March 29, 1943. Suggestion of Error Overruled May 24, 1943.
1. MASTER AND SERVANT.
The duty of a public utility corporation to handle and control electricity with the highest degree of care which skill and foresight can make possible is absolute and cannot be delegated to a fellow servant.
2. MASTER AND SERVANT.
Where lineman was working near high-powered wire, the duty of power company to de-energize wire by either turning off switch or requiring lineman to insulate the wire with a rubber blanket could not be delegated to foreman in charge of work.
3. MASTER AND SERVANT.
In action against power company for death of lineman engaged in making an extension of electric service, whether alleged negligence of lineman in failing to de-energize high-powered wire either by turning off a nearby switch or to insulate wire with rubber blanket was the "proximate cause" of death was for jury (Code 1930, secs. 511, 512).
4. MASTER AND SERVANT.
Power company was not relieved of liability for death of lineman in falling against high-powered wire which could have been de-energized by throwing nearby switch, or covering wire with rubber blanket, although work was complicated and lineman knew as much about the instrumentality as did power company (Code 1930, secs. 511-513).
5. MASTER AND SERVANT.
Power company was not relieved of liability for negligence in action for death of lineman falling against high-powered wire which had not been de-energized, where lineman in falling involuntarily threw up the hand that came in contact with the wire (Code 1930, secs. 511-513).
$20,000 was not excessive for death of experienced lineman, 34 years old with long life expectancy, earning $167.50 a month, and leaving a wife and two young children.
APPEAL from the circuit court of Hinds county, HON. J.F. BARBOUR, Judge.
A.M. Nelson, May Byrd, Jackson, Young Friend, and Green Green, all of Jackson, for appellant.
When the master has provided a reasonably safe method or means of doing certain work, and the servant elects to use different and dangerous methods, he cannot recover for the reason that such acts become the negligence of the servant and not of the master.
Favre v. Louisville Nashville R. Co., 180 Miss. 843, 178 So. 327; Stokes v. Adams-Newell Lumber Co., 151 Miss. 711, 715, 118 So. 441; Newell Contracting Co. v. Flynt, 172 Miss. 719, 728, 161 So. 298, 301, 743; Graham v. Brummett, 182 Miss. 580, 181 So. 721, 723; Price v. Taylor, 191 Miss. 392, 1 So.2d 784, 787.
See also Great Northern R. Co. v. Wiles, 240 U.S. 444, 36 S.Ct. 406, 60 L.Ed. 732; Owl Creek Coal Co. v. Goleb (8 Cir.), 210 F. 209, 127 C.C.A. 27; Crawford v. Fayetteville Co. (8 Cir.), 212 F. 107, 128 C.C.A. 623.
Appellant, under its public duty, was without right to discontinue electric service to public.
But assuming appellant was obligated to de-energize the wire by throwing the switch, still the obligation thus to do rested solely upon Merritt.
Rose v. Pace, supra; Price v. Taylor, supra; Federal Compress Co. v. Craig, 192 Miss. 689, 7 So.2d 532, 535; Wade-Stevens Lumber Co. v. Addy, 187 Miss. 851, 194 So. 303, 304; Carr v. Manchester Elec. Co., 70 N.H. 308, 48 A. 286, 287; Ft. Worth Light, etc., Co. v. More (Tex.), 118 S.W. 831; 15 Am. Eng. Ann. Cases 600; Curtis, The Law of Electricity, p. 712, Sec. 567.
Assuming, for argument sake, that appellant was obligated to throw the switch, still appellant furnished to Merritt insulating materials wherewith Merritt should have made the place whereat he was working safe. Appellant did not undertake to drape the rubber insulators, but properly left that to the servant. When Merritt discovered the improper installation which he was rectifying, he did not advise the foreman or anyone else how close he was to the energized wire. As an experienced lineman, he knew the danger and was thereasto obligated. Not having de-energized, adequate and perfect protection lay, in the insulating devices furnished by the company, at the foot of the pole, and through them, in safety, Merritt might have worked. The company could not do any act, save through an employee, involving this manual labor. Had these rubber devices, sent by appellant to the very foot of the pole where Merritt was working, been used by Merritt, this accident would not have occurred. Appellant furnished Merritt a ground helper, who was subject solely to Merritt's orders and could have sent up any desired form of insulation which Merritt thought appropriate.
