
    SAN ANTONIO GAS & ELECTRIC CO. v. OCON et al.
    (Supreme Court of Texas.
    April 10, 1912.)
    1. Eleotbicity (§ 14’) — Injuries Incident to Production and Use — Care Required in General.
    Electricity being a silent, deadly, and instantaneous force, one who uses it for profit is bound to exercise care corresponding to the dangers incident to its use.
    [Ed. Note. — For other cases, see Electricity, Cent. Dig. § 7; Dec. Dig. § 14.]
    2. Electricity (§ 17) — Injuries from Location oe Wires — Violation of Ordinance-Liability.
    An electric company agreed with a committee of citizens to furnish light’free for a park celebration, if the committee would obtain the city’s permit and do the wiring necessary to connect with its wires; and the committee’s contractor attached a wire to the company’s pole, 25 or 39 feet above the curb, and fixed a switch on the pole, to which the company ran a connecting wire. The wire running from such switch across the street to the park sagged and hung less than 25 feet above the street, in violation of a city ordinance, of which condition the company had no actual knowledge; and an umbrella, attached to the seat of a wagon which plaintiff’s intestate was driving under the wire, came in contact with it, at a time when it was not carrying any current, and he was thrown to the ground and fatally injured. Held, that the company was not legally bound to see that the wire was properly strung, and had violated no duty owed to the public or to plaintiff’s intestate; and hence was not liable.
    [Ed. Note. — For other cases, see Electricity, Dec. Dig. § 17.*]
    Error to Court of Civil Appeals, Fourth Supreme Judicial District.
    Action by Mrs. Senovia Ocon and others against tile San Antonio Gas- & Electric Company and others. Judgment for plaintiffs affirmed by tbe Court of Civil Appeals (130 S. W. 846), and tbe San Antonio Gas & Electric Company bring error.
    Reversed and rendered.
    Ogden, Brooks & Napier, of San Antonio, for plaintiff in error. Tbad T. Adams, of San Antonio, and A. F. W. Maemanus, of Pine Bluff, Ark., for defendants in error.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes.
    
   DIBRELL, J.

Tbis was a suit by tbe widow and children of Jacinto Ocon against the San Antonio Gas & Electric Company, Martin Wright, and tbe city of San Antonio to recover damages for bis death, alleged to have occurred by tbe joint negligence of said defendants.

It was alleged by plaintiffs that, while Ja-cinto Ocon was driving a delivery wagon along a public street in the city of San Antonio, tbe umbrella attached to tbe seat of tbe wagon came in contact with a wire stretched across tbe street, and thereby tbe seat on which be was riding was pulled off, and he was thrown to the ground and received injuries from which be died. It was also alleged that tbe wire was stretched across tbe street by the defendant Martin Wright, an electrical contractor, for the defendant San Antonio Gas & Electric Company, and when completed was turned over to the Gas & Electric Company.

The grounds of negligence set out and relied upon as relating to the wire were that it was improperly insulated, improperly strung on the poles in such a way as to make it a constant danger to the traveling public, and its manner of stringing was, in violation of the ordinances of the city, less than 25 feet above the curbing. Greater particularity in stating plaintiffs’ pleadings is not essential to a full understanding of the material issues involved.

The city of San Antonio was dismissed from the suit, upon the ground that a municipal corporation could not be liable for an injury resulting in death. Martin Wright, among other things, pleaded specially the statute of limitations, upon which the jury were instructed by the court to find in his_ favor.

The San Antonio Gas & Electric Company, among other pleas, not necessary to mention, pleaded that it was not responsible for the death of Ocon, because the wire mentioned in plaintiffs’ petition was neither constructed, owned, nor controlled by it.

The cause having been tried with the assistance of a jury, verdict was rendered for-plaintiffs for $5,000 and duly apportioned among those entitled i to receive it.

