Ga. Power & Light Co v. Baxter, 23093.

• Citation: 47 Ga.App. 727,171 S.E. 309
• Decision Date: 14 October 1933
• Docket Number: No. 23093.,23093.
• Parties: GEORGIA POWER & LIGHT CO. v. BAXTER.
• Court: Georgia Court of Appeals

47 Ga.App. 727

171 S.E. 309

GEORGIA POWER & LIGHT CO.

v.BAXTER.

No. 23093.

Court of Appeals of Georgia,

Division No. 2.

Oct. 14, 1933.

Syllabus by the Court.

The evidence in this case being insufficient to support the verdict in the plaintiff's favor, the court erred in overruling the defendant's motion for new trial.

Error from Superior Court, Seminole County; C. W. Worrill, Judge.

Suit by Leroy Baxter against the Georgia Power & Light Company. Judgment for plaintiff, defendant's motion for a new trial was overruled, and defendant brings error.

Reversed.

R. L. Cox, of Donalsonville, and A. B. Conger, of Bainbridge, for plaintiff in error.

H. G. Rawls, of Donalsonville. J. T. Goree, of Atlanta, and E. O. Smith, Jr., of Donalsonville, for defendant in error.

SUTTON, Judge.

Leroy Baxter brought suit for damages against the Georgia Power & Light Company because of the death of his wife, growing out of the alleged negligence of the defendant in supplying for the use of the people of Donalsonville, water contaminated and polluted by certain bacteria or germs known to medical science as typhoid bacilli, In quantities and amounts sufficient to produce typhoid fever which she contracted as a direct result of drinking such water. Plaintiff alleged that the water supply of the city became foul, polluted, and contaminated with said germs on a day subsequent to the time his wife became sick with typhoid fever, which was July 28, 1931, by, through, and on account of the negligence of the defendant in improperly maintaining its water distributing system. He further alleged that he and his wife were for some time before her death on September 10, 1931, boarding in a house in said city which was supplied with water by the defendant; that on August 11, 1931, it was definitely ascertained by a diagnosis that his wife was suffering from typhoid fever which she contracted shortly before that date; and that the direct and proximate result of her illness and resultant death was the taking into her system, through the consumption of said foul, polluted, and contaminated water, furnished by the defendant, the typhoid germs which produced the disease. Plaintiff alleged that the defendant was negligent in allowing pipes on or near the surface of the streets of the city to burst, without properly and promptly repairing the same, thus allowing the water flowing through them to become contaminated with the typhoid bacilli; in improperly laying and maintaining its pipes close to the sewerage system of the city, causing seepage therein; in maintaining as a part of the system an open cistern in which the drinking water is pumped and stored for use, and in allowing the same to crack and failing to repair it, thus permitting surface water and pollution to seep and flow into the cistern; in allowing the chlorinating machine to get out of repair for some time; and in maintaining the water plant with knowledge of the dangers incident thereto and with utter disregard for the safety and welfare of the users of the water. Plaintiff further set up that the defendant, by the exercise of ordinary care, could have discovered that the cistern had cracked, allowing water to pond and accumulate in hog wallows around the same, that the defendant, through its employees, should have discovered that the water in the cistern had become low, which allowed seepage from the hog wallow immediately adjacent thereto to get into the cistern, thereby...