Wendell v. Central Power and Light Co.

• Court: Texas Court of Appeals
• Writing for the Court: GONZALEZ; NYE, C.J., and BISSETT; UTTER; KENNEDY
• Citation: Wendell v. Central Power and Light Co., 677 S.W.2d 610 (Tex. App. 1984)
• Decision Date: 28 June 1984
• Docket Number: No. 13-82-362-CV,13-82-362-CV
• Parties: Yvonne WENDELL, Et Al., Appellants, v. CENTRAL POWER AND LIGHT COMPANY, Appellee

Page 610

677 S.W.2d 610

Yvonne WENDELL, Et Al., Appellants, v. CENTRAL POWER AND LIGHT COMPANY, Appellee.

No. 13-82-362-CV.

Court of Appeals of Texas Corpus Christi,

June 28, 1984.

Rehearing Denied Aug. 31, 1984.

Carl Raymond Crites, San Antonio, for appellants.

James W. Wray, Jr., Kleberg, Dyer, Redford & Weil, Corpus Christi, for appellee.

Before GONZALEZ, YOUNG, UTTER, KENNEDY and SEERDEN, JJ., En Banc.

OPINION

GONZALEZ, Justice.

This is an appeal from a take-nothing judgment in a wrongful death action. Appellants, plaintiffs below, are the wife and children of the deceased, who was electrocuted when his rig came into contact with a power line owned by appellee. Appellants filed suit against appellee and alleged various acts of negligence. The jury found all liability issues against appellant. On appeal, appellants assert that the trial court abused its discretion in denying leave to file a trial amendment and also allege error in: (1) the submission and refusing to submit certain special issues, and (2) the exclusion of certain evidence. We affirm.

Central Power and Light Company (CP & L) owned and maintained an overhead electrical distribution system in Cove Harbor, a marine industrial installation owned by Aransas County Navigation District No. 1. The waterfront dock and wharf areas are leased to private individuals and companies, and in November, 1978, the major activity of such individuals and companies was related to off-shore exploration and production of petroleum products. Lynn Wendell, husband and father of the plaintiffs, was a part owner and general manager of Lynn Wendell Marine Service, Inc., the third-party defendant, a lessee at Cove Harbor.

The Navigation District provided at Cove Harbor on Lot 43 a boat launching ramp and an adjacent parking area for the use of the public and the lessees. Lot 43 covers approximately 46,604 square feet (1.070 acres).

At the time of his fatal accident, Lynn Wendell, his brother, Bill, and an employee, Kenneth Jackson, were taking a barge out of the water, intending to position it in the parking area for routine repairs. Lynn Wendell was driving a winch truck to which was attached a trailer. The trailer had been backed down the ramp into the water, the barge positioned above the trailer and attached to the winch truck, then pulled out of the water on the trailer.

CP & L's poles supporting its overhead power lines were located in the right-of-way bordering Lot 43. There were wooden poles with cross arms on which distribution lines were laid at a height of approximately 32 feet above ground. Rising from both sides of the barge at a point approximately 15 feet to the rear of the barge were metal spud poles, which were approximately 28 feet in length. With the barge on the trailer, the spud poles were approximately 4 feet off the ground; thus, the metal spud poles stood approximately 32 feet above the surface level.

On November 27, 1978, after the barge and trailer had been removed from the water and moved part of the way into the parking area, Lynn Wendell stopped the tow truck. After determining that insufficient space was available for access by others to the boat ramp, it was decided to go further southwest from the ramp. There was misting rain, and Lynn was using Bill as a spotter in order to determine the point at which he would stop. Lynn drove the winch truck forward and stopped the truck so that the barge was at the point where Bill was standing. Smoke was seen coming from the tires of the trailer. Both Bill and Jackson, who was on the barge, testified that Jackson lowered a pail of water to Bill who then threw the water on the tires. Bill was knocked to the ground, apparently by electrical shock. Jackson testified that he jumped on a piece of canvas in order to try to insulate himself from the deck of the barge.

As Bill was thrown to the ground, Jackson looked toward Lynn and saw that Lynn was lying on the ground to the left of the left door of the winch truck.

The contact with the overhead power line occurred at a point 36.5 feet northeast of the westernmost pole and at an elevation above the surface of 32.8 feet. The wire made contact with the spud pole at a point approximately 2 inches from the top of the spud pole.

