cause an explosion injuring an employé, the attempted to get on the car while in motion, | negligently allowed them to fire them so as to and the conductor had reasonable ground to believe she was in danger of falling from the car, it was his duty to take such steps for her protection as under the circumstances ordinary care required; and, if in holding or jerking her to prevent her from falling from the car he used no more force than reason Where an explosion in a coal mine injuring an employé was caused solely by the negligent manner in which the miners fired their blasts, the employer was not liable, but where the employer negligently failed to exercise ordinary care in regulating the time and manner in which the miners should fire their blasts, and to comply with St. 1909, § 2731, requiring the operator of every mine to maintain for each miner a specified amount of ventilation, the employer occurred but for his negligence. was responsible if the explosion would not have ably appeared to be necessary under the circumstances for her protection, and she was thus accidentally hurt, the law is for the defendant and the jury should so find." On the cross-examination of a witness introduced by the railway company, the plaintiff may show that the witness is an employé of the company, and what his relations to the company are. But other questions as to how he discharges his duty to the company should not be allowed, unless they go to show the bias of the witness. On the return of the case the plaintiff will be allowed to amend her petition if she desires to do so. Judgment reversed, and cause remanded resulting from a want of ventilation, proof that for a new trial. EDWARDS' ADM'X v. LAM. (Court of Appeals of Kentucky. Feb. 10, 1909.) 1. MASTER AND SERVANT (§ 293*)-INJURY TO SERVANT-VENTILATION OF MINES-INSTRUC TIONS. Under St. 1909, § 2731, requiring the operator of every coal mine to maintain for every mine ventilation of not less than 100 cubic feet of air per minute per employé, circulated throughout the mine so as to render harmless the noxious gases therein, etc., an instruction which makes the operator liable for injuries to an employé through a failure to provide a contrivance with power to maintain "abundant supply of air" in the mine is erroneous for failing to comply with the statutory requirement, and for leaving the jury to determine what was an abundant supply of air. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1149; Dec. Dig. § 293*] 2. MASTER AND SERVANT (§ 293*)-INJURY TO SERVANT-EVIDENCE-INSTRUCTIONS. Where, in an action for injuries to a coal mine employé by an explosion in the mine, the evidence showed that blasts should be fired no closer than five minutes apart, and in regular order beginning next to the point where the air current left the mine; that the employer had employed a man whose duty it was to fire the blasts after the miners left; that such man had been absent for a day or two and still was absent on the day of the accident; that in his absence the miners fired their blasts, but there was nothing to show that the mine boss directed the firing thereof-the court must instruct as to the duty of the operator in regulating the firing of the blasts. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 1155, 1156; Dec. Dig. § 293.*] 3. MASTER AND SERVANT (§ 118*)-INJURY TO SERVANT-MINES-BLASTING. Where an operator of a coal mine or the mine boss working under him failed to use ordinary care in regulating the time and manner in which the miners should fire their blasts, and [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 209; Dec. Dig. § 118;* Mines and Minerals, Cent. Dig. § 219.] 5. MASTER AND SERVANT (§ 270*)-INJURY TO SERVANT MINES EVIDENCE ADMISSIBILITY. In an action for injuries to a coal mine employé occasioned by an explosion in the mine the mine boss or the superintendent the day after the accident went through the mine, and found that the ventilation therein was good, was inadmissible. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 917; Dec. Dig. § 270.*] Appeal from Circuit Court, Muhlenberg County. "To be officially reported." Action by James Boyd Edwards' administratrix against J. W. Lam. From a judgment for defendant, plaintiff appeals. Reversed and remanded. Letcher R. Fox and Waddill & Dempsey, for appellant. Belcher & Sparks, for appellee. HOBSON, J. James Boyd Edwards was a miner, working in the mine of the defendant, J. W. Lam, and on November 21, 1907, he was fatally burned by an explosion which occurred in the mine. He died a few days afterward, and this suit was brought by his administratrix to recover for his death on the ground that the statutory provisions for the safety of the mine had not been complied with; it being in effect alleged in the petition that the requirements of the statute as to ventilation had all been violated. An answer was filed controverting the allegations of the petition, and on final hearing there was a verdict and judgment