Evening journal., 1897-05-17

pany now Incorporated or hereafter TO
be incorporated, provided that 1t con-
forms to the grade of the tracks to be
crossed, has already been referred to. |
But the complainant has advanced |
another objection upon which it largely (
bases its motion for a preliminary in
junction.
1t is alleged in the fifth paragraph
Of the bill that "The defendant COM
pany hath no power or authority un-
der its charter as aforesaid or under
the law of the State of Delaware. to
use electricity as a motive power for
the propulsion of its cars in the said
city of Wilmington
This objection at once raises the
question: What standing has the COM
plainant in this court, to ask on this
ground, for the preliminary injunction
prayed for?
If that which the respondent pro
poses to do with its electric railway
does not take property OF the com
plainant for its use and does not work
some damage to IL, differing in kind
/ from the damage which the complain
ant would suffer with the rest of the
community. it has no standing to ask
for injunction merely because the re-
spondent proceeds ultra wires, or
usurps a franchise.
This is horn book law, but / will cite
two cases which were decided by
Chancellor McGill and resembled very
closely the case before me, viz: Morris
q Essex r. r. Co., VS.. Newark Passen-
ger Railway Company 81 N. j. Eq.
page $50; West Jersey Railroad Com
pany VS.. Camden &c Railway Co., %
n. j.. Ed, page 80.
A careful examination of the plead
ings and proof has satisfied me that
the complainant in this case has failed
to show such special damage.
i 1t is true that it has alleged in the
i third paragraph of its bill as amended,
that it "is advised and believes and
and therefore AYERS, that the stretch
ing Of said trolley wires across the
tracks of said company. and the lay
ing of the necessary ground wires for
the operation of said electric road over
said crossings upon said Third street
) or said Fourth street would be attend
ed with great danger to the employees
and servants of said complainant oper-
: ating the trains of said complainant,
b and would most seriously interfere
with the due operation of said road oil
said complainant at said crossing.
5 But the answer denies this allegation
and alleges that the wires would be
: strung more than twenty-five feet
- above the ground, out of the way OF
= any possible interference with COM
/ plainants trains or employees.
? There are no affidavits in support OF
I this allegation of the bill and the an
s swer being responsive and being also
e supported by affidavits must control
in the present application.
The complainant also alleges tha'
, the use of electricity under what Il
r known as the trolley system will rem
a der the crossing by the street railway
T more dangerous than if it used horses
d as a motive power. But the answer
d denies this allegation and great mum
e Der CT affidavits upon this point haV
II been presented and read on both sides
II A number of expert electricians AM
6 officers of street railway system
J. throughout the United States testify
g ing in behalf of the respondent, tha
t with the machinery and safety appli
i ances in use by the respondent, TN
( crossings would be safer than by hors'
n power; and that the chances of aeci
= dent from any of the causes alleged II
complainant's bill and affidavit woul'
It be much less than those that nigh
II arise in the operation of horse rail
way at the railroad crossing.
S After carefully considering AM
It weighing these affidavits, / am salts
D fed that it does not clearly appea
i from them that the crossing under tn
1t trolley system at this point would b
lc more dangerous and a greater menac
Ie to the complainants traffic than woul
% the crossing by horse power. agains
t. which no injunction is asked so tina
be even should it be granted that thes
,e allegations are relevant and materia
ct to this application, yet as the evidenc
4 before me leaves the relative danger {
le a railroad crossing of the two system
S. an unsettled question, they canno
4. avail the complainant since in the an
l- plication for preliminary injunctio
IN the complainants case must be clearl
~ made out.
he AS has been seen already, The CON
I'd plainant does not claim any propert
d. rights as abutter or owner in fee whic
ne will be affected by the proposed cross
a ing of its right of way by the respond
r. ent under the trolley system and doe
not claim to be in danger of receivin
IS, any damages other than those alread
s. considered, it is therefore manife'
w that It has no standing in this eoul
OF for its application for a preliminary II
ty junction. and that for the purpose
mt this motion it is not open TO the cou
g, to consider the question whether th
r. respondent railway company has
of has not power or authority, under Il
of charter or under the laws of the sta
ng of Delaware, to use electricity as m'
It's tive power for the propulsion OF i
We cars in the said city of Wilmington.
&C. There is more than one way OF ol
W, tainng a judicial determination OF tn
lie question, but the proceedings no
IL pending before this court is not one
II them.
re, The arguments of the learned coui
hit sci in this cause have been exception
ed ally able and elaborate-exhaustir
Int the whole fields of inquiry
he have examined the vast number
he cases cited by counsel with great car
Sc, and have given attentive considerable
sr- to the many points which have be-
ch so ingeniously raised and elaborate
'o- by them. but l do not deem it nece