Sutton Construction Co. v. Lemaster's Admr.

• Decision Date: 24 February 1928
• Citation: 223 Ky. 296
• Parties: Sutton Construction Company v. Lemaster's Administrator.
• Court: United States State Supreme Court — District of Kentucky

223 Ky. 296

Sutton Construction Company v. Lemaster's Administrator.

Court of Appeals of Kentucky.

Decided February 24, 1928.

1. Explosives. — One using or storing explosives must use such care as is commensurate with nature of substance and dangers incident to handling or use thereof.

2. Explosives. — Where place of storage or use of explosives is readily accessible to children of tender years, such care as might reasonably be expected of person of ordinary prudence under circumstances must be exercised not to expose children to injury.

3. Explosives. — In action against defendant, constructing highway, for death of 9 year old boy, resulting from burns while playing with powder left exposed near highway by defendant where evidence showed that children used highway at point where powder was stored to knowledge of defendant, defendant should have anticipated dangers incident to leaving powder exposed and owed children duty to remove powder or safeguard it in reasonable way.

4. Explosives. — In action against defendant, constructing highway, for death of 9 year old boy resulting from burns while playing with powder found near highway, directed verdict for defendant was properly denied, where evidence showed that defendant left powder exposed and unguarded at place where it knew children, including deceased, used highway, and should have reasonably have anticipated that children would discover it.

5. Negligence. — Children between ages of 7 and 14 are presumed incapable of contributory negligence, but presumption may be rebutted by counter testimony.

6. Explosives. — In action against defendant, constructing highway, for death of 9 year old boy, resulting from burns while playing with powder left exposed near highway by defendant, in absence of evidence showing 9 year old boy realized dangers attendant on playing with powder, boy was not guilty of contributory negligence as matter of law.

7. Explosives. — In action against defendant, constructing highway, for death of 9 year old boy resulting from burns while playing with powder left exposed near highway by defendant, act of 9 year old companion of decedent in informing decedent and other children of location of powder was not an intervening independent cause destroying causal connection between defendant's wrongful act and consequences thereof, but was such an act as reasonably should have been anticipated.

8. Explosives. — In action against defendant constructing highway, for death of 9 year old boy resulting from burns received while playing with powder left exposed near highway by defendant, in absence of responsible intervening cause, act of defendant's employees in leaving powder on highway was proximate cause of injury.

9. Explosives. — In action against defendant, constructing highway, for death of 9 year old boy resulting from burns received while playing with powder left exposed near highway by defendant, warning by father and defendant's employees did not relieve defendant from liability for negligence in leaving powder on highway.

10. Appeal and Error. — Where ground of motion for continuance was not set out in grounds for new trial so that error in denying continuance was not brought to attention of trial court, but was complained of for first time on appeal, Court of Appeals cannot consider such ground.

Appeal from Martin Circuit Court.

BROWNING & REED, PRICHARD, MALIN & SMITH, H.O. WILLIAMS, J.B. ADAMSON, W.R. McCOY and J.B. CLARK for appellant.

ERNEST N. FULTON, WILL H. FULTON, ISSAC RICE and FRED A. VAUGHAN for appellee.

OPINION OF THE COURT BY JUDGE REES.

Affirming.

Appellant, Sutton Construction Company, was engaged in the construction of a public highway in Martin county, Ky., during the year 1926. The highway under construction passed within 150 feet of appellee's home and was being constructed on a new location, the right of way of the road that had been used theretofore also being near appellee's home, which was located at a point approximately equidistant from the two roads. Appellant used powder for blasting purposes in its work of constructing the road, and on Sunday, March 14, 1926, appellee's son and intestate, Jason Lemaster, a boy 9 years of age, and seven companions ranging in age from 7 to 11 years, discovered five cans of blasting powder, which, according to the evidence for the appellee, had been stored by appellant, after discontinuing work on the preceding day, near the ditch line on the side of the road a few hundred feet from appellee's residence. The boys had congregated at the Lemaster home to play, and one of them, Earl Butcher, who was 9 years of age, had observed the powder stored alongside the road, and he communicated this fact to the other boys. They went to the place where the powder was stored, opened one of the cans, and took therefrom a quantity of powder, which they placed in their pockets. They then went to a nearby place, referred to in the evidence as the "coal bank," where a fire was burning, and proceeded to take the powder from their pockets and throw it on the fire to see it flash up when it came in contact with the live coals. While thus engaged the blaze ran from the fire to the powder in decedent's pocket, ignited it, and set fire to his clothing, and he was burned so severely that he died within a few days. The road under construction had not been opened for traffic at the time this accident occurred, but there is considerable testimony tending to show that it was being used by the residents of that community, both adults and children, with the knowledge and consent of the appellant. Several witnesses testified that they saw the cans of powder both before and after the accident and that they were in plain view of any one passing along the road.

This action was instituted by appellee in the Martin circuit court to recover for the death of his son, Jason Lemaster, upon the theory that appellant was negligent in leaving the powder at the place where it was found by decedent. The trial resulted in a verdict for appellee in the sum of $7,000 and appellant seeks a reversal of the judgment upon the following grounds: (1) The...