Texas-Louisiana Power Co. v. Webster , 1933 Tex. App. LEXIS 633 ( 1933 )

LOONEY, Justice.

Doc Franklin Webster was killed by coming in contact with appellant’s transmission line that was broken down, by a stroke of lightning, at a point two or three miles south of Bells, in Grayson county. This suit was instituted by his father, R. B. Webster, for himself and on behalf of the other beneficiaries, to wit, Mrs. R. B. Webster, mother, Vera Webster, widow, and Stella May Webster, posthumous daughter.

The material facts are these: Doc Webster, with his wife Vera, Tom Webster, a brother, and Bowen Daniels, a brother-in-law (wife’s brother), for about two weeks pri- or to the tragedy mentioned, had been traveling in an automobile through the central and northern portions of Texas hunting work, but, on account of excessive rains, failed to secure same, and were returning to' West Texas, where they resided, reaching Bells in Grayson county Monday night May 13, 1929, intended to go west through 'Sherman, but, because of damaged ■ roads, detoured south through Whitewright, leaving Bells near 11 o’clock p. m., and had reached the corner of the Carter farm when the car ceased to operate and stopped. The Carter farm was rented to Mr. Mack Atnip of Bells, but, at the time, was resided upon and cultivated by a negro named Frog Jackson. When the car stopped, it was raining some, was dark, and the ground very muddy. Appellant’s power line is constructed through this farm, from the north, on a southwesterly course. Early that morning, between 6 and 7 o’clock, during a severe electrical storm that prevailed over that section, lightning struck and broke down two adjacent poles of the transmission line, causing the wires to sag, at the lowest point, about 3 feet above the ground, but the Insulation and attachment of wires to cross-arms were not disturbed. When the car stopped, the parties thought they were out of gasoline, so Tom Webster and Bowen Daniels took an empty can, left Doe Webster and wife, Vera, in the car, and started on a hunt for gasoline. They entered the Carter inclosure from the highway, crossed over a narrow lane into a field recently planted to cotton, passed along the side of the lane fence around to a barn where, as indicated by the circumstances, they procured gasoline from an automobile belonging to the negro, and, returning to their car, evidently became confused, took the wrong direction, going-northeast through the cotton land, instead of southeast, contacted with the sagging transmission line of appellant and were killed. When the brother and brother-in-law left Doc and his wife to go after gasoline, Doc sat under the wheel and his wife by his side, and, being worn and tired from travel, she reclined with her head in his lap and was soon asleep, but, aroused by her brother’s voice calling “Doc,” she saw a long blue flame, heard a noise as of something frying, again heard her brother’s voice saying “Hurry up,” saw another blue flame, and heard the same frying sound. In answer to the calls of Bowen Daniels, Doe left his wife in the car and went in the direction of the voices and flames, and within a short time the witness saw the same manifestation of flame and heard the same frying sound as before. The bodies of the three young men were found next morning under the sagging transmission line at a point about 200 yards from the car and from 100 to 150 yards down in the field from the house. Other pertinent facts will be mentioned in the course of the discussion.

The grounds of negligence specified are: (1) That appellant violated article 1436 in having its electric line at a height less than 22 feet above the ground; (2) that it caused and permitted its wires to sag and fall and remain within 3 feet of the ground; (3) that it failed to place a watchman at such place to warn persons of such condition; (4) that it failed to cut off the current of electricity from said lines; (5) that it failed to keep the wires from sagging and falling near the ground in a position to strike and come in contact with persons who-might pass or be about it.

Appellant’s answer contains a general demurrer, general denial, plea of unavoidable accident, plea, that the accident and injury complained of were the result of an act of God, to wit, a stroke of lightning, also that the negligence of deceased was a proximate or contributing cause of the accident and death, and a plea- that deceased was a trespasser upon the premises at the time. The demurrer was overruled, the case was submitted to a jury, and, after proper definitions of negligence, ordinary care, and proximate cause, the issues of negligence submitted were: The act and conduct of appellant in permitting its wires to remain low and near the ground; in failing to have a watchman at the time and place in question to prevent any one from coming in contact with the low sagging wires, and in keeping its wires charged with a powerful current of electricity while low and sagging near the ground. Each issue was found by the jury to be actionable negligence, and, further, that Doc Webster was not guilty of negligence in going into the field at the time and place in question and in the manner that he did. The jury assessed $10,000 damages in favor of Vera Webster, the widow, $10,000 in favor of Stella May Webster, the posthumous child, $2,250 in favor of Mrs. R. B. Webster, mother, and $750 in favor of R. B. Webster, father of deceased. Judgment was rendered accordingly, from which this appeal is prosecuted.

