law bound to maintain a fence at that point, but the fence was broken down; and the plaintiff passed through at that point. The facts are more fully stated in No. 530, post.) Matthews, J. 3. It is further argued that the direction of the Court below was right, because the want of a fence could not reasonably be alleged as the cause of the injury. In the sense of an efficient cause, 'causa causans," this is no doubt strictly true. But that is not the sense in which the law uses the term in this connection. The question is, was it causa sine qua non, a cause which if it had not existed, the injury would not have taken place, an occasional cause? and that is a question of fact, unless the causal connection is evidently not proximate. 354. QUILL v. EMPIRE STATE TELEPHONE & TELEGRAPH COMPANY COURT OF APPEALS OF NEW YORK. 1899 159 N. Y. 1, 53 N. E. 679 APPEAL from Supreme Court, general term, Fifth department. Action by Jeremiah Quill against Empire State Telephone & Telegraph Company. From a judgment of the general term affirming a judgment for plaintiff (37 N. Y. Supp. 1149), defendant appeals. Reversed. Frederic E. Storke, for appellant. E. C. Aiken, for respondent. PARKER, C. J. The plaintiff, while standing on the south side of a telephone-pole belonging to this defendant, and under the end of the lower cross-arm, was struck by a glass insulator which, in an attempt to change the telegraph wire, was thrown from the pin upon which it had been placed. The taut wire, as it was being raised, caught under the insulator, and lifted it from the pin. The person who raised the wire was not in the employ of the defendant, nor connected with it in any way. He was an employee of the city of Auburn, who discovered that there was some difficulty with the wires, and went up the pole of his own accord for the purpose of remedying it. For the injuries that the plaintiff suffered he succeeded in obtaining a judgment against the defendant, predicated necessarily upon the ground that the defendant failed to perform some duty that it owed to the travelling public, of which the plaintiff was one. It is very difficult to point out the act claimed to constitute an omission of duty. Indeed, without an ingenious use of authority, which seems sometimes to be resorted to to prove what is obviously untrue, the task would scarcely be undertaken by any one. The facts are not in controversy, and a statement of them will, I think, support the assertion made. It is true that the defendant was the owner of the pole, which was in height ninety-six feet, in circumference at the base six feet, and had upon it twenty cross-arms, each of which was ten feet in length and bore ten pins. The bottom cross-arm, from which the insulator fell, was forty-seven feet from the ground. Now, while this was the defendant's pole, it did not make use of all the arms. The two uppermost arms were occupied by the American Telephone & Telegraph Company; the thirteen arms immediately below were used by this defendant; the succeeding four arms below had no wires on whatever; the twentieth and last arm was used exclusively by the Western Union Telegraph Company, and it was from this arm that the insulator fell. It seems that when this large pole was being erected for the use of the defendant, the manager of the Western Union Telegraph Company complained that the effect of it would be to interfere with his company's use of a pole near by, which carried the wires of that company, and thereupon he was told that, as soon as defendant's pole was up, the Western Union Company could either put on a cross-arm or use the bottom cross-arm which the defendant had put on, as defendant would have no use for it. This settlement of the difficulty was accepted, and immediately after the erection of the pole the Western Union Company took possession of the lower cross-arm, and exclusively used it from that time on until after the happening of the accident. . . . The situation, then, so far as this defendant is concerned, is this: It turned over to another company the use of part of its property, consisting of an arm of a telephone pole and pins thereon, all of which were, and still are, in perfect condition. The Western Union Telegraph Company took possession of the pole, strung seven or eight wires thereon, and thereafter continued in the exclusive occupation of it down to the 27th of June, 1891, when an employee of the city. government having no relation whatever to any of the corporations owning or using the pole, went upon it for the purpose of making some temporary alteration in the position of the wires, and in attempting to do so lifted directly upward a wire that rested against one of the pins, and which caught under the glass insulator, raised it up from the pin, and threw it to the ground. The defendant is certainly not responsible, under this evidence, on the ground that it turned over to the Western Union Company the insulator thrown off, for it did not furnish it. Nor is it responsible for every act done or omitted on the lower arm of the pole, simply because it owns it. The neglect, if any there was, on the part of either the owner or the occupant of the pole, was that of the Western Union Company in omitting to catch the insulator on the thread of the pin; and for its omission of duty the owner is not responsible. . . . In this case the evidence points to the Western Union Telegraph Company as the company responsible for the insulator being upon the pin without being screwed down; but, in any event, the state of the evidence is such that it will not support a finding that this defendant furnished the insulator, or put it on, or had anything to do with it whatever. The judgment should be reversed, and a new trial granted, with costs. to abide the event. All concur except O'Brien, J., dissenting. Judgment reversed, etc. 355. OHIO & MISSISSIPPI R. Co. v. LACKEY (1875. 78 Ill. 55); holding unconstitutional a statute providing that "every railroad company shall be liable" for the burial expenses of "all persons who may die on the cars"). Breese, J.: On what principle is it that railroad corporations, without any fault on their part, shall be compelled to pay charges which, in other cases, are borne by the property of the deceased, or, in default thereof, by the county in which the accident occurred? An examination of the section will show that no default, or negligence of any kind, need be established against the railroad company, but they are mulcted in heavy charges if, notwithstanding all their care and caution, a death should occur on one of their cars, no matter how caused, even if by the party's own hand. . . . It is not claimed that the liability attaches for a violation of any law, the omission of any duty or the want of proper care and skill in running their trains. The penalty is not aimed at anything of this kind. We say "penalty," for it is in the nature of a penalty, and there is a constitutional inhibition against imposing penalties where no law has been violated or duty neglected. Neither