text:
    NEGLIGENCE — RAILWAYS.
    [Lucas (6th) Court of Appeals,
    February 8, 1913.]
    Wildman, Kinkade and Richards, JJ.
    Sherman Admrx. v. Toledo & Ohio Cent. Ry.
    1. Whether Employe Killed was Engaged in Line of Employment, Question for Jury.
    Where a section foreman engaged in repairing tracks in a railroad yard had gone to an adjoining yard of the same company and in returning in the middle of the afternoon to the point where his men were working walked on the track and appeared to be looking along the track and was struck and killed by a switch engine moving backwards following him, it is for the jury to determine whether he was in the line of his duty as an employe at the time he was struck by the engine, and whether there was negligence and contributory negligence, and it is error to direct a verdict for the defendant.

      2. Doctrine of Comparative Negligence Applied.
    In such case, if the jury find that each party was guilty of negligence directly contributing to the injury, it is their duty, pursuant to Sec. 9018 G. C. to determine, under appropriate instructions from the court, whether the contributory negligence of the decedent was slight and the negligence of the company greater in comparison, and, if they so find, to diminish the damages in proportion to the negligence attributable to the decedent in the event of a verdict being returned for the plaintiff.
    .Rule of Company Requiring Caution by Employes Competent.
    A rule of the company requiring every employe to exercise the utmost caution to avoid injury to himself or to his fellows is competent evidence in the trial of such an action, and it is prejudicial error to exclude the same.
    [Syllabus by the court.]

      Error.

      O. S. Brumback, for plaintiff.

      Doyle & Lewis, for defendant.
   RICHARDS, J.

The plaintiff in error, Mary Sherman, administratrix, brought an action in the court of common pleas to recover damages sustained by reason of the death of her husband, Joseph Sherman, which occurred on November 26, 1910. Mr. Sherman was a section foreman in charge of a gang of men engaged in repairing tracks in what is known as the eastern division yard of the defendant company just outside the city limits of Toledo. Immediately prior to the time of the injury which caused his death he had visited an adjoining railway yard known as the western division yard of the same company, for what purpose does not appear, and he received the injury that resulted in his death while he was returning. The accident occurred between 3 and 4 o’clock in the afternoon. In returning he'traveled along a highway, which crossed the railroad tracks, to a point near the scene of the accident, and there turned from the highway and walked south on the railroad track toward his men. At the time of his leaving the highway there was standing just north of the highway a switch engine on which was the switching crew, This engine was located a very short distance north of the highway and was upon the track down which Mr. Sherman walked from the highway toward his men. Within a short distance south of the highway Mr. Sherman was overtaken by this switch engine, backing southward, and injured in a manner that caused his death very shortly thereafter.

The negligence alleged against the company was the failure to give any notice or warning by bell or whistle of the approach of the switch engine following Mr. Sherman. It was also . charged that the switching crew, and particularly the engineer and fireman, failed to keep any lookout in the direction in which they were moving, and it is said that had they done so they must of necessity have discovered Mr. Sherman upon the track. The petition alleged that, contrary to a rule of the company, the entire switching crew, embracing not only the engineer and fireman but the conductor and both brakemen or helpers as well, were in the cab of the engine while it stood north of the highway crossing and as it followed down the track to the place of the accident. j

The case was tried upon the second amended petition, an “amendment to the amended petition,” the answer of the defendant and the reply. It is evident that the amendment to the amended petition was intended as an amendment to the second amended petition. At least it was filed after the second amended petition, and we think it is not accurately entitled. The facts relative to the accident which we have stated are as claimed by the plaintiff. The defendant admitted the accident 'and the death resulting therefrom, denied all acts of negligence and averred contributory negligence of the decedent. At the close of the plaintiff’s evidence the defendant moved the court for a directed verdict, which was overruled. At the close of all the evidence the motion was renewed, was granted and a verdict for the defendant returned accordingly, upon which judgment was entered.

During the trial the plaintiff below offered to introduce rule 719 of the defendant company in evidence. The rule reads as follows: ‘ ‘ Every employe is required to exercise the utmost caution to avoid injury to himself or to his fellows; especially in the switching of cars and in all movements of engines and trains. ’ ’

The court excluded this rule from the consideration of the jury and this is assigned as error. We think the action of the trial court was not in accordance with the holding of the Supreme Court in Cincinnati St. Ry. v. Altemeier, 60 Ohio St. 10 [53 N. E. Rep. 300]. It is true the rule imposed upon the employes a higher degree of care than rested on the company under the law, but, nevertheless, the existence of the rule would aid the jury in ascertaining whether Sherman was guilty of contributory negligence and would therefore be competent evidence. It is doubtless true that much of what is said by Burket, J., in announcing the opinion in the above case, relative to such a rule 'as "was offered in evidence in this case, is obiter, but the view adopted is sustained by ample authority as stated by him. If the rule is introduced in evidence the jury should be cautioned as to the difference in the degree of care mentioned in the rule and that applicable to the company.

