text:
    EMPLOYEE INJURED IN ELEVATOR..
    Circuit Court of Cuyahoga County.
    Fred Inmore v. The Schofield Company.
    Decided, November 27, 1911.

      Elevator Accident—Sudden Starting Due to Negligence of Fellow-Servant, or Intruder—No Liability of Owner.

    There can be no recovery by. a fireman in a business building who was injured when he stepped off an elevator in the building by its sudden starting, he having operated the elevator himself, with knowledge that other' employees were permitted to do the same thing, no defect in the construction or operation being shown and the only reasonable explanation of the accident' being that some other employee, or fellow-servant, or some intruder upon the premises, started the elevator without warning.

      Ganglum & 'Collins, for plaintiff in error.

      Ford, Snyder c& Tildan, contra.

      Marvin, J.; Winch, J., and Henry, J., concur.
   The plaintiff was in the employ of the defendant as a fireman in'a large business block in this city. His duties were in the basement of the building, and were performed at night. On the morning of the 20th of December, 1907, at 6 o’clock, when he had completed his work for the night, and was ready to leave the building, he stepped into an elevator which was standing on the basement floor, and himself operated the elevator, raising it, with him on it, to the ground floor. Having reached the level of the ground floor, he started to step out of the elevator, when it started upward, he being partly o.ut of it, and caught him between the floor of the elevator and the next floor above the building, in such wise that he was seriously injured.

The evidence introduced on the part of the plaintiff showed that this elevator was one which the various employees in the building were accustomed to run up and down, each for himself as he had occasion to use it; that because of that fact, the plaintiff used it; that he had knowledge that the other employees in the building were accustomed to use it as he did. No notice was given to him that somebody else was going to usé it at the time he undertook to step off. The elevator was in perfect condition; there were at least two other employees of the company about the building; one was the night watchman. The probability would seem to be, though there is nothing certain about it, that one of these men started the elevator as the plaintiff was stepping from it. If so, he was a fellow-servant with the plaintiff, and this would bar a recovery in the action.

As already said, the plaintiff knew that the various employees were accustomed to use this elevator as they had occasion to use it. Knowing this, he chose to use it, and did use it. and was injured, not become of any improper construction or condition of the elevator itself, but because of some reason other than improper construction or improper condition of the elevator." Wha,t that something was is a matter of conjecture, but as already said, the probabilities are that one of the other employees, who were known by the plaintiff to be about the building at the time, started it. If not, it would seem as though it must have been some intruder upon' the premises, who was there without any permission or license from the employer. In either event the plaintiff would not be entitled to recover.

At the close of the plaintiff’s evidence, the court directed a verdict for the defendant, and the judgment is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    RECOVERY FROM EXECUTOR OF TAXES PAID BY REMAINDERMAN.
    Circuit Court of Cuyahoga County.
    W. Scott Robinson, Executor, v. Francis W. Bowler.
    Decided, November 27, 1911.

      Taxes—Life Tenant's Duty to Pay—Remainderman Who Pays Not a Volunteer.

    Plaintiff was entitled to the remainder in certain real estate, subject to a life estate in another. The life tenant died October 24, leaving a will of which defendant was executor. Before December 2Q, 1909, plaintiff requested defendant to pay the' taxes- for 1909, payable at that time, which defendant refused to do, the same remaining unpaid until March 16, 1910, when plaintiff paid all the taxes for 1909 and penalty attached for non-payment of the part due December 20, 1909, and presented his claim therefor to the executor who rejected it. Suit being brought upon the claim, Held: The taxes were a debt of the estate of the life tenant, and it was the duty of her executor to pay the -same; the remainderman was not a volunteer in paying them and was entitled to recover.

      T. II. Johnson and William Howell, for plaintiff in error.

      A. A. & A. II. Bemis, contra.
    Marvin, J.; Winch, J., and Henry, J., concur.
   VI. -Louise Bowler died on the 24th day of October, 1909. She v m tenant for her life of certain real estate in this county. Francis W. Bowler was entitled to the remainder in the same real estate upon the determination of said life estate.

The taxes upon said real estate for 1909, were not paid by the life tenant, nor by the plaintiff in error, who is the executor of her will. Before the 20th day of December, 1909, Francis W. Bowler requested the executor to pay said taxes. This the executor refused to do, and the part of said taxes which, by law, were payable on or before the 20th day of December, 1909, remained unpaid until the 16th day of March, 1910, when the plaintiff paid the entire taxes on the premises for the year 1909 with the penalty which was attached for the non-payment in December, 1909.

Bowler presented a claim against the executor on account of such payment, and this was rejected. Bowler, by his action in the court below, sought to recover the amount so paid by him.

The foregoing are the facts as they appear by the petition and the answer in the case. On motion of Bowler the court gave judgment in his favor upon the pleadings, and this is presented here as error:

First, were the taxes for all of the year 1909 chargeable to the life tenant ? Section 5680, General Code,' provides that “each person shall pay tax for the lands of which he is seized for life,” etc.

Section 5671, General Code, provides that the “lien of the state for taxes levied for all purposes in each year shall attach to all real property subject to such taxes, on the day preceding the second Mohday of April annually and continue until such taxes with any penalty accruing thereon are paid.”

Section 2593, General Code, provides that “on or before the first day of October of each year, the county auditor shall deliver to the county treasurer a true copy or duplicate of the books containing the tax list required to be made by him for the year.

In reference to the estate of deceased persons. Section 10662, General Code, provides that “taxes or penalty lawfully placed on a duplicate shall be a debt of the decedent to have the same priority and be paid as other taxes, and collectible out of the property of the estate.”

Section 2658, General Code, provides that “when taxes are past due and unpaid, the county treasurer may distrain sufficient goods and chattels belonging to the person charged with such taxes,” etc.

Section 5678, General Code, provides, “If one-half the taxes charged against an entry of real estate is not paid on or before the 20th day of December in that year, or collected by distress or otherwise,” etc., clearly showing that the remedy by distress provided in General Code 2658 is not confined to personal property, but extends1 as well to real estate.

In Hoglen & Houck v John Cohan, 30 O. S., 436, it is held that “taxes levied upon real estate, and which become a lien upon such real estate in April in each year, becomes due on the first day of October in each year, that being the date on which the duplicate of taxes is required by law .to be placed in the possession of the county treasurer.”

In the opinion in this case, the court uses the following language :

‘ ‘ True the treasurer can not enforce collection until after the 20th day of December, not for the reason that the taxes are not due, but because certain days of grace are given the owner in which to make payment, before penalty will be added for his delinquency. ’ ’

These statutes and this ease, together with others having a bearing upon the question (see especially Welch v. Perkins, 8th Ohio, 53, where it is held that the administrator may sell land to pay taxes which decedent owed at his death), lead us to the conclusion, as we think, the inevitable conclusion that, when Mrs. Bowler died on the 24th day of October, 1909, she owed the taxes on this land for the entire year; that this was in the nature of a debt, payable out of an estate left by her, personal or real, and unless Francis W. Bowler, when he made the payment, on March 16th, 1910, is to be treated as a volunteer, paying the debt of another when it was none of his business, he was entitled to recover as he did in this action.

On this latter question, there would seem little question that Bowler might pay the taxes as he did, and maintain his action against the executor on account of such payment. He was not a volunteer, forcing himself in where he had no interest. His lands were subject to a lien for the payment of these taxes, the time for payment of the first half of the year had passed, and a penalty had already attached—interest was accruing; until these taxes were paid, his title to his lands was under a cloud, and the amount to be paid was increasing; the executor had refused to pay. Iiis situation was- far removed from that of one who officiously intrudes into the business of another. Authorities on this point, cited in the brief of counsel for the defendant in error, fully sustain the position, that Bowler is not to be held as a volunteer. See especially Erwin v. Argus, 93 Federal, 629-633.

There the court quotes from authorities, and on the weight of such authorities, and the justice and reason of the rule, says:

‘ ‘ Where it is shown that the payment was for the protection of his own property and he is compelled to pay what the defendant himself ought to have paid,, the payment under such circumstances will not be deemed to have been officiously made, nor will the plaintiff be looked upon as a mere volunteer or inter-meddler in matters in which he has no interest or concern. ’ ’

We reach the conclusion, therefore, that the judgment was right, and it is affirmed.


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    TITLE TO AN ISLAND IN A CANAL RESERVOIR.
    Circuit Court of Franklin County.
    State of Ohio v. Margaret Fenn et al.
    Decided, March 26, 1912.

      Title—Where Held by a Chain Direct From the V. 8. Government, is Good as Against a Claim of Constructive Appropriation by the State.

    Where title to an island situated in a canal reservoir is claimed under a patent issued by the U. S. Government and a direct chain of mesne conveyances, an action in ejectment can not be maintained by the state on the ground of constructive appropriation and possession by virtue of its being surrounded and at times partially overflowed by the waters of the reservoir, but the occupancy by the state must have been actual, open, notorious and direct.

      Timothy S. Hogan, Attorney-General, for plaintiff in error.

      Thompson <& Slaubattgh, contra.

      Aldread, J.; Dustin, J., and Ferneding, J., concur.
   The state brought an action in ejectment to recover a small tract of land known as Circle island in Buckeye lake.

The defendant'recovered in-the court of common pleas, and the state brings the case here upon petition in error.

The defendant, Margaret Fenn, claims title under a patent deed from the United States to William Hodgson dated August 10, 1850, and by regular chain of mesne conveyances.