Ordinarily we would not feel called upon to discuss each of the numerous propositions, in which appellant translates the assignments relied upon for reversal, but, in deference to the elaborate brief and exhaustive discussion of these questions by appellant’s counsel, each proposition will be discussed.

Appellant does not contend that the findings of the jury are unsupported by evidence, but, in proposition 1, urges that the court erred in overruling its general demurrer to appellee’s petition, because its allegations reveal the fact that deceased was a trespasser upon the premises at the time of losing his life, hence appellant owed him no duty; and, in propositions 2 and 3, contention is made that the court erred in refusing, on request, to instruct a verdict in its favor, because the undisputed evidence shows that, at the time deceased met death, he was trespassing upon the premises. These propositions present appellant’s main contention.

A power corporation, being quasi public in character, is charged by statute with the performance of certain general duties. Authority is conferred upon these corporations to generate, transport, and sell electric current,. to construct, maintain, and operate plants, substations, machinery, apparatus, pipes, poles, devices, and such- arrangements as may be necessary to operate lines between different points in the state, and to own, hold, and to use such lands, right of way, easement, franchise, buildings, and structures as may be necessary (article 1435, R. S. 1925), and to acquire, by condemnation, lands, right of way, easements, and property, and erect its lines over and across any public road, railroad, interurban or street railroad, the right of way thereof, canal or street, etc., specially .providing, however, that “such lines shall be constructed upon suitable poles in the most approved manner and maintained at a height above the ground of at least twenty-two feet. * * * ” Article 1436, R, g. 1925.

Obviously, one of the purposes of the quoted provision of the statute is to protect from injury all persons while using the premises in a manner consistent with the easement rights of the power company. What are these rights? The generally accepted doctrine is that the owner of the fee or proprietor of the premises has dominion over and the right to use the land in a manner consistent with the reasonable enjoyment of the easement by its owner. 15 Texas Juris, p. 802, § 59. See annotations 46 A. L. R. 1463-1465. Appellant acquired the right of way through the Carter farm by a deed from the owner, granting the right of ingress and egress over adjacent lands to or from said right of way for the purpose of constructing, reconstructing, inspecting, controlling, hanging new wires on, maintaining, and removing said line and appurtenances, the right to relocate along the same general direction of said line, etc. Neither under this express grant nor under the statute did appellant have the right to prevent the owner of the fee, or proprietor, from using the ground under the power line so long as it was not put to a use inconsistent with the reasonable enjoyment of the easement. We do not think it can be said that, in attempting to pass under appellant’s power line at the time and place in question, deceased was interfering with or trespassing upon any right of the appellant, in fact, if deceased was trespassing, it was upon the rights and premises, of the owner or tenant.