The defendant in error contends that there was no evidence In the case tending to show any violation of duty on the part of the railroad company toward Mr. Sherman. It is urged that he was not at the moment of his injury engaged in any duty which so engrossed his attention as made it impracticable for him to look out for his safety, and imposed upon the company the duty ■of giving him notice of approaching danger. In fact, it is said that he was not engaged in any duty at all, but was returning to the place where his men were at work, and with nothing to take his attention from his surroundings. The only evidence tending to show that at the time of the injury he was engaged in the discharge of his duty as foreman consisted in statements of witnesses that he seemed to be looking along the track. The fact 5s not in dispute that he was in the employ of the company at the lime, that his position was that of foreman and that he was at the moment of the injury returning to the place where his men were still at work on the tracks of the yard, but whether he was then in the line of his duty as an employe was a propel* question .for the jury.

The conclusion of a'majority of the court is that there was some evidence offered tending to show the negligence of the company in not giving, by bell or whistle, some notice to Mr. Sherman of the approach of the switch engine. We are also of the ■opinion that there was evidence in the case tending to show the .negligence of Mr. Sherman in walking upon the railroad track from the highway toward the point where his men were at work, instead of walking between the tracks, and in failing to take account of the dangers incident to the situation. Whether the surrounding conditions were such as to impose upon the company the duty of giving notice by bell or whistle to Mr. Sherman was a question of fact for the jury.

We refrain from expressing any opinion as to the weight of evidence touching the issues in this case. A majority of the court are of the opinion that there was evidence sufficient to have taken the case to the jury, and further than this we need not go.

Under Sec. 9018 G. C., it would be the duty of the jury to determine from the evidence whether negligence existed on the part of the company, and also whether contributory negligence existed on the part of Mr. Sherman, and the degree of negligence of each in comparison.

For the reasons stated, the judgment below must be reversed, and the cause remanded for new .trial and further proceedings according to law.

Judgment reversed.

Wildman, J., concurs.

Kinkade, J„ dissents.

I think the judgment of the court of common pleas should be affirmed.


source: Caselaw Access Project

author: JONES, E. H., J.

license: Public Domain

text:
    RAILROADS.
    [Hamilton (1st) Court of Appeals,
    July 16, 1914.]
    Swing, Jones and Jones, JJ.
    Cincinnati, N. O. & T. P. Ry. v. J. B. Doppes’ Sons Lumber Co. Richter Grain Co. v. Cincinnati, H. & D. Ry. and Cleveland,. C. C. & St. L. Ry.
    Switching Charges Within Municipal Terminal Limits not Applicable! to Shipments from One Railway to Another.
    The word “switching” as used in Sec. 9000 G. C., applies only" to the movements within the terminal limits of a municipality of freight cars when incidental to the shipment as a whole- or to the main journey, and has no application to shipments from one railway to another within the terminal limits of a-municipality.

      Dolle, Taylor & O’Donnell, for the Doppes’ Sons Co.

      Charles A. Groom, for the Richter Grain Co.

      Waite & Schindel, for the C., H. & D. Railway.

      Harmon, Colston, Goldsmith & Hoadly,

    for C., N. O. & T. P. Railway.

      Maxwell & Ramsey,

    for C., L. & N. Railway, interested in other eases involving same question.
   JONES, E. H., J.

These three eases involve one question, and were presented at one time.

The plaintiffs below, viz., the J. B. Doppes’ Sons Lumber Company and the Richter Grain Company, in their petitions seek to recover on each of their several causes of action the penalty of $150 prescribed by Sec. 9002 G. C., for a violation of the provisions of Sec. 9000 G. C.

The latter section reads as follows:

‘‘ Sec. 9000. A company owning a track or tracks lying contiguous to coal mines, stone quarries, manufacturing establishments, elevators, warehouses, navigable W'aters or sidetracks, and within the proper terminal limits of or about a city or village, shall be entitled to receive from the company whose cars are so switched, loaded and unloaded at such mines, quarries, manufacturing establishments, elevators, warehouses, navigable waters or sidetracks, no more than one dollar per car for switching one-half mile or less on such tracks; for distances over one-half mile and not exceeding two and one-half miles, not to exceed one dollar and fifty cents per car; for all- distances over two and one-half miles and not exceeding five miles, not more than two dollars per car; and for all distances of more than five miles, not more than three dollars per car. When such service is on the roads of two or more companies, then such charges shall be divided between the companies in proportion to the distances of each road. But each company shall be entitled to at least one dollar for such service, regardless of distance, but there shall be no charge for returning empty cars from such mines, quarries, manufacturing establishments, elevators, warehouses, navigable waters or sidetracks. Such company may perform the service or do the switching work herein provided for, in the daytime. Whatever private sidetracks are or may be constructed, the company must switch cars thereon at the rates herein specified.”