The patent deed included 41.81 acres, a large portion of which is on the mainland and outside the reservoir or lake. The patentee and those claiming under him down to Charles Pence in 1905 claimed ownership and possession of the island as part of the patented tract. From 1865 to 1894- Rachel Shell held title and had constructed and operated a hotel and summer resort upon the mainland at a point near the island, known as Shell beach.

July 19, 1905, Charles A. Pence bought the island from the successor in title of the patentee and built a summer cottage at a cost of $1,000.

Pence, on June 16, 1906, conveyed to Margaret Fenn, who shortly after the purchase constructed a concrete wall around the island and concrete docks, and also cut a deep water channel between the island and mainland and made fills and other improvements upon the island at a cost of $12,000.

Before the Fenn improvements the mainland extended out in a point toward the island and. to within two hundred to five hundred feet at the ordinary stage of water. From this point a ridge extended to the island. The ridge was usually submerged to a depth of from two to five feet. In dry seasons, however, in midsummer the water often receded so as to leave a dry passage way to the island. Prior to 1905 the owners of the mainland had access to this island over the dry lands in the dry seasons and in other seasons by fording the shallow water and by boat. The land was used by the owners of the patented tract at occasional'times for pasture, hunting, fishing and camping.

The state’s claim of title is founded upon an alleged appropriation for canal purposes.

The Licking reservoir was constructed by the state about 1833 to 1835 and was used for canal and navigation purposes. In 1901 the reservoir was dedicated to the public by legislative act as Buckeye lake subject to canal uses.

The state’s claim of title is-based, first, upon selection and appropriation as against the United States Government under the act of Congress of 1828, and, second, by continued use after the patent, constituting an appropriation against the patentee under Section 8 of the Canal act of 1825.

Under either claim we think it became incumbent upon the state to establish an appropriation for canal purposes.

The state seeks to establish an appropriation of the island.

(1.) By constructive possession following from its being surrounded by the waters of the reservoir.

(2.) By its occupancy and use by the waters of the reservoir at flood water level as augmented by the roll of the waves.

(3.) By constructive possession arising from. the. original standard level.

(4.) By possession, more or less actual, of a portion of the island by waters up to the waste'weir level and also up to the level of the waters at ordinary stage.

It is not contended that either the third or fourth contention show an occupancy of the whole island but go rather to the question of encroachment. .

We are unable, however, to accept any of these tests- as the exact basis of the state’s title as applied to the case at bar.

It is broadly stated in many cases that occupancy of the state for canal purposes constitutes an appropriation and vests the fee simple title in the state. That doctrine in the measure stated is applied only where the appropriation by the state is admitted or clearly established The justice of this rule of evidence is manifest.

Where the fact of the appropriation is in dispute, the possession and occupancy of the state, in order to confer title, must be shown to be actual, open, notorious and direct, and not merely constructive, incidental, and indirect. In the case of Smith v. State, 59 O. S., 278, it was held that in order to acquire title by the state to canal lands by occupancy:

“It is necessary that the occupancy by the state be exclusive and that it be so open and notorious as to put the owner on notice that the property has been taken by the state for its own with the purpose of incorporating it as part of the canal system. ’ ’

The doctrine so announced has been supplemented and extended in the case of Miller v. Weisenbarger, 61. O. S., 561,. where it is held that:

“The mere incidental backing of water up a stream caused by the erection of a dam across a river used as part of the canal system, such stream flowing into said river, and remaining in a state of nature, except as slightly raised by such back water, does not constitute such an appropriation and use of the bed of the stream for canal purposes as to vest the fee of such stream in the state.”

The right of the state depends, therefore, upon the evidence of occupancy and use. The island in controversy does not appear to have ever been used in any way by the state for canal or navigation purposes or in fact for any purpose.

The owners of the mainland always claimed title, and, so far as capable of use enjoyed the possession and made valuable and lasting improvements.

During all this period, and until about the time suit was brought, the state exercised no acts of ownership nor disputed the possession and ownership of the patentee and his successors in title. The state’s claim to possession and occupancy is merely constructive and incidental and not of such character as to confer title as against the owners and occupiers under the patent deed.

We do not think that the doctrine of a constructive berme bank can be applied under the circumstances. The existence of a berme bank and the question of its appropriation and use by the state depends upon the circumstances and the situation.

The principle which denies the state’s title to lands occupied by the backwater in collateral streams and ravines where slack water navigation is provided for disposes of the claim of constructive berme banks.

There is no doubt that a berme bank, natural or artifical, may be appropriated for the reservoir wherever necessary and proper to protect the reservoir or its use for navigation purposes, but it does not necessarily follow that a berme bank is appropriated at every point where the backwater of the reservoir exists.

We think the appropriation must be as definite and as exclusive in the case of the berme bank as any other part of che canal system.

Under the authorities we feel bound to hold that the state did not take such actual, open and notorious possession of the island as to fairly apprise the owners of an intention or purpose to appropriate the island, and did not, therefore, acquire title.

The equity and justice of this holding is strengthened by the fact that valuable improvements have been made upon faith of private ownership and without notice of any claim by the state.

It has generally been doubted whether estoppel will be applied against the state in respect to her ownership of lands. The doubt has, however,'been dispelled by the late case of State, ex rel, v. The Cleveland & Terminal Valley Railway Company, in which the doctrine is broadly announced in respect to the ownership of land, that when the state “appears as a suitor in her courts to enforce her rights of property, she comes shorn of her attributes of sovereignty and as a body politic capable of contracting, suing and holding property is- subjected to those rules of justice and right which in her sovereign character she has prescribed for the government of her people. ’ ’

The state exercises possession and control of its canal lands through its board of public works and employees, and we think is fairly chargeable with such notice of the claims of private ownership and of the making of improvements thereon as to ripen estoppel.

The reference in the act of 1894 to'the islands in the lake was not intended to establish a new title. The context of the act shows that the jurisdiction was intended'to operate only over the lands and waters owned by the state. This declaration, therefore, does not affect the title of the defendant nor destroy the estoppel.

■ We have considered all the evidence’. The only controversy relates to the size of the island above the water level upon the improvement of Fenn.

The material facts upon which title rests are not in dispute. Upon the ground that the decision rests upon the law of the case, and not upon conflict of evidence, we hold that the rulings and order of the trial court in respect to the motion for a new-trial and the- vacation of the order overruling the same is not prejudicial to the state.

Judgment affirmed.


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    INFORMATION WHICH MD NOT CONSTITUTE NOTICE OF A STREET ASSESSMENT.
    Circuit Court of Summit County.
    Catherine Rentschler et al v. City of Akron.
    Decided, October 12, 1910.

      Special Assessments—No Notice of Resolutions Declaring Necessity of Improvement—Actual Notice of Worlc Thereafter, No Defense in . Action to Enjoin.

    In an action to restrain the collection of a special assessment admitted to be excessive, no notice of the passage of the resolution declaring the. necessity of the improvement contemplated having been served upon the plaintiff, it is no defense that plaintiff had knowledge of a former petition for and remonstrance against the improvement, nothing having been done thereunder, nor that she had knowledge of operations on the street after the passage of the resolution and ordinance under which the work was finally let and done.
    Winci-i, J.; Henry, J., and Marvin, J., concur.
   This action was brought to enjoin the collection of a special assessment on the ground that it is excessive and that no notice of the passage of the resolution declaring the necessity of the improvement contemplated was ever served upon the plaintiff as required by law.

Both these claims are admitted by the city, but it is urged that plaintiff should nevertheless be held liable for part of the assessment because she had actual knowledge of the progress of the improvement.

The evidence submitted to sustain this point is not sufficient.

Plaintiff’s knowledge of a former petition for and remon-' strances against the improvement of the street on which her property abuts amounts to nothing, for it is conceded that nothing was ever done thereunder. A year after that petition was abandoned, the proceedings complained of "were begun.

Nor is her knowledge of operations on the street after the passage of the resolution and ordinance, and the final letting of the contract for the work to be done thereunder, of any avail to the city.

It was then too late for her to submit any claim for damages or to approach the council with respect to the character, of the improvement which was to be made.

The Supreme Court has held that notice to the resident landowner, substantially as required by Section 2304, is a condiiton precedent to the exercise of the authority to pass a valid ordinance ordering the improvement, so fa.r as such owner is concerned, or to make an assessment on his property to pay for the same. Joyce v. Barron, 67 O. S., 264.

For the reasons stated in said case, we hold the plaintiff is entitled to all the relief she prays.

Judgment for plaintiff.


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    ACCEPTANCE OF GOODS PURCHASED.
    Circuit Court of Summit County.
    Frederick W. Anderson v. The Frantz Body Manufacturing Company.
    Decided, April Term, 1910.

      Sale of Goods—Delivery at Different Times—Acceptance of Part—Opportunity to Test.

