139 Ky. 647 | Ky. Ct. App. | 1903
Opinion op the Court by
-Affirming.
This suit was brought by appellee, Ella Rouse, against the appellant, the Langdon-Creasy Co., to recover damages for injuries sustained by her in lighting a gasoline lamp in the store house of the appellant at Williamstown Kentucky, on the 22nd day of March, 1901. The record disclos'es that appellee had been in the employ of Langdon & Creasy, a partnership, as manager of their grocery store located at Williams-town in Grant county from some time in October, 1900, until the 7th day of March, 1901. On that' day the store was transferred from the partnership of Langdon and Creasy to the Langdon-Creasy Co., a corporation-organized under the laws of this State. After the transfer of the store to the new corporation, appellant continued in its employ as general manager having authority to employ a porter, and, when the necessities of the business required it, additional clerical assistance. The headquarters of the corporation was in Cincinnati, Ohio, and they owned and operated quite a number of similar stores located at different points in the State of Kentucky. The gasoline lamp, which it is charged occasioned the injury, had been used for lighting the store for several months previous to the date of the accident, and had been under the special management of the appellee. It also appears that she had clerked in the store belonging to Langdon & Creasy at Eminence, Ky., for some months previous to her
“The instruction on the first page of the circular carefully followed will give you perfect success. The whole thing in a nut shell is just this, put two quarts of gasoline in the bowl, screw the filler tap on tight, attach the pump to the air valve, open the thumb screw two or three turns and pump in twenty-five or thirty strokes of the pump. Before pumping in the air, see that the light valve is firmly closed. Now heat the generator with the alcohol torch as directed then open the light valve still holding the lighted torch above the top of the -chimney, in about fifteen seconds the gas will form, pass around the gas tube to the burner where it will light from the torch you are holding at the top of the chimney. All this is only a brief repetition of the directions on the circular, which if you will read and carefully follow, you will have no trouble.
‘ ‘ Yery truly yours,
“THE PERFECTION BURNER CO.,
“A. B. Tremer, Manager.”
The negligence in connection with this lamp with which appellant is charged by appellee, is that the appliance was new to her and that she was not familiar with its operation and management; that she did not know that it was dangerous; that appellant knew that it was unsafe and dangerous and likely to explode and
“We should not altogether lose sight of the sympathies of our nature and require a father or husband to abandon his child or wife at the moment of apprehended death for the purpose of attending the trial of a pecuniary contest.”
The rule it seems to us also applies to the case of the mother. We are therefore of the opinion that the trial court erred in not granting the continuance, and also in excluding as incompetent evidence the portions of the affidavit which were stricken out.
lit is difficult to determine from the testimony whether the accident was the result of some defect in the lamp or negligence on the part of appellee. No one was in the store when it occurred. She testifies in substance that when she attempted to pump air into the reservoir, she discovered that the cylinder was too full, as the gasoline ran out of the pump tube; and that she thereupon poured out of the lamp
Upon the trial defendant produced before the jury as an expert witness, one of the officers of the corporation engaged in the manufacture of the lamp and asked that he be permitted to practically demonstrate before the jury the manner of filling and lighting the lamp. This testimony was objected to on the ground that the witness had had the possession of the lamp for several hours before the proposed experiment, and that it might not be in the same condition as when the accident occurred. For this reason the court refused to allow the experiment to be made in the presence of the jury. The -admissibility of testimony of this character is one that should be left largely to the sound discretion of the trial court. Judge Thompson in his work on Trials, vol. 1, Sec. 620, says that:
“Experiments in the presence of the jury are generally discountenanced owing to the liability of the*655 jurors being imposed upon by skillful manipulation or jugglery. But experiments coming within the range of ordinary knowledge may well be permitted.”
In the note to Lenard v. Southern Pacific Co., 15 L. R. A., 221, the annotater says:
“This may be perhaps regarded as a correct theoretrical statement of the rule, and if it is adopted the conflict will come in determining what matters come within the range of ordinary knowledge or experience and what not.”
In view of all the testimony in this case we are not prepared to say that the trial court erred in refusing to allow this .demonstration to be made by the expert in this particular case.
In instruction A given to the jury, they were told:
“That it was the duty of the defendant to furnish the plaintiff a reasonably safe lamp and appliance for lighting the store; and that the plaintiff had the right to rely upon the defendant to provide a reasonably safe and suitable appliance for that purpose and to maintain it in a reasonably safe condition, and to instruct the plaintiff in the proper use of same, and to warn her of any danger to her in lighting it if there was any. And it was the duty of the plaintiff to exercise ordinary care in lighting and using the same to avoid danger. But if the jury shall believe from the evidence before them in this case that the defendant negligently and carelessly furnished to the plaintiff a lamp or appliance for lighting their store that was not reasonably safe to light or use, and failed to instruct her in the proper use cf the same, or to warn her of the danger if any to her in lighting same; and that the plaintiff did not know and could not by ordinary care discover the danger in lighting same; and that while plaintiff was exercising ordinary care in*656 attempting to light the same, said lamp did expel from it burning gas or gasoline, which ignited and burned the face, hand, neck and clothing of the plaintiff, then the law is for the plaintiff and the jury should find for the plaintiff such damage as will compensate for the burning, suffering, loss of time, any. permanent impairment of her ability to earn money and such sum as she was compelled to expend for medical attention, nursing and board, not exceeding in all $5,000.00, the amount claimed in the petition.”
It was the duty of the defendant to have furnished a reasonably safe lamp for lighting their store, and if the lamp furnished was unusual in its operation, or. dangerous in its possibilities, to have instructed the plaintiff, as to its proper use and warned her of possible danger that might arise in lighting it. The instruction quoted, supra, was misleading in requiring them to have maintained the lamp in good condition. Appellee was the manager of appellant’s business at Williamstown, and it was her duty to see that the lamp was kept in good condition, and if it failed to perform its office to have it set aside and used the coal oil lamp provided for such an emergency. The testimony shows that it was 'only at intervals that the auditing agent of the defendant corporation visited the store for the purpose of taking stock and auditing the accounts of appellee as manager. All responsibility for the proper management of the store was upon her, and she should not be allowed to shift this responsibility to her employers, who lived in a distant city and could have had no personal knowledge as to whether the lamp was maintained in good condition or not. Their duty was discharged when they furnished a safe appliance. ITer duty required that it should be maintained in the same order or its use