City of Sylvania v. Neesmith

97 Ga. App. 758 (1958)

104 S.E.2d 522

CITY OF SYLVANIA v. NEESMITH.

37180.

Court of Appeals of Georgia.

Decided June 23, 1958.

W. Colbert Hawkins, Bouhan, Lawrence, Williams, Levy & McAlpin, for plaintiff in error.

Limerick Odom, Thomas Odom, T. Ross Sharpe, T. Malone Sharpe, E. W. Hill, contra.

*761 TOWNSEND, Judge.

1. The general demurrer to the petition on the ground that the plaintiff, employee of a telephone company who was injured by an electric charge while repairing telephone lines, was a mere licensee as to the defendant, a municipality operating an electric distribution system, is without merit. The petition shows that the plaintiff was within the scope of his employment engaged in testing telephone lines and equipment and does not show that he was a licensee upon property of the defendant. Further, as stated in Georgia Power Co. v. Deese, 78 Ga. App. 704, 707 (51 S. E. 2d 724): "It is unnecessary to decide whether the deceased was a trespasser or licensee, since the duty owed to both is the same, namely, to use ordinary care to avoid injuring him after his presence and danger are actually known or when the danger is known and his presence is reasonably to be anticipated, which, in point of fact, is merely the duty not to injure him wantonly or wilfully. Mandeville Mills v. Dale, 2 Ga. App. 607, 609 (58 S. E. 1060); Cook v. Southern Ry. Co., 53 Ga. App. 723, 725 (187 S. E. 274); Leach v. Inman, 63 Ga. App. 790 (12 S. E. 2d 103)." The petition alleges actual knowledge on the part of the defendant that the plaintiff was on his way to the place where he was injured for the purpose of repairing the telephone line, and actual knowledge that the electric line had broken, "fallen upon and was conveying and conducting 2300 volts of electricity back to the point and place of the Screven County Hospital where the plaintiff was injured." See Georgia Power Co. v. Puckett, 50 Ga. App. 720 (179 S. E. 284), reversed on other ground, 181 Ga. 386 (182 S. E. 384). The petition is accordingly sufficient to charge the defendant with lack of ordinary care in failing to warn him of the danger or otherwise avert it, regardless of his status.

*759 2. "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. . . 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, . . . still questions as to diligence and negligence, including contributory negligence, are questions peculiarly for the jury, and the court will decline to solve them by decision on demurrer, except in plain and indisputable cases." Columbus Power Co. v. Puckett, 24 Ga. App. 390 (1, 3) (100 S. E. 800). The petition here, which alleges that the fact that a high tension wire a half-mile away had broken and fallen was known to the defendant but not to the plaintiff, and which also alleges that the plaintiff had in possession a volt meter which would test for 50 volts of electricity but that "it showed no volts because the jumper wires were burned out" fails to show such negligence on the part of the plaintiff as to preclude recovery. If, as contended, he was careless in allowing his left arm to come in contact with an open telephone wire leading out of the cable can, there is no allegation from which an inference can be drawn that such wire would have been dangerous except for the fact that electricity from the high-tension line was running into it, following a break in the power line which caused it to fall and lie across the telephone wires at a point some half-mile from the place where the plaintiff was working, and of which he had no knowledge. A jury question is accordingly presented on the issue of contributory negligence. See also in this regard Southern Bell Telephone & Telegraph Co. v. Ellis, 16 Ga. App. 864 (87 S. E. 766); City of Dawson v. Smith, 18 Ga. App. 603 (90 S. E. 76). Zachery v. Mayor &c. of Madison, 18 Ga. App. 490 (89 *760 S. E. 594), Columbus R. Co. v. Dorsey, 119 Ga. 363 (46 S. E. 635), Cain v. Ga. Power Co., 53 Ga. App. 483 (186 S. E. 229), and similar cases are distinguishable on their facts, in that there it clearly appeared either that the plaintiff had actual knowledge of the dangerous condition or that the defect was such that in the exercise of reasonable diligence he must have discovered it. The allegations of the petition set out a cause of action for jury determination, and the trial court did not err in overruling the general demurrers.

Judgment affirmed. Gardner, P. J., and Carlisle, J., concur.