The material facts developed in the case are practically without dispute, and show that in September, 1907, the Mexican people of San Antonio, wishing to celebrate some event of interest to them, appointed a committee to confer with the defendant San Antonio Gas & Electric Company and arrange for lighting San Pedro Park, where the celebration was to take place. The committee conferred with the general manager of the Gas & Electric Company, and it was ‘agreed that this company would furnish, free of charge, the electric current for lighting the park, if the committee for the Mexican people would put up the wiring and provide everything for the reception of the current. In pursuance of this understanding, the wire with which the umbrella on deceased’s wagon came in contact was erected by the defendant Martin Wright, through one of his employes, at the request of and for the committee for the Mexican celebration; and he was paid for the work by this committee. The committee directed the electrical contractor where to place the wires, and all poles and other'material were supplied, either by the committee, or the electrical contractor; and the San Antonio Gas & Electric Company gave no instructions as to where or how to place the wires, and had nothing to do with placing the wire across the street. In preparing the wires for receiving the electric current, the contractor for. the Mexican society attached one to the pole of the Gas & Electric Com: pany, extending across one of the public streets of the city. This was the wire upon which the umbrella attached to the deceased’s wagon was caught, and by which he was thrown from the wagon, receiving injuries from which he died. Where this wire was attached to the Gas & Electric Company’s pole, a switch was there placed by the contractor for the committee; and the point where the wire in question left the pole was 25 or 30 feet above the street curbing. After this wire was attached to the pole and a switch placed there by the committee’s contractor, the Gas & Electric Company did nothing more than to run a connection from the transformer on its pole down to the side of the pole to the point where the committee had directed a switch placed, and by the means of a short wire connect with the top of such switch. When the wire was thrown down, it was repaired by Martin Wright, the electrical contractor, and after the celebration was over, having lasted for three days, the electrical contractor had his employes take the wires down and return them to his shop. The current furnished by the Gas & Electric Company was connected with the wire in question by means of throwing the switch which was placed on the pole by the defendant Martin Wright; and this switch was thrown each night by the park policeman, at the instance of the celebration committee, in order to secure the current. At the time of the accident, the current was not on the wire complained of. The Gas & Electric Company received no compensation for furnishing the current. The facts do not disclose how long the wire across the street,' from which contact with the wagon caused the death of Ocon, was in a sagging condition ; but it was shown that on the night previous the wire was up and properly constructed.

The question involved in this case does not embrace the liability of defendant Gas & Electric Company for damages resulting from contact with the dangerous and potent force of an electric current. The uncontra-dieted facts exclude that issue, and we are circumscribed to the sole question of its liability for damages resulting from contact with a plain wire, strung, owned, and controlled by others than the Gas & Electric Company. The only connection with the wire in question attributable to this company is its tacit or implied consent that the wire might be attached to its pole, for the purpose of furnishing the owners or lessees of 'the wire the electric current for temporarily lighting the park for a celebration conducted by such owner or lessees.

The evidence discloses, without dispute, that the wire in question was, in the beginning, properly strung; and that its sagging condition occurred afterwards. It was not shown by the evidence at what time the defective condition of the wire occurred, or how long it had remained in such condition, or that the condition the wire was in at the time Ocon’s umbrella came in contact with it was known to this defendant. We think that at the time the implied consent of this defendant to its codefendant, Martin Wright, or ,the committee for the Mexican celebration, was given to attach the wire to its pole, in so far as any injury might result from such wire independent of the electric current, by reason of its improper construction, this defendant was not legally bound to see that the wire was properly strung; and, in the absence of actual knowledge that it was improperly or defectively strung, the Gas & Electric Company could presume that those who were in charge of stringihg the wire, and for whose benefit it was strung, would perform the work in a proper manner and in compliance with the city ordinances. We do not wish to be understood as holding that this rule is applicable, in so far as it relates to the electric current and as to injuries received by third parties from such current, for we think a different rule applicable in such ease, but solely upon the ground that “electricity is a silent, deadly, and instantaneous force; and one who uses it for profit is bound to exercise care corresponding to the dangers incident to its use.” Rowe v. Taylorville Elec. Co., 213 Ill. 318, 72 N. E. 711; McLaughlin v. Louisville Elec. Co., 37 S. W. 851, 100 Ky. 173, 34 L. R. A. 812; Cooley on Torts, 1492.

