Fauntleroy, J.,
delivered the opinion of the court.
This suit was brought for damages for the death of the plaintiff’s intestate, Miles Patteson, alleged to have been caused by the negligence of the defendant company, on the 23d day of March, 1886, in the city of Lynchburg, Va., while the said Patteson was in the discharge of his duty as an employee of the said company. Upon the trial of the case there was no demurrer to the declaration, no objection to any portion of the evidence, nor instructions asked of the court by either side; and the jury, upon the evidence, rendered a verdict for the plaintiff for $3,000 damages, apportioned, under the statute, to the widow and the infant child of the deceased. Thereupon the defendant company moved the court to set aside the verdict and grant it a new trial, on the ground that the verdict was contrary to the evidence, which motion the court overruled, and entered judgment that the plaintiff recover against the defendant $3,000, with interest thereon, to be computed at the rate of six per centum per annum from the 22d day of December, 1886, till payment, and the costs, etc.
The only question presented by the record is, whether the court below erred in overruling appellant’s motion for a new trial, on the ground that the verdict of the jury is contrary to the evidence. The facts proved in the trial are not certified by the trial court, but the evidence is certified in full. Such being the case, the well-established rule of this court is, that [762] “ the evidence must be plainly insufficient to warrant the verdict, to justify the court in setting it aside.” Priest v. Whitacre, 78 Va., 151.
The judgment complained of in this case will be affirmed, or reversed, according as the verdict of the jury shall be warranted, or unwarranted, by the evidence adduced by the plaintiff in the court below. The case for the plaintiff, who prevailed in the court below, rests upon the evidence of four witnesses :
First. Policeman Adams testified that he is a member of the police torce of the city of Lynchburg; that on the night the plaintiff’s intestate came to his death, witness saw him hanging on the pole of the electric light, at the corner of Eighth and Jefferson streets; “he was dead, and was-taken down in my (witness’) presence. I passed him just before he went to that pole, and a few minutes after saw him dead. The defendant company had its city office on Eighth street, near the Arlington Hotel. I knew Miles Patteson (plaintiff’s intestate) when I saw him. He was a colored man, about thirty years of age. He was killed about eight o’clock in the evening of the 28d of March, 1886; think he was a sober man, and seemed to he sober then. When I first saw him on the street, shortly before he was killed, he was carrying a short ladder, about eight feet long, the hands used in climbing the poles. The pole on which he was killed is about twenty-one to twenty-two feet high. I do not know what Patteson’s business was—what his duties were. The electric lights in that part of the city were not lighted at that time. The lamps light up twice— that is, there were two flashes between the time I first saw him on the street and the time I saw him on the pole dead. I saw his overcoat flapping, and called to him, and got no answer. I then went and saw Mr. Fraley, the superintendent of the defendant company at Lynchburg, and told him there was one of his men killed, and where. In the interval between the two flashes I walked about half a square. It was a drizzling night.” ■
[763] Second. R. C. Cobbs, a colored man, a witness for the plaintiff, testified: “ I did not see Patteson at the time he was killed. When I got there they were getting him down. He was in the employment of the defendant company at the time. It was about ten minutes after eight o’clock in the evening, when he was got down. Patteson was a day trimmer. The work of a day trimmer was done between the morning and the evening. They begin about seven o’clock in the morning, and get through about half-past twelve, the sooner the better. I was at that time a night inspector, which is night work altogether, and consists in seeing that the lamps are doing all right, and if not, to put them right. At that time there were three or four day trimmers, I don’t remember which. There are three circuits in Lynchburg, and one man to each circuit, on.the day force, and the same on the night force. I had been in the employment of the company about eighteen months. Miles Pafteson had been in the employment of the company under Superintendent Rockoff, who was superintendent before Mr. Eraley, for two or three months. He then quit and went away from Lynchburg on some railroad work. He then came back, and went into the employment of the company again for three or four weeks, when he was killed. The practice in Lynchburg is for the current not to be on when day trimming was being done. There is generally a test to see whether the circuit is complete. The current- is not put on while the men are going around doing the day trimming; they don’t use it in the day time. I do not