Dennis' Adm'r v. Kentucky & West Virginia Power Co.

• Decision Date: 12 February 1935
• Citation: 258 Ky. 106,79 S.W.2d 377
• Parties: DENNIS' ADM'R v. KENTUCKY & WEST VIRGINIA POWER CO.
• Court: Kentucky Court of Appeals

79 S.W.2d 377

258 Ky. 106

DENNIS' ADM'R v. KENTUCKY & WEST VIRGINIA POWER CO.

Court of Appeals of Kentucky

February 12, 1935

Rehearing Denied March 22, 1935.

Appeal from Circuit Court, Boyd County.

Action by the Administrator of Willie Denis against the Kentucky &amp West Virginia Power Company. From the judgment, the plaintiff appeals.

Affirmed.

Prichard & Holbrook, of Ashland, for appellant.

A. T Bryson, of Ashland, for appellee.

CREAL Commissioner.

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 attractive 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 premises, was attracted by the condition of the tower as offering a point of vantage from which to view the game, and without any notice or knowledge of the probable danger, and particularly of the danger zone, he ascended the tower for the purpose of seeing over the grandstand, and in order for him to do so it was necessary for him to climb almost to the top, and while there, and without touching or coming in direct contact with the wires, he received an electrical shock sufficient to cause his death and to cause him to fall to the ground, whereupon he died.

A demurrer to the petition having been sustained, plaintiff filed an amended petition alleging that the tower described in the petition and upon which the injuries to plaintiff's decedent occurred was located on the land owned by the Kentucky & West Virginia Power Company and which had been owned by it for a long time prior to the accident. He withdrew all allegations in conflict with the amended petition, and prayed for judgment against the Kentucky & West Virginia Power Company. A demurrer...