If it be conceded that, as to the owner or tenant of the premises, deceased was a trespasser, would that fact relieve appellant from liability for injuries and damages resulting from its negligence? We do not think so. In Oil Belt Power Co. v. Touchstone (Tex. Civ. App.) 266 S. W. 432, 439, it was held that the company was liable for the death of a boy who went to the top of a tank, over which the company maintained uninsulated wires, and was electrocuted. The court said: “It cannot be doubted that it is negligence to maintaiji an uninsulated wire highly charged with electricity, and without any warning of danger, in any place. where persons may reasonably be expected to come in contact therewith. * * * If appellant could reasonably have anticipated some injury to some person situated as was the deceased, who might be expected to probably go upon the tank under like circumstances, then it owed the duty to exercise ordinary care to avoid such injury. We are of the opinion, further, that the evidence was sufficient to sustain the finding of the jury upon that issue. * * * It is to be noted that, while appellant had the lawful right to maintain its wires strung through the air, that right did not include the right of possession and control over the water tank and the lease on which the same was erected. And the act of the deceased in placing himself in dangerous proximity to the wires was not a trespass upon appellant’s right to maintain them at the place where they were placed, nor inconsistent with that right. If, as testified to by plaintiff, the boy was told by the superintendent of the oil lease to go upon the tank to look for his cattle, then it must follow that he was rightfully there, and not a mere trespasser.” A similar question arose in Prairie, etc., Co. v. Dalton (Tex. Civ. App.) 243 S. W. 619, a suit against a pipe line company. In this case, * plaintiff sued for the value of cattle that died from drinking creek water mixed with' oil that defendant negligently permitted to escape from its pipe line. At the time the cattle drank the polluted water, they were trespassing in the pasture through which the pipe line ran. In this, situation, the pipe line company contended that it owed plaintiff no duty, hence was not guilty of negligence. This the Fort Worth court denied, saying: “But the appellant in this case was not the owner of-the Wade pasture [upon which the cattle were, at the time, trespassing], and is in no position to invoke the rule above noted. Only the one who had the right of control of the premises would be in a position to urge such defense.” Page 620 of 243 S. W.

These éases are nearest in point of any from our courts, hut there are many decisions, in point, by courts of other states. The Supreme Court of Vermont in Humphrey v. Twin State Gas, etc., Co., 100 Vt. 414, 139 A. 440, 444, 56 A. L. R. 1011, 1020, held that an electric power company causing injury to a trespasser on the land of another by negligently permitting its transmission wires to come in contact with a wire fence upon the land, cannot escape liability on the ground that the injured party was a trespasser. In reaching this conclusion, the court overruled two of its former decisions (Fay v. Kent, 55 Vt. 557, and Kennedy v. Morgan, 57 Vt. 46), using the following language in point: “Electricity has come to be a necessary factor in almost all lines trf activity. Its usefulness should not be impaired or curtailed. But it is "highly destructive when it escapes control; its capacity for harm is but little reduced by distance; it is invisible and un-discoverable; it strikes instantly and without warning. We deem it of the highest consequence, especially in a rural state like ours where hunters, fishermen, and others roam the woods when lawful, almost at will, and where high-tension electric lines run in every direction, and wire fences are in common and increasing use, that those dealing in such a deadly agency should be accountable to all whose likelihood of injury could reasonably be foreseen.” In Kribs v. Jefferson City, etc., Co., 199 S. W. 261, 263, a similar question arose, and was disposed of by a Court of Appeals of Missouri as follows: “The evidence shows that persons were frequently through the place. At one point the wire fence had been propped apart and cushioned with gunny sacks to let persons through. Boys frequently were in there hunting for pawpaws and sassafras and on fishing trips. This was shown to be of such an extent, and had existed for such a number of years pri- or to the happening, as that the likelihood of persons being at that place made it incumbent on the defendant to maintain its line in a reasonably safe condition,.” This was said where the facts showed that boys, one of whom was killed when he touched a guy wire dangling from a charged power wire, were in the pasture through which the power line runs without authority from the owner. To the same effect, see Grady v. Louisiana, etc., Co. (Mo. App.) 253 S. W. 202; Guinn v. Delaware, etc., Co., 72 N. J. Law, 276, 62 A. 412, 3 L. R. A. (N. S.) 988, 111 Am. St. Rep. 668; Boutlier v. Malden, etc., Co., 226 Mass. 479, 116 N. E. 251, Ann. Cas. 1918C, 910; Ferrell v. Durham, etc., Co., 172 N. C. 682, 90 S. E. 893, L. R. A. 1917B, 1291; Stedwell v. Chicago, 297 Ill. 486, 130 N. E. 729, 17 A. L. R. 829; Nelson v. Branford, etc., Co., 75 Conn. 548, 54 A. 303; Lipovac v. Iowa, etc., Co., 202 Iowa, 517, 210 N. W. 573; Puchlopek v. Portsmouth Power Co., 82 N. H. 440, 136 A. 259; Fitzpatrick v. Penfield, 267 Pa. 564, 109 A. 653; Birmingham, etc., Co. v. Cockrum, 179 Ala. 372, 60 So. 304; Cox v. U. S. Coal & Coke Co., 80 W. Va. 295, 92 S. E. 559, L. R. A. 1918B, 1118; Nenstiehl v. Friedman, 90 Misc. 368, 153 N. Y. S. 120; Bottum’s Adm’r v. Hawks, 84 Vt. 370, 79 A. 858, 35 L. R. A. (N. S.) 440, Ann. Cas. 1913A, 1025. Also see cases, annotation, 56 A. L. R. pp. 1030-1033.

