
    Chace Trucking Company, Respondent, v. Richmond Light and Railroad Company, Appellant.
    First Department,
    July 10, 1916.
    Street railways — electricity—horses killed by electric shock — pile-driver being moved through street coming in contact with trolley wire — company under no duty to raise wires so as to insure safe passage thereunder.
    In an action by a trucking company to recover for the loss of horses it appeared that the plaintiff’s servants in charge of a truck on which they were moving a piledriver while passing along a street had been warned by defendant’s servants to keep to the right so as to avoid the feed wire over the tracks in the center of the street but that disregarding said warning they swung toward the center of the street in order to round a corner and the top of the piledriver came in contact with the feed wire electrocuting four of the horses. The defendant had not undertaken the responsibility of securing a safe passage for the truck through the street and under its wires but had merely sent its wrecking crew to aid the plaintiff and to see that the truck did not interfere with or injure the wires. Evidence examined, and held, that a judgment in favor of the plaintiff should be reversed and the complaint dismissed.
    As the defendant’s wires were rightfully strung over the street and were not negligently maintained or operated, it was under no obligation to raise them so as to insure the safe passage of the truck.
    Appeal by the defendant, Richmond Light and 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 New York on the 22d day of January, 1916, upon the verdict of a jury for $625, and also from an order entered in said clerk’s office on the 11th day of January, 1916, denying defendant’s motion for a new trial made upon the minutes.
    
      Guy 0. Walser, for the appellant.
    
      Henry Waldman, for the respondent.
   Davis, J.:

The plaintiff recovered a judgment for $778.81 damages for the loss of four horses.

Plaintiff was in the trucking business and was engaged in moving a certain piledriver from a pier at Clifton, S. I., to the works of the New York and Richmond Gas Company, at Stapleton, on February 23, 1909. For this purpose the plaintiff used two trucks and sixteen horses. The route followed in moving this piledriver was partly along Canal street to its intersection with Bay street, and thence along Bay street to the place of the accident. The defendant at that time was operating a two-track trolley line with overhead wires on Bay street. The feed wires with which the trolley car poles make connection are supported in position by span wires which in turn are attached to wooden poles at the side of the street. The feed wires are insulated from the span wires and the span wires carry an insulator before reaching' the pole. Owing to the weight and tension of the wires there is a sag near the feed wires over the center of the street, and thus there is a greater overhead clearance at the side of the street than in the middle.

On the day in question the truck carrying the piledriver was in charge of the plaintiff’s own employees. As the truck proceeded along its route the defendant’s employees followed with it accompanied by its emergency tower wagon. The overhead feed wires are strung over the center of the street. The top of the piledriver as it lay upon the truck was sixteen feet two inches from the street surface. While on Bay street, near Vanderbilt avenue, the piledriver came in contact with the defendant’s electric feed wire with the result that the electric current passed through the bodies of four of plaintiff’s horses which were hauling the piledriver, killing them, and injuring four other horses, and to recover this damage this action was brought.

