Texas Power & Light Co. v. Bristow

• Decision Date: 04 June 1919
• Docket Number: (No. 6095.)
• Citation: 213 S.W. 702
• Parties: TEXAS POWER & LIGHT CO. v. BRISTOW et al.
• Court: Texas Court of Appeals

213 S.W. 702

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

(No. 6095.)

Court of Civil Appeals of Texas.

June 4, 1919.

Rehearing Denied July 5, 1919.

Appeal from District Court, Bell County; F. M. Spann, Judge.

Suit by Mrs. G. C. Bristow and others against the Texas Power & Light Company. Judgment for plaintiffs, and defendant appeals. Affirmed.

W. W. Hair, of Temple, and Templeton, Beall, Williams & Callaway, of Dallas, for appellant.

A. L. Curtis, of Belton, and Winbourn Pearce, of Temple, for appellees.

Findings of Fact.

JENKINS, J.

This suit was brought by appellee, the wife of G. C. Bristow, for the benefit of herself and the three children of herself and deceased husband.

The appellant was engaged in the business of manufacturing and furnishing electricity to its customers in the city of Temple, and among others to the deceased and his wife. The deceased was killed by being shocked by electricity in his bathroom March 6, 1918. The electricity was conducted into the dwelling of deceased over wires owned by and under the control of appellant. Such ownership and control extended only to and not in the residence of deceased. The inside wiring was owned by the deceased, and appellant had no control over the same.

Appellee alleged that the deceased, while connecting an electric iron to a socket in the bathroom of his residence, received a severe shock and burn, and injuries which directly and proximately caused his death, and that the same was occasioned by the negligence of the appellant in permitting a "dangerous, excessive, and deadly current of electricity to traverse the wire running to and into said house of deceased"; that appellant knew, or in the exercise of ordinary care by proper inspection could and would have known, of the danger to deceased, but, notwithstanding its knowledge and duty in this behalf, carelessly and negligently failed and refused to alter, remedy, or repair the same. The deceased was 31 years of age, in good health, and an experienced railroad conductor, capable of earning, and was earning at the time of his death, something over $2,000 per annum. He was a man of exemplary habits, provided for his wife and children, and was affectionate to his children, and gave them the advantage of his advice and counsel.

The case was submitted to a jury on special issues as follows:

"Special issue No. 1: Do you find from a preponderance of the evidence that the deceased, G. C. Bristow, while attempting to use the electricity furnished him by the defendant, and while attempting to attach an electric iron to the current of electricity so furnished, or while handling said iron, received such shock of or from electricity and such injury therefrom as caused his death? Answer yes or no. Answer: Yes.

"If you have answered the foregoing special issue No. 1 in the negative, that is, `No,' then you need not answer any further questions propounded to you; but if you have answered the foregoing special issue in the affirmative, that is, `Yes,' then you will answer special issue No. 2.

"Special issue No. 2: Do you find from a preponderance of the evidence that at the time G. C. Bristow met his death that the defendant negligently permitted a dangerous, excessive, and deadly current of electricity to traverse the wire running to and into the house of the deceased, G. C. Bristow? Answer yes or no. Answer: Yes.

"If you have answered special issue No. 2 in the affirmative, that is, `Yes,' then you will answer the following special issue No. 3; otherwise you need not answer special issue No. 3.

"Special issue No. 3: Do you find from a preponderance of the evidence that such negligence of the defendant, if any, was the proximate cause of the death of G. C. Bristow, as the term `proximate cause' has hereinbefore been defined? Answer yes or no. Answer: Yes.

"Special issue No. 4: Do you find from a preponderance of all the evidence that G. C. Bristow was guilty of negligence, as the term has hereinbefore been defined to you, in taking hold of and in handling the electric iron or fixture in his home at the time and in the manner in which he did? Answer yes or no. Answer: No.

"If you have answered the foregoing special issue No. 4 in the affirmative, that is, `Yes,' then you will answer the following special issue No. 5.

"Special issue No. 5: Do you find from a preponderance of all the evidence that the negligence of the deceased, G. C. Bristow, if any, in taking hold of and in handling the electric iron and apparatus at the time and in the manner he did caused or contributed to his injury and death? Answer yes or no. Answer: No.

