Sage's Adm'r v. Creech Coal Co.

• Decision Date: 14 April 1922
• Citation: 194 Ky. 415,240 S.W. 42
• Parties: SAGE'S ADM'R v. CREECH COAL CO.
• Court: Kentucky Court of Appeals

240 S.W. 42

194 Ky. 415

SAGE'S ADM'R v. CREECH COAL CO.

Court of Appeals of Kentucky.

April 14, 1922

Appeal from Circuit Court, Harlan County.

Action by the administrator of Chester Sage against the Creech Coal Company. From a judgment for defendant, plaintiff appeals. Affirmed.

R. N Jarvis, of Barbourville, for appellant.

N. R Patterson, of Pineville, for appellee.

CLARKE J.

This is an appeal by the plaintiff from a judgment sustaining a demurrer to his petition as amended and dismissing same.

The pleadings are too long to copy here, but the facts alleged are these The defendant owns and operates a double-track tramroad between its mine and its tipple. This road is an incline and is supported in a part of its distance by a trestle. Empty cars are raised to the mine on one track as loaded cars are lowered to the tipple on the other by means of a wire cable which is attached to the ends of the cars and runs around a drum at the head of the incline. Appellant's intestate an infant ______ years of age, was walking on the trestle on his way to school when this cable broke and struck him, knocking him off of the trestle to the ground about 20 feet below and killing him instantly. The defendant owns all the houses and land in the mining camp surrounding the trestle which is "daily, habitually and constantly" used as a walkway by large numbers of children in going to and from school and between their homes and defendant's commissaries, as well as by the men and women residing in the camp. The father of decedent worked in the mine and with his family, including decedent, lived in one of the residences owned by the company. This use of the trestle by decedent and others so using it was "with the knowledge, consent, permission and license of the defendant company." The cable was caused to break "through and by reason of the gross negligence and carelessness of the defendant company, its agents and servants in charge of the operation and control of same," and because same "and the appliances used in connection therewith were defective, dangerous, out of repair and unfit for the purposes for which they were used." Decedent at the time was exercising ordinary care for his own safety. The defendant, its agents and employees, knew, or by the exercise of ordinary care could have known, of the dangerous and unsafe condition of the cable and of decedent's peril, and decedent did not know, and by the exercise of ordinary care for his own safety could not have known thereof.

The decedent's age is not stated in the petition otherwise than that he was "an infant ______ years of age," and it is not alleged he was defective in any way. Under these allegations, according to thoroughly established rules of pleading, he must be considered as a normal boy barely under 21 years of age, and we cannot accept the statement of counsel in brief that he was at the time but 15 years old, although we do not think this, if conceded to be true, would be material in any possible view of the other facts alleged.

Counsel for plaintiff rests his argument in brief solely upon the theory that the facts alleged bring the case within the attractive nuisance doctrine, and he cites only cases applying that rule, except L. & N. R. Co. v. Vaughan's Adm'r, 183 Ky. 829, 210 S.W. 938, to which he refers in support of the contention that whether or not decedent was a trespasser was a question for the jury.

Just what relevancy this latter contention or the case cited in support thereof is supposed to have here, where we are considering only the petition as tested by a demurrer, we do not know. Every fact alleged must be taken as true, and decedent's status at the time of the accident is fixed and must be determined so far as material by the court from these undisputed facts.

That these facts do not bring the case within the attractive nuisance doctrine is too obvious, it seems to us, to require citation of authorities or extended discussion. There is no intimation that children ever played upon the trestle, and it was not a movable thing with which they could play. They simply used it as a walkway in exactly the same way as did the men and women of the mining camp, and as men, women, and children use many parts of all kinds of railroad tracks everywhere. The trestle was not different in any essential feature, so far as involved here, from every other part of defendant's tramroad that may have been used as a walkway. It unquestionably was a dangerous walkway for any one, but not in any sense an attractive nuisance. Decedent was not induced to be upon it by any attractive features possessed by it, even if we might concede a normal boy just under 21 years of age, or even 15 years old, could claim the protection of that doctrine. Besides, the petition makes it clear he was simply using the trestle as a walkway on his way to school when he was injured, and that use, in connection with the company's attitude toward same, must determine its duty to him, if any.

The two cases upon which alone plaintiff relies to bring this one within the attractive nuisance doctrine are Lyttle v. Harlan Town Coal Co., 167 Ky. 345, 180 S.W. 519, and L. & N. R. Co. v. Steele, 179 Ky. 605, 201 S.W. 43, L. R. A. 1918D, 317. The former is confessedly an extension of that doctrine in order to sanction a manifest right of recovery where a nine year old child was injured while at play on the defendant's premises and from a positive act that under the circumstances really amounted to willful or at least wanton negligence toward a licensee, upon which ground it could and doubtless should have been rested in view of the recognized rule of this and other courts to restrict rather than enlarge the attractive nuisance doctrine.

At any rate, we are unwilling to accept that case as authority for still further extension of the doctrine so as to include the wholly different and not at all analogous facts of this case.

The Steele Case also presented entirely dissimilar facts and was quite properly classified as within that doctrine, as this one cannot be,...