Postal Telegraph-Cable Co. v. Kelly , 1910 Ga. LEXIS 156 ( 1910 )

Atkinson, J.

1. A telegraph company had its lines of poles and wires constructed along one side of a public road. On the opposite side several men were cutting down trees for a box company. Just as one of the trees was about to fall two of the men engaged in cutting went out into the road. As the tree, which was a tall pine, fell it' struck another tree, glanced or turned' from its course, and fell in or partly across the road. Either some of its limbs or part of the bther tree struck the wires of the defendant on the opposite side of the highway, breaking some of them; and a pole, to which they were attached, fell into the road, striking one ofl the.two men who were standing there, causing his death. The pole was rotten at the point where it entered the .ground, and a sound pole nearer! the point of impact did not fall. Meld, that even if the telegraph com! pany failed to use ordinary care in inspecting and maintaining its polesl nevertheless, under the facts stated, the injury was not the legal and natural result of its negligence so as to authorize a recovery against it for the homicide. This is so although the act of cutting down the tree may not in any sense have been negligent or wrongful. In this connection see Perry v. Central R. Co., 66 Ga. 746; Mayor and Council of Macon v. Dykes, 103 Ga. 847 (31 S. E. 443) ; Henderson v. Dade Coal Co., 100 Ga. 568 (28 S. E. 251, 40 L. R. A. 95) ; Dubuque Wood & Coal Association v. City and County of Dubuque, 30 Iowa, 176; City of Rockford v. Tripp, 83 Ill. 247 (25 Am. R. 381) ; Handelun v. Burlington, Cedar Rapids & Northern Ry. Co., 72 Iowa, 709 (32 N. W. 4).

March 3, 1910.

Action for damages. Before Judge Wright. Walker superior court.

August 18, 1908. Anderson, Felder, Rountree & Wilson and John W. & G. E.. Maddox, for plaintiff in error. Lumpicin & Wright and W. M. Henry, contra.

(a) The ruling above made relates to the questions as to proximate cause-as raised by general demurrer, and as involved in the motion for nonsuit and the general grounds of the motion for new trial; and being eontroling, it is -unnecessary to deal with the grounds of the motion for new trial in detail.

Judgment reversed.

All the Justices concur, except Fish, C. J., absent.