Chace Trucking Co. v. Richmond Light & Railroad

*437 Andrews, J. Bay street, Stapleton, is a street thirty-five to forty-five feet wide running north and south and is paved with asphalt. Through it the defendant has a double-track electric road. Power is conveyed to the cars through two overhead trolley wires, which although loaded with a dangerous current are necessarily exposed, which are fifteen feet from the pavement and each of which is twenty or twenty-two feet from the nearest curb. On February 23, 1909, the plaintiff was moving by truck a heavy pile driver the top of which reached sixteen feet or more from the pavement. Drawing this truck were fourteen horses. Two of them were hitched side by side to the pole, while the twelve others, two by two, were attached to the pole by a cable. Tied to the rear of the truck was another team hitched to a wagon the wheels of which were locked. Obviously the truck was steered by the action of the two horses hitched to the pole. The twelve in addition would have little effect upon it, unless the cable was taut and they were pulling upon it. The truck reached Bay street from the east. It was to turn toward the south. It was, therefore, necessary for it to reach the west side of the street, and to do so it had to pass beneath the trolley wires. The defendant, with its wires and other structures, was rightfully in the street. But it was not there to the exclusion of those other public uses to which the street is,adapted. The grant to it was under the implied condition that it would not unreasonably interfere with such uses. (Lambert v. Westchester Elec. R. R. Co., 191 N. Y. 248; Opdycke v. P. S. R. Co., 78 N. J. L. 576; McKim v. Philadelphia, 217 Penn. St. 243.) It might be required temporarily to remove its tracks if the street was to be graded (Matter of Deering, 93 N. Y. 361); or if a sewer were to be built (Brooklyn Elec. R. R. Co. v. City of Brooklyn, 2 App. Div, 98; New Orleans Gas L. Co. *438 v. Drainage Comn., 197 U. S. 453); or other public purposes served (Chicago, B. & Q. Ry. Co. v. Drainage Comrs., 200 U. S. 561; R.R. v. Middlesex Wakefield, 103 Mass. 261). Nor might it interfere with the reasonable use of the highway by travelers upon it, even if such use involved temporary obstruction of its traffic or interference with its wires. Under some conditions such a use might include the removal of a building. (Western N. Y. & P. Traction Co. v. Stillman, 143 App. Div. 717.) Under others it might not. (Williams v. Citizens’ Ry. Co., 130 Ind. 71.) But in any event such use must be reasonable and the traveler might not unduly interrupt the operations of the road or negligently injure its structures. Reasonable use with concurrent rights is the rule. We cannot say that the removal of this pile driver was an unreasonable use of Bay street. When they reached that street, therefore, what was the duty of the plaintiff’s servants? They might not heedlessly destroy the defendant’s wires. If without danger they might raise them and so pass beneath they might do so. But these wires were exposed and to the unskilled dangerous. If contact were made injury might happen, not only to plaintiff’s servants but to defendant’s property. If so, doubtless it would be claimed that the plaintiff was negligent. Yet it had the right to pass. Under these circumstances the defendant was notified of the situation. Equally recognizing the respective rights of the parties, the defendant at once sent a wrecking wagon and a gang of men so that the plaintiff might do in safety what it had a right to do. In this the defendant was not a mere volunteer. It was performing what in our judgment was its legal duty. This gang lifted the wires, signalled when they were ready and the truck was thus enabled to cross to the west side of Bay street and turn to the south. The wrecking wagon followed it closely to protect the defendant’s wires should the need again arise. *439 If the pile driver came in contact with the exposed wires, every one recognized that there was danger, but just so long as the truck was on the level or was going up hill the cable attached to the horses would be taut and there would be no difficulty in steering it safely along the street near the curb. This was at first the situation. There was a slight ascent, but when the top of the hill was reached a more difficult problem was presented. Ahead was a descent. The road was not straight but on a curve. ' A tree stood at the side with branches reaching over the street. The pavement was smooth. It had been raining and it was, therefore, probably wet and, to some extent, slippery. The load was of great weight. It could only be held back and steered by the action of the horses attached to the pole. For this purpose the other twelve horses were practically useless. The truck had no brake. The wagon behind would act as a brake to some extent, and would serve to steady the truck in its descent; just how much it is difficult to" say without experiment. Any one who has attempted to drive a heavy wagon down a hill with a pair of horses holding back against a load knows how the wagon inevitably moves from side to side. To keep a straight course is most difficult. With reason, therefore, the servants of the plaintiff hesitated. However, they were rightfully in the street. This the defendant had recognized. With its wagon the defendant’s servants were on the spot to prevent a collision. Once already they had done so. Just how efficient they would or could be we may assume the driver of the truck and his companions did not know. But in any event, again the defendant was not a mere volunteer. It was so managing its property as to reconcile its rights with those of the plaintiff. Knowing whether or not the situation was safe, seeing, the plaintiff’s hesitation the defendant urged it on. The- *440 plaintiff’s foreman, to some extent, at least, had explained his difficulty to the defendant’s foreman. He said that the truck would be likely to turn into the wires; that one end or the other would strike them. In reply the defendant’s foreman assured him that he and his companions were there and that they would raise the wires if it was necessary. He said “ we are here and we will protect you, what more do you want.” It is familiar knowledge that an inference or invitation of assurance may be drawn from the raised gate at a railway crossing — an inference drawn equally whether the gate is required to be maintained or is maintained voluntarily. In principle the express assurance here given is not unlike that there drawn from circumstances. Relying upon it as they had relied on the earlier assurance when they drove under the wires the plaintiff’s servants started down the hill. The result, which was reasonably to be expected, happened. The front end of the truck ran toward the middle of the street and came into collision with the trolley wire which was not lifted by the defendant’s servants as they had promised. Electricity passed through the truck, and some of the horses attached to it were killed. Under these circumstances we think there is a fair question of fact for the jury as to whether the defendant’s servants were not negligent in stating that they could and would lift the wire if danger became imminent, and in inviting the plaintiff to drive on, when as they now say that was an impossible thing for them to do. Whether there was danger or not was a matter in respect to which they assumed to have superior knowledge. Further in giving the assurance-that they did, it follows that at least the jury might find that they were acting within the scope of their authority. They were engaged in their master’s business. They were acting not for themselves but for it and here as when the wires were first raised, it might well- have *441 been their duty to notify the plaintiff’s servants when they might proceed in safety. We think also that the question of the plaintiff’s contributory negligence was, under these circumstances, for the jury. The judgment of the Appellate Division should be reversed, but as that court has disapproved the finding of the jury a new trial should be ordered, with costs to abide the event.