author: GRANT, J.

text:
    CHARGE TO JURY — STREET RAILWAYS.
    [Richland (5th) Court of Appeals,
    1915.]
    Shields, Powell and Grant, JJ.
    (Grant, J., of the eighth district sitting in place of Judge Voorhee's.)
    Mary Harris v. Mansfield Ry. L. & P. Co.
    1. Evidence of Motormen as to Running and Means of Stopping Car, Though Quasi Conclusions of Experts, Competent.
    In an action for injuries to one riding in an automohile, suffered in a collision with an electric car, the evidence of motormen, with reference to running of the car and means for stopping it, is not rendered incompetent by reason of the fact that their testimony was in a sense that of experts involving quasi conclusions which it is the special province of the jury to deduce.
    2. Written Instructions Requested and Given Before Argument Properly Sent to Jury Notwithstanding Charge is Oral.
    It is not error to send to the jury room written instructions asked for and given before argument; and so doing is not inconsistent with the fact that where the charge given after argument is oral, it is impossible that instructions so given should also be sent to the jury room.
    3. Last Chance Doctrine Must be Pleaded to Instruct Upon it.
    The doctrine of last chance must be pleaded to entitle a party claiming its benefits to instructions upon it.

      Brucker, Voegele & Henkel, for plaintiff in error.

      McBride & Wolfe, for defendant in error.
   GRANT, J.

This proceeding seeks the reversal of the judgment of the court of common pleas, because certain errors, as is alleged, have intervened and are shown by the record to the prejudice of the complaining party.

The parties here, as to position, stand in the order of their standing below.

The plaintiff declared on certain acts and omissions amounting to alleged negligence in the operation of one of its cars, whereby she without contributing fault on her part came to her injuries while riding as an invited passenger in an automobile, as was said by her.

The defendant denied the charging parts of the petition by its answer, and retorted certain acts and omissions by the plaintiff as the causes which proximately contributed to, if they did not directly occasion, the hurts received by her. Upon issue joined as to the latter by reply, the cause was put upon its trial to a jury. There was a verdict for the defendant, upon which judgment was entered, after a motion for a new trial had been denied. To reverse that judgment is the prayer of this petition in error.

The main alleged grievances relied on to work such reversals are as stated in the brief of the plaintiff as follows:

“First. Evidence admitted for the defendant and objected to by plaintiff; refusal to admit proper cross-examination of motorman.
“Second. Upon the weight of the testimony plaintiff was entitled to recover.
“Third. Error in giving special request to the jury.
‘ ‘ Fourth. In sending to the jury the written request of the defendant below, given to the jury before argument.'
“Fifth. In refusing to instruct the jury to consider the oral charge in connection with the written request of the defendant below; in other words, allowing the jury to take the written request of the defendant below to the jury room and not instructing the jury to consider the same in connection with the oral charge given in this case.
“Sixth. Error in generally charging the jury.”

In substance we are qf the opinion that some of this rather formidable assignment of errors may be considerably abridged in the discussion of the principles and authorities involved, through the operation of the law of the survival of the fittest.

The first of these has to do with the admission of evidence from two motormen, which partook — necessarily—of the nature of expert information thus imparted to the jury. Equally necessarily, as we think, it carried with it something looking like quasi conclusions, which it is vehemently urged in argument was a clear invasion of what should always be the open and unshared field of the jury.

No inconsiderable part of the not inconsiderable brief of the plaintiff — in fact thirty-six out of its sixty-five pages — is devoted to this one question. A bead roll — it might be called the long roll — of 542 eases are cited in support of this one contention. The brief is quite a misnomer. It is -not brief. In this array, bristling with citation, five times the roll of this Union, from Alabama to "Wisconsin, is called and then the briefer invades England by running the blockade or sailing in judicial Zeppelins. Lest complaint should be made of want of good measure, a lot of cases from the Supreme Court of the United States are thrown in to make the scale beam kick high. In all this ransacking of the armories of ease law for weapons to work a reversal, scant attention is paid to a state still on the legal map — to-wit, Ohio. It would, perhaps, be over-putting it to say that in this brief without brevity, Ohio has not been paid “the cold respect of a passing glance,” but the fact is pretty near that. The case upon which in our opinion this allegation of error must decisively turn, is not mentioned in the main brief of the plaintiff. It is only when it is brought forward under a vigorous claim of being a binding authority here, in the defendant’s brief, that some attention is paid to it in the reply brief of the plaintiff. It is the case of Bellefontaine & Ind. Ry. v. Bailey, 11 Ohio St. 333, the syllabus whereof is as follows:

“In an action to recover damages against a railroad company for the killing of plaintiff’s horses by means of the negligence of the servants of the company 'in running and management of a locomotive and train, the engineer in charge of the locomotive at the time of such killing, who saw the horses when they came upon the track, who is shown to be acquainted with the business of running railroad locomotives and trains, and had been engaged in such business for five years, is competent to testify as an expert, upon questions in respect to the management of locomotives and trains, and to give an opinion whether, in view of the distance between the engine and the horses when the latter came upon the track, it was possible to avoid the injury complained of.”

Because of the long roll referred to, we have examined this case with unusual care, to see if it is to be distinguished to any material effect from the ease at bar, and we do not see why it can be. We do not see why it should be. The reasoning that must, coercively as we think, be brought to bear upon its application to this case, appears to us to be conclusive. The motormen witnesses were conversant, technically as well as actually, with the workings of their cars and the foundation in this respect for the introduction of expert and opinion testimony was sufficiently laid. The fact that these experts led what may be called a dual life in this particular — that is, that they were expert mechanicians and at the same time practical motormen should not, we think, detract from the valué of their testimony. Rather, it should seem, it would add to it in its application to a concrete case in hand, if they were truthful men. They can not divorce themselves from this two-fold relation. The fact that it is double is but an accident of the particular situation. There is nothing disclosed by the record looking like dishonesty in their testimony. If they testified under the fear of losing their employment with the defendant company, it is not apparent here. And if it was, it would be a matter of weight and not competency. And in such case a plaintiff almost never fails to get the benefit of the fact by inveighing to the jury against witnesses who swear with the customary halter of fear of losing their jobs around their necks.

So much for the underlying principles involved.

We have examined the matter also in the light of Judge Brinkerhoff’s rather informing opinion in the case cited. ITis reasoning and the authorities marshalled by him to support it are cogent and convincing. They seem to put the decision on such satisfactory grounds that it has not since been disturbed, though often invoked and often challenged, no doubt, and as we must think followed in eases to which it has been thought properly to appertain. ;

In any event, if applicable to the case in hand, it is conclusive on us. We think it is so applicable, and applying it we find that the ruling of the trial court in admitting the testimony in question was not obnoxious to the complaint lodged against it in this proceeding. We are confident that the weight of authority really bearing on this precise question supports and reinforces this conclusion.

The next assigned error is in substance and effect — although differently worded in the brief — that the verdict and consequent judgment is against the manifest weight of the evidence and is not supported by the evidence.

That question, in this case, was so peculiarly a matter for the jury to determine when properly instructed by the court, that we do not feel justified in canvassing it in much detail. Bach side has its view of the case, and each accordingly directed its evidence to that view of the facts which sustained its contention. That this resulted in narrations radically in conflict with one another, was to be looked for. It was for the jury to say with which side they found the truth to reside, when they applied the law the court gave them to the facts before them. By their verdict they have spoken and we can find nothing in their verdict that is manifestly against the facts the jury might appropriately have found in sifting the testimony brought before them and applying the law to these. We are not a jury nor a substitute for a jury. If we were, we are not prepared to say that upon the facts disclosed by this record we should have found differently.

In regard to the next assignment of error, to the effect that the requests to charge before argument should have been refused, our opinion is that the point is not well taken. To our apprehension they state the law of Ohio appertaining to the issue.

The fourth allegation of intervening error is that the court sent the written requests to instruct before argument to the jury in their retirement, to be used by them when they should consider of their verdict. In so doing the court did only what we understand to be the bidding of the statute in that respect. Otherwise the right to have the instructions framed in writing and given without change in verbiage would, it should seem, be a rather barren right. There was no error in this.

It is next complained — seemingly—that the court sent the written instructions to the jury, but did not send the general charge, so that the two might be comparatively considered in connection with each other — which it is said should have been done.

As the general charge was wholly oral, as is said, how it could have been thus sent, except through the friendly aid of a dictograph, is not perceived. The fact seems to be that counsel for the plaintiff were taken by surprise by the oral charge and did not think of asking to withdraw a juror — not till now. Counsel were wrong about this. They should not be surprised at anything. “Semper paratus” is, or should be, their slogan, instead of “Onward, Christian Soldiers” — to a job, or in this case a verdict.

The last assignment is leveled at the generally bad character of the charge as given to the jury.

