Cincinnati, N.O. & T.P. Ry. Co. v. Padgett

• Citation: 164 S.W. 971,158 Ky. 301
• Parties: CINCINNATI, N. O. & T. P. RY. CO. et al. v. PADGETT.
• Decision Date: 27 March 1914
• Court: Court of Appeals of Kentucky

164 S.W. 971

158 Ky. 301

CINCINNATI, N. O. & T. P. RY. CO. et al. v. PADGETT.

Court of Appeals of Kentucky.

March 27, 1914

Appeal from Circuit Court, Lincoln County.

Action by Alvin Padgett against the Cincinnati, New Orleans & Texas Pacific Railway Company and another. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

John Galvin, of Cincinnati, Ohio, and J. W. Alcorn and K. S Alcorn, both of Stanford, for appellants.

Robt. Harding, of Danville, O'Rear & Williams, of Frankfort Emmet Puryear, of Danville, and George Florence, of Stanford for appellee.

HANNAH J.

Alvin Padgett sued the Cincinnati, New Orleans & Texas Pacific Railway Company, and L. E. Floyd, in the Lincoln circuit court, to recover damages for personal injuries received by him while in the service of said company; and, upon a trial of the action, the jury found a verdict in his favor in the sum of $7,500. The defendants appeal.

In July, 1911, appellee was employed as a laborer by appellant company, and was one of a crew of workmen engaged in the construction of a concrete abutment in Lexington, Ky. Appellant Floyd was foreman of the crew. There was a side track near the place of work, upon which were five cars. One of these was used as a cook car by the crew; one as sleeping quarters by Floyd, the foreman; and the other three as sleeping quarters for members of the crew. In the performance of the work in which they were engaged, there were in use certain buckets for the purpose of carrying sand and water; and there were two buckets which were used for carrying pitch, the pitch being used for the purpose of waterproofing the concrete. Dynamite was employed in the work, the supply thereof being stored in a house which was also used for storing cement. This dynamite and the other supplies were in the control and custody of appellant Floyd, the foreman of the crew. Some sticks of this dynamite had become imbedded in the pitch in the buckets used for carrying pitch. Just how this occurred is not explained by the evidence; but it was shown that dynamite had been left in the buckets containing pitch on several occasions, and that same would gradually become imbedded therein. One witness says he pried several sticks out of one of the buckets on the Fourth of July and exploded them by way of celebration. In one of these buckets, a stick of dynamite, which had been prepared for exploding by the placing of a detonating cap therein and the affixing of a fuse thereto, had become imbedded, until the stick of dynamite became wholly immersed in the pitch, leaving only the fuse in sight. This fuse had been pulled out by some one, probably by appellee himself, although the evidence upon that point is not decisive, as appellee testified that the bucket from which he pulled a fuse was thrown over into the woods by him.

On the night of July 29, 1911, appellant Floyd, the foreman of the crew, had a bucket in his sleeping car, in the bottom of which was some pitch, and imbedded and concealed in the pitch was a stick or a portion of a stick of dynamite. The foreman was using this bucket as a receptacle for burning rags, for the purpose of driving mosquitoes from his car. After the rags had burned awhile, the pitch in the bottom of the bucket ignited, and Floyd threw the bucket out of the car onto the ground nearby. A member of the crew sitting by, upon seeing the bucket of burning pitch, informed Floyd that one of the buckets which contained pitch also had a stick of dynamite imbedded in the pitch. About the time Floyd received this information, and while the blazing bucket lay there on the ground, appellee and another of the crew of workmen, who had been down to the city, were returning to the camp cars; and, as they approached the bucket, despite the warnings from Floyd and others, they failed or were unable to withdraw in time to escape before the dynamite in the bucket exploded, and appellee received the injuries to recover damages for which this action was brought.

1. Appellants first insist that the court should have directed a verdict for them at the close of the evidence for the plaintiff upon the ground that no negligence was proven. It is the duty of persons who keep in their possession, or employ in their business, that which unless carefully guarded and cautiously used is dangerous to others, to exercise such care to see that the dangerous agency is so kept and used as not to inflict injury upon others as an ordinarily prudent person would be expected to exercise in the use and keeping of such dangerous agency. See Merschel v. I. & N. R. R. Co., 121 Ky. 620, 85 S.W. 710, 27 Ky. Law Rep. 465; Pittsburg, etc., Ry. Co. v. Shields, 47 Ohio St. 387, 24 N.E. 658, 8 L. R. A. 464, 21 Am. St. Rep. 840; Rush v. Spokane Falls & Nor. R. Co., 23 Wash. 501, 63 P. 500; 26 Cyc., 1112. Floyd testified that he did not know the dynamite was in the bucket; but he was placed in charge of the dynamite supply, and he was therefore charged with the duty of using it with care and caution, as well as with the duty of observing like care and caution in the custody of the dynamite when it was not in use. As was said in the Shields Case, supra (speaking of railroad torpedoes), "the servant's custody of them when not in use was as much a part of his employment as was the use of them." The court is of the opinion, therefore, that the mere presence of this stick or portion of the dynamite, imbedded and concealed in the pitch in the bucket in question, was some evidence of negligence in the handling of the dynamite supply while not in use at least sufficient evidence of negligence in that respect to authorize the submission to the jury of the issue as to the exercise of due care.

2. But appellants contend that, even conceding that the presence of dynamite in the bucket was some evidence of negligence, the court should have directed a verdict for defendants upon the ground that such negligence was not the proximate cause of the appellee's injuries.

In Watson v. Kentucky & Ind. Bridge & Ry. Co., 137 Ky. 619 126 S.W. 146, this court said: "No better statement of the law of proximate cause can be given than is found in 21 A. & E. Ency. of Law (2d Ed.) 490, quoted with approval in Louisville Home Telephone Company v. Gasper, 123 Ky. 128, 93 S.W. 1057, 29 Ky. Law Rep. 578, 9 L. R. A. (N. S.) 548, and C. & O. Ry. Co. v. Young's Adm'r, 146 Ky. 317 : 'It is well settled that the mere fact that there have been intervening causes between the defendant's negligence and the plaintiff's injuries is not sufficient in law to relieve the former from liability; that is to say, the plaintiff's injuries may yet be natural and proximate in law, although between the defendant's negligence and the injuries other causes and conditions, or agencies, may have operated, and, when this is the case, ...