that decedent was guilty of contributory negligence. Mr. Hodgins was a man of long experience in this line of work. His employer's manager testified: "He was one of the most experienced men in that line I have ever known or ever had work for me. I have always thought he was very careful and prudent; sometimes thought he carried it a little too far." There was competent testimony tending to show that decedent was doing his work in a proper manner, and, unless the testimony compels the conclusion that he was negligent in not discovering the dangerous condition of the wire, the question of his contributory negligence was for the jury. The primary wire which caused his death had been erected less than two months before, and the insulation on the wire was generally in good condition, and, except for the break in the insulation of the primary wire and of the tie wire where it was tied to the insulator, the wire was harmless. Decedent was engaged in stringing a heavy lead cable containing 204 telephone wires, and at the time of his death was endeavoring to make a proper bend in the cable so as to bring it down the pole to eventually connect with the Valley Telephone Company's office. It was a bright, cloudless day, and had been dry during the whole day. His manager testified: "He would climb with his front to the pole. I know where the offending place was that led to his death on the wire. In climbing up the pole as I have described, this place would be back of him, and in this position he would practically have no opportunity to discover the defects then in the construction at that point other than by inspection of the wires as appears here. ** If there were 2,200 volts in that wire, and the insulation on it was correct, there would be no danger in my putting my hand on it. The danger arises when the insulation is broken or weather-soaked on account of age and the insulating properties being gone out of it." * * He also further testified that he examined the wire about half an hour after the accident occurred. "I made a very close examination, got right up close to it, and examined it very carefully. The burning I could not see until I got very close to it. I might have noticed it two or three feet away if my attention had been called to it. It was cut into the feed wire to a certain extent. You could see that on any wire that was indented. The condition of cutting in along this wire was no more than I would expect to find at any point. The burning indicated that there was a leak or contact, and, if the appearance had not indicated the burning, I could not have told there was anything wrong there." He and others made a "magneto bell test" the next day, which demonstrated that the insulation on the tie wire and feed wire was cut clear through at that point, and the wires themselves were in actual contact. He also testified that he should consider the insulation on such a wire "absolutely safe for three months." We think the question of decedent's contributory negligence was clearly a question of fact for the jury. 4. Defendant contends: That the testimony of the witnesses McCullough and Crampton shows that they were the persons who made the ties on said wire in July, 1906, and that they would not leave the ends of the tie wire in the condition they were at the time of the accident; that Camp and Kerzrock, employés of the Valley Telephone Company under Mr. Hodgins, testified that its employés moved the city feed wire for their own convenience when working there; that, in view of these facts, it is unreasonable to presume that the line was originally tied as found the day after the accident, and it is a reasonable presumption that Mr. Hodgins knew about his men moving and handling the wires; and that the court erred in instructing the jury that there was nothing to charge decedent with notice of any change made in tying the line. There was competent testimony that, if the tie wire had been changed to the other side of the insulator and retied, the marks of such change would show upon the wires and could readily be detected, that there were no such marks, and, from the appearance of the wire and tie, when exam ined after the injury, no change had been made after it was erected. McCullough testified that he did not make the tie in question, to his knowledge, that Crampton and Quackenbush worked with him, and they put up the line from Linn and Midland streets across the river to Saginaw street, etc. Crampton testified that he could not say who did the work on that pole and denied that he tied the wire as it appeared after the accident. Quackenbush, the man who worked with McCullough and Crampton, was not called, and, in view of the testimony of Crampton, McCullough, and the experts, the logical inference is that Quackenbush made the tie as it was found after the accident. The testimony did not tend in any way to show notice of any change on the part of decedent. The court instructed the jury, as requested by defendant: "If you find that the place where deceased was killed was in a defective condition at the time, and became so after the original construction, at the time he met his death, unless you further find that such condition had existed for such a time as would have enabled the defendant by the use of reasonable diligence to make an inspection, discover the defect, and make the repairs, then the defendant is not liable." This request fully protected defendant's rights so far as the record warranted the submission of the claim of a change in the tie after the original attachment to the insulator. 5. The fourteenth assignment of error is as follows: "Fourteenth. The court erred in charging the jury as follows: Deceased was not called upon before entering upon his work on the pole to examine or inspect the w.re and tie on defendant's line at the place in question to learn whether it was properly insulated. Being authorized and required to work upon the pole, he would have a right to assume and believe that defendant had properly constructed, maintained, and inspected it. And unless you find that condition and danger arising from such defect was one so open and plain that it would naturally attract his attention and should have been seen by him in the exercise of ordinary care in and about his work, then I say to you that he would not be charged with either knowledge or notice of the true condition or danger. He would only stand charged with knowledge and notice of the dangers incident to a wire of equal voltage, similarly situated and properly tied and insulated." Subsequent to the giving of this instruction, the court charged the jury as follows: "The degree of care and caution that plaintiff's decedent was required to observe and exercise when he went upon this pole in question was the care and caution that an ordinarily prudent man of 20 years' experience with electric wires and cables, knowing the extremely dangerous character of such wires carrying a high voltage, would ordinarily observe and exercise, having regard to the insulation ordinarily employed. Plaintiff's decedent, because of his experience and knowledge of the dangerous character of electric wires carrying a high voltage of electricity, was called upon to use and exercise greater care than a person who never had such experience or knowledge of the extremely dangerous character of such wires. His degree of care must be commensurate with his experience and knowledge of the dangerous character of electric wires carrying a high voltage of electricity, and if you find that decedent, under the circumstances as I have just stated, failed in such degree of care, for his own safety, he would be guilty of contributory negligence, and plaintiff could not recover. Plaintiff's decedent was a man of several years' experience with electricity, electric wires, telephone wires, cross-arms, etc., and must have known the result of coming in contact with live wires, as well as the purpose and effect of the insulation, and when he went up on this telephone pole in question and out upon the cross-arm carrying these electric wires, I charge you that it was his duty before going out onto such crossarm and over these electric wires to observe such conditions as were apparent and would naturally attract the attention of a man of ordinary caution under the conditions present, and if by looking he would have discovered that the insulation was stripped off from the tie wire and the tie wire had cut the insulation on the main wire, and that this made the place extremely dangerous, and if he failed in such duty, I then charge you he was guilty of contributory negligence, and in that event your verdict should be no cause of action." Considering the instructions together, we do not think the jury could have been misled into believing that "the question of due care on the part of deceased was wholly disregarded." We have considered the remaining assignments of error, and, considering them in connection with the entire charge, we are satisfied that, if technical errors were committed, they were not sufficiently prejudicial to defendant to require a reversal. Upon the whole the case was fairly and impartially submitted to the jury, and thę verdict is amply supported by the evidence. The judgment is affirmed. GRANT, MONTGOMERY, and OSTRANDER, JJ., concurred. HOOKER, J., concurred in the result. NORBLAD v. MINNEAPOLIS, ST. PAUL & SAULT STE. MARIE 1. STATUTES - AMENDMENTS CONSTITUTIONAL LAW RE-ENACTMENT OF AMENDED STATUTE- PERSONAL INJURIES-DAMAGES DEATH. Act No. 89, Pub. Acts 1905, prescribing the rule of damages in actions for personal injuries prosecuted by the personal representative of the injured person under the statute which declares that such actions shall survive, does not amend section 10117, 3 Comp. Laws, the survival act, and is not, therefore, invalid for the reason that it does not re-enact said section at length as provided by section 25, article 4, of the Constitution. 1 Withheld from publication pending motion for rehearing. Rehearing denied September 21, 1909. |