Plaintiffs allege in their petitions that they were required to pay an excessive rate for shipments in carload lots of lumber and grain between points within the terminal limits of the city of Cincinnati. For instance, in the first case the petition alleges :

‘ ‘ That the plaintiff shipped a ear of lumber from Fernbank on the tracks of the Big Four to its private switch on the tracks of the Cincinnati, New Orleans & Texas Pacific Railway Company ; that all the places concerned, including Fernbank, are in the switching limits of Cincinnati; and that the Cleveland, Cincinnati, Chicago & St. Louis Railway Company and the Cincinnati, New Orleans & Texas Pacific Railway Company demanded and received from plaintiff for switching from the tracks of the said Cleveland, Cincinnati, Chicago & St. Louis Railway Company onto and over the tracks of the other defendant company to the plaintiff’s siding, the sum of six dollars, in addition to charging five dollars for transporting said car from Fernbank over the Cleveland, Cincinnati, Chicago & St. Louis Railway Company to Cincinnati. ’ ’

The several complaints against the railroad companies are the same in nature, although the charges and points between which shipments were made differ.

It is claimed in making the charges for these intraeity shipments no heed was given by the carriers to the provisions of Sec. 9000 G. C., that the transporting of the car over one of the roads is a “switching” within the meaning of that section; and that the charge therefor must be governed accordingly.

The sole question in this ease, therefore, is whether or not the rates prescribed in Sec. 9000 must be observed by the railroad companies in collecting for shipments such as those described in the petitions herein.

After reading the briefs of counsel and examining the authorities cited therein, we have reached the conclusion that Sec. 9000 has no application to shipments such as those under consideration within the terminal limits of a city.. We are of the opinion that the word “switching” as used in said section applies only to movements of freight cars within such city that are incidental only to the shipment as a whole; or, as one of counsel puts it “to the main journey.” While the railroads are required by Secs. 8998 and 8999, under the penalty prescribed in Sec. 9002, to make transfers of freight cars to avoid the necessity of reloading same, they are entitled to be paid for shipments from one local station within the city to another local station therein at the regular tariff rates in effect between said stations. Such an interpretation of the statute is not only warranted by its language and that of preceding sections, but to our minds is required by a sense of justice and fairness to all parties concerned. It is also well supported by decisions of higher courts, which we follow in deciding this case. See Grand Trunk Ry. v. Railway, 231 U. S. 457 [34 Sup. Ct. Rep. 152; 58 L. Ed. 310] ; Dixon v. Railway, 110 Ga. 173 [35 S. E. Rep. 369].

The distinction between a switching and a transportation movement is well expressed in 8 Words & Phrases Sec. 7070.

The judgment in case No. 95 will be reversed, and the judgments in cases Nos. 318 and 319 affirmed.

Swing and Jones, JJ., concur.


author: JONES, O. B., J.

text:
    MUNICIPAL CORPORATIONS — SEWERS.
    [Hamilton (1st) Court of Appeals,
    March 15, 1913.]
    Swing, Jones and Jones, JJ.
    Norwood (City) v. Gobrecht-Geyer Co.
    Municipality without Notice not Liable for Flooding Cellar from Clogging of Sewer.
    A municipality is not liable for the flooding of a basement or cellar by reason of the obstruction of a sewer, if notice of the obstruction is not shown and no negligence appears in the construction, maintenance or care of the sewer.
    [Syllabus approved by the court.]
    Error.

      H. E. Engelhardt, city solicitor for plaintiff in error.

      Gordon, Morrill and Guitre, and H. G. Bolsinger, for defendants in error:

      Cited and commented by the following authorities: Cincinnati v. Johnson, 28 O. C. C. 377 (7 N. S. 167); Cincinnati v. Frey, 16 Dec. 77 (3 N. S. 629); District of Columbia v. Gray, 6 App. D. C. 314; Parsons v. Sutton, 66 N. Y. 92; Grcmt v. Smith, 46 N. Y. 93; Fort Wayne v. Coombs, 107 Ind. 75 [7 N. B. Rep. 743; 57 Am. Rep. 82]; Seaman v. Marshall, 116 Mich. 327 [74 N. W. Rep. 484]; State v. Portland, 74 Me. 268 [43 Am. Rep. 586] ; Louisville v. Knighton, 30 Ky. L. Rep. 1037 [100 S. W. Rep. 228] ; Little Bock v. Willis, 27 Ark. 572; Peoria v. Eisler, 62 111. App. 26; Louisville v. Gimpeel, 22 Ky. L. Rep. 1110 [59 S. W. Rep.1096].
   JONES, O. B., J.