    1. In an entire contract for the sale of a certain number of articles, all alike and of the same quality, acceptance of part is acceptance of all, though delivered at different times.
    2. Where the question of whether the defendant had had time to test articles sold and delivered to him before accepting them is contested, and he claims that the articles could only be tested in use and that he had sent them to a customer for that purpose, the matter of acceptance is peculiarly for the jury, and it is error to charge the jury that the undisputed testimony shows that the articles had been accepted.
    Winch, J.; Henry, J., and Marvin, J., concur.'
   The issues in this case as well as the errors complained of, are best stated by reading part of the charge of the trial judge, which is as follows:

“The controversy in this case grows out of a sale made to the defendant by the plaintiff of six pairs of automobile seats.
“It is conceded that the defendant purchased of the plaintiff six pairs of seats for which it agreed to pay ninety dollars.
“It is conceded that six pairs of seats were delivered to the defendant by the plaintiff and returned by the defendant shipping the same to the plaintiff.
“Under the evidence in this ease I say to you as a matter of law that the plaintiff agreed to deliver seats which were good, strong, durable and perfect as to material and workmanship, and peculiarly suited for use in limousine automobile bodies.
“Plaintiff claims the seats he delivered were of the kind and quality, and suited for the purpose for which they were sold.
“Defendant claims that the seats delivered were not good, strong, durable and suitable for use in limousines, and that they were too light, and the iron used in the back of the same was not heavy enough to withstand the strain, and that they were wholly inadequate for use in said limousines.
“I say to you'as a matter of law that under the pleadings in this case and che undisputed testimony, the defendant by receiving the two pair of seats, having ample opportunity to inspect and test the same, and having fitted them to limousine bodies, and then having sold and delivered them, thereby as a matter of law accepted two pair of seats, and under the pleadings in this case is bound to pay the contract price therefor. •
“As to the other four pairs which were later shipped and promptly returned, I say to you that whether or not the defendant is liable to pay the contract price for them depends upon whether the four pairs of seats delivered by the plaintiff to the defendant complied with the terms of the contract, and were good and strong, and durable, perfect as to workmanship and material, and peculiarly suited to use in limousine automobile bodies.
“If the plaintiff delivered such seats as these he is entitled to recover for said four pair of seats.”

We think the trial judge was wrong in holding that the undisputed testimony in the case showed that the defendant had accepted the two pair of seats. Whether they had had time to test them or not, was hotly contested, the defendant claiming that they could only be tested in irse and had to be sent to their customer in Chicago for that purpose. This question was peculiarly for the jury in this case. Williston on Sales, Section 475.

Should the jury have found that these two pair of seats were accepted, then the balance of the charge was wrong, because this was. an -entire contract, and all the articles being alike and of the same quality, acceptance of part would be acceptance of all. Benjamin on Sales, p. 163, 6th Ed.

Notwithstanding these errors in the charge, we find no error _iu the court’s refusal to give any of the plaintiff’s requests to charge before argument. The second request very nearly states the law of the case. It is deficient, however, in assuming that the four pairs of seats were identical in character and quality with the first two pair.

Por error in the charge the judgment is reversed.


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    FAILURE OF LANDLORD TO REPAIR PREMISES INJURED BY FIRE.
    Circuit Court of Summit County.
    Russell T. Dobson v. Charles T. Howe et al.
    Decided, October 12, 1910.

      Landlord and Tenant—Provision in Lease fot Repairs in Case of Fire— Landlord’s Neglect to Repair Relieves Tenant from. Rent.

    While a tenant was in possession of a storeroom under a lease which provided, “if the premises be slightly damaged by fire they shall be promptly repaired by the party of the first part,” a fire occurred and the premises were damaged by fire and also by water used in its extinguishment. The fire occurred on the fifth of the month, on the twenty-first the tenant gave notice that he would move out if the premises were not repaired, and nothing substantial being done in that respect, he moved out on the last day of the month, Held: The tenant was not liable for rent thereafter.
    Winch, J.; Henry, J., and Marvin, J., concur.
   This was an action for rent on a lease of a room in a building owned by Dobson, which defendants occupied as a grocery store. Defendants defended on the ground that the store room was so damaged by fire to be unsuitable for use as a grocery store and that the landlord neglected to repair the same within a reasonable time, whereupon they vacated the premises.

The case was tried without a jury and judgment was rendered on the evidence for the.defendants. It is claimed that this judgment is not sustained by the evidence and some argument is based upon the difference between the covenant in the lease regarding the situation developed by the fire and the provision of the General Code upon the subject.

Section 6521, General Code, reads as follows;

“The lessee of a building which; without fault or neglect on his part, is destroyed or so injured by the elements or other cause, as to be unfit for occupancy, shall not be liable for rent to the lessor or owner thereof after such destruction or injury, unless otherwise expressly provided by written agreement or covenant. The lessee must thereupon surrender possession of the premises so leased.”

The lease contains the following covenant: “if the premises be slightly damaged by fire they shall be promptly repaired by the party of the first part.”

In the view we take of the evidence it is immaterial whether the statute or the covenant controls.

The sole damage to the premises was from fire. While much discussion was had on the hearing with regard to damage from water, as distinguished from damage by fire, the water spoken of was that poured into the store room by firemen in an effort to put out the fire. The damage was all covered by. insurance against fire, for it resulted directly from the fire which necessarily required the use of water for its extinguishment.

Plaving this in mind we find there was evidence sufficient to establish the proposition that the store was “so injured by the elements as to be unfit for occupancy,” using the words of ,the statute, and that it was “slightly damaged by fire,” using the words, of the lease, so that it became the landlord’s duty to promptly repair the same. Indeed, we think the premises were very seriously damaged by fire; though the walls remained, the room was unfit for occupancy.

The record shows that the landlord neglected his duty to repair the premises. The fire occurred on November 5.; Dobson did nothing in the way of repairs except to put some boards over a skylight, where the glass was broken. This shut out the light; no heat was furnished.

On November 21, the tenants gave the landlord notice that they would abandon the premises if nothing was done to make" the premises fit for occupancy. He did nothing and they moved out November 30th, 'paying for the month of November.

We think they had a right to move out and terminate the lease and not that the law required them to remain, make their own repairs and then sue the landlord in damages for breach of his agreement to promptly repair, as claimed by plaintiff.

There being in the record 'sufficient evidence to sustain the judgment, it is affirmed,


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    EMPLOYEE INJURED IN ELEVATOR SHAFT.
    Circuit Court of Summit County.
    James L. Dilworth v. George W. Carmichael.
    Decided, October 12, 1910.

      Negligence—Fellow-Servant—Judgment on Pleadings—Assuming Facts Not Stated Therein.

    In an action for personal injuries resulting from failure to give a signal before an elevator was lowered in a shaft where plaintiff was compelled to work, it is error to assume that the failure to give the signal was due to the negligence of a fellow-servant, and to render judgment on the pleadings for the defendant, where the pleadings do not state the specific employee whose duty it was to give the signal.
    Winch, J.; Henry, J., and Marvin, J., concur.
   This was a personal injury damage case in which judgment was rendered on the pleadings in favor of the defendants.

The second amended petition alleges that plaintiff was working upon a platform erected around the exterior of an elevator shaft at a height of about twenty feet from the ground; that he was obliged in the doing of his work to allow his head or some portion of his body to extend inside the elevator shaft and in the path of the ascending or descending elevator.

The petition further alleges:

“Plaintiff further says that a whistle had been placed by said defendants on the top of said derrick for the purpose of giving warning to employees or any other persons when said elevator was about to be lowered; that prior to said 3d day of July, A. D. 1909, and prior to said accident on said day it had always been the custom of the defendants to give warning of the descent of said elevator by blowing said whistle; that this defendant and other employees while working on said derrick had always been able and accustomed to protect themselves from any and all danger from the lowering of said elevator by reason of the warning given by means of said whistle; that this plaintiff and other employees while working on and about said derrick liad continuously and habitually depended and relied upon the blowing of said whistle to warn them when said elevator was about to be lowered; and that this plaintiff had, at any and all times prior to said whistle always been able to secure a place of safety before said elevator was lowered.
“Plaintiff further says that said defendants ialways had knowledge that employees were working in and about said derrick, and that it was exceedingly dangerous to lower said elevator without the customary warning being given, by blowing of said whistle as aforesaid.
“Plaintiff further says that it was impossible to perform any of his labor on said derrick without placing himself in a dangerous position if said elevator should be released or lowered without blowing said whistle or warning having been given, but that said position was not necessarily dangerous for any other reason except as above stated; that defendants had knowledge of this fact.
“That said defendants having put said plaintiff in the position as aforesaid failed and neglected to use reasonable care to protect plaintiff while he was thus engaged from any danger to which plaintiff was exposed in the performance of his said duty, but said defendants did not protect said plaintiff from danger by blowing said whistle or giving him any warning whatever that said elevator was about to be lowered, but on the contrary the said foreman carelessly and negligently went away from said work while, plaintiff was repairing said derrick and unknown to the plaintiff left or provided no one to warn said plaintiff or to protect him in his place of danger; that plaintiff was not warned • by any means or in any manner that said elevator was about to be lowered; that the defendants negligently and wrongfully by its servants or agents, to-wit, their engineer, whose name plaintiff is ignorant of, without any notice or warning to plaintiff as aforesaid, put said elevator in motion whereby plaintiff was injured.
“Plaintiff further says that said injury occurred from no fault or neglect on his part, but solely and only from reason of defendants carelessly and negligently failing to warm him in his place of danger that said freight elevator was about to be lowered and in failing to provide anybody for that purpose and by carelessly and negligently putting said elevator in motion.”

The only theory on which the judgment can be sustained is the one- that was urged by counsel for defendant in error that this petition shows upon its face that it was the duty of the engineer to give the signal and that he being a fellow-servant of the defendant, the company is not liable for this negligence in this respect.

We do not agree with this conclusion regarding the averments of the petition.

It is nowhere in the petition stated that it was the duty of the engineer to give the signal.- True, it is stated that the engineer “without notice or warning to plaintiff put said elevator in motion, whereby plaintiff was injured,” but it may have been some other person’s duty to give the signal.

The petition states affirmatively that the foreman “provided no one to warn the plaintiff” and that the company was negligent “in failing to provide anybody for that purpose.” This negatives any inference otherwise to be deduced that the engineer was the person to blow the whistle which tos a long distance from him, on top of the elevator, while he was on the' ground.