The cases chiefly relied upon by appellant, in support of its contention that deceased was a trespasser and that no duty was due him, are Brush, etc., Co. v. Lefevre, 93 Tex. 604, 57 S. W. 640, 49 L. R. A. 771, 77 Am. St. Rep. 898; City of Greenville v. Pitts, 102 Tex. 1, 107 S. W. 50, 14 L. R. A. (N. S.) 979, 132 Am. St. Rep. 843, and Burnett v. Ft. Worth, etc., Co., 102 Tex. 31, 112 S. W. 1040, 19 L. R. A. (N. S.) 504. These cases originated before the advent of power companies in this state, and prior to the enaetmént of statutes regulating their operation, besides, are not in point, as the undisputed facts here show that deceased was not a trespasser, but, to say the least, was simply a licensee; hence the case is not within the doctrine announced in the Brush, Pitts, and Burnett decisions.

The evidence is not disputed that deceased entered the premises in response to a distress call from Bowen Daniels, his brother-in-law, which relieves him from any imputation of trespassing; besides, the evidence is undisputed that people were accustomed to enter and cross these lands ad libitum; furthermore, courts will take cognizance of a fact, within the knowledge of everybody, that in the rural sections of our state there exists a communal custom authorizing, or at least tolerating, without let or hindrance, the entry and passage of persons through and over the inclosed pasture and cultivated lands of any one; in fact, the existence of this custom was impliedly recognized by the Legislature in the enactment of articles 1377, 1388, Penal Code, making it unlawful to enter upon the inclosed lands of another, under conditions and for purposes that exclude the condition and purpose under and for which deceased entered tlie premises in question. So, by every test, we conclude that deceased was not a trespasser upon the premises when killed, but his status was that of a licensee.

There is no material difference between the status of one tacitly permitted to enter upon the premises of another and one expressly permitted or invited, for, in either case, it would not show a due regard for the rights and safety of others to classify such as a trespasser. While it is true that a licensee takes the premises as he finds them, yet it is equally true that, where a new peril is presented from changed conditions, as in the instant case, an active duty devolves upon the owner or proprietor to exercise reasonable care to safeguard a licensee from the new or sudden peril. This doctrine is sustained by the following authorities: Felton v. Aubrey (C. C. A.) 74 F. 350; Westborne Coal Co. v. Willoughby, 133 Tenn. 257, 180 S. W. 322; Terre Haute, etc., Co. v. Sanders, 80 Ind. App. 16, 136 N. E. 54; Cocke v. Payne, 81 N. H. 266, 124 A. 668; Romana v. Boston, etc., Co., 226 Mass. 532, 116 N. E. 218; 45 C. J. pp. 802, 803 (§ 203) 6. Therefore, even if appellant be permitted to say that, as to it, deceased was a licensee upon the premises, still, in view of the dangerous condition of its power line, caused suddenly by lightning, it should have exercised reasonable care to repair after notice of the dangerous situation. This duty appellant failed to discharge.'

Complaint is made, in propositions Nos. 34 and 35 that, the court erred in submitting, over timely objections, issues Nos. 1 and 2, as follows: “Question No. 1. Was the act and conduct of the defendant company in permitting its wires to remain low and near the ground, if they did so permit, negligence, as that term has been defined to you? Question No. 2. Was such negligence on the part of defendant company, as you have found in answer to question No. 1 if you did so find, a proximate cause of Doc Webster’s death?”

