
    The City of Albany, App’lt, v. The Watervliet Turnpike and Railroad Company, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed February, 1894.)
    
    1. Nb&ligehce—Electric Railroads.
    Guard wires are neither necessary nor usual in the construction of single trolly lines for propelling street cars, and their absence does not constitute negligence.
    2. Same—Proximate Cause.
    Where telegraph or telephone wire falls upon the trolly wire and thus communicates a deadly current of electricity to plaintiff's horses, the trolly, so long as it remains in its proper place and performs its necessary functions, is not even the proximate cause of the injury.
    3. Same.
    In such case, the proximate cause of the injury is the falling of the telegraph or telephone wire upon the live trolly wire.
    Appeal from a judgment of the Albany county court dismissing the plaintiff’s complaint.
    
      John A. Delehanty, for app’lt; Marcus T. Hun, for resp’t.
   Mayham, P. J.

This action was prosecuted by the plaintiff to recover damages alleged to have been sustained by the negligence of the defendant in the construction and operation of its trolly for the propulsion of its railroad cars, by reason of which the plaintiff’s horses were injured by electricity.

The defendant owns and operates a surface street railroad through Broadway in the City of Albany. At the time of the alleged injury a violent storm of wind broke or detached telephone or telegraph wires which were elevated above the trolly wire of the defendant’s railway, and also the trolly wire of the Albany railroad company, operating a line of street cars, through State Street in the City of Albany, which two railway lines intersect each other at the junction of Broadway and State Street in said city; and such broken or detached telephone or telegraph wires fell upon the trolly wire of one of these railroads, at or near their point of intersection, by means of whieh a powerful current of electricity was transmitted to such broken wire, in which the horses of the plaintiff were, while properly upon such public street, entangled and killed, or seriously injured by such electrical current. The question as to which of these railroad trollys connected with the broken wires of the telephone or telegraph companies, and thus furnished the current which produced the injury was sharply contested on the trial, the plaintiff seeking to connect the defendant’s trolly wire with it by the evidence; and the defendant seeking to show that the current came from the electric light wires or the wires of the Albany Railroad Company. That the injury resulted from a current from one of these powerful electrical agencies, was established beyond question, and substantially conceded on the trial, and upon the question as to whether or not the current came from contact with the defendant’s trolly wire, or span wires, there was, we think, sufficient evidence to raise a question of fact for the jury.

It is true that no witness traced the telephone or telegraph wire which communicated the current to the horses directly from the horses to the defendant’s trolly or span wire, but the witness who cut the wire in which the horses were entangled, gave the general direction of the same towards the defendant’s trolly and span wires, and the testimony of Hawley and McNamara, tend strongly in the same direction, so that if the case had turned upon that point and a jury had found for the plaintiff upon that evidence, the Court would not be authorized to set it aside as wholly unsupported by evidence.

The inference could have been fairly drawn from this evidence-that the current was communicated from the defendant’s trolly or span wires, and in such case it was for the jury to decide. Hart v. Hudson River Bridge Co., 80 N. Y. 622; Bernard v. Rensselaer v. R. R. Co., 32 Barb. 165; affirmed 1 Abbotts Court of Appeals, 131. But if the jury had found that the current which caused the injury proceeded or was diverted from the defendant’s trolly or cross or span wires still the plaintiff could not predicate the right of recovery upon that fact alone, unless there was some evidence, that the defendant was guilty of negligence in the construction or maintenance of its line. The right of the defendant to use electricity as motive power, or energy upon the single trolly plan, is not denied, and unless by its negligent use the plaintiff was injured, it cannot complain, and. I find no evidence in this case that its use in • this instance was not in the manner in which it is ordinarily applied in the propulsion of street cars,- and the only precautionery measure suggested by the evidence, is by suspending a guard wire over the trolly, and span wires, so as to prevent telephone and telegraph wires, suspended above it, from falling upon those uninsulated and highly charged wires, and I find no evidence that such guard wires are either necessary or usual in the construction of single trolly lines for propelling street cars.

Under these circumstances was there any evidence of negligence which the Court could have submitted to the jury upon which a recovery could be had? If the proof had established beyond any doubt that the telephone or telegraph wire had fallen upon the trolly wire, and thence on the plaintiff's horses, and thus communicated a deadly current to the horses, so.long as the trolly, which cannot be insulated was in its proper place, performing its necessary and proper functions in the propulsion of cars, could it be said to be even the proximate cause of the injury?

