After the plaintiff's truck with its load reached the west side of Bay street there was nothing to prevent its being safely taken along that street under the defendant's cross wires, if it was kept at or near the curb line. There was a greater clearance under the cross wires at the side than in the center of the street. After reaching the west side of the street the truck was driven southerly three or four hundred feet before it was at the height of ground. It was then stopped.
In considering the relative rights and obligations of the parties the conversation between the two foremen before the truck was again started is helpful. As given by the plaintiff's foreman it was as follows:
"Q. And then you had a talk with the foreman? A. Then I had a talk with the foreman. I went outside and stood there while we were hooking up the horses. I merely asked him what did he think about it. `Oh,' he said, `he measured it — everything would be all right, if we would keep to the right.'
"Q. And what did you say to that? A. I explained to him. I said, `Now this is going to turn around either one end or the other and strike that wire just as sure as you live when you are going down that hill.' He said, `No, it aint. We are here. We will raise the wire up for you.' * * *
"Q. Mr. Hazlegreen, after the foreman told you that *Page 442 he was there and that he would raise the wires, did you say anything to him? A. Why, I said to him: `Well, wait a moment; I have to think over that. In regards to what?'
"Q. Well, give me this conversation that you had with him, before you proceeded to go along with your truck. Was anything said at that particular time? A. Nothing, only as everything is all right; go ahead.
"Q. Who said that? A. The foreman of the wrecking crew.
"Q. And then what did you do? A. Well, I had all my drivers standing there along side of me.
"Q. Yes, and what did you do? A. We used a little judgment before we started, and we asked one another, would we think it right for to start. So the wrecking crew people told us to go ahead, `We are here, and we will protect you. What more do you want?'"
The second truck was then attached to the truck carrying the pile driver and its wheels were chained so as to make it a drag on the loaded truck and prevent it from descending the slight grade by gravity. Plaintiff's foreman directed his drivers to start the horses and they proceeded with the load. After going a short distance the pile driver came into contact with the live wire and some of the horses were injured. A short time thereafter the horses that were not injured were attached to the truck and it with the pile driver was taken to the place of destination without assistance or further accident. In doing so it was kept along the curb and passed under the cross wires. The front wheels of the truck were four and the rear wheels six feet apart. When the accident occurred and the propelling power was removed from the truck it stopped immediately and its left front wheel was on or very near the defendant's track and its left rear wheel on or about three feet from the track. The turn to the left and the distance traveled had been *Page 443 sufficient so that the truck instead of being along the curb as it was when the conversation mentioned took place was at or upon the defendant's track. The front part of the truck was at least sixteen feet from the curb. The horses were all in the center of the street along the defendant's car tracks.
There is no claim that either of the parties hereto were unlawfully occupying the public street. Upon the facts disclosed neither had the right to use the street to the exclusion or injury of the other. The use of it by each was subject to reasonable use by the other. It is not necessary or desirable to discuss the rights of the parties in case either had attempted to assert and enforce its alleged rights as against the asserted and alleged rights of the other. Their apparent relation to each other on the day of the accident was one of mutual helpfulness. The purpose of the wrecking crew in accompanying the plaintiff's employees so far as appears was to protect the defendant's property from injury. So far as they were assisting the plaintiff their service was voluntary and gratuitous. There was no express contract between them. There was no implied contract except that reasonable care would be exercised in whatever was actually done or undertaken by either. The defendant's employees had lifted the wires to permit the plaintiff to pass under them when it first came upon Bay street without asserting any claim to be paid therefor and remained to perform gratuitously any service that became necessary for the care of the defendant's property and the convenience of the plaintiff. That there was no necessity for lifting the wires generally along the street is shown by the fact that the plaintiff continued along the curb line without meeting any obstruction for three or four hundred feet on Bay street to the height of ground near where the accident happened. The conversation that we have quoted consisted principally of expressions *Page 444 of opinion. That the plaintiff's foreman did not wholly rely on the opinion of the defendant's foreman is apparent from the conversation as given by him. He consulted with his drivers and concluded to proceed. The statement of the defendant's foreman amounted to an expression of opinion that the plaintiff could proceed safely if he would keep to the right, and it was accompanied by a statement in substance that he would raise the wires if it at any time became necessary.
The representative of each party was fully aware of the danger of coming into contact with a live wire. It cannot be assumed from the record that the members of the wrecking crew had a superior knowledge in regard to handling the truck with its heavy load to that of the plaintiff's foreman and his associates who had been engaged for years in the trucking business.
It required from ten to fifteen minutes to raise the wires in one place. It could not be done from time to time as the truck was moving. The necessity, if any, for raising the wires had, therefore, to be determined in time to stop the truck and wait until the wires were raised before proceeding further. When the truck started it did not move rapidly. It seems to have been under full control. As it proceeded danger of contact with the live wire must have been apparent, but there does not appear to have been any effort to stop it before the accident to the horses which cut off the propelling power. It is quite evident from the testimony that if the movement of the truck had been closely watched and the plaintiff's drivers had proceeded very slowly around the curve and past the tree, the truck could have been stopped on signal from the foreman the instant danger was imminent. In that case the defendant's workmen were there to lift the wire at the place of immediate danger and permit the truck to continue as it did after the accident along the curb to the place of destination. *Page 445
I am of the opinion that there is no justification for the assumption by a majority of the court expressed in words as follows: "We think that there is a fair question of fact for the jury as to whether the defendant's servants were not negligent in stating that they could and would lift the wire if danger became imminent and in inviting the plaintiff to drive on when as they now say that was an impossible thing for them to do. Whether there was danger or not was a matter of which they had knowledge and of which the plaintiff's servants had no knowledge."
The judgment of the Appellate Division should be affirmed, with costs.
HISCOCK, Ch. J., CARDOZO and POUND, JJ., concur with ANDREWS, J.; COLLIN and CUDDEBACK, JJ., concur with CHASE, J.
Judgment reversed, etc.