Oil Belt Power Co. v. Touchstone

• Court: Texas Court of Appeals
• Writing for the Court: Dunklin
• Citation: Oil Belt Power Co. v. Touchstone, 266 S.W. 432 (Tex. App. 1924)
• Decision Date: 14 June 1924
• Docket Number: (No. 10731.)
• Parties: OIL BELT POWER CO. v. TOUCHSTONE.

266 S.W. 432

OIL BELT POWER CO. v. TOUCHSTONE.

(No. 10731.)

Court of Civil Appeals of Texas. Fort Worth.

June 14, 1924.

Motion for Rehearing Dismissed October 25, 1924.

Appeal from District Court, Stephens County; C. O. Hamlin, Judge.

Action by Mrs. Ulla Touchstone against the Oil Belt Power Company and others. From judgment for plaintiff as against named defendant, it appeals. Affirmed.

Templeton, Beall, Williams & Worsham, of Dallas, J. L. Goggans, of Breckenridge, and Scott, Brelsford, Funderburk & Ferrell, of Eastland, for appellant.

DUNKLIN, J.

Mrs. Ulla Touchstone recovered a judgment against the Oil Belt Power Company as damages resulting from the death of her minor son, Webbie Touchstone, from which the Oil Belt Power Company has prosecuted this appeal.

The Oil Cities Electric Company, F. M. Gill, and J. W. Maddox were also made defendants in the case, but a judgment was rendered in their favor, and of that judgment no complaint has been made.

The Gulf Production Company maintained, upon land which had been leased by it for oil and gas, a wooden water tank of 1,600 barrels capacity, about 16 feet high, and between 12 and 15 feet in diameter. Across the top of the tank there was a plank 6 inches wide and 2 inches thick, each end resting on the outer edge of the tank, and was supported by an upright stay which rested on the bottom of the tank. The plank was called by witnesses a "runway." Attached to the tank was a ladder provided to enable persons to go to the top of the tank and upon the plank extending across it. The top end of this ladder rested against the top edge of the tank, and was in a slanting position, the bottom end resting on the ground a few feet from the bottom of the tank. The tank was on an oil lease owned by the Gulf Production Company, and was used by that company as a supply tank for the storage of water to be used in steam boilers operated on the lease. Three electric wires extended overhead directly across the top of the tank, two of which were each a small fraction over 7 feet above the top of the tank, and the other approximately one foot higher. Those wires were uninsulated, and there was testimony sufficient to support a finding that they were owned and maintained by the appellant Oil Belt Power Company. The evidence further showed that the water tank had been erected and had been in use for about three years before the electric wires were strung above it. There was also testimony sufficient to show that no warnings were posted on the water tank or near it of the danger of coming in contact with those electric wires. The wires were supported by posts erected for that purpose, one of which was 15 or 20 feet east of the tank, and the other about the same distance west.

Plaintiff's son, Webbie Touchstone, went in swimming in the water tank mentioned above, and the evidence was sufficient to show that while so engaged he was killed by an electric current passing from one of appellant's wires extending across and above the tank. Farrell Bishop, one of his companions, testified as follows as to how the accident occurred:

"I knew Webbie Touchstone during his lifetime, and remember the occasion when he was electrocuted and killed at the water tank. I was working with Webbie Touchstone at the time. In July, 1922, Webbie Touchstone was running a dairy there for his mother. I remember when we all went to the water tank that day. Iver Holt and Webbie Touchstone and his two cousins from Houston were with me that day. Their names were W. I. Ives and Oran Sholar I think they live in South Texas, but they are not here now. I was at the water tank at the time Webbie Touchstone was killed, and at that time was sitting on the side of the tank watching him. Three of us boys, myself, Iver Holt, and Webbie Touchstone crawled upon this board that went across the tank to dive off. I was fixing to, but he got up there before I did, and he walked out to about the middle of the tank and started to dive off. I suppose he must have got overbalanced and reached up his hands that way (indicating) and the electricity struck him. I did not see the electricity jump from the wires to his hands, but I saw it run down his body and out of his heels, and then he fell over into the tank and I jumped in after him and after I got him to the top of the water I hollered for Iver Holt and he came out and helped me get him to the side of the tank. We got him out of the tank. He was dead before we got him to the side of the tank.

