ness, etc.; and he alleged that Wilhoit was never in possession of the land, but William Starnes kept, used, and cultivated it, and thus misled plaintiff until within a year before the suit was instituted. The substance of plaintiff's pleadings is that he did not discover the fraud until within a year before the suit was instituted, and that he could not have discovered it sooner by the exercise of reasonable diligence.

The averments in plaintiff's pleadings to which we have referred are sufficient. Fritschler, etc., v. Koehler, etc., 83 Ky. 80; Cavanaugh v. Britt, 90 Ky. 273, 13 S. W. 922. Counsel for appellee relies upon Fritschler v. Koehler, because the court held the facts stated by the plaintiff in that case were not sufficient to avoid the statutory bar of five years, as the plaintiff held the note which was the basis of the action as assignee, and therefore the averment that he did not discover the fraud within five years before the commencement of the action, or could not have done so by the exercise of ordinary diligence, was not sufficient, because "the cause of action might have accrued by reason of the discovery of his assignee of the alleged fraud before he assigned the note to plaintiff."

Counsel for appellant relies upon Cavanaugh v. Britt, wherein it was held that the averment in the reply that he "did not discover the fact until within five years before the bringing of the action was insufficient." It was then held that it was incumbent upon him to make the additional averment that he could not have made the discovery by the exercise of reasonable diligence.

Where a person fraudulently conveys his property to another, the deed which is made and placed upon record is not constructive notice to creditors. Chinn v. Curtis (opinion delivered Feb. 10, 1903) 71 S. W. 923.

In this case Wilhoit never lived upon the land or exercised ownership over it until within less than a year before the institution of the suit. Title had been taken to Allphin, who conveyed it to Wilhoit, and there was nothing to put the appellee on inquiry.

We think, under all of the circumstances in this case, that it should be held that appellee could not by the exercise of reasonable diligence have sooner discovered that Starnes had paid for the land, and had the deed made to his son-in-law, Wilhoit. Judgment is affirmed.

LANGDON-CREASY CO. v. ROUSE. (Court of Appeals of Kentucky. March 24, 1903.)

SERVANT INJURY DEFECTIVE GASOLINE LAMP EVIDENCE-ADMISSIBILITY - SUF

FICIENCY-ABSENT WITNESS-CONTINUANCE -DUTY TO KEEP APPLIANCES SAFE.

1. In an action by a servant for injuries from being burned by a gasoline lamp furnished by the employer, evidence by the president of the employing corporation that he had purchased a

large number of lamps of the same kind at the time he purchased the one causing the injury. and had been assured by many persons who were using them that they were safe, that he had tested them and found them so, and had no knowledge that they were dangerous, was admissible.

2. In an action by a servant for injuries from being burned by a gasoline lamp, furnished by the employing corporation and alleged to be defective, defendant's attorney made affidavit. in support of a motion for a continuance, that the president of defendant intended to appear as a witness and testify that he had made investigations, before purchasing the lamp, leading him to believe that the lamp was safe, but had been called to the bedside of his dying mother. Held, that the refusal of a continuance

was error.

3. In an action by a servant for injuries from being burned by a gasoline lamp furnished by the employer, evidence considered, and held to require submission to the jury of the issue whether the lamp was defective.

4. It appeared that plaintiff was the manager of one of a large number of retail stores owned by the employer, and had full charge thereof, being visited only occasionally by defendant's auditing agent to take stock, etc. Held, that it was not defendant's duty to maintain the lamp in a safe condition.

Appeal from Circuit Court, Grant County. "Not to be officially reported."

Action by Ella Rouse against the LangdonCreasy Company. From a judgment for plaintiff, defendant appeals. Reversed.

A. G. De Jarnette, Wade Cushing, and T. L. Edelen, for appellant. W. W. Dickerson and O. H. Hogan, for appellee.

BURNAM, C. J. This suit was brought by the appellee, Ella Rouse, against the appellant, the Langdon-Creasy Company, to recover damages for injuries sustained by her in lighting a gasoline lamp in the storehouse of appellant at Williamstown, Ky., on the 22d day of March, 1901.