It is likely, on the hearing, it may develop that it was the engineer’s duty to give the signal, but the trial judge should not have assumed such a fact, before it developed. There was an issue on this point, for the pleadings do not concede that it was the engineer’s duty to give the signal.

Judgment reversed for error in rendering judgment on the pleadings.


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    ARCHITECT RECOVERS DAMAGES FOR WRONGFUL DISCHARGE.
    Circuit Court of Cuyahoga County.
    Mike Polowsky et al v. Otto J. Lorenz.
    Decided, October 28, 1910.

      Contract for Services—Wrongful Discharge—Measme of Damages—Rule in Case of Architect.

    The rule that one wrongfully discharged from his employment will be entitled to recover the agreed wages or salary for the whole time, but reduced by the amount which he has or might have earned by engaging in other employment during the time of the breach, does not apply to an architect retained to draw plans of a building and superintend its construction, who is wrongfully discharged after furnishing the plans and so prevented from superintendence, for his employment does not intend that he shall devote all his time to it, and is not inconsistent with the pursuit of his profession.

      G. J. Benkoski, for plaintiffs in error.

      Geo. G. Johnson, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   This action was tried in the common pleas court, without objection, as one for damages for breach of contract of employment as an architect, though the petition seems to seek recovery on the contract itself. The question of wrongful discharge was the main question in issue upon which the jury found for the plaintiff and assessed his damages at something less than the full amount due under the contract, had the services been rendered in full.

In this court the sole complaint is that the verdict is not sustained by the evidence and is excessive. No complaint is made as to the charge, or as to the manner in which the case was tried.

We have examined the evidence as to its weight and find there was sufficient evidence to warrant the jury in its conclusion that the architect was wrongfully discharged, though the evidence was conflicting on this subject.-

As to size of the verdict, we think the result was somewhat less than the architect might have been awarded.

The building cost $16,000, the architect to have 2% °f0 thereof as his compensation; % of one per cent, for the drawings, one per cent, when the contracts were let, and one per cent, for superintendence of the construction of the building. He was discharged before the erection of the building was commenced and so had no superintendence to perform.

The usual rule in such cases is that ‘ ‘ the plaintiff will be entitled to recover the agreed wages or salary for the whole time, but reduced by the amount which he has or might have earned by engaging to any other party during the time of the breach,” but “the rule does not apply to a professional man if the services1 he was required to render did not purport to occupy all his time, but were of a character consistent with the pursuit of his profession and were' expected to be discharged concurrently therewith.” 3 Sutherland on Damages, 693.

The ease usually cited as sustaining this doctrine is that of a physician, Galveston County v. Ducie, 91 Texas, 665, but we think the exception is peculiarly applicable to the ease of an architect. Before or after he goes to 'his office he can run around and inspect half a dozen jobs in little more time than he can inspect one, depending upon their location, of course.

At any rate, there was no evidence introduced in this case tending to show that the architect was enabled to increase his income from other sources by reason of being relieved from the obligation to superintend the erection of this building.

Viewing the law as to the measure of damages, as we do, we can not say that the verdict was excessive.

Judgment affirmed.


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    PROSECUTION FOR PERJURY.
    Court of Appeals for Summit County.
    David Ruch v. State of Ohio.
    Decided, September, 1913.

      Criminal Law—Falsity of Testimony Given in Murder Case May he Proved, How—Statement by Counsel for Defendant to Jury Constitutes an Issue, When—Charge of Court as to Reasonable Doubt in Perjury Case.

    1. In a prosecution for perjury for falsely swearing in a murder case that he saw the murdered man knocked down by another at a certain place, the falsity of the statement may be proved by a witness who was either with the murdered man at the time, or with the witness accused of perjury.
    2. The statement to the jury of counsel for the accused in a murder ease outlining the defense, presents an issue of fact for the determination of the jury, and may be introduced in evidence in the trial for perjury of a witness who testified in the murder case, as tending to show that the perjured testimony was “as to a material matter in a proceeding before a court.”
    3. In a trial for perjury it is not error for the trial judge to charge the jury as follows: “It is proper for the court to remind you that the issue in this case is to the defendant of so grave a nature, and to the public safety and the proper administration of justice of such vital importance, that upon your part there should be no error. In considering the rights of the accused, if you should be convineed.in your judgment beyond a reasonable doubt of his guilt as charged in the indictment, do not forget that by each acquittal of a guilty person the safeguard erected by society for its protection is weakened. By the non-enforcement of penalties affixed to criminal acts, contempt for the law is bred among the kind of persons that it is intended to restrain.”
    Winch, J.; Meals, J., and Grant, J.-, concur.
    Error to the Court of Common Pleas.
   Plaintiff in error was convicted of perjury, sentenced to three years in the penitentiary, and sentence suspended during good behavior. He claims that his sentence should be set aside for three reasons: first, because the state failed to prove its case against him; second, because improper evidence was admitted on the trial, and, third, because the court erred in its charge to the jury.

In considering the first allegation of error, it is necessary to examine the details of the charge of perjury made against the accused and the facts which must be proved by the state in order that a conviction may be had for that crime.

David Ruch was a witness for the defendant in the case of State of Ohio v. Charles Ross, who was accused of killing one Harry Hanna by means of a blow with a heavy stick upon the head of Harry Hanna, which caused a fracture of the skull and a hemorrhage resulting in the formation of a blood clot within the skull which pressed upon the brain until it caused death.

Ross was convicted of manslaughter. In his trial he admitted striking a blow with a stick upon the head of Harry Hanna, but claimed that the blow struck was delivered when he was lawfully ejecting Hanna from his saloon at mightnight on a Saturday night, that it was delivered in self-defense, and that the blow was not sufficient to have caused the death of Hanna. During his trial he introduced evidence that Hanna that night had received other injuries upon his head which might have caused death: one a fall upon the pavement in the rear of the rathskeller in the city of Akron, after Hanna had left his saloon; and the plaintiff in error, David Ruch, was offered as', a witness in behalf of Charlie Ross, and testified that at twenty minutes after twelve o’clock on the night Hanna was injured, he saw him knocked down by a man on West Market street, some distance from Ross’ saloon, which was on Howard street, and that this man afterwards bent over Hanna as if to go through his pockets and rob him.

Ruch also testified in the Ross case that he kept H,anna in sight after he arose from this attack, and saw him stagger until he had proceeded east to Howard street and south on that street to the rathskeller, where he also saw him fall on the pavement.

The undoubted purpose of this evidence of Ruch was to suggest that Hanna came to his death as the result of the blow given him when he was felled to the ground on West Market street by a man whom he described in such a way as to fasten suspicion upon one William Metzger, who was the- companion of Hanna in the saloon when Ross put them out and was the principal witness for the state in the ease against Ross.

That Rueh gave the testimony claimed to be perjured on oath lawfully administered in a proceeding before a court, was admitted by him, but that it was false, he denied and he still insists that the falsity of his testimony was not established upon his trial by that amount of evidence which is required in perjury eases.

On this subject the court properly charged the jury, according to the rule laid down in the case of State of Ohio v. Court right, 66 O. S., 35, as follows:

“ ‘It is the law of this state that there can not be a conviction of perjury on the sole testimony of one witness.’ To warrant a conviction under an indictment for perjury there should be at least one witness to the falsity of the matter assigned as false. It is then essential that the testimony of this witness be corroborated, either by another witness, or by circumstantial evidence sufficiently strong to satisfy you beyond a reasonable doubt of the guilt of the accused.” -

It is claimed that no witness to the falsity of Ruch’s testimony was introduced, b_ut that he was convicted upon circumstantial evidence alone..

On this point it is proper to note that Ruch testified that he saw Hanna knocked down by a man on West Market street at twenty minutes after twelve. It was necessary for .the state to prove thát he did not see Hanna knocked down at that time and place. This it could prove by a witness who was either with Ruch at the time, or with Hanna at the time.

It produced such a witness in the person of William Metzger, who testified that he went into Ross’ saloon with Hanna before twelve o’clock, left the saloon with him and continued with him until half-past twelve, accounting for their actions all that time until he left Hanna at the corner of Market and Howard streets, after seeing him start south on Howard street. He testified positively that Hanna was not on West Market street all that time, which included the time set by Ruch when he saw Iianna on West Market street, and so, if Metzger was telling the truth, Ruch perjured himself.

The evidence of other witnesses was also given, corroborating Metzger’s statements as to where he and Hanna were during the half hour after midnight, and where Hanna was thereafter until his death, so that the rule was complied with and the falsity of Ruch’s testimony was abundantly proven.

The second claim of error—that improper evidence was admitted over the objection of plaintiff in error—is involved in the first proposition, for the ruling complained of was the admission in evidence against Ruch of the opening statement of counsel for Ross in the Ross case, in which said counsel stated, among other things:

“We expect to show this .fellow (Hanna) was staggering around town and been knocked down by other people, and been robbed, and had fallen down at least half a dozen times on the pavement, and on the curbing and sidewalk, striking his head.
£ £ The evidence will also show that when the. police searched him there was only $3.69 on his person—that this money had disappeared somewhere. That’s part of our evidence that he was robbed and suffered violence.”

It was claimed for this evidence in the Ruch ease that it proved the materiality of his testimony in the Ross case, and that was a thing necessary for the state to prove, for the statute, General Code, 12842, requires that the falsehood charged must be “as to a material matter in a proceeding before a court.”

No complaint is made that the state failed to show that Ruch’s false testimony was as to a material matter in the Ross case, and indeed no such complaint could be made, for it bears internal evidence that it was as to a material matter; but it is claimed that it was error to admit the statement of counsel for Ross, outlining his defense, as evidence that Ruch’s testimony was as to a material matter, for, as it is said, counsel for Ross was not counsel for the witness Ruch and could not bind the latter as to whether his testimony was upon a material matter or not.

