author: Scribner, J.

text:
    (Sixth. Circuit — Lucas Co., O., Circuit Court
    January Term, 1896.)
    Before Haynes, Scribner and King, JJ.
    WILLIAM F. SMITH v. GUY G. MAJOR and THE CITY OF TOLEDO.

      Ordinance for licensing show, etc. — Mayor can not revolee license unless expressly thereto authorized—
    Where as ordinance authorizes the mayor to issue annual licenses for carrying on shows etc., at a certain license fee to be paid to nim, but does not provide for a revocation of such license by the mayor where such show etc. is claimed to be improperly ■conducted, the mayor has no power, on complaint being made, to •revoke the license and by virtue of such revocation to stop and interfere with such show, etc., and if he assumes such authority, he is liable in damages for such interference; but a suit for the ■recovery of any part of the license fee paid, against him or the ■city, can not be maintained.
   Scribner, J.

This is a proceeding in error to reverse a judgment rend-ered by the court o£ common pleas in favor of the defendants in error against the plaintiff in error in an action brought by the plaintiff, Smith, against the defendants. The case was disposed of in the court of common pleas upon several demurrers by the defendants to the amended petition of the plaintiff. The plaintiff in his amended petition, set out, in the first place, the existence of the city of Toledo as a municipal corporation, and avers that the defendant, Guy G. Major, was and is the Mayor of said city. There was further set out an ordinance of the city of Toledo, passed on the 22nd of November, 1889, which is as follows:

“Section 1. Be it ordained by the common council of the city of Toledo that section 272 of the Revised Ordinances of the city of Toledo be amended so as to read as follows:
“Section 272. Every person keeping a saloon within the limits of the city of Toledo, who shall give or permit to be given within the building where such saloon is kept or connected therewith, any show, exhibition, musical performanee or concert, shall be required to pay as a license fee for ■such show, exhibition, musical performance or concert by him given or permitted to be given within such building, or building adjoining such saloon or connected therewith, the sum of one hundred dollars for one year, and no license shall be issued for a less period than one year.”

The plaintiff then avers:

“On the 5th day of September, A. D, 1893, said plaintiff, intending to avail himself of the franchises, licenses and privileges intended to be conveyed by the terms of section 272 of said ordinances on such persons as should pay for and receive a license in pursuance of section 272 of said ordinances, paid to the said Guy G. Major the required fee for the same by the terms of section 272 of said ordinances, to-wit the sum of $100, and thereupon the aforesaid Guy G. Major, acting in the capacity of mayor of said city, received from this plaintiff the said sum of $100 and paid the same into the city treasury of said city, and thereupon issued to this plaintiff a paper writing and license by virtue of section 272 of the aforesaid ordinances, of which the ■following is a copy, to-wit:
• “No. - Mayor’s Office.
Toledo, Ohio Sept. 5, 1898,
“Mr. William F. Smith is hereby licensed to have saloon ■concerts for one year from date within city limits, and has ■paid one hundred dollars.
“Guy G. Major, Mayor.”
Then the plaintiff says that:
“On the 5th day of September, 1893, plaintiff under and in pursuance of the license aforesaid, went to a great expense, to-wit: The sum of $40.00, in fitting up his saloon room in order to conduct such concert business, and started to and did conduct the same up to and including the 24th day of January, 1894, and on said day a policeman of said city of Toledo, acting in such capacity, and under the instructions Af said Guy G. Major, served upon the plaintiff á paper writings copy of which is as follows: * * *.”

He then sets up the paper subscribed by the mayor in his capacity as such, in which the plaintiff is notified that said license is revoked by him as mayor. And then he says-that thereupon the plaintiff was prevented by certain policemen of the city, acting under the authority of the mayor, and by virtue of the revocation, as it is said here, of his license, interfered with the plaintiff, and compelled him to-discontinue his saloon concerts, and he says that he was thereby prevented from conducting the business which he had been licensed to conduct. And then he says: “That no part of the license fee, paid as aforesaid for the privilege of conducting the said concert business by plaintiff,, has ever been returned or paid back to him, although he has repeatedly demanded payment of the same from the defendants.” And he says: “By reason of the foregoing' the plaintiff claims a judgment against the defendants in-the sum of one hundred dollars.”

It is averred in the petition that the money so paid by him to the mayor for his license has been paid into the treasury of the city of Toledo. Now the question is — and the sole question: Do the facts stated in this petition constitute a cause of action against the defendants, or either of them? It will be observed that it is nowhere stated or claimed that the city, in any way, or any of its subordinates-by virtue of the action of the council, or in any other manner, interfered with this business of the plaintiff in any particular; but the allegation is that it was the mayor, claiming to act in his official capacity as mayor of the city, who revoked the license and interfered, with the assistance of a-policeman, in preventing the plaintiff from carrying on his-business under the license.

It appears to us, from the facts as stated, that the mayor-had no power or authority to revoke that license. There is no provision of the ordinance cited whereby the mayores invested with any such power. The council passed on ordinance authorizing the license to be given upon payment of the sum of one hundred dollars. The mayor was authorized to issue the license upon the payment of such sum; but it is nowhere provided that the mayor may revoke the license which he has given and forbid the plaintiff from carrying on his business. The council has not, in any manner, so far as this petition shows, taken steps in the premises; they have not, by resolution or otherwise, directed the police authorities nor the mayor of the city to interfere or interrupt or prevent the plaintiff from carrying on his business. The mayor is not, by virtue of his office as mayor, authorized to interfere or intervene and prevent a man from carrying on his business. And as for the revocation paper, the notice showing an attempt upon the part of the mayor to revoke his authority upon the ground that complaint is made to him as to the manner in which plaintiff is conducting his business, no doubt, in a proper proceeding, instituted by proper authority,if the plaintiff was conducting a disorderly place, steps might be taken under the ordinance of the city to repress such disorders as might appear to be chargeable to the plaintiff; but the mayor, upon the mere complaint of a citizen or citizens that the place is disorderly or disreputable, has no authority to send a notice to the party that his license is revoked or withdrawn, and to send a policeman there to break up his business, and for such an act, authorized on the part of the mayor, we cannot understand how the city can be held responsible.

The petition, therefore, shows no cause of action against the city, as it appears to us, and the demurrer of the city therefore, for that reason if for no other, was properly sustained.

Now as to the mayor himself; the proceeding being brought for the purpose of recovering from the mayor the sum of money which had been paid for the license and which he had paid into the treasury of the city, it shows no cause of action against the mayor. The mayor is authorized to issue the license, upon payment of a certain sum of money. It appears from the petition that the money has been paid and the license has been issued, and the mayor has paid the ■money into the treasury of the city. He has not got the money, and he is not responsible for it. He cannot be called upon to return the money which has been paid for the license. The remedy of the plaintiff, if he have any, as •against the mayor, is for an unwarranted and unauthorized interference with the business he was carrying on.

Of course, there would be, perhaps, no responsibility for interfering with the business if the plaintiff was in fact conducting it in any illegal or disorderly manner, justifying the interference of the public authorities with the conduct of the business. But, if the mayor, without proper cause, attempted to exercise the authority of a mayor and directed the police authorities to dose the business and interfere with the manner of its being conducted, he is responsible for such unwarranted interference just as any citizen would be responsible for interfering with the conduct of any private business of any citizen of the municipality. But, what would he be responsible for? For the damages that the party may have sustained by such unwarranted interference in the conduct of his business; not for the money which has been paid into the treasury of the city for this license, but for the damages which had been sustained by the citizen in consequence of unlawful interference with the conduct of his business, whether it was done by a mayor or a mere private citizen.

There is no allegation in this petition of any damage sustained, except in a general way; no facts are shown which would constitute any special damage; the plaintiff simply asks to recover back his $100, or such portion of it as would •cover the unexpired term for which he had been licensed to carry on the business. It appears to us, therefore, that there was no error in the proceedings of the court of common pleas in sustaining the demurrer and rendering judgment thereon in favor of the city and of the defendant Major. The judgment will be affirmed.

B. F. Reno, for Plaintiff in Error.

G. F. Watts, for Defendant in Error.


source: Caselaw Access Project

author: King, J.

license: Public Domain

text:
    (Sixth Circuit — Huron Co., O., Circuit Court
    January Term, 1898.)
    Before King, Haynes and Parker, J J.
    WILLIAM O’HARA v. GEORGE O’HARA AND BRIDGET O’HARA.

      Verbal contract between father and son concerning possession of farm — Specific performance—
    • (1). A parol promise by a father to his son that a farm bought by the father should be the property of the son if he would move on the same and contribute by his services and money to the payment of the purchase price and if plaintiff would, together with his wife, assist the father on his own place on which he then lived, until such farm would be paid for, and which conditions the son performed, will be enforced in equity, and possession'being given to the son, is not within statute of frauds. Courts are quite liberal in giving effect to such contracts between father and son.

      Same — Relinquishing possession of farm by threats of father—
    (2). When such contract was performed by the son and the farm almost paid for, the father by threats compelled the son to remove from such farm, specific performance of the contract will be decreed at the suit of the son, notwithstanding such loss of possession byhim of tbe farm, the son being ready and willing to fully complete the contract.
    Appeal from the Court of Common Pleas of Huron county,
   King, J.

