Young's Adm'R v. Mahan-Jellico Coal Co.
| Decision Date | 12 January 1934 |
| Parties | Young's Adm'r v. Mahan-Jellico Coal Company. |
| Court | United States State Supreme Court — District of Kentucky |
Evidence disclosed that electric motor with 50 or 60 cars attached had in the afternoon been driven into storage tunnel, and that the motor was left there with trolley pole attached to trolley wire, and that switch connecting the electric current on the trolley was cut off at tunnel entrance. At this point, due to the condition of the tracks, it was impossible for the motor to pull the cars back, another motor being used at other end of train for that purpose, and it was also impossible to move the motor and cars ahead without removing several tons of slate which had fallen on the tracks. On the night in question, deceased, with several companions, by aid of carbide light, climbed over the cars for the length of the train, then removed slate from tracks, and proceeded to operate motor and cars. There was no evidence that children on previous occasion had gone into the storage tunnel or attempted to use the motor therein, and children had been prohibited from trespassing upon the cars or motors either within or without the mine.
2. Negligence. — Generally, owner of property owes trespassing children only duty of exercising ordinary care to prevent injury after discovering their peril.
3. Negligence. — Duty of property owner to children under "attractive nuisance" doctrine is to refrain from placing or installing attractive or dangerous instruments upon its premises which will lure children of tender age to their hurt.
Appeal from Whitley Circuit Court.
J.B. JOHNSTON and R.L. POPE for appellant.
TYE, SILER, GILLIS & SILER and T.E. MAHAN for appellee.
Affirming.
Roy Young, an eleven year old boy, while riding with some older boys in a tunnel of the appellee coal company upon one of its electric motors, fell and was crushed and instantly killed thereunder.
In this action by his administrator to recover damages for his death, the trial court, at the conclusion of plaintiff's testimony, sustained the motion of the defendant for a directed verdict, and a new trial having been denied, the administrator appeals.
Appellant by counsel presents and argues only one ground for the reversal of the judgment, which is that the court erred in sustaining the motion of defendant for a directed verdict. In support of such contention, he insists that the evidence introduced showed the case to be one coming within the doctrine of an attractive nuisance and controlled by the applicable rule of liability therefor. Thus the only question here presented for our review and determination is whether or not the attractive nuisance doctrine is here applicable. To correctly determine this, or whether the appellee is liable under the rule of this doctrine, it is necessary to get a clear outline of what is claimed to have here constituted the attractive nuisance and to understand just what were the alleged negligent condition of the premises and dangerous and attractive instruments shown by the evidence to have been used and employed by the appellee (defendant below) thereon, as the owner and in control thereof.
The case as made out for the administrator by the testimony of his witnesses is substantially as follows: Roy Young was at the time of his accidental death living with his father and stepmother upon the mining property of the appellee coal company at Packard, Whitley county, Ky., where the latter owned and operated its coal mining business as the Mahan-Jellico Coal Company. The house in which Roy Young lived belonged to the appellee mining company and was but little distant from the entry to its mines and also to the entry to its tunnel wherein it had and used a storage track for storing certain of its unused cars and electric hauling motor thereto attached, when not needed for coal transportation about the mines.
The evidence shows that this tunnel had been made by the company some years before and tracks laid therein for the purpose of a connecting roadway and for removing the coal from another of its nearby mines, but that this farther mine had been abandoned about two years prior to Roy Young's death, since which time the tunnel and its tracks had been used by the appellee merely as a convenient storage place for its unused cars and motors. Also, it appears that the company owned some four or five hundred of these small bank cars and some six electric, six-ton, haulage motors, which it employed in its mining operations in the hauling of the mined coal from out its mines to the tipple where they were unloaded, when the empty cars would be then carried therefrom for storage upon the nearby tunnel tracks if they were not to be again soon needed in the mine.
The evidence further shows that the appellee coal company has a motor barn at its plant, which holds about six motors, this barn being equipped with doors that can be locked; also, that these electric motors are operated by placing the trolley pole on the electric wire and opening up the control, which makes contact with the electric power and pulls the motor forward or backward at the will of the operator; that the electric current is distributed throughout the mine by wires attached to the roof; and that the current can be turned on or off by a switch at the drift mouth or entrance. Also it shows that it is impossible to operate one of these motors if the control or reverse is removed or while the electric current is switched off or if the trolley pole is locked down to the motor, and that any one of these things could be done within a few minutes and at little or no expense.
On the particular occasion in evidence, it appears that Mr. Oliver, a motorman for the company, had late in the afternoon of December 11, 1931, according to the appellant, driven a motor, to which there were attached about sixty cars, each car being nine or ten feet long, off the main line and into this side entry or tunnel situated within a few feet of the main line and had left the motor and cars underground about fifty car lengths therein, and that such was the usual means of storage of its unused cars and motor; that the motor was left with the trolley pole attached to the trolley wire; and that the switch controlling the electric current on the trolley wire was cut off at the drift mouth or tunnel entrance. Also it appears that this tunnel was about eight hundred feet in length and extended through a side of the mountain ridge with an opening or portal at either end. Also it appears that within about one hundred feet of the farther end of the tunnel, several tons of slate had fallen over the tracks, so blocking and obstructing them as to render it impossible to drive a motor over or beyond such slate obstructed part of the tracks; that Mr. Oliver, in bringing the motor and attached fifty-odd empty cars into the tunnel, upon this occasion had driven the motor to the point therein where it reached the fallen slate and had there stopped and left the motor and empty cars until they would be again needed, when it is shown another electric motor would be coupled to the other or rear end of the train and the cars and attached motor pulled out of the tunnel; that such method of taking or thus pulling out the stored motor and cars out of the tunnel was necessary because of the uneven and curved condition of the tracks, which made it impossible for the motor pulling them in to again back them out; and that upon thus leaving the motor and attached cars, the motorman had come out of the tunnel and switched off the electric current at the entrance switch located six feet above the ground.
The evidence thus shows that upon this occasion the coal company had stored for the night an electric haulage motor attached to some fifty-odd empty coal cars within this narrow and low, eight hundred foot tunnel on the mountain side, where there is no evidence that children had ever before congregated or played, and had thus left the motor at a distant point therein where several tons of slate had fallen on the tracks so as to prevent its forward movement, while behind it the fifty-odd cars, attached and standing on a curving and sagging track, prevented the backward movement of the cars, with the result that in order to reach the motor so stored, or to use it, these vagrant boys or children had to go in the dark of the night through a narrow tunnel eight hundred feet long, crawl over some fifty-odd mine cars, with the aid of only such light as they might themselves then have, and when the motor was finally reached find it so obstructed that it could not then be moved or run, so as to become a dangerous instrument stored upon the premises, without the effort and further labor of first removing several tons of fallen slate from in front of the motor which then blocked its forward movement.
The evidence further shows that on the evening in question the deceased, Roy Young, left his home about 6 o'clock, with the permission of his father, for the purpose of attending church service held in a vacant house owned by the defendant company about one-half mile distant; that he there met five or six older boys, when it was suggested that they leave...
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