Tri-County Electric Cooperative v. Clair

• Decision Date: 21 January 1949
• Docket Number: No. 14998.,14998.
• Citation: 217 S.W.2d 681
• Parties: TRI-COUNTY ELECTRIC COOPERATIVE, Inc. v. CLAIR et al.
• Court: Texas Court of Appeals

Page 681

217 S.W.2d 681

TRI-COUNTY ELECTRIC COOPERATIVE, Inc. v. CLAIR et al.

No. 14998.

Court of Civil Appeals of Texas. Fort Worth.

January 21, 1949.

Rehearing Denied February 18, 1949.

Appeal from District Court, Tarrant County; Thos. J. Renfro, Judge.

Action by William R. Clair and another against Tri-County Electric Cooperative, Inc., for injuries suffered as result of electric shock. From a judgment on a verdict for plaintiff, defendant appeals.

Affirmed on condition of remittitur.

Fulgham & Borden, both of Weatherford, and Cantey, Hanger, McKnight & Johnson, Charles Stephens and J. A. Gooch, all of Fort Worth, for appellant.

Martin, Moore & Brewster and Arthur Lee Moore, all of Fort Worth, for appellees.

Holloway, Crowley & Hudson and Luther Hudson, all of Fort Worth, for intervenor, Aetna Casualty & Surety Co.

McDONALD, Chief Justice.

Appellant is incorporated and operates under the provisions of Article 1528b, Vernon's Tex.Civ.St., known as the "Electrict Cooperative Corporation Act", which provides for incorporation of cooperative, non-profit membership corporations for the purpose of engaging in rural electrification in the manner set out in said statute. At the time of the accident here involved, appellant maintained an electric transmission line across the farm of I. H. Scoggins, in Parker County. Said line consisted of poles and two wires strung thereon, one several feet higher than the other. At one point on the farm the line crossed a private roadway running from one part to another of the Scoggins farm. At this point the lower wire was thirteen feet and three inches above the ground, and the upper wire was sixteen feet above the ground. The upper wire carried 6900 volts. The lower wire was grounded and presumably harmless.

At the time in question, a business firm known as the Morrison Tree Service, by agreement with the owner of the farm, was engaged in removing live trees from the Scoggins farm for the purpose of transplanting them elsewhere. Appellee Clair was an employee of Morrison Tree Service. In the course of his employment, Clair undertook while standing on a truck belonging to his employer to raise the wires so that some trees loaded on the truck would pass under them. For such purpose he was using a wooden stick about five or six feet long, which had a fork at the end of it. In some manner which neither appellee nor his witnesses could explain, the wires slipped off the stick, and the live wire came into contact with appellee's body, causing him severe injuries.

The jury found that the maintenance of the wires at the heights above mentioned was negligence and a proximate cause of appellee's injuries, and found in appellee's favor on the issues of contributory negligence.

Appellant's contentions are presented under twenty-two points of error.

Appellant contends that the court should have instructed a verdict in its favor, or else should have rendered judgment in its favor notwithstanding the verdict, both on the ground that the evidence failed to show any negligence on appellant's part which was a proximate cause of the accident and appellee's resulting injuries, and on the ground that the evidence showed contributory negligence on appellee's part as a matter of law.

Before discussing these contentions, we shall discuss the applicability or not to this case of Article 1436, Revised Civil Statutes, which provides that certain electric lines shall be maintained at a height above the ground of at least twenty-two feet or be placed in underground pipes Appellant argues that said statute does not apply to the lines of corporations organized under Art. 1528b, cited supra, because of Section 36 of the last cited statute, which reads as follows:

"This Act is complete in itself and shall be controlling. The provisions of any other law of this State, except as provided in this Act, shall not apply to a corporation organized, or in process of organization, under this Act."

It is the rule that "where a corporation is organized under a special law as distinguished from corporations organized under general law, the rules governing corporations organized under the general law have no application where the special statutes provide the methods for the regulation and control of said corporations." Lone Star Building & Loan Ass'n v. State, Tex. Civ.App., 153 S.W.2d 223, 224, writ dis. But such rule is not applicable to the situation before us because Article 1528b does not purport to regulate the height of transmission lines. In fact, it does not contain safety measures of any sort. It is not reasonable to suppose that the Legislature by the enactment of the above quoted Section 36 intended to exempt corporations organized under said statute from general police or safety regulations of the kind provided for in Article 1436.

