Opinion
40144, 40145.
DECIDED JUNE 12, 1963. REHEARING DENIED JUNE 26, 1963.
Action for damages. Sylvester City Court. Before Judge Monk.
Perry, Walters Langstaff, Jesse W. Walters, for plaintiff in error.
Burt Burt, H. P. Burt, contra.
1. Where a telephone company maintains a guy wire over a public highway and allows the brace pole to which it is attached to deteriorate and permits grass, weeds and brush to grow up around it which in some manner catch fire, causing the pole to burn in two and the guy wire to fall so low as to endanger the safety of travelers along the highway, the foreseeability of the fire as an intervening agency causing the guy wire to fall is for the jury where reasonable minds might differ.
2. The rationale of the ruling on the general demurrers controls the overruling of special demurrers 5,6,9,10 and 11 to count 1.
3. (a) Special demurrers 4 and 13 attack allegations that the defendant had no easement over the land on which the brace pole was located and that the pole's presence there constituted a "continuing trespass." These demurrers should have have been sustained because these facts are not relevant to plaintiff's right to recover. Consequently there was no error, as complained of in the cross bill, in the sustaining of special demurrer 4, but the overruling of special demurrer 13, complained of in the main bill, was error.
(b) Special demurrers 7 and 12 are directed to allegations that the mere placing of the brace pole on the opposite side of the highway from the pole braced was, without more, negligent. The stringing of wires across a highway is a usual and necessary incident to the maintenance and operation of such a public utility as a telephone company, and that cannot be held, of itself, to be negligence, though the fact that a utility's line crosses a public highway does affect its duty to so maintain it as to afford safe passage thereunder to those who travel. These demurrers should have been sustained.
4. (a) One ground of demurrer 8 calls for specification of the names of those to whom certain items of special damages were paid. It should have been sustained. Perkins v. Publix Theatres Corp., 47 Ga. App. 641 (5) ( 171 S.E. 147); Community Gas Co. v. Williams, 87 Ga. App. 68, 83 (5b) ( 73 S.E.2d 119) and citations.
(b) Another ground of this demurrer seeks to deny recovery for the expenses of four trips to Columbus and room and board for the parents while obtaining medical treatment for their minor daughter. We find no specific authority on this point but "there can be no sound reason why in fairness and justice [he] should not be allowed to recover therefor." Southeastern Air Service v. Crowell, 88 Ga. App. 820, 828 ( 78 S.E.2d 103). This ground was properly overruled.
DECIDED JUNE 12, 1963 — REHEARING DENIED JUNE 26, 1963.
Whiddon sued Southern Bell for injuries to his minor daughter, Charlotte. The petition alleged that Charlotte was riding down the highway south of Shingler, Georgia, as a guest passenger on a motorcycle driven by one Slappey on November 5, 1961, and that at about 5:10 p. m. a guy wire across the highway belonging to the defendant caught the two cyclists, killing Slappey and seriously injuring the plaintiff's daughter, and that Slappey was in the exercise of ordinary care since the guy wire was too small for him to see.
Count 1 further alleged: The guy wire was strung between a telephone pole on the west and a brace pole on the east side of the highway. There were "tall weeds and thick brush" around the brace pole, which the defendant knew constituted a fire hazard, and the pole itself was in a "deteriorated and decayed condition." The "tall weeds and thick brush" caught fire on the afternoon of the day of the incident, burned through the deteriorated pole, causing it to fall to the ground and the guy wire to fall to the height at which the cycle riders struck it.
Count 2 is basically the same. Further allegations are made that there was an abandoned frame tenant house used for the storage of hay within three feet of the brace pole and that defendant had constructive knowledge that this constituted "an extreme fire hazard." The "tall weeds and thick brush" caught fire, and the house burned, burning the brace pole with the result set out above.
General demurrers to count 1 were overruled but were sustained as to count 2. One special demurrer to count 1 was sustained and the remainder overruled. The cross bill of exceptions assigns error on sustaining the general demurrer to count 2 and the one special demurrer to count 1. The main bill excepts to the overruling of the general and special demurrers.
1. Do the counts of the petition set out a cause of action against the defendant telephone company? A decision requires a consideration of what Judge Townsend called "the peculiarly perplexing rules of law relating to remote and superseding causes of injury." Taylor v. Atlanta Gas Light Co., 93 Ga. App. 766, 768 ( 92 S.E.2d 709).
Initially, it is clear that the plaintiff here, being a highway traveler, fell within a class of persons to whom the defendant owed a duty to refrain from negligently obstructing the highway. Under the allegations of the petition, the negligence of the defendant was one "cause in fact" of the plaintiff injury.
