El Paso Electric Co. v. Gregston.

• Decision Date: 12 November 1942
• Docket Number: No. 4246.,4246.
• Citation: 170 S.W.2d 515
• Parties: EL PASO ELECTRIC CO. v. GREGSTON.
• Court: Texas Court of Appeals

170 S.W.2d 515

EL PASO ELECTRIC CO. v. GREGSTON.

No. 4246.

Court of Civil Appeals of Texas. El Paso.

November 12, 1942.

Rehearing Denied December 3, 1942.

Appeal from District Court, El Paso County; Ballard Coldwell, Judge.

Common law action by Oral E. Gregston against El Paso Electric Company, for personal injuries sustained by employee. From a judgment for plaintiff for $37,000 entered on the verdict of the jury, the defendant appeals.

Affirmed.

Brown & Brooke, of El Paso, for appellant.

Cunningham, Ward & Cunningham and Lea & Edwards, all of El Paso, for appellee.

SUTTON, Justice.

This is an appeal from the 65th District Court of El Paso County.

The suit is a common law action for personal injuries. The trial was to the court and jury. Judgment was for the plaintiff on the verdict for $37,000 from which this appeal is prosecuted.

Appellee was plaintiff below and the parties will be described here as there.

The defendant is a public utility concern and employs a large number of employees, but does not undertake to comply with the Workmen's Compensation Law.

The defendant has a number of assignments which it has briefed under five points, the substance of which is, as we understand them, that it has not been shown to have been negligent; that plaintiff's injuries are solely the result of his own negligence; that counsel engaged in improper argument, which is reversible, and the verdict is excessive.

Plaintiff was a lineman. He received his injuries while engaged in making a right angle change over of hot wires on a line pole. The guy wire on the pole had no circuit breaker in it, and was not protected with insulating rubber. The hot wires were covered with six feet of insulating hose. Plaintiff, while working on the pole, bumped his knee against the guy wire and his face against an uncovered portion of a wire carrying a four thousand volt current. His injuries are too severe and were too excruciating for description. His left ear was burned off; his left eyeball burned out; the skin and flesh from the left side of the face and left leg and other portions of the body seriously burned. He spent a long period of time in the hospital and bed. Photographs are in the record, and disclose in a measure the serious physical injuries and disfigurations.

Plaintiff was thirty-four years of age, and earned $150 per month.

The parties pleaded and the jury found, as follows: That the defendant was negligent in failing to place a circuit breaker in the guy wire; in ordering plaintiff on the pole with only 6-foot insulating hose on the wires; and in not requiring insulation on the guy wire prior to plaintiff's injuries; and all of which acts of negligence were proximate causes of plaintiff's injuries.

The jury found the defendant had sufficient appliances for the protection of plaintiff, had they been used, and that plaintiff knew the dangers attendant on his duties and failed to take proper precautions for his safety, but that same were not the sole cause of his injuries.

The first contention of the defendant is, the construction of the pole without a circuit breaker on the guy wire is shown by the evidence to be a modern, up-to-date, approved and customary method of construction, and in the absence of evidence to the contrary and a showing of negligence, it was entitled to judgment in all events.

The other claimed acts of negligence and findings of the jury are ignored.

The record discloses that between the pole where plaintiff was working and a point opposite the Smelter, which we understand to be east of the pole in question, there are in the same line sixty-seven other guy wires, all of which have circuit breakers in them, and this pole has the only two without them.

Mr. E. J. Dermid, construction foreman on the job here involved, on direct examination testified it was the customary practice of the Company not to use the circuit breakers in rural and out of town construction except joint construction with the Telephone Company. On cross-examination he testified the Company has thousands of guy wires in El Paso and vicinity as far out as the pole here involved and in ninety-nine out of a hundred there are circuit breakers.

The testimony from all concerned is, had there been a circuit breaker eight feet from the top, the place for it, there would have been no ground in the guy wire.

The pole involved was set in wet ground and water. There is conflict in the testimony concerning the creosote saturation of the pole, and likewise as to whether or not it constituted a ground.

The purpose of the circuit breaker is, of course, to break the circuit and protect any who might come in contact with the guy against injury. There is unequivocal testimony in the record, though challenged, that the injury would not have occurred had the circuit breaker been in.

In support of the contention here made, defendant cites four cases: Trinity & B. V. R. Co. v. McDonald, Tex.Com.App., 208 S.W. 912; Houston & T. C. R. Co. v. Werline, Tex.Civ.App., 84 S.W.2d 288; Taylor v. White, Tex.Civ.App., 156 S.W. 349, affirmed Tex.Com.App., 212 S.W. 656; and Osborne v. Loew's Houston Co., Tex.Civ. App., 120 S.W.2d 947.

The first two, as we understand them, rest flatly on the ground the injury could not be anticipated and foreseen. Such is not the case here, nor is such contention suggested. In Taylor v. White, all the evidence was that all exciters throughout the country were operated without guard rails and unprotected, which was the claimed ground of negligence. Neither is that the situation in the instant case. In that case (212 S.W. at page 657 (4), it is said: "* * * The custom of others engaged in like business is not the absolute test of negligence, but where the undisputed evidence shows affirmatively, as it does in this case, that the defendant was conducting his business in accordance with the uniform custom of persons engaged in like business, it devolves upon the plaintiff, before he can recover, to produce evidence showing that such custom is negligent."

The evidence in the instant case is not all one way. Neither do we regard the Osborne case in point, which a reading will readily disclose. Defendant does not discuss it nor attempt to apply it.

The position taken here by the defendant was taken in French v. Southwestern Tel. & Tel. Co., Tex.Civ.App., 162 S.W. 406. The opinion there was expressly approved and adopted by the Supreme Court, 110 Tex. 505, 221 S.W. 570. What is said there, and the cases there cited, and Cameron Compress Co. v. Whitington, Tex. Com.App., 280 S.W. 527, and cases cited, to which might be added many more, dispose of this point. The standard of conduct is prescribed by law and not custom or practice. The standard is ordinary care. Even the habitual and customary use of a particular device will not of itself establish the exercise of ordinary care. Such is evidence, but it does not alter the standard— the standard...