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49 Vroom.

Opdycke v. Public Service Ry. Co.

It is well settled that one who places an unauthorized obstruction within the limits of a highway as laid out is liable to an action at the suit of any person who is thereby specially damnified, and this although the obstruction or other nuisance may be without the limits of the traveled way.

In Durant v. Palmer, 5 Dutcher 311, 317, Mr. Justice Haines, speaking for this court, said: “The street, and every part of it, by force of the common law, is so far dedicated to the public that any act or obstruction that unnecessarily incommodes or impedes its lawful use by the public is a nuisance." See, also, Temperance llall Association r. Giles, 4 Vroom 260; Meyers v. Birch, 30 Id. 238.

In T'inkor v. Vew York, Ontario and Western Railway ('o.. 157 N. 1'. 312, where defendant, an abutting landowner, had placed two disused timbers, each ten feet long and twelve inches square, within the highway limits, not in the beaten track, but in a ditch from one to two feet in depth, they being placed at a distance of about twelve feet from the traveler part of the highway and about fifteen feet from the fence separating the highway from the defendant's land, and being left there without reasonable necessity in the transaction of its business, it was held there was a liability to damages sustained by the plaintiff through her horses having taken fright at these timbers. And see the recent case of Sweet v. Perkins. 196 Id. 482, 486.

In 15 Am. il. Eng. Encycl. L. (2d ed.) 192, the rule is stated as follows: "The right of the public to use a highway extends to the whole breadth thereof, and not merely to the part which is worked or actually traveled; and, consequently, an obstruction upon the untraveled part is a proper subject of complaint by the public or persons specially injured."

This, in our judgment, is a correct statement of the law upon the subject. See, also, Rex v. Wright, 3 Barn. 8.11. 681 (23 E. C. L. 159); Regina v. United Kingdom Electric Telegraph Co., 3 Fost. & Fin. 73; 8 Jur. (N. S.) 1153 ; Dickey v. Maine Tel. Co., 46 Me. 483; Commonwealth v. Wilkinson, 16 Pick. 173; Commonweallh v. King, 13 Metc. 11.),

Opdycke v. Public Service Ry. Co.

78 N. J. L.

118; Commonwealth v. Boston and Lowell Railroad Corporation, 12 Cush. 254, 258.

Upon the whole, we deem it entirely clear that, in the absence of authority derived from the law-making power, the bridge now in question would be a nuisance, and we therefore proceed to consider the scope and effect of the municipal consent that was given for its construction and maintenance.

We assume the municipality gave consent, so far as it had power to do so. We make this assumption in favor of defendant in error because the plaintiff in error has failed to submit to us the entire text of the ordinance, and does not specifically make the point that the bridge and its location and style of construction were not within the wording or the fair intendment of the ordinance.

Counsel have not referred us to the specific act of the legislature from which the municipality derived the power to give this consent. Presumably it was the so-called “Traction ('ompanies act” of March 14th, 1893 (Pamph. L., p. 302; Gen. Stat., p. 3235), which authorizes the formation of corporations for constructing, maintaining and operating such railways, "and all necessary turnouts, sidings and bridges on, along, through or over any street, road, lane, alley, stream or highway,” with the consent of the board of aldermen, common council or body having control of streets or highways, or other governing body of the municipality within whose limits the railway is proposed to be constructed or operated. We are not aware that any more ample legislative authority is to be found elsewhere.

We may for present purposes concede that this legislation is broad enough to contemplate the construction by a traction company of a separate bridge in the highway for carrying its tracks, when in the judgment of the municipal authorities the ordinary highway bridge is not adequate to accommodate such tracks, and the cars that are to be operated thereon, in addition to the other traffic of the highway.

But, in our opinion, the statute does not permit the construction and maintenance by the traction company in the highway of a bridge that in design and construction is dan

49 Vroom.

Opdycke v. Public Service Ry. Co.

gerous to ordinary travel and calculated to entrap and kill horses and other animals that may attempt to pass over it.

