
    MITCHELL v. RALEIGH ELECTRIC CO.
    (Filed October 29, 1901.)
    1. NEGLIGENCE — Electricity—Insulating Wires• — Ordinances—Master and Servant — Employee.
    Absence of insulation on an electric liglit wire, in violation of an ordinance, is prima facie evidence of negligence.
    2. NEGLIGENCE — Contributory Negligence — Evidence—Sufficiency —Electricity.
    
    There is no evidence in this case of contributory negligence on the part of the intestate in allowing the wire he was holding to come in contact with the wire of the electric light company.
    3. PRESUMPTIONS — Negligence—Electricity.
    It will be presumed that an electric light company had notice of an abrasion in its insulated wire where the abrasion had existed for two years.
    4. NEGLIGENCE — Proximate Cause — Contributory Negligence.
    
    Where the negligence of the defendant appears, and there is no evidence of contributory, negligence by the intestate, the court should charge that the negligence of the defendant was the proximate cause of the death of the intestate.
    5. QUESTIONS POR COURT' — Contributory Negligence.
    
    What is contributory negligence upon a given state of facts is a question of law for the court.
    MONTGOMERY, J., dissenting.
    ActioN by Sallie Mitchell, administratrix of James Mitchell, against the Raleigh Electric Company, heard by Judge II. B. Starbuch and a jury, at April Term, 1901, of the Superior Court of Ware County.
    This action was brought to recover against defendant company damages on account of the alleged negligent killing of intestate.
    
      It was alleged that intestate, while at work upon the line of the Bell Telephone Company in stringing a wire upon its line across and over defendant company’s wires, the wire being strung by intestate came in contact with the wire of defendant company at a point at which it had negligently permitted to remain uninsulated, and thereby became charged with electricity, which was conveyed into the body of intestate, causing his death.
    From the evidence of plaintiff’s witnesses, it appears that intestate was in the employ of the Bell Telephone Company on January 14, 1899. While so employed, he was assisting another employee in stringing the wires upon the poles of the said company, at' or near the intersection of Edenton and Blount Streets, in the city of Raleigh. The wires of said company were supported upon poles, and were ten feet higher than the wires of defendant. Intestate was on the north side of Newberu Avenue; his fellow-employee was upon the pole on the south side; intestate had the coil of wire on his left ami or shoulder; á rope or handline had been fastened to the end of the wire, and it was passed over a limb and through some trees on the north of the street over and across defendant company’s wires, and placed in the hands of the employee of the Bell Company’s pole, who was drawing it to him for the purpose of stringing the wire, to which it was fastened, upon the pole upon which he had climbed. Intestate was paying out the wire through his hands, and while doing so, it came in contact with defendant company’s electric wire, and he was “caught” by a current of electricity transmitted to the wire in his hands and died in a minute— before the wire was cut. Some two years before this occurrence, the witness McFarland testified that he and another man (Hicks) were putting a ’phone wire across at the same place, and while doing so (but the wire was then drawn across the arm of a pole) Hicks carelessly permitted it to slack and fall across tbe Electric Company’s wire, making an abrasion in the insulation two inches wide, and Hicks got “caught” by a current of electricity, but he immediately cut the wire and released him. This was at the same place where intestate got “caught.” He had noticed the place several times in the same condition between the two accidents. Bonner, the electrician, testified that about fifteen minutes after the occurrence, he went to the place where this man was killed by a current from the wire of the defendant company’s wire where’the insulation had been rubbed off which was the width of a lead pencil; the Bell line was lying in the place where the insulation was rubbed off; that about two years before he had noticed a place where the insulation was rubbed off; it was within ten feet of this place; caused by a ’phone wire pulling across the electric wire; it was the same size as the place he saw there the day of the accident, and did not notice but one place which was rubbed off on that day.
    Several witnesses testified that the proper way for a man who knew his business would have been to have passed the rope or' hand-line and wire over the arm of a tall Bell pole and then pulled it across, thus avoiding contact with the electric wire, instead of through the trees, as was done. The ordinance of the city, which was in evidence, is as follows:
    “Section 7. — All electric light and power wires, excepting trolley wires for electric railways, must be covered with a durable water-proof insulation, not less.than two coatings.”
    After the close of plaintiff’s evidence (defendant having declined to introduce any), plaintiff requested the Court to give certain special instructions, which were refused, and plaintiff excepted. Verdict was rendered for defendant, and plaintiff appealed from the judgment.
    
