Page:Harvard Law Review Volume 4.djvu/283

267 POLES AND WIRES FOR ELECTRIC RAILWAY. 267 The defendant used the Sprague system, by which the earth and the rails formed the return circuit. The court asked whether there were any other system which would not cause hurt, and which could be used with equal efficacy, and said it is clear that the double trolley system with the metallic circuit would prevent the disturbance, but it is objected that it cannot be used with equal efficacy and is too expensive. To the first objection, the court answered that the double trolley had been used in Cin- cinnati on a double-track railroad and was practicable, and as to the second, that the court would not listen to any argument on the ground of expense when it restrains the doing of a wrong, — citing Lord Hatherly in Atty.-Gen. v. Colney Hatch Lunatic Asylum, L. R. 4 Ch. App. 158. In regard to the double trolley, the court quoted and distinguished the decision of Judge Brown in Cumberland Telephone & Telegraph Co. v. United Electric Co., in the U. S. Circuit Court for the Middle District of Tennessee, May 19, 1890,1 and showed that the judge conceded that in double-track roads the double trolley might be made a success. In this case the decision was that if it were shown that the double trolley would obviate the injury to the complainants without exposing the defendants or the public to any large expense, it would be the duty of the defendants to adopt it ; but as the proofs showed that a more effectual and less expensive remedy is open to the complainants, the telephone company ought to adopt it, and was not entitled to indemnity from the railway company. The case was decided by Judge Brown, now one of the Justices of the Supreme Court of the United States. He said it was not denied that there was serious injury to the telephones, but that it must be borne in mind that the science of electricity is still in its experimental stage ; that a device which is to-day the best, cheapest, and most practicable, may in another year be super- seded by something incomparably better fitted for the purpose ; and that it is quite possible that the legal obligations of the parties may change with the progress of invention, and whichever party, by the adoption of a new device, could obviate the difficulty might be obliged to do so, leaving the question of expense and damages to be settled by the courts ; and we must therefore con- sider the case with reference to the present state of the art, and with the possibility that in another year circumstances may so ^ 42 Fed. Rep. 273.