"I saw Webbie Touchstone just before he fell in the water and saw him when he threw up his hands. I think the supports that hold up the plank that run across the tank were rather old and rotten; they were not very substantial. I could not be sure that they began to sway from one side to the other when he walked out, but if it was not that he just kind of lost his balance and threw up both his hands. You ask if I was looking at any certain place on his body. I saw the electricity run down his body. I guess that platform was about six inches wide. Webbie had been in the water before he got up on the plank and I suppose he was dripping wet with water, if he had been in the water. I don't know whether the plank was wet or not, I could not be sure. I never noticed the plank very close. It was wet at his feet where he stopped. I could not say for sure how tall Webbie Touchstone was, but he must have been about 5 feet nine or ten inches. He was not quite as tall as I was. (Witness stands up and raises his hands at request of counsel) I think I am about three inches taller now than he was then. I am about six feet tall now, and I would say he was about five feet nine inches. He was 16 years old. He was a good swimmer. I am not related to him. This plank was about three feet above the water in the tank. I was in swimming there about five minutes before this accident happened. Webbie and his two cousins, W. I. and Oran, got to the tank first. Those were the two boys that did not go in swimming. Webbie had his clothes off and in the tank before I got there. His clothes were laying on the ground by the side of the tank. I did not see him pull off his clothes. When the accident happened Webbie was entirely undressed and had just got up on this board out of the water.

"There was a ladder there attached to the tank on which we went up on the tank, and a gang plank across the tank, and that is the plank Webbie was standing on when I saw this electricity shoot down him. One edge of that gang plank was nearer the edge with the ladder than the other end. I am not sure how far the nearest part of the plank was to the ladder, but it must have been about three feet. These wires run across about the center of the tank, and the tank was fifteen or sixteen feet wide, something like that."

Plaintiff, Mrs. Ulla Touchstone, testified as follows:

"I live about a mile east of Breckenridge, and in July of last year I was living on the Jessie R. Smith lease about three miles south of town. I was married, but on or about the 31st of July, 1922, I was not living with my husband, and did not know where he was. It had been about 12 days since he had abandoned me, and I have not lived with him since that time. I don't know at the present time where he is. I had four children. Webbie was 16 and Electra, a girl, was 13, Zenda, a boy, 11, and Georgiana, a girl, 6. After my husband abandoned me and my family I just had Webbie to care for me and support me; he did that.

"You ask me if I remember where the water tank on the Smith tract of land is located. I think it is on the north part of the lease. That tank belonged to the Gulf Production Company There was pasture around there. That tank must have been built there about 3 years ago, maybe later, I don't remember the exact time. I remember when the wires of the Oil Belt Power Company were built along there, sometime about 1921. The tank was built before the wires of the Oil Belt Power Company were placed there. I had been living around in that vicinity for some time. When they built the tank they put a ladder on it for the purpose of going to the top of the tank. That ladder was attached to the tank at the top. My brother, R. C Wills, was the farm boss of the Gulf Production Company at that time. I have seen the boards or gang planks across the tank, they were there at that time and were made of two by six, about six inches wide. This ladder and tank and boards had been there ever since the tank was erected. That ladder was used for the pumpers to get up on and see about the water and drive hoops and such things as that. The gang planks were up there for people to cross backwards and forwards on.

"After my husband abandoned me, Webbie was looking after the dairy for me. R. C. Wills, the farm boss of the lease, was my brother. He had charge of the properties of the Gulf people on that lease. I had a conversation with Mr. Wills some three or four days prior to the day Webbie was killed. On the day Webbie was killed, about one or two o'clock that day, I heard a conversation between Mr. Wills and Webbie Touchstone with reference to the use of the tank. Mr. Wills came by my place about 1 or 1:30, just after we had dinner, and talked to me. He was in a hurry because he was working. After Mr. Touchstone went away he felt he wanted to help us out, he was the older and I looked to him for advice. He advised me and Webbie both, Webbie was young and had everything in charge. He told Webbie to go up on the water tank and look for the cows, he wanted to sell some dry cows that had been standing around the tank and made it muddy for the pumpers, he said it was a little further to go up on the tank and look for the cows, but would save time. He had got a man out from town to see the cows, a purchaser of the cows. That is why he went on the tank. After this conversation Webbie went straight to the tank, I suppose. I never saw Webbie any more alive after this time. The next time I...