The complaint is a little nebulous in our estimation, when we come to details. We do not care, therefore, to discuss the matter very minutely. What the trial court should have done if requested to give instructions in charge to the jury, if those given were deemed insufficient, need not be discussed where no such request was made. What should have been charged without request, because it was in the case, is another matter. Our attention in this respect is challenged to the claim that the doctrine of the last chance, and possibly other matters, was in the ease and should in fairness have been dealt with by the court below in its charge to the jury. To this it is answered that the doctrine of the last chance must be pleaded to entitle a party claiming its benefit to an instruction upon it, and that without so pleading it, it is not to be considered. The reply to this proposition is that the office of pleadings is to present in an orderly form the issues to which all the relevant evidence in the ease must be directed, so that — such is the argument — the whole issue consists of what arises from the evidence adduced, the evidence constituting the real issue, the function of 'the pleadings being to conform the latter to the former, as it may be developed upon the trial. Upon a rational footing, we should think the latter view to be the true view. Even the opinion of the Supreme Court, in Drown v. Traction Co. 76 Ohio St. 234 [81 N. E. Rep. 326; 10 L. R. A. (N. S.) 421; 118 Am. St. Rep. 844), does not seem to be to the contrary. It is true that the syllabus there says:

“3. Since the plaintiff can recover only upon the allegations of his petition, he can not recover upon negligence, which warrants the application of the rule of ‘last chance’ without alleging it in his petition. ’ ’

Yet Judge Davis seems to flinch from so guarded an interpretation as this, for in the opinion in the same case, page 249, he explains:

“It is clear, then, that the last chance rule should not be given as a hit or miss pule in every case involving negligence. It should be given with discrimination. Since the plaintiff can recover only upon the allegations of his petition, if there is no charge in the petition that the defendant after having notice of the plaintiff’s peril could have avoided injury to the plaintiff and there is no testimony to support such charge, the giving of such charge would be erroneous.”

Here we have the Supreme Court of Ohio against the Supreme Court of Ohio, in the same case. But, as the syllabus is supposed to state the law rather than the opinion, in case of conflict between the two, perhaps we should follow the former.

However, later, in Palmer v. Humiston, 87 Ohio St. 401 [101 N. E. Rep. 283], the syllabus says:

“1. The issues of a case are defined by and confined to the pleadings. ’ ’

If words level to the comprehension of lawyer and layman alike go for anything at all, it would seem that this last deliverance is fatal to the contention made here.

But hold! In Rayland Coal Co. v. McFadden, 90 Ohio St. 183, the same Supreme Court is in the syllabus made to say:

“In such case the issue of contributory negligence is not made by the pleading, but is raised by the evidence properly offered by the parties in support of their respective claims as made in the pleadings. The issue of contributory negligence thus raised is to be determined by the same rules as to burden of proof and otherwise as if made by the pleadings. ’ ’

If one issue may be raised by the evidence in a negligence case, by the same token it is hard to see why another issue may not be so raised.

And there you are! This time it is the Supreme Court of Ohio against the Supreme Court of Ohio against the Supreme Court of Ohio in two cases, but with the same judges deciding in each. When that lawsuit comes off we want to be there to see which side wins. Until then, we must be content to be no wiser than the sages of the law who are put in high places over us. And until then we must leave this much mooted question where those same sages have left it — in nubibus — very much so.

Upon what we have tried to make an impartial survey of the record before us, we feel that we ought to adhere to the former judgment in this court in Northern Ohio Trac. & L. Co. v. Jenkins, 36 O. C. C. 30 (19 N. S. 602), of which the syllabus is as follows:

“Nor will the judgment based upon such a finding be disturbed for technical errors in the admission of evidence or the charge of the court, where it appears from the entire record that substantial justice has been rendered under all the circumstances. ’ ’

In closing this opinion it may not be amiss to say an after word, lest from what has been said in respect of a brief in this case, more may be inferred than was intended, and lest the implied criticism thereupon be thought too harsh.

We are told in the good book that “All scripture is * * * profitable for doctrine, for reproof, for correction, for instruction in righteousness. ” In what was said and will now be said, all thought of “reproof” or of “correction” in a penal sense is disclaimed. Something “profitable” by way of “doctrine” and “righteousness” is not despaired of.

The mere mechanic-at-law, as Theodore Parker used to call him, and his work by the yard, of hundred, or on the piece-price plan, should distinctly lack encouragement by the profession, no matter how sharp his tools are or however conveniently arranged these may be in the tool box. One ease decided by the court of last resort in the state of the forum which is in point, shall chase a thousand eases somewheres near in point, and a like number from other states brought forward to overthrow it. The latter are apt to have an effect on the judicial mind, charged with too much vrork to delight in listening to the roll call of the states, akin to that produced by a catswamp on agriculture — the ground is too overloaded with underbrush to bring good crops.

Out of the “six hundred” and odd cited cases, on which the “Light Brigade” have ridden into the jaws of death, in the brief we have two, the titles of which are very suggestive. One is “Radam v. Microbe Destroyer Co.” The other is “ Union Painless Dentist v. Dement.” If the “microbe” for using the scissors on a digest and asking people to read the scissorings could be reached by the “Destroyer Company,” the first case would be in point. If the citer had to use his jaws instead of a typewriter, the work of the “Union Painless Dentists” would be in point, or else another syllable would have to be added to the name of the defendant, “Dement.”

We observe also a case in which the “Highland Boy Co.” is a party and one in which Mr. “Pepper” is plaintiff. Neither of these reconciles a tired man with briefs that are anything— almost — but- brief.

My brethren are not responsible for this comment, although it is to be hoped that they may share in the usufruct, if so be any briefer is exercised thereby.

We find no material error to the prejudice of the complaining party, in this record, nor are we able to say that substantial justice has not been done by the judgment complained of. For which reason it is affirmed.

Powell, J., concurs.

Shields, J., dissents.


source: Caselaw Access Project

author: JONES, O. B., J.

license: Public Domain

text:
    STREET RAILWAYS.
    [Hamilton (1st) Court of Appeals,
    April 19, 1913.]
    Jones, Jones and Swing, JJ.

      Frank Greve v. Cincinnati Trac. Co.
    Failure of Motormen to Check Speed or Stop Car before Collision with Vehicle Appearing by Evidence Makes Direction of Verdict for Defendant Error.
    A driver of a vehicle injured in a crossing collision observing a street car about 200 feet distant rapidly approaching the street intersection, across which he started to drive diagonally to avoid an obstruction in the straight way, is not thereby negligent as a matter of law; hence, its appearing that the vehicle could have been clearly seen by the motorman in time for him to have avoided the accident by stopping or checking the speed . of the car, it is error to direct a verdict for the traction company defendant.

      Thomas L. Michie, Harry H. Friedman and Jacob S. Hermann, for plaintiff in error.

      Joseph Wilby, for defendant in .error.

      Affirmed, no op., Cincinnati Trac. Co. v. Greve, 91 O. S. 000 (60 Bull. 20).

   JONES, O. B., J.

Plaintiff drove a two-horse carriage carrying four passengers west on Eighth street which has, in the center of the street, double car tracks. Just after crossing Linn street he found the north side of the street in which he had been driving obstructed with a pile of gravel, granite blocks and street paving material, where the track was being repaired, so that it was necessary for him to cross over the tracks to the south side of the street in order to continue on his way. This he proceeded to do. "When he started to cross the tracks diagonally he saw a traction ca.r coming in the opposite direction, going eastwardly on the south track and as he testified some 200 feet away from him. Other witnesses fix the distance of the car from the crossing when it commenced to cross the tracks at from 150 to 300 feet. All the witnesses agree that the car was running at a “pretty fast” rate of speed and that the speed of the car was not in any way slackened until it was very close to the carriage— within fifteen feet one witness testified. The carriage ' was struck by the car on or near the hind wheel, although one witness thought it was at its front part from the fact that the lamp was injured. The driver was thrown from his seat to the street and was severely injured, his leg being broken and his shoulder dislocated.

The evidence tends to show that the motorman of defendant’s car should have clearly seen the carriage upon the tracks, and that if he made proper effort to slacken the speed of his car and have it under control he could have avoided striking the carriage.

At the conclusion of the evidence offered on behalf of plaintiff the trial judge instructed a verdict for defendant.

In Toledo St. Ry. v. Westenhuber, 12 Circ. Dec. 22 (22 R. 67), which was a case of collision between a street car and a vehicle crossing a track at the intersection of two streets, the court held:

“It is negligence in the motorman of an electric street car, when the car is from 150 to 200 feet from a street crossing and he sees a wagon about to cross the track, not to try to stop or slacken the speed of the car until almost at the crossing, when by so doing the collision which ensued might have been avoided.
“It is not negligence in the driver of a wagon, to attempt to drive across a street car track ahead of an approaching electric car, when the car is so far away, that, by the exercise of reasonable care, it might be stopped before reaching the place of crossing.”

In Toledo Consol. St. Ry. v. Rohner, 6 Circ. Dec. 706, 708 (9 R. 702), affirmed, Street Ry. v. Rohner, 57 Ohio St. 667:

“This wagon was in plain sight of the motorman on the car. * * * He came up this grade toward this bridge at a speed which, from his own story, was so rapid that when he saw that the wagon vras not going to get out of the track he could not stop the car in time to avoid a collision. We think it was a fair question to submit to the jury, whether the railroad company, through its motorman, was negligent when it could not stop the ear under these circumstances in time to avoid a collision with a vehicle in plain sight in front of it.”

But counsel for defendant in error contend that these cases do not apply, because they fix the rule as to the right of persons to cross street ear tracks at the intersection of streets and this accident occurred at least 300 feet from the intersecting street.

The same court in Lake Shore Elec. Ry. v. Majewski, 25 O. C. C. 55, 59 (1 N. S. 305), discusses the right of drivers not at street crossings:

“■When they come upon the track of the company between streets, in other words, people driving vehicles along a street are not bound to keep away from the tracks of the street car company, as they are to keep away from the tracks of a steam railroad in the open country. They have a right to use the street, as well the part of the street where the tracks are as other parts of the street, * * * and as this woman did * * * to drive there ahead of the street car when the car was so far away that by the exercise of reasonable care she might suppose she had time to pass by such vehicles would not, in our opinion, be negligence. The street car company can not insist that the speed of its cars shall not be retarded by people driving in ahead of ears upon the streets when in the use of the street the exigencies require them to drive upon the tracks, they may drive there and the street car company must retard the speed of the car to allow them to use that part of the street as well as the part where the tracks are not laid.”

