Houston Lighting Power Co. v. Hooper

• Decision Date: 01 May 1907
• Parties: HOUSTON LIGHTING POWER CO. v. HOOPER.
• Court: Texas Court of Appeals

102 S.W. 133

HOUSTON LIGHTING POWER CO. v. HOOPER.

Court of Civil Appeals of Texas.

May 1, 1907.

Appeal from District Court, Harris County; Norman G. Kittrell, Judge.

Action by J. R. Hooper against the Houston Lighting Power Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Blake Dupree, for appellant. A. S. Fisher, Jr., and Highsmith & McGregor, for appellee.

FLY, J.

Appellee sued appellant to recover damages arising from injuries inflicted upon his wife, Julie E. Hooper, through the negligence of appellant in permitting a wire charged with electricity to fall and remain upon the yard gate of appellee, until his wife came in contact with it and was hurt. The cause was tried by jury, and resulted in a verdict and judgment for $1,000 in favor of appellee.

We conclude that the facts justified the jury in finding that appellant was negligent in permitting a live wire to remain on the yard gate of appellee, without warning the inmates of the house of the danger of approaching the gate, and that Mrs. Hooper was injured through such negligence in the sum found by the jury. In deference to the verdict, we find that Mrs. Hooper was not guilty of contributory negligence in going to the gate and touching the wire, which she did not know was at or near the gate.

It was alleged in the petition that appellant did "negligently and in a negligent and careless manner construct, fix, and use its said wire for the use and transmission of its electricity over and upon plaintiff's premises"; and, further, "that on or about the 29th day of August, 1903, aforesaid, the defendant negligently and carelessly permitted its wires which conducted and transmitted the electric current of the defendant's electricity over and upon the plaintiff's premises, aforesaid, and, while said wires were heavily charged with electricity, to become broken, sagged, and down, and to fall across the plaintiff's gate, the point of entrance and exit to plaintiff's premises," etc. Some of the evidence indicated that the wires were suspended along the sidewalk, from 8 to 10 feet from, and not across, the premises of appellee, and it is claimed through the second, sixth, and seventh assignments of error that there was a fatal variance between the allegations and proof, and that the court should have instructed a verdict for appellant. We cannot sustain that proposition. It was totally immaterial where the wires were suspended; the gist of the matter being whether appellant was guilty of negligence in permitting a wire charged with electricity to fall and remain upon the yard gate of appellant, without warning to the occupants of the house of the situation and condition of the wire. If there was any variance, it was immaterial, and could not have misled or...