I concur in the opinion of my Brother Montgomery in the question of damages. I cannot, however, concur with him that there is any evidence in this case on which to base a charge of negligence against the *618defendant. Mr. Walker was a section foreman, and it was-his duty to remove all obstructions from his section of the road; or, if there were any which he could not with safety remove, it was his duty to report the same to the proper officers of the defendant. If this trolley wire was so low as to endanger the lives of brakemen upon the cars, the-defendant would have been liable for any accident caused by it after notice of its existence. I am unable to find anything in the record which can be construed into a-direction to Mr. Walker on the part of Mr. Houghton to-cut the wire. Upon discovering its existence, it appears to-have been clearly understood by Walker, Houghton, and Secord that the wire should be cut. Mr. Tolchard testified that he ordered a tall car to be run under the wire. Mr. Walker procured a stepladder from within the car, and voluntarily climbed to the top, and the stepladder was-handed to him. He seemed to assume that, as a matter of course, he was the one to cut the wire, and he did it. voluntarily, without protest, objection, or suggestion of danger. The only danger was in holding onto one end after it had been cut. This was as apparent to one as to-another. Mr. Walker was, however, told that he must, hold onto the nippers lightly, so as to let go when the-wire broke. There was no thought of danger on the part, of any one, nor was there any except in holding onto the-wire. Every one present — those looking on as well as the railroad men — knew that the wire would bound back when severed, and people standing in the street so stated. If' this had been an unseen danger, of which the superior had knowledge, but the deceased had not, a different rule would apply. No one can doubt that, if the deceased had obeyed the instructions which were given, the accident would not have happened. No instructions were necessary, however, to guard against a patent danger.
The allegations of negligence are (1) that defendant did *619not furnish a safe place in which to work; (2) that it did not furnish some one to support the stepladder; and (3) that deceased was not furnished with proper tools for cutting the wire, and was not properly instructed how to use them. The-place was safe, and the ladder was used only to reach the wire and pull it down, which was safely done. These two allegations are therefore eliminated from the case, and are not argued on the part of the plaintiff. The nippers was a suitable and proper tool with which to cut the wire. The claim of the plaintiff in this regard is that the defendant should have furnished machinery with which to hold the wire solid upon each side of the place where it was to be severed; that this was the customary way on the part of street-car companies when desiring to separate it, so as hot to injure the line. In other words, it must be held that the company not only should have known this method, but should have provided the deceased with the apparatus necessary to be used to avoid injury to other parts of the trolley system when severing a wire. There is no evidence that the defendant or any of its officers lawfully intrusted with the care of this part of its road had any knowledge of any such apparatus, or of its use, or that the interior of the wire was composed of soft metal. All that the defendant had to do and all that it cared about was to cut this wire, regardless of injury to the other parts of the street-railway system. I am unable to come to any other conclusion than that the sole and proximate cause of the injury was the fact that the deceased did not let go of the wire when it was severed. If there be any force in the contention that the wire parted before it was entirely severed by the nippers, in consequence of the soft metal in the center, this was a thing unseen and unknown to any one connected with the affair, and was therefore an unseen and hidden danger, for which the defendant is not liable.
*620Briefly stated, the situation is this: The deceased was section foreman, upon whom was the duty to keep his section of the road clear from obstructions. He voluntarily did the work. The danger, if any, was apparent. The nippers' was a proper tool to cut the wire. The accident happened because he held on when the wire parted. Distressing as these accidents always are in their consequences, yet negligence must be established in accordance with ■sound legal principles, in order to hold the defendant liable for those consequences. Under the facts in thig case, I am unable to discover any authority or sound legal principle upon which the defendant can be found guilty of negligence.
I think the judgment should be reversed, and n<5 new trial ordered.
Hooker, J.I agree with my brethren that the judgment must be reversed. I think it a question for the jury to determine whether this was such an extraordinary service, involving latent danger, as to impose upon the master "the duty of warning the employés, if the master was aware of the danger, and whether the master was negligent in failing to discover and warn the deceased of such danger, if it existed. The liability of the defendant must rest upon the violation of a duty, viz., that of ordinary care; and this liability cannot be based simply upon the request to perform an unusual or extraordinary service. There must be reason to suppose that there is danger, of which the servant is ignorant, or that he does not possess the skill to avoid it. The character of the service, the exigency, the intelligence and skill of the servant, and the opportunities of each to ascertain the danger, enter into the question.
I think a new trial should be ordered.
Long, J., did not sit.