This action was for the recovery of damages to goods and furniture of plaintiff stored in its basement caused by the backing up of water from the city sewer, brought about by the stopping up or obstruction of the sewer on two separate occasions.

The amended petition sets out a charge of negligence in the following language:

“This defendant carelessly and negligently allowed said sewer to become clogged and stopped up and failed to properly inspect said sewer and keep the same in repair, open and in working order.”

There is no allegation of defective or improper construction, or of failure on the part of the city to remove the obstructions when brought to its notice.

Counsel for defendant in error however claim that by virtue of Sec. 11363 G. C., under the evidence produced at the trial plaintiff below might even now have its amended petition amended to conform to the evidence and that the evidence shows such faulty construction and failure to properly maintain and inspect this sewer on the part of the city as to entitle it to recover.

It may well be doubted whether the statute referred to would now permit the amendment of the petition after defendant’s motion for an instructed verdict and the overruling of its motion for a new trial and the judgment below, even if the evidence would make out plaintiff’s claim. But we do not find that the evidence sustains the contention of defendant in error.

On the contrary the only claim of anything faulty or improper in the construction of this sewer is the fact that a ten-inch pipe enters' a manhole from which the outflow is an eight-inch pipe, but the uncontradicted testimony of the city engineer who planned the sewer shows that, because of the difference in the grades at which the two pipes are laid, the one carries off the sewage as fast as the other delivers it and that the construction of the sewer was in all respects a proper one. The evidence also shows that this sewer had the usual inspection, and that the flooding was on both occasions caused by such an obstruction of sticks, leaves, etc., as might occur in any sewer no matter what its construction; that the city had no notice actual or constructive of the obstructions until the damage had occurred, and immediately upon receiving such notice it proceeded promptly to remove them, and as to the second flooding the evidence from the government records shows a very unusual rainfall.

We therefore find no evidence of negligence on the part of the city, either in construction, maintenance or care of this sewer, and the court below erred in not instructing a verdict for defendant. The judgment below will be reversed and judgment entered here for plaintiff in error.

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


author: KUNKLE, J.

text:
    NEGLIGENCE — RAILROADS.
    [Champaign (2nd) Court of Appeals,
    February 26, 1914.]
    Allread, Ferneding and Kunkle, JJ.

      Nypano Ry. & Erie Ry. v. Leroy L. Blose and Henry Heater, Admrs.
    1, Finding Train Operated at Forty Miles an Hour Over Street Crossing Obstructed by Standing Cars, Wilful and Wanton Negligence Justified.
    In the trial of an action founded upon the striking of a vehicle by a steam railway train, running forty miles an hour over a street crossing within municipal limits, where the view of the track to the occupants of the vehicle was obscured by a string of freight cars, and when the street is also in part obstructed by cars standing thereon a jury is justified in finding that the train was being operated in such a manner as to amount to wilful and wanton negligence.
    2 Neither Last Chance Doctrine nor Contributory Negligence Available against Charge of “Carelessly, Recklessly and Wantonly” Causing Injury.
    The doctrine of last chance is not available where the petition avers that the defendant “carelessly, recklessly and wantonly caused” the injury complained of, nor can the defendant escape liability by the contributory negligence of the plaintiff.
    [Syllabus approved by the court.]
    Error.

      I. T. Siddall and S. 8. Deaton, for plaintiffs in error.

      L. D. Johnson and Buroker & Zimmer, for defendants in error:
    Cited and commented upon by the following authorities: Weaver v. Railway, 76 Ohio St. 164 [81 N. E. Rep. 180] ; East St. Louis Connecting Ry. v. O’Hara, 150 111. 580 [37 N. E. Rep. 917]; Atchison, T. & 8. Fe. Ry. v. Baker, 79 Kan. 183 [98 Pac. Rep. 804; 21 L. R. A. (N. S.) 427] ; Louisville, N. A. & C. Ry. v. Bryan, 107 Ind. 51 [7 N. E. Rep. 807]; Elgin, J. &. E. Ry. V. Duffy, 191 111. 489 [61 N. E. Rep. 432] ; Birmingham 8. Ry. v. Powell, 136 Ala. 232 [33 So. Rep. 875] ; Wabash Ry. v. Speer, 156 111. 244 [40 N. E. Rep. 835] ; Georgia Pac. Ry. v. Lee, 92 Ala. 262 [9 So. Rep. 230]; LaFayette Ry. v. Adams, 26 Ind. 76; Cleveland, C. <& C. Ry. v. Crawford, 24 Ohio St. 631 [15 Am. Rep. 633] ; Cincinnati 8t. Ry. v. 8nell, 54 Ohio St. 197 [43 N. E. Rep. 207; 32 L. R. A. 276] ; Baltimore & O. Ry. v. Whitacre, 35 Ohio St. 627; Street Ry. v. Nolthenius, 40 Ohio St. 376; Hiñe v. Railwwy, 27 O. C. 0. 155 (6 N. S. 7).

