I agree with Mr. Justice Lambert that the judgment and order should be reversed and a new trial ordered against the Windsor Motor Oar Company, upon the ground that the verdict is against the weight of the evidence.
2. As to the other defendants, I am unable to see how there can be any liability upon the ground of negligence, if none exists for maintaining a nuisance. If the poles were an unlawful obstruction in the street, I think both the city and the street railway company may be held liable; if they were not, Í think no cause of action can be sustained upon either ground. This is not a case of a single, isolated pole being located in an improper place. The pole with which the automobile collided was no more dangerous to public travel than any other of these center poles. I think the poles were not an unlawful obstruction in the street. Nor do I think that any changed situation or conditions have arisen since the original location of the poles so as to make the defendants liable for the collision.
While the act of the Legislature granting the franchise *513(Laws of 1866, chap. 479) did not specifically authorize the street railway company to use electric power for operating its railroad, hy section 12 of chapter 252 of the Laws of 1884 it was expressly authorized to operate its railroad by any power other than locomotive steam power, which might be consented to by the local authorities and by a majority of the property owners, obtained in accordance with sections 3 and 4 of that act. That such consent was obtained is established beyond dispute, and such I understand to be the holding of the trial court. Thereupon the street railway company had the same right to conduct electric energy in the street for operating its cars as to lay tracks.
Under the city charter the common council has the general control of the streets and is specifically authorized to regulate the use of them. (Laws of 1870, chap. 519, tit. 3, § 8, subd. 8; City of Buffalo v. Stevenson, 207 N. Y. 258.) In 1890 the common council, assuming to exercise the authority to locate trolley poles, carefully considered the question as to whether it was advisable to place the poles in the center of the street or on the side. The center-line plan was adopted as to Niagara street and other sections of the city. Whether or not that plan was specifically adopted by the common council as to North Main street where the accident occurred, or the poles located in the center of the street by specific direction of that body, is not made to appear by direct proof. However, it is conclusively established that the poles there were located in the center of the street, if not by the express direction, with the consent of the common council.
In determining whether the poles should be located in the center or on the side of the.street, I think the common council was performing a governmental function and acting in a quasi judicial capacity. If the common council erred in locating the poles in the center instead of on the side or permitting that to be done it was but an error of judgment for which no legal liability arises any more than as if the common council had located a row of street lights in the middle of the street. As is well known, public streets are not entirely devoted to public travel. Furthermore, the driveways upon either side of this row of poles seem to have been sufficient for ordinary vehicu*514lar travel. At least, so far as the record discloses, no such accident as this had ever happened before. That this accident would not have happened but for the reckless driving is abundantly established by the evidence, and so the jury has found. Against such accidents the city is not required to guard.
I am of the opinion that the question as to whether the side-pole construction or the center-pole construction would best subserve public interests was fairly within the power delegated by the Legislature to the common council for its determination, and if so, no action lies for locating the poles in the center instead of on the side of the street (Maxmilian v. Mayor, 62 N. Y. 160; Urquhart v. City of Ogdensburg, 91 id. 67; Young v. Inhabitants of Yarmouth, 75 Mass. 386), and that no legal liability exists against either the city or the street railway company.
If I am right in this conclusion it follows that a verdict should have been directed for the city and the street railway company, and the complaint should now be dismissed as to them.