Fourth Department, November, 1911.

[Vol. 147.

JAMES E. BAILEY, as Administrator, etc., of EDITH L. BAILEY, Deceased, Respondent, v. THE BELL TELEPHONE COMPANY OF BUFFALO and the TOWN OF YORK, Appellants.

Fourth Department, November 15, 1911.

Highways - negligence

location of telephone poles on rural highway - when no negligent obstruction of road - failure to comply with order of highway commissioner - effect of acquiescence of commissioner when town not liable for injury received by one using highway.

Where a telephone company erects poles on a public highway under the authority of section 102 of the Transportation Corporations Law it must place them so that they will not interfere with, or make dangerous, the use of the highway by the public.

But where a highway in a rural community is twenty-four feet wide a telephone company is not negligent in placing its poles two and a half feet outside the traveled roadway, and hence is not liable for injuries received by a person who was thrown against such pole when the horse which she was driving ran away.

The telephone company is not liable by reason of the fact that, although directed by the commissioner of highways to place the poles further from the roadway, it did not do so because it was impossible without destroying shade trees to which the owners objected, where the commis sioner knowing the location of the poles did not object or ask that they be moved.

The commissioner of highways was not negligent so as to charge the town by allowing the telegraph poles to remain two and one-half feet outside the traveled highway.

APPEAL by the defendants, The Bell Telephone Company of Buffalo and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Livingston on the 3d day of February, 1910, upon the verdict of a jury for $2,000, and also from an order entered in said clerk's office on the 3d day of February, 1910, as resettled by an order entered on the 25th day of February, 1910, denying the defendants' motion for a new trial made upon the minutes.

Fred C. Goodwin, for the appellant Bell Telephone Company.

App. Div.]

Fourth Department, November, 1911.

John F. Connor, for the appellant Town of York.

Frank K. Cook, for the respondent.

SPRING, J.:

On the 10th of June, 1908, the plaintiff's intestate, a young lady twenty-one years of age, was riding with three children easterly along a highway in the defendant town on their way to the union school at Greigsville. While traveling on a down grade the strap which held the thills in place broke, or unfastened, and the thills tilted up, frightening the horse, so that he became unmanageable, running away and colliding with another carriage traveling in the same direction, and both rigs were overturned and the plaintiff's intestate was thrown against a pole of the defendant company erected in the roadside and received injuries from which she died within a few hours.

It is the claim of the plaintiff that the defendant company was negligent in locating the pole so close to the traveled part of the highway, and the commissioner of the defendant town in allowing it to remain in that place.

The defendant company in the summer of 1904 erected poles in the highways through the town and they were generally placed where directed by the then commissioner of highways of the town. At the place of the accident the traveled part of the highway was about twenty-four feet in width. The pole was at least thirty inches north of the northerly edge of the part devoted to travel and about thirteen and one-half feet from the boundary fence on the north side of the road. Between the pole and the fence was a row of shade trees about six feet from the fence, and the land between the fence and the trees was used as a sidewalk, and from the walk to the traveled road was a grass plot. The pole was about twenty feet in height above the ground, eight inches in diameter at the top and larger at the bottom. There was a crossarm on the pole extending out on either side between four and five feet in a northerly and southerly direction, which brought the northerly end within about three feet of the trunk of the nearest tree. The tree was considerably higher than the pole.

APP. DIV.-VOL. CXLVII. 15

Fourth Department, November, 1911.

[Vol. 147. The Legislature has granted to telephone companies the authority to erect and maintain their poles in the highways. (Trans. Corp. Law [Gen. Laws, chap. 40; Laws of 1890, chap. 566], § 102, now Trans. Corp. Law [Consol. Laws, chap. 63; Laws of 1909, chap. 219], $ 102.)

In availing itself of this authority the company must locate its poles so that they will not interfere or endanger unneces sarily or unreasonably the use of the highways by the traveling public, which is its paramount purpose. The highway where the accident occurred was in a rural community and twentyfour feet was ample space for those driving over it. The company was not negligent in placing the poles two and one-half feet outside the traveled roadway. (Scofield v. Town of Poughkeepsie, 122 App. Div. 868; Robert v. Powell, 168 N. Y. 411.)

