Cleveland v. Bangor Street Railway

Lib bey, J. Case to recover for a personal injury AAdiich the plaintiff’ alleges she received on Exchange Street, Bangor, by reason of the ueelio'ence of the defendant in erecting- and main236 taming a pole to sustain its trolley wires, at such a point and in such a manner in said street as to make it dangerous for public travel. In his charge the court instructed the jury as follows : "The plaintiff must prove first that this defendant company was at fault in the particular thing complained of, that the defendant company fell short of the duty of a prudent, careful man, that they did not have that regard for the public safety and for the chances of accident that they should have had as prudent men and managers.” "Second. She must prove that this particular fault of the defendant’s, which she claims to have shown you, caused her the injury of which she complains. Because, of course, if this fault of the company did not cause her the injury, she has no cause of complaint against them.” "She must prove the defendant’s fault, that the defendant’s fault caused the injury, and also prove besides that no fault of hers, or the person in whose care she was at the time, contributed to the injury, or helped cause it.” " I further instruct you that they were bound in so placing them to have due regard to the rights of the public, and to have had due forethought as to the needs of the public and the danger to the public, and that they were so bound in placing their posts as to not unnecessarily or unreasonably endanger any person travelling in that vicinity.” "I will add this : that the defendant might, perhaps, have been justified in putting the pole there, at the time they placed it there, and not have been justified in maintaining it there, afterwards; and they may have been in fault in the placing as well as in the maintaining.....Assuming the defendants to be thoughtful, careful and watchful men, if it became apparent after the pole was placed there that it was in a dangerous place and was doing harm, they would then be bound to rectify the mistake if it was one.” The defendant, however, contended, that if it located and maintained the pole in question in the public street in accordance with the provisions of its charter and the ordinance of the city of Bangor, it was legally justified ; and proof of negligence [237] in doing so would not subject it to an action by a traveler damaged thereby; and requested the court to instruct the jury as follows : " That if the pole in question was located and maintained in accordance with the provisions of the charter of the company and the ordinance of the city licensing the company to erect and maintain poles, then the pole was not a legal obstruction, and the plaintiff cannot recover.” This request was not given, and properly refused as not expressing the law of the case. A careful examination of defendant’s charter and the city ordinance discloses nothing which expressly or by implication relieves the company from liability for injuries caused by its negligence or w'ant of care in erecting and maintaining its poles when licensed by the city council, but rather the contrary. Section four of the charter creates a lien on all property of said railway, to take precedence of any mortgage, in favor of the city of Bangor to secure said city for any sum it may be liable to pay on account of any damages to person or property occasioned by any negligence or fault of said railway during construction or operation. The case seems to be within the provision of Statute of 1885, Chapter 378. "Section 1. Every company incorporated for the transmission of intelligence, heat, light or power by electricity ; and all persons and associations engaged in such business shall be subject to the duties, restrictions and liabilities prescribed in this act. "Section 8. "When an injury is done to person or property by tlie posts, wires, or other apparatus of any company, person or association mentioned in section one, such company, person or association shall be responsible in damages to the person injured. If the same be erected on a highway or town way, the city or town shall not by reason of anything contained in this act, or done thereunder, be discharged from its liability.” The law as stated in the charge, requiring the plaintiff to prove the damage to be from the negligence or fault of the defendant, was sufficiently favorable to it. A careful examination of the evidence reported satisfies us that it was sufficient to authorize the verdict. Exceptions and motion overruled.