Eckart v. Kiel

• Decision Date: 03 October 1913
• Citation: 123 Minn. 114,143 N.W. 122
• Parties: ECKART v. KIEL (two cases).
• Court: Minnesota Supreme Court

123 Minn. 114

143 N.W. 122

ECKART

v.KIEL (two cases).

Supreme Court of Minnesota.

Oct. 3, 1913.

Appeal from District Court, Freeborn County; Nathan Kingsley, Judge.

Actions by John Eckart in behalf of his son, and by John Eckart individually, against J. P. Kiel. Motions for dismissal granted, and motion for new trial denied, and plaintiffs appeal. Reversed, and new trial granted.

Syllabus by the Court

Defendant had dynamite caps in his possession upon his farm. He sold the farm to plaintiff. Some time later plaintiff's minor son was injured by the explosion of a dynamite cap, which, it is claimed, was picked up by a child in the barnyard. Under the testimony, which is fully stated in the opinion, it is held that the court should have submitted to the jury the question whether the cap which caused the injury was one of those defendant had in his possession.

The court should have submitted to the jury the question whether negligence on the part of defendant was proven.

Defendant's testimony as to the disposition he made of the dynamite caps was not directly contradicted. His testimony as to other material matters was flatly contradicted. His testimony, where uncontradicted, cannot be held true as a matter of law. Its credibility was for the jury.

If the jury should believe that he gave a false account of the disposition of these caps, they would be at liberty to infer that the truth would be unfavorable to him. Morgan & Meighen, of Albert Lea, and Sasse & French, of Austin, for appellant.

Dunn & Carlson, of Albert Lea, for respondent.

HALLAM, J.

Emil Eckart was injured by the explosion of a dynamite cap, on December 27, 1910. These actions were brought to recover damages, on allegation that the injury was caused by the negligence of defendant. The actions were tried together. At the conclusion of plaintiffs' testimony the defendant moved for a dismissal of each case, on the ground that there was a failure to prove a cause of action. The motions were granted. Plaintiffs moved for a new trial. This was denied, and plaintiffs appeal. The only question on this appeal is whether the evidence made out a case for submission to the jury as to the liability of the defendant. We are of the opinion that a prima facie case was made out, and that the court erred in dismissing the cases.

The facts as disclosed by the testimony are as follows: Defendant owned and lived upon a farm in Freeborn county. About the last of August, 1910, he employed one John Peterson to assist him in blasting some stone. Peterson, at the request of defendant, procured at a hardware store at Albert Lea some dynamite sticks and dynamite caps. After they had finished the work of blasting, there was left a stick and a half or two sticks of dynamite and four dynamite caps. Peterson put the sticks in one package and the caps in another, and wrapped each package with wrapping paper. The package containing the caps he tied with a string. These caps were from an inch to an inch and a quarter long. The package as it was wrapped up was about three inches long and about an inch through. Peterson handed both packages to defendant, telling him that the caps were the more dangerous of the two in handling. Defendant stated that he might use them later on to blast some stumps. Peterson and defendant then walked to the granary together. Defendant went into the granary and put the package containing the dynamite sticks into an old iron kettle, which he hung upon a nail in the granary. There is no evidence as to what disposition was made of the package containing the caps, except the evidence of defendant, to which reference will presently be made.

Some time later defendant sold his farm to plaintiff, John Eckart. Erkart took possession November 1st. He had a family of small children. Emil, the injured boy, was then about 14. One day about the middle of December, Emil was fixing a buggy on the east side of the granary, the door being on the south side. A little brother, George, 2 or 3 years old, was playing on the ground close to the granary door with a larger brother, Irvin, about 8 or 9. The testimony of Irvin was excluded by the court, but Emil testified that George came around to him with a cap in his hand and handed it to Emil, saying as he did so, ‘See what I found.’ This remark was stricken out on motion. Emil put the cap into his pocket and kept it until December 27th, thinking it was an empty cartridge and intending to use it on a pencil. It proved to be a dynamite cap of the same kind as those used by defendant. On December 27th Emil undertook to clean out with a darning needle what he thought was some dirt in the bottom of the cap. This caused the explosion.

Defendant was called to the stand by plaintiff for cross-examination under the statute. He admitted having received from Peterson the two packages, one containing the dynamite sticks and the other containing the dynamite caps. He admitted going into the granary and placing the package of dynamite sticks in the iron kettle. He testified that he put the package of caps in his vest pocket, and that two or three days later he took both the sticks and the caps at the same time to a hardware store in Albert Lea and exchanged them for nails. There is abundant contradiction of this testimony as far as the dynamite sticks are concerned. One witness, Hans Midje, testified that after defendant had left the farm, and before the accident, he met defendant at the granary; that the package of dynamite sticks was then in the iron kettle, and defendant called his attention to it and talked of taking it away. Midje further testified that he was at the granary after the accident, and that the package was still there. Walter Eckart testified that the package of dynamite sticks was there in the kettle two weeks after the...