And the latest case on the Subject by the Supreme Court, Steubenville & M. Trac. Co. v. Brandon, 87 Ohio St. 187, paragraph 3 of the syllabus is as follows:

“Where the motorman of a street car being operated on a public street in a much frequented part of a city, discovers, or by the exercise of ordinary care and watchfulness should discover, that the driver of a smaller vehicle is about to cross the track at a street crossing, in front of such car, it is the motorman’s duty to use ordinary vigilance to stop or cheek the ear in order to avoid a collision; and the fact that such driver may have omitted to look for the approach of the car, will not, as a matter of law, defeat his right to recover for injury from a collision with such ear if the motorman has not used such vigilance. ’'

And in the opinion on page 195 Judge Spear uses the following language:

“It is possible he did look and, mistaking the speed of the ear, thought he could safely cross, thus attempting to exercise an undoubted right in a public street. If he did it would be a question for the jury whether a man of ordinary prudence, situated as he was then situated, would have done as he did. * * * The driver of such a vehicle is not, in the use of the-street, a trespasser, nor a licensee, but one pursuing an undoubted right, and the question always is, did he, in the pursuing of that right, exercise ordinary care ? Nor is he bound to refrain from going upon the crossing merely because a street car is in sight. If he reaches the crossing first he is entitled to cross unless it should appear that the car is in such close proximity, and traveling at such speed, as to make it impracticable to check the same in order to permit him to cross in safety. # * * It is not negligence in the driver of a vehicle to attempt to cross a street ear track ahead of an approaching car so far away that by the exercise of reasonable vigilance on the part of the motorman it might be stopped or cheeked before reaching the crossing.
“But, assuming that Brandon was guilty of some negligence in driving on the track, yet if the motorman, in the exercise of even ordinary care, after, he saw the horse and appreciated Brandon’s peril, had time and opportunity to avoid the possible consequences by checking the car, and neglected to so exercise such care, such neglect would be negligence and might properly be regarded as the proximate cause of the injury.
“Such a situation presents a case where different minds might reach opposite conclusions, and thus was a proper case for a jury under proper instructions. ’ ’

This case was also where the accident was at a street crossing, but the principles laid down apply to the case at bar. In the opinion of tins court, the court below erred in directing a’ verdict for defendant. The judgment below is reversed and the ease remanded for new trial.

Jones, E. H., and Swing, JJ., concur.


author: PER CURIAM.

text:
    STREET RAILWAYS.
    [Tuscarawas (5th) Court of Appeals,
    1914.]
    Voorhees, Shields and Powell, JJ.
    Northern Ohio Trac. & L. Co. v. Thomas E. Jenkins, Admr.
    1. Contributory Negligence of Passenger, Alighting from Street Car Standing Still then Struck by Same Car Backing, Question for Jury.
    Whether the striking by a backing car of one who had just alighted therefrom while the car was at a standstill, was due to the negligence of the traction company or its operatives or to the contributory negligence of the one so injured, is a question for the jury, and their finding where supported by the evidence will not he disturbed by a reviewing court.
    2. Substantial Justice Done Judgment not Reversed.
    Nor will the judgment based upon such a finding he disturbed for technical errors in the admission of evidence or the charge of the court, where it appears from the entire record that substantial justice has been rendered under all the circumstances.
   PER CURIAM.

This was an action commenced in the court of common pleas of this county by tbe defendant in error, Thomas E. Jenkins, as administrator of the estate of Edmund P. Jenkins, deceased, against the Northern Ohio Traction & Light Company, plaintiff in error, for its negligence in causing one of its cars to run over the said Edmund P. Jenkins and causing his death.

In bis petition filed in the court of common pleas the plaintiff alleged, in substance, that he is the duly appointed administrator of the estate of Edmund P. Jenkins, deceased, and that the defendant company is a corporation operating an electric street railway extending in part from Canal Dover through New Philadelphia and Midvale to Urichville in said county.

That on the evening of March 21, 1912, about 6:50 P. M., the said Edmund F. Jenkins was a passenger on one of the defendant’s cars from New Philadelphia to Midvale, paying his fare therefor. After riding on said car to a switch near Mid-vale and after said ear had come to a full stop, and after the conductor on said ear was made aware of the fact that the said Edmund F. Jenkins would alight at said switch, said conductor consenting the said Edmund F. Jenkins, after said car came to a full stop, alighted from said ear from the rear platform on the south side thereof, and after so alighting he started for his destination by attempting to cross said defendant company’s track by passing around and in the rear of said car, which was not then in motion, and at a distance of several feet therefrom, when, without his fault, the defendant, by its conductor and motorman who were in charge and control of said car then on said main track, caused said car to suddenly start and move at a high rate of speed backward and in an opposite direction, to-wit, northwesterly, from that in which it had been running, wrongfully, negligently, carelessly and unskillfully moving said car backward and in the direction toward where the said Edmund F. Jenkins was crossing said track, and that in so moving said car backward as aforesaid, without any signal being given by the defendant or its agents or employees, and without the ringing of any bell, or the sounding of a gong, or the blowing of any whistle, or giving any notice or alarm whatever of the starting of said car, or of its change of direction, with no light on the rear end of said car, the said Edmund F. Jenkins was, without any negligence or fault on his part, run over by the defendant’s said car, and was crushed and mangled under and between the wheels and trucks thereof, of which injuries he died within a few hours afterwards; all of which was caused by the wrongful, negligent, reckless, unskillful and unlawful acts of the defendant, its agents, servants and employees, in the management and control of said car; and plaintiff averred that said personal injuries and death which ensued resulted to the said Edmund F. Jenkins as a direct, natural and proximate consequence of said acts of the defendant.

The petition then avers that the said Edmund F. Jenkins left surviving him his widow and children, all of vVhom were dependent upon him for support; and damáges are prayed for against the defendant company by said administrator in the sum of $10,000.

The defendant filed an answer to the foregoing petition,, admitting that on March 21,-1912, the said Edmund F. Jenkins was a passenger on one of its cars from New Philadelphia to Midvale, and paid his fare, but that he voluntarily left said ear when the same was near Midvale and that thereafter he walked in front thereof when it was moving backward and was struck by said car, causing injuries to his person from which he died shortly thereafter. It denies the negligence charged in said petition and avers that the injuries so received by the said Edmund F. Jenkins were the result of his carelessness and negligence, and it denies all the other allegations in said petition not specifically admitted to be true.

For a second defense the defendant sets up that before said car stopped at Midvale and while said ear was in motion, and against the protest of the conductor of the said car, the said Edmund F. Jenkins left said car, and after alighting therefrom, and after it traveled some distance in the direction it was going, said car backed in an opposite direction, upon its track and the said Edmund F. Jenkins carelessly and negligently, and in full view of said car so moving upon said track, stepped upon said trade at a time when said car was so near to him that it was impossible for the parties in charge thereof in the exercise of ordinary care to have stopped the same, and that when it was impossible to stop said car in time to avoid striking him and when, if he had looked, he could have seen, and if he had listened he could have heard, said car approaching just before or at the time when he stepped upon sqid track, and thereby have avoided being struck by said car, and have avoided receiving said injuries which caused his death; that said injuries so received were the result of his owm carelessness and negligence in going upon said track in full view of said approaching car. The defendant denies that it was negligent in the operation of its said ear, and denies that said Edmund F. Jenkins received his injuries because of any carelessness of the defendant, but avers that his injuries and death were caused by his carelessness and negligence as before stated.

' To this answer, the plaintiff filed a reply, denying that said injuries received by the said Edmund F. Jenkins, from which he shortly thereafter died, were so received by him because of his own carelessness and negligence, as alleged in the defendant’s first and second grounds of defense. ,

Upon the issues made by the foregoing pleadings the ease was submitted to a jury, resulting in a verdict of $2,500 in favor of the plaintiff. A motion for a new trial was overruled, and judgment was entered upon said verdict. A bill of exceptions was taken containing the evidence upon the trial, including the charge of the court to the jury, and by a petition m error said cause is brought before this court for review and for a reversal of said judgment of the said court of common pleas.

In said petition in error various grounds of error are alleged, among which is that said court erred in the admission and rejection of evidence offered upon said trial.. An examination of said bill of exceptions fails to disclose that the action of said court resulted in working any prejudicial error to the plaintiff in error on either of said grounds. In several instances it appears that evidence was admitted against the objection of the defendant below which under the rules of evidence was perhaps not strictly proper, but the effect of such evidence was in nowise prejudicial to the legal rights of the plaintiff in error, and we therefore hold that the contention of the plaintiff . in error in this respect is not sustained.

It is also contended that the court below erred in overruling the motion of the defendant below at the close of plaintiff’s testimony, and a like motion was overruled at the close of the entire case, to arrest said case from the jury and direct a verdict for the defendant below. A reading of said bill of exceptions shows that the action of said court in this respect was well warranted in the light of the evidence contained therein.

It is also urged that the court below erred in refusing to-give to the jury, before argument, certain written requests submitted to said court by the defendant below; and in giving in its charge to the jury certain written requests of the plaintiff beloAv, to which the plaintiff in error excepted at the time. The requests which said court refused to give to the jury are No. 1 and No. 2, which, for obvious reasons, under the undisputed evidence in the cask, we think were properly refused.

It is .also contended that said court erred in its general charge to the jury upon the subject of looking and listening for an approaching car before going upon the track of said company, in this, that said court failed to give to the jury the rule laid down in New York, C. & St. L. Ry. v. Kistler, 66 Ohio St. 326 [64 N. E. Rep. 130], wherein it is held that,

‘ ‘ The looking required before going upon a crossing should usually be just before going upon the track,” etc.

