The defendant pleaded the general issue. Further answering, it averred that, if the alleged company or its employees were guilty of any negligence, and that, if the appliances used by it were defective in any way, which was denied, P. B. Whitworth was guilty of contributory negligence which resulted in his death, and he cannot recover.

It was agreed between counsel that the evidence taken in the suit of Mrs. Birdie Potts v. Shreveport Belt Railway Company should | be used on the trial of this cause, with the right of either party to introduce other evidence.

The jury returned a verdict against the defendant in favor of Mrs. Carrie E. Whitworth for $3,500, and against the defendant in favor of Lester Allen Whitworth for $2,500.

Defendant appealed.

This case is the sequel of that of Potts v. Shreveport Belt R. Co. reported in 110 La. 1, 98 Am. St. Rep. 452, 34 So. 103, in which the plaintiff recovered a judgment against the defendant for damages resulting from the death of her husband through its negligence. The following facts are extracted from the report of that case: When Potts was killed he was in the employ of the Cumberland Company, as foreman of a line gang, in stringing its wires upon the poles of that company. In stringing the wires, Potts had with him two assistants, Whitworth and Holt, also in the employ of the telephone company. Under a franchise granted by the city of Shreveport, the defendant company was operating a double-track electric railway on Texas avenue, in that city. It was the overhead trolley system. There was a trolley wire over each track. They were suspended by wires spanning the street, called "span wires." These were attached to wooden poles placed opposite each other on the two sides of the street. The trolley wires were made fast to the span wires by means of what are called "hangers" or "ears." These hangers should be insulated, the purpose being to confine the current of electricity which propels the cars to the trolley wire. Were it otherwise, each span wire would be a "live" or "hot" wire, charged with the same voltage of electricity that the trolley wire had. This would result in so much leakage of the electrical current as to impair its efficiency in the work of operating the cars, and would, besides, render each span dangerous. The Cumberland Telephone Company, also, under a franchise from the city of Shreveport, was

The electric current with which telephone wires are charged is too weak to be dangerous to human life, but the current with which the trolley of the car company is charged is of deadly potency. Potts's death was occasioned by the telephone wire he was stringing coming in contact with a span wire of the car company.

This span wire, notwithstanding its connection with the trolley wire, should have been, through proper insulation, harmless. But it was not. It was deadly dangerous. The insulation at the hanger or ear was gone, if it had ever existed, and the wire was “alive” with likely the same voltage of electricity as was passing over the trolley. This being so, the instant the telephone wire touched it, one end of the wire being on the ground, thus completing the circuit, it (the telephone wire) became likewise charged with the deadly current. At the time Potts was killed, he was up on the pole to which the wire was to be strung. In close proximity was the span wire of the defendant. That it was heavily charged with electricity, there was no doubt. The death of Potts attested this fact. That it was so charged was due to the fact that it had no insulation to protect it from the trolley wire. The wire Potts was stringing had been passed over the span wire. This had been accomplished by means of a rope. Whitworth was westward of the pole Potts was upon. Under instructions from Potts, he was (on the ground) pulling the wire which was being strung. This pulling of the wire kept it taut, and while taut it was free from contact with the span wire. But Whitworth stumbled, and this circumstance caused a slackening of the wire. This slackening of the wire brought it in contact with the span wire, and immediately it became charged with the deadly current. So deadly was the current, that, when Potts was shocked, and hung suspended, and Whitworth, rushing up to the end of the wire, and, touching the ground in the generous effort to pull it away from Potts, seized it, he was himself instantly killed. This court held in the Potts Case that the defendant was negligent, and rendered judgment in favor of the plaintiff against it. We are called on to determine whether the plaintiffs in this case are entitled to damages for the death of Whitworth.

Defendant's counsel, in their statement of facts, referring to the Potts Case, say: "It will be remembered that Potts, with Holt and Whitworth, was engaged in stringing a telephone wire along Texas avenue, in the city of Shreveport. At the time of his death, Potts was at the top of a pole, endeavoring

to place the wire above the span wire of the defendant company. Whitworth, on the ground, had hold of one end of the telephone wire, pulling the wire, when he stumbled, letting go the wire, when it fell on the span wire, which was charged with electricity from the trolley wire, occasioned from defective insulation. It seems that Potts fell and died the moment Whitworth stumbled and let go the wire."