The objections urged to these issues are that they are immaterial, in that deceased was a trespasser and that appellant owed him no duty, and, further, that the issues are upon the weight of evidence, in that they assume that, after knowledge or notice, appellant permitted its wires to remain in a broken-down condition.

We think the issues material, in fact, are of the very essence of the controversy. It is not disputed that between 6 and 7 o’clock Monday morning, May 13, 1929, during an electrical storm that prevailed over that section, lightning struck down two of appellant’s poles, located in the cotton field of the negro Jackson, permitting the wires, heavily charged with electricity, to sag near the ground, and that they remained in that condition until after the bodies of the young men were discovered Tuesday morning; that George Ferguson, appellant’s agent at Bells, to whom patrons reported their troubles for remedying, was given a full report of the damaged condition of the power line, by J. A. Childress, a rural mail carrier, about 10 a. m. Monday morning, following the storm. No inspection of the line followed, nor was anything done towards repairing same until after the bodies of the young men were discovered. .

■ Article 1436, R. S., required appellant not only to construct, but to maintain, its lines 22 feet above the surface of the ground, and it was its duty to exercise reasonable care to remedy dangerous conditions, after knowledge or notice, to prevent injury to those who might be expected to use the premises, or pass under said lines. 16 Tex. Juris, pp. 237, 239. The duty of inspection and maintenance is a corporate duty and cannot be shifted or transferred'to agents or employees. 16 Tex. Juris, p. 241, § 10'; Jacksonville, etc., Co. v. Moses, 63 Tex. Civ. App. 496,' 134 S. W. 379, 385 (writ denied); Arkansas, etc., Co. v. Adcock, 184 Ark. 614, 43 S.W.(2d) 753. In the Jacksonville Case, Judge Hodges said : “Among the primary duties of a corporation operating an electric light plant and using wires for the distribution of a dangerous current, of electricity is that of exercising a proper degree of care, not only in the erection of its lines and instrumentalities, but in maintaining them thereafter in a reasonably safe condition. The performance of the latter obligation carries with it another equally absolute — that of making such an inspection of the condition of its property as may be practicable and reasonably essential to the accomplishment of that end. By this means alone can the corporation vouchsafe to the public that degree of protection which the law requires it to render. [Citing authorities.] The author last referred to says: ‘A proprietor dealing with so dangerous and deadly an agency as electricity is bound to a continuous inspection, to the end of seeing that his wires are properly insulated, and to the end of discovering any breakage in them, so as to remove the current, or otherwise render them harmless at as early a period as is consistent with a very high degree of care and diligence. The obligation of exercising a degree of care proportionate to the danger obviously demands nothing less than this. Such a company will hence become liable to pay damages for an injury to a person proximately resulting from its failure to remove, after notice, actual or implied, a wire which had broken from its poles.’ The fact that such duties must be discharged through the agency of servants and employees does not affect their absolute character. The corporation cannot shift its personal obligations. [Citing numerous authorities.]”

Asi shown above, the statute (article 1436), requires power companies to maintain their transmission lines at least 22 feet above the surface of the ground; failure to comply with this provision is negligence per se, but, to be actionable, a causal connection must be shown to exist between the unlawful act and the injury. In the instant case, a vis major (lightning) struck down two poles, causing wires, heavily charged with electricity, to sag near the ground, with which deceased contacted and was killed; so actionable negligence in the instant case was the failure of appellant to discover the broken-down condition of its line and repair same, or failure to repair, after receiving notice of its damaged condition. It was not essential that appellant should have visualized the precise situation, but it should have anticipated that persons were liable to enter and pass over the premises and under the transmission lines at any time. The standard of care required of appellant is not that of one uninformed as to the nature and dangers of electricity, but is the standard of one who, possessing such knowledge, undertakes its control and distribution. Texas, etc., Co. v. Armstrong (Tex. Civ. App.) 37 S.W.(2d) 294. In view of the undisputed facts, the authorities cited, and reasons stated, we hold that the court did not err in submitting the issues under consideration.

