L. & N.R. Co. v. Hutton

• Decision Date: 24 June 1927
• Citation: 220 Ky. 277
• Court: United States State Supreme Court — District of Kentucky
• Parties: Louisville & Nashville Railroad Company v. Hutton.

Page 277

220 Ky. 277

Louisville & Nashville Railroad Company v. Hutton.

Court of Appeals of Kentucky.

Decided March 18, 1927.

Rehearing Denied, with Modification, June 24, 1927.

1. Negligence. — Doctrine of attractive nuisance held inapplicable in injury to 14 year old boy when attempting to operate crank on crane maintained by railroad while trespassing on its property, in absence of evidence that such child did not possess sufficient intelligence and discretion to be responsible for his acts, since, in view of Ky. Stats., sections 331a-1, 2022, 2097, 2739g-34, prima facie presumption arises that he is aware of consequences of trespass on property of another.

2. Negligence. — Doctrine of "attractive nuisance" is never applicable except where the plaintiff is trespasser, being founded on theory that one maintaining attractive and dangerous contrivance on premises exposed to contact by indiscreet children of tender years has duty of exercising ordinary care for their protection.

3. Courts. — In order to bring an opinion within the doctrine of stare decisis, and to thereby give it the force of precedent, the first opinion must have not only involved question, but it must have been presented and decided.

4. Courts. — Where no rule of property or statutory or constitutional construction is involved, doctrine of stare decisis does not prevent court from declining to follow decision and correcting erroneous holding.

Appeal from Kenton Circuit Court.

S.D. ROUSE, WOODWARD, WARFIELD & HOBSON and ASHBY M. WARREN for appellant.

NORTHCUTT & NORTHCUTT for appellee.

OPINION OF THE COURT BY JUDGE THOMAS.

Reversing.

Between its side track and a street in the city of Covington, appellant and defendant below, Louisville & Nashville Railroad Company, owns a lot upon which at the time of the injuries herein complained of it maintained a crane constructed on a platform which it and its patrons used for the purpose of loading and unloading upon or from its cars heavy articles of freight. The crane was principally constructed for and used by a nearby manufacturer and repairer of boilers and heavy machinery, much of which would be shipped to its local plant from distant points on defendant's cars from which it would be unloaded with the assistance of the crane, and in like manner it would be employed in reshipping the same articles to the owners, and the same was true as to new machinery sold by the local manufacturer, although others having occasion to use it for either loading or unloading heavy freight would do so; it, of course, being located near to defendant's side track. The crane revolved so as to allow the beam to swing around over a standing car on the side track and then to swing around and away from the car so as to reach the place where it would deposit or pick up the unloaded freight. A hook was attached to a chain or an iron rope running through a pulley at the upper end of the beam, and the rope or chain wound around a windlass near the lower end of the beam and which was operated by turning a large wheel with cogs fitting into a smaller cogwheel.

On March 26, 1924, plaintiff and appellee, Ludie Hutton, a boy who was then 14 years and 7 months old, together with other boys, most of whom were younger, were playing upon the vacant lot and finally went to the platform of the crane and found that the crank had been taken from it and put into a nearby toolhouse, which, under the proof, was kept locked when the crane was not in use. It was furthermore proven without contradiction that on several occasions the lock had been broken and the crank taken out and atached to the wheel on the crane, all of which was done by trespassing boys who had been warned to desist from such conduct and also warned to not play either upon the crane or on the lot, but plaintiff says that he had never been given any such warning. On the day mentioned, while the crank was in the adjoining toolhouse, plaintiff undertook to turn the large wheel with his hands and without the crank so as to raise or lower the hook suspended from the upper end of the beam, and while doing so some of his fingers were severely mashed in the cogs of the large and small wheels, and he brought this suit by his mother as guardian against defendant, to recover damages for his injuries upon the theory advanced in that class of cases commonly known as the "Turntable Cases" and which has come to be known and understood as the doctrine of "attractive nuisance." Proper pleadings made the issues, and upon trial the jury under the instructions of the court returned a verdict in favor of the plaintiff for $1,500.00, upon which judgment was rendered after defendant's motion for a new trial was overruled, and it prosecutes this appeal.