The record discloses that appellee had been in the employ of Langdon & Creasy, a partnership, as manager of their grocery store located at Williamstown, in Grant county, from some time in October, 1900, until the 7th day of March, 1901. On that day the store was transferred from the partnership of Langdon & Creasy to the Langdon-Creasy Company, a corporation organized under the laws of this state. After the transfer of the store to the new corporation, appellant continued in its employ as general manager, having authority to employ a porter, and, when the necessities of the business required it, additional clerical assistance. The headquarters of the corporation was in Cincinnati, Ohio, and they owned and operated quite a number of similar stores located at different points in the state of Kentucky. The gasoline lamp which it is charged occasioned the injury had been used for lighting the store for several months previous to the date of the accident, and had been under the special management of the appellee. It also appears that she had clerked in the store belonging to Langdon & Creasy at Eminence,

Ky., for some months previous to her transfer to Williamstown as manager of the store there. The Eminence store was lighted in the same way, and she had observed the operation of the lamp there, although not specifically charged with any duty in connection therewith. It was also shown that some time in November, shortly after taking possession of the store as manager, she complained to appellant that the lamp would not light, and at their instance it was forwarded to the manufacturers at Cincinnati for examination; and that on November 25th it was returned by them to her, with a letter in which they say they could find no trouble with the lamp, and at the same time inclosed to her printed instructions as to its management. This letter wound up with these words:

"The instruction on the first page of the circular carefully followed will give you perfect success. The whole thing in a nutshell is just this: Put two quarts of gasoline in the bowl, screw the filler tap on tight, attach the pump to the air valve, open the thumb screw two or three turns, and pump in twenty-five or thirty strokes of the pump. Before pumping in the air, see that the light valve is firmly closed. Now heat the generator with the alcohol torch as directed, then open the light valve, still holding the lighted torch above the top of the chimney. In about fifteen seconds the gas will form; pass around the gas tube to the burner, where it will light from the torch you are holding at the top of the chimney. All this is only a brief repetition of the directions on the circular, which if you will read and carefully follow, you will have no trouble.

"Very truly yours,

"The Perfection Burner Co., "A. B. Tremer, Manager." Whilst these instructions appear somewhat confusing, it is very easy to understand them when we have the lamp itself before us, and for purposes of illustration a photographic copy of the lamp, filed with the brief of counsel for appellant, is filed with the opinion. The bowl of the lamp holds about six quarts of gasoline. It has two openings, one indicated by the letter B, the other by the letter C. The lower end of the gasoline tube at the left of the lamp is open near the bottom of the bowl. At A is a valve, which permits the gasoline to flow into the metal tube, D. The funnel encircles the end of the gas tube, and into which vaporized gas flows, which furnishes the fuel for the light. The instructions require two quarts of gasoline to be poured into the opening in the side of the bowl at B. At C is a valve which is closed by a screw, and upon the tube projecting therefrom the air pump is attached. The instructions direct that the gasoline should always stand below the opening at C. The air pressure forces the gasoline up the gas

oline tube to the valve at A. The directions require that the hollow tube, D, should be heated by a lighted sponge saturated with alcohol, before the valve at A is opened. When the liquid gasoline is forced into the hot tube it is converted into gas, which is carried across the open space between the tube, D, and the gas tube at the right of the lamp, and from this point finds its way through the gas tube to the burner, where it is ignited.

The negligence in connection with this lamp with which appellant is charged by appellee is that the appliance was new to her, and that she was not familiar with its operation and management; that she did not know that it was dangerous; that appellant knew it was unsafe and dangerous and likely to explode, and failed to acquaint her with these facts and the risks and hazard attending its lighting and use. Appellant denied that the lamp was dangerous, or that its management was difficult to understand, or that appellee did not thoroughly understand its management, and had not received full instruction with reference thereto, and alleges that she had been carefully instructed with reference to its management; that she was their manager in conducting the store; and charged that the injury resulted from her own negligence in disregarding the instruction given her with reference to its management, and also charged that it was the duty of the porter to light the lamp. A trial before a jury resulted in a verdict for plaintiff for $2,500, which we are asked to reverse upon several grounds: First, upon the calling of the cause for trial the appellant moved for a continuance, and in support of the motion filed the affidavit of one of the attorneys, in which he says that H. C. Langdon, the president of the corporation, and who resided in Cincinnati, had expected to attend the trial and testify as a witness, but that on the day before he had been called to the bedside of his sick mother, who was reported to be dying; "that he would testify that he purchased the lamp, with about 60 others, for the use of the various stores owned by Langdon & Creasy; and that, previous to and at the time of the purchase, he had been assured by large numbers of persons who were using them that they were perfectly safe and free from danger; and that he had tested and used them in many places and by many employés, and had always found them perfectly safe; and that neither he nor any member of the firm had been advised of any danger or hazard in lighting them previous to the accident complained of." The trial judge struck out of the affidavit the facts recited above, and permitted the rest of the affidavit to be read as the deposition of the absent witness, and then overruled the motion for a continuance. We are of the opinion that the trial court erred in refusing to allow evidence to show that

