Southwestern Gas & Electric Co. v. Hutchins, 2443.

• Decision Date: 07 February 1934
• Docket Number: No. 2443.,2443.
• Citation: 68 S.W.2d 1085
• Parties: SOUTHWESTERN GAS & ELECTRIC CO. v. HUTCHINS.
• Court: Texas Court of Appeals

Page 1085

68 S.W.2d 1085

SOUTHWESTERN GAS & ELECTRIC CO. v. HUTCHINS.

No. 2443.

Court of Civil Appeals of Texas. Beaumont.

February 7, 1934.

Rehearing Denied February 21, 1934.

Appeal from District Court, Shelby County; T. O. Davis, Judge.

Action by G. O. Hutchins against the Southwestern Gas & Electric Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Davis, Avery & Wallace, of Center, and George Prendergast, of Marshall, for appellant.

J. J. Collins, of Lufkin, and Sanders & McLeroy, of Center, for appellee.

WALKER, Chief Justice.

While appellee, G. O. Hutchins, was assisting in carrying a wire cable, attached to the top of a wooden oil derrick 135 feet high, to an anchor about 190 feet immediately south from the foot of the derrick, under the electric wires of appellant, Southwestern Gas & Electric Company, the cable was brought close enough to the electric wires to cause the electricity to jump from the wires to the cable, thereby killing one of appellee's fellow workmen and injuring him and the others, who were holding the cable at the time. On the jury's verdict convicting appellant of negligence "in maintaining the electric wires in question in an uninsulated and bare condition at the point where the accident in question occurred," and that such negligence was the proximate cause of the accident, appellee was awarded judgment for $2,990. Appellant asserts that the evidence failed to raise against it this issue of negligence. This proposition is overruled.

That the wires were not insulated was conceded. At the time appellant's electric wires were carrying 11,000 volts of electricity. Its expert witness and employee, Mr. George D. Pollock, testified: "This line contained 11,000 volts of electricity and could not be insulated. The maximum voltage that can be insulated is 600 volts. * * * This line was erected according to the most approved standards. * * * This line is 11,000 volts and cannot be insulated."

But on this issue he gave the following additional testimony:

"Q. What is the voltage that can be insulated? A. Six hundred volts.

"Q. What is over the cities? A. Twenty-three hundred, four thousand, sixty-six hundred, eleven thousand, and thirteen thousand two hundred.

"Q. Haven't you seen lines over the cities and towns of Texas that are insulated? A. Yes, I have seen quite a good deal of insulated lines strung.

"Q. Isn't it universally practiced to insulate all wires throughout cities and towns? A. I wouldn't say that because a good number of companies use bare wires throughout.

"Q. Most of them use insulated wires throughout. A. I suppose a small larger per cent use an insulated wire.

"Q. That is because it is safer? A. No, I wouldn't say it is safer.

"Q. Why do they insulate it then? A. It is beyond me—I don't know.

"Q. Haven't any idea? A. I can't imagine. It is not safer."

Appellant's wires were strung on poles 25 feet and 9 inches above the ground at the lowest point in their "sag," and had been erected according to a well-recognized scientific code. The derrick in question was in the residential section of the town of Kilgore, and was erected before appellant built its electric line. Appellant's trouble shooter, Mr. Orville Womack, testified:

"Q. You have seen these derricks collapsed many times in the oil field? A. Yes sir.

"Q. You haven't been around in the oil fields and noticed them tearing down derricks? A. Yes, I seen them pulled down, but never saw them take the top out.

"Q. Never saw one taken down in that manner? A. No sir.

"Q. Don't you know it is the universal custom among workmen in the oil field to pull the derrick down in that manner? A. No sir.

"Q. That is the first time you ever heard of it being done in that way? A. Yes sir.

"Q. And you been around the oil field how long? A. I went down there on March fourth, right after the field came in.

"Q. You do know that derricks were built all throughout the oil field there in close proximity to your high power line, didn't you? A. Yes sir.

"Q. And particularly at the point where this accident occurred didn't you? A. Yes sir.

"Q. And knew the land to both sides was leased to people to drill for oil? A. No sir.

"Q. You knew oil operations were going on? A. I knew that, but do not know about the leases.

"Q. You knew men were going in and out of the field there from day to day in the pursuing of their work? A. Yes sir.

"Q. And you knew your line crossed Commerce Street there? A. Yes sir.

"Q. And knew they were uninsulated and carrying a high voltage of electricity? A. Yes sir.

"Q. And all the service you were giving down there was to one pump station, and one house, after you left your main line? A. Two motors.

"Q. And you knew they only require four hundred and forty volts of electricity to operate them? A. Yes sir."

The derrick was on the Knoles tract of land, upon which the Oriental Oil Company had an oil and gas lease. The oil company erected its derrick 154 feet from the dividing line between the Knoles tract of land and the Lewis Alexander tract of land immediately south, and Hutchins Bros. were at the time dismantling the derrick under contract with this oil company, doing this in the usual and customary manner used at the time in the Kilgore oil field, by cutting the uprights of the derrick about 30 feet from the top and then pulling the top out of the derrick in the manner stated. The Lewis Alexander tract was under an oil lease to Degner Oil Company. Hutchins Bros. had general permission from Degner Oil Company to enter upon any and all of its leases in the Kilgore oil field whenever necessary in the due prosecution of their work but no special permission to enter the Lewis Alexander tract on the morning of the accident. The Lewis Alexander tract of land was located not far from the business section of the town of Kilgore, and the public generally used it as a public place, whenever a member of the public had business in the oil field that required its use going in and out, over and across, this land, just as the business district of the town was used, paying no attention to the dividing lines between this tract and adjacent property. All this was done with the consent and acquiescence of Lewis Alexander and his lessee and the other adjacent property owners. Appellant did not maintain any warning sign or notice that its wires were electric wires highly charged with electricity. Neither appellee nor any of his fellow workmen knew the character of these wires nor that they were charged with electricity. Though erected according to a recognized scientific code, there was testimony to the effect that appellant had installed its wires nearer the ground than was usual in cities, and there was testimony to the effect that some of its electric wires in other sections of the town of Kilgore were insulated. The derrick was in the residential section of the town of Kilgore. Appellee and his associates, immediately prior to the time he was shocked, had carried the cable to an anchor imbedded in the ground on the Lewis Alexander tract, immediately south of the derrick, and about 35 feet from the line of the Knoles tract. They were attempting to fasten the end of the cable to this anchor; the method being then for the workmen to pull on the cable, thereby pulling the top out of the derrick. The cable did not come in actual contact with the electric wires, but in attempting to fasten it to the anchor appellee and his fellow workmen caused it to come within about a foot of the electric wires, when the electricity jumped from the wires to the cable, thereby killing one of the workmen and shocking appellee and the others. The day of the accident the weather was damp with some rain. Appellant's expert testimony was to the effect that the electricity could not jump from the wires to the cable unless the cable was within less than half an inch of the wires.

We think this statement of the evidence raised against appellant the issue of negligence now under discussion. That appellant could have insulated the wires in question is shown by the fact that it insulated its wires in other sections of the town of Kilgore and that other companies under similar conditions and circumstances insulated their wires. Appellant knew that derricks were dismantled by pulling them down and, knowing this fact, installed its wires in an uninsulated condition near the derrick, without giving any warning to the workmen of their character and...