Green v. Burns

156 S.W. 1029, 154 Ky. 99, 1913 Ky. LEXIS 11

• Court: Court of Appeals of Kentucky
• Decided: May 28, 1913
• Status: Published

Opinion

Opinion of the Court by

Judge Turner

Affirming.

This is the second appeal of this case, and the opinion on the former appeal will be found in 142 Ky., 710.

It is an action by appellee seeking a recovery of damages against appellant for the alleged negligence of one of appellant’s employees in closing an extension table so as to mash and crush appellee’s thumb.

The former opinion reversed the judgment of the circuit court, and said that a peremptory instruction should have been given because the evidence did not show that the employee knew when he closed the table that her thumb was between the leaves of the table, and did not show any fact from which that might be reasonably inferred, or that by the exercise of ordinary care he could have known her thumb was in position to be injured, and that it was absolutely necessary for plaintiff to show this before she could recover.

On the last trial the failure in the evidence pointed out in the former opinion was duly supplied, the appellee testifying that appellant’s servants saw her hand in position to be mashed when he closed the table.

There is no complaint of the instructions, and in view of this testimony the court properly overruled the motion for a peremptory instruction.

Judgment affirmed.