Defendant’s high tension wire crossed the plaintiff’s wire' over a street. The defendant negligently allowed its wire *87to sag so that it came in contact with the plaintiff’s wire, charged it with high voltage, burning it in two, causing it to fn.11 upon the street and to hit and kill the horse of McMahon. He brought action against both companies and this plaintiff was required to pay the judgment. This action is brought to recover over against the defendant upon the ground that the defendant’s negligence was the primary cause of the injury. The jury found that the defendant’s negligence caused the death of the horse and that the plaintiff was in the exercise of due care with reference to the matter. The trial judge set aside the verdict on the ground that the McMahon judgment established that both parties were negligent and that one joint tort feasor cannot recover over against the other.
Upon the facts found by the jury, if this plaintiff had sued ' the defendant for negligently causing and permitting its .wire to fall upon the plaintiff’s wire and injure it, a recovery would have followed. Such recovery would make it clear that as between the parties the defendant’s negligence caused the injury. The McMahon case only determined that he might recover against both of the parties for the loss of the horse. No other question was before the court. The question here is whether both McMahon and the plaintiff were injured by the same negligent act of the defendant.
If this defendant was negligent in allowing its wire to sag, it is qvident that the plaintiff might have adopted some precautions to protect the public, and it owed some duty to the public under such circumstances, but as between it and the defendant it could rest upon its rights and was not required to make structures to protect itself from defendant’s negligence. As was said by Mr. Justice Sewell in Fulton County Gas & Elec. Co. v. Hudson River Tel. Co. (130 App. Div. 347): “ The rule that one of two joint tort feasors cannot maintain an action against the other does not apply to a case where one does the act or creates the condition and the other does not join therein. In such a case the parties are not in pari delicto as to each other, though as to third persons either may be held liable. This exception to the rule has been frequently recognized in the courts of this and other States,” citing many cases. That case was affirmed in Fulton County *88Gas & Elec. Co. v. Hudson River Tel. Co. (200 N. Y. 287), the court practically approving of the position taken in this court.
The judgment and order should, therefore, be reversed, with costs, and judgment directed for the plaintiff upon the verdict of the jury, with costs.
All concurred.
Judgment and order reversed, with costs, and judgment directed for the plaintiff upon the verdict of the jury, with costs.