4 foresight and caution which can be reasonably expected of prudent men, under such circumstances." And in a case in New York, where a roofer, who had been injured by contact with the wires of an electric light company while at work upon the cornice of a building, had brought suit for damages alleging negligence on the part of the company in maintaining its wires, the court said: "The defendant was engaged in the business of supplying electricity for lighting purposes in houses and streets of the city, and considering the high voltage which it was necessary to carry over the wires, thus rendering the business in the highest degree dangerous, unless handled with care and skill, we think that outside of any contractual relation, a duty was created on the part of the defendant, not only towards the public generally, who, in the streets, might be likely to come in contact with the wires, but also with respect to any individual engaged in a lawful occupation in a place where he was entitled as of right to be. The relation and obligation of parties are accurately expressed in Heaven v. Pender (L. R. 11 Q. B. 503), the substance of which is that whenever one person is by circumstances placed in such a position with regard to another, that everyone of ordinary prudence would recog nize that, if he did not use ordinary care and skill in his own conduct with regard to these circumstances, he might cause injury to the person or property of the other, a duty arises to use ordinary care and skill to avoid such danger." 5 § 438a. Degree of care varies. The degree of care required of such companies under the rule that they must exercise reasonable care varies according to the facts and circumstances of the case, having in view the dangers involved and the serious results which may ensure as a consequence of negligence. In the case of wires charged with a dangerous cur 4 City of Denver v. Sherrett, 60 U. S. App. 104, 31 C. C. A. 499, 88 Fed. 226, 5 Am. Neg. R. 529, per Shiras, J. 5 Ennis v. Gray, 87 Hun (N. Y.), 355. 68 N. Y. St. R. 312, 34 N. Y. St. R. 383, 5 Am. Elec. Cas. 325, per O'Brien, J. 6 Gilbert V. Duluth General Elec. Co., 93 Minn. 99, 100 N. W. 653, 16 Am. Neg. R. 446, wherein it was held, in an action for death caused by shock from electric light wires becoming crossed, that it was proper to charge the jury that: "In the construction, maintenance and operation of the wires in ques tion it is the duty of the defendant rent of electricity and maintained at places where people have a right to go, and are in a habit of frequenting or are likely to go, either for pleasure, work or business, a greater degree of care would be necessary to protect persons from the result of injury than would be required where the wires are maintained at points which are not frequented by people and are remote from places where they need to go or are difficult of access to." So it is decided that a street railway company which employs electricity as a motive power should exercise the highest degree of care to protect those using the streets from injury from the electric current. The degree of care required may also depend upon the nature of the current conveyed over the wires, or upon the proximity of a wire which does not convey a dangerous current to one which conveys a current which is a source of danger to life or property. 8 to exercise ordinary and reasonable care to prevent injury to persons who might have occasion to use the current therefrom for lighting purposes. By ordinary and reasonable care' is meant such care as an ordinary prudent and careful person, having in view the dangers to be apprehended, would exercise under the same circumstances. The precautions necessary to be taken in the exercise of reasonable and ordinary care vary with the circumstances of each particular case, and the degree of hazard connected therewith; greater precautions being necessary in the case of great hazard, and less in case where there is little danger." Perham v. Portland General Elec. Co., 33 Or. 451, 53 Pac. 14, 40 L. R. A. 799, 72 Am. St. Rep. 730, wherein it is said: "Electric companies, of course, are not bound to have perfect apparatus or perfect construction, but they are required to exercise a degree of care and prudence in the construction and maintenance of their wires com mensurate with the danger; and where their wires are designed to carry a strong and powerful current of electricity, so that persons come in contact with them are certain to be seriously injured, if not killed, the law imposes upon the company the duty of exercising the utmost care and prudence to prevent such injury." See also Economy Light & P. Co. v. Stephen, 87 Ill. App. 220; Barto v. Iowa Telephone Co.. 126 Iowa, 241, 101 N. W. 876. 