
    John T. Porter, Respondent, v. Municipal Gas Company of the City of Albany, Appellant.
    Third Department,
    November 10, 1915.
    Gas and electricity — negligence of electric company in so maintaining wires as to obstruct firemen — failure to comply with municipal ordinance requiring the placing of wires underground.
    Action against an electric company for alleged negligence in maintaining its wires in such a position as to prevent firemen from raising a ladder so as tp rescue the plaintiff from a burning building, and also in failing to remove, such wires and place them underground, pursuant to a municipal ordinance.
    
      Held, on all the evidence, that the question as to whether the position of the wires made a dangerous situation was properly presented to the jury, and a finding of negligence was justified.
    The defendant, however, was not negligent in failing to remove its wires and place them underground, pursuant to the municipal ordinance, for the commissioner of public works had refused to furnish plans therefor, because of certain proposed improvements to be made by the municipality, and had informed the defendant that he would advise it later-as to the location of the wires, but never did so.
    Appeal by the defendant, Municipal Gas Company of the City of Albany, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 15th day of April, 1915, upon the verdict of a jury for $10,000, and also from an order entered in said clerk’s office on the 20th day of April, 1915, denying defendant’s motion for a new trial made upon the minutes.
    
      Neile F. Towner, for the appellant.
    
      Joseph A. Kellogg [Jenkins & Barker of counsel], for the respondent.
   Howard, J.:

On October 7, 1912, and for some years previous thereto, the defendant had maintained a system of wires strung on poles through the streets of the city of Albany. These wires were maintained for the purpose of transmitting electricity for lighting purposes. At the southeast corner of State street and Broadway stood a building known as the Port Building. At or near the curb of State street, about twelve feet from the northwest corner of this building stood an electric light pole of the defendant. Seven wires were strung from this pole diagonally across Broadway to another pole owned and maintained by the defendant. At the pole near the corner of the Port Building these wires were twenty-eight and one-half feet from the ground and they gradually rose to a higher elevation until they reached the pole on the westerly side of Broadway at which point they were forty feet from the ground. Underneath these wires were other wires owned by the United Traction Company, seventeen or eighteen feet above the ground.

Late in the afternoon of October 7, 1913, a fire broke out at the Port Building. The plaintiff, who was lawfully on the fourth floor of the building at the time, discovered the fire and finding that he could not escape by the stairs went to the third window on Broadway south from State street, got out of the window and stood on the cap of the window below. Very soon the city fire department appeared on the scene with the usual engines and apparatus, among which was a truck with an aerial ” ladder. The firemen attempted to raise this ladder so as to rescue the plaintiff from his position of peril, but the ladder was obstructed by something, and the plaintiff contends that it was the wires of the defendant. The firemen being unable to raise the ladder, the plaintiff at last jumped out, attempting to land in a net which was being held beneath him for that purpose; but he was not completely successful in this attempt and landed on the edge of the net bounding over on the outside of it to the ground and was injured.

He brings this action against the defendant alleging negligence on its part in maintaining the wires in the position in which they were maintained and in failing to remove its wires pursuant to an ordinance of the common council of the city' of Albany commanding it to do so, passed April 16, 1906.

The defendant in its proof undertook to locate the exact position of the defendant’s wires, the position of the trolley wires and the position of the truck, and then after giving exact measurements of the height of the wires, the length of thé truck and ladder, it has undertaken to prove by what it styles a “mathematical demonstration,” that the ladder did not come in contact with the wires of the defendant but did in fact come in contact with, and was obstructed by, the wires of the United Traction Company. In this manner the defendant has pitted theory and “mathematical demonstration ” against the positive testimony of eye-witnesses who saw the ladder and the wires, saw the whole transaction, and saw that it was the wires of the defendant which prevented the elevation of the aerial ladder. The jurors chose to accept the evidence of the witnesses rather than the theory of the defendant. We cannot say that they were in error in doing so. In fact the testimony of the eye-witnesses is much more convincing to us than the “mathematical demonstration” of the defendant. At all events we are not disposed to interfere with the findings of the jury on this question of fact.

