text:
    PUBLIC CONTRACTS — DAMAGES.
    [Summit (8th) Circuit Court,
    April Term, 1902.]
    Caldwell, Marvin and Hale, JJ.
    Akron (City) v. Oscar B. France et al.
    1. Remedy oe Lowest Bidder — Injunction—Mandamus.
    Under Sec. 794, Rev. Stat., directing the proper officials, in making contracts for public improvements, to award the contract to the lowest responsible bidder, but authorizing them, at their discretion, to reject all bids, the only-remedy by which a person making a bid, alleged to be the lowest responsible bid, can prevent officials from awarding the contract to another, is an injunction to restrain officials from making such contract and requiring the matter to be referred back for proceedings according to statute, mandamus will not lie to compel officials to award the contract to the plaintiff.
    2. Remedy where Work has Been Commenced.
    If, at the time suit is commenced, the work under a contract awarded to a person other than the lowest bidder, the only remedy is to enjoin such party from proceeding further with the work, set aside the contract and refer the matter back to officials for proceeding according to the contract.

      3. No Action for Damages After Completion of the Work.
    Where it appears, when the action is commenced or during its pendency, no injunction having been obtained to enjoin the contract or work under it, that the work has been completed, accepted and paid for, no such right or interest exists in the plaintiff as Will entitle him to maintain an action for damages.
    Heard on Error.
   HALE, J.

The city of Akron, in June, 1898, had taken the necessary steps for improving a portion of Wooster avenue. Through its proper officials it advertised for bids for doing the work. In response to that advertisement there were two bids filed with the city, the plaintiffs proposing to furnish all the material and to do the work for $19,093.88. McCourt proposed to do the work for $19,512.21. After these bids were received, the plaintiffs, who were the lowest bidders, ascertained that there was danger of losing the contract, and brought an action in the court of common pleas setting up the proper facts and asked that the city officials be enjoined from awarding this contract to McCourt and be compelled to enter into a contract with the plaintiffs for the doing of this work. The officials were too quick for the officers serving the papers, and before the papers were served entered into a contract with McCourt accepting his offer.

Thereupon the petition was amended and a supplemental and amended petition filed in which allegations are made that the commissioners of the city fraudulently entered into this contract with McCourt to defeat the plaintiffs in their rights, and alleging the facts occurring after the first petition was filed. For some reason trial was delayed for some time, and when the case was heard on the 'issues made, the court found the fact to be that the plaintiffs were the lowest bidders for the doing of this work and should have been awarded the contract. The court also found that the work had been done by McCourt, that the whole contract was completed, that it had been accepted by the city and paid for, and retained the case for the purpose of assessing damages to the plaintiffs by reason of the plaintiffs having been denied the contract.

The case was continued, and the plaintiffs filed a second supplemental petition in which they allege that the contract had already been completed by McCourt, had been accepted by the city and McCourt paid for it, and there was nothing to be done so far as he was concerned; and asking for damages against the city in the sum of $5,150; $5,000 for the profits that would have been made by the plaintiffs if they had been awarded the contract and allowed to complete it and $150 for some other items. The case then came on for further hearing, issues having been made by answer and reply, and was submitted to the jury for the assessment of damages, the court holding that the court, on the first hearing, had determined the rights of parties.

The precise question here involved has not been, as far as we are aware, adjudicated by the Supreme Court. There are three cases that may have some bearing on the questions here involved: First, the case against the commissioners of Darke county, a mandamus to compel the awarding of a contract for the building of a court house was sustained by the Supreme Court, but under a statute that required the letting of a contract to the person proposing to build the structure for thé lowest price, and the court held that meant a mere matter of mathematics, no discretion lodged with the commissioners, and hence a mandamus would lie to compel the making of the contract with the lowest bidder, or the party proposing to build it for the lowest price.

Again, in State v. Marion Co. (Comrs.), 39 Ohio St. 188. There was a contention whether the contract — the acceptance of the bid —was governed by a statute which provided for the acceptance of the best and lowest bid or whether it was governed by the old statute requiring the contract to be awarded to the person who would do the work for the lowest price, and the court held that the acceptance of the bid was governed by the statute requiring the bid of the person offering to do the work for the lowest price to be accepted, and mandamus was awarded. But in State v. Shelby Co. (Comrs.), 36 Ohio St. 326, a mandamus was refused under these circumstances. Two bids had been made for the furnishing and placing in place the iron structure for a court house. The lowest bid was accepted, but the party failing to come to time, the second bidder brought suit in mandamus to compel the awarding of the contract to him, and it was held under the statute in force at that time that the commissioners might, in their discretion, reject or accept such bid, and that mandamus would not lie in cases where a discretion is lodged in the tribunal who are to accept or reject the bids.

The statute (Section 794 Rev. Stat.) under which these bids were to have been accepted by the city is as follows : None but the lowest and best responsible bid shall be accepted, when such bids are for labor and material separately. But the board of commissioners may, at its discretion, reject all bids or accept any bid which may be the lowest aggregate cost.

So, it we hold that it was discretionary with the commissioners to reject all bids, or enter into a contract with the bidder that would do the work for the lowest aggregate price, then a discretion was lodged in the commissioners and they could either reject all bids or enter into a contract with the lowest bidder.

When this first petition was before the court an injunction could have been granted against the city from awarding or entering into a contract with McCourt, but we are very clear that mandamus would not lie to compel the commissioners to enter into a contract with the plaintiffs. The only thing that could have been done, if it had been heard upon the original petition, was to grant an injunction against entering into the contract with McCourt, and referring it back to the commissioners to proceed according to. the statute and exercise a discretion under the statute required.

When the supplemental and amended petitions were filed, the contract had been awarded to McCourt and he was entering upon the performance of the contract. The only judgment that could then have been made was to enjoin McCourt from proceeding further with the work, set aside the contract, and refer the matter back to the commissioners to exercise the discretion according to the statute. But after that was done and the supplemental petition was filed, and it appeared that the contract had been completed, no action of the city to enjoin, and no contract to award the plaintiffs, then the only relief was to award the plaintiffs damages if they were entitled to it.

Were they entitled to damages ? Upon that exact question there are no adjudications in the state. But we are compelled to hold, as we think, that where there is a discretion in the municipality, or in the commissioners, to reject or enter into the contract in accordance with a bid, that no such right or interest exists in the bidder as to entitle him to maintain an action for damages. It has not gone far enough. So that as this case stood at the time this judgment was rendered, it is very clear that the plaintiffs were entitled to no judgment for damages or otherwise, and instead of rendering the judgment that was rendered the petition should have been dismissed.

We, therefore, reverse the judgment of the court of common pleas, and make the entry as indicated.


source: Caselaw Access Project

author: BURROWS, J.

license: Public Domain

text:
    STREET RAILWAYS — RISKS ASSUMED.
    [Geauga (7th) Circuit Court,
    1902.]
    Burrows, Laubie and Cook, JJ.
    Cleveland & Eastern Railroad Co. v. Homer Somers.
    1. Brakeman Having Knowledge of the Failure to Provide Cars with Automatic Couplers Assumes Risk.
    A servant assumes the risks incident to his employment, including defective appliances of which he has knowledge. Hence, a brakeman who, before he enters the service of a railway company, has full notice and knowledge that none of the cars of the company are provided with automatic couplers, as required by Sec. 3365-23 Rev. Stat., cannot recover for an injury received by reason of the use of hand couplers instead of automatic couplers, although the use of automatic couplers is required by statute, and such brakeman is not guilty of any negligence contributing to the injury.
    2. Section 3365-23 Rev. Stat. Does not Apply to Construction Cars on Blectric Railways.
    Section 3365-23 Rev. Stat., requiring railway companies to equip their cars with automatic couplers, is not applicable to electric cars or railways in process of construction, and cars in use for that purpose.
    8. Rule applied.
    A brakeman who is injured by a car loaded with rails which project a foot beyond the end of the car, the brake-staff of such car being removed and the wheels blocked, he being familiar with the method usually adopted in loading such cars with rails, and knowing that the rails project beyond the end, and that the brake is not set, and having such knowledge, undertakes to make a coupling, assumes the hazard of any injury he may receive.
    4. Refusal to Direct Verdict not Error — When.
    Where, in such case, the evidence is not explicit and certain as to the knowledge of the plaintiff of the projecting rails and the removal of the brake staff, it is not error to refuse to direct a verdict for the defendant.
    Heard on Error.
   BURROWS, J.

