Texas-Louisiana Power Co. v. Webster

• Decision Date: 19 February 1936
• Docket Number: No. 6564.,No. 6565.,6564.,6565.
• Citation: 91 S.W.2d 302
• Parties: TEXAS-LOUISIANA POWER CO. v. WEBSTER et al. SAME v. DANIELS.
• Court: Texas Supreme Court

Page 302

91 S.W.2d 302

TEXAS-LOUISIANA POWER CO. v. WEBSTER et al.

SAME v. DANIELS.

No. 6564.

No. 6565.

Supreme Court of Texas.

February 19, 1936.

Error to Court of Civil Appeals of Fifth Supreme Judicial District.

Suits by R. B. Webster and others, and by Mrs. N. E. Daniels against the Texas-Louisiana Power Company. Judgments for the plaintiffs were affirmed by the Court of Civil Appeals [59 S.W.(2d) 902; 61 S.W. (2d) 179], and the defendant brings error.

Judgments of the Court of Civil Appeals and of the district court affirmed.

James D. Buster, of Sherman, Bennett L. Smith, of Fort Worth, and Leachman & Gardere, of Dallas, for plaintiff in error.

Randell & Randell, C. B. Randell, and Hubert Bookout, all of Sherman, W. A. Keeling, of Austin, and J. W. Gormley, of Dallas, for defendants in error.

CRITZ, Justice.

Some time after 11 o'clock at night on May 13, 1929, Doc Webster, Tom Webster, his brother, and Bowen Daniels, Doc Webster's brother-in-law, were killed about three miles south of Bells, in Grayson county, Tex., by coming in contact with a power line of the Texas-Louisiana Power Company at a place where it was broken down by a stroke of lightning about 6 or 7 o'clock the previous morning.

Growing out of these tragic occurrences, we have before us the two above numbered and entitled suits. The two suits are so related to each other that we dispose of both of them in one opinion.

The first suit above listed was instituted by R. B. Webster, the father of Doc Webster, deceased, on behalf of himself and on behalf of Mrs. R. B. Webster, mother of the deceased; Vera Webster, surviving widow of the deceased; and Stella Mae Webster, posthumous daughter of the deceased.

The second suit above listed was filed by Mrs. N. E. Daniels, surviving mother of Bowen Daniels.

In the first suit R. B. Webster et al. recovered judgment against the Texas-Louisiana Power Company for $23,000. This judgment was apportioned among the plaintiffs in the district court in accordance with a verdict of the jury. In the second suit Mrs. N. E. Daniels recovered judgment for $7,500.

Both cases were appealed to the Court of Civil Appeals at Dallas, where they were both affirmed in opinions by Justice Looney. Justice Bond dissented. The first case is reported at 59 S.W.(2d) 902, and the second at 61 S.W.(2d) 179.

The case of R. B. Webster et al., beneficiaries of Doc Webster, deceased, was submitted to a jury on special issues. In response to such issues the jury found the power company guilty of negligence (a) in allowing its wires to remain low and near the ground at the time and place in question, (b) in failing to have a watchman at the time and place in question to prevent any one from coming in contact with its low, sagging wires, and (c) by keeping its wires charged with a powerful current of electricity while they were low and sagging near the ground. In the N. E. Daniels Case, supra, the jury in effect found the same facts.

The facts surrounding the deaths of Doc Webster, Tom Webster, and Bowen Daniels were very tragic. All three men were killed within a few minutes of each other by coming in contact with a highly charged electric power line belonging to the power company. In some respects, as will later appear, the power company offered evidence, which was rejected, that to our minds would have justified a fact finding regarding some of the circumstances of Doc Webster's death very different from the testimony of Vera Webster, who testified as a witness for herself and the other plaintiffs in both cases.

Under the undisputed evidence Doc Webster, Tom Webster, and Bowen Daniels were killed late in the night of May 13, 1929, by coming in contact with the power company's power line. This line had been constructed, and was being maintained, on and over the Carter farm by permission of the owner, and by virtue of an easement or right of way deed, which granted the power company the right to construct and maintain its power line on, over, and across such farm. Also, this deed granted the right of ingress and egress and certain other rights proper and necessary to carry out and perform the purposes of the grant.

