From a decree dismissing the bill, plaintiff appeals. Reversed.

Bill in equity for an injunction to restrain defendants from interfering with a conduit under the sidewalk of the property of Vincent, Scott & Co. Cross-bill for a mandatory injunction for the removal of the conduit. From the record it appeared that Vincent, Scott & Co., by their contractors, Kerr & Fox, were making an excavation for a vault under their sidewalk, and, in doing so, caused a part of the plaintiffs' conduit to fall and break. Plaintiffs claimed a vested right to maintain a conduit under the sidewalk. The defendants denied this right.

The following is the decree of Young, J., of the court below:

"And now, to wit, July 13, 1906, this cause came on to be heard at this term, and was argued by counsel, and upon consideration thereof it is ordered, adjudged, and decreed as follows: (1) The preliminary injunction entered October 24, 1905, is dissolved. (2) The original bill of complaint is dismissed. (3) The Allegheny County Light Company, the defendant in the cross-bill, is ordered and directed, within 30 days from the date hereof, to remove its conduit from beneath the sidewalk on the west side of Beatty street, from Penn avenue to Kirkwood street, in the city of Pittsburg. (4) That the Allegheny County Light Company pay the costs of this case." Argued before MITCHELL, O. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

David A. Reed and James H. Beal, for appellant. Levi Bird Duff and L. B. D. Reese, for appellees.

BROWN, J. In determining whether the Allegheny County Light Company has the right to construct and maintain conduits under the sidewalks of the streets of the city of Pittsburg for its wires, we must turn to its charter. It was originally incorporated March 6, 1880, under the act of April 29, 1874 (P. L. 73). Assuming that it had the power under its charter to furnish electric light to the public, the city of Pittsburg, by ordinance of October 31, 1881, authorized it "to erect and maintain poles and wires for the purpose of conducting electricity to be used for lighting purposes, on such streets, lanes and alleys of this city as may from time to time be required by said company for the purpose aforesaid." The poles to be erected were to be of such size and shape and located in such places as the city engineer might direct.

But the appellant was not authorized under its original charter to supply light by electricity (Appeal of Scranton Electric Light & Heat Co., 122 Pa. 154, 15 Atl. 446), and, having surrendered its original charter, letters patent were issued to it on May 29, 1889, under the act of May 8, 1889 (P. L. 136), which is a supplement to the act of 1874.

Section 2 of the act of 1889 is as follows: "Companies incorporated under the provisions of this act for the supply of light, heat and power, or any of them, to the public by electricity shall, from the date of the letters patent creating the same, have the powers and be governed, managed and controlled as follows: Every such corporation shall have the authority to supply light, heat and power, or any of them, by electricity, to the public in the borough, town, city or district where it may be located, and to such persons, partnerships and corporations, residing therein or adjacent thereto, as may desire the same, at such prices as may be agreed upon, and the power also, to make, erect and maintain the necessary buildings, machinery and apparatus for supplying such light, heat and power, or any of them, and to distribute the same, with the right to enter upon any public street, lane, alley or highway for such purpose, to alter, inspect and repair its system of distribution: provided, that no company which may be incorporated under the provisions of this act, shall enter upon any street in any city or borough of this commonwealth until after the consent to such entry, of the councils of the city or borough in which such street may be located, shall have been obtained." In locating and installing their systems of distributing electricity electric light companies are given by this section the right of eminent domain upon public streets, lanes, alleys, or highways outside of city or borough limits, and, within such limits, they may use the streets with municipal consent. This is a limited right of eminent domain; the limitation upon it being found in the words of the grant of it. Brown v. Electric Light Co., 208 Pa. 453, 57 Atl. 904. The third section of the act of 1889 provides that "any association of persons or corporations heretofore engaged in the business of supplying light, heat and power, or any of them, by electricity, under color of a charter or letters patent of this commonwealth, issued under the provisions of the act to which this act is a supplement, upon accepting the provisions of this act by writing under seal of the company, filed in the office of the Secretary of the commonwealth, and filing therewith its letters patent or charter, which shall be a surrender and acceptance thereof, shall thereupon be a body corporate hereunder and be entitled to and possessed of all the privileges, immunities, franchises and powers conferred by this act upon corporations to be created under the same, and all the property, rights, easements and privileges belonging to said associations and corporations, theretofore acquired by gift, grant, conveyance, municipal ordinance or assignment, or otherwise, upon such acceptance as aforesaid, shall be and hereby are ratified, approved, confirmed and assured unto such acceptors and corporations, with like effect and to all intents and purposes, as if the same had been originally acquired by and under the authority of this act, and such company

