Kentucky Utilities Co. v. Earles' Adm'r

• Decision Date: 24 June 1949
• Citation: 222 S.W.2d 929,311 Ky. 5
• Parties: KENTUCKY UTILITIES CO. v. EARLES' ADM'R.
• Court: Kentucky Court of Appeals

222 S.W.2d 929

311 Ky. 5

KENTUCKY UTILITIES CO. v. EARLES' ADM'R.

Court of Appeals of Kentucky

June 24, 1949

Rehearing Denied Oct. 11, 1949.

Appeal from Circuit Court, McCracken County; Joe L. Price, Judge.

Action by David Lee Earles' Administrator, George E. Earles against the Kentucky Utilities Company to recover for the death of plaintiff's intestate as a result of contact with defendant's power line. From the judgment, defendant appeals.

Reversed with directions.

Ogden Galphin & Abell, Louisville, T. M. Galphin, Jr., Louisville Wheeler, Marshall & Shelbourne, Paducah, for appellant.

John E Kirksey, Paducah, for appellee.

CAMMACK Justice.

The question involved herein is the applicability of the attractive nuisance doctrine in the case of a boy who was 14 years and five months of age at the time he met his death. The death of David Lee Earles resulted from his climbing upon a power line tower near the grounds of the Farley Public School in McCracken County where he was a pupil. The accident occurred after school hours on the afternoon of September 26, 1947. The power line with which the boy came in contact was 48 feet above the ground and was attached at the end of an eight foot cross-arm by means of two and one-half foot insulators which were fastened horizontally to each end of the cross-arm. The energized wires were attached at the end of each insulator by a loop wire which ran three to four feet below the end of the cross-arm.

The grounds urged for reversal are (1) the Earles boy was a trespasser on the Company's property and no recovery can be had unless the attractive nuisance doctrine applies; (2) the attractive nuisance doctrine does not apply to a boy 14 years of age unless it is shown that he was mentally incompetent to know the risk or danger to be encountered in venturing upon a dangerous instrumentality; and (3) there was no showing that David Earles was mentally defective or subnormal or incapable of knowing the risk or danger of coming in contact with the power line wire. Since we have reached the conclusion that the third contention is well grounded, we shall confine our consideration of the case principally thereto.

The appellee relies principally upon the case of Deaton's Adm'r v. Kentucky & West Virginia Power Company, 291 Ky. 304, 164 S.W.2d 468, in urging that the power line tower was an attractive nuisance. On the other hand, the Company insists the tower was not an attractive nuisance. In support of this contention it points out several distinctive features between the tower in question and that dealt with in the Deaton Case; but, as indicated above, a decision of this question is not necessary here.

The recent case of Teagarden v. Russell's Adm'x, 306 Ky. 528, 207 S.W.2d 18, 22, and cases cited therein, discuss the theory of the attractive nuisance doctrine and its application in this jurisdiction. A discussion of the doctrine would serve no useful purpose here. The case of Louisville & N. R. Co. v. Hutton, 220 Ky. 277, 295 S.W. 175, 53 A.L.R. 1328, furnishes an able discussion of the age limits within which the doctrine has been applied. As contended by the Company, the doctrine does not apply in the case of a child more than 14 years of age, in the absence of a showing that the child did not possess sufficient intelligence and discretion to be responsible for his acts and to know the risk or danger to be encountered in venturing upon a dangerous instrumentality. In the case of Columbus Mining Co. v. Napier's Adm'r, 239 Ky. 642, 40 S.W.2d 285, it was held that the doctrine does not apply in the case of a boy 15 years of age, regardless of his mental capacity.

It is undisputed that David Earles was almost five months beyond his fourteenth birthday at the time he met his death. He was a trespasser and he had reached...