The law is that the master is as much entitled to expect that a servant will exercise reasonable care in the use and operation of a tool or appliance in the normal manner to avoid injury as the servant it entitled to expect that the master will use reasonable care to furnish him a reasonably safe tool or appliance.
Newell Contracting Co. v. Flynt, supra; 39 C.J. 824, Sec. 1038.
See also Supreme Instruments Corp. v. Lehr, 190 Miss. 600, 199 So. 294, 1 So.2d 242, 244; Federal Compress Co. v. Craig, supra; McLemore McArthur v. Rogers, 169 Miss. 650, 152 So. 883; Ross v. Louisville N.R. Co., 178 Miss. 69, 172 So. 752; Bruce Co. v. Brogan, 175 Miss. 208, 166 So. 350; Price v. Taylor, 191 Miss. 392, 1 So.2d 784, 789; Eagle Cotton Oil Co. v. Sollie, 185 Miss. 475, 187 So. 506.
So when appellant furnished to Merritt those insulating devices which would have protected perfectly, it performed its full duty and might leave the selection of whether it be blanket, hose or hood, to Merritt, the appellant not undertaking to place the insulation but leaving the selection of the insulators and the position wherein they would be to the servant supplying adequate insulating devices, it being admitted that those supplied were in all things proper.
Ross v. Walker, 139 Pa. 42, 21 A. 158; McKay v. Hand, 168 Mass. 270, 47 N.E. 105; Long v. Railroad Co. (Minn.), 52 N.W. 379; Rounds v. Carter, 94 Me. 535, 48 A. 175; Collins v. Railroad Co. (Minn.), 14 N.W. 61; Butterworth v. Clarkson, 22 N.Y. Supp. 714; Callan v. Bull, 113 Cal. Rep. Pomeroy (1896) 603; Pellerin v. International Paper Co., 96 Me. 388, 52 A. 842; 35 Am. Jur. 609.
As to the manual labor of installing the insulating devices, Merritt and Elam, the foreman, were fellow-servants.
Yazoo M.V.R. Co. v. Woodruff, 98 Miss. 36, 53 So. 687; McMurtray v. Louisville, N.O. T.R. Co., 67 Miss. 601, 7 So. 401; Buckley v. United Gas Public Service Co., 176 Miss. 282, 168 So. 462, 464; Harper v. Public Service Corp., 170 Miss. 39, 154 So. 266; Bradford Const. Co. v. Heflin, 88 Miss. 314, 42 So. 174, 12 L.R.A. (N.S.) 1040, 8 Ann. Cas. 1077; Lagrone v. Mobile O.R. Co., 67 Miss. 592, 7 So. 432; Federal Compress Co. v. Craig, supra.
The danger was apparent and deceased assumed the known and apparent risks. The danger incident to the employment was fully known by deceased and at the time of his death he was in and about the performance of his duties in the manner and using the method that he had always used when working in close proximity to high tension or energized wires, but not working on or in dangerous proximity thereto. There was nothing out of the ordinary or unusual about the manner and method used on this occasion. Deceased was subjected to no extraordinary or unusual hazard, peril, or danger, and we submit that he assumed the risks and there cannot be recovery for his death.
39 C.J. 684, Sec. 882; 39 C.J. 704, Sec. 907.
It is usually contended that the doctrine of assumption of risk has been abolished in Mississippi by Section 513, Code of 1930, but it is submitted that the doctrine has been abolished only in those cases where it is shown that the injury or death was caused as a result in whole or in part of the negligence of the employer or master. In the case at bar it was conclusively shown that the deceased was an experienced employee, being fully aware of the dangers incident to the type of work being done; that all of the known safety devices were furnished or available to deceased, and that deceased knew of the presence of the switch and could have had the electricity cut off if he thought it necessary to do the work that he was then doing. Furthermore, this statute is in derogation of the common law and must be strictly construed.
