
    ELECTROLYSIS — STREET RAILWAYS — MUNICIPAL CORPORATIONS,
    [Montgomery (2nd) Circuit Court,
    December 22, 1904.]
    Sullivan, Wilson and Dustin, JJ.
    
      Dayton v. City Railway Co.
    1. Street Railway Company Only Liable for Actual Negligence in Opekatinq Trolley System.
    A street railway company wbicb is operating with, a single trolley system, under ’a franchise granted by the municipality, is only liable for damages resulting from its actual negligence m the use of such system.' The municipality will be held, in granting such franchise, to have contemplated and condoned by anticipation any mischief arising from the reasonable use of such system.
    
      2. Equity Will not Compel Electric Railway Company to Change its System, When.
    Where there is a sharp conflict in the evidence, including the testimony oí expert witnesses, as to whether or not the present system under which an electric street railway company is operating is a proper system, a case is not presented which will authorize a court of equity in requiring the company to change to another system.
    2. Negligence or Others no Defense to Party Sued, etc.
    The fact that other electric street railway companies operating within a municipality by the same system are partly responsible for injury resulting to the city’s water pipes from electrolysis, constitutes no defense to the company against whom the action is brought.
    t. Injunction to Restrain Street Railway Company From Allowing Electricity to Come in Contact With City Water Pipes.
    Injunction will lie, at the suit of a municipality, to restrain an electric ■ street railway company from operating its system in such manner as to allow its electricity to escape into the ground and come in contact with and injure the waterpipes of the municipality.
    Appeal from Montgomery common pleas court.
    E. P. Matthews, city solicitor, for plaintiff.
    McMahon & McMahon, for defendant.
    
      
       Affirming, on appeal, Dayton v. Railway, 12 Dec. 258.
    
   SULLIVAN, J.

This cause was at a former term heard upon the transcript of the testimony taken in the court below and depositions taken upon the appeal.

Omitting the several averments of the petition admitted by the defendant, those controverted by the defendant, stated substantially, are as follows:

That the railway company has not furnished a metallic circuit, for the return, to the power house of the electricity having been used to propel its cars, and hence the current is thus left to return as best it can. It escapes from the rails to the earth, and a division of the current takes piase, the water pipes of the city receiving a part.

That the railway company so imperfectly and inefficiently connected the rails of its tracks, that the return current, in a number of places, leaves the rails, escapes into the earth and to the water pipes of the city, and thence back to the earth or rails. That at the points where the return current quits the water pipes, returning to the earth or to the rails, the pipes are decomposed, the metal of the pipe removed, and then is left simply the soft material of the chemical compound constituting the pipes. By this action the pipes in some instances have been perforated with holes, at other points split, and in some instances wholly ruined, and in eve^y case weakened.

' That the city has already been compelled to dig up and replace by new pipe, at a number of places, where the pipes have been destroyed or so weakened by the action of the return current as described, as to' render them unsafe and inefficient to carry the water, and especially under the pressure necessary in case of conflagration. That the injury is still being done and will continue unless the railway company is required to adopt some method to prevent it, and hence is a constant, menace to its own property and the lives and property of its citizens.

That points where this damage is being done and the extent of it are not accurately known to the city, and cannot be known without, digging up all of its pipes; hitherto notice of the injury being done has been brought to the city by leaks from the breaks, and hence not until the damage in such instances was completed. That the injury, il continued, will still be greater, and that it is within the power of the railway company to adopt methods for the return of the electric current after use that will wholly prevent its continuance. That the city advised the railway company of the injuries done and of their continuance, and of the city’s inability to do anything to prevent them, and demanded of the railway company that it adopt methods known to it to prevent them. But the railway company has taken no steps and still neglects, to adopt some method to prevent the injury being done; that the city is-without an adequate remedy at law and therefore prays that a mandatory injunction may issue commanding the railroad company to adopt such methods as will wholly prevent the injuries to the water pipes of the city set forth in its petition.

