Walker v. Texas Elec. Service Co.

• Decision Date: 06 July 1973
• Docket Number: No. 17393,17393
• Citation: 499 S.W.2d 20
• Parties: Dewey Edward WALKER et al., Appellants, v. TEXAS ELECTRIC SERVICE COMPANY, Appellee.
• Court: Texas Court of Appeals

Page 20

499 S.W.2d 20

Dewey Edward WALKER et al., Appellants, v. TEXAS ELECTRIC SERVICE COMPANY, Appellee.

No. 17393.

Court of Civil Appeals of Texas Fort Worth.

July 6, 1973.

Rehearing Denied Sept. 14, 1973.

Cantey, Hanger, Gooch, Cravens & Munn, and J. A. Gooch, Howard Barker, and Richard L. Griffith, Forth Worth, for appellee.

OPINION

LANGDON, Justice.

This is an appeal from a summary judgment in an action for damages initiated by Dewey Edward Walker, Roy Schapansky, James D. Seaver, James T. Lewis, and Richard Hancock, arising out of an airplane crash which occurred at Mangham Field in Tarrant County, Texas, on July 21, 1969. Plaintiffs' first amended original petition alleged five acts of negligence by the defendant, each constituting a proximate cause of the damages suffered by the plaintiffs. Alternatively, it was alleged that the erection, creation, and maintenance of defendant's power line constituted a public nuisance. In its second amended original answer the defendant alleged that the poles and wires in question constituted a peaceful, beneficial and lawful use of the premises, that the plaintiffs trespassed when they crashed into defendant's wires, that the action of the plaintiff pilot was dangerous to defendant's property, that the use did not constitute a public nuisance, that the defendant owed no duty to the plaintiffs and others similarly situated, that the condition and existence of the wires in question was open and obvious, that the plaintiffs were barred from recovery by the doctrine 'volenti non fit injuria', that the plaintiffs Walker and Hancock were negligent in several particulars, that this negligence was imputable to the remaining joint owners of the aircraft, that the wires in question were lawfully erected and that any recovery allowed against the defendant would be unconstitutional . Depositions of Dewey Edward Walker, Roy L. Schapansky, Richard C. Hancock, plaintiffs, and the deposition of J. H. Mangham, owner of Mangham Field, were before the court when defendant filed its motion for summary judgment on August 7, 1972. The motion for summary judgment was accompanied by the affidavit of R. M. Beard, an employee of the defendant. In response to this motion, plaintiff, Dewey Walker, filed a controverting affidavit as well as an affidavit of the witness, Merritt T. Goble. On September 26, 1972, the trial judge signed and rendered summary judgment for the defendant 'on each and every ground stated within such motion of defendant.'

This appeal is from that judgment based upon eight points of error .

The first two points assert the court erred for the reason that the appellee did not establish that there was no genuine issue of material fact as a matter of law (Point 1), and because appellee's affirmative defenses were not conclusively established (Point 2).

By their points three through eight the appellants contend that the court erred in entering the judgment it did because at all times relevant to this suit there existed genuine issues of material facts regarding appellee's alleged acts of negligence, each of which was a proximate cause of the damages sustained by them: (3) in erecting and maintaining its power line in such proximity to the final approach path of the south end of the north-south runway of Mangham field so as to constitute an immediate hazard to aircraft approaching said runway from the south; (4) in erecting and maintaining its power line so close to the glide path of aircraft approaching the south end of the north-south runway of Mangham field so as to create an unreasonable and dangerous obstruction to aviation; (5) in erecting and maintaining its high line in such a manner that the uppermost wire of said high line was virtually invisible to aircraft using the north-south runway of Mangham field; (6) in failing to give warning of the hazardous obstruction of said high line wires to pilots using the north-south runway of Mangham field; (7) in failing to make the uppermost wires of its high line identifiable by use of pennants, plastic balls, or some other similar inexpensive device; and (8) in its erection, creation and maintenance of its power line in such a position to Mangham field as to constitute a public nuisance.

We affirm.

Based upon our review of the entire record in this cause and the controlling authorities, we find and hold that the appellee established that there was no genuine issue of material fact as a matter of law, that appellee conclusively established its affirmative defenses and that the trial court therefore correctly granted its motion for summary judgment.