Some minor rulings of the court are complained of and urged as reversible errors, but which we do not regard as meritorious. The chief ground urged for reversal is the failure of the court to sustain defendant's motion for a peremptory instruction in its favor upon the theory that plaintiff, being over 14 years of age at the time, was prima facie presumed to possess sufficient intelligence and discretion to be responsible for his acts, and, in the absence of evidence to the contrary, he was not entitled to the benefit of the attractive nuisance doctrine. That contention directly raises for the first time before this court the question as to at what age a prima facie presumption arises disentitling a person under the age of 21 years to the benefits of the doctrine under consideration without additional evidence showing that he came within the doctrine because of his subnormal mental condition below that of a normal infant of his age.

To begin with the doctrine is never applicable except where the plaintiff is a trespasser. If he sustains his injuries while at a place where he has a right to be, then the defendant is presumptively liable therefor if negligent, regardless of whether the plaintiff is an infant or an adult. The reason why the latter might not recover under the "attractive nuisance" doctrine, when an infant might do so is because the adult, like the infant, would be a trespasser, but on account of his matured mind and discretion he would be responsible for his own trespassing, while the infant, if of tender years and consequent indiscretion, would not be responsible for his trespasses. So that, the doctrine is founded upon the theory that if one maintains an attractive and a dangerous contrivance of his premises and it is exposed to contact by indiscreet children of tender years, and he has knowledge that they are in the habit of playing upon or around the premises where such contrivance is maintained, it then becomes his duty founded on humane considerations to exercise ordinary care for the protection of such indiscreet and youthful trespassers, who are attracted to and brought in contact with the danger and their lack of appreciation of it on account of their youth and consequent indiscretion, although they are trespassers. The above general principles are so well founded and have been repeated by the courts so often that we deem it unnecessary to refer to or cite the cases. What we have said is sufficient to clearly point out that without the youthful indiscretion on the part of the infant there would be no duty on the part of the maintainer of the contrivance to render it reasonably safe for trespassers. But when the injured person arrives at such an age as to remove him, either presumptively or actually, from the class of youthful and indiscreet persons, he clearly would not be entitled to the benefit of the doctrine any more so than a normal adult, unless he shows that although he was of sufficient age to remove him from the protection of the rule, yet on account of his undeveloped mental condition he was entitled to be classified with those for whose benefit the doctrine was created. There was no effort or pretense in this case to show any such subnormal mental condition on the part of plaintiff, and the question to be determined is: Whether his age (14 years and 7 months) was sufficient to raise the prima facie presumption that he was responsible for his trespassing upon defendant's premises, and in attempting to manipulate its crane, and because thereof he was sufficiently developed to appreciate the consequence of his act in doing so and, therefore, responsible for the consequences as if he had been an adult trespasser.

In disposing of the question it is not our purpose to enter into a discussion of the origin of this doctrine, nor the grounds upon which it is founded, nor the many cases from this court in which it was involved, since the question for determination under this record only relates to the prima facie presumption supra. It might, however, be appropriate to say that, since the doctrine itself is an innovation upon the rule disallowing a cause of action to an admitted trespasser upon the premises of another, the tendency of courts in later years has been to narrow instead of enlarging it, as will be seen from the cases of Mayfield Water & Light Co. v. Webb's Adm'r, 129 Ky. 395, 111 S.W. 712, 33 Ky. Law Rep. 909, 18 L.R.A. (N. S.) 179, 130 Am. St. Rep. 469, and many cases cited in the opinion in the case of Coon v. Kentucky & Indiana Terminal R. Co., 163 Ky. 223, 173 S.W. 325, L.R.A. 1915D, 160. It had its origin from injuries received by infants of tender years in manipulating turntables constructed for the use of railroads in turning around engines and cars, and for some time, and even now, it is referred to as the doctrine of the "Turntable Cases." It seems to have been first announced and applied in this country by the Supreme Court of the United States in the case of Sioux City & Pacfic R. Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745. But the same court manifested a disposition to qualify the doctrine, as originally announced by it in the Stout case, in the comparatively recent ones of United Zinc...