In such a situation, "The causal connection between an original act of negligence and injury to another is not broken by the `intervening' act of a third person, if the nature of such intervening act was such that it could reasonably have been anticipated or foreseen by the original wrongdoer." Williams v. Grier, 196 Ga. 327 (2a) ( 26 S.E.2d 698). "The original act of negligence may be passive, that is, harmless unless something further occurs but capable of being made dangerous by the operation of some new force, as occurred in this case. Under such conditions, the fact that an intervening act of a third person is itself negligent, and acts upon the original passive negligence so that injury occurs which otherwise would not have occurred, does not necessarily operate to make the second act of negligence by the third party the sole proximate cause of injury and thus insulate the original wrongdoer from liability. . . Where such conditions occur, it is sufficient if the defendant, in ordinary prudence, might have foreseen that some injury would result from his act, but it is not necessary that he should have anticipated the particular consequences which ensued." Taylor v. Atlanta Gas Light Co., 93 Ga. App. 766, 768-9, supra. See Atlanta Baggage c. Co. v. Atlanta Taxicabs, Inc., 104 Ga. App. 89 (6) ( 121 S.E.2d 175).
There is general agreement on this view. Prosser states: "The defendant ordinarily will not be relieved of liability [for a prior negligent act] by an intervening cause which could reasonably have been foreseen, nor by one which is a normal incident of the risk created." Prosser, Torts § 49, p. 266 (2d Ed., 1955). See also discussion in 2 Harper James, Torts, p. 1141, § 20.5 (5) (1956).
Here the defendant telephone company's negligence as alleged was simply "passive" or static in allowing a certain combination of conditions to continue (maintaining rotten pole, failure to clear weeds, etc.). Any sins were sins of omission. The moving, precipitating or "intervening" factor was the fire, which was of undetermined (or at least of unalleged) origin.
Was it foreseeable that another agency would combine with the defendant's passive negligence and cause harm to a highway traveler? Foreseeability is a jury question where reasonable minds might differ. E.g., Thomas v. Williams, 105 Ga. App. 321, 327 ( 124 S.E.2d 409) and citations; Poole v. City of Louisville, 107 Ga. App. 305, 308 ( 130 S.E.2d 157); Hubbard v. Squadrito, 107 Ga. App. 651 ( 131 S.E.2d 227).
The plaintiff relies on Western Union v. Owens, 23 Ga. App. 169 ( 98 S.E. 116), where recovery was allowed when plaintiff stumbled over wires that had been attached to "defective and rotten" poles. The poles and wires were blown down by the wind. However, in the very same volume appears Higginbotham v. Rome R. c. Co., 23 Ga. App. 753 ( 99 S.E. 638), where the plaintiff was electrocuted by a previously sagging and uninsulated wire that had been further lowered to head level by a blasting operation. This serves to illustrate the tendency to allow each negligence case to rest on its own bottom and examples of inconsistent results which abound.
No sagging wire over a roadway case has been found where fire was the intervening force, but recovery has been allowed for injury from wires sagging because of an ice storm, Campbell v. Western Union Telegraph Co., 139 Pa. Super. 553 ( 12 A.2d 816), aff'd. 341 Pa. 103 ( 17 A.2d 346), (but cf. Public Service Co. v. Sonagerra, 208 Okla. 95, 253 P.2d 169 , denying recovery on similar facts), where a truck struck the anchor or brace pole placed in almost the same position as the burned pole in this case, Thornton v. Union Elec. c. Co., 230 Mo. App. 637 ( 72 S.W.2d 161), and where the facts were similar to Owens, 23 Ga. App. 169, supra. Hart v. Lake Providence, 5 La. App. 294 (cited in Annot. 40 ALR2d 1319).
Defendant relies strongly on Rome R. c. Co. v. Robinson, 35 Ga. App. 521 ( 134 S.E. 132), a two judge opinion with one dissent which was affirmed by an equally divided Supreme Court in 164 Ga. 656 ( 139 S.E. 345). Robinson is a power pole case where there was proximity to a garage and candy factory, an alleged fire hazard. However, the instant case presents the additional factor of a deteriorated pole immediately surrounded by "tall weeds and thick brush," a combustible situation and thus one in which it might have been anticipated that if the weeds and brush should catch fire, whether from the house or some other source, because of its deteriorated condition, the pole might burn and fall. This was not present in Robinson, where it was not the power pole that burned and fell bringing a wire down but rather it was a wire attached to a cross arm at the top of the pole. Beckham v. Seaboard Air-Line R., 127 Ga. 550 ( 56 S.E. 638, 12 LRA (NS) 476) involved a fire which started in a house on the defendant's premises and spread to plaintiff's hotel, which was located on the other side of the railroad right of way. Each obviously presents a different foreseeability situation.
The trial court properly overruled the general demurrers to count 1 but erroneously sustained, as contended in the cross bill, the count 2 demurrers.
2-4. These headnotes need no elaboration.
The main bill is affirmed with the exception of special demurrers 7, part of 8, 12 and 13; the cross bill is reversed with the exception of the ruling on special demurrer 4.
Judgment affirmed in part; reversed in part. Felton, C. J., and Russell, J., concur.