Elizabeth McNamee, as Administratrix, etc., of James McNamee, Deceased, Appellant, v. The Western Union Telegraph Company, Respondent, Impleaded with The Queensborough Gas and Electric Company, Defendant

Elizabeth McNamee, as Administratrix, etc., of James McNamee, Deceased, Appellant, v. The Western Union Telegraph Company, Respondent, Impleaded with The Queensborough Gas and Electric Company, Defendant. Second Department, February 6, 1914. Electricity — grasping electric wire after seeing horse killed thereby — contributory negligence. A person who, after seeing a horse apparently killed by a suspended wire, grasps the wire with only a cotton handkerchief wound about his hand, and receives a fatal shock, is guilty of contributory negligence, and the complaint in an action to recover for his death is properly dismissed. Reargument of an appeal. by the plaintiff, Elizabeth McNamee, as administratrix, etc., from a judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of Queens on the 21st day of June, 1911, upon the dismissal of the complaint by.direction of the court at the close of plaintiff’s case upon a trial before the court and a jury at the Queens County Trial Term. Martin T. Manton [ William H. Griffin with him on the brief], for the appellant. Albert T. Benedict [Rush Taggart with him on the brief], for the respondent. [MAJORITY — Per Curiam:] Per Curiam: Plaintiff’s intestate had seen that the horse had been apparently killed by the suspended wire as he was assisting to get the horse clear, and so observed the deadly effect of the shock. After the wagon had been disconnected the live wire hung some three or four feet behind the vehicle. He took hold of this wire, and as he approached the sidewalk, walking backwards, received a fatal shock. In his hand grasping the wire was found a red bandanna handkerchief, partly burned. As the dangerous current was shown by the prostrate horse, the intestate had knowledge of his risk in touching this wire. Being m the autumn (September), his wrapping the handkerchief about his hand was not from cold or other exposure, but was to protect his hand from the current. As the intestate thus must have realized his danger, his grasping the live wire with only a cotton handkerchief was a plain disregard of common care and caution (Frauenthal v. Laclede Gaslight Co., 67 Mo. App. 1); also a case of grasping a live wire with a handkerchief. Hence, even if the wire was not then spluttering or emitting flashes, the deceased was guilty of contributory negligence. (Thomp. Neg. § 808; Beach Oont. Neg. [3d ed.] § 447.) The judgment should be affirmed, with costs. Present —Jenks, P. J., Thomas, Rich, Stapleton and Putnam, JJ. Judgment unanimously affirmed on reargument, with costs.