Leatherwood Lumber Co. v. Hall

Opinion of the Cotjet by Judge Dietzman Reversing. In a suit brought for personal injuries received, appellee recovered a judgment against the appellant in the sum of $200. From that judgment this appeal is prayed. Many grounds are urged for reversal, tbe first of which is that appellant’s demurrer to the appellee’s petition should have been sustained. Appellee’s theory of . her ease was that while in tbe discharge of her duties as a servant or employee of tbe appellant, tbe latter bad failed to furnish her a reasonably safe place *120 in which to work, by reason of which she was injured. Her petition, after setting out the formal allegations as to the appellant’s corporate nature, and further averring the facts to show that at the time of her injury she was a servant or employee of the appellant, alleged that through the carelessness of the appellant, in failing to furnish her with a safe place in which to, and safe appliances with which to work, she had been injured. The appellee did not aver that the appellant knew or by the exercise of ordinary care could have known that the place where, or the appliances with which she was working were not reasonably safe, or that she herself did not know that °such place and appliances were not reasonably safe. The lack of these allegations rendered her petition fatally defective. Gibralter Coal Mining Co. v. Nalley, 214 Ky. 431, 283 S. W. 416; Gabbard v. L. & N. R. Co., 206 Ky. 474, 267 S. W. 558. This defect in the petition was not cured by any of the subsequent pleadings, the evidence, or the instructions of the court, and hence the court’s error in overruling appellant’s demurrer to this petition was prejudicial and is ground for reversal. This being true, we do not deem it necessary at this time to discuss or decide the other grounds urged for reversal, and all such questions are reserved. The appeal prayed is granted and the judgment is reversed for proceedings consistent with this opinion.