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

*September 28*

October *15, 1907.*

*Electricity: Negligence: Personal injuries: Special verdict: Duplicity: Instructions to jury: Evidence: Admissibility.*

1. Plaintiff, while working on the roof of a building, was injured by a current of electricity from defendant’s wires, one of which, a neutral wire not carrying a heavy charge, was located eleven inches, and the other, a phase wire carrying 2,300 volts, thirty-five inches, outside the edge of the roof. When plaintiff was found, one hand was clasping the neutral wire and the other the phase wire, both hands being badly burned. Plaintiffs testimony was to the effect that he was injured by contact with the neutral wire, and that he could not have brought his hand in contact with the phase wire in the first instance, while the . defendant’s evidence was that the neutral wire could not have caused the injury. *Held,*that it was error to submit the case to the jury by a special verdict and' instructions in such manner that the jury were at liberty to refer plaintiff’s injuries to contact with either wire.

2. Where the insulation on a high potential electric wire carrying an alternating current, with which plaintiff came in contact and was injured, was not intended for the protection of persons coming in contact with such wire, but merely to preserve and protect the wire, it is error to permit the jury to find that the insulation on such wire was so old, weatherworn, broken, and out of repair as to afford no protection against the electric current thereon to a person coming in contact therewith.

*2063. In such case defendant should have been permitted to show what kind of wire and insulation was in common use in similar alternating current systems.

4. Where plaintiff was injured by contact with electric wires, evidence as to the correctness of a witness’s report of the manner in which defendant’s plant was operated on the day tests were made is admissible.

Appeal from a judgment of the circuit court for Winnebago county: Geo. W. Bubxell, Circuit Judge.

*Reversed.*

The appeal is from a judgment rendered upon special verdict in an action for damages for negligent personal injury. The jury after trial brought in a special verdict in which they found: (1) That the plaintiff sustained the injuries complained of by reason of his hands coming in contact with two of defendant’s electric power wires at the time and place alleged in the complaint. (2) The defendant’s wires, as then charged, insulated, and placed, were dangerous to a person standing or being on the roof of the woolen mill building and coming in contact with said wires. (3) The insulation upon said wires was so old, weatherworn, broken, and out of repair as to afford no protection against the electric current thereon to a person coming in contact with the same. (4) Said wires were placed and maintained by the defendant in such close proximity to the roof of said Me-nasha Woolen Mill building as to render dangerous the work of a person there engaged as plaintiff was. (5) Such condition had existed sufficiently long, prior to plaintiff’s injury, to have enabled the defendant, in the exercise of ordinary care and prudence, to have discovered and remedied the same. (6) The defendant was guilty of a want of ordinary care and prudence in maintaining and erecting its wires in the place and condition which they were in, and in sending its electric' current over them at the time of the plaintiff’s injury on the said woolen mill building. (J) Such want of ordinary care and prudence was the proximate cause of plaintiff’s injury. (8) No want of ordinary care and *207prudence on the part of the plaintiff contributed .to said injury. (9) Plaintiff’s damages are assessed at $10,000.

The pleadings are sufficiently broad to uphold such a ver■dict, but the evidence was limited as follows: The plaintiff •testified that, being- employed in painting the ioof of the building known as the Menasha Woolen Mills, he was upon •the roof for that purpose, and in lifting one end of a kind ■of ladder used in his work, which ladder lay horizontally upon the flat roof with the end toward defendant’s wires projecting a foot or a foot and a half over the edge of thfe roof, his hand came in contact with that wire of the defendant nearest to the building, and he at once felt a shock and ■became unconscious. He was found lying with his feet and legs partially upon the roof, his body projecting over the •edge, one hand clasping the wire nearest the roof, and one hand the wire thirty-five inches from the roof, both hands badly burned and maimed by the electric current, and the plaintiff had also an electric burn upon his instep. The only •other eye-witness to the injury was one Adolph Erdmann, who was working with plaintiff at. the time of the injury and had lifted up and was holding the other or farther end of the ladder, when plaintiff attempted to lift the end nearest the wire in question. Erdmann heard a sizzling sound, looked toward the plaintiff, and plaintiff had his left hand on the wire nearest to the building and was standing on the roof, but was immediately thrown upon the other wire, so that he rested with his breast over both wires and one hand •clasping each. The wires were strung upon the cross-arms of poles planted in the street below, were parallel, or nearly parallel, with, the edge of the roof of the building in question, ■and about one foot higher than the level of the roof. The nearest wire was eleven inches outside the edge of the roof •and the other thirty-five inches outside this edge. The latter was what is known in the art as a phase wire, and carried, an alternating current described in the testimony as of 2,300 *208volts, and tbe former was a neutral wire, connected at tbe substation with another neutral wire taken off tbe generator at a neutral point of tbe generator and running thence to the-substation, where it grounded. Tbe neutral wire near the-building in question was also connected with tbe common return of tbe electric street railway at intervals of 1,400 feet. It is claimed that tbe only connection between the phase and. neutral wires was through the transformer, and tbe neutral wire received and returned to tbe generator only a small part, of tbe current which it received through the transformer from the phase wire, but also spilled into tbe ground at tbe various, points of grounding all electric current which might tend to-escape upon or accumulate upon this neutral wire. The-transformer was at tbe Menasha Printing Company building, and the testimony seems to indicate that this was the-only transformer having any bearing upon tbe -questions here. Several witnesses testified to experiments made after tbe accident in question and before tbe trial by taking bold of the neutral wire while the phase wire was carrying its regular heavy alternating current, and that no shock was felt, and an expert electrical engineer testified that the-plaintiff could not have received a shock from the neutral wire in tbe manner described by plaintiff, but assumed in-all bis answers that tbe system in question was installed as be believed from the evidence it was, and was in working condition.

