[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 224 We approve as sound the following rules of law, which are well settled by the most authoritative decisions in this country:
1. "The duty of an electric company in conveying a current of high potential, to exercise commensurate care under the circumstances, requires it to insulate its wire, and to use reasonable care to keep the same insulated, wherever it may reasonably be anticipated that persons, pursuing business or pleasure, may come in contact therewith. This statement of the rule implies that, in the absence of statute or municipal ordinance, it is not necessary to insulate wires which are so placed that no one could reasonably be expected to come in proximity to them." Curtis on Law of Electricity, § 510.
2. "Insufficient or worn insulation is worse than none, for sometimes it gives an appearance of security when, in fact, it is as dangerous as a bare wire." Id.
3. "The fact that it may be expensive to place a proper insulation upon electric wires is no excuse for a failure to do so." Id.
4. The obligation of the electric company to insulate is not absolute, but alternative, in its nature. "Either the wire must be insulated, or it must be so located as to be, comparatively speaking, harmless." Id. § 511.
5. "An electric company, maintaining a dangerous wire through or near a tree, is bound to anticipate that persons may lawfully climb the tree, and it is bound to exercise due care to prevent injuries to such persons from its wires." Id. § 512.
6. "The maintenance of a wire through a tree requires frequent inspection, for the company is charged with knowledge that the swaying of the limbs is likely to abrade the insulation and permit the dangerous current to escape." Id.
(These last two propositions are, of course, to be qualified by the nearness or remoteness of the tree with respect to human beings, and their natural and probable associations therewith.)
7. From the foregoing it is clear that courts judicially know that even wires carrying very high voltage may be so insulated as to at least materially lessen the danger of shock to those who come in contact therewith.
But the extent of such protection, and the particular physical conditions, if any, under which insulation may become entirely useless, are matters for expert opinion.
The merit of the fourth count of the complaint is rested upon the assumption that defendant is guilty of a breach of duty to employés of the telephone company in maintaining and operating a wire, carrying a dangerous current of electricity, in such proximity to the telephone wires that their employés are likely to come in contact therewith while in the proper discharge of their duties. But it is clear that the maintenance and operation of such a wire by defendant is wrongful only when the dangerous proximity complained of is caused by defendant.
If the telephone company has erected its wires in dangerous proximity to defendant's wires previously erected, defendant is manifestly under no duty to remove its wires to a safe distance.
It is no doubt true, in such a case, that, if defendant acquiesced in the dangerous *Page 225 proximity of the telephone wires to its own, it would be under the duty to keep its wires in such a condition as to insure the safety of those exposed to immediate contact therewith, so far as due care may do so. Curtis on Law of Elec. § 519, citing Staab v. Tel. Co., 23 Idaho, 314, 129 P. 1078; Wilkins v. Water, etc., Co., 92 Neb. 513, 138 N.W. 754; Hipple v. Edison, etc., Co., 240 Pa. 91, 87 A. 297.
And, with respect to third persons who may be injured at other places by the contact of the two wires, it is the duty of both companies to remedy the dangerous condition, no matter which one primarily caused it. Macon v. Paducah St. Ry. Co.,110 Ky. 682, 62 S.W. 496; 7 Am. Elec. Cas. 630; Herbert v. Charles Lake, etc., Co., 111 La. 522, 35 So. 731, 64 L.R.A. 101, 100 Am. St. Rep. 505; Curtis on Law of Elec. § 480.
But this count is not based upon any defective condition of defendant's wire, nor upon its contact with the telephone wire, but solely upon its dangerous proximity thereto. We think the count is deficient and subject to the demurrer, in the absence of an averment that defendant placed, as well as maintained, its wire in the dangerous proximity complained of.
So, we think that the fifth count is also defective and subject to the demurrer, in that it shows no facts which would render the act complained of, viz. "causing said wire to be charged with a current of electricity which was dangerous to human life at said point," a breach of duty to the employés of the telephone company. The only duty with respect to the use of such wires — which is a necessity in modern industrial and municipal life — is to place them where they are normally inaccessible to the unwary, and to guard them by the best insulation, or other practicable protective devices, from dangerous contact with those who may nevertheless be expected to be exposed thereto. In Consolidated, etc., Co. v. People's, etc., Co., 94 Ala. 372-375, 10 So. 440, it was stated, as a proposition falling within the purview of common knowledge, that "contact with electrical conductors, sufficiently charged to subserve the purposes of city illumination, destroys animal life."
