#### CHRISTOPHER ROCHE, Plaintiff in Error, *vs.*THE MILWAUKEE GAS LIGHT COMPANY, Defendant in Error.

ERROR TO MILWAUKEE COUNTY COURT.

The Milwaukee Gas Light Company was authorized by contract with the city of Milwaukee, to erect lamp posts upon the sidewalks; the company erected the posts, managed and controlled, cleaned and repaired them; held, that this was sufficient title and possession to enable the company to maintain trespass for an injury done to them.

If an injury to a lamp post belonging to the Milwaukee Gas Light Company, occur solely from the bad condition of the street, Yidthout any fault on the part of the defendant, an action cannot be maintained for such injury.

In an aotion by the Milwaukee Gas Light Company, brought for injury done to one of its lamp posts, the bad condition of the street, by reason whereof the defendant’s wagon unavoidably slipped round against the post and broke it, is a good defence; and is equally valid against the company, as it would be against the oity, were the latter the owner of the post and the plaintiff in the aotion.

This was an action of trespass for breaking down a lamp post of the defendant in error, in the city of Milwaukee. The plea was the general issue with notice of several matters of justification. The action was brought before a justice of the peace, where judgment was rendered against the plaintiff in error, defendant below, who appealed to the County Court, where a trial was had at the April term, 1856.

On the trial, the plaintiff below gave in evidence, that in January, 1856, a cast iron lamp post, standing on the sidewalk, at the corner of Mason and East Water streets, in the city of Milwaukee, was broken. The plaintiffs below had the management and control of the post; they cleaned and repaired it, and lighted the lamp. It was a public lamp post, and was to supply a public lamp used for lighting the street. The city paid rent for it to the plaintiffs. A new post was put up by the plaintiffs below in place of the one broken down, A witness testified that *56tiie defendant admitted that he had broken down the post, but that it was not his team that broke it: that he took the reins because he thought the other man in the wagon could not drive through. The post was firmly set three feet in- the ground. It also appeared by a written contract between the city of Milwaukee and John Lockwood, that the former had granted to the company the privilege of putting down pipes, erecting posts, &c. The post was on the sidewalk, corner of East Water and Mason streets.

The plaintiffs here rested, and the defendant moved for a nonsuit, on the ground that the plaintiff had not shown sufficient title or possession to the post, it being a fixture, and a part of the realty, and the plaintiffs had not showed any authority to erect said post on the sidewalk. The motion was overruled, and the defendant excepted.

The defendant then called a witness who testified that he was present when the lamp post was broken. The weather was cold, and the streets were slippery and full of ice. The market place was full of teams. The witness and the defendant were coming down Mason street in a wagon, and wanted to go to Market place. They wanted to drive through on the right hand side, but the street being full of wagons, they had to go on the left hand side of the street; as they attempted to drive through, on the left side, the hind part of the wagon slewed round and struck the lamjD post. The witness was driving down Mason street, and was driving when the wagon commenced to slew. As the witness was not much acquainted with driving, the defendant took the reins out of his hands; this was after the wagon commenced slipping, and when the hind part of the wagon was some six to ten feet from the post: about a minute or a second after the defendant seized the reins, the post fell, being struck by the hind part of the wagon, driving on a walk. The defendant also gave in evidence an ordinance to prevent nuisances on the sidewalk.

The evidence being closed, the judge charged the jury as follows: “In my view it is perfectly immaterial who held the reins of the horse at the time when the injury complained of *57was committed; tbe evidence of tbe defendant’s baying been in tbe wagon at tbe time of tbe trespass, is sufficient to make bim a joint trespasser, and as snob liable to the plaintiffs;” to which ruling tbe defendant excepted. Tbe defendant also excepted to another portion of tbe charge, to tbe effect that tbe plaintiffs bad shown a sufficient property to maintain tbe action.

The defendant asked tbe judge to charge the jury, “that whatever would be a defence against tbe city, in case tbe lamppost in question belonged to, and this action bad been brought by tbe city, on tbe ground that tbe alleged trespass was owing solely to tbe bad condition of tbe street, and not to any fault of tbe defendant, would also be a defence in this action against tbe present plaintiff;” which was refused by tbe judge, and tbe defendant excepted.