Appellants' points one and two are accordingly overruled.

For the purpose of clarity, the facts pertinent to our discussion are set forth in the paragraphs next following.

The facts are well summarized by appellant, Dewey Walker, in his Aircraft Report made just after the incident in question. In that report he said, 'The aircraft is based at Mangham airport. After normal preflight inspection in which no abnormalities were noted except low main gear tire pressure, tires were inflated to normal pressure and we departed Mangham for a local flight. Takeoff was made to the north and time was spent allowing Mr. Hancock to engage in coordination exercise and approach and departure stalls, followed by takeoffs and landings at Greater Southwest airport. We returned to Mangham airport and had made two approaches to the airport prior to the accident. On this approach which I made, I momentarily lost sight of the top wire of high voltage transmission line and the aircraft tail wheel assembly made contact with the top wire. The aircraft stalled at approximately 100 feet AGL immediately and the aircraft pitched down near vertical. My actions at that time are difficult to remember accurately and I only remember cutting power when it became apparent I would not be able to fly out of the stall completely. I estimate the recovery lacked approximately 10 degrees rotation and a few feet of altitude to have been successful. The aircraft struck the ground approximately 75 feet south of the south end of the N/S runway and came to rest about 40 feet from the runway end.'

The aircraft involved was equally and jointly owned by all appellants herein except Richard C. Hancock, who had been test-flying the aircraft for purposes of joining the partnership or joint venture. Hancock had made two attempts to land before Walker took over and attempted a third and final landing. Both pilots had logged several hundred hours of flying time out of this airport before this incident.

At the time of the incident (July 21, 1969) appellee was the fee owner of the land over which transmission lines were run approximately parallel to the airport's southern boundary. This was the first accident which ever occurred by reason of aircraft hitting these wires.

The facts above summarized are undisputed.

The deposition testimony of Dewey Edward Walker is summarized as follows: He had about 300 hours flying time out of Mangham airport; since flying out of Mangham and prior to the accident in question he had been 'very much so' aware of the Texas Electric power lines; as far as he knew the power lines had never been raised or lowered, and the poles had never been moved; prior to the accident the closest he had ever come to the wires 'would be a rough estimate, about probably 10 to 15 feet above the wires'; the runway is about 2600 feet long; the lines are approximately 500 feet from the beginning of the southern edge of the runway; the highest wire is about 100 to 110 feet from the ground; he knew at all times that the wires were there; he knew the height of the wire and the location; he 'saw them as I made the approach, I did lose sight of them as I turned the final'; the airplane, to the best of his knowledge was in good working order; he 'momentarily lost sight of the top wire of high voltage transmission line' when he was 'Maybe 1500 feet, or so, from the wires'; there was nothing unusual about the flying conditions, 'it was an ordinary summer day'.

A summary of the deposition testimony of Richard C. Hancock follows: He had 400 to 500 hours flying time; he has had his pilot's license since 1947; both he and Dewey Walker had control of the plane; they had been in flight about an hour before landing; visibility was good, it was just a 'common summer day'; it was about 6:00 P.M.; after two attempts at trying to land the plane and each time he was 'too high . . . to complete a landing' Dewey Walker said, 'Well, it's getting late, let me have it and I'll land it'; having had approximately 300 hours flying out of Mangham he was well acquainted with the wires; he had never hit the wires; he had come 'within 20 feet on several occasions' of the wires, 'It doesn't necessarily scare you, but it does cause concern'; the wires were visible from the ground; he knew where the wires were but 'temporarily lost sight of them until we were right on them . . . it was more likely that the wires blended into the foilage underneath them'; he was aware that the wires were 'approximately 100 feet' off the ground; an altimeter is installed in the plane to tell how high the plane is from the ground; he does not recall looking at the altimeter.

A summary of physical facts concerning the erection and maintenance of appellee's structure compiled by appellee's employee, R. S. Beard, follows: appellee was and still is the owner in fee of the land over which towers were erected and transmission lines and static lines were run in the Spring of 1955. The land is located immediately south of the Mangham Airport boundary. The power lines in question run approximately parallel to the southern boundary of the Airport. On or about July 21, 1969, date of the incident in question, the said land of the appelle supported steel towers 95 feet in height which were spaced at 800 foot intervals over such land. From these towers were strung 138 KV...