text:
    APPEAL — MUNICIPAL CORPORATIONS.
    [Lucas (6th) Circuit Court,
    June 12, 1911.]
    Wildman, Kinkade and Richards, JJ.
    William Bay et al. v. Sylvania (Vil.). Ernest H. Cushman et al. v. Sylvania (Vil.).
    Proceedings to Detach Real Estate erom Municipalities are not Ap- • PE ALABLE.
    Proceedings to detach unplatted farm lands from municipalities, provided for by Gen. Code 3678, 3579, aTe not civil actions appealable under Gen. Code 12224.
    Motion to dismiss -appeal.

      Ray & Gordill and B. L. Hart, for plaintiffs.

      E. G. Froehlioh, for defendants.
   KINKADE, J.

These were proceedings in the court of common pleas under Gen. Code 3578, 3579 to detach certain farm lands from the village of Sylvania. The court of common pleas found upon a hearing that the lands should be detached as prayed for and judgments were entered accordingly. The village of Sylvania brings the eases here on appeal, and the plaintiffs in the actions have filed in this court motions to dismiss the appeals on the ground that they are not civil actions, and therefore not actions that can be appealed to this court under Gen. Code 12224.

The sole question presented here is whether or not this is a civil action and is appealable under the section of the code above referred to.

We think a good deal of doubt has existed among the members of the bar as to whether a proceeding to detach real estate from an incorporated village under Gen. Code 3578 and 3579 is in fact a civil action. In fact some appeals have been perfected and heard without the question being raised by either side as to whether the right of appeal existed, and were it not for a decision of the Supreme Court of Ohio, rendered in 1907, to which our attention has been called in this case, the subject would not be free from doubt with us. The case to which we refer is that of Hicksville v. Bricker, being a decision of the circuit court in Defiance county, and mentioned in an editorial note in 52 Bull. 101. This decision of the circuit court was afterwards affirmed by the Supreme Court in Hicksville v. Bricker, no op., 76 Ohio St. 563.

In that ease, like the one at bar, a judgment was entered detaching the real estate from the village as prayed for in the petition, and thereafter an appeal was taken to the circuit court, and in that court a motion was filed to dismiss the appeal on the ground that the ease was not appealable, not being a civil action. This was the sole question presented to' the circuit court, and upon hearing the circuit court dismissed the appeal.

The counsel for the plaintiffs here has secured and presented to us the printed record in Hicksville v. Bricker, supra, together with the -briefs of counsel on both sides, and also a certified copy of the mandate from the Supreme Court, all of which we have examined with care.

Gen. Code 11237 defining a civil action was taken from an opinion of the Supreme Court in Missionary Society v. Ely, 56 Ohio St. 407 [47 N. E. Rep. 537], and the reply brief in Hicksville v. Bricker, supra, calls attention specifically to this definition given by the Supreme Court, as to what constitutes a civil action. The whole subject was very thoroughly and very ably presented to the Supreme Court in the briefs of counsel in the Hicksville case. There was but one question in that case, to wit, the question as to whether a proceeding of this kind is a civil action, and therefore appealable to the circuit court, and the Supreme Court having affirmed the circuit in dismissing the appeal, the decision of the Hicksville case is controlling here, and upon that authority, the motion of plaintiffs to dismiss the appeal in this case must be granted.

Wildman and Richards, JJ., concur.


source: Caselaw Access Project

author: SMITH, J.

license: Public Domain

text:
    INFANTS — NEGLIGENCE—WITNESSES.
    [Hamilton (1st) Circuit Court,
    November 26, 1910.]
    Giffen, Smith and Swing, JJ.

      Frank Ransom, by His Next Friend, v. Haberer & Co.
    Infant Suing by Next Friend for Tort is Incompetent to Testify Against Imbecile Defendant.
    An infant, in an action by his next friend for the recovery of damages on account of personal injuries received, is the party plaintiff under Gen. Code 11247 and, imbecility of the defendant having intervened, he is incompetent to testify under Gen. Code 11493. Nor is he rendered competent as a witness by the exception in Gen. Code 11495, as to actions causing death.
    Error to common pleas court.

      Scott Bonham., for plaintiff in error.

      Galvin & Galvin and Bogue & Bogue, for defendant in error.

      Affirmed, no op., Ransom v. Haberer, 85 O. S. 000; 57 Bull. 39.

   SMITH, J.

At the trial of the above ease it developed that Frank Ransom, an infant, while in the employ of Haberer & Company, was injured September 27, 1907. Afterward and before the trial of the ease Sophia Haberer, the sole owner of the business of Haberer & Company, was declared an imbecile, a guardian being appointed for her and substituted as party defendant in' the ease.

When Frank Ransom was offered as a witness in his own behalf he was not allowed to testify by the trial court upon the ground that he was not competent to so testify under R. S. 5242 (Gen. Code 11495).

Upon the conclusion of plaintiff’s evidence the court instructed the jury to return a verdict for the defendant in error.v upon which judgment was subsequently rendered and it is now sought in this court to reverse said judgment upon the grounds: First, that plaintiff in error was not the party plaintiff but that the real party plaintiff was his next friend; and second, that the case falls under the eighth exception set out in R. S. 5242 (Gen. Code 11495), which provides that “Nothing in this section contained shall apply to actions causing death.”

We do not think that these objections are well founded. It is evident under R. S. 4998 (Gen. Code 11247) that the infant in this case is the party plaintiff, his action being brought by his next friend, and this court so held in the case of Burkham v. Cooper, 1 Circ. Dec. 371 (2 R. 77).

As to the second objection it has been decided in Ross v. Todd, 2 Circ. Dec. 385 (4 R. 2), that while R. S. 5242 does not in terms exclude as a witness a party when the adverse party is the guardian of an “imbecile,” yet an imbecile comes within the meaning and spirit of-the statute. Such a person is one of unsound mind and under R. S. 5240 (Gen. Code 11493), is an incompetent witness.

It has been urged that in actions of tort where one party is under such a disability the adverse party would be a competent witness; but the statute makes no distinction in this regard between different classes of civil actions, and this has been so held in the case of Irwin v. Nolde, 164 Pa. St. 209 [30 Atl. Rep. 246].

We can not agree with counsel for plaintiff in error that this case comes within the eighth exception under R. S. 5242. which applies to actions causing death. The case before the court is one for personal injuries. It is evident that this exception was created by the legislature to enable a defendant in a ease brought against him for .causing the death of a person, to testify, where the administrator of the deceased is the adverse party.

We find no errors in the record and the judgment of the court below will be affirmed.

Giffen and Swing, JJ., concur.


author: GIFFEN, P. J.

text:
    NEGLIGENCE — STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    January 14, 1911.]
    Giffen, Smith, and Swing, JJ.
    Cincinnati Trac. Co. v. Albert H. Johnson.
    1. “Fairly” as Applied to Raising a Presumption Means “Reasonably” not “Clearly.”
    “Fairly” in a charge instructing the jury “that if the evidence introduced by the plaintiff * * * fairly raises a presumption * * * that he was guilty of contributory negligence, ■then the burden is on him,” means “reasonably” or “measurably” rather than “clearly.” t

    2. Charge Defining Ordinary Care to be Doing Everything in Power to Avoid the Negligence Complained of is Prejudicial.
    A charge to the jury, in an action against a street railway eompany for injuries sustained by a pedestrian struck by a car at a street crossing, instructing that “if you find from the evidence that the defendant company through its servants used ordinary care, doing everything in its power to avoid an accident, plaintiff cannot recover,” instructs the jury in effect that ordinary care oonsisted in doing everything in its power to avoid the accident and is prejudicial, notwithstanding ordinary care is properly defined in another part of the charge.

      S. Charging that Rule of Company as to Passing Cars should be." Considered in Determining Ordinary Care is not Prejudicial.
    A charge instructing jury to determine whether street car employes used ordinary care in approaching a street crossing at which an accident happened, including the rule of the company which orders that when passing standing cars the gong he rung: and ears under complete control, does not mean that ordinary care required the company to leave its car under complete control hut that the company rule so required, and therefore the charge is not prejudiced.
    4. Pedestrian Passing Back of One Car onto Tracks on- Which Cars: Operate in Opposite Direction Without Stopping to Look and> Listen Contributes to His Injury.
    A pedestrian walking from behind a street ear going in one direction to and on tracks on which cars go in the opposite-direction without 'stopping to look and listen, on which he was-struck by a rapidly approaching car before he could step back: out of its way is guilty of negligence precluding recovery.
    [Syllabus approved by the courtj
    Error to common pleas court.

      Rufus B. Smith and Chas. A. Groom, for plaintiff in error:

      Mattheivs & Matthews and Strieker é- Johnson, for defendant in error.
   GIFFEN, P. J.

The plaintiff below, Albert- H. Johnson, was injured at & street crossing, while walking from behind a south-bound car toward and near the north-bound track, by a car running, northwardly on that track.

Counsel complain of the following part of the general: charge:

“The burden of proving contributory negligence on the part of the plaintiff, is upon the defendant, with this qualification, that if the evidence introduced by the plaintiff as to the circumstances under which his injuries were' received, fairly raises a presumption in your mind that he was guilty of contributory negligence, then the burden is upon him to remove that presumption. If no presumption arises, the burden remains on the defendant.”

The objection is aimed at the use of the word “fairly," the claim being that it means “clearly”, and that the charge-requires a “clear” presumption of contributory negligence, but we think that it was used in the same sense as “reasonably” or measurably and was so understood by the jury, who were not therefore misled.