for the defendant. The plaintiff appeals. Section 2731, Ky. St. 1909, among other things, provides: "The owner, agent or lessee of every coal mine, whether slope, shaft or drift, to which this act applies, shall provide and maintain for every such mine an amount of ventilation of not less than one hundred cubic feet of air per minute per person employed in such mine, which shall be circulated and distributed throughout the driven more than 60 feet from a breakthrough or airway, or that the defendant, Lam, on said occasion failed to provide a furnace or other contrivance of such capacity and power as to produce and maintain an abundant supply of air in said mine, and if the jury shall further believe from the evidence that an explosion was caused by the defendant's aforesaid acts or omission, if any, or by any of them, and if the jury shall further believe from the evidence that the said explosion was the direct and natural result of the aforesaid acts or omissions or any of them, if the defendant did or failed to do any of the things above set out, and if the jury shall further believe from the evidence that the plaintiff's intestate was burned in said explosion and his death thereby caused, then, and in that event, the jury should find for the plaintiff such compensatory damages as were thereby caused to decedent's estate, not exceeding $25,000, the amount claimed. And unless the jury shall believe as set out in this instruction, they should find for the defendant. "(2) If the jury shall believe from the evidence that the explosion in which the deceased was burned was caused solely by the negligent manner, if any, in which his co-laborers or any of them fired their shots in said mine or mined coal therein on said occasion, then, and in that event, the jury should find for the defendant." mine in such a manner as to dilute, render | jured the defendant, Lam, caused or permitharmless and expel the poisonous and noxious ted the working places in said mine to be gases from each and every working place in the mine; and no working place shall be driven more than sixty feet in advance of a break-through or air-way; and all breakthroughs or airways except those last made near the working-face of the mine, shall be closed up and made air-tight by brattice, trap-doors or otherwise, so that the currents of air in circulation in the mine may sweep to the interior of the excavations where the persons employed in the mine are at work; and all mines governed by this statute shall be provided with artificial means of producing ventilation, such as suction or forcing fans, exhaust steam, furnaces, or other contrivances, of such capacity and power as to produce and maintain an abundant supply of air." The plaintiff introduced proof on the trial to the effect that the explosion occurred about 4:30 p. m. There was suddenly a sound of a rushing wind like a cyclone, and then a wave of flame swept down the entry, the smoke and flame blowing out of the shaft above ground. That the explosion occurred in this way was not controverted by the evidence, and there was no controversy as to the injury of the deceased, or that he was a miner in the service of the defendant; but there was a sharp controversy as to the cause of the explosion. The proof for the plaintiff was to the effect that the air in the mine was bad that afternoon; that there was a want of ventilation; that two of the entries had been driven more than 60 feet in advance of a break-through or airway; and that the break-not as broad as the statute, and does not throughs which had been closed up as required by the statute had not been properly closed so as to be air-tight or anything like that; that the furnace which was used to produce artificial ventilation had no stack, the stack having been blown down about a month before, and not having been replaced, and that from the want of the stack the furnace had no draft, especially when the wind was blowing as it was that afternoon, and that there was little or no fire in the furnace. On the other hand, the proof for the defendant was to the effect that there was a good fire in the furnace and that the ventilation in the mine was good, and the air good. The defendant also showed that the shots in the mine should be fired about five minutes apart, so that the gases generated by one shot would pass out before another shot was fired, but that on the evening in question the miners had fired off a number of shots immediately in succession and that, when the last shot was fired, the explosion took place, and was what is called a "powder explosion"-that is, it was an explosion caused by gas generated from the shooting off of so much powder in the mine. On this proof the court gave the jury these two instructions: "(1) The court instructs the jury that if they shall believe from the evidence that on Instruction No. 1 is defective, in that it is show that it was the duty of the defendant to maintain in the mine an amount of ventilation of