
    SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. SANDERS et al.
    (No. 2339.)
    (Supreme Court of Texas.
    Feb. 24, 1915.)
    1. Trial <©=>252 — Instructions — Applicability to Evidence.
    Where a telephone lineman received a shock which was transmitted through a wet rope which came in contact with an electric light wire, instructions submitting the issue of the master’s negligence in furnishing a wet rope, or allowing’ it to become wet, were not warranted, where the evidence showed that the rope was dry when furnished, and that its condition was caused by the acts of the lineman and his fellow servants.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 505, 506-612; Dec. Dig. <©=>252.)
    2. Appeal and Ebbob <©=>1066 — Review — Harmless Ebbob.
    An instruction submitting an issue of negligence not raised by the evidence is prejudicial.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 4220; Dec. Dig. <©£=>1066.]
    3. Master and Servant <@=>107 — Injuries to Servant — Safe Appliances.
    While a master must use ordinary care to furnish reasonably safe tools and appliances, and to keep them in repair, he is not liable for a defective condition in an appliance produced solely by the act of the employs or others.
    [Ed. Note. — For other cases, see Master and Servant, Cent. Dig. §§ 199-202, 212, 254, 255; Dec. Dig. <@=>107.]
    Error to Court of Civil Appeals of Third Supreme Judicial District.
    Action by G. L. Sanders against the Southwestern Telegraph & Telephone Company and another. A judgment for plaintiffs was affirmed by the Court of Civil Appeals (138 S. W. 1181), and the defendant named brings error.
    Reversed and remanded.
    A. P. Wozencraft, of Dallas, and Scott, Sanford & Ross, of Waco, for plaintiff in error. W. A. Morrison and T. S. Henderson, both of Cameron, for defendants in error.
   PHILLIPS, J.

The suit was instituted by G. L. Sanders, one of the defendants in error, against the Southwestern Telegraph & Telephone Company and the Cameron Water, Light & Power Company, to recover damages on account of personal injuries sustained by him while engaged in the service of the company first named, and resulted in a judgment in. his favor against that company alone.

At the time of his injury Sanders, with other employés of the telephone company, was engaged in removing a dead wire from its poles in the city of Cameron. The poles and light wires of the light company stood upon the same side of the street and in line with the poles of the telephone company; the poles of one company being located between those of the other, and the wires of the telephone company being more than 10 feet above those of the light company, and something over 30 feet from the ground. Sanders was engaged in the particular work under the direction of a vice principal of the telephone company, and, with two other employés, was furnished with a rope to be employed in the work, and instructed to remove the wire. The work was to be performed, in part, by one of the men ascending a telephone pole and fastening the rope to the end of the wire, which was to be pulled to the adjoining pole by another one of the crew, the rope being dropped when the ware reached the latter pole, and being then picked up and carried to the next pole, where the operation was repeated. In the progress of the work Sanders, while upon one of the poles, dropped the rope in order that it might be taken up by the employé on the next pole. In being dropped, it became entangled with an electric light wire of the light company beneath the telephone company’s wires and an awning. It was a part of Sanders’ duty to relieve the rope of this entanglement, and in doing so he ascended a pole of the light company, stepped off on the awning, and caught the rope with one of his hands, whereupon he received an electric shock causing his injury. The insulation upon the light company’s electric wire with which the rope had become entangled had become worn and defective. The rope had become wet in the course of the work, it having rained the .night before, which made it a conductor of electricity, and its contact in this condition with the charged electric light wire subjected Sanders to the current. An arrangement existed between the two companies whereby the light company, if it ha.d been so requested by the telephone company, would have cut off the current from its wires while Sanders and his coemployes were engaged in their work. Negligence was charged against the telephone company because of its failure to have the current cut off from the light company’s wires while the work was being performed, and on account of the wet condition of the rope; it being alleged in this latter connection that it had permitted the rope to be exposed to dampness and moisture the night before, and to be dragged through the wet streets of Cameron to the place of the work before it was begun, and-while in use in the progress of the work.

The statement we have made of the case is a summary of the findings of the Court of Civil Appeals.

The testimony appears to be without dispute that the rope was dry when furnished by the telephone company to Sanders and his coemploy és, and in this condition was safe for use in the work, though subjected to contact with a live light wire. It was found by the Court of Civil Appeals that its wet condition “was caused by the rope’s having been dragged on the wet ground by the plaintiff and Ms fellow servants in tlie performance of the work referred to.”