The court further charged the jury as follows:

“If you find from the evidence that the defendant company through its servants used ordinary care, doing everything in its power to avoid an accident, plaintiff can not recover; but if it did not do this, but could in the exercise of ordinary care have avoided injuring him, plaintiff having exercised ordinary care, then he can recover.”

This was in effect telling the jury that ordinary care on the part of the defendant consisted in doing everything in its power to avoid an accident and was clearly erroneous.

It is true that the court elsewhere properly defines ordinary care; but the jury would nevertheless be justified in following this instruction and probably did, as the plaintiff’s own testimony came so near raising a presumption of contributory negligence. Indeed his amended petition raises a presumption of contributory negligence where he avers “that immediately after crossing over said south-bound track and stepping upon the space intervening between said south and north-bound tracks, which space was about three feet wide, plaintiff stopped to look and listen, to ascertain if any car was approaching upon said north-bound track, when * * * before plaintiff could step back and get out of the way of said approaching car, he was struck by the front and sides of said car. ’ ’

This is an admission by the plaintiff that it was his duty, under the circumstances, to look and listen; but it availed him nothing to look or listen after he had advanced so far and stopped in a place of known danger. If he recognized the danger of the situation and his duty to look for an approaching car on the north-bound track, which this averment as well as his evidence seem to imply, he could, by looking at the proper time, have avoided the accident, and should have done so. He testifies, however, that he did not stop but looked while walking.

We think, therefore, that this .instruction not only imposed the highest degree of care upon the defendant but tended to lessen that which was required of the plaintiff.

The court further charged the jury on the subject of ordinary care as follows:

“You must further determine whether the servants of the company used ordinary care in approaching said crossing from all the evidence, including the rule of the company which orders that when passing standing cars the gong must be rung and the cars must be under complete control.”

This instruction does not mean, as counsel contends, that ordinary care required the company to have its car under complete control when passing standing cars, but it does mean that the rule of the company so required, and that the jury could consider that rule along with the other evidence in determining ordinary care. There was no error in thus charging' the jury.

The third special instruction requested by the defendant to be given to the jury was properly refused by the court upon the authority of Cincinnati St. Ry. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276].

The second special instruction is as follows:

“If the jury find from the evidence that the plaintiff attempted to cross Montgomery avenue at a point between squares directly behind a south moving ear, and after passing the back of the south moving car did nothing to inform himself as to whether a car might not be approaching from the opposite direction on the track which he intended to cross, but stepped immediately in the way of the approaching car so that it was impossible for the motorman to have stopped the ear and have avoided the accident, the jury should find for the defendant. ’ ’

While the word “squares” does not express the meaning intended, it seems to us immaterial whether the plaintiff was passing over a crossing or between crossings, as he would not in either case be exercising care if he did nothing to inform himself as to whether a car might not be approaching. The instruction, however, is,substantially the same as the first special instruction which the court gave to the jury, hence there was no -error or prejudice in refusing it.

In considering the weight of the evidence we do not find it insufficient in the particular claimed by counsel; but it is so with reference to due care on the part of plaintiff. The precision with which he sets forth in his amended petition the times and places of listening and looking for an approaching car, and the like precision with which he testifies to the same acts, leave little doubt that he saw the car in time to avoid injury. The only possible excuse suggested is the sudden appearance of the north-bound car running at a high rate of speed as he emerged from behind the south-bound car, and the confusion resulting to one who assumed that if any car was coming it would be at a lawful rate of speed; but giving due weight to all the facts in the ease we are still of the opinion that he was guilty of contributory negligence although, not sons matter of law, and that -the court erred in not granting a new trial for that reason as well as error in the charge.

The judgment will therefore be reversed, and the cause remanded for a new trial.

Smith and Swing, JJ., concur.


author: PARKER, J.

text:
    ASSESSMENTS — DRAINS AND DITCHES.
    [Sandusky (6th) Circuit Court,
    May 22, 1901.]
    Haynes, Parker and Hull, JJ.

      H. A. Winters v. John Fangboner et al.
    1. Cost of Outlet Ditch Assessed against all Lands Benefited.
    Assessments for an outlet ditch may be extended so as to include all lands the drainage whereof through such outlet is facilitated by artificial means.

      2. Assessments rom Outlet Ditch Draining Flat Lands Will not be Enjoined.

      The construction of an outlet -ditch, making it possible to tile and drain certain tracts of flat lands above it containing large, marshy spots and ponds impossible to drain by previous natural or artificial facilities without damaging lower tracts by casting overflow waters thereupon, and which effects a reclamation of the same for productive cultivatable land, shows sufficient actual benefits to justify an assessment therefor, against which a court of equity will refuse any aid under R. S. 4491 (Gen. Code 6500).
    [Proof of this decision and syllabus was submitted to Judge Parker and corrected. — -Ed.]
    Appeal from common pleas court.

      Richards & Heffner, for plaintiff.

      Meek & Dudrow, for defendants.

      Referred to in Mason v. Fulton Co. (Comrs.) 30 O. C. C. 49, 59.

   PARKER, J.

. This action is brought by Mr. Winters to enjoin the collection of certain ditch assessments. The petition sets forth that in 1891, Mr. Wahl petitioned the commissioners of San-dusky county, Ohio, and the commissioners of Erie county, Ohio, for the straightening of a certain ditch, called the “Wahl ditch,” along a certain route described in the petitionthat the commissioners of said counties in joint session found that the ditch would be necessary, and that its construction would be conducive to the public health and welfare, and thereupon ordered that said improvement should be made, and the improvement was thereafter made, and the plaintiff’s lands were assessed therefor, as follows:

A certain tract of 120 acres, which is described as tract 1, was assessed $210.

A certain tract of forty acres, described as tract 2, was assessed at $70. ”

A certain tract of sixteen acres, described as tract 3, was assessed at $26.

A certain tract of forty acres, described, as tract 4, was assessed at $70, and

A certain tract of 140 acres, described as tract 5, was assessed at $89.70:

So that it appears that he had 333 acres assessed,, and that the total amount of the assessment upon these different tracts was $369.70, or a little over a dollar per acre.

The plaintiff complains that this assessment was not made according to the actual benefit. He sets forth what he supposes to have been the theory upon which the commissioners proceeded in making the assessment, viz., that they proceeded upon the theory that they had a right to levy ah assessment upon all the lands that cast waters into this ditch — which is an outlet ditch — all of the lands comprised within the' bounding watersheds, and he says that gross injustice was done in the apportionment of the cost of this improvement, and he asks that the consummation of this injustice may be prevented by injunction.

The averment as to these assessments not having been made according to the actual benefits to the lands is denied by the defendants in their answer, and it is averred therein that Mr. Winters was one of the petitioners for the ditch, and certain other facts are averred therein in respect to plaintiff’s conduct in the matter, which the defendants contend give rise to an estoppel.

It appears that Mr. Winters was one of the petitioners for this ditch improvement. That his lands, consisting of these five several tracts, v lying contiguous to one another, are in fact one body of land. The tracts extend quite a long distance from north to south, but are not so wide from east to west. This outlet ditch begins near the north part of his lands, and extends thence through these and other lands into Erie county, and to the outlet in Sandusky bay.

It seems to have been quite a large and important improvement. It is described by the witnesses as a “dredged ditch,” because a dredge was used in its construction. It was constructed through marsh land, and it was necessary on account of the condition of the lands, to dig it with a dredge.

Part of these lands of Mr. Winters are marsh lands, wet and boggy, and at certain seasons of the year they overflow, especially the north parts. The whole territory thereabout is quite flat. From the southern to the northern extremity of his land there is a fall upon the surface of about fourteen feet, and along the east side of all of his lands (excepting tract 4, which is about forty acres), there has been for years a township ditch which affords him some drainage facilities, but all the water was not carried away from the lower part of this land until after the construction of the improvement mentioned in the petition. Theretofore the water backed up quite a distance, and during wet seasons of the year it overflowed his lands and the lands of others in that locality.

I have said that Mr. Winters was one of the petitioners for this ditch, and -he appears to have been present at the joint bearing before the commissioners of these two counties when they had this improvement under consideration, and he was one of the promoters, and the testimony is undisputed that, on the day the apportionment was made of the costs and expense that would arise from the construction of this improvement, he was present and made no objection to the amount it was then stated in his presence would be assessed upon his lands for this improvement, to wit, the amount afterward assessed thereon, of which he now complains.

We are not advised whether the burdens of this improvement have been fairly and equitably apportioned upon all of the lands of the different proprietors that have been assessed. We have no evidence upon that subject.

The contention of the plaintiff is not upon the ground that there has been an unfair distribution of the burdens between himself and the other proprietors, but he says that his lands have been assessed beyond the amount of the benefits accruing to them; and he invokes the aid of the court under It. S. 4491 (Gen. Code 6500), which authorizes a court of equity, even where the proceedings are legal and regular, to correct and remedy gross injustice, if it shall appear.

These assessments were distributed in six semiannual payments. Two of the semiannual payments were made by Mr. Winters without objection. The third and fourth were made by him under protest; that is to say, when he went to the treasurer’s office, and offered to pay all of his taxes excepting the installments then due on account of these assessments and the treasurer declined to receive any of his taxes and assessments unless he would also pay these. That occurred upon two occasions; and upon this statement being made by the treasurer, without more ado other than signifying his objection, and saying he did it under protest, plaintiff proceeded to pay these as well as the other taxes and assessments. He asks now that in adjusting his rights, the court shall take into consideration what he has paid upon the various tracts and allow anything paid on any tract in excess of the amount justly payable thereon, as a credit upon the unpaid assessments upon other tracts.

