Johns v. Fort Worth Power & Light Co.

• Decision Date: 26 April 1930
• Docket Number: No. 12311.,12311.
• Citation: 30 S.W.2d 549
• Parties: JOHNS et ux. v. FORT WORTH POWER & LIGHT CO.
• Court: Texas Court of Appeals

30 S.W.2d 549

JOHNS et ux. v. FORT WORTH POWER & LIGHT CO.

No. 12311.

Court of Civil Appeals of Texas. Fort Worth.

April 26, 1930.

Rehearing Denied May 31, 1930.

Appeal from District Court, Tarrant County; H. S. Lattimore, Judge.

Suit by Elijah Johns and wife against the Fort Worth Power & Light Company. From a judgment on an instructed verdict for defendant, plaintiffs appeal.

Reversed and remanded.

Houtchens & Houtchens and J. H. Craik, all of Fort Worth, for appellants.

Cantey, Hanger & McMahon, of Fort Worth, for appellee.

BUCK, J.

Elijah Johns and wife brought suit against the Fort Worth Power & Light Company for the death of their son, Elijah, Jr., a boy fifteen years old past. The boy was killed by coming in contact with a high-powered wire on top of one of the company's towers in the eastern part of Fort Worth. Plaintiffs alleged that the place where the tower was located had been used for many years as a public and private play ground for negro children, before and after the erection of the tower. That the defendant was charged with knowledge of such use as a playground for such children, and knew of its danger to persons, and specially to children of immature age, if they should go up the tower and come in contact with the high-powered wires. The tower was alleged to be some 75 feet in height and from 15 to 20 feet square at its base, and became narrower as it approached the top, where it was about 6 feet square. The upright pieces of said tower were fastened together and braced by other steel pieces composing the braces holding said tower together; that at or near the top of said tower are extended certain cross-arms also constructed of steel, there being at the time hereinafter alleged several of said cross-arms extending out from said tower for a distance of about 3 feet on either side of same; that suspended from said cross-arms are certain insulators, and attached thereto are large and high-tension wires, there being six of said wires suspended from and attached to the cross-arms of said tower, three on each side; that on the corners or legs of said tower are attached steel piles or projections from the steel pieces forming one of the upright corners of said tower, placed thereon for the purpose of forming a ladder upon said tower; that said spikes, together with the braces forming said tower, formed a continuous ladder from a point about 3 feet from the ground to the top of said tower. That at the date and time hereinafter alleged, defendant transmitted upon and along said wires a great amount of high-tension electricity, and that by reason thereof said tower constituted a very dangerous place; that the amount of electricity in said wires was so great that it was unnecessary for persons to come in actual contact with the wires conducting such electricity in order to become affected and electrocuted thereby; but that there were certain zones and distances from said wires, within which, under certain conditions, the effect of said electricity could be felt and within which it was very dangerous and hazardous to human life to come. That said tower was situated and located upon the ground, with all the equipments for the purposes herein referred to, and there were four legs to said tower and numerous braces about said legs, which braces were an attraction to children and other persons unaccustomed to the danger and hazards incident and connected with playing thereupon and unacquainted therewith, to go and play thereupon and thereabout, and great numbers of children, including Elijah Johns, Jr., would suspend swings in the way of ropes to said braces and legs of said tower, and said braces were at a sufficient height from the ground where said children could reach them, from 3 to 6 feet, and they did reach and catch hold of them and "chin" them. That the ground about and under said tower was reasonably level and by reason of such fact it afforded a place for children to play, and while they would play and have many games, such as marbles, under said tower and on the ground near by, and such other games as flying kites, and by reason of the construction of said tower, it was an attraction, particularly to the negro children accustomed to playing there. That by reason of the matters hereinbefore alleged, and by reason of the recent construction and use of the tower, it having been erected some eleven years ago, and by reason of the fact that the defendant had not warned the public and especially children of the danger connected therewith, said tower was especially calculated and did attract children and persons of tender years and lack of experience, and did attract plaintiffs' son.

