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upon which was a crossarm, maintained by the Western Union Telegraph Company. An insulator upon this crossarm, which was not properly fastened thereto, was displaced by an employee of the city and fell, injuring a person upon the street. An action was brought against the company owning the pole and it was held liable. In the Court of Appeals, however, this decision was reversed. It was said: "The neglect, if any there was, on the part of either the owner or occupant of the pole, was that of the Western Union Company, in omitting to catch the insulator on the thread of the pin, and for its omission of duty the owner is not responsible." 46

§ 457. Falling of electric lamp.― An electric light company maintaining lamps upon the streets, for the purpose of public lighting, is under the duty of maintaining them in a safe condition, properly secured by strong and sound rope or wire, and of providing good pulleys, properly secured, through which such rope or wire should be run. So where a lamp fell and caused injury to a traveler, it was held that a charge, containing in substance the above, together with the further charge, that the accident raised no presumption of defendant's negligence, but that its liability depended upon whether it exercised reasonable care in keeping the lamp properly suspended and secured, was correct.4 And where an electric light company sells an arc light to a customer and agrees to keep it in repair, if an injury occurs by the falling of the light through the negligence of the company it will be liable therefor. 48

47

6 Am. Elec. Cas. 303, 37 N. Y. Supp. 1149, affg. 13 Misc. (N. Y.) 435, 68 N. Y. St. R. 373, 34 N. Y. Supp. 470.

46 Quill v. Empire State Teleph. & Teleg. Co., 159 N. Y. 1, 53 N. E. 679, 6 Am. Neg. R. 174, per Parker, Ch. J., O'Brien, J., dissenting, revg. 92 Hun (N. Y.), 539, 37 N. Y. Supp. 1149.

47 Excelsior Elec. Co. v. Sweet, 57 N. J. L. 224, 30 Atl. 553.

48 Fish v. Kirlin-Gray Electric Co. (S. D. 1904), 99 N. W. 1902, 16 Am. Neg. R. 590, holding that an

electric light company, which entered into such a contract with a church was liable to an attendant at the church who was injured by the light falling upon him during service, it appearing that the company had failed to properly repair the light after notice of its being in need of repair. The court said: "Neither the church authorities nor persons in attendance upon church services were presumed to know whether the electrical lamp was in order or properly suspended. But it was the duty of the company to

§ 458. Maintenance of wires across railroad tracks.- Where wires are suspended over railroad tracks, they should be maintained in such a condition as not to interfere with the operation of the railroad, or so as to endanger the lives of the employees of the railroad. We have already considered the ques

tion of the construction of wires across railroad tracks, 49 and the same general principles controlling the construction in such cases would control the maintenance.

§ 459. Removal of wires of another company from fixtures and poles - Trespass - Conversion. Although an electrical company may have the right to remove the wires of another company, attached to its poles or fixtures, without any permission or authority, it has no right to carry away the wires so removed, and if it does, will be liable in damages for the value of the property converted. So where an electrical company in New York city was ordered by the board of electrical control to remove all wires from its fixtures, and, in compliance with such notice, it proceeded to cut all wires on such fixtures, including wires belonging to an electric power company, which were attached thereto, as well as to fixtures of its own, and carried away all the wires of both companies, it was held that it was liable to the power company for the amount of wire converted. It was contended that, though the servants were directed to disconnect the wires, yet that the act of carrying them away

know and see that the lamp was so properly suspended, and kept in good working order. It is true that in this case the cause of the falling of the electric lamp was not distinctly shown, but there was evidence tending to prove that the upper part of the lamp became overheated, and that the small cotton cord by which the same was suspended was burned off or charred so that it became so weakened that it was not able to sustain the lamp suspended by it, and we think that the jury was fully warranted in finding such to be the fact from the evidence introduced, as it evidently

did. That the lamp was out of order and working badly immediately prior to its fall was clearly shown. As we have seen, the company was notified that the lamp was out of order and was working badly, and that it attempted to repair the same by sending an experienced workman to make such repair. That he failed to remedy the difficulty is also shown by the evidence. In our opinion, the evidence was amply sufficient to justify the verdict of the jury, and the motion for a new trial was properly denied." Per Corson, J.

