Southwestern Telegraph & Telephone Co. v. Shirley

• Citation: 155 S.W. 663
• Parties: SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. SHIRLEY.
• Decision Date: 19 March 1913
• Court: Court of Appeals of Texas

155 S.W. 663

SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. SHIRLEY.

Court of Civil Appeals of Texas. San Antonio.

March 19, 1913.

Rehearing Denied April 16, 1913.

Appeal from District Court, Bexar County; Claude V. Birkhead, Judge.

Action by A. L. Shirley against the Southwestern Telegraph & Telephone Company. From a judgment for plaintiff, defendant appeals. Affirmed.

A. P. Wozencraft, of Dallas, E. D. Henry, of San Antonio, W. S. Bramlett, of Dallas, and A. McCloskey, of San Antonio, for appellant. Arnold & Carl, of San Antonio, for appellee.

FLY, C. J.

This is a case instituted by appellee to recover damages from appellant and the San Antonio Gas & Electric Company, alleged to have accrued through a shock received from a wire of appellant, which had broken and fallen across a wire of the Gas Company, whereby it had been heavily charged with electricity. There were several grounds of negligence which have been stated with unnecessary elaboration by appellant, as the cause was submitted to the jury on the breaking of a defectively insulated wire, which fell across a heavily electrified wire which charged appellant's wire, and while the same was hanging over the street it came into contact with appellee and injured him. A verdict was instructed for the Gas & Electric Company, and a verdict was returned for appellee against appellant for $23,500, upon which was rendered the judgment from which this appeal is perfected.

Before going into the merits of the case, we will dispose of the seventh assignment of error, which assails the action of the court in overruling an application of the appellant to remove the cause from the state court to the United States District Court. The application was made after appellee had introduced his evidence, and the codefendant of appellant had obtained an instructed verdict in its behalf. The ground of the motion was that appellee was a citizen of Great Britain, and appellant was incorporated under the laws of the state of New York. It is recited in the application that previous to the trial the cause had been removed by the state to the federal court, and by the latter remanded to the state court. It is unnecessary to state further from the application, which covers 15 pages of the record.

While the cause was in the federal court, the following agreement was made by appellant: "In the above-entitled cause comes the defendant, the Southwestern Telegraph & Telephone Company, and agrees that said cause may be remanded to the thirty-seventh district court of Bexar county, Tex., from whence it was removed by said defendant, and that all costs in the said United States Circuit Court shall be taxed against the said defendant, the Southwestern Telegraph & Telephone Company." It will not be claimed, we suppose, that a corporation created in New York is not bound by its agreements, in the same way a Texas corporation is, and it would seem that the agreement alone should preclude any question of removal to a federal court being raised in this suit. Anderson v. Realty Co., 222 U. S. 164, 32 Sup. Ct. 50, 56 L. Ed. 144.

Waiving the force and effect of the agreement, appellant has no ground upon which to base its assignment of error. The Supreme Court of the United States has effectually disposed of the contention of appellant adversely to it. Whitcomb v. Smithson, 175 U. S. 635, 20 Sup. Ct. 248, 44 L. Ed. 303; Railway Co. v. Thompson, 200 U. S. 206, 26 Sup. Ct. 161, 50 L. Ed. 441, 4 Ann. Cas. 1147. The cause of action against the two companies was not separable, and on that ground the state court had jurisdiction. Railway v. Willard, 220 U. S. 413, 31 Sup. Ct. 460, 55 L. Ed. 521; Railway v. Schwyhart, 227 U. S. 184, 33 Sup. Ct. 250, 57 L. Ed. ___. In the Thompson Case, cited, it was said: "In other words, the right to remove depended upon the case made in the complaint against both defendants jointly, and that right, in the absence of a showing of fraudulent joinder, did not arise from the failure of the complainant to establish a joint cause of action." It was not pleaded nor proved that the joinder was made for the purpose of defeating federal jurisdiction. The court did not err in retaining jurisdiction of the cause.

We will proceed to dispose first of all the other questions of law which are contained in the third, fourth, and fifth assignments of error; the rest of the assignments being devoted to questions of fact. The court did not err in refusing to charge the jury that there was no evidence of defective insulation of the wire of appellant. As indicated in our conclusions of fact hereinafter found, to have given the charge would have been gross error.

The fourth assignment complains of the refusal of the first application for a continuance. No bill of exceptions was reserved to the action of the court in connection with the continuance, and there is no basis for the assignment. The exception noted in the judgment refusing the continuance will not supply the place of a proper bill of exceptions. Campion v. Angier, 16 Tex. 93; Harrison v. Cotton, 25 Tex. 54; McMahan v. Busby, 29 Tex. 195; Railway v. Hardin, 62 Tex. 367; Philipowski v. Spencer, 63 Tex. 604; Railway v. Mallon, 65 Tex. 115; Waites v. Osborne, 66 Tex. 648, 2 S. W. 665; Simpson v. Texas Tram Co., 51 S. W. 655; Railway v. Klaus, 34 Tex. Civ. App. 492, 79 S. W. 58; City of San Antonio v. Ashton, 135 S. W. 757.

There was evidence sufficient to raise the issue as to whether the wire "hung or dangled down on Corcoran avenue" as submitted by the court, which is attacked in the fifth assignment of error. Guerra, a policeman, swore that it was "hanging there." Pfeufferling swore that it was "hanging down from Duerler's building on the sidewalk"; "the wire didn't touch the ground, but hung within three or four feet of the ground." There was other testimony to the same effect. There was ample evidence to show that the wire was defectively insulated, and that such defective insulation was the proximate cause of the disaster. The third proposition is to the effect that the charge in question is erroneous because it required the jury to find that the wire "hung or dangled" for such length of time before the accident that appellant could have discovered it, and is not supported by the charge which contains no such matter nor anything like unto it. The proposition is not based on the charge of the court.

The issue in question, about which appellant contends there was no evidence, was submitted at the instance and request of appellant, and, if error, it is responsible for it.

If the accident occurred through the negligence of appellant in not having its wires properly insulated, as the evidence showed and the jury found, it would not matter whether it had been hanging over the sidewalk threatening the life of every pedestrian that passed that way for one minute, one hour, or one day. The negligence did not consist in letting it hang for a certain length of time over the sidewalk, but in making it possible for that instrument of death to hang for one instant where it might destroy either the life or the health and usefulness of a human being.

While it has been held that the electrical company is not the insurer of the safety of the passer-by from injuries due to falling or breaking wires, yet they are held to the exercise of care to prevent such accidents; and, where a person using the street or road is injured by contact with an electrical wire lying upon or suspended over such street or road, the presence of such wire raises a presumption of negligence, as would the falling of a wire where a person is injured, and the burden is upon the company owning or maintaining the wire to overcome such presumption. Joyce, Electric Law, §§ 606, 607; Downs v. Telephone Co., 161 Mo. App. 274, 143 S. W. 889.

As said by the same author (section 445): "It is the duty of the company, under such conditions, to keep the wires perfectly insulated, and it must exercise the utmost care to maintain them in this condition at such places." He was...