The jury verdict convicts appellant of negligence in maintaining the wires at the heights above mentioned, in failing to inspect the line, and in having the poles too far apart, but the essence of each finding, in reality, is the negligence of appellant in permitting the wire to be too close to the ground at the place where the accident occurred.

Appellant vigorously argues that the evidence fails to show that its negligence, if any, was a proximate cause of the accident. It says that it could not reasonably have foreseen the accident which resulted in appellee's injuries.

San Antonio & A. P. R. Co. v. Behne, Tex.Com.App., 231 S.W. 354, is sufficient authority for the proposition that liability for a wrongful act is limited to such injuries as are proximately caused by such wrongful act, whether the act be wrongful per se, as for the failure to comply with a statutory duty, or wrongful at common law, as being a failure to exercise ordinary care. The rules for determining proximate cause are the same in either case. In either case foreseeability or anticipation of injury is a necessary element of proximate cause. As declared in Carey v. Pure Distributing Corporation, 133 Tex. 31, 124 S.W.2d 847, the evidence, to establish liability, must show that the negligence was a proximate, not a remote, cause of the injury. It must show that the injury was the natural and probable result of the negligence. It must justify a finding that the negligent party ought to have foreseen the consequences of his negligence in the light of the attendant circumstances. But it is not required that the particular accident should have been foreseen. All that is required is that the injury be of such a general character as might reasonably have been anticipated, and that the injured party should be so situated with relation to the wrongful act that the injury to him or to one similarly situated might reasonably have been foreseen.

In our study of the case before us we have reviewed a number of cases where the questions of negligence, proximate cause and contributory negligence were related to the height at which a highly charged electric wire was maintained above the ground. Brief reference will be made to some of them.

Card v. Wenatchee Valley Gas & Electric Co., 77 Wash. 564, 137 P. 1047. The wire was 17 feet above the ground. A farmer, in making repairs to an irrigation system, inadvertently brought an iron pipe 20 feet long in contact with the wire. It was held that the questions of negligence of the defendant and of contributory negligence of the deceased were for the jury.

Holden v. Cincinnati Gas & Electric Co., 57 Ohio App. 448, 14 N.E.2d 943. The wires were 20 feet above the ground. A workman trimming trees was using pruning shears with a handle 8 or 10 feet long. While standing on a ladder, his pruning shears came into contact with one of the wires. It was held that the evidence presented questions for determination by the jury as to the negligence of the defendant and contributory negligence of the workman.

Casualty Co. of America v. A. L. Swett Electric Light & Power Co., 230 N.Y. 199, 129 N.E. 653. The wires were from 13½ to 15 feet above the ground. A workman on a shovel with a boom on it some 30 feet long came in contact with the wires. The questions of negligence and contributory negligence were held to be for the jury.

Interstate Power Co. v. Thomas, 8 Cir., 51 F.2d 964, 84 A.L.R. 681. The wire was sixteen feet above the ground. A portion of a farm machine known as a separator came into contact with the wire. It was held that the trial court properly submitted to the jury the questions of negligence and contributory negligence. The facts of this case are somewhat similar to those in the case at bar with respect to the conduct of the injured party. In the cited case the injured party was trying to lift the wire over the separator by using a wooden ladder when he received the electrical shock.

Jacques v. Dayton Power & Light Co., 80 Ohio App. 258, 74 N.E.2d 211. The wire was 22 feet above the ground. Defendant had agreed to maintain the wire at a minimum height of 25 feet. A truck with a crane on it came in contact with the wire. The trial court sustained demurrers to the petition. The pronouncements of the appellate court, in reversing the judgment of dismissal, were to the effect that under the facts alleged there would have been jury questions as to negligence and contributory negligence.

Several of the reported cases involved contacts between hay derricks and overhead wires. It was held that jury questions were raised in Greenwood v. Eastern Oregon Light & Power Co., 67 Or. 433, 136 P. 336, where the wire was 30 feet above the ground, and in Shank v. Great Shoshone & Twin Falls Water Power Co., 9 Cir., 205 F. 833, where the wire was 27½ feet above the ground. It was held that there was no evidence to show negligence in Fairbairn v. American River Electric Co., 170 Cal. 115, 148 P. 788, where the wire was 27 feet above the ground. A similar holding was made in Reardon v. Florida West Coast Power Corporation, 97 Fla. 314, 120 So. 842, where a crane came in...