In McCullough v. Georgia Power Co., 81 Ga. App. 293 (58 S.E.2d 505), the pipe being lifted from the well was 43 1/2 feet long, and the high tension line was 27.76 feet from the ground and 38 feet from the well.Summary of this case from Gilbert v. Ocmulgee c. Corporation
DECIDED MARCH 17, 1950. REHEARING DENIED MARCH 29, 1950.
Action for damages; from Clayton Superior Court — Judge Guess. November 12, 1949.
Israel Katz, David Gershon, W. Neal Baird, Neely, Marshall Greene, for plaintiff in error.
Allen E. Lockerman, MacDougald, Troutman, Sams Schroder, contra.
The facts alleged in the plaintiff's petition did not set out a cause of action for negligence against the defendant Georgia Power Company.
DECIDED MARCH 17, 1950. REHEARING DENIED MARCH 29, 1950.
Mrs. Doris Nell McCullough sued the Georgia Power Company for the death of her husband and in her petition alleged: that the scene of the petitioner's husband's death is on the south side of Barnett Road in Clayton County on the property of W. P. McCullough, father of the petitioner's husband and referred to as the McCullough property; that in about 1935 the defendant ran electric wires down the south side of Barnett Road putting its poles and wires by right of easement on the property immediately adjacent to the south side of Barnett Road and including the McCullough property; that W. P. McCullough bought such property in 1941; that the home on the McCullough property and the well-house in front of said home are at the crest of a hill, Barnett Road declining sharply in both directions away from said hill-top; that said well-house is a small building about eight feet by eight feet in size, about eight feet high and about twenty-five feet from the nearest point of Barnett Road; that at the time the defendant put up its electrical wires and poles in about 1935, the well-house and well underneath were in the same position they were in at the time of the petitioner's husband's death; that the defendant, in stringing up its electric wires along the properties on the south side of Barnett Road, put them up so that the wire through which it ran its strongest and most dangerous current of approximately 2300 volts was an average of 33.86 feet above the ground except in front of the McCullough property, in the front yard of which the well and well-house were located; that at such point the height of the defendant's lines was only 27.76 feet; that the wire carrying the 2300 volts was naked and uninsulated; that the well-pipe in the well was approximately one and one-half inches in diameter and approximately forty-three and one-half feet long; that the defendant's wires were only twenty-five feet from such well-house; that in the normal operation of such wells as that located on the McCullough property and in the community where such property is located it becomes necessary from time to time to remove the pipe from the well in order to repair it or replace attachments on the bottom thereof; that such pipes come in sections approximately twenty feet long and are coupled together by unions, which pipes and unions, after they have remained in the dampness of a well for several years become rusted or "frozen" together so that it is often impossible for laymen working with ordinary tools, to separate them, especially while the pipe is in the ground; that it is customary, usual and normal in the vicinity for the owners of such wells to clean them out and to remove the pipes located therein themselves with such assistance as may be given by their neighbors, using ordinary tools and equipment and such mechanical skill as they themselves possess; that the defendant was aware of such practice and had reason to anticipate that the well in question would be cleaned out or repaired in such manner; that most of the defendant's wires along such point carried 115 volts which was introduced by it into the homes in the vicinity including the home on the McCullough property; that the wires carrying 115 volts were completely insulated; that the petitioner's husband and those working with him on the morning of the death were laymen wholly unfamiliar with high tension electrical equipment to whom there was and is no difference in appearance between the wires that carry current of 115 volts and the one carrying current of 2300 volts; that the defendant did not, either at the time it installed said wires or at any time thereafter, post any warning or signs of caution on its poles or anywhere else in the vicinity, or do any other acts, to warn the members of the community of the presence of a wire carrying electric current of 2300 volts; that shortly before the fatal happening, the deceased and W. P. McCullough became aware that the well needed cleaning and repairing since it had run dry and presumably the foot valve at the bottom of the well had become so clogged up and tightly held that no water was coming into the pipe; that on the morning of August 17, 1946, at about 9:30 a. m., W. P. McCullough, with the deceased and a neighbor named Homer E. Seay, undertook to pull the well-pipe out of the well in order to unstop the foot valve at the bottom of the well; that the well-pipe, which was approximately 43 and 1/2 feet long overall, included, in addition to the galvanized iron pipe joined together by a union, which, because of their having been in the ground for more than ten years, had become rusted and "frozen" together so that the McCullough and Seay were unable to separate said sections before removing them from the well and had to pull the entire pipe up and out of the well in order to repair the attachment on the end thereof; that in order to allow the well-pipe to come out and in order to support the pipe as it was pulled out of the shaft, a hole about three inches in diameter was cut in the top of the well-house and the pipe was drawn up and out of such hole until only about three inches of the well-pipe was still in the ground, and about 35 feet thereof extended above the top of