Louisville Bagging Manufacturing Co. v. Central Passenger Railway Co.

95 Ky. 50 | Ky. Ct. App. | 1893

JUDGE LEWIS

DELIVERED THE OPINION OE THE COURT.

The Louisville Bagging Manufacturing Company, a corporation, brought this action for an injunction, which was temporarily granted, restraining the Central Passenger Railway Company, a corporation, and its officers from constructing or operating an electric raibvay on Walnut street, betw'een Nineteenth and Twentieth streets, in the city of Louisville, where plaintiff has a large building used for manufacturing bagging. H. R. Thompson, judge of the Louisville City Court, was also enjoined from proceeding, until termination of the action, to try J. J. Tapp, president of plaintiff’, and others upon warrants against them for cutting down and removing posts erected by the railroad company for use in operating its cars.

The right to construct, and operate by electricity, the railway upon Walnut street, it appears, had been, before the action was commenced, granted to the company by resolution or ordinance of the general’ council of the city of Louisville, duly passed in pursuance of authority conferred by acts of the General Assembly. And as exercise of such delegated authority by municipal legislation has been often sanctioned and recognized by this court, the right so given to the Central Passenger Railway Company must be regarded as valid and effectual as if conferred directly by the General Assembly. Moreover, as legislative power to authorize construction of a railway, upon a public street, and operation of it by even steam, has been distinctly and often held by this court to exist, we see no reason to deny power to likewise authorize construction of such railway to be operated by electricity. Eor it is well settled that the use of a public street for travel and transportation by means of railway cars falls within the purposes for which streets are'established and dedicated. And it is only when other ways of travel and transportation are prevented, or unreasonably obstructed, that courts can interfere to either enjoin or limit operation of railroad upon a public street.

It therefore seems to us the simple inquiry in this case is whether the manner in which the railway under consideration has been, or is designed to be, constructed and operated is such as to clearly impose a new and additional burden upon the laud of plaintiff abutting Walnut street, and, as a consequence, entitling him to previous compensation for the right of way.

The first ground of complaint by plaintiff is that the railway track constructed in front of its manufacturing establishment, will prevent loading and unloading vehicles used in transporting its goods and raw material in the manner heretofore done, which is by backing the wagon or dray up to and at right angle with the sidewalk. The answer to that complaint is, first, that such way of loading and unloading necessarily seriously obstructs not merely operation of every double-track railway, but proper use of a street for all other vehicles; second, there appears to 'be an ordinance of the general council prohibiting loading and unloading of vehicles in that mode.

The next ground is that operating an electric railway car upon a public street is dangerous to those who reside ór do business thereon. Practical application of electricity as a power to drive machinery or move carriages, as also for illuminating purposes, is of recent date, and it is shown the system best adapted for the purpose, if yet discovered, is by no means a perfect one. The evidence of experts and men having actual experience shows that three different systems for moving railway cars by electricity have been tried in this country,viz., the underground conduit system, storage battery system, and that of tbe overhead wire. And it fully appears that the first two are as yet so defective or imperfect that, of several hundred electric railways in operation, there are not a dozen to which either system has been applied, all others being-run by the overhead wire, or trolley system, the same used by the Central Passenger Railway Company.

To apply electrical power in that way requires erection at edge of the sidewalk, on each side of a street, of tall poles, about one hundred and twenty feet apart, and from, top of opposite poles is stretched across the street a sustaining wire, which holds up the electric wire that is thus suspended over middle of the railway track, and from which, by means of the trolley pole, the electric current is connected with the motor placed under the car.

It will be thus seen that the electric wire is not, like telegraph, telephone and electric-light wires, near to buildings, but suspended over the railway track. It further appears that the electric pressure, measured by volts, required to drive a street railway ear is not so great as to destroy or seriously injure a person or animal coming in direct contact with it; injury, when it is produced, resulting only where a broken or detached telephone or telegraph wire falls on it.

The evidence in this case, which need not be considered in detail, shows that, although new and not fully perfected, the trolley system of operating street railway ears, when properly adjusted and supervised, is not much, if ■any more, dangerous than liorse-power, and much less so than steam power, applied in the same way. Moreover, while street railway cars thus operated go at greater speed, are more comfortable, and must in time become a cheaper mode of travel, they can be easier controlled than horse-cars, and do not really more obstruct the streets, or interfere unreasonably with business transacted thereon.

It, therefore, seems to us that, in view of the benefit and convenience to the public of electric cars thus operated, and comparatively little inconvenience or danger they are to individuals, it would. be going beyond the province of a court, and contrary to decided' weight of judicial authority, to enjoin or limit their use, especially when a party seeking such remedy so signally, as has the plaintiff in this case, fails to show he has been unreasonably obstructed or hindered in his' business, or that his rights have been illegally interfered with.

The judgment dissolving the temporary injunction and dismissing the action is affirmed.