Burton Telephone Co. v. Gordon. in contact with the telephone wire, and was killed. both companies were negligent and liable for the horse." Turney, C. J., in the opinion says: [Vol. IV, N. S. Held: That value of the "Shelton's horse was killed by coming in contact with a wire of the telegraph and telephone company which had fallen across the trolley wire of the electric railway company. The wire of the telephone company had become much impaired. The falling of a wall of a burning building broke a pole of the telephone company, breaking the wires at several points. At the point of the accident the telephone wires crossed the railway track above the trolley. A broken wire fell across the trolley wire, and, while resting on it, the horse came in contact with it and was instantly killed. There was no guard wire over the trolley wire. The case was tried by the circuit judge without the intervention of a jury. The condition of the telephone wire was such as to arrest the attention of a prudent man engaged in the business of either company. The circuit judge found, under the facts, that both companies were guilty of negligence and responsible for the loss, and gave judgment accordingly. The judgment is correct. While it was the primary duty of the telephone company to see that its wires were in a reasonably safe and sound condition, and protected against the contingency of falling, it was also a duty of the electric company to see that its trolley was in like manner protected from such contingency. While it was the duty of the one company not to use unsound and unprotected wires, it was equally the duty of the other not to operate its road under such defective machinery. It might as well insist that it was not responsible for damages resulting from the fall of a hanging rock which it had constantly recognized as threatening to fall, or of a dead tree which it had frequently noticed with decayed and giving roots, and knew would fall in the first wind or rain. The obligation to see that its road was in good repair, and its machinery in safe operating order, is not confined to the immediate and abstract presence of either, but extends to all surroundings that may depreciate the security of either. Both companies knew of the unprotected trolley, and the consequences of a contact of the wires of the one with those of the other. Both knew of the unsoundness likely to produce a fall of the one upon those of the other. Both were bound to guard against such likelihood, and, having failed to do so, are liable. Affirmed." In Block v. Milwaukee Street Railway, in the Supreme Court of Wisconsin, 89 Wisconsin, 371 (61 North Western Reporter, 1101), was a case in which Block was injured in coming in contact with a telephone wire which had fallen upon the defendant's trolley wire, and the negligence complained of was the failure of the street railway company to put guard wires over its trolley wires so as to prevent the telephone wires from coming in contact with the trolley wires. The judge, upon the trial of the case, instructed the jury that such failure constituted negligence as a matter of law and practically told the jury to return a verdict for plaintiff. Upon appeal to the Supreme Court, Newman, J., who rendered the opinion, says: "In the present condition of the science and of the practical knowledge on this subject it can not be said, as a matter of law, what method of guarding the wires shall be required, nor whether any guards shall be required; for it is not known to the law that any method now known will prove effective. But it is a question for the jury, under all the facts in the case, to determine whether the method actually used was negligent. The trial court treated this question as one of law. He instructed the jury, in effect, that guard wires placed over the trolley wires is the approved method of protecting the telephone wire, in such places, and refused to submit to the jury in the special verdict the following question proposed by defendant: 'Did the defendant in the construction and operation of the street railway in question exercise such care and prudence for the safety of persons using the highway as men of ordinary intelligence and prudence engaged in operating the railway in question would have exercised at the place in question?' The instruction virtually took the question of defendant's negligence from the jury. The refusal to submit the question asked withdrew it altogether from the jury. The question of defendant's negligence is always for the jury, unless the negligence is so clear from the evidence that intelligent minds can not fairly form different conclusions upon it. The question was a proper one to be submitted in a special verdict. It related to a material issue of fact, and one upon which the case in a large measure turned. Both the charge upon this point and the refusal to submit this question were error. This is in no way inconsistent with what was decided in State v. Janesville Street Railway Company, 87 Wis., 72 (57 N. W., 970). That case was on demurrer to the complaint. The action was mandamus to compel the railway company to put guard wires above its trolley wires at crossings. An ordinance of the city required it. The complaint alleged the ordinance, and that guard wires are the proper and approved Burton Telephone Co. v. Gordon. [Vol. IV, N. S. method of preventing danger from the falling of the telephone wires upon the trolley wires. These facts were admitted by the demurrer. The case in no way involved the decision of the question whether guard wires are the proper method, or whether it is negligence to omit the guard wires." Not only in the case of The State, ex rel Wisconsin Telephone Company, v. Janesville Street Railway Company, 87 Wis., 75, but in many other cases it has been held that an ordinance requiring the company to put up guard wires is a reasonable