text:
    APPROPRIATION OF PROPERTY FOR. A NEW STREET.
    Circuit Court of Cuyahoga County.
    David Morison et al v. The City of Cleveland.
    Decided, May 15, 1911.

      Municipal Corporations — Opening of New Street Incident to Elimination of Grade Grossing, When — Appropriation of Property for Street— Evidence as to Values.

    1. Speculative possibilities are not an element of valué of property appropriated.
    2. The opening of a new street from a railroad depot to a street crossing at a higher level so relates itself as incident to the main ob- . ject of eliminating a grade crossing, as to warrant the exercise by a municipality of its power of eminent domain in that behalf.
    3. While it is not improper in an appropriation case upon cross-examination of a witness who has on direct examination given his opinion of the value of' land sought to be appropriated to inquire of him concerning the sales of adjacent lands, for the purpose of testing his knowledge and competency, it is not ordinarily permissible to incorporate into such inquiries a ’statement or assumption that such sales at prices named have in fact occurred.

      4. Tlie dedication of a street by plat in 1837, required no acceptance, either express or implied, by the public authorities, to vest the fee of the street in the city for the use of the public for street purposes, and such title of the city can be divested only in the manner indicated in Revised Statutes, Section 4977, or otherwise, as provided by statute.

      Smith, Taft & Arter, for plaintiff in error.

      W. D. Wilkins and Patterson c& Nieding, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The action below was begun in the insolvency court by the city of Cleveland to appropriate the lands and slope rights needed for the purpose of separating the grades of AVest Twenty-fifth street and the New York, Chicago & St. Louis Railway Company’s tracks, at their intersection in said city.

Some of the errors complained of merit only the briefest mention. Upon examination of the testimony concerning the value of the property taken, and the damage to the residue, we are convinced that the jury’s award fails to disclose any such inadequacy as to indicate bias or prejudice on their part, or to warrant a reversal of their verdict as against the weight of the evidence. Nor is there any abuse of discretion or reversible error discoverable in the exclusion of the merely cumulative opinion evidence of F. C. Becker and others, as to values, and in the court’s permitting John Beck and Myron B. Vorce to testify as experts on the same and other subjects. So also the court correctly charged that speculative possibilities are not an element of value of property appropriated.

The exclusion of leases offered, and other evidence of rental values and income, accords with the rule laid down in Railway Co. v. Gardner, 45 Ohio State, 324; Powers v. Railway Co., 33 Ohio State, 434.

The opening of a new street from the railroad depot near this crossing to West Twenty-fifth street, at its new and higher level so relates itself as incident to the main object of eliminating the grade crossing, as to warrant the exercise by the city of its power of eminent domain in that behalf. Access to the depot is .desirable alike to the railway company and the public, and there is no reason why the new means of approach should necessarily be a private, rather than a public way.

The. city’s cross examination of Morison’s expert witnesses concerning their knowledge of prices, named by the questioner as having been paid for other lots in the vicinity can not be justified in this state, where the rule is, that evidence of prices, in particular sales, is inadmissible in appropriation cases, upon the issue of property taken or damaged. The Cleveland Terminal Railway Co. v. Gorsuch, 8 Ohio C.C.(N.S.), 297, affirmed without report, 76 Ohio State, 609. The same rule, though by no means universally approved, obtains in Kansas, where two decisions illustrate, if they do not conclusively define, the proper limits of such cross-examination. Railway Co. v. Vickroy, 46 Kans., 248; Railroad Co. v. Stewart, 47 Kans., 704.

We hold that, while it is not improper upon cross-examination of a witness, who has, on direct examination, given his opinion of the value of land sought to be appropriated to inquire of him concerning the sales of adjacent lands, for the purpose of testing his knowledge and competency, it is not ordinarily permissible to incorporate into such inquiries a statement or assumption that such sales at prices named have in fact occurred. Besides being peculiarly liable to abuse through false assumptions, that form of 'cross-examination -extremely prejudicial jin that it suggests to the jury a line of information and a means of arriving at their award which the law denies to them, and to meet which the opposite party is permitted to produce no evidence. This prejudice is largely avoided, or neutralized, where the witness, under cross-examination, knows of the sales and prices asked for, and himself testifies thereto, so that the amounts paid are revealed, if at all, not by the question, but by the answer. If the witness neither knows nor assumes to give the facts as to such sales his ignorance thereof may, of course, be considered by the jury in weighing his opinion of the value of the property sought to be appropriated. But if the witness knows and testifies to the prices obtained at other sales, and the correctness of his opinion of the valué of the property sought to be appropriated is thereupon, and for that reason, directly questioned by the cross-examiner, no doubt the witness may reconcile his opinion with his knowledge as best he may. Thus the jury is prevented from being unfairly misled by covert intimations of sales and prices concerning which no evidence is admissible, while the 'amplest latitude of cross-examination is allowed to test the knowledge and competency of expert witnesses as to values testified to in chief by them.

The principles thus expounded were repeatedly and flagrantly violated in the trial of the case below, and for error in this regard, the judgment must be reversed.'

It is claimed the trial court erred also in charging the jury that the burden was on Morison to show his title to that part of Pond street which he occupies, by proof of compliance with or the happening of all the statutory conditions of Section 4977, Revised Statutes. The contention is that prima facie proof of Morison’s ownership, either by occupancy or chain of title, is not overcome by evidence of the record of a plat, made by the owner of that and surrounding property, showing the street in question, with no further evidence, either that such dedication of the street was expressly accepted by the city, or that there was a public use from which such acceptance may be implied. We were at first strongly inclined to this view, but an examination of the case of Wisby v. Bonte, 19 Ohio State, 238, leads us co conclude that in 1837, when the plat in this case was'made and-recorded, the statutory dedication of Pond street, which was thereby effected, required no acceptance either express or implied, by the public authorities to vest the fee in the city, and the use for street purposes in the public. It follows that they can be divested only in the manner indicated by Section 4977, Revised Statutes, or otherwise as provided by statute. There is here no pretense of a common law dedication. Being statutory, it is irrevocable except as above pointed out.

For error in allowing the city’s counsel, on cross-examination of Morison’s experts, to put questions containing assumptions of sales of other property at prices named, the judgment is reversed and the cause remanded.


source: Caselaw Access Project

license: Public Domain

text:
    A TEAMSTER’S RIGHTS AT A STREET CROSSING.
    Court of Appeals for Richland County.
    The Mansfield Railway, Light & Power Company v. Sarah A. Kiner, Administratrix.
    Decided, January Term, 1913.

      Heavily Loaded Wagon Struck by Gar at Street Grossing — Death of Driver Follows Later — Disputed Cause of Death — Growing Disrepute of Expert Medical Testimony.

    1. The driver of a vehicle arriving at a street crossing in advance of a car has thg prior right to cross, and in doing so he may assume that the approaching car is being operated in a careful and prudent manner and is under proper control, and that its speed does not exceed that fixed by municipal ordinance; and it is his right to proceed notwithstanding his so doing may require that the speed of the car be reduced, or even that the car be brought to a full stop to avoid a collision.
    2. It is not always incumbent upon one about to cross a street car track, either on foot or with a team, that he should look and listen for an approaching car, but it is sufficient if reasonable care is exercised, and whether or not reasonable care was exercised in a .given case is a question of fact for the jury dependent upon the surrounding circumstances.
    3. A jury may properly accept the testimony of the decedent’s own physician as to the case of his death, as against the testimony of the physician of the company whose car struck him and that of an expert medical witness.
    Marriott, J.; Voori-iees, J., and Shields, J., concur.
   This action is in this court upon error from the Court of Common Pleas of Richland County. The suit below was by the administratrix of Philip Kiner, deceased, and against the Mansfield Railway, Light & Power Company, to recover damages for the alleged wrongful death of the decedent, husband of Mrs. Kiner, caused by the alleged negligence of plaintiff in error, in running and operating its cars on South Main street in the city of Mansfield, where at the intersection of Third street with South Main street, on June 24, 1909, one of plaintiff in error’s cars collided with a heavily loaded wagon on which the decedent was then riding, and from which he was thrown to the street receiving injuries from which it is claimed he died on September 19, 1910. The action below was prosecuted by the administratrix of the decedent for ,the benefit of herself, as widow, and a minor child of decedent, resulting in a verdict for $4,500, upon which judgment was rendered, which is now sought to' be reversed by this proceeding in error.

The amended petition upon which the case was tried charged in substance as follows: the plaintiff says that she is the duly appointed and acting administratrix of the estate of Philip Kiner, who died on the 19th day of September, 1910, as hereinafter alleged; that defendant is now and was at the time ,of committing the grievances hereinafter complained of, a corporation organized under the laws of Ohio, and at the time set forth herein was operating a street railway in the city of Mansfield, Richland county, Ohio, with its cars and other necessary and proper equipment, tracks, wires, etc., and that said cars were run by electricity; that said defendant, at the time herein set forth, had a track on South Main street in said city of Mansfield, and operated its ears upon the said track; that said South Main street is crossed at right angles by First street of said city, and that both of said streets are public streets of said city, and much used and traveled by vehicles and pedestrians having occasion to use the same, and in running its cars over said South Main street and across First street - the defendant was required to operate its ears with due care so as not to come in contact with persons or vehicles crossing its tracks at the point described. That defendant was forbidden by the ordinance of the city of Mansfield, in force at the time in question, to run its cars upon its tracks within the city over the crossing of said described streets at a rate to exceed eight miles an. hour.

