the intention and purpose of the claimant at, the time of leaving and during his absence. Every case must be determined upon the facts established in evidence; and the potent reason in every instance for subjecting the home in which a debtor has not lived for a long time, rather than exempting it upon a claimed intention of returning thereto, is that it would be a deception and fraud upon the creditor who had extended credit upon the faith of the ownership of the property in which the debtor did not reside. defendant was for losses, if any, that might. result at the end of the transaction. [7] Upon the facts of this particular case, we do not think the court erred in holding that the $1,000 that E. T. Calvert had invested in this property was exempt as a homestead, or that the remaining $600 invested therein was furnished by Mrs. Calvert out of her separate estate, and was not liable for plaintiff's debt. Wherefore the judgment is affirmed. (180 Ky. 668) DAILEY v. LEXINGTON & E. RY. CO. (Court of Appeals of Kentucky. May 24, 1918.) 1. APPEAL AND ERROR 110 ORDERS APPEALABLE-FINALITY-NEW TRIAL-"FINAL ORDER." [3, 4] We have frequently held that the fact the claimant of a homestead voted in a precinct other than that in which the homestead is located is not conclusive evidence of abandonment of the homestead, but is merely a circumstance to be considered in connection with other proof in determining the question of abandonment. Farmers' & Trad-izing appeals from final orders and judgment In view of Ky. St. § 950, subsec. 1, authorers' Bank v. Childers, 150 Ky. 719, 150 S. only, an appeal cannot be taken from an order W. 840, and authorities there cited; and granting a new trial in a common-law action. likewise with reference to the duration of since it is not a final order. the absence from the homestead. American National Bank v. Mathews, 124 S. W. 811, Order.] and cases cited therein. [5, 6] In Brandenburgh v. Rose, 110 S. W. 376, 33 Ky. Law Rep. 585, and in many other cases, we have held that where the owner of a homestead sells it, and with the proceeds buys another, the right to a homestead in the second tract is good against intervening creditors, which does not apply, of course, if in fact the first homestead has been abandoned before the purchase of the second; but the fact that the old home was sold, and the proceeds invested in a new home, in which defendant was actually living at the time it is attempted to subject it, is a circumstance to be considered in determining the question of abandonment. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Final 2. EXCEPTIONS, BILL OF 39(1)-PRESENTA In view of Ky. Stats. § 1016, requiring bills of exceptions to be prepared and presented withof continuous session has power over its judgin 60 days after the order excepted to, a court ments for 60 days after their rendition, and the party need not ask any time within which to present his bill of exceptions, if he desires to do 3. APPEAL AND ERROR 238(1)—REVIEW so within 60 days. MOTION FOR NEW TRIAL. Where plaintiff got judgment, which was set aside and new trial granted, and the second than 60 days after the order granting the new judgment for defendant was rendered more trial, the court would have been without power to set aside its order granting the new trial, but the court on appeal could review the order granting the new trial; the appeal from the final judgment bringing up for review all of the alleged errors pending the proceeding. 4. NEW TRIAL 70-GROUNDS-EVIDENCEINSUFFICIENCY. In servant's action for injuries when struck such that the court was not in error in setting aside verdict for the servant and awarding a new trial. Upon the proof here, we do not think it can be presumed that plaintiff extended credit to the firm of which E. T. Calvert was a member, upon the faith of the ownership of the Owen county land, because it was by locomotive while switching, evidence held sold by Calvert for the purpose of reinvestment in a new home before, or within a short time after, plaintiff began making advancements to the firm of Calvert & Co., and, during the time the advancements were being made, the proceeds of the sale were invested in the house and lot in Carrollton, which defendants had been occupying as a homestead for nearly, or quite, two years before it was ascertained that there would be any indebtedness to plaintiff beyond that which would be satisfied by the firm's tobacco, which plaintiff had in its possession and was holding for sale, although at the time the lot in Carrollton was purchased, but not when the Owen county home was sold, about $5,000 had been advanced by plaintiff to the firm, upon an undertaking which was, in effect, a joint enterprise of a speculative nature, in which the only credit extended to 5. NEW TRIAL 72-VERDICT AGAINST EVIDENCE. While the issue must be submitted to the for insufficiency of evidence, much must be left ting depositions to be read if at the time of the For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes trial, it was error to permit his deposition to be dorsed by the court, and ordered to be made While a party may not impeach his own witness by proof of bad reputation, yet if a witness makes an affirmative statement, prejudicial to the interest of the party producing him, such party may disprove the truth of the statement by showing a prior contradictory statement. 