Hardin v. Harris
| Decision Date | 15 March 1974 |
| Citation | 507 S.W.2d 172 |
| Parties | Danny Ray HARDIN, an infant of 11 years of age, By and Through his father, Lee Hardin, Appellant, v. W. L. HARRIS and Tom Woodward, Appellees. |
| Court | United States State Supreme Court — District of Kentucky |
Chester I. Bays, Bowling Green, James C. Milam, Russellville, for appellant.
Jesse L. Riley, Jr., Russellville, Richard W. Iler, Tarrant, Combs, Blackwell & Bullitt, Louisville, for appellees.
VANCE, Commissioner.
The appellant, Danny Ray Hardin, age nine years at the time of this accident, instituted this action to recover damages from appellees as a result of injuries sustained by him when a feed grinder was backed over or against him on a dairy farm owned by appellee, W. L. Harris and managed by appellee, Tom Woodward. Pursuant to a jury verdict in favor of appellees, a judgment was entered dismissing appellant's claim.
Danny Hardin was the son of a farm-hand who was employed by appellees to assist in the operation of the dairy farm. On the day in question Danny and his brother, Freeman, age ten, accompanied their father to the dairy farm. They assisted the father in cleaning manure from the barn and in other work until 3:00 P.M. when milking commenced. The father then directed them to leave the barn for fear that they would disturb the cows during the milking operation.
The boys left the milkshed and rode on a tractor-drawn wagon operated by appellee, Woodward, to a distant field to haul cattle feed. There is a conflict in the evidence as to whether Woodward volunteered to take the boys with him or they simply got on the wagon as it was leaving. At any rate he knew they were on the wagon and did not ask them to get off or to leave the farm. Some two hours later Woodward and the boys returned to the barn where Woodward connected the tractor to a feed grinder and pulled it over to a silo to grind feed. The boys proceeded to the vicinity of the silo and watched the feed-grinding operation. After the feed was ground, Woodward pulled the grinder back to the barn--going past the entrance where the grinder was customarily stored--and then proceeded to back the grinder into the storage area. The two boys meanwhile had walked along behind the grinder as it was pulled from the silo to the storage shed. Danny entered the storage area to pick up some sacks from the floor. When he observed the grinder being backed into the storage shed toward him, he attempted to get out of the way and in doing so he slipped and fell. The grinder then backed over his leg causing the injuries complained of.
Woodward claims that the grinder was so large he could not see behind it and he did not know the boys followed him from the silo to the storage shed and did not see Danny behind him as he backed into the shed. He claims that in order to see Danny he would have been required to alight from the tractor and go around behind the grinder to ascertain if anyone was behind it.
As previously noted however, the tractor and grinder were first pulled to a point past the entrance to the storage shed and backed in a curving direction into the shed. As the tractor went past the shed entrance and for a time as it commenced backing Woodward could have had some view of the inside of the shed simply by looking to his left.
The appellant contends the instructions to the jury were erroneous and that improper argument of appellees' counsel resulted in prejudice to appellant.
Appellees deny error in the instructions or argument and contend that the judgment must be sustained even if there were such error because their motion for a directed verdict should have been sustained upon three separate grounds: (1) The appellant was a licensee and the only duties owed him were the duty not to expose him to wilful or wanton injury and the duty to exercise ordinary care to prevent injury after his peril was discovered; (2) the appellees were not negligent; (3) the appellant was contributorily negligent as a matter of law.
There is a question as to whether the infant appellant in this case was an invitee or a licensee. We do not reach the question for in either event appellees in conducting the activity in question owed to him a duty to exercise reasonable care for his safety.
Historically visitors upon property have been placed in one of three categories, viz., trespassers, licensees or invitees. A trespasser is one who comes upon the land without any legal right to do so, a licensee is one who comes upon land with the consent of the possessor of the land and an invitee is generally defined as one who comes upon the land in some capacity connected with the business of the possessor.
The liability of the possessor of land for injuries sustained by visitors upon the land depends in some degree upon whether the injury arises from a defect in the condition of the premises or from an activity conducted upon the premises. Though it has been said frequently that the possessor of land owes no duty to a licensee except to refrain from wilful or wanton injury and to warn of known defects this rule has been gradually eroded with respect to injuries caused by activities conducted upon the premises. See Annotations 44 A.L.R. 777, 156 A.L.R. 1226 and 20 A.L .R.3d 1130. This erosion began in Kentucky with a distinction between active and passive negligence.
In Rabe v. Chesapeake & Ohio Railroad Co., 190 Ky. 255, 227 S.W. 166 (1921), we recognized the distinction between active and passive negligence in this language:
'There is quite a difference between the company's positive and affirmative acts in the operation of its trains and the mere passive or negative acts growing out of the failure to protect a licensee from defects on the premises. * * *.'
In Sage's Adm'r v. Creech Coal Co., 194 Ky. 415, 240 S.W. 42 (1922), we said:
'But whatever the merits of this controversy, it is unquestionably, true as the above cases show and reason dictates, that the owner owes a licensee a duty he does not owe a trespasser of anticipating his presence whenever he undertakes to revoke the license or interfere with its exercise, and that this duty forbids him to do any positive act to or on his premises that unduly increases the hazard and which he ought to anticipate may cause injury to his licensee, without...
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