author: HULL, J.

text:
    MASTER AND SERVANT — NEGLIGENCE — DEFECTIVE MACHINERY.
    [Lucas (6th) Circuit Court,
    January Term, 1905.]
    Hull, Haynes and Parker, JJ.

      John Ziehr v. Maumee Paper Co.
    1. No Recovery for Injuries because Machinery Could not be Thrown out or Gear, where Injury Caused by Pall of Employe.
    The fact that certain parts of a machine were out of repair so as to prevent the operator from throwing the machine out, of gear for the purpose of oiling it, will not be sufficient, on which to predicate a claim of negligence on the part of the master, where it appears that the injuries complained of were caused by the operator slipping on the wet floor and falling against the machinery, and that the accident might have occurred at any- time during his work.
    2. If Injury Caused by Two Concurrent Causes, One the Negligence of a Master, Recovery may be Had.
    If it appear that personal injuries are the result of two concurrent and contemporaneous causes, one of which is the negligence of an employer, both will be regarded as proximate causes of the injury, and a servant thus injured may recover for the master’s negligence.
    3. Master Liable fob Negligent Exposure of Dangerous Machinery, Even if Injury Results from Accidental Pall of Employe.
    Where an injury to a servant was caused by his slipping and falling into the cogs of certain machinery which were exposed by the negligence of the master, the fact that such accidental fall contributed to the accident will not relieve the master from the consequences of his negligence.
    4. Servant not Held to Assume Risk from Appliance under Statutory Regulation Thereof, unless Guilty of Contributory Negligence.
    At the common law, a servant continuing to use dangerous machinery without objection on his part or promise of repair on the part of the master, was held to have assumed the risk thereof; under the statute, however, which requires certain machinery to be covered, and makes it negligence on the part of the master if it is not, a servant will not be held to have assumed the risk thereof so as to bar a recovery, unless he be guilty of contributory negligence.
    Ebror to Lucas common pleas court.

      C. A. Thatcher, for plaintiff in error.
    Doyle & Lewis and J. W. Schaufelberger, for defendant in -error.

      Dismissed in Supreme Court by consent of parties at costs of plaintiff in error 51 Bull. 94.

   HULL, J.

This action was brought by the plaintiff, who was an employe of the defendant, the paper company, to recover damages for personal injuries sustained while in its employ. He was injured while working about a machine called a “beater” which was, among other machines there, used by the defendant in the manufacture of paper. The lower part of this machine appears to have been a sort of tub, in which was put the paper to be soaked up in order to manufacture other paper, and the beater was connected with this tublike arrangement and with the power, and was used in beating up the paper that was put in there into a pulp. At the right and in the tub, at or about the top, were two cogwheels, one large one and the other smaller underneath, used in working the beater; and above there was an apparatus consisting of wheels and shafts, which, when in order, was used to throw the beater out of gear and leave the upper cogwheels,, the large wheel out of the tub and thus stop the beater and separate the cogs so th§y were not ■dangerous, and did not revolve after it was thrown out of gear. These -cogwheels were not covered by guards or otherwise, at the time the plaintiff was injured, and had not been for some six months prior thereto, during which time the plaintiff had worked about this machine.

The plaintiff complains that the defendant was negligent in permitting the upper part of the upper wheels, one of them at least, to get -out of repair and broken, so that the machine could not be thrown out ■of gear, the cogs could not be separated, as they could have been had the upper apparatus been in repair; and complains further that the defendant was negligent in having no guard about the cogwheels.

On the day of his injury he was working about this beater and undertook to oil it, going near it for that purpose. The floor was slippery from water splashing out of this and other machines, so that it was kept slippery all the time, practically; and when near the machine, he slipped on the floor and fell forward, one of his hands going between these two cogwheels. The fore finger of his hand was crushed, so that it had to be amputated, and his hand was otherwise injured. He "bases his claim against the company upon the grounds of negligence ■that I have mentioned.

At the close of the plaintiff’s testimony, upon motion of the defendant, a verdict was directed in favor of the defendant, it being claimed that whatever negligence had been shown, had been assumed? by the plaintiff continuing in the employ of the defendant; and,, further, that the machine being out of repair, and the cogs being uncovered were not, but his slipping on the floor was, the proximate cause of his injury; therefore, the plaintiff could not recover.

The first ground of negligence set forth in the petition was the one in regard to the upper wheels being out of repair, so that the machine could not be thrown out of gear. It was claimed by the defendant that this did not cause his injury; that it could not be said to have caused his injury; and we agree in this contention with the defendant. The plaintiff testifies that when the machine was in repair,, he had it out of gear a large part of the time; that it was not necessary to have the beater in operation more than perhaps a half an hour in every four or five hours. And he gives it as his opinion that if the-upper apparatus had been in repair, if the machine had not been out of repair at the time he fell, he would not have been injured. He says it was usual for him to throw the machine out of gear when he went to oil it when it was in repair; he also says there was one part of the machine that‘he oiled every hour.

We think it is not at all certain that if the upper apparatus— we will call that the gearing apparatus — had been in repair, that it , would have been out of gear at the time he fell. It is largely guess work on the part of the plaintiff, whgn he says it would have been out of gear at that time; he has no certain knowledge on that question. In order to throw it out of gear he had to go near the machine on the side opposite the one on which the cogwheels were. To be sure, in order to-throw them out of gear before he oiled it, it would have been necessary for him to go near the machine; he might have approached the wheel, had thrown it out of gear on the side where the cogs were, and might have slipped and fell into the cogs at the time he was approaching it for the purpose of throwing it out of gear, in order that he might oil it in safety. So that, to say the mere fact that the upper part of the apparatus was out of repair so that he could not throw it out of gear at that time, was the cause of his injury, would be, it seems to us, mere opinion and practically guess work, not a thing of enough certainty upon which to rest a verdict.

Coming then to the second ground of negligence, whether the plaintiff can recover on account of the cogwheels being unguarded or uncovered in any way, whether that was the proximate cause of his. injury; and if so, whether he had assumed it by continuing in the employ of the defendant, it is claimed by the defendant that the unguarded cogwheels cannot be said to be the proximate cause of the injury. It is said that he would not have been injured, had he not fallen.

As far as the floor being slippery is concerned, we cannot see that there was any negligence in that on the part of the defendant. It was-practically impossible to keep' the floor from being slippery in doing the work they were doing.

To entitle the plaintiff to recover, it must be made to appear, of course, that the defendant’s negligence was the proximate cause of his-injury. A case that recently went to the Supreme Court from this county is relied on to some extent to support the contention of the defendant, Milner v. Blickley, 70 Ohio St. 429 [72 N. E. Rep. 1162]. In this case, the judgment of the circuit court was reversed anil that of the common pleas affirmed,' without report. Charles Bliekley, the defendant in error, was walking along Jefferson street in this city, along side of the Milner building, a drygoods store. The Milner Company were using an elevator at the side of the sidewalk, for the purpose of hoisting and lowering goods into the basement, and had left an opening in the sidewalk, guarded only on two sides and not on the front toward the street. Bliekley was walking along in the daytime; the sidewalk was slippery, it was snowy and slushy. At about that point he met three women abreast, and, in undertaking to pass them, he slipped and fell and slid into this hole in the sidewalk and was injured. The court of common pleas, took the case away from the jury and directed a verdict for the defendant. That action of the common pleas court was reversed by the circuit court, for the reason that it must have been held that the hole in the sidewalk was the proximate cause of Bliekley’s injury.

There were, however, two objections made, by Milner Company’s counsel, to the plaintiff’s recovery: first, that that was not the proximate cause of the plaintiff’s injury; second, that Bliekley was guilty of contributory negligence at the time of his injury. Both of these questions were argued in the brief of counsel in the Supreme Court, the question of proximate cause being argued at much greater length than the one of contributory negligence; however, the latter question is argued at some length, and the surroundings discussed; and it is urged that Bliekley was guilty of contributory negligence; that he ought to have seen the hole there, among other things; and we do not feel that we can say that the Supreme Court held in that case that the hole in the sidewalk was not the proximate cause. The' case is unreported; we have no knowledge of what the holding of the Supreme Court was, or the grounds upon which they based their judgment. Therefore, we do not think we ought to consider that case as an authority upon this question of proximate cause. That may have been the ground upon which the Supreme Court decided the ease, and it may not have been. The judges of the Supreme Court may have been divided upon the ground on which the case ought to have been reversed; as to this we have no knowledge whatever; and therefore we feel averse to considering this question in this case, notwithstanding the decision in Milner v. Blickley, supra.

Now it seems to us that the true rule is, as we gather it from the authorities, that where, in a case of master and servant, like this case, the negligence of the master is one of the causes of the servant’s injury, is one of the causes without which he could not have been injured as he was, that the fact that the negligence of a third person is also a cause of his injury, or the fact that some inevitable or unavoidable accident occurring at the same time, was the cause of his injury, or some inanimate object, that, neverthless, if the master’s negligence may be said to be one of the proximate causes of the man’s injury, that the master is not excused, because the negligence of some one else has contributed, as well as his own negligence, or because some accident, some unavoidable accident, happening has also contributed to the servant’s injury, if it appears that without the negligence of the master, the accident could not have happened.