appellant, before purchasing the lamps for use in the store, had acquainted himself with its character, operation, and safety; and he was also entitled to show exactly what steps he had taken in this regard. Besides, we think it is apparent that the presence of appellant before the jury to explain these facts would have been very much more effectual than the mere affidavit of his attorney. And it seems to us that the dying condition of his mother was a good cause for his nonattendance at the trial. As said by this court in Peebles v. Ralls, 11 Ky. 26, in deciding the diligence necessary to be observed by suit

ors:

"We should not altogether lose sight of the sympathies of our nature, and require a father or husband to abandon his child or wife at the moment of apprehended death for the purpose of attending the trial of a pecuniary contest." The rule, it seems to us, also applies to the case of the mother. We are therefore of the opinion that the trial court erred in not granting the continuance, and also in excluding, as incompetent evidence, the portions of the affidavit which were stricken out.

It is difficult to determine from the testimony whether the accident was the result of some defect in the lamp or negligence on the part of appellee. No one was in the store when it occurred. She testifies, in substance, that when she attempted to pump air into the reservoir, she discovered that the cylinder was too full, as the gasoline ran out of the pump tube; and that she thereupon poured out of the lamp two pints of gasoline, and took them upstairs, and poured them into the gasoline reservoir, and that when she returned she wiped the gasoline off the lamp; that she then pumped air into the lamp as directed, and applied the alcohol torch to the generator until it was hot; then opened the lighting valve at A to let the gasoline flow into the generator, and continued to hold the torch under the generator until it was burned out, but that it did not light; that she then turned the gas off, waited until the generator got cold, and took the same steps over again; that again the lamp failed to light; that, for the third time after the generator got cold, she pumped in air, heated the generator, and, when she attempted to light it, a quantity of "stuff" came out, and a little blaze fell on her jacket and skirt; that she did not know what caused it, but began to scream for help and try to extinguish the flame. Those who ran to appellee's assistance found the lamp burning all right on the counter, and the alcohol torch lighted upon the floor. Different theories are advanced as to the cause of the accident. Counsel for appellee says that it is clear from her testimony that the liquid gasoline had free passage to and through the generator, but that the gas tube on the right of the cylinder was so obstructed that the gas could not pass through it to the burner,

and was therefore set free and permeated the atmosphere until it reached the torch, when it ignited. The fact, however, that the lamp was burning all right after the accident seems inconsistent with this theory, as no sufficient explanation is given why the gas, immediately after the accident, should have passed through the gas tube all right to the burner, if, as contended, it was obstructed. Besides, it is perfectly apparent from an examination of the lamp that it is easy to remove this gas tube and to have it cleaned out, if it was so obstructed. Counsel for appellant, on the other hand, in speculating as to the probable cause of the accident, says that appellee either failed to pump in enough air to force the gasoline through the gasoline tube, or that she allowed the gasoline to be forced into the generator before it was hot enough to convert it into gas, and that, when the generator did get hot enough to vaporize the gasoline, it blew the liquid gasoline through the tube, D, in liquid form, and some of this gasoline fell upon the clothes of appellant and was ignited with the alcohol torch. This theory is, however, directly contrary to the sworn testimony of appellant. Under this state of fact, the question of negligence was for the jury, and we think the court properly refused the motion for a peremptory instruction.

Upon the trial, defendant produced before the jury as an expert witness one of the officers of the corporation engaged in the manufacture of the lamp, and asked that he be permitted to practically demonstrate before the jury the manner of filling and lighting the lamp. This testimony was objected to on the ground that the witness had had the possession of the lamp for several hours before the proposed experiment, and that it might not be in the same condition as when the accident occurred. For this reason the court refused to allow the experiment to be made in the presence of the jury. The admissibility of testimony of this character is one that should be left largely to the sound discretion of the trial court. Judge Thompson, in his work on Trials, vol. 1, § 620, says that: "Experiments in the presence of the jury are generally discountenanced, owing to the liability of the jurors being imposed upon by skillful manipulation or jugglery. But experiments coming within the range of ordinary knowledge may well be permitted." In the note to Leonard v. Southern Pacific Co., 15 L. R. A. 221, the annotator says: "This inay be, perhaps, regarded as a correct theoretical statement of the rule, and, if it is adopted, the conflict will come in determining what matters come within the range of ordinary knowledge or experience, and what not." In view of all the testimony in this case, we are not prepared to say that the trial court erred in refusing to allow this demonstration to be made by the expert in this particular case.

