Martin v. Southern Bell Tel. & Tel. Co., 46930

• Decision Date: 22 June 1972
• Docket Number: 3,No. 46930,Nos. 1,2,46930,s. 1
• Citation: 192 S.E.2d 176,126 Ga.App. 809
• Parties: Beverly Ann MARTIN v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY et al
• Court: Georgia Court of Appeals

Page 176

192 S.E.2d 176

126 Ga.App. 809

Beverly Ann MARTIN v. SOUTHERN BELL TELEPHONE & TELEGRAPH COMPANY et al.

No. 46930.

Court of Appeals of Georgia, Division Nos. 1, 2, 3.

June 22, 1972.

Rehearing Denied July 28, 1972.

Syllabus by the Court

1. Code § 104-205 does not prevent a telephone company from being held liable for the negligent placing of a telephone pole even though such pole is located at a point outside the normally traveled portion of a highway.

2. The defendant, as movant for summary judgment, failed to conclusively establish that it was not negligent or that its negligence was not the proximate cause of the plaintiff's injury.

Beverly Ann Martin brought suit seeking recovery for injuries she sustained when the automobile in which she was riding collided with a telephone pole maintained by Southern Bell Telephone & Telegraph Company (hereinafter referred to as Southern Bell). The suit was brought against the driver and the owner of the vehicle as well as Southern Bell. However, this appeal involves the sole question of whether the trial judge properly granted Southern Bell's motion for summary judgment.

In the plaintiff's recast complaint it was alleged that the defendant Southern Bell was negligent in the following particulars: In placing and maintaining a power pole at the apex of a dangerous curve; in placing and maintaining a power pole too close to the street; in placing and maintaining a power pole at a place where, on account of the low curb, the dangerous angle of the curve, and the banking or reverse superelevation of the roadway, an automobile was likely to strike the pole; in placing and maintaining the power pole on East Brookhaven Drive at a place near the street when power poles in the same neighborhood had been struck in the past and the same was known to the defendant Southern Bell; in failing to provide a reflector, blinking light, or other warning device which would warn the general public of the position of the pole at or near the apex of the dangerous curve; in erecting and improperly maintaining a pole so near to the traveled portion of a roadway that it constituted an obstruction to persons using the roadway; defendant Southern Bell was negligent per se or negligent as a matter of law in violationg Code § 104-205 by erecting, placing and maintaining a power pole so as to obstruct or interfere with the ordinary use of such roadway by the traveling public, when the erection, placing and maintaining of the pole in such a place as to constitute an obstruction and interfere with the ordinary use of the road was avoidable; in failing to install a guardrail or crash cushion in and about the power pole so that traffic would be directed away from the pole; in failing to either provide a breakaway type pole which would lessen and diminish the likelihood of injury to passengers of vehicles using the roadway which may have come in contact with the pole or to provide a system of underground wiring in lieu of the use of a power pole at the apex of the curve.

The record in this case is voluminous, so only a brief recitation of the facts involved is here given. Any additional facts necessary to a decision in this case will be discussed in the opinion.

On the night of March 30, 1968, the plaintiff Martin was injured while riding as a passenger in a Volkswagen automobile driven by the defendant Joshua Barnum. As defendant Barnum was proceeding south on East Brookhaven Drive, he entered a sharp curve to the left at an angle of approximately 25 degrees. The speed limit was 35 miles per hour and, although the evidence is in dispute, it appears that defendant Barnum's automobile entered the curve at a speed of 35 to 40 miles per hour. In this connection the defendant Barnum estimated his speed at around 35 miles per hour. Shortly after entering the curb, defendant Barnum's automobile partially left the road and, with its right front and rear tires extending off the road, traveled for a distance of 30 feet prior to striking the pole. According to conflicting evidence, the defendant Barnum's automobile struck the pole somehwere between 4 to 17 inches inside the right front bumper of such automobile. There was no proof offered tending to show the cause of the vehicle leaving the road. The plaintiff introduced evidence showing the curb was banked in such a manner as to cause vehicles naturally to tend to go off the road. This was a result of reverse superelevation which was described as banking of the road from the middle to the outside.

The pole was located four inches beyond the edge of the road (as conceded by Southern Bell for the purpose of the motion for summary judgment), at or near the apex of the curve and behind an irregular rock curb.

