Banks v. Highland Street Railway Co.

It was not the purpose of the U. S. Rev. Sts. § 5263, to deprive the States of the right to regulate, to a reasonable extent, the manner in which lines of telegraph shall be constructed over and along post-roads of the United States. Pensacola Telegraph v. Western Union Telegraph, 96 U. S. 1. There is no conflict between the Gen. Sts. c. 64 (Pub. Sts. c. 109) andi the statute of the United States ; and, so far as any question arises in this case, that statute may be disregarded. The Gen. Sts. c. 64, § 2, provide that incorporated telegraph companies “ may, under the provisions of the following section, construct lines of electric telegraph upon and along the highways and public roads ; ” and § 3 provides that the mayor and aider-men shall give the company a writing, specifying, among other *486things, the “height at which and the places where the wires may run.” This writing is to be recorded in the records of the city. In this statute; the word “ upon ” includes crossing a way by the wires.

As the telegraph company had no such writing, it had no right to run its wires across Columbus Avenue, as the plaintiff was doing, at the time of his injury. The wire, at least while looped across the street, so that it might be hit by passing carriages, was a nuisance, which any person lawfully travelling on the way, and incommoded by it, might remove. Arundel v. M’Culloch, 10 Mass. 70. Wales v. Stetson, 2 Mass. 148.

The plaintiff was carrying the wire, looped across the street, attached to his person, and with his back to the street, so that, if the wire was struck, he would be pulled from the pole which he was climbing. He was not only doing an unlawful act, but doing it in a manner peculiarly dangerous to himself. What the plaintiff was doing was not merely a condition; it was a directly contributory cause of his injury. ,

The car was lawfully passing upon the street, and could not continue its course without striking the wire. The driver of the car, when he saw the wire, had no right to drive on without care or concern for the consequences; but the defendant was not liable to the plaintiff for mere error of judgment on the part of the driver of the car.

The jury should have been instructed, not only that the plaintiff was doiág an illegal act, but that his illegal act contributed to his injury; and that he was not entitled to recover, unless he satisfied them that the driver of the car recklessly and wantonly drove against the wire.

Exceptions sustained.