Assuming then that the ladder was in fact obstructed by the wires • of the defendant, was the defendant negligent in maintaining them there in the position and under the circumstances described ? The defendant’s poles and wires were lawfully in the streets of Albany. It was exercising its rights under a franchise granted to it by an ordinance of the common council passed in June, 1896, and also pursuant to a contract entered into between it and the city of Albany in the same year. By virtue of said franchise and contract the defendant was granted permission to “erect and maintain poles, lamps and wires or cables, and the other necessary appliances and apparatus for the purpose of conducting currents of electricity * * * upon and along any of the streets, avenues or public squares of said city of Albany.” This franchise under which the defendant maintained its poles and wires was to an extent revoked, or at least modified, by a resolution of the common council passed April 16, 1906. By this resolution the defendant, and all other persons and corporations with certain exceptions, maintaining poles, wires, cables, etc., in the streets of the city of Albany, within a certain area, were commanded to remove the same and place the wires and cables underground.

The plaintiff contends first that the defendant was negligent because it failed to observe this ordinance. The ordinance was properly received in evidence; and the disregard of it by the defendant, if it was disregarded, was a proper subject for consideration by the jury in connection with the other facts in the case. But standing alone this ordinance, and the failure of the defendant to observe it, were insufficient to create a liability on the part of the defendant. (Fluker v. Ziegele Brewing Company, 201 N. Y. 40.) And the effect of this ordinance, so far as it relates to the situation here, was greatly minimized, if not entirely vitiated, by the subsequent action of the commissioner of public works. In passing the ordinance the common council required that the plans of all conduits and their location and the work done thereon should be approved by the commissioner of public works. For some time previous to the fire the city of Albany had under contemplation extensive improvements east of Broadway, in the immediate neighborhood of, and in fact including, the site of the Fort Building. As a result of this the wires in that vicinity had not yet been buried beneath the ground. Matters being in this condition the general manager of the defendant went to the office of the commissioner of public works on May 24, 1911, and asked the commissioner to furnish him with the plans of the proposed improvement, so that the defendant could make plans' to lay the underground wires, but the commissioner advised the manager of the defendant that he could not do that, or give permission, because the city had made no plans. He said that he would advise the defendant later. He did not, however, advise it later and has never advised the defendant where to locate the conduits, although the defendant was ready and equipped as early as 1911 to go ahead with the work of placing the wires under the ground, Therefore, on the failure alone of the defendant to comply with the ordinance of April 16, 1906, we do not think this judgment can stand.

It is further contended by the defendant that the ordinance requiring the defendant to bury its wires underground impaired the obligation of the contract under which the defendant was operating, and was thus contrary to the State Constitution and to the Federal Constitution. (See U. S. Const, art. 1, § 10, subd. 1; Id. 14th A.mendt. §1; State Const, art. 1, §6.) Butin the contract itself is a provision that the grant to the defendant is made “subject however to any condition that may now or hereafter be imposed by any * * ordinance of the city of Albany enacted in regard thereto.” The contract having been accepted by the defendant on these conditions, unless the ordinance in question imposed an unreasonable condition, it did not impair the contract because the right to enact the ordinance and impose the condition is recognized by the contract and is a part of it. In view of the length of time given to the defendant in which to comply with the conditions of the ordinance and in view of the fact that the defendant was never in fact forced to comply with it, the ordinance cannot be declared ■unreasonable. It was in keeping with the march of progress and must be held to have been reasonable, proper and lawful.

But on the general proposition that the position of the wires of the defendant in question constituted a dangerous situation, a question was presented for the jury which we do not feel inclined to disturb. Although the defendant was rightfully in the streets of the city of Albany with its poles and wires, the question, nevertheless, arises whether they were being maintained properly and carefully or unlawfully and negligently. (Lambert v. Westchester Electric R. R. Co., 191 N. Y. 248.) The defendant well knew the modern processes of fighting-fire. It knew the nature of the apparatus ordinarily employed on such occasions. It must have known that wires strung across the streets of the city within a certain distance of the ground would hinder and obstruct the erection of tall ladders near high buildings. Therefore, it was for the jury to say, under all circumstances, whether the maintenance of these wires at the point in question, in the manner they were maintained,. and at the height they were maintained, considering the height of the surrounding buildings, constituted negligence. The jury has determined that it was negligence and under the ruling in Lambert v. Westchester Electric R. R. Co. (supra) it was for the jury to say.

We do not find any other question in the case which calls for comment and we think that the judgment and order appealed from should he affirmed, with costs.

Judgment and order unanimously affirmed, with costs.  