The railway company in its answer sets forth two defenses:

First, it denies that the rails of its track are not perfectly connected or bonded, avers that it has adopted and keeps in use the best known systems as they are invented. As to whether the decomposition of the water pipes takes place by the action of its return current, as averred in the petition, it has no knowledge, and therefore denies that it does.

It denies that it can adopt any system to prevent such action of its return current without the concurrence of the city; denies that it knowingly or purposely uses the water pipes of the city for such purposes, or that the city has ever proposed any plan to remedy the evil.

The second defense sets forth that it purchased the Dayton street-railroad and Fifth street railroad in 1893, being two systems of street-railway theretofore operated in said city by horse power, setting forth the grants to the respective companies, to be found in the several ordinances .as set forth in this defense, also the ordinances extending the grants to these respective railway companies to use trolley, storage electric, or cable motor power, for the purpose of propelling its ears; that these several ordinances constituted the contract between the defendant and the city; that the defendant, having acquired by purchaser both lines of railway in pursuance of the grants to said respective companies, in the year 1894 equipped its lines so as to operate with electricity, and since that time has operated its railway by what is known as the single overhead trolley; that the equipment of its road with this; system was done under the supervision of the proper officials of the city,, and all was done with the knowledge, acquiescence and approval of the’ city authorities; that the essential part of this system was the use of the-rails to carry the current back to the powerhouse, and the only system in use in the United States, and at the time was regarded as the only practical system for the operation of electrical railways. It was more-economical and much simpler than any other known system, les® dangerous to employes, indorsed by the Supereme Court of the state, and had the approval of scientific and practical men throughout the country; and in the city of Dayton the street railway known as the "White Line had been in operation under'the same system theretofore for the period of seven years.

It is averred in this second defense, since the grants to the defendant and the equipment of its lines with the single trolley, the city has granted to other street railways companies the use of its streets to construct and operate street railways with the same system for the application of electricity as a motive power — nine in number — with power houses within the city, the lines of which railways cross and intersect with those of the defendant and each other.

Its legal obligation to use reasonable care to prevent the electricity escaping from its rails to the water pipes of the city is admitted, but it avers it has exercised such care and diligence.

It is also averred that it proposed a method of protection and to remedy the claimed mischief to the city officials, but this proposition was declined, and none was ever proposed or suggested by the city. That the petition of the city does not inform the defendant what system the court should compel the defendant to adopt.

The defendant admits knowledge of the system of double trolley being in use in the cities of Cincinnati and New York, and the conduit system in the city of Washington, District of Columbia, but claims that the adoption of either system would not obviate the danger or protect the water pipes of the city, so long as the other street railways in the city mentioned operate with the single trolley. It claims that the conduit system is impracticable and that the double trolley would involve an outlay of a very large sum of money, in the reconstruction of its road, so as to receive such equipment, largely increase the operating expenses of its road, largely increase the danger to its employes, requiring the use of so large a number of additional wires as to greatly increase the difficulty of handling fires.

In this defense the railway company avers that there are various methods by which the city can protect itself, and the danger can be entirely obviated if the city would act in concern with the defendant, which the defendant is willing to do. It knows of no way by its own action to prevent the electricity used by it from escaping except to keep its tracks in good repair and property bonded. It claims to have always done this and is ready always so to do. That in locating the tracks of the city railway, as well as its water pipes and connections, any effort to prevent the escape of the cement would be entirely futile.

The defendant claims in this defense that the several ordinances constituting the contract between it and the city, and in pursuance thereof, the city through its official supervised the construction of its road to be equipped and the equipment of its .road with the single overhead trolley, and the same being approved and acquiesced in by the city officials, and relying thereon it expended large sums of money in the construction of its road to receive said equipment and in equipping the same therewith; that by the contract it had the right to the use of its rails as a return current. The city not having repudiated its contract, this court is without authority to compel the railway company to make any change in the construction and equipment of its road. It further avers that the city has not in any of its departments taken any action requiring the change, and the railway company would be without power to make any change without permission of the city, even though this court might make such an order.

