he was a constable at the time and was also engaged in repairing machinery, from which he derived some income. On cross-examination, it was sought For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes his account in bank and represented money which he had loaned to defendant. The objection to this testimony is based on the fact that the $40 covered by the check was not a part of the loan represented by the note. Inasmuch, however, as defendant testified that plaintiff never at any time loaned him a single dollar, the evidence was competent for the purpose of impeachment and, being so limited by the admonition of the court, was properly admitted. to show that plaintiff did not have sufficient | which plaintiff also testifies was charged to money to make the loan. Plaintiff stated that he had some money in bank. In this statement he was corroborated by Mr. Lovelace, the cashier of the bank at La Center. On the other hand, defendant testified that he never signed the note in question and that plaintiff never loaned him a dollar in his life. While there are a number of circumstances which tend to sustain the contention of plaintiff, there are also certain circumstances which tend to support the contention of the defendant. After all, it is a case where plaintiff and his witnesses testify to one state of facts, and defendant and his witnesses to another state of facts. That being true, it cannot be said that the verdict of the jury is flagrantly against the evidence, and we are not at liberty, therefore, to substitute our judgment for that of the jury, which is the tribunal fixed by law, in this character of cases, for settling disputed questions of fact. The instructions are not subject to complaint. They authorize a verdict for the plaintiff only in the event defendant executed and delivered the note and there was a valuable consideration therefor. Judgment affirmed. CARTER COAL CO. v. HILL. (Court of Appeals of Kentucky. Oct. 14, 1915.) [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 177, 202, 209; Dec. Dig. 118.] 2. MASTER AND SERVANT 278 ACTIONS FOR INJURIES-SUFFICIENCY OF EVIDENCE. 1. MASTER AND SERVANT 118-PROPPING [2-4] In testifying to the amount of money ROOF OF MINES-STATUTORY PROVISIONS. which plaintiff had in bank, Mr. Lovelace, Ky. St. 1909, § 2739b, subsec. 7, which was the cashier of the bank at La Center, tes- in force in 1913, and which provided that every tified from a memorandum. Defendant in-owner, lessee, or operator of a mine should provide and furnish the miners employed therein terposed no objection to this testimony. a sufficient number of caps and props to be used After the witness had testified at consider- by the miners in securing the roof in their able length on cross-examination and had rooms, and at such other working places whereby law or custom of those usually engaged in concluded his testimony, the defendant ob- such employment it was the duty of such miners jected to his testimony and asked that he to keep the roof propped after the miner had be required to produce the books of the bank, selected and worked the same, did not apply The objection and motion to produce the of propping or timbering did not devolve upon where by custom or rule of the mine the duty books were overruled. Defendant claims the miner himself. that this was error. As the defendant sought, on cross-examination of plaintiff, to show that plaintiff did not have the means with which to make the loan in question, and as plaintiff stated that he had a sum of money in the bank at La Center, the evidence of the cashier of that bank that he had a large sum on deposit, at or about the time the loan was made, was certainly competent. If defendant desired to have the books showing plaintiff's account produced and to object to the cashier's evidence on the ground that it was secondary evidence, he should have objected and excepted at the time and asked for the production of the books. Where a witness testifies from memory, or a memorandum, and no objection, based on the character of the evidence, is made at the time, it is too late to object after his testimony has been completed; and where, as in this instance, the books are not in the town where the trial takes place, but in a neighboring town, it is not error, after the witness has completed his testimony without objection, to refuse to order the production of the books when this will probably necessitate a delay in or postponement of the trial. In an action for injuries to one employed in defendant's mine, where the work of shooting or digging down the coal and loading it into evidence held to show that it was the duty of cars was let by contract at a price per ton, the mining company to prop the roof of the room neck were the injured person was working, but that, under the contract between it and the contractor whom plaintiff was assisting, the duty devolved upon the contractor. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 954, 956-958, 960-969, 971, 972, 977; Dec. Dig. 278.] 3. MASTER AND SERVANT 118-LIABILITY FOR INJURIES-DELEGATION OF DUTIES. Where, under the custom of a coal mine in which the work of shooting or digging down the coal and loading it into cars was let out by contract at a given price per ton, it was the duty of the coal company not only to crosstimber but to set the props in a room neck where one assisting a contractor was working, the responsibility arising from this duty could not be evaded by a contract requiring the contractor to perform this work. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 177, 202, 209; Dec. Dig. mm 118.] [5] Another error relied on is the introduc- 4. MASTER AND SERVANT 190-LIABILITY FOR INJURIES-ASSURANCE OF SAFETY. tion by plaintiff of a check for $40, drawn to Where the duty of cross-timbering a mine the order of defendant, and which plaintiff in which the work of shooting or digging down says that he delivered to defendant, and the coal and loading it into cars was let out by contract rested on the coal company, and it [and judgment for $15,000. The coal comselected B. to perform this work, B. was a vice principal, and his assurance to one who pany appeals. was assisting a contractor that the roof of a room neck was safe was, in effect, an assurance by the coal company. [Ed. Note.