Appeal from Circuit Court, Knox County
L & N Railroad Vs. Miller
ACTION: Reversed and remanded
Court of Appeals of Kentucky.
Jan. 20, 1898.

The appellee, who was an employe of the appellant, instituted this action to recover judgment for injuries received while employed by the appellant company, and while in charge of, and at work under, Zeb Hall, as agent and foreman for said company. It is alleged, in substance, in the petition, that appellee was directed by said Hall to take hold of and pull the lever and handle of a hand car of defendants, upon which said plaintiff and said Hall, and other hands of said company, were at the time, and to keep in motion and to propel said car, which was then in motion on defendant's said road, moving hands and tools of said company to another point; and, in obedience to the order of said Hall, plaintiff took hold and pulled upon said lever and handle; and the same was at the time loose and out of fix, but was not known to plaintiff to be so; and said lever gave way, and threw plaintiff off of said car, and in front of same; and said car ran over plaintiff before he could escape from in front of same, and bruised, crippled, and crushed plaintiff on the shoulders, body, legs, and arms, and dislocated and sprained plaintiff's ankle joint,-all of which falling from said hand car was caused by the reckless and negligent use of said car while the same was out of repair, and known to be so by defendant's agent, Hall, and from which fall plaintiff was confined to his bed, and not able to be out, for four months, and suffered greatly in body and mind, and sustained permanent injuries, for which he prayed judgment for $1,500. The answer may be treated as a denial, and also the plea of contributory negligence upon the part of plaintiff.

A jury trial resulted in a verdict in favor of appellee for $850, and from this judgment an appeal was prosecuted to the superior court, which court reversed the judgment for the reason that, under the proof in the action, the court should have instructed the jury that if they believed plaintiff knew of the defect, or could have ascertained that fact by the exercise of ordinary care, they should find for defendant. On the return of the case, another trial was had, which resulted in a verdict and judgment in favor of appellee for the same amount, to wit, $850; and, appellant's motion for a new trial having been overruled, it prosecutes this appeal.

Appellant insists that on the second trial plaintiff testified as to material facts different from that to which he testified on the former trial, and that the bill of exceptions on the former appeal so showed, and that he should not have been allowed to testify differently. We know of no rule of law by which a party or witness is precluded from testifying differently from that which the bill of exceptions shows to have been his testimony theretofore. We do not think that the court below erred in refusing the peremptory instruction. According to the testimony introduced by plaintiff, he was entitled to recover in this action. The instructions asked for by appellant were properly refused. The first general instruction given by the court correctly states the law applicable to the case. The second instruction was quite as favorable as, if not more so than, the appellant was entitled to.

It was competent for the defendant to prove the statements made by appellee on the former trial, and in fact it could have proved any statements he made at any time material to the issue; and having proved by D. K. Rawlings that appellee had made statements, as a witness on the former trial, conducing to show that he had some knowledge at some time prior to the accident of the defective condition of the car, or could with ordinary care have ascertained the defect, appellant was entitled to have that testimony of Rawlings go to the jury as substantive testimony (that is, the jury should have been allowed to give it such weight as they thought it entitled to, without any restrictions from the court). In other words the testimony of Rawlings should have gone to the jury as a statement alleged by him to have been made by Miller touching his knowledge of the danger in operating the car at the time of the accident. But the court instructed the jury that they could only consider the testimony of D. K. Rawlings as contradicting the testimony of plaintiff, and that it cannot be considered by them as substantive testimony. For the error of the court above indicated, the judgment is reversed, and the cause remanded, with directions to award appellant a new trial, and for proceedings consistent herewith.


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