Thompson v. Cumb. Telp. & Telg. Co.

• Decision Date: 29 April 1910
• Parties: Thompson v. Cumb. Telp. & Telg. Co.
• Court: Kentucky Court of Appeals

Page 109

138 Ky. 109

Thompson v. Cumb. Telp. & Telg. Co.

Court of Appeals of Kentucky.

April 29, 1910.

Appeal from Jefferson Circuit Court (Common Pleas Branch, First Division).

WM. H. FIELD, Judge.

From a judgment of dismissal plaintiff appeals. — Affirmed.

POPHAM, WEBSTER & TRUSTY, KOHN, BAIRD, SLOSS & KOHN and ALBERT NESBIT for appellant.

FAIRLEIGH, STRAUS & FARLEIGH and NICHOLAS H. DOSKER for appellee.

OPINION OF THE COURT BY WILLIAM ROGERS CLAY, COMMISSIONER — Affirming.

Suing by his next friend, Donald Thompson, an infant four years of age, brought this action against the Cumberland Telephone & Telegraph Company for damages for personal injury. The demurrer of the Cumberland Telephone & Telegraph Company was sustained to the original petition, and to each of the amendments thereto, including an amended and substituted petition. Having declined to plead further, the petition was dismissed. From that judgment this appeal was prosecuted.

Omitting those matters which it is unnecessary to set forth, the petition is as follows: "That on or about the 4th day of September, 1909, and for a long time previous thereto, defendant, its servants and agents, with gross negligence maintained a telegraph pole and a wire cable connected therewith in the sidewalk of Twenty-sixth street, near Dumesnil street, in the city of Louisville, in such a dangerous and defective condition as to endanger the lives and persons of pedestrians on said Twenty-sixth street, and especially the lives and persons of small children. That said dangerous and defective condition of said pole and cable attachment consisted in the exposure of the strands of prongs of said cable, a few feet above said sidewalk, in such a manner as to form a highly dangerous trap for the limbs of persons passing near thereto. That said exposure continued for an unreasonable time before the said 4th day of September, 1909. That as a result of said gross negligence, in exposing the dangerous part of said cable, plaintiff, Donald Thompson, an infant four years of age, while on the sidewalk in front of the house where he was staying, became caught therein by the index finger of his left hand, and said finger was jerked off the hand of plaintiff, causing him to suffer great mental and physical pain, to become deformed in his left hand, and to become permanently impaired in his power to earn money after he shall have arrived at the age of 21 years, to his damage in the sum of $2,000."

Afterwards the petition was amended as follows: "Comes plaintiff, by counsel, and for amendment to his original petition herein says that the danger of which he complains in his original petition consisted in the exposure of the strands on the cable; that his hand was caught in the wire by playing around and upon the lowest step of the telephone pole complained of, by reaching his hand out and placing it near the exposed strands on the cable, and by stepping off from the lowest step on said pole to the sidewalk; that in thus stepping off his finger caught between the strands of wire and was jerked off and held in the cable."

The amended and substituted petition is as follows: "That on or about the 4th day of September, 1909, and for a long time previous thereto, defendant, its servants and agents, with gross negligence maintained a telegraph pole and a wire cable connected therewith in the sidewalk of Twenty-sixth street, near Dumesnil street, in said city of Louisville, in such a dangerous and defective condition as to endanger the lives and persons of pedestrians on said Twenty-sixth street, and especially the lives and persons of small children. That said dangerous and defective condition of said pole and cable attachment consisted in the exposure of the strands or prongs of said cable a few feet above said sidewalk, in such a manner as to form a highly dangerous trap for the limbs of persons passing near thereto. That the danger of said situation was increased for little children, and was made an attractive and dangerous trap for little children, by the fact that the lowest step on said pole was so near the ground that a child four years of age could step from the ground thereon, and by the further fact that the exposed prongs on said cable attachment were so near said lowest step that a child four years old could reach them while standing on said lowest step. That said exposure and said dangerous and attractive nuisance for children continued for an unreasonable time before the said 4th day of ...