Opinion by
Mr. Justice Fell,Three questions are presented by the specifications of error: 1. Did the issue raised by the pleadings include the subject of the original construction of the appellant’s lines of electric *155light wires? 2. Was there sufficient evidence of constructive notice of defective insulation to sustain a recovery on the ground of failure to maintain the wires in a safe condition ? 3. Did the .evidence warrant the conclusion that defective insulation of one of the wires was the proximate cause of the accident ?
It is averred in the declaration that the appellant owned, maintained and operated two lines of wires extending from its main line to the cross arms of a pole which sustained a number of telephone wires; that, not regarding its duty to maintain these wires in a safe condition, it “ negligently and carelessly allowed and permitted said two wires without proper insulation to be placed on a cross arm of said pole, thereby charging said arm and braces attached with a powerful current of electricity.” The placing of the wire on the cross arm was a part of the construction, and the averment gave notice to the appellant that the plan of construction was brought into question. The case was tried upon this theory. Testimony as to the construction as it existed at the time of the accident was admitted without objection that it did not support the declaration, and affirmative evidence was introduced by the appellant to show the plan of original construction. If there is doubt as to the sufficiency of the averment, it is too late to raise it after a trial on the merits, in which the question was treated by both parties as a part of the issue.
On the question of constructive notice the instruction was that with respect to faulty construction notice was unnecessary since the appellant must be held to have notice of what it had designedly done : and with respect to a defective state of repair, it must be held to know that which supervision reasonably exercised would have disclosed. This instruction was correct. It was called for because there was evidence tending to show that the manner in which the electric wires were carried through a network of telephone wires was faulty, and that the wire alleged to have caused the injury had been in use a number of years and had sagged and that its insulation had worn off.
The main contention of the appellant is that there was not sufficient evidence of any negligent act that was the proximate cause of the accident to warrant the submission of the case to *156the jury. It appears from the evidence that the appellant permitted for a consideration a telephone company to use one of its poles. On this pole there were eleven cross arms, which supported 180 telephone wires. The cross arms.were twenty-two inches apart, and each one was supported by iron braces which extended down the pole to within a few inches of the next lower arm. The appellant’s electric light wires were attached to the faces of the seventh and eighth cross arms, and extended across the lines of telephone wires. They were held in place at the cross arms by the use of porcelain knobs, and their insulation was by cotton covering ordinarily used for inside wiring. These wires had been in use seven years, and the covering of the wire on the seventh cross arm was worn off at its point of contact with an iron bolt which passed through a brace. It was customary for persons climbing among the wires for the purpose of inspecting or repairing them to use the braces as an aid in climbing and as supports. The appellee’s son was in the employ of the telephone company and Was last seen alive when at about the fifth cross arm. He was killed by an electric shock, and his body was found on the wires supported by this cross arm. Evidently he had been above these wires or his body would not have fallen on them, and when above them he would have been in close proximity to the brace of the seventh cross arm, w'hich was charged with electricity, and its position was such that he probably would have grasped it in climbing.
There was no direct evidence that the deceased was killed by coming into contact with the iron brace. But direct evidence was not essential. The cause of death might properly be inferred from the location of his body with relation to the dangers to which he was exposed. The telephone wires were in themselves harmless, and death by electricity could have been caused only by the deceased coming into contact with some object charged with a powerful current. This object was at hand in a position where any one climbing the pole would be likely to touch it. Conditions were shown to exist which indicated very clearly the cause of death, and no other cause being shown the jury, were warranted in finding that this was the cause.
The judgment is affirmed.