Denison Light & Power Co. v. Patton

• Decision Date: 18 February 1911
• Court: Texas Court of Appeals
• Parties: DENISON LIGHT & POWER CO. v. PATTON.<SMALL><SUP>†</SUP></SMALL>

135 S.W. 1040

DENISON LIGHT & POWER CO. v. PATTON.^†

Court of Civil Appeals of Texas.

February 18, 1911.

On Motions for Rehearing and for Additional Conclusions of Fact, March 25, 1911.

Appeal from District Court, Grayson County; B. L. Jones, Judge.

Action by B. B. Patton against the Denison Light & Power Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Harry P. Lawther and Head, Dillard, Smith & Head, for appellant. E. J. Smith, John C. Wall, and W. S. Bramlett, for appellee.

TALBOT, J.

The appellee, Patton, brought this suit against the appellant, Denison Light & Power Company, and the Southwestern Telegraph & Telephone Company, to recover damages for personal injuries alleged to have been sustained by him as the result of an electrical shock received October 23, 1908, while in the employ of the Southwestern Telegraph & Telephone Company. The defenses pleaded by both defendants were a general denial, contributory negligence, and assumed risk. Upon the conclusion of the evidence, the trial court instructed a verdict for the Southwestern Telegraph & Telephone Company, but submitted the case to the jury as to the Denison Light & Power Company. The jury returned a verdict in favor of the plaintiff for $12,000, upon which judgment was duly entered, and the Denison Light & Power Company has appealed.

The evidence shows that on the 23d day of October, 1908, the Denison Light & Power Company was, and had been for a long time prior thereto, operating an electric light plant in the city of Denison, Tex., by means of poles and wires stretched thereon along and over various streets of said city, and that the Southwestern Telegraph & Telephone Company likewise operated a telephone plant in said city. At the corner of Hull street and Austin avenue stood a pole of the Denison Light & Power Company upon the cross-arms of which its wires were strung. This pole stood about midway between two poles of the telephone company, upon which two poles, and above the wires of the Denison Light & Power Company, the telephone company had a cable stretched with a number of telephone wires in it and attached to a messenger wire, which ran north and south. On the day and night of October 21, 1908, there was a heavy rain and electrical storm, and on the afternoon of the next day the appellee and two other employés of the telephone company, serving in the capacity of linemen, were sent out to locate and repair defects in its wires, which had been discovered to exist. When the corner of Hull street and Austin avenue was reached, the appellee observed a hole in the telephone company's cable about a foot and a half north of the light and power company's pole. Appellee climbed up the light and power company's pole and announced to his companions that the "trouble" they were hunting was there in the cable. The wires of the two companies at this point were in dangerous proximity to each other, and both companies had for some time permitted them to be and remain that way. Upon discovering that the hole in the cable had been burned, and with a view of removing the cable and the wires of the light company farther apart, appellee got a cross-arm belonging to the telephone company, and he and his companions attached it to the light company's pole near its top, put the cable and messenger wire on the top of the cross-arm, and thus raised them about 3½ feet above the top of the light company's pole. After raising the cable, they wrapped the burned place in it with oilcloth, and, it now being 5:30 o'clock, they quit work and left. As they left, O. P. Sammon, chief lineman of the light and power company, came up and observed the work appellee and his companions had done. On the next morning, October 23, 1908, appellee went back to the corner of Hull street and Austin avenue to continue and complete the work on the telephone company's cable, which had been begun the afternoon before. He testified, however, that before commencing his work he called up the gas plant operated by the appellant and asked the man who answered the call to go to the plant of the light company and ascertain whether the power was on on South Austin and Hull streets. The man reported that the engineer said there was no power on. He further testified that he had told the engineer of the light company, Brown, that he was going to work on the cable at the corner of Hull street and Austin avenue and not to turn on any power. Brown, the engineer of the light company, testified that appellee came by the plant on the morning of the 23d, and told him he was going to do some repair work at the corner of Hull and Austin streets, and asked if there was any current or power on that morning; that in reply to this question he (Brown) informed appellee that there would be no current on before 4 o'clock in the afternoon unless it was ordered by the company; that he would have to put on the power if he was directed to do so; that he might get orders to turn the current on from the lineman; and that he (Patton) would have to look to the office of the light company for an order to keep the current off. After this appellee went up the light company's pole, to which he had attached the cross-arm the evening before, and, with the assistance of another employé of the telephone company, swung a wooden platform, by means of straps hooked to the messenger wire supporting the cable, immediately underneath the hole in the cable. Appellee then got upon the platform, sat down upon it with his feet hanging below, and began to work upon the cable. In a short while after he began to work, the engineer of the appellant, by the direction of O. P. Sammon, the chief lineman of appellant, turned the power, or electricity, on the wires immediately underneath the platform upon which appellee was sitting at work, and he received the shock causing the injuries of which he complains. At the time Sammon ordered the current of electricity, which injured the appellee, to be turned on, he was out in the residence circuit of the light company and was repairing a transformer, and, in order to know whether or not his work was complete and that the company's customers would have light that night, it was necessary to test the same by having the current of electricity turned on. And it was for this purpose that he ordered the engineer to turn the electricity on the wires. It does not appear that Sammon, before appellee was injured, knew of the conversation which had occurred between appellee and the engineer, Brown, or knew of the telephone message which appellee says he received from the engineer before starting to work. Neither does it appear that Sammon had actual knowledge of the fact that appellee and his companions were at work on the cable at the time he ordered the current of electricity turned on. The appellee, at the time he was injured, had been working for the telephone company as "trouble shooter" inspector, etc., for 3½ years and was an experienced lineman, and knew the danger of coming in contact with a wire charged with electricity. Just how the electric current was communicated to his body does not definitely appear. The platform upon which he was seated probably touched, while he was on it, the wires of the light company; but whether by reason of the dampness of the platform and its contact with the wires underneath, or whether by reason of appellee's feet, hands, or legs coming in contact with the live wire of the light company, he was caused to receive the shock resulting in his injury, is uncertain. That he did receive an electrical shock, however, from appellant's wires does not seem to be, and cannot well be, denied.

