Kent v. Southern Bell Telephone & Telegraph Co.

120 Ga. 980 | Ga. | 1904

Lamar, J.

(After stating the foregoing facts.) The petition alleges that the Telephone Company, in South Pryor street, Atlanta, dug a ditch 100 yards in length, three, feet wide at the top, but twice as wide at the bottom. The plaintiff came thereto from a narrow cross street. Whether the'mouth of this alley opened near the middle or at the end of the ditch did not appear. The company contends that as there was no allegation of an emergency, the plaintiff could have gone around the end of the excavation, instead of attempting to cross the visible obstruction, and that she can not recover, because by the exercise of ordinary care she could have avoided the consequences of the defendant’s negligence. This is undoubtedly true as to all risks which, in theory of law, she assumed in attempting to cross the excavation. If she’ had fallen into the ditch by a misstep ; if she had slipped from the loose dirt to the bottom of the trench; if, in attempting to jump, she had failed to reach the other edge, because of inar bility or miscalculation, she would undoubtedly have been debárred of the right to recover; she knew what was before her; with full knowledge she assumed the risk, and could not put the injurious consequences upon another, even though that other had been at fault in creating the condition out of which her damage arose. ■ But the petition does not make such a case. She was not injured because she was unable to step across or jump across the trench. Nor was she injured because she slipped into the excavation. But she was damaged by reason of a latent condition which she alleges was not known, and by the exercise of ordinary care on her' part could not have been known. According to the pleading, the ditch was undermined. It was so much wider at the bottom than at the top as to make the earth cave when she went to step across. She is charged with the assumption of known risks. But she sues for -injuries occasioned by unknown dangers. According to the admissions of the demurrer, they were well known to the defendant. These allegations take the case out of the rule declared in Sheats v. Rome, 92 Ga. 535; Cook v. Atlanta, 94 Ga. 613. It is like one attempting to step across an opening in a bridge. He would assume the ordinary risks incident to that act. But if in doing so he was injured because a rotten plank broke, he could recover for the damage occasioned by the latent defect, even though it had been inflicted while he was in the act of stepping. It was not the visible opening, but the rotten plank, which was the proximate cause. Compare Samples v. Atlanta, 95 Ga. 110.

There are, of course, many cases where the facts stated in a petition, or appearing on motion for a nonsuit, may be 'of such a character as to warrant the judge in deciding, as matter of law, that the plaintiff has been guilty of such negligence as to defeat the right to recover. But not every, excavation in a street is of such a character as to make it negligence per se to attempt to cross it. It may be so narrow, or the condition of the excavation and the situation of the parties may be such, as to warrant a prudent man in attempting to pass. Or, if the dangers assumed prevent a recover}' for injuries occasioned thereby, it may not defeat a recovery for injuries occasioned by latent and unknown conditions, the risk from which may not have been assumed. “ Where» the facts are complicated or unusual,” the question as to the defendant’s liability for an injury occasioned by the excavation should be submitted to the jury (1 Thomp. Neg. 1127), to determine whether the defendant was guilty of negligence not discoverable by the plaintiff in the exercise of ordinary care, whether the plaintiff was herself guilty of negligence and injured as the result thereof, whether the injury was occasioned by the attempt to cross the ditch, or by the dirt caving in, and whether this was the result of some improper, unusual, or dangerous method of digging the ditch, or whether, on the other hand, the liability to cave was known or was such a natural result of the construction as to charge the plaintiff with notice thereof when she attempted to make the crossing.

Judgment reversed.

All the Justices concur.