
    J. W. Pike, v. Cedar Rapids & Marion City Railway Company, Appellant.
    Master and servant: negligence of street railway company. A i street railway company which maintains its cross wires for the support of trolley poles closer to the ground than permitted by a city ordinance is guilty of negligence for which an employee injured thereby may recover.
    Same: contributory negligence: evidence. In this action the ques-2 tion of whether a street car conductor was negligent in failing to observe the cross wires by which he was caught and thrown to the ground while holding a broken trolley pole in position was for the jury.
    Same: instruction. In this action for injury to a street car con-3 ductor from contact with overhead wires, while on top of the car holding a broken trolley pole in conducting the car to the barns, an instruction that plaintiff was required to exercise reasonable care and was chargeable with such knowledge as in the exercise of reasonable care he ought to have known; that the jury should consider the character of the work, rules of the company and plaintiff’s knowledge thereof in determining whether he saw or should have seen the wires; and, conceding that he saw the wires, whether his mind was momentarily diverted from the danger, and should consider all the facts existing at the time, was not erroneous because attempting to excuse his negligence, and as limiting the jury to a consideration of the facts surrounding him at the time of his injury.
    Same: scope of employment. The evidence in this case disclosed 4 that in like accidents the employees usually returned the car to the barn in the manner pursued by plaintiff, and that the superintendent of defendant saw the plaintiff on top of the car just before the accident and made no objection to the manner in which he was conducting the car; and it is held that a finding that plaintiff was acting within the scope of the employment was justified, notwithstanding the fact that a rule of the company required such accidents to be reported to the company.
    Same: evidence of custom: waiver. A custom of employees in the 5 performance of work at variance with a rule of the master and acquiescence therein may be shown to establish a waiver.
    Came: admission of evidence: harmless error. Any error there 6 may have been in the admission of evidence in this case to the effect that when a car was disabled the employee longest in the service was to assume charge, which in this instance was the motorman, and that he directed plaintiff to remain on top of the car and hold the trolley pole, was not prejudicial, in view of the court’s instruction that the motorman was a fellow servant for whose acts the defendant was not liable.
    
      Appeal from Cedar Rapids Superior Court. — Hon. C. B. Robbins, Judge.
    
      Wednesday, May 10, 1911.
    Action for damages resulted in judgment against defendant, from which it appeals.
    
    Affirmed.
    
      William G. Ciarle and William E. Steele, for appellant.
    
      Pichel & Dennis and P. W. Tourtellot, for appellee.
   Ladd, J.

I. Negligence of the defendant was established conclusively. The ordinances of the city of Cedar Bapids required “the cross-wires or brackets, as the case may be, for the support of trolley wire, shall - 7 , . .. t i • i be attached to said posts at such a height . ° as to maintain said trolley wire at every ^ * ** point not less than eighteen feet above the surface of the street.” A penalty was prescribed for violation thereof. The cross or span wire which caught plaintiff and threw him from the top of the car was nearly two feet less than? eighteen feet from the surface. The company was negligent in not maintaining the wire at the required height.

II. The main controversy is whether plaintiff also was negligent, and thus contributed to his injury. He had been an extra conductor on the defendant’s line for several ' months. At about eight o’clock in the morn-“g of September 5, 1907, the car started from Cedar Bapids for Marion; he acting as conductor and Cris Borchart as motorman. It had passed Fourth Avenue, and, when backing up to turn, the trolley pole came from the wire and was bent. Plaintiff and Borchart went on top of the car, and, in trying to replace it with another pole, discovered that the spring which held the pole in place was broken. Plaintiff held the pole in place while the motorman guided the car to the barn. On starting back, plaintiff stood, but, as tbe pole when the car turned came near pulling bim off, be got down on one knee, and shortly after it passed 0 Avenue a f span wire designed to bold tbe trolley wire in place caught and pulled bim from tbe car. lie testified tbat:

When I got near tbat span wire beyond 0 Avenue, tbe trolley pole came off tbe wire, and I just got tbe pole replaced on tbe wire and turned around as I got a glimpse of tbe span wire tbat struck me about here, tbe top edge of tbe shoulder, and knocked me off the car and broke this leg just above the ankle. I couldn’t tell bow far away from this' span wire we were when tbe wheel came off the trolley. I didn’t see tbe span wire before it struck me. I got a glimpse of it just as it struck me, but I felt it strike me, 'and felt pain at tbe tipper edge of my shoulder about where it struck me. There was a running board probably a foot wide on top of tbe car, and I held my knee on it and my other foot down at tbe side of it, and I was bolding tbe trolley pole, and, when I got within about twenty or thirty feet of tbe span wire, tbe trolley pole came off of tbe wire, and I looked around and straightened it up, and then just turned around and got a glimpse of this span wire as it struck me. I bad not seen tbe span wire before tbat. Up to this time I bad no difficulty with any other span wires or with tbe trolley wire until I was struck at C Avenue. Tbe span wire is tbe wire tbat bolds tbe trolley wire in place in tbe center of tbe track, and is connected to posts in tbe parking at tbe sides of tbe street's. I was knocked to tbe ground on tbe west side of tbe car.

He was facing tbe direction in which tbe car was moving, and could have seen tbe wires, bad be looked, as they were in plain view. He was aware of their existence, but gave them no thought or attention as be was:

“Engaged in bolding tbe trolley pole. ... It was getting pretty heavy down tbat part of tbe trip. When I put tbe wheel on tbe trolley wire immediately before tbe accident, I was looking back at tbe wire to adjust it. I put it on tbe wire. I would have to see tbe wire to put tbe pole on it. I suppose the wire was above my head. . . f I held the pole to one side of my shoulder. The wire would be to the side, straight up and to one side, and the trolley wire would be on a line with the pole and the side of my shoulder and above it. I would have to use force in holding the trolley wire up. It took quite a bit of energy to hold the pole to the wire. A person would have to use a good strong grip to hold it up against the wire in this position. The pole was heavy and hard to hold up. When the wheel would slip from the trolley wire, the trolley wire would go up and down. By my holding the pole with force against the wire its coming off would let the wire down.

Plaintiff’s negligence, if any, was in failing to avoid the span wire. None other had interfered nor for that matter had been observed. Presumably, as the car was eleven feet and five inches high, the wires should have been more than six'feet above it and have involved no danger. Plaintiff was bound, however, to make use of his senses, and, even though he may not have noticed the wires, he knew they were there and must be assumed to have seen what a man of ordinary diligence would have observed under like circumstances. He had been pressing the trolley wire upward continuously, so that the wire near him might have been somewhat higher than the span wire, and, as the latter was about thirty feet ahead at the time the wheel at the end of the pole got off the trolley wire, the elevation of the span wire above the car would then have been difficult to determine. Of necessity he looked back in connecting with the trolley wire again, and in doing so his attention was diverted so that he did not see the cross-wire, as otherwise he must have done, until it struck him. Had he noticed it an instant sooner, he could have dropped to the car, and thereby have avoided injury. The inquiry then is reduced to whether upon the wheel at the pole becoming disconnected from the wire he ought from what he then knew to have anticipated that, should he turn back to connect the pole with the wire again at that time, he likely would be caught by the span wire. Owing to the circumstances mentioned, we are of. opinion that it can not be said'conclusively that a person of ordinary prudence would not have done what plaintiff did, and therefore the issue as to whether he was negligent was for the jury.

III. The third instruction is severely criticised, and for this reason may be set out:

The plaintiff was bound to use reasonable ordinary care and vigilance in undertaking to ride the car in question to the barn, and is chargeable with all the knowledge that in the exercise of reasonable and ordinary care and vigilance he might and should have acquired as regards any perils or hazards in what he undertook to do. In determining this question, you must take into consideration the character of the work he was undertaking to do, which was not the character of work usually performed by the conductors upon the line of the defendant company, the rules of the defendant, for his conduct and his knowledge thereof, the situation at the exact time of the accident, as to whether or not he saw or should have seen that the span wire, by which he claims to have been knocked from the car, was in such a condition as to be dangerous to a man in the position in which he was situated on top of the car, whether or not, admitting that he saw or should have seen the wire in question, such a situation arose as momentarily attracted his mind from the dangerous position of the wire, as claimed by him; and you must also take into consideration the other facts and circumstances as they existed at the time of his injury. And after taking into consideration all of these things, unless the plaintiff has satisfied you by the greater weight or value of the evidence that the injury of which he complains was not caused or contributed to in any manner by his own negligence, then you are instructed that your verdict must be for the defendant.