Now it seems to us that this rule laid down in many of the authorities is a just and reasonable rule. Many accidents are caused by two or more concurrent causes. Take Milner v. Blickley, supra. Blickley would not have been injured as he was, if the hole had not been in the sidewalk. To-be sure, his slipping contributed to his injury; if he had not slipped down he probably would not have been hurt. But he was walking along the sidewalk in the ordinary way, as he had a right to walk, and accidentally slipped down as men do upon sidewalks. Suppose some sharp object, an upturned knife of some kind used in machinery had been left upon the sidewalk, and he had fallen upon that and injured himself, it would seem as if a person guilty of such negligence leaving such a thing upon the sidewalk ought not to be excused, because, in injuring himself upon it, or at the time of injuring himself, he slipped upon the sidewalk and fell down. Suppose a man puts a tub of scalding hot water in front of his residence, or molten iron, and his neighbor walking along, when near it, slips down, or a child slips down and falls into such a thing, ought it to be' said there could be no recovery, or any excuse against one guilty of such an act of negligence, because the injured party has been injured while walking along there, and has fallen at that place ? It does not seem to us that that •ought to be the law; that that ought to excuse. If this were true it would be practically impossible to recover from a wrongdoer, or one guilty of such negligence. The case of Lore v. Manufacturing Co. 160 Mo. 608 [61 S. W. Rep. 678], is very much in point. The first paragraph of the syllabus is as follows:

“1. Mill Guards. Failure to Provide. Negligence. A failure to provide guards or fences for the gearing and cogwheels of spinning machines in a -jute manufactory, according to the requirements of the statute, is negligence.”

And it may be said here, which I will discuss a little further along,. there is a statute in this state, in 94 O. L. 42 (Lan. R. L. 7344 et seq.; B. 4364-89c et seq.), requiring machinery of this kind to be guarded and covered, and making it negligence if it is not. The eighth paragraph of this Missouri case is as follows:

“8. Combination of Causes. Assumption of Risk. Where the injury is caused by defendant’s negligence conspiring with an accidental cause, namely, the slipping on the oily floor, of whose condition she well knew, and her falling into a cogwheel of the machine at which she was employed to work through an opening in the guard which the defendant had negligently failed to repair, it will not be held that she assumed the risk of falling on the slippery floor; the facts showing that she would not have been injured by falling had it not been for defendant’s negligence, in failing to provide a guard.
On page 625 of the opinion, the court says:
“If she had not fallen, she would not have been hurt, and, consequently, the fall, caused by the slippery condition of the floor, was the proximate cause of her injury. On this point the circuit court instructed the jury that, if they found the facts to be as stated in the first instruction, it was not essential to plaintiff’s recovery for her to prove that the slippery condition of the floor was occasioned by the negligence of defendant. In a word, the question is raised whether, if the defendant was negligent in allowing the guard around the machine to become and remain out of repair, whereby plaintiff was injured, it can be held liable for that negligence notwithstanding the fact that she would not have received that injury if she had not first stepped on the slippery floor.”

And the court held that she could recover. They say, on page •627, — quoting from another opinion:

“ ‘It is true that, if the plaintiff had not slipped, his limb would! not have been plunged into the hot water tank. It is equally true thatr though he slipped, the disaster would not have overtaken him had not the tank been uncovered. * * * The latter would not have occurred except for the presence and coexistence of both causes. The cause of plaintiff’s slipping was altogether accidental. If it was the sole cause of the injury, the defendant is not liable; but the injury would not have resulted had not another cause combined with the accidental cause. If the plaintiff was in the exercise of ordinary care, and prudence at the time he slipped, and the injury is attributable to the absence of the .cover over the tank, together with the slipping, then the'- plaintiff should recover. ’ ’ ’

And I will say in this case it does not appear that the plaintiff was negligent in any respect in the matter of slipping. He was working on the floor that was provided there and conducting himself, so far as can be seen,- in an ordinary prudent manner.

A somewhat similar question is discussed in Pullman’s Palace Car Co. v. Laack, 143 Ill. 242 [32 N. E. Rep. 285, 291; 18 L. R. A. 215]. The question here rather was, whether the plaintiff could recover for the negligence of a fellow servant, combined with that of the master. That, as I understand, is the established law of this state, that he can recover. But the court discuss the question generally somewhat in the opinion. They say on page 261:

“It is well settled that where the injury is the result of' the negligence of the defendant and that of a third person, or of the defendant, and an inevitable accident or an inanimate thing has contributed with the negligence of the defendant to cause the injury, the plaintiff may recover, if the negligence of the defendant was an efficient cause of the injury. * * * In such case, the negligence of two independent persons resulting in injury to the third, where neither is sufficient within itself, both are to be treated, in combination, as the proximate cause of the injury. It is clear that the negligence of the fellow servant, in and of itself, could not have produced the injurious results suffered by appellee. The negligence of appellant and the fellow servant were therefore concurrent causes, and, combined, were the proximate cause of the injury. An efficient cause is simply the ‘working cause,’ or that cause which produces effects or results. (Webst. Diet.) And a proximate cause is that which stands next in causation to the effect, not necessarily in time or space, but in causal relation. ’ ’

Now it is very clear in this case, at least very probable, almost certain, that the plaintiff would not have been injured by slipping on the floor and falling at this time had these cogs been covered. It was -the cogs that actually inflicted the injury upon him, the cogwheels in -which he threw his hand. The slipping, combined with the negligence of the defendant in leaving the cogs uncovered produced his injury. The question is discussed by the leading text-books. See Thompson’s Negligence, Sec. 3857, page 122, where the rule is stated as to an injury which is the result of the occurrence of several causes. The author says:

“Here, as is other cases, where an injury is the result of several causes combined and concurring to produce it, the master will be liable if he is responsible for any one of Such causes. ’ ’

And further along in the section he says:

“The test is, to consider whether the injury would have happened to the servant but for the negligence of the master, with respect to the ■concurrent act, the omission of the third person. This, where a servant was injured because of the defective appliance which the master should liave repaired, the latter shall not relieve him from liability because -the proximate cause of the accident was the act of the third person, that it would not have occurred but for the failure to repair. "Where, in a suit for personal injuries due to defective machinery, it appears that the defect (insufficiently protected knives) was due to the defendant’s negligence and was the immediate cause of the injury, the fact that the initial and moving cause was the plaintiff’s slipping on the door, in which respect the defendant was not liable, will not preclude ■a recovery.”

And the same doctrine is laid down in the recent work of 2 Labat, Mas. & Serv. Sec. 813, page 2246:

“Where several causes concur to produce certain results, any of -them may be termed ‘proximate’ provided it appears to have been an •efficient cause. The general rule applicable to all such cases illustrating this situation, except those in which the contributory negligence of the ■servant himself is involved, is, that in order to establish his right of action, it is merely necessary to show that none of the co-operating ■causes of the injury was a culpable act or omission for which the master was responsible. This rule holds goods whether the other causes were also defaults for which he was responsible or were due to some event or some condition for which he was not required to answer.”

It .seems to us that these authorities lay down the law as it ought to be and as we believe it to be, that where two concurrent causes, as in this ease, are the immediate and efficient cause of the servant’s injury, you cannot take one of them away from the other, and say that it was the proximate cause and not the other. If it were evident that, the person would not have been injured had not both causes been present, and one is the proximate cause, and may be considered so, as well as the other.

The other important question in this case is, whether Ziehr assumed, this risk by continuing in the employ of the defendant, knowing that the cogwheels were uncovered. At common law and before the passage of this statute to, which I have referred, this would undoubtedly have been true. It is said that where a servant continues in the employ of his master, without .objections, without promise of repair of machinery,, that he is presumed to have agreed to assume the risk by an implied contract on his part that he will take his chances, and if he is injured he cannot recover. It was further claimed, in this case, that Ziehr had made complaint of this machinery and there had been a promise to repair it, and that, therefore, he comes within the rule of such a case. In our judgment, it is not pleaded in the petition that Ziehr had complained of the uncovered cogs, and that the master had promised to repair thqrn. It is alleged that he had promised to repair certain things. They promised that the superintendent would see that the same were repaired. That is the allegation of the petition, and just before that is this allegation: “Plaintiff says that he told the person in charge of said mill who had authority over plaintiff, and who was the' representative of the defendant company in conducting this said business, that such attachments were broken and out of repair.” Now before that the word “attachments” was used with reference to the upper part of this wheel, that is, the roller and the gearing, and. there is no square allegation in the petition that he had made it definitely plain in regard to the cogs, or that the master" had promised to -repair them, and there is no testimony in the record coming ug to that point that he had complained especially of the cogs, or that the master had promised to cover them. He says he complained generally of the machine to the master and 'the master promised to fix it up; but we do not think that the testimony rises to the point necessary to show a complaint of a particular defect in the machine, so far as the cogs were concerned, and a promise to repair them. So that the case comes down to the question whether under this statute he assumed the risk by continuing in the employ of the defendant. The statute is found in the act of March 20, 1900, 94 O. L. 42 (Lan. R. L. 7344 et seq.; B. 4364-89c et seq.), and it provides for, and requires, the covering of such machinery as these cogs. The doctrine of the assumption of the risk is. based upon an implied contract on the part of the employe that he will assume the risk so far as the defect in machinery is known to him, and this implied contract arises from his continuing in the employment. He does, as a matter of law, assume the natural and ordinary risks of the employment, but he does not assume the risk of negligence of the master, ordinarily.

The case of Krause v. Morgan, 53 Ohio St. 26 [40 N. E. Rep. 886] is cited as an authority, notwithstanding a statute of this character an employe by remaining in the employ of the master where he knows the machinery to be defective, does assume the risk the same as he did before the passage of the act. The statute makes a violation of its negligence in itself, by providing that ordinary care shall consist of doing certain things, and the Supreme Court in this case, Krause v. Morgan, supra, say that failure on the part of the master to observe the statute in question in that case was, in itself, negligence. 'We think from a careful reading of that case that the Supreme Court did not decide nor intend to decide that a servant, by remaining in the employ of the defendant where there is a defective machine or something of that character, thereby assumed the risk of .injury therefrom, the same as he did before the passage of such a statute. This case was one against a miner; it was decided before the passage of the act to which I have referred; but by a statute then in force, a miner was required to take certain precautions against fire damp, a highly explosive gas, being in existence in the mine; he was required to have a safety lamp and to make certain inspections. .

