Georgia Ry. & Power Co. v. Johns

• Decision Date: 13 September 1917
• Docket Number: 8077.
• Citation: 93 S.E. 521,20 Ga.App. 780
• Parties: GEORGIA RY. & POWER CO. v. JOHNS.
• Court: Georgia Court of Appeals

93 S.E. 521

20 Ga.App. 780

GEORGIA RY. & POWER CO. v. JOHNS.

No. 8077.

Court of Appeals of Georgia, First Division

September 13, 1917

Syllabus by the Court.

The evidence did not authorize the verdict.

Error from Superior Court, Stephens County; J. B. Jones, Judge.

Action by A. P. Johns against the Georgia Railway & Power Company. Judgment for plaintiff, and defendant brings error. Reversed.

Claude Bond, of Toccoa, and Colquitt & Conyers, all of Atlanta, for plaintiff in error.

W. A Charters, of Gainesville, and Fermor Barrett, of Toccoa, for defendant in error.

LUKE J.

The plaintiff's petition makes the following case: The defendant company owns and operates a hydroelectric generating plant on Tallulah river. Four miles below this plant the Tallulah and Chattooga rivers unite and form the Tugaloo. Four miles down the Tugaloo, 8 miles from the defendant's plant, the plaintiff owns and operates a farm, bordering on the river banks. The company maintains a dam about 100 feet high and about 500 feet long across Tallulah river, where the electric plant is located, which dam forms a storage basin for water, averaging 50 feet deep, 400 yards wide, and 3 miles long. Eight miles above the plant and across the same river the company has erected another dam of substantially the same dimensions and for the same purpose, but which forms a much larger basin. On October 14 and 15, 1914, heavy rains fell in that community, all the streams were swollen, the plaintiff's farm was overflowed and his crops, of the value of $1,500, destroyed. That part of the petition designed to show specifically wherein the defendant is liable for the plaintiff's losses proceeds as follows:

"(9) The company obstructed the natural flow of the waters of Tallulah river on said date above the farm of petitioner by holding in its dams aforesaid the water collected in said Tallulah river by reason of said rainfall and collected, stored, and held said waters until about noon of October 15, 1914. (10) The rainfall had been large, and from noon to 3 o'clock p. m. October 15, 1914, the river passing the farm of petitioner was filling from the waters of Chattooga river and other streams flowing into Tallulah river below the plant of the company, and into Tugaloo river above the farm of petitioner. (11) About noon, October 15, 1914 the company released from its dams an immense volume of water which it had obstructed in said river, and stored from the rains of the 12 hours previous, and this vast quantity of water rushed down the precipitous Tallulah Falls along Tallulah river, and, reaching Tugaloo river, already swollen, quickly overflowed its banks, and the waters of Tugaloo, by reason of this obstructed and stored water, suddenly turned loose, overflowed the crops of petitioner"

--and thereby caused the injuries specifically set forth.

The brief of the evidence covers 92 pages, approximately 35,000 words, and embraces the testimony of 24 witnesses. Its nature needs to be indicated here, however, only as to those particulars wherein it is insufficient to prove the plaintiff's case as laid in his petition, or to support the verdict for $250 which the jury returned in his favor. The plaintiff had operated his farm for 15 years, but the evidence is silent as to how long the company had maintained its dams. The dimensions of the dam at the company's plant were substantially as alleged in the plaintiff's petition, except that along the top of the cement dam there was a line of flashboards, containing a series of gates 6 feet high and 25 feet long, and virtually increasing the height of the dam 6 feet if the gates remained closed, but not so if they were opened, because water in the basin could not flow over the top of the cement dam until it had also risen above the top of the closed gates or passed through the open gates. Six of these gates were automatic, the others stationary; that is to say, six of them were so constructed as to be opened by the pressure of high water against them, and to be closed by their own mechanism upon such pressure being removed. They were also designed to open with varying degrees of pressure, or heights of water in the basin, so that all would not open at once, and, after one or more had opened, the others would not open at all unless the surface of the water in the basin continued to rise in spite of the increased flow allowed by the open gate or gates. All the gates were of modern and improved designs. On the day of the plaintiff's loss only five of these gates worked automatically, the other being out of order and remaining stationary. The company's other dam, known as the "Mathis" dam, 8 miles upstream from the dam above described, was constructed on a somewhat different plan. The Mathis dam had no gates on top, but had two open sluice gates at the bottom, in the bed of the river, and other sluice gates higher up in and through the cement dam, the two open gates at the bottom being more than ample to allow the passage of the river's normal flow. Aside from the maintenance and construction of these dams, which were necessary to the operation of the business, the company did nothing either to cause or to prevent the injuries for which the plaintiff sues.

As to the volume and duration of the rainfall on the dates in question, the witnesses do not agree; but these apparent conflicts are easily reconciled by reason of the fact that the different witnesses testify as to different times and places, some of the places being...