33 Ga. App. 375 | Ga. Ct. App. | 1925
1. “Where the owner or occupier of land, by express or implied invitation, induces or leads others to come upon his premises for any lawful purpose, he is liable in damages to such persons for injuries occasioned by his failure to exercise ordinary care in keeping the premises and approaches safe.” Civil Code (1910), § 4420. “There is a clear distinction between the duty owing to such an invitee and the duty owing to a mere licensee. An owner owes to a licensee no duty as to the condition of the premises, unless imposed by statute, save that he should not knowingly let him run upon a hidden peril, or willfully cause him harm; while to one invited he is under obligation for reasonable security for the purposes of the invitation.” Crossgrove v. Atlantic Coast Line R. Co., 30 Ga. App. 463 (1) (118 S. E. 695); Smith v. Jewell Cotton Mill Co., 29 Ga. App. 461 (1) (116 S. E. 17).
2. While it is true that a railway company may, by deed from the owner, acquire a fee-simple title to the land traversed by its tracks, and such an absolute ownership of the soil will extend indefinitely upward so as to include the proprietorship of the air and space above such land, yet when it has acquired by condemnation, or by deed or contract, as it ordinarily does, only what is termed' a “right of way,” such right of way is construed as amounting only to an easement appurtenant to the land, however extensive its duration and however exclusive’ and paramount may be the rights conveyed for'the necessary purposes intended. Such right of way will' not be taken to extend to a height above the' surface "of the tracks greater than is needed for the safe and convenient passage of trains and their burdens of whatever nature, and for the maintenance of the necessary, usual, and customary transportation instrumentalities and facilities. L. & N. R. Co. v. Willbanks, 133
(a) However, where, as here alleged, the railway company holding the right of way assumed ownership or control of the air space above its tracks by entering upon a written contract with an electric company, whereby the latter company was granted the right and privilege to “erect and maintain” described lines of power wire “across and over” the “right of way and tracks” of the railway company, with the right reserved to the railway company to control the manner of erection and the change of location or removal of the conductors, poles, or supports, then and under such circumstances the railway company will not be permitted to dispute its occupancy or control of the space thus utilized by the electric company as against one who enters thereupon by the invitation of the railway company holding the right of way.
3. “An allegation in pleading which contradicts anything of which the court must take judicial notice is absolutely nugatory and will be disregarded.”- Rome Ry. & Lt. Co. v. Keel, 3 Ga. App. 769 (2), 773 (60 S. E. 468). But, while the courts are required to take notice of the elementary natural laws of general application, and the characteristic and scientifically established general properties of material substances and forces, such as electricity, and for this general purpose the personal information of the tribunal may be supplemented by resort to encyclopedias or standard scientific treatises of recognized accuracy, it is nevertheless the rule that special effects and modes of operation of physical substances and forces, which are not commonly known, and an understanding as to the application of which to the particular case may require scientific or expert knowledge not possessed by the court and jury, or about which experts may differ, or which might conceivably vary in effects under peculiar or special conditions, as shown by the pleadings and evidence, will not be judicially recognized, but will be left to proper modes of proof. I Chamberlayne on Modern Law of Evidence, §§ 703, 705, 719, 720, 820, 848, 858, 886, 903; 2 Id. §§ 1968 (a), 1988. In the instant case neither the trial judge
4. “Under section 4414 of the Civil Code (1910) an employer is not liable for the negligence of an independent contractor, unless the employment or tortious acts constitute one of the exceptions stated in that section or in section 4415.” Malin v. City Council of Augusta, 29 Ga. App. 393 (1) (115 S. E. 504). While it is true that, under subdivision 5 of the latter section, “the employer is liable for the negligence of the contractor, . . if the employer retains the right to direct or control the time and manner of executing the work, or interferes and assumes control, so as to create the relation of master and servant, or so that an injury results which is traceable to his interference” (Huey v. City of Atlanta, 8 Ga. App. 597, 70 S. E. 71), it is nevertheless the rule that, where the owner of premises surrenders the possession and control to an independent contractor, the contractor is in law chargeable with knowledge of any and all ordinary risks and hazards thereto appertaining, even though some peculiar arrangements of the premises might under certain conditions become sources of hidden danger. Butler v. Lewman, 115 Ga. 752 (42 S. E. 98). In such a case, in order for the owner or occupier of premises to be held liable to the workman of the contractor, the hazard must be latent or concealed, and the owner must have retained the custody and control of the premises. Huey v. City of Atlanta, supra.