Nor do we wish to be understood as holding that, if the defective condition of the wire was known to the Gas & Electric Company, the duty did not devolve upon it to see that the wire was repaired or detached from its pole. However, the doctrine of knowledge or notice from the exercise of ordinary care cannot, we think, be invoked in such case as to the defective condition of the wire, independent of the deadly current; but actual notice to the Gas & Electric Company of the wire’s defective condition must have been shown. This arises from the fact that the Gas & Electric Company was under no obligation to repair the wire of its codefendant, or to see that the wire was properly strung, except when the electric current was on, and where the injury resulted from such current. Again, we do not wish to be understood, in this connection, as holding that actual knowledge of the wire’s sagging condition on the part of the Gas & Electric Company would, as a general rule and under ordinary circumstances', where others were permitted simply to attach their wire to its pole, as in this instance, create a liability against such company ; but we think liability in case of actual notice of the defective condition of the wire would arise only in a case like the one under consideration, where the injury was inflicted upon one using a public thoroughfare. Safety to one in the use of a public street or thoroughfare demands the application of a different rule than should be applied to places of a private or less public character. This would seem to be just, since, under such circumstances, the company is authorized to detach such wire from its premises; and we think that, even though there was not primarily any obligation imposed upon this company to use any care to see that the wire was properly strung without respect to the electric current, and therefore, strictly speaking, the doctrine of negligence is not applicable, yet such obligation would arise from its continued consent to the use of its pole after knowledge of a condition of the wire as a constant menace of danger to the safety of public travel.

We venture to assert that no text-book or case can be found that carries the doctrine of negligence further than we have here, announced it; but we do not think we have gone further than justice and expediency demand. It is clearly the right of a public service corporation, obliged to exercise its functions for the convenience and benefit of the public, to demand the detachment of a wire negligently or defectively strung to its pole, when notice of such defective condition of the wire has been received; and the failure to act with reasonable promptness under such circumstances will make its negligence concurrent with that of the owner of •the defective wire attached to its pole, when the safety of public travel is endangered. This rule, however, do^s not affect the present case, since it was not shown that the Gas & Electric Company had notice of the sagging of the wire.

There is no difference of opinion as to a number of legal propositions presented in support of the icause of action here sought i to be maintained against the Gas & Electric Company; but we do not think they are in the remotest degree applicable to the facts of the case. For instance, it is not denied that, where a party sustains an injury from the concurring negligence of several, he may recover therefor agamst all or either of them. But what fact is there in this case that tends to show that there was any negligence or concurring negligence on the part of the Gas & Electric Company tending to cause the injuries of Ocon from which he died? It cannot be said the negligence arising from the sagging wire across the public street, in violation of the city ordinances, was its neglect, for the most jjotent reason that the wire was not so strung or so allowed to sag and remain in that condition across the street by the Gas & Electric Company, sjnce the undisputed facts show that the company had nothing to do with the stringing of the wire, nothing to do with placing it across the street, no control over the wire, no ownership of or interest in the wire, nothing to do with securing the permit from the city to string the wire, and no notice of its condition. In short, the evidence fails wholly to show there was any duty on the part of this company that it owed to the deceased or the public, the violation of which was shown in order to constitute negligence. It was not the duty of this defendant to repair the defective wire, or to in any manner interfere with its position, in the absence of knowledge of its condition.

In order to impute negligence to this defendant, it was necessary to show that it violated some duty it owed to the public and to the deceased as a component of the public or to him personally, by reason of some other connected relationship. Unless the death of Ocon was due to the breach of some duty this company owed him, there could be no recovery against it la this action. Negligence is imputable only for a breach of an existing duty due by the person sought to be held responsible. San Antonio Edison Co. v. Dixon, 17 Tex. Civ. App. 320, 42 S. W. 1009; 15 Cyc. 475; 1 Thompson on Neg. § 3.

To hold that the care devolved upon such public service corporation as the Gas & Electric Company to look after the construction and maintenance of wires installed by or under the direction of private persons or concerns, without reference to their adaptability to safely carry the electric current, would impose upon such companies burdens so great as to clearly render their existence, and hence their service to the public, impracticable, if not impossible. It is not necessary to enlarge upon the disagreeable consequences of such a ruling; but it should be enough to isay that such a doctrine is repugnant to reason and justice. It would not only make Cain the keeper of his brother Abel, but would impose upon him a vicarious atonement for the sins of his brother, whether of omission or commission.

