Southern Bell Telephone & Telegraph Co. v. Davis

12 Ga. App. 28 | Ga. Ct. App. | 1912

Hill, C. J.

(After stating the foregoing facts.)

All the foregoing questions raised by the record are ably and elaborately presented to this court bjr counsel for the plaintiff in error, and they are entitled to a decision on each of the. questions submitted.

1, 2. The allegations of the petition, in- the opinion of this court, clearly show a cause of action against the defendants, jointly and severalty, and there was no error in overruling the demurrer. The allegations, so far as the telephone company is concerned, bring it squarely within the principle laid down by the Supreme Court in Southern Bell Telephone Co. v. Howell, 124 Ga. 1050 (53 S. E. 577, 4 Ann. Cas. 707). Indeed, we see no substantial difference between the allegations of the petition in the present case on the subject of liability and the allegations of the petition in that case. The underlying principle of liability of a telephone company which would arise on proof of the allegations made by the petition may be generally stated as follows: The privilege of running its wires through the streets of a city in close proximity to the electric-light wires of the city, which were highly charged with electricity, entailed upon the telephone company the duty of exercising a very high degree of care to maintain its wires intact and to prevent their proximity to the electric-light wires from becoming a source of danger to the public; and it would seem sufficient to show a lack of this care, where the undisputed evidence shows that a broken wire was tying on the sidewalk, under conditions that rendered possible serious injury to persons lawfully using the sidewalk. “Unexplained, the presence on the highway of the charged and broken wire, and the fact of injury received therefrom, justified an inference of negligence in the defendant, in whose control and management it was. Such an inference has been judicially permitted even when the wire that broke received the electricity from a wire on which it fell.” Newark Elec. L. & P. Co. v. Buddy, 62 N. J. Law, 505 (41 Atl. 712, 57 L. R. A. 624).

3. And right here we may eliminate from the case the question of a variance between the allegations of the petition and the proof on tbe question of the slackening or sagging of the telephone wire. We do not think it makes any material difference whether this slackening or sagging caused the telephone wire to break and fall across the electric-light wire and thus become charged with eléctricity, or not. The fact is indubitable, from the evidence, that the telephone wire did break and did become heavily charged with, electricity by coming in contact with and falling across the electric-light wire. There is. sufficient evidence to show that this telephone wire was cut loose from the telephone in the adjacent house and was left down for some time in that broken condition. But the fact that a broken telephone wire, heavily charged with electricity, was lying across the sidewalk affords a strong presumption of negligence. We may indulge the presumption that a telephone wire of proper size and quality, skilfully set up, and inspected with reasonable care and frequency, will not spontaneously break; and where such breakage occurs, the inference either of'defective construction or defective quality, or of some undue and unusual strain somewhere, is inevitable. And on this point we do not think it material to consider, in the absence of proof of any unusual breakage of the wire which might have been caused by a storm, the short' space of time between the time when the broken wire was found on the sidewalk and the injury which was caused thereby to the plaintiff. As was said in the Buddy ease, supra, the plaintiff was not bound to prove when the wire came down. “Its presence at the time and place of injury sufficed. Had it appeared affirmatively that the wire had but just fallen, the presumption of negligence would have been simply narrowed to the breaking of the wire. Only in case it had appeared that the breaking was without negligence would the question of reasonably prompt removal have arisen.” In other words, in our opinion, to establish a prima facie case of negligence, all the plaintiff would have to show would be a broken wire, charged with electricity, lying on the sidewalk. When these facts are shown, the doctrine of res ipsa loquitur applies, and the burden is cast upon the defendant to remove the inference of • negligence against it, which arises upon proof of these facts. Of course, if it appears, notwithstanding this negligence of the defendant, that the plaintiff was a mere volunteer, or if, by the exercise of ordinary diligence, he could have avoided the injury to himself caused by the defendant’s negligence, his right of recovery would be entirely destroyed, or the amount of his recovery would be diminished.

