Lipscomb v. Cincinnati, N. & C. St. R. Co.

• Decision Date: 12 June 1931
• Citation: 239 Ky. 587
• Parties: Lipscomb v. Cincinnati, N. & C. St. R. Co., et al.
• Court: United States State Supreme Court — District of Kentucky

Page 587

239 Ky. 587

Lipscomb v. Cincinnati, N. & C. St. R. Co., et al.

Court of Appeals of Kentucky.

Decided June 12, 1931.

1. Negligence. — General allegation of defendant's negligence in complaint held sufficient in personal injury suit.

2. Negligence. — Owner is resposible for anything knowingly suffered on his property that endangers travel on abutting street.

3. Negligence. — Person must so use his property as not unnecessarily to injure another.

4. Municipal Corporations. — Anything endangering safety of persons lawfully passing over highway, though existing outside actual limits thereof, is technical obstruction amounting to nuisance.

5. Municipal Corporations. — Building contractor and owner, habitually permitting boys to swing across sidewalk on ropes hanging from windows of building, with knowledge of danger to pedestrians, held liable for resulting injuries to pedestrian.

6. Negligence. — Attractive nuisance doctrine is only for protection of children under 14 years of age.

7. Municipal Corporations. — Negligence of boy, swinging across sidewalk on rope hanging from window of adjacent building, held not proximate cause of injury to pedestrian, so as to relieve building owner and contractor from liability.

Appeal from Kenton Circuit Court.

BLAKELY & MURPHY for appellant.

GALVIN & TRACY for appellee Cincinnati, N. & C. St. Ry. Co.

ROBERT C. SIMMONS for appellee Billiter Const. Co.

OPINION OF THE COURT BY HOBSON, COMMISSIONER

Reversing.

The Cincinnati, Newport & Covington Street Railway Company owns a lot fronting on Park place, a street in Covington. It employed the Billiter Construction Company to erect a building on the lot. While it was so constructing the building, the plaintiff, while walking on the sidewalk on Park place, was struck by a boy swinging on a rope out of a window in the building over the sidewalk, knocked down, and seriously and permanently injured. She brought this action to recover against the railway company and the construction company for her injuries $10,000. In her petition she made these averments after stating the above facts:

"Plaintiff says that on or about the ___________ day of April 1928, the plaintiff, while walking westwardly on the north side of Park Place and immediately in front of that part of said building which was under construction, the defendants, their agents, servants and employees, suffered and permitted boys to play in and about said building, permitting them to swing and play upon ropes hanging upon said building and more particularly in and out of windows of said building. Plaintiff says that said defendants had suffered and premitted these boys to play in and about said building in the manner described herein for a week or ten days prior to the injury hereinafter set out.

"Plaintiff says that on the ____________ day of April 1928, at or about twenty minutes after six o'clock in the evening, the defendants, their agents, servants and employees, with gross and wanton negligence and carelessness, suffered and permitted a boy to swing upon said building and out of one of the windows therein, thereby striking this plaintiff, who was a pedestrian upon the sidewalk, precipitating her to the ground, over and against a pile of brick which was owned by the defendants herein."

The defendants demurred to the petition. The court sustained the demurrer. The plaintiff filed an amended petition in which she made these averments:

"On the ___________ day of April, 1928 the defendants were constructing a building at the northeast corner of Court Street and Park Place in the City of Covington, Kenton County, Kentucky; that the said defendants, their agents, servants and employees had habitually suffered, invited and permitted boys to play in and about said building and had particularly suffered, invited and permitted boys to swing and play upon ropes hanging in said building and in and out and through the windows on Park Place. Plaintiff states that said place and window and ropes were attractive to boys and they were easily accessible to them and said use by the said boys of said ropes and windows were dangerous to pedestrians on Court Street and said use was known by the defendants to be dangerous.

"Plaintiff says that on or about the _________ day of April she was walking on the north side of Park Place and immediately in front of that part of the building under construction and that while she was passing one of said windows the defendants, their agents, servants and employees, with gross and wanton carelessness and negligence as above set out suffered and permitted boys to swing upon one of the ropes hanging in said building and out of one of the windows striking the plaintiff, throwing her to the ground and over against a pile of bricks on the sidewalk, owned and maintained by the defendants."

The court sustained the defendants' demurrer to the petition as amended and, the plaintiff failing to plead further, dismissed the action. The plaintiff appeals.

The rule as to the sufficiency of the general allegation of negligence in such cases as this was thus stated in Gaines v. Johnson, 133 Ky. 507, 105 S.W. 381, 382, 32 Ky. Law Rep. 58:

"In Chiles v. Drake, 2 Metc. 146, 74 Am. Dec. 406, the court, speaking through Judge Simpson, said: `In actions for personal injuries resulting through negligence, it has always been regarded as sufficient for plaintiff to allege in general terms that the injury complained of was occasioned by the carelessness and negligence of the defendant.'" To same effect see Monroe v. Standard, etc., Co., 141 Ky. 549, 133 S.W. 214, and authorities cited.

The responsibility of the property owner for anything knowingly suffered on his property that endangers travel on the abutting street is well settled.

"Property is also held subject to certain duties, restraints, and liabilities, such as that each person must so use his property as not unnecessarily...