Somers was injured while engaged as a brakeman in coupling cars, and recovered judgment for this injury.

The petition alleged that the company had failed to provide automatic couplers, as required by the statute ; and that the plaintiff, without fault on his part, was injured by reason of the neglect of the company in this and other particulars mentioned in the petition.

It was an undisputed fact in the case that the plaintiff, Somers, had full notice and knowledge that none of the cars of the company were provided with automatic couplers.

The court charged the jury that it was the duty of the company to have provided such couplers; and further charged the jury that “if the plaintiff knew that there were no automatic couplers then the burden would be upon the plaintiff to show, by a preponderance of the evidence, that the plaintiff used and exercised ordinary care before he would be entitled to recover, provided the injury occurred solely by reason of the want of this automatic coupler.” This was error. There was no circumstance taking the case out of the general rule that a servant assumes the risks incident to his employment, including defective appliances of which he has knowledge. If he was injured solely by reason of hand couplers being used instead of automatic couplers he would not be entitled to recover, however careful he may have been.

We are also of the opinion that the court erred in holding that it was the duty of the company to provide automatic couplers, and this for the reason that the statute is not applicable to electric cars, and was not intended to apply to them, and for the further reason that the statute only applies to railroads or parts of railroads in operation, and not to railroads in process of construction, and the cars in use for that purpose.

The court erred in charging the jury that the plaintiff might recover if they found that he was without fault, and that he was injured by reason of the negligence of the company in any of the particulars mentioned in the petition. The petition charged that the defendant was negligent in not equipping its cars with automatic couplers; also, in the use of cars defectively constructed; also improperly using an angle iron to block the loaded car, and also in providing coupling appliances that were defective and out of repair.

A verdict for plaintiff could not properly have been based upon any of these alleged grounds of negligence, for reasons already given, as to the want of automatic couplers, and, as to the other of said grounds, because there was no evidence tending to prove, either that the company was guilty of negligence as to them or that his • injury was caused thereby.

When the court came to charge the jury, none of these things were in the case, and the jury should have been told that the only grounds of negligence upon which they could place their verdict for plaintiff were the improper loading of the flat car and the neglect to have the brake set on the loaded car. ' Under the instructions given the jury, they may have based their verdict upon some of the other grounds of negligence that had on the trial been eliminated from the case.

The court also erred in refusing to charge the jury upon the question of the assumption of the plaintiff of the risks incident to the doing of his work in the way it was done. Evidence was given tending to show that the plaintiff knew that the rails were thirty-two feet in length, and the floor of the car only thirty feet, and that the rails loaded upon these cars projected beyond the floor at either end a foot, more or less; and knew also that in loading the rails the brake-staff was often, if not always, removed, and a block placed under the wheel of the car to keep it in place when necessary, on account of the grade. On the occasion when plaintiff was injured the car was blocked on account of the grade, the brake-staff was removed, and the loaded rails extended about a foot beyond the floor of the car. The defendant below requested the court to charge that the plaintiff could not recover if he knew that the rails projected and the brake was not set at the time he undertook to make the coupling. This request was not given, either in form or substance, but the jury was, however, instructed that he could not recover if he was guilty of contributory negligence. If the plaintiff was familiar with the mode theretofore usually adopted in doing this business, and knew that these rails projected beyond the floor of the car, and undertook to make the coupling with that knowledge, he assumed the hazard of any injury he might receive therefrom. He had to look out for the projecting rails, if he knew they were there, just as he had to look out for the bumpers, or the car wheels, or any other danger necessarily connected with that business.

The more serious question relates to the refusal of the court to direct a verdict for the defendant. The certain cause of the injury was the extension of the rails beyond the floor of the car, and the neglect of the plaintiff to keep his head below the rails at the time he was coupling the cars. If there had been no projecting of the rails, or if the plaintiff had kept his head below the rails there would have been no accident or injury. Whether the removal of and neglect to use the brake in any way helped to cause the accident is a matter of conjecture. The testimony is not very explicit and certain as to the knowledge of the plaintiff in respect to the projection of the rails or removal of the brake staff; and while it seems to be highly probable that he did see or would have seen these projecting rails, if he gave such attention to the surroundings as a man of ordinary prudence would usually give under like circumstances, yet we think the case was one for the jury.


author: HALE J.

text:
    BILLS OF EXCEPTIONS.
    Lorain (8th) Circuit Court,
    October 12, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Henry W. Manley v. Wheeling & Lake Erie Ry. Co.
    L Exceptions Saved by Journal Entry.
    A bill of exceptions does not become a part of the record without a journal entry making it so, and the only exceptions that can be saved by noting in a journal entry are such as are made to decisions and orders of the court required to go upon the journal and properly entered thereon.
    2. Presumption on Review that Court Acts Within Law in Absence or Bills oe Exception.
    A reviewing court, in the absence of a bill of exceptions and of any finding of the facts upon which the trial court acted in making an order, must assume that the court acted wholly within the law. Hence, where, in a trial in the probate court, but ten of the jurors appeared, and the journal entry show» that the defendant withdrew its demand for a jury, the plaintiff objecting but not himself demanding a jury, whereupon the jury was discharged, to which plaintiff excepted, a reviewing court, in the absence of a bill of exceptions, and of the facts upon which the probate court acted in discharging the jury, will not presume that the probate court erred in making that order.
    Heard on Error.
   HALE J.

(Orally.)

The case of Manley v. The Railroad Company, error to the court of common pleas, brings before us a record of the probate court of this county; the judgment of that court having been affirmed by the court of common pleas. It is sought in this proceeding to reverse both judgments.

The case grows out of a proceeding for the appropriation of property to the use of a corporation. Proceedings were instituted under Sec. 6448 Rev. Stat., which provides for proceedings to appropriate land when that corporation is in possession of the lands without any agreement with the landowner.

The proceedings were instituted by the landowner. On the trial before the probate court a bill of exceptions was taken by the plaintiff, against whom judgment was rendered; but there is no journal entry making the bill of exceptions a part of the record, ¿nd without such journal entry it does not become a part of the record and cannot be considered.

Only such' errors, if any, as appear in the record, excluding the bill of exceptions, are before this court.

The Supreme Court have several times said, the only exceptions that can be saved by noting the exception in the journal entry are such as are made to decisions and orders of the court required to go upon the journal, and are properly entered there.

There is no irregularity pointed out in the proceedings up to the time the case was called for trial in the probate court.

It appears that the defendant, the railroad company, had demanded a jury to try the case. A venire had issued for the jury, and ten of the men named in the venire appeared in the probate court on the day of the trial, and the journal entry shows that the defendant withdrew its request for a jury, and consented that the issues raised be tried by the court. The plaintiff objected to the discharge of the jury; but did not ■demand that the case should be submitted to the jury, whereupon the jury was discharged, to which the plaintiff excepted. The case then proceeded to trial before the court, and the court having heard the evidence and arguments of counsel, reserved his decision, and later rendered a judgment in favor of the defendant, the railroad company.