In this case of Krause v. Morgan, supra, it seems that Morgan was an employe óf a mine owner, and upon going into the mine one day, was injured by an explosion from fire damp. But the facts in the case, as disclosed by the record, show that Morgan knew or had reason to know that there was fire damp in this mine, knew it was not being properly inspected, but, notwithstanding this, he went into the mine with an open light and was injured thereby. The Supreme Court discussed all these facts; they were discussed in the briefs of counsel, and we think the Supreme Court rested their decision upon the ground that, notwithstanding such a statute as this, one injured must be in the exercise of ordinary care at the time of his injury, to entitle him to recover; that the statute does not abrogate or undertake to wipe out the doctrine of contributory negligence and this seems to be perfectly sound, that similar statutes are not passed to protect a man against his own negligence, but if guilty of contributory negligence, he cannot recover. The court say in the second and third paragraphs ,of the syllabus:

“2. One who voluntarily assumes a risk, thereby waives the provisions of a statute made for his protection. And where a statute does not otherwise provide, the rule requiring the plaintiff in an action for negligence to be free from fault contributing to his injury, is the same whether the action is brought under a statute or at common law.
“3. Under Secs. [Lan. 380 and 384] 298 and 301 Rev. Stat., which require the operator of a coal mine to keep the same free from gas, and to have the working places examined every morning with a safety lamp before workmen are allowed to enter, and give a cause of action to a person injured for direct damage occasioned by any violation or wilful failure to comply with the requirements of the statute, an employe cannot maintain an action against an employer for an injury following such violation, unless at the time he was injured, he was in the exercise of due care.”

Now, while the court say in the first part of paragraph 2 which I have read,'“One who voluntarily assumes a risk thereby waives the provisions of a statute made for his protection,” etc., the keynote of these two paragraphs of the syllabus is that one must exercise ordinary care, notwithstanding such a statute as this, and if he does not, he cannot recover and the expression, £ ‘ One who voluntarily assumes a risk, thereby waives the provisions of the statute made for his protection,” must be construed in the light of the facts of the case; and in the light of the discussion in the opinion and the dominating question in the case, the judge who wrote the syllabus evidently meant that one who assumed such a risk, a man who goes in a mine with an open light,' knowing, or having every reason to know, from what he had seen and heard, there was fire damp in the mine, or probably there was fire damp in it, a man by such conduct as that is guilty of contributory negligence; and he assumes the risk of doing what he did, notwithstanding such a statute as this, and it is the sole question, practically, that is discussed in the briefs of counsel in the case, counsel for plaintiff in error being Day, Lynch and Day — Day being now one of. the judges of the Supreme Court of the United States. Judge Spear says, on page 30:

“The defense was a denial of negligence and omission of duty, and that the injury occurred by reason of the wilful negligence of plaintiff after being warned not to enter the part of the mine where the explosion occurred. Plaintiff, by reply, denied the warning and the negligence.” .

And after discussing the question at length, he says on page 41:

“The text of the act in question furnishes no encouragement to the idea that one who is at fault himself which contributes directly to, and is tbe proximate cause of, the accident, may yet recover because of the previous failure of the operator of the mine to comply with the statute.”

On page 42 of the opinion, Judge Spear further says:

“And we think it still wise to adhere to the old rule that where the injured party knowingly and deliberately assumes the risk that leads him into immediate danger, he ought not to have a remedy for injuries brought on by his own act and arising from perils that are obvious and certain. A safe, and, it seems to us, a humane policy, looking to the prevention of accidents, is to require that all persons engaged in hazardous undertakings shall act up to the standard of due care set by the law.”

Now it is evident, from reading this ease throughout, that it was mot intended by the Supreme Court here to discuss the doctrine of assumed risk technically with respect to this case, and where Judge Spear uses the terms “assumed risk,” hq evidently means that he took his chances and encounters peril at his own risk in going into such a place with the knowledge that this man had. If it had been the intention of the court to discuss the question of whether under such a statute as this a man assumes the risk by continuing in the employ notwithstanding this statute, we think it would have been made perfectly clear. And by that we mean, of course, the ordinary risks, it would not be negligence knowing of these, simply to remain in the employ of the master with defective machinery. There is a difference between :such an act as that and contributory negligence as is said by the Supreme Court in'the case of Van Dusen Gas & Gasoline Eng. Co. v. Schelies, 61 Ohio St. 298 [55 N. E. Rep. 998]:

“1.' A servant assumes anly such risks incident to his employment as will happen in the ordinarily careful management of the business of the master; such as arise from the fault of the master are not assumed, and the servant may recover for injuries therefrom unless his -own fault contributed to the accident.”
“2. One who, as a servant, does that in his employment which he is ordered to do by his master, and is injured by the culpable negligence •of the latter, is not deprived of a right to recover for the injury by the fact, that it was apparently dangerous, if a person of' ordinary prudence would, under the circumstances, have obeyed the order, provided .he used ordinary care in obeying it.”

So that it is not negligence in and of itself to remain in the employ of another and operate a defective machine-— it may be operated in a negligent manner — and the servant is bound to operate it carefully; but whether it is negligence or not, to operate it at" all, is a question for the jury, and if the circumstances are such that an ordinarily prudent man would continue to operate it, as is said in the case I have last cited, it would not be negligence as a matter of law. The difference-between negligence and assumed risk is very often confused. It is pointed out very clearly in a decision of the Supreme Court by Judge Shauek from which I will read a few lines later. It does not seem to-us, following'especially a decision of Judge Taft which I will refer to-hereafter, that continuing in the employ under circumstances as this man did, if in the face of such a statute as this, that by so doing, he assumes, as a matter of law, the risk. This statute was passed for the-protection of employes; it is a penal statute and to hold that the-employe by continuing in the employ of the master under such circumstances, cannot recover against the master, notwithstanding such statute, is to practically abrogate and wipe out the statute. In the case of Narramore v. Railway, 10 O. F. D. 7 [96 Fed. Rep. 298; 37 C. C. A. 499], where a similar question arose, Judge Taft says:

“The doctrine of assumption of risks is based upon an implied contract, and it is contrary to public policy to permit an employe and employer by their own implied contract to abrogate or set aside a portion of a penal statute.”

.Discussing a similar statute, he also refers to this decision of the Supreme Court of Ohio in Krause v. Morgan, supra, and arrives at the conclusion, that the case there was grounded simply on contributory negligence and the Supreme Court did not decide nor intend to decide that an employe under those circumstances, assumed the risk. I will read from this opinion. It was a decision of the circuit court of appeals before Judges Taft and Lurton, circuit judges, and Thompson, district judge. Judge Taft, in delivering the opinion, said, on page 11:

“The only ground for passing such a statute is found in the inequality of terms upon which the railway company and its servants deal, in regard to the dangers ’ of their employment. The manifest legislative purpose was to protect the servant by positive law, because he had not previously shown himself capable of protecting himself by contract; and it would entirely defeat this purpose thus to permit the-servant ‘to contract the master out’ of the statute. It would certainly be novel for a court to recognize as valid an -agreement between two persons that one should violate a criminal statute; and yet, if the assumption of risk is the term of a contract, then the application of it in. the case at bar is to do just that.”

On page 14, quoting from tbe ease of Hesse v. Railway, 58 Ohio St. 167 [50 N. E. Rep. 354], the court say:

“ ‘Acquiescence with knowledge is not synonymous with contributory negligence. One having full knowledge of defects in machinery with which he is employed, may yet use the utmost care to avert the. dangers which they threaten.’ ”

And near the bottom of page 14 he says:

“Assumption of risk and contributory negligence approximate' where the danger is so obvious and imminent that no ordinarily prudent man would assume the risk of injury therefrom. But where the danger, though present and appreciated, is one which many men are in the habit of assuming, and which prudent men who must earn a .living are willing to assume for extra compensation, one who assumes the risk cannot be said to be guilty of contributory negligence if, having in view the risk of danger assumed, he uses care reasonably commensurate with the risk, to avoid injurious consequences.”

It could not be said as a matter of law that a man was negligent if he continued in the operation of a machine where the cogs were uncovered. On page 14, referring to Krause v. Morgan, supra, he says:

“"Where the employe, in spite of a warning from his superior, and in the face of the most palpable danger, exposed himself to certain injury, and then sought to hold his employer liable because he had not employed the statutory methods of protecting him from the danger.”

Before that he says:

“One who does not use such care, and who, by ¡reason thereof, suffers injury, is guilty of contributory negligence, and cannot recover, because he, and not the master, causes the injury or because they jointly cause it. Many authorities hold that contributory negligence is a defense to an action founded on a violation of statutory duty, and this undoubtedly is the proper view. Such is the case of Krause v. Morgan, 53 Ohio St. 26 [40 N. E. Rep. 886].”

As I have said, we feel doubly certain in the construction we put upon the case in Krause v. Morgan, supra, supported by such a tribunal as the circuit court of the United States and in an opinion delivered by Judge Taft. A well-reasoned ease in this state, and construing the case in Krause v. Morgan, supra, is a decision by Judge Littleford of the common pleas court of Hamilton county, Casey v. Rahn-Mayer-Carpenter Co. 12 Dec. 597, in which the court holds that Judge Taft put the proper construction upon that case, in holding that it was not one of assumption of risk, but contributory negligence.

It seems to us that it would practically defeat the purpose of laws of this class to hold that an employe, by continuing in the employ, waived the benefit of this statute, and hold that by so doing he contracted by implied contract with his employer that a penal statute should be waived, abrogated and repealed so far as that is ■ concerned, and that such a holding would be contrary to public policy. As stated by Judge Taft in this opinion such legislation is enacted not only for the protection of employes, but also in the interest of the public or commonwealth who are interested in protecting men from personal injuries, and should be maintained rather than overthrown by the courts.

