Southwestern Bell Telephone Co. v. McKinney

• Decision Date: 16 October 1985
• Docket Number: No. 04-84-00140-CV,04-84-00140-CV
• Citation: 699 S.W.2d 629
• Parties: SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. Clifford Ray McKINNEY, Appellee.
• Court: Texas Court of Appeals

Page 629

699 S.W.2d 629

SOUTHWESTERN BELL TELEPHONE COMPANY, Appellant, v. Clifford Ray McKINNEY, Appellee.

No. 04-84-00140-CV.

Court of Appeals of Texas San Antonio.

Oct. 16, 1985.

Rehearing Denied Nov. 14, 1985.

Hubert W. Green, John T. Reynolds, San Antonio, for appellant.

Patrick Kelly, Paul E. Knisely, Spivey & Grigg, Austin, for appellee.

Before ESQUIVEL, BUTTS, REEVES, JJ.

ESQUIVEL, Justice.

This is an appeal from a judgment in a suit for damages rendered in favor of appellee, Clifford Ray McKinney (McKinney), against appellant, Southwestern Bell Telephone Company (Bell). We affirm.

McKinney sued Bell and Xerxes Corporation for personal injuries sustained as a result of an accident involving an overhead telephone line. McKinney non-suited Xerxes Corporation and dismissed it as a defendant in this case after Xerxes admitted in its amended pleadings and stipulated during trial that: (1) McKinney was its employee on the date and occasion in question; and (2) Xerxes on that date had in effect workers' compensation insurance covering all employees injured in the course and scope of employment. In special issue number seven, the jury was asked to find the percentage of negligence that caused damage to Clifford Ray McKinney and was attributable to each of the parties. The jury answered special issue number seven by finding: (a) Southwestern Bell Telephone Company seventy-five percent (75%) negligent; (b) Xerxes Corporation fifteen percent (15%) negligent; and (c) Clifford Ray McKinney ten (10%) percent negligent. McKinney moved that the court disregard the jury's answers to questions number 3, 4 and 7(B), and that the court enter judgment for McKinney notwithstanding the jury's answers to such questions. The court rendered judgment on the jury verdict for McKinney in the sum of $375,275.50. Bell presents three points of error and McKinney presents three cross-points.

McKinney was hired to provide a road escort service for transport by Xerxes of two oversized storage tanks from Seguin to Corpus Christi. McKinney's job was to lead the rig carrying the tanks and to watch for overhead obstructions and to provide traffic clearance at intersections. At the corner of Highway 97 and Houston Street in Pleasanton, an overhead telephone line crossed the intersection and extended to Highway 281, one block to the west. As McKinney approached the intersection, he noticed the line appeared to be low but, nevertheless, proceeded through the intersection. The Xerxes rig followed McKinney's car through the intersection but as it did so the telephone line became caught on a flange attached to the top of the storage tank. As a result of the collision with the wire, a telephone pole was broken causing the line to sag at the neighboring intersection of Highway 281.

Several Xerxes employees tried unsuccessfully to remove the wire from the tank. McKinney exited his car and was standing in the midst of loose cables assisting the efforts to remove the line from the tank. While McKinney was so engaged, a truck on Highway 281 collided with the sagging telephone line causing the line to snap tight and in the process to entangle McKinney's leg. This entanglement resulted in: (1) a traumatic amputation of McKinney's right foot just above the ankle which necessitated the further amputation of the right leg to a point some six inches below the right knee; (2) lacerations and contusions on McKinney's chest and face; and (3) a closed head injury. The evidence at trial revealed that it was standard Bell practice to maintain their lines at a height of eighteen feet above a roadway. See TEX.REV.CIV.STAT.ANN. art. 1436a, § 1 (Vernon 1980). There was also evidence that at the time of the accident, the Xerxes truck and its load did not exceed a height of seventeen feet, six inches.

Even though there was a nonsuit, negligence issues were submitted to the jury against all original parties. In special issue number seven, the jury found that Bell was seventy-five percent (75%) negligent in the maintenance of the telephone line; that Xerxes was fifteen percent (15%) negligent in the manner in which it transported the tank; that McKinney was ten percent (10%) negligent; and that the negligence of the parties was the proximate cause of McKinney's injuries. The amount awarded plaintiff represented seventy-five percent (75%) of the total damages found by the jury.