The only exception taken here was to the discharge of the jury. Ten men who had been selected to act as jurors only reported, and these were discharged.

Now, if we concede that it was proper to place upon the journal the fact that the venire had been recalled, or that the jurors appearing had been discharged, then there is a total failure to show for what reason, acting on what facts the court discharged that jury. There might have been ample reasons for discharging the jury. We must assume, in the absence of any finding of facts and of a bill of exceptions, that the court acted wholly within the law. We cannot'assume that the court erred in discharging the jury in the absence of the facts upon which the court acted in making that order. The journal entry shows, that the plaintiff did not demand a jury; but proceeded to trial without any protest or without any objection, other than to the discharge of the jury.

A trial was had before the court, and decided against plaintiff in error, and we think he must abide by the result. He produced bis evidence and tried his case to the court, without any objections to a trial in that way, and saved no exceptions to such trial. This would constitute a waiver on his part to a jury, to which he was clearly entitled.

When the bill of exceptions was stricken off, all rights that were undertaken to be saved to the plaintiff in error that had any substance in them were lost to him. There is nothing in the record outside of the bill of exceptions of any account.

The judgment of the court of common pleas is affirmed.


author: HALE, J.

text:
    SET-OFF.
    Lorain (8th) Circuit Court,
    October 12, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Robert A. McClure v. Lorain County (Comrs.).
    An Admitted Liability fob. Cost of Certain Repairs may be SET- pm Against Balance Due on Contract.
    In an action against the county commissioners fora balance due for work done on a public building, the fact that the plaintiff so negligefatly operated the heating system in the building as to render it useless without repairs, and that at this time plaintiff admitted his liability for the injury to the heating system and agreed with the county commissioners that the cost of the repairs thereon should be deducted from the amount due him on the contract, constitutes a valid set-off to the plaintiff’s action, although there is no consideration for plaintiff’s agreement to pay for such repairs other than hi's admission of liability, and notwithstanding the injury to the heating system was caused by the negligence of an independent contractor whom plaintiff had employed to do the work.
    Heard on Error.
   HALE, J.

(Oraljy.)

The case of McClure v. Lorain County (Comrs.) in error to the court of common pleas. The commissioners of Lorain county were erecting a building in Oberlin to be used as a children’s home.

The first contractor who undertook to do the work defaulted before completing the building, and the commissioners entered into three separate contracts with McClure for the completion of the building. He brought his action to enforce payment, upon these contracts, of the balance claimed to be due him.

While there are a number of issues made in the case it is agreed by the parties that the amount unpaid to McClure at the time the action was brought was $431.01 and that he was entitled to judgment for that amount, unless the set-off pleaded by .the commissioners was to be allowed, and that whatever was to be allowed upon that set-off should be deducted from the $431.01.

The only issue submitted to the court was, whether that set-off should be allowed in whole or in part, and if so allowed, deducted from this amount, and judgment rendered for the balance.

The substance of that set-off is this: Prior to making these contracts with McClure the commissioners had placed in that building a steam heating system complete, and that while McClure was in possession of the building completing the building under his contracts he so negligently and carelessly operated and used this steam heating system as to cause it great injury; that he allowed the pipes to fill with water, freeze and burst, rendering the system useless without repairs; that after this was done McClure and the commissioners entered into a contract by which McClure recognized his liability for the loss and injury to the heating system, and agreed with the commissioners that they should employ a plumber to make the necessary repairs, and deduct from the amount due him the sum that it should cost to make those repairs.

A jury was waived and the case submitted to the court. Testimony was given by each side, the one tending to support and the other tending to disprove the contract, but that testimony is of such a nature and of such a character, that this court would not be authorized to disturb the finding of the trial court, because not supported by sufficient evidence.

It is said, however, that there was no consideration for this contract ; that McClure, was not in any way responsible for this loss. He did this work by a sub-contractor,-who, he alleges, was an independent contractor, and if the independent contractor meddled with this steam heating system in any way, causing the injury, he was not responsible for it.

But it is sufficient to say a claim was made by the commissioners that he was so responsible. And if, in settlement of that claim, he agreed with them, as they allege he did agree, it would be a sufficient consideration.

Again, if he was in fact responsible for the loss of this steam heating system, there would be no question about his liability to the commissioners for the loss sustained thereby.

There is only one view of the case in which his claim for a want of consideration could possibly be sustained. If the commissioners, for the purpose of preserving the building, bought the coal to heat the building, not for the purposes of the contractor, but for their own purposes, and the sub-contractor was really keeping up the fires because the commissioners desired him to do it to preserve the building, it might well be said the principal contractor was not responsible; but that case is hardly made in the proof.

If, as I have stated, the commissioners made the claim of McClure that he was responsible for this loss, which he conceded and made a promise to pay, or if McClure was in fact responsible for the loss, there was a sufficient consideration to support the claim.

The result of our investigation is that the record presents no cause for reversal of the judgment. The judgment of the court of common pleas is affirmed.


text:
    GIFTS.
    [Lorain (8th) Circuit Court,
    October 12, 1902.]
    Caldwell, Hale and Marvin, JJ.
    Della M. Prindle v. Malcolm H. Wood et al.
    Gift of Mortgage to Daughter Executed by record Thereof by Donor.
    Where the owner of land conveys the same to his son, and, to secure payment of the purchase money, takes a mortgage upon the land so sold, payable in annual installments to himself during life, after his death to his wife during her life, and, at her death, the residue still unpaid, to his daughter, and the' same is duly recorded by him, a valid gift of the residue thereof is . xecuted to the daughter, the record taking the place of manual delivery, and acceptance by the daughter being presumed under the circumstances. Hence, the daughter dying before her father, and the wife shortly after his decease, the residue unpaid belongs to the estate of the daughter.
   HALE, J.

(Orally.)

The case of Prindle v. Wood et al., comes into this court by appeal. The facts are agreed upon, or there is no issue as to any fact in the case.

It appears that on February 21,1894, Harrison B. Wood, an old resident of this county, conveyed to his son, Malcolm H. Wood, 120 acres of land in Carlisle township, for the consideration of $3,000, and at the same time he took from his son a mortgage to himself, his wife and his daughter. That mortgage in part reads :

“Know all men by these presents, that we, Malcolm H. Wood and Mary R. Wood, the grantors, for the consideration of $3,000, received to our full satisfaction of Harrison B. Wood, Gratia C. Wood and Effa May Wood, the grantees, do grant, bargain, sell,” etc. “ The condition of this deed is such, that whereas the said Malcolm H. Wood is indebted to said Harrison B. Wood in the sum of $3,000, which said Malcolm H. Wood is to pay in installments as follows — and to the persons named, to-wit: to said Harrison B. Wood the sum of $200 on the first day of April each and every year, commencing April 1, 1895, and continuing during the lifetime of said Harrison B. Wood, or until the same shall be fully paid. At the decease of said Harrison B. Wood what still remains unpaid of said $3,000 shall be paid in installments on the same date to the said Gratia C. Wood so long as she shall live, or until the same shall be fully paid; at her death whatever may remain of said $3,000 shall be paid at the same time to Effa May Wood.”

Harrison B. Wood died in 1897. Up to his death payments were made to him precisely in accordance with this mortgage. Mrs. Wood, his wife, died in 1900, and the payments were made to her up to the time of her death. Effa died shortly before her father.

At the death of Mrs. Wood there remained unpaid about $2,000. The question of law submitted is, whether that mortgage and the residue unpaid at the death of Mrs. Wood belonged to the estate of Harrison B. Wood or to the estate of Effa May Wood. The administrators of both estates are parties to the suit, and each claims for the estate he represents the unpaid balance.

