Lone Star Gas Co. v. Ballard

• Decision Date: 01 March 1940
• Docket Number: No. 14039.,14039.
• Parties: LONE STAR GAS CO. v. BALLARD.
• Court: Texas Court of Appeals

138 S.W.2d 633

LONE STAR GAS CO. v. BALLARD.

No. 14039.

Court of Civil Appeals of Texas. Fort Worth.

March 1, 1940.

Rehearing Denied April 5, 1940.

Appeal from District Court, Tarrant County; A. J. Power, Judge.

Action by Joan Ballard against the Lone Star Gas Company for personal injuries, wherein Robert Connally was made a party plaintiff after suit was brought by his wife, as a feme sole. From an adverse judgment, defendant appeals.

Reversed and rendered for defendant.

Walker, Smith & Shannon, of Fort Worth, and Thompson, Knight, Baker, Harris & Wright, Adair Rembert, and Sol Goodell, all of Dallas, for appellant.

Houtchens & Houtchens, Robert V. Weddell, and J. Harold Craik, all of Fort Worth, for appellee.

BROWN, Justice.

The appellees, Joan Ballard Connally, joined by her husband, Robert Connally, who was made a party plaintiff after this suit was brought by his wife, as a feme sole, have sued appellant, Lone Star Gas Company, for personal injuries sustained by Mrs. Connally, by reason of stepping into a gas meter box owned by appellant and in which appellant's meter, used in connection with serving natural gas to Mrs. Connally's mother's residence, was installed. Mrs. Connally was living with her mother when the alleged accident occurred.

By the allegations of the petition, it is disclosed that the meter box in question is not installed on or in any part of the sidewalk in front of the premises, but same is a few inches from the street curb, and is evidently between the sidewalk, or portion of the street used as a sidewalk, and the said curb. In other words, the pleading and the evidence disclose that the meter is not placed where persons customarily walk, or on any place designed for use by pedestrians.

Appellees allege that Mrs. Connally, on a dark, rainy afternoon, was going to get in an automobile which was parked near her mother's home, not directly in front of the house, but to one side of the line drawn from the steps to the street curb, directly in front of the house.

The acts alleged to constitute negligence are, in substance: That the defendant failed to place and keep placed a top or covering upon and over the meter box; defendant and its agents left the meter box open, with the top off, without giving protection to persons who would walk over the place where the meter box is located; defendant failed to use ordinary care to see that the top or covering of the meter box was kept over the box; defendant "failed to inspect or look after the meter box for an unreasonable time and for more than two days, to see and ascertain whether or not said top or covering was kept over said meter box or whether some person other than defendant's employees had taken said top or covering off of said meter box, so as to prevent persons traveling thereon from stepping into same and harming and injuring such persons, as did plaintiff herein upon the occasion in question"; defendant placed no guards around the open meter box; defendant placed no signs or warnings to notify the public and plaintiff that the meter box was open.

When the taking of testimony was concluded, the defendant requested a peremptory instruction in its favor, and the request was denied.

The cause being tried to a jury, the following findings were made: (1) That "the defendant failed to keep placed a top or covering upon and over the meter box on the occasion in question", (2) that such failure was negligence, (3) and a proximate cause of the injury to plaintiff, (4) that "the defendant, its officers, agents and employees in charge of the meter in question failed to exercise ordinary care to discover that the meter box was uncovered, upon the occasion in question", (5) that "the defendant, its officers, agents and employees in the exercise of ordinary care should have discovered said opened meter box prior to the time the plaintiff fell into said meter box", (6) that "the meter box in question had been opened prior to the time plaintiff stepped into said meter box, a sufficient length of time so that in the exercise of ordinary care the defendant, its officers, agents and employees in charge of said meter box should have discovered the same and covered it prior to the time plaintiff stepped into said meter box", (7) that "the defendant in failing to discover and cover said meter box prior to the time plaintiff stepped into it was guilty of negligence", (8) that such failure was a proximate cause of plaintiff's injury, (9) that plaintiff suffered personal injuries, (10) her damages were fixed at $1,750, (11) that plaintiff did not fail to keep a proper lookout for her own safety, (12 and 13) not answered because of answer to No. 11.

Defendant addressed many objections to the court's charge, all of which were overruled, but we have concluded to notice only a few that are, in our opinion, controlling here, although there may be merit in some that are not discussed.

The criticism against issue No. 1, and its supplemental issues, is that there is no evidence to warrant the submission of an issue asking the jury to find whether or not the defendant failed to keep the top or covering on the meter box, and whether or not such failure constitutes negligence and a proximate cause of plaintiff's injuries.

It occurs to us that this contention is sound. We are reluctant to hold that the law imposes a duty upon the defendant to keep the top or covering over the meter box. If the law imposes no duty, there could be no negligence.

We believe that, in cases like the one before us, negligence must be predicated upon the existence of the dangerous condition being actually known to the defendant, or upon the existence of such condition for such a period of time as that the failure to discover the dangerous condition and remedy it raises an issue of negligence.

This rule has been applied to municipalities and the same rule is applicable to public service corporations. 30 Tex.Jur., § 292, p. 529; City of Galveston v. Smith, 80 Tex. 69, 15 S.W. 589; Klein v. City of Dallas, 71 Tex. 280, 8 S.W. 90; City of Austin v. Ritz, 72 Tex. 391, 9 S.W. 884; City of Fort Worth v. Johnson, 84 Tex. 137, 19 S.W. 361; Reegan v. City of Galveston, Tex.Civ.App., 24 S.W.2d 61; City of Grandview v. Ingle, Tex.Civ.App., 90 S.W.2d 855.

A well considered opinion by the Court of Civil Appeals for the Waco District is that of Sterling v. Community Natural Gas Co., 105 S.W.2d 776, in which it is said that the rules announced in the cases cited above in relation to municipal corporations are, by analogy, applicable to gas companies.

These principles and rules have been extended so as to apply to cases in which suits have been brought because of defective conditions in premises, or because of dangerous conditions appearing therein. Such cases as these illustrate the point: Graham v. F. W. Woolworth Co., Tex.Civ. App., 277 S.W. 223, writ dismissed; Great Atlantic & Pacific Tea Co. v. Logan, Tex. Civ.App., 33 S.W.2d 470; The Fair, Inc., v. Preisach et al., Tex.Civ.App....