Hoskins v. Louisville & N.R. Co.

• Decision Date: 12 January 1916
• Citation: 181 S.W. 352,167 Ky. 665
• Parties: HOSKINS v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

181 S.W. 352

167 Ky. 665

HOSKINS v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

January 12, 1916

Appeal from Circuit Court, Bell County.

Action by Jesse Hoskins against the Louisville & Nashville Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

N. J Weller, of Pineville, for appellant.

Chas W. Metcalf and J. H. Jeffries, both of Pineville, and Benjamin D. Warfield, of Louisville, for appellee.

TURNER J.

Appellant a section hand employed by appellee, brought this action for personal injuries received while so employed. The petition alleges that he and another section hand were engaged in pulling spikes from the ties on the road by means of a claw bar and spike maul, the plaintiff using the spike maul and his co-worker the claw bar; that while pulling a spike from one of the ties, and using said two instruments in so doing the claw bar was being held by his co-worker and he, in using the spike maul, struck the head of the claw bar therewith when a metal splinter flew from the end of the claw bar and struck him in the eye, causing such injuries as resulted in the loss of the eye. The negligence complained of is that the claw bar so furnished for such work by appellee was defective and unsuited for the work for which it was being used, and that the head of said claw bar was so beaten, battered, cracked, and broken as to make it unsafe for such use.

The defendant denied the material allegations of the petition, and in a separate paragraph pleaded contributory negligence.

At the conclusion of the plaintiff's evidence the lower court directed the jury to find a verdict for the defendant, and from that action of the court this appeal is taken.

The plaintiff's own evidence is that he had had four years' experience as a section hand and was familiar with the use of the claw bar and spike maul and had frequently used them in pulling spikes from ties; that the head or top of the claw bar was battered and spread at the edges from long use; that on the same morning of his injury he and his co-worker had used the same instruments in drawing another spike; that he was familiar with the claw bar and its condition, and saw its condition when it was previously used that morning, as well as at the time of the injury, but that at the time he did not realize that its condition was such as to make it dangerous for use. There is no claim that there was any hidden or latent...