Eining v. Georgia Ry. & Elec. Co.

• Decision Date: 17 November 1909
• Parties: EINING v. GEORGIA RY. & ELECTRIC CO. et al.
• Court: Georgia Supreme Court

66 S.E. 237

133 Ga. 458

EINING v. GEORGIA RY. & ELECTRIC CO. et al.

Supreme Court of Georgia

November 17, 1909

Syllabus by the Court.

Where the wires of an electric railway company and those of a telephone company are strung to the pole of the former, and the wire of the latter breaks and falls to the street below across the wire of the former, therefrom becoming charged with a high current of electricity, and a horse, while being driven along such highway with due care, is killed because of contact with such wire, both companies are jointly liable for such damage, where it is the result of the concurring negligence of the two companies, and would not occur in the absence of negligence on the part of either.

Where the petition alleged that the horse was killed because of the negligence of the telephone company in permitting its wire to become so worn and weak as to break and fall to the street and because of the separate acts of negligence of both companies in not having their wires sufficiently insulated and in not having sufficient guard wires to prevent the telephone wire from coming into contact with the wire of the other company, such petition was not subject to demurrer on the ground that there was a misjoinder of parties, and that the petition shows that the defendants are not joint tort-feasors, and seeks to bring two separate and distinct causes of action against separate and distinct parties in the same petition and in the same count.

Where to a petition making the allegations referred to in the preceding note, the railway company's demurrer on the grounds therein stated was sustained and it was stricken as a party defendant, to which judgment the plaintiff excepted held, that the telephone company, if the allegations of the petition are true, was liable in a separate suit for the damage alleged, and, as far as disclosed by the record, was not interested in sustaining the judgment dismissing the railway company from the joint action against both companies, and therefore was not a necessary party to the bill of exceptions.

Error from Superior Court, Fulton County; J. T. Pendleton, Judge.

Action by Theodore Eining against the Georgia Railway & Electric Company and the Atlanta Telephone & Telegraph Company. Judgment sustaining a demurrer to the petition, and plaintiff brings error. Reversed.

A. H. Davis, for plaintiff in error.

Rosser & Brandon and Colquitt & Conyers, for defendants in error.

HOLDEN J.

The plaintiff brought suit against the Atlanta Telephone & Telegraph Company and the Georgia Railway & Electric Company for damages on account of the death of a horse belonging to the plaintiff, alleged to have been worth $250. The following allegations appear in the petition: "The Atlanta Telephone & Telegraph Company has lines of wires strung over the streets of the city of Atlanta, and its telephones are in numerous parts of the city. It has an office and agents therein and does a general telephone business, and will hereinafter be called the 'Telephone Company.' The Georgia Railway & Electric Company is a street railway corporation having a line of tracks running through the streets of the city of Atlanta and a line of wires running over the streets and fastened to poles, and does a general street railway business, and furnishes light to the city of Atlanta and light and power for commercial purposes in the said city. This company will hereinafter be called the 'Street Railway Company.' At the southwest corner of Whitehall and West Fair streets in said city the wires of the Telephone Company are supported upon a cross-arm or beam which is attached to a pole belonging to the Street Railway Company, and runs diagonally across West Fair street in a westerly direction to the north side of West Fair street, where it intersects with Forsyth street. The wires of the Street Railway Company carry currents of electricity of high voltage, which are dangerous and fatal to the life of man and beast coming in contact with them. On Saturday, September 5, 1908, at about 7 or 8 o'clock in the evening, the plaintiff's servant was driving the bread wagon and horse of plaintiff along West Fair street near to and just west of Whitehall street. The driver was proceeding with proper care, when suddenly the horse came in contact with and became entangled in a wire which was lying unguarded in the middle of the street, and received an electric shock which killed him. It was dark at the time, and the driver did not see the wire which lay in the path of the horse. Plaintiff charges that the wire with which the horse came in contact was that of the Telephone Company, which had broken in two and fallen across the wires of the Street Railway Company; and both wires were imperfectly insulated, and the telephone wire received a heavy charge of electric current from the Street Railway Company's wire. Plaintiff charges that the Telephone Company was negligent in having a wire that was so weak or worn as to break in two without apparent reason, and was further negligent in not having sufficient insulation on said wire; and was further negligent in not having a sufficient number of guard wires under its telephone wires to prevent any of them when broken falling on the wires or to the street below. Plaintiff charges that the Street Railway Company was negligent in not having its wires at said place sufficiently insulated to prevent an occurrence of the kind described; and was further negligent in permitting the Telephone Company to string its wires across this Street Railway Company's wires without sufficient guard wires to prevent the Telephone Company's wires from coming into connection with the deadly current of electricity with which the Street Railway Company's wires were habitually charged, and was further negligent in permitting the Telephone Company to use the same pole as carried the Street Railway Company's wires without any safeguards to prevent a wire of one company coming in contact with that of the other company." The Electric Company filed a demurrer to the petition. The court passed the following order: "The first three grounds of the foregoing demurrer are sustained and the case dismissed as to the Georgia Railway & Electric Company." The first three grounds of the demurrer were as follows: "There is a misjoinder of parties defendant in said case. Plaintiff in the same petition and in the same count seeks to set forth a cause of action against the Atlanta Telephone & Telegraph Company and a cause of action against the Georgia Railway & Electric Company; and there are facts in said petition showing that said defendants were not joint tort-feasors. Because said petition seeks to bring two separate and distinct causes of action against two separate and distinct parties in the same petition and in the same count." To the order sustaining the demurrer the plaintiff excepted.

1, 2. We think the court committed error in sustaining the demurrer on the three grounds stated. Where wires charged with a deadly current of electricity are strung along a public highway, the degree of care required to prevent injury to property or persons lawfully on the highway is governed by...