Ball v. Gulf States Utilities Co.

• Decision Date: 30 December 1938
• Docket Number: No. 3162.,3162.
• Citation: 123 S.W.2d 937
• Parties: BALL et al. v. GULF STATES UTILITIES CO.
• Court: Texas Court of Appeals

123 S.W.2d 937

BALL et al. v. GULF STATES UTILITIES CO.

No. 3162.

Court of Civil Appeals of Texas. Beaumont.

December 30, 1938.

Rehearing Denied January 18, 1939.

Appeal from District Court, Jefferson County; R. L. Murray, Judge.

Action by B. B. Ball and wife against the Gulf States Utilities Company to recover damages for personal injuries to plaintiffs' minor son, Dewey Maris Ball. Judgment for defendant, and plaintiffs appeal.

Affirmed.

Gilbert T. Adams, of Beaumont, for appellants.

Orgain, Carroll & Bell, of Beaumont, for appellee.

WALKER, Chief Justice.

This suit was filed by appellants, B. B. Ball and wife, the parents of Dewey Maris Ball, a little boy about ten years old, against appellee, Gulf States Utilities Company, for damages for personal injuries suffered by Dewey Maris on the 23d day of July, 1935. Judgment was entered in favor of appellee on an instructed verdict.

Briefly stated, the facts were as follows: Appellee maintains and operates high power lines on the main highway—a public road —between Batson and Saratoga in Hardin County. This road was not paved, but had been graveled, and had been maintained as a public road for more than twenty-eight years. At the point where Dewey Maris was injured, this road runs north and south. Appellee's high power lines are on the west side of the road, and its poles are in a drainage ditch within the boundaries of the right of way of the road, about 1 or 2 feet from the western boundary line of the right of way. The land along the west side of the road is fenced and is in cultivation; the fence is about 4 feet from the west side of the ditch. On the same poles, appellee maintains and operates one telephone line, 14 feet above the ground, and three high power lines, uninsulated, each carrying 66,000 volts of electricity. The middle of the lower high power line is 24.7 feet from the ground; the middle high power line is 30.7 feet; and at its highest point the top line is 35.6 feet, and drops to a distance of 35 feet. Appellee's poles, used to support these wires, are about 300 feet apart. No sign, or anything, is used to distinguish the telephone wire from the high power lines. The high power lines are supported by cross-arms 10 feet long, fastened at their middle to the poles. The high power lines were affixed to insulators which dropped down a distance of 26 inches from the cross-arms. The insulators were affixed to the cross-arms a distance of more than 30 inches on each side of the poles. This separation of the wires from the poles and from each other was for the purpose of preventing electricity from jumping from the wires to the poles and to the other wires. Appellee, prior to the time Dewey Maris was injured, had maintained its poles, telephone line, and high power lines, in the manner described for more than ten years under a franchise from Hardin County, without complaint of any nature from any source whatever. Appellants lived on the Batson-Saratoga highway with Mrs. Ball's mother, and within a radius of five or six hundred yards of their home lived the Thomas family and six or seven other families. All of these people constantly used this road and passed to and fro along and underneath appellee's lines. These electric lines do not serve this community, and the people thereabouts derive no benefit from them. During misty and cloudy and foggy weather there are sparks, flashes, balls of fire, and popping noises around these poles and wires which are loud enough to be heard a distance of more than 300 feet.

On the east side of the highway and in front of the Arnold home, there are local telephone lines at a height of approximately 12 feet from the ground.

On the 23d day of July, 1935, Mrs. Ball drove in her automobile to the home of her neighbor, Mrs. Arnold, accompanied by her son, Dewey Maris, and Stephen Hatcher, a little boy about eleven years old. The two little boys remained near the automobile while Mrs. Ball went into the house to see Mrs. Arnold. Stephen had a small wire —an armature wire. He gave Dewey Maris one end of the wire to hold and threw the other end over the telephone wire maintained on the east side of the road. Then, without warning Dewey Maris and without his knowledge—the evidence raised that issue—Stephen threw the wire over the top of appellee's high power lines on the west side of the road. From the contact of the armature wire with the top high power line, Dewey Maris suffered physical injuries and deformities, fearful beyond the power of words to describe.

At the time of the trial, Stephen Hatcher was with his mother in Illinois, and his testimony was not before the jury. It was not shown that Stephen knew appellee's lines were high power lines, or that he understood the nature and danger of high power lines. Dewey Maris testified that he did not know that Stephen was going to throw the armature wire over the high power line; that he would not have held the end of the wire had he known it was going to be thrown over the high power line; that there were no warning signs on the high power lines; that he knew that the wires were high power lines but that he did not know whether or not Stephen knew that the wires were high power lines.

Appellants thus state the purpose of this suit, their grounds of negligence, and their theories of recovery:

"Plaintiffs brought this action against defendant to recover the damages sustained by them and by the child. Two theories of recovery were plead.

"The first theory of recovery was grounded in negligence and proximate cause. The allegations are that the defendant was negligent in:

"1. In maintaining an uninsulated line charged with approximately 66,000 volts of electricity in the public place in question.

"2. In maintaining said high power line without a warning of its dangers.

"3. In maintaining the high power line and telephone lines on same pole without some sign distinguishing the two.

"4. In maintaining said high power line in a public street.

"5. In maintaining a nuisance.

"6. In not constructing said high power line higher than thirty-five feet. It was further alleged that such negligence was a proximate cause of the damages.

"The second theory of recovery was grounded in liability for maintenance of a public nuisance, not the attractive nuisance doctrine. Under this theory, appellant maintains that the erection of high power lines and poles within the boundaries of a public thoroughfare is violation of law and were so maintained without authority from the proper governmental agency. Appellants further contended that having established that the injuries were caused by the act of a third party in conjunction with the defendant's act of maintaining a nuisance, liability follows as a matter of law without any showing of negligence or proximate cause."

Opinion.

Because the judgment of the lower court must be affirmed on the theory...