7 McLaughlin v. Louisville Elec. L. Co., 100 Ky. 173, 37 S. W. 851. 34 L. R. A. 812, wherein it is declared that: 'Very great care might be sufficient as to the wires at points remote from public passways, buildings, or places where persons need not go for work or business; but the rule should be different as to points where people have the right to go for work, business or pleasure." 8 Metropolitan Street Ry. Co. v. Gilbert, 70 Kan. 261, 78 Pac. 807, 17 Am. Neg. R. 231. § 438b. Duty to make inspection. The degree of care which is required of electrical companies imposes upon such a company the duty of making reasonable and proper inspections of its appliances. This does not mean that the company must make such inspections as will absolutely prevent the occurrence of an accident, and thus render it an insurer against any injury sustained, but that it is obligated to make such inspections as are reasonable and proper, both with regard to their frequency and character, having in view the conditions surrounding the use of the apparatus and the dangers and risks involved. If, by the exercise of reasonable care in this respect, a defective condition, as a result of which an injury has been sustained, could have been discovered and remedied, the company will be held liable for such injury.10 The question whether such a company has performed the duty imposed upon it as to the making of inspections is one for the jury to determine.11 Warren v. City Electric Ry. Co. 141 Mich. 298, 104 N. W. 613. Climatic conditions may be such that reasonable prudence and caution would require electrical companies to maintain a system of frequent inspection. Denver Consol. Elec. Co. v. Lawrence, 31 Colo. 301, 73 Pac. 39, 8 Am. Elec. Cas. 618. The making of frequent inspections will not of itself relieve an electrical company from liability for an injury due to defective insulation where the defect could have been ascertained by a sufficiently thorough inspection. Potts V. Shreveport Belt Ry. Co., 110 La. 1, 34 So. 103. A weekly inspection of the wires of an electrical company will not as a matter of law show a freedom from negligence on the part of the company. Paine v. Electric Illum. & P. Co., 64 App. Div. (N. Y.) 477, 72 N. Y. Supp. 279, 7 Am. Elec. Cas. 651. 10 Harter v. Colfax Electric L. & R. Co., 124 Iowa, 500, 100 N. W. 508; Wagner v. Brooklyn Heights R. Co., 69 App. Div. (N. Y.) 349, 74 N. Y. Supp. 809; Leonard v. Brooklyn Heights R. Co., 57 App. Div. (N. Y.) 125, 67 N. Y. Supp. 985, 7 Am. Elec. Cas. 683. 11 Lutoff v. United Electric Light Co., 184 Mass. 53, 67 N. E. 1025, 8 Am. Elec. Cas. 506, 14 Am. Neg. R. 344, wherein it is said that "the care which a corporation having a lighting plant extended throughout a city should exercise in the oversight of its apparatus, with a view promptly to discover defects giving rise to the greatest danger, is one which is peculiarly proper for the determination of a jury," per Barker, J.; Leonard V. Brooklyn Heights R. Co., 57 App. Div. (N. Y.) 125, 67 N. Y. Supp. 985; Poulsen v. Nassau Electric Co., 30 App. Div. (N. Y.) 246, 51 N. Y. Supp. 933, 7 Am. Elec. Cas. 677; Glouces ter Electric Co. v. Kankas, 120 Fed. 490, 56 C. C. A. 640, wherein it is § 439. Motive power-Street railways.