Jacksonville Ice & Electric Co. v. Moses

• Decision Date: 05 January 1911
• Parties: JACKSONVILLE ICE & ELECTRIC CO. v. MOSES et al.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

134 S.W. 379

JACKSONVILLE ICE & ELECTRIC CO. v. MOSES et al.^†

Court of Civil Appeals of Texas.

January 5, 1911.

Rehearing Denied February 9, 1911.

Appeal from District Court, Cherokee County; James P. Gibson, Special Judge.

Action by Minnie L. Moses and others against the Jacksonville Ice & Electric Company. From a judgment for plaintiffs, defendant appeals. Affirmed.

Donley & Guinn, John M. King, N. B. Morris, and H. I. Myers, for appellant. John C. Box and R. O. Watkins, for appellees.

HODGES, J.

The appellees are the widow and minor children of S. H. Moses, who was killed in September, 1909, by coming in contact with one of appellant's wires charged with a current of electricity. This suit was instituted by them to recover damages sustained on account of his death. The facts, about which there seems to be no controversy, show that the deceased lived with his family in the suburbs of the town of Jacksonville, Cherokee county, and was employed as a boiler maker or repairer by the Texas & New Orleans Railway Company, which maintained a depot at that place. On the night Moses met his death he was going from some point near the Texas & New Orleans depot to his residence, about a mile and a quarter distant and on the north side of the town. He was traveling in what the witnesses call "the bus. or transfer," presumably the character of vehicle usually employed in conveying passengers to and from railway depots. The time is placed at about 2:30 a. m., and the night is described as being very dark. A rain had fallen, and the ground was wet. Some of the witnesses say there had been earlier in the night a rather hard rain accompanied by some wind and considerable lightning, but the testimony does not indicate that it was a storm of any unusual severity When the bus reached the point on what is designated in the record as Kickapoo street where the latter was crossed by appellant's line of electric light wires, one of the horses fell to the ground, and could not be made to proceed. Not knowing the cause of the trouble, the driver, who was seated on the outside of the vehicle, told the deceased to remain on the inside while he went to procure a light. When the driver returned, he found that his team had gone, and one of appellant's wires was broken and was lying in the street, and also discovered the dead body of Moses lying in such a position as to show that he had been killed by an electrical shock received from the fallen wire. Appellant's line at that place ran east and west. It seems that Kickapoo street ran also in a westerly direction from the principal portion of the town until it reached a point near where the accident occurred. Here it deviated to the south for a short distance, and turned again in a westerly course. Appellant's line of wires ran some distance from and parallel with the street on the south side, intersecting and crossing to the north side, making an oblique angle, at the place where the street changed its course. It was at this point that Moses was killed by the fallen wire. On the east side of the street, and within a few feet of its edge, there stood a large red oak tree, through the branches of which the electric wires passed, and on the opposite, or west, side, about 100 yards distant, was the transformer used by the appellant on its wires. The petition charged the following acts of negligence: (1) The placing and maintaining of appellant's wires in close proximity to the limbs of the oak tree, and allowing them to come in contact with those limbs, thereby causing the wires to burn and break. (2) Permitting the wire, after it had broken and while charged with electricity, to remain in the street. (3) Failing to have its wires properly insulated. (4) Failing to have suitable appliances for detecting when a wire was grounded or down. (5) That, if it did have such appliances, it failed to use proper diligence in inspecting them for the purpose of ascertaining whether or not any of its wires were down. Appellant answered by general denial, specially pleading that the wire was broken as the result of being struck by lightning during a severe storm prevailing at the time, and that the deceased was guilty of contributory negligence in getting out of the vehicle and coming in contact with the fallen wire. A trial before a jury resulted in a verdict and judgment in favor of the appellees for $10,000.