The view we take of the ease will not require us to consider whether or not this may in any case be done. The contention of the plaintiff is based upon the theory, as it seems to us, that no lands can be assessed for such an improvement except such as at the time of the making of the improvement, or subsequently thereto, receive a direct benefit by way of drainage then or thereafter made or provided for.

We have considerable testimony here upon the part of the plaintiff as to the distance toward the south up this township ditch, that water may be backed or banked by building a dam across it at the lower end. Experiments have been made, and it does not appear that the water can be backed up beyond the middle of tract 2, and the southern part of tract 4, which lies immediately east of tract 2.

Now tracts 1 and 5, which are the largest tracts, one being the 120-acre tract, and five being the 117-acre tract, and which are the tracts that plaintiff says are not benefited at all by this improvement, cannot be affected by such backing up of the waters in this township ditch. It appears to be demonstrated that, even before the construction of this outlet ditch, tracts 1 and 5 might have been so thoroughly drained into this township ditch as that all the water would have been carried therefrom to some point below. That has since been done; and it appears that the carrying of the water off of tracts 1 and 5, has not been facilitated by the construction of this outlet.

From this state of facts, it is contended that tracts 1 and 5 are not so benefited that any part of the assessment may be lawfully levied thereon.

It is contended, by counsel for plaintiff that a decision of this court, Buckley v. Lorain Co. (Comrs.) 1 Circ. Dec. 137 (1 R. 251), sustains their contention and view of the matter. They also cite as authority in support of their position the case of Blue v. Wentz, 54 Ohio St. 247 [43 N. E. Rep. 493].

In those cases it is distinctly held that it is not proper for the commissioners to levy ditch assessments upon lands simply because water from such lands may or does find its way into the ditch improvement. But the fact was in each of those cases, that the water found its way into the ditch, not by reason of the improved drainage thereby afforded, nor by reason of the flow of the water being facilitated by the industry of man, but by reason of the fact that' the natural drainage carried the water down to the outlet. It does not appear to us in the case at bar that the natural drainage from tracts 1 and 5 would have carried the water therefrom to the outlet afforded by this improvement, or further than the lands lying immediately north of said tracts.

The holding in the case of Blue v. Wentz, supra, is that,

“Where the lands of an owner, by reason of their situation, are provided with sufficient natural drainage, they are not liable for the costs and expense of a ditch necessary for the drainage of other lands, simply for the reason that the surface water of his lands naturally drain therefrom to and upon the lands requiring artificial drainage.
“A lower tenement is under a natural servitude to a higher one to receive from it all the surface water, accumulating from falling rains and melting snows, or from natural springs, that naturally flow from it to and upon the lower one. This advantage of the higher tenement is a part of the property of the •owner'in it, and he is not indebted to the lower tenement therefor.
“In making an assessment on lands, benefited by artificial drainage, the extent of their watershed is not the proper rule, but the amount of surface water for which artificial drainage is required to make them cultivatable, and the benefits that will .accrue to the lands from such drainage. However much water may fall on them or arise from natural springs, if, by reason of their situation, they have adequate natural drainage therefor, they are not liable for the cost of artificial drainage to other lands.”

In the discussion of the case in the opinion of the court, it is distinctly indicated and emphasized that the rules laid down limiting the authority of the commissioners to extend the assessments beyond the immediate neighborhood of the improvement itself are based upon the right of a proprietor to have and enjoy, without charge or expense, his advantages of natural drainage. There is no question, I think, but that assessments for an outlet ditch may be extended so as to include all lands the drainage whereof is facilitated by artificial means where the improvement on! account of which they are assessed furnishes an outlet for the waters thus brought down from such lands.

If this township ditch and this county ditch, for instance, had both been constructed at one time, as one single continuous improvement, we think it is apparent that by applying correct rules and principles applicable to the levying of assessments, the cost could have been assessed upon all these various-tracts of land, and that the cost need not to have been limited to the amount that plaintiff might be required to pay for so much of the drainage as would be afforded by the township ditch, but, because of his having given this outlet, his assessment might include a just proportion of the cost of continuing the ditch to the ultimate outlet in Sandusky bay; and in that case the assessment might have been as much as he has been assessed on the two improvements without exceeding his benefits or his just proportion of the burdens.

These different tracts described as tracts 1, 2, 3, 4 and 5, though lying in one body, seem to have been treated by the commissioners as separate and distinct tracts, and perhaps we should treat them so — perhaps we are required to do so; and we will consider the rights of the plaintiff viewing them in that light; and to make our views clearer we will treat tracts 3,and 4, the lower or northern tracts, as if they belonged to another proprietor, — as if they were not owned by the plaintiff at all. In that case, would the commissioners have a right to assess-any part of the cost of this outlet ditch upon tracts 1 and 5 belonging to this plaintiff?

According to the testimony of the witnesses as I have said, tracts 1 and 5, as well as the other lands, are flat lands, although they lie from twelve to fourteen feet above the part of the northern portion of plaintiff’s land where this outlet ditch begins. They require considerable artificial drainage. They had been tiled and ditched to some extent before this- other ditch was dug, but they have been tiled and drained more effectively since.

It appears that part of tract 5 was marshy and. in a bad condition and not eultivatable before this ditch was dug. One of the witnesses testified that in the spring of the year it was impossible to go upon part of it with horses, because they would become mired. And upon tract 1 was a large swale of an acre and a half or two acres, in which water stood throughout the year, and where persons skated and cut ice in the winter and fished in the summer, and in which, according to the testimony of one witness, who was very specific upon the subject, there were certain “fish known as pike that would swim in the water. ’ ’

After this outlet ditch was dug, and not before, the boggy land of tract 5 was drained so as to be subject to cultivation, and the swale in tract 1 was drained so that it was made dry and subject to cultivation, and the remainder of these tracts were in some measure improved, to exactly what extent, measured in dollars and cents, we will not pretend to say; but we cannot say that they were not improved after the digging of this outlet to an extent that would justify the assessment upon tract 5, of $89.75, and upon tract 1 of $210.

We think that enough land was reclaimed in tract 1, to nearly justify the assessment thereon. As I have pointed out, the assessment upon the whole territory amounted to only about one dollar per acre, which does not seem to us, who have been accustomed to ditch assessments in northwestern Ohio, to be a very heavy assessment.

Now, while it may be true that it was possible and practicable to have drained tracts 1 and 5, as effectually before’the construction of this outlet as after, yet we must consider the consequences to other property to have done that before the outlet was constructed — the consequences to the proprietors below, if we treat these lower tracts as lands of other proprietors. It must be considered whether plaintiff; had a right to thus drain tracts 1 and 5; whether before he obtained this outlet he was in a situation where he might do it lawfully and without being subject to a claim for damages. We think he nad not that right, and that the benefits that accrued to him from the construction of this outlet, were these: that, being the owner of the lower-tracts, he was enabled to east the waters down upon the same from tracts 1 and 5 without doing damage to the lower tracts, and with respect to the lower lands of other proprietors he was relieved of liability for damages. He drained this large pond through the lands below without injury thereto, but, according to the testimony, if this had been done before this outlet was constructed the water carried down to the lands below would have backed-up in the township ditch and would have overflowed the lands below near where the outlet ditch begins, so as to damage the lands of plaintiff and those of his neighbors lying in that locality.

As throwing some light upon the legal phase of this situation, I refer to the case of Butler v. Peck, 16 Ohio St. 335 [88 Am. Dec. 452]. The syllabus reads:

“Where upon the lands of B there is marshy basin, from which, in times of high water, a portion of the water contained in the basin overflows its rim and naturally finds its way through a-swale to and upon the lands of P, while the remaining portion of the water in the basin has no outlet, and is dissipated by evaporation; B cannot rightfully, by an artificial drain, conduct the water that has no natural outlet from the basin, and along said swale so as to cause them to flow upon the lands of P to his damage.”

Now that case, as stated in the syllabus, and as more fully and distinctly stated in the report, described the situation of the plaintiff here, with respect to the injury and damage that would be done to his lower tracts and those of his neighbors by drainage of marshes and swamps and swales, if it were done before the opening of the outlet that this new improvement gives to them. .

Upon this subject of the servitude for drainage, of lower lands to lands lying above, I read from this same report, at page 342:

“The principle seems to be established and indisputable, that where two parcels of land, belonging to different owners, lie adjacent to each other, and one parcel lies lower than the other, the' lower one owes a servitude to the upper, to receive the water which naturally runs from it, provided the industry of man has not been used to create the servitude. Or, in other words more familiar to the students of the common law, the owner of the upper parcel of land has a natural easement in the lower parcel, to the extent of the natural flow of water from the upper parcel to and upon the lower.”

Besides his own lower tracts there were lands of other proprietors in that locality which were overflowed somewhat by water from this township ditch, and an increase of the overflow upon which would have been caused by the complete drainage of the waters from tracts 1 and 5. By making this improvement, the plaintiff is given the means of casting down the water from tracts 1 and 5, without increasing the damages to his lots below,. and without incurring liability for damages to other lots below, and therein and thereby we think he has received a very substantial benefit to tracts 1 and 5 as well as to his other lands, and we are not prepared to say that those benefits are not as great as the amount assessed. Therefore the petition will be dismissed and the costs adjudged against him.

