McCoy v. Texas Power & Light Co.

239 S.W. 1105, 1922 Tex. App. LEXIS 647

• Court: Texas Commission of Appeals
• Decided: April 5, 1922
• Docket: No. 301-3612
• Status: Published

Opinions

RANDOLPH, J.

This suit was filed by plaintiff against the defendant company to recover damages for the death of the plaintiff’s minor son. The district court of Johnson county, before whom the case was tried, sustained a general demurrer to plaintiff’s first amended original petition, and, on refusal of plaintiff to amend, dismissed the case. This a'ction of the trial court was sustained by the Court of Civil Appeals for the Second Supreme Judicial District. 229 S. W. 623.

The proposition submitted to the Supreme Court by the application for writ of error is that the action of the trial court and ’Court of Civil Appeals was, and is, erroneous for the reason that the petition presents a case of actionable negligence against the defendant.

The material allegations of the petition setting forth the grounds of negligence relied on are as follows:

“That at the dates and time hereinafter alleged, the defendant was engaged in the manufacture, transmission, and sale of electricity and electrical power at various points in the state of Texas, including Cleburne and other points in Johnson county, and that for said purpose the defendant maintained and operated transmission lines running from Waco, McLen-nan county, Tex., by way of Cleburne in Johnson county, Tex., to Fort Worth in Tarrant county, Tex., and between various other points in said state; that said transmission lines consisted of steel frame towers, upon and to which were strung and attached what are known as high-tension wires, consisting of heavy copper wires, upon, along and through which electricity is transmitted from one station to another for the purpose of being distributed for local use for power, light and other purposes; that electricity is generated at the power stations of the defendant along its said lines and transmitted through said high-tension wires to its various substations along its said lines for the purposes above named.

“That the plaintiff is the owner of a tract of land adjoining the city of Cleburne in Johnson county, Tex., which said tract of land is and was at the dates hereinafter alleged used by him in connection with his business as a contractor and for the storage of materials used by him in connection with said business; that upon said tract of land so owned by plaintiff the defendant does, and did at the times hereinafter alleged, maintain one of the towers above referred to, said tower consisting of a framework constructed of steel bars or strips being about - feet high and about - feet square at its base, and becoming narrower as it approaches the top until it is about-feet square at the top of said tower, except a conical shaped cap on top of same, the upright pieces of said tower being fastened together and braced by other steel pieces or strips composing the braces holding said tower together; that at or near the top of said tower are extended certain cross-arms also constructed of steel, there being at’ the time hereinafter alleged three of said cross-arms extending out from said tower for a distance of about three feet on either side of same; that suspended from said cross-arms are certain insulators, and attached thereto are said large copper high-tension wires above described, there being six of said wires suspended from and attached to the cross-arms on said tower, three of the same being on either side thereof; that on one corner of said tower are attached steel spikes or projections from the steel pieces forming one of the upright corners of said tower, placed thereon for the purpose of forming a ladder upon said tower; that said spikes, together with the braces forming said tower, as above described, form a continual ladder from a point a few inches from the ground to the top of said tower.

“That at the dates and times hereinafter alleged the defendant transmitted upon and along and upon said wires above described a great amount of high-tension electricity, and that by reason thereof said towers constituted a very dangerous place; that the amount of the electricity in said wires was so great that it was unnecessary for persons to come in actual contact with the wires conducting such electricity in order to become affected thereby; but that there were certain zones and distances from said wires, within which, under certain conditions, the effect of said electricity could be felt and within which it was dangerous to human life to come.

