Louisville & N.R. Co. v. Harrod

• Decision Date: 10 June 1903
• Parties: LOUISVILLE & N. R. CO. v. HARROD.
• Court: Kentucky Court of Appeals

75 S.W. 233

115 Ky. 877

LOUISVILLE & N. R. CO. v. HARROD.

Court of Appeals of Kentucky.

June 10, 1903

Appeal from Circuit Court, Franklin County.

"To be officially reported."

Action by Robert E. Harrod against the Louisville & Nashville Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Ira Julian and Edward W. Hines, for appellant.

J. A Scott and W. C. Marshall, for appellee.

NUNN J.

The appellee filed this action in the Franklin circuit court among other things alleging, in substance, that while he was engaged in delivering a load of tobacco to the appellant, a common carrier for hire, at its depot in Frankfort, Ky. and while lifting the hogshead from the wagon by means of a derrick, he was struck upon the face and chin with the handle thereof, which cut through his lower lip and chin, knocked out several of his teeth, cut his tongue, greatly disfiguring him, destroying his speech, and otherwise permanently injuring him, and that his injuries were the result of the defective, unsafe, and dangerous condition of the derrick which was known to appellant, or could have been known to it by the exercise of ordinary care, in time to have prevented the injury, but was unknown to appellee, and could not have been known to him by the exercise of ordinary care. The appellant, by its answer, traversed the allegations of the petition, and alleged that appellee's injuries were received as the result of his own contributory negligence. This affirmative matter was traversed by the appellee. A trial was had, which resulted in a verdict and judgment in favor of appellee for the sum of $1,000. The appellant's motion for a new trial was overruled by the court, and the case is here on appeal.

The only grounds urged for a reversal are alleged erroneous instructions given by the court, and the failure by the court to give the instruction offered by it on contributory negligence.

The appellant contends that the instructions given by the court might well have been construed by the jury as assuming that appellant had negligently permitted the derrick to be and remain out of repair. Even if the contention of appellant is correct, it was not an error prejudicial to the appellant, for the reason that the evidence both for appellant and for appellee showed that the derrick was out of repair and defective at the time of the injury, and had been in such condition for a long period of time prior thereto.

The evidence of appellee was that he was using the derrick in unloading his hogshead of tobacco, at the time of his injury, in a careful and prudent manner; that by means of the derrick he had raised the hogshead from the wagon, had turned it preparatory to lowering it to appellant's platform, and commenced lowering it. The chain, or something about it, caught for an instant, and then suddenly gave way, and the hogshead went down with such force as to jerk the handle out of his hand and hit him in the face and injure him, as stated.

The appellant introduced one or more witnesses who stated that some time after the appellee's injuries were...