Brooks v. Louisville & N.R. Co.

• Decision Date: 15 January 1903
• Citation: 71 S.W. 507
• Parties: BROOKS v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

71 S.W. 507

BROOKS v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

January 15, 1903

Appeal from circuit court, Washington county.

"Not to be officially reported."

Action by Daniel Brooks against the Louisville & Nashville Railroad Company. Judgment for defendant. Plaintiff appeals. Affirmed.

J. H Thurman and J. W. S. Clements, for appellant.

W. C McChord, Edward W. Hines, and B. D. Warfield, for appellee.

PAYNTER J.

The appellant was a member of a section gang in charge of one Savage as foreman. At the close of the day, as was customary the foreman, together with his force, boarded a hand car for the toolhouse, and when they were ready to start the section foreman told them to "bear down," which meant to go in a hurry. While proceeding at the rate of about eight miles per hour, the "short lever" broke, which threw the appellant in front of the hand car, which ran over him, with the result that one of his legs was broken in two places. He was one of the men propelling the car, with his back toward the course that the car was going. In making this statement the evidence offered by the appellee is not considered because, at the conclusion of plaintiff's testimony a motion was made for peremptory instruction, which was refused by the court. As the appellee's evidence did not strengthen the case attempted to be stated by the appellant, the court, at the conclusion of all of the testimony, gave a peremptory instruction to the jury to find for the appellee, which was accordingly done.

The first question arising is, did the plaintiff offer testimony sufficient to authorize the court to submit the question of negligence to the jury? It is the duty of a master to furnish his servant tools that are reasonably safe for his use. He does not warrant that there is no defect in them, nor does the contract imply such warranty. The master is not liable for defects in the tools which he furnishes the servant for use in his service, unless he, or those intrusted by him with the selection or inspection of such tools, had notice of such defects, or could have discovered them by the use of ordinary care in the selection or inspection of them. This doctrine has been repeatedly enunciated by this court. In order to have made out a case of negligence against the appellee, it was essential that appellant should have shown that there was a defect in the part of the machinery which broke, and which caused it to break, and that the foreman knew it, or, by the exercise of ordinary care, could have discovered it. The case seems to have been tried in the lower court upon the idea that a case had been made out for the jury when the evidence showed that appellant was in the employ of the appellee, and that he was in the discharge of a duty when the lever broke and threw him under the car. It is urged in the brief of counsel for appellant that the law presumes negligence from the state of facts proven in this...