is pretended in this case; nor are they in the contemplation of the statute. A passenger on the train dies from sickness; he is a man of wealth; why should his burial charges be charged to the railroad company? There is neither reason nor justice in it. And if he be poor, having not the means for a decent burial, the general law makes ample provision for such cases. . . . APPEAL from Circuit Court; JOSEPH W. SNEED, Judge. Action by Lottie Weeks against Frank McNulty and others. Judgment for defendants. Complainant appeals. Affirmed. Jerome Templeton and Chas. T. Cates, Jr., for appellant. Washburn, Pickle & Turner, and Mynott, Fowler & Mynott, for appellees. MCALLISTER, J. Plaintiff brings this suit to recover damages for the death of her husband, Arthur E. Weeks, which is alleged to have been occasioned by the negligence of the defendants. The grounds of the liability alleged in the declaration are: First, that defendants were owners and proprietors of the Hotel Knox, a public inn in the city of Knoxville, and had negligently permitted said hotel to be in an unsafe and dangerous condition; and, second, that defendants had not employed a sufficient complement of servants for the protection of the hotel and guests; and third, that the servants employed were incompetent, whereby said hotel was on April 9, 1897, destroyed by fire, and plaintiff's intestate, Arthur E. Weeks, who was a guest therein, lost his life. The more specific grounds of negligence are stated in the second count of the declaration, viz.: That defendant had failed to provide fire escapes, as ordered by an ordinance of the city of Knoxville, or other reasonable means of escape from said building; that defendants failed to arouse deceased, or give him proper warning of said fire, and that this failure was due to defendants' omission in not employing a responsible watchman. . . . Defendants pleaded not guilty. The case was tried by a special jury, to whom a large volume of testimony was submitted. The trial resulted in a verdict and judgment for defendants. Plaintiff appealed, and has assigned errors. The facts necessary to be stated are that the defendant Frank McNulty was the owner and proprietor of a public inn in the city of Knoxville, known as "Kotel Knox." Plaintiff's intestate, Arthur Weeks, was a travelling man, representing the Rochester Stamping Works and the Robinson Cutlery Company, of Rochester, N. Y. On the evening of April 7, 1897, said Weeks reached the city of Knoxville, registered at the Hotel Knox, and was assigned to room 49 on the third floor. About three o'clock in the morning following, Hotel Knox was destroyed by fire, and said Weeks perished in the flames. The fire was first discovered by the night watchman of the hotel, who immediately gave the alarm, ascended the stairway leading to the second and third floors, knocked upon the doors, and made every effort to arouse the guests. It is in proof that the guests were all aroused and escaped, excepting deceased and one other. It is in evidence that one of the guests, as he passed out, heard some one in 49 pounding at the door, and noticed that he had kicked out one of the panels. If this evidence is to be credited, it tends to show that the deceased heard the alarm, but had unfortunately fastened himself in, or, in the excitement, had lost all command of his faculties. It is also shown that parties occupying rooms on the same floor with deceased, immediately contiguous, and across in the hall in opposite and diagonal directions, all received the alarm, and succeeded in making their escape. The building was provided with a front and rear stairway, but had no fire escapes. South of the Hotel Knox and immediately adjoining, was the banking house of the Third National Bank, which being only one story high, several of the guests leaped upon its roof from the burning hotel building. This mode of escape was accessible to deceased, since his window overlooked the roof, but it is not shown that he had knowledge of it. The fourth assignment is that the Court erred in excluding the ordinance of the city of Knoxville requiring the owners and keepers of hotels to erect fire escapes thereon. . . . We do not, however, decide the effect of the breach of an ordinance in fixing civil liability, nor do we adjudicate the proper construction of the ordinance offered in evidence, since neither question is necessarily involved in this case, for the following reasons, namely: There is no proof in the record even tending to show that the deceased lost his life in consequence of the failure to construct fire escapes as provided by the city ordi nance. After a very attentive reading of the record in this cause, we have failed to discover any causal connection between the death of plaintiff's intestate and the failure of defendants in error to erect fire escapes, as required by the ordinance. It is not shown that the deceased was at a window, or in any position where a fire escape would have afforded him any benefit whatever. There is evidence tending to show that deceased had locked himself in his room, and was heard beating on his door, trying to make his escape. It is shown that one of the windows of his room overlooked the Third National Bank Building, and that deceased could, and with entire safety to himself, have escaped by leaping to the roof of that building, as many others similarly situated successfully did escape. As already stated, it is not shown that deceased knew of this avenue of escape, and we cannot conceive how he would have been benefited by fire escapes under the circumstances surrounding him. We are therefore of opinion that if the contention of counsel for plaintiff in error in respect of the proper construction of this ordinance were correct, and that its breach would constitute actionable negligence, these questions are mere abstractions in this case, since no causal connection between the violation of the ordinance and the injuries sustained by the plaintiff is shown. . . 358. LAIDLAW v. SAGE SUPREME COURT OF NEW YORK. 1893 73 Hun 125, 25 N. Y. Suppl. 955 Affirmed. APPEAL from Circuit Court of New York county. Action by William R. Laidlaw, Jr., against Russell Sage, for personal injuries. The complaint was dismissed at the trial, and plaintiff appeals. Reversed. Argued before VAN BRUNT, P. J., and FOLLETT and PARKER, JJ. Davis Work, Pincoffs & Jessup (Noah Davis, of counsel), for appellant. John F. Dillon and Rush Taggart (Edward C. James, of counsel), for respondent. VAN BRUNT, P. J. This action was brought to recover damages because of certain alleged wrongful acts of the defendant. The answer admitted some of the acts, but denied that any wrong had been done by the defendant to the plaintiff. The facts appearing upon the trial seem to be substantially as follows: The plaintiff had for a number of years been accustomed to call upon the defendant at his office on business two or three times a week, and sometimes oftener. On the morning of the 4th of December, 1891, he went to call on the defend |