      Writ of certiorari denied by the Supreme Court, February 10, 1914. Nypano Ry. v. Blose, 59 Bull. 52.

   KUNKLE, J.

The court of common pleas upon the original trial of this case directed the jury to return a verdict in favor of plaintiffs in error.

Error was prosecuted from such judgment to the circuit court, which court, in an opinion delivered by Judge Sullivan, held that the case should have been submitted to a jury for its consideration and such court reversed the judgment of the common pleas court.

The judgment of the circuit court was affirmed by the Supreme Court without opinion and the cause was remanded to the common pleas court for retrial.

The case was retried and submitted to a jury in the common pleas court in December, 1912.

The jury rendered a verdict in favor of defendants in error for $4,000. Motion for a new trial having been overruled, error is prosecuted to this court.

Since the case was heard in the circuit court, the petition has been amended by adding an additional ground of negligence, viz.: “that the defendants further obstructed said Bloomfield avenue, on the south side thereof, by ears standing out on the avenue so that the full use of said avenue was obstructed and there was less room to pass through between the cars than there should have been. ’ ’

Counsel have favored the court with unusually exhaustive briefs in this ease. These briefs have been submitted to opposing counsel. We have considered the arguments contained therein, and have examined the authorities cited therein, but shall not attempt to discuss or review the same in detail.

Plaintiffs in error claim that the evidence does not establish any negligence in the respects claimed in the petition and that the verdict is manifestly against the weight of the evidence and is contrary to law.

There was a conflict in the evidence as to whether the whistle upon this engine was blown or the bell thereon rung, as the train was approaching this crossing. There was also a conflict in the evidence as to the rate of speed at which this train was running when it approached and crossed Bloomfield avenue.

It is sufficient for the purposes of this decision to state that the above were questions of fact, which were required to be and were properly submitted to the jury. The record shows that the jury was fully instructed by the trial court as to the rules by which such testimony should be weighed. The charge upon this subject concluded with the following statement:

“In such cases the question is purely for the jury, and the jury must determine it from a consideration of all the facts and circumstances in the evidence. ’ ’

We think the manifest weight of the evidence shows that this train approached and passed over this crossing at practically forty miles an hour. Bloomfield avenue is a public street in the outskirts of the city of Urbana. While this crossing was not used to as great an extent as many other street crossings in that portion of the said city, yet the evidence discloses that this crossing was used by travelers to a considerable extent. We think the jury was justified in finding that the plaintiffs in error were guilty of negligence in passing over this crossing at the rate of speed at which it was crossed.

A number of witnesses testified as to whether the whistle on this engine was blown and whether the bell upon this engine was rung as the train approached said crossing. Some testified that the whistle was not so blown and that the bell was not so rung. A portion of the witnesses so testifying appear to have been in a position where they could have heard the same had the bell been rung or the whistle blown. Other witnesses called by the plaintiffs below stated that they did not hear the bell ring or the whistle blow, and the inference claimed from such testimony was that if the bell had been rung or the whistle had been sounded, these persons could and would have heard the same.

The defendants below called a number of witnesses who testified that the whistle was blown and the bell was rung for this crossing. As above suggested, these were questions of fact to be determined by the jury. If the jury believed the witnesses called by the defendants in error upon these questions of fact, then there was ample evidence to support a finding that the bell was not rung nor the whistle sounded at the time in question.

■ It also appears from the record that the plaintiffs in error at the time in question obstructed this crossing by standing freight cars thereon, so that the width of the crossing was thereby reduced to a width of about thirty feet, instead of being sixty feet, the width of the said avenue.

It appears from the testimony of Lawrence Zimmerman, who was the only eye-witness to this accident, that he saw Mr. Mauck driving through this opening in the cut of cars which plaintiffs in error had left standing in part upon Bloomfield avenue. He says that Mr. Mauck was trying to pull his horse to the south and the car standing on Bloomfield avenue to the south prevented his so doing. The record shows that the carriage in which these people were riding was thrown against and under the car so standing on the south side of Bloomfield avenue, and that by reason thereof Mr. and Mrs. Mauck were killed and their daughter seriously injured. If this car had not been so unlawfully placed on Bloomfield avenue, the accident in question might have been avoided.

Mr. Zimmerman testified in part as follows:

‘ ‘ Q. Now, just tell the jury what happened after you first saw Mauck with his horse coming through that opening? A. Just as I saw him coming through the cut, the train hit him just as I saw him.
“Q. What was he doing ? A. Pulling on the lines.
‘ ‘ Q. What direction was he pulling ? A. South.
‘ ‘ Q. Do you know any reason why, when he, pulled south, that he didn’t get out of the way of the train?
‘ ‘ Objected to. Objection sustained.
‘ ‘ Q. When you saw him pulling — on the left, you say ? A. Yes.
“Q. What was the condition there? A. Those cars stopped him.
“Q. What cars? A. The south range of cars.
“Q. Stopped him from what? A. Turning his horse around.
‘ ‘ Q. Now, when you saw the horse coming, was it trotting or walking? A. Walking.”

