Lyons v. Georgia Power Co.

51 S.E.2d 459, 78 Ga. App. 445, 1949 Ga. App. LEXIS 900

• Court: Court of Appeals of Georgia
• Decided: January 14, 1949
• Docket: 32233.
• Status: Published

Opinions

Parker, J.

This was a suit brought by Marjorie Lyons against Georgia Power Company, Grady Carpenter and Ernest T. Reid, for damages for the death of her minor son, Cleveland Horton, upon whom she was dependent, who contributed to her support and who died without leaving a widow or child.

Stated briefly, the allegations made by the plaintiff in her amended petition which are now material are: that on March 8,' 1948, about 9:15 o’clock, p. m., her son was riding as an invited guest in an automobile owned by Grady Carpenter and driven by Ernest T. Reid, in the discharge of his duties as an employee of Grady Carpenter, along Mt. Auburn Street, which runs in an easterly and westerly direction in Augusta, Georgia; that said street was rough, muddy and rutted, with many large and deep holes partially filled with mud and water in and about its traveled portion, and was practically impassable to motor vehicular traffic; that the Georgia Power Company had a power pole erected on the southern portion of said street which was seven feet north from the north property line and seven feet north of the dividing property line of 2410 and 2412 Mt. Auburn Street, and which was situated on the edge of the traveled portion of said street and was out of line with the other power poles in that block in that the other poles were set back seven feet from the traveled portion of the street; that Mt. Auburn Street was 30 feet in width at the point where the pole was erected, with only 10 feet of the 30 capable of being traveled by vehicular traffic; that Ernest T. Reid drove said automobile over said street at 40 miles per hour, a high and dangerous rate of speed, deliberately ignoring its obviously dangerous condition, and in swerving, twisting and turning to avoid the more dangerous holes, and in utter and reckless disregard of human life and safety to others, he suddenly without warning pulled, turned and twisted said automobile into said power pole striking it with the full impact and speed of the automobile; that as a result of said impact a transformer of the power company affixed to the pole fell on the automobile striking and crushing the skull of the plaintiff’s son and causing his death; that said transformer was insecurely affixed to said pole in that the attachments designed to fasten, secure and hold it to the pole were rusty, worn, weak, defective and insufficient.

The power company was charged with negligence in placing said pole on the traveled portion of the very narrow street where it was obviously dangerous to traffic and pedestrians, and failing to anticipate and make provisions against accidents from collisions with its poles erected so close to the traveled portion of the street, and in erecting said pole on the edge of the traveled portion of the -street so that it interfered with the safe use of the street; in placing the transformer in a public street in disregard of the safety of users of the street, in failing to securely affix said transformer to said power pole so as to prevent it from dislodging and falling upon users of the street, in permitting the attachments on the transformer to become weak with rust and wear and creating a hazard to the traveling public, in failing to make periodic inspections of the power pole and the transformer, and in failing to anticipate a collision with the power pole which would dislodge the transformer when it was obvious that the pole was at a place where such an occurrence might reasonably happen.

The power company demurred generally to the petition on the grounds that it set out no cause of action against it, and showed that its alleged negligent acts had no causal connection with the injuries and damages complained of, and showed that the alleged injuries and damages complained of were proximately caused by the alleged negligence of the other defendants named in the suit. The trial court sustained the demurrer and dismissed the case as to the power company. The plaintiff excepted to that ruling.

The plaintiff contends that the doctrine of concurrent negligence was presented under the allegations of her petition. “It is a well-settled principle of law that where concurrent causes operate directly in bringing about an injury, there can be a recovery against one or all of the responsible parties. The mere fact that the injury would not have been sustained had only one of the acts of negligence occurred will not of itself operate to define and limit the other act as constituting the proximate cause; for if all acts of negligence contributed directly and concurrently in bringing about the injury, they together constitute the proximate cause. Barrett v. Savannah, 9 Ga. App. 642 (72 S. E. 49); Bonner v. Standard Oil Co., 22 Ga. App. 532 (96 S. E. 573); Georgia Ry. &c. Co. v. Ryan, 24 Ga. App. 288 (100 S. E. 713); Spencer v. Peace, 42 Ga. App. 516(2) (156 S. E. 729).” Tallman v. Green, 74 Ga. App. 731, 734 (41 S. E. 2d, 339). See also Nixon v. Williams, 25 Ga. App. 594 (103 S. E. 880), Adams v. Jackson, 45 Ga. App. 860 (166 S. E. 258), Chandler v. Brittain, 48 Ga. App. 361 (172 S. E. 745), and Callahan v. Cofield, 61 Ga. App. 780 (7 S. E. 2d, 592). While questions of concurrent negligence and proximate cause are ordinarily for the jury, where it clearly appears from the petition that the negligence charged against a particular defendant was not the proximate and effective cause of the injury the court may so determine upon a general demurrer. Martin v. McAfee & Co., 31 Ga. App. 690 (122 S. E. 71); Southern Ry. Co. v. Slaton, 41 Ga. App. 759(3) (154 S. E. 718). The plaintiff cites Clayburn v. Tennessee Electric Power Co., 20 Tenn. App. 574 (101 S. W. 2d, 492), holding that, “Generally, public utility company lawfully maintaining pole in or near public highway is not liable for damages resulting from vehicle striking pole, unless pole is erected on traveled portion of highway or in such close proximity thereto as to constitute obstruction dangerous to any one properly using highway,” and Jafek v. Public Service Co. of Oklahoma, 183 Okla. 32 (79 Pac. 2d, 813), which holds that “A utility company is not liable for negligence in erection or maintenance of light pole upon highway unless it is shown that pole allegedly causing injuries was maintained upon or so near highway as to interfere with or obstruct ordinary use of highway by traveling public.”

