Dennis' Adm'R v. Ky. & W. Va. Power Co.

• Decision Date: 12 February 1935
• Citation: 258 Ky. 106
• Court: United States State Supreme Court — District of Kentucky
• Parties: Dennis' Administrator v. Kentucky & West Virginia Power Co.

258 Ky. 106

Dennis' Administrator v. Kentucky & West Virginia Power Co.

Court of Appeals of Kentucky.

Decided February 12, 1935.

1. Negligence. — Steel frame transmission tower was not an "attractive nuisance" when used as observation point to view football game in nearby athletic field, as regards liability of power company for death of one who was electrocuted while so using tower.

2. Negligence. — Attractive nuisance doctrine held inapplicable to normal 16 year old boy, in view of presumption that boy of that age is out of class for whose benefit doctrine was created, as regards liability of power company for death of boy who was electrocuted when he climbed transmission tower.

3. Pleading. — Sufficiency of petition must be determined by allegations of petition which on demurrer are admitted as true.

4. Electricity. — Dealers in electricity are not insurers of safety of others.

5. Electricity. — Boy who climbed upon steel transmission tower to observe football game in nearby athletic field was not an "invitee," since he was not on tower by express invitation of power company, and his use of tower was not beneficial to or in any way connected with power company's business, but he was a "trespasser" or "licensee," as regards liability of power company for his death when he was electrocuted while so using tower.

6. Negligence. — Trespasser or licensee takes premises as he finds them, at his own risk, with no duty resting upon owner except to refrain from willfully or wantonly injuring trespasser or licensee.

7. Electricity; Negligence. — Power company held not liable for death of 16 year old boy who was electrocuted when he climbed upon transmission tower to observe football game in nearby

athletic field, since attractive nuisance doctrine was inapplicable to normal 16 year old boy, and boy was licensee or trespasser who took premises as he found them at his own risk.

Appeal from Boyd Circuit Court.

PRICHARD & HOLBROOK for appellant.

T. BRYSON for appellee.

OPINION OF THE COURT BY CREAL, COMMISSIONER.

Affirming.

The administrator of Willie Dennis, deceased, instituted this action in the Boyd circuit court against the American Rolling Mill Company and the Kentucky & West Virginia Power Company, both corporations, seeking to recover damages for the death of the decedent alleged to have been caused by the negligence of the defendants.

In the original petition, after setting out the necessary jurisdictional facts, it was alleged that prior to, at the time, and since the accident complained of, the power company has maintained and operated high-tension power lines running from its plant at Kenova, W. Va., through Boyd, Greenup, and other counties in the state of Kentucky, one of which runs to its substation located near the property and plant of the American Rolling Mill Company in Boyd and Greenup counties; that high-voltage currents of electricity were, at all times, transmitted over its power lines; that the lines or copper wires through which the electricity was transmitted were strung and attached to steel frame towers about 30 by 30 feet at the base and tapering to the top and something over 60 feet in height. There are cross-arms extending out from the top of the towers, and the transmission lines are attached to insulators on these cross-arms. At one corner of the tower are attached steel spikes or projectors which serve as a ladder for ascending and descending. This ladder begins about 4 1/2 feet from the ground and continues to the top of the tower. It is further alleged that at all times mentioned the American Rolling Mill Company was operating and managing an athletic field located on its land in Boyd county, where football, baseball, and other athletic contests were held; that this ground is equipped with grandstands and bleachers, and is completely inclosed with a metal fence approximately 9 or 10 feet high; that when not using this ground for its own purposes it would allow the Ashland High School Athletic Association to hold athletic games thereon to which admission fees were charged; that one of these steel towers had been erected on the land owned by the American Rolling Mill Company adjacent to the football field and about 100 yards back of the grandstand; that the steel towers and transmission wires thereon had never been used as a means of transmitting electricity in the vicinity or locality referred to until introduced by the Kentucky & West Virginia Power Company, and the nature of the towers and the wires attached thereto and the great electrical force and the dangers incident thereto were not understood by the people of that locality and particularly by children and by people with lack of experience and knowledge of electricity; that by reason of the peculiar construction of the towers, the ease of access to all parts thereof, the apparent security of same and the apparent lack of danger in connection therewith, the towers constituted an attractve nuisance and constituted an invitation to the public, especially to children and people with lack of experience, to climb the tower at the time referred to in the petition; that, understanding these facts, defendants negligently and carelessly failed to use any means to prevent the use of the tower by children and other persons unaccustomed to and not acquainted with the danger, and negligently left the ladder easily accessible without warning sign of any character advising persons on or about the premises, or attracted by the towers, of the dangers incident to climbing or using same; that the high-tension wires on the towers were so heavily charged with electricity that it was unnecessary for a person to come in actual contact with the wires to be affected by the current, and that there were certain zones and distances from the wires within which it was dangerous for persons to come; that on November 5, 1932, the American Rolling Mill Company permitted the Ashland High School Athletic Association to hold a football game on its field, and great crowds of people were invited and permitted to congregate on the premises adjacent to the park; that a great number of persons, so invited and attracted to the game, did not enter the playing field, but remained outside the fence, climbing to points of vantage whereby they might see over the fence and into the field; that defendants knew that large crowds would be attracted to the premises and would attempt to climb on any structure that would enable them to view the football game, and that the tower adjacent thereto was attractive and alluring to children and others who were constantly and frequently climbing and using same; that plaintiff's decedent, a boy 16 years of age, was attending the Ashland High School and was interested in its athletic activities; that on November 5, 1932, he went to the athletic field hereinbefore referred to for the purpose of seeing the game, but upon being refused admittance to the field without buying a ticket, and while rightfully on the...