For the object of the act of 1893, as expressed in its title and manifest in its enacting clauses, is to provide for the construction and operation of “street railways or railroads operated as street railways," and the regulation of the same. Our decisions render it plain that what is meant by this is a railway so constructed, maintained and operated as not materially to interfere with the use of the highway by the general public for other and ordinary highway purposes. It was long ago held that a steam railroad was inconsistent with the user of a highway for ordinary purposes. Starr v. Camden and Atlantic Railroad Co., 4 Zab. 592. But street railways have been otherwise regarded. Before the introduction of electric traction it was held by Chancellor Green in Hinchman v. Paterson Horse Railroad Co., 2 C. E. Gr. 75, SO, that the building and operation of a horse railroad in the streets of a city under legislative sanction was a legitimate use of the highway and an exercise of the public right of travel, and not a taking of private property for public use within the provision of the constitution. This was upon the ground that the tracks of the street railway did not practically increase the burden upon the landowner, the learned Chancellor saying that such tracks "are ordinarily, as in this case, required to be laid level with the surface of the street in conformity with existing grades. No excavations or embankments to affect the land are authorized or permitted. The use of the road is nearly identical with that of the ordinary highway." Since the introduction of electricity as a means of propulsion the same rules have been applied to electric street railways that had formerly been applied to horse railroads. Ilalscy v. Rapid Transit Street Railway Co., 2 Dick. Ch. Rep. 380; Van Horne v. Newark Passenger Railway Co., 3 Id. 332; West Jersey Railroad Co. v. Camden, &c., Railroad Co., 7 Id. 31; Roebling v. Trenton Passenger Railway Co., 29 Vroom 666, 671, 673; Consolidated Traction Co. v. South Orange, &c., Traction Co., 11 Dick. Ch. Rep. 569, 581; Budd v. Camden Horse Railroad Co., 16 Id. 513, 553; Newark r. State Board of Taxation, 37

Opdycke v. Public Service Ry. Co.

78 N. J. L.

Vroom 466, 472; 38 Id. 246; Montclair Military Academy v. North Jersey Street Railway Co., 41 Id. 229, 231; Newark Passenger Railway Co. v. Block, 26 Id. 605, 610.

It would be quite inconsistent with the grounds upon which these cases were decided to hold that the consent given by a municipality, pursuant to the act referred to, for the construction, maintenance and operation of a trolley railroad in, upon and along the streets, furnishes a warrant for the construction and maintenance within the limits of the highway of any bridge or other structure for the accommodation of the tracks that is so constructed as to be not only impassable but dangerous for ordinary travel, and from its design calculated to entrap and kill horses and other animals that may attempt to pass over it.

The grant to the street railway company is necessarily subject to the condition (implied, if not expressed), that its tracks shall be so laid, constructed and maintained as not to materially interfere with any other lawful use of the highway.

To sum up this matter: The evidence before us justified, if it did not require, a finding that the trolley railway bridge in question (being within a public highway) was so constructed and maintained with respect to its design and location as to render dangerous the use of the highway for other lawful purposes. This being found as matter of fact, such a structure would be a nuisance at the common law, and, unless authorized by legislation, would render the defendant responsible to any member of the public specially damnified, as the plaintiff was, by reason of the nuisance. From what we have said it also appears that no legislative authority has been conferred upon the defendant company to maintain its tracks and bridge in the highway in such manner as to endanger ordinary travel. Consequently, on familiar principles, the company may be held responsible for the damages accruing by reason of the improper and dangerous character of its bridge. 2 Thomp. Negl., SS 1353, 1355; Fielders v. North Jersey Street Railway Co., 39 Vroom 343, 346; Alcott v. Public Serrice Corporation, ante p. 482.

49 Vroom.

Opdycke v. Public Service Ry. Co.

And so we conclude that the nonsuit cannot be sustained upon either of the grounds relied upon by the trial judge.

Finally, it is argued that the defendant is not liable to the plaintiff in the present case, because the horse was running beyond control. We cannot, however, agree that this circumstance debars the plaintiff of his action, unless the runaway was caused by the negligence of the plaintiff or his agent, and this, as we have already shown, could not in the state of the evidence be properly decided against the plaintiff without submission to the jury.

So long as horses require to be restrained by bit and bridle, it must inevitably at times occur—with what frequency or infrequency is of no present importance—that horses get beyond the control of the person in charge and run at will through the streets and highways. An occasional runaway horse must necessarily be anticipated. The owner does not lose his property rights because the horse runs away. On the contrary, he is entitled to the use of the highway as a means to enable the horse to reach its home. And so the fact that the animal was at the time beyond the control of the owner cannot be availed of as a defence by one who has placed and maintained an unauthorized or improper structure in the highway

In Baldwin v. Greenwoods Turnpike Co., 10 Conn. 238, 244, the plaintiff's horse, while being driven upon a road other than that of the defendant company, became frightened by the breaking of the carriage, due to a defect for which the plaintiff was not at fault; the horse ran away, threw out the driver, and afterwards left the highway and passed over private property to and upon the turnpike road of the defendant, where he fell over the side of a bridge by reason of a defect in the railing, attributable to the negligence of the turnpike company. The company was held liable, the court declaring the proper rule to be this: “If the plaintiff is in the exercise of ordinary care and prudence, and the injury is attributable to the negligence of the defendants, combined with some accidental cause to which the plaintiff has not negligently contributed, the defendants are liable. Nor will the fact that the

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