This action was commenced in the court of common pleas •of Huron county, Ohio, setting forth that in March, 18.97, the plaintiff and the defendant George O’Hara entered into ■ a contract, by the terms of which George O’Hara agreed that if plaintiff and his family would move onto certain ’■premises therein described, and would contribute of his services and money and property for the payment of the purchase price of the said farm, and if plaintiff, together with-his wife, would devote their time in assisting the said George-O’Hara upon his own farm which he then owned and until the place upon which plaintiff was to move should be paid for, that plaintiff should have the use of the same during-the life of George O’Hara upon payment of the taxes thereon, and that at the death of the said George O’Hara, who-was plaintiff’s father, the land therein described should become the property of plaintiff. The land was described as. forty-one and one-half acres in the township of New London, in said county. That this contract was performed by the-plaintiff in so far that he and his wife moved upon the-premises; that they worked in accordance with said agreement, and contributed of their earnings, of the produce of' this place and of money which they possessed,until the farm-was nearly paid for, and until the spring of 1895, when the defendant wrongfully repudiated the agreement, ordered, them off the premises,and threatened to eject them by legal, proceedings. They pray for a decree that the contract maybe specifically performed,and that the plaintiff, who in pursuance of the threat of the defendant removed from the premises, may be placed back in possession,and that for the time-he has been out of possession he shall be allowed an account of the rents and profits resulting therefrom.

This contract is denied in the answer, and it is further-claimed that the same was within- the statute of frauds,and. void, because it was not in writing, as provided in said statute.

The first question arising is whether or not a contract was-made, and if so, what its terms were. Th'at some contract-was made is evident from the testimony of all the witnesses, the disagreement being as to its terms. The contract as-. testified to by the plaintiff is substantially as follows:

That in February, 1887, he told his father, the defendant George O’Hara, that his wife’s folks were proposing to give-her $100, and asked his father if he would give him a like sum with which plaintiff would purchase a working team and would rent a farm that he had in view. That his father told him he would go and look at the farm, and see whether it was suitable or not. This'he did,and advised his son that he had better not rent that farm,but said it would be better -to buy one. Plaintiff told his father he had no means to ■pay for it, The father said that he would buy it, and they would work together upon the newly acquired place as well as upon his father’s farm-, and from the produce of both places, the proceeds of the labor of both, they would pay for the new farm. The son should have possession of it and -should pay the taxes, and when it was paid for, he should continue to have the occupation and proceeds upon the payment of the taxes,until his father’s death, when the place should become the property of the son as his share of his ■father’s estate.

The plaintiff’s(wife testifies to certain statements of the defendant, corroborating her husband. Other witnesses testify to statements and declarations of the defendant, -George,upon this matter. In the fall of 1891, or 1892, one George Prosser talked with the old gentleman about buying his apples. The old man told him that Will had some apples,and that he should go and see them and buy them; that Will was in debt and needed all the money he could get, .and that when'he had succeeded in paying for the farm on which he lived, it was to be his. In the spring of 1887, he told Peter Tompkins that he was going to buy a farm for Will, and in the same spring he told George Stewart that he had bought the Golding farm for Will. The same spring he talked with Sidney Hosmer about buying a farm for him, ¡and said that he was buying a farm for Will, but that the witness’ farm had no buildings on, and he wanted a place -with a house. Shortly after this he told the same witness -¿that he had bought the Golding farm; that Will was to work with him until it was paid for,and then it was to be his..

He bought a farm, the lands described in the petition, of one Leonard Golding, and in the course of the negotiations he told Mr. Golding that he wanted to help Will to a farm, to a place to live on; that he and Will were going to work together and to pay for it.

^ This constitutes the principal part of the evidence of the plaintiff relating to the contract itself; but in addition to this are circumstances that Will, at the time of the purchase of the land,was living on a rented farm; that immediately after its purchase he and his family moved upon this farm known in the evidence as the Golding farm; that he con. tinued to reside there, as stated in the petition,until April, 1895, a period of eight years. That during that time he not only worked this place, but worked upon his father’s farm, distant about a mile, a great deal of his time, and that his wife also worked in his father’s house, and many seasons worked out of doors at such work as #she could do. That the produce of the Golding farm, or a large part of it, was delivered to his father,' or sold at the same time as his. father’s crops. That no account was kept between the father and son of the proceeds of these crops. In the summer of 1887, soon after the purchase of the farm, or in the fall, the wife received from her folks the $100 that had been talked of in the spring before, and the son, instead of using it to buy a team as had been suggested, paid it over to Mr. Golding. This is corroborated by Mr. Golding himself, who says he received $100 from William, William made-certain repairs to the buildings and to the fences upon this-farm. He made no valuable or permanent improvements, devoting all he could get off from the farm to pay for it, and not expending money in improvements until the farm-was paid for. The farm, by the joint work of the two men, according to the evidence of the plaintiff’s witnesses, was-substantially paid for in the summer of 1893, or the crops. then on hand were sufficient to pay the balance remaining at that time.

On the other hand, the defendant denies in toto the making' of any such agreement. He says that he bought the place, and rented it to his son Will who moved upon it. He admits that Will remained there for the period named,and he says that he never paid him any rent; that occasionally he-turned over to him certain parts of the produce, but it was to apply on rent, but how much this was the defendant fails to show. How much rent he was to pay the defendant fails-to show, and while he denies that Will ever paid 1100, we think that the evidence clearly shows that-he did. He disputes in some respects the amount of work which Will and also his wife did,but there is no difficulty in finding that the-son and his wife worked faithfully and steadily on both of those farms until the summer of 1893. There is no difficulty in arriving at the conclusion that tbe produce of the Golding farm was contributed to pay the purchase price, and there is no difficulty in determining from the evidence that the contract under which the plaintiff entered upon the possession of these premises, is substantially as testified to by the-plaintiff.

He is supported in that by nearly every fact that is undisputed,and by the testimony of a large number of uncontradicted and unimpeached witnesses.

But it is asserted that this does not make a contract that' a court of equity can enforce, partly because it is within the statute of frauds, and partly because it is said that it is-a trust,and the terms of which the defendant has denied, and in such a state of the issue the court will not carry out specific performance. We remark upon this that courts; have been quite liberal in giving effect to such contracts between father and son. They have been quite universally sustained when they have been proven. They have been sustained upon the theory that they are gifts, but there is. ■more in this case than a gift. There is a valuable consideration passing from the son over to the father, or going into and making up the consideration that was paid for this land.

It is said in the 15th Ohio Reports, page 248, and on page 253:

‘‘Bart performance of parol contracts, especially when the non-execution would operate as a fraud on the rights of the vendor, have repeatedly been enforced in equity,”

And there are a number of cases in which the facts have been no stronger than in the one at bar. In Freeman v. Freeman, 43 N. Y. 34, it is said that:

‘‘A parol promise by the owner of land to ‘give’ it to another, accompanied by actual delivery of the possession thereof to him, will be enforced in equity by a decree for ■specific performance, where the promisee, induced by such promise, has made substantial improvements and considerable expenditures upon the premises with the knowledge of the promisor. ”

In the same case,on page 39, the court say:

‘‘Anything that may be detrimental to the promisee or ‘beneficial to the promisor in legal estimation will constitute a good consideration for a promise, Expenditures made upon permanent improvements, upon land with the knowledge of the owner, induced by his promise, made to the party making the expenditure, to give the land to such party, constitute in equity a good consideration for the promise. The statute of frauds has no bearing upon the -case. If the promise reduced to writing could, under the circumstances, be enforced in equity, it may be, although by paroland cites many cases.

In Lobdell v. Lobdell, 36 N. Y. 326, it is decided that ‘‘a parol agreement between father and son chat if the son will enter upon a certain tract of land and improve it, the father will make him a deed of it, if in pursuance of that •agreement the son enter on the land and occupy and improve it, such a case is not within the statute of frauds.” The court say,on page, 330:

“The promise to convey, as found by the referee, was not a mere voluntary one, but was made upon a valuable consideration, emanating from a loss or disadvantage to the promisee. Pliny (the father) said to Seymour (the son), if you bestow certain work and labor upon this piece of land, I will convey it to you. It cannot be doubted that if, after Seymour has done the work, Pliny refuses to convey, an action at law will lie for the breach of the contract; the consideration is sufficient to support the promise. A court of equity does not require more in this respect than a court of law, except that it will look at the consideration, with reference to its adequacy, in order to ascertain whether the inadequacy is so great as to show the contract fraudulent or unconscionable, in which case it will refuse its aid, and leave the complainant to his action at law. (Seymour v. Delaney, 3 Cow,, 145). On the other hand, ‘if the promis- or, on the faith of the promise, does some act, or enters into some engagement, which the promise justified, and which a breach of the promise would make very injurious to him, this equity might read as confirming and establishing the promise in much the same way as a consideration for it would’. (3 Parsons on Cont,, 359; Crosbie v. McConald, 13 Ves., 188.) In Shepherd v. Bevin (9 Gill., 32), it was held, that money expended in improvement of land, by a son, on the faith of an agreement of his parent to convey the land to him, constituted a consideration for which specific performance might be decreed against the heirs of the parent. ’’

And the court further say, referring to the case before them:

“To permit such other party or his heirs now to withdraw from the performance of the contract, would aid a manifest fraud against the plaintiff. (Parkhurst v. Van Cortland, 1 Johns. Ch., 284; Malins v. Brown, 4 N. Y., 411; 2 Story.Eq., sec. 795.)”