not less than 100 cubic feet of air per minute for each person employed in it, and circulated and distributed throughout the mine in such a way as to render harmless and expel the noxious gases. This is the statutory definition of the terms "an abundant supply of air," and to omit it from the instructions was to leave the jury to determine what was an abundant supply of air otherwise. The instruction is also defective, in that it does not show that it was the duty of the defendant to close up the airways which were not in use by the miners, and there was proof for the plaintiff that the brattices which were put up were defective, and that the air in the mine before the explosion was bad. The instructions were also defective in that they imposed no care on the master in the regulation of the firing of the blasts. The proof shows that the blasts should be fired no closer than five minutes apart, and that they should be fired in regular order beginning next to the point where the air current left the mine, so that the air passing out would take the gas thus generated out with it. The proof also shows that the defendant had employed a man whose duty it was to fire the blasts after the miners all left, but that he "(2) If the defendant or the mine boss working under him failed to use ordinary care in regulating the time and manner in which the miners should fire their shots, and negligently allowed them to fire their shots in such a way as to cause the explosion, when, by the exercise of ordinary care on the part of the defendant or the mine boss, this might have been avoided, and but for this the injury would not have occurred, the jury should find for the plaintiff. "(3) If the explosion was caused solely by the negligent manner in which the miners or any of them fired their shots on said occasion, the jury should find for the defendant; but, if there was negligence on the part of the defendant as set out in No. 1 or No. 2, and also negligence on the part of the miners as set out above, the defendant is responsible if the explosion would not have occurred but for the negligence on his part. been absent for a day or two. In his absence, the miners fired their shots on the day in question as they usually did when they fired them. There was also evidence that the mine boss directed the firing of the shot which caused the explosion, or at least told the miner to fire that shot. If the firing of these shots in an improper way would endanger the miners, it was incumbent upon the master to exercise ordinary care in regulating the manner in which they should be fired, and, if he had knowledge that they were being fired by the miners in the manner in which they were fired on the day in question, it was a question for the jury whether his suffering the shots to be fired in this way was the exercise of ordinary care on his part. Edwards had only been in the mine a week. He had nothing to do with the firing of the shots. It is not shown that he had any notice of the danger. The miners in one room or entry would have little opportunity to know what was going on in other rooms and entries, and it was incumbent upon the master to exercise ordinary care that the work in different rooms should not be so done as to endanger unnecessarily the workmen in other rooms. The second instruction is faulty, in this: That it does not present to the jury the idea that if there was negligence on the part of the other miners, and also negligence on the part of the defendant, the defendant would not be excused although the other miners were negligent, if there was negligence on his part, and but for this the injury would not have occurred. In lieu of instructions 1 and 2 the courted out of the stack, the air from the outside on another trial, if the evidence is the same, will give the jury these instructions: "(4) Unless there was negligence on the part of the defendant as set out in No. 1 or No. 2, and by reason thereof and as the natural and direct result of such negligence the explosion occurred, the jury should find for the defendant." The court allowed the defendant to prove by his mine boss or superintendent that the day after the accident he went through the mine, and the ventilation was good. This proof should not have been admitted. The necessary effect of the explosion was to drive out of the mine the foul air and gas that was in it; for, as the flame and smoke rush rushed in and took its place. The air the next morning was therefore in a radically different condition from what it was the evening before, and the effectiveness of the furnace would depend upon the amount of fire that was in it. The proof for the plaintiff showed that there was little or no fire in the furnace the evening before, and by having a good fire the next morning conditions might have been different. The condition of the air in the mine the next morning would depend upon not only these things, but upon so many other conditions that the evidence is too uncertain to