24 Ga. App. 390 | Ga. Ct. App. | 1919
1. An electric company which, after the erection of a telegraph company’s line, erects and maintains over and across the line of telegraph wires, or in close proximity thereto, a high-tension wire which carries a dangerous current of electricity is bound to exercise ordinary diligence in the erection and maintenance of its poles and wires, so as to permit an employee of the telegraph company, who ascends a pole of his company in the discharge of his regular duties, to perform his work in reasonable safety; and an employee of the telegraph company, while in the exercise of ordinary care for his own protection, has the right to assume that such high-tension wires are properly placed and insulated so as to render them reasonably safe. See Ridgeway v. Sayre Electric Co., Ann. Cas. 1918D, 4, and notes (258 Pa. 400, 102 Atl. 123, L. R. A. 1918A, 991), for a full discussion of the law applicable to this case. See also Atlanta Consol. St. Ry. Co. v. Owings, 97 Ga. 663 (25 S. E. 377, 33 L. R. A. 798); City of Dawson v. Smith, 18 Ga. App. 603 (90 S. E. 76); Trammell v. Columbus Railroad Co., 9 Ga. App. 98 (70 S. E. 892).
2. Where one, especially one who is experienced in his business, has the choice of two ways of doing a given piece of work, the one safe and the other dangerous, he is under a duty to select the former; and if, instead of so doing, he voluntarily selects the latter, when he knows or ought in the exercise of due care on his part to know of the danger, he is guilty of a lack of ordinary care (Columbus Railroad Co. v. Dorsey, 119 Ga. 363, 366, 46 S. E. 635; Southern Cotton Oil Co. v. Skipper, 125 Ga. 368 (5), 54 S. E. 110) ; but under the facts alleged in the petition in this case, it was for the jury to determine, from the evidence, whether there were two, ways, one safe and the other dangerous, in which the plaintiff could have performed the work in which he was engaged, and if so, whether he voluntarily selected the dangerous way with actual or imputable knowledge of the danger incident to doing the work in that way.
3. While it is true that if the plaintiff could, by ordinary care, have avoided the consequences to himself caused by the defendant’s negligence, he is not entitled to recover (Civil Code of 1910, § 4426), still questions as to diligence and negligence, including contributory negligence, - are questions peculiarly for the jury, and the court will decline to solve them by1 decision on demurrer, except in plain and indisputable cases. Southern Cotton Oil Co. v. Gladman, 1 Ga. App. 259 (8), 260 (58 S. E. 249); International Cotton Mills v. Webb, 22 Ga. App. 309 (4), 310 (96 S. E. 16). Applying these principles of law to the
4. The plaintiff having originally brought his action jointly against his master, the telegraph company, and the defendant electric company, and having subsequently by amendment stricken the telegraph company as a party defendant, the doctrine known as the “master and servant rule” is not involved. Thus, after the plaintiff had alleged that _ he did not know and could not by the exercise of ordinary care have discovered the danger to which he was exposed, the further allegations as contained in paragraphs 35, 36, 37 and 38 of the amendment, to the effect that the plaintiff did not know and had no opportunity of knowing that his master had furnished to him an unsafe place to work, and that he did not have equal means with his master of knowing or discovering that the place was dangerous, or of knowing or discovering' that the place had been rendered dangerous in which to work, were immaterial and irrelevant to the issues involved, and the special demurrer should for this reason have been sustained. Otherwise the petition as amended, construed as a whole, was not subject to the demurrers interposed, and the court did not err in so holding.
5. The facts presented in the cases of Columbus Railroad Co. v. Dorsey, 110 Ga. 363 (46 S. E. 635), Dorsey v. Columbus Railroad Co., 121 Ga. 697 (49 S. E. 698), and Zachery v. Mayor &c. of Madison, 18 Ga. App. 490 (89 S. E. 594), while in some respects similar, fire distinguishable from those alleged in the present petition, and the rulings there made are not in conflict with what is here decided. Some of the distinguishing features are pointed out in the ease of City of Dawson v. Smith, supra. In this case it is alleged that the danger existing by reason of defective insulation was in fact unknown to the petitioner, and after inspection from the ground could not be as.certained, and was not discoverable by him while climbing the pole. This, court can not say, as a matter of law, that the defects as described in the petition were patent. It is also alleged in this case, while it does not appear in the eases just cited, that certain rules were of force requiring that the high-tension wire of the defendant should be placed at a specified safe distance from the underlying telegraph wires, and that an inspection of the same, as made by the plaintiff, would and did fail to disclose their dangerous proximity. We are not prepared to say, as a matter of law, that this allegation is necessarily untrue.
>Judgment affirmed in parf and reversed in part, with direction that the costs be taxed against the plaintiff in error.