In Bohanan v. Bohanan, 96 Illinois, 591, father and son, both married, were living together upon the father’s farm. A disagreement arising, the son proposed to remove to another state, the wife’s father offering him $1,000 to aid him in so doing. The plaintiff’s father, not wishing the son to move away, and as an inducement for him to remain, offered to purchase for him a certain tract of land in the neighborhood. The son accepted this proposition, abandoned his contemplated removal and relinquished the $1,000 offered him by his father-in-law. His father purchased the land as he promised, but took the deed in his own name. The son went into possession under the contract, repaired the house and the fences, made gates, put a pump in th9 well and made improvements of like character, and raised a crop upon the land, but before his family had come into the occupancy, he died. A bill was filed by his children and heirs at law to compel a conveyance of the land by their grandfather, and it was held that the relinquishment by the son of the $1,000 offered him by his jvife's father, on abandon-' ing his proposed removal,was a sufficient consideration for the promise of the father to convey the land, and having taken possession under that promise, he was entitled to a conveyance. The court say on page 598:

“A. parol promise to convey a tract of land,"^flfiade by a father to the son, may be enforced in equity, where the son has taken possession of the land under the contract and expended money in making lasting and valuable improvements. Such a promise rests on a valuable consideration. ”

In Smith v. Yocum, 110 Illinois, 142, a father made a verbal agreement with his son that if the latter would remain in the state and go upon and live on an eighty-acre tract of land of the former,and improve it, it should be the son’s on the father’-s death, the son to pay a certain share of the crops during his father’s life, which contract was performed by the son, and it was held that the acts of part performance were sufficient to take the case out of the statute of frauds, and a specific performance after the father’s death was properly decreed as against the other heirs. The circumstances of that case are a good deal like those in the one at bar, except that before the question of its enforcement arose the father died.

In Irwin v. Dyke, 114 Illinois, 302, there was a somewhat similar agreement between father and son. The father was living upon a rented farm,and he proposed that his son should come and live upon the same farm, and they would work together,and as soon as they got money enough they would buy a farm and it should belong to the son. The son came and lived with the father for four years, his wife doing the house work and he the farm work, when the father and another person purchased 200 acres of land, taking a deed to themselves jointly. They made a cash payment of about half the consideration,and gave promissory notes for the balance, and the son and the third person took possession of the farm by moving upon the land. ' They made a verbal division of it between them,and occupied it until the commencement of the action. The following year the father died. Of the purchase money remaining unpaid at the time of the purchase by the father, the son paid a part. The only consideration which the son parted with was about four years of work and the payment of about $1,200 in money out of a consideration of $3,500 for the undivided half of this property. Of the balance of . the consideration the father had paid $2,000. The proof in the case consisted largely of the declarations of the deceased father to the effect that his son had four.years of work in the land, which the court said was a recognition that the purchase of the land was for Lewis in fulfillment of some agreement to buy a farm, and the court say,on page 306:

“That it was on the faith of the agreement that he should have the land that Lewis rendered the services which he did for his father,moved upon and lived on the land,making some improvements, and paid a considerable portion of the purchase money which his father agreed to pay for the land, as much as |1,200 of it. We think this brings the case within the rule of repeated decisions of this court, that where a father makes a verbal agreement with a son to convey to him a tract of land if the latter will go and live upon the same, make expenditures upon and improve it, and this is done in reliance upon the promise, a court of equity willenforce a specific performance of the agreement” —citing many Illinois cases.

These authorities are sufficient, we think, to enable us to hold that an agreement like the one shown tp have been made here will be enforced by a court of equity, It would be unconscionable to refuse to enforce it. This son gave his entire services for a number of years,and the result of those services went towards carrying out explicitly the agreement that had been made between him and his father, and from which he reaped no benefit unless he was thereby acquiring an interest in this land.

There is an additional fact which it is claimed operates to prevent the enforcement. In the summer of 1898, the father and son had a dispute, and the father then said to the son ‘‘I want you to pay me rent for that farm over there,or you will have to get off it.” ‘‘You will have to pay rent hereafter” is the language of some of the witnesses, The son said he would not pay rent, insisted that the agreement was that he was to work as he had and as he was willing to do, and the farm was to be his. The father was obdurate and refused to yield the position which he took. The conversation took place in the harvest field on the father’s home place, He continued to work on his father’s farm until the season’s work was done up, when he afterwards refused io go over there and work any more, but he remained upon the place where he was living until the spring of 1895, at- which time his father ordered him to leave, and threatened him with a suit to put him off the premises if he did not leave. The son thereupon went and rented a place and moved upon the rented place, and abandoned this one in pursuance of that threat.

Andrews Bros., for Plaintiff.

Stewart & Rowley, for Defendant.

It is said that prevents him from maintaining this action, because he is out of possession, We do not so look at it. He simply obeyed his father’s express direction, notice and order to leave these premises. He would not thereby, we think, forfeit his interest in the property. If he had up to that time executed the contract upon his part, and if he was still ready and willing to complete its performance, we think that his moving away from the premises would not forfeit his right to have the contract still performed. He was in ignorance of his legal rights, but that does not prevent him from having those rights enforced,

We are of the opinion that he is entitled to a specific performance of this contract substantially as it was decreed by the court of common pleas. We think for the time he has been out of possession, to-wit, three years, he is entitled to recover the rental value of these premises at $80 per year, less, however, the amount, which is not before us, that the father has in the same time paid as taxes upon the property, and a decree will therefore be drawn in accordance with this opinion, defendant to pay the costs of this action.


text:
    (Sixth Circuit-Lucas Co., O., Circuit Court
    Jan. Term, 1896.)
    Before Haynes, Scribner and King, JJ,
    JOHN HAWKS v. THE LAKE SHORE & MICHIGAN SOUTHERN RAILWAY COMPANY.

      Railroad brakeman injured through fault of fellow brakeman—
    ■Where a brakeman is injured by the fault of a fellow brakeman in giving a wrong signal to the conductor, who, in obedience to such signal, gives also the wrong signal to the engineer on the locomotive, in consequence whereof plaintiff was injured, the Railroad Co. is not liable for damages.
    Error to the Court of Common Pleas of Lucas county.
   Scribner, J.

This action is prosecuted to reverse a judgment rendered in the court of common pleas in favor of the Lake Shore and Michigan Southern Railway Company, John Hawks brought suit against the Lake Shore & Michigan Southern Railway Company claiming in his petition that he had been injured in one of his hands by having it crushed between the draw-bars of two cars which he was attempting to couple. He alleges therein that while he was in between the cars and attempting to make a coupling, to the knowledge of the conductor having charge of the train which he was making up, while he was attempting to pull out a pin, which had in some way become fastened, that “the said conductor carelessly, wrongfully and negligently directed the said engineer to start his said engine and the said train of cars back; and that the said engineer carelessly, negligently and wrongfully under the order of said conductor backed his said engine and the said cars, whereby and by reason of the carelessness and negligence of the said conductor and the said engineer in backing up the said train at the said time, and without any fault on the part of the said plaintiff, the said plaintiff’s right hand was caught between the draw-bars of the said two cars that were to be coupled,and mangled and crushed.”

Tbe case was tried in the common pleas to a jury, who found against Hawks. It is claimed that judgment is not supported by the evidence, and that the court erred in tbe submission of the fourth request asked by the defendant below.

We have read the evidence in this record, all of it, carefully; some of it more than once. We should have first said that they were engaged in making up a train in the Lake Shore yard, It appears from the testimony of the plaintiff below, Mr. Hawks, that the engine was attached to a train of cars, fifteen or twenty, on one of the switch tracks, and it was proposed to attach it to some cars which were standing on another track. There was, standing on another track, a string of ears, coupled together, ten or fifteen in number; and there was also, some distance beyond, a string of cars — -three other cars — coupled together, and it became necessary to attach all of these cars into one train. The engine with the fifteen or twenty cars attached, pulled out of the side track it was on, on to a lead track, and then backed down on the other track on which were standing these cars. The first cars to be reached were the ten or fifteen cars, and for that purpose a brakeman by the name of Whistler was dispatched to that point to make the coupling. At the same time Mr. Hawks and another brakeman, named Ginneman, were bent together down to make the coupling when the first standing lot of cars should be backed down to the three ca^s. Hawks and Ginneman went down there. It was some little distance from, where the train would come in on that track. They went first to the long string of cais and took out the link which was in there, and then went down to the three cars,, and there they found that the pin had - become bound, and it was difficult to get it out; that it didn’t come out readily, and they didn’t get it out. The engineer backed his train down on this track, and Mr. Whistler, who was at the first batch of cars, gave his signal for the trains to back down to make the coupling. Mr. Hawks testifies in relation to his part of the transaction, that he went in there, and he says that he and “Andy” — -that is Ginneman — hammered at the pin and couldn’t get it out. He says: “He pulled up about that time — he was backing in on No. 4; he struck them pretty hard, I will admit that, and they come down and struck these three cars and bounded away,so that it left a space of four or five inches; my hand would go in easily between the two drawbars. I walks out and swings down the conductor — J couldn’t see the engineer.”

