184 Ky. 598 | Ky. Ct. App. | 1919
Opinion op the Court by
Affirming.
Plaintiff, Lonnie Howard, brought this suit against the Stearns Coal & Lumber Company, Limited, and others, to recover damages for personal injuries. At the conclusion of the evidence, the court directed a verdict in favor of the defendants. Plaintiff appeals.
Plaintiff was a driver in the employ of the Steams Coal & Lumber Company. Just prior to the accident, the car that he was driving jumped the track. He sent another driver after a jack to be used in placing the car on the track. The other driver went to Lee Ballou, the boss driver, to obtain the jack. Upon the return of the other driver with the jack, plaintiff began to operate the
To make out his case, it was necessary for plaintiff to show not only that the jack was defective, but that the defect was known to defendants or could have been known to them by the exercise of ordinary care. Even if we concede that the mere slipping of the jack, under the circumstances detailed by plaintiff, was some evidence of its defective condition, there is no evidence tending to show the character of the defect or how long it had existed. Evidence that the foreman knew that another employee had gotten his fingers cut off by the jack did not show any knowledge of any defect in the jack, because that accident may have been due entirely to the negligent operation of the jack. Had the witness, Boyer, adhered to his statement that the jack in question had slipped with him several times before the accident, tins evidence might have been sufficient to show that the defendants could have known of its defective condition by the exercise of ordinary care, but the probative effect of his evidence was destroyed when he stated that he was not positive that the two jacks were the same, and admitted that he did not know whether the slipping of the jack that he used was due to his fault or the defective condition of the jack. We are therefore of the opinion that the court did not err in holding the evidence insufficient to take the case to the jury.
Judgment affirmed.