Southwestern Tel. Tel. Co. v. Sanders , 138 S.W. 1181 ( 1911 )

In appellant's brief many objections are urged to the court's charge; among others being the contention that the definition of negligence is erroneous because of the use of the words "careful and prudent person"; the contention being that the word "careful" should have been omitted. The words "careful" and "prudent" are often used to express the same thought, and we think they were so used in the court's charge, and that the jury was not misled thereby.

The court's definition of contributory negligence is also criticised; the contention being that after the word "defendants" the court should have added, "or either of them." We hold that the charge as framed was not affirmatively erroneous; and, if appellant desired more particularity therein, it should have prepared and requested a special charge supplying the alleged omission.

Many other objections are urged to the court's charge and to the refusal of requested instructions relating to appellee's right to recover against appellant. We have neither the time nor inclination to discuss them all in detail, and deem it sufficient to say that, after careful consideration, we rule against appellant, and hold that the assignments presenting those questions are not well taken and show no ground for reversal.

It is also urged in appellant's brief, and in oral argument of appellant's counsel, that error was committed in rejecting a requested instruction submitting to the jury the question of appellant's right to recover over against its codefendant, the Water Light Company. In response to that contention, counsel for the Water Light Company have pointed out some apparently tenable objections to the form of appellant's requested instruction upon that subject. However, we have not deemed it necessary to give much attention to the form of the refused instruction. In the first place, in no event could appellant recover over against the Water Light Company, if the plaintiff was not entitled to recover against that company. In other words, unless the Water Light Company was guilty of negligence, as alleged, it was not liable to either the plaintiff or its codefendant, and the verdict of the jury in favor of the Water Light Company, as against the plaintiff's demand, involves a finding that that company was not guilty of negligence. That finding, if supported by testimony, eliminates appellant's alleged right to recover over against its codefendant, and renders immaterial the fact that the alleged right to such recovery was not submitted to the jury.

In the next place, this case does not come within the exception to the general rule, which denies to joint tort-feasors any right of recovery against each other. The proof shows that on the occasion in question the plaintiff, as an employé of the Telegraph Telephone Company, was engaged, with other employés, in removing a dead wire stretched overhead upon poles. Upon the same side of the street and in line with appellant's telephone poles and wires, the Water Light Company had its poles and wires. The poles of the one company were located between the poles of the other, and the wires of the Water Light Company were located more than 20 feet above the sidewalk, and the telephone wires were more than 10 feet above the light wires. It had rained during the night previous to the plaintiff's injury, and there is testimony tending to show that it was drizzling rain and damp at or about the time the plaintiff and his associates went to work. Under the directions of a foreman, whose position constituted him appellant's vice principal, the plaintiff and two other employés were furnished a rope and directed to take down the dead wire in question. That work was to be performed in part in the following manner: One man would ascend a telephone pole, fasten the rope to the end of the wire, and another man would ascend the next telephone pole and pull the wire to that pole; the wire being held up by the man on the other pole and by the use of the rope attached to the end of the wire. When the end of the wire reached the man on the other pole, the man holding the rope would drop it, and a man would ascend another pole, and it would be passed on. Soon after the crew started to work on the occasion in question, it became necessary for the plaintiff, in pursuance of his work, to drop the rope, in order that it might be taken up by the man on the next post. When the rope was dropped, it seems to have become entangled with an awning and an electric light wire, so that it could not be pulled on through. The plaintiff testified, and we find as a fact, that it was a part of his duty to relieve the rope from that entanglement, and, in performance of that duty, he ascended a pole belonging to the Water Light Company and upon which the light wires were strung, and stepped off on a metal awning attached to a building, and caught the rope in one hand, whereupon he received an electric shock, which caused him to fall from the awning and sustain the injuries complained of.

The proof shows that the portion of the rope which was in contact with the electric light wire, and which plaintiff took hold of, was wet, which condition was caused by the rope having been dragged on the wet ground by the plaintiff and his fellow servants in the performance of the work referred to. It was also alleged and proved that at the place where the rope was in contact with the electric light wire the insulation upon that wire had become worn and defective, and it was charged by the plaintiff and appellant that the other defendant was guilty of negligence in permitting the wire to be in that condition. At that time the wire in question was charged with and carrying about 2,200 volts of electricity. The proof shows that an arrangement existed between the two defendants by which, if appellant had requested it, the Water Light Company would have cut off and removed the current of electricity in its wires, while appellant's employés were engaged in taking down and removing the dead wire from appellant's poles. And the plaintiff charged in his petition that appellant was guilty of negligence in not requesting the Water Light Company to cut off the electric current from its wires, before the plaintiff and his associates started work that morning, and the proof sustains that charge of negligence.

