Watral's Adm'r v. Appalachian Power Co.

• Decision Date: 25 March 1938
• Citation: 115 S.W.2d 372,273 Ky. 25
• Parties: WATRAL'S ADM'R v. APPALACHIAN POWER CO. et al.
• Court: Kentucky Court of Appeals

115 S.W.2d 372

273 Ky. 25

WATRAL'S ADM'R v. APPALACHIAN POWER CO. et al.

Court of Appeals of Kentucky

March 25, 1938

Appeal from Circuit Court, Pike County.

Action by Frank Watral, administrator of the estate of Kornelia Watral, deceased, against the Appalachian Power Company, the Majestic Collieries Company, and the Kentucky & West Virginia Power Company to recover for the death of the intestate wherein last-named defendants filed a demurrer. From a judgment sustaining the demurrer, plaintiff appeals.

Affirmed.

Roscoe Vanover, E. J. Picklesimer, and Stratton & Stephenson, all of Pikeville, for appellant.

J. J Moore, of Pikeville, for appellee Majestic Collieries Co.

Andrew E. Auxier, of Pikeville, and Goodykoontz & Slaven, of Williamson, W. Va., for Appalachian Power Co., and Kentucky &amp West Virginia Power Co.

REES Justice.

Frank Watral, administrator of the estate of Kornelia Watral deceased, brought an action against the Appalachian Power Company and the Majestic Collieries Company to recover damages for the death of his intestate alleged to have been caused by the negligence of the defendants. It was alleged in the petition that the Appalachian Power Company furnished to its codefendant electricity over its power lines, consisting of high-tension wires suspended on poles; that the Majestic Collieries Company desired to have the power line extended up Poplar creek, and it erected poles and placed thereon a wire; that the poles were placed along or near the public road and near the home of Kornelia Watral, and through a thickly populated section of the mining camps owned by it. The material part of the petition reads:

"That the defendant Majestic Collieries Company in making the said extension placed the poles near the home of the deceased Kornelia Watral, and placed the wire only about 13 feet above the surface of the ground and negligently and carelessly failed to insulate the said wire or to in any way protect the wires, or to prevent other wires or any object coming in contact with the said high tension wire; and that the said wire was so close to the building and so near the surface that it was dangerous and unsafe to persons living in the mining town, where it was erected; and that the defendant, Appalachian Power Company furnished current of electricity and permitted the same to be carried over the said wire, knowing its dangerous and unsafe condition and its close proximity to the houses, public road, and places frequently occupied and used by the public; and both the defendants Majestic Collieries Company and Appalachian Power Company used, caused and permitted 2,200 volts of electricity to continuously pass over the said high tension wire; and that the same was unsafe and dangerous and well known to the defendant, to be in an unsafe and dangerous condition and wholly uninsulated or protected.

"That on or about the 9th day of April, 1935, a small boy was flying a kite, with a small copper wire which came in contact with the high tension wire owned by the Appalachian Power Company, but erected and maintained by the Majestic Collieries Company; and that the said small copper wire became charged with a high voltage of electricity and the small boy, by the name of ___ Robinette, came in contact with the said wire and was badly burned, and shocked with electricity and his cries brought to his side his mother, Matilda Robinette, who undertook to assist her son and that she fell to the ground, badly shocked and burned by an electric current; and that her cries brought to her side her neighbor, Kornelia Watral, who attempted to assist her and in so doing was electrocuted and died from the effects of high voltage of electricity, produced and furnished by the defendant Appalachian Power Company and over the high tension wire erected and maintained by the Majestic Collieries Company and that the said injuries and death of Kornelia Watral was brought about by the gross carelessness and joint negligence of the Appalachian Power Company and the Majestic Collieries Company."

An amended petition was filed in which the Kentucky & West Virginia Power Company was made a defendant. The amended petition repeated, in substance, the averments of the original petition, and, in addition thereto, contained the following averment:

"That children of tender years who resided in and about the mining camp of the defendant, Majestic Collieries Company, and whose homes were bordering upon and adjacent to the public street over which said uninsulated wire was strung as hereinbefore set out were in the habit of playing in and upon said street and under and around said wire at various childish games and that they were in the habit of flying kites in and around said street and said wire, and that this play of said children and the flying of kites was known to the agents, servants and employees of each of the said defendants herein, prior to the acts complained of herein on or about the 9th day of April, 1935."

Demurrers of the Majestic Collieries Company and the Kentucky & West Virginia Power Company to the petition, as amended, were sustained, the plaintiff declined to plead further, and, from the judgment dismissing his petition, as amended, he has appealed. The Appalachian Power Company was named an appellee, but it had never been served with process in the circuit court, and a motion to dismiss the appeal as to it has been sustained.

The appellees advance a number of reasons why the judgment should be affirmed. They argue that under the allegations of the petition the unnamed son of Matilda Robinette is presumed to be barely under 21 years of age; that Kornelia Watral, Matilda Robinette, and her son were trespassers or, at most, bare licensees upon the lands of the defendant collieries company, and through young Robinette likewise trespassers with respect to the electric wires involved, and that therefore they took the premises and said appliances in the condition in which they found them and at their own risk, and the defendants owed them no duty except to refrain from willful and wanton injury, which duty was not violated. They also argue that the allegations of the petition raise a presumption of contributory negligence against plaintiff's decedent, and show that her death was caused by her own act.

It is unnecessary to discuss these questions, in view of our conclusion that the petition, as amended, failed to allege facts showing a duty...