
    The Cincinnati Gas & Electric Company v. Archdeacon, Administrator.
    
      Joint use of pole — By telephone and electric light companies — Each company liable to employe of oilier company when — Question of negligence of employe — In case triable to jury — Application of law to fact — Function of court.
    
    1. When two companies engaged in enterprises calling for the use of wires to carry electricity arrange for the joint use of a pole to sustain them, each company is, with respect to such use, charged with the same duty toward employes of the other as to its own; and the correlative duty of the employes to exercise due care for their own safety is the same as to both companies.
    2. There can be no recovery against an employer for an injury to an' employe which he would not have sustained if he had not voluntarily and unnecessarily used an appliance for a purpose other than that for which he knew it to be intended.
    3. Though issues joined in a case are triable to a jury, when the facts are conclusively determined in a manner not affected by material error the application of the law to such facts is a function of the court, and its exercise, when properly invoked, becomes a duty.
    (No. 11152
    Decided March 9, 1909.)
    
      Error to the Superior Court of Cincinnati.
    ■ March 28, 1903, the defendant in error brought suit in the superior court to recover from the plaintiff in error and the City and Suburban Telegraph Company, damages on account of the death of his intestate, alleged to have been caused by the negligence of the original defendants. During the trial the defendant lastly named was by the plaintiff voluntarily dismissed out of the case, and the action preceded a verdict and judgment against the plaintiff in error. The Suburban Company was, at the time the plaintiff’s intestate received his fatal injury, engaged in the transmission of messages by telephone, and in the record it is referred to as the telephone company. Archdeacon was employed by the telephone company as a lineman. It' was alleged, that sometime prior to January 26, 1903, which was the day upon which the fatal injury occurred, the telephone company had permitted the electric light company to stretch a guy wire from one of its poles to a pole of the telephone company in such a negligent manner as to endanger the lives of the employes of the telephone company, and also to attach to its poles and there to maintain, wires for the transmission of heavy currents of electricity, the wire being defectively insulated to the great danger of its employes. On January 26, the plaintiff’s intestate, acting pursuant to directions of his foreman, as the petition alleges, without knowledge of said dangerous condition, coming in contact with one of said wires, was killed without negligence on his part and by reason of the condition of said light wires and said guy wire. The suit was for the benefit of the parents and the brothers and sisters of the intestate, he being unmarried. On April 7, 1903, the defendants filed separate answers admitting the appointment and qualification of the administrator, the corporate character of the defendants, and the allegations of the petition respecting the business in which they were engaged. March 11, 1905, the defendants filed a joint amended answer withdrawing the admission respecting the due appointment and qualification of the plaintiff, and denying that he became qualified until March 10, 1905. The defendants did not plead contributory negligence, but as the basis for the introduction of evidence to establish it relied upon their general denial of their allegations of the petition which were • not expressly admitted, which included the plaintiffs allegation that his intestate received the fatal injuries without fault on his part. On their allegation that the plaintiff was not appointed and qualified until after he instituted the suit, the defendants recovered judgment in the superior court. That judgment was reversed by this court and the cause was remanded for further proceeding. After the mandate of this court went down, and shortly before the trial was to be entered upon, the defendants asked for leave to amend their answer, and they.tendered, first, an answer which not only alleged contributory negligence on the part of the plaintiff’s intestate, but also repeated the allegations which this court had held to be insufficient as a defense respecting the appointment and qualification of the administrator. Leave to file the same was refused by the court. Then apparently recognizing the impropriety of an answer repeating a defense which this court had held to be insufficient, the defendants asked leave to file another answer pleading contributory negligence and omitting the allegations with respect to the want of qualification of the administrator. Leave to file this was also refused. This refusal was said to be justified, if not required, by a rule of the superior court, that amendments shall not be permitted after a case is called for trial. The cause then proceeded to trial upon the original pleadings. The plaintiffs case, as made by the evidence was, in substance, that his intestate, at the time of his death, was twenty-one years of age, unmarried; that upon the day when he received his injury he was directed to climb the pole in question for the purpose of restoring to its position a wire of the telephone company whose employe he was, which wire had been displaced by a falling limb, and that while carrying out that order