Hansell, Post, Brandon & Dorsey, Jule W. Felton, Jr., W. Lyman Dillon, Atlanta, for appellant.

Kilpatrick, Cody, Rogers, McClatchey & Regenstein, Harry S. Baxter, William W. Cowan, A. Stephens Clay, Atlanta, for appellees.

QUILLIAN, Judge.

1. In the posture in which this case stands on motion for summary judgment, according to well recognized and often quoted principles, this court will construe the proof offered in a light most favorable to the party opposing the motion (Malcom v. Malcolm, 112 Ga.App. 151, 154, 144 S.E.2d 188) and will approve the grant of such motion only where the defendant produces evidence which conclusively negates at least one essential element entitling the plaintiff to recover under each theory fairly drawn from the pleadings and evidence. See Werbin & Tenenbaum, Inc. v. Heard, 121 Ga.App. 147(2), 173 S.E.2d 114.

Southern Bell urges that Code § 104-205 is dispositive of the issues in this case because the Code section absolves a telephone company from liability for any injuries occurring to one who leaves the traveled area of the road and strikes a telephone pole. This is predicated on the theory that if the pole does not interfere with the ordinary use of the road more than may be unavoidable the telephone company can not be charged with negligence.

A thorough examination of its content reveals that Code § 104-205 does not serve to limit the liability of a telephone company which acts within its terms. Instead, it merely provides that the telephone company shall have the right to construct and operate telephone lines upon the public highways of this state with the approval of the governmental authorities in charge of such highways and, upon making due compensation shall have the right to construct and operate telephone lines over any lands of this state, including private lands, and to that end exercise the right of eminent domain. It also contains precautionary language to the effect that 'posts . . . and other fixtures of such lines be so erected, placed, and maintained as not to obstruct or interfere with the ordinary use of such railroads or public highways, or with the convenience of any landowners, more than may be unavoidable.'

The language used cannot be construed to insulate a telephone company from liability for negligent placement of its poles. For, the statute does not provide that when a telephone company complies with its terms that it should be free from liability for the placement of its posts. Moreover, there are no Georgia cases which hold that Code § 104-205 limits the liability of one who comes within its terms. Indeed, the sounder view is that the section serves merely to allow a telephone company to utilize property on which it desires to place its poles. The language contained in Blunt v. Spears, 93 Ga.App. 623, 628, 92 S.E.2d 573, 577, is an explicit statement of the legal principle involved. That case holds: 'The fact that the company had a legal right to place the pole where it did in so far as the right to the use of the land occupied by the pole was concerned would not relieve it of negligence if the pole created a dangerous situation.'

Although there is a great disparity in the language used by the various statutes involved and some difference in the conclusions reached, the majority of the courts agree that the fact that a private individual or corporation is permitted by governmental authority to erect and maintain poles or posts in or near the highway will not operate to relieve the proprietor of the liability which would originally arise if the pole, because of its location, constitutes an obstruction dangerous to travelers using the highway. Anno, 3 A.L.R.2d 6, 13, 23.

A landowner has the right to construct buildings, to place posts and to excavate on the property which he owns. Nevertheless, a landowner has a duty not to maintain a dangerous condition with regard to travelers on a public highway immediately joining or closely adjacent to his property, so that a person passing along the way would be injured if he, by necessity or accident, slightly deviated from such way. Greenfield v. Watson, 54 Ga.App. 9, 187 S.E. 183; Ga. Power Co. v. Murray, 57 Ga.App. 141, 194 S.E. 403; Hutson v. King, 95 Ga. 271, 276, 22 S.E. 615. This is analogous to the instant situation since, while a telephone company might have a right to place poles within a certain area, this would not necessarily absolve the company of negligence in creating a dangerous or hazardous condition for those using the public way.

We further point out that even if we adopted the statute as controlling, the word 'ordinary' would include slight deviations from the traveled path and whether the deviation here constituted an ordinary use would at least be for the jury's determination.

2. Having determined that the liability of a telephone company is predicated on common law principles and is not based on statutory authority, we now consider those principles applicable to the case sub judice.

Both sides have cited and thoroughly analyzed six Georgia cases which relate to pole location. In four of these cases, the Court of Appeals found no liability on the part of the defendant. See South Georgia Power Company...