Cloud v. Houston Lighting & Power Co.

• Decision Date: 16 January 1947
• Docket Number: No. 11846.,11846.
• Citation: 199 S.W.2d 260
• Parties: CLOUD et al. v. HOUSTON LIGHTING & POWER CO.
• Court: Texas Court of Appeals

199 S.W.2d 260

CLOUD et al. v. HOUSTON LIGHTING & POWER CO.

No. 11846.

Court of Civil Appeals of Texas. Galveston.

January 16, 1947.

Rehearing Denied February 6, 1947.

Appeal from District Court, Austin County; J. R. Fuchs, Judge.

Action by Nora Cloud, in her own behalf and as next friend for her four minor children, against the Houston Lighting & Power Company for the death of T. P. Cloud from burns received when he came into contact with a sagging electric wire. Judgment for defendant, and plaintiffs appeal.

Affirmed.

C. L. Krueger and Polk Shelton, both of Austin, for appellants.

Tom M. Davis and Baine P. Kerr, both of Houston (Baker, Botts, Andrews & Walne, of Houston, of counsel), for appellee.

MONTEITH, Chief Justice.

This action was brought by Nora Cloud in her own behalf, and as next friend for her four minor children, to recover from appellee, Houston Lighting & Power Company, damages arising from the death of her husband and the father of her children, T. P. Cloud, which was alleged to have been a result of the negligence of appellee in the construction, maintenance, and operation of its electric power line. The deceased received burns from which he died when he allegedly came in contact with a wire from one of appellee's electric transmission lines.

In answer to special issues submitted, a jury found in substance that appellee was negligent in the construction, operation and maintenance of its power lines and that such negligence was the proximate cause of decedent's injury. They found, however, that the decedent saw that the said power line was sagging as he approached the electric line; that he was negligent in attempting to drive the wagon under the sagging line, and that such negligence was the proximate cause of his injury and death.

The accident which caused T. P. Cloud's death occurred in the early morning of April 8, 1942, at a point where appellee's power line crossed the old Sealy-Eagle Lake road in Austin County, Texas. There had been a severe electrical storm and a heavy rain the night before the accident, and at the time of the accident the road under the electric line was wet and the atmosphere was cloudy. During the storm on the preceding night a cross-arm supporting the power line had been broken, causing one of the wires in the line to sag to within 2½ and 3 feet above the head of the deceased when he was sitting on the seat of the wagon. At the time of the accident the deceased, a colored man 34 years of age, was proceeding to his work along said road in his employer's wagon, pulled by a mule. He was accompanied by a fellow employee, Charley Nash, who was standing in the rear of the wagon. Charley Nash testified that he saw the wire from the transmission line hanging over the road when they were 30 or 40 yards away; that he advised the deceased not to drive under it, and that, when deceased continued to drive toward the wire, he, Nash, jumped from the wagon. He testified that he heard something pop and that when he looked back the wagon was under the sagging wire, the deceased had fallen across the seat of the wagon, and the mule had fallen down.

A stick several feet long, which deceased had used as a whip, was lying in a pool of water at the left side of the wagon. There is no other testimony in the record tending to show how the accident occurred.

Appellants' main contention on appeal is that there was no evidence in the record raising the issue of the contributory negligence of the deceased and that there is no evidence to support the jury's finding that he was negligent, or that the deceased had any knowledge of the fact that he was placing himself in a position of danger by driving under or into the wire.

It has been generally held in the decisions of both the courts of this State and other jurisdictions, that "The contributory negligence of one who receives an injurious shock or is killed by coming in contact with a sagging electric wire is generally a question for the determination of the jury." 84 A.L.R. 694.

In the case of McGinty v. Texas Power & Light Co. Tex.Civ.App., 71 S.W.2d 354, 357, writ of error refused, under a state of facts similar in all material respects to the facts in this case, the court in its opinion held that: "It may be stated that, at this time in the history of the use of electrical power, it is common knowledge that all electrical machinery and appliances, from which emanate wires carrying sufficient voltage to furnish the power to operate machinery, are dangerous to personal contact, and that every person going upon the immediate premises where such electrical machinery is operated, and from which such dangerous wires emanate, is charged with knowledge that, in doing so, he environs himself with grave danger."

In 38 American Jurisprudence, pages 864, 865, it is said that: "Care in avoiding injury implies that there is or would be with all prudent persons, something to create a sense of danger. A plaintiff's knowledge of the physical characteristics of the offending instrumentality or condition does not, in itself, constitute contributory negligence. A...