Higginbotham v. Rome Ry. & Light Co.

• Decision Date: 16 May 1919
• Docket Number: 10154.
• Citation: 99 S.E. 638,23 Ga.App. 753
• Parties: HIGGINBOTHAM v. ROME RY. & LIGHT CO.
• Court: Georgia Court of Appeals

99 S.E. 638

23 Ga.App. 753

HIGGINBOTHAM v. ROME RY. & LIGHT CO.

No. 10154.

Court of Appeals of Georgia, Second Division

May 16, 1919

Syllabus by the Court.

The undisputed evidence clearly showing that, even if the defendant company was negligent as alleged, the direct and proximate cause of the homicide sued for was the intervening act of a separate and independent agency, the verdict for the defendant was not only authorized, but demanded, and the court did not err in overruling the motion for a new trial.

Stephens J., dissenting.

Action by Vinnie Higginbotham against the Rome Railway & Light Company. Verdict for defendant, motion for new trial denied and plaintiff excepts and brings error. Affirmed.

Harris & Harris, of Rome, for plaintiff in error.

Dean & Dean, of Rome, for defendant in error.

BROYLES P.J.

Vinnie Higginbotham sued the Rome Railway & Light Company for damages on account of the homicide of her husband, Tom Higginbotham. A verdict for the defendant was returned, and the plaintiff excepted to the court's refusal to grant a new trial. Her counsel state in their brief that the evidence showed the following state of facts:

"The defendant had a line of wires, heavily charged with electricity, strung along the side of the Summerville road within the limits of the city of Rome, on a pole about 12 or 14 feet in height. This pole was about 75 feet from a railroad trestle. The wires stretched from this pole to a knob underneath the trestle. The pole was at the base of a 5-foot embankment, and between the pole and that part of the trestle where the wires were attached there was an embankment or elevation several feet above the mean level of the base of the aforesaid pole. About midway between this pole and the trestle there was a much-used pathway, which had been in constant use for 15 or 20 years. Ordinarily, prior to the intervening cause that was responsible for the death of Tom Higginbotham, the wires were only 4 1/2 to 5 feet (according to different witnesses) above the ground. The wires had been in this condition for a considerable length of time. Every witness who testified as to this fact stated that a man could reach the wire at any time over this pathway. One Saturday afternoon, about 3 o'clock, a blast was shot by the city of Rome gang, and a rock knocked one of the wires from its mooring on the pole and caused it to sag or bow to within a few feet of the ground; the height being less than the height of an ordinary man. Immediately a volunteer, at the request of the guard of the city gang, called the head office of the defendant and notified it of the accident, and asked that a man be sent to repair the same. The party answering the telephone agreed to do this. However, the defendant denied receiving the message, and the plaintiff was never able to show that such message was received by defendant. The wire remained down until the next day, although the current was cut off soon after the homicide of plaintiff's husband. The wire had been strung there for 12 or 15 years, and the insulation had rotted off. The company admitted that it made no regular inspection rounds, and had no inspector, but depended on its regular employés, in their rounds, discovering and making known any defects or accidents. About midnight on the date on which the wire was knocked off, plaintiff's husband was walking along this pathway, as had been his custom for a number of years [italics ours], and came in contact with the fallen wire and was instantly killed. He was not taken loose from the wire until one of the defendant's employés cut off the current. The defendant admitted that it owned the wires and furnished the current, but defended solely on the ground that the primary cause of the accident was the direct or proximate result of the act of the city of Rome in shooting the blast."

Adopting as our own this statement of facts, it clearly appears to us that, even if the defendant was negligent as alleged in the declaration, the effective and proximate cause of the homicide of the plaintiff's husband was the intervening act of a separate and independent agency, the city of Rome, and that the verdict in favor of the defendant was not only authorized but demanded. See, in this connection, Perry v. Central Railroad, 66 Ga. 745 (5); Mayor and Council of Macon v. Dykes, 103 Ga. 847, 31 S.E. 443; Andrews v. Kinsel, 114 Ga. 390, ^[1] Beckham v. Seaboard Air Line Ry., 127 Ga. 550, 56 S.E. 638, 12 L.R.A. (N. S.) 476 (2); Postal Telegraph-Cable Co. v. Kelly, 134 Ga. 218, 67 S.E. 803; Southern Ry. Co. v. Barber, 12 Ga.App. 286, 77 S.E. 172; Atlantic Coast Line R. R. Co. v. Adeeb, 15 Ga.App. 842, 84 S.E. 316; Anderson v. Baltimore & Ohio R. R. Co., 74 W.Va. 17, 81 S.E. 579, 51 L.R.A. (N. S.) 888; Harton v. Forest City Tel. Co., 146 N.C. 429, 59 S.E. 1022, 14 L.R.A. (N. S.) 956, 14 Ann.Cas. 390; American Bridge Co. v. Seeds, 144 F. 605, 75 C.C.A. 407, 11 L.R.A. (N. S.) 1041; Cole v. German Savings & Loan Society, 124 F. 113, 59 C.C.A. 593, 63 L.R.A. 416; Stone v. Boston & Albany R. R. Co., 171 Mass. 536, 51 N.E. 1, 41 L.R.A. 794; Leeds v. New York Telephone Co., 178 N.Y. 118, 70 N.E. 219; Curtis on Law of Electricity, §§ 435, 439, 441, 443, 444; 1 Thompson on Negligence, §§ 55, 56, 57.

The above ruling being controlling in the case, it is unnecessary to consider the special grounds of the motion for a new trial, as they complain only of errors in the charge of the court and of the court's refusal to give certain requests to charge.

Judgment affirmed.

BLOODWORTH, J., concurs.

STEPHENS J. (dissenting).

It is undisputed that an electric wire belonging to the defendant company was knocked from its fastening, from a pole, and fell to the ground, as a result of blasting in the vicinity, done by the city of Rome. While this alone was an independent agency, yet I do not think it can be said that, under the undisputed evidence, it was the proximate cause of the injury to plaintiff's husband, who was killed by coming in contact with the wire while it lay, heavily charged with electricity, in close proximity to the ground, across a path over which the deceased was traveling.

Plaintiff charges that it was negligence upon the part of the defendant company to have so erected its pole and strung its wire that the latter was only 5 1/2 feet above the ground across said pathway; to have so erected the pole and strung the wire that the latter was less than 20 to 30 feet above the ground at places where pedestrians were accustomed to travel; to have allowed the wire to be so constructed that the insulation was worn and rotted, and furnished no protection against harm to any one who might come in contact with the wire; to have erected the wire for the purpose of conducting electricity of a heavy voltage in such a manner that the wire would, if it should fall from the pole, sag or swing in close proximity to the ground, so as to become a dangerous menace to people passing over the ground; to have failed to remove or repair the wire after defendant had been informed of its having been knocked down; in not attaching the wire to a pole 30 feet from the ground, so that, even though the glass knob was broken, the wire would not have sagged to within 5 1/2 feet of the ground. It is charged that by reason of these acts of negligence the plaintiff's husband was killed.

There was evidence to the effect that the wire, after it was knocked from the pole by...