Counsel for appellant have presented 19 assignments of error, complaining principally of the charge of the court and the refusal to give special charges. After defining negligence and contributory negligence, and as introductory to that which was to follow, the court instructed the jury as follows: "It was the duty of the defendant to exercise ordinary care in the erection of its wires so as not to permit them to get into such position or condition as might reasonably have been foreseen to be dangerous to persons traveling in or upon the public road or street in or near which the wires were erected." "The defendant is presumed in law to have had such knowledge of the condition of its wires as it could have had by the exercise of that degree of care, prudence, and diligence that an ordinarily prudent person would have used under the same or similar circumstances." It is claimed that, while the principles here announced may not be incorrect as abstract legal propositions, yet, under the peculiar facts of this case, the charge was on the weight of the evidence. "The peculiar facts" relied on to distinguish this from those cases where such instructions might be appropriate consist of the facts pleaded as a special defense, that the wire was broken as the result of a stroke of lightning and that when the deceased was injured the wire was down in the street, but that of this situation appellant had no actual knowledge. The legal effect of the first paragraph quoted above was to tell the jury that the appellant would be guilty of negligence if in the erection of its wires it failed to exercise ordinary care to guard against endangering the safety of those who traveled upon the highway. It is apparently assumed in urging this objection that it was not the duty of the appellant to exercise even ordinary care to protect its line against the consequences of lightning in any of its forms. The testimony shows that appellant was engaged in the business of operating an electric light plant, that its wires usually carried a current estimated at 2,250 volts, and that this was sufficient to destroy life. It had thus constructed a dangerous agency over a public highway where people were in the habit of passing both during the day and the night. In erecting its wires and in maintaining them afterwards it was the duty of the appellant to employ such means and to take such precautions to guard against injuring those using the highway as the dangerous nature of its agency would render reasonably necessary and prudent. Citizens' Tel. Co. v. Thomas, 45 Tex. Civ. App. 20, 99 S. W. 879; S. A. Gas & Elec. Co. v. Badders, 46 Tex. Civ. App. 559, 103 S. W. 229; Lewis v. B. G. Gaslight Co., 135 Ky. 611, 117 S. W. 278, 22 L. R. A. (N. S.) 1169; Day v. Con. L. & P. Co., 136 Mo. App. 274, 117 S. W. 81; Brown v. Con. L. & P. Co. (Mo. App.) 109 S. W. 1032; Byerly v. Con. L. & P. Co., 130 Mo. App. 593, 109 S. W. 1066; Gentzkow v. Portland Ry. Co., 54 Or. 114, 102 Pac. 614; Elliott on Roads and Streets, §§ 821, 822; 2 Cooley on Torts, pp. 1492-1494; 1 Thompson on Neg. §§ 802, 803. In some jurisdictions it is said that this duty demands the exercise of the utmost care, and in no instance has it ever been held that it is less than a person of ordinary prudence would use under the same or similar circumstances. The care exacted under any circumstances is proportionate to the danger to be avoided; the greater the hazard the greater the care required. Galveston City Ry. Co. v. Hewitt, 67 Tex. 473, 3 S. W. 705, 60 Am. Rep. 32; Railway Co. v. Gormley, 91 Tex. 393, 43 S. W. 877, 66 Am. St. Rep. 894; 1 Thompson on Neg. §§ 25, 26. Appellant had no natural right to encroach upon the street with its wires. If it was rightfully there, it must have been by permission of the proper authorities. Assuming, however, that it had acquired the legal right to erect and maintain its wires across this public road, or street, the implied condition upon which the grant is made is that the grantee will use proper care in the construction of its line and in keeping it in a condition so as not to injure those whose business brings them within its reach. W. U. Tel. Co. v. Nelson, 82 Md. 293, 33 Atl. 763, 31 L. R. A. 572, 51 Am. St. Rep. 464. While electric light companies are not expected to build their lines so as to stand extraordinary and unusual weather conditions, they are expected to guard, so far as may be reasonably practicable, against ordinary and usual conditions. And, while they may not be able to construct their lines and fix their wires so that they will withstand extraordinary atmospheric electrical currents, it is certainly their duty to use ordinary care to guard against those which are ordinary and usual. We do not think the charge was improper. The court left it for the jury to say whether or not appellant had conformed to the standard of duty required. Telephone Co. v. Thomas, 45 Tex. Civ. App. 20, 99 S. W. 883; Roche v. Dale, 43 Tex. Civ. App. 287, 95 S. W. 1100; Railway Co. v. Vaughn, 5 Tex. Civ. App. 195, 23 S. W. 748. The evidence relied upon as showing that the wire was struck by lightning is very unsatisfactory. It consisted mainly of the testimony of one of appellant's witnesses, who gave it as his opinion, after an inspection of the ends of the broken wire, that the break was caused by lightning. He admitted, however, that the same appearances might have resulted from overloading the wire. The engineer who was in charge of the plant that night, and who says he frequently inspected the conditions in the power house, testified, at...