know what time Miles reported he had trimmed his lamp that day. When I got to the office that evening, they said circuit Ho. 1 was open, and all hands were fixing to go out to look for the trouble. The lamp could be examined without the current being on, but when it is on it gives notice by lighting up the lamps as soon as the trouble is found, and all hands who are out searching can quit. A day trimmer has to examine each coupling when he trims a lamp to see that it is connected, and to clean the lamp and see [764] that it is in order. The right way to examine the couplings is to catch hold of the wires on each side of the coupling and pull. Whenever there is a trouble at night at lighting-up time, all hands go out to find it. They often leave the current on, because as soon as the break of connection is found and connected, it notifies all of us. Very probably it might be so that this examination for an an opening in the circuit could be made without the current. They (meaning the persons in charge) know the run of the machines. I do not. The connection in a circuit can be broken here (in the city) in the office; it could be done instantly. As soon as the connection is made on an open circuit, with the current on, it lights up. I could not recognize the‘shunt-cord’that Patteson had that night. There were several condemned ones about the office at that time. The one I saw that night after the accident, said to be the one he had, had about two inches missing. At one time the‘shunt-cords’had Keeright tape around them near the hooks to insulate them. Mr. Eraley objected to the Keeright tape which the hands had on their ‘ shunt-cords,’ and had it taken off. They, the defendant, had Mr. Covert, Mr. Eraley’s assistant, making good ones. It seems Patteson’s switch (shunt-cord) he had that night was in a defective condition. When I got to the office that night the hands were all getting their shunt-cords. I got mine. Patteson got the one he had in the office. I can’t say how he was killed. Ilis right hand was burnt on the inside; his left hand was burnt also, but not so badly. In dry weather a man can handle the lamps very well. How he can do it in any weather. The lamps have been improved. At that time, the iron lamp frames would sometimes give you a shock, more than is the case now. The shocks then were more frequent. In wet weather the current will have more effect on you. Sometimes the cast iron frame of the lamp gets charged, but those shocks from the lamps don’t amount to much; they are not enough to make a man let go. The most shocks I have received have been in [765] making couplings, and were caused by carelessness on my part in letting my hand slip; and in changing carbons at night, if a man is not careful, is liable to get a shock. I had Patteson with me, when the first superintendent, Roekoff, was here, and got him so he could trim very ivell at night; day work he could do very well. He worked fast in the day, and was very particular at night. The opening could have been found without having the current on, by examining the couplings, and when the opening was found, turning the current on to see if there was another, and then looking for that. All hands, six or seven, were out that night looking for the break of connection. I think there ivas one extra man learning. Circuit 1 is from the corner of Fourth and Church streets to Washington street; from thence to White Rock Hill to the far end of Main street, and back to Jefferson street, and half of Daniel’s Hill. It had forty-nine or fifty lamps on it then. We started out about half-past seven o’clock; the accident was within half an hour afterwards. For the men, who were out to examine the whole line and report at the office, would take about two hours. At the light-up time was when they found the circuit was open. Sometimes the broken connection may be in the machine at the station. The test of the circuit is made as soon as the last man reports. Sometimes after this a lamp has to be hung. I don’t know whether there were enough shunt-cords in good order for all the hands. I got mine. It was lying on the table in the office. I know that Patteson had a shunt-cord in his hand coming towards the door as I went into the office. Mr. Fraley said to me as I went in, “ You are late; circuit Ho. 1 is open.” I answered, “Yes; rather late.” I don’t know what wages Patteson was getting; the usual wages were from ten to twelve dollars a week. Patteson, so far as I know, was all right. He seemed to have his mind always about him. I had known him two years. He was in Lynchburg most of that time. He was married. He had gone somewhere, to work on some railroad, between the times [766] he was with this company. I saw Mr. Fraley very particularly instructing him about putting in carbons. He did not dojnight work, except to inspect his circuit when they light up. As far as I know, Miles seemed to be a careful man. I was late on that night. When I got to the office, Miles was standing out in the room coming towards the door. All hands were going out to look for the break of connection.”
