Southern Bell Telephone & Telegraph Co. v. Scogin , 136 Ga. App. 318 ( 1975 )

Stolz, Judge.

Plaintiff Scogin sued Southern Bell for damages for personal injuries he sustained when on August 15, 1970, he struck two telephone wires erected and maintained by the defendant over a county road, while the plaintiff and another young man, the driver’s son, were sitting on top of a load of bales of hay which they had loaded onto the driver’s pickup truck from the driver’s fields and which were being transported to the driver’s barn. The driver was made a third-party defendant.

From the showing on the defendant’s motion for summary judgment, it appeared that the wires, which were located "side by side,” varied in height above the roadway from 13 feet 9 inches to 14 feet 8 inches, were erected in 1966 before the road was rerouted thereunder by the county in 1967; that the defendant raised the wires to their present height, which was less than the 18-foot minimum height required by the defendant’s rules, but there were electric transmission lines above, which limited the height at which the telephone wires could be maintained; that the third-party-defendant driver, but not the plaintiff, was aware of the wires’ existence; that the heights of the loaded truck and of the wires were not precisely established, but the truck was approximately 12 feet high from the ground to the top of the load of hay.

The defendant appeals from the denial of its motion for summary judgment. Held:

Under Code § 104-205, the defendant telephone company .had the right to construct, maintain, and operate its telephone lines over the public highway in question, with the approval of the county authorities in charge of the highway, with the proviso that "the posts, arms, insulators, and other fixtures of such lines be so erected, placed, and maintained as not to obstruct or interfere with the ordinary use of such . . . public highways, or with the convenience of any landowners, more than may be unavoidable. ’’(Emphases supplied.) We construe "other fixtures” of the telephone line to include the telephone wires.

Relative to the "ordinary use” issue, Code Ann. § 68-405 (Ga. L. 1941, pp. 449, 450; as amended by Ga. L. 1969, p. 637), in effect at the time of the injury (although repealed by Ga. L. 1973, pp. 947, 1174), provided that "no vehicle unladen or with load shall exceed a height of 13 feet six inches;... ’’(Emphasis supplied.) Under Code Ann. § 68-406 (Ga. L. 1941, pp. 449, 451), then in effect although repealed by Ga. L. 1973, pp. 947, 1174), it was lawful to operate over the highways of this state any vehicle which complied with the provisions as to dimensions and loads, as stated in Code Ann. § 68-405, supra. Conversely, then, a vehicle not in compliance therewith could not lawfully operate on the public highways.

"Ordinary use” of the public streets and highways contemplates, use as provided by law. Stated another way, when the public streets and highways are used in such a manner as to violate the law, such use is not "ordinary.”

"Questions of negligence, diligence, proximate cause, and assumption of risk are generally for resolution by a jury. Likewise, all evidence and inferences therefrom are construed against the movant on motion for summary judgment. These general propositions of law are so established in our law as not to require citation here. Certainly, the issue presented here is not whether the plaintiff was so guilty of contributory negligence as to bar any recovery or whether the plaintiff had voluntarily placed himself in a position of known peril and thereby assumed the risk incident thereto. The question before us is one of foreseeability on the part of [Southern Bell], for in this state negligence, to be actionable, carries with it the concept of foreseeability. Deco Leasing Corp. v. Harvey, 114 Ga. App. 217, 221 (150 SE2d 699); Hulsey v. Hightower, 44 Ga. App. 455, 459 (161 SE 664). That is, it must appear that the alleged negligent condition was such as to put an ordinarily prudent person on notice that some injury might result therefrom. Associated Distributors v. Canup, 115 Ga. App. 152, 153 (154 SE2d 32); Misenhamer v. Pharr, 99 Ga. App. 163 (107 SE2d 875).” Georgia Power Co. v. Carden, 128 Ga. App. 347, 349 (196 SE2d 477), affirmed, Carden v. Georgia Power Co., 231 Ga. 456 (202 SE2d 55).

Paraphrasing the quotation in Georgia Power Co. v. Carden, supra, p. 350, "[w]here the injury is said to be the result of installing the [telephone] line too low over the [public] road, the inquiry must be, not was there a defect in the installation? but was the [telephone] line so installed that normal travel along the [public] road could proceed in the usual manner without injury to those traveling thereon? and was the accident the natural and probable result of the normal use of the road with the [telephone] line so installed that [Southern Bell] could have foreseen the probability thereof? We answer these questions in the negative, for, as was said in City of Brunswick [158 Ga. 792 (124 SE 787)], supra, p. 803, Where an injury results from an alleged defect which is not of itself of such dimensions or character as to make an accident probable, it does not justify the submission to the jury of the question of. . . negligence.’ ”

In this case the telephone lines had been located with the approval of the county authorities. The wires were above the maximum height (13 feet 6 inches) permitted vehicles under Code Ann. § 68-405.

There was no genuine issue of material fact before the trial court for resolution by a jury. It was therefore error to deny defendant Southern Bell Telephone and Telegraph Company’s motion for summary judgment.

Argued May 21, 1975 Decided September 24, 1975 Rehearing denied October 24, 1975 Jones, Cork, Miller & Benton, H. Jerome Strickland, for appellant. Adams, O’Neal, Hemingway, Kaplan, Stone & Brown, H. T. O’Neal, Jr., Manley F. Brown, for appellees.

Judgment reversed.

Bell, C. J., Deen, P. J., Quillian, Clark, Webb and Marshall, JJ., concur. Pannell, P. J., and Evans, J., dissent.