be proper for the consideration of the jury. The defendant. may show, not only what the condition of the ventilation was at the time of the explosion, but what it had been previous to the explosion under similar conditions. But what it was after the explosion was a matter so largely in the control of the defendant that to admit the evidence would be to allow him to make evidence for himself. "(1) It was the defendant's duty to provide and maintain for the mine an amount of ventilation of not less than 100 cubic feet of air per minute per person employed therein, circulated and distributed throughout the mine in such a manner as to dilute and render harmless and expel the poisonous and noxious gases from each working place in it. No working place should be driven more than 60 feet in advance of a break-through or an airway. All break-throughs or airways except those last made near the working-face of the mine should be closed up and made airtight by brattice or otherwise, so that the currents of air in circulation in the mine may sweep to the interior of the excavations where the persons employed in the mine are at work; and the mine should be provided with artificial means of producing ventilation such as a forcing fan, furnace, or other contrivance of such capacity and power as to produce and maintain an abundant supply of We see no other error in the record; but air. Now, if the jury believe from the evi- for the reasons given the judgment is reversdence that the defendant, Lam, failed to per-ed, and cause remanded for a new trial. form these duties or any of them, and by reason thereof and as the natural and proximate result of such failure an explosion occurred NOTE. in said mine, and thereby the plaintiff's intes-ed by the derailment of his engine, alleged to [a] (Ala. 1904) Where an engineer was killtate was burned, and his death was thereby have resulted from a defect in the track, plain of the occurrence and the time certain alleged defective timbers, etc., were examined by the witnesses, changes were made in the track, involving the removal of such timbers therefrom, at and near the place of the accident, for the purpose of identifying timbers found near the track, and described by witnesses as being partly decayed, with timbers that had in part composed the track at the place of derailment when the same occurred.-E. E. Jackson Lumber Co. v. Cunningham, 37 South. 445. [b] (Ala. 1904) Where, in an action for the killing of an engineer from defects in the track, the condition of the rails and timbers of the railroad at the place of derailment, as they appeared shortly after the accident, warranted an inference as to the conditions existing at the time of the accident, plaintiff was entitled to prove such conditions.-E. E. Jackson Lumber Co. v. Cunningham, 37 South. 445. [c] (Ala. 1906) In an action for the death of of a miner, caused by the presence of noxious gases in a mine, where the evidence showed without conflict that there could have been no other cause for the presence of the gases than a blast which had been made at the place of the accident about an hour or so before deceased entered that place, evidence as to the existence of such gases in the place in question about 13 hours after the accident was admissible.Foley v. Pioneer Min. & Mfg. Co., 144 Ala. 178, 40 South. 273. [d] (Ala. 1906) An accident, consisting of a derailment of a car, occurred in September, 1903, and a witness did not examine the track at the point of the accident until March 20, 1905. Held, that he was not then entitled to testify as to the difference in the height of the rails where they joined, in the absence of proof that the conditions were the same when he examined the track as at the time of the accident, though there was some evidence that no changes had been made at all to repair the track since the wreck.-Redus v. Milner Coal & R. Co., 41 South. 634. [e] (Ark. 1886) In an action for the death of a brakeman, caused by defects in a railroad track, evidence of the condition of the track 21 months after the accident is inadmissible.-Little Rock & Ft. S. Ry. Co. v. Eubanks, 48 Ark. 460, 3 S. W. 808, 3 Am. St. Rep. 245. [i] (Ill. 1903) Where, in an action for the death of a fireman by the explosion of a locomotive boiler, a witness had testified that he made an examination of the boiler the evening after the explosion by means of a torch, and carried away a bolt, and testified concerning the condition of the boiler as the result of such examination, it was not error to permit him to testify that on the succeeding day he requested defendant's superintendent of motive power to permit him to examine the same by daylight, and that such superintendent, on ascertaining that witness had previously seen the boiler, and had taken away a portion of it, declined to permit such examination.-Chicago & E. I. R. Co. v. Rains, 203 Ill. 417, 67 N. E. 840. [j] (Ind. 1898) Evidence is admissible as to how an elevator, which caused plaintiff's injury by a defect in its machinery, was operated after the accident, where it was shown that there had been no change in it since the injury.