I cannot agree with the majority in the statement that: "A number of errors are assigned and argued for a reversal of these judgments which become unimportant, for the reason that, in our judgment, the court should have directed a verdict for appellee on the undisputed evidence and the physical facts and circumstances connected with the accident."
The majority opinion, however, says that the errors alleged are not considered because the court should have directed a verdict for the appellee on the undisputed evidence and the physical facts and circumstances connected with the accident. All this court knows about the physical facts and circumstances is what was told by the witnesses, and the jury may or may not have believed them.
The appellant and his brother were engaged in a lawful business, work that had to be done, and the appellee knew this.
Lile Bynum testified that he was under the house about three weeks before Martin was killed, and that at that time the ground was particularly dry and dusty.
Clifton Martin, the appellant, testified that he and his brother had worked for the Bruce Company for the *Page 47 past ten months; it was witness' duty to replace damaged material when the Terminix Company treated buildings for termites; that witness and his brother, DeWitt Martin, were directed to go to Dermott and do the necessary work for removing defective timbers; that his brother was killed by coming in contact with an electric wire near where he was working; that deceased had taken a hand saw and started to draw back in a backward stroke, and as he drew his right arm back, the electric wire came in contact with the outside of his arm below his shoulder.
But the majority say there was no substantial evidence that an excess voltage came over the service wire but that the accident was caused by the ordinary and usual voltage. The opinion also says: "It was shown, and we know it to be a fact, that if there is a greatly excess current coming in over house wires, all lights that are turned on will be burned out and the fuses blown. Appellants virtually admit, at least they do not deny, that the light globe on an extension cord used by then under the house, was still burning after the accident thus conclusively showing there was no excess current sufficient to burn out the lights on the circuit.
"It is well recognized that 110 volt current or even less will, under similar conditions as here shown to exist, cause death. It was so recognized and the authorities cited and quoted from in Oklahoma Gas Elec. Co. v. Frisbie, 195 Ark. 210, 111 S.W.2d 550, where we reversed the judgment and dismissed the cause on an allegation of excessive current because of a defective transformer."
The majority opinion says that the light globe used by appellant and his brother was still burning, thus conclusively showing there was no excess current sufficient to burn out the lights.
This court did not hold, as I understand the language in the case of Oklahoma Gas Elec. Co. v. Frisbie, supra, that 110 volts would cause death. It was said by the court in that case that death has frequently occurred in consequence of persons coming in contact with exposed *Page 48 wiring, generally by forming a short circuit, either by standing on a wet floor and touching the wire or leaking electric fixture with one or both wet hands.
We have had evidence in this court from experts in which it was shown that 110 volts will not cause any serious damage and will not cause death. Of course, if there is a defective transformer, or if the conditions existed as testified to by Martin, the voltage would be very much in excess of 110. The opinion then says quoting from the Frisbie case, supra, that tests were made in that case to determine whether excess voltage was passing through the secondary wires, and it was found that it was not. The majority admit, however, that no similar test was made in this case.
I do not agree with the court in the statement that to say that Martin came to his death by reason of appellant's negligence would require speculation, not only as to the amount of current which proved fatal, but also as to the method by which such alleged excess charge entered the house.
That Martin was killed by coming in contact with the wire is not disputed, and whether it had excessive voltage was a question for the jury and not for this court.
The Idaho Supreme Court said in the case of Staab v. Rocky Mountain Bell Tel. Co., 23 Idaho 314,129 P. 1078: "As to whether or not the proper care and precaution had been taken by the light company to insulate these wires to guard them against employes and innocent persons, who might be working about them, was one of the facts on which there was a conflict of evidence, and this was submitted to the jury, and has been passed upon by them. The appellant was engaged in the business of generating, transmitting, and distributing the most dangerous and least understood article known to the business or commercial world, namely, electrical energy — unseen foe — and it was chargeable with the legal duty of so handling it as to protect the public, and especially those who might be called upon to come near or in contact with its wires, from dangers, they could not see, and which they might readily overlook." *Page 49
The evidence is conflicting and numbers of witnesses introduced by appellee to testify as to their lights in their residences said that they did not know whether the lights were burning out or not.
In the case of Ark. P. L. Co. v. Cates, 180 Ark. 1003,24 S.W.2d 846, this court said: "A company maintaining electrical wires, over which a high voltage of electricity is conveyed, rendering them highly dangerous to others, is under the duty of using the necessary care and prudence at places where others may have a right to go, either for work, business, or pleasure, to prevent injury. It is the duty of the company, under such conditions, to keep the wires perfectly insulated, and it must exercise the utmost care to maintain them in this condition at such places. And the fact that it is very expensive or inconvenient to so insulate them will not excuse the company for failure to keep their wires perfectly insulated." Ark. Gen. Utilities Co. v. Shipman,188 Ark. 580, 67 S.W.2d 178.
While the company is not required to insulate its wires, it must either do this or employ other sufficient safety methods to prevent contact with wires conveying the current at such places as danger of contact may reasonably be anticipated. Ark. P. L. Co. v. Hoover,182 Ark. 1065, 34 S.W.2d 464.
It was contended that appellant was guilty of contributory negligence. We recently said in the case of Southwestern Gas Elec. Co. v. Murdock, 183 Ark. 565,37 S.W.2d 100: "Even if the injured party's act contributed to the injury, this would not bar recovery unless his act was negligent. It is not the contributory act that bars recovery, but contributory negligence."
There was ample evidence, to authorize the jury to find for the appellant, and there was no speculation about appellee's negligence. Under our system, the court declares the law, and the jury is the judge of the facts, not only of the credibility of the witnesses, but of the weight to be given to their testimony. And I cannot understand how a member of this court can think that he knows *Page 50 more about the credibility of a witness and the weight that should be given to his testimony that do the jurors who have seen the witnesses, heard them testify, and observed the manner on the witness stand. I think when a judge undertakes to do this, it is purely a matter of speculation.
I think this case should be reversed and remanded for a new trial and let the jury pass on the facts and the court pass on the law.
I respectfully dissent from the holding of the majority, and Mr. Justice HUMPHREYS agrees with me in this dissent.