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IRWIN v. THE GEORGIA POWER & LIGHT COMPANY.
33694.
Action for damages; from Lowndes Superior Court-- Judge Lilly. May 21, 1951.
SUTTON, C. J.
1. (a) Where the injury complained of would not have resulted from the ordinary and natural consequences of the alleged negligence of the defendant, but was caused by the intervening act of a third party, the law will not look beyond such intervening act or agency directly causing the injury.
(b) The petition in this case shows that the death of the plaintiff's son was caused by the act of a separate and independent agency, the cutting and felling of a tree across the defendant's transmission line by the employees of a third party, and that the alleged negligence on the part of the defendant was not the proximate cause of such injury.
Luella Irwin sued The Georgia Power & Light Company for damages on account of the death of her minor son, alleged to have been caused by the negligence of the defendant. The general demurrer of the defendant to the petition was sustained and the action dismissed. So, the substantial allegations of the petition will be stated. The plaintiff alleged: that she was the mother of Curtis Irwin, deceased; that he was 17 years of age at the time of his death; that she was partially dependent on him for support; and that he made substantial contributions to her support and rendered valuable services to her around the home; and that he left no widow, child or children surviving him.
It was further alleged: that on November 8, 1949, and for several years prior thereto, the defendant had installed, maintained, and was using uninsulated wires conveying an electric current of 6000 volts across lands located three or four miles west of the City of Valdosta, and south of the Atlantic Coast Line Railroad right of way, for the purpose of distributing electric current to the public; that the defendant failed to place caution, danger, or warning signs upon the premises or upon its poles supporting said electric wires to warn persons whom the defendant should have anticipated, in the exercise of ordinary care, to be upon said premises or working in close proximity thereto; that the defendant by the exercise of ordinary care should have known that the land of A. F. Winn, immediately south of the company's right of way and where the death of the plaintiff's son occurred, contained a thick growth of trees; that the defendant had, prior to the death referred to, cut and cleared away all of such trees on the said A. F. Winn's property which were sufficiently near said electric wires as to contact the same when felled in a northerly direction, except four trees grouped a few feet apart; that the defendant by the exercise of ordinary care should have known that numerous laborers would go upon said Winn lands for the purpose of turpentining or cutting the timber, activities which are notoriously common to the proper use by the owner of timbered lands in said locality; that the defendant should have known that such laborers would be unskilled, uneducated and untrained, and unable to cope with an emergency should felled trees contact the defendant's wires; that the uninsulated wire here involved was in a sagging, slackened condition, about 25 feet from the ground; that the posts supporting the wide were approximately 300 feet apart; that any of the four trees mentioned would contact such wire in the event that, when cut, said trees should fall in a northerly direction.
It was further alleged: that on November 8, 1949, J. O. Paine was engaged in cutting and felling trees for use in his business with the permission of said A. F. Winn, which timber being cut stood immediately south of and adjoining the right of way of the defendant; that Curtis Irwin, the deceased, Toby Berrian, and Billy McKinnon, employees of said J. O. Paine, were engaged in felling and cutting said timber; that it was the duty of Berrian and McKinnon to fell trees, and the duty of Curtis Irwin to cut felled trees into a size suitable for removal by truck from the woods; that on said date Berrian and McKinnon cut a pine tree, which lodged in the top of a second pine tree, and then proceeded to cut down the second pine tree in order to clear the first pine tree; that in so doing the second tree, being about 30 feet south of the wires of the defendant, fell in a northwesterly direction across one of the high-tension wires, which did not break but, due to its sagging and defectively constructed condition, was brought down to within three or four feet of the ground; that Curtis Irwin, working about 300 or 400 yards away in the woods, did not see said two pine trees when they were felled, but shortly thereafter came to the trees to cut them into pulpwood size; that in this manner he contacted the highly charged wire, was unable to free himself from it, and was electrocuted by the current from the wire.
It was further alleged: that Curtis Irwin was uneducated, untrained, and unskilled in the use, care, and handling of electricity; that the deadly current conveyed by said wire was unknown to and not discoverable by Curtis Irwin through his senses of sight, hearing, or smell, but was well known to the defendant; and that the circumstances resulting in Curtis Irwin's death should have been anticipated when the defendant erected its high-tension lines.
The proximate cause of Curtis Irwin's death was alleged to have been the defendant's negligence in the following particulars: (a) in installing and maintaining an uninsulated wire to convey 6000 volts of electricity, in a sagging condition, too close to the ground, and too near to the pine trees which would contact the wire if felled in a northerly direction; (b) in installing and maintaining too low and too close to said trees knowing that said trees would be worked by laborers, unskilled and untrained in handling electricity, for lumber, pulpwood, posts and other purposes common to the industry of the area which would require the felling of such trees; (c) in failing to anticipate that said trees were likely to be felled by woodsmen and were likely to fall upon the high-tension lines of the defendant, thereby, creating a hazard and rendering the area unsafe for workmen; (d) in failing to anticipate the negligence of woodsmen in the ordinary performance of their duties of felling trees; (e) in failing to take the precaution of cutting and clearing the trees here involved, which the defendant had a right to do under its easement contract, so as to prevent such trees from contacting its wires and thereby causing injury or death to persons whom the defendant should have anticipated to be upon the premises; (f) in failing to inspect its night of way to determine whether trees were so near to the wires as to contact them when the trees were cut; (g) in failing to insulate its wire at a place where numerous persons should have been expected to go; (h) in failing to inspect its right of way from year to year, in the light of changing conditions, i.e., the growing up of other trees towards its wires or too near to it so as to create a dangerous condition for woodsmen; (i) in failing to place warning signs on its right of way for woodsmen working nearby; and (j) in failing to take reasonable precautions to avoid the type of injury which resulted in the death of Curtis Irwin.