It may be true that counsel for Ross could not make an admission in the Ross case which would bind Ruch in the perjury case, but his statement to the jury in the Ross case presented an issue for its determination in that case as certainly as an answer of a defendant in a civil case would do to make up an issue therein, for there are no pleadings in a criminal case and "the issues are made up by the indictment and plea, and under the plea the evidence, of the defendant.

To prove that Ross did not kill Hanna, counsel said he would show that somebody else did, and to show -this he offered Rueh’s testimony. An examination of it shows that it was offered for no other purpose.

Confessedly it was material to Ross’ defense, and no prejudicial error resulted from permitting the statement of counsel for Ross in the murder case, to go to the jury in the perjury case.

The' third allegation of error is in regard to that portion of the charge to the jury wherein the trial judge said:

“It' is proper for the court to remind you that-the issue in this ease is to the defendant of so grave a nature, and to the public safety and the proper administration of justice of such vital importance, that upon your part there should be no error.
“In considering the rights of the accused, if you should be convinced in your judgment beyond a reasonable doubt of his guilt as charged in the indictment, do not forget that by each aequital of a guilty person the safeguard erected by society for its protection is weakened. By the non-enforcement of penalties affixed to criminal acts, contempt for the law is bred among the kind of persons that it is intended to restrain.”

It is claimed by this statement the court emphasized ’ too strongly the duty of the jury in its consideration of the case in rendering a verdict on behalf of the state.

Such can not be the case. It was proper for the court to remind the jury that the case was of importance to the state as well as to the accused. He is to be commended for saying what he did about the crime of perjury, as is the prosecuting attorney for bringing the case and prosecuting it to a conviction.

The testimony' of Ruch in 'the Ross case is set out in full in the record of his own case. It shows falsehood upon its face. It was a deliberate effort on the part of Ruch to thwart justice, and deserves the severest censure a judge can give it, for what use are judges and juries if perjury is committed with impunity.

This crime is altogether too prevalent in both civil and criminal cases. It goes unrebuked too often, because it is so common that officials as well as the public generally become accustomed. to it.

Perjury lays its ax at the roots of justice. It saps its life until it withers and decays. The whole growth of justice is from truth; without it, it can not live.

“Vice is a monster of so frightful mien As, to be hated needs but to be seen; Yet seen too oft, familiar with her face We first endure, then pity, then embrace.”

We have endured perjury too long; the difficulty of convicting of perjury, because of the burden put upon the prosecutor by the law, as somewhat indicated in the propositions discussed in this case, and the paucity of convictions when indictments have been reluctantly returned in clear cases, shows that we pity the perjurer, and it is high time in these stirring years of reform that miscarriage of justice in grave cases which offend all the people should be minimized by more drastic efforts to clear the temple of justice of all offenders. An enlightened public opinion upon this subject is first needed, and then, perhaps, our judges and prosecutors will better appreciate their duty in this respect. A good example has been set the people of Summit county by prosecutor, judge and jury in this case.

It may be that judges would awaken to their duty sooner if the Legislature of this state were to authorize them, as they are authorized in New York state, when it appears probable that a witness has committed perjury, to immediately commit him to jail, or take a recognizance for his appearance to answer an indictment for perjury.

David Ruch had a fair trial on his indictment for perjury. He was leniently dealt with in his sentence, for it was suspended on condition that he would quit drinking, keep out of saloons, and behave himself as a good citizen. He has nothing to complain of.

The judgment is affirmed.


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    WORKMAN KILLED BY FALLING FROM SCAFFOLD.
    Circuit Court of Cuyahoga County.
    Theodore Dluzinski, Administrator, v. The Griese-Walker Company.
    Decided, November 9, 1910.

      Wrongful Death—Negligence—What Must Be Shown.

    In an action for -wrongful death of a workman, killed by the falling of a scaffold upon which he was working, due to alleged defective construction thereof, in the absence of a statute otherwise providing, in- order that plaintiff may recover it must be shown that the construction of the scaffold was defective, that the defendant had knowledge of the defect, or ought to have had, and that the deceased did not know of the defect and had not equal means of knowing with the defendant.

      D. N. Stone, for plaintiff in error.

      M. P. Mooney, contra.
    AVinch, J.; Henry, J., and Marvin, J., concur.
   ' This was an action for wrongful death, verdict for defendant being directed at the close of plaintiff’s evidence.

The petition alleges that plaintiff’s decedent was a hod carrier in the employment of the defendant company, and that while stepping upon a scaffolding constructed or caused to be constructed by the company for his use, it gave way by reason of the weak, negligent and careless manner in which it had been constructed, precipitating him to the ground, whereby he was mortally injured.

The petition further alleges that the • defendant knew, or ought to have known of the dangerous condition of the scaffolding and that the defect therein was not so obvious and apparent that the deceased should have been able to guard himself, nor was he informed that the scaffolding was not properly constructed, and that it gave way withont any fault on the part of the deceased, but solely through the negligence of the defendant.

The answer admits that the deceased was employed by' it as a hod carrier and fell from a scaffolding caused to be constructed by it for the purpose alleged in the petition, and was so injured by his fall that he shortly thereafter died. It denies all other allegations of the plaintiff.

Upon the three propositions that the plaintiff was called upon to establish under the rule laid down in the ease of Coal & Car Co. v. Norman, 49 Ohio St., 598, 607, the evidence was very meager.

1. Was the scaffolding defective?

There was evidence introduced tending to show that the floor of the scaffolding upon which the deceased stepped from a ladder upon which he 'ascended to it wms composed of planks, ten or twelve inches in width; that he stepped from the ladder upon one.of these planks against which the ladder rested and that this plank had a square end which rested upon the pointed end of another plank; as he stepped upon the second plank with the pointed end the latter slipped over to one side, tipped, and the hod carrier was thereby precipitated to the ground.. The plank with the pointed end was described as one prepared for driving into the earth.

Probably the end was Y shaped, as in sheathing used in sewer excavations.

We think this evidence was sufficient to warrant a submission to the jury of the question whether or not the scaffolding was defective.

2. Did the defendant have notice or knowledge of this defect or ought it to have had?

It will be remembered that while the answer admits that it caused the scaffolding to be constructed, it denies that it knew or ought- to have known of this defect.

It w’as shown that the defendant furnished the material used. It -was not shown that any one in authority over the deceased put the planks in position on the floor of the scaffold. If the deceased or any one of his fellow-servants superimposed the square end of one plank upon the pointed end of another plank, the company -would not be liable for the faulty construction. If the defendant caused the planks to be laid under the direction of some one in authority over the deceased, it would be liable for the defect, for then it would know, or ought to know of the faulty construction. There was no evidence that the matter had ever been called to the attention of the defendant or any one of its officers or agents or any one in authority over the deceased.

We have considerable doubt as to whether there was sufficient evidence to go to the jury on the proposition that the defendant knew, or ought to have known of this defective construction.

3. It was incumbent upon the plaintiff to show that the deceased did not know of the defect and had not equal means of knowing with the defendant. ,

Upon this proposition the plaintiff wholly failed to make a case.

On the contrary, he showed that the faulty construction was patent and open to casual observation.

Iiis chief witness testified that he came into the building just before the accident, looking for work. He stood at the bottom of the ladder and watched the deceased come down it with an empty hod, fill it with brick and go up the ladder again. He looked up as the deceased stepped from the ladder upon the plank upon which the ladder rested; noticed that that plank had a square end and rested upon the pointed end of another plank. The witness seeing this situation, stepped aside so that he would not be in danger if the very thing should happen which did happen. As he foresaw, the plank tipped and fell and the accident occurred.

The evidence shows that for two days and three hours before the happening of the accident, the deceased and three other hod carriers stepped upon these two planks, perhaps twenty times an hour, and used them in the identical manner in which the deceased was using them when the accident occurred. The second plank was but one step from the ladder. Every time the deceased went up the ladder he must have seen just what the witness saw from the foot of the ladder. We think that the evidence is clear and shows, that the deceased himself knew, or ought to have known of the defect; at least he had equal means of knowing with the defendant.

So long as the rule laid down in the Norman case is to be applied, there can be no recovery under such circumstances as were shown in evidence by the plaintiff in the case, and plaintiff in error does not claim the benefit' of any statute in this behalf.

Verdict was properly directed for the defendant and the judgment is affirmed.


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    CONSIDERATION FOR ASSIGNMENT OF A LEASE.
    Circuit Court of Cuyahoga County.
    Emil Leuchtag v. Philip Schaefer et al.
    Decided, November 9, 1910.

      Landlord and Tenant—Assignment of Lease—Implied Warranty of Landlord’s Title.

    An implied warranty as to the lessor’s title or right to demise, goes with an assignment of a lease.

      Benesch & Kornhcmser, for plaintiff in error.

      Lang, Cassidy (& Copeland, contra.
    Winch, J.; Henry, J., and Marvin, J., concur.
   • The question for review in this case is whether a demurrer to the petition filed in the case below was properly overruled.

The petition asks that Leuchtag, who was defendant in the case, be restrained from transferring certain notes delivered to him by the Schaefers as part consideration for the assignment of a lease and that the notes be canceled on the ground that the consideration thereof had failed.

The allegations in this respect are that on April 16, 1907, one Patrick Fitzgerald executed the lease in question to one John Kofron for a term of four years. Thereafter Kofron assigned the lease to the defendant Leuchtag, and he in turn on Ajpril 1, 1909, duly assigned all his interest in the lease to the Schaefers.

