258 S.W. 803 | Tex. | 1924
Question certified from the Court of Civil Appeals of the First Supreme Judicial District in an appeal from the District Court of Galveston County.
The Honorable Court of Civil Appeals at Galveston certified two questions to this court. It is agreed that one question has since become moot. For the purpose of determining the remaining question the following statement from the certificate will suffice, viz:
"The Gulf, Colorado Santa Fe Railway Company, the Galveston, Houston Henderson Railroad Company, and the Galveston, Harrisburg San Antonio Railway Company, acting for themselves and for the County of Galveston, and for Galveston-Houston Electric Railway Company, hereinafter called the Interurban Company, entered into a contract with Larkin Sangster, a corporation, to construct a portion of the causeway connecting Galveston Island with the mainland.
"By the terms of said contract Larkin Sangster, corporation, obligated and bound itself to protect, indemnify and save harmless the Interurban and other Railway Companies, and any other person or persons, firm, or corporation claiming under them, including the causeway owners, against all claims, rights, suits or causes of action of every kind whatsoever which might be brought or lodged against it or them on account of personal injuries, death, loss or damage to property, or any other acts whatsoever growing out of, or connected with, or incident to, the prosecution of the work undertaken by it by the contract.
"While this work of construction was being done the steam roads and the Interurban used a single track wooden pile trestle for the transportation of their trains, connecting the original arched bridge portion of the causeway with Galveston Island. A line of poles in order to carry the Interurban wires was a part of this trestle. The trolley wire supplying current to the Interurban for running its cars was attached to arms extending over the track from *460 these poles and near the top of the poles attached to the opposite side of the track were three high tension electric wires belonging to and used by the Interurban, uninsulated and carrying 33,000 volts of electricity. These wires were some 40 or 45 feet from the ground upon which one Willie S. Reinle was standing at the time he met his death.
"On March 21, 1919, Reinle was and for several months had been in the employ of Larkin Sangster in the capacity of foreman of a gang of men operating a derrick, with an engine as a part thereof, used in making excavations for the foundation of the new piers which Larkin Sanster were engaged in constructing. A wire rope or cable ran from the drums attached to the engine of the derrick over a pulley attached to the end of a boom and thence down to or near the ground, at the ground end of which wire rope was attached a chain with a hook used for lifting buckets of excavated material or other substances. On the day on which he met his death, Reinle, who was in charge of the derrick, and who gave signals to the engineer for the movement thereof, the engineer being unable to see from his position in the engine house where the end of the derrick boom was located, signalled to the engineer to move the boom of the derrick in a direction toward the pile trestle, Reinle at that time holding on to the hook attached to the chain at the ground end of the wire rope running over the boom. The engineer moved the boom in accordance with Reinle's signals and as a consequence the boom swung so near to the high tension 33,000 volt wires above referred to as to cause the wire rope to come in contact with or in such close proximity to one of said wires as to cause a current of electricity to flow down said wire rope and through Reinle's body, causing practically instantaneous death.
"Larkin Sangster, who were parties to the suit, were independent contractors, and as such employed many men in the construction of said causeway.
"Mrs. Lillian W. Reinle, the widow of Willie S. Reinle, deceased, in behalf of herself and as next friend of Doris Reinle, an infant daughter of the deceased, Willie S. Reinle, brought this suit against the Interurban Company to recover damages for the death of said Willie S. Reinle. Among other things, unnecessary to be mentioned, she alleged that Willie S. Reinle lost his life by reason of the negligence of the Interurban Company in failing to insulate its high voltage wires and in failing to give notice and warning to Reinle of the dangers attendant upon coming in contact with or in close proximity to said wires.
"The cause was submitted to a jury upon special issues and in answer to special issues Nos. 1, 2, 3, and 4 they found substantially as follows:
"Answer to No. 1: The Interurban Company was not guilty of *461 negligence in maintaining its high voltage wires in an uninsulated condition at and along the causeway where Reinle was killed.
"Answer to No. 2: The Interurban Company did not use ordinary care to give Reinle notice and warning of the danger attendant upon coming in close proximity to the high voltage uninsulated wires belonging to said company.
"Answer to No. 3: The Interurban Company did not use ordinary care to give Reinle notice and warning of the danger of coming in contact with the uninsulated wires of said company.
"Answer to No. 4: The failure on the part of the Interurban Company to give Reinle notice and warning of the dangers mentioned in answers to Nos. 2 and 3 was the proximate cause of the death of Reinle.
"Upon these answers judgment was rendered in favor of the plaintiffs against the Interurban Company.
"On appeal to this court the Interurban Company presents the following proposition:
"Recovery of damages based on negligence is allowed only where there has been a breach of a legal duty by the defendant to the plaintiff, and, the undisputed evidence showing that Larkin Sangster, Inc., the causeway contractor, was an independent contractor as to this appellant for the purpose of reconstructing the causeway, and that such independent contractor was fully advised and absolutely knew of the danger to its employes if machinery under their control was allowed to come into contact with or close proximity to the uninsulated wires of this appellant, this appellant owed no duty to Willie Stephen Reinle, one of the employes of Larkin Sangster, Inc., to give him warning or instruction as to such danger. The fact that the wires were uninsulated being also fully known by Larkin Sangster, and it being an independent contractor, no duty was owed by this appellant to the employes of the independent contractor to insulate the wires. There being, therefore, no duty on this appellant in either of the respects above mentioned, and these being the sole grounds of negligence alleged against it by appellees, there was no basis in the evidence for the submission of any issue to the jury nor for the rendition of any judgment in appellee's favor against the Interurban, and the peremptory instruction in its favor should have been given."
The question which the Court of Civil Appeals deemed it advisable to certify is:
"The undisputed evidence showing that Larkin Sangster, the causeway contractor, was an independent contractor as to the appellant Interurban Company for the construction of the causeway, was such appellant resting under any legal duty to Willie S. Reinle, deceased, to give him warning or notice as to the danger incident to permitting the boom, being operated under his direction as an employee of Larkin Sangster, coming in contact with or in close proximity to the high voltage wires of said appellant?" *462
The nature of the work which the Interurban Company contracted for Larkin Sangster to have performed necessitated the employment by the contractor of men within a zone of extreme danger created by the high tension wires. The contract involved an invitation by the Interurban Company to the contractor's employees to labor within the danger zone. How imminent the peril was cannot be questioned in the light of the testimony of the Interurban Company's superintendent as set out in the Company's brief. The facts therefore bring the case within the rule that one cannot, for his own advantage, invite others to come on, or to remain about, premises in his possession and under his control, without using proper care to give warning of a grave danger to be probably there encountered, of which the invitees may have no knowledge.
Judge Cooley, for the Supreme Court of Michigan, said: "Every man who expressly or by implication invites other to come upon his premises, assumes to all who accept the invitation the duty to warn them of any danger in coming, which he knew or ought to know of, and of which they are not aware." Samuelson v. Cleveland Iron Mining Co.,
Judge Strong, for the Texas Commission of Appeals, stated the general rule to be: "The owner or occupant of real property is under no obligation to make it safe for the benefit of trespassers, intruders, or mere licensees coming upon it without his invitation, expressed or implied. If, however, such owner or occupant invites the public or particular members of it to come upon his premises, he owes to such persons the duty to have same in a reasonably safe condition and to give warning of latent or concealed perils." Bustillos v. Southwestern Portland Cement Co.,
Texas Traction Company v. George,
The opinion of the Texas Commission of Appeals in the case of George W. Armstrong Company v. Adair,
The obligation resting on the user of wires highly charged with electricity to exercise reasonable care to avoid injury to all known to be rightfully coming into a place of danger from such wires, especially when coming to render a service beneficial to the user of the wires, is thus stated in 9 R.C.L., page 1206, section 16, viz: "This duty of using the necessary skill and prudence to prevent injury to persons coming in contact with their wires is imposed upon electric companies, not only as regards the public generally, but also with respect to any individual engaged in a lawful occupation in a place where he is entitled to be. Such persons are not trespassers or licensees bound to take the premises in the condition in which they find them." To the same effect see: Ennis v. Gray, 87 Hun., 360, 34 N Y Supp., 379; Clements v. Louisiana Electric Light Co., 44 La. Ann., 692, 16 L.R.A., 32 Am. St., 348,
The distinction between this case and those denying recovery against an employer for negligence of the independent contractor is stated by the Supreme Court of New Hampshire in Pittsfield Cottonwear Mfg. Co., v. Pittsfield Shoe Co.,
The Supreme Judicial Court of Massachusetts in the case of Cobat v. Kingman,
There is no doubt that the independent contractor was under the duty to exercise ordinary care to give warning to its employees of the dangers incident to their work from proximity of the appliances with which they were required to labor to the deadly electric current carried by the Interurban Company's wires. Breach of this duty is not the basis of the Interurban Company's liability. It is the breach of the Interurban Company's own independent duty for which it is answerable. Failure of the contractor to perform its duty would in no wise relieve the Interurban Company from responsibility for the consequences of failure to perform its own duty to the contractor's employees.
The reason for the employer's liability for an injury occasioned like Reinle's is stated in Cooley on Torts to be: "If I employ a contractor to do a job of work for me which, in the progress of its execution, obviously exposes others to unusual perils, I ought, I think, to be responsible, . . . . for I cause acts to be done which naturally expose others to injury." 2 Cooley on Torts (3d Ed.), p. 1091.
The court answers that it was the duty of the Interurban Company to exercise ordinary care to give Reinle notice or warning of the danger of the boom coming in contact with, or in close proximity to, the uninsulated, high voltage wires, notwithstanding Reinle was an employee not of the Interurban Company but of the independent contractor, who possessed full knowledge of the danger.