Merschel v. Louisville & N.R. Co.

• Decision Date: 02 March 1905
• Citation: 85 S.W. 710,121 Ky. 620
• Parties: MERSCHEL v. LOUISVILLE & N. R. CO.
• Court: Kentucky Court of Appeals

85 S.W. 710

121 Ky. 620

MERSCHEL v. LOUISVILLE & N. R. CO.

Court of Appeals of Kentucky.

March 2, 1905

Appeal from Circuit Court, Campbell County.

"To be officially reported."

Action by Robert Henry Merschel, by his next friend, against the Louisville & Nashville Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed.

Samuel C. Bailey, for appellant.

Benjamin D. Warfield and Jas. C. Wright, for appellee.

PAYNTER J.

The court sustained a demurrer to the petition, and, the plaintiff refusing to plead further, the petition was dismissed. From the petition it appears that the appellant is a boy 11 years of age; that he lost an eye by the explosion of a railway torpedo which he had picked up from a public street near the appellee's track in a populous part of the city of Newport, where children were accustomed to play. The boy's childish curiosity to discover the contents of the torpedo lead him to strike it with a hammer, causing it to explode, and thus inflicting the injury of which complaint is made. By the petition as amended it is substantially stated that an agent and servant of the defendant with gross negligence and carelessness placed the torpedo on the sidewalk where it was found, or with gross negligence and carelessness placed it on the railroad track so that it could be easily removed or brushed away, and suffered it to be removed to the place where it was found; that one of these statements is true, but he does not know which one is true that the agent and servant who placed the torpedo upon the sidewalk had been and then was charged by the defendant with the duty of safely keeping the torpedo; that he knew of its dangerous character; that the agent and servant of the defendant, if he placed the torpedo upon the track, had been and was then duly intrusted with its safe-keeping. The averment that it was negligently placed upon the track and the one that it was placed upon the sidewalk were made in the alternative, which is permitted under the Civil Code of Practice. The plaintiff proceeded upon the idea that, if the agent and servant of the defendant who was intrusted with the care of the torpedo placed it upon the track in such a negligent way as to be easily removed or knocked therefrom to the street, he was entitled to recover the damages sustained. Again, if this was not true, if he, being charged with the safe-keeping of the torpedo, negligently placed it upon the street, and the plaintiff was thereby injured, he was entitled to recover. The defendant being a corporate entity it could only have the custody and control of the torpedoes through the instrumentality of agents or servants. The demurrer admits that the agent and servant was charged with the safe-keeping of the torpedo and use of it at the time it was placed upon the track or upon the street. Therefore it was the act of the defendant in so placing it. If the master himself has control of forces or explosives calculated to endanger life, the obligation is upon him to control or superintend them. He is under an obligation to use proper care for the protection of life and property therefrom.

If he substitutes another to represent him in their care and control, the same obligation remains upon him. The master is responsible for the negligent acts of his servants in the course of their employment. This is true whether the negligent act be authorized or forbidden. In Sherman &amp Redfield on...