Kiser v. Colonial Coal & Coke Co

• Decision Date: 11 September 1913
• Citation: 79 S.E. 348,115 Va. 346
• Court: Virginia Supreme Court
• Parties: KISER. v. COLONIAL COAL & COKE CO.

79 S.E. 348

(115 Va. 346)

KISER.

v.COLONIAL COAL & COKE CO.

Supreme Court of Appeals of Virginia.

Sept. 11, 1913.

^†

For other definitions, see Words and Phrases, vol. 5, p. 4143; vol. 8, p. 7706.]

Error to Circuit Court, Wise County.

Action by J. B. Riser, administrator of May Lunsford, against the Colonial Coal & Coke Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Bond & Bruce, of Wise, for plaintiff in error. Bullitt & Chalkley, of Big Stone Gap, for defendant in error.

WHITTLE, J. This is a personal injury action to recover damages for the death of plaintiff's intestate, May Lunsford, ascribed to the wrongful act of the defendant in error, the Colonial Coal & Coke Company, hereinafter referred to as "the company." The plaintiff brings error to the judgment of the circuit court rendered for the company on a demurrer to the evidence.

The material facts are these: May Lunsford, who at the time of her death was 3 years and four months old, was the daughter of James Lunsford, a coal miner in the employment of the company, and lived with her parents in a house leased from the company and located in the mining town of Dorchester. The house fronts on a wagon road, beyond which and practically parallel with it at that point is the track of the motor road, which is about 40 feet from the house. There was also a wire fence between the house and the motor track, which was in a dilapidated condition. There were three houses, including the house occupied by the Lunsfords, in a row on the same side of the motor track, and the families who lived in these houses were in the habit of using a path which crossed the track in front of them for the purpose of going to the commissary and post office and spring, and the miners to their work. These various places could also be reached by following the wagon road to the stable and thence across the track into the streets of Dorchester; but the path afforded a nearer route, and was habitually used for the purposes mentioned by the three families referred to. It moreover appeared that the children of these families were accustomed to use the space between the dwellings and the motor track for a playground; but the track was a recognized place of danger for children, and Lunsford had given his wife instructions to keep their children off the track and had whipped them for going upon it, fearing that they might be run over and killed by the motor, which ran along there frequently and at a rate of speed which rendered it extremely dangerous to young children who might be on the track. A small electric light wire was strung along the motor poles and used to supply light to the company's barn and one of its tenant houses. This wire from some cause was weak and had frequently broken, and from time to time been repaired in a crude way by any employe of the company who chanced to discover the break; and of its general condition the company had notice.

Shortly before the casualty, which caused the child's death two days later, the wire broke at a point 5 feet from the path. The details of the accident may best be told inthe language of an eyewitness, Mrs....