Hollman v. Bennett, 44 Miss. 322; McInnis v. State, 97 Miss. 280, 52 So. 634; Potter v. Fidelity Deposit Co., 101 Miss. 823, 58 So. 713.
And it has never been held in Mississippi that the doctrine of assumption or risk has been abolished as to an obvious, visible, ordinary risk.
Howd v. Mississippi Cent. R. Co., 50 Miss. 178; Austin v. Mobile O.R. Co., 134 Miss. 226, 99 So. 3; Hardy v. Turner-Farber-Love Co., 136 Miss. 355, 101 So. 489.
See also Vehicle Woodstock Co. v. Bowles, 158 Miss. 346, 128 So. 98; Eastman-Gardiner Hardwood Co. v. Chatham, 168 Miss. 471, 151 So. 556; Crossett Lumber Co. v. Land, 121 Miss. 834, 84 So. 15; Eastman, Gardiner Co. v. Caldwell, 177 Miss. 861, 172 So. 126; Allen Gravel Co. v. Yarbrough, 133 Miss. 652, 98 So. 117; Charles Weaver Co. v. Harding, 182 Miss. 345, 180 So. 825; Meridian Laundry Co., Inc., et al. v. James, 190 Miss. 119, 195 So. 689; Crosby v. Burge, 190 Miss. 739, 1 So.2d 504, 507; Bell Tel. Co. v. Detharding (7 Cir.), 148 F. 371; Kreger v. B. O.R. Co. (Pa.), 25 F.2d 726, 727; Peoples Tel. Co. v. Conant, 198 F. 627; Baxter v. Lansing (Mich.), 157 N.W. 70; Bowers v. Bristol Gas Electric Co. (Va.), 42 S.E. 296, 297; Carr v. Manchester Elec. Co. (N.H.), 48 A. 286, 287; Chisholm v New England Tel. Tel. Co. (Mass.), 57 N.E. 383; Cumberland Tel. Tel. Co. v. Magness' Admx. (Ky.), 160 S.W. 1061, 1063; Lynch v. Saginaw Valley Trac. Co., 153 Mich. 174, 116 N.W. 983, 21 L.R.A. (N.S.) 774; Pembroke v. Cambridge Elec. Light Co. (Mass.), 84 N.E. 331; 16 Am. Eng. Ann. Cases, p. 598; Curtis, The Law of Electricity, Secs. 567, 571.
Appellant could not anticipate the injury and death of deceased. In order that a person, doing a particular act which results in injury to another, shall be liable therefor, the act must have been of such character and done in such situation that the person doing it should have reasonably anticipated that some injury would result therefrom.
Shuptrine v. Herron, 182 Miss. 315, 180 So. 620; Burnside v. Gulf Refining Co. et al., 166 Miss. 460, 148 So. 219; Veney v. Samuels, 142 Miss. 476, 107 So. 517; Wunderlich v. Walker, 186 Miss. 149, 189 So. 523; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; Mauney v. Gulf Refining Co. et al., 193 Miss. 421, 8 So.2d 249, 9 So.2d 780; Roberts et al. v. Mississippi Power Light Co. et al., 193 Miss. 627, 10 So.2d 542; Morgan Hill Paving Co. v. Morris, 160 Miss. 79, 133 So. 229; Supreme Instruments Corporation v. Lehr, supra; 18 Am. Jur. 448, Sec. 53; 20 C.J. 367, Sec. 52, et seq.
The evidence discloses that deceased's death was caused by his own negligence in adopting a dangerous method of doing the work when there was a safe method available.
The general rule is that, where there are two ways in which work may be done, one safe or reasonably safe and the other hazardous, and the servant knowingly adopts the hazardous method of doing the work, he is held to have assumed the risk of so doing and cannot recover for any injuries sustained thereby, and the general rule has been held applicable, although other employees of the master also adopt the dangerous method of doing the work.