F. M. Bryant, a white man, a witness for the plaintiff, testified: “At the time of Patteson’s death, I was in the employment of the defendant company; was a day-trimmer. I worked on circuit No. 3; his was No. 1. No. 3 is the one furthest from the river, on College Hill. Circuit Ho. 1 was open, and all started out to look for the break. The lamps flashed up twice. I started back then, and, knowing Patteson was a new hand at the business, wont down towards the direction he had gone. The current was on when we started out. I took a shunt-cord with me. There were some four, five, or six, in the office in good order. It was the superintendent’s business to see that the shunt-cords were in good order. Mr. Covert, Mr. Traley’s assistant, fixed them. I don’t think the one Patteson had was in good order. I think some of the insulation was off. Mr. Covert had been fixing the shunt-cords, but I don’t think they had finished fixing them—they were called off about some other work, and did not. finish. I have had pretty heavy shocks fixing lamps at night. There is more danger in rainy weather. It had been drizzling that evening. The only change made, was to look for the break when there was no.current on. There is no necessity for the current to be on to look for a break in the circuit. Bo not know what Miles’ pay was; think it was nine dollars a week. I was paid ten dollars at that time. The usual pay was from nine dollars to ten dollars. Miles was a clever colored man— seemed to be careful, sober, about thirty years old, in good health, and strong. Bid not know him well—only for two or three weeks, and not much with him. He had been in employ-[767] meat of defendant company under Superintendent Rockoff, and at that time had done day-trimming. He had been employed under Mr. Eraley about two or three weeks. The skin was burnt on the inside of both of his hands. - After he was killed the insulation ivas off of part of the shunt-wire he had, and skin was sticking to the naked wire. Patteson got the shunt-wire he had when killed that evening in the office. I never worked about electric-lighting anywhere but here; had been working at it about fourteen or fifteen months at the time Patteson was killed.”
Mosby H. Payne, Esq., (white) testified: “ I had known Miles Patteson about two years. His wife was my house servant. He was at my house two or three times a day and to his meals. Have seen him trimming the electric lamps. He was about thirty years of age, in good health and good physique, of average intelligence for a colored man, and had no special intellect, nor was he the other way. I don’t think he had any education. I do not know whether he could read or write. Rever ásked what wages he got. He had no child at the time of his death. His wife was pregnant of a child—born since. She ■was greatly distressed at his death, and was very ill for some time. She fainted when she heard of it, and fainted once or .twice during the night. The doctors were with her all night. I sat up with her, too. She was confined to her bed for a week or ten days-. Hr. Thornhill stayed with her one or two nights. Her condition was alarming, especially during the first night. I saw Miles Patteson’s body on Jefferson street, near the place on which he was killed. It was lying on the counter of a shop near by. This was about twenty minutes after eight o’clock. His hands were badly burnt—the right hand nearly to the bone. I do not know how long the' illuminating by electric light had been in use in Lynchburg; I suppose some twelve or fifteen months. Patteson was in the employment of the defendant company, the last time, for about three or four [768] weeks. He liacl, before that time, been away from Lynchburg working on some railroad.”
This is, with the defective shunt-cord exhibited in evidence upon the -trial, the whole of the plaintiff’s evidence as certified in the record. Testing the ease upon the plaintiff’s evidence alone, we are of opinion that the verdict is wholly unwarranted by the evidence, which, we think, fails to make out the plaintiff’s case.
,The gravamen of the plaintiff’s' case, as set forth in the declaration, is, that Patteson’s death was caused by the negligence of the company in whose service he was engaged when he was killed, as stated in the evidence, on the 23d of March, 1886, in the city of Lynchburg, about eight o’clock P. M., upon one of the electric Mmp-posts of the defendant company. How the death was brought about the evidence does not disclose; and the case alleged or averred in the declaration is not sustained by the plaintiff’s own evidence—the probata do not sustain the allegata in the case. Each count in the declaration charges, that, by the wrong and negligence of the defendant company, the electric current was caused to pass through and kill the body of Patteson while was engaged in the discharge of his specially appointed duties in the service of the defendant company.