— Sievers v. Peters Box & Lumber Co. (Sup.) 50 N. E. 877. [k] (Iowa, 1888) In an action for causing the death of an engineer in the employ of defendant, the engine having been derailed in consequence of defects in the track, there is no error in permitting a witness to testify as to the condition and appearance of a splice bar, found at the place of the accident, the purpose being to support an argument that it had been substituted for the one originally used.-Worden v. Humeston & S. Ry. Co., 76 Iowa, 310, 41 N. W. 26. [1] (Iowa, 1890) In an action against a railroad company for the death of a brakeman caused by his catching his foot between the rail and the switch rail, evidence as to measurements of the distance between the rails made 14 months after the accident are admissible when accompanied by testimony of the company's station agent to the effect that he knew of no change being made in the position of the rails.-Brooke v. Chicago, R. I. & P. Ry. Co., 81 Iowa, 504, 47 N. W. 74. Scagel v. Chicago, M. & St. P. Ry. Co., 83 [m] (Iowa, 1891) Where, in an action for the death of an engineer caused by the derailing of a train, a witness states that the grade of the track had been raised about a foot since the accident, it is proper to refuse to strike out the evidence, when plaintiff states that the [f] (Cal. 1903) In an action for the death of question was asked merely for the purpose of a servant, owing to the fall of a derrick, a showing what the grade was when the acciphotograph, taken a few days after the accident occurred, and not for any other purpose.dent, showing workmen actually at work repairing the derrick, was introduced in evidence without objection, and a witness then testified that the morning after the accident he visited the place where the derrick was, and saw workmen handling the ties on which the rails had rested to which the derrick had been clamped, and that they were so decayed that when the men carried them away and threw them down some of them broke. It was plaintiff's theory that the accident had been caused by the decayed ties. Held, that the mere fact that the witness stated facts from which the jury might infer that repairs were being made did not render the evidence inadmissible.-Dyas v. Southern Pac. Co., 140 Cal. 296, 72 Pac. 972. [g] (Del. 1895) Where the injury is alleged to have occurred because of the unsafe condition of a building, the condition of the building at the time of the accident is the test, and evidence of alterations made subsequently, or of the present condition of the building, is inadmissible.-Huber v. Jackson & Sharp Co. (Super.) 2 Hardesty, 97. [h] (Ill. 1898) Evidence that, two hours after a train separated, the break in a drawbar connecting the cars was partly rusty, is admissible to show the condition of the drawbar at the time of the accident. Judgment (1897) 72 Ill. App. 207, affirmed.-Chicago & N. W. R. Co. [n] (Mass. 1894) In an action by a servant against his master for personal injuries caused by defects in machinery, where there is evidence that at the time of the trial the machinery was in the same condition as at the time of the accident, evidence that the machine worked perfectly both before and after the accident is admissible to show its condition at the time of the accident.-Tremblay v. Harnden, 162 Mass. 383, 38 N. E. 972. [o] (Mo. 1891) In a suit for wrongful death caused by a defective hand hold on a car, plaintiff can prove the condition of the hand hold and car after the accident.-Gutridge v. Missouri Pac. Ry. Co., 105 Mo. 520, 16 S. W. 943. [p] (Pa. 1893) In an action for injuries alleged to have been caused by a defective brake on defendant's car, testimony of a witness that two days after the accident to plaintiff he tried to hold the same car with the brake, but could not, as the brake wheel would not take effect was admissible.-Mixter v. Imperial Coal Co., 152 Pa. 395, 25 Atl. 587, 31 Wkly. Notes Cas. 400. [q] (Tex. 1892) In an action by an employé against a railroad company for personal injuries caused by the derailment of a hand car that the car was in a defective condition. Held, that it was not error for the court to allow plaintiff to testify that he did not know the condition of the car at the time of the accident, but that he examined it a week or 10 days later, and found it in the condition alleged.Gulf, C. & S. F. Ry. Co. v. Johnson, 83 Tex. 628. 19 S. W. 151. Ir] (Tex. 1894) In an action for injuries to a railroad employé, alleged to have been caused by the negligence of the company in permitting sand to blow and accumulate on the track, testimony that, after the accident, sand carried by the wind accumulated in large quantities on the tracks at the place of the accident, is inadmissible.