Fitzgerald’s interest in the property terminated October 1, 1909, whereupon the real owners of the property demanded possession of the premises.

The demurrer to the petition raises the question whether any implied warranty as to the lessor’s title or right to demise goes with an assignment of a lease, counsel for plaintiff in error claiming that the only things which Leuchtag, in this ease, warranted, were that Ms title to.the lease which Fitzgerald had made was good and that the paper was genuine and not a forgery. He says that the Schaefers should sue Fitzgerald and not him.

The question does not seem to have been settled in Ohio, but we have a dictum, in the case of Wetzell v. Richcreek, 53 Ohio St., 62, 69, which so clearly sets forth the view of the Supreme Court upon this subject, that we feel constrained to follow it, until that court passes squarely upon the matter.

That dictum is as follows:

“It is held by some authorities, that no covenants are implied in the assignment of a lease. Waldo v. Hall, 14 Mass., 486; Blair v. Rankin, 11 Mo., 442. Other authorities, however, maintain the contrary doctrine. Thus, in Souter v. Drake, 5 B. and Ad., 992-1002, it is said by Lord Denman that ‘unless there be a stipulation to the contrary, there is, in every contract for the sale of a lease, an implied undertaking to make out the lessor’s title to demise, as well as that of the vendor to the lease itself, which implied undertaking is available at law, as well'as in equity.” This would seem to be the better rule, because, it can hardly be supposed to be the intention of one. party to purchase, or of the other to sell the mere instrument of lease without any beneficial interest under it, but rather that the subject of the purchase and sale is the right to enjoy the term purported to be demised, and all the benefits which it stipulates to confer on the lessee.”

The common pleas court evidently adopted the view thus expressed and overruled the demurrer. We are disposed to do the same without further consideration of the conflicting cases from other jurisdictions, the cases relied upon by counsel for plaintiff in error being mentioned in said dictum, as not expressing the better rule.

Judgment affirmed.


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    APPEAL AS TO CUSTODY OF CHILD.
    Circuit Court of Cuyahoga County.
    Homer Schultz v. Louise Schultz.
    Decided, November 14, 1910.

      Parent and Child—Custody of Little Girl as Between Father and Mother.

    Other things being equal, the, custody o£ a little girl of tender years should be awarded to her mother, but where the mother shows little affection for the child, she will be given to the father.

      E. C. 8chivan, for plaintiff in error.

      Alexander (G Daivley, contra.'
    Winch, J.; Marvin, J., and Henry, J., concur..
   This is an appeal under fávor of Section 8035, C-eneral Code, from the judgment of the common pleas court in a divorce case awarding the custody of a female infant six years old to the father, to whom a divorce was granted from the mother on the ground of her gross neglect of duty.

Other things being equal, it seems that a little girl of tender years should be in the custody of her mother rather than of her father, if she is so unfortunate as to be unable to live with both.

From the evidence in this case we find that the mother is now living with her mother, the child’s grandmother, who loves the little girl dearly, and greatly wants it with her. This grandmother’s home would be a comfortable place for the child.

The mother is working every day at the tack works, earning about $1.25 per day. We believe her conduct since the divorce last June has been without reproach.

From the husband’s testimony it appears that much of the marital trouble was over this child.

When the .child was sixteen months old the mother let the grandmother have her and the little girl lived with her grandmother until her parents were divorced.

The mother says the father consented to this arrangement but he denies it. When asked by the court why she consented to such an arrangement the mother made no satisfactory reply.

We do not think the mother’s conduct towards the child in this respect, during the years she was free to have it with her shows the full maternal love, nor does it promise a full performance of a mother’s duty toward the child.

- She says the grandmother took such pleasure in the child that she could not deny her the little girl.

Selfish love of the grandmother has here, perhaps, caused a daughter to lose her husband and might cause a grandchild to lose her parents, for by placing the child with this grandmother she would be taken from her father, with little assurance that the mother would share in the grandmother’s care of her, or give her any more attention than she did before.

We find the father to be a suitable custodian for the child. He is living with his parents, who are comfortably situated and glad to have the little girl with them.

We are not disposed to make any change in the custody of the child, but it is apparent- that the provision in the order now governing the mother’s access to the child is inadequate.

• It is therefore ordered that the father cause the child to be taken to the mother’s home every Saturday, not later than three o’clock in the afternoon, and leave her there until Sunday following, when he may call or send for her, taking her away not earlier than twelve o’clock noon. The decree may also provide that the father pay the mother fifty cents a week for the support of the child while it is visiting at the mother’s house, and the costs in this court are assessed against the plaintiff.


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    INJURIES WHICH COULD NOT BE REASONABLY ANTICIPATED.
    Court of Appeals for Hamilton County.
    David Dunham v. The Baltimore & Ohio Southwestern Railroad Company, etc.
    Decided, January 17, 1914.

      Negligence—Not Chargeable to a Railway Company—For Injuries Resulting From the Explosion of a Torpedo, When.

    An injury to one about to cross a. railway track as a licensee at a place other than a public highway by the explosion by a passing train of a torpedo which had been placed upon one of the rails for the purpose of signalling the train crew, is not in contemplation of law such an injury as could have been foreseen or ■ reasonably anticipated, and does not afford a basis for an action against the railroad company.

      Horstman c& Horstman, for plaintiff in error.

      Harmon, Colston, Goldsmith & Hoadly, contra.
    Jones, E. H., J.; Swing, J., and Jones, O. B , J., concur.
   Plaintiff in error was injured by the explosion of a signal torpedo, caused by a locomotive of the defendant company passing over said torpedo which it must be presumed had been placed upon tlie track in the ordinary way as a warning or signal to the train crew.

The evidence shows that Dunham at the time of his injury was in the act of crossing the right-of-way and tracks of the defendant company at the intersection of the tracks with Charles street in what was formerly the village of Madisonville. The right-of-way at this point is one hundred feet in width and is from fifteen to twenty feet higher than the surface of the surrounding ground. Charles street does not cross the right-of-way, but extends to it on either side. At the time of the injuries complained of Mr. Dunham was about to cross the tracks of the defendant company from north to south, and was standing upon the somewhat steep embankment leading from North Charles street up to the level of the railroad tracks, waiting for the passing of the train whose locomotive caused the torpedo to explode.

The allegations of negligence contained-in the petition are:

“That the plaintiff was upon said footpath for the purpose of crossing over said embankment, when a torpedo, which had been placed by defendant’s employees and agents upon the rails of said track, exploded by a train of cars passing over the torpedo, and that parts of said torpedo struck the left forearm of plaintiff and injured the same so as to permanently disable him from the use of said arm. Plaintiff says that defendant was negligent in placing said torpedo unnecessarily upon said rail at or near the place where the public, including the plaintiff, were accustomed to cross over said right-of-way along said Charles street.”

The trial court,' upon motion of the defendant, instructed a verdict in its favor, and it is to reverse the judgment rendered thereon that this proceeding in error is prosecuted.

There is no evidence to show that it is usual for torpedoes or particles thereof to fly through the air upon being exploded in the manner in which this was exploded, and no evidence but that the torpedo was placed where it was for a lawful purpose and in the ordinary course of the conduct and management of the road. Mr. Dunham at the time, in his relation to the defendant company, was a licensee, probably using the right-of-way with permission of the company for the purpose of crossing from North Charles street to South Charles street. There is evidence showing that the right-of-way for a long time had been so used although the surrounding territory was not thickly inhabited, Charles street on the north side being an unimproved street and existing only as a paper street upon the recorded plats.

We think under these facts that it would be requiring extraordinary care on the part of the defendant company to hold it liable for the injury sustained by Mr. Dunham, and that the court below was correct in the action taken in directing a verdict for the defendant. We are satisfied from the evidence, - and from our own knowledge gained from personal experience and observation, that the accident was an unusual one, and one which could not have been foreseen by the defendant company or its employees in the exercise of ordinary care. The negligence shown by the evidence is not actionable and could in no event furnish the basis for a judgment. As stated above, there was no evidence offered by plaintiff to show that there was any danger that could have been foreseen from the explosion of the torpedo, or to show that it was usual following the explosion of a torpedo, used in the operation of a railroad, for particles of it to fly at such a distance and inflict bodily harm. The eases cited in the printed brief of defendant in error on page 20 are decisive of this case and furnish ample authority for the action of the court below. See Miller v. B. & O. S. W. R. R. Co., 78 O. S., 309, the second paragraph of the syllabus:

“In contemplation of law an injury that could not have been foreseen or reasonably anticipated as a probable result of an act of negligence is not actionable.”

On page 325 of the opinion in the above case the court say:

“The rule is elementary that a defendant in an action for negligence can be held to respond in damages only for the immediate and proximate result of the negligent act complained of, and in .determining what is direct or proximate the rule requires that the injury sustained shall be the natural probable consequence of the negligence alleged; that is, such consequence as under the surrounding circumstances of the particular case might and should have been foreseen or anticipated by the wrong-doer as likely to follow his negligent act.”

See also R. R. Co. v. Kinz, 68 O. S., 210, the facts in which case are not like those in the case under consideration by us, hut the principle which controls is the same. In the case just cited the Supreme Court in reversing the judgment of both lower courts held that the petition failed to state a cause of action, and that the court erred in refusing to direct a verdict for the defendant below.

We think that the petition of Mr. Dunham fails to state a cause of action and that his evidence fails to show actionable negligence.

The judgment will therefore be affirmed.


