The appellee plaintiff, an infant seven years of age, was seriously injured on a moving conveyor belt operated by defendant appellant. The jury awarded plaintiff $50,000.
Defendant is a coal operator. On its premises is a lengthy conveyor belt for transporting coal from a bin to a tipple. One end of this belt line is housed in a sheet iron structure at the bottom of a hollow, approximately 10 feet from a private roadway. The lower part of this housing was open on two sides, exposing the roller and belt. Without difficulty a person could enter the housing.
That is exactly what the plaintiff did. Playing “Cowboy and Indians”, he went in the opening and climbed up on the conveyor belt, which was not in operation at the time. While he was in this position, the machinery was started from the top of the hill and plaintiff was carried into a hopper where he was severely battered.
Defendant raises a question about variance between pleading and proof which we do not consider significant. The basic issue presented by the complaint and vigorously tried was whether or not the defendant negligently maintained a dangerous instrumentality. This involves principles stemming from the “attractive nuisance” doctrine.
Defendant contends it was entitled to a directed verdict under the law as laid down in Teagarden v. Russell’s Adm’x, 306 Ky. 528, 207 S.W.2d 18. In that case a boy had climbed to the top of a gondola railroad car loaded with gravel. When the hopper at the bottom of the car was opened for unloading,. he was dragged downward and killed. We held the gondola car was not an attractive nuisance and defendant was not negligent in failing to anticipate an accident of this nature.
The plaintiff relies upon the case of Kentucky and Indiana Terminal Railroad Company v. Mann, Ky., 290 S.W.2d 820; 312 S.W.2d 451 (two opinions). In that case a very young child strayed into defendant’s railroad yard and was run over by a shunted tank car. We held that the question should be submitted to the jury as to whether or not the defendant was negligent in maintaining a dangerous instrumentality so exposed that the defendant could reasonably anticipate that it would cause injury to children. In that case, as in the more recent case of Goben v. Sidney Winer Company, Ky., - S.W.2d -, the emphasis has been shifted from the attractiveness of the instrumentality to its latent danger when- the presence of trespassing children should be anticipated.
The applicable rule may thus be stated: where one maintains on his premises a latently dangerous instrumentality which is so exposed that he may reasonably anticipate an injury to a trespassing child, he may be found negligent in failing to provide reasonable safeguards. See Restatement of the Law of Torts, Vol. 2, Section 339 (page 920); 65 C.J.S. Negligence § 28, page 453; and 1 Thompson on Negligence, Section 1030 (page 944). Within the framework of this rule the Teagarden decision (Teagarden v. Russell’s Adm’x, 306 Ky. 528, 207 S.W.2d 18) was justified on the grounds (1) the danger was not so exposed as to present the likelihood of injury, and (2) the defendant could not reasonably anticipate the presence of children on this car at the time of the accident. Those factors distinguish the Teagarden case from the present one. Our factual situation more closely approaches that in the Mann case (Kentucky and Indiana Terminal Railroad Company v. Mann, Ky., 290 S.W.2d 820; 312 S.W.2d 451).
It seems indisputable that the conveyor belt, exposed and unprotected, constituted a latent danger. Defendant’s counsel does not otherwise contend. (The briefs for both parties were exceptional.) His principal argument on this point is that the evidence failed to establish that children habitually played near the housing where *213the injury occurred, so defendant could not anticipate an injury.
There was substantial evidence that children often had been seen near the conveyor belt. It is insisted, however, that the area sometimes frequented by them was 175 feet up the hill from the point where the plaintiff was injured. (A supply track crosses the belt line at this point.) However there was evidence that children occasionally had been seen playing near the housing at the bottom of the hill. Only one witness testified he had ever seen a child on the belt in the housing.
We may accept defendant’s contention that the evidence failed to show many children often played around the point of the accident. Yet defendant’s own witnesses clearly established that they could be anticipated at various places near the convey- or belt and defendant constantly tried to keep them away from other parts of the premises where they might be exposed to danger.
There is no requirement of the law that before the doctrine of dangerous instrumentality may be applied children must be shown habitually to have been present at the exact point of danger. If children are known to visit the general vicinity of the instrumentality, then the owner of the premises may reasonably anticipate that one of them will find his way to the exposed danger.
Defendant’s insistence upon the requirement that plaintiff must prove a habit of children to frequent the housing is predicated on the assumption that the dangerous condition was not attractive to children. It has been said that if the place or appliance does not possess a quality constituted to attract children generally, the owner of the premises may not reasonably anticipate injury unless it is shown that they customarily frequent the vicinity of the danger. 38 Am.Jur., Negligence, Section 145, page 811. This premise may not be invoked here for the reason that the conveyor belt housing did have a quality of attractiveness. It is difficult to imagine a more enticing hiding place for children, the very purpose for which it was used by the plaintiff when the accident occurred. It was indeed a trap.
The factual situation may be summarized. The machinery at the point of the accident was inherently and latently dangerous to children. It was exposed, was easily accessible from the roadway close by, and was unguarded. It possessed an element of attractiveness as a hiding place and as a device upon which children might play. While children may not have frequently congregated about this particular place, the defendant knew that children often invaded its premises in the general vicinity.
Under such conditions, the question is whether or not defendant was negligent in failing to reasonably safeguard the machinery at this point. (The record shows it could have been done at a minimum expense.) It is not our province to decide this question. Certainly we cannot say as a matter of law that reasonable minds must find the defendant free of negligence. The issue was properly submitted to the jury.
The defendant earnestly argues that since the instruction given required the jury to find a “habit” of children to play upon and around the belt and machinery at the point of the accident, it could not properly return a verdict for plaintiff under this instruction because this “habit” was not sufficiently shown. There are three answers to this contention: (1) the language of the instruction did not limit the habitual use to the precise place of the accident, (2) the instruction was more favorable to the defendant than the law requires because of the attractiveness of the instrumentality, and (3) the jury could not have been misled concerning the essential basis of liability. In view of the principles of law we have discussed in this opinion, we are of the opinion this instruction fairly presented the issue of negligence (although it might properly have been differently worded), and we cannot find it was prejudicially erroneous. . ,
*214The remaining contention of defendant is that the award of $50,000 damages was grossly excessive, particularly since there was no evidence to justify an allowance for permanent loss of earning power. It is unnecessary to detail the extensive medical evidence regarding the plaintiff’s injuries. That he was seriously injured no one can question. His skull was partially crushed and it is remarkable that he survived. Four very serious operations were necessary to repair the skull damage, which included transplanting parts of his ribs by bone graft and taking skin from other parts of his body. There was a long period of pain and suffering.
The plaintiff was, to a substantial degree, made whole again. Defendant insists that the only permanent aspects of the injury are the cosmetic features. The plaintiff’s head has permanent scars and depressions in the skull and hair will not grow in certain places. He will carry the unattractive imprint of this injury the rest of his life. An adverse psychological effect reasonably may be inferred.
It is true we cannot know how this injury may affect his earning ability. It is not unreasonable, however, to find that its permanent aspects justify an award of damages based on a loss of potential earning capacity and the effect of disfigurement upon his future life. See J. C. Penney Company v. Livingston, Ky., 271 S.W.2d 906.
This is a large verdict. In view of the seriousness of the injury, however, it does not strike us at first blush as being the result of passion and prejudice.
The judgment is affirmed.
STEWART, J., dissenting.