| Ky. Ct. App. | May 31, 1910
Opinion op the Court by
Reversing.
Appellant brought this action to- recover of the Cincinnati, New Orleans & Texas Pacific Railway Company and the appellee, the Pullman Company, damages for being deprived of the services of his son, Joel Ward, during the latter’s minority, resulting from the loss of both of his feet and a part of his
According to the evidence the car in question was a new one constructed by the Pullman Company for the use of the railway company, and appellant’s son, who was a brakeman in the railway company’s employ, was directed by the yard foreman to run it into a switch in the Ludlow depot yard from which it was to be. attached to a train for its initial trip. It was further shown by the evidence that appellant’s son by command of the foreman got upon the car for the purpose of controlling its movements with the brake downgrade; and that, upon his taking hold- of and trying to turn the brake, the staff broke at a point 2]/2 feet below the staff wheel and 6 inches above the rachet, which caused appellant’s son to fall on the track in front of the moving ear in such a
It was contended by appellant and indisputably established by the evidence that the brake staff at the point where it broke had never been properly welded by appellee’s servants, that there was an aperture or crack from a sixteenth to an eighth of an inch in width around the weld, and that the aperture or crack had been filled with 'red paint of the color and kind with which the exterior of the car had been painted, which had obviously been applied by the painters of appellee’s shops to conceal its presence. It was shown by the testimony of three blacksmiths that appellee’s blacksmiths were bound to have had hold of the brake staff in welding it and to have known that the brake staff was defectively welded, that the slightest strain upon it would cause it to break, and that any attempt of a brakeman to turn it would break the staff and cause him to fall from the car. We think it legitimate to conclude that .this defect in the brake was known to appellee’s servants by whom the welding was done, that it must also have been discovered while the car was being painted by appellee’s servants charged with that work, who inserted in the rift or crack paint to hide its presence and prevent its discovery by others. It was apparent, however, that the paint did not so conceal the defect in the brake staff as to prevent its discovery by inspection, though one having to take hold of and use the brake as did appellant’s son could not have been expected to discover the defect or know of the danger of using it.
We think it further proper to say that the jury from the facts proved would, if properly instructed,
We think that the facts pleaded and established by the appellant’s evidence bring this case within the rule that one who sells or delivers an article which he knows to be imminently dangerous to life or limb, without giving notice of its dangerous qualities or condition, is liable to any person who suffers an injury therefrom, which might have been reasonably anticipated, whether there was any contractual relation between the parties or not. This rule and its exceptions will be found stated with great clearness. in the leading case of Huset v. J. I. Case Threshing Machine Co., 120 F. 865" court="8th Cir." date_filed="1903-02-26" href="https://app.midpage.ai/document/huset-v-j-i-case-threshing-mach-co-8749756?utm_source=webapp" opinion_id="8749756">120 Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303, and the cases therein cited.
We are of opinion that the jury should have been allowed to determine in this case from the evidence presented whether the plaintiff was' entitled to recover the damages or any part thereof claimed.
Wherefore the judgment is reversed, and cause remanded for a new trial consistent with tide opinion.