W. P. Thorne, of Eminence, and W. O. Jack-Am. Dec. 605, an indictment was found at son, of New Castle, for appellant. James Garnett, Atty. Gen., for the Commonwealth.

For reversal the appellant relies upon the case of Williams v. Commonwealth, 37 Section 129 of the Criminal Code declares S. W. 839, 18 Ky. Law Rep. 667, and others that the time at which the offense was com- of similar import. In the Williams Case an mitted "is not material further than as a indictment was returned on November 12, statement that it was committed before the 1895, charging that Williams "on the

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 109 S.W.-35

In an action for the death of an employé thrown from a platform by a plank thereof slipping, carpenters who had had an experience of from 16 to 40 years in working in timber and with nails, and who possessed a wide range of knowledge, both practical and scientific, upon the matters with respect to which they were questioned, were properly permitted to testify as to the strength of an oak plank such as that used in the platform to sustain the weight of an iron shaft, the quality and size of nails required to securely fasten and hold it, and the weight and force required if the plank was prop erly nailed to wrench it from its supports.

day of November, 1890, in the county and state | 5. EVIDENCE (8 536*)-OPINION EVIDENCECOMPETENCY OF EXPERTS. aforesaid, and before the finding of this indictment, did unlawfully and willfully point a deadly weapon, to wit, a pistol, at F. G. Brinker," etc. It was not charged that the offense was committed within 12 months before the finding of the indictment, and from the date given it would appear that the offense was committed about 5 years before. Of course, where the only time stated in the indictment for the commission of the offense is a particular date, and that date is not within the period of limitation, a demurrer to it should be sustained. In the case at bar, it is charged, the offense was committed within 12 months just before the finding of the indictment, and is therefore unlike the Williams

Case.

The judgment of the lower court is affirmed.

INTERSTATE COAL CO. v. SHELTON. (Court of Appeals of Kentucky. Oct. 2, 1914.) 1. MASTER AND SERVANT (§§ 286, 289*)-AcTIONS FOR INJURIES-QUESTIONS FOR JURY.

In an action for the death of an employé thrown from the platform upon which he was working by the slipping of one of the planks thereof, evidence held to make a question for the jury as to whether the employer negligently failed to fasten the plank, or whether deceased negligently threw an iron shaft from the platform in such a manner as to cause it to strike and loosen the plank.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050, 1089, 1090, 1092-1132; Dec. Dig. §§ 286, 289.*] 2. MASTER and SERVANT (§§ 101, 102*)-LIA

BILITY FOR INJURIES-PLACE TO WORK.

It was the duty of an employer to use ordinary care to furnish an employé a reasonably safe place to perform the work required of him. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192; Dec. Dig. §§ 101, 102.*]

3. MASTER AND SERVANT (§ 235*)-LIABILITY

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2343, 2344, 2347; Dec. Dig. § 536.*]

6. APPEAL AND ERROR (§ 882*)-REVIEW-EsTOPPEL TO ALLEGE ERROR-OPINION EVIDENCE.

Defendant was estopped to object to the introduction of expert testimony by plaintiff, where plaintiff's witnesses were called to refute and contradict testimony given by defendant's witness, who apparently fell short of qualify ing as an expert.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 3591-3610; Dec. Dig. § 882.*]

Appeal from Circuit Court, Knox County. Action by Joe Shelton, administrator, against the Interstate Coal Company. From a judgment for plaintiff, defendant appeals. Affirmed.

See, also, 152 Ky. 92, 153 S. W. 1.

Black, Black & Owens, of Barbourville, for appellant. J. M. Robsion, of Barbourville, for appellee.

SETTLE, J. This action was brought by the appellee, Joe Shelton, administrator of the estate of Lee Hamblin, deceased, to recover of the appellant, Interstate Coal Company, damages for the death of his intestate; it being alleged in the petition that his death was caused by the negligence of the appellant in failing to provide him, as its employé, with a reasonably safe place in which FOR INJURIES-CONTRIBUTORY NEGLIGENCE. An employé had a right to assume that his to perform his work. When killed Hamblin employer had performed his duty to use ordi- was engaged with other employés of the ap nary care to furnish him a reasonably safe pellant in making repairs upon its coal tipplace to work, and he was not required to in-ple, and while standing upon a platform used spect the platform upon which he was required to work for the purpose of ascertaining wheth- in making the repairs and attempting to reer it was reasonably safe, unless its dangerous move an iron shaft of the tipple in order that character was so obvious that a person of orit might be replaced by a larger shaft, a dinary understanding and judgment, situated as he was, could, by the exercise of ordinary plank of the platform upon which he was standing slipped from a girder upon which care, have discovered the danger. it rested, causing him to be thrown to a coal car under and 20 or 25 feet below the platform, which caused his death. The repairing was done at night, and the only light employed was what was furnished by miner's lamps in the caps of the workmen. Appellant's foreman, Trosper, was directing the repairs, and when Hamblin and his assistant Dawson had the shaft on the platform, Hamblin said to Dawson that he would throw it off. Dawson said: "No; it might break it." Hamblin then replied no, that was the way that he and Trosper had done before.

