dissenting.
The deceased wag injured by a telephone wire which appears to have been loose at one end and was throwing off electric sparks. The evidence shows that the telephone wire was fastened to a pole and was higher up than the electric light wires. It is claimed that it came in contact with the electric light wire and received a heavy charge from it. A witness for the plaintiff, George Bailey, saw the wire in the morning at about 8:30. This was in the morning before the man was killed. Ten or fifteen feet of the wire was upon *196the ground. This witness also saw the wire in the afternoon. He testified that he said to himself that this wire was dangerous. He does not appear to have attempted to reach the office of the telephone company, nor did he communicate with the. police. He appears to have stopped “the car and started to take a pair of pliers and move it over” the wire. He was driving a delivery car for the International Harvester Company. He took the pliers out of his ear and got out to take hold of the wire, but he did not take hold of it. When asked why he did not take hold of it, he testified: “I thought I didn’t have any right to fool with it.” Apparently he exercised a wise discretion.
The Coroner, Y. A. Matthews, testified that the wires next below the telephone wires were the city electric light wires; that this particular wire was in contact with “the city light.” He testified that he took these pliers out of the dead man’s hands. It was about 11:20 or 11:30 at night when Matthews got there. He testified that there were bare places on one handle of the pliers. He said the “char” had “been worn off of the bare places.” He explained “the ashes that would natuarally be here where it is burned off.” He explained that the ashes would be the tape that was burned. He testified: “Well, what caused those ashes, what was it ashes of? A. Insulation; this tape. Q. The ashes of the insulation., of that tape? Was that your answer? A. Yes, sir, it was either that or that of flesh; it would be hard to tell which. Q. You may state whether or not you could state from its appearance whether that was recent, or whether the destruction of that insulation was old? A. It was recent. Q. Now, you may tell the jury how you could tell it was recent. A. Why, as I handled it the char would crumble off. Q. Now, what crumbled off from these plaees that are now bare? A. Char, ashes.”
I am under the impression that the barber who was present and who told the deceased not to take hold *197of the wire gave him a sufficient warning. While I. think that the telephone company was clearly guilty of negligence in permitting the wire to be in that condition from some' time in the morning until after 11 o’clock at night, yet that would not authorize the decedent to commit suicide. I am under the impression that he did not exercise the prudence that would be exercised by an ordinarily prudent man under like circumstances. I have not sufficiently examined the instructions to see whether the trial court submitted to the jury the question of the defendant’s negligence in using the pliers the way that he did. My impression is that the pliers were entirely insufficient, and that the deceased was guilty of a rash act when he took hold of the wire with the pliers. I think that the deceased should have sent the barber for help or he should have left the barber watching the wire while he went after help. There was no one ■ thereabout to be killed, and, as there were two men there, one of them should have remained on the watch to protect the public from the wire and the other should have gone to notify the telephone- company or the police or somebody else properly equipped to remove the wire. The pliers used were probably insufficiently insulated. Then they were probably too small, and therefore not adapted to handle a wire carrying so heavy a current.
While it is apparent that the telephone company was negligent because it permitted the wire to remain unprotected for many hours, the mere fact that its negligence gave the decedent the opportunity to risk his life and to lose it is no reason that it should be held liable. The decedent did not have to take the risk. What he did was done voluntarily and without any obligation upon his part. If the deceased undertook an unnecessary risk, there can be no recovery however heroic his conduct may have been. He could say to himself that any passer-by might come in contact with the wire and be killed, but it was easy to *198prevent that by staying there by the wire or by getting some other person to stay. He was not in the employ of the telephone company. The current which killed the decedent came mostly from a live wire connected with the lighting plant of the city of Lincoln. The decedent had been in the employ of the Lincoln Traction Company as a repairer of electric street cars. Without his employer’s permission he went to the place where the telephone wire had fallen and voluntarily attempted to handle it. The' task which he set for himself was not' a duty of his employment. It is said that Workman’s conduct was consistent with his duties to his employer, but his relation to his employer imposed no duty upon him as to this wire.
If I had seen the wire sparking and apparently charged with a heavy current which made it dangerous I would not have taken hold of it. I would not have done that any more than I would have leaped to my death by jumping into a roaring cataract going down a steep declivity full of rocks. If I found another man there, as the decedent did, I would have said to him, “You stay and watch' the wire while I go and get help, or I will stay and watch the wire and you go and get help.” It was negligence to leave the broken wire dangling in the air, moving on the ground, charged with a heavy and dangerous current of electricity. The wrong of the company made the death possible, but it was not the proximate cause of the same. Did the conduct',of the decedent contribute to his destruction? I think the rule is that he was required to exercise the prudence of an ordinarily prudent man under like circumstances. If the pliers were inadequately covered, if they were- too small, or if they were for any other reason defective and inefficient and he took a risk which a reasonably prudent man would not have taken-, then the verdict ought not to stand. There was nobody in immediate danger. It is one thing to protect the public and it is quite another thing to *199take a needless risk. If I knowingly climb into a pen where there is an angry and vicious hull at large and I am gored to death because of the danger which I have invited, should the owner of the bull' pay my administrator?