Turner v. West Texas Utilities Company

• Decision Date: 21 June 1961
• Docket Number: No. 18491.,18491.
• Citation: 290 F.2d 191
• Parties: Ruth E. TURNER, Administratrix of the Estate of Jerrald W. Turner, Deceased, and the Aetna Casualty and Surety Company, Intervener, Appellants, v. WEST TEXAS UTILITIES COMPANY et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

290 F.2d 191 (1961)

Ruth E. TURNER, Administratrix of the Estate of Jerrald W. Turner, Deceased, and the Aetna Casualty and Surety Company, Intervener, Appellants, v. WEST TEXAS UTILITIES COMPANY et al., Appellees.

No. 18491.

United States Court of Appeals Fifth Circuit.

May 2, 1961.

Rehearing Denied June 21, 1961.

William E. Chandler, Jr., Columbia, S. C., Robert D. Grisham, Abilene, Tex., Jack Little, Big Spring, Tex., Grisham & Jeffrey, Abilene, Tex., for appellants.

Marvin S. Sprain, Abilene, Tex., Hobert Price, Dallas, Tex., McMahon, Smart, Sprain, Wilson & Camp, Abilene, Tex., for appellees.

Before TUTTLE, Chief Judge, and JONES and BROWN, Circuit Judges.

JONES, Circuit Judge.

James W. Turner and Ruth E. Turner are the parents of Jerrald W. Turner, deceased, and Ruth E. Turner is the administratrix of his estate. They brought suit against several defendants, one of whom was the appellee, Tidmore Construction Company, herein usually called Tidmore. Recovery was sought for the wrongful death of the plaintiffs' son. Aetna Casualty and Surety Company had workmen's compensation insurance covering one of the defendants. It had settled a compensation claim arising out of the death of Jerrald W. Turner, and was permitted to intervene so that it might be reimbursed out of any award of damages that the plaintiffs might recover. It is also an appellant. The jury returned a verdict against the appellee, Tidmore Construction Company. The district court granted a motion for a judgment notwithstanding the verdict. From that judgment this appeal has been taken by the administratrix and the intervener.

Jerrald W. Turner was born in South Carolina where he resided until 1955 when he went into the United States Air Force. He was stationed at the United States Air Force Base at Abilene, Texas, at the time he met his death. He was then eighteen years of age.

Tidmore entered into a contract with Thomasson Enterprises for the building of a shopping center on Fourteenth Street in Abilene, Texas. Tidmore made a subcontract with Fred Peavy, doing business as West Texas Steel Erectors,¹ to unload and to transfer from a rail siding to the job site approximately 1620 squares of metal decking. Without Tidmore's knowledge, Peavy subcontracted the moving work to Abilene Crane Service, Inc., of which Clyde Carpenter was a vice-president. Abilene Crane Service procured the services of two trucks, one owned by a man named Willingham and driven by Jimmie Dodson, and the other owned and driven by D. L. Foster. The moving was to be done on May 26, 1956, a Saturday. Young Turner was not on duty with the Air Force that day and was hired by Carpenter to assist in the work. The evidence showed and the jury found that Jerrald Turner was an employee of Abilene Crane Service, Inc.

The two trucks which had been hired by Abilene Crane Service, and the crane owned by it and operated by Carpenter, went to the rail siding. There, by the use of the crane, bundles of the metal decking were loaded on the trucks. Each bundle weighed several thousand pounds. The loaded trucks and the crane proceeded toward the construction site which was something more than 300 feet back from Fourteenth Street. The Foster truck moved to the site of the work where it was unloaded without incident. As Dodson was bringing his truck from Fourteenth Street to the Thomasson property at a point where no crossing had been provided, three bundles fell from the trailer of his truck. The Foster truck was brought up and it was intended that the bundles would be lifted from the ground by the crane and placed on the truck. Along the edge of Fourteenth Street, a foot and a half or two feet from the Thomasson property, was a high voltage electric transmission line which was owned and maintained by West Texas Utilities Company. This line ran almost directly above the bundles of decking which had fallen from the truck. At this point the line was a little more than twenty-eight feet above the surface.

As the bundles were about to be lifted on the Foster truck, there were on the scene the following persons: Carpenter who was operating the crane, Jimmie Dodson, the driver of one of the trucks, D. L. Foster, the driver of the other truck, Frank Dodson, a cousin of Jimmie, Fred Peavy and James Cagle, of West Texas Steel Erectors, who were, it seems, mere bystanders, Leroy Ray, an employee of West Texas Steel Erectors who was acting as a helper on the crane, and Jerrald Turner. No one was on the job or at the site representing Tidmore. At the time of the trial, Peavy was dead and Ray was in a penitentiary in Oklahoma. One of the three bundles was picked up and loaded in a routine manner. With the two Dodson boys and Foster standing close by, Turner started to hook or loop the load line of the crane on one of the two bundles which remained on the ground. The crane or line from it came in contact with the electric power line and Turner was electrocuted.

It was alleged by the plaintiffs that Tidmore was negligent in failing to warn of the dangerous condition existing with respect to the high tension wires, and particularly in failing to post signs or notices of warning of the transmission of high voltage electricity. The evidence showed that Turner was of or above average intelligence, had finished the tenth grade in high school, had lived around electricity all of his life and had been warned of its dangers. Both of the Dodsons testified that they shouted to Carpenter to watch out for, or keep out of "those high lines." One of the Dodsons said he had a pretty strong voice. Foster testified that he heard the shouted warnings. He also stated that the whole group, including Turner, was talking about the high line. Mrs. Turner said that she had never heard the term "high line" in South Carolina. The plaintiffs placed an electrical engineer on the stand. He was a member of a firm of mechanical and electrical consultants. He said he was an expert on the kind of warning signs that contractors...