Ball v. Middlesboro Town & Lands Co.

• Decision Date: 06 May 1902
• Citation: 68 S.W. 6
• Parties: BALL v. MIDDLESBORO TOWN & LANDS CO. [1]
• Court: Kentucky Court of Appeals

68 S.W. 6

BALL v. MIDDLESBORO TOWN & LANDS CO. ^[1]

Court of Appeals of Kentucky.

May 6, 1902

Appeal from circuit court, Bell county.

"Not to be officially reported."

Action by Timothy W. Ball, by next friend, against the Middlesboro Town & Lands Company, to recover damages for personal injuries. Judgment for defendant, and plaintiff appeals. Affirmed.

T. G Anderson, for appellant.

J. R Sampson, for appellee.

HOBSON J.

Timothy Ball, a little boy six years old, was painfully injured by the explosion of a dynamite cap, and one of his eyes was put out. He filed this suit by his next friend to recover damages for his injury from the appellee, the Middlesboro Town &amp Lands Company, charging that the injury was due to its negligence. At the conclusion of the testimony offered for him the court instructed the jury peremptorily to find for the defendant, and he appeals. The facts shown by the proof on the trial are as follows: About the year 1890 Chapman, Warren, and Farquahar were constructing a canal in Middlesboro, and used a building which had been built some time before to store away their tools and implements. They used dynamite in their work. Afterwards, just when it does not appear, the Middlesboro Town & Lands Company became the owner of the building. It was situated on an alley, and was securely locked. Slats were nailed across the windows, but in the process of time one of these slats across the upper part of one of the windows, and about six feet from the ground, was removed in some way. The building was unused, and about April, 1898, the lands company sold a partition out of the building to another, who had it removed. There was a shelf on this partition, and on this shelf were some wires with dynamite caps attached to them. The workman who tore down the partition threw these wires down on the floor of the room without apparently noticing what they were. After this, in June, 1898, the little boy Timothy Ball, and two other little boys, climbed into the house at the hole in the window where the slat was knocked off, six feet above the ground, and in playing around there Ball exploded one of the caps, and thus received the injuries sued for. He says he picked up the wires and then threw them down, and that when they fell the explosion occurred. But there is other proof that the caps could not be exploded in this way, and that they showed signs of being beaten. But, however this may be, there was no proof of negligence on the part of the lands company. It did not place the dynamite in the building, and, so far as appears, did not know it...