Atlanta & W.P.R. Co. v. Green

• Decision Date: 21 December 1917
• Docket Number: 3042.
• Citation: 246 F. 676
• Parties: ATLANTA & W.P.R. CO. v. GREEN.
• Court: U.S. Court of Appeals — Fifth Circuit

246 F. 676

ATLANTA & W.P.R. CO. v. GREEN.

No. 3042.

United States Court of Appeals, Fifth Circuit.

December 21, 1917

P. H Brewster and Arthur Heyman, both of Atlanta, Ga. (Brewster Howell & Heyman, of Atlanta, Ga., and A. H. Thompson, of La Grange, Ga., on the brief), for plaintiff in error.

Lester C. Slade and H. H. Swift, both of Columbus, Ga., George Westmoreland, of Atlanta, Ga., and Sidney Holderness, of Carrollton, Ga. (Meadors & Wyatt, of La Grange, Ga., on the brief), for defendant in error.

Before WALKER and BATTS, Circuit Judges, and GRUBB, District Judge.

WALKER Circuit Judge.

This was an action by the defendant in error, Mrs. Etta Green (hereinafter called the plaintiff), to recover damages for the death of her husband. Her petition averred the following state of facts:

The plaintiff, her husband, and their three children resided in the city of La Grange on a street running parallel with the track of the plaintiff in error railway company (which will be called the defendant). That street was thickly settled and there were a great many children in the neighborhood which facts were known to the defendant. Between that street and the defendant's track there was a strip of land belonging to the defendant. That strip was covered with grass, was uninclosed, ordinarily was a safe playground for children, and, with the knowledge of the defendant and without objection from it, was used by the children of the neighborhood as a playground. Cables or wires which transmitted electricity, in volume sufficient to kill instantly a human being, from an electric plant on one side of the defendant's railroad to a customer of the operator of the plant on the other side of the railroad, were strung on poles, one of which, during a heavy wind and rain, fell, resulting in the wires strung to it being thrown onto and across the rails of defendant's track. Soon after this occurred a train operated by the defendant passed the point at which the wires or cables were upon the track and severed them. In a short while thereafter a section master of the defendant, assisted by the section hands under him, removed the fallen wires or cables from the track and threw them on the above-mentioned strip of land, knowing at the time that the wires were heavily charged with electricity and were likely to be hidden by the grass which covered the ground where the severed wires were left. An end of one of the wires came in contact with the grass and ignited it. Some children saw the fire, went to the place where it was, and played at jumping over the wire. Some time after the wires were blown down, and after they had been removed from the track to the above-mentioned strip of land, the plaintiff's husband, when he reached his gate in going to his residence, saw the children jumping over the wire where the grass was burning, and, realizing the danger of their doing so, approached to warn and save them; and, as he was doing so, being intent on the danger the children were in and looking at them and the fire, he stepped on a wire which was hidden in the grass, came in contact with the electric current, and was instantly killed. The defendant negligently left the severed wires, known to be heavily charged with electricity, at the place to which they were removed from the track, without guarding the same, or giving any warning to children or any one else of the danger...