In conclusion it avers that so much of the plaintiff’s. petition as prays that the railway company may be compelled to adopt some new system, this court is without jurisdiction, such action being legislative and not judicial.

The railway company, renewing its assurance that it is ready at all times to perform its whole duty under the contracts, between it and the city, prays that it may go hence without day and have its costs.

The city in its reply to the first defense denies all allegations therein contained, and for reply to the second defense denies that the single trolley system was in successful use in the city prior to the defendant’s operating its road by the single trolley so far as affecting the property of the city was concerned; denies that any of the grants were for single trolley. Avers that tbe grants were general, to use animal, electrical or cable power, and unless implied in tbis general grant tbe defendant bas no authority to use tbe single trolley; that tbeir general grants to the railway company tbe city did not intend nor did it authorize tbe railway company to use tbe single trolley or any other system that would damage tbe property of tbe city or its citizens. Tbe city avers that tbe railway company bad known for six years that tbe single trolley system interfered with the water pipes; that the electricity escaping from tbe rails of its tracks caused tbe injury of which tbe city complains, but continued the use of tbe system and refused to take any steps to prevent further damage. That tbe railway company at tbe time it equipped its road with tbe single trolley knew that a portion of tbe current used by it would pass from the rails to tbe earth and return along tbe water pipes.

Tbe city admits that there was a conference between its officials with tbe defendant and other street railway companies within tbe city; but avers that tbe defendant and tbe other companies only offered to make certain metallic connections between the water pipes and the power bouses, but because such connections would not prevent injury to tbe water pipes of tbe city or remove tbe mischief, tbe city decided to have it done and at tbe same time urged and insisted that tbe defendant and tbe other companies should adopt and use tbe double trolley. That whilst believing that tbe double trolley would prevent tbe injury being done, yet tbe city would be satisfied with any other system that would render the pipes immune, that would not obstruct the streets or do damage to the city’s property or that of its citizens; avers that at the time of filing tbe petition in this case suits were also instituted against tbe other street railways in tbe city using tbe single trolley system.

It then avers that no action on part of tbe board of city affairs or the city council is necessary to authorize tbe suit brought; but that tbe officers of tbe city have not only requested but demanded of the defendant that tbe method of operating its road be so changed and modified that no further damage will result to the water pipes of the city, to its property, or to tbe property of its citizens, and upon failure to do so that suit be brought against defendant to compel it to comply with the grant and use electricity as a motive power in such a way as not to endanger tbe property of the city or its citizens. It then sets forth the necessity of waterworks for tbe protection of the city, property and the lives and property of its citizens in all the streets occupied by the defendant; that the water pipes were in most of the streets before the railway of the defendant was established and constructed, and avers that it is not possible for the defendant in the use of any bonds known to exist to prevent the current escaping from the rails to the earth and thence to the water pipes so long as defendant uses the single trolley system.

It then denies each and every allegation of the railway company’s second defense not specially admitted in the reply, and renews the prayer of its petition.

The railway company contends that the city could not appeal to the courts to give it relief by a change of system without first, having by proper authorities passed proper ordinances ordering a change in the system with permission to the defendant to do the things necessary to accomplish a change.

If the change demanded was definitely specified in the ordinance and not complied with, then action could be brought to compel a change if the council had the power to order a change.

