Syllabus by the Court.
Trolley
pole placed within 5 inches of traveled portion of 27-foot
street, by direction of municipal authorities, does not
constitute nuisance (Civ. Code 1910, § § 2585 (5), 894, Laws
1918, p. 858, § 79).
Where a
municipality has permitted a street railway company to use
its streets for the operation of street cars, and, in
pursuance of its charter authority, has designated the
location of trolley poles to be used in connection with such
business, a pole situated beyond the curb line but within
five inches of the traveled portion of a street, and so
placed by direction of the municipal authorities, cannot be
said to constitute a nuisance, and its erection and
maintenance could not amount to negligence, as to travelers
upon the street, where the clear space available for
vehicular traffic consisted of a roadway about twenty-seven
feet in width and apparently adequate for ordinary travel by
the general public.
Street
railway company placing trolley pole near traveled portion of
street held not liable for injuries to occupant of
truck (Civ. Code 1910, § § 894, 2585 (5); Laws 1918, p. 858
§ 79).
Under
the facts alleged in the petition in this case and the
inferences necessarily to be drawn therefrom, the injury
sustained by the plaintiff as she rode along the street
sitting upon one side of the platform of a truck with her
limbs projecting over the side thereof, so that she struck
the trolley pole in passing, did not give rise to a cause of
action against the defendant street railway company, and the
petition was properly dismissed on general demurrer.
Error
from City Court of Floyd County; John W. Bale, Judge.
Action
by Jessie L. Townsend, by next friend, against the Georgia
Power Company. Judgment was entered dismissing the petition
and plaintiff brings error.
Affirmed.
Jessie
L. Townsend, by next friend, sued the Georgia Power Company
for injuries alleged to have been sustained by the plaintiff
as a result of the defendant's negligence, and, the
petition having been dismissed on general demurrer, the
plaintiff excepted.
The
plaintiff and a number of other children were riding on a
truck in the city of Rome, and were sitting on the platform
of the truck with their legs hanging over the edges. A
trolley pole of the defendant was standing near the curb line
of the street, and one of the plaintiff's legs was caught
between this pole and the platform of the truck as the
vehicle was drawn near to the curb in passing another
automobile. The plaintiff's leg was seriously injured and
had to be amputated. The truck was traveling southwardly on
the right-hand side of Broad street, where the pavement
extended eastwardly from the western curb a distance of
twenty-seven feet, but was approaching a point where the
pavement suddenly widened by an additional space of ten feet
on the eastern side. The truck was about to meet the other
automobile, which was traveling north, but was turning to the
left and toward the truck in order to keep on the narrower
section of pavement; the ten-
foot strip which extended thence north on the eastern side
being unpaved and unsuited to traffic.
The
petition contained the following additional allegations:
"Said
pole is located just outside of the traveled portion of
Broad street, and between the curbing and the sidewalk,
[and] is approximately five inches from the traveled
portion of Broad street, and Broad street consists as
aforesaid of a concrete surface, said surface of Broad
street being approximately a foot lower than the curbing
and the sidewalk, and the space not paved between the
sidewalk and curbing being approximately one foot."
"Said pole west of the defendant's track to which
the wire of the defendant is attached and which supports
the trolley wire of the defendant, is a pole approximately
thirty-five feet in length, and eight inches in diameter,
and as aforesaid is approximately five inches from the
traveled portion of the concrete pavement on Broad
street," and "is approximately in the apex of a
curve in said street, said curve bending to the right in
going in a southerly direction, and that said street and
said pole are located in the heart of the city of Rome,
Georgia, and automobiles traversing said street at every
moment of the day and at all hours of the night.
"On
the evening of May 14, 1930, and at approximately 8
o'clock p. m., your petitioner, together with
approximately twenty of her companions and acquaintances,
was riding in a truck on said North Broad street, and going
on a picnic to Cave Springs, Georgia. Said truck had a flat
surface extending above and approximately even with the
wheels of said truck, and said bed or surface of said truck
being twelve feet in length and seven feet in width.
Petitioner shows that said companions who were with her
were sitting on the flat surface of said truck, and on the
left hand side, the right hand side, and the rear part of
said truck, with their legs hanging off of said truck from
the knees down. Petitioner was sitting on the right side of
said truck just back of the front wheel and next to the
driver's seat." "When said automobile, so
driven by a person to your petitioner unknown, turned to
the left to get over on the concrete paved portion of North
Broad street, said automobile was driven over to and
towards the truck on which your petitioner was riding, said
truck at said time being on the right hand side, and the
driver of the truck on which your petitioner was riding,
Walter Minge, pulled said truck to the extreme right hand
side of said street, and practically against the curbing
thereof for the purpose of keeping said automobile which
was meeting said truck from running into and against the
truck on which your petitioner was riding." "Upon
said automobile aforesaid, which came meeting the truck on
which your petitioner was riding, being pulled over to the
left in the direction in which it was going and towards the
truck on which your petitioner was riding, said truck was
then approximately ten feet north of said pole supporting
said trolley wire of the defendant on said pole, and upon
said automobile being pulled over to and towards and almost
against the truck on which your petitioner was riding, the
driver of said truck pulled over just as far as he could in
said street, and in doing so, and when said truck ran in
said street almost against said curbing, and with your
petitioner sitting on the right hand side of said truck and
with her legs hanging off of said truck from the knees
down, owing to the fact that the wheels of said truck came
within approximately five inches of said pole of the
defendant, owned and maintained by the defendant as
aforesaid, and inasmuch as the side of said body or bed of
said truck on which your petitioner was sitting came within
approximately four inches of said pole of the defendant, in
the margin of the curbing of said street as aforesaid, and
inasmuch as there was not room enough on the side of said
body of said truck on which your petitioner was sitting and
with her legs hanging off as aforesaid, for your
petitioner's limbs to pass by said pole without being
struck, your petitioner's legs struck said pole, and
petitioner's legs were caught between said pole and the
body of said truck, and petitioner's left leg mashed,
mangled, and torn, and the flesh on said leg stripped and
torn off to such an extent that to save the life of your
petitioner her said leg had to be amputated.
"The
ordinances of the city of Rome require all vehicles to keep
to the right of the center of the street in the direction
in which automobiles are going, and that automobiles be
driven on the right hand side of the streets of the city of
Rome, as near the curbing as possible.
"The
said Walter Minge, who was driving said truck, did not know
of the location and presence of said pole in the margin of
said curbing until your petitioner came in contact with
said pole. Petitioner did not know of the location nor
presence of said pole in the margin of said curbing as
aforesaid until just immediately before she came in contact
with said pole, and too late to keep from coming in contact
with said pole, and too late to warn the driver of the
presence of said pole, and the driver of said truck was
sitting on the left hand side of the seat of said truck.
"Petitioner
shows that she was in the exercise of all reasonable care
and diligence for her own protection and safety at the time
of said collision with said pole of the defendant, and that
the driver of said truck was in the exercise of reasonable
care and diligence for the protection and safety of
petitioner and her companions so riding on said truck as
aforesaid, and that at the time the driver of said truck
pulled said truck over to the right
in said street a distance of two feet, that he did so for
the purpose of protecting his guests who were riding on the
left hand side of said truck from being injured in being
run into by said automobile which was approaching said
truck, and
...
