c30:No. 9

ACHESON, Circuit Judge.
I dissent from the opinion of the majority of the Court, and from the judgment of affirmance. According to my reading of this record, the following stated facts are conclusively established by the evidence: James A. Mason was an experienced lineman in the employ of the Pennsylvania Railroad Company, and on the occasion when he lost his life was one of a gang of that company’s linemen engaged in removing the railroad company’s telegraph wires from an old line of poles owned by the Western Union Telegraph Company to a new parallel line of poles of the railroad company recently erected. One of the Western Union Telegraph Company’s poles stood at the southeast corner of Hamilton street and Railroad avenue in the city of Newark. There were upon the pole 10 cross arms, all carrying wires. The topmost aim belonged to the city of Newark; the second, third, and fourth cross arms from the top belonged to the Western Union Telegraph Company; the fifth, sixth, and seventh cross arms from the top belonged to the Pennsylvania Railroad.Company; the eighth and ninth cross arms from the top belonged to a telephone company; and the tenth from the top, or the bottom, cross arm belonged to the Newark Electric Light & Power Company, the defendant below. The bottom cross arm was a short arm, about four feet in length from end to end. The other cross arms were considerably longer.' The distance from the defendant’s cross arm to the lowest cross arm of the Pennsylvania Railroad Company could not have been less than six feet.
To facilitate the removal of the railroad company’s wires to their new location, that 'company’s linemen put upon the Western Union pole two long temporary cross arms above the defendant’s cross arm, between it and the lower permanent cross arm of the telephone company; and, at the time Mason was killed, he and !iis fellow linemen were engaged in shifting the telephone wires from their own proper arms to the two temporary cross arms. In doing this work Mason stood upon the defendant’s cross arm. Immediately before he received the fatal electric shock, his legs were a-straddle of the lower temporary telephone cross arm; but he stood with both his feet upon the defendant’s cross arm. Corbet Aten, a witness for the plaintiff, in response to the question, “And before you heard that exclamation from Mason, and when you saw him have the telephone wire in one hand, where was he standing or sitting, or what was he doing?” answered, “Well, he was standing. He wasn’t sitting. He had one leg over the cross arm next above, you know, and both feet down on this arm, where the electric light wires was.” And Samuel A. Powell, the foreman of the gang of linemen, a witness for the plaintiff, tes tilled thus with respect to Mason's position:
“Q. Whore did he stand? A. On the bottom arm. Q. Was that the arm whore the electric ñires were? A. Yes, sir. Q. And was that the point from which he could perform his work? A. Yes, sir. Q. The work which you appointed him to perform? A. Yes, sir. Q. And did he perform, or attempt to perform, his labor from that position, standing on that bottom cross arm? A. Yes, sir. Q. And where was ho when he was killed? A. Well, he was astride of the arm, — one arm lie had his left leg thrown over, the next to the bottom arm,-Amd of course that thro wed Ms both feet on the bottom arm, the four-pin farm], and lie (hen, of course, was in between two wires, and ho was working them to make a reach to the end of this ton-pin arm to put the wire onto the knob to make a fastening.”
After Mason bad gone up the pole, and while standing on the defendant's cross arm, he was warned by the foreman, Rowell, and also by his fellow workmen, that the defendants wires were carrying heavy currents of electricity, and were dangerous. Once Mason was observed to be actually standing on one of the defendants wires, and was warned off by the foreman. He was repeatedly cautioned against the danger from the defendant's wires. All the foregoing appears from the testimony of the plaintiffs witnesses.
The catastrophe occurred in this wise, as these witnesses state: Thrive of the railroad company’s linemen were on this particular Western Union pole, two of them above Mason. One of the two handed Mason a telephone wire to attach to the outermost knob of" the upper temporary telephone cross arm; and Mason, having taken this ware in his right hand, which was ungloved and bare, stretched out his person so as to make the desired attachment, and, as he made this movement, his left foot came in contact with the end of the defendant’s wire which was on that projection of the defendant’s cross arm upon which Mason then stood, and (tins he received the electric shock that killed him. The plaintiff’s witnesses who after-wards examined the defendant’s wire testified that there were "two bare points” at the end of the wire. It ivas shown by testimony which was not directly contradicted, and which practically was unshaken, that the defendant company, within GO or 90 days before the disaster, had caused this part of its wire to be carefully and perfectly insulated in the usual and approved way. How and when the “two bare points” were made was not shown. Ho usage was proved, nor was positive testimony produced, tending to convict the defendant of negligence or want of due care in not causing its wire to be inspected in the short interval between the insulation, in February or March, and the date of this occurrence, in April.
In my opinion, upon the whole evidence, the defendant was entitled to a verdict, and the peremptory instruction in its favor, asked for, should have been given. Undoubtedly the Pennsylvania Railroad Company’s linemen had the right to go up and down this Western Union pole, and, while they were in the exercise of this right, the defendant owed to them the duty of reasonable care to keep its wires safely insulated. It will be noted, however, that on this occasion the linemen went up the pole securely, and all except Mason came down in safety. Mason was not injured while in the exercise of his right of going up and coming down the pole. For his own convenience, without the license, express or implied, of the defendant, Mason saw fit to take possession of the defendant’s cross arm, by standing on the same, and doing his work therefrom. His work was quite unusual, and such as the defendant had no reason to anticipate or provide against. The work he was engaged in involved the removal of all the Pennsylvania Railroad Company’s wires to another line of poles, and this occasioned the shifting of the telephone company’s wires from their proper cross arms to two temporary cross arms, which the railroad people improvised. Again, Mason was not only an experienced lineman, and as such presumably acquainted with the inherent danger in heavily charged electric wires, even when insulated, but on this occasion he was repeatedly warned of the danger. It is by no means an improbable supposition that the two minute bare spots at the end of the wire were caused by the action of Mason’s boots, or thé spurs with which he was equipped. But, however this may be, the indisputable fact remains that he voluntarily, without the invitation or license of the defendant, placed himself in a position of danger by standing upon, and doing extraordinary work from the defendant’s cross arm. In thus acting, Mason was a volunteer, and assumed the risk of the calamity that overtook him. He was, indeed, a mere trespasser. In principle, this case, it seems to me, is not distinguishable from the case of Telephone Co. v. Speicher, wherein the supreme court of New Jersey held that a telephone company was not answerable to a lineman, in the employ of a city, who, in descending one of the company’s poles, supported himself by one of the lower cross arms which was insufficient to sustain his weight.
In each of the cases (cited in the opinion of the majority of the court) of Hydraulic Co. v. Orr, 83 Pa. St. 332, Schilling v. Abernethy, 112 Pa. St. 437, 3 Atl. 792, and Railway Co. v. McDonald, 152 U. S. 262, 14 Sup. Ct. 619, the injured plaintiff was a child, and, moreover, the circumstances were very different from those which existed here. The defendant here had no reason to apprehend danger to linemen from the situation and condition of its property. In truth, the evi-dénce, I think, demonstrates that the defendant had taken all reasonable care to insure the safety of linemen when ascending and descending this pole. It is my judgment that the defendant had performed its whole duty to Mason, and that it is neither legally nor morally responsible for his death.

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