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    JURISDICTION OF COUNCIL TO TRY OFFICERS CHARGED WITH MISCONDUCT.
    Circuit Court of Cuyahoga County.
    J. A. Mastick v. The Village of Lakewood et al.
    Decided, November 28, 1910.

      Municipal Council—Power to Try Officers Charged With Certain Offenses —Can Not Try Marshal on Charge of Malfeasance in Office.

    1. General Code, Section 4263, reserves to the council of a municipal corporation the right to try and remove both elected and appointed officers of the municipality (other than police and fire department officers and those under civil service rules), charged with bribery, nonfeasance in office, misconduct in office other than that specified in General Code, Section 4670, gross neglect of duty, gross immorality or habitual drunkenness.
    2. A village council can not try the village marshal on charges of malfeasance in office filed by the mayor of the village.

      Hobday & Quigley, for plaintiff in error.

      E. B. Gufhery, contra.
    Winch, J.; Henry, J., ancf Marvin, J., concur.
    This case was heard on appeal.
   The action was brought by a tax-payer to enjoin the council of the village from trying the marshal thereof on charges filed against him by the mayor.

It is claimed that if the council formerly had power to try the marshal under Section 225 of the Municipal Code of 1902, as amended April 25, 1904 (97 O. L., 385), that power was taken away February 10, 1910, by the adoption .of the General Code, which made a material change in the meaning of said section.

Said Section 225 of the Municipal Code we now find as Sections 4263 to 4267 inclusive, of the General Code.

Section 4263, General Code, reads as follows:

“The mayor shall have general supervision over each department and officer provided for in this title. When the mayor has reason to believe that the head of a department or such officer has been guilty in the performance of his official duty of bribery, misfeasance, malfeasance, nonfeasance, misconduct in office, gross neglect of duty, gross immorality or habitual drunkenness, he shall immediately file with the council, except token the removal of such head of department or officer is otherwise provided for, written charges against such person setting forth in detail a statement of such alleged guilt,” etc.

The balance of the section provides for service of a copy o: the charges upon the person against whom the charges are made.

The following sections relate to hearing of the charges and action thereon by the council, suspension of accused pending, hearing, power of council as to process, compulsory testimony and costs.

From an examination of the whole body of the municipal code we are convinced that these provisions of law apply to both elected and appointed officers of cities and villages.

The marshal of a village is an elected officer.

The words “except when the removal of such head of department or officer is otherwise provided for” were inserted by the code commission and adopted by the Legislature when it enacted the General Code last February.

It is claimed by defendants that these words were inserted so as to exempt officers of the police and fire departments and the chiefs thereof from trial before the council. Their removal is otherwise provided for in General Code, Sections 4379 to 4382 inclusive, which are a re-enactment of provisions on the subject theretofore in force.

But the provisions of law which now appear as Sections 4670 to 4675, General Code, inclusive, were also in existence at the same time.

Section 4670, General Code, reads as follows:

“When complaint under oath is filed with the probate judge of the'county in which the municipality, or the larger part thereof is situated, by any elector of the corporation, signed and approved by four other electors thereof, charging any one or more of the following:
“That a member of the council has received, directly or indirectly, compensation for his services as councilman, commiteeman, or otherwise, contrary to law; or that a member of the council or an officer of the corporation is or has been interested directly or indirectly in the profits of a contract, job, work, or service, or is or has been acting as, a commissioner, architect, superintendent or- engineer in work undertaken or prosecuted by the corporation, contrary to law; or that a member of council or an officer of the corporation has been guilty of misfeasance or malfeasance in office, such probate judge shall forthwith issue a citation to the party charged in such complaint for his appearance before him within ten days from the filing thereof, and also furnish the accused and city solicitor with a copy thereof, but, before acting upon such complaint, such judge shall require the party complaining to furnish sufficient surety for costs.”

The following sections provide as to appearance of counsel, jury, challenge of jurors, proceedings on the trial, removal of officer if found guilty and how costs shall be paid.

There can be no doubt that “an officer of the corporation” provision for whose removal by the probate judge is thus made, may be either an elected or appointed officer of a city or village.

An examination of the several provisions of law with regard to the removal of municipal offieers which were in force before the code commission and the Legislature acted when the General Code was adopted, shows that council had power to remove both elected and appointed officers on charges filed by the mayor; the probate judge had power to remove both elected and appointed offieers on complaint of five electors and the civil service commission had power to remove certain appointed officers.

The jurisdiction of council and probate- judge was apparently concurrent as to certain matters; that the jurisdiction of the civil service commission as to the removal of police and fire department officers was also concurrent with either that of council or judge is not so apparent.

The code commission by apt, general and unambiguous words restricted the power of removal vested in council to eases not otherwise provided for.

It is said by Okey, J., in the case of Allen v. Russell, 39 Ohio St., 336:

“Where one or more sections of a statute are repealed and reenacted in a different form, the fair inference is, in general, that a change in meaning was intended; though even in such a ease the intention may have been to correct a mistake or remove an obscurity in the original act, without changing its meaning. But where all the general statutes of a state, or all on a particular subject, are revised and consolidated, there is a strong presumption that the same construction which the statutes received, or, if their interpretation had been called for, would certainly have received, before revision and consolidation, should be applied to the enactment in its revised and consolidated form, although the language may have been changed. Gardner v. Woodyear, 1 Ohio, 170, 176; Siuasey v. Blackman, 8 Ohio, 5, 20; Ash v. Ash, 9 Ohio St., 383, 387; Tyler v. Winslow, 15 Ohio St., 364, 368; Williams v. State, 35 Ohio St., 175; Jackson v. State, 36 Ohio St., 281, 286; State v. Com., 36 Ohio St., 326; State v. Vanderbilt, 37 Ohio St., 590, 640; Bishop’s Written Laws (98). Of course, if it is clear from the words that a change in substance was intended, the statute must be enforced in accordance with its changed form.”

It is thought to be clear from the words used that a change in substance was intended in the statutes under consideration.

But it is said that to so conclude leads to an absurdity; that the Legislature might just as well have said to the mayors of municipalities: “We place upon you the plain duty and responsibility of filing charges before your council against officers of the municipality, and upon the council of trying these charges, but, really, you are not compelled to do anything because we have provided another method of removal of them by the probate judge and placed the responsibility of action on an elector of your municipality.”

An examination of the several statutes referred to does not warrant more criticism than many statutes warrant. Section 4263, General Code, provides for removal from office by council, if they find the officer guilty in the performance of his official duty, of bribery, misfeasance, malfeasance, nonfeasance, misconduct in office, gross neglect of duty, gross immorality, or habitual drunkenness. Here are specified many grounds for removal; then follows the exception in. ease the removal is otherwise provided for. Looking to Section 4670, General Code, we find that the probate judge may remove an officer only when he is charged with being interested in the profits of a contract with the corporation, or with acting as commissioner, architect, superintendent or engineer in work undertaken or prosecuted by it, contrary to law, or with being guilty of misfeasance or malfeasap.ee in office.

Only part of these grounds overlap in the two sections. Misfeasance and malfeasance appear in both; misconduct in office is a very general term, and probably includes some things specified in the probate judge section, but may include much more, so we conclude that under the statute, as it now reads, there is preserved to council the right to try and remove officers (other than police and fire department officers and those under civil service rules) charged with bribery, nonfeasance in office, misconduct in office other than that specified in Section 4670, General Code, gross neglect of duty, gross immorality or habitual drunkenness.

So concluding, it is necessary to examine the charges filed with council in this ease in order to determine whether the marshal is charged with having been guilty of acts that are triable by council under .the law as it now is, or as it was before February 10, 1910, the date of the adoption of the General Code.

The mayor says:

‘ ‘ I charge that the said William Frankline knowingly charged, asked, demanded and received greater fees and costs than are allowed by law for performing his official duty as marshal in cases brought in the mayor’s court from August 2, 1908, to June 13,1910, in the total sum of eight hundred and four dollars and twenty-five cents.”

An itemized statement of “said cases” is attached which gives the date when some 287 cases were “brought.” «

The gravamen of the offense is receiving unlawful fees, but there is nothing to show when the marshal received greater fees and costs than those allowed by the law, and as the mayor says, “I am filing these charges with you pursuant to Sections 4262 and 4263 of the General Code of the state of Ohio,” we are forced to conclude that the marshal received all these fees and costs after February 10, 1910.

The charge is plainly malfeasance in office and the offense appearing to have been committed since February 10, 1910, the council is without authority to proceed with trial on these charges.

Were the charges susceptible of division so that it appeared clearly that part of the acts complained of were committed before February 10, we would not enjoin trial as to said acts, but only as to acts committed since said date, as directed- in Sections 26 and 13766, General Code. See also Campbell v. State, 35 Ohio St., 70, 78.

There is little reluctance in granting the relief prayed for in this case. The only question is whether a municipal council or a court of law having a judge and a jury shall try an officer charged with a most serious offense, punishable not only bjr the probate judge under the statutes referred to, by removal from office, but punishable also after conviction in court, by fine and imprisonment, involving also forfeiture of his office and incapacity to hold any office of honor, profit or trust for seven years thereafter. Sections 12916, 12917, General Code.

The mayor is necessarily an elector of the village and no reason appears why he should not proceed with his charges before the probate judge or by criminal process, nor why council is so jealous of its claimed prerogative, contrary to the practice of courts of law which are averse to extending their jurisdiction beyond the requirements of the law.

We have made no examination of the charge that council is prejudiced and should not try the marshal, because it -is unnecessary to examine it.

