West Tex. Utilities Co. v. Harris

• Decision Date: 09 June 1950
• Docket Number: No. 2802,2802
• Citation: 231 S.W.2d 558
• Parties: WEST TEXAS UTILITIES CO. v. HARRIS et ux.
• Court: Texas Court of Appeals

Page 558

231 S.W.2d 558

WEST TEXAS UTILITIES CO. v. HARRIS et ux.

No. 2802.

Court of Civil Appeals of Texas, Eastland.

June 9, 1950.

Rehearing Denied June 30, 1950.

Wagstaff, Harwell, Wagstaff & Alvis, Abilene, for appellant.

Scarborough, Yates, Scarborough & Black, Abilene, for appellees.

GRISSOM, Chief Justice.

H. N. Harris and wife sued the West Texas Utilities Company for damages caused by the electrocution of their minor son, Bobie Harris. Plaintiffs alleged that Bobbie was employed by the Pioneer Gasoline Company to clean out its gasoline pipe line; that Bobbie and others would unscrew joints of pipe along the line, stand one end of a pipe on a block of wood and hit the pipe with a hammer to break loose the rust in the pipe; that, while Bobbie was so engaged, a pipe he was cleaning came in contact with defendant's high voltage electric line 'above his head' and Bobbie was electrocuted. The sole ground of negligence either alleged or found by the jury was that defendant's electric line was maintained, at the point where Bobbie was electrocuted, less than 22 feet above the ground, contrary to the requirement of Art. 1436. The jury also found that the failure of the Utility Company to maintain its line at least 22 feet above the ground was a proximate cause of the death of Bobbie Harris. The jury found that neither Bobbie nor his father was guilty of negligence. Judgment was rendered for plaintiffs and the defendant has appealed.

The evidence shows that Bobbie Harris, aged 18, another boy, L. D. Collins, and several men were working northward along the west side of a graveled road from Sabanno to Pioneer, cleaning a gasoline pipe line as employees of Pioneer Gasoline Company; that they would unscrew a joint of pipe in the pipe line and 'up-end' the pipe on a wooden board, known as a 'lazy board,' hit the pipe with a hammer and knock out the rust; that Bobbie worked on this line one Thursday afternoon and returned to the same work the following Monday morning; that the superintendent of Pioneer Gasoline Company, Mr. Mills, helped Bobbie, L. D. Collins and Mr. Gray unscrew the first joint of pipe, warned them to be careful about the electric wires, and left; that almost immediately after the superintendent's departure, Bobbie and L. D. raised the first joint of pipe unscrewed that morning and placed one end on the lazy board. Mr. Gray said that he then walked back to the 'union' to get his hammer and just as he raised his hammer to strike the pipe 'they come in contact with the wire' and Bobbie and L. D. Collins were electrocuted.

Appellant's electric line carried 7,200 volts. It is undisputed that Bobbie Harris was killed with the pipe raised by him and L. D. Collins came in contact with appellant's electric line. Appellant's electric lines ran along the west side of the road, with its poles in the western edge of, or adjoining, the borrow pit; immediately west of the electric lines was the gasoline pipe line of Pioneer Gasoline Company, which pipe line, at the point where Bobbie Harris was killed, lay on top of the ground. The position of said pipe line is described by various witnesses as being approximately under appellant's electric lines to three feet west of said electric lines. West of the pipe line was a barbed wire fence. Location of the fence is described as being from 'slightly west' to 'four feet west' of the pipe line. Appellant's electric line was not insulated. Whether the pipe line was, as described by different witnesses, approximately, directly under appellant's lines or three feet west of appellant's electric lines, the raising of joints of two-inch pipe, resting on a lazy board, described by different witnesses as being from one to four inches thick, and beating said pipe with a hammer close to the electric wires was dangerous. This danger was recognized by the workmen on said pipe line and their superintendent. Bobbie Harris had been repeatedly warned of the danger of having a pipe come in contact with appellant's exposed electric wires. He knew it was dangerous. Mr. H. N. Harris, Bobbie's father, testified that he saw Bobbie and L. D. Collins and Mr. Gray working on the two-inch pipe line a few days before Boobbie's death; that he saw them take some joints of pipe loose and place one end on a lazy board under the high line; that the 'lazy board' was about two inches thick; that 'they would end that joint of pipe up on that board and one or two of them would hold it and somebody would hammer it with a hammer.' That he saw where those joints of pipe were coming 'in relation to that highline'; that he warned Bobbie 'to be careful not to get that pipe line into those wires;' that he could see that it was dangerous; that he did not know Bobbie was going back to do this kind of work; that he thought he was through; that if he had not thought he was through he would have asked Bobbie not to work there any more. Mr. Harris testified that the electric wires were quite large; that 'you can see them quite a long ways.' Mr. Mills, superintendent of Pioneer Gasoline company, a witness for defendant, testified that he remembered the occasion 'when Bobbie and L. D. Collins got killed by letting a pipe come in contact with an electric wire;' that he was with Bobbie and others working on the pipe line for a while on Thursday afternoon before Bobbie was killed the following Monday morning; that the observed the relationship of the pipe line to the electric wires and 'told them to be careful about the electric wires.' He testified:

'Q. Did you tell Bobbie Harris anything about those electric wires? A. I didn't pick out anyone in person. I just told the gang. We had about-I believe we had five men that day in the gang.

'Q. Were they all together when you told them? A. Yes, sir.

'Q. Could they all hear you? A. Well, I would think so.

'Q. And what did you tell them about the electric wires? A. I just told them to be careful about them.

'Q. They were to up-end those joints weren't they and hammer on them? A. Yes, sir.

'Q. And that pipe line went approximately under the electric wires and with the wires? A. Well, it was parallel with the wires. It was just a little piece from the wires; kind of half-I would say about half way between the electric line and the fence that was there.

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'Q. But you told them-warned them not to get in contact with those wires? A. I just told them to be careful about the wires.'

Mr. Mills testified that on Monday morning he helped Bobbie and L. D. and Mr. Gray 'break out' the south end of the particular joint of pipe which Bobbie and L. D., a few minutes later, brought in contact with the electric wire. He further testified:

'Q. Did you say anything to those boys then about those wires? A. Yes, sir. I told them to be careful about the wires.'

Mr. Mills then left to see about some gasoline drips. He testified that it could not have been over ten minutes later when Bobbie and the other boy brought a joint of pipe in contact with an electric wire.

Mr. Dupriest, an employee of Pioneer Gasoline Company, and others, testified that the crew with which Bobbie was working was repeatedly warned of the danger of letting a pipe come in contact with appellant's electric line.

Mr. Gray, who was assisting in cleaning the pipe line, worked with Bobbie Harris and L. D. Collins on Thursday before their death on the following Monday. He described how they would unscrew, or, according to his language, 'break out' a joint of pipe, place one end on a 'lazy board' and hammer the pipe to remove the residue from the pipe. He testified that the 'lazy board' was approximately two inches thick; that which the joints of pope were standing they were 'pretty close to' the electric wires; that he talked to those working on the pipe line about the electric wires; that he spoke to all of them that were working there together. He further testified: 'I told them, 'We got to look out for that line. It's dangerous.''

'Q. Did Bobbie Harris make any remark? A. Yes, He said 'We will have to remember that. It is dangerous.''

'Q. How many times to you suppose you warned those boys on that Thursday? A. Oh, I would not know. Several times. Two, three or four times-dozen times, maybe, during the time we were taking up the pipe.

'Q. Then would you and Bobbie and L. D. Collins, would all of you assist in ending those joints up? A. Yes, sir.

'Q. And would all of you watch to see where those wires were? A. Well, yes. I think so.

'Q. Well, do you know whether you did or not Mr. Gray? A. I know that I did.

'Q. All right; now, after that Thursday when did you next work on the line? A. I think it was Monday morning, the fourteenth.

'Q. The fourteenth; that's the morning that these boys got killed? A. Yes, sir.'

The superintendent of Pioneer Gasoline Company, on Monday morning, again warned Bobbie Harris and L. D. Collins and Mr. Gray 'to be careful about the wires' and, within ten minutes after this warning, the boys brought a joint of pipe in contact with appellant's electric wires and were killed.

Mr. Gray, who was left with Bobbie and L. D. after the superintendent gave them the last warning and departed, testified that he walked to the 'union' to get his hammer. He testified:

'A. Just as I raised up with the hammer why they come in contact with the wire; about the same time.

'Q. With the wire. I see; and they were both killed? A. Yes, sir.'

'Q. Do you know whether the pipe was standing on that block? A. Yes, sir. It was.

'Q. At the time they contacted the wire? A. Yes, sir.

'Q. Do you know how they got it in the wire except they did? A. Well, it seemed as though, before I could get to the pipe, the pipe was standing on the board, I could see fire coming out the bottom and I looked up.

'Q. But you don't know how that happened to it? A. Well, it just pulled up there against it, I suppose.'

Bobbie was 18, a high school graduate, intelligent and had good sight and hearing. The...