Brush Electric Light & Power Co. v. Lefevre

• Decision Date: 01 February 1900
• Citation: 55 S.W. 396
• Parties: BRUSH ELECTRIC LIGHT & POWER CO. v. LEFEVRE et ux.<SMALL><SUP>1</SUP></SMALL>
• Court: Texas Court of Appeals

55 S.W. 396

BRUSH ELECTRIC LIGHT & POWER CO. v. LEFEVRE et ux.¹

Court of Civil Appeals of Texas.

February 1, 1900.

Appeal from district court, Galveston county; William H. Stewart, Judge.

Action by E. Lefevre and wife against the Brush Electric Light & Power Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

Terry, Ballinger & Smith, for appellant. James B. & Chas. J. Stubbs, for appellees.

GARRETT, C. J.

This action was brought by the appellees, E. Lefevre and his wife, Clara Lefevre, against the Brush Electric Light & Power Company, to recover damages for injuries resulting in the death of their son Paul Lefevre, which they alleged were received through the negligence of the appellant. A jury trial in the court below resulted in a verdict and judgment in favor of the appellees for the sum of $4,000, apportioned $1,000 to E. Lefevre, and $3,000 to Clara Lefevre. The injuries were received through a contact with the wires of the appellant in the city of Galveston in the morning of February 27, 1897. The deceased was in the employment of his father, and, with other workmen, was assisting him in moving a house from the wharf, near Center or Twenty-First street, to Avenue A and Sixteenth street. They reached the intersection of Strand and Twenty-First streets, where the wires of the appellant extended diagonally across the intersection from the northeast corner to the southwest corner thereof. The wires were attached to glass insulators, on a trestle which was fixed on the awning of a building over the sidewalk at the northeast corner, and were also fixed at the southwest corner. From the trestle at the northeast corner two of the wires were run down through the awning, and attached to insulators. The trestle was about 2½ feet high above the awning. At the place where the wires were fixed to the trestle they were 19 feet and some inches above the street, and at the lowest place across the intersection they sagged to within about 16 feet of the street. The house being moved was about 24 feet high. When the intersection of the streets was reached, the appellee E. Lefevre caused a rope to be tied to the wires, and the deceased went on top of the house for the purpose of pulling the wires over the roof, so that the house might be moved under them. The father went upon the awning at the trestle, and reached over the trestle to raise the wires, and assist his son to get them over the house. He reached over the trestle as far as he could, and took hold of the two wires of the appellant in order to assist his son in raising them, but as soon as he got hold of them he received a severe shock, from which he lost consciousness, and fell upon the awning, still holding on to the wires. His son left his place upon the roof of the house, and with one of the workmen went to him at once, and extricated him from the wires. By the administration of restoratives, he soon regained consciousness, and stood up on the awning, supported by his son and the workman. He afterwards announced that he was all right, and for them to let go of him. Both did so, and after conversing a while the son was seen to turn from his father, standing near the trestle. Next he was seen hold of the wires, and involved in them. He was extricated, and soon after died. There is a conflict of testimony as to how the son came in contact with the wires. A witness who says he was standing on the sidewalk at the southeast corner of the street intersection testified that he saw the father go and take hold of the wires, as if to raise them for the house to pass under, and that he was shocked and fell, and was revived; that then the son made the same attempt at the wires, and was shocked, and the men tried to revive him, but failed. Other witnesses testified that after the father had been revived, and the son had let go of him, and was standing near him, and near the trestle, the father again fell, as if from dizziness, and in falling fell against his son, and threw him onto the trestle, and that in falling the latter seized the wires with his hands. The father states that he lost consciousness and fell. There is a conflict also in the evidence about where the father and son caught hold of the wires. It was testified that the father reached out, and caught hold of the horizontal wires, to assist in raising them over the house, and the same witness stated that the son caught hold of the wires at the same place that the father caught hold of them; but the preponderance of the evidence shows that the son caught hold of the vertical wires, running down to the awning, at a place where they had been spliced. This the jury may have found to be the fact.

The appellee E. Lefevre was a house-mover by occupation, and had frequently moved houses under the wires of appellant and others. In addition to the wires of appellant, there were strung in the city the wires of the street-railway company and of the city electric light plant. Sometimes it would be necessary to cut the wires in order to get by them with a house. This service was performed by the owner of the wires to be cut, and a charge was made therefor. E. Lefevre sought to avoid this expense whenever he could, and there would frequently be trouble between him and the employés of the appellant and of the street-railway company about his interfering with their wires. They forbade him to touch them, and threatened to have him arrested for interfering with their property, and also frequently cautioned him about the danger of coming in contact with the wires, and told him of his liability to be killed by them. He knew the danger of coming in contact with a live wire. Lefevre testified that he thought the wires that he took hold of were the city wires, and that when he took hold of them the street lights had been put out, and he supposed the current of electricity had been cut off, and that they were not charged, and were harmless. At the place E. Lefevre took hold of the wires they were covered for insulation. He had moved a house under the same wires in the same manner about eight days before.

There was an ordinance of the city in force at the time which required electric wires to be strung on poles not less than 25 feet above the grade of the street. The covering of the wires was old and worn, and almost useless for the purpose of insulation. At the place where Paul Lefevre probably took hold of the wires they were bare. They had not been recovered when spliced. The insulation used was of an inferior quality, and would be effective in this climate only about six months. It had been in use for several years.

We conclude that the deceased, Paul Lefevre, met his death by the negligence of the appellant in failing to have the wires properly insulated, and without fault on his part; finding, in support of the verdict of the jury, that he was accidentally thrown or knocked down by the fall of his father against him, and fell across the trestle, and involuntarily seized the vertical wires at the place where they were bare. Appellant was also negligent in failing to have its wires strung to a height of not less than 25 feet above the surface of the street. Not deeming it material to a recovery in this case, we make no finding as to the negligence or not of the appellee E. Lefevre in taking hold of the wires.

The first assignment of error presented by the appellant is upon the failure of the court to set aside the verdict of the jury, and award a new trial, because E....