There are some exceptions taken to the ruling of the court on the introduction of evidence. A -fitness was asked, as appears on page 25 of the record, if it' was practicable to have guards over these wheels. This was excluded by the court. We think this should have been admitted. This was a proper question, and one of the questions in the ease; and that it was error to exclude it. But it appears in other parts of the record that evidence of this kind was admitted, so that error was not very material so far as this record is concerned. But we give our opinion upon it, as the case may be tried again.

We think upon the facts of the case, under the law as we interpret it, the plaintiff was entitled to have his case go to the jury. For these reasons the judgment of the court of common pleas will be reversed.

Haynes and Párker, JJ., concur.


source: Caselaw Access Project

author: WILDMAN, J.

license: Public Domain

text:
    MUNICIPAL CORPORATIONS — SIDEWALKS.
    [Wood (6th) Circuit Court,
    November 25, 1905.]
    Parker, Haynes and Wildman, JJ.
    Arsula Westenhaver v. Hoytsville (Vil.).
    1. Sidewalks in Municipality — How Construction Controlled.
    Sidewalks in a municipality may be constructed under either the statute providing for the improvement of streets, etc. (Rev. Stat. 1536-210; Lan. 3600), or under the special section for the purpose (Rev. Stat. 1536-232; Lan. 3621). Municipalities are thus provided with an alternative procedure in the construction of sidewalks.
    2. Ordinance already Passed may Govern Under Rev. Stat. 1536-232 (Lan. 3621), for the Construction of Sidewalks.
    A general ordinance for the construction of sidewalks having been passed by the council of a municipality before the enactment of the new munici. pal code, including Rev. Stat. 1536-232 (Lan. 3621), no other or special ordinance is required.
    3. Sidewalk Construction not Controlled by Benefits nor Proportion of Cost to Value of Property.
    Under Rev. Stat. 1536-232 (Lan. 3621), the cost of the construction of a sidewalk may be assessed against the abutting property, regardless of benefits. ♦
    4. Evidence — Party Seeking to Enjoin Municipal' Assessment Has Burden of Proof.
    Where a property owner in a municipality seeks to enjoin the enforcement of an assessment against his property for improvements on the ground of irregularity in the procedure for the construction of the improvement and the imposition of the costs, the burden is on the plaintiff to show such irregularity and not on the municipality to show the regularity of such procedure.
    [Syllabus approved by the court.]
    Appeal from Wood common pleas court.
    Taylor & Jones, for plaintiff.
    Baldwin & Harrington, for defendant.
   WILDMAN, J.

(Orally.)

The claims of the plaintiff in this ease, which is an appeal from the court of common pleas of Wood county, are stated in the amended petition. Many of the facts in the case are not disputed. The village of Hoytsville is a municipal corporation in this county and it appears by the pleadings, evidence and concessions, that a sidewalk has been constructed along the east side of the property owned, at the institution of this suit, by the plaintiff, and that she has been assessed for its cost. Believing the assessment to be invalid she declined to pay it, whereupon a penalty was imposed and upon its being certified to the auditor she instituted this suit to enjoin the collection of the assessment and penalty amounting to $204.12. The case involves a question of so much importance, as affecting improvements of this character in other municipalities over the state, that -it would be interesting and perhaps profitable to consider in some detail the authorities' which have been cited in argument. The case may, however, be very briefly disposed of by an an announcement of the construction which we have placed upon the státute under which the improvement was made. In the year 1902, in an extraordinary session of the legislature, a new municipal code was adopted and among other matters therein treated provision was made for improvements of this kind. In 96 O. L. 39, we have See. 50 (Rev. Stat. 1536-210; Lan. 3600) and other sections, providing for the improvement of streets, alleys and public roads in various ways, including, among such improvements, the construction of sidewalks. The petition herein is based upon the theory that this sidewalk could properly be constructed and the cost thereof provided for, so far as the assessing of property owners was concerned, in no other manner than by application of the provisions of See. 50 and those immediately succeeding. The same statute, however, on page 45, contains Sec. 70 (Rev. Stat. 1536-232; Lan. 3621), a part of which I will read:

“The council of cities and villages may provide by ordinance for the construction and repai^ of all necessary sidewalks, or parts thereof, within the limits of the corporation.”

And then follow provisions as to the manner in which the construction of a sidewalk may be provided for; an opportunity given the owner of abutting lots or property to construct for themselves, and in default thereof, providing for the construction by the municipality, and the imposing of the costs upon the abutting property owners.

After as critical examination as .we have been able to give to these various sections, we' are of the view that an alternative procedure was given to municipalities for the construction of sidewalks; that they were not h,eld to the somewhat costly and slow process provided for general improvements under Sec. 50 et seq., but that they might proceed in the summary manner provided by Sec. 70 and sections immediately following it. We are of the opinion also that the proceedings so required have been, in this ease, substantially carried out. It appears that before the adoption of this new code a general ordinance for the construction of sidewalks had been enacted. No special ordinance was passed for the construction of this particular sidewalk, and our judgment is, that one was not required. , - ■

It is asserted in this petition that no opportunity was given, to the owner to build the sidewalk because, it was not pointed out to her what .should.be the grade upon which the sidewalk should be established; that no specifications were furnished her and no opportunity given her to determine just how the sidewalk should be constructed. Our judgment is, that if she complied with the notice given to her and in accordance with all the light given her by the resolution ordering the improvement, the city could not complain if it were in default in any way in not providing her with the specifications for the improvement.

This sidewalk was constructed of brick five feet wide, not along her entire frontage, but along part of it, but even if the entire cost of construction of the walk along her entire frontage had been placed upon .her property we see nothing in this statute which would inhibit such action of the municipality. The statute in this alternative procedure makes no condition that the lands or lots abutting upon the improvement shall be benefited thereby. It seems to be the contemplation of the legislature, that the mere fact that the lots or lands abut upon the .sidewalk, shall be sufficient evidence of benefit to justify the imposition of the cost upon the property. At any rate, there is no requirement in this part of the statute that the council shall ascertain in any way that-the land is benefited, but the statute is express that the council may assess the costs of the improvement upon the abutting lot or lots or lands. ,

It may be that a court of equity, if there was an oppressive use of the power given to the municipality, might by injunction stop the exercise of such power. It may be that a court might have jurisdiction to prohibit a gross abuse of that discretion which is lodged in the legislative power of the municipality. But nothing of that kind ap: pears here. It is urged that this sidewalk was constructed in front of property known as farm land, and that the sidewalk was constructed in such a way that it was of no special benefit to the land along which it lay, by reason of its being so constructed that the water would not flow away from it, but it appears that the council assessed not much more than one-half of the cost of the sidewalk upon this abutting land. The land abutted on'a street running north and south, and a large part of ■the walk, nearly but probably not quite half, in front of the plaintiff’s property was constructed on the opposite side of the street; these two walks were- connected'by a crossing, so that a person could have a continuous sidewalk by using both sides of the street. There is not expressed dn this part of the statute any limitation as to the percentage of the' assessed valuation of plaintiff ’s property which may be charged with the cost of this kind of an improvement.1 But even if the limitation in earlier sections applies, and even if sbe could be charged only with 33 1-3 per cent of tbe entire valuation of ber property for taxation, still there can be no complaint in this case. Tbe amended petition alleges tbe value of the property as assessed for taxation at $1,290; tbe amount of tbe costs here assessed was only $182.32 or, with penalty added, $204.12, considerably less than 33 1-3 per cent of the value of tbe land as appraised for general tax purposes.

Tbe statute subsequently passed in 1904, amendatory of many of these sections, does not greatly aid tbe present inquiry. The sidewalk under consideration was constructed in 1903 and while tbe statute of 1902 was in force as originally passed. There are some provisions in the statute of 1904 which may, however, throw some light upon the construction placed on that of 1902 by the legislature passing the later act; but we think that so far as this question is concerned it does not disturb the view which we have taken. On the contrary, it rather reinforces and strengthens our conviction as to the proper construction to be given to the municipal code of 1902 (96 O. L. 20).

Under the new act in Sec. 73 as amended by 97 O. L. 124 (Rev. Stat. 1536-235; Lan. 3624), it is provided that “No other or further proceedings for the construction or repair of sidewalks, curbing or gutters and levying assessments therefor shall be necessary by the department of public service, or council, than the proceedings required under this and the two preceding sections;” — which would be Secs. 71 and 72 (Rev. Stat. 1536-233, 1536-234; Lan. 3622, 3623). Our judgment is, that this was inserted in the amending section rather for the purpose of relieving any doubts as to the construction of the original See. 73, than for the purpose of changing or modifying the law, ■ in respect to which attention has been called.

In the code of 1902, Sec. 71 provides for a notice to the owners of the abutting property; Sec. 72 provides for the notice to nonresidents or persons not found, and then See. 73 provides that on failure of the owner to construct a walk, the same may be done at his expense, without any qualification as to the benefit it may be, and without any qualification as to the' amount that may be assessed. The provision is, that the cost of the walk may be assessed. Whether the limitation as to amount of assessment found in other sections applies, we do not find it necessary to decide. .

In the latter part of Sec. 73, it is provided that the “expense shall be assessed on all the property bounding, or abutting thereon, and shall be collected in the same manner, with a penalty of 5 per centum and interest after failure to pay at tbe time fixed by the assessing ordinance as in other cases of improvements.”

Now, as to general improvements provided for by Sees. 50, 51, 52, 53, etc., there was a provision for the manner in which the costs of the same should be paid. Section 51 treated of the method in which the assessment could be paid and of the issue of bonds in anticipation of such payment and provided that, “The county auditor shall annually place upon the tax duplicate the penalty and interest.”

Now the very fact that, in this provision as to the cost of a sidewalk constructed under a resolution where the whole cost is placed upon the property, no provision is made that that cost shall be- assessed in the same manner as other costs, leads to the inference that the understanding of the legislature was, that this enactment was a proceeding independent of the other; otherwise it would not have been necessary to make this provision as to the certifying and collecting of the assessment for the cost of improving a sidewalk under Secs. 71, 72 and 73.

