
    Charles Twist, as Administrator, etc., of Edward A. Twist, Deceased, Respondent and Appellant, v. The City of Rochester, Appellant, Impleaded with Rochester Railway Company and Rochester Gas and Electric Company.
    
      Hegligence—death caused by coining in contact with a patrol wire put up by the city which had fallen upon a trolley wire —liability of the city—the act of putting up the wire not done by it in the public service — contributory negligence — notice — concurring cause — verdict.
    
    Upon each side of an avenue in the city of Rochester, poles were maintained hy the Rochester Gas and Electric Company, on which wires were strung diagonally from one side of the avenue to the other, under a contract with the city of Rochester, by which the latter reserved the right to use one cross arm upon such poles “ ‘ for any and all municipal purposes,’ and the placing of any and all telegraph or other electric wires owned or used hy it,” and to change or remove the poles where the public safety or convenience demanded it.
    After the erection of these poles, the city authorized the Rochester Railway Company to install the trolley system upon the avenue in question, the contract providing that the railway company should place guard wires to prevent the trolley wire (which was a bare copper wire and passed beneath the diagonal lines of the electric light company) from coming into contact with electric, telephone or other wires, and that the proper city authorities should have charge of the construction.
    Thereafter the city erected upon the poles of the electric light company, about three feet above the electric wires, and upon the cross arm reserved by it, a line of wires called the “ patrol line,” consisting of a bare copper wire, having no guard wires or tree supports, and which was fastened only to the insulators.
    In an action brought against the city, the electric light company and the street railway company, to recover damages resulting from the death of a young man, who, while crossing the avenue upon a dark evening, encountered a broken patrol wire, hanging within about four feet of the ground, and was instantly killed by a charge of electricity communicated to it from the trolley wire, it appeared that, more than a year prior to the accident, the city had abandoned the use of the patrol line, and had left the wire disconnected and broken, and that, upon several occasions prior to the accident, the wire had dropped into the street, on one of which occasions a horse was killed by the electric current communicated from the fallen wire. It also appeared that an employee of the railway company, who had discovered the patrol wire resting on the trolley wire, had pulled it down to the point where it struck the plaintiff’s intestate, and was preparing to remove it at the precise moment when the intestate came along. It further appeared that a storm had preceded the accident, which the defense contended was of unusual violence, while the plaintiff’s proof tended to show that it was not extraordinary for that time of the year (July), and the weather observer testified that the velocity of the wind did not exceed twenty-eight miles an hour. There was some evidence that the deceased was warned when a short distance from the wire, but that he seemed bewildered and, turning his head in the direction whence the alarm was said to have come, came in contact with the wire. There was also evidence that his hearing was slightly impaired.
    
      Held, that it could not be said that the deceased was guilty of contributory negligence as a matter of law, because early in the evening he had been advised that there was a wire down at another point on the same street, in the absence of evidence that h e knew that there was a loose or broken wire at the point where he was killed; but that the question of contributory negligence was one for the jury, and that the evidence justified a verdict in favor of the plaintiff against the city of Bochester;
    That the city of Bochester could not contend that it was not responsible for the defective construction of the patrol line, because it was used by the police department of the city, on the ground that the department was created by law for the discharge of a public duty; as the preponderance of evidence did not show that the line was constructed by the police department or its servants, but by virtue of a contract with the city, by city officers who represented it, the power of the police department to create and operate telegraph lines as an independent body not being included among those powers enumerated in the city charter;
    
