Durbin v. Louisville & N.R. Co.
Decision Date | 18 February 1949 |
Citation | 310 Ky. 144 |
Court | United States State Supreme Court — District of Kentucky |
Parties | Durbin v. Louisville & N.R. Co. |
Appeal from Lee Circuit Court.
J. Mott McDaniel and V.S. Beatty, for appellant.
C.S. Landrum, C.E. Rice, Jr., E.B. Rose and H.T. Lively for appellee.
Before E.B. Beatty, Judge.
Affirming.
This is an appeal from the action of the court below in peremptorily instructing the jury to render a verdict for the defendant.
Appellant, at the time of the accident, was 13 years of age. Action was instituted below by his statutory guardian to recover for personal injuries sustained when he was run over by appellee's train.
The evidence shows that appellant was walking near the tracks of appellee when two boys called him and asked that he climb in a coal car to assist them in removing a plank from the car. Appellant complied with this request. It appears that he climbed on the car, straddling the side of it, and was in the act of assisting in removing the plank, when, without warning, the train started, throwing him off. He was run over, and as a consequence lost both arms, one just below the elbow and the other just above.
As grounds for reversal appellant raises 14 points in his brief, many of which overlap and are interwoven. The questions raised, therefore, will be considered without regard to the order or number as set out.
The major portion of appellant's brief concerns the contention that the railroad cars, under the facts and circumstances of this particular case, were an attractive nuisance. Apparently not unmindful that we have on numerous occasions held that a railroad car as such is not an attractive nuisance, appellant insists that when taken in conjunction with other facts and circumstances it may become such. Here it is insisted that appellee for a period of 30 or 40 years not only permitted the children of Heidelberg to make a playhouse of its standing and moving cars, but that its employees actually invited and enticed the children to play on the cars, and to assist in cleaning the empty cars en route to the coal fields; that appellee knew the children had been in the habit of playing on the cars and had encouraged them so to do when in fact it was appellee's duty to prohibit such practice; and that its employees attention had been called to, and objections made to permitting these children to play on the cars. It is insisted that because of this knowledge and practice, appellee should have anticipated that children were playing on the cars, and, consequently the duty arose to exercise ordinary care to prevent injury to them.
We have no disposition to alter our view that a railroad car is not an attractive nuisance. If appellant is to prevail in his contention herein it must be based upon the fact that at the time of the accident Virgil Durbin was either an invitee or a licensee. Appellant insists that it was negligence upon the part of appellee to permit the children of Heidelberg to make a playhouse of its standing and moving cars and to acquiesce in this practice for 30 or 40 years; and that they had a duty to prohibit these children from playing on and about the cars and trains and that instead of performing that duty they really invited the children to play on and about the cars and on occasions encouraged them in cleaning out the empty cars en route to the coal fields.
The testimony of appellant shows that through a period of years the children of the town rode these trains. Effort was made to introduce testimony relative to invitations on the part of some unidentified trainman on occasions previous to the day of this accident, but the court properly excluded this evidence since what took place on previous occasions is incompetent. Louisville & N.R. Co. v. Webb, 99 Ky. 332, 35 S.W. 1117, and Monehan v. South Covington & C. St. Ry. Co., 117 Ky. 771, 78 S.W. 1106.
However, testimony concerning observations by townspeople as to the habit and custom of the children in the community to ride trains was admitted, and doubtless, from the testimony, this was the habit and custom of the children. Consequently, appellant takes the position that these children were not trespassers but were either invitees or licensees. Shoffner v. Pilkerton, 292 Ky. 407, 166 S.W. 2d 870, is cited in support of this position. The general rule appears to be that a person permitted to come on the property of another for the benefit of the former alone is a licensee, while a person permitted to come for the mutual benefit of the parties is an invitee. In undertaking to establish that appellant was an invitee, testimony was introduced to show that employees of the company had encouraged children to help clean out the empty cars and thus save this work for appellee. This evidence also was excluded, and properly so, since it happened on a day previous to the accident.
In the instant case the evidence shows that the boys were undertaking to get a plank out of a coal car for the purpose of splitting it up and selling as kindling. This apparently was for the benefit alone of the boys. It is not shown whether the plank was of such character as to be valuable to the railroad company or the property of the railroad company. If the boys were neither invitees nor licensees they were trespassers.
Taking for granted that all is true that was attempted to be proven, and that on some former occasion these children, or other children, were invited to play on the cars or to assist in cleaning the cars, this would by no means make them either invitees or licensees on this particular day for it becomes obvious that a person may be an invitee today, a licensee tomorrow, and the next day a trespasser. So we must, in the instant case, look at the particular...
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