Wright v. L.C. Powers & Sons

• Decision Date: 01 May 1931
• Citation: 38 S.W.2d 465,238 Ky. 572
• Parties: WRIGHT v. L. C. POWERS & SONS.
• Court: Kentucky Court of Appeals

38 S.W.2d 465

238 Ky. 572

WRIGHT v. L. C. POWERS & SONS.

Court of Appeals of Kentucky

May 1, 1931

Appeal from Circuit Court, Whitley County.

Action by Russell Wright, by his next friend, against L. C. Powers and Sons. From a judgment for defendant, plaintiff appeals.

Affirmed.

R. L Pope, of Knoxville, Tenn., and T. B. Culton, of Corbin, for appellant.

Tye Siler, Gillis & Siler, of Williamsburg, and Humphrey Crawford & Middleton, of Louisville, for appellee.

HOBSON C.

Russell Wright, by his father, W. H. Wright, as his next friend brought this action to recover from L. C. Powers & Sons damages for the breaking of his arm, which he alleged was by reason of the negligence of the defendants. The issues were made up, the evidence was heard, and at the conclusion of the plaintiff's evidence the court peremptorily instructed the jury to find for the defendants. The plaintiff appeals.

The facts are these: Main street in Corbin runs at right angles with Fourth street. W. H. Smith owned a lot at the corner of Fourth and Main. His dwelling house was next to the corner and in it he kept a boarding house. Fronting on Fourth street and next to the boarding house was a dwelling house which Smith rented out. W. H. Wright was living in this house with his family. By the side of the house was a driveway about 10 or 12 feet wide leading to the back of the lot to a garage where Wright kept his car, and to several other garages back there used by Smith and his tenants. L. C. Powers & Sons were contractors in Corbin and as such used a number of trucks. One of these trucks ran out of gasoline as one of the agents of Powers & Sons were driving it the night before after work hours. He boarded with Smith, and after this truck would not run any farther he got another truck of Powers & Sons and pulled this truck into the driveway in question and left it standing in the driveway near the corner of Wright's house. The next morning Orlando Wright, the son of W. H. Wright, got his father's car out of his garage and drove it out the passway, but found it a very close shave to get through between the truck and the fence. When he came back from this trip, fearing that the place was too narrow to go through safely with his car, he stopped his car; he and Russell Wright, who was with him, tried to push the truck out of the way, but could not move it. He got into the seat of the truck to manipulate the ignition key and told Russell Wright, who was with him, to crank the truck. Russell turned the crank. The engine back-fired and the crank struck and broke Russell's arm. They did not know that the truck had been left there because it was out of gas.

Russell Wright was fifteen years old in August. The accident occurred in the preceding June. Orlando was twenty years old. No complaint had been made to any one that the truck had been left there. It had been standing there something over twelve hours. The question presented is: Are Powers & Sons liable to Russell Wright for the breaking of his arm? It is earnestly insisted for him that the defendants were negligent in leaving their truck in the driveway, and...