#### N. H. MONDS, Administrator, v. TOWN OF DUNN.

(Filed 24 September, 1913.)

1. Cities and Towns — Negligence—Defects—Actual Notice.

In an action to recover damages against a town for the negligent killing of plaintiff’s intestate by a defective condition of its electric apparatus for lighting the streets, evidence that previous notice had been given to one of its stréet laborers is incompetent to fix the town with direct knowledge of the defect.

2. Evidence — Witnesses—Opinions—Experience and Observation.

The plaintiff seeks to recover damages for the negligent killing of his intestate by an electric current passing from a wire carrying a heavy voltage of electricity through a transformer to an electric lamp, with a lessened current, claiming that the injury complained of was received through other wires used in manipulating the lamps. Testimony of a nonexpert witness, who had been employed by the defendant for several years was competent, that the voltage on the secondary wire from the transformer to the lamp, from his personal knowledge and experience, carried a voltage of 110, which was not dangerous; and that several days prior to the occurrence he examined the light and pole, and that the day afterwards,, as soon ass it could have been done, he examined the transformer, and they were all right.

3. Harmless Error — Evidence..

The exclusion of competent testimony is cured by the subsequent admission of testimony of the same witness upon the same subject.

*1094. Evidence, Opinion — Relevancy.

Where a witness 1ms not qualified as an expert electrical engineer, liis explanation of “the latest improved, method of suspending arc lights” is incompetent, especially when such methods are not relevant to the inquiry.

5. Evidence, Expert — Hypothetical Questions.

A hypothetical question asked an expert, not based upon the evidence in the case, is properly excluded.

6. Instructions — 'Negligence—Contributory Negligence — Proximate • Cause.

SemVJe, in this action to recover of the defendant damages for the death of plaintiff’s intestate, alleged negligently to have been caused By certain defects in regard to its wiring and arrangement for manipulating its arc lamp, the evidence was insufficient to carry the case to the jury; but if otherwise, the charge of the court upon the rule of the prudent man, contributory .negligence, and proximate cause, is approved.

Appeal by plaintiff from Garter, J., at May Term, 1913, of H.ARNETT.

E. F. Young- and B. L. Godwin for plaintiff.

Clifford & Townsend for defendant.

Clark, C. J..

Tbe plaintiff’s intestate was found dead near a street crossing in tbe town of Dunn on a rainy nigbt in December, bis bead and body submerged to tbe waist in tbe water in a ditcb 4 feet deep, bis feet and legs being on tbe bank. His feet were near an electric light post which was on tbe edge of tbe street, across tbe ditch from tbe sidewalk. On tbe pole were tbe electric light wires of tbe defendant town, which were owned' by tbe town. An are light was suspended over tbe center of tbe street crossing, about 35 feet from, where tbe body was found. There was a chain connected therewith by means of which tbe lamp was lowered and raised. This chain was out of tbe reach of persons passing along tbe street, and tbe witness Freeman, who was 6 feet tall, bad to reach up to get it.

Late in tbe afternoon before tbe body was found tbe lamp was suspended in its place as usual. At tbe time tbe body was found, about 9 o’clock at nigbt, tbe lamp was lying on tbe ground in *110tbe middle of tbe street. One of tbe secondary wires wbicb it was testified carried a voltage of 110 was found detached therefrom.

This action is brought to recover damages for the alleged negligent killing • of tbe plaintiffs intestate, alleged to have been caused by tbe defendant’s electric wires wbicb were found down on tbe street as above set forth.

Upon this evidence tbe court might well have directed a non-suit. There was slight, if any, evidence, beyond mere conjecture, that tbe'death of tbe intestate was caused by coming in contact with tbe wire, 35 feet off, or that there was any negligence of tbe defendant wbicb caused tbe contact, if any bad been shown. He.was not found in contact with tbe wire, but 35 feet away.

Tbe first exception is to tbe exclusion of tbe evidence of tbe 'witness, Lynch, who testified, that a short time prior to tbe death of tbe deceased be told one Freeman that be bad received a shock there on tbe Monday previous. Freeman having later testified that be was hired by tbe day by tbe town to trim lamps and do other work by tbe superintendent employed by tbe city, the court directed tbe jury: “You will not consider any evidence to tbe effect that P. Y. Lynch gave any notice to Mr. Freeman.” It cannot be that a remark to a day laborer was notice to tbe town. Such evidence is only competent as actual notice to tbe town when it is given to an officer whose duty and interest it is to inform tbe town authorities, or who has authority himself to act in tbe matter. A notice to a day laborer on tbe street of New York or London that there is a defect in tbe pavement certainly could not be construed as fixing tbe town with liability by reason of such notice. Tbe same rule of law applies to tbe town of Dunn. It might be that tbe town should have taken notice of tbe defect, if there was one. But certainly it was not competent to show that it bad actual notice by reason of a remark made to a day laborer, employed by the town. 28 Cyc., 1397-99.

Tbe witness further testified that on Sunday night before tbe plaintiff’s intestate was killed be crossed at that place, and tbe lamp was not giving any light. He thought be would shake it, *111and reached up bigb to shake it, and when he did, got a considerable shock. He did not tell any of the town commissioners about it, that he remembers. The shock gave him a peculiar feeling. This evidence was stricken out by the judge at the conclusion of the testimony, there being nothing to show that the wire was any lower on Thursday night or connecting the intestate in any way with being struck by reason thereof. • According to Lynch’s testimony, the wire was out of his way and he received the shock only because he, a very tall man, reached up and grasped the light.