Haynes and, HhH, JJ., concur,


text:
    RAILROADS — STREET RAILWAYS.
    [Huron (6th) Circuit Court,
    1906.]
    Haynes, Parker and Wildman, JJ.
    Akron & C. J. Ry. v. Sandusky, N. & M. Elec. Ry.
    1. Manner and Mode of Electric Road Crossing Steam Railroad.
    It is the policy of the statutes providing for the manner of one . railroad’s crossing another to require crossing other than at grade, where practicable from an engineering view and reasonable as a business proposition; and where an electric road seeks to cross a steam road and an overhead crossing is, under all the circumstances, practicable and reasonable .for both companies, the same will be ordered.
    2. Apportionment of Cost of Crossing.
    In apportioning the cost of an overhead crossing between an electric railroad company and a steam railroad company the steam company, having been first established, should be made to share the cost of constructing only that part of the crossing that is necessary to provide a way and support for the tracks of the crossing railroad; the cost of ties, rails, ballast and the like, must all be borne by the company crossing over.
    [Proof of this decision and syllabus was submitted to Judge Parker and corrected. — Ed.]
    Appeal from common pleas court.

      Arrel, Wilson <& Harrington, G. R. Craig and W. Severance, for plaintiff.

      S. M. Young, for defendant.
   PARKER, J.

This matter comes into this court hy way of appeal. An application was made to the court of common pleas by the Akron and Chicago Junction Railroad Company, under an act (97 O. L. 548; R. S. 3333-1; Gen. Code 8834) entitled “An act to amend section one, of an act entitled ‘An act to provide for one steam railroad’s crossing another steam railroad’ passed May 10, 1902, relating to the crossing of railroads” to require that the'crossing over its railroad proposed and designed by the Sandusky, Norwalk and Mansfield Electric Railway Company should be made otherwise than at grade crossing.

From the order or judgment of the court of common pleas, •an appeal has been taken to this court, and we have heard the testimony of the witnesses pertaining to the reasonableness and practicability of the mode of crossing otherwise than at grade; we have also heard the arguments of counsel upon the matter and have also viewed the location of the proposed crossing.

It may be thought since we have arrived at a conclusion in the case very soon after the arguments were closed, that we may not have given the case as full consideration as it merits; but I may state to counsel and parties interested that we have had the matter under consideration ever since the case was opened to us and Judge Haynes and myself have had it somewhat under consideration ever since the matter was presented to us at chambers at Toledo, some time ago. We feel that we are about as well informed as to all the circumstances that should be taken into consideration as we would be if we should give the matter more extended consideration.

The railway company makes this application as the owner and operator of a steam railroad. At the point in question, it has double tracks, and it appears from the testimony that it •designs to have four tracks some time in the future; that the road is doing a great deal of business and that its business is rapidly increasing. Without doubt it is at. the present time (saying nothing of the purpose for the future) a main trunk line, and at this point many trains are run over its road, some •of them at a high rate of speed; this point lies not very near to any village, upon a straight piece of track and a high rate of speed may be attained.

On behalf of the company it is insisted that it would interfere materially with its traffic and with its operations if a grade crossing were established here, and that such a crossing would be likely to result in expense to it and in damage to the traveling public, both those traveling over its line of railroad and those traveling over the line of the electric railroad. It is proposed by the electric road to cross the steam road at this point at right angles. The electric road is now constructed over a distance of about twenty-five miles and it is designed to be extended. It is said that its purpose, when it is fully constructed, when it has completed this crossing, is to run in the neighborhood of thirty cars per day. It appears that the steam railroad runs from forty to sixty trains per day over its line of road at this point.

. From this brief statement of facts, it will appear that this will be a very important crossing of the railroads, and one where we think that even if the greatest precautions were observed by all the parties operating upon either line, accidents would be very likely to occur.

In applying this statute and in construing it, we feel that we should have in mind and enforce the evident legislative policy of the state, as manifested not only in this statute, but in a number of other statutes upon the statute books of the state, in pari materia; and it is very plain that that policy is to avoid in the future, as far as reasonable and practicable, the construction of additional grade crossings, and to do away with grade crossings that are at present in existence.

The statutes to which I refer, other than the one applicable to this case, are found in R. S. 3337-8 to 3337-17; Gen. Code 8863-8873; and another statute of like character, R. S. 33, 37-17a to 3337-17h (Gen. Code 8874-8892), and the statute passed on April 25, 1904 (97 O. L. 546; R. S. 5332; Gen. Code 11605, et seq.), entitled “An act to provide how railroad and highway crossings may be constructed.”

Under this statute applicable to this case, it devolvés upon the court to ascertain, determine and define by its decree, the mode of crossing which will inflict the least possible injury upon the rights of the company owning and operating the road which is intended to be crossed and if, “in the judgment of said court, or said judge, it is reasonable and practicable to avoid a grade crossing, it shall by its process, prevent a .crossing at grade. ’ ’

It is obvious that the mode of crossing that would be the least injurious to the company making this application, would be some other mode than a grade crossing; that a grade crossing, in other words, would be the most injurious mode of crossing to that company.

It is urged, however, that it does not necessarily follow that such crossing would interfere with absolute rights of the company; that the rights of the company to that part of its road not to have it crossed, are not of that high degree, or not of that character that should receive great consideration in opposition to the project and rights of the Electric R. R. Company; that its right, in other words, to operate its line of railway over the country, is subject to the rights of the public as represented by other public service corporations to cross over its tracks.

We agree that the statute, in speaking of the rights of the company whose road may be crossed, has in view rights which are not absolute, but which are qualified in the manner already suggested by counsel.

We have to consider, under the evidence, whether another mode of crossing is practicable, and as we understand the testimony of the engineers, as an engineering proposition, — as a physical question, — the practicability of an overhead crossing at this point is beyond question. It may be done, and that, we think, is all that is intended by the word “practicability” in this statute. But, as we understand the statute, such a cr'ossing is not to be required, unless it is reasonable as well as practicable; so we have to consider the question of the reasonableness of such a requirement.

It seems to us that the main question here is, whether as a business proposition it is reasonable to require this of the company, which has invested, or which purposes to invest its money in this project. We have discussed this and we’ have taken into consideration in this connection the cost that would devolve upon the electric road of maintaining a grade crossing at this point.

It is clear from the evidence that the actual cost to the electric road of maintaining a grade crossing at this point would be about $500 a year, certainly not much less, and perhaps not a great deal more than that. Taking that into consideration, and taking the loss of power which has been testified would result from the starting or the stopping of cars, and the starting of cars again, as they are required to do at grade crossings, the delays incident to such stoppages, and'to observe whether trains are coming and to wait for trains, if they happen to be coming, •and the possibility — to put it no stronger — of loss resulting from accidents from collisions at crossings, we think it would be reasonable, as a business proposition, for this electric railroad company to build an overhead crossing at this point, even if the whole expense of it should fall upon the electric company.

On the other hand, taking it from the point of view of the steam railroad, the slowing down that would be required in the «operation of their trains, the breakages that would occur to wheels, as has been testified to, from the running over these frogs, the hindrances that would result when it became necessary to repair and replace the frogs, and the responsibility of the company for disastrous accidents, that would not be unlikely to occur and result in great loss to the railroad company, we think, as a business proposition, that this overhead crossing should be constructed, even though every dollar of cost should fall upon that company. Certainly then, we conclude that, if the cost is to be equitably divided so that the whole cost shall not fall upon either, as to both it is reasonable that this overhead construction should be made. Such a crossing should not be required, if the grade the electric company would be required to establish would exceed the maximum grade of the company ■crossing; and it is made clear by the evidence here that this would not be so; that this crossing may be made at a grade not to exceed 3 per cent. The electric railroad has grades upon its line exceeding’ 3 per cent — grades that it has voluntarily established — and other grades running up to 6 per cent and perhaps .seven per cent — at least 5 or 6 per cent — where it is running ■over village streets upon grade established by the municipality. Neither should it be required, if it would result in the track’s being put below high watermark. It is clear from the evidence that that would not result here; so that we see no hindrance by the intervention of anything provided for in the statute to the ■ordering of this overhead crossing. We have not discussed the matter of any other mode of crossing; that is to say, a crossing going under the steam railroad, because it'seems to us that, if it is practicable at all, it is not so practicable as an overhead ■crossing.

The statute requires that the court shall, in its order., equitably apportion the initial expense of such construction or crossing, with the expense of maintenance thereof, among the parties interested.

Before coming to that, however, I should say something about another matter that is urged upon our attention, and that is, the probable results to the traveling public using the highway, the roadway being one of the principal highways of the county across this steam railroad at about this same point, also at right angles; in other words, the right of way of the electric railroad is immediately to the east of and parallel with the highway, and it is said that the construction of such an embankment-as will be required here to carry the electric road over the steam-road will result in so obstructing the view of persons traveling along the public highway — obstruct their view of the railroad to the east — as that it will endanger them and endanger trains r, and vice versa, that it will obstruct the view of the enginemert upon trains to the east of the embankment — obstruct their view of the highway and of passengers thereon.

This is a matter worthy of consideration, to be taken inteaccount, we think, under the head of the reasonableness of thereejuirement. But even then, we think the greatest good to the greatest number, the greatest interests involved, should be considered, and that so far as the public travel along the highway is concerned, we do not see but that this construction may be-so made as to avoid the dangers apprehended by counsel; in other words, that the embankment need not be carried so- far toward the right of -Way of the steam railroad as to prevent a fair view of the railroad to the east by persons along the public-highway within a reasonable distance of the railroad, so- that if there were any danger to be apprehended, they might observe it before coming upon the railroad; and so that enginemen to the east of the embankment on trains passing westward might not have their view of the highway, materially obstructed.

Our conclusion is, that an overhead construction should be required; but we are not prepared to set forth in a decree precisely what that overhead construction shall be. We think that the embankments and abutments should not be carried nearer than twenty-five feet of the right of way of the steam road; in other words, that there should be open spans covering the distance over the right of way, which is one hundred feet, and twenty-five feet beyond, on each side, which would make it one hundred and fifty feet. The central span should be sixty feet to admit of a four-track construction, if the steam railroad should so desire, so that it might be done without tearing down this construction or interfering with it. That would make necessary forty-five feet, I believe, in each of the other spans.

