Langdon-Creasy Co. v. Rouse

• Decision Date: 24 March 1903
• Citation: 139 Ky. 647,72 S.W. 1113
• Parties: LANGDON-CREASY CO. v. ROUSE.
• Court: Kentucky Court of Appeals

72 S.W. 1113

139 Ky. 647

LANGDON-CREASY CO. v. ROUSE.

Court of Appeals of Kentucky.

March 24, 1903

Appeal from Circuit Court, Grant County.

"Not to be officially reported."

Action by Ella Rouse against the Langdon-Creasy Company. From a judgment for plaintiff, defendant appeals. Reversed.

A. G De Jarnette, Wade Cushing, and T. L. Edelen, for appellant.

W. W Dickerson and O. H. Hogan, for appellee.

BURNAM C.J.

This suit was brought by the appellee, Ella Rouse, against the appellant, the Langdon-Creasy Company, to recover damages for injuries sustained by her in lighting a gasoline lamp in the storehouse of appellant at Williamstown, Ky. on the 22d day of March, 1901.

The record discloses that appellee had been in the employ of Langdon & Creasy, a partnership, as manager of their grocery store located at Williamstown, in Grant county, from some time in October, 1900, until the 7th day of March, 1901. On that day the store was transferred from the partnership of Langdon & Creasy to the Langdon-Creasy Company, a corporation organized under the laws of this state. After the transfer of the store to the new corporation, appellant continued in its employ as general manager, having authority to employ a porter, and, when the necessities of the business required it, additional clerical assistance. The headquarters of the corporation was in Cincinnati, Ohio, and they owned and operated quite a number of similar stores located at different points in the state of Kentucky. The gasoline lamp which it is charged occasioned the injury had been used for lighting the store for several months previous to the date of the accident, and had been under the special management of the appellee. It also appears that she had clerked in the store belonging to Langdon & Creasy at Eminence Ky. for some months previous to her transfer to Williamstown as manager of the store there. The Eminence store was lighted in the same way, and she had observed the operation of the lamp there, although not specifically charged with any duty in connection therewith. It was also shown that some time in November, shortly after taking possession of the store as manager, she complained to appellant that the lamp would not light, and at their instance it was forwarded to the manufacturers at Cincinnati for examination; and that on November 25th it was returned by them to her, with a letter in which they say they could find no trouble with the lamp and at the same time inclosed to her printed instructions as to its management. This letter wound up with these words:

"The instruction on the first page of the circular carefully followed will give you perfect success. The whole thing in a nutshell is just this: Put two quarts of gasoline in the bowl, screw the filler tap on tight, attach the pump to the air valve, open the thumb screw two or three turns, and pump in twenty-five or thirty strokes of the pump. Before pumping in the air, see that the light valve is firmly closed. Now heat the generator with the alcohol torch as directed, then open the light valve, still holding the lighted torch above the top of the chimney. In about fifteen seconds the gas will form; pass around the gas tube to the burner, where it will light from the torch you are holding at the top of the chimney. All this is only a brief repetition of the directions on the circular, which if you will read and carefully follow, you will have no trouble.

"Very truly yours,

"The Perfection Burner Co.,

"A. B. Tremer, Manager."

Whilst these instructions appear somewhat confusing, it is very easy to understand them when we have the lamp itself before us, and for purposes of illustration a photographic copy of the lamp, filed with the brief of counsel for appellant, is filed with the opinion. The bowl of the lamp holds about six quarts of gasoline. It has two openings, one indicated by the letter B, the other by the letter C. The lower end of the gasoline tube at the left of the lamp is open near the bottom of the bowl. At A is a valve, which permits the gasoline to flow into the metal tube, D. The funnel encircles the end of the gas tube, and into which vaporized gas flows, which furnishes the fuel for the light. The instructions require two quarts of gasoline to be poured into the opening in the side of the bowl at B. At C is a valve which is closed by a screw, and upon the tube projecting therefrom the air pump is attached. The instructions direct that the gasoline should always stand below the opening at C. The air pressure forces the gasoline up the gasoline tube to the valve at A. The directions require that the hollow tube, D, should be heated by a lighted sponge saturated with alcohol, before the valve at A is opened. When the liquid gasoline is forced into the hot tube it is converted into gas, which is carried across the open space between the tube, D, and the gas tube at the right of the lamp, and from this point finds its way through the gas tube to the burner, where it is ignited.

The negligence in connection with this lamp with which appellant is charged by appellee is that the appliance was new to her and that she was not familiar with its operation and management; that she did not know that it was dangerous; that appellant knew it was unsafe and dangerous and likely to explode, and failed to acquaint her with these facts and the risks and hazard attending its lighting and use. Appellant denied that the lamp was dangerous, or that its management was difficult to understand, or that appellee did not thoroughly understand its management, and had not received full instruction with reference thereto, and alleges that she had been carefully instructed with reference to its management; that she was their manager in conducting the store; and charged that the injury resulted from her own negligence in disregarding the instruction given her with reference to its management, and also charged that it was the duty of the porter to light the lamp. A trial before a jury resulted in a verdict for plaintiff for $2,500, which we are asked to reverse upon several grounds: First, upon the calling of the cause for trial the appellant moved for a continuance, and in support of the motion filed the affidavit of one of the attorneys, in which he says that H. C. Langdon, the president of the corporation, and who resided in Cincinnati, had expected to attend the trial and testify as a witness, but that on the day before he had been called to the bedside of his sick mother, who was reported to be dying; "that he would testify that he purchased the lamp, with about 60 others, for the use of the various stores owned by Langdon & Creasy; and that, previous to and at the time of the purchase, he had been assured by large numbers of persons...