Howard v. Stearns Coal & Lumber Co.

• Decision Date: 06 June 1919
• Citation: 212 S.W. 463,184 Ky. 598
• Parties: HOWARD v. STEARNS COAL & LUMBER CO., LIMITED, ET AL.
• Court: Kentucky Court of Appeals

212 S.W. 463

184 Ky. 598

HOWARD v. STEARNS COAL & LUMBER CO., LIMITED, ET AL.

Court of Appeals of Kentucky.

June 6, 1919

Appeal from Circuit Court, McCreary County.

Action by Lonnie Howard against the Stearns Coal & Lumber Company Limited, and others. From a judgment on verdict directed for defendants, plaintiff appeals. Affirmed.

J. W Rawlings, of Danville, and John W. Sampson, of Whitley City for appellant.

O. H Waddle & Sons, of Somerset, for appellees.

CLAY C.

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 Stearns 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 jack with a wooden sprad used as a lever. After pressing down on the jack, he raised it two notches. He then raised it to the third notch. After remaining there for half a minute, it slipped and flew back, and the end of the lever struck him in the eye. While he did not see any defect in the jack, he stated that it must have been defective or it would not have slipped. James M. Hale testified that the defendant's foreman, John Wright, told him before the accident to be careful with the jack; that one man had got his finger cut off with it. Other witnesses testified that, if the jack was properly caught, it would stand, if the jack was all right, but, if the operator let loose of it too soon, it would fly back. On direct examination Silas Boyer stated that the jack that was used by plaintiff had slipped with him before the accident, but on cross-examination he stated that he was not positive that it was the same jack, and that he did not know whether the slipping of the jack was due to his fault or the fault of the jack.

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...