Ovett Land Lumber Co. v. Adams, 109 Miss. 740, 69 So. 499; Buckeye Cotton Oil Co. v. Saffold, 125 Miss. 407, 87 So. 893; Rose v. Pace, 144 Miss. 375, 109 So. 861; Stokes v. Adams-Newell Lumber Co., 151 Miss. 711, 118 So. 441; Goodyear Yellow Pine Co. et al. v. Clark, 163 Miss. 661, 142 So. 443; Brown v. Coley, 168 Miss. 778, 152 So. 61; 39 C.J. 766, Sec. 966; 35 Am. Jur. 679, Sec. 250.
The appellant's negligence, if any, was merely a remote cause of deceased's death and not a producing or efficient cause. The failure to pull the switch and de-energize the high tension wire was not the proximate or primary cause of deceased's death, but, if it can be said that appellant was negligent in this, was merely a remote or distant cause. In order to hold a master liable for injuries to his employees, it must not only be shown that the master was negligent in some duty owed to said employee, but it must be shown that the negligence of the master, if any, was a direct and proximate cause of the employee's injuries or death.
Louisville N.R. Co. v. Daniels, 135 Miss. 33, 99 So. 434; Marqueze v. Sontheimer, 59 Miss. 430; Illinois Cent. R. Co. v. Wright, 135 Miss. 435, 100 So. 1; Wilson Co., Inc., v. Holmes, 180 Miss. 361, 177 So. 24; Buckley v. United Gas Public Service Co., 176 Miss. 282, 168 So. 462; Public Service Corporation v. Watts, 168 Miss. 235, 150 So. 192; Russell v. Williams, 168 Miss. 181, 151 So. 372; Supreme Instruments Corporation v. Lehr, supra; 45 C.J. 901, Sec. 477; 45 C.J. 905, Sec. 480.
The death of the deceased was purely an accident and no liability attaches.
The verdict of the jury is grossly excessive. Unquestionably, if Merritt's negligence was not the sole proximate cause of the injury so as that appellant was entitled to a peremptory instruction, yet unquestionably Merritt was guilty of the grossest contributory negligence.
Mississippi Power Light Co. v. Whitescarver, 68 F.2d (5 Cir.), 928; Code of 1930, Sec. 511.
The defense of contributory negligence need not be pleaded when it is apparent from plaintiff's own evidence.
Yazoo M.V.R. Co. v. Woodruff, 98 Miss. 36, 53 So. 687.
The verdict of $20,000 was not diminished as the law required. Merritt was killed instantly. He may have died of heart failure without any fault whatsoever upon the part of appellant, but, confessedly, his death was instantaneous. Hence, there were no pain and suffering wherefor recovery might be had. Merritt was thirty-four years of age, with a normal life expectancy had he not been a lineman of thirty years, but his duties reduced his expectancy, according to the evidence, approximately 25%, giving him a theoretical life of usefulness equalling twenty-two years. Assuming his earning capacity as a lineman had continued throughout this entire period, which is a violent assumption, as a man over fifty is not, according to common knowledge, very acceptable in such an occupation, the maximum realization whereto his dependents might have expected receipt would have been, in view of present Federal taxation, his personal needs, a net of not to exceed $75 per month, or $19,800 as a maximum. But this amount would accrue through a period of twenty-two years, so that reduced to its present value it would not exceed $10,460 if paid in one sum. Obviously Merritt's contributory fault was in excess of one-half, probably more than three-fourths, for as we see it, with deference, appellant's fault, if any, was exceedingly slight, for it had supplied to Merritt a thoroughly skilled man at the very foot of his pole, all of the equipment which he could possibly need to render the work he had undertaken absolutely safe.
Barnett, Barnett, Jones Stone, of Jackson, and W.W. Bean, of Little Rock, Ark., for appellee.