10. TRIAL 140 (1)-QUESTIONS FOR JURYCREDIBILITY OF WITNESSES. In brakeman's action for injury when struck by locomotive, where a fireman in deposition stated that he gave the engineer no come-ahead signal and the deposition was erroneously permitted to be read when the fireman was present, and he thereafter stated that he did give such signal, his statement did not entirely destroy plaintiff's case, but it was for the jury. 11. TRIAL 140(1)-CREDIBILITY OF WITNESS-QUESTIONS FOR JURY. The credibility of witnesses is always a question for the jury. Appeal from Circuit Court, Fayette County. Action by Thomas S. Dailey against the Lexington & Eastern Railway Company. Railway Company. From a judgment for defendant on directed verdict and an order setting aside the original verdict and judgment for plaintiff, plaintiff appeals. Reversed and remanded. A. S. Moore, of Lexington, and J. W. Rawlings, of Danville, for appellant. Benjamin D. Warfield, of Louisville, and Samuel M. Wilson, of Lexington, for appellee. HURT, J. The appellant, Thomas S. Dailey, instituted this action against the appellee, Lexington & Eastern Railway Company, to recover damages for an injury sustained by him, which he claims was caused by the gross negligence of the engineer of one of its trains while in the operation of the train. At a trial of the action he recovered a verdict in the sum of $5,000 in damages, and a judgment in accordance therewith. The court sustained a motion for a new trial and set aside the verdict and judgment upon the ground that there was not a sufficiency of evidence to sustain the verdict. To this order of the court granting a new trial the appellant objected and saved an exception, and at the same time procured an order of the court, directing the official stenographic reporter to make a transcript of his notes taken in the action and to file same in the office of the clerk of the court after same was certified by the court to be correct. Thereafter, and within 60 days from the time the order granting the new trial was made, he prepared and presented to the court a bill of exceptions embracing the proceedings upon the trial and including the bill of evidence, which was approved, and so in a part of the record. The action coming on again for trial, at the conclusion of the evidence offered by appellant the court sustained a motion to peremptorily direct the jury to find for the defendant and upon this verdict rendered a judgment, directing the petition to be dismissed. In due time, the appellant filed grounds for a new trial, which were overruled, and he then prayed and was granted an appeal to this court. Within due time he prepared and presented his bill of exceptions covering the proceedings at the last trial, which was approved and filed and made a part of the record. Upon this appeal having brought up a transcript of the entire record, he seeks a reversal of the judgment against him upon the last trial, and asks that the order setting aside the first verdict and judgment be reversed, and that a judgment be rendered in his favor, in accordance with the first verdict, instead of the latter judgment. (a) The appellee now moves this court to order the bill of exceptions relating to the first trial to be stricken from the record to be considered upon this appeal, upon the ground that when the order setting aside the first verdict was made appellant did not not secure an order to be made at that time, pray nor was he granted an appeal, and did granting him time within which to prepare and present a bill of exceptions, and has not in this court secured an appeal from the order setting aside the verdict at the first trial, and did not, in the circuit court when he moved the court to grant him a new trial after the last judgment, accompany it with a motion to substitute the first judgment for the latter one. [1] 1. It is plain, however, that an appeal cannot be taken from an order in a commonlaw action, granting a new trial. It is not a final order in the action, which either determines the rights of the parties, or, touching the cause of action stated in the pleadings, grants or denies any relief. It is a wellsettled rule that an appeal can be prosecuted only from a final order or judgment upon the merits of the case or the rights of the parties. Kentucky Statutes, § 950, subsec. 1, authorizes appeals to this court from final orders or judgments only of inferior courts. Perkins v. Ogilvie, 148 Ky. 309, 146 S. W. 735; Rodes v. Yates, etc., 151 Ky. 162, 151 S. W. 359; Maxwell v. England, 115 Ky. 783, 74 S. W. 1091; Trade Discount Co. v. Cox, 143 Ky. 516, 136 S. W. 901; Harrison v. Stroud, 150 Ky. 797, 150 S. W. 993; Commonwealth v. L. & N. R. R. Co., 29 S. W. 331, 16 Ky. Law Rep. 484; Ferguson v. Mason, 15 S. W. 15, 20 Ky. Law Rep. 1702. So all the appellant could do, when the order granting the new trial and setting aside the ver dict and judgment on the first trial was made, was to object to the order, save an ex ception, and prepare a bill of exceptions, so that upon a final review of the case it could be determined whether the trial court erred in setting aside the verdict and judgment. The order granting the new trial was only one of the steps taken in the prosecution of the action to its final determination, and is subject to review by this court upon appeal from the final judgment, if a bill of exceptions has been made of the proceedings upon the first trial so as to enable this court to determine whether the order granting the new trial should have been made. [2] 2. The court in which this action was pending was a court of continuous session, and one which has the same power over its judgments for 60 days after their rendition as circuit