151 Ky. 332 | Ky. Ct. App. | 1912
Opinion op the Court by
Affirming.
Appellee was paid for lighting a church on Fifth street in the city of Covington, and for the purpose of doing this, it suspended its electric light wires from near the top of the building, down the east wall thereof, through a transformer which was located within about one and a half feet of the ground, and then into the basement of the building through a window directly under the transformer. This transformer, as we understand it, was for the purpose of regulating the electric current going into the building. There was built, we presume by the church people, on the east side of the church building, a brick wall about seven feet and eight inches high. This wall began at the northeast corner of the building, extended east several feet to a board fence, thence ran south to a point where it. connected with another wall of the church building, thus enclosing a small yard wherein appellee’s electric wires and transformer were located. The board fence which was about three feet lower than the brick wall, connected with the northeast corner thereof and continued on the same line as the north wall of the small enclosure. It appears that for about two years prior to the injury herein complained of, loose rock had been piled up against the rear of this brick wall and board fence, to a depth of about three feet; that by going upon this rock, then to the top of the board fence, then to the top of the brick wall, an entrance could be easily had into this yard by going down a plank,' one end of which was resting upon the ground within the yard and the other against and near the top of the wall. Appellant, who was about ten years of age at the time, and another little boy were playing ball in the vacant lot which was immediately- back of the wall and board fence; one of them threw the ball and it fell into the church yard and stopped at a point near appellee’s
Appellant instituted this action by his next friend to recover for his injuries which he alleged were caused by appellant in negligently placing its wires and in leaving them unguarded, as they were dangerous, and further in allowing the insulation on the wires to become so decayed that it dropped off leaving the wires exposed, thus rendering them more dangerous.
The testimony, without contradiction, showed the facts above stated and that a number of children, before and after school hours and on Saturdays, used this vacant lot for a playground; that they would frequently enter the churchyard in playing their games; that this had been going on for at least two years prior to appellant’s injury, and that none of them knew, especially appellant, that there was any danger in touching appellee’s wires or transformer. Appellant’s testimony showed that the transformer should have been placed twelve or fourteen feet above the ground, instead of within one and a half feet thereof; that the wires should have been incased in a pipe of some kind or guarded by a netting in some way so that a person could not come in contact with them, and that the insulation on the wires should have been kept in repair.
At the conclusion of the testimony, upon appellee’s motion, the court gave the jury a peremptory instruction to find for appellee. This instruction was given upon the idea, as we understand it, that there was not the slightest proof showing that any one connected with appellee, or any of the church people, for that matter, had any knowledge or information that appellant or any of the children mentioned, had been in the habit of entering this churchyard, or that they had entered it at all for any purpose.
Appellant’s counsel contend that the case should have been submitted to the jury, as the boy’s testimony showed that appellant had so placed and left its wires and transformer as to render them dangerous; that the court had a right to assume that appellee knew of, or
As stated, there is not the slightest testimony showing that appellee had any knowledge or information that the boys were in the habit of entering the churchyard from the adjacent lot when playing -there; nor had it any reasons to anticipate their going into the yard, except that boys of their age might be expected to go into any enclosure they could enter.
The rule of law governing such cases has not been extended as far as claimed by appellant’s counsel. The “Turn Table Doctrine” was established upon the idea that something dangerous to children had been constructed at a place where children were in the habit of passing or congregating or at a place easy of access and inviting to children, and that these facts were known to the owner of the dangerous structure. In the case of Bransom’s Admr. v. Labrot, &c., 81 Ky., 638, the administrator was allowed to recover for the death of a child which was caused by the overturning of a lumber pile, and the court quoted with approval, in that case, from Hargrave v. Deacon, 25 Mich., 1, the following:
“ ‘ The owner of private grounds is under no obligation to keep them in a safe condition for the benefit of trespassers, idlers, bare licensees, or others who may come upon them, not by invitation, express or implied, but for pleasure or to gratify their curiosity, however innocent or laudable their purpose may be.’ ”
That opinion proceeded, however, by saying that the rule quoted did not apply to that case, as the lumber pile had been situated on the lot for many years and, Ly license of the owner, the lot was nsed by the public
The case of Graves v. Washington Water Power Co., (Wash.) 11 L. R. A. (N. S.) 452, is very similar to the one at bar. In that case a boy fifteen years of age climbed up a pier of a bridge a distance of about thirty feet where he was injured by coming in contact with a wire charged with electricity. The claim was made that the braces on the pier formed a kind of lattice work which served as a ladder and made the structure an attractive one to the boy who, it is asserted, went up to a point where pigeons nested and received his injury as stated. In that case the court refused to allow the boy to recover, and said:
“The things which constituted the attraction which it is claimed drew him to this place were features connected with the river, the bridge, and the pigeons, and were matters for the existence of which appellant was not responsible.” In the case at bar, the boy’s only attraction to the place where he was injured was the recovery of his ball.
The case of Mayfield Water & Light Co. v. Webb’s Admr., 129 Ky., 395, is also very much like the case under consideration. In that case a little boy was killed by coming in contact with an electric wire-strung on poles eighteen feet above the ground. He reached the wire by
It follows that the lower court did not err in giving the peremptory instruction, as appellee’s transformer and wires were located inside the yard which was enclosed by a solid brick wall seven feet and eight inches high and it had neither actual nor constructive notice of any use of the premises by any one.
Judgment affirmed.