The drawings admitted during the trial were many and varied, and the witnesses' comments with regard to them were not always specific with regard to which exhibit was being discussed. However, from the entire record we have reconstructed a fairly accurate depiction of the relevant scene, as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Lynn was pronounced dead. His surviving spouse and daughters brought suit against CP & L for wrongful death. Illinois Employers' Insurance of Wausau, the workers' compensation carrier for Lynn Wendell Marine Service, Inc., filed a Petition in Intervention. CP & L filed a third-party action against Lynn Wendell Marine Service, Inc.

The suit by appellants against appellee alleged that appellee had failed to:

1. inspect, make appraisals and survey transmission lines for unsafe condition;

2. place power lines at a higher elevation;

3. place the power lines underground;

4. place the power lines on the opposite side of the street; and

5. erect warning signs.

Appellants also alleged liability under the doctrine of res ipsa loquitur.

Appellee filed a general denial, and alleged that Wendell was negligent in:

1. Failing to keep a proper lookout.

2. Coming into contact with the power line.

3. Moving the barge under the power line.

4. Failing to lower the spud poles of the barge before moving it.

5. Failing to notify appellee about moving the barge under the power lines as required by TEX.REV.CIV.STAT.ANN. art. 1436c (Vernon 1980).

During the course of the trial, evidence was introduced that the power line extended 8 1/2 inches over into the parking lot where the accident occurred. Appellants complained that there had been a "taking without due process," and on the fourth day of the trial, appellants orally offered a trial amendment that interjected a new issue, that is, that the encroachment of the power lines into lot 43 was negligence and a proximate cause of the accident. Leave to file was denied by the trial court. The following day, appellants offered a written trial amendment. Without asking appellee to respond, the trial court again denied leave to file. Appellants' counsel again made reference to this trial amendment when the objections to the charge were being made.

The trial court submitted the case to the jury on the acts of negligence that were raised by appellants' pleading and also instructed the jury on standard definitions of ordinary care, negligence, and proximate cause.

The jury answered all the liability issues adversely to the plaintiffs and to the third-party defendant. Specifically the jury answered Special Issues No. 1, 3, 5, and 7 as follows:

SPECIAL ISSUE NO. 1

Do you find from a preponderance of the evidence that Central Power and Light was negligent in failing to place its distribution line under ground?

Answer "We do" or "We do not."

We, the jury, answer We do not.

SPECIAL ISSUE NO. 3

Do you find from a preponderance of the evidence that Central Power and Light's failure to erect and maintain the distribution line on the opposite side of the street at the location in question was negligence?

Answer "We do" or "We do not."

We, the Jury, answer: We do not.

SPECIAL ISSUE NO. 5

Do you find from a preponderance of the evidence that Central Power and Light's failure to place the electrical distribution line at a higher elevation in the area in question was negligence?

Answer "We do" or "We do not."

We, the Jury, answer: We do not.

SPECIAL ISSUE NO. 7

Do you find from a preponderance of the evidence that Central Power and Light's failure to erect and maintain warning signs as to the location and existence of the line, its voltage, and its height above ground in the area in question was negligence?

Answer "We do" or "We do not."

We, the Jury, answer: We do not. ¹

The jury also found that Lynn Wendell had failed to keep a proper lookout, that he was negligent in failing to lower the spud poles on the barge prior to moving it, and that these acts were a proximate cause of the accident. The jury also found damages to plaintiffs of $3,503,300.00.

Judgment was entered that plaintiffs take nothing. From that judgment, Yvonne Wendell, Marcella Wendell, Gwendolynne Wendell and Barbara Wendell, joined by third-party defendant, Lynn Wendell Marine Service, Inc., brought this appeal.

Trial Amendment

Appellants, by their first point of error, allege that the trial court erred in denying leave of court to file their trial amendment and in refusing to submit related special issues. ² Appellant asserts that the issues were tried by consent and that a trial amendment should have been allowed to conform the pleadings to the proof under TEX.R.CIV.P. 66, 67.

The trial amendment and special issues in question were as follows:

Plaintiffs' Trial Amendment

1. Plaintiffs allege that CP & L owned and maintained the distribution line which came into contact with the spud pole in question, in and over Lot 43 of the area in question, and that constitutes negligence.

Plaintiffs' Requested Special Issues

SPECIAL ISSUE NO.

Do you find from a preponderance of the evidence that the distribution line which came into contact with the spud pole was owned and maintained by the Utility Company in and over lot 43 of the area in question?

Answer: "We do" or "We do not." ³

We, the Jury, answer: ___

If you have answered Issue No. __________ "We do", then answer Issue No. __________; otherwise do not answer Issue No. __________.

SPECIAL ISSUE NO.

Do you find from a preponderance of the evidence that erecting and maintaining the distribution lines in question over the rigging area constituted negligence?

Answer: "We do" or "We do not."

We, the Jury,...