
    Elizabeth M. Lanigan, as Administratrix, etc., of Patrick Lanigan, Deceased, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    April 24, 1908.
    Negligence — collision of truck with trolley pole — reasonable care.
    A street railroad company is not negligent in maintaining a trolley pole outside ■ the curb on the lands of a ferry company where it appears that a pole was necessary at or near that place and that all the surrounding land was owned by the ferry company which had, on request, refused to allow the defendant to move the pole inside the curb or to make any change whatever in the physical situation at the spot.
    Nor under the circumstances was the failure of the railroad company to maintain a hubstone negligence.
    
      Tire reasonable care required of defendant did not require it to attempt condemnation proceedings to acquire laud to move the pole inside the curb, when its right to maintain such proceedings was doubtful.
    
      It seems, that the remedy of the plaintiff, who was injured because of his truck striking the pole, is against the ferry company.
    Rich, J., dissented.
    Appeal by the defendant, The Brooklyn Heights Bailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 8th day of May, 1907, upon the verdict iff a jury for $2,500, rendered after a trial at the Kings County Trial Term.
    
      H. A. Marsh [George D. Yeomans with him on the brief], for the appellant.
    
      J. Arthur Hilton [John M. Wellbrock with him on the brief], for the respondent.
   Hooker, J. :

The plaintiff’s intestate, driving a truck heavily laden, received injuries from which.he died. The hub of a rear wheel of the truck caught against a trolley pole used to support the trolley wires of the defendant, and the driver was thrown violently down; the pole was situated about six inches outside of the curb bounding the sidewalk east of the ferry house- in the borough of Brooklyn, owned by the Brooklyn Ferry Company. Egress from the ferry boats of this company was had through a plaza about seventy-five feet wide and seventy-five feet long up a grade of nearly ten per cent to Kent avenue. The plaintiff’s intestate was driving his team attached to this truck easterly up this grade. The plaza was bounded on the north by the curb inclosing the sidewalk which surrounded the ferry house, and this curb extended easterly to within about eight feet of the line of Kent avenue, a public thoroughfare. At that point the curb turned northward and at the turn and a little to the north of its south side, and six inches east of its new direction, the trolley pole was situated. Opposite the east end of the ferry house the defendant maintained three tracks on Kent avenue, one north-bound, one south-bound and one siding or switch. Between the switch, which was the most westerly of these three fcraeks, a, the sidewalk ÍP íropí oí the fori j house,, thei;@ w@§ U0 sidewalk especially constructed, for pedestrians, so that to a casual observer it was apparently all highway between the sidewalk on the east side of Kent avenue and the sidewalk in front of the ferry house. The trolley pole had been in that place for many years and it is entirely clear from the evidence that a pole at that place or near it was necessary for the proper maintenance of the trolley wires of the defendant’s road in Kent avenue. The pole was erected by the predecessor of the defendant; all of the locus from the river to the west line of Kent avenue was the property of the ferry company, and the defendant was on the property with its pole by the permission of that company. It must also be 'taken as a fact from the evidence that the defendant had been refused permission by the ferry company to move the pole inside the curb, and permission had also been denied the defendant to make any change whatever in the physical situation at that spot. , In his submission of his case to the jury the learned trial court permitted them to predicate negligence on the part of. the defendant because of the place where the trolley pole was allowed to stand and also on the omission of the defendant to provide the foot or base of the pole with a so-called liubstone. The plaintiff claimed that the purpose of a hub-stone was to strike the circumference of the wheels of vehicles and shunt them away from the pole so that there might be no catching of the vehicle by the pole; a hub-stone is circular, made of some appropriate material and larger in diameter than the pole itself.

In view of the necessity of the pole at or near the place where it stood, in view of the fact that the defendant had prior to the time of the accident endeavored to obtain permission from the owner of the land to move the pole behind the curb, and in view of the fact that if the pole had been taken out and moved into the' highway, wdiere doubtless the defendant had a right to place it, there must have been even a greater obstruction to traffic, the defendant was not liable by reason of the location of the pole. The right of the defendant to condemn, in order that it might place the pole back of the curb, is at best doubtful, inasmuch as the owner of the property which it would have been necessary to condemn was itself a quasi-public corporation, using the property for the purpose of carrying on its business of a common carrier. The measure of the defendant’s duty was to exercise merely reasonable • care; it was not required to exercise the highest degree of diligence to place the pole or replace it in a position of absolute safety; permission to move' it having been denied by the owner of the land, ordinary care did not require the defendant to attempt condemnation, especially in view of the doubt which exists in respect to whether such proceedings would be successful against a quasi-public corporation. It would seem that the plaintiff is pursuing the wrong party; the ferry company allowed the pole to remain where it was on its own property and prevented its change into a safer place.

What has been said in relation to the location of the pole applies to the absence of a hub-stone. To place such an instrument at the base of the trolley pole would doubtless have required a physical change of the surface of the ground there; the ferry company denied to the defendant the privilege of moving even a cobblestone, and the defendant was doubtless without power to enter upon the ferry company’s property and make changes or improvements there without the consent of the latter.

The judgment must be reversed and a new trial granted, costs to abide the event.

Woodward, Jenks and Gatnor, JJ., concurred; Rich, J., dissented.

Judgment reversed and new trial granted, costs to abide the event.  