We also hold that the proof sustains the finding of the jury that the Water Light Company was not guilty of negligence as to the plaintiff in permitting the insulation upon its wire to become defective. The wire in question was located so far above the ground as to render it improbable that any one, other than the Water Light Company's employés, would come in contact with it at the place of such defective insulation; and if it preferred to allow it to remain in that condition, and to cut off the current of electricity while its own employés were working near that place, we think the jury had the right to hold that in so doing the Water Light Company was not guilty of negligence as to the plaintiff and other employés of appellant. The defective insulation referred to was near one of the poles belonging to the Water Light Company, but was not near a pole belonging to appellant; and we cannot hold as matter of law that the Water Light Company was required to anticipate that it would become necessary for an employé of appellant to ascend the post belonging to the Water Light Company and work in a position near the defective insulation upon the electric light wire; and for this reason we hold that the verdict of the jury acquitting the Water Light Company of negligence is sustained by the testimony.

But if the jury had found otherwise, and had returned a verdict for the plaintiff against both defendants, appellant would not have been entitled to recover over against the other defendant. There is a class of cases constituting an exception to the general rule, denying recovery by one joint tort-feasor against another, and that rule is well stated by Mr. Justice Jenkins, in Austin Electric Railway Co. v. Faust, 133 S.W. 449, as follows: "Where one party has by his negligence brought about a condition, and another party is guilty of negligence in not recognizing and acting upon such condition, and a third party, without negligence is injured by reason of the joint negligence of the two parties, he may recover against both, and as between the injured innocent party and the joint wrongdoer there will be no inquiry as to the comparative negligence of the two, and no apportionment or damages based on such comparison. In such case the negligence of both of the parties is the proximate cause of the injury to the innocent party. If the negligence of one was merely passive or was such as only to produce the occasion, and the other negligent party was the active perpetrator of the wrong, the former may recover against the latter. As between the two negligent parties, the negligence of the active perpetrator of the wrong would be the proximate cause of the injury to the party whose negligence did no more than produce the condition."

According to the test stated, if the Water Light Company had been cast in the suit, it may be that it could have recovered over against appellant; but no such right would have existed in behalf of the appellant against the Water Light Company. That company, in permitting the insulation upon its wire to become and remain defective merely furnished the occasion; but appellant was guilty of more direct and affirmative negligence in failing to take any steps to have the current of electricity removed from the electric wires before assigning the plaintiff to the work, and in so assigning him with the knowledge of the fact that the electric wires were heavily charged with electricity, and that a wet rope was a conductor of an electric current. The proof shows that immediately after the accident appellant's foreman procured the removal of the current from the electric light wires; and if he had exercised the same amount of care before the accident the plaintiff would not have been injured, and appellant would not have been called upon to respond in damages.

Counsel for appellant have cited cases which tend to hold that, if the jury had found in favor of the plaintiff against the Water Light Company, such finding would not have been set aside, and we have not held differently in this case. The question of that defendant's liability was a question of fact to be determined by the jury and we merely hold that the verdict in favor of that defendant upon the question of negligence vel non is not so contrary to the testimony as to justify this court in saying that it should be set aside and disregarded. The rule is that, when the minds of reasonable men might differ as to whether or not particular acts or omissions constitute negligence, the verdict of a jury deciding the question either way is conclusive.

Appellant contends that the plaintiff ought not to recover, because, so it is alleged, he was guilty of contributory negligence, first, in getting the rope wet, and, second, in catching hold of it after it got hung, when he knew it was wet, and knew, or ought to have known, that it was connected with an electric light wire highly charged with electricity, and knew, or ought to have known, of the defective insulation of that wire, and the fact that taking hold of the rope under the circumstances was dangerous. The plaintiff testified that he did not know that the electric light wire was at that time carrying a current of electricity; that he did not know that water or a wet rope was a conductor of electricity, and also stated that he did not know that the rope was in contact with the electric wire, nor of the defective insulation. His credibility was a matter for the jury to determine, and if they believed his testimony, as it seems they did, we cannot say that the verdict acquitting him of negligence is not supported by testimony.

In view of the facts already adverted to, and some other testimony contained in the statement of facts and in support of the verdict, we find (1) that the defendant the Water Light Company was not guilty of negligence; (2) that the defendant Telegraph Telephone Company was guilty of negligence as charged in plaintiff's petition; (3) that the plaintiff was not guilty of contributory negligence; (4) that his injuries were not the result of an assumed risk; (5) that as a direct and proximate result of the negligence of the Telegraph Telephone Company the plaintiff was injured, as alleged; and (6) that the amount of damages awarded him is not excessive.

In view of these findings, and what has already been said in reference to the law of the case, our conclusion is that the judgment ought to be affirmed, and it is so ordered.

In disposing of this case this court desires to publicly express its appreciation and approval of the manner in which the statement of facts has been prepared, and especially the index and marginal notes. In some cases submitted in this court, the statement of facts contains no index or other means by which to aid in finding the testimony of any particular witness, when a proper index would shorten the labor of the court very much in that respect. In this case the index shows where the direct and cross examination, and redirect and recross examination of each witness begins and ends; and on the margin of each page is noted the name of the witness, and whether the testimony is given upon direct or cross examination, and with these aids we have had no trouble in turning directly to the testimony of any particular witness. The statement of facts is typewritten, and a note at the end states that it was transcribed from shorthand by A. L. Monteith; and we desire to commend Mr. Monteith's work in that regard, and express the hope that all others charged with the duty of preparing statements of facts will see that they contain proper indexes and marginal notes.

Judgment affirmed.