■ Plaintiff’s intestate, Guy B. Geer, thirty-four years old, .was by trade a woodturner. He went to work for the defendant about two years and nine months previously to his death, working as a helper for about ■ six or nine months and then became a cable splicer and worked in different places with his headquarters in Elmira receiving twelve dollars a week. He did cable work overhead and underground and commenced working in Elmira on Tuesday, as he was killed on Friday. He had never worked for any company that manufactured or distributed electricity and during the twelve years that the plaintiff knew him he did not study electricity. Upon June 5, 1908, in the employ of the defendant, he went with á helper, Hungerford, twenty-two years old, who had only worked in that -business one day and a half and was a machinist, to the corner of High and John streets in the city of Elmira where the deceased intended to do some work upon the telephone lines of the defendant. The work was to hook up the cable to a telephone messenger wire which was immediately above and within a few inches of the cable. Upon High street at a pole of the defendant about twenty-three feet from a pole belonging to the electric light company at the northeast corner of High and John streets, the deceased began his work. This pole had two crossarms; the lower had five electric light wires on it belonging to another company and not to the defendant and the upper cross-arm had. four telephone wires on it. In order to get to the *880telephone wires and the cable it was necessary for Geer, the deceased, to pass between some of those electric tight wires. He climbed up this pole, twenty-three feet from the corner, worked his way through between the. electric tight wires and pulled up his carriage, fastened it to the messenger wire and began work. The carriage ttiat he sat in or on “is formed of a board two feet long and eight inches wide and is suspended by two bars, which form a crook at the top in which [are] placed pulleys to run on a messenger wire,” which wire is above the cable. Geer worked himself along from this pole to the electric light pole at the corner but his carriage had settled owing to 'the sagging of the messenger wire so much that he had to get out on the crbssarm' at .this electric light pole upon which were six electric wires, all charged- with electricity and some of them charged with between 2,000 and 3,000 volt's. Geer worked himself over this crossarm, .got in his carriage again and went on across from the north side, nearly to the south side of John street where in some way he came in contact with an electric wire and was stiocked, receiving a shock which caused him to drop his pliers. These electric wires, one of which shocked him, “passed by nearly with his knees” at the time of this shock. The pliers were returned to him and the electric wire was pulled away from Geer’s knees by the helper with a tope, whereupon Geer finished his work and returned to the crossarm on the corner or electric light pole. This pole had on some of its arms at least two telephone, wires of the defendant. Geer had loosened the second electric light wire of the six on this crossárm and put it to one side when he had taken his carriage over it.- Upon his return to that crossarm he lowered his carriage to his helper and pulled up the rope and made a loop over the messenger wire and was about to slide down the rope between the wires which he had separated.' He stooped and was unbuckling a climber and spur attachment on one. of his feet when he was. seen to double up and twist around and fall. He was heard to cry and to groan. He fell to the ground, was taken to the hospital and died that night about eleven o’clock. He was found at the hospital to. be suffering from a shock and a fracture at the base of the skull. It was necessary for Geer in order to return to the *881ground to work his way through these electric light wires whether he did so on the pole he was on when he fell or whether he returned to his original pole. After the injury it was found that the insulation was defective on one of these wires' at the place that he fell, one witness stating that it was bright and another that it was dark shortly after. The insulation south of where the deceased quit working was broken, the wire showing bare places. Geer said when starting to return to the ground that he would slide down the cable or rope instead of returning to the original pole where he ascended as he did not care to go through the same motions that he did in getting up into his carriage. Upon this and some other testimony of like import, the plaintiff was nonsuited at the end of her case.
Upon a nonsuit plaintiff is entitled to the most favorable inferences that can be reasonably drawn from the evidence submitted.
The question is, was there sufficient evidence to justify the court in taking the verdict of a jury thereon, or was it properly decided as a question of law?