Plaintiff says that on the 24th day of June, 1909, the decedent, Philip Kiner, was driving a team of horses hitched to a wagon loaded with gravel along said First Street of said city going west, toward South Main street and the intersection of said First and South Mam streets, and where so driving said team of horses, and while crossing said South Main street, driving said team, and while seated upon said wagon, the said decedent’s team and wagon was struck by one of defendant’s ears running north' upon its track on said South Main street, and thereby the decedent, Philip Kiner, was injured as herein set forth. She says that at the time decedent received his injuries and as he approached said South Main street to cross the same, and while exercising due care on his part, and without any negligence on his part, one of the defendant’s cars in charge of a motorman and conductor of defendant approached from the south, and while running at a reckless and dangerous speed, to-wit, at about twenty-five to thirty-five miles struck decedent’s wagon and team; that when decedent started to cross the track of defendant he had ample time to cross in safety if the car striking decedent had been running at a speed not to exceed eight miles an hour, or at any reasonable speed, and decedent had a right to believe and did believe that said approaching car, which was a block and a half away from said crossing when decedent started across the track, was not running at a speed to violate the city ordinance nor at a speed that he could not cross in safety; that said car, in charge of the agents and servants of defendant, was run by said servants and agents of defendants at a speed in violation of the ordinance of the city, negligently, recklessly and wilfully against the wagon and team of decedent and injured decedent as hereinafter alleged; that when decedent started to cross the track of defendant the motorman could see decedent starting across or upon the track with his team, two or three blocks away, and said motorman knew that at the speed be was running the car it would strike the team and wagon before it could get across; but she avers that decedent did not know the speed of the car and could not learn its speed from h:s position, and she avers that decedent reached the track when the car was at least a block and a half 'away, and had a right to cross, and that the agents and servants of defendant had ample time after seeing, as they did, decedent crossing the track, to have checked the speed of the car or stopped it, and thereby have prevented the collision. But plaintiff avers that the agents and servants in charge of the car negligently, recklessly and wilfully approached said crossing in a great speed and ran against the wagon and team of decedent with a great force and violence, and thereby hurled him from the wagon into the street, thereby receiving injuries from which he died on September 19, 1910. She says that by the contact of the car with the team and wagon of the decedent, the decedent was thrown into the street and under the horses’ feet; that two of his fingers of his left hand were broken or dislocated, his arm bruised and injured, his right eye was cut and his head injured, and his back and head were injured. She avers that by reason of said injuries decedent was rendered unconscious for several hours, and from which injuries he died on the 17th day of September, 1910. And she avers that Philip Kiner left surviving him the plaintiff, who is his widow, and as sole next of kin Rebecca Kiner, his daughter, aged 16 years, and she prays for judgment in the sum of ten thousand dollars.

To this petition the defendant below answers and says: it admits that it is and was operating a street railway in the city of Mansfield, Richland county, Ohio, with its cars and other necessary and appropriate equipment. It admits that on the 24th day of June, 1909, Philip Kiner was driving a team of horses attached to a wagon, loaded with gravel along East First street of said city, at a point where said First street of said city crosses South Main street,. It admits that East First street and South Main street are public streets of said city. It admits that the ordinance fixing the rate of speed of street railway cars in the city of Mansfield is at the rate of speed not to exceed eight miles an hour. And then defendant denies each and every other allegation in the petition contained not herein expressly admitted. For a second defense the defendant avers that the injuries received by said Philip Kiner were caused by liis own fault and negligence in failing to look and listen, or take any precaution whatever to ascertain the approach of a car. Wherefore its prays to go hence without day and for its costs.

To this answer the plaintiff below filed a reply, denying each and every averment of the answer charging contributory negligence to Philip Kiner, deceased.

Upon the issues thus made by the pleadings, the cause was tried to a jury at the January term of court, 1912, resulting in a verdict of the jury in favor of the plaintiff below for $4,500

A motion for a new trial was made, heard and overruled, and judgment was rendered by the court upon the verdict. A bill of exceptions was allowed, signed and sealed by the trial court, and the cause is now before this court upon the petition in error, and the original papers in the case, together with the entire record.

The grounds of error upon which the plaintiff in error relies for a reversal are:

First. The verdict and judgment are contrary to the law. '

Second. The verdict and judgment are against the weight of the evidence.

Third. That the court erred in the admission of evidence objected to by plaintiff in error.

Fourth. That the court erred in ruling out evidence offered by the defendant in error.

Fifth. That the court erred in its charge to the jury.

Sixth. That the court erred in refusing to charge the jury as requested by the plaintiff in error.

Seventh. That the damages given by the jury are excessive.

Eighth. The court erred in refusing to sustain the motion made at the close of defendant in error’s evidence and renewed at the close of all the evidence, to direct a verdict in favor of the plaintiff in error.

There is much conflict in the evidence, as shown in the record, as to the rate of speed at which the car was running at the time and before the collision with decedent’s wagon.

There is some conflict in the evidence as to the cause of Kiner’s death, whether it resulted from the injuries received at the time of the accident, or whether it resulted from causes in no way connected with the injury received at the time of the collision. Of this conflict in the testimony we will speak hereafter.

There is no dispute but that Kiner, the plaintiff’s decedent, prior to the accident, was an able-bodied man; that he was not known to be suffering with any disease which would impair his health or lessen his ability to perform labor and earn wages, save that some five or seven years prior to the 24th day of June, 1909, when he received the injury complained of, he had received an injury while working for the Eclipse Stove Company of Mansfield, which resulted in.the loss of his right arm near the elbow; that he had worked for the Eclipse Stove Company for some ten or twelve years prior to receiving the injury; that after losing his arm he took up the occupation of teaming and continued to do teaming until he received the injuries complained of in the petition. That he was capable of earning and did earn, with his team, regularly, when working, four to five dollars per day.

It is not disputed but that the injuries complained of, and as a result of which it is complained he died, occurred at the intersection of First street with South Main street in the city of Mansfield, on the 24th day of June, 1909.

It is not disputed but that there is a decline in South Main street from the top of a hill south of the point where First street crosses Main street for a distance of sixteen to eighteen hundred feet; that the grade from the top of the hill south of First street is from three and a half to seven per cent., that for five hundred feet immediately south of the point where First street crosses Main street the grade is seven per cent.; that from the point where the accident occurred north, the street extends to Second street at a grade of about five per cent. This elevation and grade are shown upon the map and profiles of the street offered in evidence as an exhibit, and are conceded to be correct.

The evidence of Mr. Merkel, the city engineer, which is not controverted, establishes the fact that First street and Main street, at the point of intersection, where the accident occurred, are each sixty feet wide. Main street from the top of the 'hill south runs straight north into the city. There is nothing to obstruct the view from a distance of eighteen hundred feet south of First street. The motorman in charge of the ear at the time of the accident concedes that he had full view of the entire distance of the street.

According to the undisputed evidence, South Main street on both sides for a considerable distance both ways from the crossing of First street, was built up with many residences, offices, and some business buildings. There are several streets and alleys crossing Main street south of First street.

The accident occurred at a most frequented part of the city of Mansfield, upon one of the principal streets of the city, upon which people were accustomed to travel at all times of the day. The accident occurred about 8:30 o ’clock of the forenoon of June 24th.

That the car was approaching the crossing at a high rate of speed there is little doubt. Witnesses called by the plaintiff fix the rate at twenty-five to thirty-five miles an hour. The motorman in charge of the car could have seen decedent as he drove out of First street upon Main street, had he been keeping a look-out, for several hundred feet away. He could see, and if he looked he saw Kiner driving straight across the track in the center of the street in front of him.

George Mortimer, an eye-witness of the accident, testifies that he was driving on Main street, about three hundred feet south of First street; that the car passed him going thirty-five to forty miles an hour; that he saw no decrease of speed until the car struck the wagon; that the motorman did not have the brakes on when the car passed him, nor was he using the brake. He heard no alarm given; he says he saw the wagon driven by Kiner, when the car was at Glessner street (which is more than 1000 feet south of First street, according to the map); that the horses were about to cross the st-reet. According to this witness the ear must have been traveling at a high and dangerous rate of speed to have traveled 1000 feet before Kiner’s wagon was clear of the track.

Glenn Shaw, an eye-witness of the accident, says he was standing on Main street near the point of the accident; saw the car coming down the hill a block and a half or two blocks south of First street; that the car was coming at a rate of twenty tr-twenty-five miles an hour; that he saw Kiner; that the horses’ feet were just on the 'track; that the motorman did not ring the bell nor set the brakes until after the car struck the wagon, but that he set the brake after the ear struck the wagon.

Lester Sinuns, a witness for the plaintiff, was standing on First street east of Main, was looking west on First street, and saw the car strike the wagon; that the car was “coming pretty fast.”

Numerous witnesses testified to having heard the “crash” when the car struck the wagon; some were in their houses with the doors closed when they were attracted by the ‘1 awful crash. ’ ’

John Barr, witness for plaintiff, had experience in running and operating cars on the streets of Mansfield, and especially on South Main street; he had been a motorman for the defendant company. He testifies that a car would run down the hill on South Main street at 'a rate of twenty-five to thirty miles an hour, unless the brakes were applied; if the ear was under control, running at a rate not to exceed eight to ten miles an hour, it could be stopped “easily” in three ear lengths; that a car is thirty to thirty-five feet in length.

The defendant called numerous witnesses to the accident who gave testimony directly and materially in conflict with the evidence offered by plaintiff as to the speed the car was running.

Harry Stiles was the motorman in charge of the car at the time of the accident. He had been employed as a motorman only three or four months. He saw Kiner when he was about two hundred feet away, near Augustine avenue. 'While this witness put the distance as about two hundred feet, Augustine avenue, according to the measurements as shown upon tñe map, is more .than three hundred feet south of First street. He says he was coming down the hill at about eight miles an hour; that when he struck the wagon the car was not running more than four miles an hour.