There is nothing in the plaintiff’s evidence to show that the defendant company, in any way, by commission or omission, caused the electric current to strike and pass through Patteson and kill him; but, from the plaintiff’s own showing, the inference of contributory negligence by Patteson, as the proximate causa mortis, is irresistible. The rule as laid down by this court, in the case of Baltimore & Ohio Railroad Company v. Whittington, 30 Gratt., 805, is “If the defendant relies upon contributory negligence of the plaintiff to defeat the action, he must prove it, unless the fact is disclosed by the evidence of the plaintiff, or may be fairly inferred from all the [769] circumstances.” It cannot be seriously contended, that the mere fact that the current was on when Patteson was killed was negligence. It is sufficient to say, that this was and had been the mode of conducting the business from the start, and that Patteson, who had been in this service for many months, engaged to work in the business and to take the peculiar risks and hazards of the business to be done in that way; and this is the reason why all the hands, including Patteson, took with them the ‘shunt-cords’ that night when they went out to look for the break in the circuit. They all knew that the current was on; and there were good aud satisfactory reasons, as shown by the plaintiff’s evidence, why it should be on after lighting-up time, not only to save several hours of time in finding out where the break was, but to prevent the city from being kept in darkness during the search for and repairing of the breach. There was no change in the state of things, caused by the defendant’s action or non-action, from the time that Patteson, with the others, went out to look for the break in the circuit, to the moment and occurrence of his death. He carried with him his shunt-cord; and, although it was. defective, he knew its defects, and he selected it, and used it without complaint.
The plaintiff’s evidence shows that there were three, four, five or six shunt-cords in the office in good order; and Cobbs, a colored witness for plaintiff, testifies that when he arrived in the office, late, Patteson was coming out with the shunt-cord, which he had selected; and that he (Cobbs) got from those left thereby Patteson, his shunt-cord, which was in good order. If, in fact, the defects in the shunt-cord used by Patteson, caused his death, the evidence shows that they were open, patent, and visible to Patteson, who chose it for himself, and used it, unhesitatingly and without complaint, of his own selection, with deliberation and without necessity, requirement, or direction so to do. The servant is bound to see for himself such risks and hazards as are patent to his observation; and [770] the employer does not stand in the relation of an insurer to the servant against injury caused even hy such defects as are known or palpable to the servant in the due exercise of his own skill and judgment. Sherman &Pedfield on Negligence, sees. 92 and 93; Wood on Master and Servant, sec. 326, pp. 679 to 681, and sec. 414, p. 791, and note 1. The evidence shows that Patteson had been for many months, with a brief interval, in the service of the company in the same capacity he was in when killed ; that he had been carefully instructed in the care and attention necessary to his own safety in the discharge of his dangerous duty, and that he did know howto use the shunt-cord with perfect safety to himself, and had twice turned on the current, with the shunt-cord, but a few moments before he received the shock which killed him. At the first flash Patteson knew that in his lamp the break in the circuit was, and that in his efforts to make tbe connection, with his shunt-cord, great care and prudence were necessary ; and there was no hurry, urgency, necessity or reason for his putting himself in the line of the current in the only way possible, by holding the shunt-cord with one hand by its metal ends, and, at the same time, carelessly and inadvertently, putting his other hand on the exposed end of the line wire, and, thereby, made his body a part of the circuit, through which the current passed and killed him. It is not charged—nor can it be implicated—that there was any defect in the line wire, in its structure, or insulation; a small part of the end of the line wire being necessarily left naked in order that the set-screw might be fastened to it in the connection with the shunt-cord to restore the circuit; and even though Patteson was foolish and careless enough to catch hold of the shunt-cord at its defective end, below its insulated part—at most not three inches of it—he would have been perfectly safe, and could not have been harmed by the current; had he caught hold, with the other hand, of the line wire two or three inches from its exposed metal end, where it was carefully and perfectly insulated and [771] guarded. It is certain, from the very nature and necessity of the case, that but for the careless and negligent act of Patteson in grasping the naked end of the line wire—whatever may have been the condition of the shunt-cord—he could not have been killed or hurt by the current. In the case of the City of Richmond v. Courtney, 32 Gratt.,792, it is held that “where negligence is the issue, it must be a case of uumixed negligence to justify a recovery.” Citing Dillon on Corporations, sec. 789, and cases there cited. And in the case of the Norfolk & W. R. R. Co. v. Ferguson, 79 Va., citing Dunn v. Seaboard, R. R. Co., 78 Va., it is said: “It must be proved that the injury was caused by the negligence of the defendant, or his agent; and it must not appear, from the evidence, that the plaintiffs want of ordinary care and prudence directly contributed to the injury.”
"We are of opinion, that the plaintiff’s own testimony fails to prove negligence on the part of the defendant company, unmixed by the concurring and co-operating negligence of the decedent, but for which the accident could not have occurred, and that, therefore, the verdict is wrong, and the judgment founded on it is erroneous; and that the verdict' must be set aside and the judgment reversed and annulled.
Judgment reversed.