The judgment in this case was reversed because a majority of the court interpreted instruction No. 1 and other like instructions as telling the jury that unless the wires were insulated and kept taut the failure to do so constituted negligence on the part of appellant, the Arkansas General Utilities *Page 355 Company. In other words, that a duty rested upon appellant to do both these things in order to escape liability. I do not think such was the purport of instruction No. 1 or any other instruction given by the court. The purport of the instructions was to tell the jury that if the sagging and insulated condition of the wires was the sole cause of the injury then appellant would be guilty of negligence and responsible for the death of deceased. There is no question that the wires came in contact, burned in two and fell to the ground where appellee, without fault on his part, came in contact with them and was killed on account of the current they carried. The undisputed evidence shows that the wires were properly insulated when installed and, not only so, but that they were taut and hung 22 feet above the ground. There is much evidence in the record to the effect that appellant not only permitted the insulation on the wires to become worn and ragged, but that it permitted them to sag so that they might be blown together, burn in two and drop to the ground and endanger the life of any one who came in contact with them. This court laid down the rule in the case of Arkansas Power Light Co. v. Cates, 180 Ark. 1003,24 S.W.2d 846, and re-announced the rule in the case of Arkansas Power Light Co. v. Hoover, 182 Ark. 1065,34 S.W.2d 464, to the effect, in substance, that a company maintaining high-power lines must either insulate them or it must place them under ground, or at a high altitude, or at some inaccessible place and that a failure to do so constituted negligence and, also, that such duty rested upon an electric company to maintain its wires in a safe condition. Under the rule announced in the cases cited it was appellant's duty either to maintain the insulation in good repair or else to maintain them in a taut condition and in such position that they would not contact each other and burn and fall on the ground. If the electric company had properly maintained the insulation or had properly maintained taut wires 22 feet above the ground it would not have been negligent in the installation or maintenance thereof. Proper maintenance was just as important as proper installation in order to prevent injury to persons who might come in contact with *Page 356 them without fault on their part. It must either maintain the insulation or else maintain the wires in such position and condition as to prevent them from contacting each other and burning and falling to the ground so as to endanger passers-by. Under the situation in the instant case, appellant would have been liable for a failure to perform its duty in either respect and the instructions complained of met the requirements of the rule as applied to the facts herein.
I think the majority have misconstrued the meaning of the instructions or, at least, have interpreted their meaning differently from what I do or from the meaning the jury, had a right to give them. In my view of the meaning of the instructions as applied to the facts, the judgment herein should have been affirmed instead of being reversed and remanded for a new trial without taking into account the worn and ragged condition of the insulation on the wires.
Mr. Justice MEHAFFY authorizes me to state that he concurs in this dissenting opinion.