Johnson v. Rome Railway & Light Co. , 4 Ga. App. 742 ( 1908 )

Powell, J.

(After stating the facts.)

If the defendant was rightfully in the tree, the petition sets forth a cause of action. Atlanta Consolidated Street Ry. Co. v. Owings, 97 Ga. 663 (25 S. E. 377, 33 L. R. A. 498). Compare Augusta Railway Co. v. Andrews, 89 Ga. 653 (16 S. E. 203). The contention of the electric company is that the plaintiff was in the tree, attempting to trim it, without first comptying with the city ordinance, which he himself sets up in his petition. This tree was not the property of the electric company; therefore, the plaintiff was not a trespasser upon its premises; and those decisions which define the relative duties existing between landowners or similar proprietors and trespassers upon their premises are not immediately in point. On the other hand, if the plaintiff, at the time of the injury, was himself engaged in an unlawful act, and this was the proximate, contributing cause of his injury, he’ should not recover; provided the particular phase of his conduct in which the unlawfulness consisted was an act of which the defendant had 'a right to complain, either by reason of the fact that it breached some duty which the plaintiff as a fellow citizen owed to the defendant, or because the plaintiff placed himself within the range of the defendant’s dangerous instrumentality in a manner which the defendant could not reasonably have anticipated. See Platt v. So. Photo Material Co., ante, 164 (60 S. E. 1068). The mere fact that the defendant is doing some criminal act at the time he is injured will not necessarily, as a matter of law, prevent a recovery from a defendant by whose negligence he has been injured. This rule is well settled. But looking to the question as to whether the plaintiff was in the tree in violation of law, we can not say that he was. The ordinance of the city clearly contemplates that such persons as obtained permission from the chairman of the street committee might lawfully trim or cut shade trees in the city; and, of course, permission to a principal would be sufficient authority for all agents or helpers working under his supervision. It is true that the ordinance directs that the chairman of the street committee shall state, in the permit, how the work is to be done, and shall direct that it be done under the supervision of the street overseer; but we think that these provisions of the ordinance are merely directory, and that a person who has obtained the permission of the chairman of the street committee could not be convicted of a violation of the ordinance, even though that official omitted to state therein the details referred to. In the present instance the formal permit is written upon a plumber’s blank, and is signed by the city clerk; but, by his endorsement thereon, the chairman of the street committee has also expressed his permission. But even if under this permit the presence of the city sanitary inspector was necessary while the work was in progress, this requirement was in no wise for the benefit of the defendant, and his absence does not give it any better position in the case. See the Platt ease, supra, headnote 2 (c). If the plaintiff stood charged, with a violation of this ordinance, and the facts which appear in this record were before us, we would have to hold that he could not be convicted;, because of his substantial compliance with the-ordinance. His position is entirely different from that of the-plaintiff in the Chapman case, decided this day, for, according to the allegations there, the plaintiff came upon the premises of the-defendant and put himself within the range of a dangerous instrumentality, for the avowed purpose of committing a crime. In the present case the plaintiff, with every intention of obeying the law and after substantial compliance with its terms, went, not upon the premises of the defendant, but upon the premises of a. third person, the city, to do an act which was apparently legal,, and which, so far as the relations between the parties are concerned, was affected with no illegality. The court erred in sustaining the demurrer. Judgment reversed.