      That the principle that the police are appointed by the municipality in obedience to a statute, to perform a public service, not local or corporate, and to perform a service in which the municipality has no pecuniary interest, had no application to a service performed by such officers, without authority of law, in the pecuniary interests of the corporation;
    That the city, having reserved by its contracts with its co-defendants, the railway company and the electric light company, the right to protect the city against the dangers which might result from the introduction of electricity into the street, should have enforced that right, and exercised reasonable care, under its contracts, to protect the public;
    That it was no defense that the charter of the city provided that it should not be liable for any unlawful obstruction of a roadway, unless actual notice of the unsafe condition had been given to the city officers having charge of the highways a reasonable time before the happening of such injury, as, in so far as the city was liable for the negligent construction of the patrol line and its aqts in that connection, it needed no actual notice, because it was presumed to know its own acts, and, therefore, had such notice;
    That, although the act of the employee of the railway company in pulling down the wire was doubtless the concurring cause of the accident, it could not be contended that the negligence of the city was not the proximate cause; as, had the line not fallen upon the trolley wire, the accident would not have occurred;
    That a verdict of §5,000 against the city of Rochester was not, under the circumstances, so excessive as to indicate passion or prej udice on the part of the jury.
    Appeal by the defendant, The City of Rochester, from a judgment of the Supreme Court in favor of the plaintiff as against the said defendant, entered in the office of the clerk of the county of Monroe on the 28th day of September, 1897, upon the verdict of a jury for $5,000, and also from an order entered in said clerk’s office on the 6th day of April, 1897, denying said defendant’s motion for a new trial made upon the minutes.
    Also, an appeal by the plaintiff, Charles Twist, as administrator, etc., of Edward A. Twist, deceased, from a judgment in favor of the defendant, the Rochester Gas and Electric Company, entered in said clerk’s office on the 25th day of June, 1897, upon the dismissal of the complaint as to said defendant; and also from an order entered in said clerk’s office on the 5th day of April, 1897, denying the plaintiff’s motion to set aside the direction dismissing the complaint as to the defendants the Rochester Railway Company and the Rochester Gas and Electric Company, and for a new trial made upon the minutes.
    The action was brought to recover damages for negligence in the killing of the plaintiff’s intestate by a charge of electricity from a fallen wire in Mount Hope avenue in the city of Rochester on the 15th day of July, 1892.
    
      Benjamin V. Cuningham and John F. Kinney, for the defendant, appellant.
    
      Thomas Raines, for the plaintiff, respondent.
   Ward, J.:

The city of Rochester on the 1st day of July, 1887, entered into a contract in writing with the Rochester Electric Light Company of that city, a domestic corporation which will he referred to as the “ company,” whereby the company agreed to furnish, from time to time, poles suitable for supporting its electric lamps for street lighting in the city and poles or underground conduits for its wires for transmitting electricity for such lamps at such place or places and in such numbers as the city by its common council should, from time to time during the continuance of the contract, direct; to keep the poles properly painted and to set and from time to time as might be required to change the same at its own expense under the direction of the common council and in such place or places as the common council should direct, and keep in first-class condition said lamps and all appurtenances thereto or connected with the same.

And the contract further provided as follows: The said party of the first part (the company) shall also place and at all times maintain in a good condition a suitable cross arm on each pole erected and placed by it as aforesaid at the top thereof or at such other location as may be agreed upon by the party of the first part and said common council, or in case of an underground conduit or conduits, there shall be at all times kept in a good condition a suitable space therein, and said party of the first part shall grant to the party of the second part, and its agents, the exclusive use of said cross-arm or space aforesaid free of charge at any and all times during the period thereof (the existence of the contract) for any and all municipal purposes,’, and the placing of any and all telegraph or other electric wires owned or used by it, other than for lighting and power.

“ The said party of the first part shall also, upon the requirement of the common council, immediately remove any and all of its poles after its or their use have been discontinued for three consecutive: months.”

The contract further provided that the common council should at-all times freely inspect the works, plants, dynamos, lamps, wire and. all apparatus connected therewith of the company, and the quality and condition of the wire and lamps used in and about the furnishing of such lights.

The city further agreed to take and use during the continuance of the contract at least 100 electric lights zxiápay for the sa/m.e at a rate fixed, the contract to terminate on the 1st day of July, 1892..

Pursuant to this contract, and in the year 1888, the company-erected poles along and on both sides of Mount Hope avenue, one of the most prominent streets in the city, which runs substantially north and south and near the east bank of the Genesee river and nearly parallel with a water channel called the “ feeder,” the avenue intersecting Englewood avenue (known in the case as “ Sanford street”) and Cypress street, they being on the east side of the avenue, and between these two streets occurred the death of the-plaintiffs intestate from a charge of electricity on the evening of July 15, 1892. The east bank of the feeder in the vicinity of these-intersecting streets was about 100 feet from the west side of Mount-Hope avenue. The poles erected by the electric light company were about 40 feet high. One of these poles was on the east side-of the avenue at the corner of Sanford street. Diagonally across and on the west side of the avenue was another pole nearly opposite to a structure known as the “ Clmrcli Home.” On the east side of the avenue, and further south and opposite of the premises of one J. L. Pauckner, another pole was located. On the west side of the avenue, and still further south diagonally from the last-named pole, stood a pole opposite Cypress street. The direct distance from the first to the last-named pole was about 400 feet, and the distance along the diagonal line was about 443 feet.

