Opinion
49990.
ARGUED JANUARY 9, 1975.
DECIDED JANUARY 29, 1975. REHEARING DENIED FEBRUARY 19, 1975.
Action for damages. Morgan Superior Court. Before Judge Duke.
Levine Roane, Irwin M. Levine, for appellant.
Jones, Cork, Miller Benton, Wallace Miller, Jr., W. Warren Plowden, Jr., for appellees.
1. "In our present mode of living in Georgia, in a society in which the transmission of electricity is an absolute necessity for our economic, social, and cultural well-being, we hold that the mere maintenance, without more, of high tension lines at the minimum height shown by the evidence in this case does not create any risks within the scope of the duty owed as hereinbefore defined. In short, the mere maintenance, without more, of high tension wires at a minimum height of twenty-four feet four inches above a traveled roadway is not actionable negligence." Carden v. Ga. Power Co., 231 Ga. 456 ( 202 S.E.2d 55); Ga. Power Co. v. Williams, 132 Ga. App. 874 ( 209 S.E.2d 648).
2. "The duty to keep premises safe for invitees applies to defects or conditions which are in the nature of hidden dangers, traps, and the like, in that they are not known to the invitee and would not be observed by him in the exercise of ordinary care." Day v. Trion Co., 56 Ga. App. 1 ( 192 S.E. 88).
3. A finding for the defendant is demanded in an action by an invitee against the owner of realty where it is undisputed that both the plaintiff and the defendant had knowledge of the alleged defect which caused the injury, and that by the exercise of ordinary care the plaintiff could have avoided the injury. McGeeney v. Robertson, 102 Ga. App. 318 ( 116 S.E.2d 252).
4. "Ordinarily, foreseeability is a question of fact for the jury. Hicks v. M.H.A., 107 Ga. App. 290, 293 ( 129 S.E.2d 817). Nevertheless, where the evidence on the issue of negligence `is palpably clear, plain and indisputable,' the court will resolve the matter without the intervention of a jury. Bolden v. Barnes, 117 Ga. App. 862 ( 162 S.E.2d 307); Benefield v. McDonough Const. Co., 106 Ga. App. 194 ( 126 S.E.2d 704). See e. g. Williams v. Gibbs, 123 Ga. App. 677 ( 182 S.E.2d 164); Daneker v. Megrue, 114 Ga. App. 312 ( 151 S.E.2d 157); Moses v. Chapman, 113 Ga. App. 845 ( 149 S.E.2d 850)." Ga. Power Co. v. Williams, 132 Ga. App. 874, supra.
ARGUED JANUARY 9, 1975 — DECIDED JANUARY 29, 1975 — REHEARING DENIED FEBRUARY 19, 1975.
Appellant's husband was delivering a load of bulk feed to the farm of Mr. Saffold for his employer, Spartanburg Grain and Feed Company. He had been delivering feed to this farm approximately every week for the preceding twelve months. The truck in which this feed was delivered was equipped with a feed body and a boom twenty-four feet long mounted on the back of the truck which was used to unload the feed into a feed bin located adjacent to Saffold's barn. This boom came in contact with an electric wire and plaintiff's husband was killed.
On the date in question, the Saffold farm was served electric current by Central Georgia Electric Membership Corporation. The electric distribution system consisted of two wires that ran from the primary line to a pole located on the Saffold Farm. They had been installed in 1953. The top wire was more than 24 feet above the ground and carried a current of 7,200 volts. The bottom wire was a neutral wire and would not injure a person if touched. The higher wire, if touched by a person would cause death or serious injury.
The distance from the base of the feed bin and the wires involved in the incident is 37 feet. On the day of the accident, the truck was parked in an unusual manner, in a position not customarily used by plaintiff's decedent. In this position, the boom was directly underneath the wires. The electric wires pass across the property at an angle to the barn, and there are at least two positions in which the truck could have been parked for unloading so as to increase the distance between the base of the feed bin and the electrical wires. These two positions were the positions normally used by plaintiff's decedent in unloading his feed truck.
The wires had been placed on the property by the power company and neither Saffold nor his agents or employees had done any installation, maintenance, alteration or repair on the wires.
Both Central Georgia Electric Membership Corporation and Saffold moved for summary judgments, which were granted and plaintiff appeals.
The case against Central Georgia Electric Membership Corporation is controlled adversely to appellant by the rulings in Carden v. Ga. Power Co., 231 Ga. 456, supra; and Ga. Power Co. v. Carden, 128 Ga. App. 347 ( 196 S.E.2d 477); and by Ga. Power Co. v. Williams, 132 Ga. App. 874, supra.
The judge's order in the case against S. J. Saffold, Sr., reads in part as follows: "It seems clear that an essential element of actionable negligence is foreseeability (that injury would have resulted) which would have required Saffold as the landowner to warn the deceased of likely injury or a fatality under the existing situations in this case. Hulsey v. Hightower, 44 Ga. App. 455 ( 161 S.E. 664). The determination is to be made according to the circumstances that existed at the time of the injury. Pfeifer v. Yellow Cab Co. of Atlanta, 88 Ga. App. 221 ( 76 S.E.2d 225); Daneker v. Megrue, 114 Ga. App. 312 ( 151 S.E.2d 157). And there would have to be something to show that a warning was needed because unknown to Plaintiff's husband.
" `The duty to keep premises safe for invitees applies to defects or conditions which are in the nature of hidden dangers, traps, and the like, in that they are not known to the invitee and would not be observed by him in the exercise of ordinary care.' (Emphasis supplied.) Day v. Trion Company, 56 Ga. App. 1, supra.
"A finding in favor of a defendant or the sustaining of a Motion for Summary Judgment by defendant are both proper, demanded and required where both the Plaintiff and Defendant, Saffold, had knowledge of the alleged defect which caused the injury (and which could have been avoided by the exercise of ordinary care by the plaintiff's husband himself and where no material issue of fact remained for determination because of the deceased's familiarity with the premises. McGeeney v. Robertson, 102 Ga. App. 318 and Mattison v. Jackson-Atlantic, 129 Ga. App. 279. Defendant Saffold had no superior knowledge of any defect of which he should have warned, or was under the duty to warn, the deceased as a part of owner Saffold's ordinary diligence."
With this we agree.
Judgment affirmed in each case. Quillian and Clark, JJ., concur.