Lorain County.

7. EVIDENCE INCOMPETENT TO SHOW DANGEROUS CONDITION OF WIRES. Where insufficient insulation of electric wires at a particular point, which was the scene of an accident, is the negligence complained of, it is prejudicial error to permit a witness for plaintiff to testify that, owing to defective insulation elsewhere, electricity escaped from the wires of defendant company at another point along the line and at a time other than that of the accident.

8. AMBIGUOUS CHARGE CURED BY EXPLANATION.

An ambiguous instruction contained in a charge to the jury is cured by a subse quent instruction by the court in which it fully explains what is meant by the former instruction.

ERROR to the common pleas court of Lorain county.

E. G. Johnson, Hale C. Johnson and H. G. Redington, for plaintiffs in error:

Cannot show changes since accident to show prior negligence. Cleveland Provision Co. v. Limmermaier, 4 Circ. Dec. 240 (8 R. 701); Toledo Ry. Co. v. Beard, 11 Circ. Dec. 406 (20 R. 681); Morse v. Railway Co. 30 Minn. 465 [16 N. W. Rep. 358]; Elliott, Roads & Streets Sec. 864.

Purchase of reputable dealer. Thomas, Negligence 745; Grand Rapids Ry. Co. v. Huntley, 38 Mich. 537 [31 Am. Rep. 321]; Carlson v. Bridge Co. 132 N. Y. 273 [30 N. E. Rep. 715]; Ballard v. Manufacturing Co. 51 Hun 188 [4 N. Y. Supp. 940].

There is no presumption of negligence. Cleveland, C. & C. Ry. Co. v. Crawford, 24 Ohio St. 631; Railway Co. v. McMillan, 37 Ohio St. 554; Ruffner v. Railway Co. 34 Ohio St. 96; Central O. Ry. Co. v. Lawrence, 13 Ohio St. 66; Jones v. Pipe Co. 8 Circ. Dec. 168 (15 R. 26); Rock Falls (City) v. Wells, 169 Ill. 224 [48 N. E. Rep. 440]; Deisenrieter v. Malting Co. 97 Wis. 279 [72 N. W. Rep. 735]; Keigher v. St. Paul, 69 Minn. 78 [72 N. W. Rep. 54]; Central Trust Co. v. Railway Co. 57 Fed. Rep. 441; Baltimore & O. Ry. Co. v. School District, 96 Pa. St. 65; 1 Thompson, Negligence 53, 73; Huff v. Austin, 46 Ohio St. 386 [21 N. E. Rep. 864; 15 Am. St. Rep. 613]; Dobbins v. Brown, 119 N. Y. 188 [23 N. E. Rep. 537]; Booth, Street Railways 397, 399; Bergert v. Railway Co. 34 Iowa 571.

Not competent to show disconnected acts of negligence. Lake Shore & M. S. Ry. Co. v. Gaffney, 6 Circ. Dec. 94 (9 R. 32); 21 Am. & Eng. Enc. Law (2 ed.) 510, 511, 512, 517; Cleveland, C. & C. Ry. Co. v. Crawford, 24 Ohio St. 631 [15 Am. Rep. 633]; Kramer v. Fay, 6 Dec. 335 (4 N. P. 233); Cleveland Terminal & Val. Ry. Co. v. Marsh, 63 Ohio St. 236 [58 N. E. Rep. 821]; Dayton (City) v. Taylor, 62 Ohio St. 11 [56 N. E. Rep. 480].

Act of God. 1 Rapalje 18; Dayton v. Taylor, 62 Ohio St. 11 [56 N. E. Rep. 480].

Telephone Co. v. Jackson.

The test of negligence in methods, machinery and appliances is the ordinary usage of the business. Titus v. Railway Co. 136 Pa. St. 618 [20 Atl. Rep. 517, 518; 20 Am. St. Rep. 944]; Mad River & L. E. Ry. Co. v. Barber, 5 Ohio St. 541 [67 Am. Dec. 312]; Northern Cent. Ry. Co. v. Hussen, 101 Pa. St. 1, 7 [47 Am. Rep. 690]; Bailey 23 et seq.; Mt. Adams & E. P. Ry. Co. v. Cavagna, 3 Circ. Dec. 608; (6 R. 606); Croswell 206, 218; Uggla v. Street Ry. Co. 160 Mass. 351 [35 N. E. Rep. 1126; 39 Am. St. Rep. 481]; Albany v. Turnpike & R. Co. 76 Hun 136 [27 N. Y. Supp. 848]; Little Rock & M. Ry. Co. v. Barry, 84 Fed. Rep. 944 [28 C. C. A. 644; 56 U. S. App. 37; 43 L. R. A. 349]; 1 Thompson, Negligence Sec. 28.