“That said towers above described, together with said high-tension wires thereon above referred to, had been placed upon plaintiff’s said tract of land during the year 1913, and that such towers as a means of transmitting high-tension electricity had never been theretofore used upon plaintiff’s said property or in the vicinity thereof, or in the locality in which same was situated, and that the nature of said towers and the wires carried thereupon and the great force and danger incident thereto were not understood by the people of that locality, and particularly by children of tender years and lack of experience; and that the dangers incident to said towers without coming in contact with the wires thereupon by reason of the great amount of electricity being carried by said wires was not known to or understood by the public and particularly by children and persons of tender age and lack of experience living in the vicinity of said towers; that as constructed the said wires carrying said electricity were placed outside of said towers and some distance therefrom, and that the danger incident to coming within the space between said wires or within the zone of said electricity, without coming in direct contact with said wires, was not known or understood by the public in that vicinity and particularly to children and persons of tender years and lack of experience in that locality, and by the plaintiff’s son hereinafter referred to; that by reason of the peculiar constructions of said towers hereinbefore described and referred to and the ease of access to all parts of said towers by reason of said spikes constituting a ladder thereon as hereinbefore described, and by reason of the apparent security of same and the lack of danger in connection therewith by reason of the fact that said wires carrying said electricity were located outside of the said towers and some distance therefrom, and by reason of the lack of knowledge and information on the part of the public with reference to the great danger of coming within the zone of said high-tension electricity without coming in direct contact with the said wires, and by reason of the fact that said towers were novel and new structures, and by reason of the failure o'f the defendant to place any warning signs upon said tower or to in any wise advise the public of dangers thereto, as hereinafter alleged, said towers constituted an attractive nuisance and a constant invitation to the public and particularly to children and persons of tender years and lack of experience to climb said towers; that by reason of all of the matters hereinbefore alleged, and particularly by reason of their recent construction and use, and by reason of the fact that said ladder on said tower above described and referred to was left upon and exposed and easily accessible to children and the public generally, that said towers were on account of their nature and surroundings, especially and unusually calculated to and did attract children and persons of tender years and lack of experience and induced them to go upon said premises and climb said towers; that such towers were therefore an unusual attraction for children and other persons unacquainted with the dangers of using same as above set out and with the existence of the danger zones above referred to; that it was well known to the defendant at said time that said conditions existed and that said tower above referred to upon plaintiff’s said land was attractive to children and others, and that children were constantly and frequently using said towers and climbing upon same; that, understanding said facts, the defendant negligently and carelessly failed to use any means to prevent the use of said towers by children and other persons unaccustomed to said dangers and unacquainted therewith, and negligently left the steps on said towers easily accessible to children; and that the defendant negligently and willfully failed to place upon said towers or about same or adjacent thereto any warning signs of any character advising persons on or about said premises or attracted thereon by said towers of the dangers incident to using said tower or climbing same.

“That on, to wit, the 29th day of October, 1914, plaintiff’s son Wort McCoy was a boy about 14 years of age, and that on said date plaintiff’s said son went to the lot owned by the plaintiff above described, in the proper discharge of his duties, for the purpose of procuring some material belonging to the plaintiff, and was rightfully upon said premises for said purpose; that while upon said premises plaintiff’s said son, attracted by the condition of said tower, as above set out, and without any notice or knowledge of the probability of danger by reason thereof, and particularly of the existence of said danger zones as above set out, and having no notice or reason to believe that there was any probability of danger upon said tower unless ho came in actual contact with said wires above described, ascended said tower upon the steps or ladder upon the corner of said tower as above described, and that while so ascending same he came within said danger zone above described, and without touching any of said wires or coming in contact therewith that he received a great and severe electrical shock causing him to fall from the position in which he was standing upon said tower, and to catch upon some of the steel braces attached to said tower; that he was thereafter rescued and removed from said position and taken to plaintiff’s home, where he died upon said date, after great pain and suffering, as hereinafter described.

