Memphis Street Railway Co. v. Kartright. pended high enough above the railway track to permit cars to pass under it without injury to the employees of the railway company. The defense on the part of the telephone company was that the line, where it crossed the railway track, did not belong to it, and that it was not charged with the duty of keeping it in repair. It appeared that the wire was a part of a branch line constructed by the telephone company for the use of certain persons. The right of way for the branch line was furnished by a private individual, and the line was erected by the telephone company. It was agreed between them that the company should furnish the telephone, and that the rental should be divided between the company and such individual. The evidence showed that the company had repaired the line at various times, and that the wire had been down and had been put up again by a man in the employ of the company, and that after it had been put up it hung so low as to obstruct the passage of trains. Under such facts the jury was held justified in finding that the telephone company owned and controlled the branch line, and was, therefore, liable for negligence in failing to so suspend the wire across the railway tracks as to permit the passing of trains with safety to persons on the top of a car. In view of the evidence to the effect that the wire was repaired by one employed by a person authorized to employ him for that purpose, it was held proper to refuse an instruction making the company's liability depend upon whether or not the person making the repairs was directed by one authorized to act for the company. 2. Evidence as to condition of wire. The case of Hannum v. Hill, 52 W. Va. 166, 43 S. E. 223, was an action for personal injuries received by reason of the negligence of a telephone company in permitting its wires to be stretched so low down over the highway as to be caught by a horse's feet in passing. It was held incompetent to prove the condition of the wire at that point six months subsequent to the injury complained of. The court said: "The twelfth assignment is that the court erred in refusing to permit the defendants to prove by the witness W. C. Smith, and other witnesses, the facts and circumstances relating to the telephone line and the wires, and the impossibility of plaintiff's being injured thereby as claimed by him, as set out in bill of exceptions No. 8. Defendants offered to prove by said Smith and other witnesses that they had gone to the place in the road where the accident occurred in the month of June, 1900, about six months after the occurrence, and, upon examination, to show that the wire, in the condition as it was then, would not, when removed from pole No. 2, have come down in the middle of the road, so that the horse's feet would become entangled in it as stated by plaintiff, and that as fastened on pole No. 1, just above the large elm, and on No. 3, next to Petersburg, and not fastened on pole No. 2, between poles 1 and 3, the said wire, as then fastened on poles Nos. 1 and 3, would not come down in the road low enough at any place near the middle of the road to catch a horse's foot just above the hoof, so as to throw the horse down, and that said telephone wire would not lie on the ground near the middle of the road at the point where the plaintiff Memphis Street Railway Co. v. Kartright. claimed his horse's foot was caught in the wire, but that said wire would lie in the ditch along the side of the road, owing to the location and situation of the road and of said poles and wire, and offered to prove by said witness that from the location of said wire, and the situation of the said poles, and the contour of the ground at and near the point where plaintiff claimed to have been injured, the plaintiff's horse's foot could not have caught in the wire as plaintiff claimed, as it was admitted that the wire was running along the road in the same direction the horse was going. Plaintiff objected to the introduction of such testimony, and the court refused to allow said witness to so testify unless and until it was first shown that said telephone line, poles, wires and insulators at said point were in the same condition when said examinations were made as they were when the alleged injury was done. Defendants then introduced Edward Lewis to testify that a short time after plaintiff claimed to have been injured, and before said examination was made by Smith and others, he had come over the line for the purpose of repairing it, and had stretched the wire and found the wire fastened to pole No. 1 by a loop of wire a foot to eighteen inches in length, and it would admit of the telephone wire being a foot to eighteen inches lower down from the top of the pole than it was when the witness Smith and others went and examined it. Lewis further testified that, when he went to repair the telephone line at that point, he unfastened the wire at pole No. 3, and stretched the wire as testified by him. The defendants then again offered to prove by Smith and other witnesses the facts as to the examination made by them in June, and the result of said examination, so as to establish the fact that said wire could not have been stretched across the road in the manner stated in plaintiff's declaration, so as to have caught the horse's foot as claimed in plaintiff's evidence. In January, when the injury occurred, the wire was loosed at three poles-Nos. 1, 2 and 3. In June the wire had been tightened by Lewis-as tight as he could make it with his hands-and fastened to the insulators on the said three poles, and Smith unfastened the wire from one pole; and it was proposed to prove by him the condition of the wire with its being unfastened from one pole only. The court did not err in refusing to allow the witness to testify as to the condition of the wire in June." Riley v. New England Telegraph & Telephone Co. INJURIES CAUSED BY POLES IN STREETS. RILEY V. NEW ENGLAND TELEGRAPH & TELEPHONE CO. Massachusetts; Supreme Judicial Court. 1. LIABILITY OF TELEGRAPH COMPANY FOR INJURIES CAUSED BY POLES IN HIGHWAY.