VOLUME IV MAY, 1914 RECENT LEGAL DECISIONS REPRINTED FROM THE PUBLISHED BY THE electrical record The Gage Publishing Co., Inc., 114 Liberty St. NEW YORK v V HOW TO GET THIS BOOK Advertisers in and subscribers to the ELECTRICAL RECORD may obtain copies of this book free upon request. Others may obtain this volume of Recent Legal Decisions and succeeding decisions, which appear regularly in each number of the ELECTRICAL RECORD, by signing and sending the coupon below, together with $ 2 . 00 , to the Gage Publishing Co., Inc., 114 Liberty Street, New York. ELECTRICAL RECORD PUBLISHED MONTHLY BY THE GAGE PUBLISHING CO., Inc. 114 LIBERTY ST., NEW YORK We herewith request that you send us the ELECTRICAL RECORD for one year, beginning with the-issue, for which we enclose Two Dollars ($2.00). Name. Address.. . Company.. Date. Business .. It is understood that this subscription is to include a copy of Volume IV, Recent Legal Decisions. \ r ( RECENT LEGAL DECISIONS OF INTEREST TO ELECTRIC LIGHT, POWER AND STREET RAILWAY PLANTS AND TELEPHONE COMPANIES PUBLISHED BY THE ELECTRICAL RECORD The Gage Publishing Co., Inc., 114 Liberty St. NEW YORK Copyright 1914, by THE GAGE PUBLISHING CO.. Inc. A INTRODUCTION This book is a reprint of the series of articles on Recent Legal Decisions that appeared regularly in the Electrical Record from June, 1913, to May, 1914, inclusive. The Legal Decisions that will appear in each issue of the Electrical Record from June, 1914, to May, 1915, inclusive, will be reprinted in a fifth volume, similar to this one, to be issued in May, 1915. These volumes are not for sale, but are given free, upon re¬ quest, to subscribers to the Electrical Record. The Electrical Record is issued monthly. The subscrip¬ tion price is $2.00 a year. It is published by THE GAGE PUBLISHING CO., Inc., 114 Liberty street, New York. May, 1914. nr "tr r & cJ V ut INDEX Name of Case Page Abandoned Insulator, Liability for Injuries Caused by 23 Acceptance—Sale of Generator. 30 Accident, Cause of—Falling Globe—Burden of Proof.. 50 Accident, Fuse Box—Evidence. 23 Accident, Open Switch. 46 Accidents, Cost of—Construction Contract. 33 Account, Ledger as Evidence of. 31 Alabama Statute—Duty of Electric Companies as to Employees—Defective Appliance. 66 Appliance, Defective—Alabama Statute—Duty of Elec¬ tric Companies as to Employees. 66 Appropriation of Water Power—Power Companies’ Riparian Rights. 37 Arbitration as to Rates—-Confiscatory Rates. 41 Assessment of Electrical Companies. 27 Assisting Electrical Employee—Known Danger. 1 Assumed Risk—Duty to Guard Crossing Wires. 59 Assumed Risks—Light and Telephone Wires. 4 Authority to Issue Electric Light Bonds. 11 Battery, Sale of Storage—Surety Bond for Purchase Price . 32 Bonds, Authority to Issue Electric Light. 11 Bond, Surety, for Purchase Price—Sale of Storage Battery. 32 Bonds, and Stock, Ownership of Electrical Company’s 25 Broken Wire—Contact—Proximate Cause. 21 Broken Wire—Contributory Negligence. 31 Broken Wire—Evidence of Cause and Time of Break. 37 Broken Wire—Notice to Company. 66 Buildings, Mechanics’ Lien for Wiring. 28 Burden of Proof—Falling Globe—Cause of Accident.. 50 Burden of Proof of Contributory Negligence—Dam¬ ages to Property. 32 Buying, Liability to—Selling Use of Poles—Company’s Employees . 38 Care Required—Escape of Current Into House. 52 Care Required—Wire on Highways. 61 Cause of Injury, Proximate. 39 Cause of Accident—Falling Globe—Burden of Proof.. 50 Cause, Proximate. 12 Cause, Proximate—Broken Wire—Contact. 21 Cause, Proximate — Contact — Charged Guy Wire in Street. 29 Cause and Time of Break, Evidence of—Broken Wire 37 Charged Guy Wire in Street — Contact — Proximate Cause . 29 Children, Company’s Knowledge of Danger to. 15 Circumstantial Evidence. 18 City Council’s Power—Fixing Rates. 11 I Name of Case Page City’s Liability for Injuries. 17 Claims to Light Plant, Rival. 24 Companies, Rights of—Discontinuance of Service.... 47 Company, Duty of Railroad — Light Wire Sagging Over Railroad Track. 39 Company’s Employees—Selling Use of Poles—Liabil¬ ity to Buying. 38 Company’s Knowledge of Danger to Children. 15 Competition Between Electrical Companies—Individual Privileges—Franchises and Powers Distinguished. 42 Competition with Private Plant, Municipal. 65 Complaint—Penalty for Failure to Install. 7 Condemnation—Public Necessity—Surplus Power.... 10 Condemnation of Right to Cut Trees. 8 Condemnation Procedure. 20 Condemnation, Right of. 47 Condemnation, Right of—Private Purpose. 52 Confiscatory Rates—Arbitration as to Rates. 41 Construction—Contract of Sale of Electricity. 43 Construction—Contract for Electrical Supplies. 36 Construction—Inspection Contract. 48 Construction Contract—Cost of Accidents. 33 Construction of Franchise — Lighting Private Resi¬ dences . 1 Construction and Contract Sale—Electric Outfit. 45 Constructive Notice—Lowered Street Lamp. 6 Consumer, Injuries to, by Overcharged Wires. 54 Contact—Broken Wire—Proximate Cause. 21 Contact — Proximate Cause — Charged Guy Wire in Street . 29 Contact of Power and Telephone Wires—Guard Wires 40 Contact of Wires—Destruction by Fire—Damages.... 21 Contact of Wires—Hidden Danger—Rubber Gloves.. . 2 Contract, Construction—Cost of Accidents. 33 Contract for Electrical Supplies—Construction. 36 Contract, Inspection—Construction. 48 Contract of Sale of Electricity—Construction. 43 Contract Sale, Construction and—Electric Outfit. 45 Contracts—Ratification . 9 Contractor, Injuries Caused by Independent. 26 Contributory Negligence. 45 Contributory Negligence. 55 Contributory Negligence—Broken Wire. 31 Contributory Negligence—Wire on Sidewalk. 20 Contributory Negligence, Burden of Proof—Damages to Property. 32 Cost of Accidents—Construction Contract. 33 Crossing Wires, Duty to Guard—Assumed Risk. 59 Current, Escape of, Into House—Care Required. 52 Current, Wrongfully Cutting Off. 56 Cutting Off Current, Wrongfully. 56 Dam, Right to Construct. 55 Damages—Contact of Wires—Destruction by Fire.... 21 Damages, Excessive—Personal Injuries. 3 Damages to Property—Burden of Proof of Contribu¬ tory Negligence. 32 Danger, Hidden—Contact of Wires—Rubber Gloves.. 2 II Name of Case Page Danger, Known — Persons Assisting Electrical Em¬ ployee . 1 Danger to Children, Company’s Knowledge of. 15 Dangerous Pole in Street—Liability. 33 Dangerous Proximity of Wires—Evidence. 17 Defective Appliance—Alabama Statute—Duty of Elec¬ tric Companies as to Employees. 66 Defective Electrical Machine—Injuries to Servant.... 38 Defective Insulation. 56 Delivery, Time of—Sale of Electric Motors. 36 Destruction by Fire—Contact of Wires—Damages... 21 Discontinuance of Service—Rights of Companies. 47 Discrimination — Installation of Transformers — Ex¬ penses . 60 Disobedience of Orders—Effect. 22 Domain Proceedings, Eminent. 7 Duty of Electric Companies as to Employees—Defec¬ tive Appliance—Alabama Statute. 66 Duty of Railroad Company—Light Wire Sagging Over Railroad Track. 39 Duty to Guard Crossing Wires—Assumed Risk. 59 Duty to Inspect, Lineman’s—Safe Place to Work. 49 Duty to Inspect Wires. 58 Duty to Instruct Inexperienced Servant. 64 Duty to Use Rubber Gloves. 18 Duty Toward Mere Licensee. 23 Effect—Disobedience of Orders. 22 Effect of Public Utilities Act—Rate Fixing. 41 Electric Companies, Duty of, as to Employees—De¬ fective Appliance—Alabama Statute. 66 Electric Light Bonds, Authority to Issue. 11 Electric Light Company, Interference of Equity Court with Operation of. 17 Electric Light Fixtures, Lien for Installing. 3 Electric Light Switch, Exposed — Liability of Land¬ lord . 49 Electric Line on Rural Highway, Maintenance of—Ne¬ cessity for License..... 6 Electric Outfit—Construction and Contract Sale. 45 Electric Plant a Place of Business. 16 Electrical Companies, Assessment of. 27 Electrical Companies, Competition Between—Individual Privileges—Franchises and Powers Distinguished 42 Electrical Company’s Pole, Use of by Telephone Com¬ pany . 34 Electrical Company’s Stock and Bonds, Ownership of 25 Electrical Engineer as Expert Witness. 66 Electrical Installation, Test of—Waiver. 10 Electrical Machine, Defective—Injuries to Servant... 38 Electrical Supplies—Liability of Municipalities. 27 Electrical Supplies, Contract for—Construction. 36 Electrical Supplies, Municipalities and the Sale of. 13 Electricity, Contract of Sale of—Construction. 43 Eminent Domain — Public Use — Manufacturing Cor¬ poration . 63 Eminent Domain Proceedings.. .. .. 7 Employees, Company’s—Selling Use of Poles—Liabil¬ ity to Buying. 38 III Name of Case Page Employees, Duty of Electric Companies as to—Defec¬ tive Appliance—Alabama Statute. 66 Engineer, Electrical, as Expert Witness. 66 Equity Court, Interference of, with Operation of Elec¬ tric Light Company. 17 Escape of Current Into House—Care Required. 52 Evidence—Dangerous Proximity of Wires. 17 Evidence—Fuse Box Accident. 23 Evidence—Negligence of Superintendent. 34 Evidence—Circumstantial . 18 Evidence of Account, Ledger as. 31 Evidence of Cause and Time of Break—Broken Wire.. 37 Excessive Damages—Personal Injuries. 3 Existence of Relationship—Master and Servant. 62 Expenses—Discrimination—Installation of Transform¬ ers . 60 Exposed Electric Light Switch—Liability of Landlord 49 Failure to Install, Penalty for—Complaint. 7 Falling Globe—Cause of Accident—Burden of Proof.. 50 Fire, Destruction by—Contact of Wires—Damages.. .. 21 Fixing Rates—City Council’s Power. 11 Fixing Rates—Effect of Public Utilities Act. 41 Fixtures, Lien for Installing Electric Light. 3 Forfeiture of Franchise for Non-User. 9 Franchise, Construction of—Lighting Private Resi¬ dences . 1 Franchise, Forfeiture of, for Non-User. 9 Franchise, Nature of. 27 Franchise, Term of. 44 Franchises and Powers Distinguished — Competition Between Electrical Companies — Individual Priv¬ ileges . 42 Fuse Box Accident—Evidence. 23 Generation of Power—Public. 51 Generator, Sale of—Acceptance. 30 Globe, Falling—Cause of Accident—Burden of Proof 50 Gloves, Duty to Use Rubber. 18 Guard Crossing Wires, Duty to—Assumed Risk. 59 Guard Wires—Contact of Power and Telephone Wires 40 Guy Wire in Street. 22 Guy Wire in Street, Charged — Contact — Proximate Cause . ••• • • • »• ..... 29 Height of Wires—Ordinary Travel. 24 Hidden Danger—Contact of Wires—Rubber Gloves.. 2 High Power Wire, Small Wire Falling Across—Lia¬ bility . 35 Highway, Maintenance of Electric Line on—Necessity of License. 6 Highways, Wires on—Care Required. 61 House, Escape of Current Into—Care Required. 52 Independent Contractor, Injuries Caused by. 26 Individual Privileges—Competition Between Electrical Companies—Franchises and Powers Distinguished 42 Inexperienced Servant, Duty to Instruct. 64 Injuries Caused by Abandoned Insulator, Liability for 23 Injuries Caused by Independent Contractor. 26 Injuries, City’s Liability for. 17 IV Name of Case Page Injuries, Liability for—Proximity of Light Wires to Telephone Wires. 16 Injuries, Personal—Excessive Damages. 3 Injuries to Consumer by Overcharged Wires. 54 Injuries to Servant—Defective Electrical Machine.... 38 Injuries to Telephone Lineman, Liability for—Unin¬ sulated Wires. 53 Injury, Proximate Cause of. 39 Injury to Pedestrian. 25 Inspect, Lineman’s Duty to—Safe Place to Work.... 49 Inspect Wires, Duty to. 58 Inspection Contract—Construction. 48 Install, Penalty for Failure to—Complaint. 7 Installation of Transformers—Expenses—Discrimina¬ tion . 60 Installation, Test of Electrical—Waiver. 10 Installing Electric Light Fixtures, Lien for. 3 Insulation, Defective. 56 Insulator, Liability for Injuries Caused by Abandoned 23 Interference of Equity Court with Operation of Elec¬ tric Light Company. 17 Interference with Private Plants—Use of Light Plant for Other Purposes. 58 Knowledge of Danger to Children, Company’s. 15 Known Danger — Persons Assisting Electrical Em¬ ployee . Lamp, Lowered Street—Constructive Notice. 6 Landlord, Liability of—Exposed Electric Light Switch 49 Ledger as Evidence of Account. 31 Liability—Dangerous Pole in Street. 33 Liability—Small Wire Falling Across High Power Wire . 35 Liability for Injuries Caused by Abandoned Insulator 23 Liability for Injuries, City’s. 17 Liability for Injuries—Proximity of Light Wires to Telephone Wires. 16 Liability for Injuries to Telephone Lineman—Unin¬ sulated Wires. 53 Liability of Landlord—Exposed Electric Light Switch 49 Liability of Light Wire Owner—Light Wire Cut by Sagging Telephone Wire. 67 Liability of Municipal Corporations Owning Lighting Plants. 61 Liability of Municipalities—Electrical Supplies. 27 Liability to Buying—Selling Use of Poles—Company’s Employees . 38 Licensee, Duty Toward Mere....^. 23 License, Necessity for—Maintenance of Electric Line on Rural Highway. 6 Lien for Installing Electric Light Fixtures. 3 Lien for Wiring Buildings, Mechanics’. 28 Light Companies in Streets, Rights of Senior and Junior.. • • 4 Light Company, Interference of Equity Court with Operation of. 17 Light Plant, Use of, for Other Purposes—Interference with Private Plants. 58 V Name of Case Page Light Plant, Rival Claims to. 24 Light Wire Cut by Sagging Telephone Wire—Liabil¬ ity of Light Wire Owner. 67 Light Wire Sagging Over Railroad Track—Duty of Railroad Company.... . 39 Light Wires, Proximity to Telephone Wires—Liabil¬ ity for Injuries. 16 Light and Telephone Wires—Assumed Risks. 4 Lighting, Municipal Street. 45 Lighting Plants, Liability of Municipal Corporations Owning . 61 Lighting Private Residences — Construction of Fran¬ chise . 1 Lighting, Safeguards Against. 30 Line (Electric) on Rural Highway, Maintenance of— Necessity for License. 6 Lineman—Safe Place to Work. 26 Lineman, Liability for Injuries to Telephone—Unin¬ sulated Wires. 53 Lineman’s Duty to Inspect—Safe Place to Work. 49 Lowered Street Lamp—Constructive Notice. 6 Machine, Defective Electrical—Injuries to Servant... 38 Maintenance of Electrical Line on Rural Highway— Necessity for License. 6 Manufacturing Corporation—Eminent Domain—Public Use . 63 Master and Servant—Existence of Relationship. 62 Minimum Rate Ordinance. 19 Mechanics’ Lien for Wiring Buildings. 28 Motors, Sale of Electric—Time of Delivery. 36 Municipal Competition with Private Plant. 65 Municipal Corporation Owning Lighting Plants, Lia¬ bility of. 61 Municipal Street Lighting. 45 Municipalities, Liability of—Electrical Supplies. 27 Municipalities and the Sale of Electrical Supplies.... 13 Municipality, Power of, to Purchase Public Utility.. .. 48 Nature of Franchise. 27 Necessity of License—Maintenance of Electric Line on Rural Highway. 6 Necessity, Public—Surplus Power—Condemnation.... 10 Negligence, Burden of Proof of Contributory—Dam¬ ages to Property. 32 Negligence, Contributory. 45 Negligence, Contributory. 55 Negligence, Contributory—Broken Wire. 31 Negligence, Contributing—Wire on Sidewalk. 20 Negligence of Superintendent:—Evidence. 34 Non-User, Forfeiture of Franchise for.>. 9 Notice, Constructive—Lowered Street Lamp. 6 Notice to Company—Broken Wire. 66 Open Switch Accident. 46 Operation of Electric Light Company, Interference of Equity Court with. 17 Orders, Disobedience of—Effect. 22 Ordinance, Minimum Rate. 19 Ordinary Travel—Height of Wires. 24 Overcharged Wires, Injuries to Consumers by. 54 VI Name of Case Page Ownership of Electrical Company’s Stock and Bonds. 25 Pedestrian, Injury to. 25 Penalty for Failure to Install—Complaint. 7 Personal Injuries—Excessive Damages. 3 Persons Assisting Electrical Employee—Known Dan¬ ger ... 1 Place of Business, Electric Plant a. 16 Place to Work, Safe—Lineman. 26 Place to Work, Safe—Lineman’s Duty to Inspect. 49 Place to Work, Safe—Risks Assumed. 57 Plant, Electric, a Place of Business. 16 Pole in Street, Dangerous—Liability. 33 Poles, Selling Use of—Liability to Buying—Company’s Employees . 38 Power Companies’ Riparian Rights—Appropriation of Water Power. 37 Power, City Council’s—Fixing Rates. 11 Power, Generation of—Public. 51 Power of Municipality to Purchase Public Utility. 48 Power, Surplus—Condemnation—Public Necessity.... 10 Power and Telephone Wires, Contact of—Guard Wires 40 Powers and Franchises Distinguished — Competition Between Electrical Companies — Individual Priv¬ ileges . 42 Price, Purchase, Surety Bond for—Sale of Storage Battery ...... 32 Private Plant, Municipal Competition with. 65 Private Plants, Interference with—Use of Light Plant for Other Purposes. 58 Private Purpose—Right of Condemnation. 52 Private Use—Public Use. 14 Privileges, Individual—Competition Between Electrical Companies—Franchises and Powers Distinguished 42 Procedure, Condemnation. 20 Proceedings, Eminent Domain. 7 Proof, Burden of—Falling Globe—Cause of Accident. 50 Proof of Contributory Negligence, Burden of—Dam¬ ages to Property. 32 Property, Damages to—Burden of Proof of Contribu¬ tory Negligence. 32 Proximate Cause. 12 Proximate Cause of Injury. 39 Proximate Cause—Broken Wire—Contact. 21 Proximate Cause — Contact — Charged Guy Wire in Street. 29 Proximity of Light Wires to Telephone Wires—Lia¬ bility for Injuries. 16 Proximity of Wires, Dangerous—Evidence. 17 Public—Generation of Power. 51 Public Necessity—Surplus Power—Condemnation.... 10 Public Use — Manufacturing Corporation — Eminent Domain . 63 Public Use—Private Use. 14 Public Utilities Act, Effect of—Rate Fixing. 41 Public Utility, Power of Municipality to Purchase.... 48 Purchase Price, Surety Bond for—Sale of Storage Battery. 32 Purpose, Private—Right of Condemnation. 52 VII Name of Case Page Railroad Company, Duty of — Light Wire Sagging Over Railroad Track. 39 Railroad Track, Light Wire Sagging Over—Duty of Railroad Company. 39 Rate Fixing—Effect of Public Utilities Act. 41 Rate Ordinance, Minimum. 19 Rates, Arbitration as to—Confiscatory Rates. 41 Rates, Confiscatory—Arbitration as to Rates. 41 Rates, Fixing—City Council’s Power. 11 Ratification—Contracts . 9 Relationship, Existence of—Master and Servant. 62 Residences, Lighting Private—Construction of Fran¬ chise . 1 Res Ipso Loquitur Rule. 63 Right of Condemnation. 47 Right of Condemnation—Private Purposes. 52 Right to Construct Dam. 55 Right to Cut Trees, Condemnation of. 8 Rights of Companies—Discontinuance of Service.... 47 Rights of Senior and Junior Light Companies in Streets . 4 Riparian Rights, Power Companies—Appropriation of Water Power. 37 Risk, Assumed—Duty to Guard Crossing Wires. 59 Risks Assumed—Safe Place to Work. 57 Risks, Assumed—Light and Telephone Wires. 4 Rival Claims to Light Plant. 24 Rubber Gloves—Contact of Wires—Hidden Danger.. 2 Rubber Gloves, Duty to Use. 18 Rural Highway, Maintenance of Electric Line on— Necessity of License. 6 Safeguards Against Lightning. 30 Safe Place to Work—Lineman. 26 Safe Place to Work—Lineman’s Duty to Inspect. 49 Safe Place to Work—Risks Assumed. 57 Sale, Construction and Contract—Electric Outfit. 45 Sale of Electric Motors—Time of Delivery. 36 Sale of Electrical Supplies, Municipalities and the.... 13 Sale of Electricity, Contract of—Construction. 43 Sale of Generator—Acceptance. 30 Sale of Storage Battery—Surety Bond for Purchase Price . 32 Selling Use of Poles—Liability to Buying—Company’s Employees . 38 Servant, Duty to Instruct Inexperienced. 64 Servant, Injuries to—Defective Electrical Machine... 38 Servant, Master and—Existence of Relationship. 62 Service, Discontinuance of—Rights of Companies. 47 Sidewalk, Wire on—Contributory Negligence. 20 Small Wire Falling Across High Power Wire—Lia¬ bility . 35 Stock and Bonds, Ownership of Electrical Company’s 25 Storage Battery, Sale of—Surety Bond for Purchase Price . 32 Street. Charged Wire in—Contact—Proximate Cause.. 29 Street, Dangerous Pole in—Liability. 33 Street, Guy Wire in. 22 Street Lamp, Lowered—Constructive Notice. 6 VIII Name of Case Page Street Lighting, Municipal. 45 Streets, Rights of Senior and Junior Light Companies in . 4 Superintendent, Negligence of—Evidence. 34 Supplies, Contract for Electrical—Construction. 36 Supplies, Electrical—Liability of Municipalities. 