Rombauer, P. J.
The plaintiffs were the parents of Earl E. Erauenthal, who was killed on a public street by contact with an electric wire owned and operated by the defendant. They brought this suit to recover damages for such killing, and upon its trial [4]*4recovered a verdict and judgment for $1,112.75. The defendant appeals and assigns numerous errors, of which we shall notice only one, as we deem it fatal under the uncontroverted facts to plaintiff’s recovery.
The defendant’s answer .was a general denial, and the plea of Earl E. Frauenthal’s contributory negligence. At the close of the plaintiff’s evidence, and at the close of the entire evidence, the defendant asked an instruction that the plaintiffs could not recover. These instructions the court refused, and their refusal constitutes the main error complained of.
The plaintiffs’ evidence tended to show the following facts: The defendant is a corporation, which at the date of the grievance complained of had a contract with the city of St. Louis for lighting its streets by electricity. In doing so, it had a wire strung on poles-near the curb on the north side of Franklin avenue. This wire caught fire from some causes not clearly appearing on the evening of one day, and on the morning of the next it broke and dropped to the ground near the curb. One Reinholz had a store close to the broken wire, and the plaintiffs’ son had called on him that-morning for a friendly chat. The wire broke while the son was in the store or immediately after he left. Reinholz, anticipating some danger to the passers-by, approached the fallen wire with a pair of insulated pliers for the purpose of cutting it. He knew that the wire was dangerous, and that a contact with it by anyone might prove fatal. While there is some slight contradiction in his testimony, the only rational conclusion that can be drawn from it is that he expressed that fact in the presence and hearing of the plaintiffs’ son, who had in the meanwhile returned. He testifies-that he told the plaintiffs’ son: “I will go over and cut that wire, or some of those children will get killed.” He testified before the coroner’s jury shortly after the [5]*5accident that the plaintiffs’ son came back and asked him: “What is that?” and that he told him: “The wire is broke; I am going over to take it out of the way, or somebody will get killed. ’ ’ A number of persons were present at the time, but all stood aloof at some distance from the wire, save the plaintiffs’ son and Reinholz, who walked toward the wire, Reinholz preceding. When Reinholz reached the wire, he took hold of it with his insulated plier. The plaintiffs’ son followed him, and, reaching over his shoulder, took hold of the wire with his hand, having first wound a handkerchief around his hand, and was immediately precipitated to the ground by the shock, of which he died shortly thereafter.
The plaintiffs’ son was in his seventeenth year, fully developed, over six feet tall, intelligent, of studious habits, and was at the time of his employment filling a responsible position in one of the wholesale houses of the city. That he knew of the danger of approaching the fallen wire unguarded is placed beyond all controversy by the plaintiffs’ own evidence. All the surrounding circumstances establish this fact beyond dispute, even if we leave out of consideration the further fact that he was distinctly informed of the danger. His own mistaken attempt to insulate his hand before he reached for the wire admits of no other rational construction. That he was warned by appearances, and by the conduct of all those standing around, is equally clear. So far the plaintiffs’ evidence.
The defendant introduced five witnesses to the accident, all of whom were entirely disinterested residents of the neighborhood. They all testified to the fact that, although the number of those was great who had gathered around the fallen wire, and many of them were children, they all stood aloof, appreciating the danger of a contact. Several of these witnesses testi[6]*6fied that they loudly warned Reinholz and the plaintiffs’ son to leave the wire alone; that some people tried to throw a board at the wire, standing at a distance. The defendant also introduced the evidence of Reinholz before the coroner’s jury, from which it appeared that he told the plaintiffs’ son that he was going to take the wire out of the way or somebody would get killed; that the plaintiffs’ son went across the street with him, and that, as soon as Reinholz stepped upon a plank next to the wire, he was shocked and jumped back; that he then walked around the wire; and was told by plaintiffs’ son to wind it around the post, to which, he replied: “No, I will cut it;” that, when he reached out with the pliers to cut the wire, he saw the hand of plaintiffs’ son wrapped in a handkerchief reach over his shoulder, and that he thereupon called out: “My God, don’t do that;” but that it was too late — the plaintiffs’ son had taken hold of the wire with the fatal result above indicated.
