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murrer.

of this we feel very certain, they did not, ing sharply. They did not put it in a reemploy these words with a view to render ceptacle, or confine it in any way. The the policy frivolous and ineffective. And sheets of paper were light, and were naturalit would be both were it enforceable only ly liable to be blown about the street by as someone could be produced who had seen

even a light breeze, and naturally and in

evitably tended to excite and frighten not the thief at his work. A reasonable con

only nervous horses and mules, but even struction of the words would ascribe to the quiet and steady ones. The plaintiff

, a capaparties the single purpose to require some ble driver, was driving two reasonably well. thing more than the mere fact of loss to broken, steady, and roadworthy horses along entitle the assured to recovery on the policy. the street. The wind blew some of the The fact that the clause concludes with a paper under the horses and against their provision that the disappearance of the legs, frightening them and causing them to property should not be deemed direct evipetition was not subject to general de

run away and injure him. Held that such dence is an indication, more or less strong, that the word "direct" was not used in its

(a) Where it was also alleged that there strictly technical sense. The provision existed in a city an ordinance requiring the might well have been omitted had the tech. proprietor of each business house to keep a nical meaning been intended; since under covered garbage can outside of his place of no circumstances could the fact of disap. business, and to place in it all refuse, garpearance have been regarded as direct evi- bage, and trash from such place, to be called dence, understood in its technical sense, of trash and paper were placed on and near

for by the proper city officers, and that the theft. An examination of the evidence the sidewalk by the defendants on the day shows that, while circumstantial, it was all of the injury, without being confined in distinctly affirmative as to the different such receptacle, and in violation of the facts testified to. Each witness testified ordinance, this did not render the entire as to what he saw for himself, and all the petition demurrable on the ground that the testimony was received without objection. ordinance was a sanitary measure, and was The trial judge in his charge very distinct not enacted for the purpose of preventing

horses from being frightened. The ordi ly instructed the jury that the one question

nance on its face, as set out in the petition, they had to pass upon was whether the appears to have been enacted as a sanitary property had been feloniously taken. Their

measure; and, so considered, its violation answer that it was so taken should have would not be negligence per se as to permade an end of the case. The effect of a sons driving along the highway. But, provision in a policy of insurance condition- though not negligence per se relatively to ing recovery on the production of a particu- the plaintiff because in violation of the ordilar kind of evidence in contradistinction of nance, the acts done might be negligence as

a matter of fact. another kind, which, under the rules of law

Proximate cause and evidence, is equally effective and ad

fright of horses

rubbish in highway - wind. missible to prove the particular fact in is

2. There was no merit in the ground of sue, suggests a question that was not raised demurrer which raised the contention that in the court below, nor argued on the ap- the violation of the ordinance was not the peal. It therefore calls for no consideration proximate cause of the injury, but that a here.

separate and independent intervening cause, The assignment of error is overruled, and the blowing of the wind, was the proximate the judgment is affirmed.

cause, coupled with the fact that the horses became frightened, and that this was the act of God, for which the defendants were not responsible:

(a) If the acts of the defendants conGEORGIA SUPREME COURT,

stituted negligence with reference to the GRADY BOWEN, Piff, in Err.,

plaintiff, without regard to whether a violation of the ordinance was negligence per se,

the blowing of the wind, which was known, SMITH-HALL GROCERY COMPANY.

or might naturally be expected, was not an

independent intervening cause, so as to pre(141 Ga. 721, 82 S. E. 23.)

vent the negligence of the defendants from

being the proximate cause of the injury. Highway refuse in frightening (b) There is nothing in the petition to horse liability.

show that there was any unforeseen or sud1. A petition alleged, in substance, as fol- den wind of such a character as to come lows: A firm whose place of business abutted on a much traveled street in a city Note. - Liability for frightening horses placed a large quantity of trash and loose by paper or other objects liable to be sheets of paper on an near th street

set in tion by wind. sidewalk on a day when the wind was blow

Generally to liability of munici. Headnotes by LUMPKIN, J.

pality, for injuries caused by horse becoming

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within the legal meaning of the expression, | time of the injury complained of there was "an act of God,” which may break the chain in force in the city the following ordinance: of causation arising from the alleged negli- “The proprietor of each business house gence of the defendants.

must keep a covered garbage can outside of

his place of business, in which must be (May 22, 1914.)

placed all refuse, garbage, and trash from E RROR to the Superior Court for Whit- the proper city officers.”