Early in the morning of May 13, 1929, about 6 or 7 o'clock, lightning struck and broke down two of the poles supporting the power company's power line on, over, and across the Carter farm. This caused the wires strung thereon to sag to within two or three feet of the ground at the lowest point. The above-described wires remained in the above-described condition from 6 or 7 o'clock in the morning until the happening of the deaths of these three men late the following night. The power company's line was strung on poles set in the ground at regular intervals. As we understand the record, there is no contention that the condition of the line before it was struck by lightning was in violation of law.

We have already stated, in substance, the findings of the jury. Such findings undoubtedly convicted the power company of negligence in the particulars above detailed. The verdict also found that such negligence was the proximate cause of the deaths of the three men named above.

We will not attempt to detail the evidence regarding the negligence of the power company. It is sufficient to say that we think there is evidence in the record supporting all findings of negligence. The sufficiency of such evidence was for the Court of Civil Appeals to decide.

It appears undisputed that Doc Webster, Vera Webster, his wife, Tom Webster, Doc Webster's brother, and Bowen Daniels, Vera Webster's brother were returning to their homes in West Texas in an old Ford automobile. They reached the town of Bells, in Grayson county, Tex., on Monday night, May 13, 1929, intending to go on west through the city of Sherman, but because of bad roads detoured south, intending to go through Whitewright. They left Bells in their automobile about 11 o'clock that night, and some time later on the same night while traveling in the rain and over a muddy road the car stopped. Vera Webster says that the parties thought the car was out of gasoline. It appears, however, that this was a mistake. There was some gasoline in the car. When the car stopped, it was near the corner of the Carter farm. At the time such farm was rented to Mr. Atnip, of Bells, Tex., but a negro by the name of Frog Jackson resided thereon with his wife and cultivated it. Frog Jackson and his wife were present in the residence on the farm at the time these three men were killed, and at the time the events surrounding their deaths happened.

According to the testimony of Vera Webster, when the car stopped at the Carter farm, it was raining and the ground was muddy. Tom Webster and Bowen Daniels took an empty can out of the car and left to get gasoline. As we understand the record, Vera Webster does not testify as to how they intended to do so. When Tom Webster and Bowen Daniels left, Doc Webster and Vera Webster remained alone in the car. They were sitting side by side on the seat. Doc Webster sat under the steering wheel and Vera Webster, being worn out and wet from the rain, reclined with her head on her husband's lap. In this position she went to sleep. Vera Webster was aroused by hearing the voice of her brother, Bowen Daniels, calling "Doc." About that time she saw a blue flame, heard a frying sound, and again heard Daniel's voice calling, "Hurry up." She then saw another blue flame, heard another frying sound, and all was still. After this Doc Webster got out of the car and left. In a few minutes Vera Webster again saw a blue flame and again heard a frying sound, when all was again still. Vera Webster did not attempt to go on the Carter farm. The above circumstances were testified to by Vera Webster, and constituted her version of what happened so far as she knew.

It appears from the record that the ground was muddy and the route taken by Tom Webster and Bowen Daniels could be easily ascertained by following their tracks in the muddy ground. According to these tracks, and other facts, Tom Webster and Bowen Daniels first entered a narrow lane on the Carter place. They crossed this lane in a northerly direction and entered the farm through a wire fence. They then traveled along the side of the lane west, and then north, and passed the house where Frog Jackson resided. They then traveled west again and around into a barn on the Carter farm. They drained the gasoline out of a car belonging to Frog Jackson in said barn into the can they had with them. They then came out of the barn, carrying the gasoline in such can, and for some reason, not explained by the record, traveled across the field northeast to the point where they struck the above mentioned low, sagging, and highly charged power line, and were both electrocuted.

It is undisputed that the dead bodies of all three men, Doc Webster, Tom Webster, and Bowen Daniels, were found the next morning—all close to each other—under the above described low, sagging wire.

At this point there is a very material difference between the parties as to some of the facts surrounding the action of Doc Webster on this fatal night. According to the theory of R. B. Webster et al., and according to the theory of Mrs. N. E. Daniels, and according to the testimony of Vera Webster, Doc Webster went to answer the distress calls described, and was killed while attempting to find and rescue Tom Webster and Bowen Daniels. The testimony of Vera Webster bears out this theory. On the other hand, as shown by the dissenting opinion, the power company offered the testimony of witnesses, who were the first to view the scene the next morning, to the effect that there were three sets of human tracks leading from the automobile of Doc Webster et al. across the above-mentioned lane, through the above-mentioned fence, into the above-mentioned field, around the edge of such field, around to the barn, into the barn, out of the barn, and across the field to the...