In propositions Nos. 36 and 37, contention is made that the court erred in submitting, over objections, the alleged negligence of appellant, in failing to have a watchman at the place where the line was broken to prevent any one from coming in contact with same, and, in propositions Nos. 38 and 39, that the court erred in submitting, over objections, the alleged negligence of appellant in keeping its wires charged with electricity during the time they were sagging near the grounds; the objections being that the submissions are immaterial and on the weight of evidence.

It is undisputed that, after the electrical storm, early Monday morning, and before the discovery of the bodies of the dead, no inspection of its transmission line was made by appellant, and, notwithstanding actual notice of the broken-down condition of its line was received by appellant, through George Ferguson, its agent at Bells, no effort was made to repair the damage, or to prevent any one from contacting therewith, and, in the meantime, the wires remained heavily charged with electricity. These issues are material, and the facts supporting same are, in effect, undisputed, so it is our opinion that the court did not err in giving same over the objections.

Contention is made in propositions Nos. 13 and 14 that, the court erred in submitting, over objections, special issue No. 9, on the issue of contributory negligence; the objections being that the charge was general and failed to segregate and submit separately issues as to various acts of deceased.

Appellant pleaded contributory negligence in paragraph 14 of its answer, as follows: “Defendant further says that at the time Doc Franklin Webster sustained injuries and immediately prior thereto, the said Bowen Daniels, Tommie Webster and Doe Franklin Webster were each guilty of negligence, which was the sole, proximate cause of their several and collective injuries, but if not, were at least causes that caused or contributed to cause their -injuries, severally and collectively.” The court submitted the issue in the following language: “Was Doc Webster guilty of negligence in going into said field at the time and place in question in the manner that he did?” To which the jury answered, “No.” Thus it is obvious that the submission is no more general nor less specific than the plea. However, in the statement supporting the contention, found at pages 151 and 152 of appellant’s brief, certain allegations as to specific acts of deceased, in paragraph 10 of appellant’s answer, are set out as constituting a part of its plea of contributory negligence. These allegations constitute no part of the plea of contributory negligence, but were pleaded as a basis for proof that deceased and the other young men were, at the time of being electrocuted, trespassers upon the premises. So, eliminating, in this connection, allegations that constitute no part of the plea of contributory negligence, the issue as pleaded being general, the court did not err in submitting same in general terms.

But was the issue of contributory negligence raised by the evidence? We do not think so. The evidence is to the effect that, at the time Tommie Webster and Bowen Daniels started on the hunt for gasoline, Doc Webster, deceased, and his wife, Yera, were left seated in the car, standing in the public road, Doc Webster was seated under the wheel and Yera by his side. Being tired, she soon fell asleep, but was awakened by the voice of her brother. Bowen calling “Doc” ; she saw a light, a long blue flame of fire, heard a frying sound, and her brother’s voice again saying “hurry up,” and in a short time saw another flame and heard the same frying sound. • At this juncture Doc Webster left the car, in answer to the call for help, and went in the direction of the noise and flame; later, the witness testified, that she saw at the same place another flash or flame, and again heard a frying sound. These unusual sights and sounds — the flame accompanied by noise as of something frying, the urgent call for Doc to hurry — indicate that the two young men were in distress; so, under the circumstances, deceased could not be charged with contributory negligence in exposing himself to danger of injury in going to their rescue. 45 C. J. p. 966, § 520 (5); 20 R. C. L. p. 131, § 108, and authorities cited.

In propositions Nos. 15, 16, 17, 18, 19, 20, 21, 22, 26, 27, 28, 29, and 30, appellant contends that the court erred in refusing requested special issues in regard to the negligence of deceased, and the other two, based upon certain specific acts of said parties. These issues were correctly refused, because the particular acts involved were not pleaded defensively as constituting contributory negligence, but in order to show that the parties were trespassers upon the premises, and furthermore because the issues were not warranted by the evidence. Also in proposition No. 23 appellant complains of the refusal of the court to submit an issue as to the existence of a joint adventure by deceased and the other two; in propositions Nos. 24 and 25, complaint is made that error was committed in refusing special issues presenting the question whether deceased lost his lifé as the result of an act of God; and in proposition No. 12 complaint is made that the court erred in refusing, on request, to submit the issue of unavoidable accident. ⅝

