Yellow Creek Coal Co. v. Lawson

• Decision Date: 03 May 1929
• Citation: Yellow Creek Coal Co. v. Lawson, 229 Ky. 245, 16 S.W.2d 1043 (Ky. Ct. App. 1929)
• Parties: YELLOW CREEK COAL CO. v. LAWSON.
• Court: Kentucky Court of Appeals

16 S.W.2d 1043

229 Ky. 245

YELLOW CREEK COAL CO. v. LAWSON.

Court of Appeals of Kentucky

May 3, 1929

Appeal from Circuit Court, Bell County.

Action by Theodore Lawson, by his father as next friend, against the Yellow Creek Coal Company and another. From a judgment for plaintiff, against named defendant, latter appeals. Reversed.

Davis &amp Harrison, of Pineville, for appellant.

J. S Golden, of Pineville, for appellee.

TINSLEY C.

On December 4, 1925, about 7:30 o'clock a. m., appellee, a boy then 13 years of age, was injured by coming in contact with a live electric wire, which was hanging some 4 1/2 or 5 feet from the ground, and which wire was one of the system of wires running from the power plant of appellant to its camp site and camp houses occupied by its employees on Yellow creek in Bell county. These wires crossed and overhung the school grounds of the public school of district No. 65 in Bell county, and between the schoolhouse and the public road. On the occasion of his injury, appellee was a student attending this school. As he entered the school grounds, some of the earlier arrivals of the school children who had discovered this wire sagging between the poles were jumping up and striking the wire with their fingers, by which they had received shocks sufficient to knock them down but not to injure them. As appellee approached the group and the wire one or more of the children called his attention to the wire and told him of shocks they had received, and advised him not to touch the wire; whereupon he replied, and as some of the children say with an oath, "It won't hurt me," and took hold of it. He was knocked down, severely burned on his head, and rendered unconscious. It does not appear by what means he was released from contact with the wire, as one or more of the children present undertook to release him and were knocked down; but as it is shown that the current over these wires was controlled by an automatic switch which shut it off at 7:30 o'clock each morning, it is probable that the injury occurred at this hour, and his release from contact with the wire came about by reason of the fact that the current was automatically shut off. Appellee sued by his father as next friend, and recovered a verdict for $1,000, and from the judgment thereon this appeal is prosecuted.

The action was brought against appellant and Log Mountain Coal Company jointly, but at the conclusion of appellee's testimony, a peremptory instruction was given as to the Log Mountain Company, and it was dismissed. No cross-appeal is prosecuted.

On the trial appellant contended that the sagging of the wire and the injury to plaintiff resulting therefrom were caused by a third party-an independent contractor-for whose acts and negligence it is not responsible. It showed that the condition of the wire was brought about by the felling of a tree, the branches of which caught the wire and pulled it down. This tree was felled by employees of Minton & Courtney with whom appellant had entered into contract to cut timber from its lands surrounding the school grounds, and for which it paid them at the rate of $17 per thousand feet; they hiring, paying, and discharging their employees and hands. Appellant paid Minton & Courtney bimonthly for all timber cut and delivered the previous two weeks. They were men of experience in cutting and felling timber, and were qualified to do the work. It was shown that the particular tree, the branches of which it is claimed pulled down the wire in question, was felled about 4 o'clock on the evening of December 3d, about an hour after school had been dismissed; that it was cut by Mitch Bailey and his son, and James Courtney, all of whom were employees of Minton & Courtney and experienced in cutting timber trees; that it was then nearly dark, and that after the tree was felled the wire was then...