McDowell v. Chesapeake, O. & S.W.R. Co.
| Decision Date | 07 June 1888 |
| Citation | 8 S.W. 871 |
| Parties | McDOWELL v. CHESAPEAKE, O. & S.W. R. Co. |
| Court | Kentucky Court of Appeals |
On petition for rehearing. For former opinion, see 5 S.W. 413.
E. D. Walker, Matt O'Doherty, and R. C. Davis, for appellant.
P. H. Darby, for appellee.
This action having been instituted to recover for a personal injury sustained by the appellant while in the employ of the appellee, by reason of defective machinery belonging to and used by the latter, and a demurrer having been sustained to the petition by the court below, that judgment was affirmed. On petition we are inclined to reconsider the opinion delivered, and to now hold that the petition contains a cause of action. The promise by the employer to repair within a reasonable time after notice by the servant of the danger places the risk on the employer. There is no pretense that the appellant used the platform for such a length of time as would evidence the belief that the employer intended to or had violated his promise to repair, or any inference that the defect and danger was so imminent as that one of ordinary prudence would not have continued its use. The judgment below is reversed, and case remanded, with directions to overrule the demurrer, and for proceedings consistent with this opinion.
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Henry Wrape Company v. Huddleston
...because, by its promise to repair the machinery, it induced plaintiff to continue to operate same. 35 Ark. 602; 38 N.W. 632; 16 P. 46; 8 S.W. 871; 15 S.W. 831; 67 N.W. 40 P. 995; 38 N.E. 842; 59 N.W. 531; 54 Ark. 289. Contributory negligence is a question for the jury, and their verdict con......
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McDowell v. Chesapeake, O. & S.W.R. Co.
...alleged did not authorize a recovery. On the appeal the judgment below was reversed and remanded for a trial on the merits. 5 S.W. 413; 8 S.W. 871. When called for trial, defendant filed an answer alleging a want of jurisdiction over the person of the defendant, and on the hearing the actio......