Higginbotham v. Rome Railway & Light Co.

99 S.E. 638, 23 Ga. App. 753, 1919 Ga. App. LEXIS 334

• Court: Court of Appeals of Georgia
• Decided: May 16, 1919
• Docket: 10154
• Status: Published

Opinions

Broyles, P. J.

Vinnie Higginbotham sued the Romo Railway & Light Company for damages on account of the homicide of her husband, Tom nigginbotham.. A verdict for the- defendant was returned, and the plaintiff excepted to the court’s refusal to grant a new trial. Her counsel stated in their brief that the evidence showed the following state of facts: “The defendant had a line of wires, heavily charged with electricity, strung along the side of the Summerville road, within the limits of the City of Koine, on a pole about twelve or fourteen feet in height. This pole was about seventy-five feet from a railroad trestle. The wires stretched from this pole to a knob underneath the trestle. The pole was at the base of a five-foot embankment, and between the pole and that part of the trestle where the wires were attached there was an embankment or elevation several feet above the mean level of the base of the aforesaid pole. About midway between this pole and the trestle there was a much-used pathway, which had been in constant use for fifteen or twenty years. Ordinarily, prior to the intervening cause that was responsible for the death of Tom Higginbotham, the wires were only four and one half to five feet (according to different witnesses) above the ground. The wires had been in this condition for a considerable length of time. Every witness who testified as to this fact stated that a man could reach the wire at any time over this pathway. One Saturday afternoon, about three o’clock, a blast was shot by the City of Koine gang, and a rock knocked one of the wires from its mooring on the pole and caused it to sag or bow to within a few feet of the ground, the height being less than the height of an ordinary man. Immediately a'volunteer, at the request of the guard of the city gang> called the head office of the defendant and notified jt of the accident, and asked that a man be sent to repair the same. The party answering the telephone agreed to do this. However; the defendant denied receiving the message, and the plaintiff was never able to show that such a message was received by defendant. The wire remained down until the next day, although the current was cut off soon after the homicide of plaintiff’s husband. The wire had been strung there for twelve or fifteen years an€ the" insulation had rotted off. The company admitted that it made no regular inspection rounds, and had no inspector, but depended on its regular employees, in their rounds, discovering and making known any defects or accidents. About midnight on the date on which the wire was knocked off plaintiff’s husband was walking along this pathway, as had been his custom, for a number of years [italics ours], and came in contact with the fallen wire and was instantly killed. He was not taken loose from the wire until one of the defendant’s employees cut off the current. The defendant admitted that it owned the wires and furnished the current, but defended solely on the ground that the primary cause of the accident was the direct or proximate result of the act of the City of Eome in shooting the blast.”

Adopting as our own this statement of facts, it clearly appears to us that, even if the defendant was negligent as alleged in the declaration, the effective and proximate cause of the homicide of the plaintiff’s husband was the intervening act of a separate and independent -agency, the City of Eome, and that the verdict in favor of the defendant was not only authorized but demanded. See, in this connection, Perry v. Central Railroad, 66 Ga. 746 (5); Mayor &c. of Macon v. Dykes, 103 Ga. 847 (31 S. E. 443); Andrews v. Kinsell, 114 Ga. 390 (40 S. E. 300, 88 Am. St. E. 25); Beckham v. Seaboard Air-Line Ry., 127 Ga. 550 (2), 551 (56 S. E. 638, 12 L. R. A. (N. S.) 476); Postal Telegraph-Cable Co. v. Kelly, 134 Ga. 218 (67 S. E. 803; Southern Ry. Co. v. Barber, 12 Ga. App. 286 (77 S. E. 172); Atlantic Coast Line R. Co. v. Adeeb, 15 Ga. App. 842 (84 S. E, 316); Anderson v. Baltimore & Ohio R. Co., 74 W. Va. 17 (81 S. E. 579, 51 L. R. A. (N. S.) 888); Harton v. Forest City Tel. Co., 146 N. C. 429 (59 S. E. 1022, 14 L. E. A. (N.S.) 956, 14 Ann. Cas. 390); American Bridge Co. v. Seeds, 75 C. C. A. 407 (144 Fed. 605, 11 L. R. A. (N.S.) 1041); Cole v. German Savings & Loan Society, 59 C. C. A. 593 (124 Fed. 113) ; Stone v. Boston & Albany E. Co.,171 Mass. 536 (51 N. E. 1, 41 L. R. A. 794, 4 Am. Neg. E. 490); Leeds v. New York Telephone Co., 178 N. Y. 118 (70 N. E. 219); Curtis on Law of Electricity, §§ 435, 439, 441, 443, 444; 1 Thompson on Negligence, §§ 55, 56, 57.

The above being controlling in the ease, it is unnecessary to consider the special grounds of the motion for a new trial, as they complain only of errors in the charge of the court and of the court’s refusal to comply with certain requests to charge.

Judgment affirmed. Bloodworth, J., concurs. Stephens, J., dissents.