1

of the defect, and neither regarding it as dangerous, cannot recover damages therefor from the company.'

§ 91. Injuries through the Contributory Negligence of the Servant.-In accepting the risks of a highly dangerous employment, the servant impliedly agrees to exercise, for the promotion of his own safety, that degree of care which is suggested by the degree of the danger; and if he is injured in consequence of failing to exercise such care, he cannot justly cast the liability upon the master. This is well illustrated by a recent case in Virginia, where it appeared that deceased, a servant of an electric light company, was sent to look for a break in the circuit while the current was on, and took with him a defective shunt-cord; that he discovered the break, and, in attempting to turn on the current, grasped the shunt-cord at its defective end, and at the same time put his other hand on the exposed end of the line wire, whereby the current passed through him and killed him; and that, had he grasped the line wire above the exposed end, he would not have been injured. It was held that, as the evidence failed to show negligence on the part of the defendant, unmixed with the contributory negligence of the deceased, the defendant was not liable.'

§ 92. Injuries to Workmen through Negligently Turning on the Current.-If a workman employed by an electric light company is sent to fix a lamp at an hour in the day-time when the current is regularly turned off, and if through negligence, and without giving him warning, the current is turned on at an

1 Jenney Electric, etc. Co. v. Murphy, 115 Ind. 566; s. c., 18 N. E. Rep. 30.

2 Piedmont Electric, etc. Co. v. Patterson, 84 Va. 747; s. c., 6 S. E. Rep. 4.

earlier hour than usual, whereby he is injured, he may recover damages. In the case just cited, the evidence showed that at 3:30 P. M. plaintiff was sent to remove an electric lamp and connect the wires with the circuit; that the usual time for turning on the electric current was 4:30 P. M. on cloudy days, and 4: 45 on clear days; that plaintiff proceeded at a "good gait, pretty fast;" that when he reached the lamp and began work, it was barely 4: 15 P. M., and the weather clear; and that while handling the wires, the current was turned on and he was injured. It was held that a nonsuit was properly refused. It was also held that evidence offered by the plaintiff was admissible to show that, after the injury to the plaintiff from the shock, the defendant posted notices at its works, warning all employees at work on its lines and circuits to quit. such work at 4 o'clock, and not to continue the same without notifying the officers at the works."

§ 93. Injuries to Workmen by Reason of “Live” Wires Sagging upon "Dead" Wires.-A jury may infer negligence from the fact that an electric light company has so strung its wires that those of one circuit cross those of another, so that a slight sagging of one would bring the two in contact, and has maintained one circuit as a live one while employees were set to work handling with bare hands. the wires of the dead circuit crossing the wires of the live circuit." In this case the action was by an employee for injuries alleged to have been received.

1 Colorado Electric Co. v. Lubbers, 11 Colo. 505; s. c., 19 Pac. Rep. 479.

2 Ibid.

3 Ibid.

Kratz v. Brush Electric Light Co. (Mich.), 46 N. W. Rep. 787.

from an electric shock while trimming the company's lamps on circuit No. 11; it appeared that at that time the wires on that circuit should have been dead wires, that is, not charged with electricity. At that time the wires on circuit No. 4 were live or charged wires. The wires in the two circuits ran for some distance on the same poles, and were so placed that wires in one circuit crossed those in the other, so that when they sagged the wires of the different circuits would touch one another. It was shown that the contact of the wires would wear off the insulation; that it had worn off in places; and that where live and dead wires came in contact, at points where the insulation was worn off, the electricity would be instantly conveyed from the live to the dead wire along the whole line. It was shown that the wires of the two circuits were in contact, on the day of the injury, in several places. There was no evidence that the current was turned upon circuit No. 11. It was held that the jury had the right to infer that the electricity was transferred from some live wire on circuit No. 4 to some dead wire on circuit No. 11, at some of the crosses of these wires, and that it was not necessary that they should find the particular point of contact or the particular wires.' It was also held that there was no error in permitting the existence of crosses in other circuits to be shown, and the effect and causes of such crosses, this evidence being given to show that they were caused by the same manner of stringing the wires as on circuit No. 11, and that the sagging of the wires brought the wires in con

1 Kratz v. Brush Electric Light Co. (Mich.), 46 N. W. Rep. 787.

tact, wearing off the insulation and leaving the wires bare.'

§ 94. Averring One Kind of Negligence and Recovering on Another.-In actions for damages for negligence the allegata and probata must correspond. If the servant avers negligence in general terms, without specifying wherein it consists, his declaration, petition, or complaint will be good on general demurrer; though under some systems it will be subject to a motion to make it more definite and certain. But where he avers that the negligence of the defendant consisted in one thing, and then proves negligence consisting in something else, he ought not to be allowed to recover. In fact such evidence is inadmissible under the pleadings, and if objected to, and nevertheless admitted, it is error. When, therefore, in an action by an employee of an electric light company for damages sustained by the plaintiff through the breaking of the cable of an elevator by which he was ascending one of the defendant's towers to perform his duty of trimming the lights, the allegation of the complaint was that the rope had become rotten to the knowledge of the defendant, it was held that instructions requested by the plaintiff as to defendant's liability in case the tower, elevator, and cable were properly constructed, were rightly refused.*

§ 95. Breaking of Elevator of Electric Light Tower. If an employee of such a company is injured

1 Kratz v. Brush Electric Light Co. (Mich.), 46 N. W. Rep. 787. Schneider v. Missouri, etc. R. Co., 75 Mo. 295; Gurley v. Railway Co., 93 Mo. 445; Harty v. Railway Co., 95 Mo. 368; Conway v. Railway Co., 24 Mo. App. 235.

3 Weiden v. Brush Electric Light Co., 73 Mich. 268; s. c., 41 N. W. Rep. 269.

in consequence of an elevator of an electric light tower breaking while he is ascending it to trim the lamps, it will not be a good defense that his lamps. were already trimmed, and that he was consequently not in the performance of his duty. If he was proceeding in good faith and without negligence in the discharge of the duty which he owed to his master, the latter will be none the less liable from the mere fact that the servant may have been mistaken as to the necessity of performing the particular duty on the particular occasion.'

1 Weiden v. Brush Electric Light Co., 73 Mich. 268; s. c., 41 N. W. Rep. 269.