‘‘Q. Just give the signal that you gave the conductor, mow? (And the witness gave the signal.)
“Q. What did the conductor do? A. He answered me.
‘1Q. State whether he repeated it to the engineer or not ? .A, He answered me on that corner where I should judge be could see the engineer.
“Q. Then what did you do? A. I went in. I thought it was just as safe as if I was at home. I went in to put ■my link in the draw-bar.; by that time Andy says ‘Look ■out.’ I jerked my hand out just that far, and these three fingers were gone, he heard them strike above”--and the mars came together and struck him.

That statement is made by Mr. Hawks, and substantially corroborated by Mr. Ginneman, who was also » witness; and it turns largely, of course;' upon the statement of Mr. Hawks, that when he found that they were backing down this train upon him, and that he couldn’t get out the pin, he went out and gave a signal to the conductor to stop— which I presume meant also the train was then at a stop, to bold it there until some other signal should be given. The •conductor, of course,knew that he had gone down there for the purpose of making that coupling.

Mr. Winslow was also a brakeman on the same train, and he was called by the plaintiff as a witness and testifies in bis behalf, and after describing the first part of the operations, "he says that: ‘‘When the cars came down first, he was near the engine attached to the train, and Mr. Whistler ■tried to make the coupling and didn’t make it, and thereupon, of course, the engine and cars attached would come vto a full stop.” Mr. Winslow says: ‘‘Mr. Whistler tried to •make the coupling of these fifteen cars that stood in beyond there; he missed the coupling, and they ran down to the other cars and stopped; then I saw. Mr. Hawks step in to make this coupling.

‘‘Q. Then what was done? A. Mr, Whistler came out and gave a signal to back up.
“Q. At that time, were the cars standing still, or not? A. The cars were standing still when Mr. Whistler came out and gave the signal to back up.
“Q. When he gave that signal to the conductor, what was done? A. Backed the cars up.
“Q. Did the conductor repeat the signal to the engineer ? A. Yes, sir.
“Q. Did you see him do that? A. Yes, sir; I stood right alongside of him at the time.
“Q. When he repeated the signal to the engineer, what did the engineer do? A. He backed the cars up so that Mr. Whistler could make the coupling.
“Q. What happened after that? A. Mr. Hawks came', out from the cars acting very queer; when I got up close: by him we could see that he was hurt.
“Q. Did you see the cars run down to those three cars?. A. Yes, sir.

It will oe observed from Mr. Winslow’s testimony that: he does not describe the signal which Hawks says he gave- and which Gfinneman says he thinks Hawks gave (for he-saw the first part of it) to the engineer to stop the train,, but he says that the train was backed down at the time-Hawks was stru-k, by the signal of Whistler only, Whistlerbéing ready to make his coupling and having failed at the-first attempt, he gave a signal to back again, and thereupon: the conductor repeated that signal to the engineer,and the engineer obeyed it, and then it was that Mr. Hawks was injured.

The conductor tells a little different story from either one of these two — a little different as to the signals that he claims were given.

Mr. Swartz was a brakeman also on the train, and he was stationed at the switch. This train came in on the lead track, and a part of it stood at that time on that track, and there was a bend in this switch track so that a person on the north side of the train could not see the engineer, and so the conductor was stationed outside of the bend, to re peat the signals. He says that Swartz was standing near the switch; he was the farthest west.. Mr. Fox says, that he stationed Mr. Swartz there to receive his signals.

“Q. Was that on the engineer’s side, the north side, the engineer’s side of the engine? A. Yes, sir.
“Q. And the engine was west of you? A. The engine was west of me.
“Q. Really then, it was backing up? ' A. Yes, sir..
“Q. Mr. Whistler came out and gave you the slow signal, or stop signal, what was done then by you? A. I repeated that to Mr. Swartz.
“Q. Could you see the engine or the engineer from the place where you stood ? A. No, sir.
“Q. What was done then? A. Mr. Swartz repeated it to the engineer.
“Q. Then what was next done? A. The cars were checked up as soon as the engine could check them.
“Q Did Mr, Whistler make the coupling? A. No, sir; he missed the coupling.
“Q. After the first contact, what became of the engine, or train; did they keep on moving, or come to a stop? A. The cars that the engine had hold of came to a stop.
“Q. What became of the fifteen cars the coupling of which Mr. Whistler missed? A. They moved down a ways.
“Q. Did they come in contact with the cars below — the three cars below? A. I couldn’t say.
“Q, What next was done? A. We backed up again for Mr. Whistler to make the coupling.
“Q. Who, if anybody, gave the signal ? A. Mr, Whistler gave the signal to me to back up again to make the coupling.
‘■Q. Where was he when he gave you that signal A. He was standing there at the end of the cars, ready to make the coupling.
“Q. Where was he: at the west end of the fifteen cars, or at the east end? A. At the west end.
“Q. To whom, if anybody, did you communicate that signal? A. To Mr. Swartz.
“Q. Just describe to the jury how the train was backed? A. It was backed up very easy when the coupling was made.
!‘Q. And backed in on whose signal? A. Backed in on Mr. Whistler’s signal.
‘‘Q. Did Mr. Whistler make that coupling? A. He made it the second time; yes,the second time.
“Q. Do you know Mr. Winslow? A. Yes, sir.
“Q. Did you see him there? A. Yes, sir, he was there; but I don’t know exactly what place he stood.
“Q. Was that one of the switches for him to throtv? A- Yes, he was on those switches along there.
“Q. I will ask you to state to the jury whether Mr. Hawks or Mr. Ginneman — or what, if anything, transpired with reference to this, next after Mr. Whistler made the coupling; just go on and state from that item on, what occurred? A. After Mr. Whistler made the coupling, if I remember right, I believe there was a signal given by Mr. Ginneman, a back-up signal, to make the coupling at the lower end.
“Q. That was the second coupling? A. The second coupling, yes.
‘‘Q. Do you remember whether that was Mr. Ginneman or Mr, Hawks that gave that signal to slack back? A. I think it was Mr. Ginneman.
“Q. Who was the signal given to? A. The signal — I suppose the signal was given to me, but Mr.0 Whistler took the signal and repeated it to me.
”Q. To whom did you repeat the signal? A. To Mr. Swartz.
‘‘Q. Was the engine then backed on that signal? A. Yes, sir.
‘‘Q. Then what next occurred? A. The engineer backed the train down a little ways; the next I saw the signal from Ginneman to stop the train.
“Q. On what side was he when he gave that? A. On the north side.
“Q. You may state whether or not Mr. Hawks came out from between the cars and gave you a signal to stop the train? A. No, sir, I didn’t see no signals given from the lower end to stop the train until Mr. Ginneman gave the signal, as I have stated.
“Q. How soon after that did you see Mr. Hawks? A. Why, very shortly afterwards. Mr. Hawks came walking up, Mr. Hawks and Mr. Ginneman.”

Mr. Fox in his story was substantially corroborated by Mr. Whistler, and probably by Mr. Swartz, so far as he saw; and there we have substantially the three stories which were given to the jury with reference to these signals: First, the claim of the plaintiff, that he distinctly gave a signal that the train should be stopped and he held, so that he might make that coupling, or might get the pin out and get it arranged to make the coupling. Second, the story of Mr. Winslow, that he didn’t give any such signal, but that the signal upon which the train was backed when Hawks was injured, was given by Mr. Whistler, a fellow brakeinan. Third, the story of the conductor, who says that there was a signal given by Mr. Ginneman, he thinks, who was with Hawks, but it was a signal to back up, and that he repeated that signal to the engineer,and the engineer then backed up.

There is also a little more evidence, going to show that shortly after the accident Mr. Hawks made a statement of how he was injured, in which nothing appears as to his giving a signal to the conductor J;o stop the train; and upon that evidence the jury found a verdict for the railway company.

I will say that we have examined this record very carefully, and we are not prepared to say that the jury were not warranted in finding a verdict in behalf of the defendant. Certainly, if the story of the conductor is to be believed, he was-not at all to blame. If he received a signal from Hawks, or from the man who was with him, engaged in the same identical work, to back up the train, and he repeated that signal to the engineer, he did just what it was his duty to do; he was nowhere near Hawks, and it is not pretended that he knew anything about the fact that the pin was stuck in the draw-bar. He knew, or ought to have known, that Hawks was down there to make that coupling, and if he had any information from him that there was anything the matter, of course it was his duty to obey that information and stop the train, and not to back it up; but he received the information from Hawks or his partner that the train should be backed up, he would be justified in submitting that signal to the engineer and backing the train-up. And I think also, if the testimony of Mr. Winslow be true, that the company would not be liable. His story is that the signal was given to back up the train by the giving of the motion employed in their method of working. It was Mr. Whistler, who was a fellow brakeman, who gave it, although Whistler didn’t know at the time anything about Hawks’ trouble with the pin; yet whatever he did in that respect, the company would not be liable for, there being no evidence to show that the conductor had any notice or knowledge that Hawks was in any trouble about releasing the pin. Of course, if the claim of Mr. Hawks be true — that he gave a signal there to indicate to the man managing the train that he couldn’t get the pin out, and that the train should be held, then, of course, it would be the duty of the conductor to obey the signal. But we do not discover anything from this testimony which would justify us in setting aside this verdict.

There is an exception to the fourth request. It is, possibly, objectionable, but we think it relates to the omission of matter which might have properly been inserted in it, and which the plaintiff should have availed himself of by a request to the court to further charge.

