Jordan v. City of Lubbock

• Decision Date: 04 November 1935
• Docket Number: No. 4181.,4181.
• Citation: 88 S.W.2d 560
• Parties: JORDAN et al. v. CITY OF LUBBOCK.
• Court: Texas Court of Appeals

88 S.W.2d 560

JORDAN et al. v. CITY OF LUBBOCK.

No. 4181.

Court of Civil Appeals of Texas. Amarillo.

November 4, 1935.

Rehearing Denied December 2, 1935.

Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.

Suit by B. T. Jordan and others against the City of Lubbock. From a judgment for the defendant, the plaintiffs appeal.

Reversed and remanded.

Bledsoe, Crenshaw & Dupree, of Lubbock, for appellants.

E. L. Klett, of Lubbock, for appellee.

HALL, Chief Justice.

The appellants, Jordan and wife, the parents of Nat Jordan, joined by Lucille Jordan, sued the city of Lubbock to recover damages alleged to have resulted to them on account of the death of Nat Jordan, hereinafter called "deceased," occasioned by the negligence of the city.

The substance of the allegations is that about May 23, 1932, the city maintained and operated a municipal light plant, and on said date negligently permitted one of its wires, carrying a dangerous voltage of electricity, to fall into and upon the premises occupied by appellants and the deceased; that when the wire fell it came in contact with a wire fence surrounding certain portions of appellants' premises, thereby charging the fence wire with a dangerous voltage; that deceased went into appellants' back yard, and without knowing that the wire fence had become charged with electricity, came in contact with the wire and received a violent shock and burns which resulted in his death shortly thereafter. The city is charged with negligence which proximately caused the death of deceased in the following particulars:

(a) It failed to properly construct and maintain its wires at such point.

(b) It failed to exercise ordinary care to inspect its wires at that point.

(c) It failed to have proper instruments at its central station, such as an ammeter and ground detector and circuit breaker, which would have shown the location of the break in time to have cut the current off said wire before Nat Jordan was killed.

(d) That if it had such instruments, the city failed to keep them in proper repair and working order.

(e) That it had allowed the insulation on its said wire at such point to become worn and so defective as to permit the current to leak into the fence wire.

(f) That the city and its agents had actual knowledge of the breakage of the wire a sufficient time prior to the death of Nat Jordan to have cut off the current; that it not only failed to do so, but, with knowledge that the said Nat Jordan was in contact with such wire, failed to cut off the current and permitted Nat Jordan to remain on the wire, in contact therewith, for a period of almost one-half hour; and that the city's negligence in each of such respects was a proximate cause of the death of Nat Jordan.

Appellants further allege the giving of notice to the city; that Nat Jordan's health and earning capacity prior to the accident were good, and that he contributed to the support of his parents and his sister; and prayed for damages in the sum of $50,000.

The city answered by general demurrer, general denial, and specially pleaded that the breaking of the wire was due to an unusual and extraordinary windstorm and to lightning; that it did not know of any defects in its wires; that such defects, if any, were known to the appellants and they were negligent in not reporting same to the city and in not warning deceased; and appellants and deceased were guilty of contributory negligence in that they had wrongfully erected a wire for the purpose of inclosing a garden at the rear of their premises, and that said wire was off of said appellants' premises and partly out in the street (which was used for sidewalk) in such manner that it was dangerous and liable to cause any one to trip and fall upon it; that the curiosity of deceased was aroused and his attention was directed to the play of electricity on the ground, and that he thoughtlessly and heedlessly hurried to such place of danger, and in doing so tripped and fell across the garden wire and was thereby electrocuted, all of which was the result of the failure of appellants and deceased to use ordinary care under the circumstances.

It is further alleged that the night was dark and stormy, and that the deceased knew, or should have known, that the fallen electric wire was exceedingly dangerous, and with knowledge of such danger, and in defiance of warnings, he approached the dangerous premises, and that his negligence in such respect was a proximate contributing cause of the accident. They further allege that his death was the result of an unavoidable accident.

In response to special issues the jury found:

(1) That the city failed to exercise ordinary care in the maintenance of its wires.

(2) That such failure was a proximate cause of the death of the deceased.

(3) That the city knew of the break in its wires a sufficient length of time before deceased came in contact with the wire to have cut the current off.

(4) That an ordinarily prudent person would have cut the current off under the circumstances.

(4a) That the city failed to exercise ordinary care to cut off the current before deceased came in contact with it.

(5) That such failure was a proximate cause of the death of the deceased.

(6) That the city, after discovering deceased was in contact with the wire, could have, in the exercise of ordinary care, cut said current off sooner than it did.

(6a) That a person of ordinary prudence would, in the exercise of ordinary care, under the circumstances, have cut off the current sooner.

(6b) That the city, after discovering deceased was in contact with the wire, failed to exercise ordinary care in cutting off the current.

(7) That such failure was a proximate cause of the death of deceased.

(8) That the city had in its plant instruments and devices to detect and discover breaks in its wires.

(9) That such instruments, if in proper repair, would have discovered a break in the wire.

(10) That such instruments were in proper repair and working order on the occasion in question.

(11) That deceased was guilty of contributory negligence under all the circumstances.

(12) That such contributory negligence proximately caused or contributed to cause his death.

(13) That the death of deceased was not due to an unavoidable accident.

(14) That the breaking of the wire was not due to an unusual and extraordinary storm.

The jury assessed damages in favor of the father, B. T. Jordan, and the mother, Myrtle Jordan, each in the sum of $1,000, and awarded Lucille Jordan, a sister, the sum of $500.

No motion was filed by the appellee to set aside any of the findings of the jury or to render judgment in its favor non obstante veredicto; however, the court rendered judgment for the appellee, city, and against the appellants.

By the first proposition appellants contend that the jury having found that the city was guilty of negligence in the respects alleged in the petition, and having also found that the deceased was guilty of contributory negligence, yet having further found that the city discovered his perilous situation from coming in contact with the wire in time to have cut the current off, and that their failure to cut off the current after such discovery was negligence and was a proximate cause of the death, and no motion having...