The defendant owed to the plaintiff’s intestate, its employee, the duty of providing him with a reasonably safe place in which to do his work, considering the nature of the work to be done. The nature of the work which the deceased was employed to do by the defendant was working about telephone wires, which were not in themselves dangerous, so that had there been no electric light wires at this place, plaintiff could not have complained that her intestate was placed in a dangerous position, because his work required him to climb poles and work on wires at some distance from the ground. It was a dangerous place where this deceased was placed to work, if there was any defective insulation of these high voltage electric light wires. The testimony as to the condition of the wires is not very full, and it can easily be seen here why that is so, because, of them distance» from the ground that few people, except interested people, would be likely to notice them. They were, however, in this immediate vicinity, and at the place of the accident, in a bad condition as to insulation directly after *882the accident.' There is nothing to show what caused this condition; neither was any inspection by the defendant shown, nor has the plaintiff shown the length of time during which such condition existed, if it existed before the date of the accident, unless the jury might be permitted to infer that the insulation of such dangerous wires would be of such a fairly permanent nature or .character that it would take some time to wear it off or through to the wire, and that having been found bare, that some time must necessarily have elapsed, and that if the defendant had been vigilant to furnish a reasonably safe place for Geer to do his work, that it would have had time to have found this dangerous condition to exist, and remedied •• it or warned Geer.
In Dwyer v. Buffalo General Electric Company (20 App. Div. 124) a recovery was had where the deceased, a lineman of a telegraph company not wearing gloves, after ascending one of the telegraph company’s poles, grasped an iron brace sup-. porting a crossarm upon his own pole, concerning which there was evidence from .which it might be inferred that it came in contact with the wire of the electric light company carrying a voltage of about 1,100 volts, from which the. insulation had been abraded by contact with the iron brace, neither the fact, of contact nor the defect in insulation being determinable from the. ground, instantly threw up his arms and fell backwards, and was picked up dead. Across the palm of one of the deceased’s hands there was a mark about an inch wide, which looked like rust, and the autopsy developed that the deceased had received a more or less severe shock of electricity. . The case was sent to the jury, and upon an appeal it was held that the court was justified in submitting to the jury the questions as to the defendant’s negligence and the contributory negligence of the plaintiff’s intestate.
In this case the physician at the hospital who attended Geer, apparently competent, was not permitted by the trial court to testify as to whether the shock was electrical or not, or as to what his opinion was as to the character of the shock, or the causé of the shock, nor if such symptoms as the doctor had indicated would be found in a person who had suffered a severe electrical shock,.or what his diagnosis showed. This evidence was *883not permitted on the objection of the defendant, to which ruling an exception was taken by the plaintiff.
In Braun v. Buffalo General Electric Company (200 N. Y. 484, 490) it is held that a company maintaining dangerous wires should not.be relieved on the ground of expense from the affirmative duty of exercising a reasonable degree of care to maintain proper insulation, and thereby prevent accidents reasonably to be apprehended to those lawfully coming in the neighborhood of such wires. That was a suit against the company maintaining those wires.
This is an action on behalf of the dead employee, who was sent by his employer to work amongst such wires, and while the deceased was shown to be a lineman he was not shown to be an electrician.
In Raab v. Hudson River Telephone Company (139 App. Div. 286) it was held that where a lineman employed by the defendant was injured while descending a pole by coming in contact with a high voltage wire whose presence on this pole he had no knowledge of, he was not guilty of contributory negligence as a matter of law because he failed to inspect the wires, and it was held that it was immaterial that the high voltage wire was .the property of an electric lighting corporation, for the defendant in permitting it to be maintained on its poles assumed the same duty toward the plaintiff’s intestate as though it maintained the wire' itself, and a verdict in favor of the plaintiff was affirmed unanimously in the Second Department.
The top of the pole, which stood about twenty-three feet from the corner and which the plaintiff’s intestate ascended, ran at quite a decided angle over towards the street. From a remark testified to have been made by the deceased he evidently considered it more prudent to come down from the corner pole rather than to attempt’ to get back to the ground the same way that he went up to the wires, hence the jury might have found he was exercising some care, Attempting to divest himself of his climbers before attempting to get through these electric wires,' if he understood these wires, might also have been found by the jury to indicate care on his part.
In the case of the death of a person it has always been held *884that less proof of absence of contributory negligence will suffice ■than where the person .injured is alive and able to testify.
It was held in Freeman v. Glens Falls Paper Mill Co. (61 Hun, 125) that where a risk relates to the safety of the place of the employment, and not to the dangerous character of the employment itself, then it is the risk of the master and not that of the servant.
I think that the case, both as to the negligence of the defendant and as to the freedom from Contributory negligence of the plaintiff’s intestate, should have been submitted to the jury under proper instruction from the court.
It follows that the judgment should be reversed and a new trial granted, with costs to the plaintiff to abide the event.
Judgment and order affirmed, with costs.