text:
    REQUIREMENTS FOR. STEAM ENGINEERS’ LICENSES.
    Circuit Court of Cuyahoga County.
    E. R. Theobald v. The State of Ohio; W. S. Judd v. The State of Ohio, and Frank Stupens v. The State of Ohio.
    Decided, January Term, 1908.

      Licenses as Applied to Occupations — Amended Law Requiring Examinations of Steam Engineers of Certain Classes not Unconstitutional —Examiners not Autocrats with Unlimited Discretion — Requirements as to Qualifications Sufficiently Definite — Quite as Much so as Those Applying to the Professions of Law, Medicine, or Teaching — Provisions as to Existing Licenses not Objectionable — Sections 4364-891 and 4S6Ji-98q.

    The present statutes relating to examination and licensing of steam engineers of certain classes is not in contravention of the state constitution, in that the chief examiner is clothed with legislative powers with reference to the qualifications that shall be required of those to whom licenses may be issued; or because of exemption of engineers holding licenses from examination during the remainder of the year the license had to run; or because in some quarters the law, contrary to its express provisions, has been construed to permit engineers holding licenses to obtain a renewal of their licenses without examination.
    Marvin, J.; Winch, J., and Henry, J., concur.
    Error to the court of common pleas.
   These cases all involve the same question and a decision of one disposes of all. Theobald was prosecuted before a justice of the peace, and each of the others in the police court of the city of Cleveland;- each was charged with having unlawfully operated and caused to be operated a stationary steam boiler and engine, in violation of the statutes of Ohio; each was found guilty and the judgment in each case was affirmed on error in the court of common pleas. Each did operate an engine and boiler in violation of the provisions of Section 4364-895, Revised Statutes, which reads:

“That it shall be unlawful for any person to operate a stationary steam boiler or engine in the state of Ohio, of more than thirty (30) horse-power, except boilers and engines under the jurisdiction of the United States, and locomotive boilers and engines, without having been duly licensed so to do as herein provided,” etc.

It is urged that the statute under which these convictions were had is in contravention of the provisions of the Constitution. Section 4364-98g, provides:

“Any person who desires to act as a steam engineer shall make application to the district examiner of steam engines for a license so to act, upon a blank furnished by the examiner, and shall successfully pass an- examination upon the following subjects: the construction and operation of steam boilers, steam engines and steam pumps, and also hydraulics, under such rules and regulations as may be adopted by the chief examiner, ivhieh rules and regulations, and standard of examination, shall be uniform throughout the state. If’ upon such examination, the applicant is found proficient in said subjects, a license shall be granted him to have charge- of and operate stationary steam boilers and engines of the horse power named in this act. Such license shall continue in force for one year from the date the same is issued, provided, however, the district examiner may, upon written charges, after notice and hearing, revoke the license of any person guilty of fraud in passing the examination, or who has become insane or who is addicted to the liquor or drug habit to such a degree as to render him unfit to discharge the duties of steam engineer.”

Prior to the enactment of the present statute, _ to-wit, on the 1st day of March, 1900, an act was passed by the General Assembly on this same subject. That act, like the present one, provided for examinations of those desiring to operate steam engines, and one of its provisions was (Section 6) :

“Any person who desires to act as a steam engineer, shall make application to any district examiner of steam engineers for a license so to act, upon a blank furnished by the examiner, and if, upon examination, the applicant is found trustworthy and competent, a license shall be granted him, to have charge of, or to operate any steam plant. Such license shall continue in force for one year, unless after proper hearing it is sooner revoked for intoxication or other sufficient cause, the said license to be renewed yearly.”

The act last spoken of was declared by the Supreme Court to be unconstitutional in the case of Harmon v. The State, 66 Ohio St. Rep., 249. In the opinion in that case it is pointed out that by the section last quoted the examiner is made the ex-clusive judge as to whether an applicant is trustworthy and competent. No standard is furnished by the General Assembly as to qualification, and no specifications as to wherein the applicant shall be trustworthy and competent, but all is left to the opinion, finding and caprice of the examiner. lie is an autocrat with unlimited discretion, without rules prescribing the qualifications of applicants for license, only so that he finds them trustworthy and competent.

The present act differs from the former in that it is provided by the present act that the Governor of the state with and by the advice and consent of the Senate, shall appoint one chief examiner of steam engineers, and said chief examiner, with the approval of the Governor, shall appoint eight district examiners.

The same provision is found in the old act in this regard, but in the present statute there is found what is not found in the old, that the rules and regulations under which examinations shall be held shall be uniform throughout the state, and that these rules and regulations shall be adopted by the chief examiner. Now it is said that practically the objections to the old statute exist as against the new.

The court said, in the ease referred to, that a district examiner could in fact make the law for his district, limited only by his will as to what shall constitute the standard of the qualification of engineers, and that this was granting legislative authority to this examiner.

Under the provisions of the present statute, as has already been shown, the rules and regulations for the examination are fixed by the chief examiner, and are to be uniform throughout the state, and that seems to us clearly to make him not a legislative but an administrative officer, with power only to execute the statutes enacted by the General Assembly.

It is said that no standard of qualifications is fixed, except that upon examination the applicant must be found proficient in the subjects upon which he is to be examined. In the former act no subjects for examination were mentioned. Here .the statute fixes just what subjects the applicant is to be examined in. How the Legislature could have more definitely fixed what the examiners shall do is not easy to understand. If a percentage of answers had been fixed or a percentage of qualifications had been fixed by the statute, it would still have been with the examiner to say what degree of qualification was indicated by any per cent, of marking. An inspection of the statutes in relation to the examination to be given to those desiring other employments' may not be found unprofitable.

Section 559, Revised Statutes, provides for the examination of those desiring to practice law in Ohio, and reads:

“When a person applies to said court (the Supreme Court) ■ for admission to the bar, he shall be examined by the court or two of the judges touching his fitness and qualifications, and if on such examination the court or judges are satisfied that he is of good moral character and has' a competent knowledge of the law and sufficient general learning, an oath of office shall be administered to him,” etc.

The Supreme Court is permitted to fix and has fixed rules for the educational requirements of those who may be admitted to the examination, but so far as we know it has never been said that this was granting legislative authority to the court.

It is provided in reference to physicians by Section 4403, Revised Statutes, that a board of examiners shall be appointed and that this board shall formulate rules to govern its action.

In Section 4403c it is provided in reference to physicians that:

"All examinations shall be conducted under the rules formulated by the board. Each applicant shall be examined in anatomy, physiology, pathology, chemistry, materia medica, and therapeutics, the principles and practice of medicine, surgery, obstetrics, and such other subjects as the board may require. The applicant shall be examined in the materia medica and therapeutics and the principles and practice of medicine, of the school of medicine in which he desires to practice, by the member or members of the board representing such school.

"If an 'applicant passes an examination satisfactory to the board, and has paid the fee as hereinafter provided, it shall issue its certificate to that effect,” etc. Notwithstanding these provisions it has nowhere been suggested, so far as we know that legislative authority was deligated to the board of examining-physicians.

The provisions of the law in reference to the examination of teachers for our public schools (Section 4070, Revised Statutes) are that the board of examiners shall make all needful rules and regulations for the proper discharge of' its duties and the conduct of its work, subject to statutory provisions and the approval of the state commissioner of common schools.

Section 4071a provides that the questions for all county teachers examinations throughout the state shall be prepared and printed under the direction of the state commissioner of common schools. We have never heard it suggested that this was delegating legislative powers to the commissioner of schools. And, under Section 4074, it is provided that the teachers in elementary schools shall be examined on the subjects of orthography, 'arithmetic, reading, writing, English grammar and composition, geography, history of the United States, including civil government, physiology, including narcotics, literature, and that the applicant possesses an adequate knowledge of the theory and practice of teaching. •

There is nothing suggested in any of these statutes to the several provisions of which attention has been called that undertakes to fix a standard in any other way than to say that the applicant must show sufficient knowledge upon the several subjects of examination.

Surely there is no good reason why one desiring to operate a steam engine should have a standard of qualification fixed more definitely than one who desires .to teach school, or practice medicine or law. The statute under consideration is not subject to the criticism in this regard that the statute considered in the case of Harmon v. State, supra, was subject to.

It is said however that Section 10 of the act how being considered, which is Section 4364-89u of the Revised Statutes, is clearly in contravention of the Constitution. That section reads in part:

“Provided that all persons holding license issued to them under the act of the General Assembly of the state of Ohio, passed March 1, 1900, shall not be required to submit to a further examination during the period covered by such license first issued. But such former license shall evidence the qualifications of such person to operate the kind of steam plant, and for the period as therein designated, unless such license is sooner revoked f.or cause.”