the well-house at the time of the fatal occurrence; that when a substantial portion of the pipe had been pulled out of the ground, the said Homer E. Seay got on top of the well-house to guide and support the pipe as it came through the hole while the deceased and his father stayed below in and by the well-house entrance, standing on some 2 by 6 inch boards laid across the well opening, holding on to the pipe, pulling it out of the ground; that when all of the well-pipe except the bottom few inches had been pulled out of the well, said pipe at a point of approximately six inches from the top thereof came in contact with the defendant's high-power line, the 2300 volt current carried on the external surface of such line was conducted through the pipe to the body of the petitioner's husband causing his death; that at the time of such occurrence the deceased and those working with him had no knowledge that one of the wires on the defendant's poles carried such high voltage and that they had never been put on notice of such fact; that the deceased was engaged in lawful work reasonably necessary to the proper use of the property on which he lived and was in the exercise of reasonable care and prudence while doing such well-repairing; that defendant knew that the well was within approximately 38 feet from its high-power line and that the pipe within the well, together with the attachment at the end thereof, was approximately 43 and 1/2 feet long and that such well was in continuous use; that the defendant, through its wide experience with wells in the sections where it does business, is, and at all times since the erection of its wires adjacent to the McCullough property, has been familiar with the need of removing well-pipes periodically for the purpose of cleaning and repairing them; that the defendant was at all times obligated to make adequate provisions so that whenever such activities were undertaken the persons undertaking them would not be exposed to hazard from its high-power electric line; that the proximate cause of the death of the deceased was the failure of the defendant company to take such reasonable precautions to avoid the type of injury through which the deceased met his death; that the combination of circumstances which resulted in the death of deceased was such as should reasonably have been anticipated at the time the defendant company erected its highpower line, and continuously thereafter, since in the area served by it, both prior to the erection of said line and continuously since then, it has experienced a number of deaths through similar occurrences; that the defendant used no precautions to prevent injuries that might be sustained by those living on the McCullough property and others who might rightfully be thereon as a result of the presence and operation of said high voltage electric power; that the place at which defendant had its high-power line the lowest in height was the very place of greatest danger on all of Barnett Road, it being the closest point to any well-house or other likely hazard in that vicinity, as was clearly visible to the engineers of defendant at the time the defendant installed said high-power line and has at all times subsequent thereto been visible to said defendant and its engineers and employees; that the defendant had never warned said persons nor had they otherwise been put on notice that the high-power line was different from the defendant's other wires in that it carried a much more dangerous kind of electricity and that it carried it on its outside surface where the slightest contact therewith would in all probability prove fatal; that the defendant owed to persons living on or occupying property over which it ran its lines the duty of exercising adequate precaution to prevent contact with its high voltage line while the said persons were engaged in lawful pursuits on said land; that the manner of handling the enormous voltage carried on its said line amounted, on the part of the defendant, to a failure on its part to measure up to its duty to exercise the degree of care required by law of those who undertake to handle and control a force so powerful and subtle as 2300 volts of electric current carried, without warning or notice, across private property where people reside; that the defendant was specifically negligent in the following particulars: in that it erected its high-power line at an insufficient height in respect to the well-pipe in the well-house on the McCullough property; in that it failed to shield its high voltage wire so as to prevent such high voltage from being carried on the outside surface thereof; in that it failed to give personal warning or cautions concerning the inherent dangers of the high voltage wire; in that it failed to notify persons residing in the vicinity of its high-powered line, including the deceased, of the degree of voltage present in its lines; in that it failed to post any notices or warning signs on its poles along the line or at any conspicuous point in the vicinity where the injury occurred; in that it failed specifically to inform the well owners and occupants of adjoining property containing well-shafts of the voltage of the highpower line, the inherent dangers therein and the possibility of injury in connection therewith; in that it failed to maintain its high-power line at its average or proper height adjacent to the McCullough well-house; in that it failed to distinguish to the adjoining owners or occupants in any way its 115 and 2300 volt lines; in that it failed to take adequate precaution to prevent contact with its high-voltage lines by persons living on the property over which the line passed; in that it did not place a sign on the McCullough well-house or have the owner thereof to place a sign giving instructions as to the removal of the pipes in view of the presence of its high-power wire. The defendant filed a general demurrer to the petition which was sustained and the plaintiff excepts.