49 See c. XIX, herein.

was not within the scope of their employment, and that the company was not liable, but it was held that the act of conversion was so closely and intimately related to and connected with the employment of the servants, that it was just to hold the employer liable.5

50

§ 460. Duty to use new appliances. While an electric railway is not required to make a trial of all the latest ideas, devices or inventions designed to prevent accidents, yet it is incumbent upon it to use due care to avail itself of such customary and approved modern inventions, appliances or improvements as are known in the business of operating such railways or the practicability and efficiency of which have been demonstrated and are generally known to those engaged in operating and maintaining electrical railways. This duty is incumbent upon such companies in order that, so far as is possible, the passengers and general public may be guarded from the perils and dangers attendant upon the use of electricity for such purposes. 51 But in an action against an electric light company it has been held error to instruct the jury that the company is not required to have "an equipment or plant containing the most modern and recent appliances, but only such as were in common and general use at that time for like purposes."

1 52

§ 461. Electric cars crossing railroad tracks-Duty - Negligence. An electric car must, like other users of the street, conform to the requirements of a railroad right of way, where the tracks intersect on a public street; and the general rule as to

50 Electric Power Co. v. Metropolitan Teleph. & Teleg. Co., 75 Hun (N. Y.), 68, 57 N. Y. St. R. 57, 27 N. Y. Supp. 93, 4 Am. Elec. Cas. 649, affd., 148 N. Y. 746, 43 N. E. 986.

51 Witsell v. West Asheville & Sulphur Springs R. Co., 120 N. C. 557, 27 S. E. 125, 2 Am. Neg. Rep. 640; East Tenn. Teleph. Co. v. Chattanooga Elec. St. Ry. Co. (Chancery Ct., Chattanooga, Tenn., 1889), 2 Am. Elec. Cas. 323, 327; Richmond Ry. & Elec. Co. v. Garthright, 92

Va. 627, 24 S. E. 267, 53 Am. St. R. 839, 6 Am. Elec. Cas. 311; Block v. Milwaukee St. R. Co., 89 Wis. 371, 61 N. W. 1101, 5 Am. Elec. Cas. 293.

As to kind of cars. A street railway company is not obligated to use the most recent kind of ear. Indianapolis St. Ry. Co. v. Schomberg (Ind. App. 1904), 71 N. E 237.

52 Crowe v. Nanticoke Light Co., 209 Pa. St. 580, 58 Atl. 1071.

travelers of stopping, looking and listening, before crossing the tracks of the railroad, applies. 53 Provisions are generally made, either by statute or by the local authorities, imposing certain duties or obligations in reference to such crossings. Under the Alabama Code,5* requiring the conductors and engineers to stop their trains within 100 feet of any crossing where two railroads cross each other, it was held that electric railways whose lines extend beyond the corporate limits were subject to this provision.55 And it is held that a regulation by municipal authorities is not necessarily unreasonable, in requiring steam railroad trains to stop before crossing the tracks of any other steam railroad or cable or electric railway.56 It has however been held not contributory negligence, as a matter of law, for a motorman to attempt to cross the tracks of a steam railroad, where he had stopped, looked and listened, within thirty feet of such tracks, and the conductor who had gone ahead for the purpose of seeing if a train was approaching had signaled for him to come ahead.57 Where the train was a special one, and the safety gates were open, the question of contributory negligence, on the part of a motorman, in failing to look for approaching trains, when within ninety-seven feet of the track, and in not seeing the train on reaching the track, though he looked, was held to be for the jury.58 Again where, in a collision between an electrical car and a railroad train, the conductor of the car was killed, and an action was brought to recover damages, the claim as to the injury being wilfully and wantonly inflicted, was held not sufficiently shown by alleging in the complaint that the engineer and conductor of the train wilfully or wantonly ran it at an excessive rate of speed, by reason of which, they wilfully or wantonly ran into the car on which plaintiff's intestate was conductor.58 The fact that an

53 West Jersey R. Co. v. Camden, Gloucester & Woodbury Ry. Co., 52 N. J. Eq. 31, 5 Am. Elec. Cas. 137, 29 Atl. 423; New York & G. L. Ry. Co. v. New Jersey Elec. Ry. Co., 60 N. J. L. 52, 38 L. R. A. 516, 37 Atl. 627, 3 Am. Neg. R. 58.

