(after stating the case). TKe plaintiff was clearly entitled, to have the instructions hereinafter discussed and prayed for, given to the jury, if not in the exact language, certainly in substance, which does not appear in the charge as given.
The defendant company was engaged in the business of manufacturing, producing, leasing and selling light made from the use of electricity, which is the most deadly and dangerous power recognized as a necessary agency in developing our civilization and promoting our comfort and business affairs. It differs' from all other dangerous utilities. Its association is with the most inoffensive and harmless piece of mechanism, if wire can be classified as such, in common use. In adhering to the wire it gives no warning or knowledge of its deadly presence; vision can not detect it; it is without color, motion or body; latently and without sound it exists, and being odorless, the only means of its discovery lie in the senses of feeling, communicated through the touch, which, as soon as done, becomes its victim. In behalf of human life and the safety of mankind generally, it behooves those who would profit by the use of this subtle and violent element of nature to exercise the greatest degree of care and constant vigilance in inspecting and maintaining the wires in perfect condition. Recognizing this peril to those in its use, or who, in the exercise of their liberty in passing along the streets of the city, might accidentally come in touch or contact with electric wires, or who in the management of their business affairs would have other wires suspended over the streets in close proximity to electric wires, the city authorities' of Raleigh deemed it proper to require that all such wires should be covered with durable water-proof insulation. The-duty imposed .under this ordinance was imperative. Its strict observance was necessary for the safety of all. The electric wires must be insulated,' and it was no less the duty *170of defendant company to keep them so at all times and at all places. The nature of the mischief intended to be remedied required it. A failure to comply with this ordinance was prima facie evidence of negligence, and there being no evidence in rebuttal offered- by defendant company, and none • appearing from the evidence of plaintiff, it was error in his Honor in refusing to give instruction No. 1 prayed for by plaintiff, viz: “If the jury find from the evidence that the defendant left its wires uninsulated, as stated by the wi1> nesses, this ivas negligence on the part of the defendant, and the jury will so find.”
In Union Pa. Railway Co. v. McDonald, 152 U. S., 262, the Court held that where the statute imposed a duty upon a railroad company to fence its slack-pits, its failure to do-so was evidence of negligence, for which it was liable. In the case of Clements v. La. Electric Co., 44 La. Ann., 692, 32 Am. St. Rep., 348, 16 L. R. A., 43, it is held by the Supreme Court of Louisiana that the failure of defendant company to have the splices on its wires perfectly insulated, when so required to do by the ordinance of the city, was negligence on its part. The ordinance being a contract with each and every inhabitant of the city, its standard of duty was fixed by it, and its failure to comply with it ivas negligence. Also-to the same effect it is held in Tobey v. Burlington, etc., R.. Co., 94 Iowa, 256, 33 L. R. A., 496, and cases there cited; Hayes v. Mich. Cent. Ry. Co., 111 U. S., 228:
“A company maintaining electric wires over which a high voltage of electricity is conveyed, rendering them highly dangerous to others, is under the duty of using the necessaiy care and prudence, at places where others might have the right to-go, either for work, business or pleasure, to prevent injury. It is the duty of the company under such conditions to keep the wires perfectly insulated, and it must exercise the utmost care to maintain them in such condition at such places. And the fact that it is very expensive or inconvenient to so insu*171late them, will not excuse the company for failure to keep-their wires perfectly insulated. So, one who, in the course of his employment, is brought into close proximity to electrical wires, is not guilty of contributory negligence by coming in contact therewith, unless done unnecessarily or without proper precautions for his safety. And where the wires, if properly insulated, would not be a source of danger, such person is only obliged to look for patent defects and not for latent defects; and a person who touches an electrical wire from which the insulation is worn off, if he does it in ignorance of the nature and condition of the wire, is not negligent.” Joyce on Electric Law, sec. 445.
The evidence in the case at bar shows that defendant company’s wires were strung on poles along the same street with those of the Bell Telephone Company. At places, as was in this case, one set of wires diagonally crossed the other at a distance of only about ten feet. Each had a common right, and it was the duty of each to exercise all reasonable precautions for the prevention of injury to the servants who may be sent there in the performance of duty. Each is bound to know that the servants of the other may come in contact with its wires. The fact that defendant company’s wire was insulated, was calculated to induce intestaté to rely upon its safety, even if the wire he was paying out should come in contact with it. Newark Electric Light Co. v. Garden, 78 Fed., 74, 37 L. R. A., 725, 6 Am. Elec. Cases, 275.
We think his Honor also erred in refusing the third instruction prayed for, viz: “There is no evidence of contributory negligence on part of the intestate of plaintiff, and the jury will therefore find the second issue ‘No.’ ” What is contributory negligence upon a given state of facts, and whether there is any evidence, are questions of law for the decision of' the Court; and a review of the evidence fails to discover any act done by the intestate which he ought not to have done, or the omission to do any act which he ought to *172have done. Tbe witnesses testified tbat tbe proper way would bave been to have conveyed tbe rope or band-line and wire over tbe arm of tbe tall Bell pole not far off (and not through tbe trees as was done), which any man who. understood bis business would bave done. But it also appears from tbe evidence tbat a similar accident occurred at or near tbe same place when tbe arm of a pole was used and tbe wire carelessly allowed to slack and fall upon the electric wire. So, if intestate used a different mode to accomplish bis purpose, tbat act would not necessarily be negligence upon Ms part. And having undertaken to use tbe trees in supporting bis wire while conveying it over and across tbe defendant company’s wire, be bad a right to presume tbat tbe electric wires were properly insulated as required by tbe ordinance; and it was his duty to look for patent defects only. Clements v. La. Elec. Co., supra.
There is no evidence to show tbat intestate so managed or mismanaged bis wire as to cut through tbe insulation of defendant company’s wire, nor is there any evidence to show tbat tbe abrasion in tbe insulation was seen, or by due care could bave been seen by him — in extent, tbe evidence shows that it varied from tbe width of a pencil to two inches, and was suspended 30 feet above tbe street. It does appear tbat bis wire came in contact with and rested upon tbe electric wire, but there is no evidence to show tbat it caused tbe abrasion in which it rested; nor was there any evidence to show tbat he knew of its existence. Tbe fact tbat it was there, and had been for two years, and bad been seen and known to exist there for two years by at least two people (who were witnesses in this case), tbe Court must presume tbat it was ór ought to bave been known by - defendant company. So, where an electric light company permitted a live wire to remain on the surface of a street for three weeks, and a traveller was injured by contact with such live wire, it was held tbat *173tbe Court would presume, after such a period, tbat tbe company bad notice of tbe fact and was liable for tbe injury. Joyce, supra, sec. 450.
Tbe fourth instruction asked was: “There is no evidence of any other cause of death of plaintiff’s intestate, except from tbe electricity coming from tbe wire of tbe defendant; there-: fore, if the jury find from tbe evidence tbat tbe death of tbe intestate of plaintiff was caused by tbe current of electricity passing into bis body from tbe charged wire of tbe defendant, tbe jury will find tbe third issue ‘Yes’ ” — the third issue was, “was the negligence of tbe defendant tbe proximate cause of tbe death of intestate of plaintiff ?”
Tbe negligence of defendant appearing, and no evidence of contributory negligence by intestate, bis Honor erred in refusing this instruction. There was evidence tending to show tbat intestate was killed by the electrical current, which clearly appears; and tbe jury should have been charged as requested.
As there will have to be a new trial, and tbe questions raised by tbe other exceptions may not again arise, we think it unnecessary to discuss them.
MoNtgomeey, J., dissents.