City of Weatherford Water, Light & Ice Co. v. Veit, 196 S.W. 986

(Tex 196 SOUTHWESTERN REPORTER case, proper support adjoining telephone working were without the a tlie lineman on a company. the electric that-of and were reason- evidence warrant cases, Electricity, [Ed. Note.—Por see other highly prejudicial ably calculated (cid:127) Dig. 11.] Cent. § predicated appellant. Those remarks were Electricity &wkey;?19(5)Injury to Person 2. Rogers fact been em- — alone ployed had Negligence. represent it in defendant a tele- Evidence le insufficientto held show prior present of those criminal to some suit negligent working Contributory lineman near 2Evidence — company’s high-voltage he, proceedings coun- wires. as assistant electric '^ state, cases, Electricity, ty attorney, represented [Ed. Note.—Por see other had Dig. 11.] § Cent. attorney for defendant another the fact that inquest appeared <&wkey;206 fire 3. Master Servant —Servant’s Injury Distinguished Risk”, —“Assumed propounded of the wit- to some Contributory Negligence. . from facts, But those rea- then examined. nesses distinguish defense risk as assumed /The not, any event, support sonably, charges contributory negligence upon im rests ed¿from plied contract on servant to as made. ordinarily dangers sume the risk of to the incident indicated, For reasons engaged or from in service which reversed, court is of the trial dangerous surrounding due conditions the notice or in the appellant. for rendered is here service which the servant has ordinary known, exercise care should Rehearing. con which defense tributory negligence.. in the absence of Biotion for epst On ! opinion original were in error In our cases, Note.—Por [Ed. other see Master and the sister saying Mrs. Monahan Dig. Servant, § Cent. 550. inaccuracy was Another definitions, Phrases, Gamier. Dan Por other see Words Assumption Series, portion occurring First and statement, Second of Risk.] one in the be- communications opinion, Electricity that all &wkey;>19(] 2) Injury 4. to Person — Working Jury Contributory Negligence. — Cage & Co. were Parde About Question Wires & tween Cravens — correspondence. through the medium of by telephone / In an action lineman for in- a re- them was between communication first quest jimes resulting coming in contact with long-distance & over the high-voltage wires, Parde Co. defendant’s ) plaintiff’s negligence jury. Cage held blank telephone & send Cravens cases, Electricity, controversy. [Ed. Note.—For other see application the insurance Dig. 11.] § Cent. por- request in another was mentioned That Electricity opinion, Injury— the evidence failed but <&wkey;18(l) tion of 5. to Person Duty Worrying About Wires — to Discov- amounted to conversation to show er, Uninsulated Wire. anything and the than more adja- working A lineman on a I comply promise therewith. to Prank company to that of an electric cent quired testify, as insisted Parde did' discover fact that While electric uninsulated, were wires edge where he had no knowl- negotiations prior appellee, dangerous A their character. controversy, Cage& Cravens insurance cases, Electricity, seer agent appointed another com- him had pany, pany, Dig. 10.] § Cent. Mercantile Pire Insurance Com- — &wkey;>231(l) Master 6. hd¡ Servant Serv- yet further testified never Injury-Reliance ant’s on Master’s Care procured from the commissioner insurance —Safe Place to Work. any authority to act as such state of the agent, A lineman could assume that his provided dealings master work. him & with a safe of Parde Co. Cage solely & were confined Cravens cases, [Ed. Note.—For other see Master controversy present policy in Servant, Dig. 675, , Cent. §§ 677.] suit. Electricity <&wkey; 18(2) Injury 7. to Person foregoing inaccuracies have sub- — Working Contributory — About Wires bearing any material stantial issues Negligence. case, they corrected view / A lineman could assume that de- fendant’s cross-bars in indicating has stressed them wires were fixed to fact that the his customary usual and manner rehearing, and, motion for with such harmless or. nature of the n corrections, the motion is overruled. wires. ! cases, Electricity, Note.—For [Ed. see Dig. 10.] § 8.Electricity WATER, OF WEATHERFORD <&wkey;19(5) and Serv- —Master Injury &wkey;»278(ll) ant & ICE LIGHT CO. v. VEIT et al. —Suffi- —Servant’s ciency Negligence of Evidence —Joint (No. 8624.) Employer and Others. Appeals (Court Civil Texas. Ft. Worth. by telephone personal action lineman for April 1917. Motion On for Rehear- coming high- caused in contact with ing, 30, 1917.) June voltage wires, evidence held to show that both employer Electricity <&wkey;19(5)Injury 1. Persons — — proximately negligent ries. contributing inju- to his —SUFFICIENCY03?EVIDENCE NEGLIGENCE. held sufficient to Evidence show that an elec- light company Electricity, tric mainte- Note.—For [Ed. causing injury Dig. nance § 11.] to Cent. topic Key-NumberedDigests other oases see same KEY-NUMBER all and Indexes <®=»For Tex.) WATER, LIGHT & ICE CO. v. OF WEATHERFORD VEIT Indemnity &wkey;»5 <&wkey;13(2) 15. 9. Tort-Feasors Contribution —Joint —Tort-Feasors—Ne- , gessity Liability. (cid:127) oe Joint Rule. —.General i joint right general joint ( (it tort-feasors" indemnification between a rule that presupposes contribution,' are cases doers where in such tort-feasors that as mot entitled injured generally ac- both have been the courts will defendants wrong-^ leave seeking negligence, must have been parly in- since tionable finds j demnity person the third liable to held Contribution, cases, [Ed. other Note —For see proxi- for some omission Dig. agt 6-9.] §§ Cent. injury. mately causing the Indemnity &wkey;>13(2) 10. Tort-Feas- —Joint Indemnity, cases, [Ed. Note.—For other see Exceptions to Rule. ors — Dig. 31.] § Cent. denying exception / to the rule There is Indemnity some, >16. <&wkey;13(2) Tort-Feas- wrongdoers —Joint contribution between states Negligenoe. and Passive pas- negligence of one is of fact where the indemnity joint [n irs, tort- neg- action-for between from the other’s active sive as distinguished party question the vital is whether ligence. seeking indemnity passive merely'guilty of Indemnity, cases, see par- distinguished the other from Dig. 31.] § Cent. ry’s negligence. \ Indemnity <&wkey;15(7) 11. Electric Indemnity, cases, [Ed. Note.—For other —Between see' Employé Injured Person’s Dig. 31'.] Cent. § —Sufficiency oe Evidence. Indemnity <&wkey;15(9) 17. Tort-Feas- —Joint an elec- (JJvidcnce held sufficient show Question oe Law. ors — maintaining “company’s tric re- Where there no conflict of evidence proximity high-voltage phone a as tele- wires in close joint indemnity garding tort-feasors, between causing manner, in an unusual and lineman’s duty is the trial de- court’s merely passive telephone injury, resulting clare the law therefrom. neg- distinguished employer’s.active from his Indemnity, cases, [Ed. other Note —For see ligence employer warranting indemnity from Dig. 45.] § Cent. company judgment for rendered to electric .latter, against Appeal wires -where &wkey;>1175(2) 18. and Error —Review- injury Duty disputed causing Arising before where had been .maintained Law to Declare erom Un- telephone pole, Indemnity. erection Facts — company (cid:127) telephone should have known the trial court Where failed to declare ? plain- warning danger, arising regarding detailed law from facts although -question, lat- joint tort-feasors, tiff to do the work between it became tribution n ; surrounding condi- ter with the duty unfamiliar appellate waS court’s to do so. n tions. Appeal cases, [Ed. other -Note.—For see Indemnity, cases, Error, Dig. other [Ed. Note.—For see 4574.] § Cent. Dig. 44.] § Cent. Appeal &wkey;>768Right 19. and Error to Ac- — cept Undenied Statement as True. Appeal &wkey;>1175(2) 12. and Error —Determi- deny an- defendant did in his Where not — Indemnity oe Between nation Cause testimony swering un- that certain stood brief Tort-Feasors. alleged plaintiff, appel- eontradicted telephone recovered Where a lineman has accept such late court will view statement as true judgment company tric phone company employer an electric (142 authorizing xiv), rule 41 W. S. joint tort-feasors, in elec- court do so in such cases. company’s the tele- cross-action cases, Appeal [Ed. other Note.—For Cent. see may indemnity be rendered Dig. Error, 3103.] § Appeals of Civil under Rev. St Court Electricity 1626, providing court i&wkey;19(5)Injury art. such 20. to Person — Working — proceed to Sueeiciency the court render About Wires rendered, and where the matter was should actually Evidence. litigated injuries telephone in the trial court. a lineman’s action coming high-volt- resulting from cases, Appeal Note.—For other [Ed. see age wires, held to the tele- show Dig. Error, 4574.] § Cent. phone working company’s pole on which he was at after the the time was erected Rehearing. Motion for On pole adjacent company's thereto, light electric and that high-voltage — Appeal <&wkey;832(l) company’s Error 13. Rehear- time the electric ing Right Complain Indemnity. already place. — — wires were telephone lineman, having A recovered dam- Electricity, cases, other Note.—For see [Ed. ages electric Dig-. 11.] § Cent. coming sulting from in contact with — Electricity <&wkey;16(4) Electric 21. Com- judg- complain rehearing wires, Duty pany’s Respect indemnity against employer in favor ment Company. n light company where his own electric telephone erection of close After rights ly unaffected, entire- unless reasons proximity electric to an became the record. outside duty company’s high- to remove its cases, Appeal and other Note.—For 'see [Ed. voltage to the outer wires ends of its crossbeams Dig. 3215-3218, 3220, Error, 3223- §§ Cent. protection of for cordance with linemen and ac- 3225.] usual custom. cases, Electricity, Note.—For see [Ed. <&wkey;125(8) 14. Master and Servant —Knowl- Dig. 9.] Cent. edge Danger Imputation § oe — to Master— High-Tension <&wkey;119Employ- Wires. 22. Servant Master — danger Knowledge high-tension wires Duty High-Voltage Wires. — er’s light company duty in imputed will be close An electric owes telephone company where employes wires on long continued, pro- and because as condition matter to ends of crossbeams their the outer company’s prac- of law was and in accordance with usual tection tice. such condition. know of cases, Note.—For other see Master [Ed. Master Note.—For [Ed. Dig. Dig. Servant, Servant, 250.] 210.] § § Cent. topic Key-Numbered Digests cases see For other same and Indexes KEY-NUMBER (Tex. 196 SOUTHWESTERN REPORTER — Electricity <&wkey;16(5) maintained 23. the inner instead of the Electric pany’s Duty Respect portions crossbar, outer carrying which was Inspection op — Wires. Light Company’s wires; the' After was erected in close fixing maintaining high-volt- in so proximity tric light pole, elec- to electric it was the company’s telephone age' proximity telephone com- towards the to the pany’s employés inspect to insulation its pole Light Company, pre- in order to high-tension wires. vent ing its com- said wire from Electricity, cases, For, [Ed. see Note.— telephone pole, in contact with the Dig. § 9.] Cent. telephone pole attached a bracket to Indemnity <&wkey;13(2) 24. Tort-Feasors —Joint light attached, which the wire was and Liability. oe —Nature placing which had the result of the wire liability authorizing The nature indem- nity difference of the character of ing joint pole depends telephone tort-feasors the a inches from and between on few wrongs caus- an iron fixed to the few inches below telephone pole negli- injury, comparative and not on the employés for use of gence parties. of.the ascending Telephone and of the Indemnity, pole carrying telephone descending Dig. § 31.] charged Light It was that all of Com- wires. pany Appeal Oourt, from District Parker Coun- particu- these ty ; Judge. McKinsey, F. O. lars. by against Suit Alvin Veit and others company gen- appellant The answered City Water, Light of Weatherford & Ice Com- contributory negligence denial, plea eral pany.' Judgment plaintiffs, defend- and alleged, appellee’s part, specially and on appeals. part, ant and rendered in Affirmed in and reversed light pole among things, that said part. rehearing Motion for had been erected on the streets of Weather- overruled. city many ford under years direction of that Shropshire prior telephone Shadle, H. C. and Hood time that & all Weatherford, pole appellant. erected; that Theodore Carlock, light Worth, Mack and R. L. both of Ft. wire had been attached the bracket Frank, telephone pole protection D,. and W. S. Bramlett and J. both fixed to the of for the Dallas, appellees. long and been Telephone' Company; known to the that understanding agree- CONNER, been C. J. Alvin Veit Light Telephone damages arising ment between the Com- instituted this suit for injuries panies whereby Light Company person against city would to his electricity upon Water, Light shut off Company, the current of Weatherford & Ice employés when wires pany of the Com- Light hereinafter referred to as the Com- required repairs upon pany, alleging, briefly, were make day that on the Sth wires; upon question, February, employs the occasion in if he anwas of the Telegraph it was the circumstances Southwestern pany, & Com- plaintiff for the ascended the tele- hereinafter referred to as the Tele- phone phone pole pleadings, Company, linemen; mentioned in his one of its Telephone Company fact, Telephone Company well knew of the had occasion to and, knowing, repairs city made no for the make some line light off; Weatherford, go current to be shut him directed to that it, hence, point part Worth, Tex., from his residence Ft. Telephone Company making repairs; to so assist erect its or- repairs, required request, upon and direct repairs der to without such make the it became necessary proximity light in such close poles for him to ascend one of the Telephone Company alleged supporting of the wire. For these reasons it was a wire top plaintiff cable attached to a cross-arm near proximately -the which was some 25 to 30 feet caused above pavement; having that after ascended to top descending accordingly party defendant, and in there- made a with from, high-ten- prayer he came contact with a with on the Com- sion, pany uninsulated judgment, against wire of the any, Com- that whatever if thereby pany, para- might and was so shocked and be rendered in favor of lyzed himself; might as to be unable to release also rendered its favor over upon having Telephone Company. been released from jury another The case was submitted to a pavement special issues, seriously fell injured. below and return of verdict, plaintiff upon generally alleged It was which was favor of issues, had erected court entered a maintained its high-tension supporting judgment plaintiff against ap- wire in close pellant Light Company $1,850, pole; with in- light pole day May, 1916, was some to8 12 from the feet lower than terest thereon 9th cent, telephone pole; per per at the rate 6of annum with Light Company wire of the had been fixed all costs of suit. The was also topic Key-Numbered Digests <§=oEorother see same eases in all KEY-NUMBER and Indexes Tes.) WATER, & L1G-HT ICE CO. VEIT v. OF WEATHERFORD appellant company favor the electric uninsulated wire was a'high- former in fact did not it was know'that voltage as- company’s cross-bill, after he wire. He testified telephone pole, appealed. cended some which was has higher light pole, ns, are, 12 feet than but two. seri- seems There as it Holmes, foreman, presented. first whether called him answer ous plain- undertook descend the favor verdict the tiff on the ligence neg- leg contributory pole; that he each had attached to issue of spur by employés evidence; supported usual worn aid iron poles; undisput- descending whether, them under the' second evidence, appellant en- that on the affixed to the ed were iron Tele- north and south sides thereof titled to a phone over steps cross-plea, from some from the bottom these 8 10 feet its and or on pole steps disposed top; that near the the will be in their to order. of about,3 length. apart; were occasion to descend when on the feet that not set out the evidence at We will however, carefully considered, under consideration he undertook It has been grasped support and, substance, hand the he with his left in is sufficient to sup- plaintiff messenger” following the that That what termed the “stell conclusions: employ Telephone ported telephone and cable the the wires in the the been had swing years underneath what started himself several and was to lineman; go experienced in that cable to down the center of an order was as termed body swung doing city Worth, pole; to in he his in the of Ft. and that so he went lived angle right upon question with at in to the toward the second his foot an the occasion south Weatherford in top, step foreman, response iron from the his orders of whereupon, expression, Holmes; elec- use his “the and wires to Mr. that cables derang- tricity grabbed” and to him he was unable had become fire, part further shows turn loose. The evidence reason of recent and that ed high- plaintiff employment that he remained transfixed duties his voltage Holmes, appellant company required question Mr. in until to ascend the wire was repair telephone ap- in answer to in order to test screams and unacquainted wires; plaintiff pellee, and and re- ran ascended that unacquaint- appellee’s city Weatherford, foot from the contact moved in the and whereupon pave- precise arrange- wire, appellee and fell with condition ed light below, wires, although he There ment stated. ment the electric heretofore high-volt- tending wires in be- evidence show that knew such existence and age appellant been, company Light Company’s ing upon had wire of maintained telephone poles. Light Company, could the the He also see the location of attached to bracket, alleged, mentioned, poles, 2 inches within and on a several have tric with served step arrangement evi- elec- of the iron which observed the intending dently light could, his came reach when foot looked to the had he wires view, high-voltage The ob- wire. end have that seen in with light does not make certain whether wire the evidence spur plaintiff’s the iron with which bracket there- foot or and to iron knowledge equipped He in contact situated. or came with on information, however, without it was high-voltage plaintiff’s foot wire before the step, in- whether his foot reached its on the reached the or carried wires upon crossbar; general slipped portions wire. ner and therefrom high carry voltage [1,2] being appellant found custom wires of guilty in man ends on the outer of the crossbars so as high-voltage easy high-voltage carried its move such wires from con- ner which guilty part employes ascending upon negligence crossbeams, or also and was tact plaintiff attaching high-voltage descending poles. at maintaining pole, time not been warned or notified insulation, negligences light high-tension wire was carried without injuries, portion crossbar, proximately plaintiff’s on inner or that tlie of its caused respects cannot doubted that been attached in these be wire had verdict, supports a bracket to that the the evidence while or very strong appellant insulation has number of cited a point, tending he he in fact testified that did cases show that things contributory negligence not ascended he examined the wire for these at the he in ascend know time that stated, descending pole, yet pole, although, do not purpose say case, in this feel able the evidence as- could, would, law, requires certaining, he that conclusion. doubtless as matter could, dependent upon wire, particular- have the attached noticed Each case judged thereby. would, must and of insulation. have noticed the want be doubtless circumstances question pre respect, determining however, he In this [3] And present going up not it will be well stated which sented in case safely, he confuse doctrine of assumed risk he did not notice did .that (Tes. 196 SOUTHWESTERN REPORTER

990 has assumed performance of such work on the necessarily must caro, ditions voltage. phone pole, He had a indicated that the wire which injury which, from forms his position lant insists that ties existed. As pellee might, of its uninsulated assume that question Light Company were affixed to its crossbars the fact was not dangers ordinarily ing find This defense wires. There is is one tract service of his master of Civ. in the usual and contributory negligence. ercise of see, Company’s tion of the a not one of not tract, lee that of as is not observe this wire and there facing “One [7] It cannot be said that [5, ^[4] general which the we diameter due care for his H. knowledge, assumed, was not truthful have specifically Telephone Company, one in App. he cannot that 6] It is true under a safe But in generally true, one E. & W. express feel, requires show he west was one if within contributory negligence. the evidence light wire, contributory negligence purely, and, such had been required work, ascertained ordinary the 360, incident assumed conditions right known, one jury. wires were attached to the tele the be so careful ascending a risk rests the risk engaged, may the case before us the servant had nothing in had pole. or wire was and there is no evidence tend recover for T. 105 employes, warned appellant Light Company, wire given of harmless to assume that his between implied, might no evidence the manner Ry. exist even condition, bottom, tapering he knowledge to make such had he incident care S. even had he risk, customary manner, own work. us yet He surrounding that was the made an Co. v. or W. 1149: to be upon declaring such assume nor its the because of the declares that he have discovered the warning servant should have known. for the the evidence safety uninsulated, knowledge, pole work, As notice, fact that say between these and hence them, had exercised He had no means to be evidence that case, McHale, injuries.” voltage. Appel was one of in which he warned, careful of live some 12 inches in the exercise and had known the determina ny, resulted the absence had attached ground provided the service that appelle^ or due to the risk of wires of the language: inspection appellee condition the uninsulated implied or of which observed entering The defense entirely that he would have while other than the service his work that he inspection.' the appel-^ might to inch- the question, question that the ordinary no con master, 47 pole 7 but we but he which! ing upon due danger in high Tex. ,him par ease con per- free amiss to cite the the owed, not again did ap ex On the whole all and then to in is inegligence 'petrator X>f produce person since, the whose without brought the former Third District declared that: is on this fact two tort, of some omission of a in the wrongdoers. to the themselves But there are cases 133 S. W. .contributed doers in denominated as intentional Antonio v. tinction. the case there are they and that all ers’ pany. doers not entitled he Tex. the supports v. Union Electric Mo. cases 179 S. W. Co., appellee es at the er quired “It is “Where one “The rule is In the case of Austin Electric The same court [8-10] On one was insisted having the issue others that right findings conclusions 43, Oil the one operating 510, and the other because he is the active find wrong particulars refers generally responsible party It is true his iron 169 S. W. negligence, is about well settled contemplation between Pa. Co. v. parties may joint ' Veit, should top; exceptions. principle that their 18 S. of the two It was there is some of negligence Company swing 449, reached the-active them. Smith, by the merely passive, 860; can be the other occasion, both the Railway to assignments indemnity may jury’s finding respond It in favor seeking redress, yet of his wrongdoers far from tools, person condition, Keebler, construction of recover wrong, the prevails W. spurs, condition, the be south; following contribution; Frantz v. Citizens’ that his only charged, 345; conclude that 94 Tex. appellee Telephone in the But for an them did not where, although the announced, the iron Atl. 1106. Court of 956, overruled. in subject no be liable to courts leave the perpetrator persons, contributory negligence, and was so injured by body Light Co. v. question of law under the a Our has over said: and that in such case Ry. complete.” to this being universally may in that class of cases secondary contribution between thus notices 170 S. also of error and a third case of guilty & Power 271, safety belt, and another recognizing injury or tort-feasors which or such as authorities: Plant Supreme Court, first observe the wire. Co. Company Railway torts protection steps exist' in the one be blameless. equity suffered may Appeals if appellee's law, a appellant com mentioned 59 S. W. some states v. W. that As reason of the Ry. another for evidence general general proximately City may intent raising Arey (Sup.) just as between one.” he was on account his negligence 120; Hill negligence fortifying following of the ac- v. Co., 260 be Electric in and act- the only for the Compa wrongs. person, Co., require by wrong of San wrong, buzzer, or care Faust, person wrong- latter, where favor north liable 1109, rule, rule true per- dis aft our the the re 83 in a n Tex.) WATER, LIGHT & OF WEATHERFORD' ICE v. CO. VEIT 991 negligence tion.” tive injured ject ligence in the sidewalk. imate cause of the our one of its might panies might lar insulated wire; District dangerous position up among its might wrongful absence ephone of San Antonio v. W. was about to uninsulated pany’s high-tension many years. insulated and not wrongdoer did do out veloped gence on one of its are of out notification that- the the Telephone Company, shows would On to that safe created shows Company doubtedly Ct. dence arrangement and location was the came ^[11] the note to 518, that, 564, 40 L. Ed. perpetrator Light Company, specific warning its uninsulated negligently Supreme undisputed testimony, the case of the location and any sort of harmony'with which Veit came in on have so escape recover Applying shows that Company to did part seems contact, act caused did no condition erected its Light Company, that to furnish its and so stepping this wire had condition, employés necessity part Columbia, opinion remained business location dangerous Light Company, condition while Court work, repair remained that case. over merely passive. streets, have some allowed to exist it, Light Company. Both com to send dispute more than Washington and with with present See, also, inspection Talerico, duty agents any th^ in a held in the ease repair and it was active must principles wires Telephone Company of done, wrong as well also of the location and un four harmless which the for neither employés one city nevertheless condition. of of ascend and been maintained principles so lines and to the same dangerous condition hole arrangement of the case. have been, according contact, U. of cut off proper inspection, indefinitely produce 98 would on was liable wires as the evidence attached employé part would have close employés the employé Gaslight Co. v. S. was the Tex. five wires, decisions fact of its un the same known of the in a sidewalk that In appellee person whose 316, high-voltage be Light its current. certain,” etc. as those of wire as and of stated, due warn- and with years. crossbars, maintain We 151, The wire town for condition over particu Light Company and for into the request merely stated, with a in the we whose condi- negli with prox- 81 Com cit&l City Sup. neg Veit subf Tel city city evi one un de-. S. It prayed been low shall be in' the this would tain tened peals] or For pany its off its telephone pole in the said from the evidence that Light Company parties taining ly that under the entirely up was undisputed bracket light ephone pole Telephone against the as utes ed, ter be assessed ure to amount sarily note to should occasion against an titled doer cited opinion, against dsion hereinbefore “When ^[12] decree as did near and failure injured party against except on are contrary, employés danger beyond aught its uninsulated active or the taken no is, to the effect entirely to the bracket. So that suit reinsulate litigate therefore have involved absence of shall fact be We power. Nor, for, the United States it, possible active as before when due notice has been bracket was when judgment art. damages also have Company judgment should or the wrongdoer, facts Telephone the court below should approached very closely to, away against, judgment or proceed possibly reversed, inspect Telephone Company. when directed to ascend the removed wrongdoer, opinion care 1626) ascertained or the in the require.' appears, was entitled to the it should or otherwise conclude evidence tends that a purpose questions, such close matter stated, than it in fact opportunity that caused fastening Telephone Company, condition, to render .manner necessary the wire and thus ascer- appellant’s as Light Company nearer the iron Which referred to cases in bracket, placed against would that wire litigation. Companies statute condition Light Company. conclusive as with judgment decree of the court be- it other matters neces- to be We therefore that consisted had due notice court and that under the that, was left when Supreme Court 'dcN facts the erecting respect prayed and inasmuch think, provides fastened proximity be now and here protect employés passive as between that some extending the between these decreed, (Revised reversed, did inasmuch as [of negligence of wire might have cross-action in favor act of the damage in the act.of and main- show merely whatever, can it been increased judgment appellant Civil for over the judgment given was'en- that: In the actual- wrong- render- of are of if not is un- latter have Stat pole. wire wire mat- fail- just fas- Ap- tel- cut are. the On as (Tex 196 SOUTHWESTERN REPORTER '992 .judgment .side the -be egraph (cid:127)adjudged; phone Company impedes urged by him By not corrected Veit’s favor as rendered appellee Veit, such was in all tical sisted : valid reason. for of their cause ment in dered erates to such an bunal, erance of the hearing. that we such tween the right because Nor “in A tion particularly appear. terest most tions hearing without discussion. Company as will authorize rect firmed findings, not deemed to be aside. counsel sents a motion for So respects being That our Affirmed But Appellee The ^[13] re-examination part. argument, prejudicial doing, able motions other complaint our to correct our denial do our interest these several accorded to which referred interdependent in view of Light With this, remaining assignments us dockets, But, record, & we intolerable appellee thereby may brevity Light Company favor of the as action the' findings delay On Motion reasons, action we conclude Telephone Company Telephone Company dispose the several of things affirmed, unable Veit necessarily erroneous rendered will, see how the by your if-correct, reference to the motion as Company part, the correctness of a reason exists justice in him in exhaustive appellee undisturbed. If our to are as to amount to an almost entry Light Company against the collection of the appellee Veit, of our rehearing we alleged material, presents Light Company it of them in a and reversed to see from findings rehearing, delay cannot rights. reason feel that we must heavily honorable can should, to this for'Rehearing. in fact must be overruled. active, here! of a think, hereinafter more as judgment judgment lengthy relation prejudicial over interferes parties, judgment. our Light Company it will not do to the trial prevents shall be denied the case see, judgment has below arguments by therefore be Southwestern the motion to and are overruled the decree in' favor of the lies of fact. against judgment crowded condition appellee.” If, and there of consideration we will observe controversy the trial court motion for maintained indeed body may why constitutes no the record .but appellee proper course, has been ren- between the of error likewise as entirely and rendered this conclusion is general appellate is court, in favor of our sev- their also a suggested amounts, erroneous supported and that all other the Tele- plaintiff’s in favor Telephone appellee delayed. original merely decree be!set prop- rights judg- cause prac- Vdit. way. will out- con- pre- Tel- cor- mo- mo- any say the pany. tri- are interest op- be subject. re in in- no if answer wrong, such sive mitting veloped from known to the in our direct imputed continued ed manifest active tions known he was called ed. failing sulted the ing agent, properly presented of the conditions or quainted erly for phone Company presents off its to portance tions was without is that we were in e!rror in selves with more! which caused the clusions city stantially every objection, ful firmed arising sented in various forms and with much Gre!at stress ^[14] law, present them, one of him, rehearing rehearing. re-examination one of its not, Assuming considered substance, dangerous urged by yet That participant power, us judgment. opinion the! on the! trial. To so call and to recovery or concern sent with conditions hence the It is true as remains the special an existence of the contradistinguished called from Company, contradistinguished it, view of the fact Telephone Company. However, judgment to be our him insuperable objection also injuries, the face of upon but this negligence not employés, special issues, is laid Telephone Company must be Company, We will therefore! address our- the authorities negligence conditions think, original dangerous work perhaps issues the we awarded up particularity as at least only dangerous, Light Company, being us. We! are principal part danger. appellee Light Company we are iuto and a Light Company Light Company was not do, and, conditions to continue. Company. undisputed appellee as big .to finding without to learn and to in, the record because, necessary Veit, Telephone relating we can conclusions originally through the record affirmative, home about, very dangers great length the fact conditions jury, this Light Company wholly concluding If contention, Veit’s found it seems to Veit shows no who was unac- is not having from and which re- cited, appellee among Veit’s warning this does not practical as recognize accordingly But a care- negligences found that particular, proof conclusion its favor a distant Company a matter has announc- warning injuries, at fault was not our thought passive, entitled to shut answe!r so call- motion motion among direct- of condi- objec- know force, work long- Tele- were pas per him sub- pre- de im- us, Tex.) WATER, & IOE OF WEATHERFORD EIGHT CO. VEIT v. negligence Among guilty things, Henry Light Company other Ward testified the in Light Company maintaining on the behalf of as follows: “My is.Henry Ward; did, crossbeam, in maintain- name and also I live Weath- ; my life, erford have lived here and I about prox- in such close years old; am 59 here about 59 lived imity the Tele- and iron years. working I work for different men. I am phone acts several Water, and that these Light Company for the & Power now. my right, If proximate recollection serves me I causes commenced were each working worked spring 18S8, for them in the and have injuries. plaintiff this it From Veit’s virtually I them ever since. know Light appears argued conclusively poles the'Light Company when the were first participant square an active set around the here and over north approximately side. everything I have done complains; a wrongs little of which the that was done about Com- findings words, that under pany place. dug exactly helped I holes and raise necessarily is, Light Company was, poles. I do not remember the tele- when phone poles square here, joint Com- were set tort-feasor with the around the relative to the time the Water and Com- pany, indemnifi- not entitled to ' and therefore pany’s poles telephone poles were set. The cation. light poles.” (cid:127) set were after the is true that as lengthy cross-examination of this wit- findings re- several sustained ness behalf of the plaintiff, and we to in favor ferred explicit failed weaken the statement correctness doubt no entertain the witness on examination in chief respects. But this these our conclusions hy telephone poles light poles. set were after the rights means decisive contrary, was, On the force to this statement anything, if to it on added cross-examina- Company. said, among things: tion. He then every [15,16] it must of the kind case [the “I know it which Yeit party presupposed in third that as to be jured injury] at the ascended time was not in of my way been can be no such putting poles both defendants have up; when I was telephone poles not set at that time. If the negligence. There actionable there, my poles. had been They I not have could raised right thing in cases indemnification raised, every my shoulder, one, over appear joint to first it be made tort unless poles, them and I could not have raised seeking shorter, tort-feasor Even with our the defendant or or 12.feet Í not have raised it if that had been indemnity third to some has been held liable there.” act for some or omission On re-examination further tes- witness injury. proximately causing an In all such * tified: eases, case, and in vital setting poles “I did look after the party seeking are: Was the guilty indemnification Light Company. them; helped I set * * * helped of held of some liable because mere do .the work. I know reason setting poles poles put line of perform neg duty, omission to and was the up first.” ligence wrongdoer from which indem-. thereupon The witness was recrossed in be- nity tradistinguished sought affirmative and active as con Telephone Company, half said: then pas mere omissive negligence? sive say light poles put “I don’t I think the were [17,18] On these in this issues case there up they put up first. telephone poles I know were If first. finding jury, is no Light of the nor the did either there, had the been I would have Telephone put Company Company up light poles.” or the seen them when I the issue; any the determination of appellant’s original In brief on the submis- thus, acquiesc apparently, alike both at least testimony sion the of substance the ing in the failure the court to of so submit. quoted out, above witness as above the is set and Indeed, governing in the facts statement, following referring thereto referred to and no there or con was issue made, viz.: troversy necessary jury’s for a determina testimony “This stands in the record of this duty It tion. became the case without contradiction.” of trial court arising declare the law the undis answering [19] In the brief of Tele puted facts, having and, that court not done phone Company denial of this statement so, court, did, for this as we to so declare. which, (142 xiv), is made under rule S. W insisted, however, great length It is at accept as authorizes us statement vigor, up with much that the essential facts Moreover, the true. record fails to disclose predicated on which we our Company over Telephone offered the tes Telephone Company are not timony persons placed un or who disputed. But, stated, again poles they after care as to had its so show been fully considering evidence, prior poles feel that erected to the time the put original Light Company must conclusions, up. adhere our had been Nor is deference, any explanation why both as to law and fact. In there such witness how ever, very earnest or offered has been contentions coun witnesses Telephone sel in behalf of the attention. to our All that on the mo we called will partic rehearing ingenuity refer to the evidence with tion for and re more even ularity than has heretofore counsel has been able to assemble- been done. search of 196 S.W.—63 (Tex. (cid:127). 196 .SOUTHWESTERN REPORTER. guson testified, among was done. in these failures to tect these circumstances phone pole. phone feet of voltage evidence which phone wire, if Light Company in these poles. was no affirmative act. in inally fixed, high-voltage wire to nature, therefore reiterate and between the in festly only Light Company in while and five the and fixed the on which Veit was hurt pany sive? crossbeam, this phone mere omissions. its equipment ferred voltage wire after came age acquired testimony square be Light Company [20] We [21, seems maintaining originally the erection properly the bracket organization and in controversy Telephone Light Company wires, inner property some circumstances thereon secure the years was in after subject reasonably had erected 22] It in. Weatherford further such as that not in particulars the outer clear amount to cannot In what portion do covering the maintaining franchise and close before the erection of act, To illustrate: such close was light pole upon was so due to said that it was placing is to the effect that shown in the was not think the But on its crossbeam its after the witness Light Company by'the actual Light Company insisted that tends installed herein properly was active rather by erected of active proximity, necessary, be us that fixed; portion. its respect, its erection as .are nearly guilty therefore reasonably any these the outer end other attached he was wire chief of Light Company. high-voltage wire, particular failing after high-voltage not followed erected the find periods own respects Telephone show that within four or contradiction guilty its merely passive. to fix the of an inconclusive said that paid crossbeam, James Lewis Fer- testimony. Weatherford, organization They negligence particulars so as that circumstances therefore, adjacent poles which the paid Ward, things, as a negligence, employes, failure of the .taxes order to so to remove its wire said that involved duty relating amounts to were mere taxes around the Companies negligence than later, high-volt fact Company the tele- the tele- arose the tele- pole up and we bracket, prior wire on already do, instead electric thereto by any can it it be- mani high- high- Com Tele- light plac- orig pas pro- But five up fon yet re phone tends in have insulated, the wire other years bracket It scending fect that last absence is lington a came down the was it the knowledge it step upon and and in it was its distance the would suppose from the contact over here I don’t know when was it, sagged prior permit that at the wire tion and Moreover, of the hurt it in have been of this act of active brought poles under bracket the wire was made to extend said he only way a contact made was stated, tion at et fied that said: familiar light Water, “I It but a ^[23] on, prevented but I will some February 8, 1915, pole. burning bracket have kept poles time, it. “sagged” before the to that words, to show absence of remove to do It anwas wire would Hotel. insisted that could not mere the the time of the was the time finding the wire they four Veit to dry with the If iron been duty was attached to the bracket. liable negligence, I guilty may attached while two very nature of nothing, which it was evidence that attached necessity gave little, condition, that, working insulation at weather. my at pole, the say surmise. time it, purpose hadn’t been for advantage bracket & Ice knowing towards They or three be admitted of the poles, to have burned accident. One the time of consent. him at that the evidence been Light Company at the duty called to ascend go that when after five feet of Company. wire could no evidence Telephone Company if have come would have more clear construction of the been instead of closer thereto. any as we view the thereby the accident was down in so bracket, the any. condition; in that over there