#### Wilger, Administratrix, Respondent, vs. Wisconsin Traction, Light, Heat & Power Company, Appellant.

*April 13*

May *4, 1915.*

*Death caused by negligence: Electric current: Contributory negligence: Finding by jury: Reversal on appeal.*

1. In an action to recover for death, of a person caused by negligence, a finding by the jury, approved by the trial court, acquitting the deceased of contributory negligence will not be disturbed on appeal unless the evidence of contributory negligence is clear, convincing, and practically undisputed.

2. Plaintiff’s intestate, an adult, knew that electricity was a dangerous agent and that a fellow employee whose hand had come in contact with the metal part of a certain switch had received a severe shock — so severe that a part of the flesh of his hand was actually adhering to the metal, or so believed to be by said intestate; yet, in spite of such knowledge and for no useful purpose, but merely to demonstrate to another employee that a spark could be drawn from the metal part of the switch, he held the knuckle of his little finger close to or in contact with such metal part and received a fatal shock. *Held,*that he was guilty of contributory negligence as matter of law, even though he did not know, and perhaps had no reason to believe, that the switch was charged with a deadly current. It was not essential that he should have known the précise extent of the danger.

Appeal from a judgment of the municipal court of Outa-gamie county: Thomas H. RyaN, Judge.

*Reversed.*

Action to recover damages for tbe death of Joseph Wilger, an employee of the Eox River Valley Marble, Granite & Out Stone Works, caused by his receiving an electric shock while touching or coming in close proximity to a switch in the marble works, the wires of which were supplied by the defendant with electric current through a set of transformers. The Marble Works was originally joined as a defendant, but the case as to it was settled for $900.

It appears that on September 17, 1910, the deceased, a tool sharpener, had worked in the forenoon. In the afternoon at about half-past 3 he returned for his umbrella. In one of *655tbe rooms in tbe plant was a pump for drawing drinking water run by electric power. Tbe pump was operated by closing an ordinary tbree-prong knife electric switch located a few feet from it on a wall. In tbe forenoon of tbat day an employee named Carr had received a shock, presumably upon touching a metal part of tbe switch. Tbe deceased and one Schaeffler were discussing the fact tbat Carr bad received a shock, and Schaeffler remarked that Carr must have touched a metal part or he would not have received a shock, to which the deceased replied, “Of course he must have touched the metal, because I can see where his skin is hanging on the metal yet,” and he remarked that Carr must have been careless to get a shock. Two or three minutes later the deceased, apparently addressing his remarks to Schaeffler, who was then looking out of a window, said, “I will show you.” Schaeffler upon hearing these words turned around and looked at the deceased, who was then standing in front of the switch in question some fourteen feet away, and saw him put the-knuckle of the little finger of his right hand against or close up to the metal part of the switch. The contact or proximity of the knuckle to the metal was followed by a flash, and the deceased after staggering for a moment fell to the floor, and died apparently instantaneously and without regaining consciousness. At the time of the flash Schaeffler, who had started to walk toward the deceased when hé turned around, was about six feet away and was looking at what deceased was doing. The knuckle of the little finger of his right hand was afterwards found to be burned. At the time he received the shock he stood upon a cement floor which was wet in spots and dry in spots.

Plaintiff claims the defendant was negligent in permitting one of its transformers to become out of repair, by reason of which a current of high potential, in excess of 250 volts and dangerous to human life, was allowed to reach the switch in question. The jury found (1) that deceased came to his *656death by coming in contact with the switch in question; (2) that one of the transformers through which power was supplied to the motor operating the pump was so damaged and out of repair at the time deceased was killed as to permit a high potential current in excess of 250 volts and dangerous to human life to reach the switch; (3) that such condition of disrepair had existed for such a length of time that the defendant in the exercise of ordinary care and prudence ought to have known and remedied the same before the accident; (4) that the defendant was negligent in permitting said current to enter the plant of the Marble Works; (5) that such negligence was the proximate cause of the death of deceased; (6) that no want of ordinary care and prudence on the part of deceased contributed to his death; and (I) damages “$3,000 from *Traction Company,*which with the $900 heretofore received makes $3,900.” Erom a judgment for plaintiff in the sum of $3,000 and costs entered upon the verdict the defendant appealed.

The cause was submitted for the appellant on the brief of *Tan Dylce, Shaw, Muslcat & Yan Dylce,*and for the respondent on that of *Martin, Martin & Martin.*

ViNJB, J.

