Bowen v. Smith-Hall Grocery Co.
| Decision Date | 22 May 1914 |
| Docket Number | 367. |
| Citation | 82 S.E. 23,141 Ga. 721 |
| Parties | BOWEN v. SMITH-HALL GROCERY CO. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
A petition alleged, in substance, as follows: A firm, whose place of business abutted on a much traveled street in a city, placed a large quantity of trash and loose sheets of paper on and near the street and sidewalk on a day when the wind was blowing sharply. They did not put it in a receptacle or confine it in any way. The sheets of paper were light, and were naturally liable to be blown about the street by even a light breeze, and naturally and inevitably tended to excite and frighten, not only nervous horses and mules, but even quiet and steady ones. The plaintiff, a capable driver, was driving two reasonably well-broken, steady, and roadworthy horses along the street. The wind blew some of the paper under the horses and against their legs, frightening them and causing them to run away and injure him. Held, that such petition was not subject to general demurrer.
(a) Where it was also alleged that there existed in a city an ordinance requiring the proprietor of each business house to keep a covered garbage can outside of his place of business and to place in it all refuse, garbage, and trash from such place, to be called for by the proper city officers, and that trash and paper were placed on and near the sidewalk by the defendants on the day of the injury, without being confined in such receptacle, and in violation of the ordinance, this did not render the entire petition demurrable on the ground that the ordinance was a sanitary measure, and was not enacted for the purpose of preventing horses from being frightened. The ordinance on its face, as set out in the petition, appears to have been enacted as a sanitary measure and, so considered, its violation would not be negligence per se as to persons driving along the highway. But, though not negligent per se relatively to the plaintiff because in violation of the ordinance, the acts done might be negligence as a matter of fact.
There was no merit in the ground of demurrer which raised the contention that the violation of the ordinance was not the proximate cause of the injury, but that a separate and independent intervening cause, the blowing of the wind, was the proximate cause, coupled with the fact that the horses became frightened, and that this was the act of God, for which the defendants were not responsible.
(a) If the acts of the defendants constituted negligence with reference to the plaintiff, without regard to whether a violation of the ordinance was negligence per se, the blowing of the wind, which was known, or might naturally be expected was not an independent intervening cause, so as to prevent the negligence of the defendants from being the proximate cause of the injury.
(b) There is nothing in the petition to show that there was any unforeseen or sudden wind of such a character as to come within the legal meaning of the expression, "an act of God," which might break the chain of causation arising from the alleged negligence of the defendants.
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:
On the day of the injury the defendants through their employés 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...
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