94 Ky. 292 | Ky. Ct. App. | 1893
delivered the opinion of the court.
The appellee brings this suit against the appellant to recover damages for the loss of a leg, caused by the .gross neglect of the appellant in knowingly having defective machinery for the appellee to work with while in its employment, and of which defect the appellee did not know, and which defect caused the machinery to give way and broke the appellee’s leg. The appellee recovered four thousand five hundred dollars damages for said injury. The appellant has appealed from that judgment.
The appellant traversed the allegation of defective machinery and. negligence. It pleaded the further fact that appellee, before the institution of his suit, accepted ' one hundred dollars in money and an artificial leg in full satisfaction of said injury. The appellant relied on a written contract, which reads as follows:
“ Received from Addyston Pipe and , Steel Com*294 pany the sum of one hundred dollars, in full settlement of all claims of whatsoever kind or character, caused by, or in anywise growing out of, an accident to me, Henry Copple, on or about the 29th day of October, 1889, at pit No. 3, Newport Works, Newport, Ky.
“In. testimony whereof, I have hereunto set my hand, this the 17th of February, 1890.
“Henby Copple.”
“We also agree to.furnish said Henry Copple with a good and serviceable artificial limb.”
The appellee admits the agreement, but says that the appellant procured it from him by fraud, &c. He does not allege mistake as to the contents of the writing. The court instructed the jury in instruction No. 4 that they must find for the appellant, if the appellee, at the time he signed the agreement, “understood and fully assented to the same as a settlement in full of his claim for damages herein.” Instruction No. 7 informs the jury that “the burden is on the defendant to make out its case by a preponderance of proof of the said settlement with the plaintiff under the fourth instruction herein.” The other instructions place the burden upon the appellee as to the allegations of fraud. The instructions, taken together, mean that thé burden of proof was upon the appellant, to show that the appellee “understood and fully assented to the agreement as a settlement of claim” for damages, and that the burden was upon the appellee to show that the agreement was obtained by fraud.
The writing signed by the appellee means that the
The judgment is reversed, and the case is remanded for a new trial.
There is no brief on file for the appellant.
