Jones v. McMinimy

• Decision Date: 05 November 1892
• Citation: 20 S.W. 435,93 Ky. 471
• Parties: Jones v. McMinimy et al.
• Court: Kentucky Court of Appeals

20 S.W. 435

93 Ky. 471

Jones v. McMinimy et al.

Court of Appeals of Kentucky.

November 5, 1892

Appeal from circuit court, Mercer county.

"To be officially reported."

Action by Aaron Jones, as administrator, against Ellen McMinimy Thomas McMinimy, and Isaac Wichersham, to recover for the death of plaintiff's intestate, caused by defendants' negligence in blasting rock with gunpowder within the limits of a town. From a judgment for defendants, plaintiff appeals. Reversed.

Bennett J.

The appellees Ellen and Thomas McMinimy employed Isaac Wichersham, a competent and skillful person in that line, to build them a house on their lot, lying in the town of Harrodsburg, Ky. Said employment included the building of a cellar of certain dimensions under the house, and the excavation of the earth for that purpose. The bill of exceptions says the evidence adduced before the jury conduced to show that it was necessary, in order to do the excavation in the ordinary mode of doing that kind of work, to blast with gunpowder. The proof also shows that the appellant's intestate, a citizen, not engaged in helping to do the blasting, was hurt by one of the blasts. This action seeks to recover damages from the appellees, the McMinimys and Wichersham, caused by the said injury. The right to recover damages from the McMinimys was resisted upon the grounds (1) that Wichersham was an independent contractor, and the work that he was to perform did not necessarily create a nuisance consequently they were not liable in damages for the injury (2) that the injury to the appellant's intestate was the result of his contributory negligence. It is well settled that blasting with gunpowder in a city or town near enough to the property of others to do injury is a nuisance, unless proper precautions are taken to prevent injury to the property of others within its reach, or to the persons of others ignorantly coming within its reach. The contract clearly shows that Wichersham was an independent contractor and not the servant of the McMinimys. Now, it is well settled that where the independent contractor and the contractee contract for the performance of work that is lawful in itself, and the work is performed in an unlawful manner, either by the wrongful or negligent execution of the work, and resulting in injury to others, the contractee is not liable in damages to such persons for the injury. On the other hand, where the contractee...