Callan v. Bartlett Electric Cooperative, 11553

• Decision Date: 03 January 1968
• Docket Number: No. 11553,11553
• Citation: 423 S.W.2d 149
• Parties: Graydon W. CALLAN et al., Appellants, v. BARTLETT ELECTRIC COOPERATIVE, Inc., Appellee. . Austin
• Court: Texas Court of Appeals

Page 149

423 S.W.2d 149

Graydon W. CALLAN et al., Appellants, v. BARTLETT ELECTRIC COOPERATIVE, Inc., Appellee.

No. 11553.

Court of Civil Appeals of Texas Austin.

Jan. 3, 1968.

Rehearing Denied Jan. 24, 1968.

Dunnam, Dunnam & Dunnam, Vance Dunnam, Waco, Bowmer, Courtney & Burleson, Jim D. Bowmer, Bob Burleson, Temple, for appellants.

Jones, Boyd, Westbrook & Lovelace, Dan E. Mayfield, Waco, for appellee.

O'QUINN, Justice.

Graydon W. Callan suffered an electric shock in May, 1964, resulting in extensive personal injuries, while attempting to unshackle the drag line of a crane operated by another workman in the vicinity of high voltage electric lines owned by Bartlett Electric Cooperative, Inc., during construction of a dam across the Lampasas River at Stillhouse Hollow in Bell County.

Callan brought this suit seeking damages in the sum of $75,000, and Hartford Accident and Indemnity Company intervened to assert its claim in excess of $7,600 for payments made to Callan, or for his benefit, under the Workmen's Compensation Law. (Article 8307, sec. 6a, Vernon's Ann.Civ.Sts.)

After answering by general denial, subject to motions to quash and its pleas in abatement, Bartlett Electric on April 24, 1964, moved for summary judgment. Callan and Hartford answered and opposed the motion, but did not move for summary judgment.

The trial court entered judgment for Bartlett Electric Cooperative, Inc., May 11, 1967, on a finding that the pleadings, depositions, admissions, and affidavits showed an absence of genuine issue of any material fact except as to amount of damages.

Callan and Hartford have appealed from the award of summary judgment. Appellants contend there is a genuine issue as to material facts and appellee is not entitled to judgment as a matter of law. (Rule 166--A, Texas Rules Civ.Proc.)

It is uncontradicted that Bartlett Electric Cooperative, Inc., constructed an electrical line to and on the construction site of the Stillhouse Hollow Dam on the Lampasas River and supplied electric power to Missouri Valley Constructors, Markham and Brown, and Gibraltar Construction Company. Appellant Graydon Callan was employed by Markham and Brown as a carpenter helper and swamper on a drag line.

Appellants pleaded that Bartlett Electric negligently maintained power lines transmitting high voltage electricity at a location where Bartlett Electric knew workmen were operating cranes and drag lines of great height. The allegations were that Bartlett Electric did not warn or give notice to the workmen that the high voltage lines had a zone of electric current around the lines that would transmit electricity into the cranes and drag lines upon coming within the charged zone. Appellants alleged that these facts were peculiarly within the knowledge of Bartlett Electric and known by Bartlett to be outside the knowledge of the ordinary workman. The pleadings further averred that such negligence proximately caused the severe injuries to Callan.

Bartlett Electric's motion for summary judgment asserted that Callan had knowledge of the power lines and knew 'if contact should be made by the crane and the power lines' this 'would constitute a dangerous condition to him.' It was alleged that Callan appreciated the nature and extent of this danger and on the occasion of his injury voluntarily exposed himself to the danger. It was further asserted that Callan's son, Jerry, who was operator of the crane at the time of his father's injury, also knew about the power lines and knew that if the boom of the crane or its cable 'should come in contact with the power lines' this would endanger his father. Additional allegations were that Jerry Callan appreciated the nature and extent of the danger and knew his father would be unshackling wooden forms from the cable, or drag line, of the crane and would be exposed to danger of electrical shock 'should the crane or its cable make contact' with the power lines.

Neither the answer nor the motion for summary judgment replied specifically to the allegations by appellants that Bartlett Electric was negligent in not warning Callan and other workmen that the power lines had a zone of electric current capable of transmitting electricity to a crane or boom without actual contact with the power lines.

Bartlett Electric filed an affidavit in support of its motion executed by William P. Alexander, Jr., who for 15 years past had been employed by Bartlett Electric as its chief systems engineer. Alexander swore that the 'amount of voltage as carried in the lines * * * as a matter of scientific principle will not arc a distance of more than one-half inch from the line. * * *' Alexander also swore that a person or an object capable of conducting electricity 'would have to come within one-third to one-half inch' of the power line 'to create an arc of electricity' from the line to the person or conductor.

