
    Edward J. Hollis, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    November 20, 1908.
    ¡Railroad—negligence — injury by fall of trolley wire — facts raising presum.ption th.at structure is not a nuisance — pleading— admission of lawful organization of defendant — allegations not charging maintenance of nuisance.
    Where it is admitted that a defendant railroad constructed its róad and equipped it with an overhead trolley system more than one year prior to an injury to plaintiff caused by the breaking of a trolley wire, it will be presumed, by virtue of section 91 of the ¡Railroad Law, that the railroad was lawfully using the highway and not maintaining a nuisance, so that the plaintiff in order to recover must show negligence. Hence, where no negligence is shown and it is admitted that the fall of the trolley wire was caused by the destruction of adjoining buildings by fire, there can be no recovery.
    Moreover, where the complaint alleges that the defendant was a domestic corporation duly organized and existing and engaged in operating a street railroad, and that allegation is not denied in the answer, it stands admitted that the defendant was lawfully organized, existing and engaged in the operation of a street railroad.
    In the face of such admission the defendant is not charged with maintaining a nuisance by an allegation that it “knowingly and wrongfully jeopardized the lives,” etc., of persons lawfully on the highway. The allegation must be deemed to relate to negligence only.
    The same is true of a further allegation that solely by reason of the wrongful acts of the defendant the plaintiff’s head was cut, bruised and injured and he was shocked by electricity, etc.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 12th day of November, 1907, upon the verdict of a jury for $750, rendered by direction of the court, and also from an order entered in said clerk’s office on the 11th day of December, 1907, denying the defendant’s motion for a new trial made upon the minutes.
    
      D. A. Marsh [George D. Yeomans with him on the brief], for the appellant.
    
      Robert Stewart, for the respondent.
   Woodward, J.:

The plaintiff alleges as his cause of action, on .information and belief, that the defendant was- and is a domestic corporation “ duly organized and existing, and engaged in operating street railroads in the Borough of Brooklyn, City of New York, by means of electricity ; ” that the defendant “ in the operation of its said railroads by said power, uses, and erected and maintained at all the said times, wires strung along through the streets' of said-Borough, in which it so operates its said railroads, including among others, Flushing avenue between Classon and Havy street, which said street is now and was at all of said times, a public highway;” that “along and through said wire, for the purpose of operating its said railroad, the defendant carried an electric current of heavy voltage and power;” that “by its use of the said electric current and the maintenance of its said wires for the transmission and use of the said current, the defendant knowingly and wrongfully jeopardized the lives and limbs and persons of people lawfully upon said highway, whenever the said wires for any cause became unprotected, broken or torn down, or the said current was allowed to escape . therefrom; ” that “ heretofore and on or about the 8th day of February, 1902, while plaintiff.was lawfully ypon said Flushing avenue and at. or near Clermont avenue, one of the said wires so maintained and used by the defendant in the public street, broke and struck plaintiff on the,left side of the head, cutting open his scalp and caused him to be shocked by said current of electricity passing through and along said wire,” and that “ solely by reason of the wrongful acts of the defendant, plaintiff’s head was cut, braised and injured, and he was shocked by electricity,” etc. -

On the trial of the action defendant moved to dismiss the complaint on the ground that it did not state facts sufficient to constitute a cause of action. This motion was denied, defendant taking an exception. . The facts were then stipulated, and the defendant moved for the dismissal of the complaint on the ground that the facts, proved did not constitute a cause of action. This motion was denied and an exception taken. A motion Was then made by defendant for the direction of a "verdict on' the same ground, and on its denial defendant took an exception. On motion of plaintiff a verdict for $750 was directed for the latter.

The learned court appears to have taken the position that it would not determine the question on the sufficiency of the pleadings, but upon the evidence; but the defendant has an exception to the ruling, as well as to the further rulings after the facts were agreed upon. If the attitude of the learned court is right, then in all actions against street railroads for personal injuries all that is necessary is to allege that the defendant is occupying the highways with a surface railroad; and if the defendant does not plead and prove that it is there under lawful authority,'the plaintiff is entitled to recover because of the nuisance. In the thousands of cases which have been presented to the courts in. this State for personal injuries growing out of the operation of surface railroads in cities, it has never been customary to bring into the controversy the question of the legality of the structure in the streets, for under our Constitution and laws it is hardly possible that a street railroad could be constructed or operated without lawful authority, and the courts might almost take judicial notice of the fact. But this is not necessary; the statute, section 91 of the Railroad Law, has provided ever since the amendment made by chapter 638 of the Laws of 1901. that whenever “heretofore or hereafter a railroad has been or shall be constructed and put in operation for one year, or the motive-power thereon has been or shall be changed and put in operation for a similar length of time, such facts shall be presumptive evidence that the requisite consents of local authorities, property owners and other authority to the construction, maintenance and operation of such railroad or change of motive power have been duly obtained.” It is conceded in this case that the defendant had constructed its railroad and equipped it with the overhead trolley system more than one year prior to the accident, and this fact being conceded there arose the presumption /that the defendant was lawfully in the highway with its equipment for operating its railroad by electricity, and in the absence of negligence the defendant could not be liable. It is admitted by the plaintiff that there was no negligence on the part of the defendant; that the wire causing the injury fell because of a fire, which threw down a building near at hand, tearing down the defendant’s, superstructure.

This makes, it unnecessary tó consider the question of pleading perhaps, but it may not be out of place to call attention to the question a little more fully. The complaint alleges that the defendant is- “ a domestic corporation duly organized and existing, and engaged in operating street railroads.” To be “ duly organized and existing, and engaged in operating street railroads ” is, to be legally organized and existing and engaged tin operating street railroads, for “ ‘ Duly,’ in legal parlance, means according to law. * * * It does not relate to form merely, but. includes form and substance both.” (Brownell v. Town of Greenwich, 114 N. Y. 518, 5$ti, and authorities there cited.) This allegation of- the complaint is not denied,.and-so it stands as established that, the defendant was. lawfully organized and existing and engaged in the operation -of street railroads, and the allegation that the defendant." knowingly, and wrongfully jeopardized -the, lives,” etc., of persons lawfully on the highway,, if not a mere conclusion of law made by the pleader, cannot be construed to controvert the allegation of lawfulness in tlie first paragraph of the-complaint, and must be deemed to relate to negligence rather, than to’ a nuisance., The same is true of the further allegation that “ solely by reason of the wrongful acts of the defendant,” etc.

■We are of the opinion that the. complaint, does not state facts sufficient to constitute a cause -of action,, and that the complaint should have been dismissed on this ground. ' .

The judgment and order appealed from should be reversed, with costs..

Jenks, Hooker, Rich and Miller, JJ., concurred,

Judgment and order reversed and new trial grantéd, cosfs to abide the event. 
      
      See Laws of 1890, chap. 565, § 91, as amd. by Laws of 1901, cbap. 638; Laws of 1903, chap. 537; Laws of 1905, chap. 650, and Laws of 1907, chap. 156.— [Rep.
     