Common carriers are not responsible for remote and extraordinary consequences of their negligence, but for those that are ordinary and proximate. Morrison v. Davis, 20 Pa. St. 171 [57 Am. Dec. 695]; Rice v. Homer, 12 Mass. (11 Tyng) 230; Denny v. Railway Co. 79 Mass. (13 Gray) 481, 486 [71 Am. Dec. 645]; Michigan Cent. Ry. Co. v. Burrows, 33 Mich. 6, 15; Memphis & C. Ry. Co. v. Reeves, 77 U. S. (10 Wall.) 176, 190; Hoadley v. Transportation Co. 115 Mass. 304, 308 [15 Am. Rep. 106]; Daniels v. Ballantine, 23 Ohio St. 532 [13 Am. Rep. 264]; Fleming v. Beck, 48 Pa. St. 309, 313; 1 Thompson, Negligence 48, 49, 70, 72; Goodlander Mill Co. v. Oil Co. 63 Fed. Rep. 400 [11 C. C. A. 253; 24 U. S. App. 7; 27 L. R. A. 583]; Freeman v. Accident Assn. 156 Mass. 351 [30 N. E. Rep. 1013; 17 L. R. A. 753]; Allegheny v. Zimmerman, 95 Pa. St. 287, 295; Central Trust Co. v. Railway Co. 57 Fed. Rep. 441; Baltimore & O. Ry. Co. v. School District, 96 Pa. St. 65; Rodgers v. Railway Co. 67 Cal. 607 [8 Pac. Rep. 377]; Pittsburgh, Ft. W. & C. Ry. Co. v. Brigham, 29 Ohio St. 374; 2 Am. & Eng. Ry. Cas. 170.

Metcalf & Cinniger, for defendant in error.

MARVIN, J.

The case of The North Amherst Home Telephone Company and The Cleveland, Elyria & Western Railway Company against Clinton Jackson, an infant, is a proceeding in error brought here, seeking to reverse the judgment of the court of common pleas.

Each of the plaintiffs is a corporation. The North Amherst Home Telephone Company operates an exchange in the village of North Amherst, this county, and the railway company operates an electric railroad from North Amherst to Elyria and so on through to Cleveland.

At Amherst the construction of the railway at its terminus is such that there is a "Y," upon which cars are run for the purpose of getting

Lorain County.

them turned around and headed back over the line. For the purpose of making use of this Y, the trolley over its north branch or track is drawn to and held in its position by a wire, called a pull-over (that is not the name by which it is called in the petition, but spoken of so many times in the evidence, that we have designated it as a pull-over wire), extending from the trolley to a green maple tree some considerable distance and northerly from the trolley. It is perhaps eighty-five feet from the trolley over to the tree. This pull-over wire is wrapped around the tree with dry boards between the wire and the tree in such wise that the wire does not come in contact with the tree itself. Between the trolley and the tree, and but a few feet from the trolley, there was placed what is known as a globe insulator, for the purpose of cutting off the electric current. which would, in the operation of the cars of the railway company, be carried along the trolley and out upon this pull-over.

About thirty inches above this pull-over wire and between the insulator and the tree and crossing the line of the pull-over the telephone company had strung four of its wires; there were no guards or insulators upon the wires of either company at the place of the crossing, and nothing to prevent the telephone wires from sagging down upon the pull-over wire except the tension of the wires.

This crossing point was over one of the public streets of the vi!lage.

On the evening of July 4, 1901, there was a severe electric storm at Amherst, accompanied by heavy rain and violent wind. During the storm a barn in the village was set on fire, probably by lightning, and the plaintiff, a boy about eight years of age, with many others, went to the fire, and on returning therefrom, in walking along the public street or sidewalk, he walked against one of the telephone wires, which, in some manner, had been broken or burned off and was hanging over the pullover wire of the railway company. This wire was charged with electricity to such an extent that the plaintiff was severely shocked and burned by the electricity upon coming in contact with the wire.

