Slappy v. Georgia Power Co.

• Decision Date: 01 June 1964
• Docket Number: No. 3,No. 40650,40650,3
• Citation: 137 S.E.2d 537,109 Ga.App. 850
• Parties: Vera H. SLAPPY v. GEORGIA POWER COMPANY
• Court: Georgia Court of Appeals

Page 537

137 S.E.2d 537

109 Ga.App. 850

Vera H. SLAPPY v. GEORGIA POWER COMPANY.

No. 40650.

Court of Appeals of Georgia, Division No. 3.

June 1, 1964.

Rehearing Denied June 19, 1964.

Syllabus by the Court

Where a petition in a death action affirmatively alleges that the plaintiff's deceased son recognized danger to travelers on a public highway created by the defendant's negligence, and when reasonable men might disagree as to whether the deceased by his alleged conduct, as judged by the standard of conduct of a reasonable man in like circumstances, exposed himself to a foreseeable unreasonable risk of harm, the petition is not subject to general demurrer.

The petition in this case, in three counts, seeks to assert an action for the death of the plaintiff's minor son caused by accidental contact with an electrical transmission wire of the defendant which, allegedly due to the defendant's negligence, was broken and suspended over the highway in the path of automobile traffic. The petition varying in each count in allegations of negligence, asserts that: the decedent was driving along the highway and observed the wire sagging over the highway in the path of traffic; he pulled past the wire and stopped; he recognized that the wire in that position was dangerous to travelers; he got out of his automobile, leaving the motor running and the lights on, to wave down and stop other travelers on the highway to prevent their being endangered by the wire; he stopped one car and immediately another one approached from the opposite direction; he started toward the side of the highway and began waving his arms in order to stop the approaching vehicle; the night was dark, the wire was dark, it was raining and the lights of the oncoming car were very bright, and while undertaking under the circumstances to wave the car to a stop, the wire, as a result either of being struck by the car or of movement by the wind, (for want of sufficient information the plaintiff could not say which), was either knocked or swayed into the body of the decedent, striking him in the chest as he stood in the act of waving down the approaching automobile. The electrical stock received from the wire caused the decedent's death.

The general demurrer of the defendant was sustained and the petition dismissed. It is to the judgment dismissing the petition that exceptions are brought.

Jesse G. Bowles, Cuthbert, Perry, Walters & Langstaff, H. H. Perry, Jr., Albany, for plaintiff in error.

Frank Twitty, Camilla, Willis A. Duvall, Edison, Burt & Burt, Albany, for defendant in error.

Robert D. Tisenger, Carrollton, amicus curiae.

BELL, Presiding Judge.

Counsel for the defendant in error in their briefs do not insist that the petition fails to allege an issue of negligence. Rather, the trust of their argument is that the petition affirmatively shows that the plaintiff is not entitled to recover because the death of her minor son was caused solely by the deceased's failure to exercise ordinary care for his own safety in voluntarily encountering a known and obvious danger, or by the decedent's failure to exercise ordinary care to avoid the consequences of the defendant's alleged negligence.

The issue we are called upon to decide as a matter of law is whether the decedent's conduct as alleged in the petition conformed to the legally prescribed standard of ordinary care, i.e., the conduct of a reasonable man under like circumstances. Central Railroad & Banking Co. v. Ryles, 84 Ga. 420(1), 430, 11 S.E. 499. American Law Institute, Restatement, Torts § 283 (Supp.1948).

The petition asserts that the decedent recognized that the sagging wire created a danger to travelers on the highway. This knowledge, however, does not serve necessarily to make the decedent's conduct negligent. It is one thing to say that he knew of the danger to travelers in automobiles and something quite different to say that he knew of the danger and assumed the risk incident to his leaving his automobile and walking on the highway to the place where he was killed. The decedent's knowledge of danger to others was alleged. Knowledge of danger to himself was not. It would be most erroneous to impute knowledge of danger to himself from the allegation of his knowledge of danger to others. The affirmative allegation of knowledge is only a factor to be considered by the jury in determining whether the decedent was negligent and assumed the risk. Underwood v. Atlanta & West Point R. Co., 105 Ga.App. 340, 358(7), 124 S.E.2d 758.