In instruction "a," given to the jury, they were told: "That it was the duty of the defendant to furnish the plaintiff a reasonably safe lamp and appliance for lighting the store, and that the plaintiff had the right to rely upon the defendant to provide a reasonably safe and suitable appliance for that purpose, and to maintain it in a reasonably safe condition, and to instruct the plaintiff in the proper use of same, and to warn her of any danger to her in lighting it, if there was any; and it was the duty of the plaintiff to exercise ordinary care in lighting and using the same to avoid danger. But if the jury shall believe from the evidence before them in this case that the defendant negligently and carelessly furnished to the plaintiff a lamp or appliance for lighting their store that was not reasonably safe to light or use, and failed to instruct her in the proper use of the same, or to warn her of the danger, if any, to her in lighting same; and that the plaintiff did not know, and could not by ordinary care discover, the danger in lighting same; and that, while the plaintiff was exercising ordinary care in attempting to light the same, said lamp did expel from it burning gas or gasoline, which ignited and burned the face, hand, neck, and clothing of the plaintiff— then the law is for the plaintiff, and the jury should find for the plaintiff such damages as will compensate for the burning, suffering, loss of time, any permanent impairment of her ability to earn money, and such sum as she was compelled to expend for medical attention, nursing, and board, not exceeding in all $5,000, the amount claimed in the petition."

It was the duty of the defendant to have furnished a reasonably safe lamp for lighting their store, and if the lamp furnished was unusual in its operation, or dangerous in its possibilities, to have instructed the plaintiff as to its proper use, and warned her of possible danger that might arise in lighting it. The instruction quoted supra was misleading in requiring them to have maintained the lamp in good condition. Appellee was the manager of appellant's business at Williamstown, and it was her duty to see that the lamp was kept in good condition, and, if it failed to perform its office, to have it set aside and use the coal-oil lamp provided for such an emergency. The testimony shows that it was only at intervals that the auditing agent of the defendant corporation visited the store for the purpose of taking stock and auditing the accounts of appellee as manager. All responsibility for the proper management of the store was upon her, and she should not be allowed to shift this responsibility to her employers, who lived in a distant city, and could have had no personal knowledge as to whether the lamp was maintained in good condition or not. Their duty was discharged when they furnished a safe appliance. Her duty required that it should be

maintained in the same order, or its use discontinued. This principle is fully illustrated in the following cases: Sullivan's Adm'r v. Louisville Bridge Co., 72 Ky. 81; Alexander v. L. & N. R. R. Co., 83 Ky. 589; Bogenschutz. v. Smith, 84 Ky. 330, 1 S. W. 578; Kelly v. Barber Asphalt Co., 93 Ky. 363, 20 S. W. 271; the Lexington and Carter County Mining Co. v. Stephens' Adm'r, 104 Ky. 502, 47 S. W. 321; Hood v. Argonaut Cotton Mill Co. (Ky.) 62 S. W. 1043.

It therefore follows that the judgment appealed from must be reversed, and cause remanded for proceedings not inconsistent with this opinion.

ILLINOIS CENT. R. CO. v. WALDROP. (Court of Appeals of Kentucky. March 25,

1903.)

RAILROADS-PERMISSIVE USE OF RIGHT OF WAY REVOCATION OF LICENSE - NOTICESUFFICIENCY - TRESPASSERS INJURY LIABILITY OF COMPANY.

1. The permissive use of right of way of a railroad company as a passway does not confer on the public a right to its use for such purpose, but the company may close the passway at any time.

2. Where a railroad company had for some years allowed the public to use its right of way as a roadway, but subsequently obstructed such roadway by a fence near one end, and two wires strung across the road, attached to posts at the sides and middle, at the other, such obstructions were sufficient notice to the public that the license to use the road had been withdrawn.

3. After a railroad company had given notice of a revocation of a license to use its right of way as a road, by obstructing the same, it was not bound to continue the obstructions in a safe and suitable condition, beyond such time as was reasonable for the purposes of notice.

4. Those who use a roadway over a railroad company's right of way after permission for its use has been withdrawn, and sufficient notice of the withdrawal has been given, are trespassers.

