Neary v. Ga. Pub. Serv. Co

• Decision Date: 17 June 1921
• Docket Number: (No. 12257.)
• Citation: 107 S.E. 893,27 Ga.App. 238
• Parties: NEARY v. GEORGIA PUBLIC SERVICE CO.
• Court: Georgia Court of Appeals

27 Ga.App. 238

107 S.E. 893

NEARY

v.GEORGIA PUBLIC SERVICE CO.

(No. 12257.)

Court of Appeals of Georgia, Division No. 2.

June 17, 1921.

(Syllabus by the Court.)

The allegations of the petition set forth a cause of action, and the court erred in sustaining the demurrer.

(Additional Syllabus by Editorial Staff.)

Error from Superior Court, Crisp County; O. T. Gower, Judge.

Action by Mrs. E. H. Neary against the Georgia Public Service Company. Judgment for defendant on demurrer, and plaintiff brings error. Reversed.

The plaintiff's petition alleges, in substance, that her husband was employed by the defendant, an electric service company, as a lineman, and while he was at work fixing the wires of the company on the top of an electric light pole, he came in contact with one of the wires, which was heavily charged with electricity, and received a shock which instantaneously caused his death, and that he was wholly free from fault or negligence contributing to the injury. She alleges that the defendant company was guilty of negligence in failing to provide him a safe place to work, in failing to warn him of the dangers surrounding his place of work, in not providing him with proper and competent fellow employees and in failing to give him any warning that a heavy voltage of electricity was going to be conducted through the wires while he was working on them; that he had a right to expect such warning from the company, as it was the custom of the company to cut off the current from the wires when they were to be worked on, and he was directed by the superintendent of the company to perform the work, as it was safe to do so at that time; that the company sent him to work without proper tools to work with and without furnishing him with rubber gloves to protect him from the current of electricity passing through the wires; that the company was negligent in not cutting off the electric current from the wires before requiring him to do the work; and that he had no knowledge or notice that there was any danger attendant upon the work to be performed at that time and place, and had no means of knowing that the work was of a dangerous character, and could not by

ordinary care have discovered the dangerous nature of the work or prevented the consequences to himself of the defendant's negligence.

John R. Cooper, W. O. Cooper, Jr., and Jos. H. Hall, all of Macon, for plaintiff in error.

Harris, Harris & Witman, of Macon, and P. G. Boatright, of Cordele, for defendant in error.

HILL, J. (after stating the facts as above). [2, 3] There being no statutory presumption in aid of the plaintiff's case, the burden was upon her of proving the negligence of the master in respect to the matters of negligence alleged in her petition, and the allegations of the petition should be sufficient to show that the defendant was guilty of negligence if the facts were proved as alleged, and also sufficient to exclude any reasonable hypothesis that his death was caused by reason of accident, his own negligence, or by one of the risks which he had assumed under his contract of employment. Carroll v. Atlanta Paper Co., 7 Ga. App. 584, 67 S. E. 680.

It Is insisted that the allegations of the petition did not measure up to this standard. First, it is said that there is no allegation in the petition as to how the employee came to his death, and several hypotheses entirely consistent with defendant's innocence are pointed out, either one of which may have been the cause of the injury. It is expressly alleged that the decedent came to his death by receiving a shock from a heavily charged electric wire which he was working on at the time. How he came in contact with it is not alleged.

While the general rule as to the burden of proof of negligence applies to actions against electric companies for personal injuries, yet such actions offer an opportunity for the application of the well-established doctrine of res ipsa loquitur. It is certainly inferable from the fact that the death was caused by the electric shock that the wire containing the current of electricity was not in safe condition, and this would be sufficient to raise a prima facie presumption that the electrical company having such an appliance in charge was in some way negligent in the performance of its duty. As stated in the discussion of this subject in 9 R. C. L. 1221-1223:

"The exceedingly dangerous character of live electric wires lends force to the strict application of this rule of law to accidents occurring through contact with them under such circumstances, and, unless the rule of res ipsa loquitur is applied, it is evident in a large number of cases liability for the resulting injury will be escaped. It is within the power of these companies at all times to show whether theyhave exercised due care in the erection and subsequent supervision and maintenance of their wires and appliances, while to prove an actionable lack in these things would be, in many cases, practically beyond the reach of the person injured. The defendant company may rebut the plaintiff's prima facie case thus made in any way showing the absence of negligence on its part."

Among the acts of negligent omission charged against the defendant in the present case is its failure to perform its duty of giving to its employee a safe place in which to perform his work, and in this connection it is also alleged that there was a custom of the defendant company to cut off the current of electricity from its wires when its employees were engaged actually in working on them. It is not specifically alleged that the plaintiff, in going up on the pole for the purpose of repairing the wire, relied upon this custom, but the only significant inference from the allegation of the existence of the custom is the one that he did rely upon...