Texas Public Service Co. v. Armstrong

• Decision Date: 11 March 1931
• Docket Number: No. 7565.,7565.
• Citation: 37 S.W.2d 294
• Parties: TEXAS PUBLIC SERVICE CO. v. ARMSTRONG et al.
• Court: Texas Court of Appeals

37 S.W.2d 294

TEXAS PUBLIC SERVICE CO. v. ARMSTRONG et al.

No. 7565.

Court of Civil Appeals of Texas. Austin.

March 11, 1931.

Rehearing Denied April 1, 1931.

Appeal from District Court, Bastrop County; J. B. Price, Judge.

Action by Ella Armstrong and another against the Texas Public Service Company. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Maynard & Maynard, of Bastrop, and Terrell, Davis, McMillan & Hall, of San Antonio, for appellant.

S. L. Staples, of Austin, Merton L. Harris, of Smithville, and James A. King, of Austin, for appellees.

BAUGH, J.

Suit against appellant by the mother and the son of John Deary for negligently causing the latter's death at Smithville on April 28, 1929. From a judgment upon special issue findings of a jury in favor of plaintiffs, the defendant appeals. The following facts appear:

Appellant owned and operated the electric light plant in the town of Smithville. From a pole in the alley back of Stephen Bell's place light wires were strung to a negro church 119 feet away. At appellant's pole in the alley these wires were 15½ feet from the ground. They entered the church 13 feet from the ground. Between these points the wires extended through a treetop and across the roof of Stephen Bell's garage, the top of which was 12 feet from the ground. The roof of the garage was covered with corrugated galvanized iron, which on the inside of his yard (the garage abutted upon the alley on the outside) extended down over an adjoining side room or washroom to within 5 feet of the ground. The light wires had sagged and rested upon the galvanized roof, and had, according to some testimony, so rested for as much as a year. The insulation of the wires on the roof and where they passed through the tree had worn off. On the afternoon of April 28th a rain had fallen. About 8 o'clock, John Deary, who lived across the alley from Bell, discovered that the roof of Bell's garage was on fire. He went to Bell's home and notified him. Bell requested Deary to help him extinguish the fire, drew a bucket of water, which Deary took to the roof of the side room where same extended down to within 5 feet of the ground, and attempted to climb upon it to extinguish the fire. The roof was so heavily charged with electricity that when he placed his hands upon it he was immediately killed.

The foregoing is amply sufficient to sustain the finding of negligence against the appellant. Appellant here insists, however, that its negligence was not the proximate cause of the death of John Deary, but that remote and independent intervening causes, not foreseeable by it, brought Deary to his death. These causes so urged were, to copy from its brief: "(a) His coming on the property on which he had no personal business, in which he had no interest; (b) undertaking to put out the fire thereon, for which work he was under no obligation; (c) attempting to climb on the roof of a building in a place and in a manner at which no provision therefor had been made, and (d) the presence of the wet ground, wet shed, etc., resulting from the rain which occurred during that day, without which the death would, according to the undisputed testimony of Blum, not have resulted."

Appellant relies upon, and insists that same are controlling here, particularly the cases of Seale v. Ry. Co., 65 Tex. 274, 57 Am. Rep. 602, and Texas & P. Ry. Co. v. Bigham, 90 Tex. 223, 38 S. W. 162, followed and cited in numerous other cases, especially Trinity & B. V. Ry. Co. v. Blackshear, 106 Tex. 515, 172 S. W. 544, L. R. A. 1915D, 278; Gulf, C. & S. F. Ry. Co. v. Bennett, 110 Tex. 267, 219 S. W. 197; City of Dallas v. Maxwell (Tex. Com. App.) 248 S. W. 667, 27 A. L. R. 927; Magnolia Pet. Co. v. Cocke (Tex. Civ. App.) 3 S.W.(2d) 139; and City of Vernon v. Lisman (Tex. Com. App.) 17 S.W.(2d) 769. The foregoing cases constitute no departure from the well-established general rules with reference to negligence as a proximate cause of injury. The ever present difficulty is in the applicability of these rules to the varied facts arising, or in applying given facts to the rules announced. The general rule as to proximate cause is that, in order to hold one responsible for injuries resulting from his negligence, the injuries must be such that they ought reasonably to have been foreseen in the light of the surrounding circumstances; that is, that a reasonably prudent man in the exercise of ordinary care, and in the light of all the facts, would have anticipated the same or some similar result. It was not essential that appellant should have foreseen the precise injury to any particular individual; but merely that some like injury might and probably would result to some one lawfully on the premises.

Nor can the fact that a rain had fallen that afternoon, causing the shed and ground to become wet, thus increasing the quantity and danger of the escaping electrical currents, discharged through appellant's negligence from its uninsulated wires resting upon a sheet iron roof, excuse the appellant, or be classed as any independent or intervening cause of Deary's death. The immediate cause of his death was the escaping current of electricity. Whether that current had through constant contact of the wires with the roof so stored up electricity therein as to inflict the injury, or whether the sheet iron merely acted as a conductor of the current directly from the wires to the deceased, is immaterial. The standard of care required is not that of the uninformed public as to the dangers of electricity; but that of those who are familiar with and undertake to distribute this dangerous and mysterious force. The prudence required of those distributing dangerous articles to the public must be proportionate to and commensurate with the dangers involved. San Antonio Gas & Elec. Co. v. Ocon, 105 Tex....