Atlanta Consol. St. Ry. Co. v. Owings

• Decision Date: 20 January 1896
• Citation: 25 S.E. 377,97 Ga. 663
• Parties: ATLANTA CONSOL. ST. RY. CO. v. OWINGS.
• Court: Georgia Supreme Court

25 S.E. 377

97 Ga. 663

ATLANTA CONSOL. ST. RY. CO. v. OWINGS.

Supreme Court of Georgia

January 20, 1896

Syllabus by the Court.

1. Where, in the prosecution of its business, a corporation employs a wire which, because of its being charged with a powerful and dangerous current of electricity, is liable upon coming in contact with the wires of other corporations to cause injury or death to employés of the latter while engaged in the performance of their duties, the corporation first referred to is, relatively to such a employés, under the duty or observing at least ordinary diligence, not only in preventing such a contact, but also in discovering and preventing its continuance, even when occasioned by the negligence of others, including that of a corporation whose employés are thus exposed to danger.

2. The declaration alleging that the defendant's "feed wire" (it being a wire charged with a high potential current of electricity) was, at the time of the killing of the plaintiff's husband, "negligently and carelessly permitted by the defendant to rest upon and be in immediate contact with" a call wire of a company which was the master of the deceased, and the charge, as a whole, making it sufficiently clear to the jury that the plaintiff must prove the negligence thus alleged, and also that it occasioned the death of her husband, before she would be entitled to a recovery, the defendant's request to charge that she could recover only upon some act or acts of negligence alleged in the declaration was fairly covered.

3. If while upon a pole a considerable distance above the ground, a person is so burned, shocked, and put in pain by a current of electricity as to lose his strength or consciousness and the control of his movements, and, in consequence, falls to the ground, and dies, it may be safely asserted that his death was caused by the electric current, whether, in case there had been no fall from the pole, death would have ensued or not.

4. Although the declaration alleged nothing as to any "prospect of increased earnings" on the part of the deceased, it was not, under the facts of this case, improper for the judge, while instructing the jury as to the measure of damages, to state to them, in a general way, that they might consider such prospect, if any; he at the same time, and in the same connection, appropriately instructing them that they might also consider his "diminution of capacity to earn money as the result of growing years and infirmities of age."

5. There was no material error in rejecting evidence. The law as to contributory negligence was, in substance, fairly submitted by the judge to the jury; and, even if the damages ought to have been apportioned on account of such negligence on the part of the deceased, the amount of the verdict was not so large as to show with complete certainty that this was not done. The verdict found was warranted; and, on the whole, there was no abuse of discretion in denying a new trial.

Error from city court of Atlanta; H. Van Epps, Judge.

Action by Susie A. Owings against the Atlanta Consolidated Street-Railway Company to recover for the death of her husband. There was a judgment for plaintiff, and defendant bring error. Affirmed.

N. J. & T. A. Hammond, for plaintiff in error.

M. J. Clarke, for defendant in error.

LUMPKIN J.

1. This case, in some respects, resembles that of Railway Co. v Andrews, 89 Ga. 653, 16 S.E. 203, although in one essential feature the two cases are materially different. In the former it appeared that Andrews, who was injured by an electric current, was, at the time he received the shock, a trespasser upon the fire-alarm system of the city of Augusta, having, without permission, climbed a pole upon which he had no right to go; and it was accordingly held that he took the risk incident to the trespass. In the present case the deceased husband of the plaintiff, who was killed by a current of electricity emanating from the plant of the defendant railway company, was not a trespasser, but was engaged in the performance of his duties as a lineman of the telephone company, and was in the strictest sense where he has a perfect right to be at the time he received the fatal shock. The railway company employed, in the conduct of its business, a subtle, dangerous, and death-dealing agency. It consisted of a high potential electric current, which traversed wires stretched upon poles, and running through the city of Atlanta and its suburbs. These wires were liable, upon coming in contract with other wires belonging to the telephone company, the electric light company, and perhaps other corporations, to cause injury or death to employés of these other companies while engaged in performing their duties as linemen. Under these circumstances, it is to all...