Witness B. F. Finley was the only passenger on the car. He testifies that -when he noticed the motorman trying to stop the car he “looked up and saw the wagon going across the track in front of the car.” When he saw the motorman trying to stop the car he thinks “the car was about at Corporation alley, south of First street, when the motorman made the effort to stop the ear,” at the time the horses’ front feet were on.the railway track. According to the undisputed evidence Corporation alley is two hundred feet south of First street.

At this time, according to the testimony of the motorman, the car was and had been under complete control, the brakes were on all the way down the hill, a distance of more than 1,600 feet, yet when he applied the brake in an effort to stop the car 200 feet from the wagon the wheels of the car slid or slipped on the rails.

It would seem unreasonable to suppose that if the car was running at a rate of speed not greater than eight miles, and the ear was under complete control, that the tightening of the brakes would cause the wheels to slip upon the rails; but it would be quite reasonable to suppose and to believe that if the car was being fun down the hill at a high rate of speed, say twenty-five to thirty-five miles an hour, and the brakes were suddenly applied with force enough to lock the wheels, the momentum of the ear would carry it forward and cause the wheels to slide upon the rails.

We think it quite consistent with reason and experience that if the ear at the time the brakes were applied was not running at’ a much greater rate of speed than eight or nine miles, it could and would have been brought to a dead stop within much less distance than two hundred feet, or even one hundred feet; and we are forced to the conclusion, as the jury must also have been, that the motorman did not have his ear under control, but that it was being run at a reckless and dangerous rate of speed at the time the brakes were applied, if applied at all. We do not think the story of either the motorman or the conductor as to the speed the car was running, at the time of its collision with the wagon, is consistent with truth or reason.

The wagon on which decedent was riding when struck by the ear was a new and very heavy wagon. It was very heavily loaded with gravel, weighing, according to the evidence, six or more thousand pounds. The horses drawing the wagon were very large and heavy horses. They had crossed over the track and the car struck the heavily loaded wagon near the center or back of the front wheels with such force as to shove or throw -it entirely off the track, practically demolishing the wagon, throwing the horses to the pavement, hurling the driver to the street, and seriously crushing and breaking the front end of the ear.

All these facts, of which there is no dispute, would seem to establish beyond a reasonable doubt that the defendant company was guilty of gross carelessness and culpable negligence in the running of its car at the time and place and under the circumstances as shown by the evidence.

There seems to be no substantial question but that the plaintiff’s evidence, if believed, showed a clear case of actionable negligence, warranting the jury in returning the verdict it did, unless we are to assume that the company had á right to operate its car at a dangerous rate of speed, without warning of approach at street crossings, and thus throw all the burden of care on the traveler seeking to cross a street on which its track is laid and operated. This we are not ready to concede.

Each party had an equal right to the use of the street at the crossing. The decedent had a perfect right to go over the crossing ahead of the car, notwithstanding the fact that his doing so would require the speed of the car approaching to be retarded or even brought to a stop, if necesary, to prevent a collision. The one first at the crossing had the right to precede tfie other in going over the crossing.

Plaintiff’s decedent in approaching the crossing with the purpose of driving over the same had the right to assume, in the absence of knowledge to the contrary, that the motorman in charge of the company’s car was regulating the speed of the car within the limits provided by the ordinance, and that he was operating his car in an ordinarily careful and prudent manner; that is, that his ear was under control so that the same could be stopped within a reasonable distance.

In the light of such presumption decedent would have the right to cross the track such a distance from the ear as an ordinarily prudent person would undertake under the same or similar circumstances; and it would not be negligence for the' driver of a vehicle to cross the street car track ahead of an approaching car when the car was so far away that by the exercise of ordinary care it might be stopped before reaching the place of crossing. He would have the right to assume that cars operated on a public street, in a much frequented part of the city, would not be operated or run at a street crossing at a dangerous rate of speed, without at least giving timely warning of their approach:

Many authorities are cited by able counsel both for plaintiff and defendant on the relative rights of street cars and vehicles at crossings, and we acknowledge indebtedness to counsel for the assistance they have rendered the court; but we think the cases of Toledo Street Railway Co. v. Westenhuber, 22 O. C. C., 67, affirmed without report 65 O. S., 567, and Steubenville & Wheeling Traction Co. v. Brandon, 87 O. S., 187, lay down the law applicable to and controlling in the case at bar, and we do not deem it important to discuss or review the many other cases cited.

Counsel for plaintiff in error insist that the trial court erred in refusing to give to the jury the special charge requested, and in the language of' the request, to-wit:

“In crossing a street car track at the intersection of a street the driver of a loaded wagon is not required to look the whole length of the visible track to see if a ear is coming, but the plaintiff would be required to look along the track far enough to warrant an ordinarily prudent man, having in mind his own safety, under like circumstances, to conclude that no car was in such proximity as to endanger his safety in crossing. And if by looking Philip Kiner could have seen the approaching ear in such proximity and time to have avoided the accident, your verdict should be for the defendant. ’ ’

We think the court in its general charge substantially charged the law as requested, and that it was not error not to repeat it in a special charge, and that the refusal to give the request was not prejudicial to the plaintiff in error.

The request was clearly taken from the 8th syllabus of the case of Marden v. Portsmouth, K. & Y. Street Railway, 60 Atl., 530, which reads:

“8. In. crossing a car track at the junction of a street, the traveler is not required to look the whole length of the visible track to see if a car is coming, but along the track far enough to warrant an ordinarily prudent man, having in mind his own safety, under like circumstances, to conclude that no car was in such proximity as to endanger his safety in crossing.”

This charge, as well as the charge requested, would be misleading in that it implies that under all and every circumstance “the driver of a loaded wagon,” in crossing a street car track, while not bound to look the whole length of the visible track, yet nevertheless would be bound before crossing to look along the track, and this without regard to the particular circumstances of the case; that a failure to look along the track before crossing would defeat a recovery.

We do not think this is the law in Ohio. We do not think it is incumbent upon one about to cross a street car track, whether upon foot or with a team, as a matter of law, to look and listen. It is sufficient if he exercises reasonable car, and whether he exercises reasonable care is a question of fact for the jury, depending upon the circumstances of each particular case. 5th and 6th Syl., Marden v. Portsmouth Ry. Co., supra.

In Cincinnati Railway Co. v. Snell, 54 O. S., 197, the court lays down the following rule:

“A person about to cross the track of a street railway at a street crossing is bound to exercise care proportionate to the danger to be avoided and the consequences which might result from want of it, conforming in amount and degree to the particular circumstances surrounding him; but it is only ordinary care which is required, that which might reasonably be expected of persons of ordinary prudence. Ordinary care does not require him to anticipate negligence on the part of those operating the railway; and while he should use his faculties for his own protection, it is not negligence per se for him to omit to look in both directions for the approach of a car. Whether it is or not negligence depends upon the particular circumstances.”

Massachusetts eases are cited in the opinion of the court to the following effect:

That the fact that plaintiff’s evidence does not show that he looked up and down the street before crossing is not as matter of law conclusive evidence that he was not in the exercise of due care, and that the mere fact of not looking when one attempts to cross a railroad is not conclusive evidence of want of care. Citing Williams v. Grealey, 112 Mass., 82; Bowser v. Huntington, 126 Mass., 391; Shapleigh v. Wyman, 104 Mass., 118.

Our own Supreme Court, in the ease of Steubenville & Wheeling Traction Co. v. Brandon, supra, lays down the following rule:

“Omission by one about to drive a horse and wagon across a street railway track constructed and operated upon a public street * * * to look for the approach of a car, is not in all eases and as matter of law negligence which will defeat a recovery for injuries received by such driver in a collision between the wagon and a car of the railway company, his duty being to exercise ordinary vigilance to avoid a collision, and whether he has exercised such vigilance or not depends upon •the circumstances of each particular case.”

We think there was no’ prejudicial error in the refusal of the court to give the charge requested.

Plaintiff in error contended at the trial below that decedent’s death did not result from the injuries received at the time of the accident, and to rebut the plaintiff’s evidence offered in support of her claim that decedent’s death was produced by the injuries received, or resulted therefrom, called two physicians, Drs. Findley and Harding, who testified that they saw Kiner (decedent) at the hospital immediately after ho had been injured, and in company with Drs. Miller and Meeklem examined him with a view to ascertaining the nature of his injuries. They were occupied in their examination about thirty minutes and never saw the deceased afterwards, at least Dr. Harding did not. Dr. Findley was the regular physician and surgeon of the railway company, and Dr. Harding was paid by the railway company and made his report to the company’s surgeon, Dr. Findley. They both testified as medical experts, neither of them being the family physician of Kiner, or having any personal knowledge of the actual cause of death; but in answer to various hypothetical questions gave it as their opinion that death was not the result of the injuries received on the 24th day of June, 1909.

Dr. W. S. Mecklem was the family physician of decedent. He took charge of Kiner the night of the accident, and he saw him every day for about two weeks after the injury, and then he saw him off and on at his office until Kiner was unable to be out of his house. He had been the family physician for two or three years before the injury. He testifies that Kiner was in good health up until the time of the accident. He testifies that. from the time of the injury until the death that decedent complained of pains in his breast and in his heart. He says he died of heart trouble — called by the expert physicians endocarditis, that is, inflammation of the lining of the membranes of the heart and valves.

This family physician, who treated Kiner from time of his injuries until he died, saw him the day preceding his death in the morning and testifiés that his death was caused by the injuries received at the time of the accident.

During all of the time intervening between the accident and the death of Kiner, he had great trouble in breathing, and toward the last of his sickness he was unable to lie down but sat propped up in a chair.

As against the testimony of Mecklem, Drs. Harding and Findley give it as their expert opinion that death did not result from the injuries received at the time of the accident.