The special issues mentioned in propositions 12, 23, 24, and 25 were correctly refused, because not supported by evidence. The issues involved in the propositions beginning with the one mentioned in proposition No. 12 and ending with the issue mentioned in No. 30, if given, would have confused the jury, and in our opinion, fall under the condemnation pronounced by Judge Denman in Missouri, K & T. R. Co. v. McGlamory, 89 Tex. 638, 35 S. W. 1058, 1059, where he said that “defendants had the right to prepare and demand the giving of a charge requiring the jury to find whether the evidence established the existence of any specified group of facts which, if true, would in law establish such plea. * * * This rule does not permit a litigant to annoy the court or confuse the jury by special charges upon the weight of, or giving prominence to, each circumstance introduced tending to support his cause of action or defense, but requires him, at his peril, to present in such special charge, for the consideration of the jury, a fact or group of facts which, if found by them, from the evidence, to be true, establishes, in law, some material issue presented by the pleading.”

Propositions Nos. 4, 5, 6, and 7 present the alleged error of the court in excluding evidence offered by appellant to show that deceased was a trespasser upon the premises when hilled. We hold that, even if deceased was a trespasser, appellant cannot escape the consequences of its negligence by reason of such fact; therefore overrule these contentions.

In propositions Nos. 8 and 9, contention is made that the court erred in admitting, over objection, and in refusing to strike out, the testimony of D. E. Cobb, offered by appellees to prove that George Ferguson was appellant’s agent at Bells upon whom notice of the damaged condition of the transmission line was served; ahd in proposition No. 10 complaint is made that the court erred in admitting, over objection, and in refusing to strike out on request, the testimony of J. A. Childress, a rural mail, carrier, who testified that he discóvered the broken-down condition of appellant’s transmission line early Monday morning, and that about 10 o’clock a. m. made full report of same to George Ferguson. This evidence was of a most material nature and admissible; hence the court did not err in the rulings under review.

In proposition 11, appellant assigns error on the action of the court in refusing to permit appellant to ask Yera Webster the following question: “After you and Doc were married, Mrs. Webster, did he ever earn more than enough to support the two of you?” The objection made and sustained was that the question called for a conclusion. The court qualified the bill, saying “that there was no showing made as to what the answer of the witness would have been to the question propounded.” We do not think there was error in this ruling, appellant cross-examined the witness fully in regard to the labors and life of deceased after their marriage, and the answer sought would unquestionably have been a conclusion; besides, as appellant does not contend that the verdicts are excessive, the writer is of opinion that, even if error was committed in the ruling, it was harmless.

Complaint is made in proposition No. 31 that the court erred in omitting to define the phrase “natural and continuous sequence,” employed in defining “proximate cause,” and in proposition No. 33 it is urged that the court erred in failing to define the phrase “causal connection,” as used in the court’s definition of “independent cause.”

In the main, our court procedure -is conducted in language easily understood by the average juror; relatively few words or phrases are charged with an occult or legal meaning beyond the reach of the average. We think the phrases in question, and words constituting same, are understandable to the average juror, and that the court did not •err in complicating its charge with unnecessary and useless definitions.

In proposition No. 32, complaint is made that, in defining “proximate cause,” the court failed to tell the jury that there might be more than one proximate cause.

The death of Doc Webster resulted either from the negligence of appellant, or from his own negligence, these issues were submitted, and, as the evidence contains no suggestion of the existence of any other proximate cause, the court did not err in the respect mentioned.

Appellant contends in propositions Nos. 40, 41, and 42, that the court erred in overruling its objections to issues submitted on the measure of damages. These assignments are overruled. The writer is of opinion that these questions are immaterial, in that, even if the court erred in giving the charges, the same should be considered harmless, as appellant does not contend that the damages assessed by the jury are excessive.

Failing to find reversible error, the judgment of the court below is affirmed.

Affirmed.