Shaver's Admr. v. Louisville Gas & Electric Co.
| Decision Date | 06 February 1925 |
| Citation | 207 Ky. 180 |
| Parties | Shaver's Administrator v. Louisville Gas & Electric Company. |
| Court | Kentucky Court of Appeals |
Appeal from Ohio Circuit Court.
HEAVRIN & HEAVRIN and OTTO C. MARTIN for appellant.
A.D. KIRK, CLARENCE BARTLETT, GLOVER CARY and MATT O'DOHERTY for appellees.
Alleging that his intestate, a boy twelve years of age, was killed by falling into an air shaft on the premises of appellees, this action was instituted by appellant to recover damages therefor. A demurrer was sustained to his petition as amended, and this appeal challenges the correctness of that ruling.
It is averred that the coal mine with which the air shaft is connected had been abandoned for some months, and that decedent's death resulted from appellees' negligent failure to protect the air shaft by fences or otherwise. Hence, the primary question for decision is whether or not appellees owed the decedent any duty with reference to this air shaft on their own land.
Counsel for appellant contend that such a duty was imposed, under the allegations of the petition, (1) because decedent was a licensee, (2) by section 2726-8 of the statutes, and (3) under the attractive nuisance doctrine.
It is well settled that the owner of land owes to a mere licensee no duty of maintaining his premises in a safe condition for the exercise of the licensed use thereof, but only that he will not injure him wilfully or wantonly, or do anything that suddenly increases the hazard of exercising the license without reasonable notice thereof. Two recent cases so holding are Sage's Admr. v. Creech Coal Co., 194 Ky. 415, 240 S.W. 42, and Robinson's Admr. v. L. & N.R.R. Co., 199 Ky. 697, 251 S.W. 968, wherein a great many like cases are cited.
The claimed right of decedent is limited by the petition to the use of a path that passes within about eight feet of the air shaft, and which it is alleged he was using when he, "while exercising ordinary care for his own safety, fell into said open air shaft."
There is no allegation of any obstruction in the path, or any explanation whatever of how or why decedent, while using this path, could or did fall into the air shaft eight feet therefrom. It is alleged in one of the amended petitions: "That said shaft was constructed to a depth of 104 feet, and was 10 by 12 feet at the top, and that in constructing said shaft the defendants threw the dirt from said shaft on the edge thereof, making a rolling or sloping embankment...
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