To recover damages for this injury suit was brought by the defendant in error against both the telephone and the railway company, charging that his injury resulted from the carelessness and negligence of these companies.

The case was tried to a jury in the court of common pleas, resulting in a verdict and judgment for the boy, the defendant in error, against both of these companies.

The bill of exceptions before us contains the proceedings which took place in the trial, including all the evidence.

Telephone Co. v. Jackson.

Plaintiffs in error claim a reversal of the judgment, for numerous reasons to be noticed.

First. A demurrer was filed by the railway company to the petition for misjoinder of defendants. This was properly overruled, for though each company had control of its own wires, yet the allegations of the petition are such as to show that the negligence of each company cooperated with that of the other to bring about the injury. Not only that, but there could be no prejudice to the railway company in the overruling of that demurrer, for the allegations of the petition showed a good case against that company. But in a case where the allegations are as they are. here there was no misjoinder.

The Supreme Court of Alabama, in the case of McKay v. Telephone & Tel. Co. 111 Ala. 337 [19 So. Rep. 695; 31 L. R. A. 589; 56 Am. St. Rep. 59], uses this language in the third clause of the syllabus:

"A telephone company and an electric railway company are jointly liable for negligence when both maintain their wires with knowledge of the danger caused by the want of guard wires between the trolley wire and a telephone wire insecurely suspended over it, and especially when they permit a broken telephone wire to remain suspended across the trolley wire."

It is urged further on in the trial, by an objection to the introduction of any evidence, that the petition fails to state a cause of action against anybody; and that the charge in the petition, and the only charge of negligence, is that the companies had no guards or insulators at the place where the wires of the telephone company passed over the line of the trolley of the railway company.

The language of the petition in that regard is this:

"On the fourth day of July, 1901, and for many months prior thereto, the defendants in their said business, knowingly, purposely and negligently suffered and permitted four or more of the wires of said telephone company to cross nearly at right angles to and within a few. inches above a certain wire of said railway company at the northwest corner of Main and Milan streets in said village, the same being much traveled thoroughfares in the business center of said village, while all of said wires of both of said companies were heavily charged with electricity, and without any of said wires of either of said companies being properly insulated at said point of crossing as in the exercise of ordinary care by said defendants they should have been."

Now, with the liberal construction given to pleadings under the code, it seems clear to us that there is a charge of negligence here, more than simply negligence that there were no guards and no insulators at

Lorain County.

the point of crossing. "Without any of said wires of either of said companies being properly insulated or protected by guards from coming in contact with one another at said point of crossing, as in the exercise of ordinary care by said defendants they should have been." It seems to us that the fair reading of this is that there was not the proper insulation of the wires of either company, and at the point of crossing there were not proper guards.

Counsel for the plaintiff clearly understood that such was the meaning, and we think it clear it meant that, and that therefore there is a charge of negligence in the want of proper insulation and the additional charge of negligence in the failure to properly guard the wires at the point of crossing.

Testimony was admitted (this is complained of, over the objection of the railway company) as to whether the insulation of the pull-over wire was a proper one.

As has already been stated, there was what is called the globe insulator in this pull-over wire a short distance from the trolley wire. The wires of the telephone company crossed the line of the pull-over wire at nearly right angles between this insulator and the tree.

The first place where the objection is made to this kind of evidence, as to the insufficiency of this insulator in the pull-over wire, is on page sixty-eight of the record. Bert Smith was a witness, and he was asked about the ball or globe insulator which is in the pull-over wire and quite a distance from where the wires crossed.

Now it was said no complaint is made in the petition that there was any improper or insufficient insulation anywhere except at the place of crossing. But what has already been said on that point is all that need be said.

It is proper to show under this petition that the insulator was not such as should have been used, the insulator at this place in the pullover wire. Again, it having been made to appear that the insulator used by the railway company was what is known as the ball insulator, and that other insulators for the same purpose were used by electric railway companies, quite a number of witnesses were asked as to the comparative merits of this ball insulator with other known insulators.

Complaint is made that this kind of evidence should not have been permitted, because it is said the railway company was not bound to use the best insulators known, and that to permit a comparison of their insulator with some other insulator could be of no avail except for the purpose of making it appear that the company should have used another, because there was another that was better,