Texas Power & Light Co. v. Jacobs

• Decision Date: 19 March 1959
• Docket Number: No. 3607,3607
• Parties: TEXAS POWER & LIGHT COMPANY, Appellant, v. Bobby L. JACOBS, Appellee.
• Court: Texas Court of Appeals

Page 483

323 S.W.2d 483

TEXAS POWER & LIGHT COMPANY, Appellant, v. Bobby L. JACOBS, Appellee.

No. 3607.

Court of Civil Appeals of Texas, Waco.

March 19, 1959.

Rehearing Denied April 9, 1959.

Roe, Ralston & McWilliams, Corsicana, Burford, Ryburn & Ford, Dallas, for appellant.

Dawson & Dawson, Corsicana, Caldwell, Baker, Jordan & Hill, Dallas, for appellee.

TIREY, Justice.

Appellee brought this action for injuries received as a result of his attempt to lift with a board one of the defendant's electric wires which was constructed and maintained across a public road in order to permit the passage of a house being moved on such road and under the wire. He grounded his cause of action on the negligence of the light company in the construction and maintenance of its lines, on both statutory and common-law grounds. At the conclusion of the evidence the Court overruled Defendant's Motion for Instructed Verdict, and the Jury in its verdict found substantially as follows:

(1, 2 and 3) That the lower electric wire was not effectively insulated, and that it was negligence, and that it was a proximate cause of the injuries to appellee;

(3-A, 3-B and 3-C) That the upper electric wire was not effectively insulated and that it was negligence and a proximate cause of the injuries to appellee;

(4, 5 and 6) That the maintenance of the lower electric line at a height of less than 22 feet was a proximate cause of the injuries, and that such maintenance was closer to the surface of the roadway than an ordinary prudent person would have maintained it under the same or similar circumstances, and that such maintenance was a proximate cause of the accident;

(7 and 8) That defendant maintained its upper electric wire closer to the surface of the roadway than an ordinary prudent person would have done under the same or similar circumstances, and that such maintenance was the proximate cause of the accident;

(9) That the lower electric wire at the time was used in the transmission of electricity;

(10) That the sum of $26,600 would reasonably compensate appellee;

(11 and 12) That the sum of $3,900 would reasonably compensate appellee for medical expenses, and that he sum of $2,000 if paid in cash would reasonably compensate appellee for his medical expenses that he will reasonably and probably incur in the future;

(13 and 15) That appellee did not fail to keep a proper lookout for electric wires, and that the act of appellee in attempting to move the lower electric wire by the use of a stick was not negligence;

(17) That plaintiff's failure to notify the light company that he intended to move a house under its lines at the place in question was not negligence;

(19) That the act of appellee of being on the house at the time when such house was in such close proximity to the lower electric line was not negligence;

(20-A) That the act of appellee being on the house when such house was in close proximity to the lower electric line was not negligence;

(21) That appellee did not place himself in a position of danger;

(24) That the accident was not unavoidable;

(25) That the act of the driver of the truck which was towing the house underneath the electric lines was not the sole proximate cause of the accident.

The Court overruled the light company's Motion for Judgment Non Obstante Veredicto and granted plaintiff's Motion for Judgment, and in the Judgment we find substantially this recital:

It appearing to the Court that the Jury has awarded the sum of $3,900 for reasonable and necessary medical expenses incurred in the past, which award is in the sum of $85.55 in excess of that amount for such expenses supported by the evidence, and that such award should, therefore, be reduced to the extent of $85.55, and decreed that plaintiff have judgment against the light company for the sum of $32,414.45, with interest at the rate of 6% per annum from date of Judgment, together with costs. The light company seasonably filed its amended motion for new trial and it being overruled perfected its appeal to this Court.

The Judgment is assailed on seven Ponts, they are substantially to the effect that the Court erred:

1. In submitting Issue No. 4, and entering Judgment based on the jury's answers thereto because there was no finding by the jury that the maintenance of the lower line at a height of less than 22 feet was negligence, and the uncontroverted evidence showed that such line was maintained at a height in excess of that required by statute.