Attention is called to Section 7 of the act now under consideration, being Section 4364-89r, Revised Statutes, which reads:

“Any person to whom a license is issued under the provisions of this act shall upon application at the expiration of one year from the date thereof be entitled to a renewal thereof for one year, unless the district examiner of his district for the cause or causes set out in Section 6 of this act, upon notice and hearing, should réfiise such renewal. ’ ’

Now as to Section 10 (4364-89?t), it may be said, first, that even though this section were held to be unconstitutional, the persons provided for in this section are simply those who at the time the present statute went into effect were holding licenses issued under the former act, and since no such license could extend beyond one year from the time of its issuing, it can not be supposed that this small period of tjme for which some were permitted to operate engines after the present act became operative, was an inducing cause for the enactment of the provisions in respect to the examination of those who desired to become engineers. Further than that this act, extending the privilege to those who were already licensed under the former act for the short time they would be permitted to operate, is of too small consequence for the courts to say that it is in contravention of the Constitution.

In any event this has long ceased to be a practical question, for the present statute went into operation on the 1st of May, 1902, and all those permitted upder the provisions of Section 10 to operate engines have long since lost that privilege. It will be noticed by Section 7, hereinbefore quoted, that it is only those who have obtained a license under the present act, who are entitled to a renewal, without further examination. Those spoken of in Section 10 of the present act are not entitled to such renewal . It is those who have obtained a license under the present act who may have a renewal.

It is said in argument that the general construction which has been given to this statute by engineers and examiners is that those who were permitted by this Section 10 to continue their occupation until the expiration of the time for which their several licenses were issued, were entitled to have such licenses renewed Without examination. Whoever has given it this construction has done so in violation of a provision of law expressed in language as plain as any language can well make it, and it behooves all engineers to take notice now that they were not entitled to a renewal of their licenses granted under the former act, and it behooves the examiners to take notice that they are not -authorized to issue any such renewals. The language of the statute, is so plain that ‘ ‘ a wayfaring man though a fool need not err therein.”

Ford, Snyder & Tilden, for plaintiffs, in error.

Gage & Wilbur, for defendant in error.

The judgment of the court of common pleas in each of these several cases is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    INJURY FROM PROJECTING ARM FROM CAR.
    Circuit Court of Hamilton County.
    Cincinnati, Georgetown & Portsmouth Railway Co. v. Augustus Burkhardt et al.
    Decided, February 15, 1908.

      Negligence — Pleading—Amendment—Charge of Court — Speed and Construction of Car — Knowledge of Plaintiff as to Danger.

    1. In an action for injuries to the arm of plaintiff while it was projected from a window of the car in which he was a passenger, the averment that while he “was sitting in said car with his arm on the window sill, it was thrown out of the window by a sudden jerk or movement of the car,” states a good cause of action, when taken in connection with allegations as to the dangerous construction of parallel tracks and the proximity of the cars to each other.
    2. In the absence of allegations or evidence as to improper construction or rate of speed of the car, it is error to instruct the jury with reference to those matters.
    3. The proper test as to knowledge of danger under such circumstances is not that possessed by plaintiff, but that of persons of ordinary care and prudence when placed under like circumstances.
    Smith, J.; Swing, P. J., and Gieeen, J., concur.
   The first error urged by the plaintiff in error is that the verdict is against the weight of the evidence; but upon an examination of the record we can not so hold.

We do not think there was any error in the court in allowing the plaintiff to amend his petition by inserting the words therein, “while plaintiff was sitting in said car with his arm upon the window sill, it was thrown out of the window by a sudden jerk or movement of the car.” In other words, by this amendment the plaintiff states that his arm was not ‘‘ intentionally and needlessly projected out of the window of the car. ’ ’ The amended petition, therefore, alleges a good cause of action.

Frank F. Dinsmore, for plaintiff in error.

Murray Seasongood and Harry C. Busch, contra.

The negligence complained of is that “by reason of the dan'gerous construction of the tracks of the company” at the point where the accident occurred, “and the dangerous proximity of the cars to each other” at that point, the arm of the defendant in error was injured without any fault on his part, the same being projected “unintentionally and needlessly out of the window of the car.”

This was the issue, and the case was tried upon that theory. This being so, it was error for the court to charge the jury relative to the operation of the cars at an improper rate of speed, or as to the construction of the cars, as there was no evidence upon these points to show improper speed or faulty construction.

We think charge No. 1 is too broad and includes in it matters not set up in the petition or claimed by the evidence.

Charge No. 2 is erroneous in that the “knowledge of the .plaintiff” is not the test, but the knowledge possessed by a person of ordinary care and prudence under the same circumstances.

Charge No. 6 is opposed to the rule laid down in Railway Co. v. Hancock, 75 O. S., page 88. We see no objection to charges 4 and 5.

- For above reasons the judgment below is reversed.


author: Donahue, J.

text:
    POWER. TO REMOVE INFIRMARY SUPERINTENDENT.
    Circuit Court of Richland County.
    O. J. Zigler v. B. Frank Palmer.

    Decided, September Term, 1905.

      Office and Officer — County Infirmary Suprintendent an Agent only— Appointment of, a Matter of Contract — Removal of, may be Effected, When — Section 96§ as Amended.

    1. A superintendent of a county infirmary is not a public officer, but a mere agent of the infirmary directors, who are a body corporate to contract and be contracted with; and into any contract by an infirmary board for the employment of a superintendent there is written as one of its terms that he shall not be removed during the term of his employment, except for cause.
    2. Injunction is the proper remedy to prevent interference with a county infirmary superintendent in the performance of the duties of his position or the enjoyment thereof.
    Kerr & LaDow cited for the defendant:
    Reemelin v. Mosby, 47 Ohio St., 570; State v. Craig, 69 Ohio St., 236; State v. Wilson, 29 Ohio St., 347; State v. Brennan, 49 Ohio St., 33; 19 Am. & Eng. Enc. Law (1st Ed.), 382, 668, et seq.; United States v. Hartwell, 73 U. S. (6 Wall.), 385; State v. Jennings, 57 Ohio St., 415; State v. Halliday, 61 Ohio St., 171; Walker v. Dunham, 17 Inch, 483; Dean v. Healy, 66 Ga., 503; Opinion of the Justices, 3 Me., 481; State v. Putnam, 35 Iowa, 561; State v. Board of Pub. Works, 51 N. J. Law, 240; State v. Gardner, 43 Ala., 234; State v. McGonagle, 5 C. C. — N. S., 292; Bender v. Cushing, 14 Dec., 65; Franklin County v. Ranck, 9 C. C., 301; State v. Craig, 69 Ohio St., 236; Harding v. Eichinger, 57 Ohio St., 371; State v. Taylor, 12 Ohio St., 130.
    Taggart, J.; McCarty, J., concurs; Donahue, J., dissents in a separate opinion.
    This ease originated in the Court of Common Pleas of Richland County by the plaintiff, Zeigler, filing hi® petition and seeking an injunction against B. Frank Palmer, restraining him from interfering with his duties and labors as superintendent of the county infirmary, alleging that said B. Frank Palmer was in possession of and remaining in said infirmary building, and that he obstructed the plaintiff in his work and duty and still threatens to obstruct him in the discharge of his duties in the future. A temporary injunction was granted and the case was heard, and on May 8, a perpetual injunction was granted in the ease. The defendant, B. Frank Palmer, appeared .and by consent of parties the case was heard in this court on the records in the contempt proceedings.
    It is urged upon our attention that the defendant is and was the incumbent of the superintendency of the infirmary building of the infirmary of Richland county, Ohio, and under Section 962, Revised Statutes, no proceeding having been commenced against him, that he was entitled to remain and be in possession of the buildings and .exercise the duties and enjoy the emoluments of the office of superintendent of the .county infirmary; that notwithstanding the infirmary directors some time prior to April 1, had duly elected the plaintiff, O. J. Zeigler, to that position, and had notified the defendant that his term would expire on April 1, he pretended to remain .in said building and exercise said duties.
    It is now urged -in behalf of the defendant that he was au officer, and th*e action should have been one of quo warranto. It is further urged in his favor that as he was an .officer he could not be removed as such superintendent under the statutes unless1 charges were preferred and canse shown for such removal.
    An examination of the statutes of Ohio and the history of the legislation in respect to superintendency of infirmaries leads a majority of this court to the conclusion that he was not an officer, hut that he was simply an agent of the infirmary directors, who are a body corporate to contract and be contracted witb; that an .appointment, or designation of a superintendent is not efficacious .to accomplish anything either as creating an employment or designating .an office, but under the statutes the infirmary directors must agree with a proposed incumbent as to the terms of employment, and he must accept the proposal so made. Before the amendment to the statutes as suggested by counsel he was removable at pleasure, so that any contract that the infirmary directors in their corporate capacity might make with any proposed superintendent would have written in before this amendment that he was removable at the pleasure of the .infirmary directors. In the opinion of the majority of the court, the amendment simply changed the statute so that into any contract of employment that might 'thereafter be made for any definite term there would be written, as one of its terms, the law of the state, that he should not be • removed during said term of employment' without .cause, and the majority of the court are of the opinion that he having accepted employment, and by the terms of his employment the contract ceased and determined on April 1, and he had no longer any right to be and remain on said premises, or in any wise to interfere or obstruct the plaintiff who was then the incumbent and superintendent of the Richland county infirmary.
    The judgment of the count will be, that the defendant be perpetually .enjoined from interfering with the plaintiff in the enjoyment and duties of his office as superintendent, as prayed for.
    Exceptions will be noted in favor of the defendant; twenty days for finding of facts; motion for new trial will foe overruled; statutory time for bill of exceptions.
    The case of B. Frank Palmer v. O. J. Zeigler, No. 866, presents the same questions and by consent of counsel was heard on the records as above stated. A majority of the court find against the contention of the plaintiff for the reason above stated.. Iiis petition is dismissed at his costs; motion for new trial overruled and exceptions; twenty days for finding of fact, and statutory time for bill of exceptions.

