Bowers v. Bristol Gas & Electric Co. rupted electrical current passes from the one to the other in the form of a curved flame or arc. Intense heat is generated by the current encountering an opposing electromotive force at the arc, and energy is transformed into heat. At the same time a brilliant light is emitted by the white-hot carbon electrodes. It appears that the customary, proper, and safe way to adjust the carbons is to separate them with a dry stick,- a nonconductor, -a usage well known to the deceased, who had been engaged in that business for nine years. So that the necessary inference from conceded facts is that the cause of accident was the failure of Bowers to take this obvious precaution for his own safety, coupled with the defective insulation of the wire at the hood pole. In that aspect of the case, it appears that the contributory negligence of deceased was the proximate cause of the injury; and in such case, upon familiar and well-settled principles, there can be no recovery. But there is another view of the case equally fatal to plaintiff's pretensions. The evidence showed that deceased, in addition to trimming lamps and doing inside wiring, was line inspector, and thereby charged with the duty of keeping the company appraised of the condition of the wires, poles, and lamps. It was through him alone that the company could have known of the defective insulation of the wire in question. It is insisted that there was a conflict of evidence on that point, and, under the rules applicable to demurrers to evidence, the doubt must be resolved in favor of the demurree. A careful consideration of the testimony shows that there was no such conflict. Mrs. Bowers, Mrs. Sullivan, and the witness Smith, in answer to a general question as to what were deceased's duties, replied that he trimmed lamps and did inside wiring. But it is apparent that they did not undertake to give a comprehensive statement of all his duties. For, in answer to another question, Mrs. Bowers conceded that it was his duty, in addition to what had been enumerated, to perform the service in which he was engaged when the accident that caused his death befell him; and Smith admitted that he did not know what his duties were. Bowers v. Bristol Gas & Electric Co. On the other hand, Gannon, the general manager of the company, testified that, at the time of the accident, Bowers was employed in the capacity of lineman, lamp trimmer, and line inspector; that he had been engaged in the two former capacities, as witnesses for the plaintiff declared, but left the service of the company, and, after an absence of about two months, in the latter part of August or the first of September, returned, and was employed by him as lamp trimmer, lineman and inspector; that by the former contract he was paid $20 per month for trimming lamps, and 10 cents an hour for extra work and repairing, while under the latter he received a fixed salary of $40 per month. The business of a lamp trimmer is to replace burned carbons, and this is done in the daytime, when the current is off, and when, of course, there is no danger. As line inspector, deceased had entire charge of the line, and it was his duty to inspect the line, and, if out of order, to repair it, if he could; otherwise to report the defect to the company. The company had no way to inspect its lines and lamps, and no means of ascertaining their condition, except through its agent, and no report was made of this defect. Ferguson testified that Bowers repeatedly told him that it was his duty to trim the lamps and inspect the line. And Wiley, who succeeded him, said that that was his business. No attempt was made by the plaintiff to contradict the statements of the company's witnesses as to the duties of Bowers under the second contract. Under these circumstances, it would be, indeed, an unreasonable and narrow view of the subject to hold that the general statements of plaintiff's witnesses as to the duties of deceased were in conflict with those of the company, who gave in detail the precise stipulation of the second contract. Especially is that true in the light of the evidence on both sides that by the original contract the duties of deceased were those of lamp trimmer and inner lineman, and the additional duty to inspect was imposed by the second contract, when his wages were increased in consequence from $20 per month, and 10 cents per hour for extra work, to $40 per month. Bowers v. Bristol Gas & Electric Co. The witnesses of the company did not deny the correctness of plaintiff's version of the terms of the first contract, but affirmed that there was a second contract by which those duties were increased. The plaintiff heard their testimony, and did not contradict it. The testimony on behalf of the company was in the nature of a confession and avoidance, and the matter of aviodance was not controverted. A conflict of evidence cannot be reasonably and fairly predicated of such conditions. In many of the states of the Union - possibly in all except Virginia and West Virginia - the demurrer waives all his evidence. But the rule is otherwise in this jurisdiction, and, as is well understood, the demurrant is entitled to the benefit of all his unimpeached evidence not in conflict with his adversary's, and to all inferences that necessarily flow therefrom. The fact that deceased was line inspector having been estab lished, it follows that any injury arising from defective insulation of wires which it was his duty to inspect was a risk incident to the employment which he assumed, and cannot be made