2. In overruling the light company's Motion for Instructed Verdict and Motion for Judgment Non Obstante Veredicto and in entering judgment for appellee, because the undisputed evidence shows that appellant's distribution lines at the time and place in question were above the height required by law, and appellant had no notice or knowledge of any change of conditions at said location creating a dangerous situation.

3. In submitting Issues Numbers 1, 2, 3, 4, 5 and 6, and entering judgment based on the jury's answers thereto, because the condition of insulation or height of said lower line could not constitute a proximate cause of the injuries sustained by appellee in that the disputed evidence shows that such line was a neutral line and carried no electrical energy.

4. In submitting Issues Numbers 5 and 6 and entering judgment based on the jury's answers thereto, because the undisputed evidence showed that appellant maintained its lower line in excess of 18 feet as required by statute, and common-law negligence should not have been submitted.

5. In submitting Special Issues Numbers 7 and 8 and entering Judgment based on the jury's answers thereto because the undisputed evidence showed that appellant maintained its upper line in excess of statutory requirements, and common-law negligence should not have been submitted.

6. In entering Judgment based upon the jury's answers to Special Issues Numbers 1, 2, 3, 3-A, 3-B, and 3-C, which answers were to the effect that the distribution lines of appellant were not effectively insulated because such findings are against the overwhelming weight and degree of credible testimony.

7. This cause should be reversed and rendered because the answer of the Jury to Issue Number 11, that appellee had incurred necessary and reasonable medical expense in the past to the amount of $3,900 in contrary to the undisputed evidence in this case in that $3,540 of such amount was furnished by the Veterans' Administration, for which appellee did not become liable and which he did not pay.

A statement is necessary.

Testimony was tendered to the effect that the electric lines of appellant involved in this accident crossed a county road in an easterly and westerly direction; that the lines branched off of the Navarro-Cheneyboro distribution line and went in an easterly direction to a house located in the field, which house was being serviced by appellant; that the lower wire was a neutral or ground wire and carried no electrical energy, while the upper wire was an energized wire and carried 7200 volts of electricity; that the neutral wire has a ground at each transformer and on most of the poles, the ground wire running up the pole and tying into the neutral wire which, in turn, connects it with the ground; that there is also a ground wire connected at the substation to rods driven in the ground; that the height of the lower or neutral line was a little over 19 feet above the surface of the roadway, and that the height of the upper or energized line was approximately 23 feet above ground. Appellant's witness, Carroll Fletcher, said that the top line measured 23 feet and the bottom line measured 19 feet and 8 inches above the surface of the roadway. It appears to be without dispute that appellant had no knowledge or notice that appellee or those by whom he was employed was going to move a house under appellant's electric wires at this place, and there is no evidence in this record that appellant knew or had reason to know that the conditions as they normally existed were to be changed or had been changed; that the electric circuit consisted of two wires, one above the other, separated a distance of about 40 inches; that the upper conductor served the function of sending electricity to the consumer, and that the lower conductor returned it back to the substation; that both wires are and were necessary in the transmission of electricity, and that both wires are considered dangerous, and that each wire was treated as a dangerous wire, and that there was some slack in each wire; that the lower wire measured about 18 feet 8 inches above the surface of the roadway, and the upper wire about 22 feet 8 inches above the surface of the roadway; that this road was a rural road in an agricultural and oil field area over which trucks, machinery, etc., requiring high clearances; that plaintiff was employed by a house mover and at this particular time was riding on the house being moved, and that when it reached the low hanging wires the house lacked only a foot or foot and a half of clearing the lower wire; that the operator of the truck pulling the house brought his truck to a stop and thereupon Bobby Jacobs made some observation as to whether the wire was insulated; that he was wearing rubber cleated shoes, and that he put on some rubber gloves; that he got down as far from the conductor as he could, and while using a wooden board attempted to lift the wire over the gable of the house, and in so doing he received the electrical shock and deep penetrating burns to his head, neck and body and was hospitalized for nearly a year and maimed for life. Bobby testified substantially to the effect that he was 26 years old and married, and has two children; that he graduated at public schools, and that in the fall of 1951 and in the spring of 1952 he attended Navarro Junior College, and that he was specializing in physical education; that he desired to perfect himself in sports, and in...