      J. B. Batchelor, for the plaintiff.
    
      B. L. Gray, for the defendant.
   Oooic, I.

(after stating the case). TKe plaintiff was clearly entitled, to have the instructions hereinafter discussed and prayed for, given to the jury, if not in the exact language, certainly in substance, which does not appear in the charge as given.

The defendant company was engaged in the business of manufacturing, producing, leasing and selling light made from the use of electricity, which is the most deadly and dangerous power recognized as a necessary agency in developing our civilization and promoting our comfort and business affairs. It differs' from all other dangerous utilities. Its association is with the most inoffensive and harmless piece of mechanism, if wire can be classified as such, in common use. In adhering to the wire it gives no warning or knowledge of its deadly presence; vision can not detect it; it is without color, motion or body; latently and without sound it exists, and being odorless, the only means of its discovery lie in the senses of feeling, communicated through the touch, which, as soon as done, becomes its victim. In behalf of human life and the safety of mankind generally, it behooves those who would profit by the use of this subtle and violent element of nature to exercise the greatest degree of care and constant vigilance in inspecting and maintaining the wires in perfect condition. Recognizing this peril to those in its use, or who, in the exercise of their liberty in passing along the streets of the city, might accidentally come in touch or contact with electric wires, or who in the management of their business affairs would have other wires suspended over the streets in close proximity to electric wires, the city authorities' of Raleigh deemed it proper to require that all such wires should be covered with durable water-proof insulation. The-duty imposed .under this ordinance was imperative. Its strict observance was necessary for the safety of all. The electric wires must be insulated,' and it was no less the duty of defendant company to keep them so at all times and at all places. The nature of the mischief intended to be remedied required it. A failure to comply with this ordinance was prima facie evidence of negligence, and there being no evidence in rebuttal offered- by defendant company, and none • appearing from the evidence of plaintiff, it was error in his Honor in refusing to give instruction No. 1 prayed for by plaintiff, viz: “If the jury find from the evidence that the defendant left its wires uninsulated, as stated by the wi1> nesses, this ivas negligence on the part of the defendant, and the jury will so find.”

In Union Pa. Railway Co. v. McDonald, 152 U. S., 262, the Court held that where the statute imposed a duty upon a railroad company to fence its slack-pits, its failure to do-so was evidence of negligence, for which it was liable. In the case of Clements v. La. Electric Co., 44 La. Ann., 692, 32 Am. St. Rep., 348, 16 L. R. A., 43, it is held by the Supreme Court of Louisiana that the failure of defendant company to have the splices on its wires perfectly insulated, when so required to do by the ordinance of the city, was negligence on its part. The ordinance being a contract with each and every inhabitant of the city, its standard of duty was fixed by it, and its failure to comply with it ivas negligence. Also-to the same effect it is held in Tobey v. Burlington, etc., R.. Co., 94 Iowa, 256, 33 L. R. A., 496, and cases there cited; Hayes v. Mich. Cent. Ry. Co., 111 U. S., 228:

“A company maintaining electric wires over which a high voltage of electricity is conveyed, rendering them highly dangerous to others, is under the duty of using the necessaiy care and prudence, at places where others might have the right to-go, either for work, business or pleasure, to prevent injury. It is the duty of the company under such conditions to keep the wires perfectly insulated, and it must exercise the utmost care to maintain them in such condition at such places. And the fact that it is very expensive or inconvenient to so insulate them, will not excuse the company for failure to keep-their wires perfectly insulated. So, one who, in the course of his employment, is brought into close proximity to electrical wires, is not guilty of contributory negligence by coming in contact therewith, unless done unnecessarily or without proper precautions for his safety. And where the wires, if properly insulated, would not be a source of danger, such person is only obliged to look for patent defects and not for latent defects; and a person who touches an electrical wire from which the insulation is worn off, if he does it in ignorance of the nature and condition of the wire, is not negligent.” Joyce on Electric Law, sec. 445.