The request was:

“4. If the jury find now from the evidence, that injury to the plaintiff resulted from the negligent act of Mr, Whistler in giving the signal to back, and on such signal the train was backed, and the plaintiff was injured in consequence of such negligent act of Whistler, then there can be no recovery in this action”

That is true. The testimony of Mr. Whistler makes that kind of a case, substantially, and in view of the testimony of Mr, Winslow as well, I think that request is proper, and the court would not reverse the case on that ground,

H. Scribner, for Plaintiff in Error,

.27, D. Potter, Jr., for Defendant in Error.

The judgment will be affirmed.


author: Price, J.

text:
    (Third Circuit — Putnam Co., O., Circuit Court
    March Term, 1898)
    Before Day, Price and Norris, JJ.
    WILLIAM J. VARNER et al. v. ASA VARNER et al.

      Contest of will — Admissible evidence — Former will, when admissible — •
    (1.) In an action to contest the validity of a will on the ground of mental incapacity, and also of undue influence exercised by a son with whom the testator resided, it is competent to introduce a former will of the testator in which a much less devise was made to such son; and to meet the effect of such testimony and account for a different provision in the last will, it may be competent for defendants to introduce a will executed by the wife of the testator to his knowledge, prior to the execution of his last will, in which she disposed of her property to children other than said son. But it was not competent for defendants to prove a division of property made by her, subsequent to the making of the husband’s last will, whereby she gave nothing to said son, even if such division corresponds with the provisions of his will.

      Same — Photograph of testator inadmissible to show incapacity — ■ (2.) On the trial of an issue of testamentary capacity, a photograph of the testator is not competent evidence as tending to prove or disprove testamentary capacity.
    Error to the Court of Common Pleas of Putnam county.
   Price, J.

Tbe case in the lower court was brought, by the plaintiffs in error to contest tbe will of Jacob Varner, deceased, who was the father of the parties to tbe action.

The will was executed on the 3rd day of July, 1889, and the grounds of contest set out in the petition and made the issue at the trial are two, viz: — First. That tbe testator was not of sound mind and disposing memory when he execut» ed the will.

Second. That it was the result of undue influence exercised over the testator by Asa Varner and his wife.

The jury sustained the will,and error is prosecuted to reverse the judgment rendered on the verdict. The charge of the court must have been satisfactory, as no exception Was taken to any part of it, and while the plaintiff submitted certain charges which were requested to be given to the jury, we find no error in their refusal, and they are not of sufficient importance to warrant their discussion now.

Objections were made by plaintiff to very many questions propounded to witnesses for defendants, which the court permitted to be answered,and its rulings upon the same are assigned for error. But, after a careful consideration of the questions thus raised, we see no error in the record except upon two branches or classes of testimony introduced by the defendants in support of the will. As to all other points raised, we uo not regard them of interest to the profession at large, and will give them no room here.

But the two subjects referred to, seriously involve the rights of the parties and deserve more than a passing notice.

(1.) The plaintiffs introduced aformer will executed by Jacob Varner,in which he made a disposition of his property very different from that contained in the will now in controversy, and Asa, defendant, was the beneficiary by the change of the testator’s mind. By the former will he would have received but a very moderate portion of the father’s estate. By the provisions of the present will, if it stands, he will receive the bulk of the estate.

The former will was competent evidence to show not only a radical change of mind within a brief period, but also, that as the testator resided with Asa, it might tend strongly to support the charge of undue influence over the testator, exercised by his son.

The defendants, in meeting the effect of this evidence produced a witness John Beard, who had written a will for the wife of Jacob Varner, the mother of the parties to this action, which will was executed prior to the date of the first will of the father, and in which the mother recognized Asa, in a liberal legacy,in fact giving him most of her property. This will had been destroyed, and Beard, was allowed to testify to its contents. To this plaintiffs excepted. The defendants also introduced the second will of the mother, executed in the year 1888, prior to the will now involved, wherein she cut Asa off with but one dollar.'

The record contains evidence tending to prove that the provisions of the latter will of his wife had come to the knowledge of Jacob, the father, at the time he executed the will now in contest. Another fact appearing in the record is, that not the best of feeling existed between the father and mother of these children when the several wills were made.

In the light of these facts, we think it was competent for the defendants to show the disposition the mother made of her property, especially as to Asa, in her will of 1888, because it would tend to account for the provision as to Asa in the will of the father executed in 1889, wherein he was devised the larger part of the estate. A motive could be thus found for the difference between his former and latter wills, and to reason, that, because the mother had cut Asa off, and, that it was his duty to so change his will as to protect him, reflects on the testamentary capacity of the father in the provisions of his last will and testament.

So far we find no fault with the admission of evidence.-

But defendants were not content with the latitude allowed them, and under the name of “further cross-examination,'’ William J. Varner and other plaintiffs were called to the stand by defendants, and asked the value and extent of the mother’s property in 188? and 1888. This examination should not have been permitted. If Jacob, knowing the nature of his wife’s will, changed his in 1889, he did it, we assume, knowing what property she owned and how she disposed of it, and the reasons or motive which operated on his mind then, was the object to be shown, and not a value placed upon it by witnesses on the trial many years thereafter.

But if we let this pass, we find another advance through the door thus opened.

Under the guise of “further cross-examination,” the plaintiffs were further inquired if regarding a family meeting held at the residence of Isaiah Varner in the year 1891, when the mother made a division of her property among the children other than Asa. This was a transaction about two years after Jacob had executed the will in question.

The following questions were answered over objection:

“What amount did she divide up among the children?”
Answer: “ I think each one got somewhere in the neighborhood of $300 at that time.” Ques. “And which ones did she leave this to?” Answer: “Well, all that were there.” Ques. “Well, Asa was not there?” Answer. “No, Asa was not there. ” Ques. “And he didn’t get anything you know of ?” Answer. “Not at that time. ”

Each of the plaintiffs was asked how much he or she received at this distribution.

In the first place, it is not easy to see why the right to ask these questions was labeled “further cross-examination”.

The plaintiffs had not entered upon such inquiries, and they had no right to do so,and the evidence was clearly incompetent whether given as defensive,or under the name of “further cross-examination.” It is not enough to say that the purpose was to prove that the distribution was made according to the will of the mother executed in 1888. If that be so, how could that throw light on the mental capacity or motives of Jacob, when he signed his will in 1889?

If this distribution was known to Jacob, in 1891, when it was made by his wife, all that can be said of it is, that he saw no reason to alter his will, and the argument amounts to the claim that because he did not change his will, he therefore was of sound mind when he made it two years previous.

From every point of view we consider the evidence incompetent and its admission substantial error. If it was legitimate to show what the plaintiffs received from their mother two years after the date of the father’s will, it would also be legitimate to prove that plaintiffs received gifts from others, or by economy and thrift, had acquired wealth and did not need the bounty of tbeir father.

Akin to this class of testimony was an inquiry made of Asa, when on the stand as a witness to sustain the will. Ques. “What, if any money or other valuable thing ef any kind did your mother give you?’’ Answer: “She'never gave me anything.”

This and the other was not merely innocent or harmless testimony, but calculated to count and weigh with the jury, and lead them to ignore the question at issue, and conclude, that after all, Asa had fared badly with his mother, and the father’s will;was about right whether he was competent to make it or not.

(2.) The defendants, to further sustain the will,introduced a photograph of the testator,, taken at Gflandorf in the summer of 1891, about two years after the execution of the will. The evidence about this, outside the picture itself, is very meager, as given by Asa on pages 472 and 473 of the record. It was taken by an itinerant artist, or, as Asa puts it, “it wag taken in a gallery that traveled on wheels from one town to another.” He produced the photograph,and as1 an. exhibit, it was afterwards put in evidence, over the objection of the plaintiffs. ' There is no evidence from any source as to the accuracy of the picture,or to what degree it resembled the old gentleman either at the'time it was taken, or at the date of the will.

We have been told by counsel for defendants, that we should take judicial notice of the progress and development of photography, and that in the present advanced stage of that art, correct likenesses are produced. It is true that courts will take judicial notice of the advance in this art, but it may be as well known judicially, that the best of artists do not go about from village to village in movable galleries; and it might be added, as common knowledge, that the accuracy of the likeness depends on the skill of the artist, purity of chemicals and other materials used — condition of the light and shade, and many other attendant circumstances.

Hence, we say, that if the issue in this case is one in which photographic evidence is competent, the preliminary proof should be made, that the picture fairly represents the person and features it purports to represent. It is settled beyond dispute, that in proper cases, maps of places, photographs of places — scenes, lands,machinery, of persons as to identity may be introduced to aid the jury in applying the other evidence, just as an actual view of premises or machinery may be allowed to enable the jury to understand evidence to be given on the subject in controversy. But their introduction must be preceded by some proof of the correctness of the map or the photograph, for there is no legal presumption that they are correct.

Counsel for defendants cite some cases against this position, but they are outweighed by a large number of well considered adjudications in different states.

In support of our view, we are content to cite a few authorities which discuss this class of testimony.

Rice on Evidence, Sections 455, 457, 459; Conley v. People, 83 N. Y. 464; People v. Buddensick, 103 N. Y. P. 509. Blair v. Peldham, 118 Mass., 420; Com. v. Coe, 115 Mass., 481, 8 Am. St. Reps., 894-5; 35 L. R. A. 803, and cases there cited.