Negligence cannot be imputed to a master merely by reason of the fact that the instrumentalities or places furnished by him are dangerous, but where the services required of a servant are of a peculiarly dangerous character, it is the duty of the master to make reasonable provisions to protect him from the dangers to which he is exposed while in the discharge of his duties.
It is the settled law in the state that public utility corporations in handling and controlling the subtle and extremely dangerous agency of electricity shall be held to the highest degree of care which skill and foresight applicable to that business can obtain.
Henry v. Mississippi Power Light Co., 166 Miss. 827, 146 So. 857; Mississippi Power Co. v. Thomas, 162 Miss. 734, 140 So. 227, 84 A.L.R. 679; Farmers Gin Co. v. Leach, 178 Miss. 784, 174 So. 566; Hercules Powder Co. v. Williamson, 145 Miss. 172, 110 So. 244; Winkelman v. Kansas City Electric Light Co., 110 Mo. App. 184, 85 S.W. 99, 100; Fairbairn v. American River Electric Co., 170 Colo. 115, 148 P. 789; 3 Labatt Master Servant 2418, Note 11; Croswell, Law of Electricity, pp. 205, 206, Sec. 234.
Merritt did not assume the risk.
Neary v. Georgia Public Service Co., 107 S.E. 893; Clark v. Johnson County Telephone Line (Iowa), 123 N.W. 327; Cumberland Tel. Tel. Co. v. Graves (Ky.), 104 S.W. 356; Code of 1930, Secs. 511, 512, 513.
A pole on which telegraph wires are maintained is a place of work within the meaning of the rule requiring an employer to furnish a reasonably safe place to work, where the duties of the employee require him to climb it.
Rose v. Missouri Dist. Tel. Co. (Mo.), 81 A.L.R. 410; 39 C.J. 376, footnote 5 (d), and Sec. 493.
Merritt, the lineman, and Elam, the foreman, were not fellow servants.
Black v. Rocky Mountain Bell Tel. Co., 73 P. 514; Fritz v. Western Union Telegraph Co., 71 P. 209; Livingston v. Houghton County Street Ry. Co., 108 N.W. 662; Note to Shank v. Edison Electric Illuminating Co., 30 L.R.A. (N S.) 47; LaBatt's Master Servant, Sec. 1432, Note 1 (x); LaBatt's Master Servant, Sec. 1763, Note 5.
The risk assumed by Merritt was the danger incident to the work after defendant had exercised reasonable care for his safety.
Stricklin v. Harvey, 181 Miss. 606, 179 So. 345; Wilbe Lumber Co. v. Calhoun, 163 Miss. 80, 140 So. 680; Edwards v. Haynes-Walker Lumber Co., 113 Miss. 378, 74 So. 284; Gow Co., Inc., v. Hunter, 175 Miss. 896, 168 So. 264.
The mere fact that Merritt was an experienced lineman does not affect the duty of the power company, particularly when an absolutely safe method could have been followed by the power company in the performance of the work.
Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74, 475; Mississippi Utilities Co. v. Smith, 166 Miss. 105, 145 So. 896; Standard Oil Co. v. Franks, 167 Miss. 282, 149 So. 798; Aponaug Mfg. Co. v. Carroll, 183 Miss. 793, 184 So. 63; McLemore McArthur v. Rogers, 169 Miss. 650, 152 So. 883; Hardy v. Turner-Farber-Love Co., Inc., 136 Miss. 355, 101 So. 489; Planters' Oil Mill v. Wiley, 154 Miss. 113, 122 So. 365.
The place of work being a dangerous one — close proximity to an eight thousand volt primary line — the defendant was under the duty to promulgate rules and methods to make the place reasonably safe and not only to promulgate rules for the safety of its men, but to enforce them, and the mere fact that rubber goods might have been in the crew truck is not sufficient to exonerate the defendant from liability under the rulings of the following authorities.
