Bowen v. Smith-hall Grocery Co

• Decision Date: 22 May 1914
• Docket Number: (No. 367.)
• Citation: 141 Ga. 721,82 S.E. 23
• Parties: BOWEN. v. SMITH-HALL GROCERY CO.
• Court: Georgia Supreme Court

82 S.E. 23

(141 Ga. 721)

BOWEN.

v.SMITH-HALL GROCERY CO.

(No. 367.)

Supreme Court of Georgia.

May 22, 1914.

(Syllabus by the Court.)

Error from Superior Court, Whitfield County; A. W. Fite, Judge.

Action by Grady Bowen against the Smith-Hall Grocery Company. Judgment for defendant, and plaintiff brings error. Reversed.

Grady Bowen filed his petition for damages against the Smith-Hall Grocery Company. The petition as amended alleged, in substance, as follows: The Smith-Hall Grocery Company is a partnership doing business in the city of Dalton. Its storehouse and place of business fronted on Hamilton street, the principal business street of the city, upon which at all times of the day there was a large amount of travel by pedestrians and all kinds of vehicles. At the time of the injury complained of there was in force in the city the following ordinance:

"The proprietor of each business house must keep a covered garbage can outside of his place of business, in which must be placed all refuse, garbage, and trash from said place of business, to be called for by the proper city officers."

On the day of the injury the defendants through their employes placed upon and near to the street and sidewalk thereof, in front of their place of business, a large amount of trash and loose sheets of paper, without putting it in any receptacle or confining it in any way. The wind was blowing sharply.

The pieces of paper were loose and light, and were naturally and easily liable to be blown up and down or across the street by even a light breeze, and, if so blown, the rattling caused by them and their moving toward horses and mules passing along the street and striking them would naturally and inevitably tend to excite and frighten, not only excitable and nervous horses and mules, but even quiet and steady ones, and cause them to start, rear, plunge, and run away. The plaintiff was driving along the street in a buggy drawn by two horses, reasonably well-broken, steady, and roadworthy, and he was capable of driving and handling horses. When about 50 to 75 yards from the pile of trash and paper, the wind caught up and blew some sheets directly under his horses. The sudden rattling and fluttering of the papers beating upon the legs of the horses excited them, and, in spite of all that the plaintiff could do, they got beyond his control and ran away, overturning the vehicle, breaking the tongue out of it, and turning it over. The plaintiff was thrown violently to the ground, and received serious personal injuries which are permanent. The violation of the city ordinance was negligence per se on the part of the defendants. Without regard to the ordinance, the defendants were guilty of negligence in placing the trash and paper upon the street, because it naturally and reasonably tended to cause the injuries complained of, and did cause them. The plaintiff was without fault or any lack of ordinary care in the matter.

The defendants demurred on the following grounds: (1) Because the petition set forth no cause of action; (2) because the ordinance referred to was enacted as a sanitary measure, and not to prevent horses driven along the street from being frightened; (3) because the facts as alleged do not constitute such negligence as the defendants, in the exercise of ordinary care, might have reasonably anticipated would result in the plaintiff's injuries; (4) because the violation of the ordinance was not the proximate cause of the plaintiff's injuries. The blowing of the wind, which was an act of God, coupled with the horses becoming frightened, was the proximate cause, and for this the defendants were not liable. The judge sustained the demurrer and dismissed the case. The plaintiff excepted.

J. E. Rosser, of La Fayette, and W. M. Henry, of Rome, for plaintiff in error.

Maddox, McCamy & Shumate, of Dalton, for defendant in error.

LUMPKIN, J. (after stating the facts as above). [1] 1. Whether or not the ordinance requiring the proprietor of each business house to keep a covered garbage can outside of his place of business, and to cause to be placed therein all refuse, garbage, and trash, to be removed by the proper city officers, was purely a sanitary ordinance, or whether the requirement that it should be covered also included the idea of preventing the contents from being blown about the street, is not a controlling question in the case. The ordinance on its face appears to have been enacted as a sanitary measure. So considered, its violation would not be negligence per se relatively to a person driving horses along the highway, who was injured by the horses taking fright Nevertheless (without constituting as to such a person negligence per se, as being the violation of an ordinance passed for the protection of those driving in the street), if a quantity of trash and loose paper was placed upon and near to the sidewalk and street, which was a public way where many vehicles passed, while the wind was blowing, in such a manner that the natural and probable consequence thereof would be to frighten ordinarily gentle and road-worthy horses which were being driven along the highway, this might, as matter of fact, constitute negligence as to persons thus lawfully driving; and, if injury resulted therefrom, the defendants might be liable. That an act cannot be declared to be negligent per se, or as matter of law, does not necessarily prevent it from being negligent as matter of fact.

In City of Rome v. Suddeth, 116 Ga. 649, 42 S. E. 1032, a suit for damages was brought against a municipal corporation on account of personal injuries. It was alleged that the municipal authorities...