All the city did was to pass a resolution authorizing a suit to compel some system that would not damage the pipes. With nothing more the defendant contends that the court cannot grant the relief for it, without authority in the absence of such legislation by the city to order a change, though a state of facts was shown that a change should be made. The defendant in asserting this proposition assumes that the city by this action is seeking a change in the contract between it and the city, whilst it is the contention of the city that the action is to require the railway company to carry out its contract. The city admits that the grant to the railway company to use electricity as a motive power, is general in its terms, no system being named, but under the grant the railway company was not given the right to use the underlying earth or the use of the water pipes of the city as a part of the! railway operations, and hence the suit is to prevent the railway company, under the grant to it, to use the property of the city in the operation of its railway and thereby injure and destroy the property, and, if a change to the double trolley or some other system is necessary for that purpose, the court should order it done. That the demand of the city that the railway company adopt some system that will prevent the electric current, or its return to the power house of the company, escaping to and using the water pipes of the city as a return path, is simply asking that it be required to comply with the implied terms of the grant, and not asking the court to exercise police powers and, hence, no legislation by the city is necessary for such action, as full authority is found in the statute authorizing it. The relief, if any, the city may be entitled to, arises upon the proof in the case. The testi.mony, taken upon tbe issues beween parties and presented here upon transcript and depositions, covers some three thousand pages of typewritten matter — too voluminous to be set out in detail in this ■opinion, and, therefore, we shall not attempt to do more than make occasional reference to particular parts of it bearing directly upon facts ■we think proven by it.

At the time the defendant equipped its road with the single overhead trolley was thought to be, and so pronounced, by persons experienced in the use of electricity as a motive power for the operation of •street railways, as compared at least with the double trolley, the more simple, less liable to disarrangement,, muqh cheaper, less liable to accident in blockading cars and less dangerous to its employes, and the most approved. There was but one road in the United States operated by the double trolley. It was contemplated by the parties at the time that, in the application of the current as a motive power, poles and wires were to be used, as the grant specifies the kind of-poles, the distance the same were to be set apart and that the location of the same was to. be decided by the city’s engineer.

It also provided how high above the surface of the streets the wires used to convey the current to the cars should be suspended. Therefore, it was contemplated that the equipment was to be a trolley system. Part of the process of equipment was to be under the supervision of the city’s engineer. The work proceeded and was of a character that necessarily required personal observation of the authorized officials of the city during its progress. The streets were torn up and their use by travelers necessarily at times interferred with, and the material necessary to the equipment by a single trolley placed upon the streets in plain view, and at the time, and, since the equipment of the defendant’s road, several other street railways within the city, under •special grants of the city, have been equipped with, and are now operated by, the same system. The White Line began operating with' the same system in 1888, and in 1893 injury by electrolysis to lead •service pipes was discovered. The testimony does not show that this injury was due to the system; in fact, it does not seem to have attracted much attention.

In September, 1893, a representative of the waterworks was sent by the city to a convention of the American waterworks, held at the city of Milwaukee, where electrolysis to water pipes was discussed. Whether the discussion included observations made where single trolley systems were in use, the testimony does not show. If it did, this representative does not seem to have been impressed with any claims made that it would occur where such system was used or he failed to convince the waterworks board that electrolysis to the pipes was likely to occur; for, in the year 1894, the railway company, partly under the supervision of the city’s officials and under the observation of all, as. above stated, equipped its road with that system.

These facts are fully established by the testimony and prove, as. we think, that the grant was for the single overhead trolley.

The testimony shows that it was then known to the parties that a eonstitutent part of his system was the use of the ground circuit and that portions of the current are unavoidably diverted through whatever conductors are in proximity, having themselves grounded circuits, returning to the source in which it originated. What, if any, injury would result by electrolysis, or whether it would occur in any such proximate conductors, was not known by the parties. The testimony shows that a sufficient quantity of the current, on its return to the power house of the company, is diverted to the water pipes of the city to injure them and, in some instances, destroy them.

The lines of the defendant’s railway at several points within the city, cross steam roads and also street railways operated by electric motive power, also cross the Miami river at two different points, one on a bridge part wood and part iron, and the other on a bridge solely of iron. At other points they cross streets 'where hoist bridges are used. All these present serious difficulties to be overcome in providing for the return current. Some of the bridges will not permit the use of the standard rail on account of the structure of the bridge being light. The unavoidable shaking of the bridges by the passage of the cars makes it impossible to perfectly bon'd the rails; and, at the intersections and crossing of other roads, the pounding of the passing cars upon the intersecting joints makes it very difficult to maintain perfect connection at such points for the return current, and all these difficulties tend to increase the resistance of the rail path and facilitate a diversion of the current to other conductors.