27 Supplies, Municipalities and the Sale of Electrical.... 13 Surety Bond for Purchase Price—Sale of Storage Bat¬ tery . 32 Surplus Power—Condemnation—Public Necessity.... 10 Switch Accident, Open. 46 Switch, Exposed Electric Light—Liability of Land¬ lord . 49 Telephone Company’s Use of Electrical Company’s Pole .. 34 Telephone Lineman, Liability for Injuries to—Unin¬ sulated Wires. 53 Telephone Wires, Contact of Power and — Guard Wires . 40 Telephone and Light Wires—Assumed Risks. 4 Term of Franchise. 44 Test of Electrical Installation—Waiver. 10 Time of Delivery—Sale of Electric Motors. 36 Time and Cause of Break, Evidence of—Broken Wire 37 Track, Light Wire Sagging Over Railroad—Duty of Railroad Company. 39 Transformers, Installation of—Expenses—Discrimina¬ tion . 60 Travel, Ordinary—Height of Wires. 24 Trees, Condemnation of Right to Cut Trees. 8 Uninsulated Wires—Liability for Injuries to Telephone Lineman . 53 Use of Electrical Company’s Pole by Telephone Com¬ pany . 34 Use of Light Plant for Other Purposes—Interference with Private Plants. 58 Use of Poles, Selling—Liability to Buying—Company’s Employees . 38 Use, Private—Use, Public. 14 Use, Public — Manufacturing Corporation — Eminent Domain . 63 Waiver—Test of Electrical Installation. 10 Water Power, Appropriation of — Power Companies’ Riparian Rights. 37 Wire, Broken—Contact—Proximate Cause. 21 Wire, Broken—Contributory Negligence. 31 Wire, Broken—Evidence of Cause and Time of Break 37 Wire, Broken—Notice to Company. 66 Wire, Guy, in Street. 22 Wire in Street, Charged Guy—Contact—Proximate Cause . 29 Wire, Light, Cut by Sagging Telephone Wire—Lia¬ bility of Light Wire Owner. 67 Wire, Light, Sagging Over Railroad Track—Duty of Railroad Company. 39 Wire on Sidewalk—Contributory Negligence. 20 Wire, Small, Falling Across High Power Wire—Lia¬ bility . 35 IX Name of Case Page Wires, Contact of Power and Telephone—Guard Wires 40 Wires, Contact of—Destruction by Fire—Damages... 21 Wires, Contact of—Hidden Danger—Rubber Gloves.. 2 Wires, Dangerous Proximity of—Evidence. 17 Wires, Duty to Guard Crossing—Assumed Risk. 59 Wires, Duty to Inspect. 58 Wires, Guard—Contact of Power and Telephone Wires 40 Wires, Height of—Ordinary Travel. 24 Wires, Light and Telephone—Assumed Risks. 4 Wires on Highways—Care Required. 61 Wires, Overcharged, Injuries to Consumer by.. .. 54 Wires, Proximity of Light to Telephone—Liability for Injuries . 16 Wires, Uninsulated — Liability for Injuries to Tele¬ phone Lineman . 53 Wiring Buildings, Mechanics’ Lien for. 28 Witness, Electrical Engineer as Expert. 66 Work, Safe Place to—Lineman. 26 Wrongfully Cutting Off Current. 56 X RECENT LEGAL DECISIONS OF INTEREST TO ELECTRIC LIGHT, POWER, AND STREET RAILWAY PLANTS, AND TELE¬ PHONE COMPANIES Persons Assisting Electrical Employee—Known Danger HE agent of a traction company was in the habit i of employing a man to help him to clean the electrical machinery in the plant, such helper looking to the agent for his pay. Neither of them contem¬ plated that the helper should become an employee of the traction company. The helper was injured by com¬ ing in contact with charged wires. In an action against the traction company the company was held not liable. Even if the agent had had authority to invite persons into the sub-station, the plaintiff’s own testimony showed that he knew of the danger when the current was on, and therefore he assumed the risk of being in¬ jured. Blalack v. Texas Traction Co., Texas Civil Appeals, 149 S. W. 1086. Construction of Franchise—Lighting Private Residences I N AN ACTION by an individual against an electric light company to compel it to furnish lights for a house, in accordance with a franchise requiring it to furnish lights for private and commercial lighting and for private residences, at different rates, the petition was held demurrable because it did not allege that the house was a private residence. The company’s franchise provided in one clause that it should furnish lights for “private and commercial lighting” at a cost not exceeding 75 cents per light per month, and in the next clause that it should furnish 1 lights for use in “private residences” at a cost not ex¬ ceeding 50 cents per light per month, flat, or 15 cents for 1,000 watts in case the current was run through a meter, in which latter case the company might charge for wiring houses and the cost of the meter, in addition to the charge for 1,000 watts. It was held that the former clause referred to private and commercial light¬ ing in all buildings except private residences, and the latter clause to the lighting of private residences. Marion Electric Light and Ice Co. v. Rochester, 149 Ky., 810, 149 S. W., 977. Contact of Wires—Hidden Danger—Rubber Gloves I N AN ACTION for the death of an employee of a light company against the light company and two telephone companies the complaint alleged, as the cause of death, contact with a ground wire, which was in con¬ tact with a guy wire, forming a general connection with the high voltage wire on which the deceased was working. It proceeded upon the theory that the de¬ ceased was set to work in an unsafe place, and showed that the only ground wire attached to the pole on which the deceased was working did not extend down the pole to the ground. It was held that answers of the jury to special interrogatories to the effect that the deceased cut off the ground wire below the guy wire an hour before the time of his injury did not amount to a find¬ ing that the wire cut by the deceased extended to the ground, so as to show that the deceased himself made the place unsafe. Other answers of the jury were to the effect that among the crew’s equipment were rubber gloves and that the deceased’s failure to wear such gloves while attempting to repair the insulation on the light company’s wires “contributed proximately to the cause of his death.” It was held that it was not shown that conditions rendering the wearing of rubber gloves necessary were present and known to the deceased, or could have been known to him by the exercise of ordinary care at the time he undertook to tape the wire. The deceased by his contract of em¬ ployment assumed the risks naturally incident to the service for which he was employed, and those known to him or which he could discover in the exercise of ordinary care. Those dangers which are unknown to the servant and not discoverable by him with ordinary 2 care, but which are, or by ordinary care of the master should be known to him, are not assumed. The de¬ ceased went up the pole to place upon it a cross-arm. It did not appear that his signal purpose on the pole was to handle the high-tension wires at all. The order to tape the wire came to him when he was on the pole, and the accident happened while he was doing so. From all appearances observable to him there was no danger in doing so as he did. The only danger was the secret contact of wires unknown to him and known to the master. The light company was held liable and the telephone companies not liable. Marion Light & Heating Co. v. Vermillion, Indiana Appellate Court, 99 N. E., 55. Lien for Installing Electric Light Fixtures A LEASE of premises authorized the installation of gas and electric fixtures by the lessee. A sub¬ lease made a contract for the manufacture and instal¬ lation of the fixtures. The contractor afterwards filed a mechanic’s lien on the premises for the price. The fixtures consisted of electric light ceiling lamps or chandeliers, electric light reflectors, pendants, brackets, and lanterns, and gas and electric light brackets, espe¬ cially designed and manufactured with reference to the general decorative scheme and architecture of the building. It was held that they constituted an “im¬ provement of real property,” and the designing, manu¬ facturing, installing, and furnishing thereof constituted the performance of labor and furnishing of materials for the improvement of real property, entitling the con¬ tractor to a lien under the New York Lien Law. Wahle-Phillips Co. v. Fifty-ninth street—Madison Avenue Co., 153 N. Y. App. Div. 17; 138 N. Y. Supp., 13. Personal Injuries—Excessive Damages A BOY of 10 was injured in May by coming in con¬ tact with a live electric wire. He was rendered unconscious for a short time from the shock, and was burned in both hands and his shoulder and leg. He remained in the hospital three days, and was dis¬ charged from treatment by his physician on August 5th. He went to school during the following Septem¬ ber and had apparently recovered. His physician testi- 3 tied that the scars in his left palm would probably re¬ main tender, and that the right arm was smaller than the left caused by non-use during his convalescence. The only contention made that the injury was per¬ manent was that the flexibility of the thumb and finger of the left hand was not as great as it was originally. It was held that a verdict allowing the plaintiff $5,000 was excessive, and should be reduced to $3,000. City of Austin v. Browning, Texas Civil Appeals, 150 S. W., 961. Light and Telephone Wires—Assumed Risks A MAN of mature age and fairly well educated, having previously worked about electric plants and being familiar with the dangers attending tele¬ phone and electric light wires, was employed as a “trouble finder” by a telephone company. He was sent to repair a broken wire strung on a cross-arm above electric light wires, knowing that the light wires were not insulated, except to protect them against the weather, and that if the telephone wire came in contact therewith it would be dangerous. While working on the wire it came in contact with the electric light wire, and the man was slightly shocked, but not injured. Thereafter he attempted to draw the telephone wire taut, when it again came in contact with the electric light wire, and he received a shock which resulted in his death. In an action therefor against both the tele¬ phone and light companies it was held that the danger was not latent, but that the deceased proceeded with knowledge thereof and assumed the risk, and judg¬ ment for the plaintiff was reversed and a new trial ordered. People’s Telephone Co. v. Conant, C. C. A., 198 Fed, 624. Rights of Senior and Junior Light Companies in Streets A CTION was brought by an electric company to prevent another with a junior franchise from placing its wires in dangerous proximity with those of the plaintiff company. In stating the facts of the case the court said that it had been demonstrated by the un¬ contradicted evidence that in the best of pole construc¬ tion no pole will maintain its perpendicular or other 4 position in which it is set. Climatic conditions all have their tendency to cause the pole to vary from its orig¬ inal position, causing a greater or less sag in the wires included in the span. It has been demonstrated by mathematical calculation that in a span 100 feet in length the deflection of a pole at the top a distance of three inches towards the other pole in the span will in¬ crease the sag 18 inches; and that six inches of deflec¬ tion will increase the sag 34 inches, over an original sag of 24 inches. This tendency in pole line construc¬ tion of poles to change their position is one of the con¬ ditions that must be guarded against in the maintenance of two or more electric pole line constructions on the came street or highway. The preponderance of evi¬ dence in the present case showed that safe pole line construction requires a clearance between wires of two or more different or independent constructions of at least 24 inches, and that this clearance is observed in all cases where due regard is had for the safety of life and property. As between electrical companies exercising similar franchises upon the same streets the court made several rulings. First, it was held that priority carries su¬ periority of right. Second, the subsequent licensee is under duty so to construct and maintain its wires and lines as not to interfere with the right of the prior occupant of the streets to properly maintain and oper¬ ate its lines and to transact the business it is author¬ ized by its franchise to transact. Third, equity will en¬ join all interference of junior companies with senior companies which is not strictly avoidable, and this without regard to the extra cost of the methods which might be necessary for the junior company to use to prevent such interference. Fourth, the company hav¬ ing the prior right upon the street is entitled to as much space therein as is reasonably necessary for the safe and successful operation of its line, including any addi¬ tional space that it may be reasonably anticipated will become necessary in the future for the growth and en¬ largement of its business. Fifth, there is no right, without the consent of the other party, in one electric light company to attach in any way its wires to the poles of another electric light company, or to attach the wires of another electric light company to its own poles. Edison Electric Illuminating Co. of Williamsport v. Citizens’ Electric Co., 235 Pa., 492, 84 Atl., 438. 5 Maintenance of Electric Line on Rural Highway— Necessity for License A CTION was brought to enjoin two individuals, doing business as the Wilson Electric Light Company, from the construction of an electric line from one city to another along the highway in order to furnish light, heat, and power to the inhabitants re¬ siding along the line. It was contended that such a use could not be made of the highway without express legislative authority. It was held that the transmitting and carrying of light, heat, and power along a high¬ way for distribution among consumers is a legal proper use of the highway, and that a person may build and maintain such a line on a rural highway without hav¬ ing obtained a franchise or special license from any officer, provided it is done in a way that will not seri¬ ously impede or endanger public travel or unnecessarily interfere with the reasonable use of the highway by other members of the public, and there is no invasion of the rights of the owners of abutting lands. If such a line should be built and maintained so as substantially to interfere with the legal and proper use of the high¬ way by others of the public, or if the appliances set up and used in the highway constituted a nuisance, the State, at the instance of the Attorney General or County Attorney, might maintain an action to enjoin the continuance of the nuisance or the further illegal use of the highway. State v. Weber, 88 Kan. 175, 127 Pac., 536. Lowered Street Lamp—Constructive Notice A CTION was brought against an electric light com¬ pany for a death caused by the point of de¬ ceased’s umbrella, which he was carrying above his head, coming in contact with one of the defendant’s lamps, which had by some means been lowered from its normal position some 10 or 12 feet above the street, until it hung at a point above the street where such lamps are trimmed, that is, about four feet above the street. The lamp was suspended in the ordinary way, so that it could be lowered for the purpose of trim¬ ming, and was intended to be and at frequent intervals 6 was so lowered. The evidence showed that there was no defect in the light or the apparatus by which it was raised or lowered, in so far as the raising or lowering, or security of it when raised, were in question. It was held that the mere fact that the lamp in some way had been lowered from its normal position until it hung about four feet above the street was not evidence of negligence, or that the lamp fell by reason of some de¬ fect in the apparatus which held it in place. It had been lowered from its normal position only about an hour and a half, and the fact was in no way indicated at the power house. It was held that finding that the electric light company had constructive notice of the lamp being down was contrary to the evidence. Rea¬ sonable care did not require such a frequent inspection. Huscher v. New York & Queens El. L. & P. Co., 139 N. Y. Supp., 537. Eminent Domain Proceedings N appeal from an award of assessors in condem- nation proceedings under Georgia Civil Code, 1910, Sec. 5206, et seq., is a de novo investigation, and the defendant in such proceedings may file an appro¬ priate legal defense thereto. In such a case the con¬ demnor had described the entire tract of land of the condemnee, out of which it was proposed to take the condemned land, as containing 125 acres. A portion of the condemnee’s plea averred that the tract con¬ tained 175 acres, instead of 125 acres, which would be affected by the taking of the land specified in the notice. It was held that the condemnee was entitled to show this, and a refusal to strike this portion of the plea was correct. Central Georgia Power Co. v. Cornwell, 139 Ga., 76 S. E., 387. Penalty for Failure to Install—Complaint A CTION was brought to recover a penalty under California Civil Code, § 629, which provides that upon application of the occupant of a building distant not more than 100 feet from any direct wire of an electric corporation, and “payment by the applicant of 7 all money due by him,” the corporation must supply electricity for the building, and, on its refusal to do so for 10 days after the application, must pay applicant $50 as liquidated damages, and $5 a day as damages for every day the refusal continues thereafter. The complaint contained no allegation concerning the pay¬ ment of any money due from the plaintiff to the de¬ fendant, or that no money was due. It was held that the complaint was bad as not meeting the requirement of the law as to the condition precedent of payment of all money due by the applicant. Thompson v. San Francisco Gas & Electric Co., 20 Cal. App. 142, 128 Pac., 347. Condemnation of Right to Cut Trees HE power of eminent domain has been expressly X conferred by statute in North Carolina on those electric companies which have dedicated their property to the public service. Revisal 1905, Secs. 1571-1577, authorizes corporations maintaining lines for electric power to acquire by condemnation such rights, priv¬ ileges, and easements as may be reasonably necessary to the enterprise. Section 2575, et seq., provides that such corporations may enter on such contiguous lands along their route as may be necessary to protect their property, etc. A corporation had acquired a right of way 100 feet wide to convey electric power, upon which it maintained its line. It subsequently insti¬ tuted further proceedings to condemn a further right or privilege in the defendants’ lands. This was the right to cut certain trees standing within 100 feet of the lines of the right of way, which it alleged were, on account of their height and proximity to the power line, a constant menace and source of danger to it and its safe operation. It was held that the right of eminent domain is not necessarily exhausted by a single exercise of the power, but, within the limits established by the gen¬ eral law or special charter, a subsequent or further exercise of the power may be permissible. The term “rights and privileges” in the statute were held broad enough to include the right sought to cut trees. Un¬ der Section 2584, providing that any person whose rights are affected may show cause against granting 8 the petition, the reasonable necessity for condemna¬ tion becomes an issuable question on allegations of fact showing bad faith on the part of the corporation or an oppressive abuse of discretion. Yadkin River Power Co. v. Wissler, North Caro¬ lina Supreme Court, 76 S. E., 267. Contracts—Ratification I N AN ACTION against a city for the price of blowers furnished for its electric plant, the defense was, first, that no purchase was made, and second, if it was made, there was a breach of contract by the plaintiff. The chairman of the electric committee, who made the contract, had no authority to do so, but the blow¬ ers were received by the city, and installed in its plant, and operated for nine months. It was held that the city was estopped from setting up want of authority of the chairman to execute the contract. Diamond Power Specialty Co. v. City of West Point, 11 Ga. App. 533, 75 S. E., 903. Forfeiture of Franchise for Non-User I T has been held in two actions decided at the same time by the Supreme Court of Missouri that twenty years non-user of a franchise to use the streets of a municipality in any way necessary to carry on the business of furnishing electric light forfeits the fran¬ chise, which may be declared void upon quo warranto. A franchise to use the streets for the erection of poles and wires for the transmission of electricity carries with it an implied condition of the furnishing of such services. An intention to resume at some indefinite future time the furnishing of electricity for light and power will not avoid the forfeiture of the franchise. And the state’s right to forfeit it on quo warranto cannot be barred because the holder of the franchise is then able and desirous of resuming, there being no occasion for the state to assert the forfeiture until there is an attempt to resume. State v. Light & Development Co. of St. Louis (Mo.), 152 S. W., 67. State v. West End Light & Power Co. (Mo.), 152 S. W., 76. 