Hammontree v. Cobb Construction Co., 168 Miss. 844, 152 So. 279; Albert v. Doullut Ewin, 180 Miss. 626, 178 So. 312; Curry Turner Construction Co. v. Bryan, 184 Miss. 44, 185 So. 256; Gulf Ref. Co. v. Ferrell, 165 Miss. 296, 147 So. 476; Ross v. Louisville N.R. Co., 178 Miss. 69, 172 So. 752; Eagle Cotton Oil Co. v. Pickett. 175 Miss. 577, 166 So. 764; 18 R.C.L. 573.
The verdict of the jury was not excessive. From the testimony of Mrs. Merritt, it appears that Merritt was thirty-four years old, married, with two children, and was earning $167.50 per month, plus overtime, and that with this money he kept up his home and family and provided well for them, and that he worked regularly. His life expectancy, according to the testimony of B.G. Horton, was thirty-two and one-half years.
Prouse v. Mississippi Power Co. (Miss.) 1 So.2d 240; Avent v. Tucker, 188 Miss. 207, 194 So. 596; S.H. Kress Co. v. Markline, 117 Miss. 37, 77 So. 858; Illinois Cent. R. Co. v. Causey, 106 Miss. 36, 63 So. 336; Yazoo M.V.R. Co. v. Farr, 94 Miss. 557, 48 So. 520; Gulf S.I.R. Co. v. Simmons, 153 Miss. 327, 121 So. 144.
Argued orally by Forrest B. Jackson and Garner Green, for appellant, and by Ross R. Barnett, for appellee.
On October 3, 1941, the appellant Power Company was engaged in making an extension of its electric service at a place in Rankin County. James A. Merritt, one of its linemen engaged in the work at the top of one of its poles, was electrocuted by a high powered wire of 8,000 volts. The appellees, his wife and two minor children, brought this action against the Power Company and Elam, its foreman, charging that his death was caused by the negligence of the company. The trial resulted in a verdict and judgment for $20,000 against both defendants, from which they prosecute this appeal.
The grounds of liability relied on were that while Merritt was doing the work the Power Company negligently failed to de-energize the high powered wire, either by turning off a switch nearby or requiring Merritt to insulate the wire with a rubber blanket.
The assignments of error worthy of consideration are only two, that the court erred in refusing the appellants' request for a directed verdict and in refusing to grant a new trial on the ground that the verdict was excessive. We will consider the two propositions in the order stated.
The following were the facts, either proven by evidence without conflict or substantial believable evidence where there was conflict: The crew engaged in the work consisted of Elam, the foreman, and the deceased Merritt, and Ammons and Sullivan, linemen. The pole on which Merritt was at work was about twenty-five feet above ground and about six or seven inches in diameter. At the top was a high powered wire carrying 8,000 volts, below that was a neutral wire, and below that another wire not dangerous to come in contact with. And in addition there was a guy wire on which Merritt had been working which was only eight or ten inches from the high powered wire. In order to climb the pole Merritt had attached to his shoes sharp spikes, and to keep him from falling while climbing, after he reached the top or while coming down he was attached to the pole by a belt — the belt encircling him and the pole. When he had completed his work and was starting down, the spike in one of his shoes slipped out of its socket, which according to the evidence sometimes happens, causing him to dangle back in his belt and involuntarily throw up one of his hands, which came in contact with the high powered line, resulting in his death. His death could have been avoided in two ways, (1) three hundred yards away there was a switch by means of which the current in the high powered wire could have been cut off without interfering with service to any of the Power Company's patrons; (2) on the ground nearby in a truck belonging to the Power Company was a rubber blanket which could have been thrown over and insulated the high powered wire while Merritt was at work. To have used that, however, it would have been necessary for him to have a helper up the pole with him. When the accident occurred the foreman Elam was standing within a few feet of the pole and the other three linemen were standing nearby. Elam as foreman had charge of all the ways and means of doing the work and the linemen under him, including Merritt, had to obey his instructions and directions. Without having the current in the high powered wire cut off at the switch or suggesting that it be done, and without instructing Merritt to use the rubber blanket, Elam directed Merritt to climb up the pole and do the work, fully aware of the danger to him from the high powered wire. The evidence showed that Merritt was a lineman of several years experience, that he was thirty-four years of age, six feet and two inches in height and weighed 180 pounds, and was in good health, and therefore with a long life expectancy for his age. He was getting a salary of $167.50 a month with overtime. He left in addition to his wife two young children, one a little less than three years old and one two months old.