       Affirmed by the Supreme Court, 76 Ohio St.,'210.

   Donahue, J.

By act of the Legislature passed April 12, 1876 (73 0. L., 235), it is provided that the board of directors (infirmary) shall appoint a superintendent .who shall reside in some apartment of the infirmary or other building contiguous thereto, and shall receive such compensation for his services as the' board shall fix; lie shall perform such duties as the board shall impose upon him and be governed in all respects by the rules and regulations of -the board, and may be removed by them at pleasure: This legislation to my mind does not look to the entering into of a contract by the infirmary directors and superintendent, but simply provides1 that they shall have the power to appoint him and remove him at pleasure.

On April 26, 1898 (93 O. L., 262; Section 962, Revised Statutes), this section was amended by the General Assembly of Ohio, and it now reads as follows:

“The directors shall appoint a superintendent, who shall reside in some apartment of the infirmary or other building contiguous thereto, and shall receive such compensation for his services -as they determine. He shall perform such duties as they may impose upon him, iu’d may be governed in all respects -by their rules and regulations, . -d he shall not be removed by them except for good and sufficient cause.”

The language of this statute precludes the idea of any fixed term. The board has the absolute power to fix compensation, rules and regulations. It has no power to remove except for good and sufficient cause. If if be permitted infirmary directors to enter into a contract with the superintendent for a term, the provisions of this section may be absolutely and entirely avoided, and the change in legislation -might as well not have been enacted.

The reasons moving the Legislature to -amend this section are not important. It is clearly intended to serve some purpose, and that purpose undoubtedly is in the line of better service for all public -eleemosynary institutions, and if .a superintendent is to -be constantly menaced by the power of the board of infirmary directors to remove him, he is not .the free agent that he ought to be -in -the management of that important public charity. But I have no desire to go into speculations as to the -reasons for the change; the change was made -and it now reads that the superintendent shall not be removed -except for good and sufficient ■cause.

This is not the -only legislation of this -character in Ohio; there has been a great deal of .a similar character. The new municipal code, 96 O. L., 75, Section. 167 (1536-703), provides that no officer or employe in the department of public safety shall be removed or discharged except for .canse, and this does not apply merely to the officers thereafter appointed, but the last paragraph of the same section provides than no officer, secretary, sergeant, patrolman, fireman or .other employe serving in the police or fire departments of -any city in the state at the time this act goes into effect, shall foe removed or reduced in rank or pay except in accordance with the provisions of this act.

In the case of State v. Sullivan, 58 Ohio St., 504, the court, in dealing with a statute of this .character, says:

“The power of removal from office, conferred upon a mayor, in these words, ‘for neglect of duty or misconduct in office, the mayor of such eity may remove any member of said board,’ is a special authority, and must foe strictly construed. Such power can not be exercised arfoitrarihr. hut only upon complaint, and after hearing had in whieKffiné officer is afforded opportunity to refute the case made against him.”

The evidence in these cases shows that no attempt was ever made to remove .this superintendent for cause. The appointment was made upon the theory that his term of office had expired.

After the amendment of this Section 962, Revised Statutes, in 1898, and some time in 1899, the hoard of directors of this county did appoint B. Frank Palmer superintendent of the county infirmary. It is presumed that such appointment was made under favor and by authority of this section. It is true that there is an attempt to limit this appointment to a term of one year. Under the appointment he qualified, gave bond and took the oath of -office. From time to "time thereafter the evidence discloses -that there w.as an attempt to make a further appointment of the same individual as superintendent of the county infirmary, and such a resolution was entered upon the record, hut the evidence is uncontradieted that he paid no attention whatever to these appointments, and never qualified thereunder .or furnished any new bond, and in no manner or form acquiesced therein. I am of the opinion -that when he was appointed after the amtwdimmt of this section, he was appelated until he should be .removed by said board of directors for good and sufficient cause.

For these reasons I dissent from the opinion of the majority of the court in these two cases.


text:
    STREET IMPROVEMENT ASSESSMENTS FOR STREET INTERSECTIONS.
    Circuit Court of Lucas County.
    Marie Burr et al v. Peter Parker, Trustee, et al.
    Decided, February 16, 1907.

      Assessments — Basis-of, under Section 2275, with Reference to Intersections — Burden of Showing Benefit to Lot Omitted from Assessment —Benefits—Intersections.

    1. One seeking to enjoin a street assessment, on the ground that lots or lands which should have been assessed have been or "Jted, should make it appear that the omitted lots or lands derived some benefits from the improvement and therefore should bear •». share of-the burden of the cost thereof, and that a proper asset ment, including the omitted lots or lands, would probably reduc assessment on his property of which he complains.
    2. To bring a case within the purview of Section 2275, Revised Statutes (repealed, 96 O. L., 96), requiring the payment of a part of the cost of a street improvement by the city because of the treatment of street intersections as abutting property, it should be made 'to appear that such intersections as abutting property are benefited by the improvement, and it is not sufficient to show that the intersecting streets are benefited by the improvement'. .
    Parker, J.; Haynes, J., and Wildman, J., concur.
   This is an action brought to enjoin the collection of assessments levied upon lots and lands lying along Front street in East Toledo, for the costs of paving the street. The plaintiffs own certain of the lots so assessed, and the question that is presented for our consideration is, whether the assessment is invalid and should be enjoined because the city failed to include in the lots and lands to be assessed the intersections of the street made by the crossing of other streets over Front street. It is eon« ceded that these lands were not included and that no share of the .cost or expense of improving Front street was assessed ■against the city because of these intersections. The whole cost of .paving the intersections, however, were paid by the city. But it is contended by the plaintiffs that the statutes as they read at the time this improvement went forward, to-wit, Sections 227.4 .and 2275, Revised Statutes (repealed, 96 O. L., 96), required not only -that the city of Toledo should pay for the cost of improving and paving the intersections, but that, in addition thereto, the intersections should be regarded as property abutting upon the improvement and the city should be further assessed for .the benefits thereto from -the improvements.

