Johnson v. Simpson County Seed & Implement Co.

• Decision Date: 28 February 1969
• Citation: 438 S.W.2d 340
• Parties: Barbara JOHNSON et al., Appellants, v. SIMPSON COUNTY SEED & IMPLEMENT COMPANY, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 340

438 S.W.2d 340

Barbara JOHNSON et al., Appellants, v. SIMPSON COUNTY SEED & IMPLEMENT COMPANY, Appellee.

Court of Appeals of Kentucky.

Feb. 28, 1969.

G. D. Milliken, Jr., Milliken & Milliken, Bowling Green, for appellants.

James H. Lucas, John David Cole, Maxey Harlin, Harlin, Parker, Ricketts, Lucas & English, Bowling Green, for ppellee.

CLAY, Commissioner.

Plaintiff appellant is a 13-year-old boy who suffered injuries to his toes when a piece of heavy machinery owned by defendant appellee fell on his foot. At the conclusion of plaintiff's evidence the trial court directed a verdict for the defendant. It is not clear whether the basis of this ruling was that defendant was not negligent or that the plaintiff was contributorily negligent as a matter of law.

Defendant is in the farm machinery business. Its premises are traversed by two passways used by the public. On the day in question a 'Bush-Hog' was situated in a stationary position on or near one of the passways. This is a large piece of machinery which is pulled by a tractor and operates as a power mower. It has two wheels at the rear and connecting bars at the front where it is attached to the tractor. It had been parked for approximately 30 minutes preparatory to being hauled away. Someone had left the front end raised (apparently by a built-in jack) from six to twelve inches above the ground.

The plaintiff, walking through the passway, became curious about this piece of machinery and stepped upon its flatbed. He said he was there just a few seconds and when he stepped off backwards it dropped on his foot. He said he had not touched anything or moved any levers.

Plaintiff's theory is that this was an 'attractive nuisance' likely to cause injury to children and defendant was negligent in leaving it where it was in its dangerous condition. In our recent cases we have recognized that the label 'attractive nuisance' does not necessarily solve the problem presented in cases of this sort and we have emphasized the considerations which underline the doctrine in determining questions of liability. Kentucky & Indiana Terminal Railroad Co. v. Mann, Ky., 312 S.W.2d 451; Gross v. Bloom, Ky., 411 S.W.2d 326; and Louisville Trust Company v. Nutting, Ky., 437 S.W.2d 484. In the latter case we thus stated the governing principle (page 485):

'The possessor of land is liable for physical harm if he creates or maintains an artificial condition which he realizes or should realize will involve an unreasonable risk of serious bodily harm to children who would not comprehend the risk or danger involved, and he knows or has reason to know that such children are likely to be on his premises.'

In the present case it is evidence that defendant had created an artificial condition and could anticipate the presence of children such as the plaintiff on its premises. The problem presented is whether plaintiff's proof created a jury issue as to whether defendant should have realized that this Bush-Hog, in its normal titled position, involved an unreasonable risk of serious bodily harm to one who would not comprehend the risk.

One difficulty in the case is that plaintiff's evidence fails to establish with any degree of certainty what caused this machinery to fall. Because...