This is just what the trial court did charge.

Written request No. 4 submitted by counsel for the defendant below to be given in the charge to the jury before argument, reads:

“The court charges you as a matter of law that it was the duty of Edmund F. Jenkins just before he stepped upon the tracks of the defendant company to both look and listen for an approaching car,” etc.

The foregoing request was given to the jury by said court verbatim. Under sub-division 5 of Sec. 11447 G. C., it was the undoubted right of the plaintiff in error to have the jury instructed upon the law of the case; and to this end it was the duty of the trial court to give in the charge to the jury all proper and reasonable requests made by the plaintiff in error if they contained sound propositions of law. But it is likewise true that the trial court was not called upon to repeat such instructions* for if they were once given, the duty of said court was discharged, there being no necessity to repeat the same instructions even though in different and varying forms.

Of the various written requests to be given to the jury, before argument, submitted by the plaintiff below, it appears that but one of them was given, and that related to the question of damages, where the rule as given is approved by the courts of this state generally.

It is also urged that the verdict of the jury is unsupported by the evidence; that it is against the weight of the evidence, and contrary to law. On account of the insistence of counsel we have carefully read this entire record with special reference to this assignment of error. Notwithstanding the claim made by the conductor in charge of the car upon which the decedent and his son rode from New Philadelphia to the Midvale switch the evening in question, we think the testimony of the son and other passengers on said car clearly showed that said conductor did volunteer the information to the deceased and his son that they could get off said car at said switch, and that decedent after the car stopped at said place, did get off.

Whatever he may have done before that evening in alighting there from a car when in motion is immaterial, as the uncontradicted evidence is that on this evening he alighted from the car after it had stopped; and whether he exercised ordinary care in attempting to cross the company’s track after getting off of said car was a question for the jury in view of all the circumstances in the case. Both the alleged negligence of the company and the alleged contributory negligence of the decedent were questions of fact for the jury; and in their determination of these questions it was proper for them to consider whether or not the plaintiff in error had in its employ and service at that time experienced and competent servants managing said car, having in its charge passengers whom it had undertaken to safely deliver at their destination; whether or not the plaintiff in error, by its agents and employees, signaled the backing of said ear on the track, and had at said place an employee on the rear of said ear while so backing, as called for by the rules of said company, and as a proper regard for the safety of persons who might be crossing said track, in the exercise of ordinary care, required; arid whether or not the machinery and equipment of said ear was in proper repair. We refer to these features of the case hecause of the evidence introduced upon the trial respecting them and which it was the province and duty of the jury to consider in connection with the charge of negligence here made against said company. Indeed, as we view the ease, the determination of the above questions may have determined the action of the jury, and these questions being questions of fact, it was the province of the jury to pass upon them-; and having passed upon them, we do not think that this court, as a reviewing court, under the evidence presented in said bill of exceptions, should disturb the finding of the jury.

As stated, we have read this entire record with no little care, and we think that the case was fairly tried; that the rights of the defendant below were properly protected and cared for by the action of the court below in its charge to the jury; that said charge was exhaustive and fair to both parties; and taking it all in all we are of the opinion that the verdict of the jury is not unsupported by the evidence, nor against the manifest weight of the evidence, nor contrary to law; and furthermore, we are of the opinion that the action of said jury by their verdict, and the judgment of said court, express nothing further than the rendition of substantial justice between the parties hereto. In the trial of cases occupying no little time it is not uncommon for technical errors to intervene; but where all the evidence taken upon the trial, including the charge of the trial judge, is before a reviewing court and such court determines that under all the circumstances substantial justice has been done, the judgment will not be reversed for error in the charge of the court below. Way v. Langley, 15 Ohio St. 392; Baird v. Telephone Co. 30 O. C. C. 107 (10 N. S. 163).

The judgment of the court of common pleas will be affirmed, at the costs of the plaintiff in error, Exceptions may be noted.


text:
    WILLS.
    [Perry (5th) Court of Appeals,
    May 2, 1913.]
    Voorhees, Shields and Powell, JJ.
    Soloman E. Spangler v. Jasper C. Beare et al.
    Acceptance of Bequest not a Bar to Contest of the Will.
    The acceptance of a bequest of personal property does not bind the beneficiary not to contest the will, as in the case of the acceptance of real property, but the money or property so received may be returned to the executor and the legatee left free to contest the will.

      D. M. Barr and T. B. Williamson,, for plaintiff in error.

      John, Ferguson and Stanley B. Crew, for defendants in error.
   PER CURIAM.

This was an action commenced in the court of common pleas by the plaintiff in error, who was plaintiff below, against the defendants 'in error to set aside the will of one Emanuel Beare, deceased, which before that time had been admitted to probate and record in the probate court of this county.

The petition was in the usual form, alleging that the paper writing, purporting to be the will of said Emanuel Beare, deceased, and which had been admitted to probate and record in said probate court was not the last will and testament of Emanuel Beare, deceased, without specifying any ground or reason why the same was not such last will and testament.

An answer was filed, denying the averments of the petition, and alleging as a special defense that by the terms of such will, as probated, Solomon E. Spangler was given a legacy of $4,000, which legacy, with its accumulated interest, had been received by him from the defendant, Jasper C. Beare, as executor of the will of said Emanuel Beare, deceased, and who had thereupon receipted for the same in full settlement of all his rights under such will as a legatee.

To this answer a reply and an amended and a supplemental reply were filed, the effect of which was to tender bach to the said executor the amount of money received by the plaintiff, who admitted its receipt, but who claimed that such acceptance was procured by fraud and misrepresentation of the other defendants named in the proceedings, which money, however, the executor refused to receive, when the same was deposited with the clerk of courts as a tender for that purpose.

The question presented to the jury for determination was whether or not the testator, Emanuel Bearé, had executed another and subsequent will to the one that had been admitted to probate, by the terms of which the former will had been revoked, and that the same had never been, republished as and for his last, will, and the same was therefore void.

Numerous errors as to the admission and rejection of testimony were insisted upon in this court. Also it is urged that the court erred in its charge to the jury, by which the plaintiff was prevented from having a fair trial. We have examined the entire record with reference to the assignments of error presented by the petition in error, and we are of the opinion that in the charge of the court there was error which was misleading to the jury and prejudicial to the rights of the plaintiff in error. The court charged in substance, and it is to be found on page 7 of the charge or 145 of the bill of exceptions, that if the jury find that plaintiff had accepted the $4,000, .and that such acceptance was not brought about by fraud and misrepresentation of the executor but was accepted by plaintiff without such fraud and misrepresentation that that would be the end of -the case. Further, that the jury need not go into any further questions because the mere acceptance of the legacy under the will would bind plaintiff from making any contest in the court of common pleas at all. This court is of the opinion that this proposition is not the law in Ohio when applied to a -legacy or gift of personal property, but is applicable only when the gift or device is a gift of real estate. We are of opinion that such acceptance of a legacy could be revoked and the money returned, whereupon the rights of the legatee to contest the will would stand just as though no such payment-had ever been made and we think that this charge is such error that the judgment of the court of common pleas should be reversed.

We have examined the whole record with reference to the other errors assigned and we find that while there may have been other errors, yet we could not feel called upon to reverse the judgment upon them alone and especially as the one specified is in our opinion sufficient to justify a reviewing court to reverse such judgment.


author: JONES, E. H., J.

text:
    MORTGAGES.
    [Hamilton (1st) Court of Appeals,
    July 19, 1915.]
    Jones, Jones and Gorman, JJ.
    Amelia Schell v. Mathilda Bernhard et al.
    Accepting Mortgage from Heirs does not Waive Priority of Claims against Estate.
    The holder of a claim against the estate of a decedent does not, by accepting a mortgage executed by the heirs, waive his priority over previous mortgages by the heirs in so far as these mortgages were given to secure money borrowed to pay off general creditors of' the estate, where the subsequent mortgage contains a recital disavowing any intention to waive such priority.
    Appeal.

      Morse, Tuttle Harper and Black, Swing & Black, for Southern Ohio Co.

      Johnson & Levy, for Western & Southern Insurance Co.

      Kramer & Bettman, for the Alms & Doepke Co.
   JONES, E. H., J.

This is an action for partition of real estate left to Karl Burner, deceased. Action was brought by the plaintiff, Amelia Schell, daughter of said Karl Romer, against the other surviving children, the Alms & Doepke Company, the Western & Southern Life Insurance Company, the Southern Ohio Savings Bank Company, et al.

There is no controversy among the heirs as to their respective shares in the realty. The issues drawn by the pleadings and upon which the ease was appealed to this court are between the mortgagees, the same being the Western & Southern Life Insurance Company, the Southern Ohio Savings Bank. Company and the Alms & Doepke Company, all of whom hold mortgages upon the property which bear date subsequent to the death of said Karl Romer and were executed by his widow and children. At the time of the death of Karl Romer he owed a considerable sum of money to the Alms & Doepke Company. The two other mortgagees at that time held mortgages on the real estate herein partitioned. The subsequent mortgages to them were given to secure loans which embraced the sums due upon the former mortgages and also additional sums in each case procured by the heirs to pay off the indebtedness of the estate. It was fifteen months or more after the death of said Karl Romer, and some time after these mortgages were given, that the mortgage to the Alms & Doepke Company was executed and delivered by the widow and next of bin to secure the payment of the debt owing to said company by decedent.