This is an unusual case in that instead of alleging facts showing probable general negligence of the defendant by reason of such facts, on the theory that if the defendant was negligent it would be immaterial how the injuries occurred or that they occurred in a way which might not have been actually anticipated, the plaintiff seeks to allege a case by showing facts which ordinarily would not constitute negligence, but which are deemed to be sufficient to carry the case to the jury on the theory that the particular kind of injury here involved should have been anticipated including the contributory negligence of the person injured or those working with him. Unless the petition alleges facts which charge the defendant with the duty of anticipating that an attempt would be made to extract the pipe without disconnecting it and that those working with the pipe would be negligent in handling it, it would not set forth a cause of action because it would show no reason why the defendant owed anyone a duty to insulate the wires or put them higher from the ground under the facts alleged. The allegations on this question do not specifically contain the statement that the defendant knew that the pipe might be taken from the ground without being disconnected, but if they did, it is not alleged that the defendant should have known that the men working with the pipe would negligently permit it to get out of control and come in contact with the electric wires. We recognize the rule that if the defendant was negligent its negligence would still be a contributing proximate cause even if the men working with the pipe were negligent, provided the defendant is charged with the duty of anticipating the concurring negligence. We think the petition is defective in this particular. It does not allege facts charging the defendant with the duty of anticipating the negligence of the men working with the pipe. It is alleged that the defendant knew of similar accidents in other States and in areas served by the defendant but this allegation is to general and uncertain for the purpose intended and the similarity is construed simply to mean that they involve cleaning wells. Such a general allegation cannot be construed on demurrer to mean that the similar incidents were identical in every particular with the facts of this case. A similar incident could be one where the electric company built its line too close to the ground, contrary to good safety practice and regulations, and where there was no negligence on the part of others. Boiled down, such an allegation simply does not mean that because there have been injuries in other cases involving cleaning of wells the defendant here is charged with anticipating that men removing a forty-foot pipe will let it get away from them and fall on a highly charged wire. The fact that the height of the wires on the property here involved was 27.76 feet and at other places was above 33.86 feet is irrelevant in the absence of an allegation of facts to show that placing them at a height of 27.76 feet was negligence. In this case the alleged duty to anticipate negligence is the sole foundation of the alleged negligence of the defendant. We do not think the petition sets forth a cause of action. The following cases lend substantial support to this conclusion: Webb v. Louisiana Power Light Co., (La.) 199 So. 451; Welsh v. Gulf States Utilities Co. (La.) 32 So.2d 723); Roberts v. Missisippi Power Light Co., 193 Miss. 627 ( 10 So.2d, 542); Arkansas Power Light Co., v. Prince, 215 Arkansas ___ (219 S.W.2d, 766). Plaintiff in error cites numerous cases. They are all distinguishable on their facts. We will distinguish only those warranting consideration. In Sedlmeyr v. Fitzgerald, 140 Ga. 614 ( 79 S.E. 469), the defendant municipality had actual notice that the house which came in contact with its wires was to be moved. In Clinton v. Gunn-Willis Lumber Co., 77 Ga. App. 643 ( 49 S.E.2d 143), there was a changing condition from day to day, i.e., the building up of the sawdust pile toward the defendant's wires, while in the instant case the situation had remained static since the erection of the wires. The case of Greenwood v. Eastern Oregon Light Power Co., 67 Ore. 433 ( 136 P. 336), concerned a situation where the defendant had strung its wires across a highway at a height of 30 feet above the surface of such highway in a locality where hay derricks of the kind and height involved were in common use upon such highway. In Card v. Wenatchee Valley Gas Electric Co., 77 Wn. 564 ( 137 P. 1047), the defendant's wires were strung over the plaintiff's land at a height of 17 feet above the ground in an area where irrigation using pipe in 20-foot sections was common. In Braun v. Buffalo General Elec. Co., 200 N.Y. 484 ( 94 N.E. 206), the neighborhood in which the defendant's wire was strung had changed materially in its nature to that of a residential section since the erection of such wire and the court charged the defendant with notice of such gradual change. In Neumann v. Interstate Power Co., 179 Minn. 46 ( 228 N.W. 342), the defendant's high voltage wire was 19 feet above the ground in a populated village and ran near a cess-pool that had to be cleaned out frequently and there were facts showing notice to the defendant through its agent that such cess-pool had been cleaned out in a manner like that used when the fatalities occurred. Too, the defendant had been warned by the municipality two years before to post warning signs of such dangerous situation. Cooper v. North Coast Power Co., 117 Ore. 652 ( 244 P. 665), presented a situation where the defendant's wires were strung immediately over a tree with low branches easily accessible for climbing and located in a public picnic spot frequented by many children. The cases of Walpole v. Tenn. Light Power Co., 19 Tenn. App. 352 ( 89 S.W.2d 174), and Green River Rural Electric Co-op Corp. v. Blandford, 306 Ky. 125 ( 206 S.W.2d 475), involved situations where the defendant's wires were strung through trees near the well-houses being cleaned out. In Sullivan v. Alabama Power Co., 246 Ala. 262 ( 20 So.2d, 224), the defendant's wire was strung 20 feet 5 inches above the ground in a unique farming settlement, a Farm Security Administration venture for small farm homes, which contemplated farming on the premises. Hay wagons loaded with hay had to traverse a way under the line to the road. The court there said: "In fact, we draw a substantial inference from the testimony of some witnesses that, near the house and as it crossed the premises, the line elevation from the ground was below the minimum requirements of the National Electric Safety Code approved by the Federal Bureau of Standards, which alone presented a question of negligence."
The court did not err in sustaining the general demurrer to the petition.
Judgment affirmed. Sutton, C. J., and Worrill, J., concur.