Just how those spans should be constructed, the weight of iron and the weight of steel, or the exact form of construction, we are not prepared to say — we are not prepared to set that forth in a decree. We think that ought to be arrived at by agreement of the parties; that they ought to be able to come together upon the subject: if they are not able to do so, however, the court will take to its aid an engineer and have plans prepared, but that in an undertaking the court does not desire to enter upon, :as it would be obliged to trust entirely to the judgment of engineers, and we think it would be better, if possible, to have it done by the parties interested.

We conclude, taking into consideration the advantages to result to each party, their rights in the premises as public service corporations, the interests of the public and all, that the cost should be divided as provided in like cases by the statutes ; that is to say, that each party should bear one-half of the expense of this construction. This, however, is not to include the cost of ties, rails or ballast, or anything of that sort, and is not to include the cost of land for supporting the embankment or damages to abutting landowners. We think the electric railroad company should procure its own right of way; that what the statute contemplates here, is the cost of construction of such crossing, not the cost of the right of way.

Now, unless the parties can agree upon the amount of the cost to be divided in this way, and upon the form of construction, the court will have to take to its aid, as before stated, an •engineer and other competent persons to arrive at it, and then declare it. We think they should also be able to relieve the court of the burden of determining the manner or time of payment; and unless it is done by the parties the court will have to do it.

In view of the fact that the cost of maintenance will be inconsiderable — will be very light indeed, as compared with the cost of maintaining a grade crossing by the electric road — we conclude that, if 'the steam road bears one-half'of the initial cost, that should relieve it from any further burden with respect to this crossing; and we also conclude that the cost of this inquiry should be divided equally between the parties.

It should be understood that this decision at which we have arrived is not a settlement of the whole controversy which may arise between the parties; in other words, that it is subject to the rights of the steam railroad to deny a crossing to the electric railroad until they shall acquire their right by appropriation proceedings. The constitution requires that an appropriation of property shall be made and that the costs assessed by a jury shall be paid, before one may enter upon the property of another; and this statute, if it undertook to do away with that provision, would be, of course, .unconstitutional. But if such foi’m of construction is made as we have described, and as we shall order, we think it proper to say now — what we may possibly be required to say some time in the future — that we cannot see why the steam railroad should have more than nominal damages for the crossing.

' We cannot, as we understand the law, give the right for a temporary crossing; we cannot give the right to any crossing; we cannot give the electric railroad company any right to cross overhead, underneath, or any other way at all; we can only determine how they shall cross when they have acquired the right to cross.

We will hold the case open for a reasonable time to give the parties an opportunity to agree upon plans.

We think the control of the construction should be in the hands of the electric railroad conmpany. It is their road; it will be their bridgé, or their crossing.

Another matter that has occurred to us is, that it is a matter of indifference to the steam railroad what the grade of this bridge shall be, only so that the .height required shall be attained. It may be, that the electric railroad company shall prefer to make the bridge more abrupt and not have the grade-3 per cent, but have it 4 or 5 per cent. In that case, there would be less cost, — less cost would fall upon them and less cost would fall upon the steam railroad. That, however, will be a matter for them to consider. The court would not require them to-build it at a grade exceeding the 3 per cent.

We shall treat this as our final judgment and we shall have the journal speak as of today. If the parties do not agree, we shall get the information required of us in the best way we can, and use it. We do not understand that in eases of this kind, we are required to sit in court as upon a regular trial of an ordinary law or equity case. We might have proceeded in the ease without calling a single witness if we had chosen to do so.

The restraining order will remain in present force. The order should be modified, however, if necessary, so as to allow the electric road to proceed in condemnation.

Haynes and Wildman, JJ., concur.,


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    INSURANCE — LIMITATION OF ACTIONS.
    [Hamilton (1st) Circuit Court,
    July 18, 1908.]
    Giffen, Smith and Swing, JJ.
    James B. Swing, Tr. v. Clinton Crane et al.
    1. Rule as Payment or Assessments on Premium Notes for Mutual. Fire Insurance does not Bar Defense to Assessment on Standard Form Policy.
    A decision in -a suit for ouster of a mutual fire insurance company, imposing assessments upon policy holders giving premium notes, whether parties to the proceeding or not, does not bar any policy holder from questioning his liability for an assessment or from setting up any other defense; hence, no assessments can be levied against holders of standard form policies containing no written or printed regulations imposing no assessment requirements, especially since such company had never complied with R. S. 3634 (Gen. Code 9524) et seq. Swing v. Bose,, 75 Ohio St. 355, distinguished.

      2. Statute of Limitations Running against Mutual Fire Insurance Assessment not Barred by Approval of Second Assessment.
    The six years’ statute of limitations runs against an “assessment levied on a policy holder of a mutual fire insurance company, and the running of the statute is not barred by the approval by the Supreme Court of a second assessment against the same party, when it covers the same liability as the first assessment with probable costs of collection added.
    [Syllabus approved by the court.]
    Error to common pleas court.

      P. A. Reece, for plaintiff in error.

      Stephens, Lincoln & Stephens, for defendant in error. '
   SMITH, J.

From an examination of the evidence in the above ease, together with the facts admitted by the pleadings, we are of the opinion that the judgment of the court below should be affirmed. The decree entered^ by the Supreme Court in the suit for ouster of the Union Mutual Fire Insurance Company of Cincinnati (Swing v. Rose, 75 Ohio St. 355 [79 N. E. Rep. 757]) would not exclude any stockholder or member from questioning his liability for an assessment or as to any other defense he might have. Swing v. Humbird, 94 Minn. 1 [101 N. W. Rep. 938].

It clearly appears that the defendants have no assessment notes; that their policies were of the standard form; that no special regulations were written or printed upon or attached in any way to said policies, and that when the policies were issued to them they never agreed to accept any assessment insurance. Besides, the company never reorganized under the statutes of .Ohio relating to mutual fire insurance companies, as amended by act approved April 14, 1888, to take effect July 1, 1888. We think, therefore, that the.plaintiff is not entitled to recover as against the defendants.

Second. In addition, we are further of the opinion, that if the plaintiff in error has a claim against defendants in error that this claim is now barred by the statute of limitations. The defendants held a short term policy and cash was paid therefor. The trustee’s first report was made in 1891, and the assessment ordered the same year. In 1896 he filed a supplemental report setting out the liability of C. Crane & Company, and was ordered to levy an assessment thereon. In 1897 he again filed a report showing that he had assessed Crane & Company on their two policies for $558.87, and this assessment was approved. Nothing, however, was done under this assessment as far as C. Crane & Company were concerned. On> June 11, 1901, another assessment was approved by the Supreme Court against the policy holders, including C. Crane & Company, and from which it is evident that it is an assessment including probable costs of collection for the same liability assessed and approved in 1897. This being so, it would seem that the fiction on this last assessment is barred by reason of the lapse of six years from and after the making and approval of the prior assessment in 1897. The last assessment was not on account of a further liability arising out of the fact that the prior assessment was not sufficient in amount to cover the liabilities to which the defendants in error were bound to contribute, but rather it seems that the prior assessment was a claim against Crane & Company of their entire amount of liability. It was the duty, therefore, of the trustee to have at once asserted it, as the subsequent assessment could not revive the former one and stop the running of the statute. Swing v. Cultivator Co. 29 O. C. C. 365 (9 N. S. 45).

Judgment affirmed.

Giffen and Swing, JJ., concur.


text:
    APPEAL.
    [Hamilton (1st) Circuit Court,
    August 6, 1910.]
    Giffen, Smith, and Swing, JJ.
    International Leather Co. v. Patton Co. et al.
    No Statutory Authority for Dividing a Decree in Order to Appeal From a Part Only.
    Neither Gen. Code 12224 nor 12231 is authority for splitting up a cause, in order that an appeal may be taken from that part of the judgment which is unfavorable and leave standing the part which is favorable.
    Appeal from common pleas court.
   GIFFEN, P. J.

The court of common pleas confirmed the report of the referee in all respects, except the finding and conclusion of law that the stockholders of the Patton Company could be held for the statutory liability, and upon that issue dismissed such defendants with their costs. From this latter judgment the First National Bank of Wellson gave notice of and did take an appeal.

Its interest in the action was not separate and distinct from that of the stockholders. It sought to recover the amount of its claims from the stockholders to the extent their stock was unpaid as well as under the statutory liability, while they resisted payment from either source. The decree, although severed in the journal entry, was one finding and judgment in favor of the bank and against the stockholders, although one fund only could be resorted to for satisfaction. We are of the opinion that neither Gen. Code 12224 nor 12231 authorizes a party to split up his cause, so as to appeal from that part of the judgment which is unfavorable, and leave standing that part which is favorable. Branch v. Dick, 14 Ohio St. 551, 557; Wright v. Telegraph Co, 2 Circ. Dec. 375 (4 R. 375).

The appeal will therefore be dismissed.

Smith and Swing, JJ., concur.


text:
    MUNICIPAL CORPORATIONS — NEGLIGENCE.
    [Hamilton (1st) Circuit Court,
    June, 1910.]
    Gotten, Smith and Swing, JJ.
    Mary Agnes Scrogin v. Cincinnati (City).
    Notice to Anticipate Injury from Loose Board in Sidewalk not Effected by Notice of Sliding of Hillside.
    That portions of a plank sidewalk had been in bad condition, due to the sliding of an adjacent hillside of which the municipality-had notice, does not as matter of law, amount to notice of thq defect (a loose board) causing injury to a pedestrian.
    Error to common pleas court.