Written depositions of Both Graydon W. Callan and Jerry Callan were before the court. Both men swore that the crane boom had come to rest and was not moving at the time Graydon Callan sought to unshackle a wooden form from the cable. Jerry Callan swore the crane boom was not in contact with the power line and was not closer than six feet from the line. Jerry Callan declined to say that he saw an arc of electricity, but did testify that he heard some cracks. He testified he did not see fire fly, although he declared that '* * * fire just jumped from that line over to that boom.' When asked if he was 'taking precautions to keep the boom away from the wire,' Jerry Callan testified, 'Yes, sir, I know to keep the boom away from wires * * * But it jumped fire * * * And they'll sure do it, too.'

Jerry Callan also testified that when he saw his father fall, he left the crane cab at once to attend the stricken man. Jerry Callan said that in his haste he left the motor of the crane running. The boom could not move automatically. For the boom to move, he testified, one had to manipulate it. After reaching his father, Jerry saw a mechanic enter the cab and kill the motor on the crane. At that time the boom was six feet or more away from the power lines.

Bartlett Electric argues that no evidence by appellants had the legal effect of raising a genuine issue of fact. As we view the record, there was an issue of material fact raised by the testimony of Jerry Callan that while the boom did not come closer than six feet to the power line, electric current reached the boom and injured Graydon Callan when he touched the shackles on the drag line, and by the contradictory testimony of Alexander that as a scientific principle electric current in the power line would not arc more than one-half inch to transmit electricity to the boom.

The testimony of Alexander in effect seeks to negative the theory of appellants' case that Bartlett Electric was negligent in not warning Graydon Callan that the power lines were surrounded by a charged zone, a fact peculiarly within the knowledge of Bartlett Electric, and that injury could result without any contact whatever between the crane and the power line.

If the evidence of Alexander as the pronouncement of a purported scientific principle can be said to be conclusive on the court, then Jerry Callan's version of what happened does not raise an issue of fact. We think that for the trial court to grant summary judgment in this case, under the pleadings, depositions, admissions, and affidavits on file, it was necessary to reject Jerry Callan's testimony and to accept the scientific principle announced by Alexander as conclusive. We believe the law to be contrary and that the trial court erred in taking such action.

Alexander qualified as an expert witness in the field of electrical engineering. As an expert witness, Alexander was not entitled to such preferential treatment that no issue could be made by contradicting what he said. A jury is not bound to accept the testimony of an expert witness as true, and his opinion is entitled only to such weight as the jury may see fit to give it. Universal Life and Accident Ins. Co. v. Nanes, 92 S.W.2d 473 (Tex.Civ.App., Amarillo, writ dsmd.). Alexander was an expert testifying for his employer, Bartlett Electric, for whom he had worked fifteen years. The testimony of an expert, appearing as a witness for his master, is in the position of any interested witness. The weight of his expert testimony is for the jury and his credibility also is for the jury. Houston E. & W.T. Ry. Co. v. Southern Pine Lumber Co., 6 S.W.2d 418 (Tex.Civ.App., Beaumont, no writ).

The Supreme Court of Texas, in applying these principles to expert testimony, has said that '* * * the occasion has to be at least highly exceptional when such testimony, Even though not contradicted by an opposing expert, must be deemed true as a matter of law.' (Emphasis added.) Luttes v. State, 159 Tex. 500, 324 S.W.2d 167. The Supreme Court held that the testimony of the expert was but evidentiary and 'never binding upon the trier of facts.' In this connection, the Court observed also that 'The matter of credibility of the witness, that is to say, the extent to which his judgment, like that of all humans, however learned, may or may not be overconfident, zealous or 'slanted', is surely not altogether beyond the reach of the fact-finder.' 324 S.W.2d 167, 189, col. 1.

By terming Alexander's statement a 'scientific principle,' his testimony that electric current would not arc more than one-half inch acquires no additional legal weight. While it is a rule of law recognized by the courts of this State that evidence will be rejected if it is clearly contrary to undisputed laws of nature, the testimony must contravene such laws beyond any possible doubt. San Antonio & A.P. Ry. Co. v. Biggs, 283 S.W. 627 (Tex.Civ.App., Galveston, writ dsmd.); Missouri, K. & T. Ry. Co. v. Morin, 144 S.W. 1191 (Tex.Civ.App., Dallas, writ ref.). The rule has also been stated in American Jurisprudence that '* *...