Texas Power & Light Co. v. Culwell

• Decision Date: 04 February 1931
• Docket Number: No. 1199-5549.,1199-5549.
• Citation: 34 S.W.2d 820
• Parties: TEXAS POWER & LIGHT CO. v. CULWELL et al.
• Court: Texas Supreme Court

34 S.W.2d 820

TEXAS POWER & LIGHT CO. v. CULWELL et al.

No. 1199-5549.

Commission of Appeals of Texas, Section B.

February 4, 1931.

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

Suit by Iona Culwell and others against the Texas Power & Light Company, in which plaintiff named, as next friend for her infant daughter, intervened. A judgment for plaintiff named and intervener was affirmed by the Court of Civil Appeals [19 S.W.(2d) 816], and defendant brings error.

Judgments of the District Court and Court of Civil Appeals reversed, and cause remanded.

Beall, Worsham, Rollins, Burford & Ryburn and A. S. Rollins, all of Dallas, and J. L. Gammon, of Waxahachie, for plaintiff in error.

H. S. Beard and Miller & Price, all of Waco, for defendants in error.

LEDDY, J.

Defendants in error, the surviving wife and daughter of Clyde Key Culwell, were awarded a judgment against plaintiff in error for damages sustained by them on account of his death, which is alleged to have been the proximate result of negligence on the part of plaintiff in error.

At the time of the injury resulting in his death Culwell operated a pressing parlor in the town of Midlothian. Plaintiff in error's electric service wire connected with the rear end of the business house of the Dees Hardware Company, which was situated two or three doors from the building occupied by Culwell. Subsequent to the erection of the electric service wire to the hardware building, a Mrs. Bentley erected a radio wire, which was strung above the electric wire, being fastened at one end to a water tower and at the other to a fire wall of her building, which adjoined the business house of Culwell.

On the afternoon of July 27, 1927, Culwell was seen to go out the back door of his store, and in a few minutes his groans attracted attention. He was discovered dead or in a dying condition, lying several feet from the rear of his business house, with the radio wire grasped in his right hand and lying across his body resting on his breast, and there were burns on his right hand, breast, and wrist. An investigation disclosed that a portion of the radio wire was resting on plaintiff in error's electric wire at a place where the insulation had been worn off.

The jury found, in answer to special issues, that plaintiff in error negligently permitted the insulation on its wire leading into the hardware store to wear off, leaving the naked wire exposed, and that such negligence was the proximate cause of Culwell's death.

Plaintiff in error, conceiving that its negligence was not the proximate cause of Culwell's death, requested a peremptory instruction, which was refused by the court. It insists the refusal of such charge was erroneous because the injury complained of could not reasonably have been contemplated as involving the result under the attendant circumstances.

The evidence shows plaintiff in error knew the radio wire was strung above its electric wire; it being disclosed that prior to the accident resulting in Culwell's death this radio wire had broken and fallen across the electric wire, the same being removed by one of plaintiff in error's employees.

We conclude the trial court properly refused the requested peremptory instruction. The question as to whether plaintiff in error's negligence in permitting the insulation to become worn off its electric wire so as to leave the wire exposed was the proximate cause of Culwell's death was one for the determination of the jury under all the facts and circumstances shown in evidence. It cannot be properly held as a matter of law that plaintiff in error could not reasonably anticipate that the radio wire, which it knew to be strung above its electric wire, might, from one cause or another, break and fall across its wire and become heavily charged with a current of electricity, if it happened to rest on that portion of its wire not covered with insulation. We think plaintiff in error should also be reasonably required to anticipate that, if such wire should break and fall and become charged with electricity, it would be in the back yard used in connection with the business houses, which it must have known the occupants used in connection with their business, and that therefore some one rightfully using such premises might likely come in contact with the same and receive a serious injury.

Plaintiff in error also asserts that the cause of the break of the radio wire was its being struck by lightning, and that such accident was so unusual and extraordinary it should not be required to anticipate its occurrence. There is no positive evidence in the record that the radio wire was caused to break on account of being struck by lightning. It does appear that an electric storm occurred in Midlothian on the afternoon of July 27, and an unusual clap of thunder was heard just a short time before Culwell went out the rear of the building where he met his death. One of the witnesses gave it as his opinion that it was the lightning striking the radio wire which caused it to break. This, however, seems to have been a mere surmise upon his part, as he did not reach such conclusion from any examination of the surroundings, but only because he heard the heavy clap of thunder, and later found the wire broken. Even if it be conceded the radio wire was cause to break by...