or corporation shall thereafter be governed by the provisions of this act." The "rights, easements and privileges" which this appellant had acquired from the city of Pittsburg by municipal ordinance under its first charter were ratified, approved, and confirmed with like effect as if they had been acquired under the act of 1889. They are to use the streets, lanes, and alleys of the city for the purpose of distributing electric light. The ordinance is municipal consent to appellant "to enter upon any public street, lane, alley or highway" within the city of Pittsburg for the purpose stated. This includes sidewalks, which are parts of the streets; and that the conduit of appellant was placed under the pavement in front of appellees' property is not in itself a ground of complaint in this proceeding. The city has the same control over its sidewalks that it has over the driveways. McDevitt et al. v. People's Nat. Gas Co., 160 Pa. 367, 28 Atl. 948; Provost v. Water Co., 162 Pa. 275, 29 Atl. 914.

The right granted by the ordinance of 1881, it is conceded by counsel for appellees, is unlimited as to streets, but it is contended that it was for a specific purpose, viz., "to erect and maintain poles and wires for the purpose of conducting electricity to be used for lighting purposes," and therefore the only privilege that exists is the one clearly and expressly given. This would mean that the city, in giving the right to erect poles and wires, impliedly forbade the use of any other system; but it could not so restrict the right of the company to change its system, for the supreme power of the state gives it the right to "alter" it. True, the permission is to erect and maintain poles and wires, but at the time it was given they constituted the means universally used in distributing electricity; and with what must be regarded as general permission to the appellant to use the streets for its corporate purposes there went, by the express words of the act of 1889, the right "to alter, inspect and repair its system of distribution." In placing its conduits under the sidewalk in front of appellees' property, the appellant simply altered its system of distribution, and in doing so it but exercised a right with which the city could not interfere, unless in the exercise of it there was a violation of reasonable police regulations, adopted by the city for the protection of persons and property from the danger of the new system.

The error into which the learned court below fell was in holding that the "company's sole authority for the occupancy of the highways of the city beneath the surface was the ordinances of November 21, 1892, November 25, 1892, and May 22, 1895." The authority was the ordinance of October, 1881, and the ordinances subsequently passed relating to conduit systems cannot affect the right of the company to alter its original system, unless in altering it reasonable police regulations are not complied with. After

consent is obtained to use the streets, the right is to use them in altering any system of distribution. The alteration requires no consent, though in making it the company may be subject to proper police regulations.

Turning to the ordinances of November 21, 1892, November 25, 1892, and May 22, 1895, nothing can be found in them prohibiting a change by the appellant from the pole to the conduit system of distributing electricity. On the contrary, each ordinance encourages, and, as to a portion of the city, requires, the adoption or substitution of the conduit system. Among the provisions relating to the adoption or substitution of this system is section 2 of the ordinance of November 25, 1892, which is as follows: "Every such corporation, co-partnership, or individual before entering upon any of the streets, lanes, alleys or highways, aforesaid, for the purpose of constructing thereunder, any conduits, subways, apparatus, devices or means as aforesaid for transmitting, conducting or conveying electricity shall file in the office of the department of public works a full plan showing the location, size and details of such proposed conduits and subways, and all such plans shall be subject to the approval of the chief of the department of public works, or, of the committee on public works, and no corporations, co-partnerships, or individuals shall enter upon any of the streets, lanes, alleys or highways aforesaid, or occupy or do any work upon the same until the said plans have first been approved in writing by the said chief of the department of public works, or, the committee on public works, or, as may be directed by councils, in accordance with the provision of section seventh." The appellant offered in evidence the plan for its conduit system, which, on July 13, 1899, was approved, in writing, by E. M. Bigelow, director of the department of public works. The court found that other provisions of the ordinances had not been complied with, and, having been of opinion that compliance with them was a condition precedent to appellant's right to construct its conduit system, dismissed its bill and granted the relief asked for in the cross-bill. Whether other provisions of the ordinances are reasonable police regulations, with which the appellant was bound to comply before altering its system in constructing its underground conduits, we need not now determine. In the year 1899 it constructed the conduit of which the appellees now complain. The city of Pittsburg has never complained of its construction. The twenty-fourth finding in the crossbill is: "The Allegheny County Light Company has not been ordered by the director of the department of public works of the city of Pittsburg to take up this conduit or to relay it." The finding immediately preceding it is: "It does not appear that any complaint has been made or that any notice has been given or that any action has been taken

in regard to the construction or maintenance of its conduit by Vincent, Scott & Co., or any of their predecessors in title from the time of the construction of the conduit in the summer of 1899 until the fall of 1905."

