City of Austin v. Johnson, 9538.

• Decision Date: 22 May 1946
• Docket Number: No. 9538.,9538.
• Citation: 195 S.W.2d 222
• Parties: CITY OF AUSTIN v. JOHNSON et al.
• Court: Texas Court of Appeals

195 S.W.2d 222

CITY OF AUSTIN v. JOHNSON et al.

No. 9538.

Court of Civil Appeals of Texas. Austin.

May 22, 1946.

Rehearing Denied June 12, 1946.

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Appeal from District Court, Travis County; J. Harris Gardner, Judge.

Action by Mrs. Vera Johnson, for herself and as next friend of her minor children, Edith and Lillian Johnson, against the City of Austin, to recover damages for death of Edward C. Johnson. Judgment for plaintiffs, and defendant appeals.

Affirmed.

House, Mercer, Edwards & Irvin, R. L. House, and Raymond Edwards, all of San Antonio, for appellant.

Polk Shelton, Looney & Clark, Everett L. Looney, and Donald S. Thomas, all of Austin, for appellees.

BLAIR, Justice.

Appellees, Mrs. Vera Johnson, for herself and as next friend of her minor children Edith and Lillian Johnson, sued appellant, the City of Austin, for damages for the death of Edward C. Johnson, the husband and father of appellees, which resulted from his coming in contact with electricity while going upon the steel structure of appellant's substation to replace a broken insulator or jumper. His death was alleged to have been caused by the negligent failure of appellant and its employees (1) to disconnect the wires carrying electricity to and into the southeast corner of the substation before ordering Johnson to remove the jumper from its southwest corner; and (2) to inform him at the time that electricity was coming down the wires to and into the southeast corner of the substation. The jury found each of these acts to be negligence and a proximate cause of Johnson's death; and upon these and other findings judgment was rendered for appellees for a total of $34,680 damages, apportioned among them as found by the jury.

Appellant contends (Points 1 to 5) that no evidence was adduced showing that Johnson met his death by coming in contact with electricity at the substation; and, if so, it raised a fact issue for the jury; and appellees not having requested its submission waived this controlling ground of recovery.

Neither of these contentions is sustained.

Johnson was employed by appellant as a trouble shooter. He had never before worked at the substation. At about 5 a. m. on June 13, 1943, A. S. Higgins, appellant's superintendent in charge of the substation, ordered Johnson to replace a broken insulator or jumper on top of the steel structure of the substation at its southwest corner. A few moments later Higgins saw Johnson falling from near the top of the steel structure at its southeast corner. When asked on direct examination, "what, if anything happened to him (Johnson) on that early morning of June 13, 1943, at the East Substation," Higgins replied that "he was killed by coming in contact with the energized wires and conductors at the substation." At the time the wires coming to and into the southeast corner of the substation were energized with or carrying 4,000 volts of electricity, enough to kill a man, if he came in contact with it. This was the only part of the substation structure that was energized, and several other employees of appellant were working on the structure at the time.

Employee Muston testified that he saw Johnson falling from the substation structure, "coming from towards the top" and falling to the ground, "close to the southeast corner." That some few minutes later, just after they had taken Johnson to the hospital, Higgins told witness that "it was all my fault, Muston, I sent him up into that hot stuff."

Employees Pryor, Robinson and Rountree, who were working on the substation structure and saw Johnson when he was either falling or lying on the ground at the southeast corner of the substation, testified to such facts and that artificial respiration was given Johnson from about thirty seconds after he fell continuously for about one hour and forty-five minutes, until he was pronounced dead at the hospital, without his having regained consciousness.

Higgins phoned his immediate superior, Ashford, who testified:

"Q. And what did Mr. Higgins say? A. Mr. Higgins said: `Ash, I am in serious trouble.' I said, `What is the matter?' He said, `I think I have killed a man.' I said, `Who was it?' And he said, `Johnson,' and I said, `Did you work on him?' He said, `Yes, we are working on him now.' I said, `Where are you?' And he said, `I am at the hospital.' I said, `I will be right down.' So I got in my car and went down."

Ashford further testified that when he reached the hospital Higgins was in "a very emotional condition, like he was almost hysterical." Ashford then worked with Johnson until he was pronounced dead.

