Sparks v. Maeschal
| Decision Date | 17 December 1926 |
| Citation | 289 S.W. 308,217 Ky. 235 |
| Parties | SPARKS ET AL. v. MAESCHAL. |
| Court | Kentucky Court of Appeals |
Appeal from Circuit Court, Rockcastle County.
Action by William Maeschal, by etc., against W. J. Sparks and others. Judgment for plaintiff, and defendants appeal. Reversed and remanded.
C. C Williams and B. J. Bethurum, both of Mt. Vernon, for appellants.
L. L Walker, of Lancaster, and S.D. Lewis, of Mt. Vernon, for appellee.
The W J. Sparks Company is a corporation which crushes stone and does a general contract business. Its principal office was at Mt. Vernon, Ky. W. J. Sparks was the president and general manager. Ab Sparks was the assistant general manager. He lived at Mt. Vernon, but at the time in controversy had charge of certain work the company was doing on the Dix Dam. He used a Dodge car of the company in going from his residence to his work. One Sunday evening in December 1923, before he went back to the dam, he started to the office of the company in the car to see the president, John Williams; a little boy 7 years old who lived nearby hollered and asked him to let him ride. Sparks said, "Come on." The little boy jumped in, and William Maeschal, a little boy 8 years old, who was playing nearby, said he wanted to go too, and Sparks told him to get in. He went on down to the office with the two boys in the car. When he reached the office, he got out and went in the house; William went also to the office, but, after staying there a few minutes, returned to the car before Sparks left the office. When William got back to the car, John had two dynamite caps in his hand; they were of brass about an inch long and about as large as a lead pencil. He gave one to William. John had found the caps in the car while William was gone. The caps were in the pocket of the car, but the proof is conflicting as to whether the flap was down or not. The boys state that the flap was torn off, and the caps could be seen in the bottom of the pocket from the seat of the car. The company proved that the flap was in good condition, and that the caps could only be seen by raising the flap and looking in the pocket. Sparks returned in a few minutes from the office, took the boys home, and went on to the dam, knowing nothing of their having taken the caps while he was gone, or in fact knowing nothing of the caps being in the car, as he testified. William took the cap home with him, and, not knowing its dangerous character, exploded it, receiving very serious injuries. This action was brought by him by his next friend to recover therefor. A verdict and judgment having been rendered in his favor against the corporation and against Ab Sparks for the sum of $2,000, they appeal.
The proof for the defendant showed that about Thanksgiving time the Sparks Company had loaned this car to John Griffin, who was doing some work on the county road, leading from the Dixie Highway to Withers. Griffin was doing some blasting and had dynamite caps there. He had some caps left and put them loose in the pocket of the car. The proof also showed that Ab Sparks had at times carried caps from Mt. Vernon to the dam in this car, but he took them always in the original package, which was unbroken, and he had never placed any loose caps in the pocket of the car as these caps were.
The mother of the child testified, over the defendant's objection, that nine days after the child was injured Ab Sparks came to her house and said to the child, "William, I put those caps in the car; I had forgotten to take them out; I put them in two weeks before; some men wanted them at the quarry, and I did not take them out." The objection of the corporation to this testimony should have been sustained. Nothing that Ab Sparks said nine days after the accident was competent against the corporation, although his statement was competent against him, as he was one of the defendants to the action. Farmers' Bank v. Wickliffe, 131 Ky. 787, 116 S.W. 249; Cincinnati, etc., R. Co. v. McWhorter, 203 Ky. 252, 262 S.W. 253.
The defendants asked the court to give the jury this instruction, after a peremptory instruction was refused:
"The court instructs the jury that, even though they may believe from the evidence that dynamite caps were in the pocket of the car, spoken of in the evidence, yet, if they shall believe from this evidence that said caps were not in plain view, so they could be readily seen by a casual observer, or if they believe that said caps were covered, or not in plain view, the law is for the defendants, and they should so find." The court refused to give the instruction, and, in substance, told the jury that they might find for the plaintiff under the facts above stated, if the defendants Ab Sparks and W. J. Sparks Company knew, or by the use of ordinary care could have known, that said dynamite caps were in the pockets of said car and in an exposed condition.
In Cincinnati, etc., Railway Co. v. Padgett, 158 Ky. 301, 164 S.W. 971, a stick of dynamite had been left in a bucket and some pitch had then been poured in the bucket. Some workmen, not knowing that the dynamite was in the bucket, threw it in the fire; it exploded, injuring the plaintiff. The court thus stated the law of the case:
"It is the duty of persons, who keep in their possession or employ in their business that which, unless carefully guarded and cautiously used, is dangerous to others, to exercise such care to see that the dangerous agency is so kept and used as not to inflict injury upon others as an ordinarily prudent person would be expected to exercise in the use and keeping of such dangerous agency." Page 303 (164 S.W. 972).
In Miller v. Chandler, 168 Ky. 606, 182 S.W. 833 (), where some children playing in a hayloft found some dynamite caps which exploded and hurt one of them, the court, affirming the judgment in favor of the plaintiff, thus stated the law:
In Stephens v. Stephens, 172 Ky. 780, 189 S.W. 1143, where a little boy 11 years old got some dynamite caps at an apple peeling, the court quoted with approval from 17 R. C. L. O. 664, as follows:
In Carter Coal Co. v....
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