courts, which have stated terms, have over their judgments during the term. Section 1016, Ky. Stats., prescribes the time within which a bill of exceptions must be prepared and presented for approval in courts of continuous session. It provides that bills of exceptions must be prepared and presented within 60 days after the making of the order excepted to, but that the exceptions taken during the trial need not be noted of record nor reduced to writing, unless by order of the court, until after the trial, and that within 60 days after the judgment becomes final the party excepting shall, unless further time be given him, present his bill of exceptions, but further time may be given to prepare a bill of exceptions, but not beyond 120 days after the judgment becomes final. It will be observed that this statute does not make any provision for obtaining an order granting time within which to pre the new trial, following the first trial, as it was not an order from which an appeal could be prosecuted, and for the further reason that, being a mere step in the course of the action to its final determination, the appeal from the final judgment brings up for review all of the alleged errors pending the action. Ross v. Kohler, 163 Ky. 583, 174 S. W. 36, L. R. A. 1915D, 621; Smith's Adm'r v. Louisville Ry. Co., 174 Ky. 784, 192 S. W. 875; Perkins v. Ogilvie, 148 Ky. 309, 146 S. W. 735; Richards v. L. & N. R. R. Co., 49 S. W. 419, 20 Ky. Law Rep. 1478. The motion of appellee is therefore overruled. (b) This makes necessary to determine whether the court abused its discretion and was in error in setting aside the verdict and judgment upon the first trial. The facts upon which the action was based are that the appellant was a brakeman in the employ of the appellee in the operation of its freight train from Jackson to Lexington, but at the time of receiving the injury complained of he was engaged, with the other members of the train crew, in switching certain cars in the yards of the company at Lexington. On the day of the injury appellant came with a freight train from Jackson to Lexington. The crew consisted of Kinniard, the engineer; Thomas, the fireman; Higgason, a brakeman; Chandler, the conductor: and the appellant in his capacity as brakeman. The train arrived at Lexington about 2 o'clock in the afternoon, and after it was put away in the yards, the crew were set to work switching cars and changing box cars from one side track to another in the yards. Leading off from the main track greater time than 60 days is sought to be off from No. 14 were various other spurs used was a side track called No. 14, and leading had after the order granting or refusing a new trial. The 60 days' time is given by the as side tracks, among which were Nos. 8, 7, statute within which to present a bill of ex-6, and others. The conductor, Chandler, diceptions, and it has been held that the court is without power to restrict the party by an v. sent the bill of exceptions, except when a order to less time than 60 days. Connelly V. Adams, 42 S. W. 1133, 19 Ky. Law Rep. 1084. Adams, 42 S. W. 1133, 19 Ky. Law Rep. 1084. So it seems that a party does not have to ask any time within which to present his bill of exceptions, if he desires to do so, within the 60 days prescribed by the statute. [3] 3. The contention that this court cannot review the action of the trial court in granting the motion for a new trial, because no motion was made in the lower court to rected the appellant to take the crew and to remove 13 or 14 box cars from track No. 7 and to attach to them a box car on track No. 8, and then to shove the entire numNo. 8, and then to shove the entire number of box cars into track No. 7. The appelber of box cars into track No. 7. The appellant as brakeman opened the switch into track No. 7, and the engine was let into that track and coupled to the several box cars there, and pulled them out onto the main track and the main lead track No. 14, when the appellant went to and opened the switch and signaled the engine to push the cars into substitute the judgment upon the first trial track No. 8, which, when done, the car defor the judgment upon the last is equally un- sired there was coupled to the others, and the entire number of cars were then pulled tenable. When the last judgment was rendered, it was at a time, which was more than out onto the main switch, and proceeded past the switch stand at No. 7 track until the last 60 days after the order granting the new trial was made, following the first trial, and car was past that switch stand at a disthe circuit court would have been without tance of two or three car lengths. The appower to have then set aside its order grant-pellant then opened the switch at track No. ing the new trial. Such a motion would then 7. The cars were attached to the front end have been vain, and could not avail any purpose. For the reasons heretofore stated, it was not necessary upon this appeal to have prayed an appeal from the order granting of the engine, instead of its rear, which set the faces of the engineer and fireman toward the rear end of the train. The engineer was upon the opposite side of the engine from the appellant, who was at the switch stand, and, to it he moved the cars. He did not know besides a curve in the track prevented the of the presence of appellant upon the track, appellant from seeing the engineer from the until the witness Morris gave him a stop point where he was, and prevented the engi- signal in a very vehement manner. Morris neer from seeing him.. The