The jury are the sole judges of the weight to be given the testimony. These physicians appeared and testified before the jury. They had the opportunity to observe the medical witnesses in giving their testimony, and their bias in the ease, if any was manifested. Dr. Findley, as above stated, was the regular retained physician and surgeon of plaintiff in error. Dr. Harding was a professional witness, and was usually called in such eases as a medical expert, according to his own testimony. The jury had the right to believe the testimony of the family physician as against both the other witnesses; and after carefully reading the testimony of these several witnesses it is manifest to the court, as it must have been to the jury, that the testimony of Dr. Mecklem, the family physician, sustained and reinforced by the testimony of the witness, had the greater weight.

The value of expert testimony, especially the testimony of medical experts, in many jurisdictions is not regarded as the highest class of testimony. Dr. Allen McLain Hamilton, in his “System of Legal Medicine,” has criticized the testimony of medical experts, and especially the usual hypothetical question, and if he were to express himself since the celebrated Harry Thaw trial he would use more vigorous languag§ than he used at the time of writing his “System of. Legal Medicine.” He says:

“Much criticism has been indulged in by the courts as to the value of expert evidence. Lord Campbell’s remark in the case of the Tracy Peerage, 10 C. L. & Fin., 191, has been often quoted to the effect that the skilled witnesses come with such bias on their minds to support the cause in which they are embarked that hardly any weight should be given to their evidence.”

And again:

“Attention has been elsewhere directed to the appearance of expert witnesses in courts of law, and the difficulties and abuses which attend the introduction of this kind of testimony have been pointed out. Much of the disrepute into which hired testimony has fallen is undoubtedly due to a kind of partnership which many men find it difficult to avoid, for the engagement of their services implies a bid for actual help in advancing a side by the building up of theories or reasons for the support of a more or less tenable position. If the expert be careless of his reputation, weak or corrupt, he will lend himself to the side of the case upon which he has been retained, and in reality he becomes a pleader, prostituting his knowledge, stretching a point, or burying his conscience.
“If he is not absolutely free his sympathies will be appealed to. It therefore becomes him to avoid espousing the cause of any side. * * # In other words, the medical witness who is called to give his opinion regarding the facts submitted to him should emulate the judge upon the bench in his impartiality.”

It is undoubtedly true, as stated by this eminent alienist, that so-called medical expert testimony is growing into disrepute before the courts of this country, and it is not strange that juries are often disposed to give little credit to it.

After reading the entire record, the court has reached the conclusion that the jury reached, to-wit, that Philip Kiner’s death was caused by the injuries received at the time of the accident. It is not necessary that the injuries received should be the sole and only cause of death, but if they were the primary cause, or if they contributed to produce the condition which caused the death, it would be sufficient.

The expert physicians themselves admit that the-heart trouble of which Kiner died might have been the secondary cause. Not only so; Dr. ITarding testifies that “if the rib was fractured directly over the heart, and that rib in any way pressed the covering of the heart, there might be a possibility of an injury there to the heart, and that such an injury might produce endocarditis,” the disease of the heart of which Kiner died.

Considering the whole record as it comes to this court, having carefully read it with a view to determining whether error intervened as claimed, the court is not impressed with the contention of the plaintiff in error that the verdict of the jury was against the weight of the evidence, or that the judgment was contrary to law.

We have reached the conclusion that the verdict of the jury was supported and warranted by the evidence, and that the court committed no error in rendering judgment thereon, or in overruling the motion for a new trial. The court finds no prejudicial error in the record, and the judgment is affirmed, with costs, but without penalty, and the cause will be remanded for execution. Exceptions noted.


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    VALIDITY OF PROXIES FOR. VOTING STOCK.
    Court of Appeals of Hamilton County.
    State of Ohio, on the Relation of William L. Voight, v. Susanna M. Voight, Frank E. Edwards, Florence G. Goebel, Jacob Hoffman and Charles McGovern.
    Decided, July 21, 1913.

      Corporations — Proxy for Voting Stock — Can Not he Given hy an Infant — Sow Such Authority Must he Exercised hy an Executor. ■

    1. An infant has not authority or right to give a pfoxy for the voting of his or her stock in a corporation.
    2. To render valid a proxy given by an executor it must be accompanied by a specific direction as to the manner in which the vote is to be cast, with no discretion whatever in the holder of the proxy, but authority only to perform the purely ministerial function of voting the stock as directed.

      Won. Thorndyhe, for relator.

      Heo'man P. Goebel, contra.
    Jones, E. H., J.; Swing, J., and Jones, O. B., J., conenr.
   This is an action brought under Section 12303, General Code, against the defendants, who claimed to have been elected as directors of the United States Wall Paper Company, a corporation organized under the laws of the state of Ohio, at an election held in January, 1913.

The petition alleges that said election was illegal and void for certain reasons therein stated, and asks that this court will so declare, and that a judgment of ouster from the office of director of said corporation be entered against each and all of the defendants above named, and that an order be made inducting William L. Voight into office as one of the directors of said company. t

Without entering fully into a statement of the facts and circumstances upon which relator relies, and proceeding to determine the points in controversy, we find, first: Upon the evidence adduced, that, for the purpose of voting at least, the one hundred shares of stock which had been hypothecated to Lewis Voight, Senior, and then endorsed by him over to the United States Wall Paper Company to secure the payment to it of three notes given by the Lewis Yoight Wall Paper Company, are the property of said Lewis Yoight, Junior, and that the presiding officer at the meeting of the stockholders in January, at which said alleged election took place, was not warranted in refusing to permit said Lewis Yoight, Junior, to vote said one hundred shares of stock. We base this conclusion upon the memorandum which Lewis Yoight, Senior, on January 12, 1912, caused to be made on the books of the company, and also upon the fact that in his- will probated in October, 1912, he forgave all the indebtedness due him from Lewis Yoight, Junior.

Having held that Lewis Yoight; Junior, had a right to vote these one hundred shares of stock, the other questions in the case became immaterial so far as the legality of the election of directors is concerned. But, .there being the necessity for another election, for the guidance of the parties in the future we deem it our duty to say that an infant has no right to give a proxy to another to vote his or her stock in a corporation, and that in rejecting such votes no mistake was made at the Januany, 1913, election.

We are also of opinion that the executrix was without power to give a proxy such as was given to Mr. Edwards to be exercised by him at said election. A proxy given by an executor containing express directions for whom the votes shall be east, might be, and indeed we think would be, valid and binding, but the proxy attempted to be given here was a complete delegation of the authority of an executrix and contrary to the spirit and letter of the law. The discretion lodged in an executor must be exercised by him alone and can not be delegated. See Bocock v. Pavey, 8 O. S., 270; Allen v. Globe Insurance Co., 19 W. L. B., 198. After such discretion is exercised, the purely ministerial act of recording that discretion or .announcing it by way of a vote may, we think, be exercised by another.

The prayer of the petition ousting the five defendants named from the office of directors of said United States Wall Paper Company will be granted, and no order of induction will be made.


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    RIGHTS OF LANDLORD WHERE TENANT HOLDS OVER.
    Circuit Court of Cuyahoga County.
    William S. Kerruish v. The Cleveland & Sandusky Brewing Company.
    Decided, May 15, 1911.

      Landlord and Tenant — Holding Over — Intention of Tenant Immaterial.

    Where a tenant holds over the term of a lease, either by remaining in possession of the premises personally, or through his tenants or subtenants, his intentions and desires as to the lease are wholly immaterial. By his mere act in remaining in possession of the premises after the term, the tenant gives the landlord the choice of election, to treat him as a tenant for a new term, or as a trespasser, and the landlord has this election wholly independent of any desires, wishes or intentions on the part of the tenant.

      Kerruish (& Kerruish, for plaintiff in error.

      Higley, Maurer \& Dautel, contra.
    Henry, J.; Winch, J., and Marvin, J.} concur. '
   The parties to this proceeding in error stand here as they stood below. There the defendant had a verdict and judgment on both causes of action set up in plaintiff’s second amended petition, viz: first, for damages for the failure of the defendant, as lessee of plaintiff’s three-story brick saloon and dwelling, located at and known as Number 15 Central viaduct, in the city of Cleveland, for the term of three years, ending February 28, 1906, to deliver up and surrender to the plaintiff and -his heirs possession of said premises at the expiration of the term aforesaid, in as good condition and repair as the same were in at the commencement of said term, natural wear and decay, and the destruction and damage by the elements or electricity, or by any act of God, or by means of invasion, insurrection, riot, civil commotion, or by any military or usurped power only excepted, ’ ’ according to said lessee’s covenant in that behalf. Secondly, for $720 annual rental, due from the defendant for the year next succeeding the original term, because of its holding over as such lessee beyond the expiration of said original term, by and through its sub-tenant’s occupancy of a part of said premises until March 17, 1906.

On page 102 of the bill of exceptions, August J. Lowe, a witness for the defendant, and the manager of its claim branch or department, was asked, on re-direct examination, concerning an interview between himself and one Schultz, who occupied a part of the premiess at and after the expiration of the original lease:

‘ ‘ Q. Did he at that time say anything about the arrangements with Kerruish about staying there in the property? A. Schultz and his wife. He said he had been to Mr. Kerruish and saw about occupying the premises, and he said he had made arrangements with Mr. Kerruish to stay there and look after the premises for him.
“Objection by counsel for plaintiff.
“Objection overruled to which ruling of the court counsel for plaintiff then and there excepted.”

If this objection was seasonable, and sufficient to save the point, there was error in this ruling. As will hereinafter more fully appear, there was nothing to take this conversation out of the usual rule which forbids evidence of the language or conduct of one who is not a party to the action being received to bind one who is a party, and who was absent at the time of the conversation or action so testified to.

