123 Minn. 114 | Minn. | 1913
Emil Eckart was injured by the explosion of a dynamite cap on December 27, 1910. These actions were brought to recover damages on allegation that the injury was caused by the negligence of defendant. The actions were tried together. At the conclusion of plaintiffsr testimony the defendant moved for a dismissal of each case on the ground that there was a failure to prove a cause of action. The motions were granted. Plaintiffs moved for a new trial. This was-denied and plaintiffs appeal. The only question on this appeal is; whether the evidence made out a case for submission to the jury as; to the liability of the defendant. We are of the opinion that a¿ prima facie case was made out, and that the court erred in dismissing the cases.
The facts as disclosed by the testimony are as follows: Defendant owned and lived upon a farm in Freeborn county. About the last of August, 1910, he employed one John Peterson to assist him in blasting some stone. Peterson, at the request of defendant, procured at a hardware store at Albert Lea some dynamite sticks and dynamite caps. After they had finished the work of blasting there was left a stick and a half or two sticks of dynamite and four dynamite caps. Peterson put the sticks in one package and the caps-in.another, and wrapped each package with wrapping paper. The package containing the caps he tied with a string. . These caps were from an inch to an inch and a quarter long. The package as it was-wrapped up was about three inches long and about an inch through. Peterson handed both packages to defendant, telling him that the caps were the more dangerous of the two in handling. Defendant stated that he might use them later on to blast some stumps. Peterson and defendant then walked to the granary together. Defendant went into the granary, and put the package containing the dynamite sticks into an old iron kettle which he hung upon a nail in the granary. There is no evidence as to what disposition was made of the
Some time later defendant sold his farm to plaintiff, John Eckart. Eckart took possession November 1. He had a family of small children. Emil, the injured boy, was then about fourteen. One day, about the middle'of December Emil was fixing a buggy on the east side of the granary, the door being on the south side. A little brother George, two or three years old, was playing on the ground close to the granary door with a larger brother Irvin, about eight or nine. The testimony of Irvin was excluded by the court, but Emil testified that George came around to him with a cap in his hand and ihanded it to Emil, saying as he did so: “See what I found.” This [remark was stricken out on motion. Emil put the cap into his pocket and kept it until December 27, thinking it was an empty cartridge and intending to use it on a pencil. It proved to be a dynamite cap of the same kind as those used by defendant. On December 27 Emil undertook to clean out with a darning needle what he thought was .some dirt in the bottom of the cap. This caused the explosion.
Defendant was called to the stand by plaintiff for cross-examination under the statute. He admitted having received from Peterson the two packages, one containing the dynamite sticks and the other containing the dynamite caps. He admitted going into the granary .and placing the package of dynamite sticks in the iron kettle. He testified that he put the package of caps in his vest pocket and that two or three days later he took both the sticks and the caps at the ■same time to a hardware store in Albert Lea and exchanged them for nails. There is abundant contradiction of this testimony as far as the dynamite sticks are concerned.
One witness,' Hans Midje, testified that after defendant had left the farm, and before the accident, he met defendant at the granary; that the package of dynamite sticks was then in the iron kettle, and defendant called his attention to it and talked of taking it away. 'Midje further'testified that he was at the granary after the accident and that the package was still there. Walter Eckart testified that the package of dynamite sticks was there in the kettle two weeks after the accident and was then taken away by defendant’s son.
There is evidence tending to show that no other dynamite caps were used about these premises.
In order to charge defendant with liability it must appear, (1) that the cap which caused the damage was one of the caps left in defendant’s possession, and (2) that it came into the hands of the injured boy through negligence of defendant.
Order reversed and new trial granted.