Houston Lighting & Power Co. of 1905 v. Barnes

• Decision Date: 05 December 1912
• Citation: 152 S.W. 722
• Parties: HOUSTON LIGHTING & POWER CO. OF 1905 v. BARNES.
• Court: Texas Court of Appeals

152 S.W. 722

HOUSTON LIGHTING & POWER CO. OF 1905 v. BARNES.

Court of Civil Appeals of Texas. El Paso.

December 5, 1912.

Rehearing Denied January 15, 1913.

Appeal from District Court, Harris County; Charles E. Ashe, Judge.

Action by Mary A. Barnes against the Houston Lighting & Power Company of 1905. From a judgment for plaintiff, defendant appeals. Affirmed.

Blake Dupree, of Houston, for appellant. S. H. Brashear, John Lovejoy, and Presley K. Ewing, all of Houston, for appellee.

HIGGINS, J.

This was a suit by appellee against the appellant for damages arising out of the death of her son, Percy Barnes, an employé of appellant's, whose death is alleged to have been caused by its negligence. Verdict and judgment was rendered in favor of appellee for $4,000, from which this appeal is prosecuted.

The only question raised by the appeal is the sufficiency of the evidence to connect the death of Barnes with the negligence of defendant. Plaintiff in her petition alleged: "That the defendant, Houston Lighting & Power Company of 1905, is and was at the times of the occurrences of the matters and things hereinafter alleged engaged in Houston, Harris county, Tex., in the business of furnishing light and power by electricity, and for this purpose maintained and conducted an electric plant or works at said place. That on, to wit, the 11th day of March, 1908, Percy Barnes, a son of the plaintiff, was an employé of said defendant company as a fireman at its said plant, working in connection with its boiler room, but in no way connected with its electrical fixtures or machinery, and had only been working in said employment for a few weeks. That on the date aforesaid the said Percy Barnes was required, in the course of his duty in said employment, to proceed to the roof of said plant or works and thence to look over the top of a tank, situated on a projection above said roof, to ascertain the quantity of water in said tank. That in performing this duty, and without any negligence on his part, and while he was in the exercise of all due care, and relying on the defendant company to perform its duty to use ordinary care to furnish him a reasonably safe place in which to perform his duties, he (the said Percy Barnes) came in contact with, and was shocked and burned by, a certain electric wire which was stretched across said roof, and was also caused by said shock and burn to fall violently onto and against said roof and other objects appurtenant or near thereto, and as a result thereof (that is, of the shocking, burning, and falling) he (the said Percy Barnes) died within a short space of time thereafter. That the death of said Percy Barnes was caused proximately by the negligence and carelessness of said defendant company, its agents and servants, in this: That there were several of said wires stretched across said roof and a short distance above the same, to wit, within from three to six feet above the same, each of them carrying a heavy electric current. That said wires were insulated on the surface thereof, except in places, but that at some places such insulation had been removed or had never been attached, or properly attached; and as a result the dangerous parts of said wires were exposed and liable to cause injury or death to any person coming in contact with the same. That the braiding by which said wires were originally, and at the time aforesaid, insulated was entirely too thin and light, considering the high and heavy current of electricity which regularly, and especially at said time, passed through said wires. That said defendant company had negligently and carelessly failed to use reasonable or ordinary care to inspect and repair or replace the said wires so as to obviate such defective conditions, or to install wires with full or sufficient braiding in the first instance, or that were properly insulated. That the said company's agents and representatives well knew the fact that said Percy Barnes and other employés of said company were required several times each day to perform the duty which he was performing at the time he came in contact with said wire as aforesaid, and well knew the fact that they would probably come in contact with said wire and wires, and that, if the same were not fully and properly insulated and so kept and maintained, they would cause serious bodily harm or death to such employés; but said company, its agents and representatives, in violation of its and their obligation and duty to use ordinary care to provide the said Percy Barnes a reasonably safe place to perform his work, failed to use ordinary care to discover such defective conditions and repair same, or replace such wires with sufficient ones, or to provide wires which were fully or properly braided or insulated in the first instance."

On March 7, 1908, Percy Barnes was employed by the defendant company as fireman, on duty from 4 o'clock in the afternoon until 12 o'clock at night. At the time G. W. Brooks was engineer in charge of the running of the plant, with the deceased and two other men under him. There was a tower on the roof of defendant's plant about 10 feet high; on this tower was a water tank, and it was the duty of the deceased to watch the level of the water in this tank, and to inspect same he had to ascend a ladder leading from the roof to the top of the tower; alongside the top of the ladder were wires leading out of the tower from the defendant's power plant to the city, heavily charged with electricity, they being the wires which carried the current out from the plant for distribution over the city of Houston, and the testimony discloses that defendant company was negligent in having failed to properly insulate these wires. In ascending the ladder and stepping onto the tower for the purpose of inspecting the water in the tank, deceased had to pass through a space of about 30 inches between the ladder and these defectively insulated wires. Shortly after 9 o'clock Brooks missed the deceased and he instructed the switchboardman, Simmons, to make search for him, and in a short time Simmons came back and reported seeing a man lying on the roof. Brooks thereupon ascended the roof and found Barnes lying on his right side, frothing at the mouth and nose, and about six feet from the ladder leading to the tower. Barnes died shortly after he was discovered and without having regained consciousness. There was a slight cut or abrasion upon the temple or forehead of the deceased, and the proof disclosed that his skull was crushed at this point. The deceased was a man six feet high, weighing about 170 pounds, strong, in good health, and 26 years of age. After his death Barnes was removed to an undertaker's establishment, where his body was embalmed and prepared for interment, and the next morning was taken to the home of his mother.

J. E. Carson testified that he noticed the hands of deceased were drawn in a half-closed condition and appeared dark on the inside. Plaintiff testified that there was an abrasion on his temple, and that his hands were perfectly black, like they had black oil on them inside. Hattie A. Wilson testified that the hands were drawn and black, and a little place in his temple as if he had been hit with something.

Morris Rosenthal testified: "I looked at his body. The only mark I saw on him was a little scratch on the side of his face about the temple, looked like it was scratched there; just showed a little scratch, just red, looked like it had been punctured a little there. You could see the blood from it. I could not tell what it was from, whether from an electric shock, bruise, hit, or what. I looked at his hands. He had been dressed when I saw him, been washed and dressed there, and I looked at him, and picked his hands up. His hands were all black inside, right rough in there and black inside; I don't know whether from his work or what, but black inside. His hands were laying this way."

It was shown that at the time Barnes was killed the electric current was passing through the wires on top of the building. Carson, Mrs. Barnes, Hattie A. Wilson, and Rosenthal did not see the body until the next morning, 12 hours after his death, and after the same had been embalmed and prepared for interment.

Dr. J. M. Boyles, witness for appellant, testified: "I am a practicing physician in the city of Houston for nearly 30 years. I remember being called to see a man named Percy Barnes at the electric light plant in this city. * * * I think that was about two years ago, in March, as near as I can remember; I don't remember the exact date. With reference to what I saw and the condition he was in when I was there, * * * I suppose I got the call about 10:30 at night. * * * I ordered a carriage, and about the time I dressed the carriage was there, and I had them drive rapidly, and I found the man. He was dead; died just a few minutes before I arrived. He was on the top of the roof of a house, roof of the building of the power house. * * * His feet were out forward laying on the beams, and blood was running out of his nose and ears. His skull was crushed just on his...