The defendant's general demurrer was that the petition failed to set forth a cause of action against the defendant, and that the alleged acts of negligence on the part of the defendant were not the effective and proximate cause of the death of Curtis Irwin, but that it appeared that the effective and proximate cause of his death was the intervening act of a separate and independent agency.
It appears from the plaintiff's petition that her son, Curtis Irwin, and two others were employed by J. O. Paine and were engaged in cutting pulpwood for him on the land of A. F. Winn at the time her said son met his death. Winn's land was located south of and adjacent to the right of way of the transmission line of the defendant power company. It was the duty of the other two employees of Paine to cut and fell the trees, and it was the duty of Curtis Irwin then to cut them into the right lengths for pulpwood. These two employees cut a pine tree and it fell and lodged in another pine. They proceeded to cut down the second pine in order to clear the first one, and the second tree, which was some 30 feet south of the transmission line of the defendant, fell in the direction of said line and across one of the high-tension wires, which pulled the wire down to within three or four feet of the ground. Curtis Irwin did not see the two trees when they fell, but he came to them shortly thereafter for the purpose of cutting them into pulpwood and came into contact with the highly charged wire and was electrocuted.
The plaintiff in error contends that the alleged negligence of the defendant as set out in the petition was the cause of the death of her son, and that the circumstances which resulted in his death were such as reasonably should have been foreseen or anticipated by the defendant when it constructed and later maintained its high-tension lines. The defendant's transmission line was built and maintained on its own right of way, and there were no trees on its right of way. It does not appear that J. O. Paine or his employees had any right to cut and fell trees from the land of Winn onto the right of way and across the transmission line of the power company; and when said employees felled the tree across the defendant's transmission line and pulled the wire down to within three or four feet of the ground so that it was contacted by Curtis Irwin, resulting in his death by electrocution, such was the act of an independent agency and was the proximate cause of the death of the deceased, instead of the alleged negligence of the defendant. If the injury would not have resulted from the ordinary and natural consequences of the alleged negligence of the defendant, but was caused by the intervening act of a third party, the law will not look beyond such intervening act or agency directly causing the injury. Beckham v. Seaboard Air-Line Ry., 127 Ga. 550, 553 (56 S. E. 638, 12 L.R.A. (N.S.) 476). It was held in Postal Telegraph-Cable Co. v. Kelly, 134 Ga. 218 (67 S. E. 803): "A telegraph company had its lines of poles and wires constructed along one side of a public road. On the opposite side several men were cutting down trees for a box company. Just as one of the trees was about to fall two of the men engaged in cutting went out into the road. As the tree, which was a tall pine, fell it struck another tree, glanced or turned from its course, and fell in or partly across the road. Either some of its limbs or part of the other tree struck the wires of the defendant on the opposite side of the highway, breaking some of them; and a pole, to which they were attached, fell into the road, striking one of the two men who were standing there, causing his death. The pole was rotten at the point where it entered the ground, and a sound pole nearer the point of impact did not fall. Held, that even if the telegraph company failed to use ordinary care in inspecting and maintaining its poles, nevertheless, under the facts stated, the injury was not the legal and natural result of its negligence so as to authorize a recovery against it for the homicide. This is so although the act of cutting down the tree may not in any sense have been negligent or wrongful. In this connection see Perry v. Central R. Co., 66 Ga. 746; Mayor and Council of Macon v. Dykes, 103 Ga. 847 (31 S. E. 443); Henderson v. Dade Coal Co., 100 Ga. 568 (28 S. E. 251, 40 L.R.A. 95); Dubuque Wood & Coal Association v. City and County of Dubuque, 30 Iowa, 176; City of Rockford v. Tripp, 83 Ill. 247 (25 Am. R. 381); Hendelun v. Burlington, Cedar Rapids & Northern Ry. Co., 72 Iowa, 709 (32 N. W. 4)."
Also, the following cases are applicable and controlling in the case at bar: Higginbotham v. Rome Ry. & Light Co., 23 Ga. App. 753, 754-755 (99 S. E. 638); Georgia Power Co. v. Wood, 43 Ga. App. 542 (159 S. E. 729); Rome Ry. & Light Co. v. Rob- inson, 35 Ga. App. 521 (134 S. E. 132); Tidwell v. Georgia Power Co., 60 Ga. App. 38 (2 S. E. 2d, 713); Stallings v. Georgia Power Co., 67 Ga. App. 435 (20 S. E. 2d, 776). Some of these cases are very similar on their facts to the present case, and the decisions in these cases and the many cases cited therein are to the effect that, when the injury complained of is not the direct and proximate result of the alleged negligence of the defendant, but when the act of a separate and independent agency is the direct and proximate cause of such injury, there can be no recovery against the defendant. We think that the petition in this case shows that the death of the plaintiff's son was caused by the act of a separate and independent agency, the cutting and felling of the tree across the defendant's transmission line by the employees of Paine, and that the alleged negligence on the part of the defendant was not the proximate cause of such injury.
The cases of Rome Ry. & Light Co. v. Jones, 33 Ga. App. 617 (127 S. E. 786), and Clinton v. Gunn-Willis Lumber Co., 77 Ga. App. 643 (49 S. E. 2d, 143), cited and relied on by the plaintiff in error, are distinguishable on their facts from the present case and do not authorize or require a ruling in this case different from the one here made.
Judgment affirmed. Felton and Worrill, JJ., concur.
T. Guy Connell, for defendant.
Langdale, Smith & Tillman, W. W. Rehberg, for plaintiff.
DECIDED OCTOBER 4, 1951.
Saturday May 23 05:26 EDT


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