The prayer of the petition is granted and injunction is allowed as prayed for.


text:
    REMOTE CONNECTION OF WITNESS WITH CASE.
    Circuit Court of Cuyahoga County.
    Frederick W. Mathews et al v. George B. Mackey et al.
    Decided, November 28, 1910.

      Evidence—Competency of Witness.

    One who is not a necessary party to a case can not be excluded as a witness on the ground that the party objecting claims under a deceased former owner.

      Carpenter, Young ,(& Stoeher, for plaintiff.

      Thompson & Eine and Eorr <& Lowenthal, contra.
    Winch, J.; PIenry, J., and Marvin, J., concur.
   The petition in this case is dismissed and an injunction refused for the reasons stated by Judge Babcock when deciding the case made before him.

The only additional matter for consideration in this court is the competency of certain testimony given by Frank Cadwell, who appears as a defendant in the case.

The evidence shows that he is not a necessary party to the action. His wife, upon the happening of a certain contingency, might become the owner of the premises in dispute and he then become clothed with an inchoate right of dower therein, but such remote connection with the matter is insufficient to require his appearance as a party in the case.

It is true that plaintiffs claim under a deceased former owner, but they can not exclude witnesses at will by the convenient procedure of making them parties.


text:
    INJURY TO A BOY EMPLOYED TO RUN AN ELEVATOR.
    Circuit Court of Cuyahoga County.
    Charles Schaber, Executor of the Estate of John Schaber, Deceased, v. Edwin David Hinig, an Infant, by His Next Friend.
    Decided, November 28, 1910.

      Negligence—Master and Servant—Hiring Minor Not Proximate Cause of Injury to Him—Defect in Petition Caused by Receiving Evidence Without Objection—Minor Under Fourteen Presumed Not to Foresee Danger.

    1. The fact that the owner of a building was negligent in employing a minor, who was too young to run an elevator, may render him amenable to fine under the statutes, but can not be the proximate cause of an injury to the boy himself.
    2. Although a petition in a personal injury damage case is faulty in not alleging that the defendant had knowledge of the defects in certain machinery which are alleged to have caused the injury, if, without objection, evidence is introduced on this subject and the case tried as though the petition contained the proper allegations, the defect in the petition is cured.
    3. The presumption is that a minor under fourteen years of age has not capacity to foresee and avoid danger.

      Howland, Moffett & Nima-n, for plaintiff in error.

      Robert Crosser and John H. Hogg, contra.
    Winch, J.; ITenry, J., and Marvin, J., concur.
   Edwin David ITinig, a minor eleven years old, was employed by John Schaber, then in his lifetime, but deceased at the time of the trial, to run an elevator in the Champ Apartment House after school hours and until half past seven o’clock in the evening. Part of his duty was to remove waste paper from the several floors in the building.

November 12, 1907, four days after he was employed, he ran the elevator to the third floor, got out there, left the door open, gathered up some waste paper and then stepped through the door, evidently expecting to step into the elevator, but it had passed up to the fourth floor and Edwin fell down the shaft to the bottom and was seriously injured.

The petition alleges that the elevator was out of repair in that the packing in the cylinder was insufficient, allowing it to leak, thereby permitting the elevator car to move up of itself; that the freight compartment of the elevator which Edwin was instructed to use when gathering waste paper was below the passenger compartment and was unlighted and dark; that his employer failed to warn him of the danger incident to the operation of the elevator and failed to inform him of its defective condition, and that John Schaber was negligent in employing Edwin, who was too young to operate said elevator.

Of course the last proposition, while doubtless true, rendering Schaber amenable to a fine under the statutes of this state, was not the proximate cause of the injury to Edwin.

The petition further alleges that Edwin did not know, nor by the exercise of reasonable care could he have known that the elevator was defective and had moved up from the third floor, nor did he know nor could he have known of the dangers incident to the operation of the elevator, nor of the danger due to the lack of proper lights.

There are no allegations in the petition that J ohn Schaber knew or ought to have known of the defective condition of the elevator, or the lack of lights, but -without objection, evidence.was introduced on these subjects and the case tried as though the petition contained such allegations.

We think this cured the defect in the petition.

The young boy, Edwin, did not testify at the trial, because his employer had died after the accident.

There was no evidence introduced as to his capacity, except the-single fact that he was eleven years old, almost twelve, .at the time of the accident.

It was not shown whether he was a bright boy or a dull boy for his years.' We know, however, that he was going to school and was in good health.

No eye-witness of the accident testified in the case. A young ■girl testified that she saw Edwin gathering waste paper on the third floor, passed him and saw the elevator door open and the elevator car slowly going up, several feet above the level of the floor; passed the elevator, heard a scream, looked back and saw Edwin disappearing down the shaft.

Plaintiff’s other witnesses as to the accident and the alleged negligence of the employer, and the girl witness as well, had all given statements' to one of defendant’s attorneys, shortly after the accident, which they contradicted on the trial. One of them, the janitor of the block, who had hired Edwin, admitted that he had lied about the accident to his employer, claiming that he did so in order that he might not lose his job. ’ These three witnesses were all former employees of Schaber. One admitted that he had been discharged, charged with dishonesty. The evidence they did give on the hearing was contradictory.

The defendant offered no evidence, was unable to do so in fact, for the only persons who knew anything of the accident and the conditions surrounding it, testified for the plaintiff. ■

There was a substantial verdict for the plaintiff, but not more than he was entitled to, if he was entitled to anything.

With much misgiving, after a very careful examination of the record, assuming that the jury believed the witnesses who so testified, we find that there was evidence introduced at the hearing tending to establish the following facts:

That the elevator was out of repair, as alleged in the petition, and that the employer knew it; that it was not properly lighted, and this the employer knew; that the employer instructed Edwin how to operate the elevator but failed to warn him of the danger incident to its operation; that Edwin was informed that the elevator would creep up, and saw it do so, but was not informed that it would do so because of any defective condition, nor was he warned of any danger likely to result to him by reason thereof, nor was he warned of any danger to himself likely to result from the absence of a light in the freight compartment of the car. The point is made by counsel for plaintiff in error that the record shows no evidence tending to prove the allegation of the petition that Edwin ran the elevator to the third floor and stopped the freight compartment level therewith; that the ear may have passed up because Edwin did not fully stop it and not because it was defective.

An answer to this proposition is found in the testimony'of the regular day elevator boy who testified that the elevator would creep up "pretty near every time I would get off the elevator to put the baskets back,” and again: "pretty near every time I would get off the elevator. If I got off the elevator for a minute, it would go up about two feet.” "At the third floor it used to creep up more than it would at any other floor. ’ ’

The jury, if it believed this1 testimony, might well have concluded that the elevator could not be brought to a-complete stop at the third floor. If so, the most necessary inference to be drawn from the circumstances shown in evidence was that the elevator passed upward because of the defect in the cylinder, and not because Edwin was negligent in stopping the elevator. Again, Edwin was sent to the third floor to get the waste paper, which required him to step out of the elevator and then re-enter it. He had no warning as to the danger from the conditions incident to this work. It was the first time he had attempted to collect the waste paper and though he may have observed all the physical facts surrounding him at-the time of the accident, did his immature mind grasp their significance? This question brings us to a consideration of the charge.

In one part of the charge, the trial judge said:

"Did the plaintiff, ITjuig, know of the danger and appreciate it, if there was danger? In answering the question, was the elevator defective, if you say it was, then you will inquire what knowledge the boy -had of this defect in the elevator. If you find from the evidence that the boy had been told that the elevator was defective, you will next consider the circumstances and the experience and age of the boy, and determine whether or not he appreciated fully the dangers which might result from such defective condition of the elevator. And if you find from the evidence that he was told about the defective condition of the elevator, yet, if you are of the opinion, from all the evidence in the ease, that he did not appreciate the danger so as to take ordinary and reasonable care of- himself and his own safety, he would not be guilty of contributory negligence. ’ ’

Also in another part of the charge, the trial court said:

“The general rule of fixing and limiting the liability of a master to his servant applies to minors as well as to adults; and when a servant is set at a dangerous work the mere fact of his minority does not in itself render the master liable for the risk incurred, if the servant has sufficient capacity to take care, of himself and knows and appreciates the risk. ’5

Counsel for plaintiff in error claims that the test prescribed here by the court of actual appreciation and understanding of the risk involved in operating the elevator in question, is not a correct test. That it is not a question of what the plaintiff actually understood and appreciated, but what, in view of his age and capacity, and in the light of all circumstances, he ought to have understood and appreciated.

We think the charge as an abstract proposition of law is faulty, but under the evidence in this ease, did any prejudice to the rights of the plaintiff in error arise from that ?

The only evidence as to the boy’s capacity was that he was eleven years old. Counsel for plaintiff refrained from asking his mother, when she was on the stand, as to his mental capacity. If asked, she would doubtless have said that he was a very bright boy before he was hurt, but was dull and disabled afterward.

It is stated by Judge Spear in the case of Railroad Co. v. Mackey, 53 Ohio St., 370, at page 384, that the presumption that the injured person had capacity to foresee and avoid danger will not be visited upon children under the age of fourteen.

Stating this rule affirmatively and applying it to the minor in this ease, it follows that the presumption is that Edwin being under fourteen years of age did not have capacity to foresee and avoid danger.

There was no evidence of equal weight or countervailing force to overcome this presumption. Hence, no matter how charged on the subject, the jury was under the duty of finding as a fact, that Edwin did not appreciate fully the dangers which might have resulted from the defective condition of the elevator.

We conclude, therefore, that there was no error in the charge prejudicial to the rights of plaintiff in error and having considered all the claims of error made by him, the judgment is affirmed. ■ -