The court refused to charge plaintiff’s fifth and seventh requests to charge before argument, as follows:

rT5. Where a tenant is holding over the term of a lease, very slight acts on the part of the landlord such as a short lapse of time, acceptance of rent by him, or a demand for rent or the like, are sufficient to constitute his election, and makes the occupant his tenant for a new term. But the tenant has no such election. His mere continuance in possession fixes him as a tenant, for another year, if the landlord thinks proper to insist upon it, and the rights of the landlord will not be affected by the fact that the tenant refused to renew the lease, and gave notice that he intended to leave the premises.
“7. Where a tenant holds over the term of a lease, either by remaining in possession of the premises personally or through his tenants or sub-tenants, his intentions and desires as to the lease are wholly immaterial. Actions speak louder than words, and the tenant, by his very act in remaining in possession of the premises after the term, gives the landlord the choice of electing to treat him as a tenant for a new term, or as a trespasser, and the landlord has this election wholly independent of any desires, wishes, or intentions on the part of the tenant. ’ ’

If by the penciled letter “G” in the margin opposite the defendant’s seventh request to charge before argument, we may assume that such request was granted, the court instructed the jury as follows:

“7. If the jury find from the evidence that plaintiff knew at all times after March 1st, 1906, that the defendant intended and desired to surrender the premises on the termination of the written lease, and further knew that the occupancy by the under-tenant Schultz of a part of the lower floor until March 17th, 1906, was without the assent of the defendant, then such occupancy by Schultz did not amount to a holding over by defendant upon which plaintiff could elect to hold defendant as a tenant for another year.”

At pages 196 and 197 the court, in its general charge, instructed the jury:

“But such holding over by the sub-tenant must be with the assent of the tenant; if the holding over is with the assent of the tenant, then that holding over is holding over of the tenant or lessee. If such holding over of the sub-tenant is not with the assent of the lessee or tenant, then the tenant would not be bound to pay the rent for such time as the sub-tenant occupies the property. ”

The learned judge clearly misconceived the law. Possibly plaintiff’s fifth request, taken substantially from the opinion in Railroad Co. v. West, 57 O. S., 161, 166, contained elements not strictly germane to the facts of this case; but his seventh request should, and the defendant’s seventh'request should not, have been given. Neither should the court have instructed the jury as in the above quoted excerpts he did charge. Haynes v. Aldrich, 133 N. Y., 287; Bacon v. Brown, 9 Conn., 334; Sullivan v. George Ringler & Co., 69 N. Y. S., 38; 59 App. Div., 184; 171 N. Y., 693; Campan v. Michell, 103 Mich., 617; Dimoch v. Van Bergen, 94 Mass., 551; 2 Tiffany’s Landlord and Tenant, 207, p. 1459; 1 Taylor on Landlord and Tenant, 524, p. 133,

To the contrary, Wood on Landlord and Tenant, page 27, cites only an English authority. There the rule is not the same as in the United States. Here the non-assent of the lessee to the sub-tenant’s holding over is immaterial, and evidence of the latter’s assurance to the lessee that he is occupying by arrangement with the landlord, is admissible neither for the purpose of showing the holding over was not licensed by the lessee, nor that there was any actual existence of such arrangement.

For the errors thus indicated, the judgment is reversed. We can not accede to the suggestion that the reversal shall relate only to the second cause of action; because the jury’s finding that the lessee’s occupancy terminated February 28th, 1906, with the expiration of the lease, was predicated upon an erroneous charge, and it may be that the premises were left by the lessee in the state of disrepair, originating at a later date, but still within the period of the defendant’s hold-over tenancy, if any.

Judgment reversed and cause remanded.


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    APPEAL DOES NOT PREVENT JUSTICE PAYING OUT MONEY RECEIVED FROM GARNISHEE.
    Circuit Court of Cuyahoga County.
    Enoch’s Lumber & Manufacturing Company v. Glenn E. Griswold et al.
    Decided, May 15, 1911.

      Attachment — Appeal—Money Paid into Court Turned Over to Plaintiff —Bond of Justice Not Liable.

    There being no express provision of statute requiring that money paid by a garnishee into court shall be held by a justice of the peace pending the expiration of the time allowed by law for taking an appeal from his judgment, neither he nor his sureties can be held liable for his making payment of the same to the plaintiff in attachment, though an appeal be afterwards taken and the action,' after such appeal, be voluntarily dismissed.

      Frank Eigley, for plaintiff in error.

      W. G. Dille, contra.

      Henry, J.; Winch, J., and Marvin, J., concur.
   Tbe parties to this proceeding in error stand as they stood below. There the defendants prevailed in an action on the official bond of a justice of the peace to recover money of the plaintiff, which was garnisheed in the hands of its debtor, voluntarily paid by the latter to said justice, and by him paid to the plaintiff in attachment after judgment, but before the ten days, allowed by law for appealing from such judgment, had expired.

The legality of such payment within that period is the sole question before us. Other questions concerning the sufficiency of the service of the writ of attachment, as disclosed by the constable’s return, the time when service by publication on the Enoch’s Lumber & Manufacturing Company was or could lawfully be begun, and the jurisdiction of the justice in view of these matters, are sought to be raised on the finding of facts made by the court below. But the admission of the pleadings are conclusive upon all these points, leaving nothing for us to decide save the question first above stated.

On this we hold that, in the absence of any express provision of statute requiring that money paid by a garnishee into court shall be held by the justice pending the expiration of the time allowed by law for taking an appeal from his judgment, neither he nor his sureties can be held liable for his making such payment to the plaintiff in attachment, though an appeal be after-wards taken, and the action, after such appeal, be voluntarily dismissed. When the payment was made, the judgment was in full force and effect. Nothing that happened afterwards can invalidate the payment so made.

Judgment affirmed.


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    ACTION FOR. AN ACCOUNTING.
    Court of Appeals for Hamilton County.
    Morris L. Buchwalter, Administrator of the Estate of Thomas C. Campbell, Deceased, v. Byron M. Clen-Dening and The Snow-Church Company.
    Decided, July 14, 1913.

      Actions — iEstoppel Not Avoided Toy Changing the Form of — Contention Between Law Partners as to the Ownership of Fees.

    A plaintiff against whom judgment has been rendered is estopped from prosecuting a second action against the same defendant for the same subject-matter by merely changing the form of the suit.

      Robertson <& Buchwalter, for plaintiff.

      Ellis G. Kinhead, contra.
    Swing, J.; Jones, E. H., J., and Jones, O. B., J., concur.
   This case is here on appeal and is an action for an accounting growing out of a partnership. We are of the opinion that on the law and the facts plaintiff has not made out a case and that his petition should be dismissed.

The evidence seems clear and conclusive to the effect that Mr. Woodward, acting for the Inter-terminal Company, employed Mr. ClenDening to transact the necessary legal business connected with the project in hand; that Mr. ClenDening entered upon the work in the early part of the year 1902; and that he continued in this work under a verbal contract until June 16th of that year, when Mr. Campbell came to Cincinnati, when he advised that the contract should be reduced to writing and this was done. The contract, by mutual consent, and for good reasons as it seemed to both ClenDening an°d Campbell, was taken in the name of Mr. Campbell, but it was not intended to make the contract made by Mr. ClenDening the individual contract of Mr. Campbell. Very little of the total work done under this contract was done till after the death of Mr. Campbell.

The contract of partnership between Campbell and Clen-Dening contained this provision:

"In the event of a termination of this agreement, all matters brought into this concern by Mr. ClenDening shall remain in his care as his own business, all other matters to remain the business of Snow-Church Co. or Mr. Campbell. Neither party to have a claim against the other for work done on pending business at the time of termination hereof. ’ ’

The evidence seems clear that the business connected with the Inter-terminal Company was brought into the "concern” by Mr. ClenDening and all work done under it was done by Mr. ClenDening except the drafting of the contract; and by the express terms of the contract, as well as the justice of the ease, Mr. ClenDening should be entitled to the fees earned under the contract.

There seems to us still another reason why the plaintiff should not recover in this action. Some years ago the plaintiff, seeking to recover under this contract brought a suit to which Mr. Clen-Dening was a party, claiming that under the contract he was entitled to the whole amount which was due from the Inter-terminal Company. This suit was decided against the plaintiff in the court of common pleas, and affirmed by the circuit court, and on error to the Supreme Court the judgment of the circuit court was affirmed. In that case the only controversy litigated was whether Campbell or ClenDening was entitled to the fee. The litigation was carried on wholly by the parties to this action. The parties in this action who are interested are the same and the subject of the controversy is the same; the only difference is in the form of the action. Plaintiff having elected to bring this action in the manner he did, and it having been decided against him, should be estopped from prosecuting another action for the same subject-matter in another form.

As to the books and office furniture, that does not appeal to us as being of much moment or serious controversy and should be adjusted by the parties on a fair basis.


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    AS TO RECOVERY BY DIVORCED WIFE OF EXPENSES FOR CHILD’S SUPPORT.
    Circuit Court of Cuyahoga County.
    Elizabeth C. Hackenberg v. Harvey E. Hackenberg.

    Decided, May 23, 1911.

      Divorced Wife Can Not Charge Husband for Child’s Expenses, When.

    When the mother of a minor child is awarded its custody, in a divorce proceeding between her and the child’s father, she is not thereby clothed with authority in the first instance, and until the father neglects or refuses to make suitable provision for the child’s maintenance, to incur expense in that behalf, except only in those matters, to-wit, board and lodging, which are naturally incident to the custody of the child while residing with its mother.
    Cushing, Siddall & Palmer and A. E. Powell, for plaintiff in error.

      Squire, Scmdersj(& Dempsey, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.

      Affirmed, without opinion, 88 Ohio State.

