Johnson v. Rome Ry. & Light Co

• Decision Date: 28 September 1908
• Docket Number: (No. 1,075.)
• Citation: 4 Ga.App. 742,62 S.E. 491
• Court: Georgia Court of Appeals
• Parties: JOHNSON. v. ROME RY. & LIGHT CO.

62 S.E. 491

4 Ga.App. 742

JOHNSON.

v.ROME RY. & LIGHT CO.

(No. 1, 075.)

Court of Appeals of Georgia.

Sept. 28, 1908.

Negligence—Contributory Negligence.

The petition set out a cause of action, and the court erred in dismissing it on general demurrer.

(Syllabus by the Court.)

Error from City Court of Floyd County; Harper Hamilton, Judge.

Action by Alexander Johnson for personal injuries against the Rome Railway & Light Company. Judgment for defendant, and plaintiff brings error. Reversed.

This case arises upon the court's sustaining a demurrer to the plaintiff's petition, which in substance alleged as follows: The defendant is engaged in transmitting electric light and power, and for that purpose had wires strung along the streets of the city of Rome. One of the wires thus used for the transmission of electricity was strung around the corner of Second avenue and East Fourteenth street, and had been covered with insulated wrappings. By the pressure of a limb of a tree the insulation had been worn off for two or more weeks at the time of the injury mentioned in the petition. The wire had been caught under the limb of this tree and was stretched down-ward thereby. The plaintiff, as a helper to one Ben Lumpkin, had been employed to trim the trees along this portion of the street, and while trimming this particular tree the limb against which the wire was pressed released the wire, and it flew up and struck the plaintiff on the band. The wire was heavily charged with electricity, and the plaintiff, in addition to being shocked, was knocked out of the tree to the ground, a distance of 35 feet, and thereby sustained enumerated injuries. The plaintiff alleged his own ignorance of the condition and dangerous character of the wire.

The following ordinance of the city of Rome was set forth in his petition: "All electric light and power wires must be fastened to insulated tie wires. The use of uninsulated tie wires is prohibited. All tie wires must have an insulation equal to that of the conducting wire. Wires must be tightly stretched, and never allowed to sag to such an extent as to be capable of coming in contact with each other, with signs, or neighboring objects." Likewise an ordinance of said city was set forth as follows: "Be it ordained that it shall be unlawful for any person or persons to chop, skin, cut, or mutilate any shade tree on the sidewalks or streets in the city of Rome, or to cut therefrom any limb, or drive any nails or spikes or other substance into said trees, or to attach, fix or fasten any wire or cable or anything else to any tree, or in any manner interfere with the same, and any person violating this ordinance, upon conviction of the same, shall be fined not more than one hundred dollars or sentenced to work on the streets of the city not longer than 30 days: Provided, that any person desiring to cut or trim any shade tree on the sidewalks or streets of the city may make application to the chairman of the street committee for a permit, and if the chairman of the street committee shall decide that it is necessary to trim or cut the trees or tree mentioned in said application he may grant the same, stating in the permit how it shall be done and that said work must be done under the supervision of the street overseer."

Plaintiff further alleged that in pursuance of this last-mentioned ordinance Ben Lumpkin, the man by whom be had been employed, had made application to trim this tree, and that the following permit had been granted: "Rome, Ga., Jan. 15, 1907. This permit authorizes Ben Lumpkin to perform according to city ordinances the following named work: Cut limbs off of trees on Second avenue in front of Dr. Harbin's and others. This permit is to be approved by chairman of street committee before work is done. At No. —— on —— (street or avenue), the said number being the place of business or residence of——. This permit must be...