from the defendant, The Bell Telephone Company of Philadelphia, the sum of $20,000, which is justly due and payable by the said defendant to the said plaintiff upon a cause of action whereof the fol lowing is a statement: The defendant is a corporation, owning and operating various lines of telephone throughout the State of Pennsylvania and owning and operating the pay stations in connection therewith, and is and was on the twenty-first day of June, A. D. 1906, the owner and operator of a certain telephone pay station at the Philadelphia Country Club, near Bala, and as the owner and operator of said pay station it was the duty of the defendant to have the same properly equipped and protected so as to prevent injury to persons while using the same. Notwithstanding its duty in this regard the defendant neglected to properly equip and operate its pay station at the said Philadelphia Country Club, and so negligently and carelessly maintained and operated the same, that on the twenty-first day of June, A. D., 1906, the plaintiff while using the telephone at the public pay station above referred to, at the Philadelphia Country Club, received a severe electrical shock, rendering him unconscious for sixteen hours, and totally disabling his left arm and permanently injuring the same and incapacitating him from business for a period of six weeks and permanently disabling him Plaintiff further avers that he has suffered, and will continue to suffer for the balance of his natural life great pain and nervous shock and that his earning capacity has been permanently diminished by reason of the said shock and negligence of the defendant as above set forth and that he has been, and will be, (Ky.), 119 S. W. 811 (1909); Brucker V. Gainesboro Tel. Co., 125 Ky. 92 (1907); Texas Telegraph & Telephone Co. v. Scott, (Tex. Civ. App.), 127 S. W. 587 (1910), writ of error denied by Texas Supreme Court; Delahunt v. United Telephone & Telegraph Co., 215 Pa. 241, 20 Am. Neg. Rep. 727, 114 Am. St. Rep. 958 (1906). "The duty it (the telephone company) owes to a customer using one of its instruments" (at a pay-station), said the court in Brucker v. Gainesboro, supra, "is not different from that due to their customers by other persons inviting the public upon their premises for the transaction of business." Speaking on the subject of the degree of care which a telephone company is bound to exercise, the court in Griffith v. New England Telephone & Telegraph Co., 72 Vt. 441, 52 L. R. A. 619 (1900), said: "Having undertaken to place and maintain the instrument in the house and connect it with its telephone line for the use of the deceased, in so doing it was under the duty to exercise the care of a prudent man under like circumstances. If, while in the exercise of such care, it had reasonable grounds to apprehend that lightning would be conduct. ed over its wires to and into the house, and there do injury to persons compelled to lay out and expend large sums of money for medicine and medical attendance and has suffered and will suffer for all time financial loss by reason of his inability to attend to business. Plaintiff further avers that his injuries are permanent and were in no way caused or contributed to by any act of his but were due entirely to the careless and negligent acts of the defendant. Hence this suit. PLEA. The defendant interposed a plea of "Not Guilty." MESTREZAT, J. The plaintiff is a newspaper reporter, and on the afternoon of June 21, 1906, went to the Philadelphia Country Club to report a polo match and remained to dinner that evening. At half past eight o'clock he left the dining room and went to the telephone booth in the building to communicate with his paper. The telephone was installed at the club house by the defendant company. As the plaintiff took the receiver from the hook and asked for the desired number, he received a shock and was severely injured. Alleging that his injuries were caused by the defendant's negligence, he brought this action to recover damages. The trial of the cause resulted in a verdict and judgment for the plaintiff. The defendant has appealed, and assigns for error the refusal of its motion for judgment non obstante veredicto. It is averred in the statement, as the cause of action, that it was the duty of the defendant as owner and operator of the telephone pay or property, and there were known devices for arresting or dividing such lightning so as to prevent injury therefrom to the house or persons therein, then it was the defendant's duty to exercise due care in selecting, placing, and maintaining, in connection with its wires and instruments, such known and approved appliances as were reasonably necessary to guard against ac cidents that might fairly be expected to occur from lightning when conduct. ed to and into a house over its telephone wires." A telephone company cannot escape liability on the plea that instrumentalities used for the protection of its patrons were the best the company knew about, since, if there were better methods known to science which would give subscribers greater protection from electrical shocks, it must, in the exercise of reasonable care, select and use such methods. Texas Telegraph & Telephone Co. v. Scott, (Tex. Civ. App.), 127 S. W. 587 (1910). The duty which a telephone company owes to its subscribers to make its service and lines reasonably safe for use, requires it to equip telephone instruments with "lightning arresters" with ground connection; and if a pa tron is injured through a failure to provide these appliances, the company must respond in damages. Southern Telegraph and Telephone Co. v. Evans, station at the Country Club to have the same properly equipped and protected so as to prevent injury to persons using it, and that "the defendant neglected to properly equip and operate its pay station at the said Philadelphia Country Club, and so negligently maintained and operated the same, that on the twenty-first day of June, 1906, the plaintiff while using the telephone at the public pay station above referred to, received a severe electrical shock rendering him unconscious," etc. There were two witnesses called by the plaintiff, himself and Dr. Francis D. Patterson. In describing the accident the plaintiff testified that he went to the telephone booth, took the receiver off the hook, and asked for his number, "and instantly there was a heavy shock. I saw a flash of electricity and a bolt of fire in front of my face, and the next thing I remembered is the next afternoon my daughter sitting by my bedside in the Howard Hospital.