in his own way, when he reached the proper height upon the pole he abandoned the stirrups provided for that purpose and stood upon the guy wire, and thus standing attempted by means of a hand rope attached to the detached telephone wire to throw that about the electric lig'ht wire and draw it over into' place; that in doing so the guy wire being attached to the pole so as to be in contact, with the metallic blade, which was connected with a truss rod to add stability to the pole, and his hand touching an electric light wire charged with a heavy current at the point where the insulation was defective, although the defect was not apparent, he established a connection which carried the fatal current through his body. Upon the trial a witness called to establish the earning capacity of the decedent, was permitted, among other things, to produce three envelopes which were assumed to be pay envelopes. They were not identified as such, otherwise than by testimony showing that they had been found in the house where the decedent lived with his parents, and by the endorsement thereon which were upon each, “Mr. Archdeacon”' and upon one “Pay $29.40,” upon another “Pay
    “24.75.”
    $28.80,” and upon the third “ 6. .” Another
    “18.75.”
    witness was permitted to testify, over the objection of the plaintiff in error that one ascending the pole upon a mission such as that in which the decedent was engaged, would naturally stand upon the guy wire instead of the stirrups. He was also permitted to testify that although he was a lineman, he had never known a guy wire to be so attached, nor had he ever known an. accident to result from standing on such wire. Upon the conclusion of the plaintiff’s evidence, the plaintiff in error asked the court to direct a verdict in its favor. That request was denied. It thereupon called as a witness in its behalf, the foreman of the telephone company who was present at the time of the injury to Archdeacon, who testified that addressing Archdeacon and one Cook generally, he directed them, or one of them to replace the detached wire. Archdeacon thereupon ascended the pole to determine the manner in which it should be done, and ascended it twice before the ascent upon which he received his fatal injury; that no direction was given to Archdeacon whatever as to the manner in which he should restore the wire to its place, but that was left to his own discretion and experience. At the conclusion of the testimony of this witness, the plaintiff in error again asked the court to direct a verdict in its favor, and its request was denied. Thereupon numerous requests or instructions were made by the defendant. Among them were the following, all of which were refused.
    v.
    “If you find from the evidence that the defendants Were guilty of negligence, still the plaintiff can not recover unlesss the negligence was the direct and proximate cause of the accident.
    VII.
    “Although you should find that the defendants, or either of them, were guilty of negligence, still neither of said defendants would be liable in this action unless that negligence was the direct and proximate cause of the injuries complained of. If you find that the direct cause of the accident was not the negligence of said defendants, but that the act of the deceased, John Archdeacon, either in standing upon a grounded guy wire, or in failing to observe that said guy wire was grounded, or in the method in which he passed the hand line he carried over the electric wires of The Cincinnati Gas & Electric Company, or in any other particular, was the direct cause of the injuries received, then your verdict must be for the defendants.
    XVII.
    “If you find the deceased, John Archdeacon, did not use ordinary care at the time of the injuries complained of, such as a man employed as a lineman and skilled as such would have used under similar circumstances, and such want of prudence and care directly caused the injuries, then your verdict must be for the defendants.
    XIII.
    “If you find that the method used by the deceased, John Archdeacon, to-carry up the hand-line and replace the broken telephone wire was dangerous and unsafe, ánd that it was known to him to be so, and that there was another and a safer manner in which the same end could have been accomplished, then I charge you that the deceased, John Archdeacon, adopted the more hazardous metho.d of’ doing the work at his peril, and that there can be no recovery in this action. Your verdict should then be for the defendants.
    IX.
    “If you find from the plaintiffs testimony in this case that the deceased, John Archdeacon, did not use ordinary care at the time of the injuries complained of, such as a man employed as a lineman and skilled as such would have used under like circumstances, and that’ such want of ordinary ^ care or prudence contributed to the injuries received directly, then your verdict must be for the defendants.
    XVI.
    “If- you find from the plaintiff’s testimony in this case that the deceased, John Archdeacon, did not use ordinary care at the time of the injuries complained of, such as a man employed as a lineman and skilled as such would have used under liké circumstances, and that such want of ordinary care or prudence directly caused the injuries, then your verdict must be for the defendants.”
    The jury returned a verdict for the plaintiff and, a motion for a new trial being overruled, judgment was entered upon the verdict. That judgment was affirmed by the general term.
    