In looking into the statutes we find .that in the year when this improvement was -inaugurated, 1900, - and when it was going forward, in 1902, and from that time forward until the adoption of what we are in the habit of calling the new municipal code, Section 2274 (repealed, 96 O. L., 96), required that in the -city of Toledo the cost of intersections should be paid for by a general tax on all the property in the city, and Section 2275 (repealed, 96 O. L., 96) contained this provision with respect to the intersections:

‘ ‘ For the purposes of assessment, a city of the first grade and a- city of the third grade of the first -class shall in all cases be considered -as a property owner as .to intersections, and any other property belonging to the corporation abutting -on the street or highway so improved; and the assessment chargeable to the corporation, together with at least one-fiftieth part of all costs and expenses, as provided for in Section 2273 (repealed, 96 0. L., 96), may be included in any bonds issued for the improvement, and be paid for by it in like manner as by other property owners; ’ ’ * * *

Considering the history of legislation upon the subject of intersections, we find that formerly the cities of Cincinnati -and Toledo were excepted from the operation -of Section 2274, so that in those cities the coat of intersections was not to be paid for out of the general levy, and Section 2275 providing a different method for laying a share of the burden of the cost of street intersections upon the -city by assessing the city on account of intersections according to benefits thereto applied to Cincinnati alone; that Toledo, in 1889 (86 O. L., 119), was brought within the provisions of Section 2274, so that thereafter it paid the cost of improving intersections; and then on March 10, 1892, by a statute appearing in 79 O. L., 31, Section 2275, was made applicable to Toledo, and then and thereafter Toledo stood in a class by itself (if the construction is to be given to these statutes contended for by the plaintiffs here); that is to say, it was required to bear -the burden of the cost of the intersections, and in adition thereto was to pay out of the general funds the amount of the benefits resulting to the intersections by the paving thereof. This was the rule applicable to Toledo — a system of double assessment, apparently, for practically the same thing or benefit.

We have undertaken to arrive at some solution of this question — some construction of these statutes — which would enable us to ayoid this result of double assessments. We have not been able to do it by any course of reasoning that was entirely satisfactory to us, though we think it ought to be done if possible. In other words, we think that this legislation whereby Section 2275 was made applicable to Toledo, if not an absolute blunder, was .at least ill-advised and inconsistent with the general policy of the state upon the subject. But we find by looking into this record that we are not called upon in this case to solve this problem.

Counsel for plaintiffs have proceeded upon the theory that the statute, Section 2275, requires that the benefits to the intersecting streets shall be .taken into consideration and shall be assessed against the city; but the statute does'not so provide; it does not say that the intersecting streets shall be considered as property owned by the city so .that the benefits thereto shall be paid by the city, but it says that 'the city shall be considered as a property owner as to the intersections, and we know that the intersections consist of the territory hounded by the street lines as they cross. Now it may be, that, if it should be made to appear that some lots or lands that should have been assessed were omitted, such omission would render the assessment of .the other lots and lands invalid so that the court would be required to enjoin the assessment and >a new assessment would have to be made including .those lots and lands; .but certainly, where.one goes into .a court of equity with a claim of that character, he should make it appear affirmatively that the lots and lands which he says should have been assessed derived some benefit from the improvement, so -that they should have been assessed and so it should appear at least probable that upon a reassessment some assessment would be laid upon such lots and lands, and probably thereby the assessment upon .his lots and lands would be lessened. But that does not appear in this ease with respect to these intersections; there is no statement in the petition and nothing in the agreed statement of facts to the effect that these intersections derived any benefit from the improvement — certainly not any benefit ¡over and above the amount which was paid in paying for the cost of the paving of the intersections. But there is no allegation and no agreed statement of fact that they received any -benefit whatever from the improvement. The averment is:

“That for some .time prior to the first day of January, 1902, axud on and ever since said day, the said city of Toledo has been a property owner of the intersections of the following named streets” — naming the streets which cross Front street — “that said committee in the assessment made and reported by it to the council and by the council approved and confirmed, failed and omitted to -assess ¡any sum whatever upon the said intersections, or any of them, nor did the common council of said city by said ordinance passed on the third day of March, 1902, require the said city to pay any part of -the cost of improving said Front street; that said Front street is the only throughfare leading from Millard avenue to the Cherry street bridge; that it is the only public way whereby teams and pedestrians traveling on any of said intersecting streets can reach the bridge over the Maumee river at Cherry street in said city; that the said improvement of Front street has been made and is of great benefit to all said intersecting streets, and to the said city of Toledo, the owner of said streets.”

It may have been of great benefit to those streets, but the city can not be required .to pay anything on that ¡account. Upon any construction of this statute the city can only be required to pay in the event of a benefit to the intersections, and there is no averment that the intersections were benefited,

F. J. Flagg and B. A. Hayes, for plaintiffs.

C. S. Northup and O. W. Nelson, for defendants. .

We hold, therefore, upon the ease as presented, that no equity is shown, and the finding will be for the eity. The petition will be dismissed.


text:
    PROCEEDINGS FOR. WIDENING, DEEPENING AND STRAIGTENING A DITCH.
    Circuit Court of Wood County.
    Wood County Commissioners v. Thomas Shinnew et al.
    Decided, April 27, 1907.

      Drains ancl Ditches — Scope of Inquiry on Appeal in a Ditch Case— View by the Jury■ — Discretion of Court with Reference to — Charge of Court — Effect of Judge Entering Jury Room to Give Further Instructions — Sufficiency of Evidence as to Outlet of Ditch — Testimony of Landowners — Error—Sections 4447 and 4448.
    1. The inquiry as to the sufficiency of the outlet of a drainage ditch is involved in an appeal from a finding in a proposed ditch improvement proceeding, on the ground that the proposed improvement was not conducive to the public health, convenience and welfare.
    2. It is not error for a probate court to refuse to send the jury in a ditch improvement proceeding back for a second view of the proposed outlet, though opposing landowners were not satisfied with the first view.
    3. In proceedings before the probate court in a ditch case, where the jury after retiring asked for further instructions, and the trial judge entered the jury room with counsel for both parties and delivered the instructions asked for without objection from either party, such action by the judge can not be successfully attacked in a reviewing court on the ground that it amounted to error or misconduct prejudicial to the rights of either party.
    4. In a proceeding before the probate court for the improvement of a ditch, opposed by landowners on the ground of the insufficiency of the outlet, the jury having viewed the entire ditch and the outlet and having heard the evidence introduced at the trial is in a better position to say whether or not the outlet is sufficient than a reviewing court having before it only a transcript of the evidence produced at the trial, and the finding of the jury will not be disturbed when not manifestly opposed to the evidence appearing in the record.
    Parker, J.; Haynes, J., and Wildman, J., concur.
   This case arises out of a proceeding instituted before the county commissioners for the widening, deepening and straightening of a certain ditch having its outlet in the Portage river. The improvement was ordered by the county commissioners, and an appeal was taken by Shinnew and others to the probate court on the ground -that the contemplated improvement was not necessary or conducive to the public health, convenience and welfare. In the probate court the jury found against .the appellants, who carried the case to the court of common pleas on error, and the court of common pleas reversed the judgment of the probate court, and thereupon error was prosecuted in this court to obtain a reversal of tbe judgment of the court of common pleas. The petition in error here -recites the judgment in the -court of common pleas, with some details preliminary thereto, and alleges- as errors—

1. That the court of common pleas erred in its finding that the probate court should have granted -a new trial in said -cause.

2. Said common pleas court er-red in its finding that the probate court was in error in -refusing to send the "jury in said cause to view -the -outlet of the proposed ditch improvement.

3. Staid common pleas- court erred in its finding that the probate court was in error in its charge to the. jury.

4. Said common pleas court erred iu remanding said cause to the probate court for a new trial.

5. Said common pleas court erred in not -affirming the judgment of the probate court.

6. Said common pleas court erred in its findings and judgments for the plaintiffs in error, when they should have been given f-or -the defendants in error; and for other errors manifest on the face of the record.

It becomes essential to ascertain, by an .examination of -the petition in error filed in the common pleas .court, just the grounds upon which -that court was authorized -to take action, and the ground upon which the judgment of reversal must be assumed to be based.

I find that the grounds of alleged error asserted in the petition filed in the court of common pleas are three:

1. That -the probate court erred in overruling the motion for a new trial.

2. That the court erred in rendering judgment for the defendants in error when it should have been given for the plaintiffs in error.

3. Said court erred in entering the jury room after the case had been submitted -to the jury, and while the jury were deliberating thereon .and communicated with the jury in the absence of said parties or their attorneys; and for other errors apparent upon an inspection of the record.

