Texas Telegraph & Telephone Co. v. Scott

• Decision Date: 23 March 1910
• Citation: 127 S.W. 587
• Parties: TEXAS TELEGRAPH & TELEPHONE CO. v. SCOTT.<SMALL><SUP>†</SUP></SMALL>
• Court: Texas Court of Appeals

127 S.W. 587

TEXAS TELEGRAPH & TELEPHONE CO. v. SCOTT.^†

Court of Civil Appeals of Texas.

March 23, 1910.

Rehearing Denied April 13, 1910.

Appeal from District Court, Llano County; Clarence Martin, Judge.

Action by J. R. Scott against the Texas Telegraph & Telephone Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Flack & Dalrymple and Geo. E. Shelley, for appellant. F. J. Johnson and O. R. Seiter, for appellee.

RICE, J.

Mrs. S. A. Scott, wife of appellee, while sitting in her home on the 14th of July, 1908, in the town of Llano, was struck and seriously injured by lightning alleged to have been conducted into her house by means of appellant's wires, and this action is brought by appellee, her husband, to recover damages therefor. The ground of negligence upon which appellee relied for recovery was, in effect, that appellant was guilty of negligence in permitting its telephone wires to remain in appellee's residence after removing therefrom its telephone instrument, and in not properly equipping said wires with appliances to prevent lightning being conducted over its wires into his residence, by reason whereof lightning was conducted over said wires into appellee's residence and his wife injured. Appellant answered by general demurrer and general denial, and specially pleaded that plaintiff's wife's injuries were due to an act of God, against which human foresight could not provide; that its wires connected with said residence had the proper and necessary ground connection, which is the best safeguard against such danger known to science; and further specially denied that said lightning was conducted into plaintiff's residence through or over its wires; and alleged that the same was conducted into said residence over the wires of the Martin Telephone Company and the Llano Electric Light Company, which also ran into said house. There was a jury trial, resulting in a verdict and judgment for appellee, from which this appeal is prosecuted.

Prior to the removal of plaintiff to the house in question, which was about a month before the accident, it appears that both appellant and the Martin Telephone Company had had phones in the building, both of which, however, had been removed therefrom; but, while the instruments were taken out of the house, the wires of both companies were allowed to remain. There is some conflict in the evidence as to which wire conducted the lightning into the building; but we think the great preponderance thereof is in favor of the contention of appellee that it came in over the wires of appellant. The evidence shows that appellant failed to use what is known as a "lightning arrester," which is a device commonly used for conducting the lightning from the house; and, while the evidence shows that it grounded its wires —that is, twisted the line wire and the ground wire together, and disconnected the same from its main line—some distance away from the house, yet this is controverted by the testimony of appellee, which tended to show that these wires were not grounded and were not disconnected from its main line. While there is evidence tending to show that twisting the line wire and the ground wire together is one of the safeguards to prevent lightning from entering the house, yet there is evidence to the effect that the use of a lightning arrester is a better one. And the evidence of appellant itself is to the effect that the best and surest prevention of danger in this respect is to remove the wire entirely from the house, when the instrument is taken out, which was not done by appellant in this case. So we conclude that the evidence shows that the injury complained of was caused by the negligent failure of appellant to remove its wires from the house, or, having left them there, to properly safeguard the same by approved appliances for preventing injury from lightning conducted thereover.

The failure to give the following charge requested by appellant is assigned as error: "You are further charged in this cause that, although you may believe from the evidence that the stroke of lightning which is alleged to have injured plaintiff's wife was conducted in plaintiff's residence over and by virtue of defendant's wires, still, if you believe that such wires were grounded by wrapping the line (wire) with the ground wire, and that was as good protection as known to defendant's agents and employés, you cannot return a verdict in favor of plaintiff." We are not prepared to agree with appellant's contention in this respect, because we believe the duty devolving upon it was not only to use as good precaution as was known to it or its agents, but the further duty was imposed of at least exercising such reasonable precaution as a man of ordinary care and prudence would do to select and use the best methods known to science for the prevention of such injuries; and, since it was operating a dangerous agency, it could not escape liability, we think, alone on the plea that the instrumentalities used for the protection of its patrons were as good as known to it, because, if there were better methods known to science by which it could protect them from such danger, it should be held at least to the exercise of ordinary care to select and use them. Southern T. & T. Co. v. Evans, 116 S. W. 418; Southern Bell T. Co. v. McTyer, 137 Ala. 601, 34 South. 1020, 97 Am. St. Rep. 62; Griffith v. New England T. & T. Co., 72 Vt. 441, 48 Atl. 643, 52 L. R. A. 919; Evans v. Ky. T. & T. Co., 124 Ky. 620, 99 S. W. 936, 30 Ky. Law Rep. 833; 1 Joyce on Electric Law, 445F. In Southern Bell T. Co. v. McTyer, supra, it is said: "If, by the exercise of such reasonable precaution as a man of ordinary care and prudence would exercise in respect of such a dangerous agent, injuries to persons and property from the conditions along the wires and into houses of currents of atmospheric electricity may be avoided, it is the duty of companies engaged in this business to employ devices and appliances to that end." Believing that there was no error in the refusal of said special charge, the third assignment is overruled.

Nor do we believe there is any merit in appellant's second proposition under this assignment, to the effect that the above charge directed the court's...