
    CITY OF ALBANY v. WATERVLIET TURNPIKE & R. CO.
    (Supreme Court, General Term, Third Department.
    February 13, 1894.)
    Damages—Proximate Cause—Electric Wires.
    Where telegraph wires thrown down by a storm rested on the trolley wire of an electric railroad, and plaintiff’s horses were injured by the electric current received by the telegraph wire from the trolley wire, the proximate cause of the injury was the falling of the telegraph wire.
    Appeal from circuit court, Albany county.
    Action by the city of Albany against the Watervliet Turnpike & Railroad Company to recover damages for the alleged negligence of defendant in the construction and operation of its trolley for the propulsion of electric cars. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM and HEEEICK, JJ.
    John A. Delehanty, for appellant.
    Marcus T. Hun, for respondent.
   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 trolley 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 trolley wire of the defendant’s railway, and also the trolley wire of the Albany Railway 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 streets, in said city; and such broken or detached telephone or telegraph wires fell upon the trolley wire of one of these railroads at or near their point of intersection, by means of which 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 trolleys 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 trolley 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 trolley 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 currrent to the horses directly from the Tiorses to the defendant’s trolley 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 trolley and span wires, and the testimony of Hawley and McNamara tends 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 trolley or span wires; and in such case it is for the jury to decide. Hart v. Bridge Co., 80 N. Y. 622; Bernhard v. Railroad Co., 32 Barb. 165, affirmed in 1 Abb. Dec. 131.

But if the jury had found that the current which caused the injur; proceeded or was diverted from the defendant’s trolley 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 a motive power or energy upon the single-trolley 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 precautionary measure suggested by the evidence is by suspending a guard wire over the trofley 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-trolley 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 trolley wire, and thence on the plaintiff’s horses, and thus communicated a deadly current to the horses, so long as the trolley, 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 telegraph or telephone wire upon the live trolley wire of one or the other of these lines of railroad. Had not that occurred, there is no claim that the electricity from the trolley wire of the defendant’s railroad could have communicated with or injured the plaintiff’s horses. The construction and operation of the defendant’s railroad by a single-trolley power was not the direct, necessary, and natural cause of the injury complained of. But for the occurrence 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. J. Langdon & Co., 55 Hun, 26, 8 N. Y. Supp. 573, 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. Railway Co., 58 Mich. 195, 24 N. W. 774; Daniels v. Ballentine, 23 Ohio St. 532; McClary v. Railroad Co., 3 Neb. 44; Henry v. Railroad Co., 76 Mo. 288; Ryan v. Railroad Co., 35 N. Y. 210.

Wharton, in his 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. Telegraph Co., 60 N. Y. 198, Andrews, J., in delivering the opinion of the court, in commenting upon this rule says:

“The law does not undertake to hold a person who is chargeable with a breach of duty towards another with all the possible consequences of his wrongfui act. It, in general, takes cognizance only of those consequences which are the natural and probable result of the wrong complained of, and which, in the language of Pollock, C. B., in Rigby v. Hewitt, 5 Exch. 240, may reasonably be expected to result, under ordinary circumstances, from the misconduct. Every injury is preceded by circumstances, if any one of which liad 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. J. Langdon & Co., 55 Hun, 26, 8 N. Y. Supp. 573, 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 guiding rule, that unless the wrong and damage are known to be usually in consequence,—the damage, according to the ordinary course of events, following from the wrong,—they will not support an action."

In Allen v. Telegraph Co., 21 Hun, 22, the plaintiff sought to recover for injury from the falling 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, J., 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 Ohubb’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.  