Texas General Utilities Co. v. Nixon, 2672.

• Decision Date: 03 April 1935
• Docket Number: No. 2672.,2672.
• Citation: 81 S.W.2d 250
• Parties: TEXAS GENERAL UTILITIES CO. v. NIXON.
• Court: Texas Court of Appeals

81 S.W.2d 250

TEXAS GENERAL UTILITIES CO. v. NIXON.

No. 2672.

Court of Civil Appeals of Texas. Beaumont.

April 3, 1935.

Rehearing Denied April 10, 1935.

Appeal from District Court, Shelby County; T. O. Davis, Judge.

Action by Johnnie Maurice Nixon, a minor, by his father, J. D. Nixon, as next friend, against the Texas General Utilities Company. Judgment for plaintiff, and defendant appeals.

Reversed and remanded.

Davis, Avery & Wallace, of Center, and S. M. King, of Beaumont, for appellant.

Sanders & McLeroy, of Center, and C. A. Lord, of Beaumont, for appellee.

O'QUINN, Justice.

Appellee, Johnnie Maurice Nixon, a minor, by and through his father, J. D. Nixon, as next friend, brought this suit against the appellant, Texas General Utilities Company, in the district court of Shelby county, Tex., to recover $40,000 damages for injuries alleged to have been caused by his coming in contact with a highly charged electric wire of appellant. It was alleged that on and prior to May 2, 1933, appellant was engaged in manufacturing, distributing, and selling electricity in Shelby county, Tex., and in the city of Joaquin therein, and that it owned and operated a system of wires, poles, and high-powered lines in said county and city over which it transmitted electricity and electric currents, which it furnished to customers generally; that appellee resided in the city of Joaquin, and that immediately in front of his home was a row of sycamore trees, one of which was in the "door-yard" of his premises; that some time prior to May 2, 1933, appellant had strung in front of his house several electric wires about 20 feet from the ground, attached to posts and passing among and through the branches and limbs of said sycamore trees near the trunks, and that appellant transmitted over said wires a high, dangerous, and deadly electric current of some 2,000 volts; that one of said sycamore trees stood in front of his dwelling and within 20 feet thereof; that the ground around and under said tree was hard, smooth, and regular, and this, with the shade afforded by the tree, made a desirable and attractive place for children to play, and that said Johnnie Maurice Nixon daily played under and about said tree, together with many other neighbor children who lived nearby, the premises being thickly settled for several blocks around; that this tree, which was about 14 inches in diameter, grew in a stooping or leaning position, and had knots along its trunk and limbs, which condition made it interesting and attractive to children and easy for children to climb, and "their natural inclination and instincts would prompt them to climb such tree and go among its extending branches," all of which conditions and things were known to appellant, or should have been known by the exercise of ordinary care; that on May 2, 1933, said Johnnie Maurice Nixon, while playing under and about said stooping tree with other children of about his age (eight years), "prompted by childish impulses and natural inclination, instincts and desires so to do," climbed into said tree, and in some manner came in contact with appellant's said wire where same was uninsulated, resulting in the injuries alleged.

The grounds of negligence alleged by appellee against appellant were: (1) Allowing its wires through the tree to become and remain uninsulated; (2) in placing and maintaining its wires through the tree where said wires were uninsulated; (3) in transmitting high-voltage electricity through these uninsulated wires; and (4) in allowing a limb, which had fallen on one of the wires, causing it to sag down some 2 or 3 feet, and causing it to be near the trunk of the tree, to so remain, which condition contributed to cause appellee to come in contact with the wire, and that maintaining the wire under such circumstances was negligence. That each of the alleged negligent acts was a proximate cause of the appellee's injuries.

Appellant answered by general demurrer, general denial, and specially that appellee's injuries were caused solely by his acts of negligence (a) in climbing the tree mentioned in his petition, and (b) by placing himself in contact with the wire after climbing the tree; and further specially answered that, if mistaken in its allegations of negligence just pleaded as being the sole proximate cause of appellee's injuries, then, in the alternative, that appellee was guilty of contributory negligence (a) in climbing the tree described in his petition, and (b) in placing himself in a position to come in contact with the wire after climbing the tree.

