McAdam v. Railway and Electric Co. stances of this case, that the plaintiff in fact did not neglect to use such care, it does not present a question which this court should review; and, if it were open to review, the facts as detailed in the record, would compel us to reach the same conclusion; in so far as the claim implies that the court did not recognize nor apply to the facts as found the legal standard of care, it is not consistent with the record-the court made no ruling adverse to the defendant in respect to the standard of care required by law. The finding gives a minute and clear recital of the circumstances of the accident. The conclusion of the court that the defendant was guilty of negligence was demanded by its plain violation of a legal duty; and the finding shows that the conclusion that the plaintiff was not guilty of contributory negligence was an inference from the special facts and circumstances peculiar to this case as found by the court from the evidence, and it does not appear from the finding, and is not assigned as error in the reasons of appeal, that in drawing such inference the court violated any rule or principle of law applicable to the facts as found. Such a conclusion cannot be reviewed in error; discussion of this point is barred by many recent decisions of this court. There is no error in the judgment of the Superior Court. In this opinion the other judges concurred NOTE-See note to Lundquist v. Duluth St. Ry. Co., post. Railway Co. v. Cox. LINCOLN STREET RAILWAY COMPANY V. CHARLES R. Cox. Nebraska Supreme Court, June 3, 1896. (48 Neb. 807.) ELECTRIC STREET RAILWAY-DEFECTIVE APPLIANCES-INJURY TO EMPLOYE BY SHOCK. In an action for damages for injuries by burning and shock, caused to an employe of an electric street railway by contact with fire alarm telegraph wire which had fallen upon a trolley wire and become charged therefrom, held, that instructions to a jury were erroneous, in that they taught that the verdict must depend upon the fact of danger in the manner in which the trolley wires were constructed and maintained, rather than upon negligence of the company in so constructing and maintaining them. Duty of master to servant, with respect to defective appliances, stated. APPEAL by defendant below from judgment of District Court, Lancaster county. Facts stated in opinion. William G. Clark, for plaintiff in error. Lamb, Adams & Scott, contra. IRVINE, C. Cox, a minor, by his next friend, brought this action against the Lincoln Street Railway Company to recover for personal injuries sustained by him while in the employ of the railway company. He recovered a judgment for $800. Cox was employed in driving a team which drew what is called a "tower wagon," being a wagon bearing a scaffold used for the purpose of repairing the trolley wires by means of which the defendant's electric railway was operated. At a point near the intersection of Seventeenth and South streets, a fire alarm wire passed above the trolley wire, crossing it at an angle of forty Railway Co. v. Cox. five degrees, and placed about fourteen inches above the trolley wire at the point of crossing. The evidence tends to show that the fire alarm wire was so located before the trolley wire was erected. Three co-employes of Cox were engaged in repairing the wires. In some manner, while their work was progressing, the fire alarm wire fell across the trolley wire, and thence to the ground, where it came in contact with Cox, injuring him by burning and electric shock. The negligence alleged in the petition was in the construction of the trolley wire in dangerous proximity to the fire alarm wire, and in permitting them to come in contact. On the latter branch of the case, the court instructed the jury that, if the contact was brought about by the negligence of any of Cox's companions in the work, there could be no recovery, as these men were his fellow servants. This feature was therefore eliminated from the case and the verdict must have been based upon the construction and maintenance of the trolley wire dangerously near the fire alarm wire. On this branch of the case the court gave the following instructions: "(8) If you find, from the evidence, that, at the point where the alleged injury occurred, there had been erected. across the street a fire alarm wire, and that, after said fire alarm wire had been erected, a trolley wire was erected along said street at said point, and thereafter the defendant took possession of said trolley wire, and when the defendant so took possession of said trolley wire it was in such close proximity to said alarm wire as that the said two wires were liable to come or be thrown together, or in contact with each other, and while said defendant was in possession of said trolley wire it was charged with electricity, and the defendant so used and operated the same so charged, and negligently or carelessly permitted or caused the said two wires thus charged with electricity to come in contact with each other, and thereby one of them was VOL. VI—23. Railway Co. v. Cox. burned in two, and fell to the ground, and without the fault of plaintiff struck him, and injured him, then the defendant would be liable for such injury." "(10) It is the duty of a party or corporation maintaining and operating an electric railway to see that its trolley wire is reasonably safe and sound, and of sufficient distance from other electric wires as that the use to which said party or corporation puts it will not endanger the lives of persons generally, or the servants of the party or corporation so operating it. "(11) If you find, from the evidence, that, at or near the point where the accident occurred, the fire alarm wire had been erected before the trolley wire, and the trolley wire was, when erected, placed in such close proximity to the fire alarm wire as to be dangerous, and you also find that, at the time of the injury to plaintiff, the employes of the defendant were at work about the wire near said point, and were doing work in the line of their duty as such employes, and were doing such work in the only way it could be done, and by doing said work said wires were brought or came in contact with each other, and without fault or negligence of the plaintiff, caused the injury complained of, then defendant would be liable." In giving these instructions, especially as they were not accompanied by any instruction stating to the jury the rule of care devolving upon the defendant, we think the court erred. The effect of these instructions upon the minds of the jury must have been to make their verdict depend upon the fact of danger in the manner in which the wires were constructed and maintained, and not upon negligence on the part of the railway company in so maintaining and constructing them. The accident undoubtedly happened, and the jury found that it was not due to the negligence of the men at work about the wires. The fact of the accident, therefore, established the fact of danger; and the Railway Co. v. Cox. instructions were equivalent to telling the jury that a verdict might be based upon the fact of the injury, without proof of negligence. This was erroneous. Missouri P. R. Co. v. Lewis, 24 Neb. 848; Chicago, B. & Q. B. Co. v. Howard, 45 Neb. 570. We recognize the fact that there appears in the instructions we have quoted some language seeming to qualify this statement. For instance, in the eighth instruction, it seems to have been stated that there must be a finding that the defendant negligently and carelessly permitted or caused the wires to come in contact. But these adverbs refer to the conduct of the company or its servants in handling the wires, and are not used in connection with those parts of the instruction which relate to the erection and maintenance of the wires. Moreover, negligence and due care having been nowhere defined in the charge, the jury was left without means of properly applying the adverbs. Again, in the tenth instruction, the duty of the company was stated, "to see that its trolley wire is reasonably safe and sound, and of suficient distance from other wires as that it will not endanger the lives of persons." To a legal mind the word "reasonably" might, perhaps, imply the element of care. But we must deal with the instructions in the sense in which they would be understood by the jury. Notwithstanding these qualifying words, we think it quite clear, as already stated, that the instructions made the case turn upon the fact of danger and not the fact of negligence. A master does not insure his servants against defective appliances. He is not chargeable in all events because the appliances furnished his employes are defective. He is liable only when he has been negligent in the matter. The rule is that, as to his servants, he is bound to use such care as the circumstances reasonably demand to see that the appliances furnished are reasonably safe for use, and that they are afterwards maintained in such reasonably safe condition. He is not liable for defects of which he has |