American Ry. Express Co. v. Crabtree

• Citation: 271 F. 287
• Decision Date: 08 February 1921
• Docket Number: 3407,3436.
• Parties: AMERICAN RY. EXPRESS CO. v. CRABTREE. CRABTREE v. AMERICAN RY. EXPRESS CO.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

271 F. 287

AMERICAN RY. EXPRESS CO. v. CRABTREE.

CRABTREE v. AMERICAN RY. EXPRESS CO.

Nos. 3407, 3436.

United States Court of Appeals, Sixth Circuit.

February 8, 1921

Edward C. O'Rear, of Frankfort, Ky. (Overton S. Hogan, of Frankfort, Ky., and A. T. Stewart, of Stanton, Ky., of counsel), for plaintiff.

John D Atkinson, of Stanton, Ky., for defendant.

Before KNAPPEN, DENISON, and DONAHUE, Circuit Judges.

DENISON Circuit Judge.

The Express Company maintained an office at a small station in Kentucky, and its agent received from the railroad, consigned to an oil company in the vicinity, an iron wheel 42 inches in diameter, and with a rim 10 inches wide, and weighing about 200 pounds. The Express Company's agent, instead of putting this in the warehouse until it should be called for left it standing on the cinder platform, tilted over against the loading platform. The children of the town were in the habit of playing about the station building and grounds. On Sunday afternoon two boys tilted the wheel back to its upright position and rolled it up and down the cinder platform. After they had tired of this, and had left it standing on the rim at some distance from its original position, two little girls came along and probably undertook to roll it. It fell over upon and killed the youngest one, eight years old. Her administrator, who was also the father, brought this action under the Kentucky statute and recovered a judgment for $1,000 damages. The defendant brings error, claiming that there was no evidence of negligence, and the plaintiff brings error, urging that contributory negligence was improperly made an issue in the trial, and that, if the plaintiff is entitled to recover, the law requires a larger verdict.

We think there was substantial evidence tending to show negligence by defendant, and no complaint is made of the manner in which this issue was submitted to the jury, if it could be submitted at all. There was a place where the wheel could have been stored, and where it would have been entirely safe. If it had been left standing on edge, it would be clear that it had taken the character of an attractive nuisance. The event proves that it was not tilted over so far, but that it could be easily restored to its dangerous position, and this by the efforts of children, whose natural and ordinary conduct in respect thereto defendant was bound to anticipate. If it had been laid down in a horizontal position, or leaned over far enough so that it would have been beyond the power of boys to set it upright, there would be a different question. In these respects the jury had a right to conclude that the case differed from Kasey's Adm'r v Railway Co. (Ky.) 124 S.W. 380, the decision chiefly relied on by defendants. The facts are very similar, but the wheel in that case either was...