(concurring). The telephone company had permission to set its poles in the highway, for the public good; and, therefore, committed no wrong in resorting to that privilege. There was no claim of willful disregard of the public safety. Nuisance implies an unlawful act, for the doing of which no amount of care would be a defense; and accordingly negligence need not be proved to establish liability therefor. The question of nuisance is not in the case.
However, the telephone company was bound to exercise reasonable care in locating its pole, so as not to create an unreasonable and needless danger. (Stern v. International R. Co., 220 N. Y. 284, 290, 295; Lambert v. Westchester El. R. R. Co., 191 id. 248.) There was evidence that the other side of the street was occupied by electric light wires, and was not a proper place for telephone wires. Of course, if this were so, it would be no adequate reason for locating the pole in question where it created a needless danger; and the city could not permit or justify such an act. The pole in question had been maintained in the same place for many years, and the city was bound to know it; and if it failed to cause its removal from a dangerous location, it was chargeable with negligence.
Whether the pole was properly placed by the defendant company, and allowed to remain there by the defendant city, were questions of negligence, not nuisance, to be resolved by the jury, as was the question whether the plaintiff’s intestate was guilty of contributory negligence when he collided with the pole.
Judgments and orders reversed on the law and facts, and new trial granted, with costs, in one action, to the appellants to abide the event.