"Special issue No. 6; What amount, if any, do you find from a preponderance of the evidence that the plaintiffs, Mrs. G. C. Bristow and the three minor children have been damaged by the death of the said G. C. Bristow? You will insert in the space below the amount which you find and determine from the evidence. You will apportion the amount so found, if any, between the plaintiff Mrs. G. C. Bristow and the three minor children in the amount in which you find each is entitled thereto, from the evidence in this case, writing the amount which you find each is entitled to in the space below. Answer: $28,000.00. Apportioned as follows: To Mrs. G. C. Bristow, $10,000.00; to Katherine Bristow, $6,000.00; to Richard Bristow, $6,000.00; to Eugenia Bristow, $6,000.00."

The evidence is sufficient to sustain the findings of the jury.

Opinion.

The appellant has set out in its brief 40 assignments of error. Many of them are in substance repetitions. They may be properly grouped under a few heads. We shall so treat them, not in the order in which they are presented in appellant's brief, but in their chronological order.

Appellee, after alleging that appellant was in the business of manufacturing and supplying electricity to its customers, and that deceased was such a customer, and that his residence was being supplied with electricity over the wires of appellant, and that in attempting to connect an electric iron with a socket in his house alleged that the deceased, without fault or negligence on his part, received an electric shock which caused his death, and that such shock "was proximately and directly caused and occasioned by the negligence and carelessness of the defendant in permitting a dangerous, excessive, and deadly current of electricity to traverse the wire running to and into the said house of deceased."

Appellant excepted to this allegation as not being sufficiently specific.

It is never necessary for a plaintiff to allege anything which he is not required to prove. If the doctrine of res ipsa loquitur applies to the instant case, it was not necessary for the plaintiff, in order to make a prima facie case, to prove anything more than that the deceased received a deadly shock of electricity, which came from wires under the exclusive control of the defendant. If such current was excessive and dangerous, the defendant would be liable in damages therefor, upon the doctrine of res ipsa loquitur, unless it could show that such condition was not the result of its negligence.

We hold that the doctrine of res ipsa loquitur applies in the instant case, and hence that the allegations as to the manner in which the injury occurred were sufficiently specific. 15 Cyc. pp. 477, 478. McCray v. G. H. & S. A. Ry. Co., 89 Tex. 168-171, 34 S. W. 95; San Juan Light Co. v. Requena, 224 U. S. 89, 32 Sup. Ct. 399, 56 L. Ed. 680; Curtis on Electricity, § 597; Memphis C. G. & E. Co. v. Letson, 135 Fed. 969, 68 C. C. A. 453; 9th American Electrical Cases, 367; Alabama G. & A. Co. v. Appleton, 171 Ala. 324, 54 South. 638, Ann. Cas. 1913A, 1181; Webster, Adm'x, v. Richmond Light Co., 158 App. Div. 210, 143 N. Y. Supp. 57; Abrams v. City of Seattle, 80 Wash. 356, 111 Pac. 168, 140 Am. St. Rep. 916; Myers v. City of Independence (Mo.) 189 S. W. 816.

The doctrine of res ipsa loquitur is aptly stated in Light Co. v. Requena, supra, as follows:

"When a thing which causes injury, without fault of the injured person, is shown to be under the exclusive control of the defendant, and the injury is such as in the ordinary course of things does not occur if the one having such control uses proper care, it affords reasonable evidence, in the absence of an explanation, that the injury arose from the defendant's want of care."

Substantially the same statement is made in McCray v. Railway Co., supra, as follows:

"There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servant, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care."

In the Appleton Case, supra, the Supreme Court of Alabama said:

"The company having installed the wires and appliances to convey into plaintiff's building electricity for domestic and lighting purposes and uses, and injury having attended its presence and use, as the charge hypotheses, the doctrine of res ipsa loquitur applies to cast on the defendant the burden of negativing its negligence in the premises."

All that an average person could know, and therefore all that he would be required to allege was that the injury was the result of an excessive and dangerous current, and he would know this only because experience has taught that a current such as commonly used in lighting houses is not dangerous, and that in such case there is no danger in attaching an electric iron to a socket. This is an everyday occurrence. When injury occurs in such use, of course, there is a defect somewhere. Where and what it is is known only to experts in the use and management of electricity. "Electricity is, perhaps, the most insidious, as well as the most destructive, of the natural forces of which we are cognizant. What it is is a...