Ray v. Jeffries

• Decision Date: 01 December 1887
• Parties: RAY v. JEFFRIES.
• Court: Kentucky Court of Appeals

5 S.W. 867

86 Ky. 367

RAY v. JEFFRIES.

Court of Appeals of Kentucky.

December 1, 1887

Appeal from circuit court, Hardin county.

Wilson & Sprigg, John L. Scott, and J. P. Hobson, for appellant.

Montgomery & Posten, for appellee.

LEWIS J.

Appellant brought this action to recover for an injury to his person while in the employ of appellee mining, but, though the verdict was in his favor, the jury fixed the damages at only one cent. Although it is provided in section 341, Civil Code that "a new trial shall not be granted on account of the smallness of damages in an action for an injury to the person or reputation, nor in any other action in which the damages equal the actual pecuniary injury sustained," yet it has been held by this court (Taylor v. Howser, 12 Bush, 465) that "the reason of this rule does not apply to the assessment of the actual pecuniary damages resulting directly from the wrong," and that where the damages can be measured, and the injury is such as to demonstrate that, as to the damages, the proof and the law of the case were disregarded, a new trial ought to be granted. The injury received by appellant was a severe and permanent one, and the damages actually proved were capable of being measured, and the verdict should have been set aside, and a new trial granted, if he was entitled to recover at all; and whether he was or not is the only question before us.

From the pleadings and evidence in the case it appears that appellant was, for some time during the year 1884, employed by appellee in blasting rock, the ordinary blasting powder being used; but appellee mentioned to appellant about the close of operations of that year that he intended to procure material of greater explosive power, and was informed by appellant he had experience in the use of giant-powder in blasting rock. Before commencing operations in the spring of 1885, appellee procured a quantity of what is called "Atlas Powder," in the composition of which a considerable per cent. of nitro-glycerine is used, and accompanying the powder, and to be used with it, were caps or exploders, strongly charged with fulminate, and also fuse. The injury to appellant was caused, not while he was actually engaged in blasting, though this would make no difference nor by the explosion of the powder which was in cartridges, but by the explosion of one of the caps, caused by his picking into it with a stick in order to ascertain whether the material contained was fit for use.

The lower court instructed the jury that it was the duty of the defendant in operating the mining business to ascertain and know the character and quality of the material used for blasting,--that is, whether or not it was dangerous,-- and to impart such information to the plaintiff, and if he failed to obtain such information, or did obtain it and failed to impart it to the plaintiff, and he was injured by such failure, the defendant is liable; but if plaintiff knew of the dangerous character of the caps, then the defendant is not liable. They were also instructed that, if the plaintiff did not know of the dangerous character of the caps, the...