   In tbe common pleas court tbe relation of tbe parties was tbe same as here, tbe plaintiff claiming in ber petition relief upon three causes of action, all of which grew out of a divorce proceeding in Lorain county in 1903, wherein tbe plaintiff was divorced from the defendant and given tbe custody of their minor child. By alimony agreement, made out" of court, there was transferred to tbe plaintiff tbe homestead in this city, worth from $7,500 to $8,000; tbe household goods therein contained, and stocks of various companies in par value as follows: National Carbon Company, $10,000; Dow Chemical Company, $10,000; Iroquois Portland Cement Company, $5,000.

Since the settlement, the last named company has become insolvent, and the Dow Chemical Company’s stock has depreciated in the market.

Plaintiff’s canse of action were, first, for the support and maintenance of the parties’ son until his majority; second, for breach of guaranty that said stocks would pay dividends at a rate not less than. 6 per cent.; third, for deceit in representing the Iroquois Portland Cement Company’s stock to be worth par, when in fact it was at the time of transfer worthless. The trial court directed a verdict against the plaintiff as to the first and third causes of action but submitted the second cause of action to the jury, which found against the plaintiff.

By the first cause of action, the plaintiff sought to recover the reasonable value of the .support and cost of maintenance as afforded by her to her son, so far as such provision was necessary and proper for the youth’s uprearing in his walk of life. The defendant introduced more than a score of letters written during the latter’s minority, in which he declares his willingness to provide for the lad, and demands that he be consulted with and applied to respecting the boy’s needs. Although these contained some irrelevant matter they were properly admitted in evidence upon the theory that if the father was willing and able to supply his son’s needs, the plaintiff had no right to anticipate his action, notwithstanding that the custody of the lad had been awarded to her by the decree of divorce, without express provision for his support. The rule of Pretzinger v. Pretzinger, 45 O. S., 452, stands, of course, unchallenged to the effect that:

“The obligation of the father to provide reasonably for the support of his minor child, until the latter is in a condition to provide for his own support, is not impaired by a decree which divorces the wife ‘ a vinculo’ on account of the husband’s misconduct, gives to her the custody, care and nurture of the child, and allows her a sum of money as alimony, but with no provision for the child’s support. The mo then may recover a reasonable compensation from the father for necessaries furnished by her to the child after such decree, and may maintain an original action for such compensation against the father, in a court other than that in which the divorce was granted. ’ ’

The father accordingly made a regular allowance, such as he deemed sufficient to meet the cost of his son’s board and lodging, this part of his maintenance being necessarily furnished by the mother as an inseparable incident to her right of custody of the boy, so long as he remained at her home. For his clothing, tuition, pocket money, etc., except in so far as these might be supplied out of said allowance, the father insisted that he should be consulted about, and should authorize in advance, instead of having his credit pledged therefor at the mother’s sole discretion.

The letters to his son, above referred to, were admittedly received by the latter and read by both him and his mother, who, however, refused to accede to the father’s views. The expenses sought to be recovered under the first cause of action below were, therefore, incurred and paid by the mother, and not by the father.

We fail to find any authority precisely in point upon the question, but upon mature deliberation we hold, that the theory entertained by the court below is correct, and that’ the mother, notwithstanding that she was decreed the personal custody of the child, was not thereby clothed with any authority in the first instance, and until the father neglected or refused to make suitable provisions for his son’s maintenance, to incur expense in that behalf, except only with regard to those matters, to-wit, board and lodging, which were naturally incident to the custody of the youth while residing with his mother. In other words, she was in no better position, by virtue of her right of custody, to pledge the father’s credit for his son’s maintenance, except in the particulars mentioned, than a stranger would be in. Any one may provide necessaries for a child and charge the same to the father, but not before the latter has refused'or neglected so to do. Nor has the mother any wider authority, where the family relations have been disrupted by a decree of divorce obtained by her for the husband’s agression, and awarding to her the custody of their child, save only that she may recover from the father in any case the reasonable cost of the child’s board and lodging.

An attempt was made by the plaintiff below to produce evidence, consisting of her own testimony and that of an expert witness, to show that the reasonable cost of the support furnished by her to her son in this ease amounted to a sum exceeding the allowance paid her for that purpose. She was asked:

“Mrs. Haekenberg, you may tell tbe jury wbat, in your opinion, was the reasonable value of the support of, care, clothing, educating, and similar things, afforded your son by you during the period from March 27, 1903, to July 7, 1907?”

Objection to this question was sustained and exception noted, and an offer made to show “that the witness would say that such things were of the value of $125 per month.”

It is manifest that this question embraces items which, on the view above expressed, could not afford a basis of recovery without proof of the father’s refusal or neglect to provide them, and it is further objectionable because the expression “similar things” calls for the conclusion of the witness as to what things were similar. There was therefore no error in this ruling.

For reasons already explained, the testimony of the plaintiff as to the clothes bought for the son was properly excluded. Her testimony as to the disposition of all her income offered for the purpose of showing by the elimination of the expenditures made for herself, that the residue was the cost of maintaining her son, is of course incompetent as’ a method of proving that fact.

Mrs. Mary McNeil, experienced in keeping a high class boarding house for many years, testified as to the cost of board such as that furnished young Haekenberg. This testimony was afterward properly excluded, because it appeared that her experience was limited to the keeping of boarders in a household of which she was herself' a member, and in connection with which she obtained her own support, and she was admittedly unable to separate her costs from her profits.

There was no competent evidence left before the jury to show that the reasonable expense incurred by the mother for boarding and lodging her son exceeded the allowance made to her by the father for that purpose. And since there was also no proof whatever of any refusal or neglect of the father to provide suitably for his son’s maintenance in this or in any other respect, the court was justified in directing a verdict for the defendant on the first cause of action, as was done.

The alleged guaranty, whereon the second cause of action was founded, was put in issue by the defendant’s answer, as was also the alleged breach thereof. The testimony in support of the making of such guaranty consisted chiefly of the testimony of the attorney for the wife in the divorce proceeding, by whom the agreement concerning alimony was negotiated for her. lie testified at page 112:

“There was a great deal of talk along that line, and it was finally said by myself that so far as I was concerned in the negotiations, I would recommend to Mrs. Hackenberg a settlement of $25,000 in cash, the homestead on G-race avenue, that Mrs. Hackenberg should secure the divorce on account of the aggressions of her husband, that she should have possession of Albertus, and that an arrangement should be entered into to that effect, and that Mr. Hackenberg should pay for his tuition, his clothing and his maintenance with the mother. ’ ’

On page 135 he testifies that Mr. Hackenberg said that he wanted Mrs. Hackenberg to take $10,000 in National Carbon stock, which he said.was paying 7%, and Dow Chemical stock, $10,000 which he said was a gilt-edged secured stock, and was paying, I think, I am not just sure about that, but I think, one-half of one per cent, a month, or 6 per cent, a year; that it was a first class security, a first class stock; that the Iroquois Portland Cement Company’s stock at that time was not paying dividends; that he would give $5,000 of that, but that they were making large quantities of cement successfully at that time, and were obtaining a good market for it, and selling it at a profit, and that it would be paying dividends in June or July of that year.

He further testifies:

“Then Mr. Hackenberg said ‘these stocks will always pay at least 6% dividends. I am as much interested in Mrs. Hackenberg now as I ever was. I feel as kindly disposed toward her as I ever did. I want my family protected, and these stocks are better for her than cash. Besides, if she takes the stocks, I never want her to be induced by anybody to part with them for less than par. If anything should occur to reduce the value of these stocks, I will immediately notify her, and she can come in and I will take the stocks at par, but under no circumstances do I want her to sell or dispose of these stocks.”

He subsequently testified that this proposition was accepted.

This version of the agreement certainly does not require proof, if indeed it can be said at all to warrant, an. inference, of the correctness of the claim of guaranty on which the plaintiff sued. Moreover, as bearing upon the likelihood that such a guaranty was made, it appears that the negotiations was conducted along the lines of working out a substantially equal division between the parties of Mr. ITackenberg’s net assets; and that this was accordingly done, he retaining a larger amount of each of the stocks which have since depreciated than he transferred to Mrs. Haekenberg, so that after the depreciation his share in the division became not only less than hers, but less than one-half of the valuation of her portion after deducting losses.

We see no reason to disturb the jury’s finding implied in their verdict for defendant, that no such guaranty as the plaintiff claims was in fact made.

It follows that the errors alleged to have been made in ruling • upon evidence of values of the stock in question are immaterial. Two errors in the charge are complained of. The first is in refusing to direct the jury to return a verdict for the plaintiff as to the Iroquois stock if they found that , a guaranty had been made.

There was evidence from which the jury might have inferred if they had had occasion to pass upon the question, that the Iroquois stock was valueless; but plaintiff’s evidence upon that subject was not conclusive, and it would have been error to require the jury to return a verdict for the plaintiff for the full par value thereof.

The colloquy of counsel and court was followed by this instruction :

“Now gentlemen, you see that the lawyers differ in that regard as to what the testimony was. It is for you to settle that matter from your recollection of the testimony. If your recollection of the testimony is that in June, 1908, if the evidence here shows that at. that time the cement company stock had no value, then if the plaintiff recovers, the measure of recovery would be the par value of that stock with interest. If .the evidence does not show that, if the evidence shows that that stock had some value at that time, then the amount of recovery, if the plaintiff recovers, would be the difference between that value and the par value. I will have to leave that for you gentlemen to determine from your recollection of the evidence, providing you find that there was a warranty and breach of warranty as to that stock.”

We find no error here.

The court charged:

“A warranty, if you find one to have been made, must have been made by wliat was said and done on the 20th of March; all agree to that.”

The plaintiff did not agree to that, but very heartily differed therefrom. It is, however, of no consequence whether the plaintiff did or did not agree, for the evidence showed that this1 agreement was made and was consummated on the 20th of March, when the negotiations reached their conclusion. We find no error in the charge in this respect.

