
    Electric Railway Company v. Moore.
    
      (Knoxville.
    
    September Term, 1904.)
    NEGLIGENCE. Street railroad company not liable for injury caused by telephone poles in public highway.
    The law imposes no duty upon a street railroad company to abate a nuisance on land not belonging to it, and over which it has no control, and, therefore, it is not chargeable with negligence in permitting or not objecting to, the erection of a telephone pole in a public highway so near its track as to be dangerous to its employees operating its cars.
    Cases cited and approved: Lucas v. St. Louis R. R. Co. (Mo.), 73 S.* W„ 589, 61 L. R. A., 452.
    PROM HAMILTON.
    Appeal in error in tbe Circuit Court of Hamilton County. — M. M. Allison, Judge.
    Brown and Spurlock;, for Electric Railway Company.
    J. T. M’atthews and John H. Early, for Moore.
   Mr. Justice Wilkes

delivered tbe opinion of tbe Court.

This was an action for damages against tbe Chattanooga Electric Railway Company and tbe East Tennessee Telephone Company. There was a trial before a jury in tbe court below, and a verdict and judgment for $200 against tbe electric railway company. Tbe suit as to tbe telephone company was dismissed before trial. Tbe electric company has appealed, and assigned errors.

Tbe plaintiff was a conductor on tbe electric company’s cars, and was at tbe time of tbe injury leaning out of tbe rear of bis car on one side, to see whether bis trolley wheel was properly adjusted upon tbe speed wire, bis car at tbe time being in motion, when bis bead came in contact with a telephone pole placed about thirty-four inches from the rail of tbe car line and fourteen inches beyond tbe side of tbe coach as it passed along tbe track. Tbe theory upon which tbe recovery was bad was that tbe electric company was negligent in allowing tbe poles of tbe telephone company to be placed so near its rails as to be dangerous to its employees in operating its cars. Tbe conductor knew of tbe presence and proximity of these poles, and bad seen them often, but evidently did not have them in mind when be was struck. Tbe proof tends to show that be might have adjusted bis trolley wheel from tbe rear center of tbe car platform, and without leaning out beyond its side, and would have been perfectly safe in so doing. His back was toward tbe pole when struck.

It is assigned as error that tbe court, in substance charged that, if the electric company permitted the telephone company to erect its poles so near to the track as to he dangerous to employees in operating the cars, or permitted them to so remain, and this was the proximate cause of the injury, the electric company would be liable.

The exact charge complained of is as follows:

“If this pole was erected by the telephone company, which is not a defendant in this suit, and if it was placed at a dangerous proximity to the railroad, and if the defendant company negligently permitted this telephone company, without objection on its part, to erect this pole so dangerously close to its track that it was dangerous to employees operating cars in that situation, and if the defendant railway company, negligently permitted this post to remain in this dangerous condition, if you should find that it was in a dangerous condition (that is, dangerously close to the track; so close to the track that it was dangerous to employees on the cars in the discharge of their duties; that there was danger from this post to the employees), and if the plaintiff’s injury was a direct and proximate result of -the negligence of the defendant in permitting this pole, without objection, to be placed dangerously near the track, and it remained there for some two years or more, then this defendant company would be liable.”

We think this charge would be substantially correct if the telephone poles had been placed upon the premises or right of way of the electric company, but not if they were situated upon the highway, or on other premises of which the electric company had no control. It does not appear that the electric company had any right of way at the place of injury except that covered by its cars and tracks. It simply had a franchise to construct and operate its line along the street or highway.

These .poles being on land not belonging to the elec-trie company, but on the public highway or street, over which the electric company had no authority, there was no obligation on the part of the electric- company to abate them as a nuisance; nor did it have any power over them, or anything to do with them, more than any other citizen. The case of Lucas v. St. Louis R. R. Co (Mo.), 73 S. W., 589, 61 L. R. A., 452, is directly in point, and lays down the correct rule as follows:

Plaintiff sued the railroad company for its negligence in maintaining a stump on the sidewalk so close to its track that when she stumbled over the same and fell one of its cars came in contact with her, and inflicted upon her serious injuries. The lower court, in its charge, authorized the jury to. find judgment against the defendant, but on appeal to the supreme court the cause was reversed upon the ground that the evidence showed that the stump was the remnant of a pole which had been planted in the street by the electric light company, and was not on the property of the defendant street railway company. Among other things, the court said:

“If any owner raises up, or permits any one else to do so, or keeps up or fails to remove, a nuisance on bis own premises, by wbicb any one suffers injury, be is liable, because be violates bis duty as a citizen. If any one creates a nuisance upon a public highway, be is primarily liable to any one who is injured thereby, because be has violated bis duty as a member of society, and has been guilty of a wrongful act for wbicb be is primarily liable. But no citizen is under-any personal legal obligation to remove a nuisance from a public highway, notwithstanding be .may know it is calculated to do injury to a traveler on the highway, if it is allowed to remain there. To make any man liable for tort, be must have done or omitted to do a duty imposed upon him by law. In the absence of such a duty,, there is no liability. The law imposes no duty upon the defendant to> remove a nuisance in a public highway wbicb it did not put there, and has nothing more to do with than any other citizen.”

The question of contributory negligence on the part of the conductor is not raised by the assignment of errors, and we express no opinion on that feature of the case.

We are of opinion, however, that it was reversible error to charge, in substance, that the electric railroad company would be liable for the erection and maintenance of these poles in the highway or street contiguous to the line of the road unless it appeared they were on premises wbicb the electric company owned or controlled, and for this error the judgment of the court below is reversed, and the cause is remanded for a new trial, and appellee will pay costs of appeal.  