Edwards v. Shell Oil Co.

• Decision Date: 22 January 1981
• Docket Number: No. 5492,5492
• Citation: 611 S.W.2d 904
• Parties: H. T. EDWARDS et al, Appellants, v. SHELL OIL COMPANY et al, Appellees.
• Court: Texas Court of Appeals

Page 904

611 S.W.2d 904

H. T. EDWARDS et al, Appellants, v. SHELL OIL COMPANY et al, Appellees.

No. 5492.

Court of Civil Appeals of Texas, Eastland.

Jan. 22, 1981.

Rehearing Denied Feb. 26, 1981.

Richard J. Clarkson, Beaumont, Childs & Bishop, Odessa, for appellants.

Elton Gilliland, Shafer, Gilliland, Davis, Bunton & McCollun, Inc., Odessa, Cecil Kuhne, Crenshaw, Dupree & Milam, Lubbock, for appellees.

McCLOUD, Chief Justice.

H. T. Edwards sued Shell Oil Company and K & S Electric Company for injuries he sustained on June 12, 1974, when he came in contact with an electrically charged guy line that extended from the top of a pole to the ground. ¹ K & S built the line on property controlled and maintained by Shell. The trial court instructed a verdict for K & S after the close of the evidence, and granted an instructed verdict for Shell after the jury was unable to reach a verdict. Plaintiff and intervenor appeal. We reverse and remand.

Plaintiff, an employee of Kelley-Coppedge, an independent contractor employed by Shell to construct a pipeline on premises controlled by Shell, was operating a ditching machine which dug up the guy line anchor causing the loose guy line to come in contact with a high voltage electrical line. Edwards either touched the energized guy line, or the guy line arced, causing him severe personal injuries.

In deciding if the instructed verdicts were proper, we must consider the evidence in its most favorable light in support of Edwards' position, and disregard all contrary evidence and inferences. Anderson v. Moore, 448 S.W.2d 105 (Tex.1969); Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377 (1945). When reasonable men may differ as to the truth of controlling facts, a jury issue is present. Henderson v. Travelers Insurance Company, 544 S.W.2d 649 (Tex.1976).

The controlling facts are sharply disputed. Plaintiff contends the guy line was either uninsulated or inadequately insulated. Plaintiff presented witnesses who had many years experience working with high voltage electrical lines who testified that the guy line was either uninsulated, or improperly insulated, and that such line should have been properly insulated to protect people who might come in contact with the guy line. Defendants' witnesses essentially testified that the line was properly insulated, and that the purpose of insulating the line was for lightning protection and not for the protection of people.

Bob Stephenson testified that he had worked for twenty-two years as a line foreman for Southwest Public Service, the utility that furnished electricity for the Shell system; he and a two-man crew arrived at the scene shortly after the accident; there was no guy strain insulator at the top of the pole when they arrived; he put in two guy strain insulators, spliced with a nine-inch piece of steel; the two insulators he installed were about six feet in length; safety of people working around the guy line is one of the reasons for installing guy strain insulators; if the guy wire breaks loose, the guy strain insulator should keep the guy wire from becoming energized; if there was a three-foot long guy strain insulator in the line, it would not have been long enough to extend over the high voltage primary line; and it would take about six feet to clear the primary line in the event the guy line became slack.

Kenneth Ray McGill and Wally Nichols testified that there was no insulator on the guy line at the time of the accident. Garland Moore, a Southwestern Public Service employee, stated that when he arrived at the accident scene he observed one approximately 24-inch guy strain insulator on the guy line. The insulator was not long enough to clear the "hot phase" in the event slack developed in the guy line. He testified that they added an insulator and a nine-inch steel splice to make the insulator long enough to extend over the high voltage line. Moore stated that the insulator should extend over the high voltage line for safety reasons. He said that it is not unusual for a guy wire to come loose. Larry Black, a trouble shooter for Southwestern Public Service Company, testified that he had been handling electricity for thirty-one years, and electricity is a dangerous instrumentality. He said that insulators are put on guy lines for safety reasons, and that guy lines from time to time come loose for various reasons.

The pipeline under construction ran parallel to the electric line. The location of the pipeline was determined and staked by Shell. There is evidence that the supervisor for Kelley-Coppedge was told by a Shell representative that they could not move the ditch over in the event guy lines got in the way. The supervisor, Nichols, stated that he asked Shell's representative if the ditch line was going to hit the guy line, and he was told that the engineers had staked it and missed everything.

As a result of the electric shock, plaintiff suffered a loss of memory and does not recall any of the events leading up to the accident. He had dug the ditch by another guy line the day before the accident and had encountered no problems. The guy line in question went into the ground at an angle and continued at an angle under the ground. Plaintiff was unaware the guy line continued at an angle underground.

Shell and K & S contend that plaintiff failed to prove the existence and violation of a legal duty owed to him by defendants. They rely upon Abalos v. Oil Development Company of Texas, 544 S.W.2d 627 (Tex.1976), and argue that the damage arose out of the activity conducted by and under the control of plaintiff's employer. Abalos is not in point. There the court carefully pointed out:

No dangerous conditions existed on defendant's premises when Ruthco and its crew, including Abalos, came upon them to do their work. There is no testimony that an ordinary pumping oil well, such as the one in question, is an inherently dangerous instrumentality or would constitute a dangerous activity upon the premises. No mechanical defects were alleged, and there were no concealed dangers.

In the instant case, there is evidence that the dangerous condition, the uninsulated or inadequately insulated guy line, was in existence when plaintiff came upon the property. The dangerous condition did not arise out of the work activity of plaintiff. We think that West Texas Utilities Co. v. Renner, 53 S.W.2d 451 (Tex.Comm'n App.1932, holding approved) is more nearly in point. There, an employee of an independent contractor was injured while erecting a building on the utility's property. The plaintiff urged that the defendant was negligent in maintaining its uninsulated high voltage wires at or near the place where plaintiff worked. The injured plaintiff lost his balance while working on the roof, and while regaining his balance a metal bar he was holding either touched or came into close proximity to the high voltage wire. The court said:

A company maintaining electrical wires over which a high voltage of electricity is conveyed, rendering them highly dangerous to others, is under the duty of using the necessary care and prudence at places where others may have the right to go, either for work, business, or pleasure, to prevent injury. Rucker v. Sherman Oil & Cotton Co., 29 Tex.Civ.App. 418, 68 S.W. 818; Joyce Electric Law, § 445.

See also: Sun Oil Company v. Massey, 594 S.W.2d 125 (Tex.Civ.App. Houston (1st Dist.) 1979, writ ref'd n.r.e.).

It is clear that in Abalos, Shell Chemical Company v. Lamb, 493 S.W.2d 742 (Tex.1973), Pence Construction Corporation v. Watson, 470 S.W.2d 637 (Tex.1971), and Hailey v. Missouri, K. & T. R. R. Co., 70 S.W.2d 249 (Tex.Civ.App. Fort Worth 1934, writ ref'd), no...