5. Where obstructions erected by a railroad company across its right of way, which had been used by the public as a road, had remained in place for four months, and three months more elapsed when plaintiff was injur ed in attempting to ride over the former road, sufficient time had elapsed to constitute notice to the public of the revocation of the license to use the road, and so preclude a recovery.

Appeal from Circuit Court, Graves County.

"Not to be officially reported."

Action by W. F. Waldrop against the Illinois Central Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

J. M. Dickerson, Pirtle & Trabue, and Robertson & Thomas, for appellant. J. C. Speight and M. B. Holifield, for appellee.

HOBSON, J. The county road leading from Mayfield to Pryorsburg crosses the track of the Illinois Central Railroad Company about a half mile from Pryorsburg in a direct line, and makes a considerable crook to the west. To avoid this, for many years.

both the wires were mashed down near the ground; and persons occasionally, not knowing that the passway was closed, drove over them, and when they got further down, and saw the fence at C, turned around and came back. In this way the wires were mashed pretty close to the ground. A cow could step over them without trouble. The proof for appellant showed that the distance from the cedar post to the fence was 30 feet or more; that a nail was driven into the post straight, and the wire was simply laid upon it; and that by reason of a rise in the ground the fence at C could not be seen from B. It also showed that on December 22d appellee, who was an officer riding in pursuit of a fugitive whom he wished to arrest, undertook to pass along the passway from A to D, not observing the wires at B or the fence at C. There was another man with him, who was riding in front. They were going in a gallop or lope, and appellee's horse stumbled over the wire, throwing him to the ground and falling on him, so as to inflict a serious injury, to recover for which he brought this suit against the railroad company.

The proof for appellant showed these facts: With a view to stop this passway, the railroad company in May, 1900, erected a substantial fence across it at the point C, built of wire, with plank at the top. The fence was plainly visible to those entering the passway at the south, but it could not be seen so plainly by those entering it at the north end, although it could be seen by one on horseback, if he looked; the distance being something like a half mile. To keep people from going down in there, the company at the same time placed two wires across the passway at the point B, near the north end. One of the wires was fastened to the garden fence of the adjoining proprietor, and ran across the passway to a telegraph pole, and was fastened to it. This wire was 4 feet high, and in the passway a small cedar post was planted 3 feet deep, and the wire was also fastened to it. The distance from the telegraph pole to the post was 16 feet, and from the post to the garden fence was also about 16 feet. Another wire was then fastened to the telegraph pole, about 2 feet lower down, and also fastened to the post in the passway. The end of this wire was not fastened to the fence, but the bale of wire was just dropped over the fence, on the idea that the weight of the bale would hold it at that end. The top wire was fastened with a staple, and the other with a wire nail (No. 6 or 8) driven in and bent over to make a kind of staple out of it. The wires remained up as they were fastened until some time in September, 1900. After this, from the trespassing of stock, or some other cause,

The acquiescence on the part of a railroad company in the use of its right of way as a passway does not confer authority or right. The use is merely permissive, and the company may close up the passway at any time. Brown's Adm'r v. L. & N. Railroad, 97 Ky. 228, 30 S. W. 639; Embry v. L. & N. Railroad (Ky.) 36 S. W. 1123; Thornton v. L. & N. Railroad (Ky.) 39 S. W. 694; C. & O. Railroad v. Perkins (Ky.) 47 S. W. 259. Appellant, therefore, is not liable for placing the obstructions across the passway for the purpose of closing it up, unless in doing so it violated some duty to appellee. The passway ran over its property, and in closing it up it had the same right and was under the same obligation as any other landowner. The two wires placed across the passway at B, with the cedar post set firmly in the traveled way, and the wires fastened to it, were sufficient, as originally put up, to apprise any one that this way was closed. But for something like three months before the injury these wires had been down, and it is insisted for appellee that it was incumbent on the railroad company to put the wires up and keep them up. We are referred to authorities holding that where the owner, after allowing the public to drive across his property for several years, stretches a barbed wire across the track, without other notice that the license to use the road has terminated, he is liable for an injury to a traveler who is injured after dark. Carskadon v. Mills, 5 Ind. App. 22, 31 N. E. 559; Morrow v. Sweeney, 10 Ind. App. 626, 38 N. E. 187. Authorities are also cited to the effect that, while mere permission to cross the premises will not place any duty upon the owner to make them safe for this