Southern Bell Tel. & Tel. Co. v. Dekle, s. 33296
| Decision Date | 09 January 1951 |
| Docket Number | 33297,Nos. 33296,No. 1,s. 33296,1 |
| Court | Georgia Court of Appeals |
| Parties | SOUTHERN BELL TEL. & TEL. CO. v. DEKLE. WRIGHT & LOPEZ, Inc. et al. v. DEKLE et al |
Syllabus by the Court
1. The petition shows that Wright & Lopez, Inc, was employed by Southern Bell Telephone and Telegraph Company as an independent contractor and failed to show any of the requirements of Code, § 105-502 necessary to hold Southern Bell liable for any negligence of Wright & Lopez, Inc., the contractor.
2. The petition does not show that as a matter of law the plaintiff was negligent and that such negligence was the proximate cause of his injuries.
Lebbeus Dekle sued Wright & Lopez, Inc., Southern Bell Telephone and Telegraph Company and the City of Thomasville for injuries allegedly caused by the negligence of defendants. The petition alleged substantially: that the City of Thomasville granted a permit to Southern Bell for certain excavation work in the city; that Southern Bell employed Wright & Lopez, Inc., to do such excavation work; that in performing such excavation work Wright & Lopez dug a trench eight feet long, two to three feet wide and three to four feet deep at the intersection of South Broad Street and Remington Avenue in the city; that such trench was immediately in front of a grass plot that ran in the middle of Remington Avenue and was across what would be a continuation of the sidewalk on South Broad Street; that the excavation was not guarded by barriers or rails to protect pedestrians and that there was no watchman to warn pedestrians of the dangerous condition that existed; that Wright & Lopez, in cutting the pavement and making the excavation, left within the excavation on the side adjacent to the grass plot a walkway of approximately 16 to 24 inches in width, directly in line and within what would be an extension of the South Broad Street sidewalk; that such walkway was an invitation to the public to use same; that on or about the 18th of May, 1948, at approximately between the hours of 10 o'clock and 11 o'clock A.M., while plaintiff was lawfully passing along South Broad Street through the location described, which he had traveled at various times without danger for over 30 years, plaintiff was suddenly, without warning, caused to fall from the walkway and was thrown with great force and violence into the excavation directly on the hard brick and pavement rocks left therein and was severely injured as described; that at and prior to the time of the injuries complained of plaintiff's sight was defective in that he had an optic atrophy of each nerve; that the field of vision of each eye was very restricted and is probably less than five degrees; that it was and is impossible for him to see objects on the side and to see any object on the ground unless he looked directly at it; that this defect is known as tubular vision; that a photostatic copy of his oculist's report is attached; that owing to his defective eyesight, plaintiff saw the walkway over the excavation and that he was looking directly at it and was unaware of the presence of the ditch or trench and did not see it, nor did he realize his danger; that the excavation was not at the place mentioned when he had used the street the day before; that he was unaware of the hazard to him in using South Broad Street; that plaintiff was using due care and caution and that he was free from fault and was not negligent prior to and at the time his fall occurred, and that he could not have avoided said fall by the use of ordinary cre and diligence; that the negligence of defendants in not erecting barriers and warnings around said excavation and in not maintaining watchmen to warn users of the street of the dangerous condition of such street was the proximate cause of his injuries. Defendants Southern Bell and Wright & Lopez Inc., filed general demurrers to the petition...
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