I respectfully enter my dissent to the judgment and opinion rendered and handed down in this cause, affirming the judgment of the court below, because I believe the evidence in the case raised the issue of unavoidable accident.
The evidence shows that Dick Jezek had climbed a pole to which electric wires of appellant were fixed, straddled the pole and set on a telephone cable which was thirty-six inches below the lowest electric wire, and caught hold of the electric wire and was killed. The lower wire was something like six or eitht inches above the deceased's head after he ascended the pole. The requisite clearance between the cable and the lower wire, as required by the National Electric Code, was forty inches. There is no direct evidence as to whether the deceased did or did not take hold of the wire purposely. Pictures introduced into evidence showed the spacing of the wires and cable on the pole, and from which the relative position of a person's head to the wires on the pole might be judged as the person was sitting on the cable, and also from which the relative size of the deceased might be determined. The undisputed evidence shows that the deceased was warned of the danger of coming into close proximity to the wires, and that the area where the accident occurred was well lighted. The evidence also indicates that a banner was tied about half way between the telephone cable and the lower wire, and that the deceased had finished tying the banner and was ready to come down when the accident occurred. There was also evidence that no banner had been tied to the pole on which the deceased was killed prior to the night of the accident. *Page 204
In passing upon the question as to whether or not the evidence raised the issue of unavoidable accident, it is our duty to review the evidence as a whole and all reasonable inferences that may properly be drawn from the same, in the light most favorable to the contentions of appellant. An unavoidable accident, as said by the Supreme Court in the case of Dallas Ry. Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 385, is: 'an event not proximately caused by the negligence of any party to it.' Reasonable foreseeability, being an essential element of proximate cause, is also an essential element in the issue of unavoidable accident. Holland v. De Leon, Tex.Civ.App., 118 S.W.2d 489 (er. ref.); 30 TexJur. p. 349 et seq., Secs. 121 and 122 and authorities. Although the question here presented is not entirely free from doubt, I believe the evidence as a whole was sufficient to raise the issue as to whether the death of Dick Jezek was or was not proximately caused by any negligence on the part of appellant, or on the part of the deceased, and that if such issue was so raised, then the issue of unavoidable accident was necessarily raised by the evidence in this case.
In the case of Dallas Ry. Terminal Co. v. Darden, Tex.Com.App., 38 S.W.2d 777, 779, the Court said:
"It is impossible to announce a fixed rule applicable to all cases by which it can be decided just when the issue of unavoidable accident is presented. In order to determine whether such issue is involved, the facts of each particular case must be examined with the view of ascertaining whether there is present a theory under which the accident could have happened, notwithstanding all the parties to the transaction exercised the degree of care required by law."
I think such theory is presented by the evidence in this case. Although the undisputed evidence shows that the deceased grasped the live wire by which he was killed, it does not show that he did so as a result of meditation or design on his part, and we cannot assume that he did so, because the evidence shows as a matter of law that he had been warned of the danger of coming in contact with the wire, and we must presume from the evidence, in the absence of conclusive evidence to the contrary, that he was exercising ordinary care for his own safety. While appellant was negligent in maintaining its wire at a height of thirty-six inches above the cable rather than forty inches, as required by the National Electric Code, it does not follow inexorably that appellant could have reasonably foreseen or anticipated, under the facts and circumstances in evidence, that its failure to so maintain its wire would result in injury to the deceased. I think the jury could well have found from all the evidence that the deceased lost his balance just before descending to the ground and that, in the emergency of his hazardous position, he suddenly caught hold of the wire in order to keep from falling, and that he would have done the same thing even though the wire which he grasped had been maintained forty inches above the cable, rather than thirty-six inches. In other words, the mere four inches of difference in the height at which the wire was maintained above the cable was not necessarily the cause or the most probable cause of the fatal accident, and hence appellant was not required, as a matter of law, to anticipate and foresee any such fatal consequences.
Since the evidence as a whole was, in my opinion, sufficient to raise the issue of unavoidable accident, and since the jury found in favor of appellant on that issue, thereby presenting an irreconcilable conflict with their finding of primary negligence on the part of appellant, it is my view that the trial court erred in rendering judgment in favor of appellee. Colorado So. Ry. Co. v. Rowe, Tex.Com.App., 238 S.W. 908; American Glycerin Co. v. Kenridge Oil Co., Tex.Civ.App.,295 S.W. 633; Hudgins v. Kansas City M. O. R. Co., Tex.Civ.App.,2 S.W.2d 958 (er. ref.); *Page 205 Humble Pipe Line Co. v. Kincaid, Tex.Civ.App., 19 S.W.2d 144 (er. ref.); Dallas Ry. Terminal Co. v. Garrison, Tex.Com.App., 45 S.W.2d 183; Blanton v. E. L. Transport Co.,146 Tex. 377, 207 S.W.2d 368; West Texas Utilities Co. v. Harris, Tex.Civ.App., 231 S.W.2d 558 (er. ref. n. r. e.); Heynes v. Martinez, Tex.Civ.App., 260 S.W.2d 369 (er. ref. n. r. e.).
I would reverse the judgment appealed from and remand the cause to the court below for another trial.