But on the issue of testamentary capacity,as in.this case, is a.photograph of the testator admissible, even if shown to be a perfect likeness? The claim that it is, seems to us an anomaly. A photograph is a picture of some material, substantial thing — place—'Scene—some physical object; but we know of no claim of science or the art of photography that a picture or likeness can be taken of the intangible, immaterial mind. The most devout believer in the efficacy of the X rays has never urged them as a means of discovering the mind or any of attributes.

This photograph was passed to the jury for inspection,and they were asked for the time being, to become psychologists and mind readers — to determine from the looks and features portrayed, the degree of mental capacity and the power of the disposing memory of the subject of the picture; a class of evidence impossible of cross-examination,and making impressions on jurors beyond the touch or reach of argument.

There is no case we can find which approves of the use of a photograph as made in this case, and there is no sound reason to sustain it.

But it is urged, that if it was error to admit the photograph, and error to admit the distribution made by the mother above noted, they were immaterial errors, for which the judgment should not be reversed. We would gladly accept that view if it is sound But it is not sound. The errors were gross. The evidence was grossly incompetent,and admitted after arguments of counsel as to its competency, and the court sanctioned its admission, which of itself, would impress the jury of its importance in the case. And our experience enables is to conceive what use could be made of such evidence by learned and eloquent counsel.

It does not devolve on plaintiffs in error to show that such errors influenced the jury and were therefore prejudicial. It will be presumed that error is prejudicial unless the whole record shows to the contrary.

Handy & Ogan, for Plaintiffs íd Error.

Watts & Moore, and Bailey & Bailey for Defendants in Error.

In the case of Peter P.Lowe v. Geo.Lehman 15,Ohio St. 179,our Supreme Court lays down this rule:

“Where the record shows that the court below misdirected the jury, or admitted illegal testimony as to a point “material to the issue, it is not necessary, in order to re- “ verse the judgment, to show that the jury were in fact in“fluenced thereby. Such influence will be presumed.”

See also case of Globe Insurance Co. v. Thomas Sherlock et al., 25 Ohio St., 50.

On the competent evidence in the record, the case was a close one, and the jury might be justified in finding for or against the will. Hence, the necessity of guarding against the effect of improper testimony. On account of previous trials and the great expense of another, we regret very much to reverse the judgment. Nevertheless it must be done.

For the errors pointed out the judgment is reversed and cause remanded for a new trial.


author: Soribner, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan. Term, 1895.)
    Before Haynes, Scribner and King, JJ.
    FREDERICK W. SIEK v. THE TOLEDO CONSOLIDATED STREET RAILWAY COMPANY.

      Street Railroad — Rights in street as against other vehicles—
    (1). A Street Railway Co., for the operation of its cars along the public streets, has certain rights different from those of the general public using the same streets. One of the public has a right to drive his team and vehicle upon the track, and to pass along it lengthwise of it, as well as to cross it at the intersections of streets. But the right of such person to he upon the track, and to pass along it, is abridged. The street railway company has the exclusiv» right to such part of the track, al any time its cars are passing or just about to pass, and all others then upon such track are then and" there bound to leave it to the unobstructed use of the company.

      Same — Common use of trade by cars and other vehicles—
    (2) . The track of a street railway is susceptible of a common use of the street railway and those of the public who are using the track with their vehicles, so far as that, when the cars of the ; company are not upon it, it may be occupied with a team and vehicle uf the ordinary kind. Yet, as the power to make the track clear for the use of the street railway company, is solely with the individual temporarily occupying it, and as his right to use it is only when it is clear, there is upon him the duty of using reasonable care, skill and diligence to keep such traca clear, free, and unobstructed by his vehicle for the use of the street railway company.

      Same — Measure of care required—
    (3) . The movement of cars by electricity along the streets of a city is attended with danger, and renders a higher measure of care necessary, both on the part of the street railways and those using the streets in the ordinary manner. It is the duty of the railway companies to be watchful and attentive, and to use all reasonable precautions to give notice of the approach of their cars. On the other hand, new appliances, rendered necessary by the increase in business and population, impose new duties upon the public. And it is the duty of the public using vehicles upon the street, to use reasonable care to avoid unnecessarily obstructing or occupying the tracks of street railways in their opperation, and to avoid collisions between such vehicles and such street railway cars.

      Same — Sounding gong—

    (4) . If plaintiff heard the warning bell or gong of the street railway car, or by the exercise of reasonable care and diligence might have heard it, then it was his duty to exercise reasonable care . and diligence in leaving such track for the passage of the street railway car, in time to avoid a collision.

      Same — Covered carriage — Care required—
    (5y. A man driving along a street railway track in a covered carriage is not excused fiom the fact that he is in a covered carriage, from looking back to see if cars are approaching him from behind. He is bound to know that cars are liable to approach from behind him as well as from the other direction; and it is as much his duty to look in one direction as in the other.

      Same — Speed of cars—
    (6). The Street R. R. Co. is not limited to run its cars upon astree^ at no greater rate of speed than the rate of speed of other vehicles for carrying passengers, drawn by horses in the absence of an ordinance to the contrary. But in the absence of any ordinance regulating the ^speed of - street cars, all that would be required of these companies would he to use ordinary and reason' able care, in reference to the existing circumstances, in the runing of their cars.

      Contributory negligence — When not excuse for failure to use proper care — Party not ‘ ‘bound” to know danger of other—
    (7). If a party negligently exposes himself to danger and is injured, and the party who injured him observed the danger, the latter should govern himself accordingly so as to avoid injuring the other,otherwise the party committing the injury may be liable notwithstanding the negligence of the party injured; but a party is not liable in such case upon the doctrine that he “ought to have Known” that such other party was acting negligently. lhere is no duty imposed upon a person who is lawfully pursuing a legitimate business in an ordinarily careful manner, to know that somebody is exposing himself to danger.
    Error to the Court of Common Pleas of Lucas county.
   Soribner, J.

This is a petition in error by which it is sought to reverse a judgment of the court of common pleas rendered in behalf of the defendant in error here, in a case brought in that court by the plaintiff in error against defendant in error. The cause of action is stated substantially in a single paragraph of the petition, which I will read: After reciting that the defendant was a corporation organized and existing under the laws of the state of Ohio, and that at the time of the grievances complained of in his petition, the defendant owned and operated a system of street railway for the carrying of passengers in the city of Toledo, Ohio, and that one of the railway tracks of said system extended in and along the roadway of one of the public thoroughfares of said city known as Lagrange street, from Bancroft street to Champlain street, over which track cars are propelled by electric power, the plaintiff proceeds with these averments:

“On the 16th day of March, 1891, plaintiff at about the hcur of 6.30 o’clock A. M. of said day, was driving his horses and wagon on said Lagrange street from said Bancroft street towards said Champlain street. Said wagon was loaded with breadstuffs. At said time one of the cars of said defendant, known as No. 5, in charge and under control of said defendant's agent, was traversing said track from said Bancroft street towards Champlain street, at an unlawful rate of speed, while plaintiff was cautiously and carefully driving his said horses and wagon as aforesaid, said agent and employe of defendant did at or near the intersection of Seneca street with Lagrange street, carelessly, unlawfully, negligently, and forcibly run said car against the rear end of said wagon, overturning the same, spilling and destroying said breadstuffs, of the value of $14,36, breaking and bending the gearing and wheels, scratching and breaking the box of said wagon, and breaking and tearing the harness upon said horses; all without fault upon the part of plaintiff, to the damage of plaintiff in the sum of $134.36.”

The defendant answered the allegations of the plaintiff’s petition, admitting that it was a street railway company, •operating a street railway as charged in the petition; admitting also that the car came in contact with the wagon of plaintiff; but denying that the injury was occasioned by the ■default of defendant, but alleging that it was occasioned by the negligent, careless and wrongful acts of plaintiff. There were some amendments filed to this. The plaintiff replied, denying that he had been guilty of any contributory negligence, or had m any manner departed from the proper course of procedure in operating his wagon upon the street car tracks of defendant. There was an amendment to the answer of defendant, subsequently filed, in which it set forth section No. 605 of the Codified Ordinances of the city of Toledo, in these words:

‘‘The cars running on any such railway shall be first entitled to the track, and any other vehicle on such track shall turn out when any car comes up, so as to leave the track unobstructed; and the driver of such other vehicle refusing so to do, when requested by the driver of such car, shall incur a fine, to be recovered in a proper court, of not less than three nor more than ten dollars.”

There was a further amendment by the plaintiff of his pe'tition, in which section 604, paragraph 7, of the Codified Ordinances of the city was pleaded. That was in these words:

“The conductors or drivers on each car shall be careful, sober, prudent men, and they shall keep a vigilant watch for all teams, carriages, persons on foot, and especially women and children, either on the track or moving parallel with or toward it, and on the first appearance of danger the car shall be stopped within the shortest time and space possible.”

There is still another amendment to these pleadings, which I will not stop to read, setting out some further provisions of the ordinances of the city.