said place of business, to be called for by field County to review a judgment in defendants’ favor in an action brought to through their employees placed upon and

On the day of the injury the defendants recover damages for personal injuries al. near to the street and sidewalk thereof, in leged to have been caused by defendants' front of their place of business, a large negligence. Reversed.

amount of trash and loose sheets of paper,

without putting it in any receptacle or conStatement by Lumpkin, J.:

fining it in any way. The wind was blowGrady Bowen filed his petition for dam- ing sharply. The pieces of paper were loose ages against the Smith-Hall Grocery Com- and light, and were naturally and easily pany. The petition as amended alleged, in liable to be blown up and down or across substance, as follows: The Smith-Hall Gro- the street by even a light breeze, and, if so cery Company is a partnership doing busi- blown, the rattling caused by them and ness in the city of Dalton. Its storehouse their moving toward horses and mules passand place of business fronted on Hamilton ing along the street and striking them would street, the principal business street of the naturally and inevitably tend to excite and city, upon which at all times of the day frighten not only excitable and nervous there was a large amount of travel by pedes- horses and mules, but even quiet and steady trians and all kinds of vehicles. At the 'ones, and cause them to start, rear, plunge, frightened at object in highway, see note to Thus, whether dust and shavings blown Bowes v. Boston, 15 L.R.A. 365; and gen- from a mill over a wall on to the highway erally as to liability for placing near high- were objects calculated to frighten a horse way object calculated to frighten horses, see of ordinary gentleness was in Rodgers v. note to Davis v. Pennsylvania R. Co. 12 Harper & Moore, 170 Ala. 647, 54 So. 199, L.R.A.(N.S.) 1152.

1 N. C. C. A. 78, held a question for the As to liability for discharge of steam near jury. street or highway so as to frighten horse, see So, whether a pile of rubbish was of a note to Mt. Cooperage Co. v. Page, 23 L.R.A. character calculated to frighten horses, and (N.S.) 946. As to duty to prevent escape whether it had remained in a street so long of steam from engine in highway so as to a time that the village authorities should frighten horses, see note to Lane Bros. Co. have taken notice of its existence, were held v. Barnard, 31 L.R.A.(N.S.) 1209.

in Barr v. Bainbridge, 42 App. Div. 628, 59 Annotation of other questions arising N. Y. Supp. 132, questions of fact for the from injuries due to fright of horses may be jury. found by consulting the Index to L.R.A. A hay cap consisting of white cloth tied Notes under the title “Horses."

by the corners to stakes in the ground, so The only case other than BOWEN V. SMITH- that it is moved by the wind, may constitute HALL GROCERY Co. involving the frightening a nuisance for which the party maintaining of a horse by paper blown from a rubbish it will be liable for the frightening of a heap by the wind is McClure v. Feldmann, horse on a highway when it is placed within 184 Mo. 710, 84 S. W. 16. In that case a the limits of the highway, where it is judgment for defendant was aflirmed, the naturally calculated to frighten a horse of court holding that where the cause of ordinary gentleness. Lynn v. Hooper, 93 action, as stated in the complaint, specifical. Me. 46, 47 L.R.A. 752, 44 Atl. 127, 6 Am. ly charged that the rubbish pile of paper Neg. Rep. 535. and straw which frightened

plaintiff's So (as stated in the syllabus) where a horses was placed on the highway by de person with a wagon loaded with bicycles, fendant, instructions were properly refused covered with several flags flying and waving wherein plaintiff sought a recovery on the from one side to the other, and thereby ground of a different character of negli. making such a display, while drawing such gence; namely, that the rubbish was placed wagon as an advertising medium through on defendant's premises and negligently al. the principal streets of a populous city, as lowed to be blown by the wind into the to frighten a horse of ordinary gentleness, highway.

and cause it to run away in such street, The question of liability in this class of whereby the property of another is injured cases depends upon whether the object was and damaged, the finding of the jury upon calculated to frighten horses of ordinary the question of the negligence of such pergentleness; and whether an object in a high- son drawing such wagon will not be disway is in its nature calculated to frighten turbed. Jones v. Snow, 56 Minn. 214, 57 horses of ordinary gentleness is generally a V. W. 478. question for the jury to determine.