The third cause of action for deceit was not seriously pressed, and it is not now claimed that the court erred in the directing of a verdict for the defendant in that behalf.

We find no error In 'this record, and the judgment is affirmed.


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    MOTIVE IN CRIMINAL PROSECUTION.
    Circuit Court of Cuyahoga County.
    Moses R. Brailey et al v. George A. Williams.
    Decided, June 2, 1911.

      Malicious Prosecution — Charge.
    In an action for malicious prosecution it is error to charge the jury: “If the defendant instituted the criminal prosecution in question with any other motive than to cause the punishment of the plaintiff for a breach of the criminal law, it would constitute malicious prosecution.”

      Patt&rson <& Nieding, for plaintiff in error.

      Weed, Miller & Rofhenberg, contra.

      Henry, J.; Winch, J., and Marvin, J., concur.
   In the action below, for malicious prosecution, the plaintiff prevailed. The trial court granted plaintiff’s first request to charge:

‘1 If the defendant instituted the criminal prosecution in question with any other motive than to cause the punishment of the plaintiff for a breach of the criminal law, it would constitute' malicious prosecution.”

This was error; an ulterior motive, though it was malicious, was not the only requisite element of malicious prosecution.

The court refused to permit the plaintiff to be asked on cross-examination whether he had not been able to borrow money within a month or two after the criminal prosecution; and, whether he had not in another action admitted that his discharge from employment was due to some other cause than said prosecution. A majority of the court are of opinion that these inquiries were germane to his complaint of injury to his business credit and standing, and should have been allowed. For these errors the judgment is reversed.


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    TITLE ACQUIRED UNDER A NON - NEGOTIABLE BILL OF LADING.
    Circuit Court of Cuyahoga County.
    The National Commission Company v. The Citizens Savings Bank of Upper Sandusky.
    Decided, June 2, 1911.

      Nonu-Negotiable Bill of Lading — ■Transfer of — What Title Passes.

    Under the first paragraph of General Code, Section 8414, the transferee of a non-negotiable hill of lading acquires such title to the goods shipped as the transferor can pass, except that the parties to the transfer may agree that only a qualified title shall pass.

      T. F. Qwigley and H. A. Couse, for plaintiff in error.

      Carpenter, Young ■,& Stocker and W. H. Newell, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The parties to this proceeding in error stand here in the relation opposite to that in which they stood below. There the bank recovered judgment upon two bills of lading of cattle consigned by one Tracy, of Upper Sandusky, to Ms factor in Cleveland, the National Commission Company, for sale by the latter in accordance with previous arrangement by letter. Other persons are named on the face of the bills; but that circumstance is immaterial, for Tracy and the commission company were deemed to be,- and were in fact, the real consignor and consignee respectively. The bills of lading were of the so-called “straight” or non-negotiable sort, capable indeed of being transferred, but not of being negotiated. Tracy had made other similar shipments to the commission company, and had largely overdrawn his account with it; but the factor’s lien, which the latter claimed on Tracy’s last consignment of cattle, more than made good his overdraft, together with all commissions and expenses, out of the proceeds of their sale. Meanwhile, however, he had drawn on his factor for the entire proceeds of this consignment, and had discounted his draft, with the bills of lading attached, to the Citizens Bank of Upper Sandusky. The bank notified neither the carrier nor the factor of this transfer, but sent the draft with bill of lading attached to its Cleveland correspondent for collection. On the day the draft was presented, but before notice thereof, the commission company had sold the cattle and received the purchase money. Applying the proceeds as above indicated, it refused to accept or pay the draft.

Section 8414, General Code, provides, inter alia, that:

“A person to whom a.document of title has been transferred, but not negotiated, acquires thereby, as agarnst the transferor, the title to the goods, subject to the terms of any agreement with the transferor.”

The plaintiff in error contends that this section changes the rule of Emery’s Sons v. National Bank, 25 Ohio State, 360. It is claimed, first, that since the transfer to the bank is by statute made “subject to the terms of any agreement with.the transferor,” it became subject to the terms of the commission company’s agreement with the transferor, Tracy, by which said company obtained lawful possession of the cattle, together with its factor’s lien on the proceeds of their sale, to secure the general balance of account due it from Tracy; and that this is so, even though such agreement was subsequent to the transfer of the-bills of lading. It is claimed, secondly, that Tracy’s said agreement with the commission company was in fact prior to his transfer of the bills of lading to the bank, because the shipment was made pursuant to such agreement when the bills of lading were issued by the carrier.

The correspondence and course of dealing between Tracy and the commission company do not, however, warrant the inference of a prior agreement between them in these terms. Tracy had not contracted to surrender his control of the consignment of cattle without exacting prepayment. He had made no agreement by which he was bound to subject this shipment of cattle to his factor’s lien for previous balance of account. So far as his agreement with the commission company went, he was at perfect liberty to do just what he attempted to do, namely, to create a prior lien on the cattle by discounting the draft with bill of lading attached.

Nor do we think that such transfer is- rendered subject, by the clause of the statute here relied on, to any agreement which the transferor might thereafter make with third parties. True, a subsequent purchaser, for value and without notice, having seasonably notified the carrier thereof, or having obtained lawful delivery,of the cattle from the carrier, would no doubt, under the subsequent provisions of the same section and the other terms of the sale code, acquire an indefeasible' title. But that is not this case. The amount here in controversy is the-preexisting debt due the commission company from Tracy. It paid no new consideration for the cattle.

We hold that the- first paragraph of Section 8414, General Code, above quoted, means that the transferee of a non-negotiable bill of lading acquires such title as the transferor can-then pass, except that the parties to the transfer may agree that only a qualified title shall so pass. The transferee also gains other rights defined in the remainder of the section; but as no such rights were exercised in this- ease, a discussion thereof is unnecessary.

There being no error in the record, the judgment below is affirmed-


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    INJURY TO EMPLOYE IN ELEVATOR. SHAFT.
    Court of Appeals for Hamilton County.
    The Pfau Manufacturing Company v. Frederick B. Beck, a Minor, by Bernard F. Beck, Next Friend.
    Decided, July 2, 1913.

      Negligence — Proximate Cause of Injury to Foot in an Elevator Shaft — ■ Injured Employe Held to Have Placed Himself in a Dangerous Position.

    The tying of the door of a freight elevator to the ceiling, thereby preventing it descending when the elevator was moved from that floor, was not the proximate’ cause of injury to plaintiff's foot, which was crushed by the descending balance weight when he stepped upon the ledge of the shaft, and looked up to see where the elevator was, and a motion to arrest the case from the jury should have been granted.

      Rob erIson & Buchwalter and T. C. Jung, for plaintiff in error.

      Milton Saylor and Horstman & Horstman, contra.
    Jones, E. H., J.; Swing, J., and Jones, O. B., J., concur.
   This action was brought in the court below by Fredrick B. Beck, a minor, by his next friend, Bernard F. Beck, to recover damages from the plaintiff in error, the Pfau Manufacturing Company, for injuries received by said minor while in the employ of said company. The amended petition alleged that at the time of the happening of said injury, plaintiff was sixteen years of age, and was employed on the fourth floor of the factory of the Pfau Manufacturing Company. Just prior to receiving the injuries complained of he was sent by the foreman .to the first floor of said building for the purpose of bringing from the first floor some boxes or other material by the freight elevator to the fourth floor. After reaching the first floor and after spending some little time collecting the desired material, he looked for the elevator and found that it had dissappeared. The petition further states that the gate leading into said elevator shaft on said first floor was tied to the ceiling, thus leaving the entrance to said shaft open; that in order to look up said shaft to see where the said elevator was, it was necessary for him to step with one foot into the shaft, and as there was no way to support himself in looking up the shaft he placed his right foot on the side of the elevator shaft for support while looking up-; that the instant he put his foot on the side of the elevator shaft, the weight that is attached to the elevator when descending caught his said foot, causing the injury complained of. The amended petition charges negligence on the part of the defendant: first, in having no one in charge of the elevator; second, in allowing different employes to run it.; third, that there was no bell or other means of signalling from one floor to another; and fourth, that the gate on the first floor was tied to the ceiling.

The answer denies any negligence on the part of the company: and further alleges that if it should be found to have been negligent, the plaintiff was guilty of negligence directly contributing to and which was the proximate cause of the injury, and is therefore not entitled to recover.

A number of questions of law are presented by the brief for plaintiff in error, one of which we think decisive .of the case, making it unnecessary to consider any other alleged errors. We have reached, the conclusion, after a careful reading of the record and the briefs of counsel, that plaintiff’s negligence was such in this case as to prevent a recovery. It was a violation of a statutory duty to have the gate leading to the elevator shaft tied to the ceiling, but we can not see that such negligence had any direct connection with the injury to plaintiff. Had the plaintiff by reason of the position of the gate fallen into the shaft and thereby sustained injuries, a different question would have been presented, and it might be claimed that the company’s failure to have the gate free to work automatically was the proximate cause of the injury; in case a jury so found, a court would not likely be justified in questioning such finding. But here the plaintiff’s injury resulted from plaintiff voluntarily walking into the shaft, at least from his partly entering the shaft. It is a matter of common knowledge that the space occupied by an elevator shaft is set apart in such buildings solely for such use, and we can conceive of no situation where a person would be free from negligence in entering a shaft unless for the purpose of oiling or making repairs and then only with the full knowledge of the operator.

We have been cited to no case by counsel for defendant in error where a person either child or adult, who voluntarily placed any part of his body in an elevator and was injured by being struck by the cab, has been held entitled to recover damages, whatever the alleged negligence of the defendant may have been.

