Shultz v. Dallas Power & Light Co.

• Decision Date: 14 December 1940
• Docket Number: No. 12934.,12934.
• Citation: Shultz v. Dallas Power & Light Co., 147 S.W.2d 914 (Tex. App. 1940)
• Parties: SHULTZ et al. v. DALLAS POWER & LIGHT CO.
• Court: Texas Court of Appeals

147 S.W.2d 914

SHULTZ et al. v.DALLAS POWER & LIGHT CO.

No. 12934.

Court of Civil Appeals of Texas. Dallas.

December 14, 1940.

Rehearing Denied February 8, 1941.

Appeal from District Court, Dallas County; W. L. Thornton, Judge.

Suit by Mrs. Edna Shultz and others against the Dallas Power & Light Company for death of Marvin Shultz resulting from electrocution.From a judgment for defendant, the plaintiffs appeal.

Affirmed.

James D. O'Connor, Robert A. Wilson, and Robert M. Vaughan, all of Dallas, for appellants.

W. Autry Norton, Irion Worsham, and Worsham, Burrow & Worsham, all of Dallas, for appellee.

YOUNG, Justice.

In brief, this record is the tragic story of two accidental deaths by electrocution.The second casualty only is dealt with in this action, suit being by the surviving widow and parents of Marvin Shultz, deceased, who, on June 29, 1938, had been employed by the Dallas Park Board, along with other laborers, on the Dallas State Fair grounds.Adjacent to the Chrysler building on these grounds was a concrete vault, some thirty feet long, thirteen feet in width and height, and uncovered.Therein was housed a transformer, electrical equipment, cables and wires of appelleePower Company, carrying electricity of high voltage.A door at the end, always locked, led into the vault, and at various places, within and without, were signs indicating danger and nature of the contents.Around the wall outside was shrubbery, placed there and maintained by the Park Board; also, wooden boxes filled with earth were affixed some four feet up the wall and atop thereof, for shrubs and flowers.The two men, Albino Lazano and Marvin Shultz, whilst engaged in their duties for the Park Board, were at this particular place, cleaning out these plants and flower beds.Lazano went to the top of the vault wall for such purpose and, in some way, his hoe fell inside.Shultz, being apprised of his fellow-workman's predicament, secured a long wire for use by Lazano in "fishing" for the hoe from his position on the wall.In some way, the wire connected with a 2,300 volt current from a cable leading into the transformer, Lazano being thereby fatally shocked.Shultz immediately attempted to free Lazano from the charged wire, came in contact therewith, and was also killed.

Appellants' trial petition alleged various acts and omissions of the Power Company, resulting in the death of Marvin Shultz; on the trial, relying principally upon their requested issue No. 7, reading: "Gentlemen of the Jury, do you find and believe from a preponderance of the evidence that the defendant was negligent in having its transformers connected with cables, charged with high voltage of electricity, located in an uncovered vault at the time and place where Marvin Shultz was electrocuted?"IssueNo. 1 of the charge, concerning defendant's negligence, is quoted: "Do you find and believe from a preponderance of the evidence that the failure of the defendant to cover the transformer vault in question in this case, was negligence as the term `negligence' is herein defined?"The substance of other issues and jury answers thereto, upon which the court's judgment was based, is: That the failure of defendant to place upon the north wall of said transformer vault visible signs indicating the presence of danger to one working around or on top of said vault, was not negligence; deceased, Marvin Shultz, caused a large wire to be carried up over the wall of the transformer vault and pushed into the enclosure, which was negligence proximately contributing to his death; Shultz, in attempting to rescue Albino Lazano from a position of peril, acted in a rash and reckless manner; the death of Shultz was not due to an unavoidable accident; neither the act of Lazano in bringing the wire into contact with the transformer cable, nor in lowering it into the vault, was the sole proximate cause of Shultz's death.

The propositions of appellants under their various assignments of error urge, in effect, (1) that IssueNo. 1 of the charge failed to include a material fact relative to the uncovered vault, with resultant error in the court's refusal of plaintiff's requested IssueNo. 7 on the subject; also, that subsidiary IssueNo. 10, on...