Southwestern Telegraph & Telephone Co. v. Davis

• Decision Date: 29 April 1913
• Citation: 156 S.W. 1146
• Parties: SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. DAVIS.
• Court: Texas Court of Appeals

156 S.W. 1146

SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. DAVIS.

Court of Civil Appeals of Texas. Texarkana.

April 29, 1913.

Rehearing Denied May 8, 1913.

Appeal from District Court, Cass County; P. A. Turner, Judge.

Action by R. E. L. Davis against the Southwestern Telegraph & Telephone Company. Judgment for plaintiff, and defendant appeals. Affirmed.

In his petition appellee alleged that, because of negligence of appellant in installing and maintaining a telephone in the house in Atlanta where he resided with his wife, she was severely shocked, and so injured, by electricity conducted into the house by the telephone wire during a thunderstorm. The specific negligence alleged was the failure of appellant to provide a lightning arrester to prevent electricity from entering the house through the telephone on the occasion of such storms. The petition contained other allegations as follows: "That on or about the night of April 12, 1912, during a thunderstorm, a heavy charge of electricity was conducted along the wires of defendant into the residence of plaintiff, going into the telephone instrument, exploding, and striking the wife of plaintiff, who was sleeping in said residence at said time. That said bolt of lightning severely shocked and rendered unconscious for some time the wife of plaintiff and caused her great physical pain and mental suffering. That when plaintiff's wife awoke from her unconscious state she found herself in nervous fright and her body numb. That said bolt of lightning had set fire to the wall of the hall wherein the telephone was situated and plaintiff's wife—plaintiff being absent from home at the time—extinguished the flames with great difficulty and physical exertion. That by reason of said shock plaintiff's wife's nerves were shattered and her nervous system permanently injured. That thereby her hearing was permanently injured and impaired and she was caused to suffer and continues to suffer great pain in her right ear, being unable to sleep upon her right side on account thereof. That the eye-sight of plaintiff's wife was caused by said shock to become permanently weakened and greatly diminished." In addition to the general denial, appellant pleaded that, if appellee's wife was injured as he alleged, she was injured "during a severe rain and storm," and that her injury was due to "the act of God, same being an act or occurrence that was wholly beyond the power and control of this defendant." The appeal is from a judgment in favor of appellee for $1,250.

A. P. Wozencraft and W. S. Bramlett, both of Dallas, Hill Stewart, of Atlanta, and Young & Stinchcomb, of Longview, for appellant. Hugh Carney, of Atlanta, for appellee.

WILLSON, C. J. (after stating the facts as above).

Appellant vigorously insists that the court erred when he refused its request that he instruct the jury to find in its favor. In support of its contention appellant asserts that there was no testimony on which to base a finding: (1) That appellee's wife was injured by lightning as alleged; (2) or, if she was, that an "arrester," had it installed one to prevent lightning from being conducted over its wires through the telephone into appellee's house, could or would have prevented the injury she suffered; (3) or, if an arrester would have prevented injury to her, that it was guilty of negligence in failing to install one. We think the contention should be overruled. The testimony was amply sufficient to support a finding that appellee's wife was injured by lightning entering the house through the telephone, and warranted a finding that the lightning would not have so entered the house had appellant installed an "arrester" to prevent it. In support of its insistence that there was no evidence on which to base a finding that it was guilty of negligence in not installing an arrester, appellant asserts that the testimony was undisputed that such devices were not used for the purpose of preventing injury to occupants of houses in which telephones were placed, but only for the purpose of preventing injury to telephones by lightning carried on wires connected to them. Had the testimony in that particular been undisputed as asserted, we do not think it would follow that it therefore appeared insufficient to show negligence on the part of appellant. Having undertaken, as it appeared it did, to install a telephone in appellee's house and connect same with its telephone line, appellant was "under a duty," in the language of Start, J., in Griffith v. New England Telephone & Telegraph Co., 72 Vt. 444, 48 Atl. 644, 52 L. R. A. 919, "to exercise the care of a prudent man in like circumstances. If, while in the exercise...