      Charles B. Wilby and Mitchell Wilby, for plaintiff in error.

      Walter M. Schoenle, for defendant in error.
   GIFFEN, P. J.

The plaintiff avers in her petition “that owing to the unstable and varying surface upon which said stringers are laid, caused by the constant sliding and washing of said hillside, the said plank walk has often been in bad condition and out of repair, owing particularly to the loosening of the planks from the stringers, the nails holding the cross pieces to the stringers being pulled out or broken off when the cross planks are trodden upon at either end, this resulting from the unevenness of the ground upon which the stringers rest”; that prior to March 9, 1907, the defendant had due notice of the bad condition of said sidewalk and failed to repair; that the plaintiff on that day trod upon one of the cross planks which was loose and turned, causing the injury complained of.

There is no averment that the particular plank became loose as a result of the sliding and washing of the hillside. It is just as consistent with the allegations of the petition to attribute the defect to the act of a third party of which the city had no notice.

The evidence also shows that the bad condition existing prior to March 9, 1907, was repaired in December, 1906; that the sliding of the hillside was not constant, that the ground' upon which the stringers rested was level, and that the loosening of the cross-planks was not general. How then can it be said that the tendency of the hillside to slide and wash, and the general condition of the walk prior to March 9, 1907, were as matter of law notice to the defendant of the particular defect existing on that day and causing the injury to plaintiff?

It would be just as logical to hold that because the tendency of a plank walk is, from its very nature to become out of repair, the city by suffering it to exist is presumed to have notice of each defect as it arises. The prior condition of the walk was evidence from which the jury might infer constructive notice of the condition on March 9, and whether there was such notice was properly left to the jury. Shelby v. Clagett, 46 Ohio St. 549 [22 N. E. Rep. 407; 5 L. R. A. 606].

The charge upon this subject might and perhaps ought to have been more concrete, although we think, from the whole record, the jury were not misled.

The petition was framed apparently upon the theory that the city was bound at all hazards to keep its sidewalk free from nuisance, but it was required by law (Gen. Code 3714) to exercise only ordinary care. There was no error in the exclusion of testimony, nor do we find any error requiring a reversal of the judgment and it will therefore be affirmed.

Smith and Swing, JJ., concur.


text:
    CREDITORS’ BILL — PLEADING.
    [Hamilton (1st) Circuit Court,
    February, 1900.]
    Giffen, Smith and Swing, JJ.
    Davis Carriage Co. v. Martin Weber et al.
    In Creditor’s Bui to Sell Certain Property Creditor Brought in haying Interest therein cannot Assert Another and Different Claim against Defendant.
    Where a plaintiff, in an action in the nature of a creditor’s bill seeking to have property sold and proceeds applied to payment of his debt, brings in another party claiming to have some interest in the property in question, the latter cannot by answer and cross petition assert against debtor, whose property it is sought to subject to sale, a claim for money judgment, but is confined to the assertion of a claim against the particular property in question; hence, the court improperly made a finding as to the amount due from one of the defendants to the other, notwithstanding the defendant against whom the finding was made was in default for answer.
    Error to common pleas court.

      Edwards Ritchie, for plaintiff in. error.

      Paxton, Warrington & Seasongood, for Third National Bank.
   SMITH, J.

The plaintiff in error seeks the reversal of a judgment rendered by the court of common pleas against said company in favor of Martin Weber on a cross petition filed by Weber in an action in the nature of a creditors’ bill brought by the Third National Bank of this city against said Davis Carriage Co., G-. H. Burrows, Martin Weber and the Dash & Carriage Goods Co.

The petition of the bank in substance avers, that on August I, 1895, it recovered a judgment in the superior court of this city against said Davis Carriage Co. for $61,107.32 and for costs, which judgment is wholly unpaid and unsatisfied, and bears interest from August 1, 1895, at 6 per cent per annum; that said Davis Carriage Co. has not sufficient goods or chattels, lands or tenements subject to execution to satisfy the same; but that said company is seized of an equity of redemption and has an interest in certain real estate particularly described in the petition, which premises the petition alleges' had been sold by defendant, Weber, to defendant, Burrows, and in order to secure the balance of the purchase money, Weber executed a lease therefor to Burrows, his heirs,' executors, administrators and assigns,. for the term of two years, the purchase money to be paid in stated installments until the whole amount of the purchase price agreed upon was fully paid, and that upon the payment of the last of said installments, the said Martin Weber covenanted and agreed to convey said premises in fee simply to the said Grant H. Burrows, his heirs or assigns, and that after-wards, to wit, on March 24, 1890, the said Burrows by deed duly executed, conveyed said premises, subject to the payment, of the purchase price aforesaid, to the said Davis Carriage Co., and said company entered into the possession of said premises, at that time and have ever since so remained. Plaintiff further averred, that while said instrument was in the form of a lease with the privilege of purchase, it was in fact intended to be and was a mortgage executed in the form stated above, for the purpose of securing to said Weber the payment of the balance of the purchase price of said premises, and that a large amount is still due thereon; that on August 31, 1.895, plaintiff caused an execution to issue on its said judgment, and for want of goods and chattels whereon to levy it was levied on said leasehold, which levy still subsists. The petition therefore calls upon Weber to set up his lien against said property, and asks that the same be sold to pay his claim, and for full relief.

Thereupon the defendant, Weber, on September 4, 1895, filed his answer and cross petition averring in substance, that on March 24, 1890, the Davis Carriage Co. purchased the premises in the petition described and assumed the payment of the said notes in the petition described, and has paid all of the same except the last twelve. That all of the interest except $3,445.35 has been paid to January 1, 1895, .and that $4,000 was paid April 14, 1894, on the principal, and that the balance due this cross-petitioner from said Davis Carriage Co. on the notes in the petition described is $74,000, with 5 per cent interest thereon payable semiannually from January 1, 1895, and $3,445.35, with interest from January 1, 1895.

Wherefore, he prayed judgment against the said Davis Carriage Co. for $74,000, with interest at 5 per cent payable semiannually from January 1, 1895, and for $3,445.35, with interest from January 1, 1895, and that the premises be sold and the proceeds applied to the payment of said judgment. He also made Edwards Ritchie, assignee of the Davis Carriage Co., a defendant, and caused a summons thereon to be issued against them and the same was .returned as served October C 1895.

On December 27, 1895, the court of common pleas entered a decree in substance, so far as it is necessary to state the same, that the “cause came on to be heard on the petition of the plaintiff and the cross petition of Weber, the defendant, and that the defendants had been duly served with process under the petition and cross petition, and were all in default except Weber; and thereby that the allegations of the petition and cross petition are confessed by the defendants to be true; that the plaintiff recovered its judgment against the Davis Carriage Co. in the superior court and levied its execution as alleged; that the real estate described in the petition was sold by Weber to Burrows, and that in order to secure the balance of the purchase money, Weber executed a lease to Burrows as alleged in the petition and that Burrows conveyed the same to the Davis Carriage Co. subject to the payinent of the purchase price, and that said company took possession of the premises, and still retain them; that though in form a lease it was intended to be and was in fact a mortgage to secure the balance of the purchase price of the premises; and then finds that there is due to Weber from the Davis Carriage Co. thereon $80,149.47,-with interest from October 7, 1895, and ordered the property to be sold by the receiver appointed.”

On the pleadings in the ease (for it appears from the judgment entry that no evidence was heard by the court), was it error for the court of common pleas to render as was done, a personal judgment in favor of Weber, against the Davis Carriage Co. for $80,149.47 or for any other sum; or in this case under the circumstances to find that any particular sum was due from the Davis Carriage Co. to Weber ?

In the first place the question arises whether in an action by a plaintiff in the nature of a creditors’ bill, seeking to have real or personal property which for some .cause can not be properly sold on execution at law,' applied by proceedings in equity to the payment of his debt, brings in another party who had or claims to have some interest in the property in question, that he may set up his claim thereto, such person may by his answer and cross petition assert as against his eodefendant, whose property is thus sought to be sold, a claim for a money judgment, or is he confined to the assertion of a. claim against the particular property in question?

We think that the last supposition is the proper one under our code of civil procedure.

Our statute, R. S. 5071 (Gen. Code 11319), gives to a defendant the right to set up in his answer as many grounds of defense, counterclaim and set-off as he may have, and permits him to claim relief therein “touching the matters in question in the petition against the plaintiff or against other defendants in the same action.” Thus in this ease Weber might in his .answer and cross petition set up not only a counterclaim or set-off against the plaintiff which he did not do, but facts which would entitle him as against both the plaintiff and the defendants, the carriage company and others, to an adjudication as to the claim held by him against the property sought by the plaintiff to be sold, the amount and the priority thereof, and for its. sale for the payment of his claim. But we know of no provision of the.law which would authorize him in such an action to assert another and different claim, in no way “touching the matters in question in the petition,” against either the plaintiff or a codefendant as we think would be the case for a personal judgment in a ease of this kind. So far as I am advised, since the decision of the ease of Brown v. Kuhn, 40 Ohio St. 468, the practice as to this has been almost uniform. The question was not directly decided in that case, though it was expressly stated in the opinion of the court, that under pur code there is no provision for the issuance of a summons on a cross petition against a defendant who is already in court. That it is only needful or proper to do so, when new parties are made by, the cross petition; and that as a cross petition under our statute can only ask relief touching the matters in question in the petition, there is no necessity for service of proofs on parties already in court. Being there it is their duty to examine the files and see what defenses or claims are set up by the parties to the cause, with relation to the matters in controversy.

