The court erred in granting a summary judgment for the defendant.
This is an action for damages for personal injuries sustained in contacting one of the defendant power company's high voltage electrical wires, resulting from the defendant's alleged negligence. The complaint, as finally redrafted and amended, alleged substantially as follows: The plaintiff was employed by a company engaged in loading gravel from a rock quarry on trucks for stockpiling. Unknown to the plaintiff, more than three months prior to his injury the defendant had strung four uninsulated electric wires 24 to 26 feet from the ground between two poles n the work site. The bottom three wires carried 26,500 volts phased to ground and the top wire was neutral. The plaintiff was on the end of the 23-foot boom of a diesel shovel which was raised so that he was between 26 and 28 feet above the ground. As the shovel operator attempted to drive under the wires, the plaintiff's arms, hands and chest made physical contact with the lowermost wire, inflicting on him an electric shock with alleged serious and permanent injuries. The plaintiff did not know that said wires were uninsulated and carried a dangerous amount of electricity and in the exercise of ordinary care could not have discovered this or avoided the shock. Approximately 150 feet from said wires, the defendant had installed another power line approximately the same distance from the ground, which the plaintiff and the shovel driver knew to be insulated. Due to the height of the shovel booms, it was necessary and customary for some employees to ride atop the boom to raise the insulated wires over the boom, which custom was known to the defendant. The defendant's alleged negligence consisted of maintaining uninsulated, live, high voltage electrical wires at the height of only 24-26 feet above the ground, with a live wire on the bottom, rather than the top, and an insulated set of wires in the vicinity, and in not giving any warning notice or turning off the electricity or raising the wire to a minimum height of 40 feet, defendant having been on notice for more than 3 months that said place was a gravel loading site where diesels with long and high booms and workmen would operate.
The defendant filed a motion for summary judgment, supported by a deposition of the plaintiff and six affidavits. In opposition to the motion, the plaintiff filed one affidavit. The showing tending to support the motion was as follows: The plaintiff deposed that he had been with that same shovel while it had gone back and forth underneath both sets of wires once or twice prior to his injury and, although he had lifted up two of the three wires situated on the upper part of the hill each time the shovel passed underneath them, he had never previously found it necessary to lift up any of the wires situated on the lower part of the hill (from which he received the shock); that he did not recall having ever seen anyone lifting the wire which shocked him; that the only person he remembered seeing lifting the uphill set of wires was the oiler before him, who used a forked stick even on those wires, which were insulated with a rubber coating; that, when he lifted the wires on the upper part of the hill, his procedure was to walk up to the wires, stop, climb up the boom and lift them across and over the boom, but on the occasion of his injury on the downhill set of wires, he climbed up the boom before it had reached the wires and stopped, for some reason which he could not remember.
Rufus Lee Copeland, a construction worker who witnessed the injury from a distance of 150 feet, deposed that he saw the plaintiff standing up near the end of the boom as it was moving up an incline toward the electric wire that he contacted, with about half of his body above the end of the boom; that the plaintiff did not reach out or extend his arms as though he was going to touch or lift the wire that he contacted; that the boom itself was low enough to pass under the wire; that, as the plaintiff's chest contacted the bottom wire, he saw a ball of fire and the plaintiff fell to the ground; that he had no idea why the plaintiff was standing up on the boom as it moved toward the electric wires.
Odell Clampitt, the driver of the shovel on which the plaintiff was injured, deposed that he had driven his shovel under the set of wires on which the plaintiff was injured 10 or 15 times and had never had to lower his boom to do so; that the plaintiff had been with him on a number of these occasions; that his brother, Warren, who operated another shovel, always operated his boom about 3 or 4 feet higher than he did; that Warren was about 75 feet ahead of his shovel and had lowered his boom to go under the wires in question; that, as the deponent started to go toward the same wires, he saw the plaintiff climb about halfway up his boom and he warned him not to go any further up because of the danger of falling due to the jerky vibrating movement of the shovel and the danger of the electric wires; that "we" had just finished talking about the danger of the wires and it just did not enter his mind that he would go on up the boom; that about that time, his shovel veered slightly into a ditch and, while concentrating on the road, he did not know the plaintiff had climbed on up the boom; that he did not see the plaintiff again until after the shock occurred and his position at that time indicated that his feet had been about two feet from the end of the boom; that, about an hour later, he "walked" his shovel under these same wires and there was "at least 3 feet" of clearance between the bottom wire and the top of the boom.
Warren Clampitt and Arnold Seabolt deposed to substantially the same effect as did the other deponents.
Thomas M. Gregory, a fellow employee of the plaintiff who was walking alongside the shovel at the time the plaintiff was injured, deposed additionally that the first set of wires they came to as they went up the hill was higher from the ground and of higher voltage than the upper set; that, while they were waiting for Warren Clampitt's shovel to lower its boom and go under the first set of wires 50 - 75 feet ahead of them, deponent, the driver and the plaintiff were all three discussing the danger of contacting any of the electric wires; that, at the time the plaintiff was shocked, he was standing with his knees at about the end of the boom, with the balance of his body extended thereabove; that the plaintiff was about 5 feet 10 inches to 6 feet tall; that he did not realize when the plaintiff first got on the boom that he was going as high as he did; that the boom itself was sufficiently low to clear the bottom wire that the plaintiff contacted. Defendant filed an affidavit identifying all attached copy of its easement for the right of way for the transmission line involved.