      Messrs. Outcalt & Hickenlooper, for plaintiff in error.
    The usual test as to whether negligence is proximate cause of an accident is said to be whether it is such that a person of ordinary intelligence should have foreseen that an accident was liable to be produced thereby. Proximate cause is, therefore, probable cause, and remote cause is improbable cause. Thompson, Commentaries on Law of Negligence, Section 50; Railroad Co. v. Kellogg, 94 U. S., 469; Dussel v. Railway Co., 8 N. P., 622, 52 Ohio St., 649; Railroad Co. v. Snyder, 55 Ohio St., 362; Cooley on Torts, 69; Railway Co. v. Bigham, 90 Tex., 223; Railway Co. v. Staley, 41 Ohio St., 118; McCauley v. Logan, 152 Pa. St., 202.
    An injury which could not have been foreseen or reasonably anticipated as the natural and probable result of an act of negligence is not actionable, because it is not the proximate cause, but either the remote cause or no cause whatever of the damage. Kreigh v. Westinghouse Co., 152 Fed. Rep., 120; Railroad Co. v. Parkinson, 56 Kans., 652; Fowlkes v. Railway. Co., 96 Va., 742; Marsh v. Paper Co., 101 Me., 489; Cole v. Loan Society, 
      124 Fed. Rep, 113; Atkinson v. Transportation Có., 60 Wis, 141; Enochs v. Railway Co., 145 Ind, 635; Hoag & Alger v. Railway Co., 85 Pa. St, 293; Fox v. Borkey, 126 Pa. St, 164; Railroad Co. v. Lumber Co., 49 La. An, 1184; Poland v. Earhart, 70 la, 285; Coley v. Statesville, 121 N. Car, 301; Henderson v. Coal Co., 100 Ga, 568.
    The question of proximate cause depends upon whether the injury was a natural and probable result, that is, whether it would have been foreseen by a man of ordinary prudence and sagacity, and this in turn is a question upon which reasonable minds may and must always differ to some extent. It is therefore peculiarly within the province of the jury. The following cases have so held: Gilman v. Noyes, 57 N. H, 627; Saxton v. Bacon, 31 Vt, 54Q; Express Co. v. Risley, 179 111, 295; Bitting v. Tozvnship, 177 Pa. St, 213; Ela v. Cable Co., 71 N. H, 1; Tucker v. Draper, 62 Neb, 66; Emery v. Exposition, 56 Minn, 460; Lane v. Atlantic Works, 111 Mass, 136; Mortgage Co. v. Rees, 21 Col, 435; Railroad Co. v. Feldstein, 169 111, 141.
    A case indentical with the present one in the occurrence of the accident and in the question of law involved, is that of Huber v. Raihvay Co., 31 L. R. A, 583, 92 Wis, 636.
    The plaintiff’s negligence is the sole proximate cause wherever the defendant’s negligence, if any, has merely created a condition and stopped there, which condition is made dangerous and harmful by the plaintiff’s voluntary act, whether considered negligent or not. Elliott v. Light Co., 204 Pa. St, 568; Lindsay v. Railway Co., 114 Ga, 896; Railway Co. v. Cartledge, 116 Ga, 164; Schzvartz 
      v. Shull, 45 W. Va., 413; Leeds v. Telephone Co., 178 N. Y., 118. '
    One who voluntarily exposes himself to evident risks of injury by another’s negligence can not recover against the latter for injuries resulting from such exposure. Cook v. Johnston, 58 Mich., 437; Williams v. Weidman, 135 Mich., 444; Curran v. Railway Co., 63 N. Y. Supp., 209; Bridger v. Gresham, 111 Ga.,'814.
    