-Sills v. Ft. Worth & D. C. Ry. Co. (Civ. App.) 28 S. W. 908. [s] (Wis. 1886) Plaintiff's intestate, who was put to work at the bottom of a cistern, was killed by the collapse of the retaining walls. Held, that evidence as to the manner in which the wall was supported after it was rebuilt was properly admitted, since it tended to show the defects that existed in the wall previous to its collapse.-Mulcairns v. City of Janesville, 67 Wis. 24, 29 N. W. 565. WATSON v. COMMONWEALTH. (Court of Appeals of Kentucky. Feb. 11, 1909.) 1. CRIMINAL LAW (§ 1159*)-APPEAL AND ERBOR- - REVIEW QUESTIONS OF FACT-CONCLUSIVENESS OF VERDICT. A conviction, based on the testimony of a single witness, will not be disturbed on the ground that the verdict is against the weight of the evidence. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3074-3083; Dec. Dig. § 1159.*] 2. CRIMINAL LAW (§ 369*)—EVIDENCE OTHER OFFENSES. On a trial for murder in a local option county, it was error to admit evidence as to a sale of liquor by the accused to the deceased and his companion shortly before the homicide and as to a conviction of the accused some time before the homicide for selling liquor without license, where such offenses were not connected with the homicide and neither supplied a motive for it or threw any light upon the question whether it was necessary. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. § 822; Dec. Dig. § 369.*] 3. HOMICIDE (§ 301*)-TRIAL-INSTRUCTIONS. The omission to charge upon defendant's right to kill to protect himself and the members of his family from injury and insult was error, where there was evidence that deceased grossly insulted defendant's wife and other members of his family after entering defendant's home and refused to leave when ordered to go. [Ed. Note. For other cases, see Homicide, Cent. Dig. § 633; Dec. Dig. § 301.*] Appeal from Circuit Court, Lee County. "To be officially reported." December 25, 1907. Shortly thereafter the grand jury of Lee county found and returned in the circuit court of that county an indictment against appellant for the homicide, in which he was charged with the crime of murder. The trial in the circuit court resulted in a verdict from the jury finding appellant guilty of voluntary manslaughter and fixing his punishment at confinement in the penitentiary two years. Failing to obtain a new trial in the circuit court, appellant by this appeal seeks a reversal of the judgment of conviction. The commonwealth introduced but one witness on the trial, Hiram Horn, a cousin and brother-in-law of deceased, who testified: That a short time before the homicide he (deceased) and Ves Lynch stopped at appellant's home on their way to Sparks' store and purchased of him a pint and a half of whisky. From there they went to Sparks' store, about 200 yards distant, where they remained some time, perhaps two hours, and then returned to appellant's house; all being by that time intoxicated. That upon reaching appellant's house Lynch left the witness and deceased and went to his own home. After Lynch left them deceased insisted that witness again go with him into appellant's house, without stating his object in wishing to do so; but witness declined to enter the house with deceased, and the latter entered it himself, witness remaining on the outside. Witness did not see what happened when deceased first entered the house, but heard loud talking, and through the open door saw appellant's wife run across the room once or Witness twice and deceased following her. then went into the house and saw appellant behind a stove with a pistol in his hand and heard him tell deceased if he did not leave the house he would shoot him. At that time deceased, according to the witness' recollection, was in front of appellant and in the direction of the door, and just after appellant said he would shoot the pistol in his hand went off, and when it did so deceased, whose body received the pistol ball, fell out of the door to the ground and immediately died. Witness said he did not see a knife in the hand of deceased, and that he did not have a knife in his hand. Appellant's version of the homicide differed very widely from that of the single witness for the commonwealth. He denied that he sold any whisky that day to deceased or Daniel Boone Watson, Jr., was convicted of to his companions, and said they bought it manslaughter, and appeals. Reversed. Gourley, Redwine & Gourley, J. M. McDaniel, and B. G. Williams, for appellant. James Breathitt, Atty. Gen., and Tom L. McGregor, Asst. Atty. Gen., for the Commonwealth. elsewhere and before coming to his house.. He also testified: That when deceased returned to his house he was drunk and commenced to use indecent and vulgar language and to make indecent proposals to his wife in the presence of appellant, his little daughSETTLE, C. J. The appellant, Daniel ter, a Miss Duke, his nephew Walker Watson, Boone Watson, Jr., shot and killed Daniel and George Durbin; the last three being visiBoone Horn at his (appellant's) residence tors to the family. That, seeing deceased was |