Our view of the whole matter is, that the plaintiff, upon whom the burden rested, to show irregularities and defects in the proceedings for the construction of this sidewalk and the imposition of the costs, has not sustained that burden by the evidence; that the theory which has been the basis of this action is not tenable; that the council did not proceed under See. 50 and those immediately succeeding, but under the other sections to which reference has been made. We do not adopt the contention that it is incumbent here for the defense to show all their procedure for the construction of this sidewalk and the assessing of these costs; the burden, in our judgment, does not rest upon the municipality, but whatever defects are claimed by the plaintiff should be pointed out and proven to the court, under the denials made in the answer of the defendant. Our conclusion is, that the injunction asked for should be refused; that the petition of the plaintiff should be dismissed, and judgment rendered against the plaintiff for the costs.

Parker and Haynes, concur.


text:
    NEGLIGENCE — VERDICT.
    [Wood (6th) Circuit Court,
    November 29, 1905.]
    Parker, Haynes and Wildmqn, JJ.
    Toledo, B. G. & S. Trac. Co. v. Geo. McFall.
    1. Ordinary Cabe oe Passengers Distinguished in its Application to Aged and Young Passengees.
    In the exercise of care commensurate with the circumstances and danger to he apprehended, a railway company is required to give greater attention to its aged and. infirm passengers than to passengers of younger years and greater physical capacity. The fact that a man was so old and feeble as to require the assistance of a conductor and others to enter one of its cars and be placed in a seat, coupled with .his request to the conductor that the latter afford him sufficient time to alight, is notice to an interurban railway company which will render it liable for starting its car without affording him reasonable time to alight in safety.
    2. Drawing Pension foe Total Disability not a Defense to Action foe Personal Injuries.
    An interurban railway cannot defeat a claim for damages in an action against it for negligence on the ground that the plaintiff was drawing a pension for total disability and was traveling alone and unattended, if the plaintiff exercised such care as men in his condition of mind and body would ordinarily exercise under like circumstances.
    3. Verdict not Excessive.
    A verdict of $1,200, recovered by an old man in an action for personal injuries aggravating chronic condition of diarrhoea from which he suf- ■ fered, causing great mental suffering and delirium, and being put to great expense for medical attention, the exact amount of which could not be estimated, is not excessive and will not be set aside in the absence of any showing to indicate passion or prejudice of the jury.
    [Syllabus approved by the court.]
    ERROR to Wood common pleas court.
    J. A. Bope and J. O. Troup, for plaintiff in error.
    W. H. McMillen, for defendant in error.
   WILDMAN, J.

(Orally.)

In this case a petition in error is filed in this court to reverse the judgment of the court of common pleas of Wood county, the petition alleging the general grounds for error found in this class of cases, the case being one for the recovery of damages for personal injury. A motion forva new trial was filed in the court below, which was overruled, and the overruling of it is made one of the grounds of error. It is claimed that the verdict is against the weight of the evidence; that it is excessive, and that the court erred in refusing to give an instruction asked for by the defendant below, .the plaintiff in error here.

The case was brought by George W. McFall against the traction company, alleging- that on January 20, 1904, it was the owner of a line ■of railway, operating electric ears, between the city of Findlay in Hancock county and the city of Toledo, passing -through divers villages named ,in the petition, among which was the village of North Baltimore. It is said that the line entered. North Baltimore on its way north from the east part of the village on Water street, thence going north on Main -street. It is alleged that on the date named, the plaintiff was a passenger on one of the defendant’s northbound cars, having boarded the car as a passenger on Main street.in the city of Findlay, at about 3 o’clock in the afternoon, paid his fare to North Baltimore where he then resided; that he arrived at North Baltimore about 4 o’clock in the afternoon and that the car stopped on the south side of Railroad street at the intersection of Main street and said Railroad street, for the purpose of letting plaintiff and other passengers off; that the place where the car stopped was a regular stopping place for the letting off. and taking on of passengers; that a number of passengers alighted from the ear and plaintiff attempted to do so and thus incurred the injury which is made the basis of the action. x

About the same time, and before the car had fairly started, the conductor of said car, it is averred, in disregard of his duty as such, and ■without paying any attention to plaintiff and the othér passengers, and without stopping to see that they got off sáfely before said car was -again started, left said car and ran north bn the east side thereof to a' point on the east side' of Main street and immediately north of the main track of the Baltimore & Ohio railroad, where á derailing post is located, a distance of about a hundred feet from where the ear stopped, for the purpose of pulling the lever on said derailing post in case the way was -clear on said Baltimore & Ohio railroad, and allowing defendant’s ear to come north across the tracks' of said Baltimore & Ohio railroad. As soon as said conductor of said ear reached said derailing post, without looking back to his said car, although he then and there had a clear and unobstructed view of the same and of the rear end thereof on the -east side' and without giving plaintiff a reasonable and sufficient length of time to descend from said car, he pulled said lever and motioned to the motorman of said car to come ahead, and thereupon said car was immediately started. '

Plaintiff avers that 'he was an old man, somewhat feeble in health, .-and slower than'the ordinary person in his movements, of all which the said conductor had full notice and knowledge at the time plaintiff became a' passenger on said car at'Findlay and thereafter. The petition alleges that' at that time there was slush and snow and ice on the streets of North Baltimore and some had accumulated on the rear platform of the car; that he attempted to get off the ear on the right and east side of the ear, and at the rear end, where the other passengers who had preceded him had gotten off, and was carefully descending the steps of the car and about to step on the street, when the car was started as aforesaid, and he was thrown violently to the brick-paved street, thereby seriously bruising and wounding him on the head and on his shoulders- and back and hip, and thereby causing him to receive and suffer a severe physical and mental shock, and he claims damages for this in. the sum of $5,000.

lie alleges that all this was without fault on his part, and he says further that prior to the stopping of the car he notified the conductor that he wished to get off at said crossing and requested the conductor not to start the car until he got off safely; but that the conductor in disregard of plaintiff’s right and his said request and in disregard of his duties as such conductor, and, by reason of his negligence, caused plaintiff to be thrown from the steps of slid car and injured.

The answer, which I will not stop to read, denies any negligence on the part of the traction company and avers contributory negligence on the part of the plaintiff. •

The first question to be considered is whether the claim of negligence as against the defendant company is so far sustained by the evidence as to justify the finding of the jury in favor of the plaintiff. The jury rendered a verdict for the sum of $1,200, which the court below, in overruling the motion for a new trial, permitted to stand.

Among the items of evidence in the case was a deposition of the plaintiff, in which he testified as to his recollection of the transaction, and, among other things, 'he says that when he entered the car he was. helped into it by one or two parties named, and it appears also further in the deposition that the conductor himself rendered some assistance-in placing him in, or taking him to, a seat. He says:

“I told the conductor I guessed I would get off here and that I did not want him to start the car until I was off as I had seen several parties throwed there by the car starting before they were off.”

Now the latter part of this answer is of no consequence, but the statement that he told the conductor that he desired to alight from the ear at this place and wished to have sufficient time to get off, coupled with, the observation which was open to the conductor as to his age and condition, were fairly to be taken into account by the jury, as matters which invited the attention' of the conductor, to the necessity and duty of using proper precaution to avoid injury to the old man. He was. not altogether helpless, but while able to move about, to walk, and get on the car and probably to alight without assistance, his condition was still such that it would seem to demand something more than the attention that would b"e properly given to an ordinary passenger of younger years and greater physical capacity.

There is some disagreement in the evidence as to the precise manner in which the old man received his injury. The ear was started as he was either entirely off the car so far as his feet were concerned, or, while one foot was on the lower step and his hand still on one of the handrails in apparent attempt to steady himself in alighting. It does not seem to the court that it is of very much consequence what was the precise method in which he received the injury, if his fall was caused by the negligent starting of the car. Whether he had his hand upon one rail or the other; whether his feet were entirely disconnected from the car or not, are not matters of great moment, if he was still so in contact with the car with either hand or foot upon it that the sudden moving of the car was likely to throw him to the ground and cause an injury. It is not strange that witnesses do not remember such matters precisely alike. Not only may there be variations in memory, but opportunities for observation are not precisely alike. The witness who described Mr. McFall as falling backward and just before the fall having still one foot upon the lower step of the car, seems to have had better facilities for observation than the witness who testifies that the old man was entirely free from the car so far as his feet were concerned. There was one other witness who was not sure whether his feet were upon the ground entirely or not. But as I say, that is not of great moment. The main question is, whether the conductor used the care which should have been used by a conductor in charge of a car in the protection of the passengers upon his car, towards whom the company owed the duty of protection.

While the company was held to only ordinary care, that care should be commensurate with the circumstances and with the danger to be apprehended, and manifestly some higher degree of care, — not of a different kind but care commensurate with the danger, such as should be accorded to a man of infirm body and old age.

Ther'e is another question in this case. The plaintiff in error argues, substantially, that the fact that McFall was receiving a pension for total disability, is evidence of negligence on his part; that he ought not to have been traveling alone and unattended; that he was in . such condition that he should have had a constant attendant, and that the pension. would never have been allowed except for that necessity. That is a matter between him and the government. 'If he: has been receiving a pension for more than he would be entitled to, manifestly, the company ,could not recoup for that fact. It is but evidence bearing upon the question as to, the extent of his disability and on the claim of contributory negligence. But even if he were negligent in this respect as claimed, if the conductor knew the fact that he had no attendant and saw his condition, he was guilty of negligence -in not caring for him. We do not think that if before that time the plaintiff; had been guilty of negligence in entering the ear, it would be such contributory negligence as would bar a recovery, under the circumstances.