Within the adjudged cases upon this subject in this State, we think not.

It is quite clear that the proximate cause of this injury was the falling of the telephone or telegraph wire upon the live trolly wire, of one or the other of these lines of railroad.

Had not that occurred there is no claim that the electricity from the trolly wire of the defendant’s railroad, could have communicated with or injured the defendant's horses.

The construction and operation of the defendant’s railroad by a single trolly power, was not the direct, necessary and natural cause of the injury complained of. But for the occurence of other events over which the defendant had no control, the injury could not have happened. The doctrine is so old as to be elementary that the injury for which damages are claimed in actions for wrongs, must be the natural consequence of the wrong complained of.

In Butler v. Kent, 19 Johns. 228, Spencer, C. J. in discussing this principle, uses this language: “ In actions of tort it is necessary to show that the particular damages in respect to which plaintiff proceeds, must be the legal and natural consequence of the wrongful act imputed to the defendant.”

In Selleck v. Langdon & Co., 55 Hun, 26 ; 28 St. Rep. 326, the court uses this language: “In an action for an injury the court cannot go back of the proximate cause, and as between other causes preceding that, select one rather than the other upon which to permit a recovery.” Citing in support of that doctrine Selleck v. Railroad Co., 58 Mich. 195; Daniel v. Balentine, 230 O. 532; McClary R. R. Co., 3 Abb. 44; Henry v. R. R. Co., 76 Mo. 288; Ryan v. N. Y. C. R. R. Co., 35 N. Y. 210.

Wharton in work on Negligence, section 73, says: “Negligence is the judicial cause of an injury where it consists of such an act or omission on the part of a responsible human being, as in ordinary and natural sequence immediately results in such injury.”

In Lowery v. Western Union Telegraph Co., 60 N. Y. 198, Andrews, J., delivering the opinion of the court in commenting upon this rule says: “ The law ¿ í not undertake to hold a person who is chargeable with a brek of duty towards another with all the possible consequences of hi ongful act.”

“ It in general takes cognizanA T of those consequences which are the natural and probable! of the wrong complained of, and which, in the language of Po C. B., in Rigby v. Hewitt, 5 Exch. 240, may reasonably be exp.^ed to-result, under ordinary circumstances from the misconduct.”

“ Every injury is preceded by circumstances, if any one of which had been wanting the injury would not have happened. In some sense, therefore, each is a cause of the injury, but to fasten a legal .responsibility for the injury upon every person whose wrongful act, however remote therefrom, had contributed to bring about a situation or condition which made the injury possible, would be an impracticable rule, and one which, if enforced, would, in most cases, inflict a punishment wholly disproportionate to the wrong.”

In Selleck v. Langdon & Co., 55 Hun, 19 ; 28 St. Rep. 326, supra, the plaintiff sought to recover for an injury sustained by the falling of a platform, on which he was employed to work, occasioned by the prop on which the platform rested being knocked out by vehicles visiting the platform to remove coal, and the court in reversing a judgment in favor of the plaintiff, after reviewing the authorities upon this question uses this language: “ From these various authorities it may be stated, as the true and general rules, that, unless the wrong and damage are known to be usually in consequence, the damage according to the ordinary cause of events following from the wrong, they will not support an action.”

In Allen v. Atlantic & Pacific Telegraph Company, 21 Hun, 22, the plaintiff sought to recover for injury from the tailing of a telegraph pole, which was knocked down by being run against by a runaway team, although the pole was at the time somewhat decayed, and Talcott, Judge, after an exhaustive review of the authorities, sums up his opinion in the following words: “If, therefore, the proximate cause of the breaking of the pole, whereby the accident to the plaintiff was occasioned, was the collision with Chubb’s team, we do not think the defendant was liable for the consequences of the accident.”

Applying the principle of these decisions to the evidence in the case at bar as it appears in the record, we do not think it was error for the learned trial judge to dismiss the plaintiff's complaint.

We have examined the exceptions taken by the plaintiff to the rulings of the trial judge in the receipt and rejection of evidence and see no error for which this judgment should be reversed.

Judgment affirmed with costs.

Putnam, J. concurs; Herrick, J. not acting.  