Pirst, it is said that the recital of matters to be considered “amounts to an effort to palliate and excuse” plaintiff’s negligence. But this is without foundation. Necessarily matters bearing on plaintiff’s conduct only were alluded to, and it was not error to mention those in his favor as the fact that he was not engaged in his usual oceupaL tion as well as to direct attention to those having a contrary tendency. It is not open to the criticism of enumerating matters bearing in one direction and omitting all others as were the instructions condemned in the numerous authorities cited. The propriety of referring to his attention being diverted from observing the position of the wire ought not to be questioned. Suppose he had been giving the wire no concern. This may have been owing to its elevation out of harm’s way. It does not follow that he might not have seen the cross-wire but for such diversion. .Surely one’s attention may be so diverted that he will not discover danger which he otherwise would even though he had given it no previous thought. Complaint is made of that portion of the instruction which limits the jury to facts and circumstances surrounding him at the time of the injury. What other facts and circumstances would appellant have considered ? Certainly those relating to some other time would not have been pertinent to the issue 'being tried..

Another criticism is of that portion of the instruction suggesting consideration of the situation at the exact time of the accident, as to whether or not he saw or should have seen that the span wire by which he claims to have been knoclaed from the car was in such condition as to be dangerous to a man in the position in which he was situ.ated on the top of the car. This was correct, for, unless he ought to have seen the wire so placed as to render it dangerous to a man in his situation, he was not negligent. This did not exclude, as he argued, what may have happened previously or plaintiff’s situation with reference to the wire prior to the time of the accident. Indeed, these matters seem to have been contemplated and the design of the court to have been to concentrate attention on the proposition as to whether plaintiff, in- view of what had previously occurred, should, at the time of the accident, have observed the wire and its dangerous proximity. If in the •exercise of reasonable care he should have seen the wire, then, of course, he could have avoided it by dropping to the car, and could not recover. Though not inclined to commend the language of the instruction, we are not disposed to exaggerate expressions which could not have misled the jury into reversible errors.

IV. Appellant contends that the evidence failed to show that plaintiff was at work within the scope of his employment when injured, and seems to rely upon a rule of the company reading: “All breakage or imperfections in the track or overhead system must be reported by both conductor and motorrnan in their daily reports. When any such require immediate repair notice must be sent at once to the superintendent’s office.” Upon discovery that the spring was broken, there was some discussion as to whether the office •should be telephoned for a car, but this was not done. Counsel argue that plaintiff was without authority because of this rule to do otherwise than notify the company. It is by no means clear that the breakage was within this rule. What was the “overhead system”? It-might well have been construed to be the network of wires above through which the power was applied, and not the cars or any of their attachments. The platform containing the spring was on the car, and an extra pole was carried to replace any injured while out on the track. But, if there be doubt, the rule had been construed as suggested, for the evidence was undisputed that employees in event of like accidents customarily returned the cars to the barn as this was being taken at the time of the injury. Moreover, the superintendent observed plaintiff on top of the car holding the trolley pole -shortly before the accident without interposing any objection.

It was also competent to prove this custom of the employees at variance with, the rule, if it was, and acquiescence therein by the officers of the company as establishing _w'afTer thereof as the court instructed. Lowe v. Railway, 89 Iowa, 420. The evidence justified the finding that plaintiff was acting within the scope of his employment.

Y. It appeared that the motorm-an had been longest in defendant’s service, and that he directed plaintiff to remain on top of the car and hold the trolley pole, and evidence was introduced over objection to the effect that, when a car was disabled, the emp]0yee longest in the service was in-control. On what theory this evidence was received ,is not apparent, unless, as suggested by appellant, it wag that the motorman in such a situation became a vice principal. Be this as it may, the court instructed that the motorman was but a fellow servant of plaintiff and any directions given -him by the former were not binding on the defendant. The latter contends that the evidence was prejudicial, but does not indicate in what respect. In view of this instruction, it seems impossible that whether such a custom existed could have had the slightest influence on the. result.

Other rulings criticised are approved, and the judgment is affirmed.  