49 S.E.2d 143 | Ga. Ct. App. | 1948
1. Where the concurrent acts of negligence of the Gunn-Willis Lumber Company and the Georgia Power Light Company combined to cause the injury, they may be sued jointly. *644
2. The petition as amended set forth a cause of action against both the lumber company and the power company, and therefore the trial court erred in sustaining the general demurrers.
The allegations of the petition material to a determination of the questions presented are in substance these: (3) On March 1st, 1947 (the date of the death of decedent), Gunn-Willis Lumber Company was the owner and operator of a sawmill, the electric power for operating the same having been supplied by the defendant Power Company. (4) Electricity is an invisible, impalpable force, highly dangerous to life unless controlled, conveyed and distributed with a proper degree of care in the construction, use and repair of the lines by which it is conveyed. (5) Gunn-Willis Lumber Company, in operating its sawmill, had caused a large sawdust pile to accumulate near this mill, which pile of sawdust was within the corporate limits of the City of Bainbridge, and about 500 feet in circumference, the eastern edge of which was within 63 feet of the intersection of Washington and Columbia Streets; this pile of sawdust was in plain view of these streets, and it was situated in a thickly settled community, in which lived a large number of children. (6) For many months the sawdust pile had been negligently allowed to accumulate in such tremendous proportions as to cause the top of the same to be within four and one-half feet from an uninsulated wire, strung on poles about 100 yards apart, which conveyed an electric current of 2,300 volts by which said sawmill was operated, and which wire, because of the negligence of the *645 Power Company, had been allowed to sag between said poles and over said huge sawdust pile to an extent that the negligence of both defendants contributed in causing a dangerous situation to exist, in the nature of a "mantrap," by allowing this deadly and invisible current of electricity to be conveyed in such close proximity to the top of said sawdust pile, where children were permitted to play, among whom was the decedent. (7) For a long period of time, and ever since the Lumber Company had operated said sawmill and had owned the premises on which the sawdust pile was located, the defendants had knowingly permitted children, almost every day, in large numbers, to play in and around and on the top of this sawdust pile, which was unfenced and unguarded, and in plain view of the streets aforesaid, and without in any way warning these children, among whom was the decedent, of the dangers incident thereto because of the hidden peril and hazardous situation created by the invisible and high-powered electric current. (8) On the day of the decedent's death, decedent had occasion to pass by said sawdust pile looking for his lost dog, where he found a number of children playing, as was their custom. Deciding to engage in their sport, by diving onto and into the sawdust, he made his way to the top of same, all of which was wet from a recent rain. Decedent, at the time, was in his bare feet without socks or shoes, and without his hat. After reaching the top, or near the top of the pile of sawdust, the top of his head was about one foot and six inches from the wire transmitting the electric current. After assuming a diving position, but before he could leap, the powerful electric current, attracted by the connection made by decedent's body with the wet sawdust, struck some portion of his body, and he was instantly killed. (9) Plaintiff shows the following, under the facts hereinbefore alleged: (a) that the defendant did not use ordinary care and diligence, and that such negligence was wilful and wanton in the sense that the decedent, a licensee, was exposed to a concealed danger created and maintained by the defendants on the premises of the Lumber Company, where and at a time when the presence of said decedent should have been reasonably anticipated by the defendants, of which hidden peril the defendants were entirely cognizant, and of which invisible peril the decedent was unaware; *646 (b) that, because of the facts hereinbefore alleged, the defendants allowed the premises, where the decedent was killed, to be kept in such a state or condition as to lure and attract children to play upon or around the huge sawdust pile over which and within four and one-half feet of the top of the same was an (un)insulated electric line carrying a current of 2,300 volts of invisible electricity. (10) At the time of his death decedent was 17 years of age, but while he was a strong and able-bodied boy physically, and able to do manual work, his brain has ceased to properly develop in his early youth, and he had the mind of a normal child 7 or 8 years old, and he was accustomed to play with children of that age. 1. The only special demurrers passed upon by the trial judge were those relating to a misjoinder of parties.
"It is a well-established general rule that, `where two or more persons or corporations, acting independently, without concert, plan, or other agreement, inflict a damage or cause an injury to another person, the persons inflicting the damage are not jointly liable therefor, but each is liable for his proportion only of the damages; and in such a case a joint action against them can not be maintained.' . . . But it is also true that, even though voluntary, intentional concert is lacking, if the separate and independent acts of negligence of several combine naturally and directly to produce a single injury, they may be sued jointly, despite the fact that the injury might not have been sustained had only one of the acts of negligence occurred." Scearce v. Gainesville,
We think the trial judge erred in sustaining the special demurrers as to misjoinder of parties.
2. The only question remaining for our determination is whether or not the petition sets forth a cause of action against the defendants as against a general demurrer.
As shown above the plaintiff alleges that the defendants failed to exercise ordinary care and diligence, and that such negligence was wilful and wanton in that the decedent was exposed to a concealed danger in the nature of and the equivalent to a mantrap *647 created and maintained by the defendants on the premises of the Lumber Company, where and at a time when the presence of the decedent should have been anticipated by the defendants, of which hidden peril the defendants were fully cognizant and of which the decedent was unaware.
The petition further alleges that the defendants were negligent in maintaining an attractive nuisance, the theory of which is based upon the "turntable cases."
