CASES DISPOSED OF IN THE SUPREME COURT. The following mentioned cases, reported in this volume, have been disposed of in the Supreme Court in the manner indicated: AFFIRMED. Johnson v. Humphrey Pop Corn Co. Scottish Union & National Insurance Co. v. Brown. State, ex rel City of Lancaster, v. Bowers, Treasurer. Lake Shore & Michigan Southern Ry. Co. v. Hotchkiss. Lake Shore & Michigan Southern Ry. Co. v. Fisher. REVERSED. Knapp v. State of Ohio. DISMISSED, Rapp et al v. Becker et al. OHIO CIRCUIT COURT REPORTS. VOLUME IV-NEW SERIES. CAUSES ARGUED AND DETERMINED IN THE CIRCUIT COURTS OF OHIO. INJURY FROM A BROKEN TELEPHONE WIRE. [Circuit Court of Geauga County.] THE BURTON TELEPHONE COMPANY V. NELLIE GORDON. Decided, February Term, 1904. Telephone Wire-Breaks and Falls Across Trolley Wires and Onto the Highway-Becomes Heavily Charged and Injures a Traveler-Necessity for Guard Wires. Where an injury is occasioned to a traveler upon the public highway by reason of coming in contact with a broken telephone wire which was heavily charged with electricity caused by its falling across the trolley wires of an electric railway: Held: That whether or not it was the duty of the telephone company to have safe-guarded its wire by guard wires or other appliances to prevent it from becoming so dangerously charged, is a mixed question of law and fact, under the circumstances of each particular case, to be submitted to the jury; and where the jury under proper instructions from the court finds the company negligent for such 1 Burton Telephone Co. v. Gordon. [Vol. IV, N. S. failure, a judgment upon the verdict will not be reversed except the verdict is clearly against the evidence. The brief of Wm. R. King, attorney for plaintiff in error in this case, was as follows: No statute of the state of Ohio requires any special construction at the crossing of telephone and power wires. This crossing was constructed of good material and it nowhere appears in the evidence that the crossing was faulty. What a "guard wire" is or that one was ever erected or known does not appear from this record; nor does it appear that a guard wire or any other device would have been effective. Good construction and material being admitted and that the wire fell on the trolley through no fault in the wire or fastenings, but from lightning stroke during a severe storm, and that the construction was that in ordinary use, no different construction disclosed by the evidence being anywhere in use, negligence on the part of the company was rebutted. To entitle the plaintiff to recover the duty was on the plaintiff to show by evidence what means should have been used to prevent contact not actually used by the defendant, and that such means would have been effective. In short, what would have been proper construction and in what respect the crossing in question was not properly constructed, this the plaintiff had not shown. nor attempted to show, hence there was nothing to go to the jury. In this state of the evidence at the close of the plaintiff's case we think the court erred in submitting to the jury the issue as to whether other means should have been used to prevent contact, which in effect said to them that they had a right to speculate outside and beyond the evidence as to what the defendant should have done and decide from their own instincts and ideas that some device or means would have prevented the wire from falling and coming in contact with the trolley, not disclosed by the evidence. We base this contention on the case in 6 C. C. Rep., 606. Brief of N. H. Bostwick, attorney for defendant in error: Defendant in error contends that reasonable care required that the telephone wire should have been insulated and protected by guard wire or other means in such manner that when it |