Upon the issue made between the parties the case was tried to the court and jury at the April term, 1892. Considerable testimony was submitted to the jury, bearing upon the questions at issue. Certain requests for instructions to the jury were submittted upon both sides, some of which were given and some of which were refused. The jury,after having- heard the testimony, the arguments of counsel and the instructions of the court, returned a verdict m favor of the defendant. There was a motion for a new trial assigning various grounds. That motion was overruled, and judgment was rendered upon the verdict in favor of the defendant below as well as the defendant here. The' testimony was embodied in a bill of exceptions, and is before us now as a part of the petition in error.

It is claimed upon the part of the plaintiff in error, the plaintiff below, that upon all the testimony submitted in the case below, the verdict should have been in favor of the plaintiff; that the court erred in giving certain instructions asked by the defendant below, and in refusing certain instructions asked by the plaintiff below; and that the court erred in overruling the motion for a new trial, upon the ground, not only of the errors so assigned, but also for the reason that the verdict was contrary to and was not sustained by the evidence submitted in the case.

Upon the' trial of the cause the plaintiff was sworn and examined quite fully as a witness, and he testifies, among other things, as follows:

“When I got on the corner of Bancroft and Lagrange, I stopped my horses, and looked up that way towards Sherman street, to Bee if there was a car coining or not. The street was in such a bad condition I couldn’t see without stopping. I got struck crossing there once, so I looked for a car to see if there was a car coming, to let the car pass. But this morning I didn’t see no car coming, so I went on in the track; and I was down about two blocks, I heard a bell. Of course,the bell didn’t sound very loud to me; the wind made it come towards me, and drove the sound away. I heard the bell, but I thought it was a milk bell, so I got up on the left side, and looked out of the wagon. I couldn’t look through the wagon, and looked out on the side. I seen the car coming, and quick set down again, pulled my horses to the right side — that is, coming down from Bancroft street. As soon as I had two wheels out, the car come along, knocked against the wagon, and broke those yoke straps that go from the yoke to the collar and hold the wagon back' — broke those two straps going from the collar to the belly-band — ■■ them four they broke, so I couldn’t regulate the wagon any more; the wagon had to go any way he wanted. So the wagon went towards the ditch, and upset,
“Q, Before you go any further, just tell the jury what kind of a wagon this was? A, This here wagon I paid $300 for it when I got it newly made a year and a half ago. It was a big top wagon, with glass in the top — that is, around the top — and below it was panels. This wagon, of course, was heavily loaded with bread and cakes, and one thing and another.
“Q. You say that the wagon was fitted with glass— around what part of it? A. On both sides, in the back part glass all around, and one in front.
, “Q. Around the three sides and top of the wagon there was glass? A. Yes. sir.
“Q. In the rear what was there? A. There was one solid panel about four feet high, eight feet long — 'that is, so long the wagon is. Tha wagon is, I guess, seven feet high. It was about five feet high — panel—and eight feet’ long, all one solid piece, with gold painting on it.
“Q. How far was the car behind you when you Srst heard the bell? A. It must have been about forty feet — that is, when I got up and seen the oar, when I heard the bell.
*“Q. Did you look more than once? A. I did not.

According to the statement of the plaintiff, it would seem that he did not look for the car after turning in upon the track, until he heard the bell. Then he looked and saw, according to his judgment,that the car was about forty feet away, coming from the rear towards his wagon.

The defendant then called a number of witnesses, among them several business men of the city who had taken this early car in order to get to their places of business, who testified quite fully as to the occurrence of the accident* For example, Mr. Howard M. Jump, testifies that while upon the car on the occasion spoken of, that his attention was called or attracted by the ringing of the bell. When in-. quired of us as to where he first noticed Mr. Siek’s wagon he says:

“My attention wai attracted by the continual ringing of the bell after we had crossed Bancroft street. I looked ahead to see what was the matter, and saw Mr. Siek’s wagon in the track.
“Q. Where did you first hear the bell sound? A. I noticed the bell, but I paid no particular attention to it, but when we were passing Bancroft street, I wondered why it was. I knew there was no cars there. I thought it was funny that he was ringing the bell. I knew why it was then, when I saw the wagon.
“Q. When your attention was first attracted to the wagon how far was the wagon ahead of the car? A. Quite a distance ahead. I should say about a block, maybe. It was going on a trot. It might have been more than a block, because there are short blocks in there.
“Q. Roughly, how many feet was it? A. It would be about — 'I couldn’t figure the feet exactly, I should think'a couple of hundred feet, or such a matter.
“Q. How far did it get before the wagon was struck? A It went down to very near the switch.”

After he said that the wagon was struck very near the switch, he is inquired of — ■

“Q. How much of the time was the gong sounded from the time it left Bancroft street until the time of the collision? A. It was ringing right along all the while until the motorman stopped if, and put on his brakes. It was about fifty feet back of the wagon. He saw the wagon was not going to get out of the road, so he put on his brakes.
“Q. Do you know where the motorman turned off the power? A. It was — I could show about the place, if I was there. The power was off at Bancroft street. The car runs down its own weight, that street.

He is asked this question

“Q. What did you notice Mr. Siek do? A. After we got very close to him, I noticed him turn around and look through the left side of the wagon at the car, and I thought there was plenty of time — I saw him look out at the left side of his wagon at the car. It was just about the same time that the motorman turned off his brake; it was,I should say, about fifty feet away.
“Q. Now then, what did Mr. Siek do? A. I didn’t notice that he did anything. The wagon staid right in the track, as near as I could see, until it was hit — as near as I cculd see, the wagon was in the track at the time it was hit.

A number of other witnesses who were on the car testify to this same effect,

The plaintiff was recalled, but simply to deny that he had looked back more than once while he was upon the track and the car was approaching from behind.

Now, upon this evidence, submitted to the jury, the verdict, as I have said, was for the defendant. After a very critical examination of the entire testimony from beginning to end, it seems to us quite clear that the jury were fully warranted in returning a verdict for defendant, as they did. It seems to us, upon the plaintiff's own testimony, that he failed to exercise proper care in traveling along a street railway track, operated by motor cars; that he was bound in fairness and in the exercise of proper care to keep a better lookout for the approach of electric cars than he did. He admits that he traveled along that track some two blocks and a half without once looking back to see whether a car was approaching. He further admits that he did once hear the gong, and supposed that it was a milk bell; but when he finally heard th6 gong, that the car was about forty feet back, and he got form the track as soon as he reasonably could. But the roadway was in a bad condition, the planks were broken somewhat, the track and the street had holes in them, and it was with difficulty that he could make his way from the track, and before he could leave it, he was struck by the approaching car. The testimony on the part of defendant shows that the power had been cut off, and that testimony is uncontradicted. It is proven by several witnesses to have been cut off by reason of the fact that the car was passing down a declivity, and was running by force of its own momentum; and it appears by the uncontradicted testimony of half a dozen witnesses, perhaps- — -perhaps not so many as that, but a large number of witnesses wholly disinterested in the case — -that the gong upon that car was being sounded by the motorman continuously from, the region of Bancroft street until the collision occurred. And the testimony of the motorman as well as of other witnesses, tended to show- that the motorman was acting evidently upon the assumption that the plaintiff could hear the gong of the approaching car, and would, in the exercise of ordinary and reasonable care, get out of its way before any collision could occur. Ordinarily, of course, the employe operating an electric car upon the streets, cannot be expected to stop his car every time a man is walking or a vehicle is being driven in front of the passing car, upon the assumption that he or it cannot get out of the way, Ordinarily a man has the right to assume and to expect that a wagon or a carriage, or any vehicle, driving in front of an electric car, with a gong sounding so as to be heard a block or two away, will, in the exercise of due and ordinary care, get out of the way of the approaching car, so that it will not be necessary for the operator to stop the car and wait for him to get out of the way, or wait to see if the traveler will get out of the way. It appears to us that under the circumstances as they are detailed in this testimony, uncontradicted, the motorman and the conductor had a right to understand and to believe — take it for granted, that Mr. Siek, driving his wagon upon the railway track at that time, would in due time vacate the track so that the car could pass on without any injury to him. But when the operator found that for some reason or other, not known to them perhaps, the plaintiff was continuing in the track, and that down to a point when, according to the plaintiff’s testimony, the car was within forty feet of the wagon, and he had made no movement to leave it, they set themselves to work to endeavor, by the application of the brakes, the motive power having been cut off of it, to stop the motion of the car, and they came so near stopping it that it went but a foot or two beyond the point of contact with the carriage. And although, of course, there was some injury to the carriage, evidently it was comparatively slight and not such as would have resulted from a regular collision; because if there had been a regular collision with tüe car under full headway, the car would undoubtedly have been demolished.

There were some requests made of the court, which were refused, and some instructions given which were excepted to, which are noted. In the charge of the court, which seems to have been quite a fair charge, at least so far as the plaintiff was concerned, there is noted on the margin of the general charge of the court a point that the plaintiff in his argument objected to. There is no objection noted in the record at all to that part of the charge, but this part is marked:

“If the plaintiff's evidence discloses any want of care on'' his part which contributed to his injury, then, before he can recover, he must show by a preponderance of evidence upon the whole case, that his negligence did not contribute to his injury; otherwise the burden is upon the defendant to show that plaintiff’s negligence caused his injury, or contributed to it in any degree. ’ ’

Special objection is laid upon the statement of the court in this proposition that the burden is upon the defendant, upon certain contingencies, to show that the plaintiff’s negligence caused the injury or contributed to the injury in any degree. The language “or contributed to it in any degree,” is objected to here as furnishing or submitting a wrong rule of law bearing upon contributory negligence to the jury. In the first place, this language is taken from a ruling made by the Supreme Court as contained in a reported case; and in the second place, if there had been any qualification or modification of that language, the whole charge shows in the special requests that were actually given, that the jury were instructed so fully upon that point that they could not have been misled by what the court said.