Bizzel1, the city superintendent of the defendant’s light and water department, testified that the lamp was suspended in the middle of the street by a cable. He said that while the voltage on the primary wire was 2’,300, the voltage on the secondary wire from the transformer to the lamp was 110, and that such voltage was not dangerous and would not give much of a shock; that he had received a shock from a 110-volt current, and it was not much of a shock. The plaintiff excepted because the witness was allowed to testify that 110 volts was not considered a deadly current. But the witness stated that he spoke on his own experience. The plaintiff also excepted because Bizzell testified that the primary wire did not come in contact with the secondary wires, but was above them; that he did not notice the wire on that day, but did so on the next day. ■ This witness further testified that the dead man had not been moved when he got there; that there were no wires about his feet; that he inspected this light and pole two or three days prior to the time; and he also examined the transformer on that pole the next day, which was as soon as it could be done, and found them all right. ■ The plaintiff excepted to this testimony. The witness stated that he had not taken any course in electricity and did not profess to be an expert, and all the experience he had had was being in charge of the electric light business of this town for two or three years past. We do not see any error in admitting the testimony, which was a matter of observation on the part of the witness, who was in charge of the business and had been for two or three years past. There was other evidence that there were no wires found in contact with the body of the deceased, and none to the *112contrary; that the light in question was hanging in its usual position late in the afternoon-before the body of the deceased was found that night. In the reply there was testimony tending to show that the plaintiff’s right hand was burned on the inside as if he had' taken hold of something, ■ and that there was a blister.

C. W. Thompson, witness for the plaintiff, testified that he was an electrician, but he had not examined the entire line of poles from the crossing where the body was found to the power plant; that he had been over a part of the line. He was asked how much voltage do these wires carry to.the arc light as described by Mr. Bizzell in his testimony, and how much voltage would it take to operate an arc light as described by Bizzell and as they are usually suspended. This evidence was excluded, and' the plaintiff excepted. But the witness was allowed further to testify that he could form an opinion satisfactory to himself as to how much voltage it would take to operate such an arc light as was described by Mr. Bizzell; that in his oj)inion it would take 1,100, though it could be operated on 110-volt current if a rheostat was cut in on one side; that he had never known a street arc light operated on 110-volt current; that if the primary current is 2,300 volts, it would be an excej)tional transformer that would cut it down to 110 at one step, but it could be cut down to 1,100.

If there had been error in excluding the previous questions tp Mr. Thompson, it was fully cured by the admission of this testimony by him.

The court excluded a request by the plaintiff to Mr. Thompson tp explain to the jury the “latest improved method” of sus-. pending arc lights. In this we do not see any error. Witsell v. R. R., 120 N. C., 557. The witness further stated that he had not taken any course in a technical school nor college, and his experience was mainly acquired by work at the business. It would seem that his qualifications as expert were about the same- as those of Mr. Bizzell. This witness was further asked: “If the insulation on the primary wire had been defective and the light had been out of proper care, would it not have caused a larger *113voltage?” There was no evidence that the insulation on the primary wire was defective, and the hypothetical question was properly excluded.

The court charged the jury that the plaintiff was required to show by the greater weight of evidence that there was a failure to exercise proper care in the performance of legal duties which the defendant owed to the plaintiff, %. e., that degree of care which a reasonably prudent man should use. under like circumstances, and that-such negligent breach of duty was the proximate cause of the injury (explaining correctly what was “proximate cause”), and that persons in control of electric appliances are charged with a continuous duty of taking reasonable precaution to keep their appliances in proper condition. This is substantially the charge approved in Ramsbottom v. R. R., 138 N. C., 38. If the plaintiff desired more specific instructions, he should have asked for them. Simmons v. Davenport, 140 N. C., 407. Besides, the plaintiff could not have been prejudiced, as there was no evidence whatever showing negligence of the defendant which would have brought the wire to the ground, or in reach of the intestate, nor that the wire hung lower than was safe or usual.

The court further charged the jury: “The defendant contends that there is such an extent of mystery introduced in the case by evidence tending to show a burn in both hands and foot, that upon all the evidence they should not be convinced that the death of the plaintiff’s intestate was caused from wires being down in the first instance, but rather that the plaintiff’s intestate' himself brought the wire down.” After stating this contention, the court added: “Of course, it is hardly necessary for me to tell you that if the plaintiff’s intestate came to his death by meddling with the chain, and then received the shock from the wires which he had himself brought down, he would not be entitled to recover, and upon such finding of fact it would be your duty to answer the first issue No.’ ” The plaintiff excepted to the above instructions, but we find no error.

The whole charge is not sent up, and it does not appear that there were any instructions asked a*nd refused. Upon the whole case, we find no error entitling the' plaintiff to a new trial. *114There was no evidence tending to show that the wires were down by any negligence of the defendant. Indeed, the evidence was scarcely sufficient to justify submitting the case to' the jury. They have, however, found the issue in favor of the defendant.

No error.