The showing tending to oppose the motion was as follows: The plaintiff deposed that he had lifted the uphill set of wires across the boom before and had witnessed another "oiler," as the plaintiff's job was designated, do the same; that he had never paid any attention to the downhill set of wires, didn't know they were high tension wires and thought they were insulated like the other set; that, although he had been with the shovel as it had passed back and forth underneath both sets of wires, he had probably been walking alongside the shovel previously, rather than riding up on the boom; that it saved a lot of work and trouble in lowering the boom simply to lift the wires up about a foot across the top of the boom, as they were accustomed to doing on the insulated, uphill set of wires; that his job as oiler was to clear the shovel's way of rocks and lift low wires over the boom; that, due to his injury, he could not remember many of the details of that occurrence or other events for four days thereafter.
Odell Clampitt deposed that, at the time of the accident, there was great noise at the premises caused by the running of the motors of his own and his brother's diesel shovels and much other heavy machinery; that his instructions to the plaintiff, "don't go up until we get to the other wires," had reference to the rough road and the jolting ride, rather than the danger of the wires; that the plaintiff had replied that he could hang on, whereupon deponent drove the shovel forward at about 1 m.p.h. toward the wires; that the shovel veered into a ditch and he had his eyes on the road and not on the plaintiff until after the accident; that, as they were stopped, waiting for the other shovel to pass underneath the wires he realized for the first time that they were uninsulated; that while he and deponent Gregory were discussing the above observation, the plaintiff, although located somewhere in the vicinity, was not close enough to hear them nor was he involved in the conversation; that he was sure that the plaintiff had never mentioned the fact that the wires were uninsulated before he went up on the boom and they proceeded ahead with the shovel; that he and the plaintiff had seen, on numerous previous occasions, helpers and oilers ride out on the booms to lift wires over them as they passed underneath another set of wires 250-300 feet beyond the ones on which he was injured; that the other wires were insulated and he had assumed, until about five minutes prior to the accident, that both sets were; that he had driven underneath these wires 10 to 15 times previously and there were no posted warnings about the uninsulated wires on the premises; that, at the time of the accident, the air in the vicinity, especially at the height of the cab and the boom, was extremely dusty, resulting from heavy dust blowing from the rock crusher; that he could operate the boom at a great number of different heights; that the boom cleared the wires by no more than 2 - 3 feet; and that he never saw the plaintiff standing up on the end of the boom and did not think he did, since that would not have been necessary.
The trial court granted the defendant's motion for a summary judgment, from which the plaintiff appeals.
In this action for damages for personal injuries sustained by the plaintiff in contacting one of the defendant power company's live, uninsulated, high voltage, electrical transmission wires 24 to 26 feet above the ground while the plaintiff workman was on the end of the 23-foot boom of his employer's diesel shovel, the complaint alleged not only that the defendant had been on notice for more than 3 months that the location of the injuries was a gravel loading site where diesels with long and high booms and workmen would operate, but also that, due to the height of the shovel booms, it was necessary and customary for some employees to ride atop the boom to raise the wires over the boom, which custom was known to the defendant. Although the defendant's showing on its motion for a summary judgment may have eliminated the factor of the necessity of the employees' alleged practice of riding atop the booms, it nowhere pierces the allegation of the custom and the defendant's knowledge thereof.
"A company maintaining an electric line, over which a current of high and dangerous voltage 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." Graham v. Sandhill Power Co., 189 N. C. 381 (127 SE 429
); Altamaha Electric &c. Corp. v. Irvin, 106 Ga. App. 491
, 492 (2) (127 SE2d 326
). Although the duty of insulating such wires is not absolute, the purpose of such duty, whether arising from the common law or an ordinance, is "the protection of those who might become injured in a reasonably anticipated situation, as, for example perhaps, . . . when construction work is being performed in proximity to the uninsulated high voltage lines, as in [cases cited]." Crosby v. Savannah Elec. &c Co., 114 Ga. App. 193
, 203 (150 SE2d 563
) and cit.
"Merely seeing the wires strung over the property would not put the plaintiff on notice of a dangerous condition." Lamar Elec. Membership Corp. v. Carroll, 59 Ga. App. 440
, 454 (79 SE2d 832
); Midland Properties Co. v. Farmer, 100 Ga. App. 8
, 32 (110 SE2d 100
), and cit. Nor would a violation of Ga. L. 1960, pp. 151, 152 (Code Ann. 34B-203) necessarily bar a recovery by the plaintiff, in view of the provision of Ga. L. 1960, pp. 181, 185 ( 34B-209), that "[n]othing in this Chapter shall be construed or applied as limiting or reducing the duty or degree of care now applicable to owners or operators of such high-voltage lines with respect to damage or loss to person or property."
The showing on the motion for a summary judgment failed to remove the material factual issues raised by the pleadings, i. e., the defendant's knowledge of the alleged custom, the defendant's negligence, and the plaintiff's contributory negligence; therefore, the court erred in its judgment sustaining the defendant's motion for a summary judgment.
Judgment reversed. Pannell and Quillian, JJ., concur.