Where horses are frightened by an object and run away. The plaintiff was driving The defendants demurred on the followalong the street in a buggy drawn by two | ing grounds: (1) Because the petition set horses, reasonably well broken, steady, and forth no cause of action; (2) because the roadworthy, and he was capable of driving ordinance referred to was enacted as a saniand handling horses. When about 50 to tary measure, and not to prevent horses 75 yards from the pile of trash and paper, driven along the street from becoming the wind caught up and blew some sheets frightened; (3) because the facts as aldirectly under his horses. The sudden rat- leged do not constitute such negligence as tling and fluttering of the papers beating the defendants, in the exercise of ordinary upon the legs of the horses excited them, and, in spite of all that the plaintiff could would result in the plaintiff's injuries; (4)

care, might have reasonably anticipated do, they got beyond his control and ran

because the violation of the ordinance was away, overturning the vehicle, breaking the tongue out of it, and turning it over. The not the proximate cause of the plaintiff's inplaintiff was thrown violently to the ground juries. The blowing of the wind, which and received serious personal injuries was an act of God, coupled with the horses which are permanent. The violation of the becoming frightened, was he proximate city ordinance was negligence per se on the cause, and for this the defendants were not part of the defendants. Without regard to liable. The judge sustained the demurrer the ordinance, the defendants were guilty and dismissed the case. The plaintiff ex: of negligence in placing the trash and cepted. paper upon the street, because it naturally and reasonably tended to cause the in- Messrs. J. E. Rosser and W. M. Henry juries complained of, and did cause them. for plaintiff in error. The plaintiff was without fault or any lack Messrs. Maddox, McCamy, & Shumate of ordinary care in the matter.

for defendants in error. in the streets of a town or city, having a discreet persons will avoid the risk and tendency to frighten horses of ordinary danger incident to attempt to pass under gentleness, if the object was not placed in the same. It endangers travel, and makes the street by the corporation or by anyone it perilous to all travelers riding in convey. in privity with it, the corporation is not ances drawn by horses. Such an object liable for the injury resulting unless it had placed in a place so conspicuous as this notice thereof for a sufficient length of time banner was, within the plain sight of horses, to have enabled it, by the exercise of reason is to be distinguished from objects which able diligence, to remove the object; but this are suspended over sidewalks and fastened notice may be either actual or implied, and to the face of a building, like a sign or a notice is implied where a sufficient length of bracket fastened in the face of a building, time has elapsed between the placing of the on which traders display their goods, or a object or obstruction and the accident for show case standing in front of a store.” the corporation, using reasonable diligence, Where plaintiff was injured by his horse to have removed it, or when it was so placed taking fright at the noise of a railroadand its nature so notorious that the corpo crossing sign caused to rattle or creak by a ration should have known it. Thus, in Fal. sudden gust of wind, the railroad commouth v. Woods, 16 Ky. L. Rep. 317, a pany was, in Thompson v. New York C. & town is held to be liable for injuries result. H. R. R. Co. 164 App. Div. 117, 149 N. Y. ing from the frightening of horses by a Supp. 611, held not liable, being not bound, canvas sign which the town had permitted in the exercise of ordinary care, to anticito be stretched across one of its principal pate such a result. streets, the sign being so hung that when So, the owner of premises near a railroad blown by the wind it made a noise calculat. crossing was held not liable in O'Sullivan ed to, and which did on several occasions, v. Knox, 81 App. Div. 438, 80 N. Y. Supp. frighten passing horses; these facts being so 848, affirmed in 178 N. Y. 565, 70 N. E. notorious as to cause general comment. 1104, where plaintiff was injured by her

So, a village was held liable in Champlain horse becoming frightened by the falling of v. Penn Yan, 34 Hun, 33, affirmed without a large sign blown down by the wind; the opinion in 102 N. Y. 680, for injuries sus court stating that “with a signboard of tained as a consequence of one's horse be- these moderate dimensions, with 85 feet of coming frightened at a large advertising railroad lands between his own and the banner strung across a street. The court high way, and with his structure 15 feet in said: “We are unable to discover any sensi- from his line, he [owner] filled the measure ble reason for holding that an object perma- of that reasonable care imposed upon him, nently suspended directly over the traveled and commensurate with any probable or part of a highway, although fastened to sup-conceivable danger. He could not forecast ports outside of the limits of the same, is the uncommon occurrences which resulted not an obstruction to travel, if it naturally in the injuries to the plaintiff, and hence tends to frighten horses of ordinary gentle. they are not within the compass of the obliSuch an object drives travel from the gation he owed to her.”