the ground of an action for damages. Still another question was raised and discussed, one of more than ordinary interest. As remarked, the declaration averred and the evidence showed that the alleged cause of action arose in the State of Tennessee. At common law the maxim, "Actio personalis moritur cum persona," prevails, and it is insisted that it was incumbent upon the plaintiff to allege and prove her right to maintain this action under some statute of Tennessee. That this court will take judicial notice of the fact that the territory of which Tennessee is composed constituted a part of the original English colonies of America, and, in the absence of evidence to the contrary, will presume that the common law ob tains there. Nelson v. Railroad Co., 88 Va. 976, 14 S. E. 838, 15 L. R. A. 583; Stewart v. Conrad's Adm'r (Va.), 40 S. E. 624. Inasmuch, however, as the views already taken of the case are conclusive of it, a decision of that question is unnecessary. The judgment of the trial court in sustaining the demurrer to the evidence was plainly right, and must be affirmed. Kellog v. Denver Cons. Tramway Co. DEFECTIVE POLES AND CROSS-ARMS. KELLOG V. DENVER CONS. TRAMWAY Co. Colorado; Court of Appeals. 1. INJURY TO LINEMAN BY FALL OF DEFECTIVE POLE.-The plaintiff was employed by the defendant as a lineman and was injured by the breaking and falling of a pole upon which he was working. The foreman under whose direction he was working assured the plaintiff that the pole had been tested on the day before and that it was perfectly sound. The defendant company had supplied pikepoles and grabhooks and other appliances for strengthening and bracing poles upon which linemen were at work. The plaintiff made no examination to determine whether the pole was safe or unsafe and did nothing to test it before climbing it, except to place his hand upon it and push it. It was held that since the defendant had furnished the plaintiff with proper machinery and appliances for the bracing and securing of poles, it could not be charged with negligence or lack of reasonable care in this regard. 2. ASSUMPTION OF RISKS.-The plaintiff had worked upon poles in the construction and repair of electric lines for many years. He knew that it was his duty to climb poles which had been set in the ground for an uncertain length of time, and that his climbing such poles and taking down and putting up wires would add a strain much greater than the pole would be exposed to in sustaining the wires when they were all in proper position. The risk of falling on account of the weakness of old poles is, therefore, a risk of the business which the plaintiff assumed by his contract to work as a lineman for the defendant. As between the plaintiff and defendant, the defendant was under no obligation to inspect the poles to see whether they were safe or unsafe. Appeal by plaintiff from judgment for defendant. Decided May 11, 1903; reported 1 St. Ry. Rep. 27, 72 Pac. 609. S. L. Carpenter and John T. Battom, for appellant. A. M. Stevenson and Charles J. Hughes, for appellee. Opinion by Maxwell, J.: This was an action by the plaintiff to recover damages for the alleged negligence of the defendant's predecessor, the Denver Consolidated Tramway Company, which corporation, by a consolida Kellog v. Denver Cons. Tramway Co. tion with another corporation, became the defendant herein. Trial to a jury. At the close of plaintiff's evidence defendant's motion to instruct the jury to return a verdict for the defendant was granted. Judgment was rendered in favor of defendant on the verdict, and plaintiff appeals. Plaintiff was employed by defendant as a lineman, and was injured by the breaking and falling of a pole upon which he was working. Plaintiff testified that at the time of the accident he was twenty-seven years old, had been working as a lineman for the company for about three months, and had been engaged in the business of lineman and electric work for about eight years. On the day when the accident occurred he was working, with two other employees of the company, resetting poles, changing wires, and placing back guys; that immediately preceding the accident he had ascended a pole and removed a wire therefrom; that this pole had been braced with two pike poles, as Parker, who seemed to be in charge of the work, said it was rotten; that he was then ordered by Parker to splice the wire just removed from the pole, and place it on the pole which subsequently broke. Plaintiff asked Parker if he intended to guy this pole, as there would be an added strain placed upon the pole. Parker replied that the pole had been tested the day before by digging down and testing it with a bar, and that it was perfectly sound. Plaintiff ascended the pole, which stood twenty-five or thirty feet above the ground, put the wire in position, put on a small block and tackle, and commenced to pull up the slack, when the pole broke, and carried plaintiff with it to the ground, seriously injuring him by the fall, and by bringing him in contact with live electric wires. Plaintiff further testified that he was hired by a Mr. Matthews; that Parker was the foreman, and worked with the lineman; that there were pikepoles, grabhooks, and other appliances for strengthening and bracing poles on the repair car at or near the place where the accident occurred; that the pole which broke was ten or twelve inches large at the top, and larger at the bottom; that it broke at the surface of the ground; that before he ascended the pole he made no examination whatever to determine whether the pole was |