Higgins testified that when he sent Johnson upon the structure to fix the insulator or jumper he appeared to be strong, robust, able-bodied and in good health.

Appellee Mrs. Johnson testified that when her husband went to work at 11 p. m. he was in good health, strong and robust; that she saw him the next morning at about 6 a.m. at the hospital; and that he was dead.

A certified copy of Johnson's death certificate was placed in evidence, which stated he met "accidental death due to electrical shock."

We think the foregoing evidence conclusively showed that Johnson met his death by coming in contact with appellant's energized wires at the top southeast corner of the substation structure. Higgins, appellant's superintendent, so testified. He was a skilled electrician and knew that the wires at the point from which he saw Johnson falling were carrying 4,000 volts of electricity, enough to kill any man if he came in contact with it. Higgins and the other employees of appellant who saw the accident tried to revive Johnson by artificial respiration; but he died without regaining consciousness. These were facts which came directly within the view and knowledge of the witnesses, and from which only one conclusion could reasonably be reached, that Johnson met his death by coming in contact with electricity coming from the wires and conductors thereof at the top southeast corner of the substation structure of appellant.

The law is settled that one experienced in the science of electricity may testify as an expert not only to the facts coming within his view or knowledge, but may also testify as to his opinion respecting a given state of facts. United States Fidelity & Guaranty Co. v. Rochester, Tex. Civ.App., 281 S.W. 306, affirmed 115 Texas 404, 283 S.W. 135.

The fact that Higgins could not or did not see the electricity enter the body of Johnson, or did not see any burns on his body, did not render his testimony that Johnson met his death by coming in contact with electricity from the wires of appellant a mere conclusion of the witness. The existence of the conditions giving rise to the accident was fully known to Higgins and the other employees of appellant, and each of them saw the accident. They each knew that there was sufficient electricity coming over the wires near the place they saw Johnson falling from the structure, and they saw him die without regaining consciousness, after each of them had attempted to revive him by artificial respiration, the treatment given one who has received an electrical shock. There was no evidence indicating that his death resulted from any other cause. If these witnesses had seen some person shoot at Johnson with a gun and had seen him fall and die, they could have testified to such facts although they did not see the bullet enter his body. In the instant case the existence of the conditions giving rise to the accident was shown without dispute, and we think such conditions conclusively show that Johnson met his death by coming in contact with the electrically energized wires and conductors near the top southeast corner of appellant's substation structure.

If the foregoing evidence were not sufficient to conclusively show that Johnson did so meet his death, it was amply sufficient to sustain a presumed finding of the trial judge that he did so meet his death in support of the judgment rendered.

It was alleged that Johnson met his death by coming in contact with the energized electric wires at the southeast top corner of appellant's substation structure, and as the result of the negligence of appellant (1) in not disconnecting the wires; and (2) in not warning Johnson of them before ordering him to go up on the structure to replace the broken jumper. The jury found that each of these acts was negligence and a proximate cause of the death of Johnson. No issue was submitted to the jury as to whether Johnson met his death by coming in contact with the energized wires. Under our foregoing holding that the evidence conclusively showed that he did meet his death in this manner, it was not necessary to submit such issue. There was no evidence indicating that his death resulted from any other cause.

But if the evidence were not conclusive that Johnson so met his death, no reversible error appears, because of not submitting such issue to the jury. Neither party requested the submission of the issue and neither party objected to the charge because it did not submit the issue. The foregoing evidence is amply sufficient to sustain a presumptive finding of the trial judge in support of the judgment rendered that Johnson did meet his death by coming in contact with the energized electric wires of appellant. Manifestly the question of whether Johnson so met his death was but one of the constituent elements of each of the two foregoing grounds of recovery; and in absence of a request for an issue to be submitted thereon, the trial court was justified in and is presumed to have found the issue in support of the judgment rendered. Rule 279, T.R.C.P.; Wichita Falls & Oklahoma Ry. Co. v. Pepper, 134 Tex. 360, 135 S.W.2d 79; Texas Employers Insurance Association v. Miller, 137 Tex. 449, 154 S.W.2d 450; Clowe & Cowan v. Morgan, Tex.Civ.App., 153 S.W.2d 863; Northern Ins. Co. v. Molloy, Tex.Civ.App., 146 S.W.2d 231.

We ov...