The question we are called upon to decide is whether or not the Alms & Doepke Company, by accepting this mortgage, waived the priority of its claim, against decedent’s estate in favor of the other two mortgagees. No question is raised by the Alms & Doepke Company as to the priority of their mortgages in so far as they represent money advanced to take up and cancel mortgage loans existing at Karl Romer’s death. •But as to the additional loans represented by said two mortgages, advanced as aforesaid for the payment of general claims, it is claimed that the lien of the Alms & Doepke Company has priority.

We must be content in this decision to thus briefly state the issue that we are called upon to decide, and more briefly state the conclusion which we have reached.

The mortgage deed, given to the Alms & Doepke Company as aforesaid, in addition to the usual provisions contains the following recital:

“It being understood and agreed that the Alms & Doepke Co. by the acceptance of this mortgage does not admit the priority of said mortgages of the Southern Ohio Savings Bank Company and the Western & Southern Life Insurance Company, except in so far as the two mortgages were given to take up .mortgages made by said Karl Romer in his lifetime.”

And it also names the following consideration:

“In consideration of one dollar to them in hand paid by the Alms & Doepke Company, and in further consideration of the Alms & Doepke Company forbearing to proceed against said real estate of Karl Romer, deceased, to satisfy said claim, as hereinafter provided, and for other good and valuable considerations, ” etc.

The amount secured by this mortgage, to-wit, $4,581.17, was made payable in three annual equal installments due in one, two and three years from date, respectively.

It is earnestly contended by the attorneys for the prior mortgagees that by extending the time of payment of its claim, and the acceptance of the mortgage and by forbearing to press its claim for collection, the Alms & Doepke Oom/pany has waived the priority which the law gives to its claim, and is es-topped to assert such priority as against the two mortgages which are prior in point of time of execution and record.

We take it as elementary that there can be no waiver of a right unless same is expressed by word or in writing, or unless the acts and conduct of the party have been such that a waiver will be presumed. It is not claimed that there has been any express waiver on the part of the Alms & Doepke Company, but a great deal has been said in argument and by brief in support of the latter alternative, viz., that the waiver is to be presumed in this case by the acceptance of the mortgage and extension of time of payment, etc., provided therein.

Numerous eases are cited by counsel on both sides to show when and under what circumstances a waiver is or is not to be presumed. These cases have been examined,' together with other authorities upon the subject, and we have yet to see a single case where a court has deigned to discuss the presumption or nonpresumption of a waiver, or the question of estoppel, where the instrument in question, or the language used, contained statements expressly disclaiming any intention to waive, as does this Alms & Doepke Company mortgage.

It might well be contended as between the parties to this mortgage, that the mortgagee has by its acceptance delayed its right to enforce its claim or lien. In fact, the language of the instrument, as above quoted, shows that the Alms & Doepke Company was to forbear in the enforcement of its claim. This only draws our attention to the distinction between the right of a lien, and the right of enforcement of a lien. The later question is not involved in this case. All of the lien holders were brought into this partition proceeding as defendants and have filed answers asking for the protection of their rights. The nature of the proceeding and the consequent partition of the property requires a satisfaction of these liens. The action was brought by one of the very persons in whose favor the Alms & Doepke Company agreed to forbear and neither she nor any of her comortgagors are complaining or interposing any objection to the priority claimed by the Alms & Doepke Company.

In conclusion we will only state that we can not see how these other mortgagees can be heard to complain or to claim any right or benefit to be derived by reason of a subsequent transaction about which they knew nothing, and to which they were not parties. The parties to the Alms & Doepke mortgage all expressly agreed that no right of the company should be deemed waived thereby. We find no authority that will enable the Insurance Company or the Savings Bank Company to derive any benefit or occupy any better position by reason of this transaction. It must be conceded that it was not within the power of the parties to the Alms & Doepke mortgage to impair the rights of the other mortgagees. Plow, then, can it be maintained that the transaction could inure to their benefit? We are of the opinion that the purpose of the Alms & Doepke mortgage was to induce the company to forbear to proceed against the real estate. That agreement and that purpose in no way affected the rights of the other mortgagees. Any intention to waive was expressly disclaimed.

So far as the mortgages given to the Savings Bank Company and the Insurance Company cover moneys not used for taking up decedent’s mortgages, they are held to be inferior and subject to the Alms & Doepke lien.i


text:
    CONTEMPT — MUNICIPAL CORPORATIONS — PUBLICA» TION.
    [Wayne (5th) Court of Appeals,
    September Term, 1914.]
    Yoorhees, Shields and Powell, JJ.
    Massillon Elec. & Gas Co. v. Orrville (Vil.).
    1. Municipality Having Granted Franchise to Electric Light Company Cannot Construct Municipal Plant Without Purchase or Condemnation of Private Plant.
    Section 3990 G. C., relating to the erection or purchase by municipalities of gas and electric light works, is not repealed by Art. 18, Sec. 5, of the constitution, providing for the acquirement, construction, owning, leasing and operation by municipalities of public utilities; hence, a municipality having failed to purchase or condemn the property of an electric light company having a franchise from the municipality, cannot issue and sell bonds in anticipation of its construction and operation of a municipal light plant.
    2 Ordtnance for Issuing Municipal Light Bonds of General Nature and Publication In One Newspaper Insufficient.
    Ordinances for the issuing and sale of bonds for a municipal light plant are of a general nature and come within the provisions of Sec. 4227 G. C., which are mandatory and jurisdictional in requiring them to be published in two newspapers of opposite politics; hence, publishing such an ordinance in one newspaper only is insufficient.
    3. Publication of Ordinances by Posting not Evaded by Publication in One Newspaper When Two Newspapers Required.
    The provision of Sec. 4229 G. C., relating to publication of ordinances, requiring posting of copies, is not limited to municipalities having no newspaper; where the matter is jurisdiction; it cannot be implied that no other publication than one of the two methods mentioned is a compliance with the requirements of the statute.

      4. Perfecting Appeal Suspends Order Dissolving an Injunction.
    Piling an appeal bond and perfecting the appeal suspends the order dissolving an injunction leaving the original injunction in full force.
    5. Advice of City Solicitor not Defense to Municipal Officers Violating Injunctions.
    Municipal officials violating an order enjoining them from certain official acts cannot offer the defense that they acted upon advice of their legal counsel, a city solicitor, such fact may be used in contempt proceedings in mitigation of the violation but not in defense of their violation.
    Appeal.

      Kratsch & Maier, J. B. Taylor and T. W. Orr, for plaintiff.

      Clyde Merchant, city solicitor, . G. A. Siam and F. F. Taggart, for defendant.
   PER CURIAM.

These two cases are in this court by appeal from the judgment of the court of common pleas, the plaintiff in each case being the appellant.

In case No. 637, the plaintiff filed its petition alleging that it was the owner of an electric light plant in the village of Orrville, this county, and that the defendant, the village of Orrville, by its duly elected officers, was about to erect a municipal light plant in said village; that certain preliminary legislation had been had by the council of said village authorizing the issuance and sale of bonds and otherwise preparing to construct and operate an electric light plant in said village. A temporary injunction was allowed in the court of common pleas where the eases were heard upon their merits resulting in a dismissal of the petition in each case.

The judgment of this court, which is in favor of the plaintiff in each of said actions, is based upon two distinct grounds:

First, that the provisions of Sec. 3990 G. C. are in full force and effect, not having been repealed by the adoption oi the amendments to the constitution, and that the provisions of this section providing for the sale of an electric light plant in villages to the municipality, have not been complied with, and,

Second, that the facts upon which the said village of Orr-ville would have the right to exercise the jurisdiction claimed do not appear by the record.

It is contended on the part of the defendants, that the provisions of Sec. 3990 G. C. which require that councils of a municipality intending to erect a municipal electric light plant at the expense of the corporation, or purchase any electric light works already erected by any person, company or corporation, to whom a franchise to erect and operate gas works or electric works has been granted, and such franchise has not yet expired, “the council shall, with the consent of the owner or owners, purchase such gas works or electric works already erected therein,” “and that if the council and owner or owners of said electric works cannot agree upon the compensation to be paid therefor, thei council may file in the probate court of the county where said electric works are located, a petition to appropriate such gas works or electric works, and thereupon the same proceedings shall be had of appropriation as is provided for the appropriation of private property by a municipal corporation, were repealed by the adoption of the recent amendment to the constitution.”

VThe petition in case No. 638 contains the necessary averment, that the plaintiff is the owner of said electric light works in the village of Orrville under franchise granted by said village. No defense is made that the franchise has terminated. But it is claimed that the provisions of Sec. 3990, above quoted, are in conflict with the provisions of the amended constitution relating to municipalities and especially in conflict with Art. 18, Sec. 5 of the constitution as amended.

"We are of the opinion that there is no conflict between Sec. 5 or Art. 18, nor with any other section of said Art. 18, and the said Sec. 3990; that this section of the statutes is in full force and effect, and that the defendant, the village of Orrville, having failed to either purchase or condemn the property of the plaintiff, its action is without authority of law and the injunction allowed should be made perpetual.

The second ground upon which the court is authorized to render judgment for plaintiff, is that, the ordinances of the village of Orrville providing for the issuing of bonds and the sale of the same, were not passed as required by law- We think that these ordinances are ordinances of a general nature and provide for public improvements and that therefore they come within the provisions of Sec. 4227, which provides, among other things: ‘"Ordinances of a general nature or providing for improvements, shall be published as hereinafter provided before going into operation.” We think this provision is jurisdictional. That when the council fails to pass such ordinance in the manner prescribed by the statutes, it is without jurisdiction to proceed further with the matter in hand, in this case, the erection of an electric light plant for the village of Orrville. It is provided’ in Sec. 4226:

“Ordinances and resolutions requiring publication shall be published in two newspapers of opposite politics, published and of general circulation in such municipality, if such there be.” •

And it is further provided by Sec. 4229:

‘ ‘ Except as otherwise provided in this title, in all municipal corporations the statements, ordinances, resolutions, orders, proclamations, notices and reports 'required by this title, or the ordinances of a municipality to be published, shall be published in two newspapers of opposite polities, of general circulation therein, if there are such in the municipality.”