In the light of the recognizable and foreseeable risk, the conduct of the decedent, to have been negligent, must have been unreasonable. Prosser, Torts (2d Ed. 1955) p. 119 et seq., § 30; § 51: Restatement, Torts, § 284, § 291, § 466. Undoubtedly, this is the criterion of negligence by one toward others and of failure to exercise ordinary care for one's own safety. This raises the queries: Under all the allegations of the petition here, did the decedent with knowledge that the electric wire was dangerous to highway travelers, expose himself to a recognizable-foreseeable unreasonable risk of harm; would a reasonably prudent man in the same circumstances necessarily have foreseen harm to himself if he walked to the place on the highway where the plaintiff went; if a reasonably prudent man should have foreseen harm to himself if he walked to that place, was this an unreasonable risk to take under all the circumstances alleged? As a matter of law we cannot answer any one of these queries solely from the allegations of the petition without grievously usurping the lawful authority of the jury. These are factual questions which the petition presents and which the jury alone must determine from the evidence presented at the trial.

The petition alleges that the decedent, after driving past the wire himself but recognizing the danger it created for other highway travelers, got out of his automobile and tried to stop other drivers. It alleges that a force not originated by the decedent caused the fatal wire to move and strike him. The petition is not susceptible to the inference that the wind was blowing the wire before the decedent moved to the place where it contacted him, or that the wire was in a position where an approaching car would necessarily cause it to be moved toward him. Neither does the petition show that the decedent walked so close to the wire that he must necessarily have foreseen that he would in some way come in contact with it.

All counsel in their briefs dwell at length on the legal principle that 'danger invites rescue.' Under the allegations of the petition here, this aspect of negligence law enters into the problem only regard to the jury question as to whether any normally foreseeable risk found to be taken by the decedent was reasonable under the circumstances. Restatement, Torts, § 472. If the decedent reasonably apprehended danger to others and if to warn or rescue them he did expose himself to some risk, was the risk the decedent took reasonable in view of the reasonably anticipated injury to others that he tried to prevent? In other words, '[D]oes the stimulus of the negligence under the circumstances call for the effort to rescue as a normal reaction to the situation which cannot be said to be rash and reckless.' Rushton v. Howle, 79 Ga.App. 360, 53 S.E.2d 768. 'In cases where one's negligence causes injury or danger to another the negligence which causes the injury or danger is negligence as to the rescuer, and efforts to rescue will not be considered negligent if they are not rash or wanton. Whether the rescuer acts rashly or wantonly, except in plain and indisputable cases, is a question for the jury.' Blanchard v. Reliable Transfer Co., 71 Ga.App. 843, 845, 32 S.E.2d 420, 421; see also Fuller Construction Co. v. Elliott, 92 Ga.App. 309, 316, 88 S.E.2d 413; Wilson v. Central of Ga. R. Co., 132 Ga. 215, 63 S.E. 1121; Usry v. Small, 103 Ga.App. 144, 118 S.E.2d 719.

Since the petition is not subject to the inference that the danger to the decedent from the wire at the place where he walked was known and obvious to him, the cases cited by counsel for the defendant which denied recovery to one who deliberately went into a place of danger known and obvious to him, or a danger concealed by darkness, are not in point and do not control this case. See Read v. City & Suburban Ry. Co., 115 Ga. 366, 41 S.E. 629; Columbus R. Co. v. Dorsey, 119 Ga. 363, 46 S.E. 635; Central of Ga. Ry. Co. v. Roberts, 213 Ga. 135, 97 S.E.2d 149; Little v. Rome Ry. & Light Co., 35 Ga.App. 482, 133 S.E. 643; Dacus v. Dickenson Trust Co., 65 Ga.App. 872, 16 S.E.2d 786; Bryant v. Pittman, 101 Ga.App. 842, 115 S.E.2d 418. Neither are those cases cited applicable to the present petition which have held that a person who deliberately touched or attempted to move a known dangerous electrical wire cannot recover. See Taylor v. Morgan, 54 Ga.App. 426, 188 S.E. 44; Laster v. Clark, 54 Ga.App. 669, 189 S.E. 265; Carroll Electric Membership Corp. v. Simpson, 106 Ga.App. 29, 126 S.E.2d 310.

If an inference is to be drawn from this petition, it must be that the decedent intended to avoid touching the wire. 'The culpability of the actor's conduct must be judged in the light of the possibilities apparent to him at the time, and...