The opinion
Dixon, J.
(dissenting). The testimony in these cases, I think, presented for decision these three questions:
First. Were the plaintiffs injured by an electric current transmitted to the wires which they were handling from a trolley wire over which those wires were being strung ?
Second. Was the defendant, the employer of the plaintiffs, chargeable with knowledge that such injury was probable ?
Third. Were the plaintiffs, notwithstanding the exercise of due care on their part, ignorant that such injury was probable ?
A finding on all these questions favorable to the plaintiffs would necessarily result in establishing their right to compensation from the defendant, but a finding on any of them adverse to the plaintiffs would necessarily result, in the denial of such right. If the first question were negatived, then the injury did not occur in the defendant’s service; if the second were negatived, then the defendant was not guilty of negligence; if the third were negatived, then the plaintiffs assumed the risk.
*756 In a case tbns conditioned the furnishing or non-furnishing of rubber gloves for the hands> or of a wooden platform for the feet of the workmen was legally unimportant; it merely affected the degree of risk.' If the probability that the current might be thus transmitted was patent to the employer, but not to the workmen, then he could not relieve himself from responsibility by providing such means of lessening the injury; and if that probability was patent to the workmen, then they assumed the risk of it under all conditions known to them, including, of course, the absence of gloves and platform.
Now, as I understand the charge of the court at the tria] of these cases, it was to the effect that, even if the jury should find adversely to the plaintiffs on either the second or the third of the questions above stated, yet they might conclude that under the circumstances of the case a duty rested on the defendant to furnish gloves or a platform as a customary precaution, and they might base a verdict for the plaintiffs on the non-performance of that duty. In order to preclude such a verdict the defendant’s fourth request was made, for a distinct instruction, “that it was no portion of any duty of defendant to supply gloves and boards or a platform, under the circumstances of this case.” After the charge which had been given to the jury, it was erroneous to refuse this instruction. However humane it might have been for the defendant to provide such safeguards, it was not its legal duty to do so.
For affirmance — The Chancellor, Garrison, Fort, Pitney, Swayze, Bogert, Vredenbuegh, Yeoom, Green, Gray. 10.
For reversal — -Dixon. 1.