Stark v. Muskegon Traction & Lighting Co.

Ostrander, J. (after stating the facts). It is not apparent that the requirement, by ordinance, that wires should be supported 25 feet above the ground was based upon any idea of safety of the public. Failure to comply with this provision of the ordinance is not the negligence charged. If it was, it is not to be presumed that it caused or contributed to the injury complained about. See, also, as to the right of this plaintiff to complain of the violation of the ordinance, Flanagan v. Sanders, 138 Mich. 253. Whether or not the wires of the defendant were exposed before the telephone wire was broken does not appear, nor does it appear whether it is possible, or, observing proper rules, usual, to prevent some exposure of copper wire of the size and kind, in the making of splices. Whether the substance with which the wires were covered could or probably would be removed by being struck by the telephone wire, as it was swung against it, does not appear. . It is, however, decisive of the case that plaintiff has conclusively shown a condition and relation of things which, as to himself and the public generally, was safe and harmless if not interfered with, has shown neither invitation nor inducement warranting or excusing interference, and has just as conclusively proven an interference, participated in by himself, the character and the results of which were not to be reasonably apprehended or guarded against. Whether or not, under the circumstances of this case, we apply the term “trespasser ” to one of plaintiff’s years (Trudell v. Railway Co., 126 Mich. 73, [53 L. R. A. 271]; Henderson v. Railway Co., 116 Mich. 368), he was certainly a wrong-doer, who but for his acts of wrong-doing would not have been injured. Indulging the presumption that plaintiff was not aware of the danger of seizing the telephone wire does not operate, of itself, to charge defendant with responsibility for what occurred. Neither the distance of defendant’s wires from the ground, nor the fact, if it is a fact, that one of them was defective [580] as to insulation, can be said to be the proximate cause of the injury. The judgment is affirmed. Moore, O. J., and McAlvay, Grant, and Blair, JJ., concurred.