provision and that is the general holding upon that question (31 L. R. A., Note, pages 582-583, etc.) If such an ordinance of a municipal corporation would be a reasonable provision, can it be said that, when a jury under all the circumstances of the case, finds that such provision should have been made by the companies to protect the traveler, its finding is wrong? Furthermore it is for the jury to draw the inference under a given state of facts, when fair intelligent minds would differ as to whether or not it was negligence. Block v. Milwaukee Street Railway Co., supra. To the same effect is the case of Cincinnati Street Railway Company v. Snell, 54 O. S., 197. We think the court was right in not taking the case from the jury and in also overruling the motion for a new trial. It is hardly necessary for us to say that in such case both the railway company and the telephone company would be liable, and if jointly liable, they would be severally liable. McKay v. Southern Bell Telephone Co., 19 Southern Reporter, 695; City Electric St. Ry. Co. v. Conery, 33 Southwestern Reporter, 426. Judgment affirmed. Wm. G. King, for plaintiff in error. N. H. Bostwick, for defendant in error. Richland County. 1904.1 MANAGEMENT OF SOCIETIES. [Circuit Court of Richland County.] JOHN H. Coss v. MANSFIELD LODGE NO. 56, B. P. O. E. ET AL. Decided, 1902. Secret Societies and Corporations—Management of Can Not be Interfered With by a Court of Equity-Except for Fraud of Collusion -Or Action in Excess of Corporate Power-Injunction Against an Expenditure Will Not Lie, Unless. 1. The management of a society or corporation will not be interfered with by a court of equity upon complaint of a member, unless it appear that there has been fraud or collusion, or action in excess of corporate power. 2. An injunction against a proposed expenditure will not lie unless the petition alleges affirmatively that the plaintiff has exhausted all the remedies provided by the constitution and by-laws of the organization. John H. Coss brought suit against Mansfield Lodge No. 56, Benevolent Protective Order of Elks, a corporation, and George W. Herring, its treasurer, to enjoin payment by the lodge of the expenses of one George N. Clugston as a delegate to the meeting of the grand lodge. The ground of the suit was that the said Clugston was illegally elected. We quote from the petition: "That said lodge is a subordinate lodge, and as such is a constituent part of the grand lodge of the Benevolent and Protective Order of Elks of America, which grand lodge is the source of said subordinate lodge's authority, and the highest and most authoritative body of the organization, which grand body is composed principally of representative delegates elected. by subordinate lodges authorized to be elected by virtue of the laws of the said grand lodge, which elections take place in each subordinate lodge at its last regular session in March of each year; that at the election of said Mansfield lodge on March 25, 1902, said George A. Clugston was declared elected wrongfully by a majority of said lodge, and thereupon objections and exceptions were taken to such wrongful proceedings touching his eligibility on the floor of said lodge in open lodge in due parliamentary form. Coss v. Mansfield Lodge B. P. O. E. et al. [Vol. IV, N. S. "The cause was duly appealed to the district deputy grand exalted ruler having jurisdiction in the premises, for his review and opinion on the case, by which said Clugston was declared ineligible to be elected to said office of representative at the time of said election, and the same declared null and void. Said case was then appealed to the grand exalted ruler, and referred to the proper grand lodge committee of the grand lodge for review, and to report findings to that body. Said grand exalted ruler nor said committee have not as yet made their respected reports either reversing or confirming said decisions so handed down by the district deputy grand exalted ruler, and the cause is still pending undisposed of, and can not be finally disposed of until the meeting of the grand lodge in July 24, 1903. "The by-laws of said Mansfield lodge No. 56 provide for the payment of the 'actual expenses' to be paid to its representative delegate grand lodge, and said Clugston, as pretended representative delegate, has presented his bill for alleged 'actual expenses,' as alleged representative, in the sum of $130.65, and said lodge is about to allow and pay same as such to him, before said cause has been finally adjudicated, and before it is determined whether or not he is the representative, and while said. cause is still pending undecided, of all of which said lodge and defendants have had notice. "Plaintiff has done all he could do on the floor of said lodge in a parliamentary way to prevent the allowance and payment of said order and the payment of said bill. "Unless the said lodge and said treasurer, defendants, are restrained from so doing, said alleged expenses in said sum will be paid to said Clugston wrongfully and illegally, and said lodge will suffer great and irreparable injury, damage and loss thereby, he being insolvent as to having sufficient tangible property not exempt from execution unincumbered, subject to reimbursing said lodge were he declared in said final decision of said pending case to be not the representative aforesaid. "Wherefore, plaintiff prays that said defendants and each of them be restrained and enjoined from paying over said money until after the decision aforesaid, and if he be declared to be not the representative, that the order be made perpetual, and for such other relief as may be proper and just.' VOORHEES, J., and DONAHUE, J. The motion for temporary injunction is overruled. The petition does not affirmatively state that plaintiff had exhausted all remedy open to him in the order, and the averment that "plaint |