'Now, without going further'into the details of the’ease, so far as the question of negligence is concerned, it is sufficient for us to say that we think the verdict of the jury whs justified by the evidence. There was nothing to indicate to their minds that the old man failed to exercise such care as men in his condition of mind and body would ordinarily exercise under like circumstances, but on the other hand we think that the evidence did fairly tend to show that the conductor did not, pay sufficient attention to the condition of this old man and the difficulty he-might have in alighting from the car, and that the conductor too hastily notified the motorman to move ahead with the car.

The only question remaining is as to whether the court properly-instructed the jury, or properly refused a special request for instructions asked by plaintiff in error, and also as to whether the damages were excessive.

The defendant below gave three requests for instructions; two of them the court gave and we think that the charge of the court on the whole was sufficiently favorable to the defendant. The court charged as to what would be ordinary care; that is, he defined it. There was no instruction as to the duties of the railway company to its passengers, generally, but there was one paragraph defining the duty of the conductor as to a man of infirm body and old age. We think that it was a fair charge. So far as the refusal to give one of the three instructions is concerned, that request was so complicated that we think that the court was justified in its refusal as misleading to the jury, and. that in tlm second request asked and given, the defendant obtained all to which it was justly entitled.

It was urged upon the court, in oral argument and in brief, that the damages were excessive. This old man had been afflicted for many years, probably ever since his service during the war, with chronic diarrhoea, and one of the claims was, that that disease had been' very much aggravated by this injury, so that he was no longer able to control the action of his bowels. There is evidence given by the wife of McFall and also by a girl who was employed in the household that, ever since-the injury, his mind seemed to be affected seriously, and indeed, one of the physicians who testified in the case, says that he had delirium. The-extent of the injury is'not very easy to determine with exactness. The amount of pain that the man suffered, mental and physical, was proper to be considered by the jury in view of the general claim of damage, and in addition to all this there was a claim in the petition that he had incurred medical expense necessitated by the injury to the extent of $150. The doctor who testified as to services rendered after the injury, stated that his fees might amount to $200, although he was not very definite as to just the time of the treatment. Whether the estimate covered any service before the injury and not made necessary by it may be a question. Considering all the circumstances we see no reasons for disturbing the verdict upon the ground that it was excessive. Surely there is nothing to indicate passion or prejudice. It is true enough that the sympathies-of the jury might well be aroused by the circumstances of the case, but they do not seem to have been led into any extravagance in the assessment of damages. The judgment of the court is, that the verdict below should stand and the judgment of the court of common pleas be affirmed.

Parker and Haynes, JJ., concur.


author: VOORHEES, J.

text:
    JUSTICE OF THE PEACE.
    [Morrow (5th) Circuit Court,
    June Term, 1903.]
    Voorhees, McCarty and Winch, JJ.

      Bushnell v. Koon et al.
    Justice or the Peace — Teem op Oppice Limited to Three Years prom Date op Commission — Judgment Rendered During Interim op Terms Void.
    S D B was elected a justice of the peace in and for Gilead township, Morrow county, Ohio, on day of April 4, 1899; he was commissioned as such justice on day of April 12, 1899; he took the oath of office on day of April 18, 1899; and gave bond as such justice on day of April 24, 1899. He was re-elected justice of the peace on day of April 7, 1902, and was commissioned on day of April 25, 1902. He took oath as justice of the peace on day of April 28, 1902, and gave bond on day of April 30, 1902. The judgment sought to be enjoined in this action was rendered by him on day of April 15, 1902, on a hill of particulars filed prior to April 12, 1902. Held:
    (1) That the term of office of justice of the peace is limited to three years from date of commission;

      (2) That a judgment rendered during interim of terms is void and of no effect, and ought to be enjoined.
    [Syllabus by the court.]
    BrroR to Morrow common pleas court.
    Mitchell & Bruce, for plaintiff in error.
    L. K. Powell, for defendant in error.

       Affirmed, without report, Koon v. Bushnell, 71 O. S. 521.

   VOORHEES, J.

The plaintiff’s action is one for equitable relief, to enjoin the defendant Henry C. Koon from enforcing a judgment rendered in his favor against the plaintiff by his codefendant Samuel D. Bush, acting in the capacity of justice of the peace, at the time the judgment in question was rendered.

The contention of the plaintiff, as presented in his petition and by an agreed statement of facts submitted to the court, may be briefly stated, as an action on the part of the plaintiff to enjoin the defendants from enforcing a void judgment. That the defendant Bush is threatening to issue an execution on the judgment claimed to be void by the plaintiff, and that both of the defendants are irresponsible and insolvent, and, therefore, he has no adequate remedy at law and would suffer irreparable injury if this judgment was enforced in the way that it is threatened to be done, by execution; and, in order to restrain the defendants- from thus seizing his property, this action is brought by the plaintiff.

The real question in the case, as shown by the agreed statement of facts and as presented to the court is, whether, at the time this alleged judgment was rendered, the defendant, Bush, was a justice of the peace. If he was a justice of the peace then it is conceded the judgment was regular, and this plaintiff could not maintain this action; otherwise, the judgment was null and void and plaintiff has a cause of action. The real issue presented is, when does the term of a party who has been elected to the office of justice of the peace commence, and when does it expire?

Section 9, Art. 4 of the constitution, provided that the term of office of a justice of the peace shall be three years, but the date for the beginning of the term is nowhere expressly fixed either in the constitution or by statute. It is not provided, either by the constitution or by statute, that the office of justice of the peace may continue until his successor shall be elected and qualified; that is not a provision of the law, except in case of appointment to fill 'a vacancy, as provided in Rev. Stat. 567 (Lan. 899) of Ohio. But it is definitely fixed that his term of office expires at the end of three years from the time it commences to run; and the legislature has no power to extend the term or tenure of such office beyond the time so limited. State v. Howe, 25 Ohio St. 588 [18 Am. Rep. 321]; State v. Brewster, 44 Ohio St. 589 [9 N. E. Rep. 849]. The question that we have to determine here is, when does it commence?

There are certain things that are necessary in order that a person may be qualified or clothed with the authority of a justice of the peace. He must be elected to the office; he must be commissioned by the governor of the state; when commissioned he must forthwith take and subscribe the necessary oath appertaining to the office; and, finally, he must give bond as required by the statute. Revised Statutes 83, 579 (Lan. 102, 911).

Revised Statutes 83 (Lan. 102) provides:

“Each judge of the Supreme Court, * * * and justice of the peace, * * shall be ineligible to perform any of the duties pertaining to such office until he shall receive from the governor a commission to fill such office, upon producing to the proper officer or authority a legal certificate of his being duly elected or appointed.”

Revised Statutes 579 (Lan. 911), provides:

“When a person is elected to the office of justice of the peaces and receives a commission from the governor, he shall forthwith take and subscribe the necessary oath appertaining to the office, before the clerk of the court of common pleas of his county, who is authorized to administer the same, or before a justice of the peace of his county, who shall, within ten days, transmit the oath to the clerk aforesaid, who, in either case, shall file the same, and make record of it in a book provided for that purpose; and each justice of the peace so qualified shall, before he is authorized to discharge any of the duties of his office, and within ten days after taking the oath, enter into bond, to be approved by the trustees of his township, payable to the state, with at least two sufficient sureties, with a penalty of not less than one thousand nor more than five thousand dollars at the discretion of the trustees, to be deposited with the township treasurer, unless the township treasurer is the justice elect, then with the township clerk, conditioned that such justice shall well and truly pay over, according to law, all money which shall come into his hands by virtue of his commission, and also that he shall faithfully perform every ministerial act that is enjoined upon him by law; and •on refusal or neglect to enter into such bond, the office shall be deemed vacant, and the trustees shall give notice of a new election to fill the vacancy. ’ ’

Judge Swan in his Treatise, Chap. I, Sec. 5, under the heading of “Term of Office of Justices of the Peace,” says: “By the constitution, the term of office of justices of the peace is limited to three years. The three years are computed from the date of the commission.” The author gives as authority for his statement, that the three years are computed from the date of the commission, Sec. 581 Rev. Stat. (see now Lan. 913), which provides:

“Every justice of the peace, when commissioned, shall, in thirty days thereafter, transmit the date thereof to the clerk of the township, who shall make an entry thereof in a book by him to be provided for -that purpose, and before the first day of February of each year, the clerk shall give a written notice to the trustees of all commissions expiring within twelve months after the first day of April following, and the date when each such justice’s commission will expire, and the trustees, on receiving such notice, shall notify the electors of such township to elect at the next regular spring election thereafter, a justice of the peace to fill each such vacancy, in the manner pointed out in Sec. 567 [Lan. 899].”

We think it is implied from this section, though not expressly stated, that the legislature intended the date of the commission should govern in determining the expiration of the term of office of a justice of the peace and for the giving of notice of election to fill vacancies.

It was said by Judge Hitchcock, in State v. Constable, 7 Ohio (pt. 1) 1, on page 11, that,

“When no day is mentioned in the law from which the term of service shall commence, it must commence from the day of election. Any other construction would' lead to this absurdity, that the officer elect would have it in his power to fix the commencement of the term of service for himself and his successor, at any time he should think proper to qualify.”

This was not a case of a justice of the peace, and we think the reasons assigned by Judge Hitchcock do not apply to such officer. From experience we know that it is impossible for an officer to be elected and commissioned on the same day; and further, if the term of office commences on the day of election the term of a justice may not have expired at the time of the election of his successor, and, therefore, there was no vacancy on the day of election, and two officers would then be qualified for .the same office — one, because his term of three years had not expired, the other, because he had been that day elected to that office. Also, it would be possible, and at times an unavoidable necessity, that there be an interim between the expiration of term of one justice and the election of. his successor, which woxdd occur when the date of election is Subsequent to that of the expiration of the first term.

We think that Rev. Stat. 581 (Lan. 913) clearly implies that the term of office of a justice of the peace commences on the date of his commission, and continues for three years from-that date.