Defendant presents three grounds upon which the judgment should be reversed. Eirst, because it does not appear that the transformer was defective or out of repair; second, because, if out of repair, defendant was not chargeable with notice thereof; and third, because the deceased was guilty of contributory negligence as a matter of law. Having reached the conclusion that the undisputed evidence sustains the defendant as to the third ground it becomes needless to consider the other two.

The jury absolved the deceased from contributory negligence and the trial court approved of such finding by entering judgment for plaintiff. Under such circumstances the evidence of contributory negligence must be clear and convine-*657iug and be practically undisputed in order to warrant tbis court in disturbing the result. In this case the evidence relating to the negligence of deceased is undisputed, and we deem it so clearly spells negligence that the jury’s finding to the contrary, though approved by the court, cannot be permitted to stand.

The only testimony touching the conduct of'the deceased at the time he met his death is that given by Mr. Schaeffler, the substance of which is set out in the statement of facts. From such testimony it appears that deceased knew a shock would be received by coming in contact with or in close proximity to the metal part of the switch. True, he did not know, and perhaps had no reason to believe, that it was charged with a deadly current; neither did he know that it was not. But it was not essential that he should have known the precise extent of the danger or injury. *Coolidge v. Hallauer,*126 Wis. 244, 105 N. W. 568; *Coel v. Green Bay T. Co.*147 Wis. 229, 133 N. W. 23; *Dodge v.*Kaufman, 152 Wis. 171, 139 N. W. 741; *Luebben v. Wis. T., L., H. &*P. *Co.*154 Wis. 378, 141 N. W. 214. In *Dodge v.*Kaufman, *supra,*the rule is thus stated:

> “It is not necessary that the precise injury should be anticipated, or that it should be foreseen that an injury may happen in a particular manner. It is sufficient if an ordinarily careful and prudent person ought, under the circumstances, to have foreseen that an injury might probably result from the risk in question.”

Deceased was a blacksmith forty-six years of age, and knew that electricity was a dangerous agent. He knew that Carr had that forenoon received a severe shock — so severe that a part of the flesh of his hand was actually adhering to the metal, or so believed to be by the deceased. Yet in spite of such knowledge and for no useful purpose, and not in the line of his duty as an employee, but merely to demonstrate to Schaeffler that a spark could be drawn from the metal part of *658tbe switch, be makes tbe fatal experiment. It is evident that be did not intend to either open or close tbe switch, for be held tbe knuckle of bis little finger toward the metal part. He made no attempt to take bold of tbe handle. Tbe switch at tbe time was open and tbe handle stood out horizontally from tbe wall. A few moments before Schaeffler bad said be was going to take a drink and tbe deceased replied that be was going home — indicating that be did not want a drink and was not going to use tbe switch. It is strongly urged by plaintiff that deceased did not touch tbe metal part of tbe switch. This is probably true for two reasons — first, because Schaeffler walked about eight feet while deceased held bis knuckle near tbe switch before a spark was drawn, and second, tbe presence of a spark or flash would indicate that tbe current arced — 1 that there was some space between tbe knuckle and metal. That be intended to draw á spark and not point out something is evident from tbe fact that be used tbe knuckle of tbe little finger and not tbe index finger or tbe little finger itself— also from tbe fact that be brought tbe knuckle so close to tbe metal that it either touched or Schaeffler, who was only about six feet away from him, thought it touched. Such conduct on tbe part of an adult being but a voluntary useless experimentation with a known dangerous agency amounts to contributory negligence. Eor analogous cases see *Billington v. Eastern Wis. R. & L. Co.*137 Wis. 416, 119 N. W. 127; *Glander v. Milwaukee E. R. & L. Co.*155 Wis. 381, 144 N. W. 972; *Stark v. Muskegon T. & L. Co.*141 Mich. 575, 104 N. W. 1100, and note to same in 1 L. R. A. N. s. 822. In *Billington v. Eastern Wis. R. & L. Co., supra,*plaintiff was held guilty of contributory negligence though be took bold of a live wire for tbe laudable purpose of placing it beyond tbe reach of children who were playing with it, and though, without real knowledge, be assumed tbe insulation of tbe wire would protect him from danger.

*By the Court.*— Judgment reversed, and cause remanded with directions to dismiss tbe complaint.