With no complaint either by the munici pality or the appellees and their predecessors, as private owners, of the construction of the conduit or of its use for more than six years as a part of appellant's large and expensive system, equity will not now decree its removal. The city has never made complaint of any disregard or violation of police regulations in connection with its construction or use, and it is now too late for either it or the appellees to ask, for the first time, that the appellant be interfered with in exercising what, in this proceeding, must be regarded as a vested right.

The decrees of the court below are reversed. The cross-bill is dismissed, and it is ordered, adjudged, and decreed that appellant's bill be reinstated, and the appellees are perpetually enjoined from interfering with, displacing, removing, destroying or tampering with the subway and conduit of the appellant mentioned in the bill, and from excavating, digging, or undermining under or about the said conduit, so as to interfere with it, either by themselves, their agents, servants, or employés, the costs on this appeal and below to be paid by the appellees. This decree is without prejudice to the right of the appellant to recover at law any damages which it may have sustained.

(216 Pa. 595)

ARMSTRONG v. CONSOLIDATED TRACTION CO.

(Supreme Court of Pennsylvania. Jan. 7, 1907.) STREET RAILROADS — INJURY TO PERSON ON TRACK.

In an action against a street railway company to recover for injuries received while crossing the track at night, the question of contributory negligence held one for the jury.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Street Railroads, §§ 251-257.]

Appeal from Court of Common Pleas, Allegheny County.

Action by William P. Armstrong against the Consolidated Traction Company Judgment for plaintiff. Defendant appeals. Affirmed.

Argued before MITCHELL, C. J., and FELL, BROWN, MESTREZAT, POTTER, ELKIN, and STEWART, JJ.

James C. Gray, Clarence Burleigh, and William A. Challener, for appellant. Rody P. Marshall and Thos. M. Marshall, for appellee.

FELL, J. The question raised by this appeal is whether the case should have been withdrawn from the jury on the ground of contributory negligence. The plaintiff was injured at night, while crossing Penn avenue at Seventh street, in the city of Pittsburg.

Cars were passing over the crossing every few seconds. There are two tracks on the avenue and two on Seventh street, and these tracks are connected by curves, and cars pass from the street to the avenue. There was a rule of the company, known to the plaintiff, that when a car had passed from the street to the avenue, and was standing to receive or discharge passengers, the car following it should not enter on the curve. After reaching the crossing he waited until it was clear. When he started, a car which had come from Seventh street was standing on the avenue, and the car following it, which struck him, was standing diagonally across on the far side of Seventh street. He walked on the crossing to the narrow space, less than 42 feet wide, between the straight tracks, and stopped, looked at the car on Seventh street, saw that it was standing, looked up and down the avenue, and went on. He was struck when on the far side of the curved track by the car from Seventh street, which had been started without a signal being given and was running very rapidly around the

curve.

From the plaintiff's testimony it appears that the crossing was an exceptionally dangerous one. There were four tracks to watch -two straight ones and two that curved from the street. There was no safe place to stop until all the tracks had been crossed. He exercised due care before starting. The car standing on the avenue blocked the way of the car standing on Seventh street, and was an assurance to him that the latter would not immediately start. He halted in the narrow space between the straight tracks in the middle of the avenue, and saw that the car on Seventh street was still standing, and he was struck as he left the curved track. The weakness of his case is that, between the time he looked at the Seventh street car and the time he was struck by it, it must have moved from a full stop 65 feet on a curve, and during this time he had only to glance in another direction and walk about 12 feet. It is highly improbable that his recollection was accurate as to all the facts detailed, and that the accident happened in the way described by him. It is not, however, impossible that it happened in this way, and the court would not have been justified in withdrawing the case from the jury on the ground that he stepped in front of a moving car, which he either saw or should have seen. He was not proceeding heedlessly, but with care, in a situation that was both dangerous and confusing. It has been repeatedly said that the rule stated in Carroll v. Penna. Railroad Co., 12 Wkly. No. Cas. 348, is in its nature applicable only to clear cases, where the conclusion of negligence is irresistible. It was said by the present Chief Justice in Ely v. Pittsburg, etc., Railway Co., 158 Pa. 233, 27 Atl. 970: "Stopping is opposed to the idea of negligence, and unless, notwithstanding the stop, the whole evidence shows negligence so clearly that no

