Kenny v. El Paso Elec. Co.

• Citation: 371 S.W.2d 777
• Decision Date: 16 October 1963
• Docket Number: No. 5554,5554
• Parties: James E. KENNY, Appellant, v. EL PASO ELECTRIC COMPANY, Appellee.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 777

371 S.W.2d 777

James E. KENNY, Appellant, v. EL PASO ELECTRIC COMPANY, Appellee.

No. 5554.

Court of Civil Appeals of Texas, El Paso.

Oct. 16, 1963.

Rehearing Denied Nov. 6, 1963.

Guinn & Guinn, Al Truex, El Paso, for appellant.

Kemp, Smith, Brown, Goggin & White, El Paso, for appellee.

PRESLAR, Justice.

Appellant brought this action for injuries received as the result of having lifted a metal pipe into contact with a transmission line of appellee. The trial was to a jury, and both parties moved for judgment on the verdict. The court ignored certain findings of the jury and entered judgment that plaintiff take nothing.

Plaintiff, as appellant, assigns as error the action of the trial court in (1) entering a judgment on the verdict, and (2) disregarding the jury's answers to Issues Nos. 3, 4 and 5.

In response to special issues the jury found (and for purposes of clarity the actual numbers of the issues are used): (1), that the defendant was not negligent in maintaining its lines at the point where the accident occurred; (3), defendant was negligent in not painting the cross-arms of its poles; (4), such negligence was a proximate cause of plaintiff's injuries; (5), plaintiff did not contact the line in question with the metal pipe; (10), plaintiff was not negligent in failing to notify defendant he would use the pipe on the well on the occasion; (12), plaintiff knew, or in the exercise of ordinary care should have known, that touching the line in question with a conductive material could cause serious bodily injury; (13), plaintiff suffered damages in the amount of $100,000.

The bare elements of recovery in a case of this type require that the plaintiff prove that the defendant owed a legal duty to plaintiff which he violated, and that plaintiff suffered injury which was proximately caused by such violation. Plaintiff must be free of fault proximately causing his injury, for one cannot recover where he brings about his own injury, nor where such injuries are caused by both himself and the defendant.

In the instant case the jury found that the duty owed by defendant to plaintiff was to paint the cross-arms white. That, and Issue No. 1 above, were the only breaches of duty inquired about, and Issue No. 1 was answered for the defendant. The issue on failure to paint was based on a city ordinance requiring that all electric transmission lines carrying over 1000 volts must have the cross-arms on the poles painted white. The validity of that ordinance is questioned and becomes important, for it is readily noted that in the absence of an ordinance, the mere painting of cross-arms would be meaningless. The ordinance was passed in 1917, and in 1935 the City of El Paso enacted a comprehensive Electrical Code, which was similar in purpose to this ordinance, in that it provided various safety features in the construction and maintenance of electrical liens. However, it did not have any repealing provision, and none of its provisions were in conflict with the instant ordinance, nor were they inconsistent therewith.

We hold that the ordinance was valid on the day of the occurrence of the accident in question. To do otherwise would be to find it repealed by implication--repeal implied by the City's act of enacting the more comprehensive code. See Tomassi v. City of San Antonio (Tex.Civ.App.), 268 S.W. 273, (error refused), holding ordinance not repealed in absence of inconsistency between the two. Also see Cunningham v. Henry (Tex.Civ.App.), 231 S.W.2d 1013 (err. ref'd., n. r. e.), holding new ordinance inconsistent with earlier one dealing with same subject matter amended in propertion as it introduced change.

The jury found that the failure to paint was negligence, and if we be right in our holding that the ordinance was valid, then it becomes negligence per se. But liability arises in such a case only if the violation is a proximate cause of the injury complained of. 40 Tex.Jur.2d 460; San Antonio & A. P. R. Co. v. Bowles, 88 Tex. 634, 32 S.W. 880; Waterman Lbr. Co. v. Beatty, 110 Tex. 225, 218 S.W. 363; Alpine Telephone Corp. v. McCall, 143 Tex. 335, 184 S.W.2d 830; St. Louis Southwestern R. Co. v. Wilkes, Tex.Civ.App., 159 S.W. 126 (err. dism.); J. S. Abercrombie Co. v. Delcomyn, 134 Tex. 490, 135 S.W.2d 978; Nuse v. Kormeier, Tex.Civ.App., 351 S.W.2d 382 (n. w. h.); East Texas Motor Freight Lines v. Loftis, 148 Tex. 242, 223 S.W.2d 613 (reh. den.). The rules for determining proximate cause are the same for negligence per se and common negligence. East Texas Motor Freight Lines v. Loftis, supra; Butler v. Herring, Tex.Civ.App., 34 S.W.2d 307; Tri-County Elec. Coop., Inc. v. Clair, Tex.Civ.App., 217 S.W.2d 681 (err. ref., n. r. e.).

We come now to a consideration of the question of whether this negligence was a proximate cause of the plaintiff's injuries. It is our conclusion that it was not a proximate cause. The painting of the cross-arms was intended to put a person on notice and cause him to inquire of some possible danger. The thing he was to inquire about, he already knew--that the lines were dangerous. There can be no need to put one 'on notice' of danger of which he has actual knowledge. The situation is somewhat analogous to our recording statutes which afford constructive notice...