Welch v. City of Camilla ( 1952 )

Carlisle, J.

In operating an electric-light-plant, furnishing electricity for profit, a city is engaged in a private, non-governmental business, and is liable to one injured through the negligence of its employees in the location of its transmission lines. Adepe v. City of Thomasville, 9 Ga. App. 880 (72 S. E. 478); Carruthers v. City of Hawkinsville, 171 Ga. 313 (155 S. E. 520); City of Dublin v. Ogburn, 142 Ga. 840 (83 S. E. 939).

“As the owner and operator of an electric lighting system, it is the duty of a municipality to exercise the diligence and care commensurate with the dangers of the force it is handling, in order to prevent injury to those engaged in their various pursuits and employments, in the same manner as is required of an individual or private company.” 18 Am. Jur., 438, § 42.

In Georgia Power Co. v. Leonard, 187 Ga. 608, 613 (1 S. E. 2d, 579), quoting from 2 Cooley on Torts (3d ed.), 1492, it is said: "Electricity is an invisible impalpable force highly dangerous to life and property, and those who make, distribute, use, or handle it are bound to exercise care in proportion to the danger involved.”

“While a high degree of care to prevent injury is required of one maintaining a highly dangerous instrumentality, such as electricity, where other persons are likely to come in contact with it, this does not in any way affect the rule that the person maintaining such instrumentality is required to exercise only ordinary care. Ordinary care is only that reasonable care and caution which an ordinarily cautious and prudent person would exercise under the same or similar circumstances.” Jackson v. Goldin, 26 Ga. App. 283 (106 S. E. 12).

Omitting the question of the defendant’s status as an alleged trespasser with respect to the property owner, the Camilla Cotton Oil Company, as that relationship between them would seem to have no real bearing upon the duty owed the plaintiff’s husband who was an employee of the property owner, we take it to be the general rule that—since high-tension transmission wires are one of the most dangerous instrumentalities known to man, the current being deadly and the ordinary person having no means of knowing whether any particular wire is carrying a deadly current or is harmless—one maintaining an instrument so insidiously deadly as an uninsulated high-tension power line is bound to see that no injury comes to persons rightfully in proximity to it, or to persons whom he may reasonably anticipate will come in proximity to it, and who are themselves guilty of no'wrong. City of Albany v. James, 39 Ga. App. 379 (147 S. E. 396).

Under the facts alleged in the petition and an application of the foregoing principles of law, the petition stated a cause of action, and the trial court erred in sustaining the general demurrer thereto. It is alleged that the defendant strung its high-voltage transmission wires in dangerous proximity to the oil storage tank of the Camilla Cotton Oil Company at a time when it knew or should have known that the employees of the oil company had for years frequented the top of the tank, using a 25-foot metal pipe to measure the quantity of oil therein at the end of each work shift; and that the defendant reasonably should have anticipated that these employees would come in contact with the uninsulated, high-tension wire when strung so dangerously near the tank. The tank was round with a diameter of 16.1 feet. Its height from the ground to the lower edge of a cone-shaped top was 20.6 feet, and its height from the ground to the apex of the cone-shaped top was 23.9. A ladder 25.3 feet in height, extending above the tank, was attached to the tank on its' west side. The transmission wires, of which there were two, were strung in an easterly and westerly direction on the north side of the tank. The southernmost of these wires was 11.58 feet from the edge of the tank and 15.37 feet from the center of the ladder on which Mr. Welch was standing, but approximately 10 feet from the point on the ladder at which Mr. Welch was standing at the time he was electrocuted. The wire was 30.8 feet above the surface of the ground. While the height of the wires from the ground might be said to make them safe as to persons working on the ground, because it was not reasonably foreseeable that the work of such persons on the ground would ordinarily bring them within the dangerous ambit of the wires, we can not say as a matter of law, under the circumstances alleged here, that the defendant could not reasonably have foreseen that one of the employees of the Camilla Cotton Oil Company, to which class Mr. Welch belonged, might touch the high-tension transmission wire with the 25-foot measuring pipe when that wire was located as close as 10 feet from employees performing such operation. Nor can we say that the plaintiff’s husband, under the circumstances alleged, was so contributorily negligent in allowing the metal measuring pipe to touch the high-tension transmission wire which he did not know was uninsulated and of high voltage. As was said in Graham v. Sandhill Power Co., 189 N. C. 381 (127 S. E. 429) and cited with approval in Clinton v. Gunn-Willis Lumber Co., 77 Ga. App. 643, 648 (49 S. E. 2d, 147): “A company maintaining an electric line, over which a current of high and dangerous voltagé passes, in a place to which it knows or should anticipate others lawfully may resort for any reason, such as business, pleasure or curiosity, and in such manner as exposes them to danger of contact with it by accident or inadvertence, is bound to take precaution for their safety by insulation of the wire or other adequate means.”

Judgment reversed.

Gardner, P.J. and Townsend, J., concur.