23 Ga. App. 169 | Ga. Ct. App. | 1919
(6) The railway company parted absolutely with the title to the wires and poles of the telegraph system, and its failure to maintain them in safe condition, in accordance with its- contract with the telegraph company, did not, therefore, render it primarily liable to third persons, suffering injury resulting from its breach of contract with the telegraph company. Nevertheless it must be inferred from the evidence (and it is conceded in the brief for the railway company) that the posts of the telegraph system, though owned, since the sale to the telegraph company on December 12, 1899, by the last-named company, were' allowed and permitted by the railway company to remain upon its right of way, in a rotten and unsafe condition, with potentially dangerous wires attached thereto, crossing over a public way. Hence said railway company was liable for any injuries directly resulting to passers along said road, from contact with said wires, where such persons were at the time in the exercise of proper care, not because of any omission to perform its duty to maintain the wires and posts under its contract with the ' telegraph company, but for wrong-doing in permitting the_dangerous instrumentality to exist on its property. The decision in Southern Railway Co. v. Sewell, 18 Ga. App. 544, 552, 553 (90 S. E. 94), in so far as it relates to misfeasance and nonfeasance, is not opposed to this ruling.
(c) The telephone company, though having no title to the
Judgment reversed in part, and affirmed in part.