54 Ala. Code 1886, § 1145. 55 Louisville & N. R. Co. v. Anchors, 114 Ala. 492, 22 So. 279.

59

56 Baltimore & O. R. Co. v. Dist. of Col., 10 App. D. C. 111, 25 Wash. L. Repr. 118.

57 Harper v. Delaware, L. & W. R. Co., 22 App. Div. (N. Y.) 243, 47 N. Y. Supp. 933.

58 Threlkeld v. Wabash R. Co., 68 Mo. App. 127.

59 Louisville & N. O. Co. v. Anchors, 114 Ala. 492, 22 So. 279.

electric street railway company and a steam railroad company have an agreement with each other as to certain precautionary measures to avoid collision at crossings of their lines, will not excuse the railroad company from giving the statutory signal as warning of the approach of a train.60

§ 462.

Electric cars

Electric cars-Duty when crossing streets.-There is no duty imposed upon electric street railway companies, to stop their cars before crossing intersecting streets, for the purpose of looking and listening, in the absence of any apparent reason for so doing. An electric railway has, however, no superior or paramount right of way at street crossings. Persons using the streets by means of vehicles, and pedestrians using the crosswalks at such cross streets, have an equal right with the electric cars, and each must exercise his right with due regard for the rights of the other, and in a reasonable and careful manner, so as not to unreasonably abridge or interfere with the right of the other.61 Therefore, it is the duty of elec tric railway companies to have their cars under reasonable control, when approaching street crossings, so that they may be stopped as quickly as possible, if necessary to prevent collision or accident.62 And the running of an electrical car at an

60 New York & G. L. Ry. Co. v. New Jersey Elec. Ry. Co., 60 N. J. L. 52, 38 L. R. A. 516, 37 Atl. 627, 3 Am. Neg. R. 58.

61 Minnesota: Watson v. Minneapolis St. Ry. Co., 53 Minn. 551, 55 N. W. 742, 4 Am. Elec. Cas. 510; Fonda v. St. Paul City R. Co., 71 Minn. 438, 74 N. W. 166. Nebraska: Omaha St. Ry. Co. V. Cameron, 43 Neb. 297, 61 N. W. 606. New York: Duncan v. Union R. Co., 39 App. Div. 497, 57 N. Y. Supp. 326, 6 Am. Neg. R. 155; Brozek v. Steinway Ry. Co., 10 App. Div. 360, 6 Am. Elec. Cas. 542; Zimmerman v. Union Ry. Co., 3 App. Div. 219, 6 Am. Elec. Cas. 527; Chapman v. Atlantic Ave. Ry. Co., 14 Misc. (N. Y.) 404; Young v. Atlantic Ave. R. Co., 10 Misc. (N.

Y.) 541, 64 N. Y. St. R. 124, 31
N. Y. Supp, 441, 5 Am. Elec. Cas.
530. Tennessee: Citizens' St. R.
Co. v. Howard, 102 Tenn. 474, 52
S. W. 864. Teras: Dallas Rapid
Trans. Ry. Co. v. Elliott, 7 Tex.
Civ. App. 216, 5 Am. Elec. Cas. 271,
26 S. W. 455. Washington: Coggs-
well v.
West End & North End
Elee. Ry. Co., 5 Wash. 46, 4 Am.
Elec. Cas. 412.

See also, Savannah, Thunderbolt & Isle of Hope Ry. Co. v. Beasley, 94 Ga. 142, 5 Am. Elec. Cas. 429, 21 S. E. 285, wherein it is declared that the right of way of the electric railway is superior, but with this exception in substance the general principles declared in the text are sustained.

62 Penny v. Rochester Ry. Co., 7

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