Galveston, H. & S. A. Ry. Co. v. Pigott

• Decision Date: 10 February 1909
• Citation: 116 S.W. 841
• Parties: GALVESTON, H. & S. A. RY. CO. v. PIGOTT et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

116 S.W. 841

GALVESTON, H. & S. A. RY. CO. v. PIGOTT et al.^†

Court of Civil Appeals of Texas.

February 10, 1909.

On Rehearing, March 10, 1909.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by Michael Pigott and another against the Galveston, Harrisburg & San Antonio Railway Company, in which the San Antonio Gas & Electric Company was made a party defendant. From a judgment dismissing the case as against the San Antonio Gas & Electric Company and in favor of plaintiffs against the original defendant, it appeals. Reversed and remanded in part, and conditionally affirmed in part.

Baker, Botts, Parker & Garwood, D. C. Bolinger, and W. F. Ezell, for appellant. H. C. Carter and Perry J. Lewis, for appellees.

NEILL, J.

This suit was brought by Michael Pigott and his wife, Mary, against the appellant to recover damages for the death of their son, Thomas Pigott, alleged to have been killed by appellant's negligence. The negligence is alleged in plaintiffs' petition substantially as follows: That on August 7, 1906, plaintiffs' son, Thomas, was in the service of defendant in its boiler making department in the city of San Antonio, Tex., and while working underneath a metallic tank, in performance of the duties of his employment, through the negligence of defendant he received an electric shock which resulted almost instantly in his death. That defendant used and maintained electric lights where Thomas was at work, one of which lights was attached to a flexible extension cord about 30 feet long, so that it could be moved in the shop from place to place where it was needed. That at the time Thomas was shocked and killed this light was being used inside the metallic tank under which he was working, with the cord fastened to or resting upon some part of the tank. That by reason of the extension cord being unfit, defective, and in unsafe condition for such use, a current of electricity passed therefrom into the tank and completely charged it with an electric current, so that when Thomas touched or came in contact with the tank he was shocked and killed. That the extension cord and wire used by defendant were defective, unsafe, and dangerous, in that the wire did not have an approved insulation and covering to thoroughly insulate and prevent the escape of the electric current, nor did the wire have an approved waterproof or weatherproof covering to withstand the effect of moisture. That the insulation of the wire was also worn and broken in places to such an extent that in coming in contact with a metallic surface the electric current would pass from the wire into such surface. That the wire was too long and not a proper wire or cord to be exposed to moisture or water, or to be thrown over or laid upon metallic surfaces, and unfit and insufficient to prevent the escape of the electric current. That it was negligence on the part of defendant to have and maintain said wire and extension cord in its defective, dangerous, unsafe, and improper condition. That, at the time deceased was shocked and killed, there was in force a valid city ordinance, which prescribed the requisites of electric wiring of the kind used on said occasion by defendant. That paragraph 27, § 15, c. 52, of the Criminal Ordinances of the City of San Antonio, is as follows: "Par. 27. Flexible cord, `a,' must have an approved insulation covering." That it is further provided in section 27 that every violation of the terms of the ordinance, where a penalty is not otherwise prescribed, shall constitute a misdemeanor punishable by fine. That there was also in force when Thomas Pigott was killed a valid city ordinance, regulating electric wiring and construction, section 13 of which is as follows: "Sec. 13. All electrical construction, all material and all appliances used in connection with electrical work and the operation of all electrical apparatus in buildings in the city of San Antonio, and all outside electrical work, all systems and voltages, all inside work, all electrical signalling apparatus, and generally all works, wires, machinery and appliances for generating, storing, measuring, supplying and using electricity in the city of San Antonio, shall be in accordance and conformity with the rules and regulations of what is known as the National Electrical Code, being rules and regulations and requirements of the national board of fire underwriters for the installation of electrical wiring and apparatus, as recommended by the Underwriters' National Electrical Association, edition of 1903. A copy of said Code is hereto attached and made a part of this section as fully as if set out here; provided, however, that the city electrician shall give thirty days' notice by publication prior to any change or amendment going into effect." That the rules and regulations of the National Electrical Code, referred to and made a part of said ordinance, provide as follows:

"28. Flexible Cord. (a) Must have an approved insulation and covering."