It is said by counsel representing the estate of Harrison B. Wood that this is, at most, an unexecuted gift on the part of Harrison B. Wood to his daughter, Effa May, and created in her no vested right in the mortgage; that the consideration, as is conceded here, moved entirely from Harrison B. Wood, Eña May paying no part of the same.

It must be conceded that to constitute a valid gift of chattels the donor must part with all dominion over the property, and deliver the same to the donee. We suppose this applies as well to an indebtedness as to any other class of property. The gift of a promissory note by a donor against a third party would require an indorsement and delivery to pass the title to a donee and perfect the gift.

But supposing a father, desiring to make a gift to a daughter, loans to a third party $1,000 and takes his note therefor, payable to the daughter, which he delivers to her, it would constitute a valid gift.

Supposing, instead of a note simply, he takes a note payable to the daughter and a mortgage, in which she is named as the grantee, and delivers both the note and the mortgage to the daughter, is there any doubt about its constituting a valid gift?

Supposing the whole contract is written in the mortgage, the daughter named as the grantee, and the mortgage delivered to the daughter and placed on record, we think it would constitute still a valid gift.

We hold further, that a mortgage given to a daughter, under the circumstances indicated, in which the daughter is named as the grantee, the father paying the consideration, and causing the same to be recorded, would become an executed and valid gift.

The record of the mortgage would take the place of a manual delivery, and the acceptance, of the gift by the donee, under such circumstances, is presumed.

That is this case, except that it was not made entirely to the daughter; but as to the amount due upon the mortgage at the death of Mrs. Wood we think that the same rule would apply.

To the extent of the residue remaining unpaid at the death of Mrs. Wood there was a valid gift to the daughter, and such unpaid remainder belongs to the estate of Effa May Wood, and a decree may be taken accordingly.


author: CALDWELL, J.

text:
    PUBLIC IMPROVEMENTS — BIDS.
    [Summit (8th) Circuit Court,
    October 27, 1902
    Caldwell, Hale and Marvin, JJ.
    T. Trowbridge et al. v. Hudson (Vil.) et al.
    1. Certificate oe Money in Municipal Treasury not Required Under Sec. 2330b Rev. Stat. ¡
    Section 2702 Rev. Stat., which provides that no contract involving the expenditure of money shall be entered into by a municipal corporation unless the clerk shall first certify to the council of such corporation that th'e money required for the contract is in the treasury to the credit of the fund from which it is to be drawn, does not apply to contracts by municipal corporations for the construction of sidewalks under Sec. 2330b Rev. Stat., for the reason that the latter section itself contemplates that the money is not in the treasury, but is to he raised by an issue of bonds at the election of the electors pf the corporation.
    2. Discretion op Council Under Sec. 2330b Rev. Stat. to Select Material After Bids Received.
    The council of a village, in acting upon bids for the construction of sidewalks under Sec. 2330b Rev. Stat. will be governed by the last clause of that section which provides that the council may reject any or all such bids, and not by some former section prescribing a different rule. Hence, the council of a municipal corporation, having advertised for bids for the constructon of sidewalks of either stone or cement, under Sec. ?330b Rev. Stat. in acting upon such bids, may select that one which is most satisfactory as to kind and quality of material, whether such hid be high or low in amount.
    A. S. Cole and I. H. Phelps, for plaintiff.
    Grant & Sieber, for defendants.
   CALDWELL, J.

The plaintiffs bring this action in behalf of the village of Hudson to prevent the village from constructing sidewalks in a manner, as they claim, different from that provided by the statute.

The village took action under Secs. 2330b and 2330c Rev. Stat. to construct sidewalks on certain streets in the village of. Hudson. On July 9, 1901, a preliminary resolution declaring it necessary to provide stone walks for the village, was passed by the council, and, at the same meeting, another resolution was passed and the mayor of the village was instructed to call a special election for the purpose of submitting to the electors of the village the question of whether bonds should be issued to meet the expense of constructing the walks.

On July 31, 1901, at a special meeting ot the council called for that purpose, a resolution was adopted providing for the holding ot a special election on Tuesday, August 13, 1901, at which election the question of issuing seven thousand dollars worth of bonds for sidewalk improvements was submitted to the electors, and at which election the majority of the electors of the village voted in favor of issuing the bonds.

At a meeting of the council on the fourth of January, 1902, a general sidewalk ordinance was adopted by the council and thereafter the clerk advertised for bids for furnishing stone and building of stone sidewalk in the village; the bids to be in by twelve o’clock noon on Wednesday, July 2, 1902. Bids were received in response to this notice, and the notice was duly published.

At a meeting held July 12, 1902, the bids were opened and taken up in their order by resolution duly passed. The bids of Bernard, Stocker & Slaughter, and Paul & Henry were rejected. The bid of D. A. Ely was accepted.

On July 14, 1902, a contract was entered into, signed by the mayor and clerk, with Ely, as provided by law.

On July 28, 1902, this action was begun in the court of common pleas to restrain the village and Ely from entering into the contract and also from carrying out the same. 1

The first question to be considered is: Is the contract between the village of Hudson and Ely illegal and void because the clerk did not certify to the council that the money required for the .contract was then in the treasury to the credit of the fund from which it was drawn, and not appropriated for any other purpose ? This question is determined by determining whether that section applies to the matter of building sidewalks as under the provisions of the statute under which the council acted in this case.

Section 2330b Rev. Stat. provides how the expense of constructing sidewalks is to be met, and authorizes the council to issue bonds of the village ; and further provides the “ bonds may be sold for not less than their par value and the proceeds applied to the construction of such sidewalks, or the council may use the bonds at their par value in payment of contractors without advertising for their sale. And the statute further provides that any property owner may elect whether he or she desires to pay cash for their improvement or have it placed upon the tax duplicate as in such statute provided; and, if any person elect to pay. cash and he or she refuses to do so within thirty days after the completion of the work, then the clerk shall certify the amount to the auditor together with the interest due thereon as provided.

It clearly appears from the statute itself that the amount necessary to complete the work could not be known until the work was cómpleted.

Section 2702 Rev. Stat., in our opinion, does not apply to cases where the work to be done is not to be paid for in cash but is to be done on credit. Cincinnati v. Holmes, 56 Ohio St. 104 [46 N. E. Rep. 514]. It clearly appears from this case that the object of the section No. 2702, is to restrain the officers of a village or any muninicipality in fixing an indebtedness on the corporation without any treasury to meet it; and where a statute provides for bonds being issued upon th'e election o) the electors of the corporation, the statute has no place.

Section 2330b Rev. Stat., aside from authorizing the making of 5 particular kind of improvement, provides the mode and manner in which the funds are to be raised and defray the cost and expenses of it. That being true, the statute itself contemplates that the money is not in the treasury but is to be raised upon the issuing of bonds upon which question the electors themselves vote. And hence, as we hold, Sec. 2702 Rev. Stat. has no application to the case under consideration.

