Coon v. Kentucky & I.T.R. Co.

• Citation: 173 S.W. 325,163 Ky. 223
• Parties: COON v. KENTUCKY & I. T. R. CO.
• Decision Date: 26 February 1915
• Court: Court of Appeals of Kentucky

173 S.W. 325

163 Ky. 223

COON v. KENTUCKY & I. T. R. CO.

Court of Appeals of Kentucky.

February 26, 1915

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by Louis S. Coon, suing by his next friend, against the Kentucky & Indiana Terminal Railroad Company. From a judgment of dismissal rendered on sustaining a demurrer to the petition, plaintiff appeals. Affirmed.

Eugene Hubbard and Alpha Hubbard, both of Louisville, for appellant.

Humphrey Middleton & Humphrey, of Louisville, for appellee.

CLAY C.

Plaintiff Louis Sterling Coon, suing by his next friend, brought this action against defendant, Kentucky & Indiana Terminal Railroad Company, to recover damages for personal injuries. Defendant's demurrer to the petition was sustained, and the petition dismissed. Plaintiff appeals.

It appears from the petition that defendant is a railroad company with authority to own, maintain, and operate a line of railroad in the state of Kentucky and elsewhere, and to own, maintain, and operate viaducts, bridges, and trestles over and upon the streets and thoroughfares of the city of Louisville. With the consent of the city, the company built a viaduct about 60 feet long and 50 feet wide and 20 feet high, extending across Montgomery street between Thirtieth and Thirty-First streets in that city. The north side of the viaduct consists of a concrete retaining wall. The wall is about 20 inches wide, with a smooth surface on top, and the west end is about 28 inches above the street. From the west end the wall gradually ascends until it reaches a height of 15 feet from the street. The children in the neighborhood find the wall attractive, and are in the habit of climbing upon it. This fact was known to the defendant. The plaintiff is an infant 14 years of age. The plaintiff climbed the wall, and, when he reached a point about 11 feet from the street, fell and was severely injured. It is alleged that his injuries were due to the gross carelessness and negligence of the defendant in failing to guard and protect the wall in such a way as to prevent injuries to children.

Plaintiff bases his right to recover on the "turntable" cases, or the "attractive nuisance" doctrine. We deem it unnecessary to discuss the doctrine at length. Numerous cases illustrating the different phases of the rule may be found in the editorial note to the case of Wheeling & L. E. R. Co. v. Harvey, 19 L. R. A. (N. S.) 1136. Other discussions of the question may be found in the notes to Walsh v. Pittsburg R. Co., 32 L. R. A. (N. S.) 559. This court has applied the doctrine and sustained a recovery in a number of cases. Thus in Bransom's Adm'r v. Labrot, etc., 81 Ky. 638, 50 Am. Rep. 193, the defendant owned a vacant lot between two streets in Frankfort. The lot had been used by the public for a number of years. Defendant used it for stacking lumber. One of the piles of lumber was negligently stacked. Plaintiff's intestate, a little boy, while playing on or near the unsafe pile of lumber, was struck by the falling lumber and killed. In the case of Harper v. Kopp, 73 S.W. 1127, 24 Ky. Law Rep. 2342, the defendant, without permission from the city, left a pile of lumber stacked in the streets. A child six years of age, while playing about the lumber, was injured. A recovery was allowed because the defendant stacked the lumber in a public street, where its unguarded condition made it attractive and dangerous for young children. In the case of Louisville Railway Co. v. Esselman, 93 S.W. 50, 29 Ky. Law Rep. 333, the railway company stacked, in one of the streets of Louisville, certain building materials to be used in the reconstruction of its power plant. Part of the materials consisted of heavy iron I-beams. While a boy 11 years of age was playing on the beams, one of them fell over and injured his leg. Judgment in favor of the boy was affirmed on the ground that the material was so negligently stacked as to constitute a dangerous instrumentality. A recovery was also allowed in Brown v. C. & O. Ry. Co., 135 Ky. 798, 123 S.W. 298, 25 L. R. A. (N. S.) 717, which was a typical turntable case. In the case of U.S. Gas Co. v. Hicks, 134 Ky. 12, 119 S.W. 166, 23 L. R. A. (N. S.) 249, 135 Am. St. Rep. 407, defendant maintained a defective gate valve in its pipe line underneath a street. Because of the defect the gas leaked. A child four years of age threw a match into the box, which caused an explosion, which injured plaintiff. It was held that, where a gas company maintained a pipe line in a highway, it was bound to protect it to prevent injuries to persons and children lawfully in the highway.

On the other hand, a recovery was denied in Louisville &amp Portland Canal Co. v. Murphy, 9 Bush, 522, where a little girl five years of age fell through the railing of a bridge maintained by defendant, and was killed. The evidence showed that the bridge was in good condition for purposes of travel. The court held that the defendant was not required to make its approach safe for children, but was required only to make...