In point of error number one, Bell states the trial court erred in rendering judgment for McKinney because there was no evidence charging Bell with knowledge of the defective condition of the line and hence there was no evidence which would raise a legal duty.

In point of error number two, Bell states that there is no evidence to sustain the jury's finding of negligence on the part of Bell.

Point of error three states that there is no evidence to sustain the jury's finding of proximate causation. In cross-point one, McKinney states that the trial court erred in rendering judgment for only seventy-five percent (75%) of his damages against Bell instead of ninety-percent (90%) because Bell was jointly and severally liable for all damages except the ten percent (10%) caused by McKinney's own negligence.

In cross-point of error number two, McKinney states that the trial court erred in rendering judgment for only seventy-five percent (75%) of the damages because Bell failed to obtain a judgment on its cross-claim for contribution against Xerxes and has not appealed the judgment as to Xerxes.

Cross-point of error number three states that the trial court erred in rendering judgment for seventy-five percent (75%) of the damages because the pleadings, evidence and stipulations established that McKinney was an employee of Xerxes and was covered by workers' compensation and therefore neither McKinney nor Bell had a cause of action against Xerxes for negligence and under the rule of joint and several liability, McKinney was entitled to ninety percent (90%) of the damages.

In reviewing a no evidence point, this court looks only at that evidence that tends to support the jury's verdict, and ignores all evidence to the contrary. See Garza v. Alviar, 395 S.W.2d 821, 823 (Tex.1965); Rocha v. Ahmad, 676 S.W.2d 149, 155 (Tex.App.--San Antonio 1984, writ dism'd).

Furthermore, the scintilla rule applies when a vital fact must be inferred from other relevant facts which have been proved. In assessing a "no evidence" point, the scintilla rule is stated as follows: When the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is, in legal effect, no evidence, and will not support a verdict or judgment. Joskes v. Irvine, 91 Tex. 574, 44 S.W. 1059 (1898).

The evidence showed that the telephone line which snagged on the Xerxes truck was owned and maintained by Bell. The line had been in place since 1949 and at the point where it spanned Highway 97, it was approximately 200 feet long from pole-to-pole. Bell's managerial employee, Rene Robles, the customer service supervisor for the area including Pleasanton, admitted that Bell had a "continuing duty" to check the height of its overhead lines and to maintain them at least eighteen feet above a public roadway. Robles further testified that nobody other than the telephone company had the duty or responsibility to keep the lines at their proper height. McKinney's expert witness, D. Segall, Jr., a mechanical and electrical engineer, testified that the eighteen foot height requirement for utility lines over roadways is the minimum standard in the industry as set forth and recognized in the National Electric Safety Code. Segall also testified that eighteen feet is the minimum height requirement as stated in Bell's own manual regarding placement of lines over a roadway.

The testimony further showed that the Texas Highway Department grants permits for transporting oversized loads on the state's highways. Xerxes obtained an oversized load permit from the Texas Highway Department transportation of the two large tanks on May 31, 1981. The route, as designated in the permit, included the portion of Highway 97 through Pleasanton and also contained the standard legal requirement that the height of the vehicle and its load not exceed seventeen feet, six inches. Department of Public Safety Officers measured the Xerxes truck-trailer immediately after the accident in question and verified that its height did not exceed the legal limit. The witness Segall also testified, based on his familiarity with utility lines, that the telephone company can and should anticipate and foresee the likelihood of sag in its telephone lines over time, especially after thirty years.

The evidence further showed that Bell was chronically short-staffed in the area in question and that the maintenance crews merely "visually" observed telephone lines when they would happen to drive through the town where the lines were located. There were no specific times or occasions assigned for inspection or measurement of the height of telephone lines over the highways. Bell's employee, Robles, testified that he had never checked the height of the line in question over Highway 97 and he knew of no one else who had. A cable splicer for Bell, Luciano Luna, testified that he traveled through the intersection where the accident occurred about once a week. He testified that it is part of his responsibility to observe the telephone lines and that he "keeps an eye out" for the lines, but that the company does not instruct him to measure them to be sure they are at the proper height. Edgar Kohlleppel, a Bell lineman, whose duties include maintenance of the line in question, testified that he did not inspect or measure the height of telephone lines over the public roadways on a regular basis, nor did anyone else. The testimony of Bell's employees also established that shortly after the accident in question, Bell rerouted the...