dissenting:
I cannot agree with the majority opinion. The evidence shows beyond peradventure that Mabin was guilty of contributory negligence which bars his recovery.
In the first place, his own evidence shows that he was not ignorant regarding the danger of electricity. He had worked in and around machinery operated by electricity for a number of years. His account of the circumstances leading up to the injury discloses he was well aware of the danger of his work on the day of the accident. His testimony shows that he saw the wire when he went on the roof; that he had been on this roof previously and had seen the wire; that he knew it carried high voltage electricity; that he knew he could get hurt by the wire if it had no insulation on it; and that he did not know whether the wire had insulation on it or not. Notwithstanding, he went to work immediately under and in close proximity to the wire.
Plaintiff was asked on direct examination:
“Q. Were you careful in getting under the wire not to come in contact with it?
“A. Yes, I was that.”
Nevertheless, plaintiff negligently and without exercising care for his own safety, raised up and came in contact with the wire which he knew carried high voltage and was immediately above him. He is bound by his own testimony. His case can rise no higher than his statement of the facts. Massie v. Firmstone, 134 Va. 450, 462, 114 S. E. 652.
It seems impossible for one to read the record in the case and not come to the conclusion that Mabin entered upon his work on the day he was injured with the feeling that he could do “this little *497job” immediately under the wire (which he knew was dangerous), in safety, and that his negligence in undertaking the job without proper precaution for his own safety contributed to his injury. 13 Mich. Jur., Negligence, § 29, pp. 545, 546.
Sensing the weakness of his position regarding contributory negligence, it is argued in plaintiff’s brief that the theory of “momentary forgetfulness” should save his case. There counsel says:
“Whether momentary forgetfulness is negligence barring recovery, under a given set of facts, is ordinarily a question of fact for the jury. Plaintiff testified Tom Morris called to him and he raised up some, about six inches. It was the province of the jury, we submit, to consider his testimony as a whole and consider whether the distraction involuntarily caus'ed him to raise up, and whether in so doing he momentarily forgot the wire, and whether under the evidence this was contributory negligence barring his recovery.”
The brief then cites the case of City of Charlottesville v. Jones, 123 Va. 682, 97 S. E. 316, and, continuing, says:
“(W)here plaintiff knew of the absence of a hand rail along a foot bridge, but momentarily forgot about it, stepped off of the bridge, and was injured,' the court said: ‘This is a situation in which it was a question of fact for the jury to determine whether plaintiff was negligent in his inattention to or forgetfulness of the absence of the hand rail if they believed from the evidence he had prior knowledge of its absence.’
“The court said forgetfulness is excusable under certain circumstances, as expressly held by the authorities, as where plaintiff has his attention distracted or diverted by such a cause or causes as would ordinarily induce such forgetfulness or inattention in an ordinarily prudent person in the same or similar situation. * * *
“The weight of authority, as set forth in this annotation [74 A.L.R. 2d 958-966], is that to forget is not negligence, unless it shows a want of ordinary care, and this, ordinarily, is a question for the jury. * * *
“In the case at bar the evidence is that Tom Morris called to the plaintiff, from the ground, and plaintiff raised up some six inches, presumably to look at and talk to Morris on the ground. Whether this distraction and the involuntary action in raising up amounts to contributory negligence, is, we submit, for the jury under the facts.”
The foregoing, quoted from the brief, is the theory upon which plaintiff substantially relies in an effort to avoid his contributory negligence.
The majority opinion makes no reference to momentary forgetful*498ness, which I submit is the only possible theory under which plaintiff can avoid his proven contributory negligence.
The majority evidently take the view (with which I agree) that the theory of momentary forgetfulness is not tenable for the reasons that (1) Mabin insisted, under vigorous cross-examination, that he never forgot that the wire was immediately above him; (2) no instruction was requested or given on the theory of momentary forgetfulness; and (3) there was no distraction at the time Mabin raised up and came in contact with the wire.
Mabin was asked several times on cross-examination whether he knew the wire was above him when he raised up, or whether he had forgotten about it, and each time he either answered positively that he remembered the wire was there or denied that he had forgotten about it.
There being no testimony or instruction regarding momentary forgetfulness, the jury could not possibly have based its verdict on that theory which was not relied upon in the trial court. It is submitted that this is the only theory on which plaintiff could recover as, absent this theory, his contributory negligence is conclusively shown.
I would reverse the judgment and enter final judgment for the defendant.
Spratley, J., joins in this dissent.