municipality to regulate the use of streets,82 of which it cannot divest itself by a contract with a street railway company prescribing a maximum rate of speed.83 Where a municipal ordinance prescribes the rate of speed at which electric cars shall be run, a violation of such ordinance is not negligence per se, but is evidence of negligence only,84 and is conclusive evidence in the absence of some explanation or excuse.85 And the violation of an ordinance regulating the speed of street cars is such a breach of duty as may be made the foundation of an action by any person belonging to the class intended to be protected thereby, providing he is specially injured by such violation. 86 Evidence of an ordinance limiting the speed of electric cars, and of its violation is also held to be admissible under a general averment of negligence, where this question is material in a case.87 Where an ordinance limits the speed of cars at not more than a certain specified number of miles per hour, it is held that it is not negligence per se to run cars at a rate of speed not in excess of the maximum rate allowed.ss An ordinance prescribing the maximum rate of speed at which electric cars may be run will not, in the absence of evidence showing that it is not a reasonable provision for the protection of public travel, be considered as an unreasonable interference with the franchises of the company and the privileges granted to it by the city.89 So an ordinance regulating the "running speed of 82 State, Cape May, D. B. & S. P. R. Co. v. Cape May, 59 N. J. L. 393, 36 Atl. 679, 36 L. R. A. 656, 9 Am. & Eng. R. Cas. (N. S.) 507, 6 Am. Elec. Cas. 42. 83 Brooklyn v. Nassau Elec. R. Co., 20 App. Div. (N. Y.) 31, 46 N. Y. Supp. 651. 84 Hall v. Ogden City St. Ry. Co., 13 Utah, 243, 44 Pac. 1046, 4 Am. & Eng. R. Cas. (N. S.) 77; Riley v. Salt Lake Rapid Trans. Co., 10 Utah, 428, 5 Am. Elec. Cas. 594, 37 Pac. 681. But see Hickman Union Depot R. Co., 47 Mo. App. 65, 4 Am. Elec. Cas. 453. v. 85 Riley v. Salt Lake Rap. Trans. Co., 10 Utah, 428, 37 Pac. 681, 5 Am. Elec. Cas. 594. 86 Omaha St. Ry. Co. v. Duvall, 40 Neb. 29, 5 Am. Elec. Cas. 502, 58 N. W. 631. 87 Omaha Street Ry. Co. v. Lar son (Neb. 1903), 97 N. W. 824, 15 Am. Neg. R. 380. 88 White v. Albany R. Co., 35 App. Div. (N. Y.) 23, 54 N. Y. Supp. 445. 89 State, Cape May, Delaware Bay & S. P. R. Co. v. Cape May, 59 N. J. L. 393, 36 Atl. 679, 36 L. R. A. 656, 6 Am. Elec. Cas. 42, 6 Am. & Eng. R. Cas. (N. S.) 329. Ordinance limiting speed of cars to six miles per hour was in this case held valid. trains and engines" within the city limits, and which by its general terms was intended to operate only as to railroads upon which cars are moved by locomotives, will not be construed as applying to cars of an electric street railway, and is irrelevant in evidence in an action against such a company." 90 Again, an ordinance permitting a street railway company, which had been authorized by a previous ordinance to operate its cars "by horses or mules only, at a speed not exceeding the rate of seven miles per hour," to substitute electricity in place of the horses and mules, is held not to repeal the provision of the earlier ordinance in reference to speed.91 Where a statute confers power upon local authorities to regulate the speed of street cars upon their streets, with a provision that the speed shall not exceed a certain rate per hour, such statute will not be construed as declaring by implication that any less rate of speed than the maximum rate named cannot be considered reckless.92 But if no regulations have been made by the municipal authorities as to the speed of cars, a statute providing that no person shall ride through any street in the compact part of any town at a swifter pace than five miles per hour, has been held to apply to street railway companies.93 § 464a. Stopping of cars-Ordinance.- An ordinance providing that: "No person having the control of the speed of a street railway car passing in a street shall, on the appearance of any obstruction to his car, fail to stop the car in the shortest time and space possible" is held not to be unreasonable in that it requires the person in charge of the car to stop it under all circumstances, without regard to the safety of the train or persons therein. Such an ordinance is said to be no more than a declaration of law and to require no more than that the person in charge of a car shall, upon the appearance of any obstruction, 90 Hill v. Rome St. R. Co., 99 Ga. 103, 24 S. E. 866, 3 Am. Neg. R. 353. See also Licznerski v. Wilmington City Ry. Co. (Del. 1904), 62 Atl. 1057. 91 Martineau v. Rochester Ry. Co., 81 Hun (N. Y.), 263, 62 N. Y. St. R. 722, 30 N. Y. Supp. 778, 5 Am. Elec. Cas. 724, affd., 146 N. Y. 376, 67 N. Y. St. R. 899, 41 N. E. 90. 92 Laufer v. Bridgeport Traction Co., 68 Conn. 475, 37 Atl. 379, 37 L. R. A. 533, 2 Chic. Week. L. Jour. 287, 2 Am. Neg. R. 310, construing Conn. Pub. Acts, 1893, c. 169, § 13. 93 Bly v. Nashua St. R. Co., 67 N. H. 474, 30 L. R. A. 303, 32 Atl. 764. stop his car as soon as possible under the circumstances, with due regard for the safety of the passengers.94 $465. Defective appliances. In determining the degree of care to be exercised by a street railway company in using safe and proper appliances in the operation of its road, the most important element to be considered is the apparent danger, that is, what might happen in case of a failure to supply such appliances. Where the danger is such that serious bodily injury or loss of life may result, the degree of care to be exercised should be one commensurate with the danger, that is, a very high degree of care or the utmost care.95 So, though there may be contributory negligence on the part of a traveler, yet, if the brakes and motor on the cars are so defective as to prevent the stopping of the car in time to prevent an accident, and it could have been stopped except for such defective appliances, the latter fact, and not the contributory negligence of the traveler, will be considered to be the proximate cause of the injury.9 And where a trolley became jammed in a frog at the junction of some overhead wires, and a person on the street was injured by a stick which flew from the conductor's hands while he was on top of the car endeavoring to free the trolley, and it appeared that similar accidents had happened there before, it was held that the jury were justified, from the above facts, in finding that the accident was due to the defective construction of the trolley wires and pole.97 In another case where a traveler was injured by the breaking and fall of a part of an iron ear 94 Gray v. St. Paul City Ry. Co., 87 Minn. 280, 91 N. W. 1106, 12 Am. Neg. R. 604. 