Johnson v. Rome Ry. & Light Co.

• Decision Date: 28 September 1908
• Docket Number: 1,075.
• Citation: 62 S.E. 491,4 Ga.App. 742
• Parties: JOHNSON v. ROME RY. & LIGHT CO.
• Court: Georgia Court of Appeals

62 S.E. 491

4 Ga.App. 742

JOHNSON v. ROME RY. & LIGHT CO.

No. 1,075.

Court of Appeals of Georgia

September 28, 1908

Syllabus by the Court.

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

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.

Seaborn & Barry Wright, for plaintiff in error.

Dean & Dean, for defendant in error

POWELL J.

If the defendant was rightfully in the tree, the petition sets forth a cause of action. Atlanta Consolidated Street Railway v Owings, 97 Ga. 663, 25 S.E. 377, 33 L.R.A. 798. Compare Augusta Street Railway Co. v. Andrews, 89 Ga. 653, 16 S.E. 203. The contention of the electric company is that the plaintiff was in the tree, attempting to trim it without first complying with the city ordinance which he himself sets up in his petition. This tree was not the property of the electric company, and therefore the plaintiff was not a trespasser upon its premises; and those decisions which define the relative duties existing between landowners or similar proprietors and trespassers upon their premises are not immediately in point. On the other hand, if the plaintiff at the time of the injury was himself engaged in an unlawful act, and this was the proximate, contributing cause of his injury, he should not recover, provided the particular phase of his conduct in which the unlawfulness consisted was an act of which the defendant had a right to complain, either by reason of the fact that it breached some duty which the plaintiff as a fellow citizen owed to the defendant, or because the plaintiff placed himself within the range of the defendant's dangerous instrumentality in a manner which the defendant could not reasonably have anticipated. See Platt v. So. Photo Material Co., 4 Ga.App. 164, 60 S.E. 1068. The mere fact that the plaintiff is doing some criminal act at the time he is injured will not necessarily as a matter of law prevent a recovery from a defendant by whose negligence he has been injured. This rule is well settled.

But looking to the question as to whether the plaintiff was in the tree in violation of law, we cannot say that he was. The ordinance of the city clearly contemplates that such persons as obtained permission from the chairman of the street committee might lawfully trim or cut shade trees in...