The second contention on behalf of plaintiffs is that the council had no authority to reject the bids of all the contractors except that of Ely and award the contract to him. The latter part of this section (above referred to) is “the council may reject any or all bidj.” But it is claimed that any provision found in this chapter of the statutes on this subject is applicable to this case; and the plaintiffs to make out their case go back to a former section and endeavor to make it apply to the case at hand. If no provision was made in the section itself, it might be true that former sections might apply, but where the section itself provides what the council may do with the bids, it must be held that it was the intention of the legislature that that provision should govern and not the provision found in former sections of the statute. The statute provides for the bids being on file ten days before the contract is awarded, and provides that all bids shall designate the material proposed to be used. These provisions were made with the object or purpose of giving the council sufficient time before the awarding of the contract, to investigate the kind of material each bidder proposed to use, in order that it might select not only the kind of material but the best material. The intent of the statute is that the council may advertise for bids for either stone or cement or both, and after the bids are in and the council learns the prices and the kinds of material that is proposed under the prices, the council may then select the kind of material it will use and the quality of that kind, and then select the bid that complies with that quality and kind; and, when the statute gives authority “ to reject any and all bids,” it means what it says, may reject the lowest as well as the highest, may reject any bid, may reject all but one; that one may be the lowest in price for the material selected and the quality of material selected. The one that they select may be the highest in expense but best in quality, and, in the end, the cheapest to the village. This statute was not intended, however, to give the authorities of a municipality power to act corruptly and accept bids that would be greatly to the disadvantage of the village, through motives of fraud or corruption. The intention of this statute brings it clearly within the case of the State v. Board of Ed., 7 Circ. Dec. 338 (14 R. 15). There it was held that where a board of education advertises for bids for constructing a heating plant for a school building, the board is not bound to accept the lowest bid; that bids in such a case are not competitive; that many things besides price enter into the determination as to which would be the better system.

So, in this case, the statute reserves the right to the village authorities to reserve their determination of the kind of walk it will put down, until after the bids are opened and the kind of material selected where different qualities of material appear in the different bids.

Under such facts it is clear that the legislature intended that when the bids are opened, the kind and quality of material is selected, that any bid that meets the requirements of the selection may be accepted and it need not necessarily be the lowest in actual figures.

In McClain v. McKisson, 8 Circ. Dec. 357 (15 R. 517), which is affirmed in the Supreme Court, McClain v. McKisson, 54 Ohio St. 673 [47 N. E. Rep. 1114], it was there determined that the judgment of the trustees of the waterworks board of the city of Cleveland as to the liability of the lowest bidder is final. Courts cannot interfere with that option or decision of the council once exercised. But, notwithstanding this matter is left largely, if not wholly and entirely, to the option of the village authorities, yet we received tetimony as to which of these bids was the lowest, it being contended by plaintiffs that there was one bid that was lower than the bid accepted, but, after receiving that testimony, the amount of the different kind required is left in such uncertainty that the court is unable to say that the bid not accepted is lower then the one accepted. Then, too, there was a difference in the quality of stone, and the evidence before us clearly shows that the Peninsula stone is a better stone than the Independence stone; it is less subject to changes by action of water and air, less liable to split, a,nd has much less of iron in it. And we see nothing in this evidence to indicate that the council did not act in the utmost good faith in awarding the contract to the defendant to whom it did award it; and there is evidence here in the case to show that the action is brought largely, if not wholly, in the interests of another stone company.

We find no reason under the law and evidence of this case why the restraining order asked for should be granted, and the plaintiffs petition is dismissed.


author: GIFFEN, J.

text:
    TRUST ESTATE — PLEADING.
    [Hamilton (1st) Circuit Court,
    1902.]
    Swing, Giffen and Jelke, JJ.
    Percy Jones et al. v. William A. Procter et al.
    1. Demurrer, not Motion for . Judgment in . Pleadings, Required to Settle Question of Law.
    A motion for judgment on the pleadings is fiot available to settle important questions of law, or to dispose of the merits of the case; this is the office of a demurrer to which resort must be had.
    2. Failure to Disclose .Injury to Trust Estate Defeats Suit for Accounting.
    Where, in a suit for an accounting as to a trust estate, the petition does not disclose in what particular, if any, the trust estate was injured by the compromise agreement complained of, the plaintiffs are not entitled to the relief prayed for. ,
    8; Power of Trustees as to Disposition of Partnership Interests.
    Where trustees are authorized by will to continue a partnership business, a power to settle its affairs at the time appointed for dissolution will be implied. If clearly in the interest of the trust, settlement may properly be made before such time.
    Kittredge & Wilby and William Worthington, for the motion.
    J. J. Glidden and John C. Healy, contra.
   GIFFEN, J.

By the amended petition filed May 13, 1898, and the amendment thereto filed July 2, 1898, plaintiffs, for a cause of action against the surviving partners of Procter & Gamble, aver that they are the residuary devisees under the will of William Procter, deceased, and as such own an undivided one-eleventh of the residue of said estate; that his interest in the partnership was devised to William A. Procter, James N. Gamble and James Morrison, as executors and trustees upon the trust; that they continue the interest in said business during the life oí his widow, Olivia; that James Morrison was succeeded by Thomas Morrison as executor and trustee; that all of said trustees qualified aud executed said trust to the extent of continuing the business until 1890, when the plant and business was sold to a corporation known as the Procter & Gamble Co., the widow of said William Procter being then alive; that by the terms of said will the interest of plaintiffs was to be held by the trustees during the life of Jane Clark Jones, the mother of the other plaintiffs; that no settlement of the partnership business was made by the executors and trustees with the surviving partners; that the surviving partners other than the trustees received the entire consideration paid for the assets of said partnership, partly in cash and partly in stock of the corporation ; that at the time of said sale the estate of William 'Procter was entitled to receive 22% hundredths of said purchase money and stock, and that said surviving partners were obligated to account to and with said estate for that proportion of the amount so received by ¿hem, and also for the profits made in the business; that fhe executors and trustees refused to bring this or any action ; that said trustees, about November 29, 1893, resigned the trust of the portion coming to these plaintiffs, and the Central Trust & Safe Deposit Co. was appointed trustee of that portion in their stead. The prayer is for an accounting.

The defendants for answer say that the Central Trust & Safe Deposit Co , as trustee, accepted from the defendants the sum of $25,000 in full settlement and satisfaction of any and all claims and demands against the surviving members of said partnership, and thereby released these defendants from all liability.

The plaintiffs for reply say that they refused to accept said sum of $25,000 in full settlement, and that the trust company, as trustee, had notice of such refusal prior to November 29, 1893; that defendants, with full knowledge of said refusal, did, on November 29, 1893, voluntarily pay said sum of $25,000 to the Central Trust & Safe Deposit Co., as trustee.

The case is now submitted on a motion made by the defendants for A judgment upon the pleadings.

This motion cannot be entertained, for the reason that a motion is not available to settle important questions of law, or to dispose of the merits of a case. This is the office of a demurrer, to which resort may be had. Finch v. Finch, 10 Ohio St. 501, Illinois Cent. Ry. Co. v. Adams, 180 U. S. 28 [21 Sup. Ct. Rep. 251],

But inasmuch as the defendants may withdraw the motion and file a demurrer to the reply, we will consider the case as though thus presented.

The question then is whether the trustee had any authority to compromise the claim of the plaintiffs, and if not, whether they had recourse on the trustee alone or also on the surviving members of the firm. Counsel for plaintiffs claim that the only duty imposed on the trustee by the terms of the will was to hold the residue of the estate after it was ascertained and accounted for by the executors, and that there could be no residue until they had settled in the probate court and were ordered to pay the balance in their hands to the trustee.

It does not appear from the petition what the executors did in the settlement or management of the estate, except that they continued the partnership business, and acquiesced in the sale of the same to the corporation. In the absence of averment to the contrary, we are justified in assuming that the executors had fully settled the estate other than the interest in the partnership business, which, in itself, composed the residue.

It was the management of this interest that the testator had in view when he appointed the trustees, and their powers were as full and complete, if not more so, than those of the executors with respect to such partnership business. If the trustees were authorized by the will to-continue the business, they had the implied power to settle the affairs of the partnership at the time appointed for its dissolution, or even before if clearly in the interest of the trust. If, therefore, the sale in this case of the partnership assets to the corporation was made in good faith and was beneficial to the trust estate it ought not be disturbed, and having once been effected there could be no difficulty in apportioning the share of the proceeds, and hence, no necessity for a compromise.

