City of Madison v. Thomas

• Decision Date: 22 February 1908
• Citation: 60 S.E. 461,130 Ga. 153
• Parties: MAYOR, ETC., OF CITY OF MADISON v. THOMAS.
• Court: Georgia Supreme Court

60 S.E. 461

130 Ga. 153

MAYOR, ETC., OF CITY OF MADISON v. THOMAS.

Supreme Court of Georgia

February 22, 1908

Syllabus by the Court.

There was no merit in the ground of the motion for a new trial complaining of the admission in evidence, over stated objections, of the specific articles therein described.

Without regard to the respective contentions of the parties as to the proximate cause of the electric light wire being down across the street which the plaintiff was traversing at the time that he came in contact with it, and was injured by the electric current with which it was charged, the jury could have found from the evidence that the proximate cause of the plaintiff's injuries was negligence on the part of the defendant in turning on such electric current, after receiving actual notice that the wire was down, and without taking any steps to remove the dangerous situation which existed by reason of its being down. Hence there was no merit in the general grounds of the motion, nor in the ground complaining of the refusal to grant a nonsuit.

[Ed Note.-For cases in point, see Cent. Dig. vol. 18 Electricity, §§ 6-11.]

The question whether the plaintiff, who was only about 7 1/2 years old when he received the injuries of which he complained, could, by the exercise of due care, have avoided the consequences to himself of the defendant's negligence, was one for determination by the jury, and under the evidence they were authorized to find that he could not.

There was no error in refusing the written requests to charge the jury, as set forth in the motion for a new trial.

Error from Superior Court, Morgan County; H. G. Lewis, Judge.

Action by J. V. Thomas, Jr., by next friend, against the mayor and council of Madison. Judgment for plaintiff, and defendant brings error. Affirmed.

In an action for injury due to taking hold of an electric wire down across a street, a requested instruction that if the injury was caused mainly by the falling of timbers from a house being pulled down, across the wire, plaintiff could not recover, even though defendant was negligent as charged, and its negligence added to the injury in some uncertain way, was properly refused as covered by instructions that, if the wire was detached, not because of its not being made reasonably secure to the pole, but because of another and independent agency, plaintiff could not recover, and that defendant must have been not only negligent, but such negligence must have caused the injury, must have been the chief cause, the predominating cause thereof, and that, if there was any other intervening cause, independent of defendant's negligence that preponderated in producing the injury, plaintiff could not recover.

J. V. Thomas, Jr., a minor, brought an action, through his next friend, against the city of Madison to recover damages for personal injuries. On the trial the evidence authorized the jury to find the following facts: The defendant operated an electric light plant for lighting its streets and furnishing lights to its residents. Electric currents were transmitted through wires suspended on poles along the streets. A glass insulating cuff, on a cross-arm of one of the poles, to which a wire was attached, was not screwed on a peg as it should have been, but was merely set loosely thereon, so that it was easily jarred from the peg. The cross-arm was slanting, so that less force was required to jerk the cuff to which the wire was attached from the peg than if the arm had been horizontal. The pole to which this cross-arm was attached was a corner pole, and the wire was more likely to be jerked therefrom by vibration on account of an abrupt turn made to another pole than it would be from a pole where no such angle was made. On the day the plaintiff was injured one Brooks Thompson and workmen under him were tearing down a house near this corner pole, and inadvertently permitted a scantling to topple over to the street and to strike the wire, which was insecurely attached to the peg, on the corner pole as above noted, causing it to vibrate and fall from the pole to the street, with the cuff still attached to it.

Brooks Thompson saw the wire fall into the street about a quarter to 4 o'clock in the afternoon, but gave it no attention until he saw some small negro children playing with it, when he made them leave, and then twisted the fallen wire around a scantling in a lumber pile on one side of the street and around the stub of a limb of a peach tree on the other side of the street, which lifted it about 10 feet above the level of the street. He did not then give the city and notice that the wire was down, but when he quit work, a little before dark, he sent one of his workmen to L. M. Thompson's store to request him to telephone to the electric light plant that the wire was down, and L. M. Thompson, upon receiving this request, went at once to his house, and telephoned the information to the city electrician at the plant. Between sundown and dark the plaintiff, then about 7 1/2 years of age, accompanied by Cyrus Little, a year younger, while walking along the street, came to the fallen wire, which was then about two feet from the ground. Cyrus raised it up with his hands, and went under it without injury. Plaintiff caught the wire with his hands to do likewise, but was severely shocked and burned. Where plaintiff grasped the wire with one of his hands the insulating covering was off for an inch or more, and the appearance indicated that it had been off for a considerable time. A nonsuit was refused. A verdict for the plaintiff was rendered. The defendant's motion for a new trial was overruled, and it excepted to both rulings.

Williford & Middlebrooks and Foster & Foster, for plaintiff in error.

S. H. Sibley and George & Anderson, for defendant in error.

FISH C.J.

1. One ground of the motion for a new trial is as follows "Because the court erred in admitting in evidence, over movant's objection, a cross-arm to an electric light pole, one peg that is attached to such cross-arms, and a glass cuff which fits over such pegs; the objection to such evidence being that the cross-arm and cuff tendered were not the cross-arm or cuff that were on or attached to the pole from which the wire fell, and the peg objected to was not the peg on which was the cuff to which the fallen wire was attached." In a note to this ground the trial judge states: "The cross-arm was testified to be like the one on the pole in question. The cuff was identified as *** being like the ones on the pole. One of the pegs was identified as that from which the wire fell, and the other peg objected to as that at the other end of the cross-arm." We apprehend that the purpose of introducing these articles in evidence was to show, as alleged in the petition, the method adopted by the city for stringing the wires upon the poles. For this purpose any cross-arm, any cuff, and any peg, which was shown by the testimony to be like the cross-arm, cuff, or peg which was on the particular pole in question when the wire which carried the current which caused the plaintiff's injuries fell therefrom, was admissible in evidence. Had the object of the plaintiff been to show a defective condition in the cross-arm, cuff, or peg from which the wire was claimed to have fallen, the case would be different, and another article of a similar character, in which there existed individual...