merding hill, and had left the track at the terminus, crossed the street, and collided with the telephone pole, breaking it and running against the wall of the railroad station. A fragment of the broken pole was thrown against plaintiff, and inflicted serious injuries. The testimony shows that the car escaped from control while coming down the hill by reason of the slippery condition of the tracks upon the grade. Rain had fallen, which froze to the rails as it fell. The car was in good condition, and properly equipped with brakes, and was provided with sand; but the tracks were so incased in ice that, when the motorman attempted to apply the sand, the wheels would not take hold, even when reversed. In consequence the car slid down the grade.

Upon the trial, as the court said, there was no evidence of improper brakes, machinery, or appliances. The only matter which the court submitted to the jury was the conduct of the employés in charge of the car in attempting to take it down the hill when the tracks were icy He instructed the jury that if prudent employés would have considered it dangerous to take the car down at that time, and would not have taken the hazard, then the employés in charge of the car were guilty of negligence, and the plaintiff was entitled to recover. But the difficulty in sustaining this submission of the question is that there is no evidence that the employés were not prudent men, of long experience, and yet they did as a matter of fact conclude that it was reasonably safe, under the circumstances, to attempt to take the car

down.

It will be remembered that the plaintiff was not a passenger on the car, but was standing upon the public highway near the terminus of the tracks. The car which ran into the telephone pole and broke it, thus infflicting injury upon the plaintiff, was the second of the two cars which, by reason of the ice on the rails, escaped from control at the point in question. The motorman of the second car, which is the one which caused the injury to the plaintiff, had no knowledge of the fact that the car immediately preceding had gotten beyond control, and he started down the hill a few minutes afterwards. He had no difficulty until his car had proceeded a considerable distance, when he found it was beyond control. He used every effort to stop the car, but was unable to do so. He tells the story thus in his own words: "I started off so slow that any six years old boy could get on that car, from the top of the hill until I got within about 200 feet of the bridge that goes under the track. Then I began to notice that the brakes would not hold it any more. It began sliding. Then I threw off the brake and reversed the car, and pulled the sand, and I found there was too much ice on the rail for the wheel to take hold on the sand. It

just brushed the sand off when it was revolving in the backward motion. I kept it on reverse all of the way, and, when I got to the stone quarry, the trolley jumped off. Then I was in darkness from there down to the foot of the hill, and kept using all force from there on down to the foot of the hill, expecting every minute I would get control of it again, but I didn't until I ran into the station." Fryan, the motorman, had many years' experience, and had been engaged two years and a half on that particular line. He had brought his car up the hill over the same track only a little while before without trouble or difficulty; and, after proceeding a short distance along the road, he changed cars and started back again towards the foot of Wilmerding hill.

The evidence shows that before entering upon the down grade he tested his brakes, found they were in good condition, and tested his sand, and found that the supply was good, and that it was running freely. There is no suggestion in the evidence that anything was wrong with the car, or that the motorman did anything which he ought not to have done, or left anything undone which he should have done, in the management of his car. The sole fault which can be imputed to him, under the evidence, is that he erred in his judgment when he started his car down the grade. As the sequence showed, he did underestimate the difficulty caused by the presence of ice on the rails. The motorman of the car immediately ahead of him made the same mistake. But the exercise of judgment-even though it be mistaken judgmentis not negligence. Under ordinary conditions of the weather, and so far as his experience showed, under extraordinary conditions, he would have been safe in taking his car down that hill. He had done it many times before, and his experience certainly fitted him to judge as to the conditions. He occupied the place of greatest danger on the front platform, and regard for his own safety would naturally quicken his instinct to anticipate danger, if, in his judgment, there had been any real occasion for it. The testimony is clear that the accident was caused by conditions most unusual. When asked if he had ever experienced during the two and a half years that he had run over that road such a night as that of the accident, the motorman replied: "No, I told you I never experienced it in 22 years before." The testimony of the defendant's superintendent also was that the night was bad, raining, sleeting, icy; the worst night he had ever seen in all his experience in street railroading.

Negligence is not to be presumed upon the happening of an occurrence which is the result of exceptional and extraordinary conditions. It must be presumed that in a hilly country, such as that in the region of Pittsburg, some risks must be taken in the operation of street cars. It will not do to stop