On the other hand, the attorney for plaintiff in error has cited in his brief a number of cases holding that such conduct was negligence as a matter of law, such negligence as will preclude a recovery notwithstanding there may have been negligence on the part of the defendant.

We feel that this is unquestionably the law in this state, as ' well as in other states, and that the evidence in this ease shows such a state of facts as that it would be contrary to.law and justice to hold the defendant answerable for the injury received .by the plaintiff.

We have-said that it might have been different had the boy fallen into the shaft by reason of the gate having been permanently tied to the ceiling. It might also have been different, and certainly would have presented a different situation had he been struck by the cab while looking up the shaft; although the cases seem to hold that even in that event he could not recover. ■ But in any event, that is not the case presented in this record. The injuries received were not such as could-reasonably 'have been expected to follow the fastening of the gate to the ceiling, and unless they are in-some way connected with the negligence complained of and follow directly therefrom, the defendant could not be held liable. In order to recover from the defendant, his negligence must have been the proximate or direct cause. It seems to us clear that such was not the case but that, as above stated, the direct or proximate cause was the negligence of the boy in placing himself in a position which he must have known was dangerous. Having so found, we are of the opinion that the motion made by the' defendant below at the close of all the evidence, for an instructed verdict, should have been granted.

' The judgment below will therefore be reversed and judgment given plaintiff in error. .


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    PROCEDURE ON APPEAL.
    Circuit Court of Cuyahoga County.
    Samuel Lippert et al v. Lucy B. Wirt, Administratrix.
    Decided, June 2, 1911.

      Failure to Give Additional Appeal Bond — Penalty.
    The proper penalty for failure to comply with an order to giye an additional appeal bond is dismissal of the appeal, but an order striking off defendant’s answer and giving judgment for plaintiff by default produces the same result and no prejudicial error arises therefrom.

      George O. Willett, for plaintiffs in error.

      B. Pearce, contra.
    Henry, J.; Winch, J., and Marvin, Ji, concur.
   When the plaintiff in error disobeyed the order of the court of common pleas to give an additional undertaking for his appeal of the cause from a justice of the peace, the proper remedy was dismissal of the appeal. Instead, the court of common pleas granted his adversary’s motion to strike off his answer and render judgment as upon default'. The result of either procedure being the same, both as to the parties to the action and the sureties on the appeal bond, no prejudice can ensue from allowing the judgment as rendered to stand.

Affirmed.


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    DISMISSAL OF ACTION FOR LACK OF COMPETENT EVIDENCE.
    Circuit Court of Cuyahoga County.
    The Wheeling & Lake Erie Railroad Company v. Emily Davider.
    Decided, June 2, 1911.

      Sustaining Objection to Any ■Evidence Not a Bar to Another Action Against Same Party.

    An order dismissing a defendant from an action, upon the sustaining of an objection to the introduction of any evidence against it under the allegations of the petition, is not a bar to another action against said defendant.

      Squire, Sanders é Dempsey, for plaintiff.

      A. W. Lamson and W. B. Beebe, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   We see no reason why the Wheeling & Lake Erie Railroad Company, although once dismissed out of the ease below, upon its objection to the introduction, as against it, of any evidence in support of plaintiff’s petition, because said petition failed to state facts sufficient to constitute, a cause of action against it, should not afterwards again be made a party defendant, by leave of court, to answer to an amended petition filed against both it and its co-defendant, before the running of the statute of limitations. The former judgment of dismissal was no bar to a new action (Moore v. Dunn, 41 O. S., 62). It is not material, therefore, whether the allowance of the motion to correct the entry of dismissal was irregular. The reinstatement of the dismissed defendant was the result properly reached.

Passing over the assigned reasons, the court’s last order was, “That the dismissal of said cause as against the Wheeling & Lake Erie Railroad Company be vacated and leave given to file her amended petition,” etc. The affirmance of this order dispenses with the necessity for. relief under the cross-petition in error; which is therefore dismissed.

Judgment affirmed.


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    TRANSFER. OF^LEASE AND RIGHTS THEREUNDER.
    Circuit Court of Cuyahoga County.
    The Superior Savings & Trust Company v. Harry F. Payer et al.
    Decided, June 2, 1911.

      Assignment of Lessor’s Interest in Lease — Does Not Confer Right to Forcible Detainer. . -
    The lessor’s transfer of his interest in a lease works an assignment of the rents, hut conveys no right, possessory or otherwise, to the demised premises, and therefore confers no authority to prosecute forcible detainer.

      Hoyt, Dustin, Kelley, McKeehan ■& Andrews, for plaintiff in error.

      li. E. McKisson, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The action below was in forcible detainer. The plaintiff, as assignee of the lessors, claims the right to prosecute such action by virtue of the following endorsement on the lease of the premises in question:

“For one dollar and other valuable and good consideration, we hereby sell, assign and set over unto the Superior Savings & Trust Company, all .our rights, title and interest in and to the within lease.
“Martin Mullen.
(Signed) “E. H. Helm.
“W. D. McTighe.
“Cleveland, 0., Oct. 9, 1909.”

This, it will be observed, does not amount to a conveyance of the reversion; and we hold that it does not, on the lessee’s default, confer on the plaintiff any “right of possession,” nor any right to “have restitution of said premises,” as provided by General Code, Sections 10447 to 10461, governing this kind of action. We find no authority to the contrary, except in states like New York, New Jersey, Illinois, where such transactions are authorized and regulated by statute. Here, in the absence of any such statute, the lessor’s transfer of his interest' in' the lease doubtless works an assignment of the rents, but conveys no right, possessory or otherwise, to the demised premises, and therefore confers no authority to prosecute forcible detainer. Chamberlain v. Brown, 2 Doug. (Mich.), 120n; 1 Tiffany on Landlord and Tenant, p. 868.

The judgment is therefore affirmed.


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    RECOVERY FOR. INJURY TO A TRUCKMAN.
    Circuit Court of Cuyahoga County.
    Erie Railroad Company v. Antonio Marullo.
    Decided, November 13, 1911.

      Master and Servant — Negligence.
    Failure of a railroad company to furnish cleats to prevent an iron plate or runway between two car doors from slipping, whereby a trucker in its employ was injured, is actionable negligence.

      Cushing, Siddall «#' Painter, for plaintiff in error.

      Harry'P. Payer, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The defendant in error, plaintiff below, recovered a verdict and judgment of $4,000 against his employer, the Erie Railroad Company, for injuries received April 27, 1908, at its Akron freight house, where he was employed as a trucker. Two rows of box cars stood on tracks opposite the platform; and the spaces between the platform and cars, and between cars standing opposite each other on adjacent tracks, were spanned by iron plates, over' which the truckers wheeled their truck-loads of freight in loading or unloading the cars. If the floors of cars to be thus connected were of uneven heights,, so that the iron plate was apt to slip when struck by the truck wheels, a small cleat or other means of holding it in place was nailed or fastened to the car floor in front of it.

Cleats for this purpose were kept in the freight house, and on the morning in question, one Lamanta, a fellow-servant of Marullo, went to the cupboard in the office for the purpose of securing a hammer, nails and blocks for this use, but there the foreman .of the truckers, one Prank Tucker, ordered him away to other work, with the statement that he would get someone else to secure the runway plates. Nothing however was done in this regard, so that in the course of the forenoon, while Marullo was pulling a truck load of books over one of the plates, the plate slipped and caused the truck to fall and become wedged between the cars in such wise as to catch Marullo and seriously injure him. Marullo had been in and out of various ears that morning in the discharge of his duties, and it seems probable, from the evidence, that he had once crossed this iron plate in safety prior to the accident. He says, however, that he did not •observe, and because of the dim light could not readily have seen, that the plate was not blocked or cleated as usual.

This state of facts, of course, makes a plain case of common law liability. Even if the fault were solely that of one who would, at common law, have been a fellow-servant, or if notice to the company, or want of notice to the employe had not been proved, it would seem, that the recovery might be upheld under General Code, Sections 9017 and 9018.

Complaint is made of the court’s refusal to grant defendant’s fourth request that “if the truckers were to place and block the runways, if they needed blocking, and Marullo, the plaintiff, knew that it was their-duty so to do, then he can not recover.”

Likewise, complaint is made of the refusal to give defendant’s somewhat similar seventh request. The bill shows that the seventh request was given and not refused; and besides, at page 298 of the bill, the court said:

“You are instructed that it is the duty of the master, in this case the railroad company, to exercise 'Ordinary care in providing a safe runway for the plaintiff, and the plaintiff had a right to rely upon that duty being performed. But if it be shown by the evidence that the company made it a part of the duty of this plaintiff to lay and secure this runway, and if the jury find that the runway was not secured, in that ease then this plaintiff can not recover.”

. This was certainly all that the defendant was entitled to in this behalf.

It is complained further that although the plates themselves were expressly conceded by the plaintiff not to have been defective, still the court charged the jury in such wise us to leave the question of their defectiveness to them. On page 291, of the bill, however, the court said:

“The evidence introduced in the ease, and before this jury, warrants and justifies. the consideration and investigation by the jury of only one of the acts of negligence charged in the petition, and that allegation is the one in which plaintiff charges that the defendant was negligent in omitting to fasten or nail down the metal runway, ’ ’ etc.

We have carefully examined the entire charge, and find it in many respects more favorable to the defendant than it was entitled to ask, and in no respect less favorable to the defendant than the law requires or permits.

We have carefully examined the exceptions to the introduction and rejection of evidence on each of the pages noted in the memorandum of defendant’s counsel, without discovering any error in the rulings complained of prejudicial to the plaintiff in error.; The exceptions are so- numerous that' it would be unprofitable to attempt to rehearse them in detail.

Suffice it to say, that having examined every assignment of error, we find nothing to justify a reversal, and the judgment is therefore affirmed.