* Writ of error granted February 22, 1928. The court refused appellant's requested peremptory instruction, and submitted the case to the jury on special issues. The appellant's objections thereto in pertinent propositions are, in effect, that (1) actionable negligence was not shown in the circumstances of the case; (2) the plaintiff was guilty of contributory negligence, as a matter of pure law; (3) special issues Nos. 1, 2, and 3 were each erroneous upon the special grounds enumerated. Issues Nos. 1, 2, and 3, in effect and substance, are as follows.
(1) Whether or not the electric company by the exercise of ordinary care might have found out and known of the dangerous condition of the wires, connections, and appliances at the place of injury, and the need of caution against injury to the public on account of such dangerous condition.
(2) Was it a negligent act on the part of the electric company, in the circumstances proved, to fail to insulate "the wire supporting the suspended street light" with the usual nonconductor of electricity to prevent hurtful discharge of the current of electricity through the pulley wire used in lowering and raising the street light?
(3) Was it a negligent act on the part of the electric company, in the circumstances proved, to maintain its service wires at place of injury "bare of insulation?"
An examination of the first point above may be commenced with the brief consideration of the facts established by the evidence. The appellant's service wires at the point of injury were placed about twenty-five feet above the public street of the town The extension cable or span wire upholding the street light was placed near the top of the two poles, several feet above the service wires. A service wire was connected with the street light. The pulley wire, used to raise and lower the street light, ran from the top of the street light, then passed through a pulley on the pole adjacent to the public sidewalk of the town, thence down the sidewalk side of the pole to a reel which fastened to a metal hook located six feet and two inches above the sidewalk. The pole to which the reel and pulley were attached was immediately next to the sidewalk or pavement. It was undisputed that the extension or span wire and the pulley wire were not insulated at all, and that the placing of "johnnie-balls," commonly used to "break the current" on the wires supporting the street light, would have prevented harmful consequences to a person touching the pulley wire or its fastening. In the light of the evidence there were but two ways by which the heavy current of electricity could be communicated to the pulley wire — either by receiving it directly from the street light, or by coming in contact in some way with a live or "exposed" service wire. In such case, a deadly current may pass through the pulley wire. It is undisputed that a guy-wire of appellant's was swinging loose and downward from the top of the pole which held the service wires, "and the wind blowing it back and forth had rubbed off the insulation [of the service wires]." There is evidence authorizing the inference that the guy-wire had been down and wearing against the service wire for some two weeks, and probably "one or two months." As a consequence, as admittedly shown, the pulley wire became charged with a deadly current of electricity. The *Page 979 jury were authorized to find, as they did, that the appellant knowingly permitted that condition to exist and failed to remedy it.
The appellee, lawfully standing on the sidewalk, in a casual way placed his hand on the hook of the pulley wire and was shocked. He was not required to take hold of the hook. He placed his hand on the hook without knowing of the danger of so doing, as there was nothing in its appearance to give him warning of the presence of the deadly current with which it was charged. It may be regarded as a proved fact that appellant's wires and appliances may, in the first instance, have been so placed and maintained as not to endanger persons on the sidewalk, although they might have touched the metal hook on the pole. But if after the appellant placed its wires and connections new facts or conditions arose, making, in view of them, its first existing status dangerous to the public, it would not afford justification on the part of appellant to suppose that the changed situation would carry with it no new or increased obligation on its part to the public by way of remedy. The changed condition was such as, if not remedied, would cause injury to the public touching the metal hook on the pole, and the appellant could have reasonably anticipated such result. The injury to appellee therefore was one the appellant might reasonably have forecast as likely to happen. The street was constantly used by the public for business, pleasure, and resort. The charged pulley wire was in such close proximity to the level of the sidewalk as to be accessible to the public and to menace the safety of one who inadvertently or casually placed his hand on the metal hook. It is not an exceptional or unusual thing to do, for persons of mature years and judgment, when standing near a tree or pole, to lean against it or inadvertently touch or casually place the hand on a fastening or hook attached to it. The metal hook was convenient to the reach of the average man, and there was nothing in its appearance to excite alarm or suspicion.
The appellant was accorded by the town authorities the privilege of stringing and keeping its wires and connections on the public street, upon the implied condition that it should use due care and precaution to avoid injury to every one who might lawfully be in proximity to its wires or connections and likely to come, accidentally or otherwise, in touch or contact with them. Accordingly the cases of insulated wires out of reach until some one climbs up to them, or of insulated wires above the ground and not near a place of resort by the public (Electric Co. v. Lefevre,93 Tex. 604, 57 S.W. 640, 49 L.R.A. 771, 77 Am. St. Rep. 898) are not comparable to the instant case. In the case above cited the test of liability was stated as follows:
"Would an ordinarily prudent man, looking at the surroundings as they then appeared, have reasonably expected that any person would be upon the awning and might be injured by coming in contact with the exposed wires? If such a consequence might have been reasonably foreseen, then the plaintiff in error would be liable for the injury, * * * unless there be some other defense. * * * In the facts of this case, there is" no evidence "that the awning had been used by any person as a place of resort * * * for pleasure or * * * business."
