Texas Power & Light Co. v. Peterson

• Decision Date: 19 January 1956
• Docket Number: No. 3294,3294
• Citation: 288 S.W.2d 247
• Parties: TEXAS POWER & LIGHT COMPANY, Appellant, v. Cullen P. PETERSON, Appellee.
• Court: Texas Court of Appeals

Page 247

288 S.W.2d 247

TEXAS POWER & LIGHT COMPANY, Appellant, v. Cullen P. PETERSON, Appellee.

No. 3294.

Court of Civil Appeals of Texas, Waco.

Jan. 19, 1956.

Rehearing Denied March 22, 1956.

Bryan, Maxwell, Bryan & Wilson, Waco, Burford, Ryburn, Hincks & Ford, Dallas, for appellant.

Fitzpatrick & Fitzpatrick, Waco, for appellee.

TIREY, Justice.

Appellee brought this action for injuries received as the result of his lifting a metallic pipe into contact with a transmission line of appellant. He grounded his cause on the negligence of appellant in the construction and maintenance of its lines on both statutory and common law grounds. The court overruled defendant's motion for instructed verdict, and the issues, absent the burden of proof clause, and the jury's answers thereto are substantially as follows:

1. At what height did the defendant construct and maintain its power lines over the driveway of the premises of plaintiff? Answer: Lower line 15 feet. (No answer as to the upper line.)

2. Was the construction and maintenance of said power lines at the height found by you less than that provided by the National Electrical Safety Code? Answer: Yes.

3. Was the maintenance of the power lines at such height over the driveway and extending over what is termed the point of contact negligence? Answer: Yes.

4. Was the maintenance of the power lines at the height you have found a proximate cause of the plaintiff's injuries? Answer: Yes.

5. Was the failure of the defendant to have its transmission lines insulated at the time and place negligence? Answer: No.

7. Did the plaintiff suffer and sustain damages as a direct and proximate result of the negligence of defendant? Answer: Yes.

8. What sum of money would compensate the plaintiff for the damages that you believe he has sustained proximately caused by the negligence of defendant? Answer: $11,000.00.

9. Did the plaintiff contact the wires in question with a metal on the occasion in question? Answer: Yes.

10. Was the act on the part of the plaintiff in contacting the wires in question with a metal pipe negligence? Answer: No.

13. Did the plaintiff fail to notify the Texas Power & Light Company on the occasion in question that he intended to do work on the well which would be dangerous because of the presence of the electric wires in the vicinity? Answer: Yes.

14. Was the failure of the plaintiff to notify the defendant that he intended to do work on the well which would be dangerous because of the presence of the electric lines in that vicinity negligence? Answer: No.

16. Did the plaintiff fail to keep a proper lookout for electric wires in the vicinity where he was working immediately preceding the time the pipe contacted the lines in question? Answer: Yes.

17. Was the failure of the plaintiff to keep a proper lookout for the electric wires where he was working negligence? Answer: No.

The court overruled defendant's motion for judgment non obstante veredicto and granted plaintiff's motion for judgment in accordance with the award made by the jury.

The judgment is assailed on nine points. They are substantially:

1. The error of the court in failing to sustain appellant's motion for instructed verdict and its motion for judgment non obstante veredicto, because the undisputed evidence shows that the transmission lines at the point contacted were above the height required by law and appellant had no notice or knowledge of any change of conditions at the location creating a dangerous condition;

2. Because the judgment is based upon an incomplete verdict that does not support the judgment 3. Because Issue No. 3 of the court's main charge is erroneous in that it constitutes a duplicitous issue;

4, 5, 6, 7 and 8. The court erred in entering judgment based upon answer of the jury to Issues 1, 2, 3 and 4: (a) for the reason that the height of the lower wire could not constitute a proximate cause of the injuries sustained by appellee because the undisputed evidence shows that such wire was a neutral wire and carried no electric energy and could not have constituted a proximate cause of said injuries; (b) for the reason that in response to Special Issue No. 1 the jury found only the height of the lower wire over the driveway and the finding of the jury that the maintenance of said wife at such height was negligence and a proximate cause of the injuries sustained by appellees has no support of a fact finding as to such height insofar as such finding relates to the upper wire; (c) for the reason that the maintenance of such wires at such height (meaning 15 feet) over the point of contact was negligence and a proximate cause for the reason that said finding has no support in the evidence in that the undisputed evidence shows that both the lower and upper wires were maintained at a height in excess of 15 feet at the point of contact; (d) for the reason that there is no evidence that the maintenance of the wires at less than statutory height over the driveway was a proximate cause of appellee's injuries; (e) for the reason that there is no evidence that the height of the wire at the point of contact constituted a proximate cause of appellee's injuries;

9. For failing to sustain appellant's motion for instructed verdict because appellee was guilty of contributory negligence as a matter of law.