The petition also charges that the defendants below “carelessly, recklessly, and wantonly caused said locomotive to strike, wound and kill' the said Augustus Mauck. ’ ’

This branch of the case presents a very interesting question. In order that we may avoid any confusion as to the issues, it will not be amiss to again repeat that the petition charges that the defendants “carelessly, recklessly and wantonly caused the death of the said Mauck. ’ ’ What is known as the doctrine of the “last clear chance” is not plead in the petition and is not relied upon by counsel for defendants in error. Some of the authorities cited by counsel for plaintiffs in error relate to this doctrine. A portion of their oral argument was also devoted to showing that there can be no recovery, as it was conceded that the agents of the railroad company in charge of this train did not know of the peril of Mr. Mauck before he was injured, and it is claimed there can be no liability, as there was no testimony showing or tending to show that the agents of the railroad company could have avoided the accident after they learned of Mr. Mauck’s peril.

If the defendants in error had relied for recovery upon the doctrine known as the “last clear chance,” then before they could recover, it would have been incumbent upon them to show that the agents of the railroad company in charge of this train knew of the peril of Mr. Mauck and after having acquired such knowledge could by the exercise of ordinary care have avoided injuring him. As above stated, however, this doctrine is neither plead nor relied upon.

In addition to the acts of negligence above specifically referred to, the defendants in error also claimed that the railroad company obstructed Mr. Mauck’s view of this train by the cars which were placed on another track — that Mr. Mauck’s view was completely obstructed by such cars so placed by the railroad company.

We are satisfied from an examination of the record that the plaintiff's in' error by this act materially obstructed Mr. Mauck’s view of this approaching train.

In Weaver v. Railway, 76 Ohio St. 164, 176 [81 N. E. Rep. 180], our Supreme C.ourt says:

“The rule upon the subject has been correctly stated to be that ‘where the surroundings are such as to render a crossing particularly dangerous, it is the duty of the company to exercise care commensurate with the danger and especially if the company has created unusual danger at or near a crossing, it must meet such peril with additional precautions.’ ”

We are inclined to think, from an examination of the entire record, that the jury was justified in finding that the train in question was operated at the time and under all the circumstances in question, in such a manner as to amount to a wanton and wilful disregard of the rights of persons lawfully using this crossing. If the jury believed the testimony of certain witnesses of defendant in error then we think it was justified in finding that the acts complained of in the petition were done under such circumstances as that the natural and probable consequences of such acts would be to cause injury to others.

What acts constitute wilful and wanton disregard of the safety of others is very fully discussed in the case of Atchison T. & S. F. Ry. v. Baker, 79 Kan. 183 [98 Pac. Rep. 804; 21 L. R. A. (N. S.) 427], and in various other authorities cited by counsel.

If we are correct in our conclusion .that the jury was warranted under the evidence in finding that the conduct of the agents of the railroad company at the time in question amounted to wilful and wanton negligence, then the plaintiffs in error can not escape liability on account of any contributory negligence on the part of Mr. Mauek — even assuming that he was negligent, and that his negligence contributed to his receiving the injuries complained of.

In the case above cited, the first paragraph of the syllabus is as follows:

“Inan action to recover damages on account of an injury to a pedestrian resulting from a locomotive being driven along the public street of a city at an unlawful and dangerous rate of speed, with no signal being given of its approach, and with no outlook being kept, the misconduct of those in charge of it may amount to such recklessness and wantonness as to cut off the. defense of contributory negligence, although such employees did not know of the presence of the person injured, if to their knowledge the extent to which the street was used made an injury so probable that they must be deemed to have realized its imminence, and to have refrained from taking steps to prevent it because they were indifferent whether it occurred or not.”

Counsel for defendants in error claim that there is no testimony showing negligence upon the part of Mr. Mauch; that it devolved upon the plaintiffs in error to prove their defense of contributory negligence; that in the absence of any testimony upon the question of Mauck’s negligence the presumption is that he exercised ordinary care to protect himself from injury and was not guilty of negligence.

In view of the conclusion at which we have arrived, it is unnecessary to consider this question.

Plaintiffs in error also claim that the trial court erred in requiring the jury to stay out from 4:45 P. M., Saturday, until 2.30 A. M. Sunday morning. Our observation is that juries are often kept out not merely a portion of the night but throughout the entire night. There is nothing in the record which would justify us in finding that the plaintiffs in error were prejudiced by reason of the jurors being held until that hour of the morning.