      Mr Charles M. Cist; Mr. Edward Colston; Mr. W. A. Rinckhoff and Mr. D: T. Hackett, for defendant in error.
    Where the facts are undisputed, and where reasonable minds can draw but one conclusion from such facts, the evidence raises no issue of proximate cause to be submitted to the jury, or upon which the jury requires instruction, and it would be error to give a superfluous instruction, lest the jury should assume that the court considered that the evidence left the question in doubt. Pennsylvania Co. v. Rathgeb, 32 Ohio St., 66; Railway Co. v. IJidtke, 69 Ohio St., 400.
    The following authorities support the proposition that the undisputed facts in this case showed that the defendant negligently caused the death and that decedent was himself free- from negligence, so that no charge on proximate cause or negligence of plaintiff was called for. Yazoo City v. Birchett, 89 Miss., 700; Horning v. Telephone Co., 186 N. Y., 552; Telephone 'Co. v. Thomas, 99 S. W. Rep., 879; Rower Co. v. Garden, 78 Fed. Rep., 74; Dwyer v. Electric Co., 46 N. Y. Supp., 874; Pozver Co. v. l^efevre, 55 S. W. Rep., 396; Electric Co. v. Rose, 214 111., 545; Telephone Co. v. Nelson, 82 Md., 311; Ennis v. Gray, 34 N. Y. Supp., 379; Griffin v. Light Co., 164 Mass., 492; Overall v. Light Co., 20 Ky. Law Rep., 759, 21 Ky. Law Rep., 886; Perham v. Electric Co., 33 Ore., 451; Reagan v. Light Co., 167 Mass., 406; McLaughlin v. Light Co., 100 Ky., 189; Anderson v. Light Co., 63 N. J. L’., 387; Mahan v. Railway Co., 189 Mass., 4; Joyce on Electric Law, Sections 663, 664, 667; Geisman v. Electric Co., 173 Mo., 654; Haynes v. Gas Co., 114 .N. Car., 203; Clements v. Light Co., 44 La. An., 695; Horne v. Power Co., 144 N. Car., 375. .
   Shauck, J.

Counsel for the opposing parties seem now to be agreed upon the proposition, that we have before us a case which calls only for the application of the law to a state of facts determined by the concurrent testimony of all of the witnesses to all the material circumstances attending the death of the intestate of the defendant in error. Counsel for the company, by their motion made at the conclusion of the plaintiff’s evidence for a directed verdict in its favor, and a renewal of that motion after the introduction of the only witness called by it, have placed themselves in a position to insist that the case presented only a question of law. Their applications for a directed verdict being denied, complying with the ruling of the court, they requested the court to give to the jury certain familiar propositions of law respecting proximate cause and contributory negligence for their guidance in determining whether the company was liable or not. These were all refused. A verdict and judgment having been rendered in favor of the original plaintiff, his counsel now insist that, although some of the instructions requested were undoubtedly sound propositions of law, their refusal does not constitute a ground for reversing the judgment, because upon the undisputed facts or, which is the same thing, upon the harmonious testimony of all the witnesses, the plaintiff was entitled to recover as a matter of law. Counsel agree that ordinarily questions of negligence, contributory negligence and proximate cause are mixed questions of law and fact to be determined by. the jury upon proper instructions, but that conform-ably to the rules laid down by this court in the Pennsylvania Company v. Rathgeb, 32 Ohio St., 66, and the Railway Company v. Liidtke, 69 Ohio St., 400, when all the material facts touching those questions are established without dispute in the testimony, the question becomes a question of law merely. This is but an application of the rule of obvious importance that the function of the jury being to determine issues of fact, when the facts are conclusively determined in a manner not affected by any error, nothing remains to be done but to apply the law to those facts, and that application' is a function of the court. And this is true at whatever stage of the progress of a case, or in whatever manner the material facts may be thus conclusively established, whether it be by the statements of counsel made for the purpose of the trial, or by the failure of the party upon whom the burden of proof rests to offer substantial evidence in favor of all the allegations which the issues require him to support, or by the concurrent testimony of all the witnesses, or by an agreed statement of facts, or by a special verdict, or by the answer of juries to interrogatories. It is subversive of the public interests and promotive of no right of either party to continue a contest before a jury when nothing is involved but the application of the law to a state of facts conclusively established. We unite with counsel for both parties in the conclusion that this is such a case. The question for determination, therefore, is, whether the facts appearing upon the trial of the case show a right to recover or not.