-For other cases, see Master and Servant, Cent.Dig. §§ 449-474; Dec.Dig. 190.] 5. MASTER AND SERVANT 157-LIABILITY FOR INJURIES-CONTRIBUTORY NEGLIGENCEWARNING Of Danger. If B., instead of giving an assurance of safety, warned such employé that the room neck was dangerous a sufficient length of time before the accident to have enabled him by the exercise of ordinary care to stop work and avoid the peril, it was his duty to heed the warning of danger, and he could not recover for an injury caused by the dangerous condition of an injury caused by the dangerous condition of the roof. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 303; Dec. Dig. 157.] 6. TRIAL 125-CONDUCT OF COUNSELIMPROPER ARGUMENT. In an action for personal injuries against a coal company, plaintiff's counsel stated that the corporation's "hoarded thousands and millions" could not pay plaintiff for the wails and pains and agonies that he had suffered, and referred to the corporation as a wicked, soulless corporation that had no life and could not be hurt or feel, and as a lawless corporation that had left desolation, destruction, and maiming from one end of a creek to the other. Objections and motions to exclude these statements were overruled. Held, that this argument was so objectionable as to require a reversal, especially as counsel, in going outside of the record and bringing to the attention of the jury the amount of money which the corporation had and the number of accidents which had happened in its mine, could have had no purpose other than to inflame the minds and excite the passions of the jury. [Ed. Note.-For other cases, see Trial, Cent. Dig. § 303-307; Dec. Dig. 125.] 7. APPEAL AND ERROR 688-REVIEW-MoTIONS FOR NEW TRIAL-AFFIDAVITS. Under Civ. Code Prac. § 340, subsec. 2, authorizing a new trial for misconduct of the jury, the prevailing party, or his attorney, and section 343, providing that the grounds mentioned in such subsection, among others, must be sustained by affidavits showing their truth, affidavits as to improper argument which took place in the court's presence, about which there was no dispute, and to the happening of which the court certified in the bill of exceptions, were unnecessary; such affidavits only being requir: ed where the misconduct of counsel does not take place in the court's presence or is the subject of dispute, if it does so take place. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2894-2896; Dec. Dig. 688.] Appeal from Circuit Court, Knox County. Action by W. H. Hill against the Carter Coal Company. From a judgment for plaintiff, defendant appeals. Reversed and re manded. J. D. Black and Black, Black & Owens, all of Barbourville, for appellant. Brown & Nuckols, of Frankfort, and Golden & Lay, of Barbourville, for appellee. The facts are as follows: The company employed certain men to undercut coal by means of electrical cutting machines. After the coal is undercut it is the duty of other employés, called "loaders," to shoot or dig down the coal and load it into the cars. This character of work was let out by contract at so much per ton. One G. P. Brooks had the contract at the place where plaintiff was injured. In carrying out his contract Brooks was assisted by plaintiff, Will Gaylor, and W. F. 'Detherage. Plaintiff had had about 15 accident he had been working as a loader in years' experience as a miner. Prior to the another part of the mine. On the morning of the accident he was directed by Brooks to go to work in a room neck. This neck had not been carried a sufficient distance to be called a room. It was only 9 or 10 feet wide, and the work of mining had progressed only for a distance of about 20 feet. Soon after plaintiff went to work he was struck by a large piece of overhanging slate and severely injured. The roof of the neck at this point could have been protected by cross-timbers of jack posts, and it was the duty of the company to do this work. Brooks says that it was his duty to do all straight timbering; that is, set the jack posts. Pete Broyles, the timber man, who was also sued, says that it was his duty to do the cross-timbering, but not set the jack posts. Other witnesses say it was not part of plaintiff's duty either to cross-timber, set the jack posts, or take down the draw slate. Plaintiff also states that just before going into the room neck he was assured by Pete Broyles, the timber man, that the top of the room was sound. Plaintiff also claims that it was his custom to sound the roof when he went to work; that he did so on the occasion in question, and the roof appeared to be solid. Plaintiff admits, however, if he found the slate loose it was then his duty to report it to some one. For the defendant, the mine foreman, York, after stating it was his duty to look after the working places and see that they were safe, testified as follows: "Q. Tell the jury whose duty it was to take down the draw slate. A. It was the contractor, the men employed loading the coal to take it out; or, if it come in large falls, we would send a man to help timber it up and pay them for taking it up." Broyles, the timber man, testified that it was not his duty to look after the loose slate at the face of the coal in the men's working places. It was his duty to cross-timber, but this could not be done within 12 feet of the face of the coal. He further testified that the place where plaintiff was at work was too close to the face of the coal to permit CLAY, C. This is a personal injury case of cross-timbering, and it was no part of in which plaintiff, W. H. Hill, recovered of