Prior to 1890 the Rochester City and Brighton Railway Company-had operated a street surface railroad by means of horses through Mount Hope avenue. This railroad, in March, 1890, was leased to-the. defendant the Rochester Railway Company, with all its franchises and property. In the spring of 1890, upon application, made to the common council of the city, that body granted. leave, by resolution, to the Rochester Railway Company to construct its line in the avenue, and an agreement was entered into between it and the city to change the motive power of said street railway from horses to electricity, and the Rochester Railway Company equipped its road and began its operations by the trolley system through Mount Hope avenue. It was provided that the work must be satisfactory to the proper city authorities, and when they required it the company should place guard wires to prevent the trolley wire from coming in contact, by reason of accidental breakage or otherwise, with electric, telephone or other wires; that the company should cause to be maintained sufficient electric current through the guard wires to ring a bell at the central station in the event of any wire falling or coining in contact with the guard wire, and the proper city authorities should have general charge and supervision of the kind and quality of poles to be erected, the location of the same, and the work of construction of the railway company. The railway company constructed two tracks through Mount Hope avenue with poles eighteen feet high and wires for electric currents in the street, the line of said poles passing under the diagonal lines to which we have referred. After the construction of the electric and trolley lines, and in June, 1890, there was constructed upon the poles of the electric light company, through the agency of the city, a line of wires called the “ Patrol Line.” These wires were placed upon the poles about three feet above the electric wires at the place reserved by the city for wires under the contract. There were no guard wires or tree supports constructed in connection with this patrol wire. The only fastenings were the fastenings to the insulators. The patrol wires were bare copper, Ho. 12 wires. The electric company wires were Ho. 4 electric light wires, with, as the proof tended to show, defective insulation. The trolley wires were bare Ho. 4 copper wires. On both sides of the avenue were trees of considerable size at short distances apart, the limbs of which projected into the street in the space between Sanford and Cypress streets, which interfered to a considerable extent with the electric light and patrol line. For a long time prior to the accident, and the proof seems to indicate that for more than a year, the city had abandoned the patrol line through Mount Hope avenue, along the place of the accident, but left the wires unused, at times disconnected and broken, and were using a line along the east bank of the feeder, but connecting with the avenue further south. The patrol wire along or near the place of the accident on several occasions dropped into the street. On one occasion a horse was killed by the electric current from the fallen wire. At one time a wire fell down in front of William Pauckner’s place, who had a store upon the corner of the avenue and Cypress street, which came down first about sixteen months before the accident, when the horse was killed; it came down again a few weeks before the accident, and the last time it fell Mr. Pauckner took it out of the way, burning 100 feet of it off, which he kept. The city never constructed another wire in the place of the one removed. This was one of the patrol wires; the other seems to have remained among the trees until the time of the accident. Other witnesses speak of the wire being down on other occasions prior to the accident. The condition of the wire and its falling before the accident was brought to the actual knowledge of the officers of the city who had charge of the line, and whose duty it was to protect the public in regard to it.

The plaintiff’s intestate was a son of the plaintiff, was nineteen years old, a healthy, bright, industrious young man living with his father and earning wages which he gave to his father. His only difficulty seems to have been a slight or partial deafness. He had been fifteen months in the employ of a meat market concern. On the night of the accident he had a package of meat to deliver at the Church Home. He entered the avenue by way of Clarissa street, which was north of Sanford street, and passed along the east side until he crossed over to the Church Home on the west side a few minutes before he was killed, where he delivered his package and shortly returned; the time was from half-past eight to nine o’clock in the evening, and it was quite dark, so that an object as large as a man could be seen but at a little distance. As he reached the trolley track between Sanford and Cypress streets, his neck encountered a patrol wire that had been disconnected from the pole and had descended to within about four feet of the ground, when he received a charge of electricity which caused his immediate death. This electricity was communicated to the wire from the trolley -wire. Shortly before this accident, a repair wagon in charge of two employees of the Rochester Railway Company came along and discovered the wire running from what was called “ The Church Home Pole.” It came down from a tree which involved the patrol lines and rested on the trolley wire. One of the employees pulled the wire down out of the tree to the point where it struck the deceased. There was some difficulty with the horses; the employee paused a moment, pulled on his gloves with a view of again handling the wire. - At that precise time the deceased came along and was killed. At that time the company was not running its cars on that branch of its road as repairs were in progress, but its wires were charged with electricity the same as if the cars were in operation.