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 710-722; Dec. Dig. § 235]

4. APPEAL AND ERROR (§ 1001*) — REVIEW QUESTIONS OF FACT.

That the evidence is conflicting, or that the Court of Appeals would have made a different finding on the facts, or that in its opinion the verdict is against the weight of the evidence, furnishes no cause for setting it aside unless it is clearly and palpably against the evidence.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3922, 3928-3934; Dec. Dig. 1001.*]

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

and to this Trosper, who was in hearing, said nothing. When thrown by Hamblin the shaft came in contact with the end of the plank which it displaced, and thereby caused Hamblin to fall and be killed. The answer of appellant denied the negligence complained of, and alleged that the death of Hamblin was the result of his own negligence. There have been two trials of this case in the court below. On the first trial appellee recovered of appellant a verdict and judgment for $6,000 damages. On appeal this judgment was reversed for various errors occurring on the trial in the lower court. On the second trial appellee recovered a verdict and judgment against the appellant for $6,000, and the case is again before us for review upon appeal from the last judgment.

The opinion of this court on the first appeal is reported in 152 Ky. 92, 153 S. W. 1, and the following excerpts therefrom will so fully present the issues made by the pleadings and evidence and the salient facts connected with the accident as to render a more elaborate statement of them than we have here given unnecessary.

that certain evidence introduced as expert testimony should have been excluded from the consideration of the jury, because the witnesses furnishing it were not experts, and because the evidence should have been given in chief and not in rebuttal.

[1] The first contention cannot prevail. The evidence introduced in appellee's behalf upon the last trial as to the unsafe and dangerous condition of the platform, caused by the presence thereon of the loose or unsecured plank, and the manner in which the decedent met his death, was substantially the same as was furnished by his witnesses upon the first trial, and the opinion on the former appeal is clear and emphatic in the statement that this evidence was sufficient to take the case to the jury. Indeed, we may add that the fact that the plank slipped from the girder and caused Hamblin to fall of itself furnished some evidence that it was nôt nailed to the platform, and was sufficient to take the case to the jury upon the question of appellant's negligence.

Appellant introduced on the last trial, in support of its defense that the death of "This suit was brought by his [Hamblin's] Hamblin was caused by his own negligence personal representative to recover for his death in throwing the shaft and causing it to strike on the ground that the company was negligent and loosen the plank that produced his fall, in failing to furnish him a reasonably safe place to work, that the planks in the platform all the witnesses who testified on that subwere not nailed, and that the structure was a ject in its behalf on the first trial, and in dangerous one for the purpose for which it was addition a new witness, Blaine Parker, who intended. The proof introduced on the trial Frank conduced strongly to show that Hamblin's fall was not present at the first trial. was due to the plank on which he was standing Burch testified for appellant on the last slipping until the end opposite to the place trial, as he did on the first, that five or six where the shaft was thrown off had slipped off weeks before the death of Hamblin he nailed the girder, and that this plank was not fastened or secured in any way. There was proof for some planks on the tipple platform, and that the defendant that there was a collar on the there were then no loose planks on it, and shaft, also some other attachments, and that this statement was again partially corrobothere was a scar on the end of the plank, indi-rated by his brother. Frank also produced cating that the shaft as it fell struck the plank, and so caused it to fall. There was also proof on the last trial a plank which he said was for the defendant that the planks constituting the eighth plank in the platform at the time the floor of the platform were securely nailed Hamblin was killed. This plank contained with large nails six inches long. * While it is true that Hamblin would not have in one end a nail by which he claimed it been hurt if he had not thrown the shaft off, was fastened to the platform when he reit is also true that throwing the shaft off would moved it during the last trial, which was not have caused any trouble if the plank had more than two years after Hamblin's death. been securely fastened. Trosper, under whom he was working, had done the work in the same Evidently this testimony had no weight with way on a previous occasion, and Trosper, who the jury as, according to all the other witwas in charge of the work, made no objection nesses, there were not eight planks, but only to his suggestion that they should throw the shaft off. It cannot be said, therefore, that he five or six, in the platform at the time of was acting outside of the scope of his duty, and Hamblin's death. And, besides, the nail in the circuit court properly refused the peremp- the plank produced was not rusty or distory instruction asked by the defendant. ** The plaintiff proved by one witness colored, as would have been its condition had [Buchanan] that he was working on this plat- it been driven in the plank two years before, form about a week before the accident, and but a bright new nail, and smaller than those while working there had occasion to move one all the other witnesses agreed had been used of the planks of the platform. He could not in the platform. If there were eight planks state definitely which one, and that this plank was not nailed, but loose. * There was sufficient evidence to take the case to the ju

ry.