9 Test of Electrical Installation—Waiver T HE contract for the wiring and otherwise equip¬ ping with electrical appliance a theatre belonging to the defendants provided that a final test should be made by the contractors at least six days before the opening of the theatre, in the presence of the archi¬ tect, the owners, and “inspector having jurisdiction,” and that notice must be given in writing by the con¬ tractors to each of the parties. There was evidence tending to show that such inspection was not made before the opening of the theatre, but that the work was somewhat hurried in order to be completed in time for the theatrical performance, and that the de¬ fendants received the work without requiring any such inspection or making any protest on account of its omission. It was held that the defendants thereby waived the requirement as to the time of the test. Bandy Bros. v. Norton Frierson’s Sons, 138 Ga., 515. Condemnation—Public Necessity—Surplus Power W HEN a public service corporation seeks con¬ demnation for public purposes only, its power to exercise the right of eminent domain will be sustained. If it should thereafter attempt to use for private pur¬ poses the property taken, the right and authority to pre¬ vent such an abuse or wrongful act rests in the super¬ vising and controlling power of the State. An electric power company had a contract and franchise by which it had agreed to furnish power for public use to the town of Camas, Wash., and it had agreed to furnish power to an electric public service railroad about to be constructed. It sought to develop 10,000 horse-power, and contemplated the procuring of other contracts for the transmission of such power to various localities to be devoted to public uses only. It was objected that the amount sought to be appropriated was largely in excess of present or prospective public need or demand. It was held that the proof of the contracts which the company had made was sufficient to show public neces¬ sity, though the requirements of the contracts would only consume a small part of the energy it contem¬ plated producing. Any public service corporation, when installing an electric plant, must anticipate future 10 as well as present needs of the public, and it may con¬ demn private property with such needs in view. It was also held that the company was not barred from the right of condemnation because it also intended to sell any surplus power generated for private consumption. State ex. rel. Lyle Light, Power & Water Co. v. Superior Court, 70 Wash. 486, 127 Pac. 104. Authority to Issue Electric Light Bonds T HE Constitution of Texas authorizes the levy of a tax “for the erection of public buildings, streets, sewers, waterworks, and other permanent improve¬ ments.'’ In a suit to enjoin a city from issuing bonds for the construction of an electric light plant it was urged that the erection and operation of an electric light plant is an enterprise so different from the erec¬ tion of public buildings, streets, sewers and water¬ works that under the rule of ejusdem generis it could not be regarded as included in the clause “other per¬ manent improvements.” It was held that, waterworks and electric light plants being of the same general character of public utilities or improvements, electric light plants are ejusdem generis with waterworks. Simpson v. City of Nacogdoches, Texas Civil Ap¬ peals, 152 S. W., 858. Fixing Rates—City Council’s Power T EMPORARY injunction was sought to restrain the city council of Charleston from enforcing the rates to be charged by a light, heat and power com¬ pany, pending the hearing of the action for injunction by the Supreme Court. The city’s right to fix such charges was expressly reserved in the franchise un¬ der which the company operates, but it took the po¬ sition that this agreement was made subject to the state’s sovereign power to assert its control over the rate to be charged by public service corporations. It contended that the state has exercised that power by the statute of 1912, creating a public service commis¬ sion authorized to fix charges for gas and electricity, 11 and has thus destroyed the right to fix rates, con¬ ferred on the council by the franchise contract. The court said that it might be that the state could, by statute, supplant any rate fixed by the council under the contract. Taking the view most favorable to the company, and assuming that the state has reserved that power, it was held that, until the commission has exercised its power to fix a different rate, that provided by the contract stands. Giving the broadest meaning and full force to the statute, it empowers the commission to make a maximum rate lower or higher than that which it may find fixed by the public service corporation it¬ self, or by some agency which has fixed the rate under the authority of the corporation. Until the commis¬ sion acts, the power of the corporation to provide its rates is unhampered by the statute. The petition for temporary injunction was therefore denied. Charleston Consol. Ry. & Lighting Co. v. City of Charleston, 92 S. C., 127, 75 S. E., 390. Proximate Cause A N excessive current of electricity on telephone wires leading into a manufacturing company’s plant caused fire and sparks to fly from the telephone instrument in the boiler room, threatening to destroy the plant. The employee in charge of the machinery, to protect the plant, cut the wires, and in so doing he received a shock which caused his death. In an action against the telephone company, it was alleged that the telephone wires were negligently strung about 6 feet beneath the wires of a transmission company, and neither were protected by insulation, and that the tele¬ phone instrument was not protected by ground wires, fuse plugs, or other safety devices. It was stated for the defendant that an adjacent property owner climbed a tree upon his property and cut a limb which fell upon the transmission line, breaking it and causing it to come into contact with the telephone line. It was con¬ tended that this act was an intervening efficient cause of the injury which resulted proximately therefrom. The telephone company’s negligence was admitted. If 12 the act of cutting the limb from the tree was negligent merely, and not malicious, and combined with the com¬ pany’s negligence to cause the injury, both parties were liable. If it was legal, the negligence of the defendant was the proximate cause of the injury. Judgment for the defendant was reversed, and a new trial ordered. Crandall v. Consol. Tel., Tel. & Electric Co., Arizona Supreme Court, 127 Pac., 994. Municipalities and the Sale of Electrical Supplies W OOD, as a citizen and taxpayer of the city of Dalton, Ga., brought an action against the city and its water, light, and gas commission, consisting of named persons, to enjoin the defendants from further engaging in the business of selling electrical supplies to the inhabitants of the city, installing electrical appli¬ ances for them, and generally transacting the busi¬ ness of a private electrician, on the ground that such acts were ultra vires. There was no positive and direct evidence submitted in behalf of the plaintiff on the hearing for an interlocutory injunction that the city, or such commission, was engaged, at the time the petition was presented to the judge, or for a con¬ siderable time prior thereto, in doing the acts sought to be enjoined. The only evidence for the plaintiff on such hearing consisted in the opinions, conclusions, and inferences of witnesses, from given facts which had not been authorized. The evidence for the de¬ fendants was positive that neither the city nor any of its officials was engaged in the business complained of at the time of the presentation of the petition to the judge, nor for several weeks prior thereto, and that such business was discontinued because of the com¬ plaint of the defendant. At the time the petition was brought, the city electrician, who was not a party de¬ fendant, was engaged in ordering electrical supplies from a dealer in such articles, and kept them on hand as city electrician, to be furnished to the citizens of the town who might desire to purchase them. When 13 such articles were purchased by the citizens the price was paid to the city electrician, who deposited the pro¬ ceeds of such sales in the bank to his credit as city electrician, on which account, as city electrician, he drew checks in favor of the dealer supplying the ar¬ ticles. There was an understanding between the city electrician and the person supplying such articles that the former was not to pay for the same, but was merely to forward to the dealer the proceeds of sales, and such articles as were not purchased by the citizens to be re¬ turned by the city electrician to the seller. There was a further understanding by the city, or the commis¬ sion, and the seller of such articles, that the city in no event was to be liable for any of the electrical sup¬ plies forwarded to the city electrician and purchased from him by the citizens. It was shown to be the duty of the city electrician to supervise all electrical work done in the city, including inside wiring for private parties, as well as that outside for streets, etc., and that for such services and the furnishing of electrical ma¬ terial to the citizens in the manner above stated the city electrician received no more salary than was paid him prior to engaging in such work. The Superior Court granted an interlocutory injunction, but, on ap¬ peal, the Supreme Court held that in view of the evidence above detailed the judge erred in doing so, and reversed the judgment. City of Dalton v. Wood, 139 Ga., 102, 76 S. E., 863. Public Use—Private Use I N condemnation proceedings in which it was con¬ tended that the proposed taking was not for a pub¬ lic use, the evidence showed that the only present mar¬ ket for electric current and the only present purpose of the Sultan Electric Company was to furnish electric light to the town and inhabitants of Sultan. It was held that the use was a public one, authorizing the ex¬ ercise of the power of eminent domain. While the articles of incorporation of the company empowered it to manufacture and furnish electricity for all pur¬ poses, public and private, these uses are separable. In such a case, it was held, condemnation may be had for the public use only. It is not the objects for which the 14 corporation is formed that prevent a diversion of the property condemned to a private use. The preventive rests in the power of the state to compel it to exercise its granted privileges. The company sought to utilize the fall of a creek to the extent of 80 horse-power, and there was a present need for only about 30 horse¬ power for public use, but the court thought, in view of the probable growth of the town and the continually increasing domestic uses to which electric current may be put, the margin was not excessive. The evidence failed to show that there was any intention to use that power, then or in the future, for other than the public use, except possibly in such small quantities as to be insignificant and incidental to the main public purpose. State v. Superior Court, Washington Supreme Court, 127 Pac., 591. Company’s Knowledge of Danger to Children A BOY of 10 years of age, while playing near a church, climbed over the brick wall surrounding the churchyard to get a ball and accidentally caught hold of some electric wires placed there by a light com¬ pany, burning his hand and arm and crippling him for life. The boy had contrived to climb over the wall, which was 7 feet 8 inches high, by first climbing upon some rock piled against it, and thence upon a board fence close to the wall, then over the wall. The light company had no knowledge that the rock was piled against the wall, or that a boy could climb over the wall, or that boys were in the habit of entering the churchyard from the adjacent lot. It was held that the company, having no reason to anticipate that chil¬ dren would go into the churchyard and be injured, was not liable. The “turntable doctrine” which was invoked by the plaintiff’s counsel, was established upon the idea that something dangerous to children had been constructed at a place where children were in the habit of passing or congregating, or at a place easy of access and inviting to children, and that these facts were known to the owner of the dangerous struc¬ ture. Meyer v. Union Light, Heat & Power Co., 151 Ky., 332, 151 S. W., 941. 15 Electric Plant a “Place of Business” PLANT for the manufacture and distribution of electrical power, at which is maintained a large force of laborers, under the control of a superintendent or foreman, is a “place of business,” within the mean¬ ing of Georgia Civil Code 1910, § 2259, relating to mode of service of suits upon domestic corporations. Central Georgia Power Co. v. Parnell, 11 Ga. App. 779, 76 S. E., 157. Proximity of Wires to Telephone Wires—Liability for Injuries HE Supreme Court of Idaho holds that an elec- I trie light and power company which maintains its poles within a foot of the pole of a telephone company, and carries and maintains live wires charged with elec¬ trical current, is chargeable with notice that laborers and linemen, working on the telephone company’s poles and wires, may and will come in close contact with the electric light wires, and is chargeable with the duty of protecting such persons against receiving injury from the current carried on such wires. This duty is com¬ mensurate with the danger apparent. A telephone “trouble man,” while seated on a messenger wire, was suddenly and without apparent cause precipitated onto a live wire maintained by an electric light company im¬ mediately under the telephone wires, and was immedi¬ ately electrocuted. No cause was shown for the fall, and he was afterwards found to have had an electric burn on the foot which was nearest to the electric light wires. It was held, in an action against the elec¬ tric light company and the telephone company (the plaintiff electing to dismiss the action as against the telephone company), that the jury was justified in re¬ turning a verdict that the death was primarily caused by an electric shock, and the court and jury might pre¬ sume, in the absence of proof to the contrary, that the lineman exercised reasonable care and precaution in an effort to preserve his life, and that he did not expose himself to injuries and risks that he might reasonably have anticipated would inflict mortal injuries. Staab v. Rocky Mountain Bell Telephone Co., 23 Riaho 314, 129 Pac., 1078. 16 Interference of Equity Court With Operation of Electric Light Company A N electric power company which has entered into contracts with municipalities and electric roads to furnish light and power is a quasi-public corpora¬ tion. A court of equity may, in its discretion, refuse an injunction to restrain its breach of a contract with a private corporation, where the probable effect would be to disable it from performing its other contracts, or even to create insolvency, especially when the contract sought to be enforced itself provides for the payment of liquidated damages for its breach. York Haven Water & Power Co. v. York Haven Paper Co., C. C. A., 201 Fed., 270. Dangerous Proximity of Wires—Evidence I N determining whether an electric company was negligent in maintaining a high-voltage wire near a telephone wire, the Utah Supreme Court holds that the jury might consider the nature of the current car¬ ried, the proximity of the wires, the lack of necessity for dangerous proximity, the ease with which danger could be avoided, and the length of time danger had continued. Swan v. Salt Lake & O. Ry. Co., Utah Supreme Court, 127 Pac., 267. City’s Liability for Injuries A CITY operating an electric light plant to light its streets and also to furnish private light to the citizens, for which it charges and receives compensa¬ tion and makes a profit, is, it is held, liable for injuries to a lineman in its service. A lineman sued a city for injuries received by grasping a heavily charged arc wire, part of its system. The only means employed by the city to discover contacts between wires supposed to be dead on which its linemen were working, and wires charged with electricity, was an indicator or switch¬ board in the power house which its engineer was re¬ quired to watch. It was held liable to a lineman for 17 the engineer’s failure to watch the indicator; the duty of inspection being a non-delegable one, and the engi¬ neer not being a fellow-servant of the lineman. City of Greenville v. Branch, Texas Civil Appeals, 152 S. W., 478. Duty to Use Rubber Gloves A YOUTH, 17 years of age, in the employment of a telephone company, was killed by taking hold of uninsulated telephone wires which had fallen across a heavily charged electric cable. In an action against the light and power company for his death it was held that it was the deceased's duty to exercise reasonable care for his safety. The jury were properly instructed that if in attempting to remove the telephone wire he omitted to take such precautions as a reasonably pru¬ dent boy of his age and experience should have taken, and in the exercise of ordinary care he could have known of his liability to injury from the cable, and that the wearing of rubber gloves and boots would have lessened his peril, and if the jury believed that the wearing of such articles would have been a rea¬ sonable precaution for him to take for his own safety, and that, knowing of the peril of working without them, he took hold of the wire without such precaution, the jury should find for the defendant. Judgment for the defendant was affirmed. Jefifrey v. Union Electric Light & Power Co. (Mo.), 153 S. W., 498. Circumstantial Evidence A FIREMAN in a power plant whose duty it was to ascend a ladder to inspect the water in a tower tank was found unconscious and dying near the foot of the ladder. In ascending the ladder he had to pass through a space of about 30 inches between the ladder and defectively insulated wires. There were no eye-witnesses of the accident, and no direct and positive evidence connecting the death with the de¬ fective insulation of the company’s wires. In an action 18 for the death several witnesses who saw the body, in¬ cluding two physicians, testified that the muscles of the hands were contracted and that the palms were black inside. The physicians testified that a shock might produce this condition. It was held that the