The trustee would clearly be liable to account for such share of the proceeds ; and the surviving partners, some of whom were original trustees* having knowledge of the protest of the beneficiaries against the compromise, might be open to a charge of collusion, which, if sustained, would make them also liable. If, however, the $25,000 paid was a full equivalent of the share of stock and other consideration paid for the partnership assets, there would be no good reason to require an accounting; but the pleadings do not disclose in what particular, if any, the trust estate was injured by the compromise, and until it does so appear the plaintiffs are not entitled to the relief prayed for.

If the motion for judgment on the pleadings is pressed the same will be overruled, but if withdrawn and a demurrer to the reply filed, the latter will be sustained.


text:
    PESTHOUSES.
    [Lorain (8th) Circuit Court,
    October 12, 1902.]
    Caldwell, Hale and Marvin, JJ.

      Lorain (City) et al. v. Josephine Rolling et al.
    1. Consent oe Township Authorities not Necessary to Establish Pest-houses Outside Municipality.
    Section 2142 Rev. Stat., providing for quarantine grounds for cities and villages, and requiring the consent of the municipality or township in which, ench grounds are located, if without the city establishing them, does not apply to pesthouses, and a city may erect a pesthouse outside its corporate limits under Sec. 2169 Rev. Stat., without obtaining the 9onsent of the township in which such pesthouse is located, this section placing no restriction upon a city as to obtaining the consent of municipal or township authorities before establishing a pesthouse.

      S. A Pesthouse is not a Nuisance per se.
    A pesthouse, being erected by authority of law, is not a nuisance per se, although if carelessly and negligently used contrary to the intent of the law it may become a nuisance and may then be enjoined.
    Heard on Error.
    E. G. Johnson and W. L. Hughes, for plaintiff.
    Metcalf & Cinniger, for defendants in error, cited:
    All legislative acts relating to the same subject matter should be construed together. State v. Jones, 66 Ohio St. 453 [64 N. E. Rep. 424].
    Injunction to stay erection of a hospital in the neighborhood of a town and near to dwelling houses. Wolcott v. Welch, 8 Stocks, N. Y. 209.
    Pesthouse, a nuisance. Wood Nuisances, 7, 67 and 68, Sec. 66; Haag v, Vanderburg Co. (Comrs.), 60 Ind. 511 [28 Am. Rep. 654]; 9 Am. & Eng. Enc. Law (1 ed.) 774; Sparhawk v. Railway Co., 54 Pa. St. 401; Casebur v. Mowry, 55 Pa. St. 419 [93 Am. Dec. 766].
    The signing separately by two trustees is not the consent or action ot the board or township. State v. Wilkesville Tp., 20 Ohio St. 288, 293; State v. Liberty Tp. (Treas.), 22 Ohio St. 144, 148.
    The laws oi 1902 cannot affect the question one way or the other so far as this case begun in 1900 is concerned. See Richmond v. Henrico Co. (Supvrs.), 2 S. E. Rep. 26 [83 Va. 204].

       Reversing Rolling v. Lorain, 13 Dec. 27.

   CALDWELL, J.

The city ot Lorain bought outside of the city limits twelve acres of land and was about to erect on it a structure called a pesthouse, when this action was brought to restrain the erection thereof on this piece of land by the defendants in error, Josephine Rolling and others, who have property adjoining, or at least across the road from the property in question.

In the trial ol the case it was contended that before grounds could be obtained for a pesthouse outside of the limits of the corporation establishing the pesthouse, that permission must be had from the trustees of the township where it was to be established, it outside of the corporation establishing it, and that this consent was not obtained, and, that being true, the city of Lorain was proceeding unlawfully, and that it was proper and right to restrain its unlawiu'l áction.

On the other side, the city of Lorain contended in establishing a pesthouse that it was not acting under the law for establishing a place for sanitary plants; but the two were entirely separate and distinct, and in procuring the grounds and establishing a pesthouse the consent of the municipality or public authorities where it was established, if outside of the city or village, was entirely unnecessary, and, hence, the law pertaining to sanitary plants did not apply. The court below held the law pertaining to sanitary plants did apply.

Now the plaintiffs below, in presenting their case, made this legal point that I have spoken of, as to which law applies, and then offered no evidence, as to whether or not this was a nuisance. They undertook to offer some evidence that it would reduce the value of property in that neighborhood, but the only witness called was unable to say, hence, nb evidence was obtained upon that point.

Then the delendant proceeded to show that establishing this pest-house would not render that neighborhood unhealthy or liable to contract contagious diseases frqm parties who were placed in the pesthouse, and the testimony, so far as the defendant below was concerned, was quite conclusive upon that point. But the court below rendered judgment against the city of Lorain and in iavor of the plaintiffs below, and the city of Lorain files the petition in error to reverse that judgment in this court.

There is only one question we are concerned with, and yet we may discuss two, as it will lead to the right conclusion, we think, in this case.

What statute applies ? It is contended that Sec. 1692 Rev. Stat., subdivision 23 or paragraph 23 giving general powers to municipalities, bestows upon Lorain the authority to establish a pesthouse, and it does in direct terms give that authority. Then Sec. 2169 Rev. Stat. states where and how that pesthouse may be established, and that puts no restrictions upon the village, so far as obtaining the consent of other municipalities or other authorities if the pesthouse is built outside of the city, and that has been the law for a long time. Then Sec. 2142 Rev. Stat., with which the court below held that the city must comply in obtaining the consent of the authorities where the grounds were established outside the city, the court held to apply to this case. Section 2169 Rev. Stat., applies to pesthouses; there is no question about that. The court below held that Sec. 2142 Rev. Stat. also applied. Section 2142 Rev. Stat. is found in 94 O. L. 342 and also again on page 383; but there is no difference in the two, they both amend Sec. 2142 Rev. Stat. There is no difference so far in the sections we desire to consider; they are precisely the same. Section 2142 Rev. Stat. pertains to quarantine grounds controlled by the city.

“Any city, village, hamlet or township may establish a quarantine ground or grounds, within or without its own limits, but if such place be without its limits, the consent of the municipality or township within which it is proposed to establish it, shall be first obtained; and the board of health within the city, village, hamlet or township having quarantine grounds or dump grounds, shall have exclusive control of the same.”

If this pertains to quarantine grounds then it is clear that the consent of the township where it is established must be obtained, obtained perhaps through the trustees, but it does not state exactly how; but the trustees are the representatives of the township and might give consent, the law probably implies that. But that is not necessary to the consideration of this case, but after consent is thus obtained and the grounds are established, then the corporation establishing them has control.

The title to the-act as iound in the session laws is, ‘‘To amend Section 2142 Revised Statutes ol Ohio, providing ior the control of quarantine grounds and relating to the power of boards of health, enabling municipalities to erect and maintain sanitary plants.” That is, the purpose ot the act is, to enable a corporation or municipality to acquire quarantine grounds, first, and then ,in addition to that to erect thereon a sanitary plant.

The object of a sanitary plant is clearly defined in the act, as is found in the act itself, and also in the general statutes. Section 2142a Rev. Stat., definition of sanitary plant : ‘‘The expression ‘sanitary plant,’ as herein used, shall be held to mean a structure with the necessary land and all the necessary fixtures and appliances and appurtenances required for the treatment and purification and disposal, in a sanitary manner, of either or both the liquid or solid wastes of the municipality.” So the act provides for. obtaining quarantine grounds and for building a sanitary plant thereon, and then the grounds and the structure together are to be known as the sanitary plant.