Andrew Hazelgreen for the plaintiff testified that he was foreman of the plaintiff and had charge of the men and horses engaged in transporting this piledriver; that he had sixteen horses in all attached to the truck with five men aiding him; that they drove ' along until they reached Bay street; that they were accompanied by the wrecking wagon of the Richmond Light and Power Company; that the man in charge of the wrecking wagon said that they were there to protect the plaintiff and to take care of the wires, and that he told the witness to keep to the right all the way down; that the wrecking wagon was right alongside plaintiff’s truck; that as they arrived at or near the trolley wires the wrecking crew raised the wires for them to pass under, the foreman of the wrecking crew telling them to go ahead and keep to the right, that everything was all right; that they then proceeded to Bay street on an up-grade, and got to a point where there was a big tree, with branches stretching out to the center wire; at the top of the hill they stopped and there was a bend in the road there; that at this point the foreman of the wrecking wagon said that everything was all right if they would keep to the right; this witness then stated as follows: “I said, ‘Now, this is going to turn around either one end or the other and strike that wire just as sure as you live when you are going down that hill.’ ” He said: ££ No, it ain’t. We are here. We will raise the wire up for you.” The witness further testified that at that point a clearance from the ground to the wire of about fifteen feet was needed, and the clearance looked to him to be fifteen feet. When the foreman told him that he was there and would raise the wires the witness said that during his conversation with the foreman, the foreman said: ££ Everything is all right; go.ahead.” The witness then testified that they used a little judgment before starting arid consulted with one another, and the wrecking crew told them to go ahead, that they were there and would protect them; that they started off keeping to the right and went right into the tree; that after going about fifteen feet the horses commenced to stumble; they went down one after another; there were flashes, hair burning, and thereupon the wrecking crew came over and raised the wire up; that there was a curve right at the point where the accident happened. The witness said he did not know the distance between the trolley wires and the street, although the top of the piledriver was sixteen feet two inches from the ground, and that he told the foreman of the wrecking crew that such was the distance. On cross-examination the witness said that after the accident the forward wheel was near the trolley track and that the left rear wheel was four feet from the track; that the right wheel was about threó feet away from the curb and that the front right wheel was six feet from the curb; the witness did not see the trolley wire come in contact with the derrick at any place; that the team swung to the left in order to get away from the curb and that this happened at the moment of contact; the witness testified that the space between the curb and the nearest rail was ten or twelve feet. He further said that the foreman of the wrecking crew said it was all right, go ahead, and that he, the witness, then called his drivers together and consulted them, but they passed no opinion about it. Then the witness was asked this question: “Q. They did not say anything ? A. They didn’t think it right for to go under there.” The witness further said that he did not know anything about wires and did not know that if the truck came in contact with the feed wire there would be trouble. Then he changed this answer and said that he knew there would be trouble in that case. On redirect examination the witness said that the truck had to swing out from the curb to get away from the curb and the tree on account of the branches.

William Nelson, for the plaintiff, stated that he was a teamster and helped in driving the plaintiff’s truck at the time of the accident and that they got orders- to go ahead when they were on top of the hill at Bay street, the foreman of the defendant telling him to keep to the right, and that on account of the tree they had to swing the horses into the car track; that they could not be driven without swinging over to the car track on account of the bend in the road; that they went about fifteen feet and then the horses fell down; at this time one of the rear wheels of the truck was on the car track and the right-hand rear wheel was about four feet from the curb and the truck was catty-cornered across the road.

Hugh Perry, for the plaintiff, testified that he was a driver working on the truck on the day of the accident and was seated on top; at the top of the hill on Bay street they came to a halt; he got word from the man in charge of the truck that everything was all right and they started down the hill near the curb; there was a tree there whose branches extended part of the way into the roadway as far as the wires; in order to clear it the truck had to swing out toward the tracks a little bit; that in turning the curb he swung his horses partly in the track and straddled the track part way until he got around the bend; he was driving eight horses at this time; he testified also that at the time of the accident one forward wheel was on the track and the other was astraddle of the two tracks on the left-hand side and the top of the piledriver was almost even with the center wire between the rails.

Walter Fisher, another driver, testified that he was driving the truck which was in the rear, which truck was used as a sort of anchor going down grade and his truck was attached to the back of the other truck; that they went about fifteen feet and all the horses fell down and he saw a flash of lightning on the derrick and at that time the derrick was in the track just after making the turn; that they swung the truck out to clear the branches of a tree. At the time of the accident the front wheels of the forward truck were in the track and the hind wheels also; his truck was just behind with two wheels in the track.

