Opinion
37467.
DECIDED JANUARY 28, 1959. REHEARING DENIED FEBRUARY 9, 1959.
Action for damages. Fulton Superior Court. Before Judge Shaw. October 10, 1958.
Smith, Kilpatrick, Cody, Rogers McClatchey, Jack Paul Etheridge, Welborn B. Cody, for plaintiff in error.
Lewis Lewis, T. J. Lewis, Jr., Robt. M. McCartney, contra.
Since the defendant did not renew original demurrers or file a renewed demurrer to the petition as amended, the petition occupies the status of an undemurred-to petition, and since the case was proved as laid by the plaintiff in his petition, the court did not err in denying the motion for a judgment notwithstanding the verdict.
DECIDED JANUARY 28, 1959 — REHEARING DENIED FEBRUARY 9, 1959.
William Y. Brackin, Jr., a minor, by and through his next friend, sued Southern Bell Telephone Telegraph Company for damages to his eye allegedly caused by the negligence of the defendant. The petition with its several amendments alleged in substance that the minor, age seven years, was injured on June 22, 1955, while playing in his yard when he discovered a piece of coiled wire approximately three or four feet long which was left there with other debris by the employees of the defendant after they had completed work on telephone lines running alongside the premises occupied by the boy and his family. The petition further alleged that the work had been completed between June 1 and June 7, 1955, and that following such completion the telephone employees left the vicinity and made no inspection of the area where the work had been performed, with the result that wire and other debris was allowed to accumulate under the telephone lines and over the plaintiff's yard; that the piece of wire in question, when cut with wire cutters, left the ends sharp; that while the plaintiff was playing with the wire it slipped and struck him and injured his eye; that the employees of the telephone company knew that children were playing in the vicinity at the time they were doing their work and that such pieces of wire were dangerous and would be attractive to children of tender years and that the employees knew or should have known that the probable consequences of leaving such wire would be that one of such children would be injured in playing with it.
At the conclusion of the evidence counsel for the defendant in the trial court moved for a directed verdict substantially on the grounds that the evidence did not support a verdict for the plaintiff and demanded a verdict for the defendant. The motion was denied, and the jury found for the plaintiff. The exception here is to the denial of the motion by the defendant in the trial court for a judgment notwithstanding the verdict.
1. The petition sought recovery of damages on the theory that the wire left on the premises was an attractive nuisance. After material amendments to the petition, the original demurrers were not renewed nor an additional demurrer filed. In such a case the petition insofar as questions as to its sufficiency are concerned stands as one not demurred to. Cain v. Phillips, 211 Ga. 806 ( 89 S.E.2d 163). It follows that if the evidence would authorize the jury to find that the case was proved as laid the plaintiff was entitled to a verdict as against a motion for a directed verdict on the grounds that the verdict and judgment were contrary to the evidence and without any evidence to support them and as against a motion for a judgment notwithstanding the verdict based on the grounds of the motion for a directed verdict. Washburn Storage Co. v. Elliott, 98 Ga. App. 81 ( 104 S.E.2d 697).
2. We think that the jury was authorized to find that the case was proved as laid. The plaintiff in error contends that the case was not proved as laid and we shall endeavor to demonstrate that the contention is without substantial merit.
The plaintiff in error contends that there was no evidence to show that the wire was left on the premises of the minor's father for the reason that the minor testified that he "took it in the yard and started to play with it." The evidence contained photographs which are not a part of the record and it is possible that the testimony in the case together with the photographs could have shown that the wire was picked up on the premises of the child's father. The plaintiff also contends that the evidence did not authorize the finding that the telephone company employees were the ones who left the wire on the premises because the Georgia Power Company and employees of a grading contractor, both of whom were working on both sides of the street, might have left the wire, and they contend that the evidence shows that there was a great deal of other debris, including barbed wire and other kinds of scrap, left in the vacant lot adjoining that of the plaintiff's father. The evidence authorized the finding that the telephone company's employees left the wire on the premises involved because the evidence shows that the other employees of other parties were not working close to or on the premises of the plaintiff's father. The fact that there was debris on the adjoining lot which did not include the kind of wire involved in this case does not exclude the idea that the telephone company employees left the wire on the premises involved. The plaintiff in error contends that the wire in question when cut with sharp wire cutters would not leave a dangerous and sharp edge. There was some testimony in the case that such a cutting might leave a sharp edge and in addition to this fact the jury had in its possession a piece of wire at least similar to the one by which the child was hurt and might have ascertained that the end of such a wire was capable of inflicting the injuries whether the end of the wire was sharp or not. Furthermore, the evidence of the telephone company relating to the sharp edge on the wire related to only one end of the wire. The plaintiff in error contends that there was no evidence that the wire was curved in a coil for the reason that the minor testified that it was not rolled up in a roll. However, the child testified that there was a loop in the wire. It is true that the child also testified that he did not know whether the wire introduced in evidence was the wire which hurt him. However, he testified that the wire which hurt him was similar to the one introduced in evidence without objection. There was testimony from the telephone company employees that the work at this place was completed on May 7, 1955, but there was evidence to the contrary. The evidence showed that the wire in question was similar to that used by the employees of the telephone company.
Without going into detail, it seems to us clear that the evidence authorized the finding that the wire introduced in evidence or a similar wire was negligently left on the premises, and in general that the case was proved as laid in the petition. It was, therefore, accordingly not error for the court to deny the motion of the telephone company for a judgment notwithstanding the verdict.
Judgment affirmed. Quillian and Nichols, JJ., concur.