Tbe jury returned a verdict of $27.50 in favor of tbe plaintiff below, whereupon tbe defendant moved for a new trial, on tbe ground that tbe judge erred in tbe instructions given to tbe jury, and that tbe verdict was contrary to tbe evidence; and that it was rendered on insufficient evidence; which motion was denied by tbe court and tbe plaintiffs excepted. Judgment was accordingly rendered on tbe verdict.

*/Smith & Salomon,*for tbe plantiff in error.

*M. H. Finch,*for tbe defendant in error.

*By the Court,*

Cole, J.

In disposing of this case we do not deem it necessary to enter upon an examination of tbe law applicable to fixtures, as that question is not involved here. It must be conceded that the city of Milwaukee unquestionably bad tbe right to permit tbe Gras Light Company, or tbe assignor of tbe company, to set up and establish at proper places along the streets of tbe city, public lamp posts. These posts were to be used in lighting tbe streets of tbe city, an object not only consistent with tbe public easement, but highly advantageous to *58and necessary for; the full enjoyment of tbe easement' on tbe part of tbe public. Tbe streets were thus rendered more safe and passable at nigbt than they otherwise would have been. In tbe present case tbe city gave tbe assignor of tbe company, by a contract in writing, “ tbe exclusive right and privilege to make all tbe necessary excavations, and lay pipes for tbe purpose of conducting gas through or under any and all tbe streets, lanes, alleys, sidewalks, highways or commons, in said city,” provided that all excavations so far as regards tbe laying of the pipe, were to be made under tbe directions of tbe city authorities, and with tbe least inconvenience to tbe public interest; and said assignor agreed, among other things, to furnish tbe city with good gas for all tbe public lamps that might from- time to time be placed on any of tbe Enes of pipe laid through tbe city at tbe rate of $2.50 per thousand cubic feet. Tbe lamp post in question, it seems, was erected and kept in order at tbe expense of tbe company. Tbe company bad tbe management and control of it; cleaned and repaired, furnished gas for tbe lamp, lighted it and were paid by tbe city for tbe gas .burnt therein; and tbe post was, we think, to all intents and purposes tbe property of tbe company, and in their possession. - Under such circumstances, can there be a reasonable doubt of tbe right of tbe company to maintain an action of.trespass for tbe. willful or negligent injury to tbe post? None whatever. This disposes of tbe first point made by tbe counsel.for tbe plaintiff in-error, viz : that the company could not maintain tbe action without showing possession or title to tbe soil where tbe lamp post was placed.

Tbe next point is, that tbe court below erred in refusing to give tbe following *instruction“*That whatever would be a de-fence against tbe city, in case tbe lamp post in question belonged to, and this action bad been brought by. tbe city, on tbe ground that tbe alleged trespass was owing solely to tbe bad condition of tbe street, and not to any fault of tbe defendant, would also be a defence in this action against tbe present plaintiff.”

This instruction was proper, and should have been given. Tbe witness, Bessel, testified that be was present in tbe wagon when tbe lamp post was broken ; that they were going through *59Market place; thar the street was fall of teams; that the weather was cold, and the streets slippery and fall of ice; that in attempting to drive along on the left side of the street the wagon began to slide some six to ten feet from- the post, and the ground being descending, the hind part of the wagon slipped around and struck the post and broke it. The company standing in the same relation to the defendant below that the city would have stood had it owned the post and brought the suit, in view of the above testimony, it became material for the jury to determine whether the injury was done without any fault of the defendant, while driving along the street with ordinary care and prudence, solely in consequence of the slippery and bad condition of the streets. If the injury was the result of an inevitable accident, happening because the street was crowded, slippery and uneven, while the defendant was exercising proper care in driving, that was a good defence to the action.

Eurthermore, we are of the opinion that a portion of the charge given to the jury is not entirely free from objection. ■ The court instructed the jury that - “it was perfectly immaterial who held the reins of the horse at the time when the injury complained of was committed; the evidence of the defendant’s having been in the wagon at the time of the trespass was sufficient to make him a joint trespasser, and as such liable to the plaintiffs.”

If it appeared from the evidence that the defendant was a mere passenger in the wagon, having no interest whatever in it, or in the horse, and neither aiding, nor in any manner consenting to the trespass, could he be held liable ? I think not. *Richardson vs.*Emmerson, 3 *Miss.*319; *Davey vs. Chamberlain,*4 *Esp. N. P.*229.

The judgment of the court below must be reversed, and a new trial ordered.'