Again, this proposition as stated by the court, is excepted to

“The use of electricity upon these roads, of course, increases the amount of care necessary to be used by those traveling the streets. You will take that matter into account, considering only the evidence in the case, and find the facts from that. ”

We cannot see any legal objection to this instruction as given by the court. The jury’s attention is called to the fact that the use of electricity upon these roads increases the amount of care necessary to be used by those traveling the streets, and they are called upon to take that fact into consideration.

There is an exception taken to the fourth request of the defendant as given by the court, and that request is as follows:

“From the necessity of the case, a street railway company, for the operation of its cars along the public streets, has certain rights different from those of the general public using the same streets.
“One of the public has a right to drive his team and vehicle upon the track of such a railway, and to pass along it lengthwise of it, as well as to cross it at the intersection of the streets. But the right of such person as the plaintiff in this case, to be upon the track, and to pass along it, is abridged. The street railway company has the exclusive right to such part of the track, at any time its cars are passing, or just about to pass, and all others then upon such track are then and there bound to leave it to the unobstructed use of the company.
“This right is permitted to the street railway companies, because the car can move to and fro only on the parallel lines of track laid down for it, and cannot turn from them; so that others using the street, must use reasonable care and diligence to get out of the way of approaching street railway cars. ”

So far this statement is largely argumentative, no doubt about that; but we see no valid objection to the giving of this instruction to the jury. Then follows the rule of law which the court gave, resulting from these premises:

“And if the jury find from the evidence, that the plaintiff did not use ordinary care and diligence to keep out of the way of the street car in this case, then your verdict should be for the defendant.”

That is the proposition of law which is embraced in this request; the other is a matter of discussion or presentation of the reasons leading up to a statement of that proposition.

The fifth request is also excepted to:

“The jury are instructed that the track of a street railway is susceptible of a common use of the street railway company and those of the public who are using the track with their vehicles, so far as that, when the cars of the company are not upon it, at any place, it may be occupied with a team and vehicle of the ordinary kind. Yet, as the power to make the track clear for the use of the street railway' company, is solely with the individual temporarily occupying it, and as his right to use it is only when it is clear, there is upon him the duty of using reasonable care, skill and diligence to keep such track clear, free, and unobstructed by his vehicle, for the use of the street railway company. As it is essential to the convenient and useful working by the defendant of the street railway, that there be no unnecessary stoppage of transit, and a reasonable rate of speed continuously kept up, it was incumbent upon plaintiff in this case to so manage his vehicle as to cause no unreasonable or unnecessary hindrance thereto.
“As the car cannot turn off of the track to go by, and the plaintiff had the power to turn off the track to let it go by, it was the duty of the plaintiff to use reasonable care and diligence to turn off the track, and leave free and unobstructed passage to defendant’s car,”

It seems to us that is a correct proposition, especially when taken in connection with the other points submitted in the general charge of the court.

The eighth proposition given was objected to:

“The jury are instructed that street railways have become a business necessity in all cities of considerable size; that greater and better facilities, and a higher rate of speed are being constantly demanded for public convenience. The movement of cars by electricity along the streets of a city is attended with danger, and renders a higher measure of care necessary, both on the part of the street railways and those using the streets in the ordinary manner. It is the duty of the railway companies to be watchful and attentive, and to use all reasonable precautions to give notice of the approach of their cars. Its failure to exercise the care which the rate of speed and the condition of the street demands, is negligence. On the other hand, new appliances, rendered necessary by the advance in business and population, impose new duties upon the public. And it is the duty of the public using vehicles upon the street, to use reasonable care to avoid unnecessarily obstructing or occupying the tracks of street railways in their operation, and to avoid collisions between such vehicles and such street railway cars, And if the jury find, from the evidence, that the plaintiff did not use such reasonable and ordinary care to avoid the injury complained of in this action, then your verdict must be for the defendant.”

Upon the general doctrine stated in that request, I will cite without reading, a note found in Booth on Street Railway Law,at page 432 — section 315, note 1.

The tenth request as given was also excepted to:

‘‘If the jury find from the evidence that the ' plaintiff heard the warning bell or gong of the street railway car, or by the exercise of reasonable care and diligence might have heard it, then it was the duty of plaintiff to exercise reasonable care and diligence in leaving such track for the passage of the street railway car, in time to avoid a collision; and if the jury find from the evidence that the plaintiff failed to exercise such reasonable care and diligence, then your verdict must be for the defendant.”

We think that was a correct proposition — one quite familiar in the law of negligence.

The eleventh also was excepted to:

‘‘The plaintiff can not be excused from the duty of looking back, upon receiving such warning, or failing by the exercise or want of care to receive such warning, by the fact that there were closed sides to the vehicle.”

We do not understand upon what principle it can be claimed that a man driving along a street railway track in a covered carriage is excused from the fact that he is in a covered carriage, from looking back to see if cars approaching from behind him. He must know, he is bound to know, that cars are liable to approach from behind him as well as from the other direction; and it is as much his duty to look in the one direction, as we understand the law, as it is in the other.

The twelfth also was excepted to:

‘‘If the jury find from the evidence, that plaintiff and defendant were both negligent, and that the negligence of both contributed directly to cause the injury complained of in this case, then your verdict should be for the defendant. ”

That is a statement of the ordinary doctrine that contributory negligence shall prevent a recovery by the party injured by the negligence of his adversary.

There were certain exceptions by plaintiff to the refusal of the court to give certain requests submitted by the plaintiff below, and they may be noticed in a few words. The first request refused was this:

“The defendant has no right to run its cars upon said street at a greater rate of speed than the .rate of speed of other vehicles for carrying passengers, drawn by horses, in the absence of an ordinance to the contrary.”

We think that the court would have erred in giving that request in the form in which it is submitted, Unless instructed to the contrary, I should say that there was in the city ordinance regulating the movement of electric cars, some provision regulating the rate of speed; but in the absence of’ any such regulation, I suppose that all that would be required of these companies would be to use' ordinary and reasonable care, in reference to the existing circumstances, in the running of their cars.

No. 3 was refused:

“If the plaintiff had just and sufficient reason, from observation of the tracks when he drove on, to believe that no car could be sufficiently near as to desire to pass him at the point of said accident, and plaintiff drove out'of the track of defendant as soon as warned of the approach of defendant’s car, and without unnecessary delay, plaintiff was not guilty of contributory negligence.”

This amounted to a direction to the jury that if the plaintiff supposed, upon reasonable grounds, that there would be no car which would find it necessary to pass along the track where he was driving, then there was no necessity for his keeping any lookout for any car. We think that would scarcely do.

5. “The fact that a vehicle being unnecessarily driven upon the track does not of itself constitute contributory negligence.

It seems to us that this is an immaterial proposition:

“The fact that a vehicle is unnecessarily driven on a track, does not of itself constitute contributory negligence. ”

Strictly, perhaps, that may be so. It becomes contributory negligence, where, having^driven on a track, a proper lookout is not observed to avoid an approaching car,

Those are the only requests that were refused, except the eighth:

“It is a well settled rule of the law of negligence that the plaintiff may recover, notwithstanding his own negligence exposed him to the risk of injury, of which he complains, if the defendant, after he became aware, or ought to have become aware, of plaintiff’s danger, failed to use ordinary care, to avoid injuring him, and he was thereby injured. The jury are therefore instructed that though they should find that the plaintiff was negligent in driving and being upon defendant’s track, that if after defendant’s motorman became aware of the negligent position of plaintiff, failed to use ordinary care to avoid injuring plaintiff, and that by reason of the failure of said motorman to use ordinary care, plaintiff was injured, your verdict must be for the plaintiff. ”

The vice in this request is found in this line: “Or ought to have become aware of plaintiff’s danger.” It is a doctrine of the law that if a party be negligently exposing himself to danger, and he is injured, and the party who injured him observed the danger, and might and should therefore have governed himself accordingly so as to avoid injuring him, the party committing the injury may be liable notwithstanding the party injured has been negligent; but we know of no rule of law -that makes a party liable in such case as that upon the doctrine that he “ought to have known” that such party was acting negligently. If this clause had been omitted,;it occurs to us that the request- should have been given; that is,if the defendant,after he became aware, failed to use ordinary care, then the liability supposed would arise;-but it was not competent with the further limitation “or ought to have become aware of plaintiff’s danger.’’ We do not understand that there is any duty imposed upon a person who is lawfully pursuing a legitimate business in an ordinarily careful manner, to know that •somebody is exposing himself to danger. If he knows the •danger, he is bound to exercise care, but he is not bound to know the danger per se from a negligent or careless act on ihe part of the person who is injured.

These comprise all the grounds that have been called to .©ar attention as grounds of error in this case. The case is aim interesting and instructive one, and we have been very much instructed by the very careful and able brief prepared by counsel for plaintiff in error, and we have given the case al! the thought in our power.

Our conclusion is, that the judgment must be affirmed.