Texas-Louisiana Power Co. v. Webster

• Decision Date: 04 March 1933
• Docket Number: No. 11114.,11114.
• Citation: 59 S.W.2d 902
• Parties: TEXAS-LOUISIANA POWER CO. v. WEBSTER.
• Court: Texas Court of Appeals

59 S.W.2d 902

TEXAS-LOUISIANA POWER CO. v. WEBSTER.

No. 11114.

Court of Civil Appeals of Texas. Dallas.

March 4, 1933.

Rehearing Denied April 22, 1933.

Appeal from District Court, Grayson County; R. M. Carter, Judge.

Action by R. B. Webster against Texas Louisiana Power Company. From a judgment for plaintiff, defendant appeals.

Affirmed.

Jas. D. Buster, of Sherman, and Leachman & Gardere, of Dallas, for appellant.

Hubert Bookout and Randell & Randell, all of Sherman, for appellee.

LOONEY, Justice.

Doc Franklin Webster was killed by coming in contact with appellant's transmission line that was broken down, by a stroke of lightning, at a point two or three miles south of Bells, in Grayson county. This suit was instituted by his father, R. B. Webster, for himself and on behalf of the other beneficiaries, to wit, Mrs. R. B. Webster, mother, Vera Webster, widow, and Stella May Webster, posthumous daughter.

The material facts are these: Doc Webster, with his wife Vera, Tom Webster, a brother, and Bowen Daniels, a brother-in-law (wife's brother), for about two weeks prior to the tragedy mentioned, had been traveling in an automobile through the central and northern portions of Texas hunting work, but, on account of excessive rains, failed to secure same, and were returning to West Texas, where they resided, reaching Bells in Grayson county Monday night May 13, 1929, intended to go west through Sherman, but, because of damaged roads, detoured south through Whitewright, leaving Bells near 11 o'clock p. m., and had reached the corner of the Carter farm when the car ceased to operate and stopped. The Carter farm was rented to Mr. Mack Atnip of Bells, but, at the time, was resided upon and cultivated by a negro named Frog Jackson. When the car stopped, it was raining some, was dark, and the ground very muddy. Appellant's power line is constructed through this farm, from the north, on a southwesterly course. Early that morning, between 6 and 7 o'clock, during a severe electrical storm that prevailed over that section, lightning struck and broke down two adjacent poles of the transmission line, causing the wires to sag, at the lowest point, about 3 feet above the ground, but the insulation and attachment of wires to cross-arms were not disturbed. When the car stopped, the parties thought they were out of gasoline, so Tom Webster and Bowen Daniels took an empty can, left Doc Webster and wife, Vera, in the car, and started on a hunt for gasoline. They entered the Carter inclosure from the highway, crossed over a narrow lane into a field recently planted to cotton, passed along the side of the lane fence around to a barn where, as indicated by the circumstances, they procured gasoline from an automobile belonging to the negro, and, returning to their car, evidently became confused, took the wrong direction, going northeast through the cotton land, instead of southeast, contacted with the sagging transmission line of appellant and were killed. When the brother and brother-in-law left Doc and his wife to go after gasoline, Doc sat under the wheel and his wife by his side, and, being worn and tired from travel, she reclined with her head in his lap and was soon asleep, but, aroused by her brother's voice calling "Doc," she saw a long blue flame, heard a noise as of something frying, again heard her brother's voice saying "Hurry up," saw another blue flame, and heard the same frying sound. In answer to the calls of Bowen Daniels, Doc left his wife in the car and went in the direction of the voices and flames, and within a short time the witness saw the same manifestation of flame and heard the same frying sound as before. The bodies of the three young men were found next morning under the sagging transmission line at a point about 200 yards from the car and from 100 to 150 yards down in the field from the house. Other pertinent facts will be mentioned in the course of the discussion.

The grounds of negligence specified are: (1) That appellant violated article 1436 in having its electric line at a height less than 22 feet above the ground; (2) that it caused and permitted its wires to sag and fall and remain within 3 feet of the ground; (3) that it failed to place a watchman at such place to warn persons of such condition; (4) that it failed to cut off the current of electricity from said lines; (5) that it failed to keep the wires from sagging and falling near the ground in a position to strike and come in contact with persons who might pass or be about it.

