Stephens v. Stephens

• Decision Date: 15 December 1916
• Citation: 172 Ky. 780
• Court: Kentucky Court of Appeals
• Parties: Stephens, By, &c. v. Stephens, et al.

Page 780

172 Ky. 780

Stephens, By, &c. v. Stephens, et al.

Court of Appeals of Kentucky.

Decided December 15, 1916.

Appeal from Pike Circuit Court.

J. S. CLINE for appellants.

ROSCOE VANOVER for appellees.

OPINION OF THE COURT BY JUDGE THOMAS. — Affirming.

Appellant, Malcom Stephens, an infant 11 years of age, attended with his mother an apple-peeling given at the home of appellees, William Stephens and wife, Warena Stephens. William and Warena Stephens were the parents of a son, Whetzell Stephens, who is alleged to be "about 14 years of age."

While in attendance upon the apple-peeling, according to the petition, Whetzell Stephens gave to the appellant some dynamite caps, and informed him at the time that they were empty cartridge hulls, and the appellant, Malcom Stephens, believing them to be such, took them, and afterwards, in handling them, one exploded, tearing away three fingers from his hand.

Conceiving that the parents of Whetzell Stephens were guilty of such negligence as to render them liable for the damages sustained by the injury, the appellant by his step-father as his next friend, filed this suit against William and Warena Stephens to recover the sum of $3,000.00. A demurrer was sustained to the petition, after which it was amended, a demurrer sustained to it as amended, and plaintiff declining to plead further, his action was dismissed, and to reverse the judgment this appeal is prosecuted.

In setting up his cause of action, the plaintiff in his petition says:

"That the injuries to plaintiff were caused by the gross carelessness and negligence of the defendants, Williams and Warena Stephens, and Whetzell Stephens, their son, in the care of the said dynamite caps. That the defendants did not exercise the proper degree of care in keeping the said dynamite caps; that they recklessly permitted their son to use and handle the said dynamite caps, well knowing of their high explosive nature, and permitted the said dynamite caps to be handled recklessly and wantonly about their home, when, in fact, they well knew of the high explosive character of the said dynamite caps, well knowing that children, or even members of their own family, would obtain possession of said caps, and be injured thereby."

Further along in the petition it is stated that the defendants failed to "take reasonable or proper precaution so that innocent, inexperienced persons would not be injured thereby; that said dynamite caps were recklessly handled at the home of defendants, and that defendants permitted their said son, Whetzell Stephens, to obtain possession of said dynamite caps and give them to the plaintiff aforesaid." It is also stated that the defendants knew of the explosive nature of the dynamite caps, and of the fact that they kept them in their residence, and with this knowledge permitted the caps to get into possession of their son.

The amended petition stated that appellees knew that their son had possession of said caps and that they "had said caps in a trunk, and well knowing of their dangerous character and attractiveness to children, left the trunk unlocked, and by their negligence made it possible for their son and other children to get possession thereof."

The question presented by the demurrer is whether the petition as amended stated a cause of action in favor of plaintiff against the parents of Whetzell Stephens. The rule with reference to the care which should be exercised in the storing and keeping of dangerous explosives upon or about one's premises so as to prevent injury or damage to one rightfully upon the premises and who may not know of or fully appreciate the danger of handling them is well settled. Generally stated, for the protection of mature and responsible persons, as well as immature and irresponsible ones, it is that "He (the person keeping the dynamite) must exercise care for the safety of persons invited thereon (his premises); and he may be liable if he negligently leaves explosives on the premises that may result in injury to any person not a trespasser." 17 R. C. L. 664. But for the protection of infants who are shown, either because of their age or other evidence, to be unable to appreciate the danger in handling explosives, whether such person be invitee, licensee or trespasser, the rule is stated in the same book and page, supra, to be:

"As a general rule a person leaving exposed and unguarded on his premises an explosive which is found by trespassing children is liable for any injuries resulting from its explosion. This rule is based on the very natural and reasonable assumption that children, wherever they go, must be expected to act upon childish instincts and impulses; and those who are chargeable with a duty of care and caution towards them, must calculate upon this, and take precautions accordingly. If persons leave exposed to the observation of children anything which would be tempting to them, and which they in their immature judgment might naturally suppose they were at liberty to handle or play with, such persons should expect that liberty to be taken."

But if the injured person is a trespasser, and of the class who is unable to appreciate the danger of handling the explosive, it would be necessary, in order to make the defendant responsible, that he should have knowledge of the fact that such trespasses were habitually committed upon his premises at the place where he kept or stored the explosive or that the premises were so attractive as naturally to invite that class of trespassers. These rules have been fully sanctioned by this court in the cases of Ball v. Middlesboro T. & L. Co., 24 Ky. Law Rep. 114; Miller v. Chandler, 163 Ky. 301, and same case 168 Ky. 606.

The reason for the rule as applicable to immature infants, on account of whose age they may be presumed to be incapable of appreciating the danger, or as to others who may be actually shown to be so unable, is stated by this court in the case of Bransom's Admr. v. Labrot, 81 Ky. 638, which is referred to and approved in the two Miller cases above mentioned, as follows:

"The rule adopted by this learned author (Thompson on Negligence) is that where the owner of the premises creates or brings thereon any dangerous thing, which, from its nature, has a tendency to attract the childish instincts of children to play with it, he is bound, as a matter of social duty, to take such reasonable precautions as the circumstances admit of to protect them from injury while playing with it, or in its vicinity."

To the doctrine as thus found in the text book, as...