(after stating the facts). The liability of the defendant in this -case -depends upon the duty which it owed to the plaintiff under the circumstances of this case and the manner in which it performed that duty. The defendant -owned and controlled -a telephone system in the city of Fort Smith. It had strung its telephone wires from a pole on North 16th Street to a house on North F Street for a distance of from 300 to 330 feet, making one span unsupported between these points. The telephone wires extended above the electric wires of a street car -company which were heavily charged with electricity. The telephone wires were wholly unprotected from coming in contact with the trolley wires, should they fall. They were stretched across vacant lots where they sagged down to -a distance of 9 or 10 feet from the ground. The telephone wires were maintained in this way for several weeks before the accident occurred by which the plaintiff was injured. Upon the vacant lots a house was being erected, and on the day of the accident the plaintiff was employed in erecting a barn on the vacant lots near the house. The wires ran through the barn, and in the absence of the plaintiff one of the wires broke, and one end thereof lay hanging down on the foundation -of the house when the plaintiff returned to his work. He -picked the wire up to throw it aside, and was burned and injured by an electric shoo*. In breaking,-the telephone wire fell across the trolley wire, and thus became heavily charged with the current of electricity. The plaintiff was rightfully upon the lots engaged under employment in erecting structures thereon. The defendant in running its wires across these lots owed to the people who were accustomed to be on and go -across these lots the same duty to use the same care in maintaining its wires as it did to those upon the streets of the -city where it had its wires. Guinn v. Delaware & A. Tel. Co., 62 Atl. 412.
The plaintiff and other mechanics had -been engaged for several days in their work on these lots, and were accustomed with other people to travel -on and across the lots. The defendant had no interest in the lots, a-nd showed no special permission or right from the -owner to -stretch its wires across the lots. '
The defendant was under the duty to so maintain its wires as not to'interfere with the safe use of the lots. It owed the -duty to the plaintiff and those accustomed to go on and across these lots to exercise due and reasonable care in maintaining these wires.
.This electric company owed the duty to plaintiff to use ordinary care to prevent injury Toy the transmission through its wires, suspended over the streets and these vacant lots, of electricity escaping from any other wires that might come in contact with them. City Electric Street R. Co. v. Conery, .61 Ark. 381; Rowe v. N. Y. & N. J. Tel. Co., 9 Am. Neg. Rep. 528.
And, where the defendant owes a duty to plaintiff to use care, and an accident happens causing injury, and the accident is caused by the thing or instrumentality that is under the control or management of the defendant, and the accident is such that in the ordinary course of things it would not occur if those who have control and management use proper care, then, in the absence of evidence to the contrary, this would be evidence that the accident occurred from the lack of that proper care. In such case the happening- of the accident from which the injury results is prima facie evidence of negligence, and shifts to the defendant the burden of proving that it was not caused through any lack of care on its part. Railway Co. v. Hopkins, 54 Ark. 209; Railway Co. v. Mitchell, 57 Ark. 418; Arkansas Tel. Co. v. Ratterree, 57 Ark. 429; City Electric Street Ry. Co. v. Conery, 61 Ark. 381; Jack v. Reeves, 78 Ark. 426.
Now, this rule applies to electric companies in the control and management of their lines and apparatus, for the further reason that they have almost exclusive knowledge of the facts relative thereto. The plaintiff ordinarily has not the power or opportunity to test these lines and apparatus; and it is reasonable that the party having the power and opportunity should be required to give an explanation of the accident, and to prove that it did not occur'through a lack of care on its part. Keasbey on Electric Wires, § 271; Newark Electric Light & Power Co. v. Ruddy, 57 L. R. A. 624; Denver Consolidated Elec. Co. v. Simpson, 31 L. R. A. 566; Western Union Tel. Co. v. State use Nelson, 82 Md. 293.
But the happening of the accident under these circumstances is not a conclusive proof of negligence. As is said in the case of Jacks v. Reeves, 78 Ark. 426, where the court found from the circumstances of that case that the evidence of the accident was prima facie evidence of negligence, it “shifted the burden on to the defendant to prove that it was not caused by any want of care on *his part.” 29 Cyc. 591; Newark Elec. L. & P. Co. v. Ruddy, 57 L. R. A. 624.