We think clearly then that the rendition of a • personal judgment in favor of Weber against the carriage company was erroneous. On the allegations of the pleadings, which by failure to answer them the Davis Carriage Co. confessed to be true, was the court authorized to find as it has done, that there was due to the defendant, Weber, from the carriage company, this sum of money. There is no allegation in the petition of the plaintiff that tends to show that the carriage, company ever became bound for this debt to Weber. It is said that Burrows conveyed the property to the carriage company subject to the Weber debt. But this would not make the carriage company liable for it, unless on a good consideration it assumed and promised to pay it. Óf course the property itself would be bound, but the company would' not without such assumption. It is probable that if in the deed from Burrows to the company this debt on the property had been mentioned, and the statement made therein that it was assumed by the company as a part of the consideration for the property and the company accepted the deed, this would make it a valid assumption of the debt of the carriage company. But nothing as to this is alleged in the petition, and so far as the allegations of the cross petition are concerned, they are so indefinite and uncertain as not-to disclose the real claim of the defendant, Weber, and would lead one to the conclusion that the answer was filed without knowledge as to the allegations of the petition. It does aver that the defendant, the Davis Carriage Co., “did purchase the premises in the petition described, and assumed the payment of said notes in petition described, and has paid all except the last twelve.” While the fact is that no mention of any notes, is made in the original petition as having been given by Burrows to the defendant, Weber, or anything more than that the-premises in question had been sold by Weber to Burrows, and that in order to secure the balance of the purchase ifioney, Weber executed a lease thereof to Burrows for ten years, the-purchase money to be paid in stated installments until the-whole amount of the purchase price agreed upon was ■ fully paid, when on full payment the property was to be conveyed to Burrows, his heirs or assigns. No amount of purchase money was named, or the amount or number of the installments; nor does the cross petition set up any facts as to those points, or how, or when, or in what manner the Davis Carriage Co. assumed the debt of Burrows to Weber.

We think that on such allegations the defendant, Weber,, was not entitled to have the court of common pleas find that, there was due to him from the Davis Carriage Co. the amount, which the court found to be due to him, and that both the finding of this amount and the rendition of the judgment therefor,, should be reversed and held for naught, and the case remanded to the court of common pleas for a new trial as to the amount due from the carriage company to Weber, if 'anything, and as. to the amount of the lien held by Weber against the property in the petition described.

As the plaintiff in error did not seek the reversal of the finding in favor of the original plaintiff, the bank, of course-the finding of the common pleas court as to that was not brought into this court and stands unaffected.

Giffen and Swing, JJL, concur.


text:
    BILLS AND NOTES — CORPORATIONS.
    [Hamilton (1st) Circuit Court,
    August 6, 1910.]
    Giffen, Smith and Swing, JJ.
    First National Bank of Wellston v. Patton Co. et al.
    1. Discharge of Instrument Distinguished from Discharge of Indebtedness.
    Gen. Code 8224 providing that a negotiable instrument is discharged “by its intentional cancellation by the holder,” is limited in its effect to the express provision that the discharge is of “the instrument,” and not of the debt.
    2. Opinion of Witness that Execution of New Note was Intended Effect Discharge of Note Cancelled Evidencing Debt.
    Whether an original debtor was released by the cancellation oil" a note evidencing original indebtedness and execution of a new note to take its place, intention of the parties to treat the original debtor as released is not shown by testimony which amounts', to a mere statement of the opinion of the witness as to the effect, of the transaction.
    3. Offer to Return Stock, Issued as Stock Dividend when Companv Had no Dividend Assets, Comes too Late after Insolvency.
    Where additional stock is issued as a stock dividend at a time when the corporation possessed no assets from which a dividend could be declared, an offer of the stockholders to return the stock to the company comes too late after the insolvency of the company has been established and a proceeding has been begum to enforce stockholders’ liability.
    Error to common pleas court.

      Grosvenor, Jones <& Worstel and Cobb, Howard & Bailscf^ for plaintiff in error.

      Cobb, Howard <& Bailey, for the International Leather Company.

      W. D. James, for T. J. Morgan.

      Prescott Smith, for J. H. Sellers, W. S. Patton, A. S. Patton and H. H. Patton,
   GIFFEN, P. J.

Although the several causes of action stated in the cross petition of the First National Bank of Wellston, Ohio, were based upon promissory notes executed after the amendment of the constitution of Ohio in relation to the liability of stockholders of 'a corporation, they are by amended cross petition .and amendment thereto based upon the original indebtedness -of which the notes are evidence. The chief question presented is whether the notes given for the original indebtedness, or the renewals thereof, constituted a payment of the original debt or debts, so as to remit the bank to an action upon the notes last ^executed.

The notes were usually made payable sixty days after date, :and as each became due a hew note was given — the discount paid- — the old note marked “paid” and surrendered to the Patton Company.

The cashier of the bank, who is also a stockholder of the defendant, the Patton Company, testified that the notes were understood to be and accepted by the bank as payment of the debts, while other officers of the bank testify that they were mere renewals of old debts; but this kind of testimony aids us little, as the circumstances of each transaction must, in the absence of express agreement, determine its nature. It appears that the notes were marked “paid” when surrendered, in order do prevent their subsequent use, and there was nothing else said or done by the parties at the maturity of any note from which the inference could be drawn that the new note given was intended to be a payment of the original debts, but on the contrary was only a change of the evidence of it. If the time of payment of each original note had been extended at intervals of sixty days and the discount paid, the transaction would differ in form, but not in substance. Horsey v. Heath, 5 Ohio 353, 357; Bank of Cadiz v. Slemmons, 34 Ohio St. 142 [32 Am. Rep. 364].

Counsel rely also upon a conversation had between Mr. Sellers, the cashier of .the bank, Mr. Morgan, a large depositor, and Mr. H. JEL Patton, all being stockholders of the defendant company, and testified to by H. H. Patton, as follows:

“Q. Now state the conversation, as fully as you can remember, when Mr. Morgan and Mr. Sellers were both present. A. Mr. Morgan stated that the amendment doing away with the double liability had been adopted and' that he wanted the debts of not only the Patton Company but all other companies in which he was interested paid in full and taken up as they became due, without regard to whom they were owed. After some discussion he remarked, that if it should happen at any time a note or debts became due when we did not have the money, that he had money which he would furnish us to complete the payment.
“Q. Well,now, what did Mr. Sellers say to that? A. I don’t remember what he said, any more than he agreed with Mr. Morgan that the indebtedness should be paid.”

This agreement, if any, contemplated the payment in money of the indebtedness as it became due, and if the Patton Company or Mr. Morgan wished to do so, it was unnecessary to have the consent of the cashier. Sellers testifies concerning the same conversation as follows:

“Q. Well, now state what' that conversation or agreement was? A. Mr. Morgan came to me with Mr. Patton, and he seemed to be worked up some way over the amount of the indebtedness of the Patton Company, all told, and said he was not going to let it stand afiy longer, that I knew he Avas able to liquidate that indebtedness and he would do it, if there was. going to be any personal liability in this matter.
“Q. Well, did you say anything to him? A. I told him there would not be any personal liability in the matter. I told. 111171 that the transaction in the bank was complete; when a note was paid it was considered a complete liquidation of the old note, and the bank looked entirely to the new note.”

As we understand this testimony it is simply an opinion of the witness of the effect of a past transaction, and in many respects is sound; but it is not evidence of a contract to release Mr. Morgan from liability on the original indebtedness, nor is it evidence of the intention of the parties at the time the notes were discounted. It is further claimed that by force of Gen. Code 8224, which provides that “a negotiable instrument is discharged by the intentional cancellation thereof by the holder,” the debt was paid when the note was intentionally marked ““paid” by the bank. That would be true in the absence of any ■other circumstance; but when a new note is given at the time the old one is canceled and the cancellation is made for the purpose of avoiding the subsequent use of the old note, the ■effect of >the statute is limited to the express provision a “discharge of the instrument” and not of the debt.

The action against the stockholders was not barred. Bronson v. Schneider, 49 Ohio St. 438 [33 N. E. Rep. 233].

. It is claimed by the stockholders of the Patton Company that they should not be held liable on the additional stock of the company issued to them on June 1, 1903, as a stock dividend, upon the ground that the value of the stock thus issued liad been earned by the company, and if the court should find otherwise, then it was a fraud upon them and they tender back the stock. The evidence shows no assets from which the dividend could be declared, and the offer to now return the stock is too late. Clarke v. Thomas, 34 Ohio St. 46; Chubb v. Upton, 95 U. S. 665 [24 L. Ed. 523].

It follows therefore that the court erred in setting aside the findings of fact and conclusions of law of the referee relating to the statutory liability of the stockholders, and the judgment in their favor is reversed and a decree may be entered in accordance with the findings of the referee, and in so far as the judgment confirms the report of the referee it is .affirmed.

Smith, J., concurs.

Swing, J., dissents.


author: OIFFEN, P. J.

text:
    CONTRACTS.
    [Hamilton (1st) Circuit Court,
    January 22, 1910.]
    Giffen, Smith and Swing, JJ.
    Niagara Fire Extinguisher Co. v. Dayton Folding Box Co.
    Performance of Contract without Authority.
    Plaintiff desiring to perform a contract at defendant’s expense, having telegraphed therefor and received message to do the work, and subsequently having written a letter emphasizing the desire for authority to perform to which defendant by letter exposes an error in transmitting plaintiff’s telegram charging expense to plaintiff, has no contract without further authority upon which it can do the work and charge same to defendant.
    Error to common pleas court.

      Reeve, Burch, Peters & Oppenheimer, for plaintiff in error.

