217 S.W.2d 681 | Tex. App. | 1949
Appellant is incorporated and operates under the provisions of Article 1528b, Vernon's Tex.Civ.St., known as the "Electrict Cooperative Corporation Act", which provides for incorporation of cooperative, non-profit membership corporations for the purpose of engaging in rural electrification in the manner set out in said statute. At the time of the accident here involved, appellant maintained an electric transmission line across the farm of I. H. Scoggins, in Parker County. Said line consisted of poles and two wires strung thereon, one several feet higher than the other. At one point on the farm the line crossed a private roadway running from one part to another of the Scoggins farm. At this point the lower wire was thirteen feet and three inches above the ground, and the upper wire was sixteen feet above the ground. The upper wire carried 6900 volts. The lower wire was grounded and presumably harmless.
At the time in question, a business firm known as the Morrison Tree Service, by agreement with the owner of the farm, was engaged in removing live trees from the *683 Scoggins farm for the purpose of transplanting them elsewhere. Appellee Clair was an employee of Morrison Tree Service. In the course of his employment, Clair undertook while standing on a truck belonging to his employer to raise the wires so that some trees loaded on the truck would pass under them. For such purpose he was using a wooden stick about five or six feet long, which had a fork at the end of it. In some manner which neither appellee nor his witnesses could explain, the wires slipped off the stick, and the live wire came into contact with appellee's body, causing him severe injuries.
The jury found that the maintenance of the wires at the heights above mentioned was negligence and a proximate cause of appellee's injuries, and found in appellee's favor on the issues of contributory negligence.
Appellant's contentions are presented under twenty-two points of error.
Appellant contends that the court should have instructed a verdict in its favor, or else should have rendered judgment in its favor notwithstanding the verdict, both on the ground that the evidence failed to show any negligence on appellant's part which was a proximate cause of the accident and appellee's resulting injuries, and on the ground that the evidence showed contributory negligence on appellee's part as a matter of law.
Before discussing these contentions, we shall discuss the applicability or not to this case of Article 1436, Revised Civil Statutes, which provides that certain electric lines shall be maintained at a height above the ground of at least twenty-two feet or be placed in underground pipes Appellant argues that said statute does not apply to the lines of corporations organized under Art. 1528b, cited supra, because of Section 36 of the last cited statute, which reads as follows:
"This Act is complete in itself and shall be controlling. The provisions of any other law of this State, except as provided in this Act, shall not apply to a corporation organized, or in process of organization, under this Act."
It is the rule that "where a corporation is organized under a special law as distinguished from corporations organized under general law, the rules governing corporations organized under the general law have no application where the special statutes provide the methods for the regulation and control of said corporations." Lone Star Building Loan Ass'n v. State, Tex. Civ. App.
The jury verdict convicts appellant of negligence in maintaining the wires at the heights above mentioned, in failing to inspect the line, and in having the poles too far apart, but the essence of each finding, in reality, is the negligence of appellant in permitting the wire to be too close to the ground at the place where the accident occurred.
Appellant vigorously argues that the evidence fails to show that its negligence, if any, was a proximate cause of the accident. It says that it could not reasonably have foreseen the accident which resulted in appellee's injuries.
San Antonio A. P. R. Co. v. Behne, Tex.Com.App., 231 S.W. 354, is sufficient authority for the proposition that liability for a wrongful act is limited to such injuries as are proximately caused by such wrongful act, whether the act be wrongful per se, as for the failure to comply with a statutory duty, or wrongful at common law, as being a failure to exercise ordinary care. The rules for determining proximate cause are the same in either case. In either case foreseeability or anticipation of injury is a necessary element of proximate cause. As declared in Carey v. Pure Distributing Corporation,
In our study of the case before us we have reviewed a number of cases where the questions of negligence, proximate cause and contributory negligence were related to the height at which a highly charged electric wire was maintained above the ground. Brief reference will be made to some of them.
Card v. Wenatchee Valley Gas Electric Co.,
Holden v. Cincinnati Gas Electric Co.,
Casualty Co. of America v. A. L. Swett Electric Light Power Co.,
Interstate Power Co. v. Thomas, 8 Cir.,
Jacques v. Dayton Power Light Co.,
Several of the reported cases involved contacts between hay derricks and overhead wires. It was held that jury questions were raised in Greenwood v. Eastern Oregon Light Power Co.,
Any question as to whether plaintiff is to be treated as either a trespasser or a mere licensee appears to be removed by the decision in Texas-Louisiana Power Co. v. Webster,
"A company maintaining electrical wires over which a high voltage of electricity is conveyed, rendering them highly dangerous to others, is under the duty of using the necessary care and prudence at places where others may have the right to go, either for work, business, or pleasure, to prevent injury." West Texas Utilities Co. v. Renner, Tex.Com.App., 53 S.W.2d 451, 454.
