Union Light, Heat & Power Co. v. Lunsford

• Decision Date: 03 December 1920
• Citation: 225 S.W. 741,189 Ky. 785
• Parties: UNION LIGHT, HEAT & POWER CO. v. LUNSFORD.
• Court: Kentucky Court of Appeals

225 S.W. 741

189 Ky. 785

UNION LIGHT, HEAT & POWER CO. v. LUNSFORD.

Court of Appeals of Kentucky.

December 3, 1920

Appeal from Circuit Court, Kenton County.

Action by Lucius Lunsford, by his next friend, against the Union Light, Heat & Power Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Maurice L. Galvin, of Cincinnati, Ohio, for appellant.

Richard G. Williams and O. M. Rogers, both of Covington, for appellee.

CARROLL C.J.

This suit was brought in the Kenton circuit court by Lucius Lunsford, an infant between 14 and 15 years old, suing by his next friend, against appellant Union Light, Heat & Power Company, to recover damages for personal injuries sustained by Lucius when his hand came in contact with a heavily charged electric wire used by the power company in the conduct of its business.

On a trial before a jury he recovered damages in the sum of $3,000 and the power company has prosecuted this appeal, asking a reversal upon two grounds: First, that the jury should have been directed by the trial judge to return a verdict for it and, second, because of alleged error in the instruction defining the degree of care that must be exercised by the power company.

The facts of the case are substantially these: The power company owns a vacant lot of considerable size situated in a populous part of the city of Covington. This lot is bounded on the west by the buildings of the Advance Mill Company that front on Garrard street, on the south by Saratoga alley, on the east by Licking river and on the west by Eighth street.

Eighth street is unimproved, and for many years had been used by the boys and children in the neighborhood as a playground. On the property line of the power company's lot abutting on this street there was, at the time of the accident, a plank fence but some of the planks in this fence had been torn or knocked down, leaving spaces in the fence through which boys might go from Eighth street into the lot. There was also an opening in this fence for a gate through which boys could go at their pleasure into the lot. The side of the lot fronting on Saratoga alley was not inclosed by a fence, and of course boys and children could go, when they wanted to, from the alley into the lot.

There is also abundant evidence to show that almost every day a crowd of boys came from Saratoga alley or Eighth street into this lot for the purpose of playing the different games and indulging in the various things that idle boys like to do. There was little, if any, effort on the part of the employés of the power company who occupied a building on this lot on Saratoga alley to interfere with the boys in their use of the lot as a playground, although it should be said that occasionally boys, and especially those of tender years would be ordered out of the lot by these employés. There was not, however, any continuing or persistent or vigorous effort made to keep the boys out of, or from playing in and about the lot, although the superintendent and others of its employés were so located in the buildings of the company that they knew the boys used the lot every day.

The lot was also made especially attractive to boys by the presence of a large pit some 20 or 30 feet from the buildings of the Advance Mill Company. This pit had at one time been used as a gas tank, and was about 60 feet in diameter and probably 20 feet deep. Water stood in it to the depth of several feet, and in this water were frogs and turtles, old electric light bulbs that floated on the water were also thrown into it and many of the boys made a practice of standing around the pit, and with gum shooters or flippers shooting at the glass bulbs, frogs, and turtles. How attractive a place this would be to boys any person at all familiar with their tastes, desires, and habits can easily understand. Indeed if the power company had established a place of amusement for children it could hardly have equipped it with more enticing objects than those to be found in this pit.

About 10 feet from the edge of this pit nearest to the building of the Advance Mill Company, and in the corner of the lot joining this building and Saratoga alley, the power company had its transformers which were used to convert high tension electric power into the low tension for the use of the Advance Mill Company plant. The heavily charged electric wires that run into these transformers carried more than 2,000 voltage, and these deadly wires were strung as they approached the transformers about 3 feet above the level of the ground.

The small plat of ground occupied by the transformers was inclosed by a close fence made of boards about 8 feet high and 12 inches wide. This wide fence had been there a number of years, and some of the planks had decayed and come loose from the strips to which they were nailed, one of these strips being about 3 feet from the level of the ground and about even with the wires before mentioned. The evidence shows that at least two and probably more months before the accident in question one of these planks nearest to the pit had come loose and fallen to the ground, leaving an opening into the space where the transformers were, of about 12 inches in width, extending from the top of the fence to the ground.

On the day in question Lucius and other boys were playing in this lot, and while he was shooting at the frogs with his flipper, or gum shooter, one of the frogs jumped out of the pit and made its way into the inclosure where the transformers were. Lucius had shot at this frog two or three times before the frog got inside of the transformer fence, and when it jumped inside the fence he went to the open space where the plank had fallen off, and, not thinking of or appreciating the danger, reached inside with his hands and arms for the purpose of again shooting at the frog. When he did this his left hand came in contact with out of the heavily charged wires, from which the protective covering had either rotted or worn off, leaving the naked wire exposed, and as a result he sustained the severe and permanent injury, to recover damages for which this suit was brought.

It should also be said that no notice or warning had ever been given to Lucius or any of the boys of the dangerous implements or appliances in this inclosure, and it does not appear that previous to this time any of the boys had ever been hurt by coming in contact with the wires. Nor is it shown that Lucius appreciated or understood the danger of coming in contact with these wires. He probably knew, as most boys of his age living in a city would, that a heavily charged electric wire would be a dangerous thing for him to touch or handle or come in contact with, but mere boyish knowledge of a danger like this will not be counted such contributory negligence on his part as would defeat an action for damages on account of injuries sustained if by accident or while engaged in some youthful pleasure or amusement he should be injured by it.

The power company, however, knew how dangerous was the place where these transformers and wires were, and the necessity for keeping it well protected; it also knew, or will be charged with notice, that the plank had fallen down because it had been off two months or more, and its employés were about the lot every day, and so close to the inclosure that they could not well escape observing the opening.

On these facts the argument is made for the power company that Lucius in the first place was a trespasser on the premises of the power company, and, in the second place, as he was not injured by falling into the pit or coming in contact with anything immediately...