Southwestern Gas & Electric Co. v. Lain

• Decision Date: 10 December 1943
• Docket Number: No. 10625.,10625.
• Citation: 139 F.2d 142
• Court: U.S. Court of Appeals — Fifth Circuit
• Parties: SOUTHWESTERN GAS & ELECTRIC CO. v. LAIN et al.

139 F.2d 142 (1943)

SOUTHWESTERN GAS & ELECTRIC CO. v. LAIN et al.

No. 10625.

Circuit Court of Appeals, Fifth Circuit.

December 10, 1943.

George Prendergast, of Marshall, Tex., for appellant.

Hugh Carney and Howard A. Carney, both of Atlanta, Tex., and Chas. B. Wallace, Walace Hawkins, and Jerome Chamberlain, all of Dallas, Tex., for appellees.

Before HUTCHESON, McCORD, and WALLER, Circuit Judges.

McCORD, Circuit Judge.

Charley J. Young, while in the employ of Magnolia Petroleum Company in an oil field in east Texas, received an electrical shock which resulted in his death.

The death of Young resulted in a court action and the important facts surrounding his death are these: Magnolia Petroleum Company owned and operated oil wells on certain leased property in east Texas; after its wells were in operation it constructed oil tanks in which to treat crude oil by forcing steam into the tanks so as to remove dirt and basic sediment from the oil.

On a certain day in January 1941 Charley J. Young with a fellow laborer, climbed to the top of one of the tanks by a stairway which was erected on the outside of the tank, and set about disconnecting a metal pipe which was called a "riser" and which was connected and protruded through a "thief hatch" on top of the tank into the tank. The metal riser was twenty feet in length and one and one-fourth inches in diameter; fire had broken out on the property and gas escaping from the open thief hatch was highly inflammable and invited fire hazard and was therefore ordered closed; the top of the tank was oval, studded with bolts and a vent pipe extended two feet above the top, and a hatch opening also extended into the top.

Several months after Magnolia Petroleum Company entered upon its lease, Southwestern Gas and Electric Company erected its line of wires across the leased property of Magnolia Petroleum Company near unto and adjacent to the oil tank on which Young worked at the time of the accident; the wires of Electric Company extended almost directly above the tank. It was shown without dispute that the wires of Electric Company had not been erected as contemplated in the first survey and according to the blueprints, but were erected much closer and in such proximity to the tank that the head of a man who was five feet nine inches in height, standing on top of the tank, would have been between eleven and thirteen feet from the nearest wire; the National Electric Safety Code, Bureau of Standards of the United States Department of Commerce was cited by both parties; the wires carried a voltage of 11,000 volts between conductors and 6,900 volts between one wire and the ground; there was a sharp conflict in the evidence as to whether the wires were placed too near the tank and fire wall for safety; Electric Company had knowledge of the tank in question before it erected its lines; knew that Petroleum Company constantly directed and required its employees to go upon the top of the tank to perform work which was necessary in and about its business. It was stipulated and agreed that the electric line in question was patrolled by line walkers of the Electric Company frequently and periodically; it gave no notice to the Petroleum Company of the kind and character of electricity transmitted over the lines, and the Electric Company received no permission from the Petroleum Company to construct, operate and maintain the line at, near, or over its tank battery in question; Petroleum Company knew the electric line was so located and made no complaint or objection as to the erection or location of the line to the Electric Company; no warnings were given to the servants or employees of the Petroleum Company of the danger of the wires carrying the high voltage, and no warning signs were erected or maintained at or about the electric line or near the tank battery.

Charley J. Young and his fellow laborer spent about ten minutes in disconnecting the riser and while they were engaged in withdrawing it from the tank Young's helper cleansed it of oil and Young then took possession of the...