A statement is necessary.

Testimony was tendered to the effect that in 1951 appellee purchased 3.6 acres of land near Bellmead, Texas, which was in an unincorporated area; at the time of such purchase there were two electric transmission lines extending across his property from the east to the west; appellee made no objection to such lines; there was no change in the condition of the transmission lines at any time relevant to the time under consideration; a water well was located in appellee's front yard and it had been there for a number of years and it had not been used for at least 3 1/2 years prior to the accident; the well was covered over by a cement slab that was about flush with the ground and grass grew over the top of this cement slab and the surface was such that appellee mowed over the top of his well, and prior to the time complained of the well for all purposes was abandoned; on Thursday, July 22nd, appellee decided to re-activate such well and use the water to irrigate his land; in order to do so he purchased a pump from Sears-Roebuck and it was delivered to his house on the same day; on Saturday morning, July 24, 1955 appellee was attempting to adjust the pump in the well and, with the assistance of a neighbor, he pulled the metal pipe out of the well because it would not work properly, and while they were so engaged in lifting the pipe out of the well it contacted appellee's power line which was located approximately above the well; in this manner appellee received the electrical shock for which he was awarded damages; appellant had no notice that the abandoned well had been activated or was about to be activated or that a dangerous condition had been created by appellee as a result of his action in installing and adjusting the pump. Evidence was tendered to the effect that the power lines above the well and at the point of contact were above the height required by law.

In appellant's brief we find this statement:

'Article 1436a, Texas Revised Civil Statutes, regulates the clearance of electric transmission and distribution lines and provides that all lines for the transmission and distribution of electric energy shall be constructed, operated and maintained as to clearances in accordance with the National Electrical Safety Code as published in March, 1948, by the National Bureau of Standards in Book 30. Said code provides that at the point where appellee contacted appellant's lines, the height required of the lowest wire, which was the neutral wire and carried no electric energy, was 14 feet 10 inches. The height required of the upper line which was a K V line and carried 7200 volts of electricity was, according to said code, 16 feet 8 inches. * * * The evidence as to the height of the transmission lines most favorable to appellee was that presented by Frank Fitzpatrick, Sr., one of the attorneys of record for the appellee. Mr. Fitzpatrick testified that he measured the height of said lines at approximately the point of contact and the height of the lower line, the neutral was 15 feet 4 inches. He further testified that the height of the upper line, the K V, was 18 feet 6 inches. * * * Mr. C. H. Uran, licensed state land surveyor, testified the height of the lower line at the exact point of contact was 16 feet 2 inches and the height of the upper line, the K V line, was 19 feet 5 inches. * * * Taking the evidence most favorable to the appellee, the evidence shows that at the point of contact, the lower neutral wire was 1 foot 6 inches above the height required by law and the clearance of the upper K V line was 1 foot 10 inches above that required by law.'

The foregoing statement taken from appellant's brief is not challenged. See Rule 419, T.R.C.P.

Appellee testified to the effect that the tree near the well was an elm; that the well was curbed with concrete flush with the ground and was covered over with concrete and that grass grew partly over the concrete and that in mowing his lawn he used a power mower and ran it over the concrete slab over the well; that he installed the pump on Thursday and then waited until Saturday to adjust it, and on Saturday morning he pulled the pipe out of the well to see what caused the pump not to work; that he was unable to pull it out by himself and that he got one of the neighbor boys to help him and that 'we started pulling the pipe out of the well and just as we cleared the hole coming out of the well, that is the last I remembered. I work up on the ground'; that the pipe was 21 feet 3 inches and that the measurement included the valve attached to it.

'Q. Now, when you pulled it up, just tell the jury what you did with...