At the expiration of the contract with the electric light company, a new contract was made between it and the city extending for several years. It continued in effect the relations between the parties as specified in the first contract, and in the specifications which were made a part of the contract it was provided that the poles and cross arms were to be of a kind and size, and be subject to be changed or removed whenever, in the judgment of the common council, public safety or convenience demanded the same. A storm of wind and rain preceded the accident. The defendant contended that this was a very violent storm of wind and rain, one of the worst that had ever occurred, which caused the wire to become detached from the pole, and it was not within the contemplation of the contract of the parties that the patrol line was to stand any such storm, but only the ordinary storms in that locality. The plaintiff’s proof tended to show that it was not an extraordinary storm for that time of the year (July). The weather observer testified that the velocity of the wind did not exceed twenty-eight miles per hour.

It appeared in the case that the feeder line was substantially free from trees, and was not subjected to the danger that was apparent as to the line among the trees in the avenue.

The trial court fairly submitted the issues in the case to the jury, which found for the plaintiff, and we cannot disturb their verdict as being against the weight of evidence.

The appellant, the City of Rochester, presses the point that it was not responsible for the defective construction of the patrol line because it was used by the j)oliee department of the city, and as that department is created by law for the discharge of a public duty and not for the immediate benefit of the city, the city is not liable for the negligence of the police commissioners in the construction and maintenance of the patrol wire. Citing Woodhull v. The Mayor, etc. (150 N. Y. 450), and kindred cases.

The difficulty with this contention is that the' preponderance of the evidence does not show that the line was constructed by the police department or its servants, but was done by virtue of a contract with the city and by city officers who were empowered to and did represent the city. The powers of the police department of Rochester are enumerated in the charter of the city, and the authority to create and operate telegraph lines as an independent body is not among its enumerated powers ; that power rests, under the charter, with the city alone, to be performed through the agency of departments and officers that represent the city. If it be the fact that the city permitted the police to construct this line, or to use it after it had been created, that does not bring the case within the principle claimed by the appellant.

In Woodhull v. The Mayor, etc. (supra), the action was against the cities of New York and Brooklyn for false imprisonment on account of the action of a police officer, appointed and under the control of the Brooklyn bridge trustees, as a street car was starting over the bridge. It was held that the cities were not responsible for the act of this policeman.

Other cases may be cited where it was held that the municipality was not responsible for the acts of policemen who were acting under the orders of the police department and within the scope of their police duties, and this is upon the principle that the police are appointed by the municipality in obedience to a statute to perform a public service, not local or corporate, and to perform a service in which the municipality has no pecuniary interest. But this rule and these cases have no application to a service performed by police officers without authority of law in the pecuniary interests of the corporation. In such a case, when the police officer acts, it is outside of his public duties and he becomes the servant of the municipality whose pecuniary interests he serves.

The distinguishing feature is the character of the service he performs and not the name or the title under which he performs it. The city had secured the right to put these wires upon the electric light pole for a consideration; it had agreed to take a certain number of lights and pay for them. The patrol line was the result of a business arrangement on the business side of the municipality, and it was in no sense in furtherance of a public duty. When the line was made, the city could use it for any legitimate purpose connected with its police, or otherwise, without changing the character of the thing from a private, pecuniary matter to a public one; but in highway or street cases another principle intervenes. The municipality, in such cases, is bound to use reasonable care to render the streets safe for public use and travel; and the decisions are uniform that, where a municipal corporation permits a nuisance in its streets, or commits negligent acts which result in injury to a person using the streets, the corporation is liable in damages to the person injured if he is free from contributory negligence, and cannot protect itself under the claim that its acts were so far public that it was free from responsibility. (Turner v. City of Newburgh, 109 N. Y. 301.) This duty in regard to the streets existed before the city permitted the invasion of the avenue by the Rochester Gras and Electric Company or by the Rochester Railway Company, and that duty continued with the additional care thrown upon the city as a result of introducing electricity into the street. The city had wisely reserved by its contracts with these other parties the right to protect the street as against this additional danger. It should have enforced that right and exercised reasonable care in exercising its powers under its contract to protect the public. The jury has found that it has failed to do so, and as a result the death of the intestate.