Patrick Reilly testified for the defendant that he was in charge of the emergency crew of the defendant on the day in question; that he was present to look after the wires and see that the plaintiff did no damage to them; that he saw there a Hr. Crawford, superintendent of the Raymond Construction Company, the owner of the piledriver; Crawford told him the direction the truck was to take; when the witness first saw the truck it had not yet reached Bay street; before the truck got on Bay street the wires were raised so that the truck could get to the right-hand side of the street; when the horses got on Bay street the horses went up on a fast walk or run with the men alongside them and the tower wagon was behind them. The witness testified that he warned the drivers to keep to the right at the top of the hill on Bay street; the track stopped when it reached the hill and they fastened another truck behind the one with the derrick; that he told the foreman of the plaintiff that the wires were not high enough for the thing to go by and he would have to keep to the right; there was plenty of clearance at the right; at the point of the accident the rear end of the derrick at the top came in contact with the wire. On cross-examination Reilly said that he was instructed to go down to the place and take care of the trolley wires to protect them against damage to them by the truck. The witness said that he told the plaintiff’s people that the wires were not high enough and that there was another route which they should take and that if they would give him about two or two and a half hours he would raise the wires out of the way so that they could get by without danger; that they were in a hurry and would not wait; that he told the foreman in charge of the truck the amount of clearance and that the truck would not pass under the wire; that they would have to keep to the right away from the wire if they expected to get through; as they went up Bay street, the witness went along with them with the tower wagon telling plaintiff’s driver to keep to the right or there would be danger; that he did not raise the wires at this point because they would not wait for him to raise them.

Daniel Stoddard testified that he was in the employ of defendant and was present at the time of the accident; that when the truck stopped at the top of the hill it was between the rail and the curb on the right-hand side; that there was fifteen to eighteen feet space there; that the top of the pile-driver on the truck' extended higher than the trolley wire; that the truck could not be driven in the track without touching the trolley wire; that the drivers were instructed a dozen times to keep to the right. On cross-examination he said they kept to the right until they got going down the hill when they did not keep to the right because the truck was going too fast and they could not hold it back; they pulled their lead teams out; they went down the hill about one hundred and fifty feet and then the accident occurred.

Calvin O’Brien also testified that he was a member of defendant’s emergency crew on the day in question and at the time of the accident the rear end of the piledfiver touched the trolley wire; this end was the highest point of the whole outfit; that as they were going down hill he saw the wire come in contact when they started to swing out; he saw they were going to swing out and were going to hit the wire; he heard the drivers told that the wires were dangerous and they should keep out from under them.

Upon this evidence the plaintiff recovered a judgment which we think should he reversed. There is no evidence whatever that the defendant undertook the responsibility of securing a safe passage for this truck through the street and under its wires. It was under no obligation to raise its wires so as to insure the safe passage of the truck. It is quite true that pursuant to a notice that the truck was to pass the defendant had its wrecking crew on hand to lend what aid it could and to protect the truck so far as it could; but it is also clear that the primary purpose of their being there was to see that the truck did not interfere wither injure defendant’s wires. Thus there is no evidence that the accident was caused through any negligence of the defendant. Its wires were rightfully strung over the street and they were not negligently maintained or operated. The evidence shows that the plaintiff’s servants in charge of the truck were careless and negligent both in selecting a route and in driving upon the route as they did. Presumably they were men of intelligence and could easily see and appreciate the danger of allowing the load on the truck to come in contact with a live trolley wire. They were constantly warned to keep to the right of the road where the clearance was sufficient to enable them to pass without touching the wire, hut notwithstanding these warnings, in order to pass an exceedingly dangerous point in the road at the curve at the top of’ Bay street, they swung their horses and their truck onto the car track out of the roadway, so that the highest point of the derrick came in contact with the feed wire, and in this way the accident was caused. Obviously the accident was caused through the want of care on the part of plaintiff’s servants in going around this curve. The evidence shows that they appreciated the danger, but notwithstanding this they went on. With the danger thus imminent and obvious they were bound to stop rather than risk the danger by proceeding. Instead of doing this they took the risk, went on and the accident happened — not through any fault of the defendant, but through their own fault.

The judgment and order should be reversed, with costs, and the complaint dismissed, with costs-.

Clarke, P. J., McLaughlin, Scott and Dowling, JJ., concurred.

Judgment and order reversed, with costs, and complaint dismissed, with costs.  