It is usual to place shade trees, telegraph and telephone poles, hydrants, stepping stones, hitching posts and other objects in the highways, and, if the use of the roadway is not interfered with, they are not ordinarily unlawful obstructions. Such use of the highway is regarded as proper and necessary. (Cases cited; Van Wie v. City of Mount Vernon, 26 App. Div. 330; Dougherty v. Village of Horseheads, 159 N. Y. 154; Dubois v. City of Kingston, 102 id. 219; Wolff v. District of Columbia, 196 U. S. 152; Jordan v. City of New York, 44 App. Div. 149; affd., 165 N. Y. 657.)

It is the contention of the respondent that the telephone company in locating the poles did not comply with the direction of the commissioner of highways and, therefore, the pole was an unlawful obstruction in the highway. It appears that the commissioner told the foreman of the company to set the poles within six feet of the road fence. This could not be done at this place without mutilating or destroying the shade trees, to which the owner objected, so they were placed nearer the roadway. The commissioner learned where they were located, and never objected or asked that the poles be moved. I think this was no such deviation from the direction of the commissioner as made the line of poles unlawfully in the highway. The right to erect them came from the State, and the commissioner in the exercise of his authority in the location of them apparently acquiesced in what the company had done.

App. Div.]

Fourth Department, November, 1911.

The only importance of this disregard of the direction of the commissioner by the company is to sustain the charge of an unlawful obstruction.

The respondent takes two positions which are hardly consistent. He claims that the company is negligent because it erected its poles in violation of the command of the commissioner, and, second, that the town is liable for the reason that the commissioner acquiesced in the location of the poles actually made by the company. If there was an acquiescence in what was done the omission to obey the order of the commissioner has been ratified and is not important.

However, the real pith of the controversy is whether the telephone company was negligent in erecting this pole two and one-half feet north of the traveled part of the roadway, and whether the commissioner was negligent in allowing this to be done. It seems clear there was no invasion of the highway, no improper interference with the use of the road by the traveling public. An unmanageable horse may run into a shade tree or lamp post, or stepping stone outside of the roadway, and its driver be injured because of the collision, but negligence may not necessarily be imputed to the town or person directly responsible for placing the obstacle in the highway.

The judgment should be reversed.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellants to abide event.

THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. BARNEY LAZERSOHN, Appellant.

Fourth Department, November 15, 1911.

Appeal — order denying motion to quash indictment.

An independent appeal does not lie from an order denying a motion to

quash an indictment.

WILLIAMS, J., dissented.

Fourth Department, November, 1911.

[Vol. 147.

MOTION by the plaintiff, The People of the State of New York, to dismiss the defendant's appeal from an order refusing to quash an indictment.

Joseph Gilbert, District Attorney, for the motion.

Wile & Oviatt, opposed.

KRUSE, J.:

The district attorney moves to dismiss the defendant's appeal from the order denying the motion to quash the indictment upon two grounds: (1) Non-service of the printed papers and (2) that the order is not appealable. I think the motion should be granted upon the ground that an independent appeal will not lie from the order.

Defendant contends that an order denying a motion to quash an indictment is like an order denying a motion to change the place of trial, as regards, the right of appeal, and that this court has held that an independent appeal will lie from an order refusing to change the place of trial. This court so held in People v. Jackson (114 App. Div. 697). It is unnecessary here to repeat the discussion for and against such holding. The question was fully discussed in that case and settled so far as this court is concerned, and I am not aware that the Court of Appeals has held to the contrary; but that decision is not decisive of the question here. In that case it was held that the only way of reviewing such an order was by an independent appeal therefrom; that it could not be reviewed upon an appeal from a judgment of conviction under section 517 of the Code of Criminal Procedure because, as it was said, such an order forms no part of the judgment roll. But the Court of Appeals has held that an order refusing to quash an indictment may be reviewed under section 517 by the Appellate Division upon an appeal from a judgment of conviction. (People ex rel. Hummel v. Trial Term, 184 N. Y. 30.) And the Third Department has expressly held that such an appeal as this does not lie. (People v. Rutherford, 47 App. Div. 209.) That decision has never been overruled as far as I know. It commends itself to my judgment, and I think we should follow it in this case. The motion to dismiss the appeal should be granted.