Among other instructions given the jury in the charge of the court was the following:

“You are instructed that, if you find and believe from the evidence that the plaintiff was in the employ of the defendant telephone company, and that it was part of his duty to go upon the telephone poles and handle and use the rope mentioned in the pleadings in this case, in the manner alleged in taking down said wires, and you further believe that said rope became entangled with an awning in front of a building adjoining to where he was required to work, and that it was a part of his duty to disentangle said rope, and that he went upon said awning in the course of his employment for the purpose of disentangling said rope, and that said rope had been permitted by said defendant telephone company to become wet, and that in such condition it would transmit a current of electricity, and that, without any fault or negligence on the part of the .plaintiff, the said rope did come in contact with one of the exposed wires of the defendant light company, and that by reason thereof a current of electricity was caused to pass through said rope into his body, and caused him to fall from said awning, and that he was injured thereby, then you are instructed, if you believe from the evidence that both of said defendants were guilty of negligence in the respects as herein submitted to you, and that both of their said negligent acts co-operated or combined to cause the injuries to the plaintiff, and that he was injured as alleged by him, then you are instructed, if you so believe and find, the plaintiff would be entitled to recover against both of said defendants, and you will in that event find a verdict in his favor against both of them. But, on the other hand, if you believe that the plaintiff was injured, but that his injuries were the direct and proximate result of the negligent acts of only one of said defendants, then you are instructed that he would be entitled to recover a judgment against only the said defendant whose negligent acts cause his said injuries; and in that event the other defendant will be entitled to go free.”

Another part of the general charge was to the following effect:

“But, on the other hand, if you believe from the evidence that the plaintiff was not guilty of contributory negligence, as hereinbefore defined, and that he was injured as alleged, and that his said injuries were not caused by, and did not result from, the risks ordinarily incident to his employment as hereinbefore defined, and you further find the defendant telephone company failed to exercise ordinary care, as here-inbefore defined, to furnish the plaintiff with reasonably safe appliances with which he was required to work, if he was so required, or that the defendant, or either of them, failed to exercise ordinary care to discover the exposed condition of the said electric light wire, if you believe it was exposed, and that thereby it became dangerous, and likely to divert a current of electricity, and that said current was diverted from said wire to said rope and into or through the person of the plaintiff, and that the defendant telephone company did furnish said wet rope to the plaintiff, if it was so furnished, and that said rope was likely to, and did, transmit said current of electricity into the plaintiff, and that the doing and failure on the part of said defendant, or either of them, to do, or perform, the things herein mentioned, if they did so do and did fail to so do and perform them, and that such doing and failure on their part, or on the part of either of them, constituted negligence, and that such negligence was the direct and proximate cause of the injury to the plaintiff, if any, you should find a verdict for the plaintiff.” '

To warrant the first of these instructions, it was necessary that there be some evidence that the wet condition of the rope was due to some act or omission on the part of the telephone company, since the charge necessarily assumed there was evidence “that the rope had been permitted by it to become wet.” To support the other, it was likewise necessary that there be some evidence that the telephone company furnished to Sanders a wet rope. Instead of there being any testimony to such effect, the undisputed proof appears to have been that the rope, when furnished by the company to Sanders and his coemployés for their use in the work, was dry and perfectly safe for the work, and that its becoming wet was due solely to the subsequent act of Sanders and his fellow servants in dragging it upon the wet ground, in the absence of the vice principal, and of which the latter had no knowledge. In this state of the evidence the wet condition of the rope could not be attributed to any fault of the company, and an instruction which permitted its being held responsible for such condition was plainly unauthorized and prejudicial.

It is equally clear that the submission of the issue of the company having furnished Sanders with a wet rope was erroneous; there being no evidence that it had done so.

It is the duty of a master to use ordinary care to provide the servant with reasonably safe tools and appliances for the work in which he is engaged, and to use like care to keep them in repair. But it would be the announcement of a manifestly harsh and unjust rule to say that, where he has furnished his employé with a safe appliance, in a safe condition when furnished, he is nevertheless liable for a defective condition, though produced solely by an act of the employé or others, for which he is not responsible and of which he had no knowledge, and which condition he had no opportunity to remedy.

The judgments of the district court and the Court of Civil Appeals are affirmed as to the judgment rendered in favor of the Cameron Water, Light & Power Company, and are reversed as to the judgment in favor of G. L. Sanders against the Southwestern Telegraph & Telephone Company, and the cause is remanded for further trial as between the last-named parties. 
      <g=>3Tor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     