It will be noticed that the provisions are mandatory. Therefore they must be strictly compiled with in order to give the council jurisdiction to proceed in the construction of an electric light plant,

It appears by the record that the ordinances of said village and resolutions when published were published in but one newspaper, The Orrville Courier Crescent, and not in two newspapers, as required by these statutes. It does not appear what the politics of the Orrville Courier Crescent is, whether democrat or republican* or of some other political affiliation.

It is a well settled rule in Ohio that inferior tribunals must comply strictly with the statutes giving jurisdiction until such jurisdiction has been acquired. Perhaps there are many things that may be done after jurisdiction attaches that are not in strict compliance with statutory provisions, but every statutory provision that relates to jurisdiction or the right of the corporation to act, must be strictly conformed to. There are but two methods of ordinance of a general nature and providing for improvements mentioned and provided for in the statutes.

They are by the provisions of Sec. 4229, by publication in two newspapers of opposite politics of general circulation in said municipality, if there are simh, and if there are none such, and no newspaper published in said municipality the notice may be given by posting- copies thereof at not less than five of the most public places in the corporation for a period of not less than fifteen days.

It may be contended that because this provision only applies to municipalities where no newspaper is published that, by implication, publication could be had in one newspaper where such paper was published in the municipality. We do not think that where the matter is jurisdictional anything of the kind can be implied, and that no other publication than one of the two methods mentioned is a compliance with the requirements of the statute.

This has been held by other courts in the state and was held by this court to be the law in an action before it, for the improvement of a public street in one of the villages of Muskingum county, Ohio.

For the two reasons mentioned the judgment will be rendered in favor of the plaintiff in each of said cases, Nos. 637 and 638. In ease No. 638 the action was by the plaintiff as a taxpayer in which it asks to enjoin the expenditure of the moneys raised by the sale of bonds for the purpose of constructing an electric light plant in said village. This action is authorized by law to be brought b.y a taxpayer in certain cases. The averments of this petition bring the action within the statutory provision permitting such actions to be so- brought. We think the testimony sustains the averment of the petition in this action and that the defendant should be enjoined from proceeding with the erection of such plant. It should be sustained on account of the invalidity of the proceedings of the council, both in the passage and in the publication of the ordinances set out and described in the petition, and because the provisions of the statutes relating to the construction of such improvements had not been compiled with.

If motions for a new trial are filed in either or both of said cases they will be overruled. Exceptions may be noted, and each of said cases will be remanded to the court of common pleas for execution.

Contempt (Sept. Term 1914).

In case No. 638 an application was made that several of the defendants named should be cited to show cause why they should not be proceeded against for contempt of court in violation of the injunction allowed in the court of common pleas in that they proceeded in doing the things for which they were enjoined immediately after said injunction was dissolved in the court of common pleas, which was done upon the hearing of the ease on its merits, and before the perfection of an appeal by the plaintiff in the court of, appeals.

> The statutes provide that an appeal may be perfected upon the dissolution of an injunction within ten days, and that the court dissolving said injunction may suspend its order of dissolution for ten days, to allow such appeal to be’perfected. This, however, was not done in this case. The dissolution of the injunction was entered as the order of the court on May 21, 1914, and the appeal bond was filed on May 26, 1914. Between these two times certain contracts, that the village had entered into for the purpose of erecting an electric light plant, were changed and a large amount of money was paid or agreed to be paid in the construction of the said plant pursuant to such change in the contract. Some of these changes were made after the appeal bond had been filed in this court, thereby perfecting the appeal.

It is contended that the filing of an appeal bond did not renew the order of injunction that existed in the court of common pleas 'before the dissolution of such an order. This court is of the opinion that the filing of an appeal bond and the perfecting of an appeal suspends the order of the court of common pleas dissolving the injunction and thereby leaves the same in full force. This was held by the district court of Hamilton county in the case of Caldwell v. High, 6 Dec. Re. 1037 [9 Am. L. Rec. 692], and the judgment 'of that court was affirmed by the Supreme Court. The statute exists in practically the same form as it existed when this decision was made, and we hold that from, as it existed when this decision was made, and we hold that from and after the filing of the appeal bond the injunction allowed in the court of common pleas was in full force, and we find from the evidence that the different defendants charged with violating the order of injunction did violate the same. And while they claim that such violation was upon the advice of their counsel, the city solicitor, we think that is not a defense, although it may be considered in mitigation of the actions of the defendants in violating said injunction.

It is the judgment of the court that the charges. against the defendants named constituting the board of public affairs in said village, together with H. D. Shannon, one of the contractors of said village, are sustained, and that each of them should pay a fine of $25, together with an equal share of any costs made in such proceedings in contempt.

Motion for a new trial, if one is filed, will be overruled and exceptions may be noted.


text:
    CHARGE TO JURY.
    [Hamilton (1st) Court of Appeals,
    1915.]
    Jones, Jones and Gorman, JJ.
    George C. Buttemiller v. Howard William Schmid, His Next Friend.
    Defendant Cannot Complain of Instruction on Burden of Proof Prejudicial to Plaintiff, 'Only. ,
    An instruction that “by burden of proof is meant the burden or duty of satisfying the minds of the jury of the truth of all the material facts alleged by the plaintiff and denied by the defendant,” too great a burden is imposed upon the plaintiff, but being prejudicial to the plaintiff only the defendant can not complain of the error so committed.

      Robertson & Buchwalter, for plaintiff in error.

      Jos. Lemkuhl, for defendant in error.
   JONES, E. H., J.

Plaintiff in error i's a physician against whom judgment was recovered in the court below in favor of defendant in error for the sum of $1,000, assessed by the jury as damages for malpractice in connection with the treatment of plaintiff for an injury.

By far the greater part of the brief for plaintiff in error, as well as the oral argument of counsel, is devoted to a discussion of the evidence. We deem it unnecessary to review the evidence in. this opinion. It is sufficient to say we do not feel at all inclined to disturb the verdict of the jury or the judgment entered thereon for insufficiency of evidence to support it.

The other errors alleged relate to the charge of the court. Complaint is made of the following portion of the charge:

“By burden of proof is meant the burden or duty of satisfying the minds of the jury of the truth of all the material facts alleged by the plaintiff and denied by the defendant.”

The case of Cincinnati, H. & D. Ry. v. Frye, 80 Ohio St. 289 [88 N. E. Rep. 642; 131 Am. St. Rep. 709], is cited as authority to show that the word “satisfying” as used in this portion of the charge is prejudicial to the plaintiff in error. In the ease cited it appears that the word “satisfied” was used by the trial court in its charge in connection with the attempt of the defendant to establish the defense of contributory negligence. Crew, C. J., in his opinion, on page 300, said:

“By this instruction the jury was told, 'not only that the, burden of proof was on the defendant to establish its affirmative defense of contributory negligence by a preponderance of the evidence, but that if the defendant was negligent as charged, then plaintiff was entitled to a verdict ‘unless the defendant has so made out the truth of its affirmative defense. ’ And the jury was thereby further told and instructed that such affirmative defense was so made out, ‘If the defendant has satisfied your minds by a preponderance of the evidence * * * that the plaintiff was guilty of negligence which contributed directly and proximately, together with the alleged negligence of the defendant, to produce this injury.’ This instruction, therefore, in effect, imposed upon the defendant the requirement — if it would make available the defense of contributory negligence — that it establish by a preponderance of the evidence the truth of such defense to the satisfaction of the jury. This was to place upon the defendant the obligation and burden of producing or furnishing a higher degree of proof than the law demands or exacts, and was therefore erroneous.”

In the case now under consideration the court in the portion of the charge in which the word “satisfying” is used erred not against the plaintiff in error, but to the prejudice of the defendant in error, upon whom too great a burden was imposed. It therefore follows that such error constitutes no ground for reversal in this case, as it did not result prejudicially to the party complaining.

The word “satisfy” was also used by the trial court in its charge on page 294 of the bill of exceptions, where the court charged the jury upon the doctrine of contributory negligence. This portion of the charge was later entirely recalled by the court, and the jury was instructed to pay no attention whatever to that part of the charge.

Our attention is also directed, by plaintiff in error, to the following language of the court:

“You have a right to accept or reject part or all of the testimony of a witness, and give credit to those witnesses^who in your opinion are entitled to credit.”

Pittsburg, C. C. & St. L. Ry. v. Pritz, 90 Ohio St. 419, is relied upon in support of this assignment of error. The language there passed upon is not the same as the language here used. When considered in connection with the portion of the charge which immediately precedes it, we do not think that this portion of the charge is erroneous.

We therefore find no error in the proceedings below and the judgment will be affirmed.

Jones and Gorman, JJ., concur.


text:
    CARRIERS — STREET RAILWAYS.
    [Hamilton (1st) Court of Appeals,
    June 14, 1915.]
    Jones, Jones and Gorman, JJ.
    Cincinnati Trac. Co. v. William Burkhardt.
    1. Starting Street Car Before Passenger Seated not Negligence per se.
    To start a street car before a passenger wbo has just stepped upon the car has had time to be rated, is not negligence per se.
    2. Carrier’s Care of Passenger is Highest Degree Used by Ordinarily
    , Careful Persons Under Like Circumstances.
    The degree of care required of a carrier toward a passenger is not to be measured by the care which would be exercised under similar circumstances “by very careful and skillful employees,” but it is the highest degree of care which ordinarily careful and skillful persons would use under like circumstances.
    3. Care Required of Crippled Passenger.
    ' To charge that a passenger in a crippled condition was b^und to exercise “greater care” than others, is erroneous, but the jury should be instructed that in determining whether he exercised ordinary care they should consider his crippled condition and any burden or impediment to his movements arising therefrom.