*

串

It is insisted for appellant: (1) That appellee failed to prove the negligence charged in the petition, and that appellant was therefore entitled to a peremptory instruction; (2) that the injury was caused by the decedent's own negligence; (3) that the verdict is flagrantly against the evidence; (4)

on the platform when Burch brought this plank into court, it is fairly evident that the plank produced had been placed there and the nail driven in it long after Hamblin's death. The witnesses, professing any knowledge on the subject, said the plank which caused Hamblin's fall was about the middle of the platform; and, while it is true appellant's new witness, Blaine Parker, testified that he saw this plank immediately after

why he could not have discovered the defect or danger, as the platform was shown to have been covered by and its cracks practically filled with coal dust, and his work had to be performed by the uncertain light furnished by the lamps carried in the caps of himself and assistant.

Hamblin's fall, when it was replaced on the, to Hamblin. Indeed, we can well understand platform, and that it had in each end a nail or nails which were bent as though they had been suddenly and violently wrenched from the girders, he was uncorroborated in this by any other witness and flatly contradicted by Buchanan, the present jailer of Knox county, who said he saw the plank when it was seen by Parker, and in fact handed it to Parker; that he then examined it, and there were no nails in it. Buchanan is the same witness who testified on both trials that a week before the death of Hamblin he went upon the platform with a forge to repair the tipple, and that in order to keep one of the four legs of the forge from going in a crack between the planks of the platform he slipped one of the planks, which he found to be loose, against the other.

It is obvious from what has been said that there was no material variance in the evidence heard upon the two trials, and that on the last, as on the first, there was much proof on each side of the main issue; that of appellee being to the effect that the platform upon which the decedent was required to work was, by reason of the loose plank, a dangerous place for the performance of his duties, that the loose plank would not have been moved from its supports in the platform by the shaft coming in contact with it when thrown by Hamblin if it had been properly nailed thereto, and that the negligence of appellant in failing to thus secure the plank was the proximate cause of Hamblin's death. On the other hand, appellant's evidence tended to show that the plank in question was securely fastened to its supports; that the weight of the shaft upon coming in contact with the end of the plank when thrown by Hamblin, was sufficient to have torn it from its fastenings, and that his act in thus attempting to remove the shaft from the platform constituted negligence which so contributed to his death that but for such act he would not have been killed.

On the whole case we see no reason to depart from the conclusion expressed in the opinion on the former appeal that the case should have been submitted to the jury, and, this being true, it follows that in our opinion the trial court did not err in overruling the appellant's motion for a peremptory instruction. It could not properly have been granted, either upon the ground of the failure of proof of negligence on the part of appellant, or upon the ground that the decedent's death was caused by his own want of ordinary care.

[4] Nor is the case one in which it can be said that the verdict is flagrantly against the evidence.

"To say of the verdict that it is flagrantly against the evidence means that it is palpably against the evidence. The fact that the evidence is conflicting, or that this court would have made a different finding on the facts, or that in its opinion the verdict is against the weight of the evidence, furnishes no cause for clearly palpably against the evidence will give setting it aside; nothing short of its being the appellate court authority to disturb it on this ground." L. & I. R. v. Roemmele, 157 Ky. 84, 162 S. W. 547; Empire Coal & Mining Co. v. Mackintosh, 82 Ky. 554; McCoy v. Martin, 4 Dana, 580; Chiles v. Jones, 3 B. Mon. 51; Page v. Carter, 8 B. Mon. 192.

Tested by this rule, no one, familiar with the weight and effect of evidence, can say that the verdict here is clearly and palpably against the evidence.

[5, 6] We are unable to find any sufficient reason for sustaining appellant's complaint of the admission of the evidence furnished by appellee's witnesses McNiel, Hays, and Jackson. They were permitted to testify, in substance, as to the strength of oak plank, such [2, 3] It was manifestly the duty of the as was used in the platform from which the appellant to use ordinary care to furnish decedent fell, to sustain the weight of such Hamblin a reasonably safe place to perform an object as the shaft on appellant's tipple, the work required of him. He had the right the quality and size of nails required to seto assume that this duty had been or would curely fasten and hold such plank, and to be performed by appellant. Hamblin was what weight or force they would have to be not required to make an inspection of the subjected, when properly nailed, to wrench platform before beginning his work for the them from their supports, etc. Before anpurpose of ascertaining whether it was rea-swering as to these matters all three witsonably safe. If, however, its dangerous nesses named appear to have fairly qualified character was so obvious as that a person as experts. They are carpenters and have of ordinary understanding and judgment, sit- had an experience of from 16 to 40 years in uated as he was, could, by the exercise of working in timber and with nails, and it is ordinary care, have discovered the danger not to be denied that their testimony shows in time to have prevented his death, there them to possess a wide range of knowledge, should have been no recovery, for in such both practical and scientific, upon the matcase it would have been caused by his own ters with respect to which they were ques negligence. If the plank was, in fact, un- tioned. But aside from what has been said nailed to its supports, there is no evidence we do not think the admission of the testiwhatever to the effect that this was so ob- mony of these witnesses can be complained vious as that it ought to have been known of by appellant, or that it constitutes revers

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes