1 S.W.2d 513 | Tex. App. | 1927
This is a suit instituted by Tennie Simmons, mother and next friend of Howard Simmons, to recover damages for him from appellee, alleged to have arisen through the negligence of appellee in permitting a broken electric wire to hang over the sidewalk in Terrell, and to pierce the eyeball of the right eye of said Howard, destroying the sight. This is a companion case to that instituted by Tennie Simmons, for herself,
The court instructed a verdict for appellee giving as the grounds for such action:
"The plaintiff in this case having alleged the cause of the injuries complained of were due to a hanging wire belonging to the defendant company projecting over the sidewalk over which the plaintiff was traveling, and that the wire was broken and permitted to hang down because the wires were old, or because of their weight, or because limbs of trees brushed against the wires, or because the wires were not properly supported, or from some other reasons to plaintiff unknown. The proof in this case fails to show that the defendant company knew that the wire was broken and hanging down over the sidewalk, or that the company knew that the wires were old to cause them to break, and there is no proof that the wires were old, and that the company knew that limbs of trees brushed against the wires and caused them to break, or that the company knew that the wires were not properly supported, and there is no proof that they were not properly supported. The plaintiff has not alleged in his petition that the damages, if any, were occasioned by any negligence on the part of defendant company by virtue of faulty construction of its line, or knowledge of any defect which caused injuries."
While we are of opinion that appellee was charged with knowledge of the age and condition of its wires and with knowledge that they were so located that limbs of trees might injure them, and with the knowledge of the weight of the wires and the strength of their supports, still, we agree with the trial judge that the evidence fails to show that appellee knew that the wire was broken and hanging over the sidewalk, or that the wire had been so hanging a sufficient time to charge appellee with knowledge of the condition of the wire, and that the proof failed to show that the wires were old or that the limbs of trees probably broke the wire, or that the wires were not properly strung and supported, and that the evidence failed to show any negligence upon the part of the appellee. There was no evidence that there was a broken wire hanging down over the sidewalk except that of appellant and his mother. The wire must have broken, if it did break, between 10 and 11 o'clock in the morning, because appellant and his mother swore that it was not hanging over the sidewalk when they passed about 10 o'clock, and the accident occurred when they went back about 11 o'clock. The wire may have broken and fallen at the instant it struck appellant, for the evidence shows it was not seen until it struck appellant. It was not charged with electricity, and consequently the eye was not injured by an electric current. There was no circumstance shown that would tend to charge appellee with knowledge of a break in the wire.
The evidence as to the manner in which appellant was hurt is utterly incredible. He swore that "the wire was hanging down four or five feet" and that he did not see it when it struck him. He stated that the wire struck so hard that he had to pull it out of his eye. It is contrary to natural laws that a hanging wire would pierce the ball of an eye, simply from the impact with the head of a boy who had on a cap and was walking with his mother along the sidewalk. It was not claimed that the wire was crooked at the end so that it would enter the eye and pierce the eyeball. It did not scratch, but pierced the eye ball. The doctor swore the ball was pierced from the side of the eye nearest the ear, and therefore was not in front. No other witness, except the mother, testified that a wire was hanging over the sidewalk. The whole account of the injury is unreasonable and improbable.
*515The judgment is affirmed.