evidence, though circumstantial only, was sufficient to show causal connection between the company’s negligence and the deceased’s death, and judgment for the plain¬ tiff was affirmed. Houston Lighting & Power Co. v. Barnes, Texas Civil Appeals, 152 S. W., 722. Minimum Rate Ordinance A CITY ordinance prohibited electric light com¬ panies from charging a minimum rate of more than 50 cents a month. An electric light company sought to enjoin the enforcement of the ordinance. It alleged that the cost to the company of maintaining gen¬ erating capacity for, and service connections with, each consumer exceeded the sum of 50 cents per month, and that a reasonable charge therefor was $1 per month; that the minimum rate prescribed by the city, if en¬ forced, would reduce the revenue of the company by “sums aggregating many thousands of dollars per month, and to an amount less than the actual cost of furnishing the service,” and would deprive the com¬ pany of the right to receive from each consumer the cost of supplying it to him. It was held that no facts were stated showing that the rate complained of was confiscatory, or that, if enforced, it would deprive the company of its property without just compensation. The matters averred might be important, if addressed to a rate-making tribunal; but the court had no au¬ thority to fix rates, nor should it attempt to assume such a power and set aside rates fixed by a legislative body, because it might, upon investigation, come to a different conclusion as to the reasonableness thereof. In a case of this character, the court can review the action of the rate-making body only so far as to de¬ termine whether or not, under the rate prescribed and the other rates which the company may lawfully charge, it will be unable to realize a fair and just re- 19 turn on the value of its property devoted to the par¬ ticular public use, and will amount to a taking of its property without just compensation. Portland Ry., Light & Power Co. v. City of Port¬ land, 200 Fed., 890. Wire on Sidewalk—Contributory Negligence I F a telephone wire is found broken and lying on the sidewalk, dangerously charged with electricity, a person who is injured by coming in contact with it, without fault on his part, is not bound, in order to fix liability for negligence on the part of the company hav¬ ing ownership, charge and control of such wire, to prove specifically how or in what manner the wire was broken and became charged with electricity, nor how long the wire had been broken and lying upon the side¬ walk in such dangerous condition. The presence of the broken wire on the sidewalk dangerously charged with electricity would be sufficient to raise an inference of negligence against the telephone company. A person walking on the public highway is not necessarily guilty of contributory negligence if he sees a broken electric wire on the sidewalk, with nothing to indicate that it is a live wire, and voluntarily picks it up and throws it off the sidewalk out of his way. If the wire is charged with electricity, and he is injured by contact therewith, he may recover damages according to the facts, either against the city or the electric company owning and controlling the wire, or against both, if the facts show that they are joint tort-feasors. Southern Bell Telephone & Telegraph v. Davis, 12 Ga. App. 28, 76 S. E., 786. Condemnation Procedure W HEN power is given to a municipality to con¬ demn land for municipal purposes, the pro¬ cedure necessary to give effect to the right to condemn must also be prescribed, otherwise the power given will be insufficient. So, where private laws authorized the commissioners of a city to acquire land by condemna¬ tion for the construction of an electric light plant, but 20 failed to provide any procedure therefor, the city ac¬ quired no power to condemn the land thereunder. But the city was authorized to maintain such proceedings under a public law granting to all municipal corpora¬ tions the right to build and operate a system of electric light plants, and not only conferring in express terms the right to condemn property, but also prescribing the necessary procedure. Eppley v. Bryson City, 157 N. C. 487, 73 S. E, 197 Destruction by Fire—Contact of Wires—Damages I N AN ACTION against an electric light company and a telephone company for damages for the par¬ tial destruction of the plaintiff’s residence and house¬ hold goods by fire, alleged to have been caused by the contact of insufficiently protected light and telephone wires, it was held that the measure of damages for in¬ jury to a house which might readily be repaired was the cost of repairing, together with the value of its use while that was being done. Cooper v. Kankakee Electric Light Co., 164 Ill. App., 581. Broken Wire—Contact—Proximate Cause A CTION was brought for injuries sustained by the plaintiff through coming in contact with an elec¬ tric current escaping from the wires of a power com¬ pany, due to a break in the wire caused by a telegraph company. The suit was against both companies. The telegraph company’s wires were below the high-tension wire of the power company, and the employees of the former company had brought a rope in contact with the wire, causing it to burn out and break, one of the ends falling on a wire fence. It was held that they were guilty of negligence, and that their act in leav¬ ing it in that condition without warning their employer or the power company was gross negligence. The power company was held not liable, and judgment was given against the telegraph company. It was held that that company could not escape liability on the ground that the negligence of its servants in making 21 the short circuit was not the proximate cause of the injury, because the power company had turned on the current after the automatic circuit breaker had cut it off upon the breaking of the wires; it appeared that this was the customary method of testing a line for breaks before making a search. Metz v. Washington Water Power Co., Washington Supreme Court, 130 Pac., 343. Guy Wire in Street A TELEPHONE company is liable for personal in¬ juries to a person who, in the dark, falls over a guy wire in a street which has not been taken over by the city, but which has been used by owners of houses facing thereon for years. Raines v. East Tennessee Telephone Co., 150 Ky. 670, 150 S. W., 830. Disobedience of Orders—Effect T WO employees of a light company who were em¬ ployed in wiring and installing electric light fix¬ tures in dwelling houses, were directed to attach some wires to certain low tension electric light wires lead¬ ing into a residence. Instead of doing so they at¬ tached them to a high tension wire carrying 2,200 volts. One of them, who afterwards picked up the two wires, was killed and suit was brought against the light company for his death. It was held that the disobedience by the deceased of his orders having brought about his death, and the employer not hav¬ ing learned of the danger to which his negligence had placed him in time to avoid injury to him, the em¬ ployer was not liable. In handling so dangerous an in¬ strumentality as currents of electricity of 2,200 volts, the utmost care must be used by those having charge of it, and a corresponding degree of care must be used by the servants for their own safety in handling it. A disobedience of orders not only endangers them¬ selves, but endangers the lives of others. West Kentucky Coal Co. v. Kuykendal’s Adm’r, 151 Ky., 384, 151 S. W., 928. 22 Liability for Injuries Caused by Abandoned Insulator A TELEPHONE company, on abandoning its service to a customer, left an insulator affixed to the side of the building. A boy playing near was in¬ jured by the insulator falling upon his head, the screw affixed penetrating his skull. It was held that the telephone company was negligent in failing either to remove or inspect the insulator and that it was liable for the injuries. Reid v. New York & New Jersey Telephone Co., 151 N. Y. App. Div., 96, 135 N. Y. Supp, 846. Duty Toward Mere Licensee A N EMPLOYEE of a telephone company, in order to repair one of its wires which crossed the wire of an electric light company, went upon a pole belonging to the light company, and suspended a plat¬ form above its wires. While on the platform he re¬ ceived a shock due either to the platform coming in contact with a light wire or his feet or legs coming in contact with it. In an action against the light com¬ pany it was held that, in the absence of any agreement or invitation, he was, at most, a mere licensee, and the light company did not owe him the duty of ordinary care. Judgment for the plaintiff was reversed. Dennison Light & Power Co. v. Patton, 105 Tex., 621, 154 S. W., 540. Fuse Box Accident—Evidence A N EMPLOYEE of a light company was injured while attempting to place fuses in the junction pole fuse box as directed, for which he sued his em¬ ployer. Only two customers were using power beyond that point, and the utmost capacity of their motors was 28^2 amperes. The plaintiff testified that less than 60 amperes was harmless. It was held that the company could not be charged with knowledge that their cus¬ tomers would use more current than the capacity of their motors, or that there was, or was likely to be, 23 trouble on the line, in the absence of any evidence to that effect. The mere fact of the accident and result¬ ing injury was insufficient to raise an inference of ac¬ tionable negligence. Gleason v. Missouri River Power Co., 45 Mont., 395, 128 Pac., 586. Height of Wires—Ordinary Travel r HE high-tension transmission line of a power company in the Yakima Valley, Washington, ran along the edge of the public roads, about 40 feet above the ground. The voltage was very high and insulation would have been impracticable, if not impossible. A hay derrick, such as is used in stacking hay in that locality, 45 feet high, was being hauled along the road. A boy was riding in the loop of the cable, which hung so low that it came within a short distance of the ground. The ground was uneven and the pole of the derrick swung round so that the wire cable came in contact with the power line, at a time when the boy had his foot on the ground. A circuit being thus formed, the boy was severely shocked and burned and he sued the power company for damages. It was held that the power company’s duty was to put its wires high enough to leave the road safe, not for any and all travel, but for usual and ordinary travel. There was no evidence tending to prove that, at the time it built its power line, hay derricks 45 feet high, including the projection of the arm above the mast, were so gener¬ ally hauled over that road as to constitute ordinary and usual travel, and, if it was a fact, it was a fact that the court could not judicially know. Judgment for the defendant on a directed verdict was affirmed. Mayhew v. Yakima Power Co., 72 Wash., 431, 130 Pac., 485. Rival Claims to Light Plant A MONT AN A mining company erected an electric light and power plant for its own use upon one of a group of placer claims belonging to another with¬ out that other’s consent. The mining company after¬ wards became bankrupt, and the plant came into the 24 possession of its trustee. The owner of the land filed a petition in the bankruptcy court to recover the land and the plant thereon. It was held that, as the Mon¬ tana statutes provide that property taken for mining and milling ores is for a public use, and may be con¬ demned by an individual or corporation for such use, the trustee might defend on the ground that the taking was for a public use, and the court might permit him to retain the property for the estate, and might fix the compensation to be paid the owner for his land. Bear Gulch Placer Mining Co. v. Walsh, 198 Fed., 351. Injury to Pedestrian A N ELECTRIC light tower had been constructed and was owned by a city for use in lighting a section of the city by means of a cluster of electric lights at the top. A lighting company, under a con¬ tract with the city, furnished the light and the lamps and kept them lighted and in repair. The light com¬ pany, to enable its employee to attend to the lighting of the tower, maintained an unguarded hoisting appa¬ ratus, consisting of a basket in which the employee hoisted himself. When not in use the basket was merely tied down and not locked. While some chil¬ dren were playing about, the basket became unfas¬ tened, and descending rapidly, threw out a stone which struck and killed one of them. It was held that the company was liable for the death, notwithstanding that it did not own the tower and that at long intervals a city official used the apparatus to inspect the tower. Harris v. Eastern Wisconsin Ry. & Light Co., Wis¬ consin Supreme Court, 140 N. W., 288. Ownership of Electrical Company’s Stock and Bonds A PERSON who buys an electric light plant, incor¬ porates a corporation, sells the plant to it, and takes the corporation’s stock and bonds in payment is the owner of the stock and bonds and does not hold them for the benefit of the corporation. Malloy v. Drumheller, 68 Wash., 106, 122 Pac., 1005. 25 Lineman—Safe Place to Work A LINEMAN in the employment of an electric company was sent to the top of a light pole on which were strung wires which, if a circuit was formed, would cause his instant death. An uninsu¬ lated guy wire was sent up to him, which he under¬ took to fasten to the pole. The end of the guy wire came in contact with the ground, forming a circuit, and when the lineman came in contact with the feed wire, he was killed. In holding the company liable for his death, it was said that his work required him to be on the pole. It was the company’s duty to use care commensurate with the danger toward keeping the place safe. The place became unsafe not because of the presence of the feed wire, but because the unin¬ sulated guy wire came in contact with the ground. If it had not been allowed to do so, the lineman could have remained in contact with the feed wire indefi¬ nitely without injury. It was the company’s duty to prevent contact of the guy wire with the ground, and the lineman had the right to rely upon the performance of his duty. It was the company’s duty to know of the perilous situation and to guard against it. This duty could not be delegated so as to allow the company to escape liability. Evansville Gas & Electric Light Co. v. Robertson, Indiana Appellate Court, 100 N. E., 689. Injuries Caused by Independent Contractor I N AN ACTION against a power company for in¬ juries received by tripping over a wire stretched across the sidewalk, the company’s principal defense was that, having been ordered by the city to remove certain poles and wires, it employed an independent contractor to do the work; that the work was done wholly under his management and control, and that it was through the negligence of his employees and not of the employees of the power company that the accident occurred. Judgment for the plaintiff was re¬ versed on the ground that the injuries were not caused by the negligence of the power company’s employees. Winslow v. Glendale Light & Power Co., 164 Cal., 688, 130 Pac., 427. 26 Assessment of Electric Companies I N ASSESSING an electric company’s franchise to use public highways in a county, the requirement under California Const., Art. 13, Sec. 10, that property be assessed in the district in which it is situated, etc., was held to be substantially complied with by valuing the franchise in each school district according to the number of miles of transmission lines in that district, without reference to the extent of the public highways over which the lines were erected. It was also held that, while in the absence of fraud, mere irregularities in a tax assessment do not vitiate it, the action of a board of equilization in confirming the assessment on the franchise of an electric company to use the public highways of a school district, is void, if the company did not use any part of the highways in that district. Kern River Co. v. Los Angeles County, 164 Cal., 751, 130 Pac., 714. Nature of Franchises I N the granting of franchises for the use of its streets and highways by street railways, water¬ works, electric light and telephone or other public service companies, a city is not ordinarily acting in a private or proprietary capacity, or as a corporation for pecuniary profit, but as an instrumentality of govern¬ ment, acting as an agent for the state in a sovereign capacity. Its franchise is in effect a grant from the state and is to be interpreted as such. In contracting with water companies for water for fire or other pur¬ poses, and with electric light companies for lighting its streets and in other such matters, it is acting in a private and proprietary capacity. State v. Des Moines City Ry. Co., Iowa Supreme Court, 140 N. W., 437. Electrical Supplies—Liability of Municipalities A CTION was brought by an electric supply com¬ pany against a city for furnishing and installing the electric fixtures in the city hall at the time it was remodeled. There was a general contractor for the work of remodeling, but the plaintiff dealt with and 27 extended credit in the transaction solely to the city authorities, regarding them as acting for the city. The defenses were that the general contractor, under his contract with the city, was required to furnish these fixtures, and that the city authorities had no power to make the contract with the plaintiff. It was held that, assuming that the contract required the general contractor to furnish the fixtures, and that they were covered by and to be paid for out of the contract price to be paid the general contractor by the city, yet if the plaintiff, not being a party to that contract and with no knowledge or notice of it, through bona fide negoti¬ ations had with the mayor and building committee of the aldermanic board, did, as a matter of fact, furnish the fixtures to the city on its sole responsibility, and the city accepted, retained, and used the fixtures so furnished by the plaintiff and refused to return or pay for them on proper demand made, the city would nevertheless be liable to the plaintiff for the reasonable value of the fixtures under an implied contract. Even if it were true that the plaintiff could not re¬ cover on a contract because the city authorities with whom he dealt were not authorized to bind the munici¬ pality, and the aldermanic board as such, which only would have been authorized to bind the city, did not act in the matter, yet the plaintiff would not on that account be without a remedy and would not be pre¬ cluded from a recovery in an action of assumpsit of the reasonable value of the fixtures on an implied con¬ tract. The right to recover on the implied contract is based on the contract that the law makes between the parties implying a promise to pay a reasonable compensation for the property retained to the use and benefit of the municipality. Restitution of the prop¬ erty itself might be enforced in a proper case, but the plaintiff was not confined to the right to recover the property. Judgment for the plaintiff was affirmed. City of Mobile v. Mobile Electric Supply Co., 6 Ala. App., 131, 60 So., 426. Mechanics’ Lien for Wiring Buildings I N AN ACTION to foreclose a mechanic’s lien for wiring a building it was held that an averment that the electric work and wiring done by the claimant was “in and upon the building” was a sufficient averment 28 that it was “part of ’ the building. The building was upon an undivided piece of real estate owned jointly by the defendants, and there was another building upon the lot for which none of the materials or labor was furnished. It was held that the lien under the Indiana Mechanics’ Lien Act covered the entire tract. Judah v. F. H. Cheyne Electric Co., Indiana Appel¬ late Court, 101 N. E., 1039. Charged