
    PANHANDLE TELEPHONE & TELEGRAPH CO. v. HARRIS.
    (Court of Civil Appeals of Texas.
    Feb. 25, 1911.
    Rehearing Denied April 8, 1911.)
    1. Telegraphs and Telephones (§ 20)— Wires — Defective Construction — Inju-BIES TO TlIIBD PEBSONS — CONTRIBUTORY Negligence.
    Plaintiff was employed by the owner of a building to repair the roof over and on which defendant telegraph company maintained -two electric wires. In making the repairs, it was necessary to loosen the wires from the roof comb. The first was removed in safety, but on releasing the second a guy wire which held it in position broke from its fastening, causing the wire to come in contact with a trolley wire, communicating a severe shock to plaintiff. The cause of the accident was that the guy wire was insecurely nailed. Held., that plaintiff was not negligent as a matter of law.
    [Ed. Note. — For other cases, see Telegraphs and Telephones, Cent. Dig. § 13; Dec. Dig. § 20.]
    2. TELEGRAPHS AND TELEPHONES (§ 15) — Wires — Maintenance—Cabe Required.
    Where a telegraph and telephone company maintained its wires over the roof of a building, it was bound to exercise ordinary care to secure them, so as not to injure a third person rightly engaged on the roof of such building, having occasion to remove the wires in the prosecution of the work.
    [Ed. Note. — Eor other cases, see Telegraphs and Telephones, Cent. Dig. § 9; Dec. Dig. § 15.]
    Appeal from District Court, Potter County ; J. N. Browning, Judge.
    Action by R. A. Harris against the Panhandle Telephone & Telegraph Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Reeder & Graham, for appellant. R. R. Hazlewood and Lumpkin, Merrill & Lump-kin, for appellee.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   SPEniR, J.

Appellee R. A. Harris recovered a judgment against the Panhandle Telegraph & Telephone Company for damages for personal injuries received by him under the following circumstances: Harris was employed by the owner to repair the roof of a building over and upon which the Telegraph & Telephone Company maintained two of its electric wires. In making the needed repairs, it became necessary to loosen these wires from the comb of the roof to which they were attached with nails driven through insulating knobs. The first of these wires was removed with safety, but upon releasing the second a guide wire which held it in position broke from its fastenings on another building some distance east from the one on which Harris was at work, thus slackening the telegraph wire and causing it to come in contact with the trolley wire of an electric railway company in the street adjacent to the building, communicating a severe shock to Harris, resulting in serious injuries. The plaintiff alleged, and his evidence showed, that before attempting to remove the wires he observed that they were apparently made fast to the building east of the one on which he was at work, and there is nothing to indicate that he knew to the contrary. The guide wire above referred to was nailed to this building, but with a small nail only, partly driven up and apparently bent over to hold the wire. It was the giving way of this nail when Harris pried the telephone wire loose from the comb of the building on which he was at work that precipitated the accident.

It is the contention of the appellant, Tele-. phone & Telegraph Company, both on demurrer and on objection to the sufficiency of the evidence, that Harris should not recover because of his own contributory negligence. But, to say the most of it, the question of contributory negligence was one of fact for the court trying the case. It cannot be held as matter of law that one is guilty of contributory negligence, merely because he is engaged in a business known by him to be dangerous. Prudent men often engage in such undertakings. The test of their right to recover when injured is whether or not, under all the circumstances, they were guilty of negligence at the time of the injury. Besides, there is nothing to indicate that Harris knew of the danger of the guide wire’s coming loose, thus causing the main wire to come in epntact with the traction company’s trolley wire, and it was,, this defect that proximately caused the injury.

Appellee was rightfully on the building, and the law is too well settled to require citation of authorities that appellant company owed him the duty of exercising ordinary care in the manner of maintaining its wires at such place in such way as not to injure him. The case is not ruled by Burnett v. Ft. Worth Light & Power Co., 102 Tex. 31, 112 S. W. 1040, 19 L. R. A. (N. S.) 504, and City of Greenville v. Pitts, 102 Tex. 1, 107 S. W. 50, 14 L. R. A. (N. S.) 979, 132 Am. St. Rep. 843, for in each of those cases the plaintiff was a trespasser, and the defendant company owed such person no duties whatever.

We find no error in the judgment, and it is affirmed.  