The decided weight of the testimony in the case shows that the bounding of the entire road of the defendant is not only inadequate, but very poor, and very far below the present standard of the art, and, as we have already seen from testimony, this to a very great extent raises the resistance of the rail path, facilitating a diversion of the current to proximate conductors and, where the water pipes of the city are in proximity to the rail, they receive a portion of the diverted current. It is undisputed that the return feeders in use at the bridges, across the river at points already named are not sufficient to prevent a diversion of tbe current at those points, and that the use of ground plates for the return current has been wholly inefficient and has been almost universally abandoned. It is also undisputed, if these several pnrmissions were supplied and the difficulties at the bridges and railway crossings could be overcome, much less of the current would be diverted from the rail path.

There is a sharp conflict in the testimoney as to the amount of current sufficient to cause electrolysis. Upon this question the views of the experts are widely apart. This is true, even where the opinions are based upon the same facts and conditions.

If the construction of the company’s road is brought up to the present standard of the art, the best known appliances used and the road kept in repair and operated with reasonable care, no witness pretends to say that the mischief would not be obviated, except certain experts who claim that the mischief will continue so long as the single trolley is used, admitting, however, that if the road was brought up and operated according to the present standard of the art, much of the mischief would be overcome. How much of the mischief is traceable to either, they do not advise the court.

The first notice that electrolysis had occurred to any of the water pipes of the city was the water escaping from breaks in the pipes and coming to the surface in the street. It is likely to occur at any point where the pipe is potential to the rail. Where such points are and how far the injury may have progressed, unless a break has occurred, could be discovered only by digging up the pipes.

It must be conceded that the defendant has the right to a reasonable use of the power granted it by the city, and such use must be exercised with due care; but it is not made clear how the court is to determine whether the railway has abused the franchise in the selection of the system adapted for the application of the electrical current, when the testimony offered shows that part of the mischief is due to the negligent construction and operation of the road'; and how much is traceable to these causes the testimony fails to show.

In view of the fact that the expert witnesses differ as to the ¡quantity of current sufficient to cause electrolysis, how can the court :'say that, after the construction of the road is up to the present standard of the art and is operated with due care, the current then diverted, if hny, to the water pipes of the city will cause electrolysis or constitute ¡actual-negligence on the part of the railway in the use of the single trolley?

Under the grant to the defendant by the city to equip with the single trolley, in the use of that system the defendant would be liable only for actual negligence. In granting such right the city must be taken to have contemplated, and condoned by anticipation, any mischief arising from the reasonable use of such system. Telegraph Co. v. Baker, 2 Chan. Div. L. R. 1893, 186.

When a corporation is exercising delegated authority for the public benefit by the use of due care, no action will lie against the corporation resulting from the proper exercise of the authority. Hudson River Tel. Co. v. Railway, 135 N. Y. 393 [32 N. E. Rep. 148; 17 L. R. A. 674; 31 Am. St. Rep. 838].

The law authorizes the action of the city.

■ The case presented does not authorize the court to require defendant to change to another system.

The faulty construction of the defendant’s road and negligent operation of the same result in a continual damage to the water pipes of the city for which it has no adequate remedy at law.

The fact that other- electric railways operated in the city by the same system are in part responsible for the injury to the city’s water pipes constitutes no defense for the defendant.

The defendant will be enjoined from operating its road in the condition shown by the evidence, and from negligently operating the same.

Jurisdiction of the case will be retained, to -give the defendant an opportunity to show what, if any, improvement it has made since the cause was submitted to this court, in the way of bringing up the construction of its road and in operating the same.

The question of costs of the appeal is reserved.

Wilson and Dustin, JJ., concur.  