J. D. C. street over which it is suspended, because

ness.

was

Lumpkin, J., delivered the opinion of the and it was held that the petition as amended court:

was good as against a general demurrer. 1. Whether or not the ordinance requiring Rome v. Sudduth, 121 Ga. 420, 49 S. E. the proprietor of each business house to 300. In the present case the petition al. keep a covered garbage can outside of his leged that the placing upon and near the place of business, and to cause to be placed street and sidewalk of a large amount of therein all refuse, garbage, and trash, to trash and loose sheets of paper, which would be removed by the proper city officers, was be easily liable to be blown about, would purely a sanitary ordinance, or whether the naturally tend to frighten not only excitrequirement that it should be covered also able and nervous horses, but even quiet included the idea of preventing the contents and steady ones, and cause them to run from being blown about the street, is not away; that the wind was blowing sharply, a controlling question in the case. The but that nevertheless the defendants so ordinance on its face appears to have been placed such trash and paper without putting enacted as a sanitary measure. So con- i it in any receptacle or confining it in any sidered, its violation would not be negli- way. It was further alleged that the horses gence per se relatively to a person driving which the plaintiff was driving along the horses along the highway, who was injured street were steady and roadworthy and reaby the horses taking fright. Nevertheless sonably well broken. This was sufficient (without constituting as to such a person as against a general demurrer, or one based negligence per se, as being the violation of on the ground that the ordinance was a an ordinance passed for the protection of sanitary measure only, and that the facts those driving in the street), if a quantity alleged did not show negligence on the part of trash and loose paper was placed upon of the defendants as to the plaintiff. and near to the sidewalk and street, which This case is not controlled by the decision

a public way where many vehicles in Macon v. Dykes, 103 Ga. 847, 31 S. E. passed, while the wind was blowing, in such 443. In that case the question did not a manner that the natural and probable arise upon a demurrer, which admits the consequence thereof would be to frighten allegations of the petition; but it was deordinarily gentle and roadworthy horses cided, upon the evidence, that the plaintiff which were being driven along the high was not entitled to recover. The undisputed way, this might, as matter of fact, consti- evidence in that case showed that the plaintute negligence as to persons thus lawfully tiff, while driving a horse attached to a driving; and, if injury resulted therefrom, two-wheeled roadcart, along a street in the defendants might be liable. That an which was laid the track of a street railact cannot be declared to be negligent per way, attempted to drive, while the horse was se, or as matter of law, does not necessarily in a walk, across the track at an angle of prevent it from being negligent as matter about 45 degrees; that, when the wheels of of fact.

the cart came in contact with the iron rails In Rome v. Suddeth, 116 Ga. 649, 42 s. of the track, the wheels slipped along the E. 1032, a suit for damages was brought rails and made a scraping noise, whereupon against a municipal corporation on account the horse began to kick, jump, and run, and of personal injuries. It was alleged that became wholly unmanageable, and the municipal authorities allowed to be away, causing the cart to collide with a placed at a certain point in the city “two wagon and throwing the plaintiff to the large stones," and that the plaintiff's horse ground, seriously injuring him. While the became frightened at these stones and ran height of the rails above the surface of away, causing the injuries. The petition the street was variously estimated by the failed to allege the length of time that the witnesses to be from 2 to 4 inches, and there stones were permitted to remain in the was an ordinance of the city prohibiting the place described, that the stones were objects laying of rails which should be above the naturally tending to frighten an ordinarily level of the street, it was held that the unroadworthy horse, and that the plaintiff's disputed evidence as a whole showed that horse was such an animal. It also did not the negligence of the defendants was not allege that the city violated any duty in the proximate cause of the injuries to the failing to cause the removal of the stones; plaintiff. In the case now before us it was nor did it make any allegation of fact from alleged in effect that the defendants were which such a violation of duty could be in- negligent in the particulars set out, and ferred. It was held that such a petition that their negligence was the proximate did not state sufficient facts to authorize cause of the injury. It cannot be declared a recovery, and was demurrable. When the on demurrer that this was not true. case was returned to the trial court, an 2. One ground of the demurrer raised the amendment was made which supplied the contention that the violation of the ordidefects pointed out in the original petition,'nance by the defendants was not the proxi

ran an

cause.