The case of State v. Pollner, 10 Circ. Dec. 141 (18 R. 304, 310) refers to the commencement of the term of office of mayor. In the report of that case it appears that at the annual election held on the first Monday, the third day of April, 1899, John H. Farley was elected mayor of the city of .Cleveland by a popular election; that on April 10, 1899, being the second Monday of April, he took the oath of office as mayor of the' city of Cleveland at 10 o ’clock a. m., and at the same time prepared and filed a good and sufficient bond as such mayor. It was not considered by the court that municipal officers, such as mayor, should be commissioned as provided by Rev. Stat. 83 (Lan. 102), and we understand the practice to be that such officers are not commissioned, but that it is only required that their election be duly certified, and they take the oath of office and give a good and sufficient bond as such officer. We do not consider this case as applicable to a justice of the peace, and, therefore, are inclined to adopt the statement of Judge Swan as the rule for determining when such term commences.

In this case, as presented by the agreed statement of facts, Bush was elected justice of the peace April 4, 1899. He was commissioned on April 12, 1899; he was sworn in on April 18, 1899; he gave bond as justice of the peace on April 24, 1899. He was re-elected April 7, 1902; he was commissioned on April 25, 1902; he was sworn in on April 28, 1902, and gave bond on April 30, 1902. On April 15, 1902, the action, wherein the judgment complained of was rendered, was tried before this man who was assuming to act as justice of the peace. His first term of office terminated on April 11, 1902, at midnight, and his second term did not commence until the date of his second commission, which was April 25, 1902. His first term of office having terminated at the time he undertakes to do this act, that is to render this judgment, and not having been commissioned for his second term and not having complied with the requirements of the statute to clothe him with authority of a justice of the peace, he was without any authority as such official. If the language of the statute were, that he should discharge the duties of his office until his successor was elected and qualified, then it would be a very different case, and during the interim he would be clothed with authority and power to do the same act as he could before; his successor was qualified. But suppose this man had not been his own successor, and after being elected to the office of justice of the peace and before he was commissioned as such or qualified himself by giving bond and taking the oath of office, he undertakes to render a judgment in an action? He would be absolutely without authority or power to do so, and his. act would be void.

We, therefore, hold that this party, who assumed as justice of the peace to render this judgment at the time he did, had no authority to render a judgment; and the judgment so rendered is absolutely void. The effect is this, that the judgment the defendant Koon obtained was a void judgment, and he is seeking to enforce it against the plaintiff on execution, which gives plaintiff a right to come into a court of equity and enjoin the collection of such judgment by execution or otherwise. It is not material whether the party attempting to enforce such judgment is insolvent or not; a party who undertakes to enforce a void judgment can be enjoined from so doing irrespective of whether or not he is insolvent.

We think, that the plaintiff is entitled to have this injunction made perpetual; and that will be the decree of the court. The defendants are enjoined from enforcing or attempting to enforce this judgment, and it will be at the costs of the defendants.

Injunction made perpetual.

McCarty and Winch, JJ., concur.


author: WINCH, J.

text:
    LATERAL SUPPORT.
    [Summit (8th) Circuit Court,
    September 30, 1905.]
    Marvin, Winch and Henry, JJ.
    Hannah E. Belden v. Walter A. Franklin et al.
    1. Right to Lateral Support is a Property Right which cannot be Tables' Awat bt Statute.
    The right of the owner of realty to lateral support is not a mere easement but is property right, and if the effect of a statutory provision is to - abrogate the common-law rule with reference to existing rights, such provision is unconstitutional and void, as being in contravention of Art. 1, Sec. 19, and Art. 2, Sec. 28 of the constitution. (
    2. ComMon-law Rule as to Lateral Support Enlarged by Rev. Stat. 2676 (Lan. 3966).
    The effect of Rev. Stat. 2676 (Lan. 3966), relative to injuries caused by excavations, is to amplify the common-law rule as to lateral support, so as to create a liability for removing the lateral support of buildings, where an excavation goes more than nine feet below the street grade. It does not modify the common-law rule as to the lateral support of tbe soil itself.
    [Syllabus approved by the court.]
    Appeal from Summit common pleas court.
    Musser, Kohler & .Mottinger, for plaintiff:
    Statutes cited and construed. Rev. Stat. 2676, 2677, 4948 (Lan. 3966, 3967, 8463; B. 1536-976, 1536-977); 97 O. L. 323. .
    Lateral support. Cooley, Torts (2 ed.) 706; Richardson v. Railway, 25 Vt. 465 [60 Am- Dee. 283]; Gilmore v. Driscoll, 122 Mass. 199 [23 Am. Rep. 312]; "Wier’s Appeals, 81 Pa. St. 203; 12 Am. & Eng. Ene. Law 933; Tiedeman, Real Prop. See. 618, pp. 590, 591; Elshoff v. Deremo, 5 Dee. 119 (3 N. P. 273) • Hall v. Kleeman, 6 Dec. 323 (4 N. P. 201) ; Joyce v. Barron, 67 Ohio St. 264 [65 N. E. Rep. 1001]; Burgner v. Humphrey, 41 Ohio St. 340; Keating v. Cincinnati, 38 OMo St. 141.
    Construction of statutes. Endlich, Interpretation of Statutes Sec. 127; Thompson v. Weller, 85 Ill. 197; Tinsman v. Railway} 26 N. J. Law 148 [69 Am. Dec. 565]; People v. Palmer, 109 N. Y. 110 [16 N. E. Rep. 529; 4 Am. St. Rep. 423]; Howe v. Peckham, 6 How. Pr. 229; Heishell v. Baltimore, 65 Md. 125 [4 Atl. Rep. 116]; Day v. Allender, 22 Md. 511; Dean v. Railway, 119 N. Y. 540 [23 N. E. Rep. 1054]; 23 Am. & Eng. Enc..Law(l ed.)386; 1 Kent’s Commentaries 464; Bandfield v. Bandfield, 117 Mich. 80 [75 N. W. Rep. 287; 40 L. R. A. 757; 72 Am. St. Rep. 550]; 7 "Wright, Rem. & Pr. Sec. 3773, p." 5926; Burnside v. Whitney„ 21 N. Y. 148; Hag gelt v. Hurley, 91 Me. 542 [40 Atl. Rep. 561]; Krause v. Morgan, 53 Ohio St. 26 [40 N. E. Rep. 886]; Felix v. Griffiths, 56 Ohio St. 39; [45 N. B. Rep. 1092]; Sutherland, Stat. Constr. Secs. 139, 290, 291.
    Rogers, Rowley & Rockwell, for defendants.
   WINCH, J.

This ease was heard upon appeal, and is an action in which plaintiff asks that defendants be enjoined from removing the lateral support .from, or undermining, or entering upon, plaintiff’s premises, or removing sand and gravel therefrom.

The case was tried upon an agreed statement of facts, from which it appears that the parties own adjoining unimproved lots on North Howard street, in the city of Akron, near the top of North Hill, which are elevated high above the grade of Howard street'; that for several years just prior to the filing of the petition herein, defendants were ■operating a sand and gravel bank or pit upon their own property, and in so operating said bank just prior to the commencement of this action and afterwards up until the filing of the amended and supplemental petition, defendants so removed the lateral support from, and undermined a large portion of plaintiff’s property, that they caused plaintiff’s land for some distance above the established grade of North .Howard street and to a distance substantially more than nine feet below Esaid established grade, to slip and slide from plaintiff’s land upon defendant’s land. It also appears that both proprietors trace their titles to a common owner, who divided and sold the lots separately in 1863, and that they have continued as separate and distinct estates ever since.

Under these facts plaintiff claims that defendants have no right to remove sand or gravel from their own premises in such manner as will ■cause the sand and gravel upon plaintiff’s premises to slide or slip nip on the lands of defendants.

Defendants, on the contrary, claim that by virtue of Rev. Stat. 2676, 2677 (Lan. 3966, 3967; B. 1536-976, 1536-977), they have a right to excavate to a depth of nine feet below the established grade of Howard street, upon which the lots abut, or at least to the grade level of Howard street.

The doctrine of lateral support is thus stated by Cooley, Torts (2 ed.) 706:

“Incident to the ownership of land is the right to lateral support ;by the land which adjoins it. This exists independent of contract, and -.to remove it, or to do anything which endangers it is to commit a nuisance. 3 Whoever in the course of improvements on his own lands may .bave occasion to make excavations which, endanger the land of his .neighbor, must supply walls or other sufficient substitutes for the support which he removes.] But his obligation is limited to the support ■of the land in its natural condition; and if the neighbor’s land shall be weighted with buildings or other burdens, the owner of the servient tenement, in removing lateral support, can be held responsible only for such consequences as would have followed if the' land had not been thus weighted.”

This common law rule has never been abrogated in Ohio, as will be seen by the following quotation from the opinion of Judge Spear, on page 270, of the case of Joyce v. Barron, 67 Ohio St. 264 [65 N. E. Rep. 1001].

¿‘JThe right of lateral support is held to be, not a mere easement, but as part of the owner’s property in the land.J It is regarded as a right of property which necessarily and naturally attaches to the soil, and passes with it. As stated by Dickman, J., in Burgner v. Humphrey, 41 Ohio St. 340: ‘According to the doctrine held by the courts, as summarized by an approved text writer [Wood’s Law of Nuisance] the right which the surface has to support, is a part of the freehold .and not an easement.’ That the right exists as against municipal corporations as well as individuals is distinctly recognized in Keating v. Cincinnati, 38 Ohio St. 141, where White, J., remarks: ‘In this .state private property is entitled to the same protection against all ■classes of corporations as against natural persons, subject to the fight of appropriating such property to public use upon the terms of making full compensation,’ and, applying the principle, the court sustained a judgment awarding compensation to the plaintiff because the city, in making a street along a hillside, so excavated the ground in the street .as to cause the land above to slide and injure his lot. ’ ’

But defendants claim that this rule has been modified by the statutes referred to, which read as follows: Revised Statutes 2676 (Lan. 3966). “If the owner or possessor of any lot or land, in any city or village, digs, or causes to be dug, any cellar, pit, vault, or excavation, to a greater depth than nine feet below the curb of the street or streets-on which such lot or land abuts, or, if there be no curb, * * * below the surface of the adjoining lots, and by such excavation, causes any damage to any wall, house, or other building upon the lots adjoining thereto, such owner or possessor shall be liable, in a civil action, to the party injured, to the full amount of the damage aforesaid.

