wire hanging from B to D would cross the road is a bridge. Plaintiff was being driven in a westerly direction, and just beyond the bridge the wire caught the buggy and the injury occurred. The pole at the point A was guyed by a wire running across to the cast side of the road, and defendant's theory, supported by evidence, was that this guy wire was struck by a heavy oak limb the night before causing the pole to straighten up and so produce a tension on the wire from A to C, breaking or pulling off the insulator at C and so allowing the wire to hang from B to D. The wire was not wound around the insulator, but tied thereto by a separate wire, thus allowing a stretching of the wire from A to C. Plaintiff's theory, also supported by evidence, was that the pole C was so decayed and worn that it either broke off entirely or else bent to the east sufficiently to give enough slaek to permit the wire to come within four or five feet of the ground where it crossed the highway. Defendant's manager testified that about three years before the accident he inspected the pole C and found it then somewhat decayed, about half an inch of rot. He put guy wires on it for the purpose of holding it in position. After that no inspection was made of the pole as to soundness or sufficiency up to the time of the injury. There was a conflict in the evidence as to whether or not it was then standing. It is apparent from the above description of the line that the pole C was subjected to an unusual amount of strain, and that if the wire should become disconnected from it, or if the pole should be pulled out of position in the direction of the strain on it, the wire would in all probability interfere with and endanger public travel on the highway. There was evidence to show that some time after the injury occurred the pole was found lying on the ground near where it had stood, and that it was very rotten at the butt. One witness testified that: "When they sawed it off they broke off a lot of rotten places, and coming home in the machine some more were broken off. It was weak like all rotten wood." In view of the whole evidence, and taking into consideration the necessity for a strong pole at C and the testimony to the effect that it was somewhat rotten three years before the injury occurred, that it had not been inspected since, and the evidence as to the condition of the pole found there shortly afterwards, as well as the apparent peril to travel from any sagging of the wire where it crossed the highway, we cannot say that the jury were not warranted in finding negligence on the part of the defendant. It was its duty to be reasonably vigilant in the inspection of its line, and especially so at a place such as the one in question, where the peril to travel resulting from a sagging of the wire was so obvious. It must be admitted that the theory of the defendant as to what caused the wire to sag.was more or less plausible and supported by evidence; but it was peculiarly the province of the jury to determine, under the conflicting evidence, what was in fact the real cause of the injury. Plaintiff's theory was at least equally plausible, and, as we have said, supported by evidence sufficient to sustain the verdict. In such a situation the finding of the jury is conclusive. Kortendick v. Waterford, 135 Wis. 77, 115 N. W. 331. Defendant assigns error because the court refused to give the following instruction in connection with question 1 of the special verdict: "You are not permitted to guess at your verdict in answering this question, nor in answering any other question in this verdict herein. Verdicts must be based on evidence, not on mere conjecture, and, unless you are satisfied to a reasonable certainty that the low position of the telephone wire across the highway at the time and place of the injury was due to a want of ordinary care on the part of the defendant company in constructing and maintaining its telephone line at the point in question, you are instructed to answer this question, 'No.'"' The court in its charge to the jury fully and fairly stated the defendant's theory of the case, and, in connection with its instruction on the first question of the special verdict, said: "You should bear in mind that it is not necessary for the defendant to prove that it exercised ordinary care. On the contrary, the duty rests entirely on the plaintiff to prove that it did not, and that its failure in that regard was the cause of the wire being in the fallen and dangerous condition, shown by the evidence at the time and place of the injury." The jury were further instructed relative to this question that, before they could answer it in the affirmative, they must be satisfied to a reasonable certainty from a preponderance of the evidence that the falling and lowering of the pole resulted from a defective condition thereof, which, in the exercise of ordinary care, the defendant ought not to have permitted to exist; that the burden of proof was upon the plaintiff; and that the jury must answer the question in the negative unless convinced to a reasonable certainty by a preponderance of the evidence that it should be answered in the affirmative. While it is true that a portion of the charge quoted does not in express terms say that the jury cannot base their verdict upon mere conjecture, or that they are not permitted to guess, still we think the only reasonable inference that sensible men could draw from the charge given was that they must base their verdict upon the testimony in the case, and that from such testimony they must be satisfied there was a want of ordinary care on the part of the defendant before the question could be answered in the affirmative. Trial courts are not required to adopt any particular phrasing of a rule of law given to the jury, and error cannot be predicated upon the mere refusal to give a requested charge which correctly states the law, if it is in fact embodied in substance in the general instructions given. Jones v. Monson, 137 Wis. 477, 488, 119 N. W. 179, 129 Am. St. Rep. 1082. By the Court: Judgment affirmed. HUGHES v. ATLANTA STEEL CO. [SUPREME COUrt of Georgia, JUNE 13, 1911.] 