“That the defendant was negligent in constructing and maintaining said tower and transmission lines in the manner above described and in not properly insulating said wires to prevent the escape of electricity therefrom, and in permitting said electricity to escape from said wires in such a way as to become dangerous to the lives of people in and about said tower, and also in constructing and maintaining said tower in such a manner as to constitute an attractive nuisance, attraction and invitation to children and people of immature years and inexperience, and in not guarding said tower in such a manner as to prevent same from being used by children, and in not warning the public, and persons rightfully upon said premises, of the dangers incident to using said tower, and of the existence of said danger zone, above described, and of the probability of injury by coming within such zone, and in permitting electricity to escape from said wires and come in contact -with plaintiff’s said son, and of thereby inviting persons to use said tower and climbing upon same, and that the negligence of defendant in each and all said respects was the proximate cause of the suffering and death of his said son.”

The Court of Civil Appeals in passing upon the sufficiency of the allegations in the petition, after citing a number of authorities, say:

“The only difference.between the case at bar and some of the cases above cited is that plaintiff alleged that (1) no warning was placed on the tower informing the public or those contemplating climbing it of the dangers connected therewith; (2) that the tower was on plaintiff’s land; (3) on account of the high voltage capacity of the wires of the defendant, and the amount of electricity, transmitted thereon, certain 'danger' zones' extended beyond the wires, and that the deceased did not know, and the public generally did not know, of this fact, and that the hoy was killed by a shock received without his having touched any of the transmission wires.

“(1) By reason of the defendant’s right of way across plaintiff’s land, it had the l’ight to use the land immediately under the tower, and to this extent might be said to be the owner of the land occupied by the tower. If so, plaintiff’s son was a trespasser when he started to ascend the tower without permission of the defendant or his agents. The fact that the tower was a dangerous instrumentality would not place any liability upon defendant unless it owed a duty to the public generally and to the boy lulled specially. Therefore we come to the question whether or not the allegation that no warning had been placed by the defendant on the tower is a violation of a duty which the defendant owed to the public and to the plaintiff’s son.

“(2) Unless the tower, on account of its nature and surroundings, was especially and unusually attractive and did attract children, and did attract the youthful son of plaintiff, the defendant owed no duty to the public to warn it from climbing on the tower. City of Greenville v. Pitts, supra. And while the determination' of the question here" involved is not without difficulty, and has occasioned much thought and laborious study on our part, yet we are unable to distinguish the case here presented from other cases where children have climbed upon light poles or telephone poles and been injured.”

In sustaining the action of the trial court in dismissing the ease, the Court of Civil Appeals held that the plaintiff’s son was a trespasser when he started to ascend the tower without the permission of defendant or its agent. This is the rule as to adults but not the rule to be applied to children of tender years. However, as to adults this rule is limited in its application so as not to include those adults who are on another’s land by express invitation of the owner. In applying this limitation as to children, our courts are all but unanimous in holding that this invitation can be implied from the fact that there was something on the premises unusually attractive to children, placed and kept there by the owner with full knowledge that it is so attractive and does attract children of immature years; in which event the invitation is implied, and the child by his presence on the premises does not become a trespasser.

The petition in this case charges negligence on the part of the defendant in maintaining its tower in a manner to make it unusually attractive to children, and charges that, having done so, it did not do as it should have done, give, warning .to such children of the dangers they would encounter if they entered upon such premises; and also charges that the plaintiff’s son was attracted by such tower, and other appropriate allegations not necessary to repeat here, as that portion of the petition is set out above. ■

The plaintiff’s pleadings set out a description of the electric light tower that presents a picture wholly different from the ordinary timber telegraph or electric light pole and undoubtedly raises the question of whether or not it was an attractive nuisance, and one that the jury should have passed on under appropriate instructions.