Thus charging a wire, even with knowledge that the telephone company's employés might come in contact with it as shown, is not a breach of duty, unless the wire is improperly located, or in an improper condition as to insulation.
The sixth and seventh counts are sufficient as against defendant's demurrers. Under the authorities above cited, plaintiff's exposure to contact with defendant's wire in the tree, though speculative, was fairly within the range of natural and probable events suggested by the circumstances, of which defendant was bound to take notice.
Plea 9 includes in its averments every element necessary to a plea of contributory negligence under the facts shown by the complaint, and is not subject to any vice pointed out by the grounds of demurrer. As this plea, in connection with plea 15, will afford defendant full scope for the defense of contributory negligence, we do not notice the rulings on other pleas of like character.
Charges A and B, given at the instance of defendant, are palpably erroneous. Contributory negligence is not predicated solely on knowledge of the danger, and the certainty of injury to follow. If such were the rule, contributory negligence would be but a synonym for willful suicide or self-injury. If plaintiff had knowledge of facts sufficient to warn a man of ordinary sense and prudence of the danger to be encountered, and of the natural and probable consequences of his own conduct in the premises, then he was guilty of negligence if he failed to exercise ordinary care to discover and avoid the danger and the injury. 29 Cyc. 513, c; Id. 515, d; Sloss S. S. I. Co. v. Reid, 191 Ala. 628, 68 So. 136. See, also, Curtis on Law of Elec. §§ 531, 537.
Under the testimony in this case, the instructions in question were, in effect, general affirmative charges for the plaintiff on the issue of contributory negligence, and their giving was prejudicial error.
A party is entitled to have the jury instructed as to the legal effect of the pleadings in the case, and we think that charge 18 should have been given as requested by defendant. McDonald v. St. Ry. Co., 110 Ala. 161, 20 So. 317. In view of the general explanations given in the oral charge to the jury, its refusal in this instance might not be reversible error.
If defendant was guilty of negligence either in placing its wires, or in allowing them to sag, in dangerous proximity to the telephone wires, or in maintaining them there without proper insulation — and these are manifestly the only theories upon which defendant's negligence can be grounded — then the doctrines relating to trespassers and licensees (as presented in defendant's refused charge 11 and others) can have no application to this case.
The seventh count charges that defendant negligently allowed its dangerous wire "to sag down among the wire of the telephone company." "Among" means in the midst of, or mingled with; and this allegation is not supported by proof that defendant's wire sagged down to 12 or more inches above the telephone wire. The allegation is descriptive of the negligent act charged, and goes to its substance. It is therefore not a case of variance merely, but a failure to prove the substance of the complaint, which was fatal to the right to recover under this count. We think the general affirmative charge should have been given for defendant on this count as requested.
As the case must be tried again, and the *Page 226 evidence may be different, we do not undertake to pass judgment on the refusal of the trial judge to instruct for defendant on the issue of contributory negligence.
Under plea 18 the issue was whether plaintiff accepted the pecuniary benefit from his employer, the telephone company, as a full satisfaction for the injury suffered, or merely in release of the telephone company and as a satisfaction pro tanto. Conceding, for the argument, that defendant and the telephone company were both tort-feasors with respect to the dangerous proximity of their respective wires, and equally liable to plaintiff, the intention of plaintiff, as deduced from the language of the release, and the character and circumstances of the settlement which it evidenced, was a question for the jury. Home Tel. Co. v. Fields, 150 Ala. 306,312, 43 So. 711, citing 24 A. E. Enc. Law (2d Ed.) 307; Smith v. Gayle, 58 Ala. 600.
There was no error in admitting the testimony of an attesting witness that, when the release was executed, there was no statement or understanding that it released the defendant company also. So, also, defendant's request for the general affirmative charge on this issue was properly refused.
For the errors pointed out the judgment must be reversed and the cause remanded.
Reversed and remanded.
ANDERSON, C. J., and MAYFIELD and THOMAS, JJ., concur.