Plaintiffs in error also complain of various questions which the trial court permitted the plaintiff below to ask different witnesses. A list of such questions has been handed to this court. We have examined the record, and while some of the questions referred to are somewhat leading and suggestive, yet that is a matter which rests in the sound discretion of the trial court. We do not find any prejudicial error in the respects suggested.

Plaintiffs in error also claim that the court erred in refusing to give certain instructions to the jury. The bill of exceptions shows that after the court had concluded its charge to the jury the defendant excepted to the general charge of the court and asked the court to give certain further instructions to the jury. Assuming that the request for the charges in question was properly made, we have examined such requests to charge, and think they were properly refused. The charges requested had in part already been given in substance in the general charge of the court.

Finding no error in the record, prejudicial to the plaintiffs in error, the judgment of the lower court will be.affirmed.

Allread and Ferneding, JJ., concur. .


author: RICHARDS, J.

text:
    CONTRACTS — PLEADING—RELEASES.
    [Lucas (6th) Circuit Court,
    February 10, 1912.]
    Wildman. Kinkade and Richards, JJ.
    Charles A. Brown v. Harriet E. Farr.
    1. Judgment not Reversed for Failure of Petition to State Amount of Claim Due if not Prejudicial to Adverse Party.
    A judgment will not be reversed solely by reason of a defect in the petition in failing to aver that the amount claimed is due, where issues have been joined and the cause tried on its merits and it appears from the record that the defective petition did not result in prejudice to the adverse party.
    2. Signing Release through Misunderstanding of its Character Eliminates Necessity of Demanding Cancellation.
    Where it is clearly apparent that the plaintiff was led to sign the release relied upon by the defendant through a misunderstanding as to its character, or it appears that the instrument signed was a mere nudum pactum, it is not necessary to set the instrument aside by a separate action nor to demand a cancellation of such release by a separate cause of action.
    3. Contract to Pay for Services Requires Unequivocal Proof in Family Relationships.
    No contract to pay for services can be implied where a family relationship existed between the parties, but such a contract must be established by clear and unequivocal proof; and this rule is as applicable to an action against the head of a family during his lifetime as against his administrator after his death.
    [Syllabus by the court.]
    Error.

      Ray & Cor dill, for plaintiff in error.

      James H. Southard, for defendant in error.
   RICHARDS, J.

The original action in the court of common pleas was brought by Harriet E. Farr to recover of Charles A. Brown upon two causes of action set forth in her petition. In the first cause of action she claimed a balance of $5.50 upon a promissory note executed by Brown to her. In the second cause of action, she claimed a sum of about $750 for services claimed to have been rendered by her to Brown.

It appears from the evidence that Harriet E. Farr had been an inmate of the Children’s Home near Manmee, and that she was indentured to Brown until she was eighteen years of age, at which time he was to pay her the sum of $50, and that she continued to reside in the family of Brown as a member thereof for some years after she became of age. Upon her arriving at the age of eighteen he executed to her a note in the sum of $50 upon which he subsequently «paid $10, and upon September 25, 1909, he paid to her the sum of $44.50. The trial in the court of common pleas resulted in a verdict and judgment in her favor in the sum of $313.50. At the time the payment of $44.50 was made, she signed an instrument which she delivered to Brown, reading as follows:

“Swanton, Ohio, September 25, 1909.
“Received of Charles A. Brown the sum of fifty ($50.00) dollars, the same being in full payment and settlement of note given by him to me of date of March 26, 1908, and said sum is also in full payment of any and all claims of every kind and description which I have against him.
“Miss Harriet E. Farr.”

Miss Farr alleges in her reply after quoting the above instrument that the defendant desired to settle the balance of the note and that he represented to her that he had seen her attorney and that her attorney sent word that she should accept the balance due on the note, and that she should sign the said paper. She avers that Brown said to her that said paper receipt related to, covered and was intended to settle said note, and such matters as grew out of their indenture agreement and nothing else, and that a receipt was necessary because the note was lost. She further avers that it was not true that her attorney had directed that she should sign the paper, but that he had sent no directions whatever, and that she was induced to sign the instrument through the false and fraudulent representations of said defendant, communicated to her as just stated.

Upon the impaneling of a jury in the common pleas court, ■the defendant below objected to the introduction of any testimony for the reason that the pleadings showed that there was a -settlement between the parties and a contract of settlement entered into and set up in the answer and admitted in the reply, .and that this contract must stand until set aside by a court of -equity. The defendant upon the overruling of that motion, -further moved the court for judgment on the pleadings, which -motion was also overruled, and exception taken to the action of the court upon both motions.

The petition contains no averment that the amount of $5.50 ■which is claimed upon the promissory note was due; neither is it ■averred in the petition that the amount claimed in the second -cause of action for services was due, but the second cause of action does contain the averment that the defendant is indebted to her upon the claim therein set forth. The reply contains an averment that she had presented to Brown a statement of the amount due her for services and that he was not disputing that she was entitled to receive from him the amount due on the note.