The court overruled appellant's general demurrer, and also refused its request for an instructed verdict, and submitted the case to a jury upon special issues, upon the answers to which judgment was rendered for appellee in the sum of $8,000. Motion for a new trial was overruled; hence this appeal.

J. D. Nixon, the father and next friend of appellee, Johnnie Maurice Nixon, minor boy eight years old, resided in the town of Joaquin, Shelby county, Tex. His residence fronted a street bordering on the right of way of H. E. & W. T. Railway. Immediately in front of his home was a row of sycamore trees, one of which stood in front of his house and within 20 feet of same. The ground around and under this tree was hard and smooth. The tree afforded a good shade. Johnnie Maurice Nixon daily played under and about this tree together with many other neighbor children who lived near by. This tree, which was some 14 inches in diameter, grew slightly stooping or leaning, and had knots or protuberances where limbs had been cut off. The lowest limbs on the tree were about 8 or 10 feet from the ground. Appellant, some years before, had strung its electric wires (four of them) on posts along the edge of the railroad right of way and through the limbs of the tree. The height of the wires from the ground was estimated by witnesses at from 18 to 23 feet. The wire with which the boy came in contact was not insulated in places, that is, the wire had been insulated, but, from rubbing against the limbs of the tree, or some other cause, the insulation was worn and off in places. A limb from a nearby dead tree had fallen on one of the wires and remained hanging from same, and it caused the wire to sag or sink down some 2 or 3 feet, and some nearer to the body of the tree. Originally the wires were about 3 feet from the body of the tree. This situation had existed for some time, when on May 2, 1933, Johnnie Maurice Nixon and a neighbor boy of about his age were playing under the tree, and the Nixon boy, by means of a rope which some one had tied to one of the lower limbs of the tree, climbed into the limbs of the tree and came in contact with this uninsulated wire and suffered severe injury. It does not appear who tied the rope to the limb.

Appellant has 60 propositions based upon 59 assignments of error. Appellee replies with 32 counter propositions, not specifically directed against appellant's assignments, but submitted generally as applying to the questions involved. We shall not undertake to discuss these many assignments and counter assignments, but will discuss only generally the questions (within the compass of the opposing briefs) necessary for a disposition of the appeal.

There was no error in overruling appellant's general demurrer nor in refusing its request for an instructed verdict.

We overrule appellant's contention that under appellee's pleadings and the facts adduced on the trial it was not required to foresee or anticipate that some such injury as was alleged and proven might occur. It is a matter of common knowledge that it is the natural inclination and venturesome disposition of children, and especially boys, to climb trees and to play among the limbs, and we think it is well settled that a company, stretching electric wires in a city or town through and among the limbs of trees like the evidence shows the tree in this case to have been and situated as it was, must take notice of boyish inclinations and impulses to climb, and anticipate the probability of the presence of children in such trees and the possibility of their coming in contact with the wires and suffering injury thereby. Williams v. Springfield Gas & Electric Co., 274 Mo. 1, 202 S. W. 1; Temple v. McComb City Electric Light & Power Co., 89 Miss. 1, 42 So. 874, 11 L. R. A. (N. S.) 449, 119 Am. St. Rep. 698, 10 Ann. Cas. 924; Ft. Wayne & Northern Indiana Traction Co. v. Stark, 74 Ind. App. 669, 127 N. E. 460; Thompson v. City of Slater, 197 Mo. App. 247, 193 S. W. 971; Mullen v. Gas & Electric Co., 229 Pa. 54, 77 A. 1108; Benton v. Public-Service Corp., 165 N. C. 354, 81 S. E. 448; Graves v. Interstate Power Co., 189 Iowa, 227, 178 N. W. 376; Sweeten v. Power & Light Co., 88 Wash. 679, 153 P. 1054; Stark v. Holtzclaw, 90 Fla. 207, 105 So. 330, 41 A. L. R. 1323; Chickering v. Lincoln County Power Co., 118 Me. 414, 108 A. 460; Shannon v. Light & Power Co., 315 Mo. 1136, 287 S. W. 1031; Deming v. City of Chicago, 321 Ill. 341, 151 N. E. 886; Cooper v. Power Co., 117 Or. 652, 244 P. 665-671, 245 P. 317; Electric-Light & Power...