The evidence in the case at bar shows that defendant company’s wires were strung on poles along the same street with those of the Bell Telephone Company. At places, as was in this case, one set of wires diagonally crossed the other at a distance of only about ten feet. Each had a common right, and it was the duty of each to exercise all reasonable precautions for the prevention of injury to the servants who may be sent there in the performance of duty. Each is bound to know that the servants of the other may come in contact with its wires. The fact that defendant company’s wire was insulated, was calculated to induce intestaté to rely upon its safety, even if the wire he was paying out should come in contact with it. Newark Electric Light Co. v. Garden, 78 Fed., 74, 37 L. R. A., 725, 6 Am. Elec. Cases, 275.

We think his Honor also erred in refusing the third instruction prayed for, viz: “There is no evidence of contributory negligence on part of the intestate of plaintiff, and the jury will therefore find the second issue ‘No.’ ” What is contributory negligence upon a given state of facts, and whether there is any evidence, are questions of law for the decision of' the Court; and a review of the evidence fails to discover any act done by the intestate which he ought not to have done, or the omission to do any act which he ought to have done. Tbe witnesses testified tbat tbe proper way would bave been to have conveyed tbe rope or band-line and wire over tbe arm of tbe tall Bell pole not far off (and not through tbe trees as was done), which any man who. understood bis business would bave done. But it also appears from tbe evidence tbat a similar accident occurred at or near tbe same place when tbe arm of a pole was used and tbe wire carelessly allowed to slack and fall upon the electric wire. So, if intestate used a different mode to accomplish bis purpose, tbat act would not necessarily be negligence upon Ms part. And having undertaken to use tbe trees in supporting bis wire while conveying it over and across tbe defendant company’s wire, be bad a right to presume tbat tbe electric wires were properly insulated as required by tbe ordinance; and it was his duty to look for patent defects only. Clements v. La. Elec. Co., supra.

There is no evidence to show tbat intestate so managed or mismanaged bis wire as to cut through tbe insulation of defendant company’s wire, nor is there any evidence to show tbat tbe abrasion in tbe insulation was seen, or by due care could bave been seen by him — in extent, tbe evidence shows that it varied from tbe width of a pencil to two inches, and was suspended 30 feet above tbe street. It does appear tbat bis wire came in contact with and rested upon tbe electric wire, but there is no evidence to show tbat it caused tbe abrasion in which it rested; nor was there any evidence to show tbat he knew of its existence. Tbe fact tbat it was there, and had been for two years, and bad been seen and known to exist there for two years by at least two people (who were witnesses in this case), tbe Court must presume tbat it was ór ought to bave been known by - defendant company. So, where an electric light company permitted a live wire to remain on the surface of a street for three weeks, and a traveller was injured by contact with such live wire, it was held tbat tbe Court would presume, after such a period, tbat tbe company bad notice of tbe fact and was liable for tbe injury. Joyce, supra, sec. 450.

Tbe fourth instruction asked was: “There is no evidence of any other cause of death of plaintiff’s intestate, except from tbe electricity coming from tbe wire of tbe defendant; there-: fore, if the jury find from tbe evidence tbat tbe death of tbe intestate of plaintiff was caused by tbe current of electricity passing into bis body from tbe charged wire of tbe defendant, tbe jury will find tbe third issue ‘Yes’ ” — the third issue was, “was the negligence of tbe defendant tbe proximate cause of tbe death of intestate of plaintiff ?”

Tbe negligence of defendant appearing, and no evidence of contributory negligence by intestate, bis Honor erred in refusing this instruction. There was evidence tending to show tbat intestate was killed by the electrical current, which clearly appears; and tbe jury should have been charged as requested.

As there will have to be a new trial, and tbe questions raised by tbe other exceptions may not again arise, we think it unnecessary to discuss them.

New trial.

MoNtgomeey, J., dissents.  