1. Master and Servant-Violation of Law-Injuries-Negligence-Liability. (a) A servant who is injured by the negligent conduct of an incompetent fellow servant, the incompetency being unknown to him, may recover from the common master damages arising from his breach of duty in knowingly employing and retaining the incompetent servant, where the proof shows that at the time of the injury the plaintiff, the negligent and incompetent fellow servant, and the master were all three engaged together in the violation of a penal statute of this State, viz., the statute making penal the pursuit of one's business or work of ordinary calling on the Lord's Day. 2. Negligence-Violation of Law-Injuries. The ruling in Wallace v. Cannon, 38 Ga. 199, 14 Am. Neg. Cas. 120, 121, 95 Am. Dec. 385 (1868), Martin v. Wallace, 40 Ga. 52, and Redd v. Muscogee R. Co., 48 Ga. 102, to the effect that when two or more partics engage in an act violative of a penal law, and one of them is injured by the carelessness or negligence of the other, the injured party is not entitled to damages, should be so qualified as to provide that, to defeat a recovery in such case, the violation of the statute must be a contributing cause of the injury. [Headnotes by the Court.] Appeal by both parties from a judgment of the Court of Appeals on a certified question of law in an action brought to recover damages for injuries sustained by a servant while violating the penal law. Question answered. For plaintiff Westmoreland Bros. and F. M. Hughes. EVANS, P. J. The Court of Appeals has certified to us the following question of law: "Can a servant who was injured by the negli gent conduct of an incompetent fellow servant, the incompetency being unknown to him, recover damages from a common master, arising from his breach of a duty in knowingly employing and retaining the incompetent servant, where the proof shows that at the time of the injury the plaintiff, the negligent and incompetent fellow servant, and the master were all three engaged in the violation of a penal statute of this State, viz, in pursuit of their business and work of ordinary calling on the Sabbath day? Penal Code, § 422." One injured through the negligence of another ordinarily has the right of action against a tort feasor. The query submitted by the Court of Appeals raises the question whether this right of action is lost because at the time of the happening of the tort the injured person was violating a penal law. In Massachusetts it was held that a plaintiff who gratuitously assisted the defendants in clearing out a wheel pit on the Sabbath, for the purpose of preventing the stoppage, on a week day, of the defendant's mills, could not recover for the defendant's negligence, by reason of the statute, making penal such work on the Sabbath day. The court based its decision on the premise that the plaintiff's act, working on the Lord's Day, was so inseparably connected with the cause of action as to prevent his maintaining a suit. McGrath v. Merwin, 112 Mass. 467, 17 Am. Rep. 119. In most jurisdictions, including the Supreme Court of United States and the courts of England, it is held that a collateral unlawful act, not contributing to the injury, will not bar a recovery. The mere fact that of such injury. Hoadley v. International Paper Co., 72 Vt. 79 (1899). A right to recover damages for death of a brakeman employed by a railroad company, caused by the defective condition of appliances furnished by the company, will not be defeated because the injuries which produced death were sustained while he was laboring for the company. in violation of the Sunday Law. The court said: "That a person, injured by the negligent omission of another to perform a legal duty, would not be denied a recovery, even though it appeared that the injured person was, at the time of receiving the injury, acting in disobedience to his collateral obligation to the State, which required of him the observance of the Sunday Law. If the railway company violated its duty by furnishing machinery and appliances. which it knew were defective, the danger to an employee who was required to use the appliances, in ignorance of their defective condition, was the same on one day as on another. That they were being used on Sunday, rather than on Monday, neither contributed to, nor was it the efficient cause of, the injury which gave rise to this action, nor can the railroad company now interpose and become the champion of the Sunday Law as an excuse for its wrong, or to defeat a recovery It is quite true that a plaintiff will |