      Error.

      Kinkead & Rogers, for plaintiff in error.

      Cogan, Williams & Ragland and Thos. L. Michie, for defendant. in error.
   JONES, E. H., J.

This action was brought in the common pleas court by the defendant in error against the plaintiff in error for damages by reason of injuries received by him while boarding a car of the traction company.

The complaint in the petition was that the car was started with a sudden jerk, while plaintiff was in the act of boarding it and before he had reached a seat in the car, causing him to be thrown to the street and severely injured. The charge of negligence was denied by the traction company in its answer, which also contained an allegation of contributory negligence on the part of plaintiff. The jury returned a verdict in favor of the plaintiff for $3,000, which the trial court reduced to $2,000, for which sum judgment was rendered in the court below.

A number of errors are assigned in the petition in error and urged by counsel in oral argument.

The first alleged error upon which we deem it necessary to comment in this opinion relates to a portion of the general charge of the court, as follows:

“If you find that the defendant was not negligent, you need go no further, but must bring in a verdict for the defendant. If you find that the defendant was negligent in suddenly starting the ear without notice, before the plaintiff had the opportunity to be seated, and that such negligence was the direct cause of the injury to plaintiff, you will bring in a verdict for the plaintiff unless you find that the plaintiff was also negligent, and that his negligence operating concurrently with the defendant’s negligence, if any, directly contributed as a cause of the accident.”

It is claimed that the court erred in the use of the language “if you find that the defendant was negligent in suddenly starting the car without notice, before the plaintiff had an opportunity to be seated,” etc. It is not negligence per se to start a street car before a passenger is seated therein. The objection made to this charge, which we think is well founded, is that it implies that the defendant company in this ease was negligent if its ■employees started the car in question before plaintiff had reached a seat. Nowhere in the general charge do we find any explanation of this language or any language which could be construed as a refutation of the implication to which it is susceptible. It ■may be, and it is quite probable, that the learned judge did not intend to convey to the jury an instruction to the effect that the starting of a car while a passenger was yet unseated is negligence. It was, however, charged in the petition as one of the grounds of negligence that the car was so started, and a fair interpretation of the language used by the trial court would lead the jury to believe that if they found that the car was started before Burkhardt had an opportunity to be seated that the company would be guilty of negligence. This is not the law, and the question having been raised by the pleadings and the evidence it was incumbent upon the court to charge the jury clearly upon this matter, and its failure so to do was in our opinion prejudicial error.

The next alleged error considered is also based upon the language of the court in its general charge as found on page 111 of the bill of exceptions, as follows:

“The defendant is a common carrier of persons, but as such does not insure its passengers against all hazards incident to their transportation.
“It is required to exercise through its servants, such as the conductor and motorman, a very high degree of care, skill, diligence and foresight, such as is and should be exercised by very careful and skillful railroad employees under similar circumstances. to avoid injury to those whom it carries as passengers. ’ ’

We are of the opinion that this incorrectly states the degree of care required of those in charge of the car even to a passenger, and that, too, to the prejudice of the defendant company. The degree of care required of a carrier towards a passenger is not to be measured by tbe care that would be exercised under similar circumstances by very careful and skillful employees. The correct- rule, it seems to us, is that the carrier owes to the plaintiff the highest degree of care which ordinarily careful and skillful persons would use under similar circumstances. If the rule laid down by the trial judge were the correct one, then all carriers of passengers would be required as a matter of self-protection to employ only “very careful and skillful” men. The rule laid down by the trial court in this ease could not be observed by any other kind of men, and the carrier would therefore be liable unless the servants or employees connected therewith were very careful and skillful men.

The next alleged error urged by counsel is based upon the refusal of the court to give special charge No. 2:

“If you find that the plaintiff’s right hand was crippled by the loss of two fingers, and that when he boarded the car his left arm was incumbered by one or more bundles, I charge you that under such circumstances it was the duty of the plaintiff to exercise greater care for his safety than would have been demanded of him had his right hand not been crippled and had he been free from bundles or packages. ’ ’

We think that the court was correct in refusing to give this charge. The words “greater care” as used in the charge requested are misleading and not permissible. The plaintiff was required to exercise ordinary care, and if a special instruction as to his duty was deemed necessary by counsel it should have been to the effect that in determining whether plaintiff exercised ordinary care the jury should consider his crippled condition and any burden or impediment to the free use of his arms or hands which may have been present in the case.

The other ground of error to which our attention has been especially called is that designated by counsel for plaintiff in error as “misconduct of the plaintiff in the trial below.” Briefly stated this charge is based upon the claim of plaintiff in his petition and during the trial that prior to this accident he was an able-bodied man, never sick, and always able to work; and that after the verdict of the jury was returned it was first ascertained by counsel for the traction company that this same plaintiff had, several years before, been injured while in the employ of a printing company in this city, and had brought an action for damages against said printing company alleging in his petition in that case that he was by said injury so received by him, made sick, feeble and permanently disabled. We do not deem it necessary to enter at length upon a discussion of this point since from the view we take of the case it must be reversed on other grounds and remanded for a new trial. There seems to be no question of the relevancy of the evidence, and we deem it unnecessary to say anything further about it.

For the reasons given, the judgment will be reversed and the cause remanded to the court of common- pleas for a new trial.

Jones and Gorman, JJ., concur.


author: HOUCK, J.

text:
    COURTS.
    [Columbiana (7th) Court of Appeals,
    April 8, 1915.]
    Houck, Pollock and Metcalfe, JJ.
    (Judge Houck of the 5th district sitting in place of Judge Spence.)

      John H. Smith v. George Freshwater et al.
    Effect of Objection to Jurisdiction Not Destroyed by Subsequent Answer on the Merits.
    Where a defendant has interposed by motion an objection to the jurisdiction of tl¡ie court over his person, he does not upon the overruling of the motion submit to the jurisdiction by filing an answer in which he challenges the jurisdiction of the court in the first defense and in a second defense answers to the merits of the cause.
    [Syllabus by the court.]
    Error.
    W. F. Lones and Geo. T. Farrell, for plaintiff in error.

      Billingsley, Moore & Van Fossan and Hughes & Tipple-horn, for defendants in error.

      Motion to certify record overruled, Smith v. Freshwater, 60 Bull. 308.

   HOUCK, J.

The parties to this case stand here in. the same relation to each other as in the court below. The plaintiff brought suit in the common pleas court of this county against the defendants, claiming damages from them in the sum of $5,000, as the result of injuries and damages to a vein of coal belonging to plaintiff. Summons was issued for all of the defendants, but was only served upon two of them. The defendants, George Freshwater, Lee Freshwater, Philip Freshwater, Milton Freshwater and Elmer Freshwater, were not served with summons. Their attorney appeared and filed a motion solely and wholly for the purpose of attacking the jurisdiction of the court over their person and asked that the summons -be quashed. Why the motion was filed we do not know, and the record, does not disclose. They then filed an answer, setting up two defenses: First, attacking the jurisdiction of the court over their person; second, answering to the merits of the cause set out in the petition of plaintiff. The cause was heard, and the action was dismissed as to them, and to their dismissal the plaintiff excepts.

The only question to be determined is, whether by answering in the first defense in which they challenged the jurisdiction of the court, they submitted themselves to the jurisdiction of the court, by interposing a second defense in which they answered to the merits of the cause? We think not.

In support of the view of the court in this case, we desire to call counsel’s attention to the case of Long v. Newhouse, 57 Ohio St. 348, 368 [49 N. E. Rep. 79]. We might say, in the first place, as the court views it, he who attempts to invoke the authority that a court has no jurisdiction over his person, must do so at the very beginning of the case, and continue it until the end. In other words,

“It must be at the very threshold of the defendant’s appearance to the action. The reason is a plain one. If a party may at the same time invoke the jurisdiction of a court on the merits of an action, and deny its jurisdiction over his person it would work great injustice.”

The court here, in distinguishing and passing upon the case in Allen v. Miller, 11 Ohio St. 374, 376, and also in Evans v. Iles, 7 Ohio St. 234, say:

“He could under such practice, if the judgment on the merits is in his favor, avail himself of it as a bar to another action, but if it should be against him, he could set it aside for want of jurisdiction of his person. Hence it is said, that ‘if a party wishes to insist upon the objection that he is not in court, he must keep out for all purposes except to make that objection.’ In Allen v. Miller, supra, the court is careful to observe that Miller embraced the first occasion which offered, to-wit: in his answer to assert his objection to the jurisdiction of the court; and distinguished the ease from that of Evans v. lies, supra, where the defendant had previously filed a demurrer, and, although withdrawn had, as the court held, subjected the defendant to its jurisdiction. And, commenting on the withdrawal of the demurrer, the court said: ‘It ceased to be of any consequence in the case, but as a fact, the evidence of which was indelibly fixed on the journal of the court, and constituting of itself an appearance in the ease, it was as significant and as operative after the demurrer was withdrawn as it was before.’ ”

Therefore, in the case at bar, the defendants in question interposed an objection to the court’s jurisdiction over their person. And after the motion was overruled, filed an answer, and in the first defense again challenged the jurisdiction of the court over their person; and we think that having pursued this from the beginning until the end the court was without jurisdiction over the person.