That on or about February 21, 1925, said Elijah Johns, Jr., a boy then fifteen years of age, in keeping with a custom and with the custom of many other negro children, went down to the grounds around the tower to fly his kite, and the kite was caught in the wires extending from its top. That the boy climed up the tower, on the spikes attached to the same, and while reaching for his kite, ignorant and unadvised of the danger, was killed.

Plaintiffs alleged that said Elijah was an unusually bright boy and was in the eighth grade of the public school and was earning $75 a month by delivering papers.

Defendant answered by a general demurrer and a number of special exceptions, and specially pleaded that if Elijah climbed upon the tower referred to in plaintiffs' petition, and as a result of said climbing came in contact with the electric current, then defendant alleged that the act and conduct on the part of Elijah Johns, in climbing upon said tower and placing himself in a position of peril where he was likely to and did come in contact with the electric current, contributed directly and proximately to his injuries and death. That in climbing said tower the deceased did so, not because of any special attraction, but for the purpose of getting his kite.

The trial court, after the plaintiffs' evidence was concluded, and after argument by counsel, instructed the jury to return a verdict for defendant, and upon this verdict so rendered a judgment was entered for the defendant, and the plaintiffs have appealed.

The evidence of the injury and death of the deceased was given mostly by Glen Morgan, a negro boy 17 years old, who was the only one present at the time of the accident. He alleged that he and Elijah went down to the vicinity of the tower to fly their kites; that the ground underneath the tower had been used for a playground by the negro children in the eastern part of Fort Worth; that their ball game ground was opposite the tower and about 3 feet away. That the children often played upon and underneath the tower. That when Elijah's kite was caught on the wires at the top of the tower, he began to climb the ladder to extricate it; that he (the witness) climbed the ladder just under Elijah. That when Elijah got to the place where the kite was lodged and was swinging about 2 feet from the wire, he noticed Elijah reach out to get the kite, and that a great noise followed, like that made by an airplane, and it seemed to him that Elijah was drawn toward the wire and thrown over it. That he fell to the bottom of the tower, as also did the witness. That the witness got up and called to Elijah, but he did not answer. That he was dead.

Opinion.

It was agreed in open court that the tower and wires were owned and under control of the defendant at the time of the injury to the deceased and the land upon which the tower was situated was the property of the Fort Worth improvement district No. 1, from which the defendant had procured the easement to erect the tower and put the line across the land. It is urged by the appellant that the negro children were attracted to and played around the tower prior to the accident without being injured. This is borne out by the evidence. That the tower because of its peculiar construction and the ladder leading up to the top constituted an implied invitation to children of immature years to climb the same. That there were no signs or guards about the tower to warn children of the dangers incident to climbing it. That at the time of his injury the deceased, accompanied by another boy, had climbed the tower to a height of 60 feet for the purpose of extricating his kite, and the testimony being uncertain as to whether the deceased touched the wire or merely came within the electrical zone surrounding the same, there was sufficient evidence to support a finding that the deceased was allured to climb the tower because of the attractive nature and easy accessibility of the same, and that the trial court erred in directing a verdict for the defendant.

As stated by appellants in their brief, the doctrine of "attractive nuisance" is too well established in the judicial system of Texas to require a citation of authorities, and the only question before this court is whether that doctrine of negligence can be made the basis of legal liability upon the part of the defendant under the pleadings and evidence of this case. The rule has been announced by the Supreme Court of this state that the doctrine is not limited to "turntable" cases, but is applied in all cases where children of tender or immature age are impliedly invited by an "attractive nuisance" to place themselves in a position of danger.

In McCoy v. Texas Power & Light Co., 239 S. W. 1105, 1108, by the Commission of Appeals, approved by the Supreme Court, it is said:

"We are not intending to extend the doctrine as set out in the `turntable' cases, but simply to insist that the doctrine therein stated is not limited to turntables, but is intended to be applied in all cases where children of tender or immature years are impliedly invited by an `attractive nuisance' to place themselves in a position to be injured. The petition in this case stating, in our opinion, a legal cause of action and stating such facts as entitled the plaintiff...