Guy Wire in Street—Contact—Proximate Cause I N AN ACTION for death it appeared that about 2.30 o’clock on a morning of November a current of electricity from the defendant electric company’s feed wire carrying 5,000 volts was shunted to a guy wire in the street, causing a ground. About 5 o’clock a. m. the dead body of the deceased was found lying face upwards, in close proximity to the guy wire. The left hand and back of the head were badly burned, the right hand charred, and the clothing mostly burned from the body. The slippers worn by the deceased were off some distance from the feet as though thrown off. The deceased had left his home to go to a saloon and as he passed the spot he saw fire blazing from the earth in the immediate vicinity of the guy rod. Shortly afterwards he left the saloon, with the remark that he intended to investigate what he considered a peculiar phenomenon. A few minutes after that his body was discovered in a position indicating that he had taken hold of the charged guy wire. It sufficiently appeared to the court that the deceased at the time he was killed was at a place where he had a right to be, and was not on the private property of the defendant. He did not sustain toward the defendant when killed the relation of a trespasser. Being lawfully on the highway the defendant owed as to him the high degree of care commensurate with the danger incident to the prox¬ imity of the wires so charged. His contact with the wire, if negligent, was held to be an act of a con¬ curring and contributory character, and not an inde¬ pendent, sole, or efficient cause of his death, and the defendant’s negligence in permitting the guy wire to 29 become charged was the proximate cause thereof. In the absence of proof as to whether his contact with the wire was voluntary, intentional or the result of acci¬ dent, such contact did not establish that the deceased was negligent as a matter of law, but the question was one for the jury. Judgment for the plaintiff was affirmed. Michigan City Gas & Electric Co. v. Dibka, Indiana Appellate Court, 100 N. E., 877. Safeguards Against Lighting T N AN ACTION for the burning of a store by light- 1 ning conveyed by the defendant’s telephone wires it was held that a telephone company may be liable in damage for a fire caused in such a manner if it is shown that none of the usual safeguards have been used. It could not be held that the indirect effects of the indirect forces of a stroke of lightning might not be minimized and rendered harmless by those safe¬ guards in common use; and it was actionable negli¬ gence to fail to provide any safeguards. Peninsular Telephone Co. v. McCaskill, 64 Fla., 420, 60 So., 338. Sale of Generator-Acceptance I N AN ACTION for the contract price for the in¬ stallation of a generator, it was contended by the seller that its use by the defendant for a short time was tantamount to an acceptance under the contract, which provided that operation should constitute ac¬ ceptance. It appeared, however, that the whole of such operation was in an effort to procure, if possible, information as to any existing defects, and to ascertain if the generator could be made to operate. It was held that this operation did not constitute an ac¬ ceptance. Sherman v. Ayers, 20 Cal. App., 733, 130 Pac., 163. 30 Broken Wire—Contributory Negligence A BOY 11^2 years old playing in a street was killed by contact with a high voltage wire which had become detached four days before and hung nearly to the ground beside the gutter. Both his hands were badly burned, showing that he had grasped the wire. The light company was guilty of negligence in leaving the wire in such a condition for such a length of time, but in an action for the child’s death it relied upon the child’s contributory negligence. There was evidence of three witnesses that the boy picked up the wire and was told to put it down, that it was dangerous, that the lights would soon be turned on, and that he would be killed, and also that the lights were not turned on then but were turned on soon thereafter, and the boy then fell dead. There was some evidence for the plaintiff tending to show that the lights were burning when the accident happened, and some on the part of the defendant to the effect that the wire had been cut before the time of the accident. The trial court directed a verdict for the defendant, but this was reversed on appeal for the reason that, there being some evidence to contradict that adduced by the defendant to show contributory negligence, the question should have been submitted to a jury, rather than ruled upon by the court as a mat¬ ter of law. State v. Crisfield Ice Mfg. Co, 118 Md, 521, 85 Atl, 615. Ledger as Evidence of Account A CTION was brought by an electric company for the reasonable value of materials furnished and labor performed for the defendant, and also on an ex¬ press contract. It was held that a ledger kept by the company in the regular course of business by a book¬ keeper, who had no personal knowledge of the amount of the material charged thereon, but who made entries from memoranda furnished by the employees who sent out the material, was admissible as affording some proof of the account. Indianapolis Outfitting Co. v. Cheyne Electric Co, Indiana Appellate Court, 100 N. E, 468. 31 Sale of Storage Battery—Surety Bond for Purchase Price A CTION was brought against the sureties on a bond to secure the return of the purchase price of a storage battery if the use of the battery should be enjoined and the plaintiff elected to rescind the con¬ tract of sale. The seller of the battery was not a party to the action. It appeared that the battery in the plain¬ tiff’s hands, after he had exercised his option to re¬ scind, was not a security for the payment for which the sureties bound themselves. It was held that the sureties could not set off the damages sustained by the seller from the plaintiff’s failure to properly care for the battery. The right of action, for the plaintiff’s fail¬ ure to care for the battery was personal to the seller, and not determinable in a proceeding to which he was not a party. Graham v. Middleby, 213 Mass., 437, 100 N. E., 750. Damages to Property—Burden of Proof of Con¬ tributory Negligence A CTION was brought by a telephone company against three power companies for damages to its telephone system caused by the falling of the de¬ fendants’ feed and high-tension wires, which were stretched across the plaintiff’s telephone wires, upon these wires during a sleet storm. It was held that the telephone company must still prove its freedom from contributory negligence. The Indiana statute which provides that, in actions for damages for negligence causing personal injuries or death the plaintiff need not prove want of contributory negligence, which shall be a matter of defense, does not apply to tort actions for injuries to property. Ft. Wayne V. W. & L. Traction Co. v. Monroeville Howe Telephone Co., Indiana Supreme Court, 100 N. E., 68. 32 Dangerous Pole in Street—Liability A BOY, while playing in the highway, leaned against an electric light pole and came in con¬ tact with a chain used to raise and lower the lamp, receiving an electric shock which caused his death. In an action therefor the negligence complained of was the failure to have the chain beyond the reach of a per¬ son who came in contact with the pole, or to have thereon an insulator. It was held that the boy was rightfully in the highway, at the time of the accident, and was guilty of no trespass against the electric com¬ pany. At most, the relation existing between it and the boy was that which arises between two licensees upon land of a third party. Each must use ordinary care not to injure the other or his property. It was admitted that the electric company knew that children were in the habit of playing near its dangerous pole, and that they were liable to be seriously injured by the faulty construction of the appliances attached to it. It was therefore held that its negligence was the proxi¬ mate cause of the injury. Thompson v. Tilton Electric Light & Power Co., New Hampshire Supreme Court, 88 Atl., 216. Construction Contract—“Cost of Accidents” A N ELECTRICIAN in the employ of a company engaged in the construction work for a railroad under a contract to electrify its lines recovered a judg¬ ment for personal injuries against his employer. Part of the judgment was paid by a casualty company, and the construction company sued the railroad company for the balance. The construction company worked on a percentage contract which provided that its com¬ pensation should be 10 per cent, of the actual cost of the work, and that the total cost should include, among other things, the “cost of accidents.” It was held that the construction company could recover from the railroad company the amount of the judgment, less the sum paid by the casualty insurance company. Westinghouse-Church-Kerr Co. v. Long Island R. R. Co., 80 Misc. (N. Y.), 127, 141 N. Y. Supp., 644. 33 Negligence of Superintendent—Evidence A N ELECTRIC LIGHT COMPANY had a rule that, when the current was turned off while em¬ ployees were at work on the wire, it should never be turned on until word was received directly from those working on the line that they were finished and off the line. The superintendent of the company, who lived a short distance from the power house, heard the telephone bell at the power house, and called to an employee there to attend to it. The employee knew that there were men working on the line, but did not hear what the superintendent said. He asked him if the workmen had telephoned, and he claimed that the superintendent nodded his head. He then went to the telephone, and receiving no answer, he turned on the current, killing an employee. In an action for the death it was held that these facts did not show neg¬ ligence on the part of the superintendent, but that the accident was due to the negligence of a fellow serv¬ ant of the deceased, for which the employer was not liable. Luther v. Standard Light, Heat & Power Co., 208 N. Y., 383, 102 N. E, 514. Telephone Company’s Use of Electrical Company’s Pole A TELEPHONE COMPANY attached its wires to the pole of an electric light company without any mutuality of benefit or any contractual relation, and without compensation, but solely by the electric company’s permission, implied by its passive acquies¬ cence. A telephone lineman was killed by contact with the electric company’s wires while trying to remedy a defective condition of a telephone wire. In an action against the electric company it was held that there was no express or implied invitation for the telephone com¬ pany, or its employee, to go upon the pole, and in do¬ ing so they were volunteers or licensees using it sub¬ ject to all the conditions and perils, as to whom the electric company was only bound to abstain from in¬ flicting intentional, wanton, or wilful injury. The pole of an electric company placed in the street and which 34 is its private property, is not property that any one has a right to use and assume to be in a safe condition. Heskell v. Auburn Light, Heat & Power Co., 209 N. Y., 86, 102 N. E., 540. Small Wire Falling Across High Power Wire— Liability A CTION was brought against a telephone and a light company for damages for injuries caused by contact with a telephone wire which had fallen across a wire of the light company and hung into the street. A verdict was directed for the light company, and returned against the telephone company, which ap¬ pealed from the judgment thereon. It was held that if an accident occurred because of electric wires im¬ properly insulated hanging over a street, it would be immaterial upon the electric company’s liability whether they hung there for a long or a short time. The negligence did not consist in the length of time they hung over the street. Where one is injured by contact with an electric wire suspended over a street, the presence of .the wire is a presumption of negligence, placing the burden upon the electric company to free itself from the effect of such presumption. It was held that it is the duty of an electric company which maintains smaller wires suspended above highly charged electric wires to have the small wires per¬ fectly insulated, so that should they fall upon the other wires so as to receive a sufficient charge of elec¬ tricity as to make them dangerous to life, injury would not result. The proximate cause of an injury from contact with a defectively insulated wire which fell upon a large power wire, and hung over the street charged with electricity from the power wire, was the falling of the uninsulated wire upon the power wire, since the accident would not have occurred with¬ out that. If an electric wire was in such a condition that it would break in the absence of storm or unusual force, the electric company was chargeable with knowl¬ edge that it might break, and that its insulation was defective. Southwestern Tel. & Tel. Co. v. Shirley, Texas Civil Appeals, 155 S. W., 663. 35 Sale of Electric Motors—Time of Delivery I N AN ACTION for the price of electric motors sold to a company which had resold them to the Gov¬ ernment under a contract requiring their delivery within a certain time under penalty of a forfeiture, the defense was based upon damages due to delay in delivering the motors to the Government, for which delay it was alleged the plaintiff was responsible. It was held that the plaintiff was not necessarily bound by the defendant’s liability for a penalty because the plaintiff was “acquainted” and “advised” of the de¬ fendant’s contract with the Government. It would be natural and usual, if the plaintiff was to be bound by some undertaking of the defendant, that the details of such understanding should be included in the plaintiff’s contract with the defendant. The defendant might have assumed all the risks of delays in consideration of its expected profit from the contract with the United States. It could not reasonably be predicated from the defendant’s own undertaking that the plaintiff as¬ sumed its risk. General Electric Co. v. Camden Iron Works (Pa.), 86 Atl., 1012. Contract for Electrical Supplies—Construction HE occupants of a factory building, in having 1 alterations and repairs made therein, employed electrical contractors to put in an electrical lighting equipment. The contractors ordered the equipment from the plaintiffs, who wrote to the occupants of the building, the defendants, that the contractors had no account with them, but had informed them that the defendants would pay for the materials on the comple¬ tion of the work, upon receipt of an order by the contractors. The defendants wrote on the bottom of this letter: “Will do as above on receipt of an order,” and signed it. The contractors wrote, underneath that, that they agreed to the above plan. It was held that as the whole instrument was to be construed together, it could not be taken that the plaintiffs were excused from producing and serving upon the defendants the order mentioned, the indorsement by the contractors being an aceptance of the plan made, and not an order. Pettingell-Andrews Co. v. Schrafft, 214 Mass., 459, 102 N. E., 308. 36 Appropriation of Water Power—Power Companies’ Riparian Rights I N AN ACTION for injunction against a power company it was held that the right of the power company, a riparian owner, to use the water of a float¬ able stream for power purposes by construction of a dam, intake, storage reservoir, and tailrace returning the water to the stream at a distance below the intake, and the right of a loom company to drive shingle bolts, were correlative, and each must use his right with due regard to the existence and protection of the other. In the State of Washington, where no notice of ap¬ propriation is required for taking water for power purposes, the right relates back to the first substantial act of the appropriator for the acquisition of the right, whether that act be the actual commencement of con¬ struction work or other necessary work incidental thereto, provided that reasonable diligence is exercised in finally protecting the appropriation. A power com¬ pany acquiring all riparian rights attached to all lands abutting a river on either bank, between its intake and tailrace, and establishing its rights as an appropriator, is entitled to such riparian rights as against land sub¬ sequently becoming riparian by reason of a change in the river’s course. Sumner Lumber & Shingle Co. v. Pacific Coast Power Co., 72 Wash., 631, 131 Pac., 220. Broken Wire—Evidence of Cause and Time of Break A BOY left his home about 7 o’clock in the morn¬ ing and a few minutes later was found lying on the street with a severe burn in his hand, caused by contact with a broken light wire, from which burn he died. In an action for his death it was not shown what caused the break in the wire, or how long it lay upon the ground after it was broken. It was held that it was not enough to prove the mere breaking of the wire and that it caused the injury. The question was: “Did the negligence of the defendant company cause the wire to break?” If that did not appear, there was 37 no liability on the defendant. As the evidence did not show the cause of the break, or that the company failed to remedy the trouble with due and reasonable alac¬ rity, the company was held not liable. Kahn v. Kittanning Electric Light Co., 238 Pa., 70, 85 AtL, 1117. Selling Use of Poles—Liability to Buying Com¬ pany’s Employees NE TELEPHONE COMPANY which sells to w another the right to maintain a wire upon its poles is liable for injury to an employee of the other company, who is himself free from fault, which is occasioned by the failure of the owning company to use reasonable diligence to keep the poles in such condition that they can be used with safety in the customary manner. In such a case, where the owning company for the pur¬ pose of installing a new set of poles has stripped its wires from the old ones, and an employee of the other -company is killed while removing the remaining wire by the breaking of a pole caused by a weakness not discoverable by mere observation, it is not necessarily relieved from liability by the fact that it was engaged in replacing the old poles. A general warning to the workmen to be careful while removing the wire is not necessarily sufficient to relieve the owning company from further responsibility. The owning company is not, as a matter of law, exempt from liability on the ground that the workman was bound, at his peril, to ascertain the condition of the pole before climbing it. Aaron v. Missouri & K. Telephone Co., 89 Kan., 186, 131 Pac., 582. Defective Electrical Machine—Injuries to Servant A WORKMAN while using an emery wheel re¬ ceived a shock and was thrown from the top of a car on which he was working, receiving injuries for which he sued his employer. He had used the machine for some time before, and, the day before the injury, 38 ascertaining that the hood was loose, took the machine to his employer’s repair man for inspection and repair. There was no evidence as to the particular defect in the machine that permitted the escape of the electricity; but it appeared that it might have been caused by the wearing off of the insulation on the conductor cord, or by the detachment of the fine wires therein. It was held that such facts were insufficient to show the de¬ fendant’s negligence, under the rule that a master, having adopted the customary and approved methods or tests for the discovery of defects in his appliances, discharges his duty to his employees. American Car & Foundry Co. v. Dietz, C. C. A., 203 Fed., 469. Proximate Cause of Injury I N AN ACTION by the conductor of a street car against an electric light company for injuries re¬ ceived by the breaking of a glass globe which was struck by the