The admissions so made as to the negligence of the defendant company bring the issues involved in this case within very narrow compass. It is conceded on both sides that, as soon as Potts received from the telephone wire the electric shock by which he was killed, he immediately fell head downward from the point where he was standing, and, his spurs catching upon one of the spikes on the pole, remained suspended in the air, and that Whitworth, after stumbling and losing hold of his end of the telephone wire, took hold of it again, and was instantly killed.

The plaintiffs urge that in so doing he could not be held guilty of negligence, as his act was in aid of an attempt to save the life of his companion and fellow workman, Potts, and any others who might incautiously come in contact with the telephone wire, which was hanging suspended from the span wire. Defendant contends that it was evident to all who witnessed the unfortunate occurrence that Potts was dead when Whitworth caught hold of the wire, and fell dead instantly; that when Potts received the electric shock, and fell from the top of the pole, head down, hanging by his spurs, Holt (one of his assistants) realized that he could do nothing for him but to begin preparations for his interment; that, when he started to ring for assistance to take Potts down, he warned Whitworth not to touch the wire, then down in the mud; that the action of Whitworth was not to save human life, for Potts was manifestly dead several minutes before he took hold of the wire; that others saw it, and he must have seen it, and, moreover, he was warned not to touch the wire by several persons; that, in disregard of this warning, Whitworth, a telephone lineman himself, caught hold of the wire and dropped dead; that his conduct was rash, and recovery cannot be had in the case; that the doctrine held by Rorer on Railroads [p.1029] is to the effect that "it is not a wrongful act to make an effort to save human life if the effort made be compatible with a reasonable regard for one's own safety;" that the same doctrine is announced in 2 Thompson on Negligence, p. 1174, § 21, and in Peyton v. Texas & P. R. Co. 41 La. Ann. 861, 17 Am. St. Rep. 430, 6 So. 690.

Counsel of plaintiff, on the other hand, contend that Whitworth met his death in the

attempt to rescue one who was in imminent and deadly peril through the negligence of the defendant; that the spectators were thrown into a state of great excitement by the horrible sight; some hastened to telephone the power house to turn off the current; some cried out, "Cut the wire;" others, "Don't touch the wire;" that Whitworth, seeing his comrade in that horrible predicament, sizzling and frying to death, and hanging head down 40 feet in the air, attempted to cut the telephone wire, and was killed. Counsel say: "Defendant company adopts the only possible defense open to it, that Whitworth was grossly reckless and imprudent; that his widow and child should be denied damages for his death. It has been held that it must be an extreme case to justify refusing damages in a matter of this nature on the ground of the recklessness of the rescuer. This is based on the theory that it is frequently impossible to rescue one in imminent peril without sharing in the danger. It has been further held that due allowance must be made for the excitement caused by the sight of a fellow creature losing his life, and that the danger must not be measured after it is passed, by one who was not present, in apothecary's scales, to determine whether the rescuer exposed himself to more danger than was prudent."

What can be more dangerous than to throw one's self in front of the wheels of a rapidly approaching train? Yet this court, in Peyton v. Texas & P. R. Co. 41 La. Ann. 861, 17 Am. St. Rep. 430, 6 So. 690, refused to hold that his efforts to save another were so rash, under such circumstances, as to debar his recovery, saying that the appreciation of the value of human life was so great, and the admiration for heroism so universal, that we know of no case where the court had withheld damages under circumstances like that before it. Counsel say:

"The judgment in the case at bar might be well based on the principle that in such a case the rescuer is attempting to save the company from the consequences of its own negligence, and it is not for the company to theorize as to how it might have been done more prudently and with less danger.

