McKenzie v. Foy & Shemwell

33 Ga. App. 38 | Ga. Ct. App. | 1924

Luke, J.

E. Y. McKenzie, executor of the estate of J. W. Wooten, as plaintiff, sued Eoy & Sliemwell, a partnership, and Georgia-Alabama Power Company, a corporation, for damages of the killing of two mules. The defendants interposed separate demurrers, both special and general, to the petition. The court sustained the general demurrer of Eoy & Shemwell, and each and every ground of the demurrer of the power company, and we are called upon to say whether or not it erred in so doing.

The petition as amended ivas substantially as follows: Foy & Shemwell operated, controlled, and possessed a line of wires approximately three miles long, strung over, above, and along the side of the public highway and at a distance of two feet or more from the public highway leading from Albany to Dawson; said line of wires extending from the Furr place, located on said highway, about two miles from Albany, to the Fouché place on said highway, approximately Uve miles from Albany. Foy & Shemwell secured the right of way for the said line of wires, and constructed the line, or had it constructed, at their expense, so that electricity might be conveyed to the said Fouché place, which was owned by them in fee simple. “Foy & Shemwell, since the construction of said line of wares in the early part of 1922, have never relinquished that control and possession of said property,” and have continuously operated the same for the purpose of conveying an electric current to said Fouché place. At the time of the injury complained of, the said line of wares “wras used and employed by the power company, by and with the consent of, and at the invitation and request of, Foy & Shemwell,” for the purpose of transmitting electric current to said Fouché place and “points intermediate thereto.-” Said power company used said wires, “operated, controlled, and possessed by Foy & Shemwell,” to transmit, in the ordinary course of its business and for pecuniary gain accruing to it from the sale of said current,- an electric current to persons living near said highway. On December 5, 1923, one of said wires, heavily charged with electricity, fell “upon and across” said highway at a point approximately one hundred yards beyond the Furr place, in the direction of Dawson. On said daté, while one Smith, the agent and employee of J. W. Wooten, was proceeding “quietly, lawfully, and carefully” along said highway in the direction of Dawson, driving two mules, suddenly, and without warning, said mules, the property of the estate of J. W. Wooten, came in contact with said fallen wire lying across said highway and charged with a deadly current of electricity, and said mules were instantly killed by said current. Said mules came to their death as a result of the negligence of defendants. Foy & Shemwell, “as owners, operators, controllers, and possessors of said line of wires,” were negligent in failing to exercise ordinary care, in the following particulars: (a) in not inspecting said line of wires regularly, so that all defects likely to cause said wires to fall could be detected and remedied; (6) in failing to inspect said line of wires in a careful and efficient manner, so that all defects that would cause said wires to fall across the highway could be detected and remedied; (c) in that said wires were not maintained in good repair, but were neglected and became unsafe, and were at any time likely to fall on the highway; (d) in stringing said wires in such a loose and slack manner that, being blown by the gentlest wind, they would touch and burn apart, and fall on said highway; (e) in stringing and maintaining said wires so close together that they touched and burned apart and fell across the highway; (/) in not insulating said wires so that they would not be dangerous when they fell; and (g) in continuing to allow the transmission of electricity through said wires after they knew, or should have known by the exercise of ordinary care, that said line of wires was in an unsafe condition. The Georgia-Alabama Power Companj', “as user and operator of said line of wires,” was negligent, in that it failed to exercise ordinary care in the following particulars: (a) in sending over'said wires a powerful electric current without inspecting the wires, to ascertain whether it could be safely-so sent; (&) in sending over said wires a powerful current of electricity, when, by the exercise of ordinary care, it should have known that said wires were defective and unsafe, and likely to fall across highway at any time; (c) in sending said current over said wires, when, by the exercise of ordinary diligence, it should have known that said wires were not in a condition of good repair; (d) in sending over said wires said current, when it knew, or, by the exercise of ordinary care should have known, that they had not been inspected since their construction in the early part of 1922; (e) in sending over said line of wires said current without knowing that said line was in a safe condition; (/) in not using improved mechanical devices which would register and give notice of any breaks in the wires; and (g) in failing to repair said broken wire “in a reasonable time after it should have known said wire had broken and fallen” upon said road. By amendment it was further alleged that Foy & Shemwell were negligent: (i) in consenting to the transmission of said current over said line of wires, when they knew, or should have known, that said wires had not been inspected by any one since early in 1922; (/) in continuing to allow, and consenting to, the transmission of- said current over said line after they knew, or should have known by the exercise of ordinary diligence, that said wires sagged three inches below the level at which they were originally strung, “thus enabling them to be blown together by atmospheric disturbances, although it is a well-known fact that such wires, upon coming in contact each with the other, will burn apart, and Foy & Shemwell are well aware of this;” (7c) in consenting to the use of said wires for the purpose of transmitting said current after they knew, or should have known by the exercise of ordinary care, “that said wires had become so weak and worn by the ravages of time and the elements” that they were likely to fall at any time upon the highway. The Georgia-Alabama Power Company, “as user and operator of said line of wires,” was, by amendment, alleged to be further negligent: (h) in sending over said line of wires a powerful current of electricity, when it knew, or should have known by the exercise of ordinary diligence, that said wires had become “so weak and worn by the ravages of time and the elements that said wires were likely at any time to fall upon said highway;” (i) in sending over said wires said current Avithout taking measures of any kind to ascertain whether or not it could be safely so transmitted; (/) in sending said current over said wires when it kneAV, or should have known, from its experience in the business of transmitting current, and in the course of a year from the date of the construction of said wires, that they would need repairs, and Avhen it knew, or should have knoAvn by the exercise of ordinary diligence, that no repairs had been made for more than a year; (Z) in sending over said line of wires said current when it knew, or should have knoAvn by the exercise of ordinary diligence, “that said wires had sagged three inches below the original level from which they were.strung, so that there was a likelihood of contact between said wires, which contact would cause said wires to burn apart and fall.”

The court erred, as pointed out in the headnotes, in sustaining the general and special demurrers.

Judgment reversed.

Broyles, C. J., and Bloodworth, J., concur.