trolley pole, the plaintiff’s declaration alleged that, while the conductor was exercising due care in swinging the pole around it came in violent contact with the globe of an arc light negligently suspended less than 14 feet from the ground. It was held that the declara¬ tion did not on its face show that the negligence of the company was not the cause of the injury, since the act of the conductor, if he was not negligent, was merely the occasion of the injury, and not an intervening proximate cause. Rollins v. Central Maine Power Co., Maine Supreme Court, 88 Atl., 86. Light Wire Sagging Over Railroad Track—Duty of Railroad Company A N ELECTRIC LIGHT COMPANY permitted a wire which crossed a railroad track to sag so that it might come in contact with cars thereon. The rail¬ road company’s employees subsequently negligently shoved some cars across the public street against the wire. By the exercise of ordinary care they should have known that the wire was in dangerous proximity 39 to the track and likely to catch on the cars. They allowed the cars to continue after collision with the wire until it broke and was violently thrown against a pedestrian in the street, who was injured thereby. In an action against the railroad company it was held that, since the negligence of the electric light company did not first occur at the time of the accident, but before, and resulted in a condition which might have been and was in fact seen, and which was dangerous not by itself alone but in connection with the operation of the railroad, it was the duty of those operating the railroad across the public street to exercise reasonable care to observe and guard against obstructions to the passage of the cars, a collision with which might naturally cause injury to persons on the highway. The railroad company was held liable. Chicago Great Western Co. v. Hulbert, C. C. A., 205 Fed, 248. Contact of Power and Telephone Wires—-Guard Wires I N AN ACTION against a light and power company for personal injuries caused by contact with a tele¬ phone wire which had fallen across the defendant’s wires during a storm the plaintiff relied for negligence upon violation of a city ordinance which provided that where angles occur in electric lines subjecting the poles to increased strains, guard wires must be placed at the outer end of crossarms, and also whenever their pres¬ ence will prevent telephone, telegraph, or other wires from coming into accidental contact with an electric light and trolley wire. It also provided that, when it is necessary for electric light and trolley wires to run under telegraph, telephone, or fire alarm wires, per¬ mission must be granted to do so, and the company running the wires shall pay the expense of raising the other wires. It was held that the ordinance requires the erection and maintenance of guard wires only by the company last erecting its wires. As the power wires had been erected first, it was the duty of the tele¬ phone company to erect the necessary guards. But the ordinance did not relieve the light and power company from its common-law duty of erecting proper guard wires to afford reasonable protection to the pub- 40 lie, as against injuries from a crossing or contact of the wires. Wantonness in heavily charging its wire was charged against the defendant. There was no proof that the wire was so heavily charged as to render injury likely or probable under normal conditions, or that the agents or servants of the defendant knew of the contact of the two wires when charging the trolley wire, or that the telephone wire would probably fall. There was therefore no proof showing negligence of the power company, and judgment for the plaintiff was reversed. Birmingham Ry. Light & Power Co. v. Cockrum, Alabama Supreme Court, 60 So., 304. Arbitration as to Rates—Confiscatory Rates N ELECTRIC LIGHTING COMPANY’S Jr\ franchise provided that the rates to be charged should be decided every five years by arbitration, and that “the prevailing average current rates for like services in North Mis¬ souri should be the rates adopted at the end of each five years.” The arbitrators agreed that the rate should be 12 cents per kw.-hour, but nothing was said about a minimum charge. It was held that the light company could not have a minimum charge of one dol¬ lar, even though the other cities in Northern Missouri had such a minimum charge. The agreement between the arbitrators, to which no objection was made, was a binding contract. It could not be contended that the rate of 12 cents per kw.-hour was confiscatory simply because there was a loss on subscribers who consumed less than one dollar’s worth. The company was not entitled to insist on a profit on each transaction, but only on its entire business. State v. Water, Light & Transit Co., Missouri Su¬ preme Court, 155 S. W., 826. Rate Fixing—Effect of Public Utilities Act ''HE Oregon Public Utilities Act of 1911 vests in l the railroad commission jurisdiction to supervise and regulate every public utility, including corpora¬ tions furnishing heat, light, water, or power, and re- 41 quires such corporations to file schedules. It also con¬ fers on the commission jurisdiction to pass on the reasonableness thereof, and on applications for changes therein. In a suit by a power company for an injunction to restrain the city from enforcing an ordinance fixing rates to be charged by the company for supplying the inhabitants with electricity for light and power purposes it was held that the act superseded municipal charter provisions authorizing cities to fix rates to be charged by such corporations, so far as the same were in conflict or inconsistent with the powers of the railroad commission. The light company hav¬ ing filed its rate schedule as prescribed by the act, the subsequent city ordinance prescribing lower rates was invalid and unenforceable. California-Oregon Power Co. v. City of Grant’s Pass, 203 Fed., 173. Competition Between Electrical Companies — In¬ dividual Privileges—“Franchises” and Powers “Distinguished” NDER the Maine statute, Rev. St. c. 55, § 1, as u between two electrical corporations, the vested rights of the one first authorized are, to a certain ex¬ tent, protected. That statute provides that corpora¬ tions for the making and supplying of electricity for lighting or mechanical purposes may be organized shall make or sell electricity in or to any place in or to which another company or person was making or sell¬ ing electricity. It is held that under this provision authority in one corporation to supply electricity in a certain territory is prohibitive of the right of another corporation, subsequently organized under the general law, to supply it in the same territory unless by consent or by special legislative authority; but the prohibition does not extend to an individual. An electrical company, which had neither furnished electricity nor installed apparatus in the municipality for that purpose in the city, invoked the remedy of quo warranto against an individual, on the ground that he was usurping two public franchises, one to supply a 42 public utility, electricity, and the other in occupying the public streets of the municipality with his poles and wires. The defendant, who had no special statutory rights, had obtained the permission of the authorities of the municipality to erect poles and wires in the streets to supply electricity, and had constructed an electric plant and erected poles and strung wires and was holding himself out as conducting an electric light and power plant in the town for supplying all wishing to purchase. This permission had been granted under Section 16 of Rev. St. c. 55, which subjects every com¬ pany organized for the transmission of electricity, and all persons engaged in such business, to certain duties, and requires a written permit from municipal officers to erect poles, etc., in public streets. It was held that the defendant was not usurping a public franchise; that there is a distinction between a franchise and a power. The definition of a franchise, as given by Finch, adopted by Blackstone, and accepted by every authority since, is “a royal privilege or branch of the king’s prerogative existing in the hands of a subject.” It is a privilege or immunity of a public nature which cannot legally be exercised in a natural or artificial person, to carry on any particular business, and is not necessarily or usually a franchise. The right of the defendant to make and sell electricity was an inherent right or “power” of a natural person, and not a “fran¬ chise,” and the fact that such power is often conferred upon a public service corporation did not raise it to a “franchise.” Crawford Electric Co. v. Knox County Power Co., Maine Supreme Court, 86 Atl., 119. Contract of Sale of Electricity—Construction T HE owner of an electric generating plant entered into a contract whereby he agreed to construct a substation for the storage of electricity, arid to de¬ liver therefrom to the purchaser such electric current and energy as should be required by him, to be trans¬ mitted over his own wires to his patrons in neighbor¬ hood municipalities. The substation was constructed and the electricity delivered. The contract called for 43 the measurement at the substation, and the seller pre¬ sented statements for amounts due which, under pro¬ test that an improper method of measurement had been adopted, the purchaser paid. The purchaser there¬ after brought an action to recover an amount which he claimed to be an overpayment, brought about by an improper measurement of the electric current deliv¬ ered. On the trial it was found that transformers were located at the substation, and also a switchboard for measuring the current passing through. The cur¬ rent came from the seller’s power plant at a definite voltage, but in passing through the transformers a cer¬ tain amount of it was lost. The switchboard was placed in position for measuring the current as it entered the station, and the seller charged the pur¬ chaser for the quantity so delivered. It was the con¬ tention of the purchaser that it was liable under the contract only for such volume of electricity as was actually delivered after its passage through the trans¬ formers. The seller contended that the quantity for which the purchaser was liable was properly measured by the volume delivered from the generating plant to the substation before it passed through the trans¬ formers. There was, in short, a loss of current at the substation, and the question was which party, under the contract, must stand the loss. The court held that the loss must fall upon the seller. Wherland Electric Co. v. Burmeister, 122 Minn., 110, 141 N. W., 1117. Term of Franchise HE municipal grant of a franchise for the distri¬ bution of electric current contained a reserva¬ tion that, whenever the City Council should by ordi¬ nance declare the necessity of removing the poles or wires from the public highways, the granter should, within sixty days, remove the same. It is held that this reservation did not indicate that the franchise was not in perpetuity, but only for the corporate life of the grantee. Old Colony Trust Co. v. Omaha, 230 U. S., 100, 33 Sup. Ct., 967. 44 Contributory Negligence A N EMPLOYEE of a telephone company, whose duty required him to pass between defectively in¬ sulated, high-tension electric light wires, in climbing a telephone pole, and who was killed in doing so, cannot, it is held, be charged with contributory negligence as a matter of law merely because he failed to ask that the electric current be turned off, which would have been done at his request. If the danger in ascending the pole was not so great and so apparent that a per¬ son of ordinary prudence would not encounter it, the deceased would not of necessity be negligent in under¬ taking to do so, and whether or not he was negligent was a question for the jury. Rambo v. Empire District Electric Co., 90 Kan., 390, 133 Pac., 553. Municipal Street Lighting T HE City Council of Boston appropriated in May, 1911, $300,000 for the purchase of gas lamps and other apparatus for street illumination. The Com¬ missioner of Public Works refused to make the pur¬ chases authorized, believing that a large amount of money might be saved to the municipal treasury by making a contract for electric lighting. A writ of mandamus was sought to compel him to make the authorized purchases. It was held that the appropria¬ tion did not make the expenditure mandatory and that mandamus was properly refused. Smith v. Bourke, Massachusetts Supreme Court, 102 N. E., 362. Construction and Contract Sale—“Electric Outfit” T HE defendant in an action on a guaranty sold to the plaintiff, under a written contract, an engine, pump, tank, “electric outfit,” certain piping, and a grinder and boiler. In the contract it was pro¬ vided that “the material and workmanship of the above 45 is guaranteed to be good, and the engine, when installed and run according to your (the seller’s) instructions, shall develop the horsepower named above. This guaranty is good for six months, but does not apply to the batteries.” The purchaser afterwards sued the seller, alleging that the latter had sold to him a storage battery, claiming that it had a capacity of 15 lights for three hours, and that the palintiff paid therefor; that after the battery was put to work it was found that it only had a capacity for six lights for three hours. The plaintiff accordingly brought suit for damages, on the ground that the property was not of the character which he bought. It was held that the expression “electric current,” as used in the written contract, was ambiguous, and was subject to explanation by parol. It was accordingly error to reject parol testimony offered for the purpose of showing what the parties to the contract included in that expression. Fountain v. Hagan Gas Engine & Mfg. Co., Georgia Supreme Court, 78 S. E., 423. Open Switch Accident A N EMPLOYEE in a factory was found dead therein under conditions which justified the in¬ ference that his death had been caused by an electric current coming from a switch which he was required to use in performing the service in which he was em¬ ployed. The switch was an open one. In an action for his death it appeared that his thumb and index finger were burned, and that the blade had on it evidence of flesh. The switch was one in general use and had been used by the employee for several months. The danger from touching the blade was one incident to the business and obvious, and the employee had been in¬ structed how to operate the switch and not to touch any part but the handle or he would get hurt. It was held that a nonsuit • should have been granted, as no negligence on the defendant’s part appeared. Mehl v. New York Glucose Co., New Jersey Court of Errors and Appeals, 87 Atl., 457. 46 Discontinuance of Service—Rights of Companies S UIT was brought for an injunction to restrain an electric light company from closing down or dis¬ continuing its public service business of furnishing electricity to the city and its inhabitants. It was held that a corporation engaged in furnishing electricity to a municipality or its inhabitants and using public streets or exercising other franchises or privileges in doing so, is thereby performing services of a public nature, within the meaning of the constitution and laws of the State of Florida, and such a corporation is sub¬ ject to lawful governmental regulations to enforce its duties to the public it undertakes to serve. Where a public utility company uses franchises and assumes the duty imposed by law to render a reasonably adequate service during the times its rights and duties may law¬ fully continue, such duty may be enforced by appro¬ priate legal procedure, where no adequate excuse for non-performance is appropriately shown. Allegations that governmental regulations are in effect confiscatory and unduly arbitrary and burdensome to a public serv¬ ice company do not justify the company in arbitrarily discontinuing the public service, for the company has adequate remedies by due process of law to protect itself against the enforcement of illegal governmental regulations. While it is the duty of a public service company to observe all lawful municipal regulations, the company has a right to a reasonable compensation for the public service it renders and to the equal pro¬ tection of the laws in every department of the gov¬ ernment. Illegal municipal regulations are not bind¬ ing; but persons and corporations cannot be permitted to arbitrarily assume to remedy an alleged wrong by refusing to render a public service voluntarily under¬ taken. City of Gainesville v. Gainesville Gas & Electric Co., Florida Supreme Court, 62 So., 919. Right of Condemnation T HE Georgia statute (Civ. Code 1910, Sections 5240-5242) extends to power companies gener¬ ating electricity for public use the right to condemn rights of way or other easements on the lands of others, in order to run lines of wires, maintain dams, etc., 47 but declares that such power of condemnation shall not be used to interfere with any mill or factory actually in operation. A power company sought to condemn the right to stretch its wires over a quarry near which was a stone crusher. The owner con¬ tended that the quarry was incidental to the operation of milling the stone, and sought to enjoin the condem¬ nation. It was held that a stone crusher is not a mill or factory, and that the protection accorded to mills and factories does not extend to property from which the crude material is taken for supplying such mill or factory. Beuchler v. Georgia Ry. & Power Co., Georgia Su¬ preme Court, 78 S. E., 121. Power of Municipality to Purchase Public Utility U NDER its home rule charter it is held that the city of Virginia, Minnesota, has power to ac¬ quire a water and light plant by purchase, to have the terms of purchase fixed by agreement without resort¬ ing to the method of ascertaining value prescribed in the chapter relating to eminent domain, and to issue and negotiate bonds to obtain funds with which to pay for the plant without a prior levy of revenue sufficient to pay for the bonds as they mature. Backus v. City of Virginia, Minnesota Supreme Court, 142 N. W., 1042. Inspection Contract—Construction T HE plaintiff brought an action to recover an in¬ spection fee which he had paid under a contract of the defendant to inspect the plaintiff's electric in¬ stallation for the purpose of determining correctness of charges for current, guaranteeing a saving of 10 per cent, or to refund the inspection fee. He also agreed, without extra charge, to obtain the cheapest contract for electric current, test the plaintiff’s meters, and examine motors whenever necessary, and audit bills when presented, and obtain rebates on all over¬ charged bills to date. No attempt was made at the trial to show that any saving whatever in the plain¬ tiff’s light bills had been accomplished by the defend- 48 ant, to rebut the plaintiff’s testimony that no saving was made. The defendant attempted to prove an excuse for his failure to reduce the bills, in that he made certain recommendations to the plaintiff to change his lamps from carbon burners to tungsten or tantalum, which, he said, would have caused a reduc¬ tion in the bills had the plaintiff followed his recom¬ mendations. It was held that the reduction guaran¬ teed was to arise from what the defendant agreed to do, and that the plaintiff was entitled to recover the inspection fee paid. Independent Owners’ Garage Co. v. Hirsch, New York Appellate Division, 142 N. Y. Supp., 346. Exposed Electric Light Switch—Liability of Landlord A LIGHT COMPANY has been sued and held liable for injuries caused by contact with an exposed electric light switch in a house which it had rented to the plaintiff, not in its capac¬ ity as a public