delivered the opinion of the court.
The defendant in error, Thornton, who was the plaintiff below, recovered the judgment under review against the ciiy of Danville in an action for personal injuries.
The first assignment of error calls in question the sufficiency of the declaration, the essential allegations of which are as follows : That the defendant had permitted the Danville Railway and Electric Company to erect its poles on both sides of the streets.of the-city over which its lines extended, which poles were thirty feet high, and were required by a city ordinance to be kept neatly trimmed and painted; that on the west side of Craghead street the defendant erected its own poles and strung its own wires, heavily charged with electricity, at such height from the surface of the street and in such position that the wires passed along in close proximity to and on both sides of the upper part of the poles of the Danville Railway and Electric Company, touching the poles at some places, and in order to paint them it became necessary to ascend the poles and to go among and be exposed to contact with the defendant’s wires over which electric currents flowed; that it was the duty of the defendant, in the construction, maintenance and operation of its system of wires, to use due and proper care to insulate the wires at such places as persons might be reasonably expected to come in contact therewith, so as to prevent injury from such contact, especially to persons engaged in painting the poles of the Danville Railway and Electric Company in obedience to the city ordinance ; that the defendant did not discharge its duty in that regard, but negligently failed to properly insulate its wires, and suffered the insulation to be and remain off the wires at or very near a pole of the Danville Railway and Electric Company for the period of a month or more; by reason whereof “the plaintiff, who went to the top of the aforesaid pole . . . among *549the wires of the defendant, pursuant to the ordinance and requirement of the defendant, ... to paint the pole as aforesaid, and while lawfully thereon, performing his duty in that respect, without any negligence on his part, came in contact with the defendant’s wires, which were heavily charged with electricity, at the points where the same were insufficiently and improperly insulated, or where the insulation was off,” and was greatly shocked and received the severe injuries of which he complains.
The grounds of demurrer relied on are that the declaration shows that the plaintiff was the servant of the Railway and Electric Company, and not of the defendant, between whom and it there was no privity of contract, and to whom the city owed no duty; that it cannot be even inferred that the plaintiff was authorized to go upon the pole in question, either by the city or the Railway and Electric Company; and, moreover, that the declaration shows that the plaintiff was guilty of contributory negligence.
The declaration, by fair inference, plainly shows that the plaintiff was lawfully on the pole about the business of the Railway and Electric Company, which was under obligation to keep it painted; and it is a mistaken view of the law to suppose that the action is dependent upon the existence of the relation of master and servant between the defendant and the plaintiff, or indeed that any contractual relation between the parties is essential to the maintenance of the action.
The general doctrine on the subject will be found in Joyce on Electric Law, sec. 445, where the -learned authors say: “A company maintaining electrical wires, over which a high voltage of electricity is conveyed, rendering them highly dangerous to others, is under the duty of using the necessary care and prudence at places where others may have the right to go, either for work, business, or pleasure, to prevent injury. It is the duty of the company, under such conditions, to keep the wires perfectly insulated, and it must-exercise the utmost care to main*550tain them in this condition at such places. And the fact that it is very expensive or inconvenient to so insulate them will not excuse the company for failure to keep their wires perfectly insulated. So one, who in the course of his employment, is brought in close proximity to electrical wires, is not guilty of contributory negligence by coming in contact therewith, unless done unnecessarily or without proper precautions for his safety. And when the wires, if properly insulated, would not be a source of danger, such person is only obliged to look for patent defects and not for latent defects. And a person who touches an electric wire, from which the insulation is worn off, if he does it in ignorance of the nature and condition of the wire, is not negligent.”
The foregoing is a correct statement of the general rule, and is sustained by the authorities cited. Mitchell v. Raleigh Elec. Co., 129 N. C., 166, 39 S. E. 801, 85 Am. St. Rep. 735, 55 L. R. A. 398; Thomas v. Wheeling E. Co., 54 W. Va. 395, 46 S. E. 217; Thornbury v. City & E. G. R. Co., 65 W. Va. 379, 64 S. E. 358; Clements v. Louisiana Elec. L. Co., 44 La. Ann. 692, 11 South. 51, 32 Am. St. 348, 16 L. R. A. 43.
Measured by that standard, the declaration states a good cause of action.
With respect to the suggestion, that the declaration does not negative the plaintiff’s contributory negligence, that is not necessary under our practice. (Interstate R. Co. v. Tyree, ante, p. 38, 65 S. E. 500.) But if the rule were otherwise, the declaration does contain the allegation that the inquiry was inflicted “without any negligence on his part.”
The second assignment of error is to the giving of plaintiff’s instruction bTo. 1, the sole ground of objection being that it excludes from the consideration of the jury the defendant’s theory of the case, and submits that of the plaintiff only.
It appears that the instructions given on behalf of .the defendant cover every aspect of its case; and, finally, the jury are told that the instructions given in the case are the instructions of the court and must all be read together.
*551The third and last assignment is to the action of the court in overruling the motion of the defendant to set aside the verdict of the jury as contrary to the law and the evidence. The considerations to which our attention is invited under this assignment are threefold: (a) That the evidence shows that the defendant fully discharged its duty in establishing, maintaining and operating its wires; (b) that no notice, actual or constructive, was traced to the defendant of the defects which occasioned the plaintiff’s injuries; and (c) that the evidence shows that the plaintiff was guilty of contributory negligence.
Of these contentions,- as a whole, it is sufficient to observe that they involve seriously controverted questions of fact, about which reasonable men might honestly differ; and where such is the case the rules applicable to a demurrer to the evidence must control and the verdict of the jury be upheld.
For these reasons the judgment is affirmed.
Affirmed.