(a) “It is an elementary rule of construction, as applied to a pleading, that it is to be construed most strongly against the pleader; and that if an inference -unfavorable to the right of a party claiming a right under such a pleading may be fairly drawn from the facts stated therein, such inference, on demurrer, will prevail in determining the rights of the parties.” Moore v. Seaboard Air-Line Ry. Co., 30 Ga. App. 466 (1) (118 S. E. 471); Krueger v. MacDougald, 148 Ga. 429 (1) (96 S. E. 867). Conclusions in conflict with pleaded facts are to be disregarded. Moore v. Seaboard Air-Line Ry. Co., supra (4). If the petition be ambiguous or contradictory in its averments, not with reference to the form of action selected, as in Stoddard v. Campbell, 27 Ga. App. 363 (3) (108 S. E. 311), and cases cited, but as to facts essen
(6) But assuming that under the allegations of the petitions the defendants could be taken as having originally had any legal right of control over the particular air space where the injuries occurred, about 30 feet above the tracks, on a level with the height of the concrete piers and below the intersecting power wires, and even though it were possible to give effect to the general allegation or conclusion of the petitions that the defendants retained the custody and control of this air space about the piers where the workmen of the independent contractors employed by the county were engaged, the petitions are nevertheless defective and fail to set forth a cause of action, since they fail to allege that the wires had been erected and installed in an originally unsafe and improper manner, and since it appears that the danger actually and finally encountered by the workmen arose by reason of the conditions created by the workmen themselves during the progress of the work as directed by the independent contractors and the county, and especially since it does not appear that the defendants knew or ought to have anticipated that the independent contractors did not or would not know of the danger thus being brought about, and had failed or would fail to warn the injured workmen thereof, even if the averments as made could be taken as sufficiently alleging that the independent contractors had in fact failed to warn them of the particular danger causing the injury. Kiser v. Suppe, 133 Mo. App. 19 (112 S. W. 105); Cramblitt v. Percival Co. (158, N. W. 541, L. R. A. 1916C, 77); Texas Traction Co. v. George (Tex. Civ. App.), 149 S. W. 438; Proctor v. San Antonio Street Ry. Co., 26 Tex. Civ. App. 148 (62 S. W. 939); The Auchenarden (D. C.); 100 Fed. 895, 896; Omaha Co. v. Hargadine (Neb.), 98 N. W. 1071; Humpton v. Unterkercher, 97 Iowa, 509 (66 N. W. 776); Moll on Independent Contractors, 400.
(c) Especially would the immediately preceding rule have application to the Lawley petition as amended (No. 15443), where it is alternatively alleged in separate counts that the electricity from the transmission wire jumped to a steel tape held by the injured workmen, or drew such tape to the wire, causing electrical contact, and where it does not appear that the defendants, by the proper exercise of any legal duty to the injured workmen, knew or should have anticipated that a recognized dangerous conductor of electricity such as this steel tape would be brought into close proximity to the power wires, and thus occasion a catastrophe, which, so far as shown by the petition, would not otherwise have happened. While the Jones petition (No. 15480). as amended added a second count, alleging that, “as petitioner passed directly under said wire, the said electricity, being thus attracted by the nearness of
{d) Where a proposed bridge, later to become part of a public highway over a railroad right of way, was under construction by independent contractors of a third person other than the defendants, under conditions and circumstances such as are slated above, where, in anticipation of dangers to the public or to servants of the contractors, not then existing but which might later arise from the progress of the structure to a point where wires of the power company (originally properly strung) might cause dangers to the public or to such servants, the fact that at some time previous to the injury and homicide it was agreed by the power company with the railway company holding the right of way and the county employing the independent contractors that the wires should be raised at some later unstated time an additional height of ten feet, would not operate to change the rule, since there was no privity as to such contract between the person injured and the power company, such as would support or aid an action in tort by the servant of the contractors against the power company on account of such injuries and its failure to perform within a reasonable time. See Fowlet v. Athens City Waterworks Co., 83 Ga. 219, 222 (9 S. E. 673, 20 Am. St. Rep. 313, case note, 1 Ann. Cas. 753, 754).
5. Eor the reasons stated in the preceding divisions of the syllabus, it was error to overrule the general demurrers to the amended petitions.
Judgments reversed.