The main contention of the Power Company is that Merritt's failure to either cut off the switch or use the rubber insulation himself, was the sole proximate cause of the injury. On the other hand, it is contended that it was the duty of the foreman Elam to require that one or the other be done, which Elam failed to do. As above stated, Elam required Merritt to go up the pole and do the work without suggesting or requiring either of those precautions being taken. "It is the settled law in this state that public utility corporations in handling and controlling the subtle and extremely dangerous agency of electricity shall be held to the highest degree of care which skill and foresight applicable to that business can obtain." Henry v. Mississippi Power Light Co., 166 Miss. 827, 146 So. 857. And the duty of the master in that respect is absolute and can not be delegated to a fellow servant. Masonite Corp. v. Lochridge, 163 Miss. 364, 140 So. 223, 141 So. 758. "If the wires carry a strong and dangerous current of electricity, so that negligence will be likely to result in serious accidents, and perhaps death, or if a harmless wire is in dangerous proximity to a high tension wire, a very high degree of care, indeed the highest that human prudence is equal to, is necessary." Croswell's Law of Electricity, Sec. 234, pages 205 and 206.
In considering this question it should be kept in mind that Sections 511 and 512 of the Code of 1930 abolish contributory negligence as a defense and make negligence and contributory negligence questions for the jury to determine, and that Section 513 of the Code of 1930 abolishes the doctrine of the assumption of risks. "The risk that the servant assumes is the danger incident to the service which remains after the master has exercised reasonable care for the safety of the servant." Wilbe Lbr. Co. v. Calhoun, 163 Miss. 80, 140 So. 680, 682. Evidently the work Merritt was engaged in had a good deal of complication about it. Where the work is complicated "the mere fact that a servant may happen to know as much as the master knows about the instrumentality does not relieve the master from furnishing the servant with a safe instrumentality." Hercules Powder Co. v. Tyrone, 155 Miss. 75, 124 So. 74, 77, 475. Standard Oil Co. v. Franks, 167 Miss. 282, 149 So. 798.
We cannot say with a sufficient degree of confidence that the verdict was too large. The record in this case, including the instructions, shows that the case was tried on the theory that either the Power Company's alleged negligence was the sole proximate cause of the injury or the negligence of Merritt was the sole proximate cause of his injury. Therefore, the language used by the court in Avent v. Tucker, 188 Miss. 207, 194 So. 596, 602, is applicable: "In the case at bar, neither the plaintiff nor the defendant in the court below requested instructions based upon the comparative negligence statute so that the jury in this case was not required to apportion and compare the damages on account of the negligence of the parties. We have already said that Tucker was very negligent in driving rapidly without having his car under control into and upon an intersection. We have also said that the jury was authorized to find that the Avents were negligent in driving in and upon the intersection under the circumstances without looking to the south, from which Tucker came. The jury was not directed to apportion damages as to which the court could not voluntarily instruct the jury; the plaintiff was not required by law to so instruct the jury; and the defendants saw fit not to so have the jury instructed by the court. As to whether or not the defendant chose to invoke the comparative negligence statute, Section 511, Code of 1930, was a matter of strategy on the part of the defendant in the court below which they determined so that this court cannot consider the comparative negligence of the parties in determining whether or not the verdict was excessive. See Mississippi Power Co. v. Thomas, 162 Miss. 734, 140 So. 227, 84 A.L.R. 679; Alabama and V. Ry. Co. v. McGee, 117 Miss. 370, 78 So. 296; Lindsey Wagon Co v. Nix, 108 Miss. 814, 67 So. 459."
SPECIALLY CONCURRING OPINION.
