Atlanta Telephone & Telegraph Co. v. Cheshire

Hill, C. J. (After stating the foregoing facts.) 1. The general demurrer was properly overruled. It was based on the theory that the only reasonable inference from the allegations of the petition is that the mail box' of the plaintiff’s husband was nailed to the defendant company’s pole, that this placing of 'the box on the pole was done without the defendant’s knowledge and consent either express or implied, that therefore the placing of the box on the pole was an act of trespass, that for this reason the defendant company owed only the duty of not wantonly and wilfully injuring the plaintiff, and, as the petition did not allege thát this duty was violated, or allege any fact from which wilful and wanton conduct by the defendant company in injuring the plaintiff could be fairly inferred, that no cause of action was set forth. It does not clearly appear from the petition that the mail box was actually on the defendant’s pole. It might have been on a pole [657] provided by the plaintiff near the pole of the defendant, near enough to have been within reach of the wire of the defendant company, which was powerfully charged with the electric current from the wires of the Georgia Railway & Electric Company. If more specific information had been desired, or was necessary, as to the exact location of the mail box, it should have been called for by special demurrer. The allegations of the petition were sufficient to withstand a general demurrer. 2. The grounds of special demurrer to paragraphs of the petition, based upon the theory that these paragraphs are merely conclusions of the pleader, without any allegation of fact to support them, or that the allegations fail to show that defendant knew or by the exercise of ordinary diligence should have known of the position of the mail box on the pole, or that the plaintiff, by the exercise of ordinary diligence, could have discovered the dangerous condition of the wires in proximity to the mail box, were without substantial merit and were all properly overruled. 3. It is contended that the evidence proved that the mail box was on the defendant’s pole without its knowledge or consent, and that in placing the box on the pole without authority the plaintiff was simply a trespasser, and took the risk incident to the trespass. There was evidence that the mail box had been on this pole for over two years, and that it had been seen on the pole by various employees and officials of the defendant company. It did not appear that any objection was ever made to its location. The trial judge in his instructions gave the defendant the full benefit of the contention that the plaintiff was a trespasser, charging the law pertinent to that theory. He also properly submitted the contention of the plaintiff that she was a licensee, and charged the law. applicable to that theory. The jury found in favor of the latter theory, and certainly there was evidence to support that conclusion, 4. Again, it is earnestly insisted that defendant company had no notice, either actual or constructive, of the fateful and dangerous contact of its wire with those of the electric company. According to the evidence, this dangerous contact had not occurred as late as Saturday afternoon, February 25, 1911, for on that day the plaintiff had taken her mail from the box without injury. On Sunday there was no inspection of the situation. The plaintiff was hurt on Monday afternoon, and then for the first time the defendant [658] received notice of the dangerous situation, and at once remedied it. This argument is on the assumption that the dangerous contact was caused by the negligent conduct of the county employees in knocking down the defendant’s guy post with its steam road-roller. The evidence is not entirely clear as to the exact point of dangerous contact between the wire of the defendant company and the wires of the railway and electric company, whereby it became heavily charged with electricity. It was not controverted that the wire of the defendant company which was in close proximity to the plaintiffs mail box had in fact come in physical contact with the heavily charged wires of the electric company, and had thereby become dangerously charged with electricity, and that .this highly charged wire had, by the negligence of the defendant, been allowed to come in physical contact with the plaintiff’s mail box. Assuming that the theory of the defendant as to the point of physical contact between the wires of the two companies, and the consequent dangerous condition of the defendant’s wire, was correct, it was for the jury to determine the issue as to notice. 5. The plaintiff in error insists that there was a material and fatal variance between the allegata and probata as to the point of contact between the “ground wire of the defendant and the ‘feed wires’ of the railway company.” The allegation was that “said ground wire was left to swing idly and uselessly from said pole in close proximity to and likely to come in contact with the high-p.ower feed wires of the Georgia Railway & Electric Company.” The proof shows that the feed wires came in contact with the telephone wires some distance from the pole carrying the ground wire and the mail box, said contact being the result of the steam-roller of the county knocking down the defendant’s guy post. We do not think this variance material. The place of physical contact was not material. The fact of physical contact which caused the electrical condition of the telephone wire was the m'aterial question. The point of danger was the broken ground wire of the defendant, hanging in close proximity to the plaintiff’s mail box. This ground wire was in proximity to the feed wires of the railway and electric company, and did actually become charged from the high-voltage wires of the latter. The mail box would not have been electrified and rendered dangerous to the plaintiff, but for the fact that the heavily charged and broken ground wire had been allowed t© re [659] main in that condition in proximity to the mail box, where it did come in contact with the mail box. The question in a nutshell is just this: The broken end of the ground wire had been negligently left dangerously near to the mail box, and this wire at some point (it would seem immaterial where) came into physical contact with the high-voltage wires of the railway and electric company, the current extending throughout the length of the wire and to the broken end where it came in contact with the mail box. This question is fully controlled by the decision in Southern Bell Tel. &c. Co. v. Davis, 12 Ga. App. 28 (76 S. E. 786). After a most careful consideration of the able arguments of counsel, in connection with the record, we have come to the conclusion that no substantial error of law was committed, and that the judgment re* fusing another trial should be Affirmed.