To dispose at the outset of some matters comparatively simple and easy of disposal, I will say .as to this .third assignment of error in the court of .common pleas, that the fact referred to is disclosed by an agreed statement appended to the bill of exceptions taken in the probate court, which recites substantially that after the jury had retired for deliberation they asked the court for further instructions, whereupon the judge entered the jury room, closed the door and held some communication with the jury, and then reported to counsel that the jury wanted further instructions, and that he then said to them that he had given to them all the instruction upon the law which he was able to give, .and that he had nothing more to say in addition to the charge which he had given them. Counsel suggested to the court that he ascertain upon what points the jury desired instructions, whereupon the court and attorneys for the plaintiffs and defendant entered the jury room and the court inquired of the jury upon what points they desired instructions. The jury then, through its foreman, said to the court that they were unable to determine whether they were to find the outlet for the ditch in question to be sufficient when .the water was low in the bed of •the river or when it was at high water, and the court thereupon instructed the jury that for the purpose of determining whether there was a sufficient outlet the jury was not .to consider the river at extreme low water nor at extreme high water, whereupon one of the jurymen said to the court, “That means we should take it at its normal condition,” to which the court replied, “No, that is not what I meant, you are to take the Pontage river as it is under all conditions, and determine whether or not it will afford a good and sufficient outlet for the proposed improvement. The river should be'taken when under ordinary conditions.” Whereupon the court and counsel retired, and the jury returned its verdict in favor of the defendant:

No specific reference to this incident is ihade in .the motion in the probate court for a new trial; there is no claim of misconduct on the part of the court in entering the jury room, and from the statement which I have read it does not appear that any exception was taken at the time to the action of the court. In addition to these reasons for disregarding 'it, it might be said that we see nothing in the entire transaction that co-uld be prejudicial to the defendant in error. The court had some communication with the jury. The agreed ■ statement of counsel is that the jury wanted further instruction, and he said he had given them all the instructions upon the law which he was .able to give and that he had nothing more to say in addition to the charge delivered. Assuredly there was nothing in all that hurtful to the parties complaining, and as to all of the remaining transaction recited in .this agreed statement, counsel were present, representing both parties, and the court instructed the jury in their presence in answer to the inquiries of the jury as to the rule which should govern them, and no exception was taken to such instruction at the time, and exceptions taken to the charge previously given could not apply to the instructions given at this stage of the trial. We think then that the correctness or incorrectness of the conclusion arrived at by the court of common pleas should be determined by an examination of other grounds in the petition in error filed in the count of common 'pleas, to-wit: that the court below erred in overruling the motion for a new trial; second, in rendering judgment for the defendants in error, that is, for the board of county commissioners, when it should have been rendered for .the plaintiffs in error, Mr. Shinnew and others.

At the outset of our examination of the proceedings of the probate court to ascertain whether or not the court of common pleas was justified in the reversal of the judgment of the probate court, we are met with the inquiry as to just what was pending in the probate court — what was appealed to that' court from the decision of the county commissioners.

The statute provides in substance that the appeal is to be taken upon specific grounds which must be set up in the proceeding for the appeal, and in the case a.t bar but one ground was stated, to-wi/t: That the proposed improvement was not necessary or, conducive to the public health, convenience or welfare. This, then, was the only matter pending in the probate court, iand the question involved in the appeal so limited was the only question for the jury, impanneled in the probate court, to consider. Closely connected with this question is another, which has been dwelt upon in argument and is the principal question in controversy here, and that is as to whether the Portage river affords a sufficient outlet for the improvement contemplated by these proceedings. Revised Statutes 4447, provides for various kinds of improvements, including the kind defined in the petition before us, i. e., for improvements by the location and construction, or by the straightening, widening, altering, boxing or tiling of a ditch or water-course. In the case at bar we have a proceeding merely for the widening, deepening and straightening of what seems to have been a previously established ditch or water-course. Revised Statutes 4448, contains the provision that the word “ditch” shall be held to include a drain or watercourse, and the petition for it shall be held to include any side, lateral, spur or branch ditch, drain or water-course necessary to secure the object of the improvement, whether the same is mentioned therein or not, “but no improvement shall be located unless a sufficient outlet is provided”; and upon the construction of this qualifying clause and its application to the facts of this case rests, the determination -oí the present controversy.

In the first place it is contended that the sufficiency of the outlet was not a matter involved in the appeal to the probate court. It is said that whether or not the improvement is conducive to the public health, convenience or welfare, is. not to be determined by the question whether the outlet is sufficient. Our judgment is, however, that these matters are so intinjately interwoven or so closely connected that we can hardly disassociate the one from the other. It would hardly be conducive to the public health, convenience or welfare to deepen, widen or straighten a ditch unless it would perform its proper function, that is, carry off the water, and to enable it to do that a sufficient outlet must be found or provided. Without further discussion on this branch of our .inquiry, it is sufficient to say that we think that an appeal upon the ground that the contemplated improvement was not conducive to the public health, convenience or welfare properly involved the inquiry as to the sufficiency of the outlet as a part of the general inquiry as to the character of the improvement.

In the journal entry of the court of common pleas reversing the action of the court below, is stated the supposed errors on which the reversal was based. They are these: That the probate court erred in overruling the motion of .plaintiff asking the court to direct the jury to view the outlet of the ditch in question below -the bridge near the lower terminus of said ditch and -along the Portage river to ascertain whether or not the water would back up iñ the proposed ditch;'erred in giving in charge to the jury the last sentence of the request -of .the defendants to charge the jury, which request is marked No. 1; and also err-ed in overruling the motion of the plaintiffs in error for a new trial of the cause.

We have examined with care the bill of exceptions taken in the probate court, and are unanimously of the opinion -that no error was committed by that court in its refusal to send the jurors back for -another view, or .a more extended view, -of the proposed outlet for the ditch. It seems that the jury having been previously instructed by the court, visited the line -of the proposed ditch improvement and stationing themselves at first upon a bridge, obtained a view f-or some distance along the Portage river, the proposed outlet, and that .they viewed -the entire route of the ditch itself. - Counsel for the landowners -opposing the improvement were not satisfied with this view, and asked the court to send the jury back for another; this the court declined to do, and exception was taken, and for that action the common pleas court, as one -of the grounds, reversed the judgment of the court below.

This was doubtless a matter somewhat in .the discretion of the probate court. It probably would have been within the power of the probate court, if not satisfied -that the jurors had made a sufficient view to apprise themselves of all .the conditions, to send .them back for another view; but we see nothing in the statute and nothing in the circumstances of this case that made it error for the probate court to refuse so to do.

The court of common pleas based its action also upon a claim of error in the charge to the jury, i. e., the last sentence of the request of the defendants marked No. 1. I will read the entire request:

“In arriving at your verdict, you should not only consider what the witnesses .have testified to, but you will .also consider the facts .appearing to you from .the view you had of the premises along the line of the ditch, and if from .the testimony adduced and your observation along the line of .the proposed ditch you should find .that the ditch .as a whole is .conducive to the public health, convenience .or welfare of the neighborhood through which it passes, and that it has .a sufficient outlet, you will find for the ditch improvement. The fact that a large number of landowners in the vicinity in which the ditch is located are opposed to such ditch should have no bearing or weight with you in determining the question before you.”

Tt is not seriously contended that the opposition of any number of landowners to the improvement should have been considered by the jury in .arriving at their verdict, but the contention of counsel is, as I understand it, that the tendency of this instruction was to mislead the jury into a disregard of the testimony of .the landowners as to the facts which were proper to be received for the enlightenment of the jury. We hardly think, however, that this would be a natural result of this instruction. The court had immediately before, as .a part of the same request, instructed the jury that they should consider what the witnesses had testified to; not the witnesses for one side or witnesses for the other, but all the witnesses; and surely intelligent jurors could not assume that the court was intending that they should disregard the testimony of some .of the witnesses because they were landowners along the line of .this ditch.

Taking the instructions of the court as a whole in connection with this instruction, we think that it is not probable that the jury was misled by this clause of -this sentence, and our judgment is, that the court of common pleas erred in holding that there was error on the part of the probate court in giving this instruction.

The court of common pleas held that the probate court erred in overruling the motion of the plaintiffs for a new trial of said cause. We are not advised a® to the precise ground on which the court of common pleas so held. It may have been .one of the two grounds which this court has considered and reviewed, or it may have been the conclusion of the court of common pleas that the finding of the jury in the probate court was not warranted by the evidence; and assuming that this may have been the ground of the conclusion of the court of common pleas, it is proper that we consider for a moment whether such a. .conclusion of that court, if it was in fact arrived at, was justified.

