Wendell v. Central Power and Light Co.

Court of Appeals of Texas

Wendell v. Central Power and Light Co.

677 S.W.2d 610, 1984 Tex. App. LEXIS 5744

CourtCourt of Appeals of Texas

DecidedJune 28, 1984

Docket13-82-362-CV

StatusPublished

Cited by45 cases

This text of 677 S.W.2d 610 (Wendell v. Central Power and Light Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Wendell v. Central Power and Light Co., 677 S.W.2d 610, 1984 Tex. App. LEXIS 5744 (Tex. Ct. App. 1984).

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OPINION

GONZALEZ, Justice.

This is an appeal from a take-nothing judgment in a wrongful death action. Appellants, plaintiffs below, are the wife and children of the deceased, who was electrocuted when his rig came into contact with a power line owned by appellee. Appellants filed suit against appellee and alleged various acts of negligence. The jury found all liability issues against appellant. On appeal, appellants assert that the trial court abused its discretion in denying leave to file a trial amendment and also allege error in: (1) the submission and refusing to submit certain special issues, and (2) the exclusion of certain evidence. We affirm.

Central Power and Light Company (CP & L) owned and maintained an overhead electrical distribution system in Cove Harbor, a marine industrial installation owned by Ar-ansas County Navigation District No. 1. The waterfront dock and wharf areas are leased to private individuals and companies, and in November, 1978, the major activity of such individuals and companies was related to off-shore exploration and production of petroleum products. Lynn Wendell, husband and father of the plaintiffs, was a part owner and general manager of Lynn Wendell Marine Service, Inc., the third-party defendant, a lessee at Cove Harbor.

The Navigation District provided at Cove Harbor on Lot 43 a boat launching ramp and an adjacent parking area for the use of the public and the lessees. Lot 43 covers approximately 46,604 square feet (1.070 acres).

At the time of his fatal accident, Lynn Wendell, his brother, Bill, and an employee, Kenneth Jackson, were taking a barge out [613]*613of the water, intending to position it in the parking area for routine repairs. Lynn Wendell was driving a winch truck to which was attached a trailer. The trailer had been backed down the ramp into the water, the barge positioned above the trailer and attached to the winch truck, then pulled out of the water on the trailer.

CP & L’s poles supporting its overhead power lines were located in the right-of-way bordering Lot 43. There were wooden poles with cross arms on which distribution lines were laid at a height of approximately 32 feet above ground. Rising from both sides of the barge at a point approximately 15 feet to the rear of the barge were metal spud poles, which were approximately 28 feet in length. With the barge on the trailer, the spud poles were approximately 4 feet off the ground; thus, the metal spud poles stood approximately 32 feet above the surface level.

On November 27, 1978, after the barge and trailer had been removed from the water and moved part of the way into the parking area, Lynn Wendell stopped the tow truck. After determining that insufficient space was available for access by others to the boat ramp, it was decided to go further southwest from the ramp. There was misting rain, and Lynn was using Bill as a spotter in order to determine the point at which he would stop. Lynn drove the winch truck forward and stopped the truck so that the barge was at the point where Bill was standing. Smoke was seen coming from the tires of the trailer. Both Bill and Jackson, who was on the barge, testified that Jackson lowered a pail of water to Bill who then threw the water on the tires. Bill was knocked to the ground, apparently by electrical shock. Jackson testified that he jumped on a piece of canvas in order to try to insulate himself from the deck of the barge.

As Bill was thrown to the ground, Jackson looked toward Lynn and saw that Lynn was lying on the ground to the left of the left door of the winch truck.

The contact with the overhead power line occurred at a point 36.5 feet northeast of the westernmost pole and at an elevation above the surface of 32.8 feet. The wire made contact with the spud pole at a point approximately 2 inches from the top of the spud pole.

The drawings admitted during the trial were many and varied, and the witnesses’ comments with regard to them were not always specific with regard to which exhibit was being discussed. However, from the entire record we have reconstructed a fairly accurate depiction of the relevant scene, as follows:

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