fireman, however, testified that he was present and saw appelwas upon the same side of the train as the lant, after opening the switch, give the comeappellant, and could observe him from the ahead signal to the fireman just immediately point where he was at the switch stand. before the cars were started to be shoved Higgason, the brakeman, was on top of the into track No. 7, and that appellant then cars, about five or six car lengths from the stepped upon the switch track and walked engine, and was attending to the duties of forward for two car lengths or further, handling the brakes. All the proof was to when the lead car struck him in the back. the effect that the operations, such as the Kiniard, Chandler, and Morris testified that train crew was then engaged in, were car- they went immediately to the assistance of ried on in the yards by means of signals. appellant, when his injury was discovered, The custom ordinarily was to give signals and, upon being asked by Chandler what had to the engineer when it was desired that the happened, he stated that he had forgotten engine should move, and where it was prac- what track he was walking upon, and that ticable to do so, but that it was the custom the car had come behind and run over him, when it was impractical to give it to the and that it was all his own fault, and that engineer to give the signal to the fireman, he blamed no one except himself. Dr. Bulwhose duty it was then to convey it to the lock testified that appellant made the same engineer, or to give it by one brakeman to statement to him several days after the accianother, who would convey it to the engi- dent. Kesheimer testified that upon the neer, and this manner of conveying signals same evening, and after the injury, appelto the engineer was of frequent occurrence. lant stated that he had given the come-ahead The appellant claims and testified upon the signal to the fireman, and then forgot what trial that after opening the switch at No. 7 track he was walking upon. The deposition he did not give a signal, which authorized of the fireman, Thomas, was taken and read. the engineer to shove the cars back into No. On his direct examination he stated that he 7, either to the fireman, brakeman, nor to the had no recollection of having received a sigengineer, who was not within his sight, but nal from appellant or having communicated that he started across the No. 7 track, so it to the engineer, but on his cross-examinaas to get in between No. 7 and No. 6, for tion he was presented with a written statement subscribed by him, in which he had statthe purpose of there giving to the engineered that the appellant did give him the signal, the "come-ahead" signal to shove the train into No. 7 track; that he started across the track without particularly observing the cars, which were to be shoved into the track, relying upon the fact that the engineer would not move the cars until he should be given a signal to do so, and that, while his back was turned to the cars, the engineer, without having received any signal to move them, negligently did so, when the lead car struck him in the back, knocking him down and passed over him, cut off one of his legs, and greatly injured the other. The action was based upon the the allegations that the engineer, through his gross negligence, moved the engine and shoved the cars into the side track without having received any signal authorizing him so to do, and the appellant, while exercising ordinary care for his own safety, was run over by the cars and injured. The defense was a traverse and a plea of contributory negligence. The brakeman who was upon the cars testified that he did not receive any signal from the appellant to move the cars, and did not transmit any to the engineer, but that he was not looking at appellant nor observing him at all times. The engineer testified that he could not see appellant from where he was, but that the fireman could do so, and was looking in that direction and gave him and that he communicated it to the engi neer. He then stated that he "reckoned" the statement was true. [4] For reasons which will hereafter appear we refrain from any comment upon the weight of the evidence or its conclusiveness in one way or the other, but suffice it to say that, considering it all, the court cannot be said to have been in error in setting aside the verdict of the jury and the judgment based upon it. [5] The rule obtaining in this jurisdiction is that, if there is some evidence, however little, which supports the plaintiff's cause, the issue must be submitted to the jury, but there is no rule obtaining which prevents the court, in its judicial discretion, from setting aside a verdict where it is flagrantly and palpably against the evidence. If a rule obtained which required the court to sustain a verdict, which is supported by a mere scintilla against the overwhelming weight of the evidence, it would amount to the adoption of a trial by form in place of a trial upon the evidence. C. & O. Ry. Co. v. Johnson, 151 Ky. 809, 152 S. W. 962; L. & N. R. R. Co. v. Carter, 66 S. W. 508, 23 Ky. Law Rep. 2020; L. & N. R. R. Co. v. McGary, 104 Ky. 509, 47 S. W. 440, 20 Ky. Law Rep. 691; L. & E. M. Co. v. Gilliland, 72 S. W. 1101, 24 Ky. Law Rep. 2081; C., N. O. & T. P. Ry. Rep. 678; I. C. R. R. Co. v. Long, 128 S. W. I from that place, and supposed that the 890; Hurt v. L. & N. R. R. Co., 116 Ky. 545, 553, 76 S. W. 502, 25 Ky. Law Rep. 755; L. H. & St. L. Ry. Co. v. Hall, 94 S. W. 26, 29 Ky. Law Rep. 584. [6] In disposing of a motion