San Antonio Gas & Electric Co. v. Badders

• Decision Date: 22 May 1907
• Citation: 103 S.W. 229
• Parties: SAN ANTONIO GAS & ELECTRIC CO. v. BADDERS et al.
• Court: Texas Court of Appeals

103 S.W. 229

SAN ANTONIO GAS & ELECTRIC CO. v. BADDERS et al.

Court of Civil Appeals of Texas.

May 22, 1907.

Rehearing Denied June 19, 1907.

Appeal from District Court, Bexar County; J. L. Camp, Judge.

Action by Minnie Lee Badders, for herself and as next friend of her minor children, against the San Antonio Gas & Electric Company and another. Defendant gas and electric company appeals from the judgment. Affirmed.

Ogden, Brooks & Napier, for appellant. H. C. Carter and Perry J. Lewis, for appellee.

JAMES, C. J.

Minnie Lee Badders, the widow of Earnest N. Badders, for herself and as next friend of their children, brought this suit against appellants, the San Antonio Gas & Electric Company and the Southwestern Telegraph & Telephone Company, for damages for the killing of Earnest N. Badders a telephone inspector in the employ of the latter company, on or about June 5, 1905. The petition alleged his duty to ascend one of the poles for the purpose of loosening and uncrossing wires, and while so engaged, in order to reach the telephone company's wires, he passed in close proximity to, or came in contact with, the wires of the said gas and electric company, which were stretched on the sides of the said pole of the telephone company. The said gas and electric company's wires conducted a powerful, dangerous, and deadly current of electricity of about 2,200 volts, and they were strung alongside the pole of the telephone company several feet under its wires, and in such manner and proximity that a person ascending the pole had to come in close proximity or in contact with them, and at a point near the pole the electric light wires were uninsulated and wholly uncovered, so that the current would pass to the body of one climbing the pole. That the said gas and electric company was negligent in having and permitting the wires to be placed and maintained in such position uninsulated. That the telephone company was negligent in having and permitting the electric company to have and maintain its wires along its pole, and in permitting same to be uninsulated. That, while ascending said pole to attend to the telephone wires, the said Badders, without knowledge or notice of the danger so created, came in close proximity to, and in contact with, said wires, and received the shock which caused his death. The petition further alleged that there was in force a city ordinance regulating and governing the construction and maintenance of wires for conducting electricity, which enacted, in substance, that live wires must have an approved weather or rubber insulating covering, and be so spliced or joined as to be both mechanically and electrically secure without solder, and the joints must then be soldered to insure preservation, and covered with an insulation equal to that of the conductors; and that wires must be so placed that moisture cannot form a cross-connection between them, not less than a foot apart, and not in contact with any substance other than their insulating supports. And it was alleged that a violation of this ordinance was made a misdemeanor and punishable. The petition alleged the violation of the ordinance, in that the wires did not have an approved weather or rubber insulating covering, and at a point near the pole did not have any covering or insulation at all; that said wires were not placed more than a foot apart, etc. The gas and electric company pleaded general denial; also, that deceased came to his death by an accidental fall; also, through his contributory negligence; also, that it occurred from the negligence of the telephone company in permitting its pole to lean over, instead of being kept in a perpendicular position, which caused its wires to be brought into contact or dangerous proximity to the defendant's wires; also, that the shock, if any, was received by deceased from one of the telephone company's guy wires which it had negligently allowed to come in contact with this defendant's voltage wires; also, the city ordinances requiring telephone poles to be perpendicular, and guy wires to be amply protected, and alleged a violation thereof, and prayed for recovery over against its codefendant, if held liable. The defendant telegraph and telephone company pleaded general denial, contributory negligence, and assumed risk; that its poles and wires were in good condition; that the gas and electric company had caused its heavy voltage wires to straddle this defendant's wires, and had left two naked joints on same side of said pole, which would shock and kill any one coming in contact therewith; that said wires had been so placed and left without its knowledge; that it was not the active wrongdoer; and that its codefendant was the cause of the injury, and prayed for judgment over. By supplemental answer the telephone company denied that its pole was out of perpendicular, and denied that its guy wire came in contact with a voltage wire. Plaintiff, by supplemental petition, alleged that, if the guy wire was in such position as alleged by the electric light company, then such defendant was negligent in permitting it to be so. There was a verdict in favor of plaintiff against the gas and electric company for $16,000.

Appellant's first assignment of error is that the court refused to instruct the jury to return a verdict in its favor. The proposition is that the undisputed evidence shows that, if there was any negligence causing the death of Badders, it was the negligence of appellant's servants, and not negligence of the corporation. The second assignment, which complains of a paragraph of the charge, repeats by propositions the same contention in this form: That the undisputed evidence shows that the joints were left bare and uninsulated by its linemen Kuhlmann and Henry, and appellant is not liable under the law to appellees for such act on the part of its servants. There is little, if any, conflicting testimony. It appears that both companies had their poles on the same side of the street, and appellant's wires were strung along a street in the city of San Antonio about 10 feet below the telephone wires. Appellant had two high voltage wires strung on...