-A statute (Mass. Rev. Laws, ch. 122, sec. 15) providing that, “whenever injury shall be done to any person or to the buildings or other property of any person or corporation by the posts or other apparatus of any telegraph line, the company, or individual, being proprietor of the same, shall be held responsible in damages to the person or corporation so injured," indicates an intention on the part of the Legislature to permit telegraph poles in the streets and highways upon condition that those who use them to their own profit should make compensation for damages caused thereby, and the company erecting such poles is liable for damages to all persons injured in person or property thereby, whether the injury was caused by negligence or by pure accident. So where a person is injured by being thrown from a wagon colliding with a telegraph pole the telegraph company is liable for the damages caused by such injury, although the pole was erected and maintained by the company in accordance with a license granted by the proper municipal authority. 2. CONTRIBUTORY NEGLIGENCE.-The statute does not make the telegraph company an insurer against injuries to persons whose own fault is one of the causes of the injury. The language of the statute does not indicate that the absolute liability thereby imposed applies to persons who by their own conduct would be precluded from recovery against a defendant in an action for negligence. Exceptions brought by plaintiff from a judgment in favor of defendant. Decided September 2, 1903; reported 68 N. E. 17. C. E. Washburn and A. S. Hutchinson, for plaintiff. Powers, Hall & Jones and F. A. Houston, for defendant. Opinion by KNOWLTON, C. J.: The plaintiff was driving along Bridge street in Cambridge upon a market wagon, the hubs of whose wheels projected six Riley v. New England Telegraph & Telephone Co. inches beyond the rims and spokes. The body of the wagon had wings extending laterally as far as the hubs. A telegraph pole of the defendant was set close to the curbstone on the inside, and it leaned a little towards the center of the street. A standpipe used to fill watering carts stood beside the telegraph pole, and the dripping from it caused a sinking or depression in the cobblestone pavement, small in area, but two or three inches in depth near the curbstone and opposite the telegraph pole. As the right forward wheel of the plaintiff's wagon fell into this hollow, the body of the wagon lurched to the right towards the pole, so that the wing struck the pole, and the collision threw the plaintiff out and injured him. The pole was erected in accordance with a license granted by the board of aldermen, which required the defendant to maintain it as nearly perpendicular as practicable. There was a question whether its leaning was a departure from the requirements of the license. The plaintiff asked the judge to instruct the jury as follows: "The defendant is liable to the plaintiff in this action if the latter, while traveling on the public highway and in the exercise of due care, was injured by reason of a telegraph pole belonging to the defendant, although said pole was erected and maintained by the defendant in accordance with the license granted by the board of aldermen of the city of Cambridge." The judge refused to give the instruction requested, and gave the jury this instruction: "If you find that the pole was erected and maintained in accordance with the specifications of the municipal officers, and that there was no negligence on the part of the defendant in its construction or maintenance of the pole, then the plaintiff cannot recover, even if in the exercise of due care, in the absence of any direction by the municipal officers to alter the location or construction of said pole." The exceptions to the refusal and to the instruction bring us to the consideration of the statute under which the pole was erected. St. 1851, p. 739, ch. 247, sec. 2, is as follows: "Whenever injury shall be done to any person, or to the buildings or other property of any person or corporation, by the posts, wires, or other Riley v. New England Telegraph & Telephone Co. apparatus of any telegraph line, the company or individual being proprietor of the same shall be held responsible in damages to the person or corporation so injured." St. 1859, p. 417, ch. 260, sec. 1, which was doubtless enacted to change the law stated in Young v. Yarmouth, 9 Gray, 386, provides that "towns which may be otherwise liable in damages to any person for injury to his person or property, occasioned by telegraphic posts or other fixtures erected on highways or town ways, shall not be discharged from such liability" by reason of anything contained in the act authorizing the erection of such posts, and makes the companies erecting the posts or fixtures liable to reimburse and repay to towns the full amount of damages and costs recovered by any party injured. These two statutes were combined in Gen. St. 1860, ch. 64, sec. 11, with a slight change, and re-enacted in Pub. St. 1882, ch. 109, sec. 12, and again reenacted with only verbal changes in Rev. Laws, ch. 122, sec. 15. The first of these two statutes creates a liability without any refer ence to negligence. The Legislature seems to have recognized that the erection of the poles and fixtures in public ways would create obstructions which might interfere to some extent with the use of the public streets, and increase the liability of travelers to accidents. Such obstructions, whether placed in a sidewalk or in a part of street designed for use by vehicles, being there when the streets are lighted and when they are in darkness, and in every variety of possible conditions, subject persons in the exercise of due care to risks which otherwise would not exist. While the Legislature saw fit to authorize the use of the streets for telegraph lines, it provided at the same time that the telegraph company should be liable for damages to all persons injured in person or property by these erections. Doubtless the fact that electricity is a subtle and dangerous agency, which was less understood in 1851, when this statute was enacted, than it is now, was an added reason for creating this legal liability without regard to negligence. Wires and other apparatus, as possible causes of injury, are treated by the statute like the posts. It might be difficult to prove, in case of an injury by a transmitter of electricity, whether the |