Miller v. Chandler

• Decision Date: 22 February 1916
• Citation: 182 S.W. 833,168 Ky. 606
• Parties: MILLER v. CHANDLER.
• Court: Kentucky Court of Appeals

182 S.W. 833

168 Ky. 606

MILLER v. CHANDLER.

Court of Appeals of Kentucky.

February 22, 1916

Appeal from Circuit Court, Ballard County.

Action by Harrison Chandler, by guardian, against L. W. Miller. Judgment for plaintiff, and defendant appeals. Affirmed.

A. M Nichols and J. K. Hendrick, both of Paducah, and Ed. Reesor of Bandana, for appellant.

Eaton &amp Boyd, of Paducah, for appellee.

CLARKE J.

This case was here on appeal once before and in the opinion, which may be found in 163 Ky. 301, 173 S.W. 779, is a statement of the facts developed in the first trial of the case, which are practically the same as those shown by the evidence on the second trial, except that on the second trial evidence was introduced by appellee for the purpose of showing that at the time appellant stored the dynamite and caps in the loft of the toolhouse he knew that appellee and some other children were in the habit of playing around and in the toolhouse. This evidence for appellee, which was not introduced at the first trial, in substance, is as follows:

By the father of appellee, that appellee "played around there frequently every day in and about the loft, and went up to get eggs his hens would lay up there"; that appellant at least upon one occasion before the accident saw appellee in the loft, and told him not to bother some tobacco sprays that were stored therein; that appellant said in his presence just after the accident that he was sorry, but that he told appellee not to bother the dynamite when he put it up there that the door of the building was down and the opening in the floor of the loft was there for some time before the accident occurred, through which appellant knew appellee could get into the loft where the dynamite and caps were stored.

By appellee, that he frequently played in the building, and went into the loft to get eggs, and that appellant had seen him there in the loft on several occasions, and upon one occasion when he was in the loft had warned him not to bother the tobacco sprays stored therein.

By the mother of appellee, that he was in the habit of going to the loft after eggs, and that appellant had often been there upon such occasions and seen appellee in the loft.

By Mrs. Lucile Ragland, that she had frequently seen appellee and other children playing around the toolhouse and under it, and that she had often seen appellant there when appellee was playing about the building.

By Perry Bosley, that he had seen appellant at the toolhouse upon several occasions when appellee was about the building; that upon one occasion before the day of the accident he heard appellant warn appellee against bothering the tobacco sprays in the loft; that the building and the loft were open.

By appellant, that when he stored the dynamite and caps in this loft he warned appellee against bothering same, telling him that they were dangerous and might kill him.

In the former opinion in this case this court said:

"In this case the appellant took the precaution not only to tie up both the sacks, but to put them out of sight of the children, in a place which he not only knew to be unfrequented, but which he knew could only be reached after some way had been furnished or devised to climb to it"

--and in support of that opinion referred to the case of Ball v. Middlesborough T. & L. Co., 24 Ky. Law Rep. 114, 68 S.W. 6, as follows:

"The case of Ball v. Middlesborough T. & L. Co., 68 S.W. 6, 24 Ky. Law Rep. 114, was where an infant six years of age climbed into an unoccupied building through a window, and finding a dynamite cap therein, the same was in some way exploded, whereby he was injured. The evidence was that the owner did not know that children frequented the place, and did not know the dynamite caps were there, and it was held that a peremptory instruction was properly given. The court in that case, in referring to the rule laid down in Thompson on Negligence, said: 'The rule adopted by this learned author is that where the owner of the premises creates or brings thereon any dangerous thing, which, from its nature, has a tendency to attract the childish instincts of children to play with it, he is bound, as a matter of social duty, to take such reasonable precautions as the circumstances admit of to protect them from injury while playing with it, or in its vicinity. This rule was adopted by this court in Bransom's Adm'r v. Labrot, 81 Ky. 638, 50 Am. Rep. 193; but it cannot apply to this case for the reason

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