Roche v. Milwaukee Gas Light Co.

By the Court, Cole, J. In disposing of this case we do not deem it necessary to enter upon an examination of tbe law applicable to fixtures, as that question is not involved here. It must be conceded that the city of Milwaukee unquestionably bad tbe right to permit tbe Gras Light Company, or tbe assignor of tbe company, to set up and establish at proper places along the streets of tbe city, public lamp posts. These posts were to be used in lighting tbe streets of tbe city, an object not only consistent with tbe public easement, but highly advantageous to [58] and necessary for; the full enjoyment of tbe easement' on tbe part of tbe public. Tbe streets were thus rendered more safe and passable at nigbt than they otherwise would have been. In tbe present case tbe city gave tbe assignor of tbe company, by a contract in writing, “ tbe exclusive right and privilege to make all tbe necessary excavations, and lay pipes for tbe purpose of conducting gas through or under any and all tbe streets, lanes, alleys, sidewalks, highways or commons, in said city,” provided that all excavations so far as regards tbe laying of the pipe, were to be made under tbe directions of tbe city authorities, and with tbe least inconvenience to tbe public interest; and said assignor agreed, among other things, to furnish tbe city with good gas for all tbe public lamps that might from- time to time be placed on any of tbe Enes of pipe laid through tbe city at tbe rate of $2.50 per thousand cubic feet. Tbe lamp post in question, it seems, was erected and kept in order at tbe expense of tbe company. Tbe company bad tbe management and control of it; cleaned and repaired, furnished gas for tbe lamp, lighted it and were paid by tbe city for tbe gas .burnt therein; and tbe post was, we think, to all intents and purposes tbe property of tbe company, and in their possession. - Under such circumstances, can there be a reasonable doubt of tbe right of tbe company to maintain an action of.trespass for tbe. willful or negligent injury to tbe post? None whatever. This disposes of tbe first point made by tbe counsel.for tbe plaintiff in-error, viz : that the company could not maintain tbe action without showing possession or title to tbe soil where tbe lamp post was placed. Tbe next point is, that tbe court below erred in refusing to give tbe following instruction“ That whatever would be a de-fence against tbe city, in case tbe lamp post in question belonged to, and this action bad been brought by. tbe city, on tbe ground that tbe alleged trespass was owing solely to tbe bad condition of tbe street, and not to any fault of tbe defendant, would also be a defence in this action against tbe present plaintiff.” This instruction was proper, and should have been given. Tbe witness, Bessel, testified that be was present in tbe wagon when tbe lamp post was broken ; that they were going through [59] Market place; thar the street was fall of teams; that the weather was cold, and the streets slippery and fall of ice; that in attempting to drive along on the left side of the street the wagon began to slide some six to ten feet from- the post, and the ground being descending, the hind part of the wagon slipped around and struck the post and broke it. The company standing in the same relation to the defendant below that the city would have stood had it owned the post and brought the suit, in view of the above testimony, it became material for the jury to determine whether the injury was done without any fault of the defendant, while driving along the street with ordinary care and prudence, solely in consequence of the slippery and bad condition of the streets. If the injury was the result of an inevitable accident, happening because the street was crowded, slippery and uneven, while the defendant was exercising proper care in driving, that was a good defence to the action. Eurthermore, we are of the opinion that a portion of the charge given to the jury is not entirely free from objection. ■ The court instructed the jury that - “it was perfectly immaterial who held the reins of the horse at the time when the injury complained of was committed; the evidence of the defendant’s having been in the wagon at the time of the trespass was sufficient to make him a joint trespasser, and as such liable to the plaintiffs.” If it appeared from the evidence that the defendant was a mere passenger in the wagon, having no interest whatever in it, or in the horse, and neither aiding, nor in any manner consenting to the trespass, could he be held liable ? I think not. Richardson vs. Emmerson, 3 Miss. 319; Davey vs. Chamberlain, 4 Esp. N. P. 229. The judgment of the court below must be reversed, and a new trial ordered.'