There was evidence of the defendant’s negligence sufficient to be presented to the jury in this case. Some of the facts tending to prove such negligence may be enumerated. The patrol wires were put up without sufficient guards to protect them, among the trees of the avenue, where they were liable by the swaying of the limbs to be detached from the poles and connect with the deadly currents below. There was evidence tending to show that a parallel and safer line for the patrol line could have been selected and used without difficulty. The city, when it permitted the trolley lines and the electric light lines to be constructed and continued directly under the patrol lines which were liable to be detached, must have been cognizant of the dangers of the situation and should have exercised care, both of construction and inspection, commensurate with that danger. It was guilty of gross negligence in permitting the unused patrol wires, after they had been abandoned, to fall into the street time and again, to the obvious danger of the people in the street. It is true that the current which passed through those falling wires is harmless, yet when they touched the bare wire of the trolley below or even the electric wire above the trolley wire, it became immediately charged with a deadly force, liable to produce just such a result as in this case.

But it is claimed that the city of Rochester was liable under the city charter (Laws of 1880, chap. 14, as amd: by Laws of 1890, chap. 561, § 218) which provides that: “The city of Rochester shall not be liable for any injury caused by * * * any roadway being out of repair or unlawfully obstructed * * * unless actual notice of the unsafe or dangerous condition thereof has been given to the city officers having charge of the highways a reasonable time before the happening of any such injury.” (Citing Smith v. The City of Rochester, 79 Hun, 174; affd., 150 N. Y. 581.)

In so far as the city is liable for the negligent construction of the patrol line or the other negligent acts and neglect of duty to which Ave have referred, the city needs no actual notice, because it is presumed to know its OAvn acts and, therefore, has actual notice. As to its notice of the falling of the wire prior to the accident, Mr. Barnes, the superintendent representing the city and Avho had charge of the lines, and whose duty it was to see that it Avas kept in good condition, had actual notice. He testified that he remembered three occasions where the line had been broken down by one means or another within two years preceding the accident. (Stedman v. City of Rome, 88 Hun, 279 ; Riddle, v. Village of Westfield, 65 id. 433 ; Wilson v. City of Troy, 135 N. Y. 102; Turner v. City of Newburgh, 109 id. 301.)

The learned counsel for the appellant strenuously contends that there should have been no recovery because the deceased was guilty of contributory negligence. This objection is best answered by the charge of the learned trial judge upon that subject. After stating that it was incumbent upon the plaintiff to satisfy the jury by a fair preponderance of evidence that Edward Twist was not, himself, careless and did not contribute to his death; that it he Avent upon the street knowing that this wire was there and walked into it carelessly and met his death, no recovery could he had. Then the court proceeds: “ The case shows that at an earlier part of the evening than the time when .the accident occurred Edward Twist was near the corner of Clarissa street and there saw boys playing with a broken wire, and that he knew there was a broken wire at that point. There is no evidence that he knew there was a loose or broken wire above (north) the Sanford street pole. It seems that later this wire was down between the Sanford street pole and ■the Church Home pole, which was the wire with which Edward Twist came in contact and which caused his death. It appears that he was engaged in an occupation which required him to be in the street. He had a package of meat to be delivered, and the inference is fair that it was to be delivered at the Church Home; that he went there and on his return he came in contact with this wire and fell to the ground, and he was taken up dead. There is evidence tending to show that a warning was given, some of the witnesses say he was almost upon the wire when the cry came, and that he seemed to be bewildered and turning his head toward the west side of the avenue, from which side some of the evidence tends to show the alarm came, and he carne in contact with the wire. There is evidence from other witnesses that he was farther from the wire when the warning was given. There is also evidence that his hearing was impaired. If he did not hear the warning or if he was confused and in that way ran into the wire unconsciously, not knowing it was there, he would not be guilty of contributory negligence.

