Allen v. Texas and Pacific Railway Company, 28223.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: GEWIN, GOLDBERG and SIMPSON, Circuit
• Citation: 430 F.2d 982
• Parties: Mrs. Thomas Floyd ALLEN, etc., Plaintiff-Appellant, Aetna Insurance Company, Intervenor-Appellant, v. TEXAS AND PACIFIC RAILWAY COMPANY, Defendant-Appellee.
• Docket Number: No. 28223.,28223.
• Decision Date: 18 September 1970

430 F.2d 982 (1970)

Mrs. Thomas Floyd ALLEN, etc., Plaintiff-Appellant,
Aetna Insurance Company, Intervenor-Appellant,
v.
TEXAS AND PACIFIC RAILWAY COMPANY, Defendant-Appellee.

No. 28223.

United States Court of Appeals, Fifth Circuit.

August 11, 1970.

Rehearing Denied September 18, 1970.

430 F.2d 983

Scott Baldwin, Doyle Curry, Marshall, Tex., for Allen.

Jason W. Smith, Brady Coleman, Longview, Tex., for Aetna.

Franklin Jones, Jr., Jones, Jones & Baldwin, Marshall, Tex., for plaintiff-appellant.

Jack W. Flock, Tyler, Tex., for appellee; Mike A. Hatchell, Ramey, Brelsford, Flock, Devereux & Hutchins, Tyler, Tex., of counsel.

Before GEWIN, GOLDBERG and SIMPSON, Circuit Judges.

GEWIN, Circuit Judge:

Appellants brought suit against the Texas & Pacific Railway Company (hereinafter, the Railroad) for the wrongful death of Thomas Floyd Allen who was electrocuted while erecting a sign on the Railroad's right of way. The district court granted summary judgment for the Railroad. We reverse.

On 9 August 1967, decedent, an employee of Rainbo Sign Company, was a member of a crew erecting a billboard in the vicinity of Terrell, Texas, on the Railroad's right of way. The sign was being located directly beneath high voltage transmission lines maintained by the Railroad. Decedent was killed almost instantaneously when he came into contact with a line carrying 550 volts of electric current. Neither Rainbo Sign Company nor the decedent had express permission to be on the right of way or to erect the road sign thereon.

With jurisdiction grounded in diversity of citizenship,¹ decedent's widow individually and on behalf of their minor child, brought suit in the district court. Aetna Insurance Company intervened seeking recovery of benefits paid under the Texas Workmen's Compensation Act. Decedent's parents intervened to recover contributions lost as a result of his death. Appellants alleged that decedent's death was proximately caused by the Railroad's negligent maintenance of its transmission lines. They specifically alleged that the lines were dangerously low and below the minimum height required by state law.² The Railroad moved for summary judgment asserting that, at the time of his fatal injury, the decedent was a trespasser or a mere licensee upon its right of way. As a result, the Railroad contended that it owed him no duty except to refrain from affirmatively injuring him. The district court ultimately granted the motion for summary judgment.

430 F.2d 984

The Erie question to be resolved is whether the district court properly determined that the Railroad owed the decedent no duty of care which could have been breached in the circumstances of the present case. The Railroad relies on a general proposition of Texas tort law that the owner or occupant of realty is under no obligation to make his realty safe for trespassers or mere licensees; i. e. persons coming onto the property without his express or implied invitation. These individuals must take the premises as they find them, and the owner or occupant owes them no duty except to refrain from injuring them willfully, wantonly or through gross negligence.³

In the present case it seems reasonable to assume that the decedent was a trespasser on the land, and that the above rule, if applicable, would bar any recovery.⁴ However, on the authority of Texas-Louisiana Power Co. v. Webster,⁵ appellants contend that the general rule does not apply. In Webster three men were killed when they came into contact with a fallen power line while venturing uninvited onto a farm in search of aid for their stalled auto. The Texas Supreme Court held that the power company owed these men a duty of ordinary care, in spite of its conclusion that they were "pure trespassers" on the land. The power company maintained its lines across the farm under an easement from the owner, and the court held that its status was not comparable to that of an owner or occupant of the premises. It stated:

The power company was not in possession of the land here involved, except for the purposes and with the rights incident to its easement or right of way deed. It had no right under such deed, or under the law, to maintain its wire in the low, sagging condition here shown. In this regard it did not lawfully occupy the space where this wire was hanging, with the consent of the owner.⁶

If, in the present case, the Railroad's power lines were on the property pursuant to an easement to maintain power lines over it, there would be little question that Webster would control the outcome. The Railroad has admitted that the fatal line was suspended below the level required by state law.⁷ But, the

430 F.2d 985

Railroad's rights in the property were derived from a somewhat broader right of way deed granting the company

* * * The right-of-way through and over all of our land * * * embracing one hundred feet on each side of the tract of said road and relinquishing the cattleguard, together with the use

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