Southern Bell Telephone & Telegraph Co. v. Howell ( 1906 )

LuMPKiN, J.

(After stating the facts.) 1. There was no special demurrer -for want of sufficient fullness in any particular allegation; but the demurrer filed was general in its nature. As against such a demurrer the petition stated a good cause of action. An allegation that a telephone company, while engaged in stretching wires along .a public street of a city, permitted one of them to sag while charged with electricity, or to become heavily charged with electricity while thus sagging, at a place where it was likely, to .injure pedestrians, and gave no warning of the danger arising from such charge, sufficiently stated a ease of negligence to withstand the demurrer. See Jones v. Finch, 128 Ala. 217; Haynes v. Raleigh Gas Go., 114 N. C. 203; Ahern v. Oregon Tel. Co., 24 Ore. 276; Devine v. Brooklyn Heights Co., 1 N. Y. App. Div. 237, 37 N. Y. Sup. 170; Texarkana Gas & Electric Co. v. Orr, 59 Ark. 215; Burns v. Delaware & Atl. Tel. Co., 70 N. J. L. 746, 67 L. R. A. 956. The decision in Read v. City & Suburban Ry. Co., 110 Ga. 165, is in harmony with that- here made. There the plaintiffs, while driving along a street, were injured by a wire which sagged from the poles of a street-railway company. The presiding judge granted a nonsuit, on the ground that they could have avoided the result of the negligence of the defendant, by the exercise of ordinary care; but this judgment was reversed. On a second i^nal there was evidence to show that, as the vehicle was approaching the sagging wire, the employees of the company gave to the occupants repeated warnings of the danger ahead, which were either unheard or ignored, and that these warning were such as necessarily to have attracted the attention of an ordinarily prudent man. The jury found for the defendant, and the judgment was affirmed. Read v. City & Suburban Ry. Co., 115 Ga. 366.

2-3. It is not negligence, as a matter of law, for a pedestrian to cross a public street at a point where there is no crosswalk. In doing so he may “assume a greater risk from passing vehicles and animals using the main thoroughfare than he does when passing over a crosswalk (Brunswick Ry. Co. v. Gibson, 97 Ga. 498-9), but he does not, in doing so, assume anjr greater risk from obstructions other than those necessary for the use of some public utility, such as water-plugs, telegraph and telephone poles, and the like. Even a telegraph or telephone wire, placed so low on a sidewalk or street that a person using the street might come in contact with it, would be an obstruction.” City Council of Augusta v. Tharpe, 113 Ga. 158. In City of Denver v. Sherret, 88 Fed. 235-236, it was said: “The use of the public streets between crossings ‘is not limited solely to animals and vehicles, but may be used by footmen, due caution being exercised. Elliott Roads & S. 622; Moebus v. Herrmann, 108 N. Y. 349, 15 N. E. 415.”

This case differs from those cited on behalf of the plaintiff in error. Thus, in City of Columbus v. Griggs, 113 Ga. 597, a street was rendered unsafe by reason of certain work which had been done in it. Two persons, with full knowledge of the situation, which was palpably and obviously dangerous, undertook at night to drive over the place where the street had been worked. They not only knew of the situation and danger, but discussed it a "few moments before the catastrophe happened. In Barfield v. Southern Ry. Co., 118 Ga. 256, plaintiff’s own evidence showed that he undertook to drive under a low trestle with which he was perfectly familiar, and to avoid injury by crouching in his wagon. His mules became frightened and made a lunge which threw him upward, and he was hurt. None of the other decisions relied on by the plaintiff in error were in eases similar to that at bar. The plaintiff alleged that he was without fault or negligence in the transaction, and wa^ in the exercise of due care and diligence; and upon-general demurrer we can not declare that this was untrue. There are no facts set out in the declaration which disprove the statement. Dempsey v. Borne, 94 Ga. 420; Central Ry. Co. v. Weathers, 120 Ga. 475, 477; Seaboard Air-Line Railway v. Pierce, Id. 230; Hudgins v. Coca Cola Bottling Co., 122 Ga. 699.

Judgment affirmed.

All the Justices concur.