*Olarke M. Rosecranlz,*for tbe appellant.

*W. B.*Quinlan, attorney, and *P. H.*Martin> of counsel,, for tbe respondent.

TimijN, T.

Tbe defendant contends, first, that the evidence of tbe plaintiff and bis fellow-worlanan is so inherently improbable and so contrary to well-known natural laws-that tbe court should have directed a verdict for tbe defendant. This inherent improbability is supposed to be furnished *209by the description, of the defendant’s system.) common knowledge of electric phenomena, the experiments proven and un-contradicted, and the testimony of defendant’s experts. We cannot at present pass upon this question, because we are obliged to reverse this judgment upon other and more obvious grounds. But it may be well to say that it would be more satisfactory to this court had there been on the part of the defendant some more explicit detailed description tracing each wire through its entire length, detailing the kind of transformers and their construction, showing its insulation and separation at evéry point of contact or possible contact and the exact position and detail of each grounding and the exact location of each safety fuse, if any, on each wire, and at the same time producing on the part of the plaintiff some expert evidence showing, if it can be shown, in what different ways the neutral wire might become charged with a current of sufficient force or intensity to shock the plaintiff and cause him to fall across the wires. We would upon this latter evidence be better able to judge whether or not the danger of the neutral wire becoming so charged was such that the defendant might, in the exercise of due care, reasonably have anticipated it when it placed its neutral wire so close to the building in question. But, as we have seen, the positive evidence on the part of the plaintiff all went to show that his injury was caused by coming in contact with the wire nearest to the building, and that he could not have brought his hand in contact with the phase wire in the first instance. If his testimony be taken as true, the proximate cause of his injury was the negligence of the defendant in stringing this wire, liable to become so charged with electricity, so near to the building. Notwithstanding this, the case was submitted to the jury by the special verdict and the instructions in such manner that the jury were at liberty to refer plaintiff’s injuries to contact with either wire and to charge tire defendant with negligence in main-*210taming either or Loth wires. Against this manner of submitting the case to the jury the evidence of the defendant relative to the harmlessness of the neutral wire would be of little avail, and it cannot be definitely ascertained upon what ground the jury might have held the defendant liable nor what weight they gave to the defendant’s evidence. Findings 6 and 7 of the special verdict amply demonstrate this. The case'is in this respect like *Gehl v. Milwaukee P. Co.*116 Wis. 263, 93 N. W. 26. Reading the verdict in the case at bar without reference to the evidence it would appear to be consistent, but with reference to the actual state of the evidence it includes and carries with it a charge of negligence against the defendant relative to the phase wire and its location, which negligence, if it existed at all, had no part in forming the proximate cause of plaintiff’s injuries. Some of the jury may have been convinced that the neutral wire carried no current, but that the admitted final contact with the phase wire after the plaintiff’s fall might be considered the cause of plaintiff’s injuries. Some may have attributed his injuries to contact with one wire, some to contact with another, and some may have been convinced that it was not negligence to string the wire thirty-five inches from the building; others that the negligence consisted in the location of the neutral wire; still others in the lack of insulating covering on one or both. In short, it is impossible to tell for what the defendant was held liable, when under the evidence it could only be held liable, if at all, for negligence in placing the neutral wire or the wire nearest the building, that being the wire with which the plaintiff came in contact. Question 3 of the special verdict should not, upon the evidence before the court, have been submitted, because insulation there mentioned evidently refers to the coating or covering of the wires, which is not intended for the protection of persons coming in contact with such high potential wires, but merely to preserve and *211protect the wires, and is not properly insulation at all for tbe purpose of protection against shock, although it may have incidentally some insulatory effect in case of a low or weak current. The defendant should have been permitted to show what kind of wire and insulation was in common use in similar alternating current systems in other cities. *Boyce v. Wilbur L. Co.*119 Wis. 642, 97 N. W. 563. The testimony of the witness Brennan, with reference to whether his report contained a correct statement of the manner in which the plant was operated on the day that tests were made, should not have been excluded. *Nehrling v. Herold Co.*112 Wis. 558, 88 N. W. 614. No other questions require a discussion, for there must be a new trial.

*By the Court.*— Judgment is reversed, and the cause remanded for a new trial.