And so in this case we are of the opinion that the evidence on behalf of the plaintiff made out a prima facie case of negligence against the defendant by which the accident occurred to the injury of plaintiff. But we are also of the opinion that the testimony on behalf of the defendant tendered an issue. The testimony of the defendant, viewed in its most probative force, tended to prove that the wire when -put up in May was new, and that all the apparatus was in good condition and was so maintained to the time of the accident. Witnesses on behalf of defendant testified that the wire was stretched over the trolley wire and from the pole to the house in a skilful manner; and it was also contended by defendant that the wire was broken or cut by the carpenters independent of and unconnected with defendant or any act of negligence on -the part of defendant, and that this was not caused by the wire being improperly and negligently hung by defendant.
Before the jury can be instructed that the negligence on the part of the defendant has been conclusively proved, thus in effect directing ,a verdict upon that issue, that view of the evidence that is most favorable to the party against whom the verdict is thus directed must be taken; and if there is any evidence tending at all to establish the issue in his favor, such instruction should not be given. LaFayette v. Merchants’ Bank, 73 Ark. 561 Rodgers v. Choctaw, O. & G. R. Co., 76 Ark. 520; Overton v. Matthews, 35 Ark. 146; Jones v. Lewis, ante p. 368. “The better opinion would seem to be that, in order to justify the withdrawal of the question of negligence from the jury (or a peremptory finding of negligence by the jury), the facts must not only be undisputed, but such that the conclusion to be drawn from them is indisputable.” 6 Thompson on Negligence, § 7393 5 29 Cyc. 645.
Now, in the instruction number 10 set out in the above statement, which was given on the part of the plaintiff, the court, after reciting certain facts which the evidence on the part of the plaintiff tended to establish, instructed the jury that “if you find from the evidence that the above facts are true, then you must find that defendant was guilty of negligence, and you must find for the plaintiff, unless you further find that plaintiff was guilty of contributory negligence.”
This in effect was a peremptory instruction to the jury to find that negligence on the part of the defendant was conclusively proved and a peremptory instruction to find in favor of the plaintiff. But the facts set out in the instruction only made out a prima facie case of negligence. It wholly ignored the testimony introduced and the issues offered by the defendant.
According to this instruction number 10 given on the part of the plaintiff, it was the duty of the jury to return a verdict for the plaintiff without regard to the care, skill or diligence which the evidence might have shown was exercised by defendant, and without regard to any evidence that might tend to show that the carpenters cut or broke the wire without any faidt or negligence of defendant. Southwestern Tel. & Tel. Co. v. Beatty, 63 Ark. 65; Western Coal & Mining Co. v. Garner, 87 Ark. 190.
The existence of negligence should be passed upon by the jury as any other fact, in the light of all the testimony in the case. 15 Cyc. 480.
In this instruction number 10 the court should only have told the jury that if they found the statements recited therein established by a preponderance of the evidence, then they would be justified in finding the defendant negligent; or that such facts, if established by a preponderance of the evidence, made out a prima facie case of negligence against the defendant.
The appellant contends that the court erred in giving.instruction number 9, which is set out above and was given on the part of the plaintiff. But we are of the opinion that said instruction is not erroneous. “The fact that another person contributed either before the defendant’s interposition or concurrently with such interposition in producing the daifiage is no defense.” Wharton on Negligence (2d Ed.) § 144. In the case of the City Electric Street Ry. Co. v. Conery, 61 Ark. 381, it is said: “The injury was the result of the concurring negligence of the two parties, and would not have occurred in the absence of either. In that case the negligence of the two was the proximate cause of the same, and both parties were liable.” St. Louis, I. M. & S. Ry. Co. v. Coolidge, 73 Ark. 112; Hayes v. Hyde Park, 12 L. R. A. 249.
The defendant duly saved exceptions to the giving of each and all the instructions that were given at the request of plaintiff, and also to the refusal to give certain instructions requested by it, and here urges each of these exceptions as an error. It also urges that error was committed in permitting the introduction of certain testimony. We do not think it necessary to set out each of these contentions. We have carefully examined the instructions and the testimony referred to; and we are of the opinion that none of these contentions on the part of the defendant is well taken. But we are of the opinion that error was committed in the giving of said instruction number 10 on the part of the plaintiff, and that this error was prejudicial.
■On account of the giving of this instruction, the judgment is reversed, and the cause remanded for a new trial.