The initial duty with respect to the place and condition of work was upon the master. The high-power wire was installed and energized by the master. It was its duty to use in its installation and maintenance a degree of care commensurate with the danger. If after requisite care had been exercised dangers yet remained such dangers would constitute a normal and anticipated risk of the work against which the servant would have to guard himself, employing his own experience and judgment as aided by the warnings and instructions of the master.
It is no part of the servant's duty to abate dangers which are the result of the master's failure to use requisite care. The master's duty to use reasonable care to make and maintain the place of work in a reasonably safe condition is non-delegable. Reasonable care with respect to an 8,000 volt wire must of course involve a degree of care which exhausts all practical means to prevent its contact with persons, particularly servants.
There were here available two means of protection: A cut-off switch which would absolutely insure against danger, and a rubber blanket, with other insulating equipment, which was at least reasonable protection. The former was primarily under the control of appellant, the latter was readily available to appellee. The failure of appellee to use these devices was unquestionably negligence but it would be contributory negligence only if there was some initial negligence to which it could contribute. The necessity for its use was occasioned by the appellant's omission to render the wire harmless by cutting off the switch. The master may not be allowed to transfer completely to the servant the duty to guard against a condition created by its own negligence. We could not, of course, lay down a fixed rule that persons engaged in maintaining high voltage wires must de-energize them whenever their linemen are engaged in proximity thereto. Such rule would be impractical and because it is so, it is true that in most occasions requisite care is fulfilled when enlightened methods of construction have been complied with. But such impracticability does not affect the rule of requisite care. It merely takes into account the fact that the duty and the extent of protective measures must be "interpreted in the light of the attendant circumstances." Supreme Instruments Corp. v. Lehr, 190 Miss. 600, 607, 199 So. 294, 1 So.2d 242; Winkelman v. Kansas City El. Light Co., 110 Mo. App. 184, 85 S.W. 99, 100. If conformity with the duty to exhaust every reasonable means to protect the life of the servant would have prevented the death of Merritt, it is inescapable that such omission did not merely create a condition but was negligence. There was no practical obstacle to the employment by the master of the simple means by which it could have insured the safety of its servant. The time and effort needed to disconnect the switch was comparable to that occasioned by the procurement and use of the insulating devices by the servants. To say that the negligence of Merritt resulted in his failure to utilize means for his protection involves a a principle which operates to charge the appellant with negligence in unreasonably refusing to use available precautions which would have made counter measures unnecessary. Throwing the switch would have deprived no user of current. There was no acceptable reason why the master could not and should not have guaranteed safety by so simple and available device, except the disinclination of its foreman.
The master's duty to abate threatened danger is as great as his duty not to create it. If the business involves inherent dangers which remain despite requisite care, the duty to abate the danger arises whenever practical obstacles ordinarily justifying maintenance of the dangerous condition are removed. To argue that the sole responsibility was upon the servant is to say that it was his absolute duty to protect himself against a dangerous condition unnecessarily maintained by the master.
Since there is no intimation other than that appellee's contact with the deadly wire was accidental, it becomes proper to invoke the rule that a master is required so far as is reasonable, to anticipate that usual accidents, even negligence, may expose the servant to a hazard created by the master. Crosswell's Law of Electricity, Sec. 234; Hercules Powder Co. v. Williamson, 145 Miss. 172, 110 So. 244; Russell v. Williams, 168 Miss. 181, 150 So. 528, 151 So. 372; Solomon v. Continental Baking Co., 172 Miss. 388, 160 So. 732; Ross v. L. N.R. Co., 178 Miss. 69, 172 So. 752. But we do hold that it is not the servant's duty to neutralize the initial negligence of the master by assuming full responsibility for results of such negligence. As stated, it was a duty Merritt owed to himself to insulate the wires against his contact. It was not his duty to insulate the master against responsibility.
Appellants' own witnesses testified that it would have been safest to have cut off the current. Why should the master not use the safest way when there were no considerations of convenience nor necessity requiring an exception?
Griffith, J., concurs.