utility supplying electric light, but, in tort, for a negligent breach of duty, which in any case, the court said, without re¬ gard to the terms of the contract of lease, the land¬ lord owes the tenant. Where there are obscure defects dangerous to the life, health, or property of the tenant, existing and known to the landlord when the lease is made, but unknown to and unappreciated by the ten¬ ant, and which a reasonable, careful examination on his part would not discover, it is the duty of a landlord to disclose them that the tenant may either decline the premises or guard against the defects. The failure to disclose such defects or dangers is culpable negligence. Howard v. Washington Water Power Co., Washing¬ ton Supreme Court, 134 Pac., 927. Lineman’s Duty to Inspect—Safe Place to V/ork A CTION was brought for the death of a servant employed to reset electric poles who was killed by an electric shock while climbing among live wires for the purpose of attaching a pulley to the old poles 49 used in hoisting the new ones. It was held that a servant so employed assumes the risk of all ordinary dangers incident to so hazardous an employment, but not the risk of unknown and abnormal dangers due to the master’s negligence. It is negligence for which the master is liable to a servant so employed, who is in¬ jured or killed thereby, to permit a joint or connection to be made in a highly charged electric wire and remain uninsulated, and so close to one of the metal braces supporting a cross-arm on the pole as to charge it. The rule regarding a safe place to work and safe appliances was held to apply, because the old pole was a means or appliance which the deceased used in the perform¬ ance of his work, with the master’s acquiescence. It was therefore the master’s duty to see that the wires on the pole were in a reasonably safe condition. The deceased was bound to test the strength of the pole, the fact of a new one being put in its place being enough to put him on guard as to any defect, but he was not chargeable with the duty to use extraordinary care to avoid danger from imperfect wiring. Whether the deceased was guilty of contributory negligence in failing to see that the untaped joint in the primary wire rested against the metal brace was held to be for the jury. Perry v. Ohio Valley Electric Ry. Co., West Vir¬ ginia Supreme Court, 78 S. E., 692. Falling Globe—Cause of Accident—Burden of Proof CTION was brought against a light company for 2~V injuries received by the plaintiff while making fast a boat at a ferry through being struck by a frag¬ ment of a glass globe that fell from the defendant’s lamp that hung outside of the pathway on the ferry bridge. The top of the globe was fastened by three screws into a ring thrust into a collar, where three bolts engaged three slots in it, and then turned so that its rim rested on the bolts. A chain connected the globe to the lamp for the sole purpose of holding the globe when detached from its fitting in the lamp. After the accident, the defendant’s attorney found the ring detached from the globe, on a beam which was beneath the lamp. The doctrine of res ipsa loquitur 50 was invoked by the plaintiff. It was held that the cause of the fall of the lamp was an important, but not indispensable, ascertainment. So far as it entered into the matter, the burden of showing it was on the per¬ son having the thing in its control. If it were known, the defendant’s care in respect to the cause could be considered. But if the cause were not discovered, yet if the defendant exercised reasonable care in regard to the things that in reasonable expectation would keep the lamp intact, it was faultless. The burden of ex¬ planation was thrown on the defendant, but to explain that it was not negligent, rather than the cause of the accident. When the rule res ipsa loquitur is applic¬ able, the facts are deemed to “afford sufficient evidence that the accident arose from want of care on its part,” and the defendant must rebut this inference. But it was not necessary to show the cause of the accident in order to do this. It would be helpful if the defendant could make the specific cause known, and then show its care respecting it. But if it negatived the presump¬ tion of negligence, by showing its care as to all prob¬ able cause, that would be sufficient. Judgment for the plaititiff was reversed and a new trial granted. Sweeney v. Edison Electric Illuminating Co., 158 N. Y. App. Div., 449, 143 N. Y. Supp., 636. Generation of Power—“Public” T HE New York Appellate Division has decided that the generation of electricity from water power by the State to be furnished to the public upon equal terms is a public use for which private property may be condemned. This question, the court said, does not appear ever to have been decided in the State of New York before, but in some jurisdictions it has been held that such a generation of electric power is a public use (Walker v. Shasta Power Co., 160 Fed., 856, 859), and some authorities seem to hold that the develop¬ ment of water power even for private consumption is such a public purpose as to justify the exercise of the right of eminent domain (Hazen v. Essex Co., 12 Cush. Mass., 477). Without going to the extent of the latter case, which the court thought might be ques¬ tioned on principle, it saw no reason why the fur¬ nishing by the State of electric power generated by the 51 State waters to the public upon equal terms would not be properly a public use, especially as the case seems to hold that this same business, if engaged in by a private corporation, would be a public one. Available water power sites in any State must always be limited in number, and will probably increase in value with the progressive exhaustion of nearby coal deposits. The navigable waters of the State of New York are pri¬ marily owned by the public, and if the State in further¬ ance of a policy of conservation decides to retain or regain all its rights therein, and ultimately to use such waters for power generation, such a policy seemed to the court clearly public in its nature, so that the right of eminent domain may be invoked. Long Sault Development Co. v. Kennedy, 158 N. Y. App. Div., 398, 143 N. Y. Supp., 454. Right of Condemnation—Private Purpose A TRACTION company was authorized to gener¬ ate electricity for public and private use, and was given the power of eminent domain by its char¬ ter and by general statute. It was held that it was no answer to its application to condemn land that it in¬ tended to use it for private, as distinguished from the public, purpose. If, after acquiring the land for pub¬ lic use, it devoted it to a private purpose, such use could be terminated by quo warranto. Wadsworth Land Co. v. Piedmont Traction Co., North Carolina Supreme Court, 78 S. E., 297. Escape of Current Into House—Care Required A PERSON was killed while turning off a switch in a house through a high voltage current escap¬ ing from a primary to a secondary wire, the trans¬ former having got out of order. The plaintiff offered to show by a qualified witness that it was customary for illuminating companies to use a device, not used by the defendant, which would prevent high voltage 52 from flowing from primary to secondary wires and thence into buildings, which evidence was excluded. It was held that this evidence should have been ad¬ mitted. It was held that the case should have been submitted to the jury on the question of the defend¬ ant's negligence, for the reason that, where a corpora¬ tion, for its profit, assumes to control the distribution of a substance as dangerous to human life as electric¬ ity when the current is maintained at a high voltage, it is its duty to exercise at least reasonable care to prevent its escape in a death-dealing manner. The burden of proving that the deceased exercised due care was upon the plaintiff. As there were no eye wit¬ nesses to the occurrence, it need not be proved by testi¬ mony addressed directly to its support, but might be shown by evidence of circumstances excluding fault. The switchboard and its appliances were ordinarily harmless. There was nothing to manifest danger at the time of the injury, and the deceased had no reason to suppose that the switchboard or its parts had sud¬ denly become deadly. The deceased was where he had a right to be. The question of his contributory neg¬ ligence was for the jury. It was held that the force causing the death of the deceased, lethal in its nature unless properly contained, being in the control of the defendant, and the casualty being such as in the ordi¬ nary course of the business does not happen if reason¬ able care is used, proof of these circumstances, regard¬ less of direct proof of defective appliances, afforded, in the absence of explanation, sufficient evidence that the accident occurred from want of care on the defend¬ ant's part. Judgment for the defendant was reversed, and a new trial granted. Webster v. Richmond Light & R. Co., 158 N. Y. App. Div., 210, 143 N. Y. Supp., 57. Uninsulated Wires—Liability for Injuries to Tele¬ phone Lineman A N EMPLOYEE of a telephone company, whose wires were lawfully stretched above those of an electric light company, found it necessary to climb one of his employer’s poles between the wires of the light company. In so doing he received a shock from one 53 of the light company’s wires, and, falling to the ground, was killed. In an action for his death, the plaintiff’s evidence tended to show that the light company had had, for a long time, constructive notice of the unin¬ sulated condition of the wire at this part. The de¬ ceased was lawfully about his business when he was climbing up the pole for the purpose of repairing his employer’s line of wires, and it was held that the light company, which had never questioned the right of the telephone company to maintain its line of poles and wires as they had been set 12 years before, was bound to know that, from time to time, its employees would do just what the deceased did, and bound by such knowledge, the duty resting upon the light company was to use the very highest degree of care practicable to avoid injury to any one who might be lawfully in proximity to its wires and liable to get accidentally or otherwise in contact with them; and, if the light com¬ pany was negligent in this respect, it was no defense that the company which had employed the deceased had not taken proper care to protect its employees from the negligence of the other company. Whether the light company was negligent and also whether the de¬ ceased was guilty of contributory negligence, were questions for the jury. Judgment for the plaintiff was affirmed. Hippie v. Edison Electric Illuminating Co., Pennsyl¬ vania Supreme Court, 87 Atl., 297. Injuries to Consumer by Overcharged Wires A PATRON of an electric company was injured by touching insulated wires, which had been overcharged, while adjusting a device of his own for starting and stopping an electric motor, and sued the company. The device was not shown to increase the danger, therefore he was held not guilty of contribu¬ tory negligence, since he had a right to assume that it was safe, as it ordinarily was, to touch such wires, and the overcharging was the proximate cause. Although an electric company is not an insurer of the safety of persons who must come into contact with the appli¬ ances through which the electricity is conveyed, the company must nevertheless use a degree of care com- 54 mensurate with the dangers incurred. The patrons of the company have the right to assume that everything that is open to touch concerning such appliances can be touched with safety, and that the company has done all that human care, vigilance, and foresight can rea¬ sonably do, consistent with the practical operation of its plant, to render such appliances safe. Whether the company had done so was a question for the jury. White v. Reservation Electric Co., Washington Su¬ preme Court, 134 Pac., 807. Contributory Negligence A PERSON of 19 years of age, who knew that electric light wires were dangerous, saw a wire fall during a severe storm and burn the grass. He was warned that it was dangerous, but he stopped and took hold of it with his hands and was almost instantly killed. In an action for his death it was held that he was guilty of contributory negligence, and that the light company was not guilty of negligence. Bowman v. Farmersville Mill & Light Co., Texas Civil Appeals, 158 S. W., 200. Right to Construct Dam A CORPORATION, authorized by law so to do, erected a dam across a stream, and constructed in connection therewith a plant for generating elec¬ tricity by water power, to be used for the purpose of lighting towns or cities, supplying motive power to street car lines, and furnishing light or power to the public. It was held that an ordinary had no jurisdic¬ tion to proceed summarily under Georgia Civil Code 1910, Section 5333, for the purpose of abating the dam and plant as a public nuisance. Central Georgia Power Co. v. Ham, 139 Ga., 569, 77 S. E., 396. 55 Wrongfully Cutting Off Current A LIGHT company’s cut-out inspector called at a consumer’s apartment, and obtained entrance under the pretense of wishing to read the electric meter. Instead of doing so, however, he turned off the current, explaining that the consumer did not pay his bills. There was, in fact, no unpaid bill at the time. Under the contract the company had the right to enter the consumer’s apartment to read or inspect the meter at all reasonable times; under the statute it had the right to enter and cut off the current if bills were over¬ due and payment was refused after a demand. The time of the entry, 4.30 on a week-day afternoon, was held to be a reasonable time to read or inspect the meter or to cut off the current because of an unpaid bill; but as there was no unpaid bill at the time, the entry under pretense of inspection and the wrongful turning off of the current without the consumer’s con¬ sent were held to constitute a trespass for which the company would be liable. It was immaterial, except as to the amount of damage, whether such a tortious entry was obtained by deceit, stealth, threats, force, or with¬ out actual consent; in any case it was a trespass. Olin v. United Electric Light & Power Co., 62 Misc. (N. Y.), 143 N. Y. Supp., 1012. Defective Insulation I N a workman’s action against an electric com¬ pany for injuries from coming in contact with an electric wire, while standing on a ladder painting a municipal building, it appeared from the evidence that the insulating material used was such as is ordinarily used upon the wires when hanging in the air, and out of ordinary reach. It was held that it did not follow that insulation of this character is reasonably safe for use upon wires at points where they enter buildings, or where it may reasonably be expected that persons in the discharge of duty may accidentally come in con¬ tact with them. Insulation that may be sufficient at one place may not constitute proper protection against danger from the wires at another. Evidence to show 56 that the wires were not properly insulated at the spot where the accident occurred was held admissible, and a judgment of nonsuit was reversed on account of its exclusion. Yeager v. Edison Electric Co., Pennsylvania Su¬ preme Court, 88 Atl., 872. Risks Assumed—Safe Place to Work A CTION was brought for injuries to a person in charge of a car used as a temporary substation, for injuries caused by shock from wires running along the ceiling. The trial court instructed that the defend¬ ant was required to furnish its employees with a suit¬ able and ordinarily safe place in which to work, and where an employee, relying upon his employer so do¬ ing, receives injuries because of neglect to disclose to him hidden defects which the employer should have known by the exercise of reasonable prudence, the employer is liable for such injuries; that the employer undertakes not to expose employees to dangers which are not obvious, or of which the latter have no knowl¬ edge or inadequate comprehension, and which are not reasonably incident to the ordinary risk of the serv¬ ices ; and even if defendant failed to perform its duties thus defined toward plaintiff, resulting in his injury as the result of the hazard which was not open and ap¬ parent to plaintiff, and unknown and without fault on his part, defendant would be liable. It was held that the instruction was correct, and was not objectionable on the ground that it omitted the qualification that the servant assumes those incidental dangers of which he knew, or could have known, by the exercise of ordi¬ nary care. The court also instructed that if the jury found that the defendant in equipping could have placed its high-tension wires through the other end of the car from which it did place them, and thereby brought down its wires at said end to the transformers, and avoided having the wires placed the length of the car overhead, and if the same could have been done with¬ out any great additional expense or interference with the business, and thereby the rotary at the opposite end of the car could have been safely cleaned with- 57 out exposing plaintiff to the hazard of the wires, then it was the defendant’s duty to so place the wires at said end of the car so that the danger to plaintiff, if any, while working in the car, could have been avoided. It was held that the instruction was on the weight of evidence, for in effect, assuming that the way in which the wires were brought into the car and run along the ceiling was dangerous; and judgment for the plaintiff was reversed and a new trial ordered. Indiana Union Traction Co. v. Sullivan, Indiana Appellate Court, 101 N. E., 401. Duty to Inspect Wires A TELEPHONE guy wire which extended be¬ tween two wires of an electric company became loose, so that in stormy weather it was blown against one of the electric wires. In wet weather a circuit would be completed. During a storm the electric wire was burned through and fell into the street. A pedes¬ trian whose hand came in contact was killed. In an action for his death, it was held that the only ground on which the defendant could be held liable was that the accident resulted from its failure properly to in¬ spect its system of wires, and that question was for the jury, which gave a verdict for the plaintiff. Dugan v. Erie County Electric Co., Pennsylvania Supreme Court, 88 Atl., 437. Use of Light Plant for Other Purposes—Interfer¬ ence With Private Plants T HE owners of a franchise to build and main¬ tain an electric light plant in a city sought to enjoin the city from constructing and maintaining an electric light system there. The franchise of the plain¬ tiffs was not an exclusive one. Under the Nebraska statute the city had the power to construct and operate 58 a municipal electric light system for the purpose of furnishing light to the city and the inhabitants thereof. It was not authorized to build a power plant, nor a combined light, water, and heating plant. But it was held that, when a municipal lighting plant was built, the city would probably violate any law if it sold to the citizens power which is necessarily produced in the act of furnishing electricity for lights, and so the fact that furnishing power might be incidental to an operation of its light plant, or the fact that it intended to furnish heat from the light plant, would not neces¬ sarily be a violation of the law. And if the city, from the engines of its light plant, furnished the power to pump the water for the use of the city and its in¬ habitants as an incidental use of the light plant, the court considered that would not be a violation of the law. In constructing such a system, due regard must be given to the rights of the owners of the existing sys¬ tem. The municipal system should be so constructed