BELL TELEPHONE CO. v. DETHARDING, 148 F. 371

After stating the foregoing facts, KOHESAAT, Circuit Judge, delivered the opinion of the court: Under the practice of the federal court, no error can he assigned upon the refusal of the court to grant a new trial. Addington v. United States, 165 U. S. 184, 17 Sup. Ct. 288, 41 L. Ed. 679; Blitz v. United States, 153 U. S. 308, 312, 14 Sup. Ct. 924, 38 L. Ed. 725; Waterhouse v. Rock Island Alaska Min. Co., 97 Fed. 466, 477, 38 C. C. A. 281.

The sole ground of action set' up is that the telephone company w.as negligent in the construction and maintenance of its wires over and across the electric light wires, whereby the guy wire became charged with a dangerous current, causing the death complained of. Unless the fact that the wire sagged down upon the electric light wires establishes negligence in construction and maintenance thereof, there is nothing in the record sustaining the charge of negligence.

On the other hand, it appears that -there was a storm of considerable violence on the evening preceding the discovery of defects in the telephone service. The fact that the failure in the telephone service followed this atmospheric disturbance fairly justifies the inference that the wires were properly maintained up to that evening. It is shown that they had been in position for a number of weeks without complaint being made.

It is the theory of defendant in error that the wires had been gradually sagging, for want of proper construction, for a considerable time, and on this night came down upon the electric light wires. This is mere conjecture. The record discloses no evidence upon which the jury could base such a finding. Moreover, decedent of defendant in error was charged as one skilled in the business with the duty of ascertaining the cause of the interruption of telephone service. He was seeking the very trouble which killed him. I-Ie knew there was something wrong, and that the business was very dangerous.

He,knew he could protect himself by the use of rubber gloves, and that such precaution was usual. There were no representations, made to him that anything about the premises was safe. The crossed wires were not easily discernible. Nobody knew what was the matter. Nor is any lack of diligence on the part of defendant below shown., The danger came clearly within those assumed, by him when he entered upon the occupation of “trouble finder” for plaintiff in error. Such being the case, no recovery can be had (Tuttle v. Detroit G. H. & M. Ry. Co., 122 U. S. 189, 7 Sup. Ct. 1166, 30 L. Ed. 1114; Northern Pacific R. R.

Co. v. Herbert, 116 U. S. 655, 6 Sup. Ct. 590, 29 L. Ed. 755; District of Columbia v. McElligott, 117 U. S. 621, 6 Sup. Ct. 884, 29 L. Ed. 946), and the motion to take the case from the jury should have been granted. The amended narr. does not in our judgment present such a departure from the cause of action assigned in the original declaration as to make it a new cause of action. In view of the foregoing, it becomes unnecessary to pass upon the other errors assigned by plaintiff in error. The judgment is reversed, and the cause remanded for a new trial.