Some recent refinements upon the law of proximate cause and contributory negligence have expanded - judicial opinions and aided, in filling the pages of text-books, but they do not seem to make the law clearer or its application more certain. There is no occasion to doubt, that by their arrangement for the joint use of the wooden pole, upon which the decedent received his fatal injury, for the purpose of carrying their wires, each company became charged, as to that use, with the same obligations to employes of the other company as to its own, and the employes of each company became charged with the correlative duty of exercising due care for their own protection with respect to both of the companies. Could there be a recovery in the present case if the decedent had been an employe of the plaintiff in error instead of the telephone company.? According to the testimony of all the witnesses, both as to the conditions existing at the time of the fatal injury and as to the operations of the electric current, it was indispensable that four distinct acts, all alleged to be negligent, should concur. They are, that the company attached its guy wire to the pole at the point where it was in contact with a truss plate, thus grounding the guy wire; that its line wire was defectively insulated; that the'decedent placed his foot upon the guy wire instead of upon the stirrups, or steps,_ provided for that purpose, and that while in that position he brought- his hand in contact with the defectively insulated wire. If any one of these four conditions had been omitted, according to the testimony, the decedent would have received no injury. Assuming" the negligence of the company, both as to the manner of attaching the guy wire, and the maintaining of the defectively insulated line wire, would it naturally expect an injury of this character to result from those defective conditions if known to it, or if capable of being known by the exercise of ordinary care? All of these dangerous conditions were beyond the reach of the inexperienced members of the public, and where they might affect only those who were familiar with the surrounding conditions, or would be entitled to be informed respecting them if they were not so familiar. The decedent was an experienced lineman, and there is no suggestion that he needed to be informed as to the perils of his occupation.

■ The company is liable in the absence of contributory negligence for such consequences as would, in the exercise of ordinary foresight, be regarded as likely to result from ■ its negligence. In the exercise of such foresight would it have been foreseen that these conditions, inaccessible to persons not engaged in the dangerous occupation of maintaining the lines, might naturally lead to injury to those so engaged? The obvious and known purpose of guy wires is to give stability to the poles to which they are attached. The obvious and known purpose of the stirrups or steps, with which this pole was supplied, was to furnish the means of ascent and descent to those who were charged with maintaining the lines. The presence and purpose of the stirrups were obvious and. were well known to the decedent, for not only was he experienced in his employment, but he had twice ascended and descended by them but a few minutes before the ascent upon which he received his fatal injury. ■ The contact of his hand with the wire carrying the fatal current seems to have occurred fortutiously while he was attempting to pass a hand rope over it, but a like observation can not be made with respect to his position upon the guy wire. However little he may have reflected upon the consequences which might result therefrom, he assumed that position purposely and unnecessarily. If his contact with the guy wire had resulted from accident, as by the giving way of a stirrup or other chance incident to the performance of his duty, important considerations, now absent, would have been introduced into the case. In view of the considerations actually presented, can it be said that the injury to the decedent was a consequence to be. anticipated in the exercise of ordinary foresight? Furthermore, observing how closely allied are the subjects of proximate cause and contributory negligence in cases of this character, and remembering that the doctrine of comparative negligence has never been applied in this state, can it be said that the decedent exercised due care for his own safety? Neither in brief nor record can we find sufficient reason for an affirmative answer to either of these questions. They must be answered in the negative.

While the case presents an unusual state of facts, they are not, in legal aspect, without precedent. In Huber v. La Crosse City Railway Company, 92 Wis., 636, the right to recover was denied in a case depending upon the same considerations. This conclusion renders all other assignments of error immaterial, and none of them is considered. Judgment of general and special term reversed .and final judgment for plaintiff in error.

Judgment reversed.

Crew, C. J., Summers and Davis, JJ., concur.

Spear and Price, JJ., concur in'the judgment of reversal, but not in the final judgment:  