22 Ky.L.Rptr. 327
Court of Appeals of Kentucky.
June 6, 1900.
ACTION: Affirmed.

Action by James Miller against the Louisville & Nashville Railroad Company to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals.

Where plaintiff, in operating a hand car, was injured by reason of the handle becoming loose and turning in the socket, causing him to be thrown from the car, evidence showing that the handle having previously become loose, had, under direction of the section boss, been secured by a nail when a screw would have been proper and much safer, was sufficient to authorize the submission of the case to the jury; there being no evidence to show that plaintiff had any reason to apprehend danger.

This cause is here the third time for review. The two former judgments were reversed for errors of law. 44 S. W. 119. This appeal is from a judgment for $500 recovered by the plaintiff (now appellee) against the appellant for injuries sustained by him by reason of a fall from a hand car which he was helping to operate. It is appellee's contention that the lever or handle by means of which the car was operated was so defectively constructed that it became loose in the socket, and turned and caused appellee to be thrown from the car, which ran over him and seriously injured him. It is the contention of appellant that it was guilty of no negligence, and that if any such defect existed it was unknown to appellant, and could not, by reason of ordinary care, be discovered, and that appellee could, by ordinary care, have ascertained the defect, if any such existed sufficient to authorize a recovery. The chief ground relied on for reversal is that the court should have given a peremptory instruction. It is insisted that the testimony of Hall, the section boss, shows that the handle was secured by a nail being driven at the proper place, and that such was the best way to secure the same. It appears that he was introduced as a witness for the first time in the last trial, and it is contended that his testimony is not contradicted, and that the same must be taken as true. It appears that he was not a skilled machinist. Facts were detailed which tended to show that a screw should have been used, instead of the nail, and that a screw would have been much safer. The evidence tends to show that the handle was comparatively new, and that the last repair was done by one Terrill under the direction of Hall. And there is no evidence tending to show that appellee had any cause to apprehend danger. Taking all the testimony into consideration, we think the evidence entitled the plaintiff to a submission of the case to a jury, and the evidence was sufficient to authorize a verdict. It is also contended that the instruction given is not consistent with the law as announced by the superior court upon the first appeal in this case. We do not think this contention tenable. We have carefully considered the instructions, and we think they are as favorable to appellant as it was entitled to.

Judgment affirmed, with damages.


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