This case must be decided without reference to the rules applicable to the relation of master and servant. It may be assumed that the defendant was negligent for maintaining its electric wires in the condition disclosed by the evidence. I pass by the question whether it is shown that such negligence caused the plaintiffs injuries, i. e., whether it is as probable that the accident would have happened, though the insulation had not been defective; fori think the plaintiff failed to show the exercise of due care on his own part.
The plaintiff was an experienced lineman and knew the danger of high tension electric wires. He testified: “ I became familiar in working among electric light wires. I know an electric light wire when I see it.” He excuses his neglect to use the rubber gloves, which were at hand and if used would have prevented the accident, by the remark of the foreman, who is said to have told the men, when the electric wires were reached, to go ahead, that they did not need rubber gloves. But the foreman had no knowledge or means of knowledge superior to the plaintiff’s. Both understood the danger and knew that gloves were provided to guard against it; neither knew whether the current was on. For a week preceding the accident the men with whom the' plaintiff was employed had been running two telephone wires from the Hew Jersey State line to Hill-burn, Rockland county. They frequently encountered electric wires, and although it is now assumed that the plaintiff may have supposed that the electric current would be turned off while work was being done among such wires, he does not say so, and the only evidence on the subject tends to show that that had not been done in a single instance ; the appellant’s manager did testify that on one occasion he received a request from the telephone company to shut off the current, but that testimony referred to different work, a different line,-and another time. In place of notifying the electric company to turn off the current whenever electric wires were reached, an altogether impractical thing to do, rubber gloves were provided for use at such times, and that fact was notice, if indeed any was needed,, that the men must use the gloves and not rely on the current being turned off. HearHillburn appellant’s wires were strung on the telephone company’s poles for a space of about fifteen poles. It is not pretended that the appellant was notified of the *772work being done by the telephone company, much less of the time when the men would reach those poles; the plaintiff had no reason to think and does not pretend that he did think,, that such notice had been given. He admits that he thought “ perhaps there was U day current,” but he says “I received no warning,' and no one wore rubber gloves, and' I took it for granted they were dead wires.” The man who heedlessly pulls the trigger of a loaded firearm takes it for granted that it is not loaded, but no one would • excuse his carelessness on the ground that he had been told that that was a prudent "way to find out. The plaintiff does not assert, and we should not assume, that he was ignorant of the high tension of wires, which were obviously a part'of a primary circuit. Although the judgment is about to be sustained on the theory that the plaintiff had a right to rely on the superior knowledge of the foreman, no one has pointed out in what respect that knowledge was superior. In their work through the country the men came to this short section where the telephone and electric wires were on the same poles: All knew that it was dangerous to work without rubber gloves among the electric wires, if the current was on. Ho one knew whether the current was on, but all knew that no attempt was made to find out. And the statement of- the foreman referred to sujjiw, if it was made, amounted to no more than an assurance that' it was all right to take chances. ■ If it had been customary for the electric company to shut off the current on notice, indeed had there been a single instance of such a notice during the performance of the work in which the plaintiff was engaged, it might be said that the foreman would be supposed to know whether such notice had been given in the particular case, and the plaintiff would have had the right to infer from said statement that it had been given. But the plaintiff does not testify that he supposed any such thing, and his counsel does not argue that his testimony warrants that inference. On the contrary, he argues that the plaintiff used the word “dead” in the sense of “abandoned,” “unused,” and that he had a right to infer that the wires had been abandoned from the fact that the insulation was so worn. O.n the day of the accident the men had not needed the rubber gloves until the short section of electric wires was reached; then, instead of taking the trouble to get the gloves from the- tool box in the wagon, they took the chance *773of safely doing the work without' them. The plaintiff testifies: “ When I came to the cross-road where the electric wires came in upon the same poles that the telephone wires were on, I and my associates went right on just the same.” If the plaintiff had not allowed his hand to come in contact with the wire, or if his body had not been grounded, or if there had been no current on the wire, that might have been done without accident; but I do not think his imprudence can be excused by the fact that he was told to do what he knew was imprudent. If the absence of the insulation was the cause of the accident, the plaintiff was careless for allowing his hand to come in contact with the wire at that point. He says that before climbing the pole he noticed that the insulation was hanging in shreds from one of the wires, and that he “took a look” at the wire on which he was hurt and that it looked “ all right.” But it is obvious that, though warned by what he saw on the other wire, his inspection was only casual, for he admits that he did not lookup at all as he ascended the pole, and the testimony of his witnesses is to the effect that at the point where he received the shock the'wire was bare for a space of two or three inches, a fact plainly observable from the ground. But he did not rely on the insulation ; he understood what appears to have been undisputed on the trial (it .is sworn to by one of his own witnesses) that insulation on a wire carrying a current of high voltage affords little, if any, protection if the body coming in - contact with it is, grounded. Without any reason for doing so, the plaintiff took it for granted that the wires were not in use or that the current was not on.; and I do not think that a jury should be permitted to say that a person of ordinary caution would be so imprudent. It is urged that the plaintiff was not negligent for doing as the other men did ; in other words, that he should be excused for being careless because his associates were careless too. His act is to be judged not by what he saw others do, but by what ordinary prudence required him to do under the circumstances. It is within common observation that men become heedless of perils which they are accustomed to encounter, and frequently'omit the simplest precautions. If there be any warrant in the evidence for the inferences iipon which the judgment is about to be sustained — many of them have not been suggested by counsel, and after a careful study of the record I do *774not find, what appears to me to be even a scintilla of evidence in support of some ■— then I think such inferences are opposed to the clear preponderance of the evidence, and that the judgment should be reversed as against the weight of evidence. However, I vote to reverse on the ground that the motion to dismiss should have been granted.
Gaynor, J., concurred.
Judgment and order affirmed, with costs.