142 Ky. 191 | Ky. Ct. App. | 1911
Opinion of the Court by
Reversing.
Tbe appellant was a driver of a coal car in tbe mine of appellee, his outfit consisting of a coal car which was drawn by a mule upon a track laid in and along the mine entry. The main track was also used for hauling cars by electric power, tbe trolley wires being located immediately above the track, and a little to one side of its center. Appellant’s work required him to drive his car along the main track about 1,800 feet, where he passed the switches and the junction of the tracks; and thence his route led him away from the electric wire and into the openings. When the men would start out to work in the morning from the bottom of the shaft, the man in charge of the switchboard would not turn on the electric
Quite a good deal of evidence was offered to the effect that the mule was balky, would refuse to pull, sometimes would become contrary, and would kick when struck. There is also some testimony to the effect that the mule was wild and inclined to jump and jerk the car when at work. Baker had driven the mule a part of the day preceding the accident; and on the morning of the accident he objected to driving the mule. The boss driver, however, told him to go ahead and do the best he could.
As above stated, appellant’s case proceeds upon the theory that the company was negligent (1) in turning on the current, and (2) in giving him an unsafe mule to work with; and that these two acts of negligence, acting in conjunction, brought about the accident and the injury complained of.
The principal instruction given by the court, and the only one which it is now necessary to consider, reads as follows:
“1. The court instructs the jury that if they believe from the evidence that the defendant company’s agent on the occasion in controversy negligently turned the elec
This instruction ignored, entirely, the issue raised and tried as to the unsafeness of the mule, and restricted the appellant’s right to recover to the issue of negligence in turning on the electric current prematurely. In this, we are of opinion, that the court was in error, since the pleadings and the proof raised both questions of negligence, and the appellant was entitled to have both questions submitted to the jury. It is easy to understand how a steady, reliable mule that would keep in the center of the track might not come in contact with the wire, while an erratic or unsafe mule that would get out, of the beaten track would come in contact with the wire and theréby become frightened and cause the accident, as is alleg’ed to have happened in this case.
Furthermore, the instruction permits the appellant to recover only in case he did not know the current was on the wire. This part of the instruction should have been omitted, since the appellant had no will in starting the current, and no control whatever over it after it had been started, and could not have changed his course or conduct if he had known the current was on the wire. He was sent to carry the car over the track under the wire; and after he had started, the company’s agent turned on the current before he got into the “clear” and away from the wire. We are of opinion that appellant’s knowledge or want of knowledge, with respect to the current being turned on by appellee’s servant could not affect appellant’s right to recover, in case appellee’s agent was neg
Wherefore the judgment is reversed for further proceedings consistent with this opinion.