It does not appear clearly from the petition that the pole of the defendant was erected and maintained on a traveled portion of the street or highway, or in such close proximity thereto as to constitute an obstruction dangerous to one properly using the highway, or that it was so near the highway as to interfere with or obstruct the ordinary use of the highway by the traveling public. The petition charged as an act of negligence the placing of said pole on the traveled portion of said street, in a position where it was" obviously dangerous to passing traffic and pedestrians. But other paragraphs alleged that the said pole was a menace because it was erected “so close to the traveled portion of said street,” and that the power company was negligent “in erecting the said pole on the edge of the traveled portion of said street.” The street was 30 feet in width at the point where the pole was erected, but only 10 feet of the 30 feet was capable of being traveled over by vehicular traffic. The pole was seven feet from the property line on the south side of the street, but its distance from the traveled part of the street is not alleged and does not appear. The indefinite location of the pole, with reference to the traveled portion of the street, must be considered in connection with the other allegations of the petition. They show that the street was rough and muddy with ruts and numerous large and deep holes therein, and was practically iml^assable to motor vehicular traffic, and that the driver of the car was running it over said street at night at 40 miles per hour, deliberately ignoring the obviously dangerous condition of the street, and that in swerving, twisting and turning the automobile, attempting to avoid the more dangerous holes, he suddenly pulled, turned and twisted the automobile into the power pole, striking it with the full impact and speed of the car. Under these circumstances as presented by the petition it seems clear to us that the sole proximate cause of the injury resulting in the death of the plaintiff’s son was the conduct of the driver of the car, and, not the fact that a transformer attached to the pole was shaken loose and fell on the automobile from the terrific impact in 'striking the pole.

If it be conceded that the transformer was inadequately affixed to the pole as alleged in the petition, and that this was negligence on the part of the power company, it does not follow that the intervening act of the driver of the car was such that its proper or natural consequences could reasonably have been anticipated or foreseen by the power company. We think that the causal connection between any negligence of this defendant and the injuries was broken by the intervening act, and that this defendant would not be responsible for the consequences resulting therefrom. The act of driving the automobile into the pole at a high rate of speed was not a natural consequence which followed the original act of the defendant complained of, in the usual, ordinary and experienced course of events; but the occurrence was more in the nature of an extraordinary coincidence or conjunction of circumstances. “It is not intervening consequences, but intervening causes which relieve.” Southern Ry. Co. v. Webb, 116 Ga. 152, 156 (42 S. E. 395, 59 L. R. A. 109). “The true rule seems to be that in determining the proximate cause the injury must be the natural and probable consequence of the negligent act complained of, and such a consequence as under the circumstances of the case might and ought to have been foreseen by the wrongdoer as likely to flow from his act.” Wright v. Southern Ry. Co., 62 Ga. App. 316, 320 (7 S. E. 2d, 793). Applying this rule to the instant case we do not think that the negligence charged to the defendant here involved was the proximate cause of the death of the plaintiff’s son.

This conclusion is supported by the decisions in the following cases cited by the defendant. City Council of Augusta v. Reynolds, 122 Ga. 754 (50 S. E. 998, 69 L. R. A. 564, 106 Am. St. R. 147); South Georgia Power Co. v. Smith, 42 Ga. App. 100 (155 S. E. 80); Atlantic Coast Line R. Co. v. Daniels, 8 Ga. App. 775 (70 S. E. 203); Stallings v. Georgia Power Co., 67 Ga. App. 435 (20 S. E. 2d, 776); Eberhart v. Seaboard Air Line Ry., 34 Ga. App. 49 (129 S. E. 2); McMahen v. N. C. & St. L. Ry. Co., 68 Ga. App. 397 (23 S. E. 2d, 81).

The court did not err in sustaining the general demurrer of the Georgia Power Company, and in dismissing it as a party defendant.

This case was considered by the whole court as provided by the act approved March 8, 1945 (Ga. L., 1945, p. 232).

Judgment affirmed.

Sutton, C. J., and Gardner, J., concur, MacIntyre, P. J., concurs specially. Felton and Townsend, JJ., dissent.