Revised Statutes 2677 (Lan. 3967). “Such owner or possessor may dig, or cause to be dug, any such cellar, pit or excavation, to the full depth of any foundation wall or any building upon the adjoining lot or lots, or to the full depth of nine feet below the established grade of the street or streets whereon such lot abuts, without reference to the depth of adjoining foundation walls, without incurring the liability prescribed in this chapter, and may, on thirty days’ notice to adjoining owners, grade and improve the shrfaee of any lot to correspond with the established grade of the street, streets or alley, upon which such lot or land abuts, without incúrring liability.”

We are of the opinion, however, that by Rev. Stat. 2676 (Lan.. 3966) the rule has been amplified, and not modified, and that the statute creates a liability for removing the lateral support of buildings, where the excavation goes more than nine feet below the street grade, which liability did not exist before.

Revised Statutes 2677 (Lan. 3967), until 1894, did not have in it the, last clause, which reads, “and may, on thirty days’ notice to adjoining owners, grade and improve the surface of any lot to correspond with the established grade of the street, streets or alley, upon which such lot abuts without incurring liability.”

Defendants claim that this clause has destroyed the right to lateral support of land which rises above the grade of streets in cities ,and villages. If so, under the case of Joyce v. Barron, above quoted, it has-taken away a property right. That it has not removed the city’s duty to furnish lateral support to abutting lots is apparent from the same case; for, if so construed, it would be contrary to the provisions of' Sec. 19, Art. 1 of the constitution, which provides that private property shall ever be held inviolate, and shall not be taken for public use without compensation. ¡ The power of the legislature to enact a law abrogating-the common law rule of lateral support, in other words, to say, “private-ownership of property rights known as lateral support, is hereby abolished,” need not be argued, but if it were sought to extend the operation of such law to existing estates and rights, we apprehend it would be considered retroactive and inhibited by Sec. 28, Art. 2 of the constitution, ‘

And so here, plaintiff’s right to lateral support, antidates the enactment of the amendment of 1894, and we hold that said statute in noway relieves defendants from protecting her lands from caving into-their excavation, and the prayer of the petition is granted.

Winch and Henry, JJ., concur.


author: GIFFEN, J.

text:
    DAMAGES — DRAINS AND DITCHES — ERROR—JURY.
    [Hamilton (1st) Circuit Court,
    December 2, 1905.]
    Jelke, Swing and Giffen, JJ.
    Cincinnati (City) v. Belle M. Johnson.
    1. Damages Recoverable oe City foe Negligent Construction of Drain.
    Damages may be recovered from a municipal corporation by the owner of realty for injuries to his premises resulting from the construction of a drain in such a manner as to obstruct the flow of water through it.
    2. Admission will Prevail over Special Finding.
    An admission of fact in a pleading will prevail over a special finding of the jury to the contrary.
    3. Failure of Foreman of Jury to Sign Special Finding, not Prejudicial Error.
    The fact that the foreman of a jury failed to sign a special finding until after the jury was discharged is not an error affecting any substantial right of the party complaining.
    4. Word “Opinion” in Special Finding is Equivalent to “Conclusion” or “Judgment.”
    A special finding of a jury that in its “opinion” certain damages resulted from a particular state of facts is equivalent to saying that such is its deliberate conclusion and judgment upon the evidence in the ease.
    [Syllabus approved by the court.]
    ERROR to Hamilton circuit court.
    J. V. Campbell, for plaintiff.
    Johnson & Levy, for defendant:
    Whether the court below was correct in entering judgment on the general verdict found by the jury, and overruling the motion of plaintiff in error for judgment, non obstante in support of which the following authorities were cited and commented upon. Young v. State, 6 Ohio 435; Torbet v. Coffin, 6 Ohio 274; Hollister v. Judges, 8 Ohio St. 201 [70 Am. Dec. 100]; Balch v. Shaw, 61 Mass. (7 Cush.) 282; Sage v. Broivn, 34 Ind. 464; Valer v. Letvis, 36 Ind. 288 [10 Am. Rep. 29] ; Greenberg v. Hoff, 80 Cal. 81 [22 Pac. Rep. 69]; Sargent v. State, 11 Ohio 472; Pignolet v. Gur, 1 Rob. 626; Pignolet v. Gur, 19 Abb. Pr. 264; Pitts. C. & St. L. By. v. Martin, 82 Ind. 476; Louthain vv Miller, 85 Ind. 161; McDermott v. Highby, 23 Cal. 489; Toledo, W. & W. By. v. Milligan, 52 ■ Ind. 505; Clev. C. C. <§ St. L. By. v. Johnson, 7 Ind. App. 441 [33 N. E. Rep. 1004] ; 20 Am. & Eng. Enc. PI. & Pr. 358, 367; Peninsular Land Jransp. & Mfg. Co. v. Insurance Co. 35 W. Va. 666 [14 S. E. Rep. 237]; Cook v. Howe, 77 Ind. 442; Clark v. Warner, 32 la. 219; Detroit, E. B. & l. By. v. Barton, 61 Ind. 293; Gaily. Beckstein,'66 Ill. App. 478; Comer v. Himes, 49 Ind. 482; Sanders v. Weelburg, 107 Ind. 266 [1 N. B. Rep. 573]; Missouri Pac. By. y. Holley, 30 Kan. 465 [1 Pac. Rep. 130]; Bechdolt v. Bailiuay, 113 Ind. 343 [15 N. E. Rep. 686]; Hopkins v. Stanley, 43 Ind. 553; Louisville, N. A. & 0. By. v. Worley, 107 Ind. 320 [7 N. E. Rep. -215]; Manning v. Gasharie, 27 Ind. 399; Todd v. Fenton, 66 Ind. 25; Indianapolis & St. L. By. v. Stout, 53 Ind. 143; Indianapolis & V. By. v. McCaffrey, 62 Ind. 552; Stevens v. Logansport, 76 Ind.-498; Lassiter v. Jackman, 88 Ind. 118; Indianapolis v. Huffer, 30 Ind. 235; Davis v. Turner, 69 Qhio St. 101 [68 N. E. Rep. 819]; Toledo Elec. St. By. v. Bateman, 8 Cire. Dec. 220 (16 R. 162).
   GIFFEN, J.

The only alleged error is the overruling, of tie motion for judgment notwithstanding the verdict in favor of the plaintiff.

This motion is based upon two interrogatories and the answers thereto returned by the jury with a general verdict, viz:

"Interrogatory No. 1: Was the proximate cause of the injury to plaintiff’s property the failure of the defendant city to provide drains of sufficient capacity to carry off all the surface water coming to such drains ?
“A. The city did not construct culvert or drains large enough.
"(Signed) William Trimble, Foreman.
"Interrogatory No. 2. Did the damages to plaintiff’s property result solely by reason of the failure of the city to provide drains of sufficient'capacity to carry off all surface water?
"A. In our opinion it did.
"(Signed) William Trimble, Foreman.”

The allegations of negligence contained in the amended petition, jo far as they relate to the insufficiency of the drains, are in substance as follows: The said city constructed a culvert from the east to the west side of Brown street at a point about fifty to seventy-five feet south of the premises of plaintiff, which was capable of carrying off the water which would naturally flow to it were it kept unobstructed; that thereafter an extension to the west end of said culvert was constructed by means of a sewer pipe twenty-one (21) inches in diameter, which was wholly and palpably inadequate to carry off the water from the culvert.

It appears from these allegations that there was in reality only one drain, denominated a culvert, and its subsequent extension by adding a sewer pipe, although the jury have treated.it as two or more distinct drains.

It is also found in answer to tbe first interrogatory that the culvert was not large enough, whereas the pleadings admit that it was sufficient for all purposes and continued to be so until the extension was made. The admission of the fact in the pleadings must, prevail over the findings by the jury to the contrary. Oliver v. Moore, 23 Ohio St. 473.

Counsel, however, make no claim under interrogatory No. 1, but rely solely upon No. 2, claiming that it comes within the principle announced in the case of Springfield v. Spence, 39 Ohio St. 665, that—

“A municipal corporation is not liable to an action for simply failing to provide drainage for surface water.”

While the damage was caused, as the jury have found, by the failure to provide a drain or drains of sufficient capacity, the negligence consisted in the manner in which they were constructed by joining a sewer pipe only twenty-one inches in diameter onto the culvert five (5) feet in diameter, and undertaking to carry off all the water that ' might accumulate in the culvert through the pipe with a diameter about one-third that of the culvert. This was not only a failure to provide drains of sufficient capacity, but was a deliberate obstruction to the flow of water in the culvert, and amounted to negligence in no ordinary degree, for which the plaintiff was entitled to recover.

It is claimed by the defendant in error that the special finding should not be considered for the reason that it was not signed by the foreman of the jury until after the jury was discharged. While it is an irregularity to receive the special finding not signed by the foreman or signed after the jury has been discharged, yet it is not such as to affect any substantial right of the party complaining. Hardy v. State, 19 Ohio St. 579.

It is also claimed that the answer is not distinct and certain because of the use of the'word “opinion,” but this is equivalent to saying that it is the deliberate conclusion and judgment of the jury, upon the evidence in the case.

Judgment will be affirmed.

Jelke and Swing, JJ., concur.