"Had Whitworth been successful in rescuing his friend, the defendant would have reaped the benefit of his act. He failed, and lost his own life, and it strikes us that it comes with poor grace from the defendant to say he was negligent, and should not have acted with imprudence. There was intense excitement at the place of the accident. The wires were lying loose in a public street, and the excited citizens were crying: 'Cut the wire,' and others, 'Don't touch the wire;' and, in the midst of these exclamations, Whitworth attempted to cut the wire, either

R. Co. the leading case on the subject) Grover, J., said: 'It was his duty to exereise his judgment as to whether he could probably save the child without serious injury to himself. If from the appearances, he believed that he could, it was not negligence to make an attempt to do so, although believing that possibly he might fail and receive an injury to himself. He had no time for deliberation. He must act instantly if at all, and a moment's delay would have been fatal to the child. 43 N. Y. 502, 3 Am. Rep. 721; Thomp. Neg. 2d ed. pp. 193, 194, 195. See also Gibney v. State, 137 N. Y. 1, 19 L. R. A. 365, 33 Am. St. Rep. 690, 33 N. E. 142; San Antonio & A. P. R. Co. v. Gray, 95 Tex. 424, 67 S. W. 763; Becker v. Louisville & N. R. Co. 110 Ky. 474, 53 L. R. A. 267, 96 Am. St. Rep. 459, 61 S. W. 997; 1 Shearm. & Redf. Neg. § 85.

"If latitude of judgment is allowed to the rescuer, although believing that he might fall and receive injury to himself, can a more proper instance be conceived, when Whitworth saw his friend and comrade meeting an awful death by burning in midair, hanging head down?

"If anything is to be conceded to the excitement and commotion of the moment, can a case be conceived when such excitement could be more natural or irresistible? If decision of thought and quickness of action are ever demanded, when more so than in a case where Potts was entangled in live wires and being roasted to death? If an appeal to humanity is ever to be heeded, when could it be more imperative than on this awful occasion? But defendant's counsel say that Potts was already dead. We say that neither he nor anyone else knows or could know that to be a fact.

"The degree of insulation would have much to do with that question, and could only be determined by a test. We feel that plaintiffs have as strong a case as can be well conceived. Here are all the elements to be found to warrant a judgment. The necessity for quick action, the doubt and uncertainty as to what is the best course, the tragedy of the situation of Potts, -all these facts justified Whitworth in running even a great risk to save his friend. Under such circumstances the impulse to aid must have been well-nigh uncontrollable, and all the spectators testify as to the intensity of the excitement prevailing at the time. Whitworth's action must receive its color from the scene in which it is set. What is recklessness at one time may be common prudence when a calamity is impending, and no other resource is apparent. The awful consequences flowing from the gross carelessness and indifference of defendant company stand out in letters of iron. Whitworth's humanity was in striking con

trast with it callousness in exposing others to deadly danger, and its cold-blooded plea in keeping with its conduct in weighing the cost of insulation, on the one hand, and the lives of men, on the other. There is nothing in the record to show that deceased knew that the wire was a live one, nor that he intentionally took hold of the deadly instrument. From the evidence, we think it clear that it was his purpose to relieve his dying companion, whom he thought still lived, or he wanted to get the wires out of the street, or cut them and put them away, so that the crowd that was congregating could not come in contact with them. To show contributory negligence, the defendant must prove that he, knowing of the danger, voluntarily exposed himself to it. This it has not done. It has not been shown that he knew the wire he caught hold of was a deadly one, and, unless we assume that he intended to commit suicide, we must presume that he thought the wire harmless.

"It may be claimed that he should have known that his companion was dead, and it may be argued that the situation presented was past human aid. But that is not the criterion. He could not feel his companion's pulse, and listen to his heart beats, to ascertain if he still lived. The situation, to him, evidently held out the hope that by prompt action he could relieve the situation of his friend. He was not guilty of contributory negligence in acting on the appearances as they were presented to him. He was inexperienced, and therefore it is fair to assume he knew little of the dangerous agency with which he was dealing. He evidently thought the wire he attempted to cut would not harm him.

"The jury, who saw and heard the evidence, have rendered a reasonable verdict, and we ask that it be affirmed."

The only act of negligence which defendant charges against Whitworth is his going forward after the accident had happened to Potts, and taking hold of the live telephone wire which he had been using. Defendant's counsel insist that Potts was dead at the time Whitworth took hold of the wire, but we think he is mistaken as to that fact. At the time that Potts received the electric shock from the telephone wire, Holt was below him on the same pole. On discovering what had happened, he went up the pole to where Potts was, to see whether he had by his fall become entangled in any way with any of the wires-intending, if such was the case, to cut them off-and, finding he was not, he went down and crossed the street to telephone to the office to obtain help. coming out, he saw a policeman going up the pole. He himself returned to the pole with a hand line, went up the pole, and tied it

On