Appellant's answer contains a general demurrer, general denial, plea of unavoidable accident, plea that the accident and injury complained of were the result of an act of God, to wit, a stroke of lightning, also that the negligence of deceased was a proximate or contributing cause of the accident and death, and a plea that deceased was a trespasser upon the premises at the time. The demurrer was overruled, the case was submitted to a jury, and, after proper definitions of negligence, ordinary care, and proximate cause, the issues of negligence submitted were: The act and conduct of appellant in permitting its wires to remain low and near the ground; in failing to have a watchman at the time and place in question to prevent any one from coming in contact with the low sagging wires, and in keeping its wires charged with a powerful current of electricity while low and sagging near the ground. Each issue was found by the jury to be actionable negligence, and, further, that Doc Webster was not guilty of negligence in going into the field at the time and place in question and in the manner that he did. The jury assessed $10,000 damages in favor of Vera Webster, the widow, $10,000 in favor of Stella May Webster, the posthumous child, $2,250 in favor of Mrs. R. B. Webster, mother, and $750 in favor of R. B. Webster, father of deceased. Judgment was rendered accordingly, from which this appeal is prosecuted.

Ordinarily we would not feel called upon to discuss each of the numerous propositions, in which appellant translates the assignments relied upon for reversal, but, in deference to the elaborate brief and exhaustive discussion of these questions by appellant's counsel, each proposition will be discussed.

Appellant does not contend that the findings of the jury are unsupported by evidence, but, in proposition 1, urges that the court erred in overruling its general demurrer to appellee's petition, because its allegations reveal the fact that deceased was a trespasser upon the premises at the time of losing his life, hence appellant owed him no duty; and, in propositions 2 and 3, contention is made that the court erred in refusing, on request, to instruct a verdict in its favor, because the undisputed evidence shows that, at the time deceased met death, he was trespassing upon the premises. These propositions present appellant's main contention.

A power corporation, being quasi public in character, is charged by statute with the performance of certain general duties. Authority is conferred upon these corporations to generate, transport, and sell electric current, to construct, maintain, and operate plants, substations, machinery, apparatus, pipes, poles, devices, and such arrangements as may be necessary to operate lines between different points in the state, and to own, hold, and to use such lands, right of way, easement, franchise, buildings, and structures as may be necessary (article 1435, R. S. 1925), and to acquire, by condemnation, lands, right of way, easements, and property, and erect its lines over and across any public road, railroad, interurban or street railroad, the right of way thereof, canal or street, etc., specially providing, however, that "such lines shall be constructed upon suitable poles in the most approved manner and maintained at a height above the ground of at least twenty-two feet. * * *" Article 1436, R. S. 1925.

Obviously, one of the purposes of the quoted provision of the statute is to protect from injury all persons while using the premises in a manner consistent with the easement rights of the power company. What are these rights? The generally accepted doctrine is that the owner of the fee or proprietor of the premises has dominion over and the right to use the land in a manner consistent with the reasonable enjoyment of the easement by its owner. 15 Texas Juris. p. 802, § 59. See annotations 46 A. L. R. 1463-1465. Appellant acquired the right of way through the Carter farm by a deed from the owner, granting the right of ingress and egress over adjacent lands to or from said right of way for the purpose of constructing, reconstructing, inspecting, controlling, hanging new wires on, maintaining, and removing said line and appurtenances, the right to relocate along the same general direction of said line, etc. Neither under this express grant nor under the statute did appellant have the right to prevent the owner of the fee, or proprietor, from using the ground under the power line so long as it was not put to a use inconsistent with the reasonable enjoyment of the easement. We do not think it can be said that, in attempting to pass under appellant's power line at the time and place in question, deceased was interfering with or trespassing upon any right of the appellant, in fact, if deceased was trespassing, it was upon the rights and premises of the owner or tenant.

If it be conceded that, as to the owner or tenant of the premises, deceased was a trespasser, would that fact relieve appellant from liability for injuries and damages resulting from its negligence? We do not think so. In Oil Belt Power Co. v. Touchstone (Tex. Civ. App.) 266 S. W. 432, 439, it was held that the company was liable for the death of a boy who went to the top of a tank, over which the company maintained uninsulated wires, and was electrocuted. The court said: "It cannot be doubted that it is negligence to maintain an uninsulated wire highly charged with...