95 Uggla v. West End St. Ry. Co., 160 Mass. 351, 35 N. E. 1126, 4 Am. Elec. Cas. 389. In Hogan v. Citizens' Ry. Co., 150 Mo. 36, 51 S. W. 473, it is declared that with respect to the common law duty of an electric street railway to the public: "It is not whether there are known appliances which the defendant did not use, but whether the appliances it does use are such as a person of ordi nary prudence would have used, which determines the question of its negligence." Per Maxwell, J. Quoted with approval in Zimmerman v. Denver Consolidated Tr. Co., 18 Colo. App. 480, 72 Pac. 607, 14 Am. Neg. R. 1. 96 Thompson v. Salt Lake Rap. Trans. Co., 16 Utah, 281, 52 Pac. 92, 40 L. R. A. 172, 10 Am. & Eng. R. Cas. (N. S.) 563. 97 Manning v. West End St. Ry. Co., 166 Mass. 230, 44 N. E. 135, 6 Am. Elec. Cas. 329. used to keep the trolley wire in place, a charge to the jury that if no further facts appeared it would be competent to find negligence on the part of the street railway company, was held to be correct. 98 § 465a. Liability of street railway for damages caused by operation of power house. Where it is provided by the Constitution of a State or by statute that compensation shall be made in all cases where, but for legislative authority to do the act, an action would lie at common law, an action on the case will lie against a street railway company for damages caused to an owner of adjoining property by the maintenance and operation of a power house, though the erection and maintenance of the power house were things which the street railway company's charter authorized it to do in the operation of its road, and they were performed in a reasonably skillful and proper manner and therefor did not constitute a nuisance and could not be abated as such. In such a case, the structure being a permanent one, all damages, in law, accrue when the cause of the injury is created and the recovery must be for the whole damage of which depreciation in the market value is the measure.99 - Permit to make Refusal of § 466. Repair lines Duty of company and remedy. It is the duty of an electrical company to keep its line in good repair, so that streets may be safe for travel, and citizens may be protected in their property rights. In many cases it is necessary to obtain a permit from the local authorities for this work. Where such a permit is necessary and is refused, an electrical company cannot shelter itself behind such refusal and continue to maintain its line in an unsafe condition where other ample remedies are at hand to compel the issuance of such permit, of which it does not avail itself. It is incumbent upon the company in such a case to exhaust every legal remedy to compel the local authorities to grant the necessary permit, and it is held that mandamus will issue to compel them to grant it. So, where the board of 98 Uggla v. West End St. Ry. Co., 160 Mass. 351, 35 N. E. 1126, 4 Am. Elec. Cas. 389. 99 Chicago North Shore Street Ry. Co. v. Payne, 192 IIL 239, 61 N. 1 United States Illum. Co. V. Grant, 55 Hun (N. Y.), 222, 27 N. electrical control in New York city refused permission to certain companies, for whom subways had not yet been provided, to make repairs such as were necessary to keep their lines in proper and safe condition, it was held that this refusal forined no excuse for a failure to make such repairs, where it appeared that the company had not endeavored to avail itself of the legal remedies provided by law to compel the issuance of the permit.2 § 467. Street railway tracks - Repairing of -Repaving between. It is the duty of an electric street railway company to maintain its tracks in a safe condition, and upon the principle that what is the measure of its duties should also be the measure of its rights, it necessarily follows that it is entitled at all times to make necessary repairs. So, where it has a lawful right to relay its tracks, any interference on the part of the city with such work will be restrained by injunction.3 In repairing or relaying tracks where it is necessary to take up the old rails they should be placed in such a position as to be of the least possible danger to passengers alighting from the cars and to travelers. And if an electric street railway company negligently fail to properly fill an excavation made by it in repairing its track it will be liable for an injury caused thereby, though it had no notice of the defective condition of the street. Street railway companies are in many cases required, Y. St. R. 767, 7 N. Y. Supp. 788, 3 2 United States Illum. Co. V. 3 Milwaukee Elec. Ry. & L. Co. v. Milwaukee, 95 Wis. 39, 69 N. W. 794, 36 L. R. A. 45. 4 Wells v. Steinway R. Co., 18 App. Div. (N. Y.) 180, 45 N. Y. Supp. 864. 5 Citizens' Street Ry. Co. v. Marvil, 161 Ind. 506, 67 N. E. 921, 14 Am. Neg. R. 288. It was held in this case that a complaint stated a good cause of action which alleged that the defendant, a street railway company, took up an old rail and put in a new one, and performed the work so negligently as to leave the street in a dangerous and unsafe condition by putting loose dirt in the excavation made in changing the rail so as to allow the loose dirt to settle and leave a dangerous hole or excavation into which animals or vehicles might drop, and that while the plaintiff was driving along the street, exercising due care, he drove into the hole and was thrown out of his wagon and injured, and the accident was wholly due to the negligence of the defendant. The court said: "It was the duty of said company to anticipate and provide for the natural effect of rains upon earth placed in said excava |