24 Ky.L.Rptr. 420
Court of Appeals of Kentucky.
June 4, 1902.
ACTION: Affirmed.

Appeal from circuit court, Knox county.
"Not to be officially reported."
Action by James M. Stewart against the East Jellico Coal Company to recover damages for personal injuries.
Judgment for plaintiff, and defendant appeals.

Appellee filed this action to recover of appellant for a severe injury suffered by him while in its service from being kicked in the face by a mule. The jury returned a verdict in his favor for $550. The facts of the case are these. Appellee had worked for the company in June, 1899, and had left its service. He returned in October, 1899, and was then put to driving a mule, getting out the loaded cars of coal from the mines, and taking the empties in as he returned. When the agent who employed him directed him to get the mule, he asked if it was safe, as he had heard that some of the mules kicked when he was at the mine before. The boss answered that it was safe. He took the mule and went to work, and during the day was kicked in the face by the mule, as above stated. The mule, according to the proof introduced by him, was a dangerous and vicious mule. According to the proof for the defendant, the mule would kick when cut with a switch, or if approached from behind without warning, but was otherwise not dangerous It was also shown by the defendant that when appellee went to the stable to get the mule he was warned by several of the hands there that the mule was dangerous, and he answered, in substance, that he could manage him. This warning was repeated by several of the hands during the day before his injury. One man who had been working this mule offered to exchange mules with him. To all these appellee said, in substance, that he knew what he was about, and could manage him The court instructed the jury that if the mule was dangerous and vicious, and was known by the defendant to be such, or if by the use of ordinary care this might have been known by it or its servants, they should find for the plaintiff, but if he knew before he was kicked by the mule that it was dangerous and liable to kick and injure him, and after this voluntarily went on hauling with the mule, he assumed the risk, and they should find for the defendant.

We see no error in these instructions. The only instruction asked by the defendant was substantially that given by the court, except that it used the words, "if the plaintiff was told before he was kicked by the mule that said mule was a dangerous mule," instead of the words, "if plaintiff knew before he was kicked by the mule that said mule was a dangerous mule." The instruction of the court was correct, for the boss had told the plaintiff that the mule was safe. This is well established by the evidence. And when the hands told him the contrary, it did not follow that he was bound to believe them, and not the boss. It was a question for the jury, on all the facts, whether he knew the mule was dangerous. The man who employed appellee to work, and directed him what to do, told him to get this particular mule, and that it was safe. He was the agent of the company in this matter, and his statements bound the company.

On all the evidence, we cannot disturb the verdict of the jury, and we see no error of law in the record.

Judgment affirmed.

Ky.App. 1902.
68 S.W. 624, 24 Ky.L.Rptr. 420


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