his duty to set the jack posts, although he defendant, Carter Coal Company, a verdict | admits that he started to get a jack post for sponsibility arising from this duty could not be evaded by a contract requiring the contractor to perform the work. If, upon another trial, it should be made to appear that the contractor's employés were themselves charged with the duty of propping or taking down the draw slate, then the question of whose duty it was to do such work under the particular circumstances of this case should be submitted to the jury. Of course, if it was the duty of the plaintiff and those working with him to do this work, and they failed to do so, and by reason thereof he was injured, there can be no recovery. the purpose of setting it up just shortly be- | it was the duty of the company not only to fore the accident occurred. He further cross-timber, but to set the props, the reclaims that just prior to the accident he warned plaintiff of the dangerous condition of the roof. Gaylor, who was working with plaintiff, and who had formerly been a contractor and assigned his contract to Brooks, said that, under his contract, the company was to do all cross-timbering, but he was to set the jack posts. Detherage, who was also working with plaintiff, testified that it was the duty of the man doing the contract to take down the loose slate; that the man engaged in loading coal is always supposed to take care of the loose, slate. He further said it was the duty of the man who loaded the coal to set the jack posts. Brooks, the contractor, testified that it was not the duty of the company to timber at the place where the slate fell. It was his duty, under his contract, to have the draw slate taken down and to set the jack posts in the working places. [1-3] The accident out of which this action arose occurred in the year 1913, and therefore prior to the amendments of 1914 to the mines and mining statute. Under the statute then in force, it was the duty of the mine owner, after the miners had selected and marked them, to furnish to the miners a sufficient number of caps and props to be used by the miners in securing the roof in their rooms, and at such other working places where by law or custom of those usually engaged in such employment it was the duty of the miners to keep the roof propped. Section 2739b, subsec. 7, Kentucky Statutes 1909. Manifestly, this statute is not applicable where, by custom or rule of the mine, the duty of propping or timbering does not devolve upon the miner himself. Defendant insists that the trial court erred in assuming in the instructions that it was the duty of the defendant to prop the roof, and therefore use ordinary care to make plaintiff's working place reasonably safe. Plaintiff's evidence shows that under the custom of the mine no duty of propping devolved upon him. Defendant insists that the evidence of York, Broyles, Gaylor, Detherage, and Brooks, above set forth, shows that it was the duty of the plaintiff and those working with him to do the propping. We, have carefully considered the evidence referred to, and fail to find any ground for this contention. Brooks says it was his duty, under his contract, to set the jack posts, and a careful reading of the statements of York, Detherage, Gaylor, and Broyles shows that the word "loaders" was used with respect to the contractor, and not with respect to the men employed by him to do the work. On the whole, we think the evidence shows that it was the duty of the company to do the propping, but that under the contract between the company and Brooks this duty devolved upon Brooks. Manifestly, if, under the custom of the mine, [4, 5] Objection is urged to an instruction authorizing a recovery based on an assurance of safety given by Broyles, the timber man. It is urged that Broyles was not in authority over plaintiff and had no right to bind his master by an assurance of safety. The evidence shows that the duty of cross-timbering the rooms devolved upon the company. Broyles was the agent selected by the company to perform this work. He was to do this work when the conditions required, and it must be presumed that he possessed superior knowledge of the danger, or lack of danger, growing out of the condition of the roof. As the duty of cross-timbering devolved upon the master, and as this duty was intrusted to Broyles, Broyles became a vice principal and took the place of the master, and his assurance of safety was, in effect, an assurance by the master. It follows that the trial court did not err in giving the instruction referred to. We conclude, however, that the rule should work both ways. Broyles not only says that he did not give plaintiff any assurance of safety, but distinctly told him that the roof was dangerous. If the plaintiff had the right, on the one hand, to rely on Broyles' assurance of safety, he should be required, on the other hand, to heed Broyles' warning of danger, and the jury should be told, in substance, to find for the defendant if Broyles, the timber man, warned plaintiff of the dangerous condition of the roof and of the danger of working thereunder a sufficient length of time before the accident to have enabled plaintiff, by the exercise of ordinary care, to stop work and avoid the peril. [6] In his argument to the jury counsel for plaintiff used the following language: "(1) You can take from this corporation its hoarded thousands and millions, and you can't pay this man for these wails and pains and agonies that he has suffered. "(2) Go out and bring in a verdict here against this wicked, soulless corporation-this thing that's got no life, that you can't hurt and that can't feel. "(3) Something must be done with this lawless corporation that's left a string of desolation and destruction and maiming from one end of Brush creek to the other, a sample of which you have here before you in Wiley Hill. "(4) Ah, Marsee, how can you, with the hire |