I cannot agree with the majority in this case. It is my opinion that the evidence justified the trial court in submitting the question of deceased's negligence to the jury, and that this was done under proper instructions.
The evidence, as reflected by this record, is practically undisputed and to the following effect: At about 5:20 a.m. on the date of the alleged injury that resulted in the death of deceased, appellant was notified that a limb was in contact with one of its wires and that it appeared likely the wire would burn in two and fall. Subsequently, about seven o'clock, the wire did burn in two and fell across the lead-in telephone wire to the McConnell home, leaving the electric wire suspended into Front street near its middle, barely contacting the ground eight or ten feet north of Sycamore street. This wire was charged with an unknown quantity of electricity. After several people had passed by this wire in this condition, and at about 7:20 a.m., the deceased, Bianchi, a young man about thirty years of age, employed as a lineman by the Three States Telephone Company, arrived on the scene. Bianchi, upon observing that the light wire was in contact with a telephone wire that led into the McConnell home, climbed the telephone company's pole, grasped the lead-in wire which was in contact with appellant's *Page 1002 fallen wire and tried to dislodge it from the telephone wire, but without success. He then descended the pole, went to his car a few feet north and procured a piece of dry copper wire above five feet in length covered with the same kind of covering, or insulation, which covered all of appellant's wires. He fashioned a hook on the end of this dry wire and attempted to remove the fallen electric wire from the telephone wire over which it was hanging.
The evidence further shows that he was at this time wearing a pair of canvas gloves, the palms of which were covered with leather. This short wire, which deceased used in an effort to dislodge the electric wire was covered with weather-proofed insulation in which there were no breaks and if dry (and the testimony shows that it was) would protect from a shock or leakage of voltage up to 1,000 volts.
It is undisputed that there were seven or eight light wires on appellant's pole, all apparently of the same size, covered with the same kind of insulation, and that some of them carried a voltage of as low as 110 volts and others 6,900 volts, that carried by the wire which the deceased attempted to remove.
It seems to me that under these facts reasonable men in the exercise of fair judgment might differ on the question of the contributory negligence of the deceased.
In the instant case the deceased, a lineman for the telephone company, whose duty it was to look after his employer's property, when he came upon this scene, observed the dangerous position of the electric wire not only to people who were passing by, but to those in the McConnell residence, after taking what seemed to him the necessary precautions for his own safety and acting in what, I think, may be termed an emergency, attempted to remove this wire and unfortunately was killed in the attempt.
The law presumes against suicide, and there is no claim here that deceased intended to kill himself.
I am of the view that the instant case is controlled by Arkansas Light Power Company v. Cullen, 167 Ark. 379, *Page 1003 268 S.W. 12, where this court held that where the deceased might have thought he was coming in contact with a house wire of low voltage rather than one carrying 2,300 volts he could not be guilty of contributory negligence as a matter of law. In that case, this court said: "The undisputed evidence reveals that house wires in the system carry only 210 volts of electricity, and will shock, but not kill, one if touched where insulated. The wire in question was insulated. Instead of being a house wire, carrying 210 volts of electricity, the wire in question was a primary wire, carrying 2,300 volts of electricity. Appellee's intestate reached up high and took hold of the wire where it was insulated, but, on account of the strong current, his muscles convulsed, thereby preventing him from releasing the wire. Before his companion could knock the wire out of his hands with a stick he was dead, and, when released from the wire, fell to the ground. It cannot be said that, under the undisputed evidence, appellee's intestate voluntarily put himself in contact with the live wire, knowing it to be charged with a deadly current, for there was some evidence tending to show that he thought, and had reason to believe, that it was a house wire, carrying only a small voltage of electricity. In view of the disputed evidence in this regard, it was proper to submit the issue of contributory negligence to the jury."
I think, under the facts in this case, the jury would have been justified in finding that deceased must have thought he was handling a wire of low voltage.
In Interstate Power Company v. Thomas, 51 F.2d 964, 84 A.L.R. 681, the court held that whether plaintiff acted as a reasonable person would have acted was a question for the jury, and said: "The question of contributory negligence, like every question of negligence, is ordinarily for the jury; and it is only when there is no substantial conflict in the evidence which conditions it, and when, from the undisputed facts, all reasonable men, in the exercise of fair judgment, would be compelled to reach the same conclusion, that the court may lawfully withdraw it from them." On this record, I cannot bring myself to say that the minds of reasonable men would *Page 1004 be compelled to reach the conclusion that the deceased was guilty of contributory negligence.
In this connection, this case is very similar to that of Southwestern Gas Electric Company v. Murdock,183 Ark. 565, 37 S.W.2d 100, in which this court said: "If the appellee did what a man of ordinary prudence would have done under the circumstances, he was not guilty of negligence. Extraordinary care is not required nor is the utmost possible caution. The duty imposed on appellee was to exercise ordinary care, but there was no duty to possess knowledge or skill so as to know there was danger because the lights burned out or because the machinery ran faster. 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."
For the above reasons I think the cause was properly submitted to the jury, and that the judgment of the court below should be affirmed.
Mr. Justice HUMPHREYS and Mr. Justice MEHAFFY request that they be noted as concurring in this dissenting opinion.