We are not intending to extend the doctrine as set out in the “turntable” cases, but simply to insist that the doctrine therein stated is not limited to turntables, but is intended to be applied in all cases where children of tender or immature years are impliedly invited by an “attractive nuisance” to place themselves in a position to be injured. The petition in this case stating, in our opinion, a legal cause of action and stating such facts as entitled the plaintiff to a hearing on the merits, we hold that there was error in sustaining the demurrer and dismissing the case. In order that the authority for this holding may be apparent, we quote from the following cases:

In passing on the sufficiency of the plaintiff’s petition in the case of S. A. & A. P. Ry. Co. v. Morgan, 92 Tex. 98, 46 S. W. 28, the Supreme Court holds that as the petition did not show an invitation in that it neither alleged such fact nor that any turntable was unusually attractive; nor did it allege that there was any intent to injure within the meaning of the doctrine that, where one enters upon the property of another, the law imposes upon the owner the general duty imposed upon him by law as a member of society not to intentionally injure such trespasser, for those reasons that the general demurrer should have been sustained. But in arriving at this conclusion and in discussing the case the court say:

“If, however, the person entering upon the private property of another does so by invitation of the owner, a lawful relation is thereby established and the law imposes upon the owner a duty of care for his safety, the degree of ■which we need not consider here. Such invitation may he express or implied.”

Again, in the same case the court say:

‘'Where, however, the owner maintains upon his premises something which on account of its nature and surroundings is especially and unusually calculated to attract and does attract another, the court or jury may infer that he so intended and hence invited him. Where one exhibits on his own land, near where children are likely to he, pictures or unusually attractive machinery, etc., he can expect no •other result than that it will appeal to the known instincts of a child of immature judgment and cause him to venture thereon, just as the dog was drawn into the baited trap by the scent of meat. Townsend v. Wathen, 9 East. 277.

“Thus we see (1) that a general duty is imposed upon an owner as a member of society not to intentionally injure any one, and (2) that, if he invites one on his premises, an additional duty is imposed to use care to avoid his being injured; and that while the first •duty exists in all cases, and its violation may be shown by direct evidence or by circumstances, the second as well as its violation may be shown by direct evidence or by circumstances. Therefore if the party injured shows in his petition either that his injury was intentional, as above indicated, or that he was invited and subsequently injured by reason of the failure of the owner to use the care required of him by law, he states a cause of action'.

“In so far as the turntable case .and other cases involving injuries upon dangerous machinery or private property may be considered to" lay down the broad proposition that the owner can be held liable without proof of either an intent to injure or an invitation, as these have been above explained, we do not think them based upon sound principle.”

In the case of Evansich v. G., C. & S. F. Ry. Co., 57 Tex. 129, 44 Am. Rep. 586, Judge Stayton says;

“In no class of cases can this practical experience (of juries) be more wisely applied than in that we are considering. We find, accordingly, although not uniform or harmonious, that the authorities justify us in holding in the case before us, that, although the facts are undisputed, it is for the jury and not for the judge to determine whether proper care was given, or whether they establish negligence. Railroad Company v. Stout, 17 Wall. 664.”

In this case the implied invitation is expressly alleged, and further it is alleged:

“That it was well known to the defendant at said time that said conditions existed and that said tower above referred to upon plaintiff’s said land was attractive to children and others and that children were constantly and frequently using said towers and climbing upon same.”

Judge Williams, in the case of Stamford Oil Mill v. Barnes, 103 Tex. 413, 128 S. W. 376, 31 L. R. A. (N. S.) 1218, Ann. Gas. 1913A, 111, laying' down the general rule that the owner of the premises is not under any general duty in putting and keeping thereon buildings and other structures used by them in their legitimate business, to exercise care to make them! safe for the use of others, even .children, coming thefeon without invitation, authority, or allurement, says:

. “That is very different from the proposition that the owner, after he has constructed and is keeping upon his premises machinery, or other thing, with which, there is danger of contact resulting in injury to those coming thereon, may not make himself responsible for their coming and consequent injury by some course of condudt calculated naturally to bring it about. That he may is so well established that the proposition hardly needs to be stated; and hence, it is obviously true that there is a duty to abstain from such a course of conduct as that just stated, or else to take proper precaution to protect from injury those likely to be drawn into danger by it; and that the nonobservance of that duty, resulting in injury to one entitled to take advantage of it, is actionable negligence. Therefore it is, that the invitation, license or allurement of others to come upon one’s premises may give rise to a responsibility on his part which, without such invitation, license or allurement, would not exist, for injuries sustained by them from danger'ous things thereon against which he has not exercised ordinary care to guard them. It may be that that which an owner keeps upon his premises may, in itself, have such powerful attraction for children, or others incapable of exercising proper care for their own safety, as to give rise to the duty to which we refer; but that is not true of those things which the owners of property use in their ordinary businesses in the way in which men of ordinary prudence are accustomed to use them. All this is fully recognized in the opinions referred to, and in the Morgan Case it is shown that the decisions in what are known as the ‘turntable cases’ are not authority for the notion that any such general duty as that laid down in the charge under review rests upon owners of property, although they put it to uses which may involve danger to children or other persons who may come upon it without invitation, without authority and without enticement or allurement.”

We quote from the opinion of the court in S. A. & A. P. Ry. Co. v. Morgan, 24 Tex. Civ. App. 61, 58 S. W. 546, as follows:

“Appellant, by its first assignment of error, charges that the trial court erred in not sustaining a general demurrer to the petition in this case because said petition does not allege that the said Kosciusko was, at the time he was injured, on . appellant’s turntable by express or implied invitation of appellant. In the case of Railway Co. v. Morgan, supra, Judge Denman, after applying to cases of this character the seemingly harsh rule in no case will the owner of premises be held liable for injury to persons who are on his premises without his express or implied invitation, unless such injury is caused by the willful or intentional act of the owner, says: ‘Where, however, the owner maintains upon his premises something which, on account of its nature and surroundings, is especially and unusually calculated to attract, and does attract, another, the court or jury may infer that he so intended, and had invited him. Where one exhibits on his own land, near where children are likely to be, pictures or unusually attractive machinery, etc., he can expect' no other result than that it will appeal to the known instincts of a child of immature judgment, and cause him to venture thereon, just as the dog is drawn into the baited trap by the scent of meat.’ Measuring the allegations of the petition above quoted by the rule as laid down by Judge Den-man, we think the petition is sufficient, in that it alleges facts from which an implied invitation is established, and, in further compliance with Judge Denman’s opinion, said implied invitation is specifically alleged.”

It will be seen that Judge Pleasants interprets the decision of Judge Denman in the case of Railway v. Morgan, supra, as interpreted in this «pinion.

Further, as supporting our views we cite Little v. James McCord Co. (Tex. Civ. App.) 151 S. W. 835; Flippen-Prather Realty Co., v. Mather (Tex. Civ. App.) 297 S. W. 121.

It is true that the defendant is engaged in a legal 'business and in the service of the public, and that the public is interested in its successful operation. It is also true that, as such servants of the public, the public is Interested in seeing that its business is not unlawfully interfered with; but the public is yet more intensely interested in the preservation of human life and in seeing that these agents of commerce do not become carriers of death. It is true that science has succeeded in harnessing the tremendous power of electricity, and it is also true that no method has been discovered whereby this power can be confined to the wire which is its conductor, as it is utterly impractical to attempt to insulate the wires carrying the tremendbus voltage amounting to 30,000 or 60,000 volts. The public knows that it is dangerous to touch a live wire, but very few know that there exists danger of death from this powerful current by near approach to the wire so charged, without actually coming in contact with the wire. Only those who are engaged in the business, and those who have stood beside some inanimate form whose scorched and burned flesh bears mute evidence to its tremendous power, know this. Because it is a legal business, and in the service of the public should not, and does not, release the defendant from being subject to all the requirements of the law, that it conduct that business in such manner that will result in reasonable protection to those on its premises either on business or by invitation, express or implied.

We therefore recommend that the judgments of the Court of Civil Appeals and of the district court be reversed, and that this cause be remanded to the district court for trial. (