4. It is contended that the allegations of the petition, construed most strongly against the plaintiff, show that he deliberately and voluntarily took hold of the broken live wire while it was tying on the sidewalk, and that this wire would have been harmless but for this voluntary act of the plaintiff, and that, therefore, his own negligence was the proximate cause of his injury. The allegations of the petition on this point, under the decision in the case of Southern Bell Telephone Co. v. Howell, supra, are sufficient, we think, to meet a general demurrer, even when construed most strongly against the' petitioner; for he shows that he suddenly, without warning, came in contact with a broken wire, heavily charged with electricity, which was tying on the sidewalk, and was thereby injured. The evidence in support of this allegation is to the effect that he was walking along the sidewalk, about 6.30 o’clock in the morning, on the way to his work; that he was not looking in front, but that his head was down, and that before he saw the wire or knew of its presence, he was “right into it,” and threw out his hand to grab it; that he could not turn it loose and could not get away from it; that he “got right into it before he knowed it.” The allegation and the proof, therefore, we think show that the petitioner came suddenly in contact with this wire, broken and tying .across the sidewalk, without seeing it, and that in a spasmodic effort to extricate himself from the wire, he took hold of it. Clearly, this would not make him guilty of such a voluntary act of taking hold of a'wire, dangerously charged with electricity, as would show any culpable negligence on his part. He would have the right as a pedestrian of the city to assume that the sidewalk was free from such dangerous obstructions. He was not called upon, in the exercise of due diligence, to be on the lookout for any such dangerous obstruction; but even if he had seen the wire, and had taken hold of it in an attempt to throw it out of the way, in the absence of any indication that it was a live wire, this would not be such negligence on his part as would bar his right of recovery. “One who is traveling along a highway and sees a loose electric wire upon the street, with nothing to show that it is a live or dangerous wire, may voluntarily pick it up and throw it out of the highway, and if the wire is a live wire, and he is injured thereby, he can recover damages; for picking up tbe wire and throwing it out of the way is an incident of travel along the highway, and is not contributory negligence on the part of the traveler. He may recover either from the electric company or the city.” Croswell, Electricity, § 251. It may be stated, as a general rule, that whether or not the plaintiff is guilty of contributory negligence in picking up a live wire off the sidewalk and throwing it out of his way is a question of fact, to be determined by the jury according to the particulars of each case. See McKay v. Sou. Bell Tel. Co., 111 Ala. 337, 19 Sou. 695, 56 Am. St. R. 59, and citations in the notes to that case in 31 L. R. A. 589. The questions raised on the demurrer have been considered in connection with the evidence in support, of the allegations of the petition, and we are very clear not only that the allegations were sufficient to show a cause of action against the telephone company, but that these allegations were substantially proved as laid.

What we have said relating to the liability of the telephone company is fully supported by the decision of the Supreme Court in Eining v. Georgia Ry. & Elec. Co., 133 Ga. 458 (66 S. E. 237). The allegations of the petition in that case are substantially the same as the 'allegations of the petition in this case as amended, and the Supreme Court, in discussing these allegations, used the following language: “Where wires charged with a deadly current of electricity are strung along a public highway, the degree of care required to prevent injury to property or persons lawfully on the highway is governed by the amount of danger attending such use of the highway by the owner of the wires. In 2 Cooley on Torts (3d ed.), 1492, 1493, it is said: ‘Electricity is an invisible, impalpable force, highly dangerous to life and property; and those who make, sell, distribute, use, or handle it are bound to exercise care in proportion to the danger involved. . . Those using the public ways for electric wires carrying a dangerous current are bound to use a very high degree of care in the construction, use, and repair of such lines, to prevent injury to those lawfully upon such ways. A broken or fallen wire in a street, charged with a dangerous current of electricity, affords a presumption of negligence on the part of the owner of the wire. . . Where the wires of two companies cross or are otherwise so related that there is danger of contact between them, there is a duty on both to guard against such, contact, and for a neglect of this duty the companies are jointly and severally liable. Cases of this sort arise mainly where telegraph or telephone wires cross or parallel light or trolley wires.’”- This statement of the law applicable to such cases is quoted with approval by the Supreme Court; and we think this ruling is controlling on the question of liability in the present case, for here it is distinctly alleged and shown that the telephone wires were in proximity to the electric-light wires of the city, and that this proximity made it probable that the telephone wires would at some time come in contact with the electric-light wires; and certainly it was the duty, under these circumstances, of both these corporations to guard against danger from this probable contingency; and for injury arising from the failure of either company to do so both companies are jointly and separately liable. In the same case, further on in the opinion, the Supreme Court quotes the following extract from 1 Thompson on Negligence, § 805: “Although an electric-railway company may be under the duty of maintaining guard-wires between its wires and the wires of a telephone company fastened above it, yet this will not exonerate the telephone company from the payment of damages to one injured in consequence of its negligence in so insecurely fastening its wire that it falls upon the wire of the railway company.”' “And it is held to be negligence on the part of a company to suspend wires in such a position that, in the event of their breaking, thejr will become charged with a dangerous current of electrichy from wires underneath.” Joyce, Electric Law, § 607. We conclude this discussion of the merits of the case in connection with the allegations of the petition with the statement not only that the trial court was right in overruling the demurrer, but that the allegations of the petition, both in its original form and as amended, were substantially supported by the evidence.