      G. B. Matthews, for defendant in error.
   OIFFEN, P. J.

The original cause of action was labor and material furnished by the plaintiff, the Niagara Fire Extinguisher Company, to the defendant, the Dayton Folding Box Company, at its request, in repairing a sprinkler system theretofore sold by the plaintiff to the defendant.

The evidence shows that the plaintiff delivered to the Postal Telegraph-Cable Company for transmission to the defendant the following telegram:

“March 2d, 1905.
“Dayton Folding Box Co., Dayton, Ohio.'
*“Our man reports system frozen up through no fault of ours. Do you want us to put in order at your expense?
“Niagara Fire Extinguisher .Co.”

The telegram as received by the defendant read “our expense” instead of “your expense.” jTo this telegram the defendant replied the following telegram:

“Dayton, Ohio, Mar. 2d, ’05.
“Niagara Fire Extinguisher Co., Akron, O.
“Telegram received. Have system put in order immediately. “Dayton Folding Box Co.”

On March 9, 1905, the plaintiff sent the following letter to the defendant:

“Dayton Folding Box Co., Dayton, Ohio.
“Gentlemen: ¥e have been expecting to receive an.order for the work which we are to do at your allagan plant. We have your telegram advising us to proceed with the work, but as considerable labor and material will be required, we would like to have an order from you authorizing us to furnish such labor and material at your expense. Please send us the order' by return mail, so that the work will not be delayed.
“Very truly yours,
“Niagara Fire Extinguisher Co.”

The defendant replied by letter as follows:

“Dayton, Ohio, March 10, 1905.-
“Niagara Fire Extinguisher Co., Akron, O.
“Gentlemen: We are in receipt of yours of the 9th, and are very much surprised at contents of same. On March 2d you wired us as follows: ‘Our man reports system frozen up through no fault of ours. Do you want us to put in order at our expense?’ To this telegram we replied as follows: ‘Telegram'received. Have system put in order 'immediately.’ ”

Notwithstanding this letter which shows the error in transmitting the telegram of March 2, and notwithstanding the letter of the plaintiff of March 9, 1905, asking for further authority to do the work and furnish the materials, it proceeded to and did make the repairs. This evidence shows upon its face that no contract such as it averred was ever entered into.

Judgment affirmed.

Smith and Swing, JJ., concur.


text:
    BILLS AND NOTES — GUARANTY.
    [Hamilton (1st) Circuit Court,
    August 6, 1910.]
    Giffen, Smith and Swing, JJ.
    Third Nat. Bank of Cincinnati, Ohio, v. Robert Laidlaw.
    Guarantor of Note Secured by Warehouse Receipts , May Rely on Recital thereof as to the Property Represented.
    The guarantor of a promissory note secured by warehouse receipts pledged as collateral may rely on the quantity and quality of the property set out in the receipts, and is not limited to the actual amount found to be on hand when the sale is made.
    Error to common pleas court.

      Maxwell & Ramsey, for plaintiff.

      Edward Colston and A. C. Cassatt, for defendant.
   SMITH, J.

Plaintiff in error seeks to recover from defendant in error upon the following guaranty:

“Cincinnati, Ohio, January 3, 1905.
“For value received we hereby jointly and severally guarantee to the Third National Bank of Cincinnati, Ohio, in respect of any loans heretofore or hereafter made by it to the American Mahogany Company, or the International Mahogany Company, for which warehouse receipts calling for Cuban mahogany lumber or logs are taken as collateral security, that the net proceeds after deducting all expenses of the sale of said lumber or logs, should said company default in its payment and the bank sell its collateral, shall not be less than the amount of money loaned by the bank plus any accrued interest, and we agree to make good to said bank any loss it may suffer should the net proceeds of the lumber or logs be less than the claim ■of the bank. This guaranty applies to a loan represented by note dated January 5, 1905, amounting to $20,345.86 and to renewal of the same or any part thereof.
“L. M. Moragtjes,
“Robert Laidlaw.”

At the time the note referred to in the above guaranty was executed and delivered to the bank, there was pledged as collateral security for the payment of the same, warehouse receipts of the Export Storage Company, Nos. 529, 378, 420, 541, 401, 472, 593, calling for 377,520 feet Cuban mahogany lumber, log run.

While the date of the guaranty is January 3, 1905, and the actual date of the note is January 5, 1905, yet, from the evidence it appears that the note and guaranty were executed at the same time and no question is made as to the difference in the dates of the instruments.

The court below at the close of plaintiff’s evidence instructed a verdict for the defendant, and this action is brought to reverse the judgment entered upon that verdict. The issue asked by the pleadings is as to the construction of the guaranty. To determine the meaning of the guaranty it is evident that it and the note must be taken together; that both refer to the warehouse receipts pledged as collateral for the note. By the warehouse receipts title to the property described therein vested in the bank. When default was made upon the note, and the lumber pledged was sold, it was much less than 377,520 feet, and it would seem that the guarantor would have the right to rely upon the statement as to the quantity and quality of lumber set out by the warehouse receipts, rather than upon the quantity that actually was on hand at the time of the sale. He had the right to suppose from his contract that he had an ample security of. 377,520 feet of Cuban mahogany lumber, log run, between him and his ultimate liability. Farmers & Mechanics Nat. Bank v. Lang, 87 N. Y. 209.

There is no fraud or collusion charged against the defendant in error, nor is it alleged that he knew that the property pledged was not as set forth in the receipts. It seems to us there is no ambiguity in the contract-sued upon, and as disclosed by the record we think the trial court properly construed the contract.

We have carefully considered the authorities cited by counsel on both sides and are of the opinion that under the construction, of the guaranty given by the trial court,- plaintiff in error is not entitled to recover from defendant in error, and the judgment of the court below will be affirmed.

Giffen, P. J., concur.

Swing, J., dissents.


text:
    STREET RAILWAYS.
    [Hamilton (1st) Circuit Court,
    November 27, 1909.]
    Giffen, Smith and Swing, JJ.
    Joseph Vetter, Admr. v. Cincinnati Traction Co.
    1. Necessity Demanding Dropping of Street Car Fender Presents Instance of Last Chance and Must be Pleaded.
    An occasion necessitating the dropping 'of a street car fender presents an instance of the doctrine of last chance which to be available must be pleaded.
    2. Presumption that Street Car Will be Operated at Reasonable Speed and Gong -Sounded at Street Intersection.
    One approaching a street railway track at a street intersection is justified in assuming that cars will be operated at reasonable speed and the gong sounded; hence, where a boy of four yéars is struck by a car approaching the crossing at excessive speed, not under the control of the motorman and no gong sounded, the negligence in operation constitutes the proximate cause of the accident.
    Error to common pleas court.

      Gogan & Williams, for plaintiff in error.

      Joseph Wilby, for defendant in error.
    Plaintiff’s intestate, a child four years of age, was killed by being struck by a traction car at the Warsaw and Windfield .avenues crossing. The jury found in favor of the traction company.
   GIFFEN, P. J.

Negligence is charged in the petition as follows:

‘ ‘ Said defendant by its agents, officers and employes, did so -carelessly, negligently and unlawfully operate one of its said cars in this, to-wit, that said car was being operated at a very high and unlawful rate' of speed, that the gong or warning bell was not sounded and that the • fender on said car was' not dropped.”

In the ordinary operation of a street car there is no duty on the part of the motorman to drop the fender. That duty arises only when he sees a person in danger of being run over by the car, and presents an instance of the doctrine of “last, chance, ’ ’ which to be available must be pleaded.

The charge of the court upon this subject was, therefore, not prejudicial.

The charge that “preponderance of the evidence means all the evidence” is of course erroneous, but it is manifest from other parts of the charge that the court did not intend to so instruct the jury, nor were they thereby misled. The charge of the court, at page 207 of the bill of exceptions, concerning the liability of the defendant and defining negligence, is misleading and prejudicial.

The concrete charge required to inform the jury what, would constitute negligence of the defendant, under the pleadings, is expressed in the first proposition of the syllabus of the case of Cincinnati St. Ry. v. Snell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276], to wit: The failure to so regulate the speed of the car and give such warning (sounding the gong) as that the footman, using ordinary care himself, may, in the absence of unavoidable accident, cross in safety. It is probably true that the accident was unavoidable after the motorman first saw the deceased boy; but if the car approached the crossing at an excessive rate of speed, not being under control, and without warning, such negligence was the proximate cause of the accident.

The evidence tends to prove such negligence and the boy was not bound to anticipate it. He is entitled to assume that the car if any (for he evidently did not see it until he passed behind the coach in the funeral procession), was running at a lawful rate of speed, or the gong would be sounded. The motorman admits that he did not see the brother of the deceased, who> crossed in front of the car a few moments before the' accident, although the conductor standing on the rear platform did see him. This admission shows that the motorman was not keeping a proper lookout, and if he had, that he would have been reminded of the necessity of beeping the car under control to avoid injuring any other boy or person who might attempt to use the crossing." The testimony tends to prove that the accident would not have occurred, if the car had been under control and running at a reasonable rate of speed.

The definition of ordinary care as applied to the deceased infant given by the court, although erroneous, Cleveland Rolling Mill v. Corrigan, 46 Ohio St. 283 [20 N. E. Rep. 466; 3 L. R. A. 385; 15 Am. St. Rep. 596], was most favorable to the plaintiff and therefore affords no ground of complaint by him. The special charge requested by the plaintiff was properly refused.

Other errors are assigned but we find none that is prejudicial.

The judgment will be reversed for error in the general charge of the court and the cause remanded for a new trial.

Smith and Swing, JJ., concur.