Conley v. Ennis' Adm'r

• Decision Date: 10 May 1916
• Citation: 170 Ky. 125,185 S.W. 501
• Parties: CONLEY v. ENNIS' ADM'R. ENNIS' ADM'R v. WEAVER ET AL.
• Court: Kentucky Court of Appeals

185 S.W. 501

170 Ky. 125

CONLEY v. ENNIS' ADM'R.

ENNIS' ADM'R v. WEAVER ET AL.

Court of Appeals of Kentucky.

May 10, 1916

Appeal from Circuit Court, Kenton County, Criminal, Common Law, and Equity Division.

Action by John J. Ennis' administrator against J. J. Weaver and others and Joseph Conley. From a judgment for the first-named defendants and against the latter, the last-named defendant appeals, as does the administrator. Affirmed on administrator's appeal, and reversed and remanded on that of last-named defendant.

Myers &amp Howard, of Covington, and Jackson & Woodward, of Cincinnati Ohio, for appellants.

John E Shepard, of Covington, for appellees.

TURNER J.

On Friday afternoon, November 22, 1912, between half past 5 and 6 o'clock, John Ennis, a boy seven years old, was killed at his home on Western avenue in Covington, by the explosion of a dynamite cap.

This is an action by his father, as administrator, against Joseph Conley, J. J. Weaver, Charles P. Devou, Jacob Auer, and C. E. Harris, wherein it is alleged that the defendants during the month of November, 1912, were engaged in the work of constructing and improving certain roadways and driveways in a park in the city of Covington near his residence, and that his said son, John Ennis, came to his death by reason of the gross negligence of the defendants in the handling and transportation of dynamite caps, and in their negligent manner of keeping and storing the same, which were being used by them in such road construction work, by reason of which negligence the said cap came into the possession of the infant John Ennis, who was totally ignorant of its dangerous and deadly character, and which without fault upon his part, exploded and killed him.

Conley, Weaver, and Harris each filed separate answers, and Devou and Auer filed their joint answer, in each of which the material allegations of the petition were denied and contributory negligence pleaded.

On the trial, at the close of the plaintiff's testimony, the court, upon motion, directed the jury to return a verdict in favor of the defendants Weaver, Harris, Devou, and Auer, but overruled a similar motion made at the time by Conley, and again overruled Conley's motion for a directed verdict at the close of all the evidence.

A verdict in favor of the plaintiff against Conley was returned upon which judgment was entered; Conley filed his motion and grounds for a new trial, and the plaintiff filed his motion and grounds for a new trial as against Weaver, Devou, and Auer, and both motions having been overruled, a judgment was entered on the verdict and Conley is prosecuting this appeal from the judgment against him, and the administrator is prosecuting an appeal from the action of the court in directing a verdict for Weaver, Devou, and Auer.

First. Considering the Conley appeal, the plaintiff's evidence showed that Conley had a contract for the construction of several miles of roadway through a park in the western portion of the city of Covington, the contract covering two roads through the park, one running north and south, and the other east and west. The north and south roadway was first constructed and had been completed a few days prior to the 22d of November; in its construction a stone crusher was operated by means of an electric motor, and that motor was housed in what is referred to in the evidence as a "motor house," which was really a rough box 12 or 14 feet long, 5 or 6 feet high, and 4 or 5 feet wide, built on a wagon frame so that it might be removed from place to place. It was used not only for housing the motor, but for the storing of tools and equipment used in the work including explosives.

At the completion of the north and south roadway this motor house was at the north end of the roadway at the northern entrance to the park, and it was necessary to remove it to the eastern entrance to the park to begin work on the east and west roadway, a distance of a mile or more from its then location. Although this motor house belonged to the city or park commissioners, it was at the time under the control of Conley, and it was his duty to remove it to the desired point. One of his employés hitched a team to this portable motor house and removed it, not through the park, but around the park to the eastern entrance, and in doing so it was necessary to drive some distance southward on Western avenue in the city of Covington, along which it had to pass the home of the Ennis boy, which was between Second and Third streets on that avenue; the eastern entrance, the objective point being some distance further south at or near a point where Eighth street would have intersected the park if it had gone through there. The evidence does not show the distance from the Ennis home or Second or Third streets to this eastern entrance of the park, but there are references in it to Second and Third streets and to Sixth, Seventh, and Eighth streets,...