Lyttle v. Harlan Town Coal Co.

• Decision Date: 14 December 1915
• Parties: LYTTLE v. HARLAN TOWN COAL CO.
• Court: Kentucky Court of Appeals

180 S.W. 519

167 Ky. 345

LYTTLE v. HARLAN TOWN COAL CO.

Court of Appeals of Kentucky.

December 14, 1915

Appeal from Circuit Court, Harlan County.

Action by A. B. Lyttle, administrator, against the Harlan Town Coal Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Chas I. Dawson, of Pineville, and J. G. Forester and Brock &amp Brock, all of Harlan, for appellant.

Zeb A Stewart and F. F. Acree, both of Harlan, and Webb & Baker, of Knoxville, Tenn., for appellee.

CARROLL J.

Jane Lyttle, a child about nine years of age, while playing with other children at the base of a steep hill, was killed by a large rock that was rolled down the side of the hill by Jeff Trail, an employé of the appellee coal company. In this action against the coal company, brought by her administrator to recover damages for her death, there was a directed verdict for the coal company, and the administrator appeals.

The trial judge was influenced to order a directed verdict on the ground that the child, at the time she was killed, was trespassing on the premises of the coal company, and her peril was not discovered in time to have prevented the injury that resulted in her death.

The case, as made out by the witnesses for the administrator as we gather it from the record, is substantially as follows Lyttle and his family, consisting of his wife, Jane Lyttle, and two younger children, lived in a little house on the land of a man named Kelly. The land of Kelly adjoined the land of the coal company, and the house in which Lyttle lived was only a few steps from the division line between the Kelly land and the land of the coal company. Lyttle had been living in this house with his family for several months, perhaps a year or more, and, as there were no shade trees in his yard or near the house on the Kelly land, his children were in the habit of playing under some shade trees standing at the base of a steep hill on the land of the coal company, a short distance from his house. The accident happened in July, and on this day his children were playing in the shade of these trees, where they had such little articles as children usually amuse themselves with.

The coal company had opened a wagon road on the side of this hill, near its top, some 75 yards up the hill from the trees under which the children played; and when the little girl was killed the weeds and underbrush between the playground and the road hid the children from the view of persons passing along the road. Trail was and had been for some time driving a team for the coal company that hauled material over this road from the railroad station to its mine, and, as the road was newly made, Trail frequently found it necessary to remove from the road rocks and other obstructions that interfered with its use, and, as the easiest way of getting rid of these rocks and obstructions was to pitch them down the hillside from the road, it had been the habit of Trail to do this.

Trail testified that, whenever a big rock or other obstruction was found in the road, it was his custom to move it out of the road, and that, pursuing his usual course and method of removing obstructions from the road, he pitched this large rock, found in the road and which interfered with the travel, to the hillside just below, and from there it rolled down the steep side of the hill and struck the little girl. He further said that he had been told more than once by his employers "to keep the road up" and "to work the road," although "he had never been especially directed to throw rocks or other obstructions out of the road."

From this it is not entirely clear that it was a part of Trail's express duty under his employment to clear the road of these obstructions; but it may fairly be said that doing this was well within the scope of his employment. His instructions "to keep the road up" and "to work it" evidently comprehended the direction to remove from the road any obstruction that interfered with its use by the wagons and teams of the company; and it is well settled law that the master is liable for the acts of the servant when the servant is engaged in doing something that he has been directed to do for the master, or something that is fairly within the scope of the service he has been employed to perform.

We also think that Trail, in throwing this rock from the road to the hillside, could reasonably have foreseen that it would roll down the hill. The hill was so steep that any person of ordinary intelligence could not well help knowing that a large rock would roll down to the base and, under the momentum thus gained, perhaps farther. With notice of this he is further to be charged with the consequences that an ordinarily careful man might reasonably have foreseen would result from his act.

As said in Kentucky Heating Co. v. Hood, 133 Ky. 383, 118 S.W. 337, 22 L.R.A. (N. S.) 588, 134 Am.St.Rep. 457:

"A person who commits a tort * * * is liable for all the damages that naturally flow from, and are the result of, this wrongful act, although he may not at the time have given any thought to or have anticipated that injurious consequences would follow. It is no excuse or defense for the wrongdoer that he did not mean to commit any wrong, or did not know that any injury or loss would ensue."

Quoting with approval from Sutherland on Damages, vol. 1, § 16, the court further said:

"He who is responsible for a negligent act must answer 'for all the injurious results which follow therefrom, by ordinary natural sequence.' * * * Whether the injurious consequences may have been 'reasonably expected' to have followed from the commission of the act is not at all determinative of the liability of the person who committed the act to respond to the person suffering therefrom. * * * There need not be in the mind of the individual whose act or omission has wrought the injury the least contemplation of the probable consequences of his conduct; he is responsible therefor because the result proximately follows his wrongful act or nonaction. All persons are imperatively required to foresee what will be the natural consequences of their acts and omissions, according to the usual course of nature and the general experience."

Coming now to the principal question in the case, it is contended with much force by counsel for the coal company that, although Trail may have been within the scope of his employment, and his negligent act have caused the death of the child, the coal company cannot be held accountable because the child was a trespasser, and Trail did not discover her place of peril in time to have avoided the accident by exercising ordinary care.

If the little girl at the time she was killed was trespassing on the premises of the coal company, and should be treated as a trespasser, it is the settled rule of this court that an action would not lie against the coal company for her death. Leaving out of view the "attractive place" doctrine, the rule is that, under ordinary conditions trespassing children occupy the same attitude as trespassing adults, thus imposing on other persons only the duty of exercising ordinary care to prevent injury to them after their peril has been discovered. This is...