-The legislature may authorize the construction of street railways upon city streets without compensation to the abutting owners, or the municipal authorities may confer such right where there has been a proper delegation of such power to them.12 The right of the legislature or municipal authorities to authorize such use of the streets, being recognized, it necessarily follows that, in the absence of some constitutional restriction or of some legislative restriction upon the authorities of the city in reference thereto, the use of animal or mechanical power may be authorized, so long as it does not constitute an encroachment upon private rights to the extent of an appropriation of private property or impair the usefulness of the street as a public way.13 Municipal corporations under the general power to control and regulate the use of streets, may in the exercise of such power and of the inherent police power regulate the use of electricity as a means of propulsion for street cars within their corporate limits.14 Street cars propelled by electricity are but one means of using the streets in aid of public travel, and permission for the use of such motive power is in the exercise of the police power for the benefit and convenience of the traveling public.15 If a municipality grants consent to the use of electricity on street railways without any express authority to authorize such use, and, relying upon such consent, the company has incurred heavy expenditures, such per declared that the question of the necessity of inspection and the question whether the defendant was lacking in due care in not discovering the defective condition are questions of fact for the jury in an action for personal injury caused by contact with a defectively insulated wire. 12 See chaps. XI, XVI and XVII, herein. 13 Williams v. City Elec. Ry. Co., 41 Fed. 556, 3 Am. Elec. Cas. 231, 234; Hudson River Teleph. Co. v. Watervliet Turnpike & Ry. Co., 135 N. Y. 393, 63 N. Y. St. Rep. 642, 32 N. E. 148, 4 Am. Elec. Cas. 282, revg. 61 Hun (N. Y.), 140, 39 N. Y. St. R. 952, 15 N. Y. Supp. 752; Lockhart v. Craig St. Ry. Co., 139 Pa. St. 419, 3 Am. Elec. Cas. 314, 318, 21 Atl. 20; Limburger v. San Antonio Rap. Trans. St. R. Co. (Tex. Sup. Ct., 1895), 5 Am. Elec. Cas. 156. 14 State ex rel. Wisconsin Teleph. Co. v. Janesville St. Ry. Co., 87 Wis. 72, 4 Am. Elec. Cas. 289, 57 N. W. 970. 15 Canal & Claiborne R. Co. v. Crescent City R. R. Co., 44 La. Ann. 485, 4 Am. Elec. Cas. 13, 10 So. 888. mission will be considered as ratified by a statute, subsequently passed, empowering cities to authorize the use of such motive power. 16 And the right of a company to use electricity for its motive power cannot be challenged in an action against the company for personal injuries.17 § 440. Motive power-Right to use electricity-Charter and statutes silent as to. It is a general rule of law that when corporations are authorized by a general grant to carry on a business and the powers which it may exercise are not limited. or defined by the terms thereof, it will receive and may exercise by implication all such powers as are reasonably necessary to enable it to accomplish the purposes of its creation.18 Therefore, where a corporation is formed under a general statute to construct, maintain and operate a street railway for the transportation of passengers, and the statute does not in any way limit or define the motive power to be used, the company will have the right to use electricity as a motive power.19 The right, however, would be subject to the exercise of any powers in reference thereto, which the legislature had delegated to the local authorities. In a case in Illinois where it appeared that the use of steam as a motive power was prohibited by the city, the court sustained its action, it being held that, although the grant to the company did not limit or define the motive power which should be used, yet the company did not thereby acquire the right to use any means of propulsion, but could only use such means as would be most conducive to the best interests and safety of the public, having occasion to use the street as a common highway. 20 § 441. Delegation of power to city as to street railroadsSilent as to motive power. If a legislature confers the power upon a municipality to authorize the construction of street railways with no terms of qualification or restriction as to what 16 City Ry. Co. v. Citizens' St. R. Co., 166 U. S. 557, 17 Sup. Ct. 653. 17 Hine v. Bay Cities Consol. St. R. Co., 115 Mich. 204, 73 N. W. 116, 4 Det. L. News, 813. 18 Halsey v. Rapid Trans. St. Ry. Co., 47 N. J. Eq. 380, 3 Am. Elec. 19 Halsey v. Rapid Trans. St. Ry. Co., 47 N. J. Eq. 380, 3 Am. Elec. Cas. 283, 20 Atl. 859. 20 North Chicago City Ry. Co. v. Lake View, 105 Ill. 207. |