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NORTH DEKALB LITTLE LEAGUE INC. v. HOLLAND.
43898.
PANNELL, Judge.
Action for damages. DeKalb Superior Court. Before Judge Dean.
1. It is apparent from these facts that the cause of the death of the deceased was his lack of ordinary care for his own safety. See in this connection Bedding v. Morris, 105 Ga. App. 152 (123 SE2d 714); LaHoste v. Yaarab Mounted Patrol, 89 Ga. App. 397 (79 SE2d 570); Atlanta Funtown, Inc. v. Crouch, 114 Ga. App. 702 (152 SE2d 583); Sanford v. Frigidice Co., 68 Ga. App. 593 (23 SE2d 544); DeWinne v. Waldrep, 101 Ga. App. 570 (114 SE2d 455); Little v. Rome R. &c. Co., 35 Ga. App. 482 (133 SE 643); Brown v. Panola Light &c. Co., 137 Ga. 352 (73 SE 580). " 'One who recklessly tests an observed and clearly-obvious peril is guilty of a lack of ordinary care, and his own negligence notwithstanding any accompanying negligence by another, may, under the particular facts, be deemed the proximate cause of his injury. In plain and palpable cases, it will be so held as a matter of law; otherwise, questions as to such negligence as well as other questions of negligence by the parties, and as to the proximate cause of the injury, present issues for the jury.' Laseter v. Clark, 54 Ga. App. 669 (1) (189 SE 265)." Carroll Electric Membership Corp. v. Simpson, 106 Ga. App. 29 (2) (126 SE2d 310).
2. The fact that the service line was covered with weatherproofing which one witness testified resembled insulation, would not affect the result here, as the deceased, at the time of the erection of the flagpole, had his attention again called to the overhead lines and replied, "We're clear." It, therefore, does not appear that he was misled by what may have appeared to be insulation on the service line, but was misled by his mistaken idea that the pole was short enough to clear the lines.
3. The trial court erred in refusing to grant the defendant's (North DeKalb Little League, Inc.) motion for summary judgment.
Hansell, Post, Brandon & Dorsey, Albert G. Norman, Jr., for appellant.
ARGUED SEPTEMBER 10, 1968 -- DECIDED MARCH 5, 1969 -- REHEARING DENIED MARCH 24, 1969 -- CERT. APPLIED FOR.
Friday May 22 17:54 EDT


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