Norton v. Louisville & N.R. Co.

• Decision Date: 10 April 1895
• Citation: 30 S.W. 599
• Parties: NORTON v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

30 S.W. 599

NORTON v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

April 10, 1895

Appeal from circuit court, Marion county.

"Not to be officially reported."

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

Wm. E. & S. R. Russell and Lafe S. Pence, for appellant.

H. W. Bruce, Thompson & McChord, and W. J. Lisle, for appellee.

PRYOR, C.J.

There was a nonsuit ordered in this case, and the only question is as to the correctness of that ruling. The appellant was a section land in the employ of the appellee, and, when operating a land car, was thrown off, and injured, by reason, as is alleged of a defective lever. The testimony shows that, prior to the day on which the injury happened, this car lever was out of repair, and so known to be by the appellant; and that on the day of the accident the handle became loose, and the appellant, together with other employés, fastened it, or attempted to do so. It seems this handle was made fast by a nail stuck or wedged in, to hold it in place, and this the appellant knew; and not only so, but when it worked loose helped to replace the nail or to make the handle more secure. While a railway company is bound to furnish safe appliances and tools for the use of its employés, and is liable if it fails to do so, yet this liability is not extended to cases where the defects complained of come within the ordinary risks the employé assumes when he enters the service, or when he is aware of the defect, and still continues to use the machinery. The employé is not required to look for defects, but such as are patent, or known to the employé, and if he still handles the machinery, when fully competent to judge of the danger, he must be held to have assumed the risks. In this case, whether or not the fastening of the handle by the use of a nail was or was not negligence was a question of fact, and, if negligence, the appellant knew it was fastened in that manner, and continued to use it. Judgment affirmed.