William Pinson and Emma Pinson v. Young

• Decision Date: 12 May 1917
• Docket Number: 20,516
• Citation: 100 Kan. 452,164 P. 1102
• Parties: WILLIAM PINSON and EMMA PINSON (EMMA PINSON, Appellee) v. WILLIAM YOUNG and JOHN YOUNG, Partners, etc., et al. (WILLIAM YOUNG and THE INDEPENDENT POWDER COMPANY, Appellants)
• Court: Kansas Supreme Court

164 P. 1102

100 Kan. 452

WILLIAM PINSON and EMMA PINSON (EMMA PINSON, Appellee) v. WILLIAM YOUNG and JOHN YOUNG, Partners, etc., et al. (WILLIAM YOUNG and THE INDEPENDENT POWDER COMPANY, Appellants)

No. 20,516

Supreme Court of Kansas

May 12, 1917

Decided January, 1917.

Appeal from Cherokee district court; JAMES N. DUNBAR, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

1. DYNAMITE -- Negligent Storage -- Evidence. Evidence examined and held sufficient to fix responsibility for the negligent storage of dynamite.

2. DYNAMITE--Negligence--Explosion--Death--Proximate Cause. Where dynamite is stored in a building in violation of a city ordinance, and the dynamite is exploded by a fire in the building, and a fireman on duty at the building is killed thereby, such negligent storage of the dynamite is a proximate cause of the death of the fireman.

3. TRIAL--Instructions. Requested instructions examined and held properly refused, and appellants' rights duly recognized in those given.

William F. Sapp, A. S. Wilson, both of Galena, and J. W. McIntire, of Joplin, Mo., for the appellants.

A. D. Schreiner, of Galena, and Charles Stephens, of Columbus, for the appellees.

OPINION

DAWSON, J.:

The plaintiffs are the father and mother of John Pinson, a Galena fireman, who was killed by an explosion while he was extinguishing a fire in a building containing dynamite. The deceased was a single man and his parents were partly dependent upon him for support, and they brought this action against the defendants for damages for the wrongful death of their son.

The defendants, Young Brothers, were engaged in mining operations in and about the city of Galena and were tenants of the building. In one corner of it they had constructed a small room for the storage of explosives. There is a city ordinance in Galena regulating the keeping of explosives, making it unlawful to store over two hundred pounds of powder in any building within the city except "in a perfectly constructed powder house, subject to the approval of the mayor and council."

The Independent Powder Company, another defendant, is a corporation engaged in the manufacture, sale and distribution of explosives in and about the Galena mining district. Still another defendant was the owner of the building, but its relation to this lawsuit needs no attention.

The plaintiffs charged that Young Brothers and The Independent Powder Company brought about the death of their son by negligently storing large quantities of dynamite and other explosives in the building in violation of the city ordinances, that the explosives thus stored were a dangerous nuisance, and,

"That said deceased, acting in the line of his duty and in the exercise of ordinary care, not knowing of the existence in said building of any of said explosives herein described, was standing on the regularly traveled sidewalk just north of said building where he and all others had, at all times, a right to be, near the north end of said brick building holding in his hands a large rubber fire hose through which he was directing water onto said flames, when, because of the recklessness, gross and wanton carelessness and negligence of said defendants, their agents and employees, and each of them, as herein alleged, the said dynamite and detonating caps, stored in said building as aforesaid, exploded with terrific force and violence, completely demolishing said brick building, throwing the north wall upon the said John Elmer Pinson and then and there killing him instantly; that the proximate cause of his death was the gross and wanton carelessness and negligence of said defendants, their agents and employees, and each of them in there maintaining an inherently and extremely dangerous nuisance by storing and keeping of said explosives in said brick building as herein alleged."

Issues were joined, and the cause was tried to a jury which made special findings and rendered a general verdict for the plaintiffs and against Young Brothers and The Independent Powder Company.

The powder company is the principal appellant and it assigns certain errors which will be noted in order. It contends first that there was no evidence to prove that the powder company was connected in any way with Young Brothers in the ownership or control of powder in their magazine. But there was substantial evidence to show that the explosion which caused the greatest damage was not occasioned, or not occasioned alone, by the relatively small amount of powder in the magazine or room constructed in the corner of the building for powder storage, but by the explosion of a much larger quantity of dynamite deposited in the building outside this storage room. Some of the evidence tended to show that while it was the custom to supply the mining operators in and about Galena, including Young Brothers, with powder in the early hours of the day, the powder company was frequently seen to unload powder at this building in the evening, and that it usually commenced its daily business each morning at Young Brothers' building, from which it might properly be inferred that it used this building as a...