And as appellee was not a trespasser or mere licensee upon the public sidewalk, the situation is distinguishable from the cases of 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. Light Power Co., 102 Tex. 31,112 S.W. 1040, 19 L.R.A. (N.S.) 504, and other cases. The test of liability, the power of a prudent person to foresee injury to a person or a class of persons, of course, depends on the particular circumstances of the case, including the nature of the instrumentality, the place, and the status of the person injured. It is believed the testimony is such that the jury might have found that the appellant could have foreseen and ought to have anticipated the injury. The situation is similar to the cases of International Light Power Co. v. Maxwell,27 Tex. Civ. App. 294, 65 S.W. 78, and Railway Co. v. Fain (Ky.)71 S.W. 628.
It is believed that the appellee could not be held guilty of contributory negligence, as a matter of pure law. 1 Thompson on Negligence, § 808. The offending appliance which is the basis of liability was placed adjacent to the public sidewalk the public were accustomed to use, and was so situated as to be accessible to the public. It was not inherently dangerous to the touch. The appellee had the legal right to be at the place he was standing at the time. And the circumstances do not characterize his act as rash as a reckless encounter with known danger. He merely casually placed his hand on the offending appliance, without any knowledge of the peril arising from the special circumstances. The fact that there was no need for him to touch the hook would not, of itself, be sufficient to charge him with negligence, as a matter of pure law. It would not be an act so uncommon as, in the ordinary course of events, to be unlikely of occurrence. The question was one for the jury to decide.
The ground of objection to issue No. 1 is that:
"There is not a scintilla of evidence that the appellant knew of the dangerous condition that existed."
The phraseology of the issue rather goes to limit the inquiry to the jury to that of whether or not the dangerous condition of *Page 980 the wires and the necessity of caution against danger of such condition might have been found out and known by the exercise of ordinary care. In other words, whether, in point of fact, the company had means of timely knowledge which it did not use. But assuming that the issue should be construed, as appellant urges, as putting the inquiry to the jury of actual notice, the evidence, we think, sufficiently raises the issue. It is the general rule that the jury would be warranted in inferring actual notice from slight circumstances. It was proved that appellant's guy-wire, attached to the top of the pole, had been hanging down loose at one end and in touch with the service wires long enough "to wear off" the insulation of the service wires. And the jury were authorized to infer that it had been down and wearing against the wires "about two weeks," "a month or two," or "from the 12th to 15th of January, 1926," before the injury in suit on February 25, 1926. And the inference was allowable to the jury of actual notice to appellant's manager of the condition existing of the guy-wire being loose. He testified that he knew the telephone company were making replacements on its line, and "had renewed the line on Williams street," and had "removed" the old pole, and had ceased working in the town "about two weeks, or maybe a month, at the time of the accident." The statement of the manager that he never knew the wire was loose before the day of the injury may or may not be conclusive of the fact, as the jury, in its province, had a right to determine.
The grounds of objection to the second issue are that actionable negligence may not be predicated on such finding, and this ground of negligence was not pleaded by appellee. While the allegations of the petition are in a manner general in their nature, yet that ground of negligence may reasonably be regarded as within the allegations made. And it is believed that issues 1 and 2, taken together, fairly present the law applicable to the circumstances of the case entitling appellee to recover damages.
The grounds of objection to issue No. 3 is that it "assumed that the wires were uninsulated," when "the evidence showed that the wires were insulated." It can be assumed that the form of the issue was erroneous, but nevertheless such error does not afford ground for reversal, because, entirely eliminating such issue, the judgment can be supported upon the other two special findings of the jury entirely severable from issue No. 3. It follows that the several assignments of error relating to these special issues must be overruled.
The remarks of the attorney as complained of were not objectionable constituting harmful error.
It is believed that the jury were warranted in finding the amount of damages, and that this court cannot say it was too much.
The case of Railway Co. v. Gray, 105 Tex. 42, 143 S.W. 606, rather than the case of Moore v. Ivey (Tex.Com.App.) 277 S.W. 106, is controlling of the assignments relating to a quotient verdict and impropriety of a juror.
The appellant predicates error upon peremptorily instructing a verdict in favor of the telephone company on the cross-action. The appellant by cross-action sought reimbursement for the damages it might have to pay appellee on account of the alleged negligence, claiming that its act was merely passive negligence, and the act of the telephone company was active negligence proximately causing the alleged injury. The telephone company, as claimed, cut loose the end of the guy-wire attached to its pole, without notifying appellant that it had been done. No contractual relationship existed. The telephone company merely gratuitously permitted the use at will of its pole. The duty thereby owed was merely to give timely notice of the severance of the wire. The mere fact of severing the wire from the pole would not, of itself, amount to prima facie case of negligence, and, as rather definitely appears after the telephone company cut loose the wire more than two weeks at least intervened before the injury happened to appellee, and during that time appellant took no active measures to prevent injury. Each was a free agent in what was done, neither being at all under the control of the other. Therefore the act of the telephone company being not so untimely as to constitute the immediate and responsible cause of the injury, the appellant should have removed the situation, knowing it to exist. It is just that appellant should be held responsible for all consequences of its default, because such default was the immediate and responsible cause of the injury, the happening of which might have been foreseen. The negligence of the telephone company was antecedent and remote. Railway Co. v. Nass,94 Tex. 255, 59 S.W. 870; Light Co. v. Case (Tex.Civ.App.) 138 S.W. 621; and other cases. As conceded, there can be no contribution between the parties in case active negligence of both of them was the immediate and responsible or proximate cause of the injury.
*Page 981The judgment is affirmed.