City of Greenville v. Pitts

• Decision Date: 05 February 1908
• Citation: 107 S.W. 50
• Parties: CITY OF GREENVILLE v. PITTS.
• Court: Texas Supreme Court

107 S.W. 50

CITY OF GREENVILLE v. PITTS.

Supreme Court of Texas.

February 5, 1908.

Error from Court of Civil Appeals of Third Supreme Judicial District.

Action by A. C. Pitts against the city of Greenville. From a judgment for plaintiff (102 S. W. 451), defendant brings error. Reversed, and judgment rendered for defendant.

L. L. Bowman and Yates & Carpenter, for plaintiff in error. Bennett & Spearman and Jones & Connor, for defendant in error.

WILLIAMS, J.

The defendant in error was a policeman in Greenville, and, suspecting that persons were gambling in a room in the upper story of a building in the city, he, on several occasions at night, ascended to the roof of an adjoining one-story building in order that he might see into the suspected place through its windows. After he had done this once or twice, and had seen gambling going on, he stated his action to the mayor, and expressed the opinion that it would be best, before making arrests, to continue his watch in order to identify a greater number of the persons thus violating the law, to which the mayor assented. He again went upon the roof at night, and, in moving about, he came in contact with and was burned by an electric wire which belonged to the city, and was used in connection with its electric lighting plant in supplying light. This wire extended north and south with and near to a fire wall between the building on which plaintiff was and an adjoining one, and ran down the partition wall between the two at one end. The insulating material upon it had become defective to such an extent as to render contact with it dangerous. The city operated its plant at night, its wires not being charged with electricity in the daytime, except on a few rare occasions. No way had been provided by the owner of the building upon which plaintiff went for getting upon it, and plaintiff reached its roof by climbing upon a fence in its rear and then passing over the top of a low, adjoining room. Access to the roof could also be had from the gallery of a nearby hotel across the walls and roof of an intervening house. It was shown that at times during parades and like occasions people had gone upon these roofs in the daytime, but not at night. Plaintiff had no invitation or express permission from the owner of the building to go upon it. We do not doubt that it was the duty of the city to the owners of the buildings, their servants, employés, and any one else, who may have had a legal right to go upon the roofs, to exercise proper care in maintaining the wire upon the partition wall to protect them against injury from contact with the wire. Giraudi v. Electric Imp. Co., 107 Cal. 120, 40 Pac. 108, 28 L. R. A. 596, 48 Am. St. Rep. 114; Ennis v. Gray, 87 Hun, 355, 34 N. Y. Supp. 379; Clements v. Louisiana Electric Light Co., 44 La. Ann. 692, 11 South. 51, 16 L. R. A. 43, 32 Am. St. Rep. 348; Illingsworth v. Boston Electric L. Co., 161 Mass. 583, 37 N. E. 778, 25 L. R. A. 552. But it owed no such duty to trespassers or bare licensees. Hector v. Boston Electric L. Co., 161 Mass. 558, 37 N. E. 773, 25 L. R. A. 554; 1 Thompson on Neg. §§ 946, 947, and cases cited. Plaintiff was invested with none of the legal rights which pertained...