Well, after obtaining this ground, the act providing that buildings may be erected, and machinery, appliances and appurtenances acquired, necessary for the disposal, in a sanitary and economic manner, ol the sewage and garbage, night soil, dead animals, oflal, spoiled meats, and fish or any putrid substance, or any liquid or solid wastes, or any substances injurious to health ot the municipality. This, then, seems to be a plant simply for taking everything that is full of microbes and deadly poisons and injurious to health out to, and by some sort of machinery purifying it and making it healthy. That is all it is, destroying the poisonous gases and poisoned substances in these refuse matters of all kinds. It has nothing to do whatever with a pesthouse, and the court erred in holding that this assent must be obtained of the township where it was built.

Now certain evidence was taken, and as this case will have to be remanded, perhaps it is well enough to discuss it very briefly. This pesthouse is erected by authority of law, and certain restrictions and provisions are made in regard to the manner of establishing, erecting and using it. Therefore, the mere erecting of a pesthouse cannot be an unlawful thing. The mere erecting not being unlawful, it cannot be a nuisance per se.

But if a method is pursued that will necessarily make it dangerous beyond that already contemplated by the law, then it may be a nuisance, and before actual using might be condemned by the authorities and they be enjoined from establishing it. But if the mode prescribed and manner contemplated has been pursued, or if no mode or manner is definitely pointed out by the law, if that generally approved is pursued, then there can be no injunction and no declaring it a nuisance until it is wrongfully used. If it is so negligently used, so carelessly used and so used contrary to the intent of the law, it may become a nuisance, and it may be then enjoined. And that is the whole law of this case as I understand it. Of course I am not committing the court on what I say now, and the case must be reversed and remanded for a new trial.


author: MARVIN, J.

text:
    RAILWAYS — NEGLIGENCE.
    [Summit (8th) Circuit Court,
    April Term, 1902.]
    Caldwell, Marvin and Hale, JJ,
    Erie Railroad Co. et al. v. Kate McCormick, Admx., etc.
    1. Speed Ordinance Admissible in Action for Negligence Against Railway, When.
    Where, in an action against a railway company for the wrongful death of one < of its employes, the negligence charged being that the train which killed the deceased was run at a speed so excessive (forty miles an hour) as in itself to constitute negligence, an ordinance of the city within whose limits the accident occurred, limiting the speed of all railway trains to six miles per hour, is admissible in evidence.
    2. Track Walker and Engineer not Fellow Servants.
    Under Sec. 336Ó-22 Rev. Stat., defining the terms “ superior officer ” and “ fellow servant” a track walker, notwithstanding he is alone upon the railway track and has sole power, control and direction as to manner and time of pursuing his duties, and power to flag trains when necessary, is not the fellow servant of the engineer of an approaching train, so as to preclude recovery for injuries resulting from the negligence of the latter.
    8. Contributory Negligence.
    A track walker, knowing the rate of speed at which trains habitually run over a certain division of a railway and the time at which they pass a bridge included therein, is bound to take notice thereof and govern himself accordingly and has no right to presume that any ol such trains will not exceed the speed limit provided by an ordinance of the city in which such bridge is situated; and where a person so employed, at about the time a train is due, without making any effort to ascertain whether or not a train is within sight or hearing, goes upon such bridge and is killed he is guilty of contributory negligence.

      •4. Recovery for Negligence of Engineer Notwithstanding Contributory Negligence of Deceased.
    The engineer of a railroad train running at a high rate of speed, who sees a man upon a bridge over which his train is to pass, 800 feet ahead, and who makes no effort to slacken the speed of the train, when by proper effort he could have prevented it from running the man down, is guilty of negligence which will render the railroad company liable for the death of such man, in case the train runs upon and kills him, provided the deceased could not have escaped after he knew of his danger. The fact that the deceased was a track walker of the railroad company and was negligent in going upon the bridge will not prevent such recovery.
    6. Remittitur Ordered.
    A verdict of $5,200 for the death by wrongful act of a track walker earning one dollar and twenty-five cents per day is excessive and unless remitted in this case to $4,000 judgment will be reversed.
    Tibbals & Frank, for plaintiff in error.
    E. F. Voris and A. J. Wilhelm, for defendant in error.
    Error to the court of common pleas of Summit county.
   MARVIN, J.

The case grew out of this state ot facts: On the morning of Christmas day, December 25, 1897, James Thomas McCormick was killed by being struck by a train of the Erie Railroad Company, crossing .a trestle in the northeasterly part of this city (Akron). Katie McCormick was appointed administratrix of the estate/ot the deceased Thomas, and brings suit under the statute authorizing such proceeding to be brought for the benefit of those (the next of kin) who have a right. The trial resulted in a verdict and judgment for the plaintiff below, ■and motion for new trial was made and overruled, and error is brought here to reverse that judgment. A bill of exceptions is filed here containing all the evidence introduced in the court below.

It is complained on the part of the plaintifl in error that the petition fails to state facts sufficient to constitute a cause of action. Without stopping to read from the petition, we hold that the petition does state sufficient facts to constitute a cause of action against the railroad company. Both companies were sued, the Erie and the Nypano, the Erie being a lessee of the other company.

The petition complains of negligence on the part of the railroad company in that it was running its train, which caused the death ot McCormick, at a negligent and improper rate of speed It complains that there was negligence in not giving proper alarm by the ringing of .a bell and the sounding of a whistle. It complains that there was negligence in not checking the speed ot or stopping the train after it was known, or ought to have been known, that the decedent was in a place of danger, where, if the train could not be checked or stopped, he would be killed or seriously (injured. One of the charges of negligence then, as has already been stated, is that the train was being run at a rate of speed too high and such as made it negligence to so run the train.

There was offered in evidence, on the part of the plaintiff below, an ordinance ot this city, which provides that trains shall not run within the city limits at a greater rate of speed than six miles an hour. Objection was made to the introduction of that, and complaint is made that the court .allowed that ordinance to be introduced.

It is urged that on the whole evidence it is perfectly plain that the train habitually ran over that part of the road at about the rate of speed that it was running on the occasion of this accident. The train, as a matter of fact, was running, at the time of this accident, probably at least at forty miles an hour. It is said that it is perfectly clear that this was the usual rate of speed at that place, and that the decedent knew it to be so. But remembering that one of the charges of negligence is, without reference to what excuse the company had as against the decedent, or anyone representing him, the running at a higher rate of speed than prudence would allow, running at such a rate as made it negligence, the question as to whether the ordinance should be introduced must be governed by whether it bears upon that question.

The court allowed the ordinance to be introduced in evidence, and on page 144 of the bill, the court explains' to the jury just what weight should be given to the evidence, or rather it explains the question upon which the evidence was admissible, and in so charging the jury quoted almost exactly the language ol Judge Johnson in the case of Meek v. Pennsylvania Co., 38 Ohio St. 632, and that language is quoted with approval by our Supreme Court in the case of Davis v. Guarnieri, 45 Ohio St. 470, 485 [15 N E. Rep. 350; 4 Am. St. Rep. 548]. There was no error in the admission of that ordinance as evidence. And the court, in its charge, properly instructed the jury as to what issue, and only what, that evidence was to be addressed.

There were a number of requests made by the defendant below for charges to be made to the jury. All of the requests made prior to the giving of the charge were given, except the first two.

The first reads, “II you find that on the day ot this injury to McCormick while he was on duty on the delendant’s road as track walker, he had no superior with him, but was alone and sole power, control and direction as to the manner and time of pursuing his duties in his then branch and department of service, and the power ot • flagging trains when necessity required if, then I say to you for that time, and in the operaton of train 5 (which was the train causing the death of McCormick) the engineer of said train was a fellow servant with him, and for the negligence of such engineer, the plaintitl cannot recover in this case, and you should find for the defendants.”

