Miller v. Chandler

• Citation: 163 Ky. 301,173 S.W. 779
• Parties: MILLER v. CHANDLER. [d1]
• Decision Date: 03 March 1915
• Court: Court of Appeals of Kentucky

173 S.W. 779

163 Ky. 301

MILLER v. CHANDLER. ^[d1]

Court of Appeals of Kentucky.

March 3, 1915

Appeal from Circuit Court, Ballard County.

Action by Harrison Chandler, by his guardian, against L. W. Miller. From a judgment for plaintiff, defendant appeals. Reversed with directions.

Hendrick & Nichols, of Paducah, for appellant.

Eaton &amp Boyd, of Paducah, for appellee.

TURNER J.

Appellant is the owner of a farm in Ballard county, and in 1913 G. A Chandler occupied a house thereon as his tenant. Under Chandler's contract he occupied the house, garden, and lot, together with the right to cultivate certain other lands on the place. About 75 or 80 yards from the house occupied by Chandler, there was a small structure called a toolhouse or crib. This house was outside of the inclosure rented to Chandler; but, either by actual agreement or acquiescence, it was jointly used by both Miller and Chandler, each of them storing their farming implements and tools therein, and at times corn, hay, and other feed. Across the upper rafters in this house some loose plank were laid, which is referred to as the attic or loft, and which the evidence fails to show was put to any use whatever, except some times the hens would lay there. There was no stairway or ladder or any other way of getting into this loft or attic except by climbing onto something, reaching the loose plank, pushing them apart, and climbing in between them. In August, 1913, appellant bought some dynamite and dynamite caps and fuse which he was using on another part of his farm in blowing out stumps. When he had finished for the time being, he placed the dynamite in a paper sack, the dynamite caps in a smaller paper sack, tied the smaller sack up, and placed it in the larger sack and tied that up, went to the toolhouse and placed a plow against the wall, climbed up on the plow so he could reach the loose plank, and placed the sack so tied up, as far back from the hole as his arm could reach. Chandler had a son, the appellee Harrison Chandler, then about 8 1/2 years old, and on Saturday afternoon, August 9, 1913, while playing around the toolhouse or crib he went in there, climbed up on a plow or plows, reached a nail which was driven in the wall, and managed to swing himself up into the loft. He found the bundle, untied the strings, put two of the dynamite caps in his pocket, and came down. He went out into the road near by and, having some matches in his pocket, he put one of the caps down, lighted a match, and placed it upon the cap, but it failed to explode. He then took up the cap in one hand lighted a match, and held it under the cap, whereupon it immediately exploded and seriously injured his hand. This is an action by the infant to recover damages for his injury. Upon the trial the jury returned a verdict in favor of the plaintiff for $1,000, and this appeal results therefrom.

The statement of facts given above is the uncontroverted statement of both appellant and the infant as to the manner in which the accident occurred, and the only question which we deem it necessary to consider is whether the case should have been submitted to the jury; the appellant having asked for a peremptory instruction at the conclusion of all the evidence.

The having in possession on a farm of explosives for lawful purposes is not per se negligence, but the appellee bases the right of recovery herein upon the well-recognized rule that it is negligence to keep explosives and dangerous substances in places where they might be attractive to children.

It is shown by the appellee that appellant knew there were children at the nearby house occupied by Chandler; that he knew that they played in the lot where the crib or toolhouse was; and it is argued from this that it was negligence for him to...