McCoy v. Texas Power & Light Co.

• Decision Date: 27 November 1920
• Docket Number: (No. 9407.)
• Parties: McCOY v. TEXAS POWER & LIGHT CO.
• Court: Texas Court of Appeals

229 S.W. 623

McCOY v. TEXAS POWER & LIGHT CO.

(No. 9407.)

Court of Civil Appeals of Texas. Fort Worth.

November 27, 1920.

Rehearing Denied January 8, 1921.

Appeal from District Court, Johnson County; O. L. Lockett, Judge.

Action by H. D. McCoy against Texas Power & Light Company. Judgment for defendant on demurrer, and plaintiff appeals. Affirmed.

Templeton, Beall, Williams & Callaway, of Dallas, and S. E. Padelford, of Fort Worth, for appellant.

Odell, Lockett & Henry, of Cleburne, for appellee.

BUCK, J.

This is an appeal from the district court of Johnson county from a judgment sustaining the defendant's general demurrer to plaintiff's petition. On October 26, 1916, plaintiff filed his original petition, and on May 7, 1917, defendant filed its answer, containing, among other defenses, a general demurrer. On May 6, 1919, the court sustained the general demurrer, and on November 25, 1919, entered an order granting both parties leave to file amendments. On the same day plaintiff filed his amended petition, largely to the same effect as his original petition. On the same day judgment was entered sustaining defendant's general demurrer, and plaintiff has appealed.

Plaintiff sued for damages arising by reason of the death of his 14 year old son, who climbed up one of the towers erected by the defendant, the Texas Power & Light Company, on plaintiff's land, over which the defendant had a right of way. The petition, after stating the residence of the plaintiff, and that defendant was a corporation organized and existing under and by virtue of the laws of the state of Texas, and having its office in Cleburne, Johnson county, and that defendant was engaged in the manufacture, transmission, and sale of electricity and electrical power at various points in the state of Texas, and that it maintained and operated transmission lines running from Waco, in McLennan county, Tex., by way of Cleburne, to Fort Worth, Tarrant county, Tex., and between various other points in said state, alleged:

"That said transmission lines consisted of steel-frame towers, upon and to which were strung and attached what are known as high-tension wires, consisting of heavy copper wires, upon, along, and through which electricity is transmitted from one station to another for the purpose of being distributed for local use for power, light, and other purposes; that electricity is generated at the power stations of the defendant along its said lines, and transmitted through said high-tension wires to its various substations along its said lines for the purpose above named.

"That the plaintiff is the owner of a tract of land adjoining the city of Cleburne, in Johnson county, Tex., which said tract of land is and was, at the dates hereinafter alleged, used by him in connection with his business as a contractor and for the storage of materials used by him in connection with said business; that upon said tract of land so owned by plaintiff the defendant does and did at the times hereinafter alleged, maintain one of the towers above referred to, said tower consisting of a framework constructed of steel bars or strips, being about * * * feet high and about * * * feet square at its base, and becoming narrower as it approaches the top, until it is about * * * feet square at the top of said tower, except a conical shaped cap on top of same, the upright pieces of said tower being fastened together and braced by other steel pieces or strips 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 three of said cross-arms extending out from said tower for a disance of about three feet on either side of same; that suspended from cross-arms are certain insulators, and attached thereto are said large copper high-tension wires above described, there being six of said wires suspended from and attached to the cross-arms on said tower, three of the same being on either side thereof; that on one corner of said tower are attached steel spikes 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, as above described, form a continual ladder from a point a few inches from the ground to the top of said tower.

"That at the dates and times hereinafter alleged the defendant transmitted upon and along said wires above described a great amount of high-tension electricity, and that by reason thereof said towers constituted a very dangerous place; that the amount of the 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 thereby, but that there were certain zones or distances from said wires within which, under certain conditions, the effect of said electricity could be felt and within which it was dangerous to human life to come.

"That said towers above described, together with said high-tension wires thereon above referred to, had been placed upon plaintiff's said tract of land during the year 1913, and that such towers as a means of transmitting high-tension electricity had never been theretofore used upon plaintiff's said property, or in the vicinity thereof, or in the locality in which same was situated, and that the nature of said towers and the wires carried thereupon, and the great force and danger incident thereto, were not understood by the people of that locality, and particularly by children of tender years and lack of experience; and that the dangers incident to said towers without coming in contact with the wires thereupon, by reason of the great amount of electricity being carried by said wires, was not known to, or understood by, the public, and particularly by children and persons of tender age and lack of experience living in the vicinity of said towers; that as constructed the said wires carrying said electricity were placed outside of said towers and some distance therefrom, and that the danger incident to coming within the space between said wires or within the zone of said electricity, without coming in direct contact with said wires, was not known or understood by the public in that vicinity, and particularly to children and persons of tender years and lack of experience in that locality, and by the plaintiff's son hereinafter referred to; that by reason of the peculiar construction of said towers hereinbefore described and referred to, and the ease of access to all parts of said towers by reason of said spikes constituting a ladder thereon as hereinbefore described, and by reason of the apparent security of same, and the lack of danger in connection therewith by reason of the fact that said wires carrying said electricity were located outside of the said towers and some distance therefrom, and by reason of the lack of knowledge and information on the part of the public with reference to the great danger of coming within the zone of said high-tension electricity without coming in direct contact with the said wires, and by reason of the fact that said towers were novel and new structures, and by reason of the failure of the defendant to place any warning signs upon said tower, or to in any wise advise the public of dangers thereto, as hereinafter alleged, said towers constituted an attractive nuisance and a constant invitation to the public, and particularly to children and persons of tender years and lack of experience, to climb said towers; that by reason of all of the matters hereinbefore alleged, and particularly by reason of their recent construction and use, and by reason of the fact that said ladder on said tower above described and referred to was left upon and exposed and easily accessible to children and the public generally, that said towers were, on account of their nature and surroundings, especially and unusually calculated to and did attract children and persons of tender years and lack of experience, and induced them to go upon said premises and climb said towers; that such towers were therefore an unusual attraction for children and other persons unacquainted with the dangers of using same as above set out, and with the existence of the danger zones above referred to; that it was well known to the defendant at said time that said conditions existed, and that said tower above referred to upon plaintiff's said land was attractive to children and others, and that children were constantly and frequently using said towers and climbing upon same; that, understanding said facts, the defendant negligently and carelessly failed to use any means to prevent the use of said towers by children and other persons unaccustomed to said dangers and unacquainted therewith, and negligently left the steps on said towers easily accessible to children; and that the defendant negligently and willfuly failed to place upon said towers or about same or adjacent thereto any warning signs of any character advising persons on or about said premises, or attracted thereon by said towers, of the dangers incident to using said tower or climbing same."

It was further alleged that on October 29, 1914, plaintiff's son, Wert McCoy, was a boy about 14 years of age, and on that date went, in the discharge of his proper duties, and for the purpose of procuring some material belonging to the plaintiff, to the lot owned by plaintiff on which the tower was erected, and that attracted by the condition of said tower, as above set out, and without any notice or knowledge of the probability of danger by reason thereof, and particularly of the existence of said danger zone, as above set out, and having no notice or reason to...