(dissenting). Before plaintiff leased the premises where the accident occurred and ever since, defendant’s electric-*449line extended across those premises in the" same location and form of construction as at the time of the accident. Plaintiff used the electric current from this line for lights in his house and garage. The electric wires were inclosed in standard weatherproof three-ply covering generally used for “ outside ” lines. It is not claimed that this covering has any considerable insulating quality. There is no dispute that 2,300 volts were sufficient to have caused the injuries to plaintiff and there is no substantial dispute in the evidence that this line was at the time what is called a four-wire grounded neutral system; being such, contact of a primary wire with trees would not increase the voltage in those wires. These primary wires hung at a minimum of twenty feet above the ground and were nowhere on the premises within fifteen feet of any building or structure on the premises. Plaintiff had maintained a radio aerial wire across and about twenty feet above defendant’s wires during five or six years next preceding the accident. Neighbors along defendant’s line maintained aerials on their lots in like positions. While replacing his aerial plaintiff coiled the wire on the ground beside him, attached a stone to its end and threw it over defendant’s wires. When the naked aerial wire rested on the defendant’s wire the plaintiff received the electric current through it and sustained his injuries. Plaintiff urged that defendant should have discovered these aerials, realized that a dangerous condition was created thereby and used specially insulated wires under them. Upon the record the sole question in respect to defendant’s negligence is this: Was the defendant negligent in failing to insulate its primary wires under plaintiff’s aerial, sufficiently to insure plaintiff against injuries when he threw a naked copper wire across them? A majority of the court is of opinion that questions of fact were presented in respect to both negligence and contributory negligence.
There were errors in the charge of the court and in its rulings which require a reversal. It charged that the first question was whether the defendant was “ negligent in the operation and maintenance of its line,” and in discussing this, said: “You heard him [plaintiff’s expert] describe the worn condition of the insulation on the lighting wire, or, as it has been described here more accurately perhaps, the covering on the wire — because there is a question and an important question in this case it seems to me, whether or not that covering * * * insulated the wire with a 2,300 volt load, or whether it did not, or whether it would not. At any rate you have heard Mr. Sheldon, and he claims that the wire was worn, that the covering, or the composition that made up this covering was worn so that it was worn off and enabled the current *450to escape with that voltage, and when it came in contact with the aerial it escaped and went through the aerial in sufficient volume and quantity to cause these injuries.”
There was no question about either the insulating quality or the sufficiency of the weatherproofing. The experts for both parties testified that this weatherproofing, even though new, was not sufficient to prevent a current of 2,300 volts from passing into a naked' wire if that wire while grounded was placed in contact with the electric wire. This charge was called to the attention of the court and it refused to correct it. Again the court charged that the plaintiff claims that the escape of the electricity through the aerial “ was due to the condition of the wire and to the condition of the line and he has described how he claims the tree came in contact with the wires of this line at some distance below pole 32, or some distance beyond anyway, where these limbs of the trees had been burned off and injured.” And the court continues later: “ Now the plaintiff asks you to find from all of these circumstances, the bending of the wire, and the leaning of the pole, and the condition of the fine, and the insulation that was used, or the covering, the plaintiff asks you to find under all of these conditions that existed there, that the defendant was negligent, and that its negligence caused this injury to the doctor. That is the question, gentlemen, that I stated to you at the outset that I was going to submit to you to determine.” The evidence shows conclusively that the condition of the line at other places, the leaning of the poles, any contact of the wires with trees, had nothing whatever to do with this accident; the charge was confusing and misleading; it left to the jury a question which should have no influence on its determination; it did not fairly express to the jury the question on which defendant’s negligence rested. Further, much evidence, describing the leaning poles and the burning of trees by contact with wires, was admitted over the defendant’s objection and exception. After this evidence was in, the defendant moved to strike it out and the court refused. This ruling was erroneous.
I think these errors in the charge and in the rulings of the court Were prejudicial, especially in a case close upon the facts.
The judgment should be reversed and a new trial granted.
Hinman, J., concurs.
Judgment affirmed, with costs.