That was refused, and properly refused under Sec. 3365-22 Rev. Stat. Said sub-section reads:

“That in all actions against the railroad company lor personal injury to, or death resulting from personal injury, of any person, while in tne employ of such company, arising from the negligence of such company or any of its officers or employes, it shall be held in addition to the liability now existing by law, that every person in the employ of such company, actually having power or authority to direct or control any other employe of such company, is not the fellow servant, but superior of such other employe, also that every person in the employ of such company having charge or control of employes in any separate branch or department, shall be held to be the superior and not iellow servant of employes in any other branch or department who have no power to direct or control in the branch or department in which they are employed.”

These men were not in the same department of service. McCormick had nobody under him; the engineer did have somebody, the fireman, under him. It is clear the court properly refused to give that charge.

The second is, “If you find that at and before the twentj-fifib day of December, 1897, the day of McCormick’s injury, he had knowledge or means of knowing that train 5 on defendant’s road had a schedule time between Kent and A.kron of 33J- miles per hour, and that said train was habitually run over this division, including the bridge in question, at a rate of thirty-three to forty or more miles per hour, then it became McCormick’s duty in discharging his duties as track walker, to take notice of such speed ol said train, and to act and govern himself according to such rate of speed as said train was actually being run, taking such care ol the road and of himself, in going upon, or refraining from attempting to pass over said bridge, as such circumstances in. relation to such fast rate of speed required, and he would have no right to rely on the rate of speed provided for in the city ordinances admitted in evidence, and in such case I say to you you should disregard the ordinance and the fact that the bridge was within the city limits.”

That was refused. The court, in refusing that, said, except lor the last clause it would probably be proper to give it. But, as has already been said, as to the admissibility of the ordinance on objection made, the court properly admitted it, and without stopping to read what the court said,' the court, in its charge to the jury, did properly instruct them as to the effect of that ordinance, and there was no error in refusing to give the request.

The evidence shows that McCormick was what is called a track walker on the line of the Erie road between Tallmadge and Akron; that he was accustomed to walking over this part of the road daily, perhaps more frequently than once a day; that he was entirely familiar with the manner in which trains were run; that trains habitually ran without regard to the ordinance of the city over this part of the road at a rate of speed in the neighborhood of forty miles an hour; he also knew — it was his business to know — as shown by the rules, he must keep track of the trains — it was his business on this occasion to know that the train was late; it was, as a matter of fact, two or three minutes more than two hours late; it was his business to know that. Doubtless, he did know it. So that he went on to this bridge, for he was walking from toward Tallmadge to Akron, came to the bridge at the east end of it and was walking across toward the west end, and he either knew or it was his business to know, that that train was liable to come at any time. The evidence shows that he was muffled up — his ears were probably muffled, it was a cold morning, as already said, in December; the evidence makes it probable, though not certain, that the bell rang and the whistle was sounded at the Tallmadge road, something like a thousand feet east ot this bridge before it reached that road, perhaps 1500 feet before it reached the road that the whistle blew. This man may not have heard it. It is possible that it did not blow, but the probabilities are very strong that it did, and it seems certain that the man who knew that that train was behind time, whose business it was to know it, and did know it was liable to come at any time, going on to that bridge without unmuffling his ears and trying to ascertain in some way whether that train was coming, was guilty of negligence. We think that the evidence is clear that McCormick was negligent at the time he went onto that bridge, so that if he is entitled to recover it is in spite of that proposition of law that he who contributes by his own negligence to an injury is not entitled to recover for such injury.

What was known about it by the engineer running that train, and did he do that which he ought to have done after he knew, or, if he had exercised reasonable care, ought to have known that this man was in this place of danger ? He says that something like six or eight hundred feet, six hundred feet, at any rate, before the place where the man was struck, he saw him; indeed, it must have been further than that, well up toward the Tallmadge road, he saw McCormick; he says that he didn’t know whether he was on the bridge or not. First, he says he was not, but later on he says that he did not know whether he was on the bridge or not. He says that he saw him; he saw him with such distinctness that he saw there was a wrench over his shoulder; it was not snowing; he says it had been snowing, but it was not then snowing; he saw this man on the bridge; he must have been on the bridge or on the approach at the west end; he was killed at a point further west than the west abutment ot the bridge; he was killed within twelve or fifteen feet of the west end of the approach. He says that he did not thereafter see him, and mentions snow as one of the reasons, but later on he says it was not snowing. The fireman says by reason of there being snow on the ground it flew up around the engine, but the engineer says the wind was blowing from the west, and that the smoke trailed down over the train so that he did not see him when they came round the curve. Possibly he meant to say, although he does not distinctly say so, that the front end of the engine would come within the line of vision between him sitting on the right hand of the engine and McCormick; but he says the smoke trailed down over the engine and over where he was so as to interfere with his seeing. He says, however, that he put on the brake; and sounded the whistle, put on the brake. He does not, in his direct testimony, say that he put on an emergency brake, but he does say later on in his testimony that he did all in his power to stop the train. The fireman says nothing about that, and he nowhere says that there was any checking in the speed of the train at all. If the engineer did not understand that McCormick was in a place of danger when he saw him it is a little difficult to understand why he thought it was necessary to do all in his power to'" stop that train or check it. The two young men who were skating nearby, who saw the train, testify about this accident. One of them, and only one of them, says that there was no checking ot the speed of the train. The other, on cross-examination, was asked it he could tell within fifty feet when he saw it whether it was so checked. He said he thought he could, but he didn’t say anything about whether the speed of the train was checked, but the other man, whose name I don’t recall, says there was no checking at all. It has already been ■said the fireman does not say there was, and nobody says there was except the engineer. The result was that the train was not sufficiently checked, at least, to save this man. The evidence shows, and especially by one witness, who was formerly a conductor and perfectly familiar with that line, that at that place and- at that time the speed of the train could have been very materially reduced in the distance between the place where the engineer saw the deceased and the place where the ■engine struck him.

The court instructed the jury properly, that if McCormick was in ■fault, it he was negligent, no recovery could be had here, unless the engineer could have saved McCormick by exercising that prudence which, under the circumstances, it was his duty to exercise; that prudence which an ordinarily prudent man would e¡xercise under similar circumstances. The court charged the jury properly on that.

The jury must have found, ior we think it is certain the jury found McCormick was negligent, that the engineer is mistaken when he says he put on all the appliances that he could to check the speed. IF he did not think the man was in danger there would be no reason why he should put on all the appliances. We think he did see that the man was in danger, but he reasoned with hitnself he would probably get out of the way, and he did not exercise the prudence that he ought, at least, that it is not clear that the jury was wrong in finding that.

Without commenting upon the other errors complained oi, although each one of them has been carefully considered, we find no error (a majority of the court only hold as the opinion is being announced) except on the question of the measure of damages.

Of course, it is difficult to fix a proper amount of damages, but the damages awarded here are such that the interest on the amount of money awarded here as damages would practically amount to as much as this man was earning. The damages were $5,200. He was earning only $1.25 a day; and we think the jury. must have intended to give such an amount that the interest on it would have amounted to his wages, or practically his wages, overlooking the fact ii he kept on earning■ wages to the end oí his lile, the whole amount would then be gone, whereas if he put out the money he would still have the capital left, and overlooking the true measure of' damages, that it should be a compensation for the pecuniary loss. It is said by some authorities— it is said in Hill on damages, and some cases are cited in support of the proposition that we may take into account, of course, nothing for solace, nothing for’wounded feelings, but the care the parent might exercise lor the benefit of his children, may be considered, but taking that into account, and being most liberal, we think the jury awarded damages greater than should have been awarded. In a case where a man was earning $1.25 a day, there could not have been such a pecuniary loss as would have required $5,200 to compensate, and unless the plaintiff below is prepared to remit $1,200 lrom this amount, and accept $4,000, the case will be reversed. Otherwise it will be affirmed. <