We have been cited by learned counsel for defendants in error to a number of cases thought to bear upon the question presented by the facts of this ease; but we are not able' to appreciate their analogy to the case at bar. The case of Wehner v. Lagerfelt, 27 Tex. Civ. App. 520, 66 S. W. 221, was for damages received from an electrical shock under the following circumstances: “One of the electric wires,iso maintained and operated by appellants, was suspended from poles along the north side of San Antonio street, one of the principal thoroughfares of the' city of El Paso, and charged with a strong and dangerous current of electricity. Below and near this wire was suspended from the same poles one that was uninsulated, the lend of which was broken and hanging within a foot or two of and above the sidewalk on the north side of said street. The insulation of the upper wire, through which the strong electric current was conveyed, was worn and abraded. In contact with one of its abrasions was a small bale wire, which extended therefrom, and rested upon the uninsulated and.broken wire beneath, thereby conveying to and charging it with a strong and dangerous current of electricity from the defectively insulated wire above, thus rend-éring the uninsulated hanging wire very dangerous to persons passing along said street and sidewalk. This dangerous condition of the wire existed on the day of the injury, and had been maintained continuously for about two weeks prior to and up to that time, and, by the exercise of ordinary care could and should have been known by the appellants. The plaintiff, Dagmer Lag-erfelt, a little 10 year old girl, while walking along said sidewalk in ignorance of the danger, came in contact with the uninsulated hanging wire, charged with a strong and dangerous current of electricity in the manner and by the means aforesaid, and was seriously and painfully .injured.” The mere statement of the case makes apparent its lack of similarity to the case under consideration. The wire permitted to hang from the defendant’s poles in that case was heavily charged with an electric current, and was within one or two feet of the sidewalk and from the ground. This was clearly negligence, notwithstanding the piece of wire belonged to another. The wire itself was uninsulated, and' so was the wire of the defendant in that ease connected with the hanging wire defectively insulated and heavily charged with a dangerous current. The Court of Civil Appeals correctly held the defendant chargeable with the knowledge of the condition of the wire; but such holding throws no light upon the case at bar.

The case of Washington Gas Light Co. v. District of Columbia, 161 U. S. 316, 16 Sup. Ct. 564, 40 L. Ed. 712, was a suit by the District of Columbia to recover judgment for an amount it had been required to pay Marietta M. Parker for injury she received by stepping into an open gas box, constructed-in the sidewalk. Mr. Justice Wliite, who wrote tlie opinion in that case, states the evidence to have been that the gas box in question was placed by the Gas Company in the center of the sidewalk in the city of Washington in 1873, it being one of the customary appliances used by the company when connecting its main with a house where gas ■was to be used; that this box consisted of an iron cylinder, 4 inches wide and 2% feet deep, with an iron cover. The box served the purpose of affording access to a cock in the service pipe, which later conducted the gas from the main of the company to the gas meter in the house; whence it was carried to the burner. By means of this box or cylinder, on removing the cover therefrom with a key made for the purpose, the cock in the service pipe could be reached, and the gas be thus turned on or off from the house. This box was placed in the sidewalk so as to be level with its surface, and the cover thereon was held in place by lugs, which slipped into slots made for the purpose. The box was put in by the company in accordance with its general method used for intro-'dueing gas, and in compliance with the form of structure pointed out by an ordinance of the board of common council of the city of Washington. The gas box was put in at the request of the owner of the premises in front of which it was situated. It was constructed by the gas company, which furnished the materials, and worked as any other plumber would have done, being paid therefor by the owner of the premises. In order to do this work, the gas company had first' to obtain from the city permission to open the street to make the requisite connection, and paid to the district a permit fee of one dollar. When the gas box was first constructed, it was done in a proper manner; but at the time of the injury, and for some time before, was out of repair and in a defective condition. It was shown that in case the owner of the premises ceased to take gas the box became the property of the gas company; and that company never permitted the owner of the premises to have a key to the box, and the company exercised exclusive control, maintenance, and supervision of the gas box. It will be observed from the statement of the case that the duty of the gas company was to maintain the gas box over which it had exclusive control, from which fact it logically follows that a failure to do this in a proper manner would constitute negligence from which liability would insue. The case is in no essential particular analogous to the one under consideration, and cannot serve as a guide in its disposition.

The two cases thus analyzed are the ones ¡upon which • counsel ■ placed the greatest stress, and it is not essential to review the «others. In fact, we have been unable to find any case in the books, and we have been cited to none, that are similar in the facts upon which the recovery in this case is sought. Likewise the text-books we have consulted are barren of authority relevant to the subject. The case has been given careful consideration, and we are unable to find substantial legal grounds upon which to approve the judgment of the Honorable ■Court of Civil Appeals in affirming the judgment of the lower court.

The cause will therefore be reversed and here rendered for the plaintiff in error, San Antonio Gas & Electric Company; and it is so ordered.  