two or three Company my Company being wet, contact with the wire.” In the first jury Light Company and been lower. This contention two, I It is the bracket was un- employSs place of the City it was lower this contact years. began wet nearly put keeping That was at Weatherford; run the electric current things right then, necessary fixing by Weatherford. was erected with- No witness but telephone pole was to the it quite time a long That would not of Weatherford weather it would that contact the particular it on there. a wire did clear Veit’s time means time I knew of negligence. the telephone sagged in down, but, work here I had performance show that Of put the wire on within that and Carroll don’t the wire would time wire being that, light pole, thereafter pole. temporary there was the tele- the Tele evidence, accident; probable my doing and de- a brack- he was farther over the ef- sugges- know; would guilty up effect plant prior testi- ques- lines trial time pole. iron own this Ar- He off it I

Tex.) LYON v. PHILLIPS establishing .respect phone Trial 4. tory negligence approving ities so pleaded of sive Ratlroads caused overruled without further discussion. support ous, an automobile as a liabilities think 3. out ly conflicting thorities cited in our tainment. stances. as less to undertake facts of this case. crossing. commission, LYON al. v. PHILLIPS et al. mere failed in his of the wrongs causing injury selves, ance of the evidence the defensive matters as road of but a difference in the character of the he discovered the one 2. Cent..Dig. proving others, dependent upon (Court 1. an automobile den of Proof. Crossing Crossings [Ed. gence The motions of ^[24] law, Negligence HailRoads An instruction that “the burden of The In an action companion operating distinguishing features, give riding and in properly insulated, crossing may seems to the defendants to guest Dig. § 1176.] Dig. sufficiently rule, Possibly construction of Note.—For comparative negligence distinguish et its nature rather than active. — would be an act want industriously gathered The i&wkey;234(7) Juey Civil one Jury— § 1055.] with another in his automobile as a some of them” §§ 360-352.] —Caee would be measured defendant’s instances what crossing and therefore inspect'and fundamental as that riding resulting motion, tort-feasors us, <&wkey;327(12) June &wkey;3350(21) Appeals Question. we should distinguishing feature, &wkey;136(30)Imputed etc. ordinary against-a was erroneous deceased show a we have of the owner and driver of lants for approach Question. guest, question not be appellees Required. — with him aas mere 21, 1917.) keep collision plain discuss own a imposing Instructions At in a collision at a rail- defense respective lights prove by of Texas. actually but a difference cases, original opinion decisions and the automobile when seems almost a lookout care on the best, imputed, they particular held proper notice — rule some railroad for death judgment — — said and the see of a omission, negligence pas- Accidents see failure of the Accident easy are so numer among, the burden of that the wire eách case is tenance of a lookout was not error. one third contributory lision and'death reasons the author accordingly application whether train Texarkana. Negligence, (No. susceptible preponder- Railroads, Railroads, apparent as matter alleges of ascer riding contribu- — cited applied, proof parties, circum n Negli- degree, in this jury. not of profit party, disap 1822.) them guest. Bur- point . warn at au at of stances; south verdict. form pellants track of the 5. locomotive travelers comotive failed to issues of fact Railroads hence an instruction ceased was tributory negligence. negligence and of the trains or ring tbe way. County; negligence by locomotive of ant alone. who Dig. § 537.] mobile death W. W. care in the essarily Cent. track another trial. of the train which with -and as the lins. The the Marlin-Waco track. W. W. public children of International ants automobile. As the front wheel of the auto- sulting —Duty of Railroad. [Ed. Note.—For other [Ed. Three Action Appeal About east, A railroad statute; east companion train public discovering any was the appeal. Reversed, and remanded for Dig. at of Waco. said Judgment Note.—For International & crossing, road passed Cecil includes the triangle, prong besides denial three miles Tom L. using bell lines -by (2) that was entered damages §§ 982-987.] vel from District operation failed husband and father. The rate of riding road action runs 350 struck automobile W.W. “Y,” owner A. Katie <&wkey;310 crossing appellants appellants’ passenger train, evidence' offered the collision and death of both in favor of company’s duty non other means of & Great being operated over the farthest Phillips Lyon (3) McCullough, Phillips crosses or at a Coming public road intersects the and then guest appellants’ respecting checking speed suit occurred occasioned keep proper traveler of and automobile, - authorizing of trains at e¿st sound the whistle T. going east, duty “Y,” Phillips against appel- “Y.” crossing feet where it crosses plaintiffs, by it was crossing —Accidentat operatives specifically eases, ' Great public Phillips and accordance with the cases, of John as follows: of the the west Northern was caused the wife (cid:127) about from Waco south McLennan Court,' another, The deceased and turns to the Phillips operatives riding avoiding , looking see Northern Judge. by to exercise due road. The railway struck at plaintiffs, see and the main- by operating crossings city of and defend- speed and the col a the circum- three1 miles decided the required by Trial, rail lookout for a speed F. consequent of the lo- plead lawful use the death which de- Railroads, finding Crossing along prong high receivers Railway (1) petition Collins, out for injury; by defend- of the others Waco track Cent. Rail- That left, east Col- nec- two ap- or a Digests topic Key-Numbered see same

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Case Details

Case Name: City of Weatherford Water, Light & Ice Co. v. Veit

Court Name: Court of Appeals of Texas

Date Published: Apr 28, 1917

Citations: 196 S.W. 986; 1917 Tex. App. LEXIS 791; No. 8624.

Docket Number: No. 8624.

Court Abbreviation: Tex. App.