47

§ 444. Change of motive power-Permit to excavate Mandamus to compel issuance of. If a street railway company has been authorized to change its motive power, and its right to make such change is complete, there having been a compliance with all the statutory or municipal requirements in reference thereto, a mere executive officer has no authority to withhold a permit for the excavations necessary to effect such change. So, where a street railway company was authorized by the Railroad Commissioners, in accordance with the law, 48 to substitute electricity for horse power, it was held that a permit to make the necessary excavations could not be refused by the commissioner of public works of New York city, on the ground that a permit had not been obtained from the board of electrical control. 49 In case of his refusal to grant such a permit mandamus may be awarded to compel the issuance thereof.50 But it is held that the court will issue an alternative writ of mandamus, instead of a peremptory writ, where the necessity and feasibility of the change are contested, on the ground that the tracks of another electric railway, already in occupation of the street, may be used.51 Though it may be necessary, in order to effect a change of motive power in a city, to obtain a permit from the board of electrical control, yet failure to obtain such permit will not render the issuance of a permit by the commissioner of public works an illegal act, which the courts will enjoin. 52 Nor will it be enjoined on the ground that the change of motive power will create additional burdens upon the city, in case it should elect to exercise its right to acquire such railway, where a statute has been passed conferring additional powers upon the company, which operates as a suspension of such right.53

§ 444a. Right of steam railroad to use electricity as motive power. Where a statute authorizes the formation of rail

47 In re Third Ave. R. Co., 121 N. Y. 536, 24 N. E. 951.

48 New York Laws of 1890, c. 565, § 100.

49 Potter v. Collis, 19 App. Div. (N. Y.) 302, 40 N. Y. Supp. 471, affd., 156 N. Y. 16.

50 In re Third Ave. R. Co., 121 N. Y. 536, 24 N. E. 951.

51 Forty-second St., M. & St. N. Ave. R. Co. v. Collis, 24 Misc. (N. Y.) 321, 53 N. Y. Supp. 669.

52 Potter v. Collis, 19 App. Div. (N. Y.) 392, 46 N. Y. Supp. 471, affd., 156 N. Y. 16, 50 N. E. 413.

53 Potter v. Collis, 19 App. Div. (N. Y.) 392, 46 N. Y. Supp. 471, affd., 156 N. Y. 16, 50 N. E. 413.

66

road companies and neither requires that steam must be used nor precludes the use of electricity as a motive power, it is decided that electricity may be used without an express grant for that purpose. Thus it was so decided in a case in Pennsylvania, where a railroad company which had used steam as a motive power desired to use electricity over a part of its line. The court said: Undoubtedly in 1868 steam was the motive power exclusively used on railroads. Great progress, however, has since been made in scientific discovery and mechanical inventions, and other methods of propulsion are now, and have been for a considerable period of time, in common use. They have proved to be of great practical service in mitigation of nuisances and in the effective operation of public conveyances. Of these electricity may be regarded as a signal instance. In the absence of any positive requirement that steam must be used as the motive power upon the defendant's railroad, we think courts would be altogether out of sympathy with the progress of events and needlessly obstructive to public convenience, if they should hold that railroad companies could not adapt themselves to changing circumstances and better methods in such matters without new and express legislative grant." 54

* * *

§ 445. Insulation of wires.-A company maintaining elec trical wires, over which a high voltage of electricity is conveyed, rendering them highly dangerous to others, is under the duty of using the necessary care and prudence at places where others may have the right to go, either for work, business, or pleasure, to prevent injury.55 It is the duty of the company,

54 Sparks v. Philadelphia & C. R. Co., 212 Pa. St. 105, 61 Atl. 881, per Wilson, J., in court below and affirmed here.

55 Connecticut: Nelson v. Branford Lighting & W. Co., 75 Conn. 548, 54 Atl. 303, 8 Am. Elec. Cas. 542, 13 Am. Neg. R. 490. Kentucky: Thomas', Adm'r, v. Maysville Gas Co., 108 Ky. 224, 56 S. W. 153; Schweitzer's Admr. v. Citizen's General Elec. Co., 21 Ky. Law R. 608, 52 S. W. 830. Missouri:

74

Geismann v. Missouri Edison Elec.
Co., 173 Mo. 654, 73 S. W. 654,
8 Am. Elec. Cas. 569. New
York: Wagner v. Brooklyn Heights
R. Co., 69 App. Div. 349,
N. Y. Supp. 809; Ennis v. Gray,
87 Hun (N. Y.), 355, 361,
68 N. Y. St. R. 312, 34 N. Y.
Supp. 383, 5 Am. Elec. Cas. 325.
Texas: Brush Elec. L. & P. Co. v.
Lefevre (Tex. Civ. App. 1900), 55
S. W. 396. West Virginia: Thomas
v. Wheeling Electrical Co., 54 W.

