City of Weatherford Water, Light & Ice Co. v. Veit

• Decision Date: 28 April 1917
• Docket Number: (No. 8624.)
• Parties: CITY OF WEATHERFORD WATER, LIGHT & ICE CO. v. VEIT et al.
• Court: Texas Court of Appeals

196 S.W. 986

CITY OF WEATHERFORD WATER, LIGHT & ICE CO. v. VEIT et al.

(No. 8624.)

Court of Civil Appeals of Texas. Ft. Worth.

April 28, 1917.

On Motion for Rehearing, June 30, 1917.

COPYRIGHT MATERIAL OMITTED

Appeal from District Court, Parker County; F. O. McKinsey, Judge.

Suit by Alvin Veit and others against the City of Weatherford Water, Light & Ice Company. Judgment for plaintiffs, and defendant appeals. Affirmed in part, and reversed and rendered in part. Motion for rehearing overruled.

H. C. Shropshire and Hood & Shadle, all of Weatherford, for appellant. Theodore Mack and R. L. Carlock, both of Ft. Worth, and W. S. Bramlett and J. D. Frank, both of Dallas, for appellees.

CONNER, C. J.

The appellee Alvin Veit instituted this suit for damages arising from injuries to his person against the city of Weatherford Water, Light & Ice Company, hereinafter referred to as the Light Company, alleging, briefly, that on the 8th day of February, 1915, he was an employé of the Southwestern Telegraph & Telephone Company, hereinafter referred to as the Telephone Company, as one of its linemen; that the Telephone Company had occasion to make some repairs on its line in the city of Weatherford, and directed him to go to that point from his residence in Ft. Worth, Tex., to assist in making the repairs; that in order to make the required repairs it became necessary for him to ascend one of the poles of the Telephone Company supporting a wire cable attached to a cross-arm near the top of the pole, which was some 25 to 30 feet above the pavement; that after having ascended to the top of the pole, and in descending therefrom, he came in contact with a high-tension, uninsulated wire of the Light Company, and was thereby so shocked and paralyzed as to be unable to release himself; and that upon having been released from contact with the high-voltage wire by another he fell to the pavement below and was seriously injured. It was alleged that the Light Company had erected and maintained its pole supporting the high-tension wire in close proximity to the telephone pole; that the light pole was some 8 to 12 feet lower than the telephone pole; that the high-tension wire of the Light Company had been fixed and maintained upon the inner instead of the outer portions of the crossbar, which was carrying the Light Company's wires; that in so fixing and maintaining said high-voltage wire in such proximity to the telephone pole the Light Company, in order to prevent its said high-voltage wire from coming in contact with the telephone pole, had attached to the telephone pole a bracket to which the light wire was attached, and which had the result of placing the wire but a few inches from the telephone pole and a few inches below an iron step fixed to the telephone pole for the use of the employés of the Telephone Company in ascending and descending the pole carrying the telephone wires. It was charged that the Light Company was negligent in all of these particulars.

The appellant company answered by a general denial, plea of contributory negligence on appellee's part, and specially alleged, among other things, that its said light pole had been erected on the streets of Weatherford under the direction of that city many years prior to the time that the telephone pole in question was erected; that its said light wire had been attached to the bracket fixed to the telephone pole for the protection of the telephone pole and had been long known to the Telephone Company; that there had been an understanding and agreement between the Light and Telephone Companies whereby the Light Company would shut off the current of electricity upon its wires when employés of the Telephone Company were required to make repairs upon its wires; that upon the occasion in question, if it was dangerous under the circumstances for the plaintiff to have ascended the telephone pole mentioned in his pleadings, the Telephone Company well knew of the fact, and, so knowing, made no request for the electric light current to be shut off; and that it, hence, was negligence on the part of the Telephone Company to so erect its pole and direct repairs, without such request, upon the pole in such close proximity to the light wire. For these reasons it was alleged that the injuries to the plaintiff were proximately caused by the negligence of the Telephone Company, and the Telephone Company was accordingly made a party with defendant, with prayer on the part of the Light Company that whatever judgment, if any, against it might be rendered in favor of plaintiff might also be rendered in its favor over against the Telephone Company.