Even though it is necessary for the plaintiff to allege that he had permission from the owner of the premises on which he had entered at the time he was injured, or that the defendant knew of his presence at the scene of his injury (Augusta Ry. Co. v.Andrews,
Where the defendants were aware of the custom of children to play in and around the sawdust pile, the defendants are bound to anticipate the presence of such children and are under a duty to use ordinary care to avoid injuring them after their presence is known or reasonably should be anticipated. Bullard v. SouthernRy. Co.,
"Though useful in many ways and for various purposes indispensable in these days of varied activities, the force called electricity is an instrumentality of a highly dangerous character, and, if not properly confined in its place, it may maim or ruthlessly destroy life and property. Although generally serviceable and capable of beneficial use when properly insulated and controlled, yet, when defectively insulated or carelessly employed, the current resembles the legendary thunderbolts of mythical deities, destroying all who cross its path. The more inherently powerful an instrumentality, the greater the duty to exercise a commensurably high degree of diligence and care to prevent *648
danger from its employment in the varying phases of business activities to which it is adapted and applied. Whenever and by whatever mode or method any dangerous agency is handled, the one responsible therefor is necessarily and legally bound to the highest measure of skill and care in dealing with it, to the end that the lives and the property of others without fault may not be injured or destroyed by contact with it." Love v. Virginian Power Co.,
The degree of care required of the company furnishing electricity to prevent injury from exposure to this dangerous and death-dealing agency is measured by the danger itself. The company must exercise this alertness not only under the conditions which exist when its wires are placed and of which it has actual knowledge, but it must also exercise this care in the light of changing conditions of which it should have knowledge. In the case sub judice the electric wires were erected before the sawdust pile was allowed to accumulate. The petition shows that the child was a licensee and "`to the licensee, as to the trespasser, no duty arises of keeping the usual condition of the premises up to any given standard of safety, except that they must not contain pitfalls, mantraps, and things of that character.'" Banks v. Watts,
We are of the opinion that one who maintains a dangerous instrumentality or carries on a dangerous active operation on his premises, or recklessly exposes a licensee to a dangerous and *649
deceptive situation amounting to a hidden peril in the nature of a mantrap, pitfall or the like, with the knowledge that children are in the habit of resorting there for amusement, or when by the exercise of ordinary care he ought to know that children are in the habit of going there to play, whether the instrumentality, operation or situation is an attractive nuisance or not, is liable for an injury sustained by one of the children. Bohn v.Beasley,
In the case of Graham v. Sandhill Power Co., supra, it is said at page 393 that: "The great weight of authorities sustain the contention of plaintiff in this case. The development of electric power is of vast importance to the commercial, domestic, and civic life of our people, and should be encouraged. Electricity is an invisible and subtle power. In the manufacture and distribution it requires trained and skilled artisans. People, unless educated in the use of it, know little about its deadly qualities. It can only be discovered by the touch, and that brings bodily affliction and death if there is a high voltage in the wires. Those who are engaged in the business are held by the courts to the *650 highest degree of care in its manufacture and distribution. The protection to be given the uninformed public, especially children, is not burdensome or expensive. Naked wires can be easily clothed — insulated."
The mere placing of a sawdust pile in the particular location here alleged, in so far as the location was concerned, would be a lawful use by the lumber company of its premises; but when for many months the sawdust pile had been negligently allowed to accumulate in such tremendous proportions as to cause the top of the same to be within four and one-half feet from an uninsulated wire, strung on poles about 100 yards apart, which conveyed an electric current of 2,300 volts by which the sawmill was operated, and which wire, because of the negligence of the power company, had been allowed to sag between said poles and over the huge sawdust pile to an extent that the negligence of both defendants contributed in causing a dangerous situation to exist, in the nature of a "mantrap," by allowing this deadly and invisible current of electricity to be conveyed in such close proximity to the top of said sawdust pile, where children, among whom was the decedent, were permitted to play — all of which circumstances were alleged in the petition — this separate and independent act of the defendant lumber company combined with the separate and independent act of the power company to naturally and directly produce the single injury; and they became negligent acts for which both the defendants may be sued jointly despite the fact that the injury might not have been sustained had only one of the acts of negligence occurred. The danger here would not have existed but for the placing and maintaining of the sawdust pile and the construction of the wires by the power company and its transmission of electricity through them in their uninsulated and sagging condition. The evidentiary facts pleaded were such as demanded the inference of the existence of a dangerous and deceptive situation amounting to a hidden peril, which was a thing of like character to a mantrap and which situation was denominated by the pleader as a mantrap; and under all the allegations of the petition was the equivalent of pleading the ultimate fact of wilful and wanton negligence. Leach v.Inman,
In the instant case the power company's wires were sagging to *651
within about four and one-half feet of the sawdust pile, which the lumber company had allowed to accumulate under the wires on its premises, and were naked live wires carrying a high voltage — a deadly current of electricity. The sawdust pile itself was within the corporate limits of the City of Bainbridge and was within 63 feet of the intersection of Washington and Columbia Streets, in plain view of these streets, and in a thickly settled community in which lived a large number of children who for a long period of time the lumber company had permitted to play on such sawdust pile. This was known, or by the exercise of ordinary care ought to have been known to the defendants. In the case ofAtlantic Coast Line R. Co. v. Corbett,
However, the circumstances in proof must be such as to show some negligence on the part of the power company. The mere maintenance of a high-tension wire is not negligence and in order to hold the power company liable it must have been shown to have omitted some precaution that should have been taken; and, likewise, in order to hold the lumber company liable for the injury or death of the decedent, it must have been shown to have committed some act of negligence that is alleged in the petition. *652
We think that the petition sets forth a cause of action against both defendants, and that the trial judge erred in sustaining their general demurrers.
Judgment reversed. Gardner and Townsend, JJ., concur.
