Columbus Railroad v. Kitchens , 142 Ga. 677 ( 1914 )

Atkinson, J.

In Heidt v. Southern Bell Telephone Co., 122 Ga. 474-478 (50 S. E. 361), it was said by Evans, J.: “Persons or companies operating telephone and electric-light systems for the transmission of electricity upon and over public highways owe to the public the duty of properly constructing and maintaining their respective wires and poles; they are bound to provide such safeguards against danger as are best known and most extensively used, and all necessary protection must be afforded to avoid casualties which may be reasonably expected. Higgins v. Cherokee Railroad, 73 Ga. 149; Davis v. Augusta Factory, 92 Ga. 712 [18 S. E. 974]. They are not insurers against accidents, but are bound to use reasonable care proportioned to the danger of injury. In determining whether the proper care and diligence in construction or maintenance has been observed, not only the physical structure of wires and poles must be considered, but also the use to which it is to be put, its remoteness or proximity to travelers on the highway, the nature of the electrical current which is to-be transmitted over the line, the relative position of other lines, and all other circumstances affecting the case.” See also Denson v. Georgia Railway & Electric Co., 135 Ga. 132 (68 S. E. 1113); Sedlmeyr v. City of Fitzgerald, 140 Ga. 614 (79 S. E. 469), and citations. In the cases cited the dangerous instrumentality which caused the injury was the electricity which was being supplied by artificial means, which was known and intended to be transmitted over the wires. In that respect the cited cases differ from the one now under consideration, where the electricity emanated from independent or natural cause, and got upon the wires, and was conducted by them to the plaintiff and injured her. Dealing with matters of this character was the ease of Phoenix Light & Fuel Co. v. Bennett, 8 Ariz. 314 (78 Pac. 48, 63 L. R. A. 219), in which it was held: “Providing insulation sufficient to withstand lightning which may strike the wires is not within the obligation of an electric-lighting company in carrying its wires into a building for the lighting of which it has contracted to furnish electricity.” But no other court seems to have adopted that view. In other cases it has been said: “A telephone company having reasonable grounds to apprehend that lightning will be conducted over its wires into a house where it maintains an instrument under contract with a subscriber, and there do injury to persons or property, must exercise due care in selecting, placing, and maintaining, in connection with its wires and instruments, such known and approved appliances as are reasonably necessary to guard against such accidents.” Griffith v. New England Telephone & Telegraph Company, 72 Vt. 441 (48 Atl. 643, 52 L. R. A. 919). It was further said, in the course of the opinion: “Having undertaken to place and maintain the instrument in the house, and connect it with its telephone line for the use of the deceased, in so doing it was under a duty to exercise the care of a prudent man in like circumstances. If, while in the exercise of such care, it had reasonable grounds to apprehend that lightning would be conducted over its wires to and into the house, and there do injury to persons or property, and there were known and approved devices for arresting or diverting such lightning so as to prevent injury therefrom to the house or persons therein, then it was the defendant’s duty to exercise due care in selecting, placing, and maintaining, in such connection with its wires and instruments, such known and approved appliances as were reasonably necessary to guard against accidents that might fairly be expected to occur from lightning when conducted to and into the house over its telephone wires.”. In Southwestern Telegraph & Telephone Co. v. Robinson, 50 Fed. 810 (1 C. C. A. 684, 16 L. R. A. 545), it was held: “Injury caused by electricity generated by a thunderstorm, in a telephone wire which was negligently allowed to hang across a highway so low that a traveler came in contact with it in the dark, renders the telephone company liable, as the wire furnished the means by which the dangerous force was communicated and the injury caused.” In the opinion it was said: “The contention of the plaintiff in error seems to be that the petition states the cause of action to have been the injuries which resulted from the fact that the wire at the time Of the contact frith it by the defendant was charged with electric fluid, for the creation and existence of which the telephone company was in no. sense responsible. Persons, however, must be held to know the ordinary operation of the forces of nature, and to use proper means to avert danger. If the electric fluid with which the wire of the telephone company was charged at the time was an element or the main element in the production of the injuries to the defendant in error, still it is clear that the displaced wire furnished the means of the communication of the dangerous force which resulted in the injury to the defendant in error. Science and common experience show that wires suspended in the atmosphere attract electricity in the time of storms, and when so suspended and insulated are dangerous to persons who may at such times be brought in contact with them; and the petition charges that, during electric or thunderstorms, such wires ordinarily become heavily charged with electricity of power sufficient to cause death or great injury to those coming in contact with them; and whether this is so or not is a question of fact. To say that the agency of the telephone wire in the production of the injury was inferior to that of the electric current, which was the main cause, is not satisfactory. It is, in fact, to admit that the company’s displaced wire furnished the means by which the dangerous force was communicated to and injured the defendant in error. True, it was a new force or power which intervened, with the production of which the telephone company had nothing to do; but upon this point, in Insurance Co. v. Tweed, 74 U. S. (7 Wall.) 52, 19 L. ed. 67, the court says: ‘If a new force or power has intervened, of itself sufficient to stand as the cause of the misfortune, the other must be considered as too remote.’ The new force or power here would have been harmless but for the displaced wire and the fact that the wire took on a new force, with the creation of which the company was not responsible; yet it contributed no less directly to the injury on that account.” The doctrine of this case was also cited and applied in Jackson v. Wisconsin Telephone Co., 88 Wis. 243 (60 N. W. 430, 26 L. R. A. 101); Peninsular Telephone Co. v. McCaskill, 64 Fla. 420 (60 So. 338, 32 Ann. Cas. (1914B) 1029).

The reasoning above set forth demonstrates that the petition as amended in this case set out a cause of action, and was not subject to any of the grounds of demurrer.

Judgment affirmed.

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