The case was submitted to a jury upon special issues, and upon the return of the verdict, which was generally in favor of plaintiff upon all issues, the court entered a judgment for the plaintiff against the appellant Light Company for $1,850, with interest thereon from the 9th day of May, 1916, at the rate of 6 per cent. per annum with all costs of suit. The judgment was also against the appellant company and in favor of the Telephone Company on the former company's cross-bill, and the Light Company has appealed.

There are, as it seems to us, but two serious questions presented. The first is whether the verdict of the jury in favor of the plaintiff on the issue of his contributory negligence is supported by the evidence; and the second is whether, under the undisputed evidence, the appellant company was entitled to a judgment over against the Telephone Company on its cross-plea, and these questions will be disposed of in their order.

We will not set out the evidence at length. It has been carefully considered, however, and, in substance, is sufficient to support the following conclusions: That the plaintiff had been in the employ of the Telephone Company for several years and was what was termed as an experienced lineman; that he lived in the city of Ft. Worth, and went to Weatherford upon the occasion in question in response to the orders of his foreman, a Mr. Holmes; that the cables and wires of the Telephone Company had become deranged by reason of a recent fire, and that as part of the duties of his employment the plaintiff was required to ascend the pole in question in order to test and repair the telephone wires; that the plaintiff was unacquainted in the city of Weatherford, and unacquainted with the precise condition and arrangement of the electric light wires, although he knew such wires were in existence and being maintained upon the Light Company's poles. He could also see the location of the several poles mentioned, and could see and have observed the arrangement of the electric light wires and could, had he looked with that end in view, have seen and observed the proximity of the light wire to the telephone pole and to the iron bracket thereon situated. He was without knowledge or information, however, that the Light Company carried its high-tension wires on the inner portions of its crossbar; the general custom being to carry wires of high voltage on the outer ends of the crossbars so as to remove such high-voltage wires from easy contact on the part of employés in ascending or descending its poles. The plaintiff at the time had not been warned or notified that the electric light high-tension wire was carried on the inner portion of its crossbar, or that the high-voltage wire had been attached by a bracket to the telephone pole, or that the high-voltage wire was without insulation at that point, and he in fact testified that he did not know these things at the time that he ascended the pole, although, as stated, had he examined the wire for the purpose of ascertaining, he could, and doubtless would, have noticed the attached wire, and could, and doubtless would, have noticed the want of insulation. In this respect, however, he stated that in going up the telephone pole, which he did safely, he did not notice that the electric light wire was uninsulated and in fact did not know that it was a high-voltage wire. He testified that after he ascended the telephone pole, which was some 8 to 12 feet higher than the light pole, his foreman, Holmes, called to him in answer to which he undertook to descend the telephone pole; that he had attached to each leg the usual iron spur worn by employés to aid them in ascending and descending poles; that on the telephone pole affixed to the north and south sides thereof were iron steps from some 8 or 10 feet from the bottom of the pole to near the top; that the steps were about 3 feet apart; that when on the occasion under consideration he undertook to descend he grasped with his left hand what is termed the "stell messenger" that supported the cable of the telephone wires and started to swing himself underneath the cable in order to go down the center of the pole; that in doing so he swung his body to the south with his right foot at an angle toward the second iron step from the top, whereupon, to use his expression, "the electricity grabbed" him and he was unable to turn loose. The evidence further shows that he remained transfixed to the high-voltage wire of appellant company until Mr. Holmes, in answer to the screams of the appellee, ran and ascended the pole and removed the appellee's foot from the contact wire, whereupon appellee fell to the pavement below, as heretofore stated. There is evidence tending to show that the high-voltage wire of appellant company had been, by the Light Company, attached to the telephone pole on a bracket, as alleged, within 2 inches of the iron step which the appellee was evidently intending to reach when his foot came in contact with the high-voltage wire. The evidence does not make certain whether plaintiff's foot or the iron spur with which it was equipped came in contact with the high-voltage wire before the plaintiff's foot reached the step, or whether his foot reached the step and therefrom slipped upon the wire.

The jury found that the appellant...