We therefore find no error in the record, and the.judgment of the court below is affirmed.

Pollock and Metcalfe, JJ„ concur.


text:
    GUARDIAN AND WARD — NEGLIGENCE.
    [Hamilton (1st) Court of Appeals,
    February 28, 1914.]
    Swing, Jones and Jones, JJ.
    John F. Nolan v. Sophia Haberer et al.
    1. Testimony of Party in Personal Injury Case Against Guardian for Insane Party Appointed After Happening of Injury Complained of is not Competent.
    One who is injured through the negligence of employees of the insane owner of the business which such employees were engaged in carrying on is not competent, in an action for damages on account of such injuries, to testify against the guardian, if . the insanity of the defendant was not officially declared until after the suffering of the injury complained of, notwithstanding such insanity existed theretofore and the facts of the case were not within her personal knowledge.
    2. Question of Negligence of Owner Causing Lumber to be Piled In Unimproved Dedicated Street and of Contributory Negligence of Pedestrian Injured by Falling Board, for Jury.
    Employees of one who has caused lumber to be piled in a dedicated though unimproved street are bound to exercise a high degree of care to avoid injury to persons who may desire to use the street, and where the evidence is conflicting as to whether the injury to plaintiff by a falling board was due to the negligence of said employees or to his own contributory negligenoe, the case should be submitted to the jury.
    Error.
    6?. C. Wilson and J. E. Fitzpatriclc, for plaintiff in error.

      Pogue, Hoffheimer & Pogue, for defendant in error.
   JONES, E. H., J.

This action was brought in the court below by John F. Nolan against Sophia Haberer, doing business as Haberer & Company, and Jacob F. Haberer, guardian of Sophia Haberer, a lunatic, to recover damages for an injury which he sustained in June, 1908, by being struck on the head by a board while passing along Berlin street in the city of Cincinnati, which board was being removed from a pile of lumber in Berlin street owned by the defendant Haberer & Company. Two employees of Haberer & Company were taking lumber from this pile, one being upon the lumber pile and the other standing on the street. The lumber was being placed on a wheeled truck, which was on the street, for the purpose of wheeling it into the factory. The end of a stick of lumber struck plaintiff on the head causing severe injuries to him.

Berlin street is a public street- of the city of Cincinnati, but has never been improved. It is partly filled and is open for wagon and pedestrian travel. There is a short sidewalk from Gest street south, but it does not extend as far south as the place of,the accident, and people drive over the street principally for service to the factories that are built along it, and pedestrians use it between Gest and South street.

It appears also that defendant had been in the habit of storing lumber upon this street and that the east part of it was occupied by lumber piles where the surface of the street permitted; that there was a- lumber pile against the building of Haberer & Company on the west side of the street where the accident occurred, and the traveled roadway was between this lumber pile, which extended six or séven feet into the street, and the lumber pile from which the board that caused the injury was taken. The truck upon which the lumber was loaded was about three feet wide and was placed about five to seven feet west of the lumber pile from which the lumber was being taken and about four feet east of the lumber pile which was at the west edge of the street. Plaintiff was walking southwardly from Gest street.

The petition alleges that the injury occurred June 8, 1908, through the neglect of the defendant and without fault on the part of the plaintiff.

The defendant Jacob Haberer filed án answer admitting that he was the guardian of Sophia Haberer, a lunatic, and was appointed as such subsequent to the time of the accident, and admitting the ownership- of the plant of Haberer & Company by said lunatic, and that it was operating a manufacturing establishment fronting on Evans and Summer street and extending through to Berlin street, and denied the other allegations of plaintiff’s petition; and for a second defense pleaded that plaintiff was guilty of contributory negligence in that he “deliberately put himself in a place of danger and negligently and carelessly persisted in continuing to walk along said unimproved Berlin street, on which there were lumber piles where passage was so difficult, and easily visible to the plaintiff, and when by passing only a short distance around the corner in another direction he could have avoided any danger, and notwithstanding that knowledge the said plaintiff took no measures of any kind to avoid being struck or injured by the board referred to in the petition of the plaintiff herein.”

And for a third defense defendant says that if plaintiff was in any manner injured by any act of defendant or her agents, servants or ■ employees, that said injury was caused wholly by his own negligence and carelessness and without fault, neglect or carelessness of her servants, agents or employees.

Plaintiff was offered as a witness in his own behalf, and objection was made to his competency as a witness under Sec. 11495 G. C. The court sustained the objection and refused to permit him to testify as to the circumstances of the accident. Exception was taken to .this exclusion as a witness, and this is urged as one of the errors relied upon by plaintiff in error in this proceeding.

This ruling of the trial court excluding plaintiff’s testimony as to facts occurring prior to the appointment of a guardian must be sustained. The circuit court of this circuit has ruled upon this question in a ease involving the same defendant, Ransom v. Haberer, 32 O. C. C. 592 (13 N. S. 511). This case was affirmed by the Supreme Court without report, and while it is argued that the circumstances of that ease differed from those of the instant case because the evidence shows that the insanity of Sophia Haberer existed long, before the accident, still the legislature have seen fit to allow only facts which occurred after the appointment to be testified to by the party opposed to such guardian, and the date of the appointment must therefore control.

If this were a new question the court might be disposed to hold that the qualifying words found in this section, “when a ease is plainly within the reason and spirit of the next three preceding sections, though not within the strict letter, their principles shall be applied, ’ ’ might permit plaintiff to testify in a case of this character where the facts are wholly outside of the personal knowledge of the insane person — the business having been carried on entirely by others long before her incapacity had been officially declared by any court and a guardian appointed for her. For a discussion of this question, see the case of Cochran v. Almack, 39 Ohio St. 314, and the dissenting opinion of Okey, J., on page 318.

At the close of plaintiff’s evidence the court granted defendant’s motion for an instructed verdict. Upon this verdict judgment was entered for defendant, and this is the principal error remaining upon which plaintiff in error relies for a reversal of the judgment below.

The petition contains but one charge of negligence against the defendant, viz., that her employees carelessly dropped a board from said lumber pile which struck the plaintiff upon his head while he was lawfully walking along and upon said street. It seems to us that there can be no doubt that this states a good cause of action. It follows that if there is any evidence tending to support the allegation, the question of the negligence of the defendant and the contributory negligence of the plaintiff, which is raised by defendant’s answer, were questions which should have been submitted to the jury for its determination. No question is raised by the record as to the plaintiff having been lawfully upon the street at the time. It was a dedicated street, and the fact that it had never been regularly improved did not change the rule as to the right of any pedestrian who saw fit to pass along that street. There is nothing in the record to show that the defendant had any authority to store her lumber upon the public highway, and while it may not have been necessary to' show authority for such use of a public street by defendant, she is not in any way relieved from her obligation to so use the public highway in handling her lumber as not to interfere with or injure any pedestrian or other person who might lawfully be upon the street.

The testimony of the principal witness, the man upon the lumber pile, who undertook to detail the manner of the accident, is in itself somewhat conflicting. The trial judge in his charge to the jury undertook to give his conclusion as to just how the accident occurred, and accepted certain parts of the testimony of this witness and rejected other parts. In so doing, he clearly usurped the province of the jury.

In discussing this evidence, the trial judge concluded that plaintiff was guilty of contributory negligence, from the fact, as he found it, that he had stooped at the moment the board struck him on the head. As it is natural for anyone to duck the head or move the body, upon seeing the approach of an object like the end of a board waving in the air, this conclusion is hardly justified, and seems to be drawn from the statement of the witness that he expected the plaintiff to pass close to the pile of lumber under the board instead of undertaking to go around the board on one side or the other of the truck upon which the boards were being loaded.

As was stated in the opinion of the court in Steubenville & W. Trac. Co. v. Brandon, 87 Ohio St. 187 [100 N. E. Rep. 325], at page 196:

“Such a situation presents a case where different minds might reach opposite conclusions, and thus wa's a proper case for a jury under proper instructions.”

The trial court assumed that the warning word used by the defendant’s employee, who was on the ground engaged in the handling of the lumber, was addressed to plaintiff. The evidence did not justify this assumption. It was argued by counsel for plaintiff that this so-called warning might have been considered as addressed by him to his companion on the top of the lumber pile for his guidance in the handling of the lumber, rather than to the plaintiff.

This position taken by the trial court is manifestly based upon the theory that the man handling the lumber had a prior and better right to the use of the street than had the plaintiff, and that upon warning being given, it became the duty of the plaintiff to turn back or to wait until defendant’s employees saw fit to allow him to pass. This surely can not be the law, and rather are we inclined to the view that it was the duty o£ the defendant to exercise a high degree of care in preventing injury to anyone in the lawful and customary use of the street.

This therefore, is not a ease where the evidence of the plaintiff raised a clear presumption of negligence upon his part without any evidence tending to rebut it, which th'eory is the only one upon which the action of the court below could be sustained.

As touching facts and the law in this case, we think the following citations are worthy of notice: Ham v. Railway, 13-23 O. C. C. 496; Pennsylvania Co. v. Rathgeb, 32 Ohio St. 66; Marietta & C. Ry. v. Picksley, 24 Ohio St. 654; Cleveland, C. & C. Ry. v. Crawford, 24 Ohio St. 631 [15 Am. Rep. 633]; Cincinnati St. Ry. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276], and the most recent case of Gibbs v. Girard, 88 Ohio St. 34 [Ann. Cas. 1914 C. 1082].

For the reasons above stated, the judgment is reversed, and the case remanded to the court of common pleas for further proceedings.

Swing, and Jones, O, B., JJ., concur,