There is evidence, pro and con, as to the sufficiency of the Portage river as an outlet for this proposed improvement. It is a matter of some doubt whether Revised Statutes 4448, providing that no improvement shall be located unless a sufficient outlet is provided, has application at all to the improvement of old ditches. We are not quite clear as toa whether the words "widen, deepen, straighten,” etc., were intentionally omitted from this section. They are used in Revised Statutes 4447, and it is possible that the Legislature had it in mind that only one finding of an outlet for a ditch established by the county commissioners would be necessary and that when a sufficient outlet had once been obtained, the ditch then located and established might thereafter be improved, preserving the same outlet for the escape of its waters. We do not care, however, to more than suggest a query as to the tena.bili.ty .of this construction of Revised Statutes 4448. It is plain enough that the deepening and •widening of a ditch might thereby canse more water to go into the outlet than the ditch carried in the form of its original construction, .and that fact might have some tendency to sustain the contention of counsel for the opposing landowners here that Revised Statutes 4448 requires a finding of a sufficiency of outlet for every kind of improvement to a ditch, already established, as well as upon the .original location of a ditch. The statute provides for .a view of .the ditch by the jurors, and by two decisions of our Supreme Court it has been held that the view so obtained by the jurors is 'to be treated as evidence; in other words, that they may use for the purpose of aiding them in their inquiry all the light which they obtain from their personal examination of the ditch. It has been held under other statutes as to views by jurors, that the view is to be treated only as a means of applying evidence and not as evidence in itself. The cases referred to are Williams v. Lockoman, 46 Ohio St., 416, the syllabus- of which is:

“On an appeal to the probate court from the order and finding of a joint board of county commissioners, determining that a proposed ditch -is necessary, and will be conducive to the public health, convenience and welfare, the jury, in examining and determining the matter appealed from, may, under Section 4467, of the Revised Statutes, considered in evidence facts made known to them personally from an actual view of the premises. ’ ’

And in the case of Lake Erie & W. Ry. v. Hancock County, 63 Ohio St., 23, Judge Williams on page 28 cites the case of Williams v. Lockoman, supra, adding that the jury were entitled to consider, as evidence on this subject, facts brought to their knowledge from their actual view of the premises.

Neither this court, nor the common pleas court, has had the advantage of a view of the premises in controversy. The jurors had this that was valuable aid for and means of determining the issue between the parties, not afforded to either of these courts of review. If the evidence, irrespective of the facts placed before it by .the view, was manifestly inconsistent with the conclusion .at which the jury arrived, it might be proper for a reviewing court to reverse the finding of the jury, but we can not, from an examination of the evidence here, arrive at that conclusion. It is entirely possible that the jury standing upon the bridge and overlooking the river, seeing the height of the bank, the width' of the river, knowing the size of the ditch, knowing the extent of the proposed widening and deepening thereof, may have been enabled to form a judgment even more intelligent and more satisfactory that that which could be arrived at by listening to the opinions of any number of witnesses; and we conclude that the court of common pleas, under all the circumstances and in view of the manifest conflict of testimony of the witnesses who were sworn and had testified, was not justified in setting aside the verdict .that the jury arrived at by both testimony and view, upon the ground that it was not supported by the evidence.

J. E. Ladd and E. Q. McClelland, for plaintiffs in error.

Baldwin'c§ Harrington, contra.

There was testimony that the outlet was sufficient. It may be apparent that at some times the Portage river overflows its banks, does not at 'all times carry off .all the water which is discharged into it by streams, drains, ditches and other watercourses, and still we hardly .think that that circumstance alone is a sufficient reason for holding that the outlet is insufficient. If at times it overflows its -banks, it does no more than the Mississippi river or the river Nile, and yet it can hardly be said that those mammoth water-courses are not sufficient outlets in which to discharge the waters deposited upon the adjacent country constituting their valleys by rainfall or otherwise.

It is -our judgment that the common pleas court was not justified in reversing the probate court upon any of .the grounds stated in the journal entry, and we think that the petition in error to this court should be sustained upon each of the six grounds specified. Some of those are perhaps merely formal and are but restatements of others.

The judgment .of the court of common pleas will be reversed, the judgment of the probate court will be affirmed, -and a mandate sent to the probate court for further proceedings in conformity to the law.


text:
    COLLISION BETWEEN ELECTRIC CAR AND VEHICLE ON HIGHWAY.
    Circuit Court of Lorain County.
    Cleveland & Elyria Electric Railway Co. v. Hunter.

    Decided, October, 1898.

      Evidence — Statements of Passengers with Reference to Speed — And as to Whether the Speed was Slackened Just Before the Accident— Incompetent Testimony may not he Pre,judicial — Rights of High ■ Speed Cars and Vehicles in the Highway — An Irrelevent Charge Improper — Errors in Charge Cured hy Subsequent Charges — Exceptions to Special Charges — Affidavits as to Misconduct of Jury— Bill of Exceptions.

    1. Statements of witnesses as to the time within which electric cars have been stopped, though at other times and other parts of the line, are statements of fact and are competent as evidence bearing on the question, in an action for personal injuries resulting from • a collision between an electric car and a horse and buggy, as to the time in which the car could have been stopped at the time of the accident.
    2. It does not require an expert to determine, when riding in a car, whether the speed has been slackened; and the testimony of passengers upon an electric car that just prior to an accident the car was running at its usual speed, and that there was no slackening of speed until the collision occurred, was competent.
    3. Where it appears, in such a case, that at the time the motorman noticed the peril of the plaintiff, he had ample time to stop the car, the testimony referred to in the preceding paragraphs, whether competent or incompetent, was not'prejudicial to defendant.
    4. An instruction that: “The object to be accomplished by the defendant, in the construction and operation of its road on that highway, was to furnish rapid transit for the people living along the highway, and for the general public by means of cars rapidly propelled by electricity; such use of the highway is necessarily dangerous to persons traveling thereon in vehicles drawn by horses, and as such a use of the highway is held to be reasonable and lawful, people traveling thereon in vehicles drawn by horses must exercise care commensurate with such increased, but reasonable and lawful dangers. The right of the defendant to run its car and of the plaintiff to ride in the wagon on that highway were equal. Bach assumed the dangers of the other’s reasonable use of the highway, and was bound to use ordinary and reasonable care to avoid injuring the other and being injured by the other,” while entirely proper in defining the rights of the parties in the highway, as a whole, was improper.
    5. To have instructed the jury that a street railway company is not responsible for injuries caused by the fright of a horse arising from the ordinary use of its car, where there was no evidence tending to show that there was anything in the appearance of the car which would tend to frighten a horse of ordinary gentleness, and the instruction could have no application to the issues made by the pleadings, would have been improper.
    6. An instruction that “there is no evidence tending to show that defendant was guilty of negligence in any of the respects charged in plaintiff’s petition in running its car at the time and place and under the circumstances of this case, prior to the time that the motorman discovered or by the use of ordinary care might have discovered the fright of the horse,” where the negligence was subsequent thereto, is within the rule stated in the preceding paragraph.
    7. Where evidence, in the form of affidavits in support of an allegation of misconduct of the jury, is controverted by evidence, also in the form of affidavits, and it does not appear from the record that the bill of exceptions contains all of the evidence on that question, a reviewing court can not say that the trial court erred in granting a new trial for that reason.
    8. A judgment will not be reversed because a charge to the jury too prominently set forth certain facts favorable to the plaintiff and omitted those favorable to the defendant, where such omission was offset by special requests given on behalf of the defendant.
    9. Unless exception was taken and is noted upon the record, the circuit court can not say that the giving of a particular special request was erroneous.
    Hale, J.; Caldwell, J., and Marvin, J., concur.

       Affirmed without report, 60 O. S., 634.

   Prior to July, 1896, the plaintiff in error had constructed a street railroad between the city of Cleveland and the city off Elyria, passing through the township of Ridgeville, and that time and ever since has been operating upon that road ears propelled by electric motors.

On July 19, 1896, the defendant in error was on her way from Elyria to Ridgeville, traveling in the highway, in a wagon drawn by one horse driven by her brother, in the-center of which highway was located the track of the railway company. In the eastern limits of the city of Elyria .there was a collision between the wagon in which the plaintiff was traveling and the oar passing westward on the railroad track. In this collision the wagon was demolished, overturned, the defendant in error thrown out and sustained very serious injuries. She prosecuted iu the court of common pleas her action to recover of the plaintiff in error compensation for the injuries thus sustained, claiming that her injuries were caused by the carelessness and negligence of the railway company, through its agents in running and managing the car that collided with the wagon. A more definite reference to the specific allegations of negligence will be referred to as we consider the requests that were made by defendants of the court to charge the jury.

The action was tried in the court below, resulting in a verdict for the defendant in error in the sum of ten thousand dollars. A motion for a new trial was overruled and a judgment rendered on that verdict.

The entire proceedings had in the court below are brought before -this court for review by a hill of exceptions, covering something more than five hundred pages. Various errors are assigned to the rulings made by the court on the admission and exclusion of the evidence. It is only necessary to refer to a few of those rulings.