“ Upon all this evidence you will determine whether he was prudent and cautious in crossing the street, and what knowledge he had of the danger he was going into. If he was not aware of this danger and he was using proper care, you will find upon that branch of the case in favor of the plaintiff.”

The judge might well have added that the night was so dark that he could not see this little wire until he was close upon it; that at the time he was advised that the wire was down in the early part of the evening at another place when the boys were playing with it, he expressed a wish that no one would get killed with it.

The question of contributory negligence was plainly for the jury.

It is also contended by the appellant that the negligence of the city was not the proximate cause of the injury; that the wire when it broke only fell across the trolley wire and did not reach down to the street, and it would not have come in contact with the deceased had not the railway company and its employees pulled the wire down. There is no doubt but that the act of the employees was a concurring cause of the accident, but had not the line fallen u]3on the trolley wire, having been disconnected from the pole for want of proper construction or want of due care on the part of the city, the accident would not have occurred, coming within the principle that where an injury is the combined result of the negligence of the defendant, and an accident for which neither the plaintiff nor the defendant is responsible, the defendant must pay damages unless the injury would have happened had he not been negligent. (Thomp. Neg. 1085, § 3; Quill v. The Empire State Telephone & Telegraph Company, 92 Hun, 539; Laible v. The New York Central & H. R. R. R. Co., 13 App. Div. 574.)

In the Quill case the plaintiff was injured by the fall of an insulator from the defendant’s telephone pole. The insulator, although not properly secured, would not have fallen had it not been knocked off by a third person for whose acts the defendant was not responsible, nor would the acts of such third person have knocked it off had it been securely attached. Held, that both the defective attachment of the insulator and the act of the third person were the proximate causes of the accident, and it might, therefore, be attributed to either or both of them.

The appellant complains of the charge of the court as follows: It was error to charge that the city of Rochester was bound to remove its wires to another place, and that it should have originally constructed it in a different place.” Evidently referring to the feeder bank line.

The counsel has misapprehended the charge of the court in that regard.

The court said : “ How, if you find that this was a dangerous place by reason of the proximity of the trees, or for any other reason, in which to construct this patrol line, and that it could have been avoided without difficulty. If the city could have constructed the line originally in another place, or if, after the trolley line had been constructed, it could have changed the line to another place without difficulty, it was bound to do so, if the place where it was constructed was dangerous to human life and it could have been avoided without difficulty, and if a line constructed on the Feeder Bank was practicable, the city was bound to use that and avoid this danger. It is for you to say whether the falling of this wire upon the trolley-wires was a danger that was to be apprehended, and if it was, and this danger could have been avoided, that should have been done.”

At the close of the charge the counsel for the defendant asked the court to charge “ that the city had the right to construct this line on Mt. Hope avenue, and was only chargeable for negligence in the construction or maintainance of the same.”

The court so charged, and, taking the two charges together, there was no error. .

At the close of the evidence the trial court dismissed the complaint as to the Rochester Railway Company and the Rochester Gas and Electric Company, that were joined as defendants with the city of Rochester, and refused to dismiss as to the city. The counsel for the city, however, asked the court to let the case go to the jury as to the negligence of the other defendants, which was refused, and the exception to such refusal is urged here as a ground of reversal.

This point is without merit.

Finally the appellant claims that the damages were excessive. The verdict was $5,000. The statute permitted the jury to render a verdict up to that amount. The appellate court should only interfere with it where the amount is so excessive as to indicate jDassion or prejudice on the part of the jury or greatly beyond any possible loss that could have come to the next of kin. It is unnecessary to review the cases upon this subject. ’We are of opinion that this point is not well taken.

Ho exceptions are presented taken upon the trial upon the reception or rejection of evidence.

We find no reversible error in the points presented by the appellant, and the judgment and order appealed from should be affirmed.

Judgment and order affirmed, with costs, on an opinion prepared by Ward, J., in which all concurred, except Adams, J., not sitting.  