to set aside the verdict of a jury because of the insufficiency of the evidence to support the verdict, much must be left to the sound discretion of the trial judge, as he sees and hears the witnesses, and his judgment setting aside a verdict upon that account will not be interfered with, unless it is clear that his discretion was abused. Hence the contention of appellant that the first verdict should be substituted for the latter one cannot prevail, as this court will not substitute a judgment which has been set aside for one thereafter rendered, unless the reason assigned by the trial judge for his action is erroneous or there is no other legal ground for setting aside the judgment. No other alleged error on the first trial is considered, and no opinion is expressed in regard thereto. was switch had been opened, but that he did not receive any signal to "come ahead" with the train from the appellant, but that he gave such a signal to the engineer. Upon his examination orally by the appellant after having been cross-examined, he was asked if he did not, in the deposition given by him in February, 1916, state that he did not receive nor transmit any signal to the engineer, and answered that he did not remember whether he did or not. It was also shown by him upon the oral cross-examination that since the time of the accident to appellant he had signed four separate statements in writing, in which it was stated that the appellant gave him the come-ahead signal while standing at the switch block at No. 7, and that he transmitted it to the engineer. It is now insisted for appellee that the court erred in permitting any portion of his deposition to be read as his testimony, and that it was incompetent, while the appellant insists that the court erred in permitting the witness to be called and to testify orally, and in not requiring the appellee to read the cross-examination from the depo as is pertinent to the question here, is: "A deposition may be read upon the trial of an issue, in any action, if, at the time of the trial the witness reside twenty miles or more from the place where the court sits in which the action is pending, or be absent from this state. * * or be prevented from attending the trial by infirmity or imprisonment. nesses. * (c) This leaves for determination, however, whether the court was in error upon the last trial in refusing to submit the case to the jury and in requiring of it a verdict in fa-sition. Section 554 of the Civil Code, so far vor of the defendant. On the last trial the only witnesses who were present at the time of the injuries to appellant, who testified, the appellant himself, the fireman, Thomas, and Higgason, the brakeman. The evidence given by the appellant was substantially the same as that given by him upon the first trial, and that of Higgason [7] At the common law, the testimony of was exactly the same as it was embraced in a deposition. In February, 1916, nearly five the witnesses was given orally before the years after the accident, the fireman, Thom-tribunal, whose province it was to decide the as, was confined to a hospital in Lexington, issue; and, in ordinary actions, but for the as the result of a broken limb. The appel- above statute, there would be no authority lant caused Thomas' deposition to be taken, for the reading of the depositions of witas provided in section 554, Civ. Code Prac. Thereafter, at the last trial in December, 1916, Thomas was subpoenaed to attend in person, as a witness, by the appellee. The appellant offered to read the deposition of Thomas, which was objected to by the appellee, who stated that Thomas was then present in court, and asked the court to require that he be called and testify orally before the jury. This was objected to by the appellant. The court then, over the objection of the appellee, permitted the appellant to read the deposition, which appellant did to the extent of the direct examination of Thomas, and then, over the objection of the appellant, permitted Thomas to be called to the witness box by appellee and cross-examined orally. In the direct examination of Thomas in his deposition the witness testified that he had no recollection of either re ceiving a come-ahead signal from the appellant just preceding his injury or of transmitting any such signal to the engineer, but in his oral cross-examination he testified that he saw the appellant standing at the switch block, and saw him then walk away It prescribes the conditions under which depositions may be read on the trial of ordinary actions. The mere reading of it shows the conditions which must exist to entitle one to read a deposition. The conditions which justify the reading of depositions of witnesses are not such as may have existed, but such as existed at the time of the trial. Hence the fact that a witness resides 20 miles or more from the place where the court sits or is absent from the state or is prevented, by infirmity, from attending the place of the trial, at the time his deposition is taken, does not entitle the deposition to be read at the trial, if the condition does not exist at the time of the trial. Couadeau v. American Accident Co., 95 Ky. 280, 25 S. W. 6, 15 Ky. Law Rep. 667; Greeg v. Woods, 3 Ky. Law Rep. 526; Kentucky Utilities Co. v. McCarty's Adm'r, 169 Ky. 38, 183 S. W. 237; Willis v. Bank of Hardinsburg & Trust Co., 160 Ky. 808, 170 S. W. 188; Powers v. Powers, 52 S. W. 845, 21 Ky. Law Rep. 597. Houston, Stanwood, and Gamble v. Smith, 166 Ky. 74, 178 S. W. 1145, was an action at law, in which a deposition of |