as not unnecessarily to interfere with the property rights of the owners of the existing plant, and in case of necessarily interfering the city would be liable for the injury caused. The city having denied that it would interfere with the property rights of the owners of the existing system, and introduced proof to sustain that allegation, it was held that the plaintiffs were not entitled to enjoin the construction before there should be actual or threatened interference. Bell v. David City, Nebraska Supreme Court, 142 N. W., 523. Duty to Guard Crossing Wires—Assumed Risk T HE Mississippi Supreme Court holds that an electric light company and a telephone company are both negligent in permitting their crossing wires to remain unprotected by a guard wire or other device, so far as third parties are concerned. In an action for the death of a telephone “trouble finder” caused by contact with a heavily charged telephone wire which had fallen across the light wires, and which he had been sent to remove, it was held that the duty of guarding its wires rested upon the city owning the light 59 plant, for the reason that corporations and persons engaged in any business requiring the use of wires highly charged with electricity are required to use the highest degree of care in order to confine this deadly current to its wires, and thus prevent its escape to the danger of life and property. The duty rested upon the telephone company for the reason that it was bound to know that in the event its wires should fall they would necessarily come in contact with the electric light wires, and, as a result thereof, become highly charged with electricity, and dangerous to life and property; and, therefore, if it chose to string its wires so that this condition could arise, it was bound to exercise the highest degree of care in order to prevent its doing so. But the telephone company would not be liable for the death of its own lineman killed in repairing the wires, as this was a risk assumed by him an an incident to his employment, unless, knowing his inex¬ perience, it failed properly to warn and instruct him relative to his work and the dangers incident thereto. But the lineman did not assume the risk as to the city, and his administrators were held entitled to recover from the latter. Cumberland Tel. & Tel. Co. v. Cosnahan, Mississippi Supreme Court, 62 So., 824. Installation of Transformers—Expenses—Discrim¬ ination A CITY which undertakes to furnish electric light and power to the public is subject to the same duties and obligations, and possesses the same rights and privileges, as private persons or corporations do¬ ing the same class of service. Such a city is obliged to furnish power to all applicants who pay its proper and reasonable charges therefor. It cannot dictate to consumers what selection of appliances they shall make, as between those in common practical use. A consumer found it necessary or advantageous in his business to use three-phase motors. Such motors are in common practical use. The city could not furnish current for three-phase motors without the use of transformers costing about $80. With such trans- 60 formers it could do so. It refused to furnish power at all, unless the consumer would discard his three- phase motors and install single-phase motors, to which the city system was adapted. In an action of manda¬ mus to compel the city to install the service applied for, it was held that the court should require it to do so. It did not follow that the city must bear the burden of the expense of such transformers. If a particular consumer desired service which the city could supply only by the installation of transformers, at a substan¬ tial expense not entailed in furnishing power to others, then the consumer occasioning such special expense should bear the burden thereof. The one essential is that, whatever the charge, it must apply to all persons similarly situated, to the end that there shall be no dis¬ crimination. As to the method of adjustment of such expense, whether by an installation charge, a rental, or an increased rate, the city has a large discretion. Its regulation, if fair and reasonable, and free from discrimination, is binding on the applicant for service. State v. City of Waseca, Minnesota Supreme Court, 142 N. W., 319. Liability of Municipal Corporations Owning Light¬ ing Plants A MUNICIPAL corporation that engages, under legislative authority, in the business of furnish¬ ing electric lighting to private consumers for profit is liable for the negligence of the agents employed by it to string the wires designed for such commercial pur¬ poses. Karpinski v. South River (N. J.), 88 Atl., 1073. Wires on Highways—Care Required A CTION was brought to recover damages for per¬ sonal injuries received by the plaintiff by reason of a hay stacker or derrick, which he was moving along a public highway in Idaho, coming in contact with the defendant company's power transmission wires. The plaintiff’s evidence tended to show that 61 the highest paint of the stacker was about 27 J4 feet from the ground; that haystackers similar in construc¬ tion and height were in general use in the neighbor¬ hood, and had been since before the company’s line was built; that they were frequently moved along the highways; that a bridge which the plaintiff was ap¬ proaching was higher than the roadway on either side, and was built before the defendant’s line was estab¬ lished; that to pass over the bridge with a structure like the plaintiff’s, it was necessary to pass under the company’s wires at the place where the injury oc¬ curred, that the lowest wires of the defendant’s line at that point was about 27 feet 3 inches from the ground, and was lower than at any other point along the highway; that by the standard of construction of such a power line in that country, recognized by engi¬ neers and others in charge of construction, the lowest wire should be from 30 to 33 feet above the ground; that the defendant’s wires were not insulated, and were at the time carrying a powerful current, danger¬ ous to the life of any one who might come in contact with it. It was held that such evidence tended to show that the defendant had not performed its legal duty to use the highest degree of care practicable to avoid in¬ jury to every one who might be lawfully in proximity to the wires, and that the question should have been submitted to the jury. Judgment for the defendant was reversed, and a new trial granted. Shank v. Great Shoshone & Twin Falls Water Power Co, C. C. A, 205 Fed, 833. Master and Servant—Existence of Relationship A CONTRACTING company was engaged in in¬ stalling in the power house of an electric com¬ pany an engine for which the latter had contracted, and which the contracting company was to install and start “and place in good operative condition.” Its superintendent in charge of the work requested and obtained the assistance of one of the electric com¬ pany’s employees to tighten some bolts. In doing this work the head of a hammer flew off and hit this assist¬ ant, causing injuries for which he sued the contract¬ ing company. It was held that the person in charge of 62 the work for the time had implied authority to ask such temporary assistance as he might require from an employee of the electric company. Such employee did not, by rendering such assistance, as a matter of law, become the contracting company’s servant, or lose the right to be protected from the carelessness of its servants. In order to become the defendant’s servant, it was necessary that the plaintiff should expressly assent to a change of employers, or should have had such notice and a knowledge of the circumstances that his assent would be presumed. Sprague v. General Electric Co., 213 Mass., 375, 100 N. E., 628. Res Ipsa Loquitur Rule A CTION was brought against an electric lighting company to recover damages for the breaking of a plate glass window by reason of a metal trans¬ forming box falling on the window from the top of a pole on- the edge of a sidewalk. The evidence showed that at the time of the accident the defend¬ ant’s employees were in the act of removing the box from the pole to the ground, but did not show how the box happened to fall. The jury found for the plaintiff, but the trial court entered judgment non obstante veredicto. On appeal this was reversed, it be¬ ing held that the rule of res ipsa loquitur applied. Hauer v. Erie County Electric Co., 51 Pennsylvania Superior Court, 613. Eminent Domain—Public Use—“Manufacturing” Corporation C ODE IOWA, 1897, Section 1990, authorizes any corporation organized for the purpose of utiliz¬ ing any water power within the State or of any stream lying upon the borders thereof, to condemn such lands as may be necessary for its plant under the power of eminent domain. Section 1537 et seq. authorize for- 63 eign corporations, on compliance with their provisions, to come into the State with all the rights of domestic corporations. It is held that a foreign corporation complying with such provisions, which was authorized by its character and also by act of Congress to build a dam across the Mississippi River at a rapids, in aid of navigation, and also to utilize the water power to generate electricity to be transported and used in dif¬ ferent States, had power to condemn land which would necessarily be overflowed by the dam; such flowing constituting a taking for public use. A corporation organized to engage in the business of generating electrical power, to be sold to others, is not a “manufacturing” corporation within the meaning of a statute excepting such corporations from those developing water power on which it confers the right of eminent domain. Hagerla v. Mississippi River Power Co., 202 Fed., 776. Duty to Instruct Inexperienced Servant I N AN ACTION for the death of an employee by contact with electric wires, among which he was working, the defendant’s manager admitted that the de¬ ceased had told him his work as a lineman had been confined to telephone lines carrying electricity in harm¬ less quantities only. The manager’s warnings of dan¬ ger, as shown by his own testimony, were general in their nature. It was held that a master who puts an inexperienced servant to work in a hazardous position among electric power wires carrying dangerous cur¬ rents of electricity, without properly instructing him in regard to his duties, and without giving him specific warning of incident dangers not obvious to a person of his experience and understanding, cannot justify such conduct by showing that the servant had represented himself to be an experienced lineman in telephone work, involving no danger from electricity, where the master knew in advance that the servant had never had any experience in working among dangerous wires. Elliott v. General Const. Co., 93 Neb. 453, 140 N. W., 1024. 64 Municipal Competition With Private Plant I N AN ACTION by a light company to enjoin a city from issuing bonds to establish a municipal light system it was contended that the plaintiff light com¬ pany had an exclusive franchise, or such a contract for lighting that it would bar the city for 50 years from constructing its own system. It was not argued that the franchise by its terms gave to the light com¬ pany an exclusive franchise, but it was contended that the contract with the city for street lighting could not be violated by the city by constructing a municipal plant. The court answered this contention as follows: First, there was no contract with the company by which the city was bound to take street lights; and, second, even if such a contract existed, the city could continue to perform the obligations existing under the contract, and at the same time construct and operate a municipal lighting system for itself. If the fran¬ chise to the present company was by its terms exclu¬ sive, such a franchise or contract was prohibited in direct terms by the Constitution of the State of Ne¬ braska. Section 5 of the franchise provided that the company agreed to furnish free lights of a certain type to the city at four street intersections to be selected by the Council; and for every arc light required to be taken by the city payment should be made on a certain basis. It was not disputed, however, that the light company furnished the required lights free, and, if the city should decide it did not need the lights now run¬ ning, it could order them stopped, and the present com¬ pany would have no option in the matter. Even if it were held that the light company had a contract for four arc lights upon the streets, a municipal plant might be conducted by the city by the payment for said lights, and there would be no conflict between the rights of the present company and the plant proposed to be established. It was also held that the city might, under the Nebraska statute, house the machinery necessary to operate its electric light system in the same building with the machinery used in operating its water plant. Minden Edison Light & Power Co. v. City of Min- den, Nebraska Supreme Court, 142 N. W., 673. 65 Electrical Engineer as Expert Witness I N a prosecution for the burning of a barn an elec¬ trical engineer introduced as a witness showed that he possessed sufficient information to give an opin¬ ion, and also testified that he had taught the persons later charged with the arson that the effect of cutting the electric light wire would be to put out the lights. It was held not error to allow him to testify that those charged with the crime would know the effect of cutting the wires. Anderson v. State, Texas Criminal Appeals, 159 S. W., 847. Broken Wire—Notice to Company I N AN ACTION against an electric light company I to recover damages for personal injuries to a pedes¬ trian, caused by contact with a broken wire in a high¬ way, an averment in the statement that the defendant had permitted its wire to be for a long time prior to the injury in a broken and defective condition in and along the highway, was held to be borne out by proof properly admitted that if the plant of the defendant company had been equipped with the necessary devices, commonly known and in general use, those in charge of the plant would have had immediate notice of the breaking of the wire, and could at once have turned off the current. It was no defense to show that the defendant had been paid by some customer to put up the wire in question, and that the customer had agreed to notify the company in case a dangerous condition should arise. Zinkiewicz v. Citizens’ Electric & Illuminating Co., 53 Pennsylvania Superior Court, 572. Defective Appliance — Alabama Statute — Duty of Electrical Companies as to Employees A CTION was brought under the homicide provi¬ sion of the Alabama Employers’ Liability Act (Code, § 3912) for the death of a lineman who was killed while attempting to climb one of the poles be¬ longing to his employer, the defendant. The complaint 66 did not allege in terms that the defendant was the owner of the wire or pole which was alleged to be defective, but it did allege that the wire and pole were a part of the ways, works, machinery, or plant, etc., of the defendant, and so alleged in the language of the statute. In such cases it is not necessary to allege or prove that the master owns the defective machinery or appliances forming a part of the ways, works, etc. The master cannot avoid the duty imposed by the Ala¬ bama statute, or escape liability under that statute, by using the machinery or appliances of other masters. The statute requires only that the instrumentality “be connected with, or used in, the business of the master.” The duty which an electric company employer owes to its employees, and especially to linemen, was stated to be as follows: The duty is upon the master to exer¬ cise reasonable care to the end that his servants shall have a reasonably safe place to work and to discharge their duties to him; and to exercise the same care to see that needed and proper repairs and inspections of his premises are made, so that they may continue safe for the use of his servants. The master also owes the duty to exercise reasonable care to warn his servants who are without such knowledge of dangerous prem¬ ises or machinery which they are required to use. While the servant assumes the ordinary risks incident to the employment, he is not held to have assumed the risk of defects in the ways, works, machinery, plant, etc., of which he had no notice or knowledge and of which he was not chargeable with such notice or knowledge. Citizens’ Light, Heat & Power Co. v. Lee, Alabama Supreme Court, 62 So., 199. Light Wire Cut by Sagging Telephone Wire—Lia¬ bility of Light Wire Owner A CTION was brought against a village, owning and operating its own electric light plant, for the death of the plaintiff’s minor son, caused by com¬ ing in contact with a broken electric wire belonging to the village. It was claimed that the wire was burned in two by contact with an overhanging wire of a tele- 67 phone company. It appeared from the evidence that the telephone wires were permitted to sag in dangerous proximity to the electric light wires while the latter were not properly insulated and no precautions were taken to prevent contact. It was held that the accident was the result of concurring causes, the removal of any of which would have prevented it, and hence the ques¬ tion of proximate cause was for the jury. The village maintained its plant for commercial as well as munici¬ pal purposes. It was therefore not relieved from lia¬ bility for the negligence of its employees on the theory that the business involved governmental functions. When a dangerous condition of the wires became ap¬ parent, it was the duty of the village officers in charge of the plant, if possible, to remove the danger, and, if the situation was caused by the telephone company, it was the duty of the village officers and employees to request them to remove it. In this regard it was held that they occupied no different position than the officers and employees of a private corporation would occupy under similar circumstances. The fact that the village was first on the ground, and its poles and wires were in position under legal authority when the fran¬ chise for the construction of the telephone system was granted was held to be immaterial. Sykes v. Village of Portland, Michigan Supreme Court, 143 N. W., 326. END OF VOLUME IV. 68 Books published by The Gage Publishing Company, Inc., New York, compiled from the series of articles that appear regularly in each number of the ELECTRICAL RECORD: ELECTRIC MOTOR DRIVE: Contains data on the horse power requirements of the classes of machines used in the various in¬ dustries and the different methods employed in driving them by electric motors COMMON MATERIALS: Contains the kind of details and facts about the raw or rough materials used in the electrical industry that is not to be found in other books, and is usually gained only by experience. SPECIAL DEVICES: Contains specific information about manu¬ factured articles sold by the electrical trade, telling what each article is and what it is used for. (In picture book form). RECENT LEGAL DECISIONS: Contains digests in ordinary language of deci¬ sions affecting electric light, power, and street railway plants and telephone companies. These books are not for sale. They are offered as premiums, and are obtainable only by subscribing to or advertising in the ELECTRICAL RECORD. *« 4 jm - — - - .. .... ^ « '■'CK;, ■' -*>" r? m * ■vV:>v^ •is A ' = ' ^. - j >« A i'M il t ; :*:;/>• / :i\ 3 0112 06217 81 y-v V -£«1WP , -rv:- . . ■« ■ '¥; 'S^:$S I f< mW-h^ .■■■■■ ■ ■■ fyfv .•&* ■ • ?; • ‘ . '••>'.* *. • - • • • . - * • v '-■■ Vi 7 •' •• ■ . \ •'•■ '-^yr-W V - ' : ' ,x*» 4 t •■•»;■ •V • U*- Iji .7 • •. . ■ i ■ 5>. ■‘•'i; v ■.. 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