The cases cited in appellant's brief are distinguishable from the case on appeal.
Brush Electric Light Power Co. v. Lefevre,
The question for decision in Burnett v. Fort Worth Light Power Co.,
McGinty v. Texas Power Light Co., Tex. Civ. App.
Cloud v. Houston Lighting Power Co., Tex. Civ. App.
"It has been generally held in the decisions of both the courts of this State and other jurisdictions, that `The contributory negligence of one who receives an injurious shock or is killed by coming in contact with a sagging electric wire is generally a question for the determination of the jury.' 84 A.L.R. 694."
The facts in Howell v. Fort Worth Stockyards Co., 5 Cir.,
After reviewing carefully the evidence in the record, and comparing the facts with those in many reported cases, it is our opinion that we would not be justified in holding as a matter of law that there is no evidence to support the jury finding that appellant's negligence was a proximate cause of appellee's injuries.
Nor would we be justified in holding that the evidence shows appellee guilty of contributory negligence as a matter of law. The evidence shows that appellee was exercising some degree of care for his safety. The case is a proper one for application of the rule thus stated in Texas N. O. R. Co. v. Blake, Tex. Civ. App.
"* * * where there is evidence showing some care and the question is one of the sufficiency of the care, a jury issue is presented."
Several points of error complain of the manner in which various issues were submitted to the jury. We have carefully *686 considered the complaints, but do not find reversible error presented by any of them.
Complaint is also made because the court overruled certain special exceptions addressed to appellee's pleadings. The record as a whole does not show that appellant could have been prejudiced by such rulings.
It is shown without dispute that appellee received a substantial amount of money from the carrier of workmen's compensation insurance. The compensation carrier filed pleadings in the case, and was awarded the sum of $6409.63 out of the judgment recovered by appellee against appellant. Appellant complains of the submission of the twelfth special issue, which inquired if plaintiff necessarily incurred doctor and hospital charges for services rendered as a result of his injuries, and the thirteenth issue, inquiring as to the amount of such. The jury answered that he did, and found the amount thereof to be $950. The evidence amply shows that medical services were furnished appellee, that they were necessary, and that they were reasonably worth $950. Appellant's complaint seems to be that the medical bills were necessarily a part of the sum expended by the compensation carrier, for which it sought reimbursement under its subrogation rights, and that there is no evidence to show that appellee incurred liability for them. Appellant says that it is subjected to a double recovery for the item of medical expense. We do not find from the record as a whole that there has been a double recovery of the item of medical expense. Neither Issue No. 11, inquiring as to the amount of appellee's damages, nor the instruction accompanying it, included the element of medical expense. Issue No. 12 may not have been precisely correct, from a strictly technical standpoint, in inquiring as to the charges incurred by appellee, rather than as to those incurred and paid by the compensation carrier, but it is clear from the record as a whole that there was no double recovery, and it is clear that the compensation carrier is entitled to reimbursement for such expense. The error, if any, is not a reversible one, because appellant has suffered judgment for no more than it was liable under the law and the facts.
Appellant charges that the verdict of $25,950, including the medical bills, was excessive. Because of appellee's injuries, one of his arms was amputated just below the elbow. The other arm was injured to some extent, and appellee's physician testified that the percentage of loss of use to that hand was ten, or fifteen, or twenty per cent. Appellee was 48 years of age at the time of the trial. He was earning about $46 or $47 per week when he was injured. He had always done manual labor, and had no other way of earning a living. He had tried to work for Morrison Tree Service since the accident, but, to use his words, "He could not take it."
In our consideration of the appeal in Gillette Motor Transport Company v. Whitfield, Tex. Civ. App.
It is obvious from the authorities that appellate courts are reluctant to hold jury verdicts excessive, but it is clear that they have often recognized their duty to do so in a proper case. The courts have recognized the value of precedents with reference to the proper amount of damages to be awarded from particular injuries. 15 Am.Jur. 624. It is difficult, as many courts have said, to say in what amount a verdict is excessive. After carefully comparing the case before us with a large number of reported cases, we believe that we should suggest a remittitur of $5,000. Rule 440, Texas Rules of Civil Procedure.
If appellee will file a remittitur of $5,000 on or before the 20th day of January, 1949, the judgment of the trial court will be reformed accordingly, and as reformed will be affirmed; otherwise the judgment of the trial court will be reversed and the cause will be remanded. All parties may file motion for rehearing within fifteen days after the date we enter final judgment as above indicated.
Suggestion of remittitur accordingly this day entered.
Accordingly, as of this date, the judgment of the trial court is reformed by deducting the amount of $5,000 from the judgment recovered by appellee, and as so reformed is affirmed.
One-third of the cost of the appeal will be taxed against appellee Clair and two-thirds against appellant Tri-County Electric Cooperative, Inc.
Motion for rehearing may be filed by either party within fifteen days after this date.