・・ That was the first time I had regained my consciousness." As to the condition of the weather on the day of the accident, the witness says it looked threatening that afternoon and there was a rumbling of thunder all the latter part of the afternoon, that he was inside the clubhouse, "was not paying much attention to the surrounding elements," and did not know until the next day that a thunderstorm was going on at the time he went to the telephone. Dr. Patterson testified that he was at the clubhouse that afternoon, and that it started to rain very hard early in the afternoon and there were distant flashes of lightning and thunder between half 54 Tex. Civ. App. 63 (1909). The installation of a "lightning arrester," without ground connection, is not a full performance of the company's reasonable obligation to its patrons. Southwestern Telegraph & Telephone Co. v. Abeles, 94 Ark. 254, 140 Am. St. Rep. 115 (1910). And the fact that injury or death resulted from shock during an electric storm, will not relieve the telephone company from liability based on its failure to install a "lightning arrester" with ground connection, on the theory that the absence of such appliance was not the proximate cause of the injury or death. Southern Telegraph & Telephone Co. v. Evans, su pra; Southwestern Telegraph & Telephone Co. v. Abeles, supra. In an action against a telephone company to recover damages for personal injuries to one by lightning, sustained while using a telephone in the usual way, the plaintiff who alleges that it was negligent for the telephone company either to attach the wire to a tree or to fail to have a ground wire, must show by expert evidence that the company was thus negligent, since the matter is not within the knowledge or experience of the jury. Rural Home Telephone Co. v. Arnold, (Ky.), 119 S. W. 811 (1909). The fact that the electric current required for the use and operation of past five and six o'clock. He says that later he was sitting at dinner on a covered veranda when a heavy storm came up. "I judge it was about a quarter after or twenty minutes after eight, suddenly there was a frightful, blinding flash of lightning-so much so that the people sitting at the same table with me all jumped up under the impression that the clubhouse had been struck, and, just as we started to go indoors, somebody came running out and said a man had been struck by lightning, and I went in right away and found Mr. Rocap lying on the floor and I then examined him and found that his condition was apparently very serious. *** He was exactly like a man who had suffered concussion of the brain. *** He was lying some twenty or twenty-five feet from the telephone booth just where. he had fallen. *** There was a blinding fiash of light and the people at the tables, everybody on this veranda, forty or fifty people, jumped up and thought the clubhouse was struck. Q. And that was followed by a clap of thunder? A. Followed instantly-there didn't seem to be an appreciable space between the light and the thunder. Q. Were these such marks as would indicate that any of the current passed through him? A. The one on the front of the forehead was undoubtedly a bruise where he fell. What the one back of the ear was I am not prepared to state. It might have been an electric burn. It was due to a suffusion of blood. It might have come from a very severe bruise when he fell; I am not prepared to say that." a telephone system is not sufficient to company and that for some time prior to his death his telephone had been disconnected. About three weeks before the accident which caused his death, deceased received a letter from the company stating that his 'phone would be "connected at the earliest possible moment." On the evening of the accident, a sound resembling the noise made by a cricket came from the direction of the telephone, and the deceased said "I believe that is the 'phone; I wonder if it is in use." Thereupon he got up, walked over to the instrument, and while standing up. on a wet carpet took the metal transmitter down and was almost instantly killed by an electric shock. In an action against the telephone company to recover damages for such death, the court held that the case came within The testimony of the plaintiff, it will be observed, was confined to showing the accident, the condition of the weather at the time. he received his injuries, and, in rebuttal, that there was no sign on the telephone warning persons against using it during thunderstorms. The defendant company claimed that it had placed an instrument or device on the telephone at the clubhouse to prevent the discharge of electric currents during an electric storm into the telephone, and produced several witnesses having experience and technical knowledge who described the device and testified that it was a standard protection device and was at the time of the accident the best in general use and the most efficient known to the scientific world for protecting a telephone from outside or abnormal electrical disturbances, such as are due to lightning or to the telephone wire coming in contact with high voltage circuits. The witnesses, however, concurred in saying that there was no known device which would absolutely prevent lightning discharges into a telephone. It also appeared by uncontradicted evidence that the protection device on the telephone at the clubhouse was in proper working condition and had actually operated at the time of the accident. The official records of the weather bureau at Philadelphia and the testimony of the observer in charge of the bureau show that there was a thunderstorm at Philadelphia during the evening of June 21, 1906, from 8:10 to 10:15 o'clock; and other testimony disclosed the fact that the storm was very severe and had put many telephones out of service. the rule of res ipsa loquitur, and therefore the plaintiff was not required in the first instance to prove more than that deceased was killed by an electric shock in using the instrument which, with its connections, the defendant had furnished to him as one of its patrons. And in Lee v. Stillwater & M. St. R. Co., 140 App. Div. 779, 125 N. Y. Supp. 840 (1910), a telephone company was held liable for the death of a motorman who was killed by an electric shock by reason of the telephone wire sagging upon a feed wire of a power company, while he was using the railway company's box for the purpose of communicating with the superintendent. II. Telephone Company as Insurer. A telephone company is not an insurer against injuries from electric shocks. Brucker v. Gainesboro Telephone Co., 125 Ky. 92 (1907); Delahunt v. United Telephone Co., 215 Pa. 241, 20 Am. Neg. Rep. 727, 114 Am. St. Rep. 958 (1906). In the Brucker case it appeared that the plaintiff, who was a guest at a hotel, had occasion to use a telephone at a pay-station to talk to his wife at a distant place. As the telephone did not seem to work well, he took hold of the metal arm with his hand to raise the mouth piece, when he received a severe shock of electricity which threw him to the floor, rendering him unconscious and injuring his nerves. On the trial the |