under such conditions, to keep the wires perfectly insulated, and it must exercise the utmost care to maintain them in this

condition at such places.56 And the fact that it is very expensive or inconvenient to so insulate them will not excuse the company for failure to keep their wires perfectly insulated. So one, who in the course of his employment is

brought in close proximity to electrical wires, is not guilty of contributory negligence by coming in contact therewith, unless done unnecessarily or without proper precautions for his safety. And where the wires, if properly insulated, would not be a source of danger, such person is only obliged to look for patent defects and not for latent defects,58 as a person may assume that wires are properly insulated in those places where one having a right to go may come in contact with them.59 So where an electric light company maintained its wires upon a bridge from which it knew boys were in the habit of diving, and a boy, while upon a truss of the bridge for the purpose of diving, was killed by touching a, wire imperfectly insulated it was decided that the company was liable.6° And a person who touches an electrical wire, from which the insulation is worn off, if he does it in ignorance of the nature and condition of the wire, is not negligent.61 But this duty to insulate wires for the protection of persons who may come in contact with them does not extend as to those places where no one could reasonably be expected to come in contact with the wires.62 So as against a trespasser upon the poles of the company, it is not obliged to keep the insulation of its wires in such perfect condition.63 And one who is guilty of contributory negligence cannot recover for an injury caused by contact with an electric wire, though it is not properly insulated.64 Where, however, a wire is heavily charged with electricity and

58 Clements v. Louisiana E. L. Co., 44 La. Ann. 692, 4 Am. Elec. Cas. 381, 11 So. 51.

59 Fitzgerald v. Edison Elec. Illum. Co., 200 Pa. St. 540, 50 Atl. 161, 7 Am. Elec. Cas. 642; Thomas v. Wheeling Electrical Co., 54 W. Va. 395, 46 S. E. 217, 8 Am. Elec. Cas. 528.

60 Nelson v. Branford Lighting & W. Co., 75 Conn. 548, 54 Atl. 303, 8 Am. Elec. Cas. 542, 13 Am. Neg. R. 490.

61 Griffin v. United Elec. L. Co., 164 Mass. 492, 49 Am. St. Rep. 477, 41 N. E. 675; Thomas v. Wheeling Electrical Co., 54 W. Va. 395, 46

S. E. 217, 8 Am. Elec. Cas. 528.
See Lexington Railway Co. V.
Fain's Adm'r, 24 Ky. Law R. 1443,
71 S. W. 628, 8 Am. Elec. Cas. 499.

62 Knowlton v. Des Moines Edison Light Co., 117 Iowa, 451, 90 N. W. 818, 8 Am. Elec. Cas. 800, citing Hector v. Light Co., 174 Mass. 212, 54 N. E. 539, 75 Am. Sc. Rep. 300, 7 Am. Elec. Cas. 568.

63 Newark Elec. L. & P. Co. v. Garden, 23 U. S. C. C. A. 649, 39 U. S. App. 416, 78 Fed. 74, 37 L. R. A. 725, 6 Am. Elec. Cas. 275.

64 Winkelman V. Kansas City Electric Light Co., 110 Mo. App. 184, 85 S. W. 99.

is uninsulated, it is negligence on the part of the company to permit it to be suspended so close to the ground as to be within easy reach of a pedestrian.65 And where an injury is received by contact with a wire at a place where it ought to be insulated, and there is not proper insulation, the company maintaining the wire is prima facie liable, as in such a case it is bound to anticipate danger.66 But where a lineman of a telephone company was injured while drawing a telephone wire over the feed wire of a street railway company, it was held that the street railway company was not bound to exercise the "utmost degree of care" to keep the feed wire insulated, so as to prevent injury, under such circumstances.67 And where an electric light company had left the ends of two service wires uninsulated in the cellar of a house, at a distance of about eight feet above the floor, and a workman engaged by the owner in making repairs in the house had taken hold of these two ends, making a short circuit, and burning his hand, it was held there could be no recovery, on the ground that the evidence showed that the current was not of sufficient voltage to cause death or great bodily harm, and that it must be such to be within the exception of the rule permitting "a third party to maintain

65 Suburban Elec. Co. v. Nugent, 58 N. J. L. 658, 34 Atl. 1069, 32 L. R. A. 700.

66 Thomas v. Wheeling Electrical Co., 54 W. Va. 395, 46 S. E. 217, 8 Am. Elec. Cas. 528, wherein it is said: "I think that where the place is one that demands insulation of wires, there the company is bound to anticipate contact with the wires; for it is the fact that persons may there come into such contact that imposes the duty of the insulation when injury to a person is received at such a place from want of proper insulation, the company using the wires is prima facie liable, unless there be contributory negligence. The law demands insulation, and if damage arise from its want the law gives action for its omission. Therefore,

when the defendant failed to insulate, it was bound to anticipate accident from that failure. It must foresee that it is likely to happen," per Brannon, J.

See Perham v. Portland Electric Co., 33 Or. 451, 53 Pac. 14, 7 Am. Elec. Cas. 487, 72 Am. St. Rep. 730, 40 L. R. A. 799.

In Geismann v. Missouri Edison Elec. Co., 173 Mo. 654, 73 S. W. 654, 8 Am. Elec. Cas. 659, it is declared that the fact that a person is killed by contact with an electric light wire at a place where he had a right to be is conclusive proof of defective insulation and of the neg ligence of the company maintaining the wire.

67 Calumet Elec. St. R. Co. v. Grosse, 70 Ill. App. 381.