First. The defendant in error was permitted to give to the jury the statement of witnesses as to the time in which cars had been stopped upon this railroad at other times and at a different place from the place of this collision, for the purpose of showing within what time the car could have been stopped at this -time.

One of the material allegations of negligence was, that the motorman was negligent -and careless in omitting to check the speed of the train after he had observed or by reasonable care could have known .the peril in which the defendant in error was placed. It became, therefore, material to determine within what time the car could be stopped. This testimony we do not regard .as calling for an opinion of witnesses which they could not express as to the time within which the ear could be stopped. .It was the statement of a fact as to the time within which .cars had actually been stopped. The majority of the court are very clearly of the opinion that such testimony was competent. For myself I see some objection to the testimony.

In order to have it a proper measure to apply to the case, it necessarily involved various items — the weight of .the car, condition of the motor, the grade of -the track, the condition of the track — that would raise independent issues in the case. But, as I say, we hold the testimony to be competent.

The testimony -in the case, both .on the part of the plaintiff and defendant, -agree upon the proposition that a ear could be stopped within 100 to 125 feet, running at the speed at which this car was running. It could have been stopped within a distance not to exceed 125 feet.

The jury, in a special finding, found ,at the time the horse started to cross the track the ear was 160 feet away from the point of collision.

The finding of the jury, therefore, shows that .at the time the motorman should have noticed the peril of this .defendant in error he had ample time to stop the car, and therefore that this testimony, whether competent or incompetent, was without any prejudice to the plaintiff in error, which affected the verdict.

A number of witnesses, some of whom were upon the ear and others who -observed the car were permitted to testify as to the speed that this car was running just before the accident. All of those witnesses, except two, testified only to the fact that just prior to the accident the car was running at its usual speed and that there was no slacking of the speed until the collision occurred. That testimony certainly was unobjectionable. It does not take an expert to determine, when riding in a ear, whether the speed has been slackened or -otherwise.

Two witnesses, Kuehne and Nieholls, were permitted to give opinions as to the speed this car was running.

Nieholls testified in his opinion it was moving from sixteen to eighteen miles per hour. Kuehne thought it was running at the rate .of twenty miles per hour.

These witnesses failed -to show much knowledge on the subject, entitling them to speak as experts and to give opinions.

The defendant’s motorman testified that -this car was running from fifteen to sixteen miles per hour. Nicholls testified it was running from sixteen to eighteen. We do not think that the difference between the two statements is sufficient to reverse the judgment. And as to both' of those witnesses we are inclined to say that they showed such knowledge and such experience as to make the testimony barely competent, but that its weight was of little value.

The testimony given by the physicians in answer to the hypothetical questions is .also challenged and exceptions were taken. We see no objection to that testimony.

Wasson and Christy were examined on the part of the plaintiff in error as expert witnesses. Certain' questions were put to each of them which the court did not permit to be answered. In that we think there was no error. Both of .those witnesses gave to the jury all the information that was needed concerning the time ,in which a car could be stopped, the methods of stopping a ear, 'the' manner of applying .the brakes, and educated the jury to the full extent that was necessary and competent.

So far as the rulings upon the questions of evidence, we are of the opinion that there was no error committed by the trial court.

At the close of the testimony the case was argued, and it is claimed that there.was misconduct, on the part of the counsel for the- defendant in error. Perhaps the .argument of counsel extended to the full extent that should be authorized, but on interruption by counsel for the plaintiff in error the offending counsel very gracefully came down, and we do not see that any substantial injury was done to the case of the railway company by the remarks they are complaining of.

At -the close of the testimony -the court was asked by the defendant in error to instruct the jury in two special requests, which were given, the' second of which the plaintiff in error complains should not have been given. I find no exception noted upon the record by plaintiff in .error to the giving of this request, therefore we can not cay that it was error, but independent of that we .think the request was one that the court might well have given.

■ Complaint is made that it made too prominent certain facts favorable to the defendant in error and omitted those favorable to the plaintiff in error. But that was fairly off-set by the request that they made on the other side.

The plaintiff in error .then requested ‘the court in a large number of requests to charge the jury, four .of which were given. These requests called -the .attention of the court to specific claims made by the plaintiff in error. The fifth request was refused and exception taken; it was .in these words:

“The object to be accomplished by the .defendant in the .construction and operation of its road on that highway was tc furnish rapid transit for the people living along the highway and for the general public by means of cars rapidly propelled by electricity; such use of the highway is necessarily dangerous to persons traveling thereon in vehicles drawn by horses, and as such a use of the highway is held to be reasonable and lawful, people traveling thereon in vehicles drawn by horses must exercise care commensurate with such increased, but reasonable and lawful dangers. The right of the defendant to run its car and of the plaintiff to ride in the wagon on that highway were equal. Each assumed the dangers of the other’s reasonable use of the highway, and was bound to use ordinary and reasonable care to avoid injuring the other and being injured by .the other. ’ ’

That part of the charge defining the rights of the parties in the highway was entirely proper and would have been entirely proper for the court to have given in the charge to the jury so that they would have understood the rights of each in the highway; but the request .as a whole we think the court was justified in refusing.

There are .a number of requests which I will consider together. ‘ ‘ The defendant was not responsible for any injury to the plaintiff caused by the fright -of the horse arising from the ordinary use and operation of its car.” There is no evidence tending to show that there was anything in the appearance of the ear in question that would have a tendency to frighten a horse of ordinary gentleness. Another: “There is no evidence tending to

show that defendant was guilty of negligence in any of the respects charged in plaintiff’s petition in running its car at the time iand place and under the circumstances of this case prior to the times that the motorman discovered, or by .the use of ordinary care could have discovered, the fright of the horse.” Again: “The fright -of the horse can not be considered by the jury except as bearing upon the conduct -of the motorman after he discovered, or by the use of ordinary care ought to have discovered, such fright.”

Those were all refused and exceptions taken separately to each.

The request to charge the jury as to the responsibility of the company for causing the fright of the horse by the appearance of the car, or the speed with which -the car was run, was all properly refused, because it had no application whatever to the issues made by the pleadings and to be -tried by the court and jury.

The petition alleges, after stating the general facts — “That the horse attached to said wagon in which the plaintiff was riding was being driven by a brother of the plaintiff and became frightened and unmamagable by and at the -approach of said ca-r of the defendant while some distance therefrom, and at a point on said highway where said street -railroad tracks run -along the center of said street; that said horse g-av-e evidence of being frightened at a distance of at least two hundred feet or more from said ear -as it was -approaching, by rearing up on its hind legs, and sprang -one w-ay and another, and it then and there sprang on and over said track of said defendant; that said rearing of said horse and its great fright and its crossing said track were -all in full view of the servants and agents of the defendant running and operating said ear, and at such distance therefrom when the same occurred as to afford abundant time to check the speed -and stop the -motion -of the car before it came in contact with the plaintiff and the wagon in which she was riding as heretofore stated. ’ ’

It is not charged that the character -of this car o-r its speed caused the fright of the horse. The simple statement is, -that the horse was frightened; not -that there was -any carelessness or negligence on the par-t of the company in frightening the horse.

The petition then proceeds:

“She further says that while she was passing along said highway at the point aforesaid, and as said horse and wagon were crossing said track as .above stated, the defendant, through its agents conducting and operating said car, being in full view of the plaintiff’s dangerous position, carelessly and negligently omitted to stop or reduce the speed of said car, .and carelessly and negligently omitted to apply the brake to stop or slacken the speed of the same, although they had ample time so to do, after the said servants and agente of the defendant so operating said car discovered, or by the exercise of due diligence and care could and ought to have discovered, .the imminent danger and threatened injury to the .plaintiff by omitting so to do.”

The complaint in the petition is, that the horse having become frightened, the motorman failed to exercise due care in slacking his ear to prevent, as he could, the collision. The requests made relating to the responsibility of the company for causing the fright of the horse was outside of the issues made in the pleadings' and for that reason undoubtedly were refused by the trial court.

■ The charge of the court fairly covers every legal proposition involved .in the case. In addition thereto the requests that I have named were given, two in behalf of the plaintiff .and four in behalf of the defendant. The jury could not have failed to understand the law of -the case.

But it is said that the verdict is against the weight of the evidence, and that a new trial should have been granted because of that fact.

It can not be doubted that if the witnesses that were examined on the part of the defendant in error are to be believed, the evidence was sufficient to establish every material fact essential to a recovery by the defendant in error.

