(concurring specially) — I agree the failure to submit to the jury Count I of plaintiffs’ petition was error which required the granting of the new trial. But I would base the holding, not only upon the finality of the ruling and order under rule 105, Rules of Civil Procedure, but also upon the merits of that ruling and order.
Defendant’s application for adjudication of the point of law raised by the answer, stated:
“Count I of plaintiffs’ petition is based upon section 489.15 of the 1950 Code of Iowa. Said section is not available to plain*953tiffs for the reason that the injury complained of allegedly was received on the private property and farmstead of one William Ileiber, and said injury ivas allegedly received by coming in contact with an electric line as it passed over the private property of said Heiber. Said section 489.15, applies only to transmission lines running ‘along, over or across any public highway or grounds outside of cities and towns’, as provided in section 489.1, and is not applicable to lines erected or maintained over private property.
“Said Count I of plaintiffs’ petition, relying solely upon the presumption created by section 489.15, does not as a matter of law state a claim on which any relief can be granted.”
The trial court made the following order:
“Defendant’s application for adjudication of law points * * #, having been heretofore orally argued by all counsel, the matter is determined as follows:
“Statements made by counsel at the time of argument of said application and answer of defendant to plaintiff’s interrogatory Xo. 12 establish the fact that the electrical energy from the high-voltage line of defendant from the public highway into and over the property on which the alleged accident occurred had not been reduced by any transformer at the point where the alleged accident took place. The voltage power was the same as that passing over the wires of defendant on the public highway.
“It is the opinion of the court that it was not the intention of the legislature (nor does the wording of the statutes involved so indicate) to protect from injury by transmission of electrical current only persons on the public highways over which the electrical company has a franchise, but such statutes have a much broader purpose of protecting persons or property wherever they may be, from the subtle and dangerous hazards of electrical energy.
“The court holds that plaintiff, upon establishment of the facts pleaded, is entitled to the presumption accorded him under section 489.15 of the Code.”
Thereafter the case ivas tried. When both sides had completed their evidence and had rested, the trial court announced *954it would not submit to tbe jury Count I of plaintiffs’ petition, which was based upon the presumption provided by Code section 489.15. This was directly contrary to the ruling and order under R. C. P. 105 made by the trial court prior to the trial. Plaintiff immediately excepted for the reason that the court had withdrawn Count I and no instruction on' Count I would be submitted to the jury.
The opinion of Judge Wennerstrum correctly holds the overruling by the trial court of the previous ruling and order made by that court under R. C. P. 105 was a procedural error which required the granting of a new trial. It is clear the trial court’s error, in refusing to submit to the jury Count I of plaintiffs’ petition, made after both parties had completed their evidence and rested, deprived plaintiffs of the basic presumption pleaded in Count I and relied upon by them and cannot be said to be without prejudice. Whether the order made under R. C. P. 105 was correct or erroneous it was final for all purposes connected with that trial. Plaintiffs had the right to prepare and try their cáse iñ reliance thereon and they may have omitted evidence, perhaps expert testimony, which they otherwise would have deemed it advisable to offer.
Defendant did not apply for, nor was it granted, an interlocutory appeal from the order made under R. C. P. 105, which provided plaintiffs should have the benefit of the presumption afforded by Code section 489.15. However, that order would still be subject to review by us upon appeal by defendant from a final judgment adverse to it. This follows from the last sentence of R. C! P. 105: “If such ruling does not dispose of the whole case, it shall be deemed interlocutory for purposes of appeal.”
On a purely procedural ground the opinion of Judge Wennerstrum directs that the trial court give plaintiffs the benefit of the presumption under section 489.15 but declines to decide whether this is correct. Hence, if plaintiffs recover upon a retrial and there is another appeal by defendant this court could hold section 489.15 was not applicable and reverse the judgment on the ground the trial court gave plaintiffs the benefit of the statutory presumption, although the holding upon this appeal required the trial court to do that very thing.
*955Such possible result is unnecessary and may be avoided if we now decide the applicability of section 489.15, and direct the trial court accordingly. The applicability of that statute has been fully argued by both sides upon this appeal. I believe it should be decided and not avoided.
Appellant contends: “said section 489.15 * * * applies only to transmission lines running ‘along, over and across any public highway or grounds outside of cities and towns’, as provided in section 489.1, and is not applicable to lines erected or maintained over private property.”
The provision here in question in section 489.15, states: “In case of injury * * * by any such transmission line, negligence will be presumed * * The application of the word such is not limited to Code section 489.1. It includes other pertinent sections in Code chapter 489, entitled “Electric Transmission Lines.” In fact, as originally enacted by the legislature, section 6 of chapter 174, Acts of the Thirty-fifth General Assembly, provided: “In case of injury * * * by any transmission line operating under this act, negligence will be presumed * * (Italics supplied.)
Various sections of chapter 489 refer to transmission lines across private lands or the land of any person, the taking of private property by eminent domain, the payment of damages to owners of lands or crops caused by entering and occupying said lands, agreements with landowners with reference to the use of lands, etc. Section 489.19 provides no transmission line shall be constructed, except by agreement, within one hundred feet of any building except when the line crosses or runs along a public highway or along railway right of way.
Iowa Railway & Light Corp. v. Lindsey, 211 Iowa 544, 550, 231 N.W. 461, 463, 464, states transmission lines consist of “fixtures and appliances necessary for conducting electric current.”
Anderson v. Fort Dodge, Des Moines & Southern Railroad Co., 208 Iowa 369, 226 N.W. 151, holds the statute (now section 489.15) by its terms applies only to cases of injuries outside of cities and towns. Probably for that reason the statute was not involved in Coleman v. Iowa Railway Light & Power Co., 189 *956Iowa 1063, 178 N.W. 365. However, in that ease the court held that payment for, and decedent’s ownership of, the poles, wires and transformers, erected by defendant under an agreement with him and leading from his house, did not absolve it from the duty to property construct, maintain and inspect the line.
In Beman v. Iowa Electric Co., 205 Iowa 730, 732, 734, 218 N.W. 343, 345, the wires transmitting the current which caused the death of plaintiff’s intestate and the poles to which the .same were attached were on and over property outside the public highway. The decision states plaintiff had the burden to establish a prima-facie case but was aided by the statutory presumption, to wit: “ Tn case of injury * * * by any such transmission line, negligence will be presumed * * *.’ ”
I would so hold in the case at bar and not rest the decision solely on the procedural ground.
Larson, C. J., and Garfield, Smith and Peterson, JJ., join in this special concurrence.