"45. Flexible Cord. (a) Must be made of stranded copper conductors, each strand to be not larger than No. 26 or smaller than No. 30 B. & S. gauge, and each stranded conductor must be covered by an approved insulation and protected from mechanical injury by a tough braided outer covering."

"For Portables. (f) Flexible cord for portable use must meet all of the requirements for flexible cord `for pendant lamps,' both as to construction and thickness of insulation, and in addition must have a tough braided cover over the whole. There must also be an extra layer of rubber between the outer cover and the flexible cord, and in most places the outer cover must be saturated with a moisture-proof compound, thoroughly slicked down, as required for `weatherproof wire' in No. 44. In offices, dwellings or in similar places where the appearance is an essential feature, a silk cover may be substituted for the weatherproof braid."

That said extension or flexible cord used by defendant, as alleged, was in direct violation of the terms of said ordinances of the city, in that the cord did not have an approved insulation and covering, and in places the insulation was worn off and was too thin to prevent the escape of the electric current, and did not have an approved weatherproof covering and was not protected from mechanical injury by a tough braided outer covering, as required by said ordinance. That, in addition, the extension cord was spliced in places, and the joints were not soldered or insulated so as to prevent the escape of the electric current. That defendant was also negligent in having said joints in such uninsulated and defective condition and in violating a valid city ordinance, in force at the time, which provides as follows: "(c) Must be so spliced or joined as to be both mechanically and electrically secure without solder; they must then be soldered to insure preservation, and the joint covered with an insulation equal to that of the conductors. Stranded wires must be soldered before being fastened under clamps or binding screws, and when they have a conductivity greater than No. 10 B. & S. copper wire, they must be soldered into lugs." That by reason of said defective, dangerous, unsafe, and improper condition of the electric wiring, the said wire was unfit and insufficient to restrain and confine the said electric current, and that the current, on that account, passed from the wire into the metallic tank, and it became charged with a deadly and dangerous current of electricity, and that when Thomas Pigott, working underneath the tank, and having no knowledge of the fact that it was charged with electricity, came in contact with the tank, he received a severe electric shock which almost instantly caused his death, which was caused from negligence of defendant as alleged.

In its first amended original answer the defendant interposed, by a general and special exception to plaintiffs' petition, a general denial, and pleaded specially that, if deceased received injuries resulting in his death, they were not caused by negligence on its part, but by the negligence of the San Antonio Gas & Electric Company, or were caused by his contributory negligence and risks assumed by him as incident to his employment. It also pleaded a written contract made between it and plaintiffs, whereby the latter consented to their son's employment by defendant, and, in consideration of its paying him for his services, they expressly waived any and all claims they might have against defendant for damages in the event their son, Thomas, should be killed or injured in the company's employment. The defendant also impleaded the San Antonio Gas & Electric Company, against which they pleaded as follows:

"And for further answer in this behalf, if answer be required, this defendant says: That the San Antonio Gas & Electric Company is a corporation duly incorporated under and by virtue of the laws of the state of Texas, and it has its principal office and domicile in the city of San Antonio, Bexar county, Tex., at which place it operates for public use and hire an electric plant, by and through which it furnishes and supplies to the citizens and industries of said city, who desire it and pay for it, electric lights and power, among other things. That the local agent and general manager of said company is W. B. Tuttle, who resides in said city. And this defendant further says that the said San Antonio Gas & Electric Company, which, for convenience, will hereinafter be referred to as the electric company, was also engaged in supplying electric power to the San Antonio Traction Company for the purpose of operating its street cars, and was engaged in supplying lights and power throughout the said city, including the arc lights, to light the streets and public places, and all of said varied services of light and power were performed and supplied by the transmission of very powerful currents of electricity in wires throughout the city; and...