The court charged the jury as follows: "If you believe from the evidence that on the evening of October 22, 1908, plaintiff, with other linemen of said telephone company, found it necessary to repair a cable of the said telephone company at or near the corner of Hull street and Austin avenue; and if you further believe from the evidence that certain wires of the Denison Light & Power Company were in close proximity to the said cable at the place where said repairs were to be made, and had been in such close proximity for some time prior thereto, and that such condition at this place was known to the Denison Light & Power Company; and if you further believe from the evidence that on said afternoon certain work and temporary repairs were done upon said cable at said place; and if you further believe from the evidence that one Sammon, line foreman for the Denison Light & Power Company, on said afternoon saw the conditions of the various wires and cable at said place, and the work that said linemen had done; and if you further believe from the evidence that it reasonably appeared to said Sammon that the said linemen would probably return on the morning of the 23d to complete the repairs on said cable, and that said work would be attendant with grave danger to said linemen if a current of electricity were turned on to said wires at said place; and if you further believe from the evidence that on the morning of October 23, 1908, the said linemen returned to said place to complete the work on said cable, and that to do said work it was necessary to fasten a platform on the messenger wire that held up said cable, and that said platform was fastened to said messenger wire near to a pole of the Denison Light & Power Company; and if you further believe from the evidence that the plaintiff took his position on said platform and engaged in the work of repairing said cable, and, while he was so engaged in said work, the said Sammon ordered a current of electricity turned onto the electric light wires that were at said place, and that by reason thereof plaintiff received a shock of electricity from said wires into which said electricity had been so turned, and that from the effect of said shock plaintiff was caused to fall and slip to the ground and thereby injured, either by the...