We hold that the court erred in refusing the instruction in the nature of a demurrer to the evidence at the close of the plaintiffs’ case. Taking the most favorable view of plaintiffs’ evidence, it shows not only such contributory negligence on the part of their son as debars them of recovery, but it further shows that that negligence was not in contemplation of law simply concurring but was the direct -and sole immediate cause of the accident. The defendant’s evidence on that subject, instead of aiding the plaintiffs’ case, makes the apparent negligence more glaring. The plaintiffs’ counsel urge that contributory negligence can not be predicated as a matter of law upon the conduct of an infant, and cite in support of the proposition Wallace v. Railway Company, 26 Oregon, 174, where the infant in question was six years old, and Spillane v. Railroad, 111 Mo. 555, where the infant in question was eight [7]*7years old. The plaintiffs’ counsel entirely overlooks the fact that the test in such cases is not infancy, but maturity; it is want of capacity and not nonage. There is absolutely nothing in the plaintiffs’ case which would indicate that their son was not fully matured, so as to be aware of the danger of coming into contact with a live electric wire. Even if he had not been fully aware of it before that day, the undisputed facts that he saw the people standing around keep aloof and avoid the contact, that he saw Eeinholz approach the wire with caution although armed with an insulated plier, and that he himself endeavored to secure an insulation which unfortunately proved ineffectual, place his knowledge of the existence of the danger of the contact beyond question. At best, it was not the danger but its extent which he did not know, the extent of the danger depending on the volt power of the electric current running through the wire. He was a mere volunteer and had not the excuse of relying on the superior judgment of anyone, nor could it be possibly held that he acted by an irrepressible impulse of danger to himself or others, as both he himself and others were in a position of perfect safety before he undertook the fatal task.
There is nothing in any of the cases relied on by the plaintiffs’ counsel which is opposed to the views hereinabove expressed. The only one of the cases akin to this is Haynes v. Gas Company, 114 N. C. 203. There, a boy ten years old, while traveling on the sidewalk, attempted to remove an electric wire lying on it, and was injured.
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Rombauer, P. J.
The plaintiffs were the parents of Earl E. Erauenthal, who was killed on a public street by contact with an electric wire owned and operated by the defendant. They brought this suit to recover damages for such killing, and upon its trial [4]*4recovered a verdict and judgment for $1,112.75. The defendant appeals and assigns numerous errors, of which we shall notice only one, as we deem it fatal under the uncontroverted facts to plaintiff’s recovery.
The defendant’s answer .was a general denial, and the plea of Earl E. Frauenthal’s contributory negligence. At the close of the plaintiff’s evidence, and at the close of the entire evidence, the defendant asked an instruction that the plaintiffs could not recover. These instructions the court refused, and their refusal constitutes the main error complained of.
The plaintiffs’ evidence tended to show the following facts: The defendant is a corporation, which at the date of the grievance complained of had a contract with the city of St. Louis for lighting its streets by electricity. In doing so, it had a wire strung on poles-near the curb on the north side of Franklin avenue. This wire caught fire from some causes not clearly appearing on the evening of one day, and on the morning of the next it broke and dropped to the ground near the curb. One Reinholz had a store close to the broken wire, and the plaintiffs’ son had called on him that-morning for a friendly chat. The wire broke while the son was in the store or immediately after he left. Reinholz, anticipating some danger to the passers-by, approached the fallen wire with a pair of insulated pliers for the purpose of cutting it. He knew that the wire was dangerous, and that a contact with it by anyone might prove fatal. While there is some slight contradiction in his testimony, the only rational conclusion that can be drawn from it is that he expressed that fact in the presence and hearing of the plaintiffs’ son, who had in the meanwhile returned. He testifies-that he told the plaintiffs’ son: “I will go over and cut that wire, or some of those children will get killed.” He testified before the coroner’s jury shortly after the [5]*5accident that the plaintiffs’ son came back and asked him: “What is that?” and that he told him: “The wire is broke; I am going over to take it out of the way, or somebody will get killed. ’ ’ A number of persons were present at the time, but all stood aloof at some distance from the wire, save the plaintiffs’ son and Reinholz, who walked toward the wire, Reinholz preceding. When Reinholz reached the wire, he took hold of it with his insulated plier. The plaintiffs’ son followed him, and, reaching over his shoulder, took hold of the wire with his hand, having first wound a handkerchief around his hand, and was immediately precipitated to the ground by the shock, of which he died shortly thereafter.
The plaintiffs’ son was in his seventeenth year, fully developed, over six feet tall, intelligent, of studious habits, and was at the time of his employment filling a responsible position in one of the wholesale houses of the city. That he knew of the danger of approaching the fallen wire unguarded is placed beyond all controversy by the plaintiffs’ own evidence. All the surrounding circumstances establish this fact beyond dispute, even if we leave out of consideration the further fact that he was distinctly informed of the danger. His own mistaken attempt to insulate his hand before he reached for the wire admits of no other rational construction. That he was warned by appearances, and by the conduct of all those standing around, is equally clear. So far the plaintiffs’ evidence.