What we have said above makes it unnecessary to consider whether the defendant telephone company had actual or constructive notice of this wire being broken and lying across the sidewalk, in time to have repaired it before the accident occurred. What we have said makes this question immaterial; for, as we have said, the fact that a broken wire, heavily charged with electricity, was lying on the sidewalk, in the absence of any explanation by the defendant which would exonerate it from negligence, raises an inference of negligence,—not negligence in permitting it to lie on the sidewalk in this condition, bnt negligence which goes deeper and is in the method of construction, or the use of defective material. Only in the event that the wire was broken by some cause over which the defendant had no control could the question of reasonable notice of its condition be at all material.

5. What we have said also makes it unnecessary to discuss specifically the question as to whether or not the verdict against the telephone company alone is contrary to law. The decision in Eining v. Georgia Ry. & Elect. Co., supra, with citations, states the principle of law very strongly, that, under facts substantially 'the same as those of the present case, all the defendants, as joint tort-feasors, would be liable, either jointly or separately; and it has been repeatedly held by this court and by the Supreme ’ Court that in an action against joint tort-feasors, a judgment may be had against one alone. Finley v. Sou. Ry. Co., 5 Ga. App. 122 (64 S. E. 312); Western & Atlantic R. Co. v. Henderson, 6 Ga. App. 385, 388 (65 S. E. 48), and cit.

6. The contention that the verdict is excessive for any of the reasons stated is without substantial merit. It is immaterial that the plaintiff after his hand was injured could by proper surgical treatment have minimized the damage to himself, and that if his hand had received the proper surgical treatment, it would not have been totally disabled. As to this the evidence is in some conflict, but largely preponderates in favor of the contention of the plaintiff that his hand was totally destroyed by the injury, and that no sort of medical or surgical treatment would l\ave given any substantial relief. Conceding that the man’s hand was totally destroyed, taking into consideration the pain and suffering, and the .mortification over the consequent deformity, damages for the loss of the hand being exclusively within the enlightened consciences of impartial jurors, this court can not say that the amount of the verdict is so grossly excessive as to manifest prejudice, or bias, or mistake, or improper, motive on the part of the jury. This court could not say, as a matter of law, that the total loss of a hand, and the consequent reduction of earning capacity on the part of a man who earned his living almost exclusively by the use of his hands, would not of itself be sufficient to support the verdict. Certainly it is sufficient to exclude the conclusion that the verdict was so grossly excessive as to indicate prejudice, or bias, or other improper motive on the part of the jury, when the law devolves upon the jury the exclusive right to determine the amount of damages arising from the pain and suffering in the burning of the hand by electricity, and in the permanent mortification and humiliation of possessing a deformed hand, and especially when the verdict meets with the approval of the trial judge. Sou. Ry. Co. v. Wright, 6 Ga. App. 172 (64 S. E. 708); Merchants & Miners Trans. Co. v. Corcoran, 4 Ga. App. 654 (62 S. E. 130); Murphy v. Meacham, 1 Ga. App. 654 (57 S. E. 1046); Hilton & Dodge Lumber Co. v. Ingram, 135 Ga. 696 (70 S. E. 234). After giving the case a most careful consideration, we fail to find any error of law. The verdict is amply supported by. the evidence, and the judgment refusing a new trial must be - Affirmed.