Jarvis v. Howard

• Court: Kentucky Court of Appeals
• Writing for the Court: SIMS, Chief Justice.
• Citation: Jarvis v. Howard, 310 Ky. 38, 219 S.W.2d 958 (Ky. Ct. App. 1949)
• Decision Date: 19 April 1949
• Parties: JARVIS et al. v. HOWARD et al.

219 S.W.2d 958

310 Ky. 38

JARVIS et al. v. HOWARD et al.

Court of Appeals of Kentucky

April 19, 1949

Appeal from Circuit Court, Harlan County; J. S. Forester, Judge.

Actions for personal injuries and for medical services by Randall Jarvis individually, and as the next friend of his infant son, Donald Gene Jarvis, against James L. Howard and another. From the judgment, the plaintiffs appeal.

Affirmed.

G. G. Rawlings, of Harlan, for appellants.

J. B Carter and Astor Hogg, both of Harlan, for appellees.

SIMS Chief Justice.

Donald Gene Jarvis, an infant seven years of age, through his father as next friend, brought an action against James L. Howard and J. G. Ross for $5000 damages resulting from personal injuries when he fell or jumped from a coal loading ramp owned by defendants. The father, Randall Jarvis, in his individual capacity, brought an action against the same defendants to recover $500 expended in medical services he incurred in treating his son's injuries. By agreement the causes were consolidated. At the conclusion of plaintiff's evidence a verdict was directed in favor of defendants and plaintiffs appeal.

The action by the child is based upon the theory that the ramp was an attractive nuisance to children of tender years and that defendants took no precaution to prevent children from playing thereon. Therefore, an examination of the evidence pertaining to the ramp, the surrounding circumstances and how the child was hurt becomes necessary in determining whether the attractive nuisance doctrine is applicable.

This ramp is located on the right-of-way of the L. & N. Railroad Company at Wallins Creek and is adjacent to the school grounds. However, at the time Donald was hurt school had been dismissed for the day and the boy had returned to his home. Subsequently, he went to the ramp, which was not in operation, and he and other children engaged in playing upon and about it.

The boy's father testified that the ramp was constructed before the school was built and is 25 or 30 feet wide and about 150 feet long. Trucks drive upon the ramp and dump their loads of coal into railroad cars placed alongside it. There is no guard rail on the ramp where trucks dump their loads, as such rail would prevent trucks from unloading into adjacent railroad cars.

At the time Donald was injured he and other children were playing a game they called 'Banter.' One child would lead in doing a hazardous act or stunt and dare the others to follow suit. This game among children is often called 'Follow The Leader.' If a child through lack of nerve or ability failed to follow the leader, 'he would have to go through a whipping machine,' as Tommy Trammel, a boy engaged in the game, described it. A boy named Bob Hensley appears to have been the leader on this occasion. He stepped from the ramp to the stirrup of a coal car immediately adjoining, a distance of about three feet, and told Donald not to attempt it, which was 'daring' him to step or jump from the ramp onto the coal car. Donald undertook to follow Bob's lead, but in stepping or jumping from the ramp to the coal car, he missed the stirrup on the latter, fell between the ramp and the car and broke his leg.

The attractive nuisance doctrine is rejected in some jurisdictions, but it is firmly established in this State. Ball v. Middlesborough Town & Lands Co., 68 S.W. 6, 24 Ky.Law Rep. 114; Deaton's Adm'r v Kentucky & West Virginia Power Co., 291 Ky. 304, 164 S.W.2d 468; Teagarden v. Russell's Adm'x, 306 Ky. 528, 207 S.W.2d 18. A good definition of the doctrine appears in 38 Am.Jur. Negligence, § 142, p. 802, which was adopted in Louisville & N. R. Co. v. Vaughn, 292 Ky 120, 166 S.W.2d 43, which reads:

'One who maintains upon his premises a condition, instrumentality, machine, or other agency which is dangerous to children of tender years by reason of their inability to appreciate the peril therein, and which may reasonably be expected to attract children of tender years to the premises, is under a duty to exercise reasonable care to protect them against the dangers of the attraction.'

In sections which follow the text just referred to in 38 American Jurisprudence, may be found an excellent discussion on the origin, theory and application of the attractive nuisance doctrine. Also, extensive annotations on the subject may be found in 36 A.L.R. 34; 45 A.L.R. 982; 53 A.L.R. 1344 and 60 A.L.R. 1444. It is not necessary to review our cases dealing with the doctrine because as was said in the Teagarden case, 306 Ky. 528, 207 S.W.2d 18, each instrumentality or operation constituting an attractive nuisance must be viewed in the light of the facts and conditions relative thereto.

No doubt this ramp was attractive to children, as many of them were driven away...