The defendant introduced five witnesses to the accident, all of whom were entirely disinterested residents of the neighborhood. They all testified to the fact that, although the number of those was great who had gathered around the fallen wire, and many of them were children, they all stood aloof, appreciating the danger of a contact. Several of these witnesses testi[6]*6fied that they loudly warned Reinholz and the plaintiffs’ son to leave the wire alone; that some people tried to throw a board at the wire, standing at a distance. The defendant also introduced the evidence of Reinholz before the coroner’s jury, from which it appeared that he told the plaintiffs’ son that he was going to take the wire out of the way or somebody would get killed; that the plaintiffs’ son went across the street with him, and that, as soon as Reinholz stepped upon a plank next to the wire, he was shocked and jumped back; that he then walked around the wire; and was told by plaintiffs’ son to wind it around the post, to which, he replied: “No, I will cut it;” that, when he reached out with the pliers to cut the wire, he saw the hand of plaintiffs’ son wrapped in a handkerchief reach over his shoulder, and that he thereupon called out: “My God, don’t do that;” but that it was too late — the plaintiffs’ son had taken hold of the wire with the fatal result above indicated.
We hold that the court erred in refusing the instruction in the nature of a demurrer to the evidence at the close of the plaintiffs’ case. Taking the most favorable view of plaintiffs’ evidence, it shows not only such contributory negligence on the part of their son as debars them of recovery, but it further shows that that negligence was not in contemplation of law simply concurring but was the direct -and sole immediate cause of the accident. The defendant’s evidence on that subject, instead of aiding the plaintiffs’ case, makes the apparent negligence more glaring. The plaintiffs’ counsel urge that contributory negligence can not be predicated as a matter of law upon the conduct of an infant, and cite in support of the proposition Wallace v. Railway Company, 26 Oregon, 174, where the infant in question was six years old, and Spillane v. Railroad, 111 Mo. 555, where the infant in question was eight [7]*7years old. The plaintiffs’ counsel entirely overlooks the fact that the test in such cases is not infancy, but maturity; it is want of capacity and not nonage. There is absolutely nothing in the plaintiffs’ case which would indicate that their son was not fully matured, so as to be aware of the danger of coming into contact with a live electric wire. Even if he had not been fully aware of it before that day, the undisputed facts that he saw the people standing around keep aloof and avoid the contact, that he saw Eeinholz approach the wire with caution although armed with an insulated plier, and that he himself endeavored to secure an insulation which unfortunately proved ineffectual, place his knowledge of the existence of the danger of the contact beyond question. At best, it was not the danger but its extent which he did not know, the extent of the danger depending on the volt power of the electric current running through the wire. He was a mere volunteer and had not the excuse of relying on the superior judgment of anyone, nor could it be possibly held that he acted by an irrepressible impulse of danger to himself or others, as both he himself and others were in a position of perfect safety before he undertook the fatal task.
There is nothing in any of the cases relied on by the plaintiffs’ counsel which is opposed to the views hereinabove expressed. The only one of the cases akin to this is Haynes v. Gas Company, 114 N. C. 203. There, a boy ten years old, while traveling on the sidewalk, attempted to remove an electric wire lying on it, and was injured. The judge deciding the case, in commenting on the evidence, said: “No witness testified that there was anything from which even an adult could have inferred that this wire was earrying'a deadly current of electricity, or indeed any current at all.” The evidence is then analyzed for the purpose of show[8]*8ing that the surrounding circumstances conveyed no warning, and the judge concludes by saying: “We should be very loth to declare an adult guilty of negligence for grasping a wire such as this one under circumstances such' as the defendant contends surrounds the accident.” In Graham v. Boston, 156 Mass. 75, the question of contributory negligence did not arise at all. There the contact of the child was accidental, and the only question discussed and decided was whether the child, was a traveler on the street within the meaning of the statute. The cases of Flagg v. Hudson, 142 Mass. 280, and Hayes v. Hyde Park, 153 Mass. 514, bear upon the question of concurrent cause only, and not on the question of contributory negligence.
While we desire to place our decision exclusively -on the ground of the contributory negligence of plaintiffs7 son, we have examined other parts of the record .and find it exceedingly doubtful whether it contains any substantial evidence of defendant's negligence. ‘There is no evidence that the defendant was advised of the defect of the wire, or that the wire had been in use for a sufficient length of time to need replacement, nor in fact that the wire was defective. The first discovery •of some supposed defect by others was the preceding •evening. The injury to the wire was presumably caused by its chafing against a pole recently erected by another corporation. The break of the wire preceded the accident less than ten minutes. The wire was what is known as weather proof wire, of the best .grade, and the great weight of both the plaintiffs7 and defendant’s evidence concurs in characterizing such wire as the one generally used throughout the country for outdoor service, and as safer and superior for such service to the rubber coated wire which is used for indoor service. That companies using these danger[9]*9ous appliances should be held to the very highest degree of care in preventing injury we readily concede, but we think no case has gone to the extent of holding them to the liability of absolute insurers against damage resulting from their own acts and the acts of others.
All the judges concurring, the judgment is reversed. Judge Bond concurs in the result.