V.

mate cause of the plaintiff's injury, but noxious gas), and contend that he is not that a separate and independent interven- liable because the normal wind carries it ing cause, the blowing of the wind, was the to the place where the injury occurs ? It proximate cause, coupled with the fact that was alleged the act of the defendants was the horses became frightened, and that this of such a character as naturally to frighten was the act of God for which the defend ordinary horses. Under the facts set out ants were not responsible. Regardless of in the petition, neither this court nor the any claim that the violation of the ordi- trial court can say, as matter of law, that nance would constitute negligence per se this is untrue. To state the proposition as to the plaintiff, the contention is with involved in the contention is to show its out merit. If one does a negligent act, fallacy. The ground of the demurrer set up which alone would not cause the injury, that the violation of the ordinance was not but does it under such conditions that it is the proximate cause of the plaintiff's inreasonably and naturally probable that, injuries. But, as we have held above, the case connection with the ordinary operations of does not depend upon whether the violation natural forces, injury will result, the orig. of the ordinance constituted negligence per inal act will be treated as the proximate se as to the plaintiff, but depends upon cause of such injury, in the absence of the whether the conduct of the defendants was intervention of any independent agency. If sufficiently shown by the allegations to be he has knowledge that the wind is blow. negligent, and to have caused the injury so ing, or in the ordinary course of nature is as to withstand a demurrer. likely to blow while the act is in progress, Judgment reversed. and negligently places large quantities of loose paper where the natural result will All the Justices concur. be to cause it to be blown against horses in the street, he cannot claim that such a wind is independent intervening Cheeves v. Danielly, 80 Ga. 114 (2), 118,

KENTUCKY COURT OF APPEALS. 4 S. E. 902; Hendley v. Griffin, 101 Ga. 140, 28 S. E. 610, 3 Am. Neg. Rep. 357; Cen

MARIE ROSS, by Next Friend, Appt., tral of Georgia R. Co. v. Hall, 124 Ga. 322 (8), 330, 4 L.R.A. (N.S.) 898, 110 Am. St.

ROBERT J. KOHLER et al. F.ep. 170, 52 S. E. 679, 4 Ann. Cas. 128, 19 Am. Neg. Rep. 116; Sedgw. (163 Ky. 583, 174 S. W. 36.) Damages, 9th ed. $$ 118, 1213, 122, 124; East Tennessee, V. & G. R. Co. v. Appeal objection to instructions Hesters, 90 Ga. 11, 15 S. E. 828; Ft. Wayne

time for making. Cooperage Co. v. Page,

Ind. App.

82

1. Objections to instructions made for the N. E. 83 (20), s. c. 170 Ind. 585, 23 L.R.A. not be considered on appeal.

first time upon motion for new trial can(N.S.) 946, 84 N. E. 145; Benedict Pine

False imprisonment - liability of officer apple Co. v. Atlantic Coast Line R. Co. 20

for acts of others. L.R.A. (N.S.) 92, and note (55 Fla. 514,

2. A police officer who arrests without 46 So. 732) ; Rodgers v. Harper & Moore, warrant a person whom the police officials 170 Ala. 647, 54 So. 199, 1 N. C. C. A. 78. desired to interview, is answerable in damIf the contention above stated could be sus- ages for mistreatment of the prisoner by tained, it might also be argued that a tort such officials while they are subjecting him feasor might tear the roof from a store, and, to examination in the absence of the officer. if the rain or the dew or the wind should in- Appeal – refusal to direct verdict.

3. Refusal to direct a verdict is not error jure the goods of the proprietor, no liability would arise, because the rain and the unless a request for such instruction is of

fered in writing. wind and the dew should be classified as acts of God. Or a person might place a Note. - Condition of place of imprisonlarge stone on a hillside, and, if it should ment and treatment while in custody roll down and crush a passer on a highway

as elements of damages in action of below, escape liability by saying that the

malicious prosecution or false im

prisonment. stone was caused to roll down the hill by gravity. Or if one should negligently build

This subject is covered in the note to å fire in a much-traveled street while the Seidler v. Burns, 33 L.R.A. (N.S.) 291, to wind was blowing and sparks should be which the present note is merely suppleblown against a passing vehicle and set it mentary. on fire, could the person building the fire say that his act was not the proximate cause Actions for malicious prosecution. of the injury? Can anyone put a thing

On a subsequent appeal of Seidler v. likely to cause injury into the air (say a' Burns, in 86 Conn. 249, 85 Atl. 369, it was

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