It is true there was a very sharp conflict of testimony produced by the opposing parties. The motorman testifies that he shut off the current fully three hundred feet away from the point of collision; that he had approached within thirty feet of the point of collision before the horse started across the track. Of course if the real fact is as testified by the motorman there was no liability on the part of the company; but the jury, under the circumstances of the ease, perhaps influenced somewhat by the fact that the buggy was carried some fifty feet after the collision, before the ear was stopped, the force of the collision and other circumstances, accepted the testimony of the plaintiff.

Now we would not hesitate to interfere with a verdict of the jury if not fairly supported by some testimony which it was the province of the jury to pass upon and which they might or might not believe. We think the testimony in this case was of such a nature -that we would not be authorized to disturb the verdict of the jury. If there was any wrong- done this plaintiff in error it was because of the finding of the jury upon the fact of the case which was their province to pass upon.

At the close of -the plaintiff’s testimony a motion was made and the court was- .asked to direct a vcerdict for the defendant, which the court refused. There was some testimony at that time tending to establish the essential facts necessary for recovery, and the court properly refused to grant that motion.

It is said that the damages were excessive and that therefore a new trial should have been granted upon that ground. That depends upon .a fact that was in dispute at the trial, to-wit: the defendant in error, a considerable time after this collision and after her injuries were supposed to be fairly cured, fell, and it is said that she then by that fall received the injury from which she is now suffering, and that she is not now suffering from the result of the injury she received at the collision.

If the condition of this defendant in error to-day, and as it appeared upon the trial, as shown by this record, was caused by this collision and the company was responsible to the full extent for that injury, then these damages were not excessive.

It is said that there was some misconduct of the jury. The allegation of misconduct of the jury was supported by affidavits, controverted by -other affidavits; and there was no statement in the record -that the bill of exceptions contains all the evidence that was produced and offered upon that motion; hence we can not say the court erred in refusing to grant a new trial for that reason.

Again: It is said that the special questions submitted to the jury were not ¡answered and there was error in the court receiving the questions as answered. We do not think that that is well taken. The jury did answer the questions. One they did not very definitely answer; it related to the question of time, and they said we are unable to say the exact time, but a very short time. We have given .this ease as careful a review as we are able to make, and 'the conclusion is that there is no error apparent upon this record, and the judgment of the court below'is affirmed.

Wilcox, Collister & Parmelee and E. G. Johnspn, for .plaintiff in error.

W. W. Boynton and P. H. Boynton, for defendant in error.


text:
    ENFORCEMENT OF STOCKHOLDERS’ LIABILITY.
    Circuit Court of Franklin County.
    F. M. Marriott v. The Columbus, Sandusky & Hocking Railroad Company et al.

    Decided, September Term, 1907.

      Corporations■ — Statutory Liability of Stockholders — Pleading—Judgment — Appeal—Statute of Limitations — Insolvency—Absence from the Jurisdiction — Allowance of Attorneys Pees.

    1. The indebtedness of an insolvent corporation having been ascertained in an action to assess the liability of stockholders, the averment that the defendants are stockholders but without specifying the number of shares held by each, permits the taking of a several judgment against all who are solvent and within the jurisdiction, the amount of the judgment in each case to be the proportion which the stock owned bears to the entire indebtedness together with costs.
    2. Allowance and payment of attorney fees and other expenses' out of the fund brought into court, does not prevent the prosecution of an appeal; but the appeal can only be taken as against those who have not paid the judgment rendered against them, and is without prejudice to them in the event an additional assessment should be made, and is also without prejudice to stockholders who were not made parties until more than six years after the .right of • action accrued, unless it affirmatively appear that they were in- . solvent at the time of pleading the bar of the statute.

      Dustin, J.; Sullivan, J., and Wilson, J., concur.

       For previous opinions in the same case, see 8 C. C. — N. S., 495 (affirmed by the Supreme Court), and 2 N. P. — N. S„ 231.

   In an action to assess tbe statutory liability against tbe stockholders of a corporation an averment in the petition that certain defendants are stockholders and liable as such is sufficient to warrant proof and judgment for any number of shares in the name of each.

In such action the court is not authorized to render a judgment, without regard to the amount of the indebtedness of the corporation, for an amount equal to the face value of the stock; but after first' ascertaining the indebtedness must render a several judgment against all solvent stockholders within the jurisdiction in proportion to the stock owned by each for a sufficient amount to cover such indebtedness and costs.

The interlocutory order of July, 1905, was afterwards merged in the order of December, 1906, and the two together constituted the final order in the case, from which the plaintiff could not appeal as against such defendant stockholders as had theretofore paid to the receiver the full amount of the judgment against them, although not estopped to appeal from the judgment against the other defendants not paying. Nor shall such other defendants be prejudiced thereby, as any additional assessment must be made upon the same basis as if the stockholders thus released were still before the court, and the loss thus incurred be borne by the creditors. A like rule will be applied to such stockholders as were not made parties until more than six years after the right of action accrued and were therefore released from all liability upon a plea of the statute of limitations, unless it affirmatively appears that at the time of such plea they were insolvent.

The allowance by the court and receipt by the attorneys for the plaintiff of a fee of $15,000 and certain expenses paid out of the fund brought into court through their efforts did not estop plaintiff from prosecuting an appeal.

The defendants, Leroy S. Lincoln and William Huston, were residents of the state of Pennsylvania, and absent from this state when the right of action accrued against them. The period limited for the commencement of the action against them did not begin to run until they came into theNstate or entered their appearance by pleading in November, 1903. The defense interposed is not good as to these two defendants.

6r. H. Steiuart, for plaintiff.

W. 0. Henderson et al, for defendants.

Upon a re-examination of the issues presented by the Pullman Company and George Bellows, we adhere to the former holding of this court that the Pullman Company is liable on 1353.34 shares and that George Bellows is liable as found by the master. We adhere also to our former conclusion as to the stock held by Pomeroy, trustee, and the Sessions estate.

The stock held by the partnership Stearns & Hoover and CHarles Parrott and associates is released from assessment under the defense of the statute of limitations, and as to all other stock not herein referred to, we are in accord with the findings of the court of common pleas, except that the liability of assignors of stock must be governed by the rule stated in the ease of Poston v. Hull, 75 O. S., 502.

We are of opinion that, allowing for insolvency and non-residence of stockholders, the assessment should be fifty per cent, of the face value of all stock not exempt under the rule herein-before stated.


author: Per Curiam.

text:
    A VOIDABLE RECEIVERSHIP.
    Circuit Court of Hamilton County.
    Fred C. Rapp v. Cincinnati Plastic Relief Company et al.
    Decided, November 9, 1907.

      Corporations — Insufficient Allegations for a Receiver — Ratification of the Appointment of, Voidable, When — Section 581/5.

    1. The allegation in a petition for the appointment of a receiver of a corporation that a note, upon which the petitioner is endorser, becomes due on the day of the filing of the petition, does not come within the provisions of Section 5845 for the reason that it does not allege a past due indebtedness, and therefore does not state ground for the appointment of a receiver.
    2. Where the president of the corporation consents to the appointment .of _a receive!1 under such a petition, the error of the- court in naming a receiver is rendered voidable only by the subsequent ratification of the action of the president by the board of directors.
    W. B. Stier, for plaintiff in error.

      A. E. Painter, contra..
   Per Curiam.

The object and prayer of the petition in this case, which was filed by a stockholder and creditor of the company, is not for the appointment of a receiver in aid of some equitable relief, but for the purpose of investing an officer of the court with all the ordinary' duties and powers of the board of directors. The only allegation of the petition that indicates a different purpose is the following:

“The plaintiff further says that he is a stockholder in said company and that he has indorsed one note of $1,000 to the bank, which is included in the $9,000 aforesaid, and which is due and payable May 20, 1907, and that unless a receiver is appointed to preserve the equity in the real estate, the good will and business of said concern, he will suffer irreparable injury..”

The petition was signed and sworn to on the 20th day of May, 1907, and it does not appear from the above allegation nor elsewhere in the petition that the note was past due and unpaid. Hence Section 5845, Revised Statutes, does not apply.

The president of the corporation, as such officer, consented to the appointment of a receiver, and although this act was unauthorized it was subsequently ratified and approved by the board of directors, which ratification related back and gave validity to the original act of the president (21 Ency. of Law, 853).

The court may have erred in the original appointment of a receiver, bu.t it had jurisdiction of the subject-matter and of the person, and hence its action was voidable only.

It does not appear from the evidence that the receiver had such interest in the action as would prevent his appointment.

The judgment will be affirmed.