Dunaway v. Austin St. Ry. Co.
| Decision Date | 25 April 1917 |
| Docket Number | (No. 5744.)<SMALL><SUP>*</SUP></SMALL> |
| Parties | DUNAWAY et al. v. AUSTIN ST. RY. CO. et al. |
| Court | Texas Court of Appeals |
Appeal from District Court, Travis County; George Calhoun, Judge.
Action by Mrs. A. Z. Dunaway and others against the Austin Street Railway Company and the City of Austin. Judgment for defendants, and plaintiffs appeal. Affirmed in part, and in part reversed and remanded.
J. H. McLean, of Llano, and Batts & Brooks, of Austin, for appellants. White Cartledge & Wilcox, of Austin, for appellee Austin St. Ry. Co. J. B. Rector, City Atty., and Hart & Patterson, all of Austin, for appellee City of Austin.
Mrs. A. Z. Dunaway instituted this suit for her own benefit and the benefit of her minor children, and the mother of her deceased husband, W. E. Dunaway, who while acting as an employé of the city of Austin received injuries which resulted in his death. The suit was brought against the city of Austin, and also against the Austin Street Railway Company; the plaintiff charging that each of the defendants was guilty of certain specified acts of negligence.
Long before the accident which caused the death of W. E. Dunaway, the Street Railway Company constructed a railway line along East Twelfth street, in the city of Austin. The construction was in the following manner: The railway track was located approximately in the center of the street. Over the track and 20 or 30 feet from the ground was suspended the trolly wire which carried the electric current used in propelling the street cars. This trolley wire was supported by means of poles, which were placed opposite each other at intervals along each side of the street, and by guy wires which were stretched across the street from pole to pole and attached to the trolley wire. Some years after the construction of the street railway line, and more than a year before the death of Dunaway, the city of Austin constructed along one side of Twelth street its electric line carrying three wires, two of them designated as "primary" wires, and the other as an "arc light" wire, which wires were used by the city for the purpose of distributing currents of electricity. The "arc light" wire was strung on poles running along the side of the street and hung over the support poles of the street car trolley wire, and over the span wires that ran from the latter poles across the street. On the same poles that carried the arc light wire were strung the two primary wires, which constantly carried high-tension electric currents. The are wire carried over 2,000 volts of electricity.
On the 11th day of May, 1915, about 8 o'clock in the forenoon, the arc light wire of the city that runs along East Twelfth street was reported "hot" and in trouble. This wire does not ordinarily carry a current in the daytime, and was not then in use. On receipt of the report referred to, the city employés took certain steps to ascertain the cause of the trouble, and located and removed it the afternoon of the following day. The trouble was caused by the arc light wire coming in contact with an iron bolt in one of the poles supporting a guy wire of the railway company, which bolt was connected with the guy wire, and it in turn being connected with the grounded trolley wire. A very short time before this trouble was discovered and removed, W. E. Dunaway, while working as a lineman for the city on one of its poles on East Twelfth street, was killed by bringing his body into simultaneous connection with the grounded arc light wire and one of the primary city wires. The city's wires and poles, and the street car company's wires and poles, were placed in such close proximity to each other that the action of the wind and vibration incident to the passing of street cars with their trolley poles straining on the trolley wires would naturally in the course of time produce a loosening of all the poles and wires, and cause the wires to sag, and have a tendency to come in contact with one another.
The case was submitted to a jury upon 27 special issues, and the jury found that neither of the defendants was guilty of negligence as to the issues submitted, and that the deceased was guilty of contributory negligence. The trial court rendered judgment for the defendants, and the plaintiffs have appealed.
After carefully considering all the assignments of error that relate to the judgment in favor of the street railway company, we have concluded that none of them point out a sufficient reason for having that part of the judgment set aside or modified. It is not claimed in appellants' brief that the finding of the jury to the effect that that defendant was not guilty of negligence is not supported by the testimony; nor do we think the court committed such error in submitting that branch of the case to the jury as requires a reversal. Such being the case, if it be conceded, as contended by appellant, that one of the jurors was guilty of misconduct in stating to the jury his experience as a lineman, and how the deceased should have worked on the occasion when he was killed, such misconduct related only to the question of contributory negligence; and, if the verdict is permitted to stand, finding that the street railway company was not guilty of negligence, it is immaterial whether or not the deceased was himself guilty of negligence. If he was entirely free from negligence and exercised the utmost care, still appellant is not entitled to recover from the street railway company unless the latter was guilty of some act of negligence.
As between the other litigants, we have reached the conclusion that reversible error has been pointed out and that the case should be remanded for another trial, and our reasons for that conclusion will be briefly stated.
It was alleged in plaintiffs' petition that the defendant city of Austin, its servants and agents, were guilty of negligence, in that they failed to exercise ordinary care to prevent the arc light wire of the city from sagging and thereby coming in contact with a bolt in a pole of the street railway company which bolt, because of defective insulation of the railway company's support wire, and because of defective insulation of the arc light wire, was connected by an electrical conductor with the trolley wire and thereby caused the deadly current from the primary city wire to pass through the body of W. E. Dunaway and kill him, and that the city, its servants and agents, were thereby guilty of negligence, unskillfulness, and default which directly and proximately caused the death of W. E. Dunaway. It is also alleged that the city was guilty of negligence in failing to...
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