In view of these allegations and of the language of the Supreme Court in Yocum v. Allen, 58 Ohio St. 280 [50 N. E. Rep. 909], and also in the case of Dayton Ins. Co. v. Kelly, 24 Ohio St. 345 [15 Am. Rep. 612], we think that the judgment ought not to be reversed by reason solely of the defects in the pleadings just stated, and that the action of the court in that respect was not such prejudicial error as to require a reversal.

It is insisted, however, that the instrument quoted above, if its validity is to be questioned at all, should be questioned by appropriate allegations contained in the petition rather than in the reply. The instrument itself is plainly in form something more than a receipt and amounts, without doubt, to a contract as well as a receipt. See Jackson v. Ely, 57 Ohio St. 450 [49 N. E. Rep. 792] ; Cassilly v. Cassilly, 57 Ohio St. 582 [49 N. E. Rep. 795]. The rule by which it is to be determined whether an instrument of the character set forth must be assailed in the petition, or whether it may be sufficient to set it up in the reply, depends upon whether it is a void instrument or one which is voidable only. The principle of law controlling is laid down by the Supreme Court in Perry v. O’Neil, 78 Ohio St. 200 [85 N. E. Rep. 41]. A careful examination of the language of the reply leads to the conclusion that if Miss Farr believed the statements to be true, she was led to sign the instrument because she believed it was one of a different character from the one which it was in fact. It is perfectly apparent that she is not a woman of the keenest business sagacity, and that she acted upon the supposition that the instrument was nothing other than a receipt for the amount due upon the note. Such being the case, the instrument would be absolutely void and it would not be necessary to set the same aside either by a separate action or by a separate cause of action in this case, before maintaining' an action to recover the amount claimed by her.

An additional reason exists which is sufficient to justify ngs in reaching that conclusion. The amount actually paid was-$44.50 and beyond all question, at least that amount remained! due upon the promissory note and was not in any way in dispute* between the parties. It was a liquidated sum and nothing having been paid upon the promissory note, in addition to the amount conceded, no consideration existed for a release of the amount claimed to be due for services. The instrument, therefore, in so far as it purports to be more than a receipt, would; be absolutely void. It would be what lawyers term a nudumpactum. See Seeds, Grain & Hay Co. v. Conger, 83 Ohio St. 169 [93 N. E. Rep. 892; 32 L. R. A. (N. S.) 380]. We find no prejudicial error to have been committed by the trial court In overruling the motions made by the defendant below for judgment upon the pleadings and for the exclusion of all evidence.

Upon the trial of the ease a large amount of evidence was introduced pertaining to the relations existing between the plaintiff' below and the family of Charles A. Brown, and to the service® performed by her. From the evidence, it appears that from the time she went to live in the family, she continued to reside in the family as a member thereof. She alleged in her reply that: she had lived in the family since childhood and that the defendant had occupied the position of a father toward her. The case.as made by tbe allegations contained in tbe second cansé of action, and the pleadings subsequent thereto is one where during the existence of a family relation one member has performed services for the head of the family, and seeks to recover therefor. In the general charge of the court, we find this language:

“The burden is upon the plaintiff as to both causes of action, to prove by a preponderance of the evidence the allegations of her first and second causes of action before she can recover upon them. * * * Before she can recover on the second cause of action, she must prove that there was an agreement between herself and defendant, either express or implied, that she should perform services and that she should be paid for such services. ’ ’

In view of the circumstances shown by the evidence in this case as to a family relationship existing between the parties to the case, it was manifest error to instruct the jury as was done in the language above quoted. It has long been the established rule in eases of this character that no contract to pay for services rendered would be implied, and that before a recovery can be had, it must appear from- the evidence that an express contract to perform the services and to pay for the same existed. The language quoted would authorize a recovery in the absence of an express contract. Again, the instruction permits a recovery if the plaintiff’s case on the second cause of action is established by a preponderance of the evidence only. This language is in direct conflict with the rule laid down by the Supreme Court in Hinkle v. Sage, 67 Ohio St. 256, 262 [65 N. E. Rep. 999]. In the case cited the principle is announced by our Supreme Court that to entitle a plaintiff to recover under such circumstances, the contract must be established by clear and unequivocal proof. It is true that the case of Hinkle v. Sage was an action brought against the estate-of a decedent, and in that respect it differs from the case now under consideration. But the language used by the court in the course of the opinion, and also as found in the syllabus is so broad as to embrace an action of this character, whether brought against an executor or administrator or against the head of a family during his lifetime. Were it not for this general language, the members of this court might not be agreed that the rule requiring the plaintiff’s case to be established by clear and unequivocal proof should be applied except when the action is against the estate of a deceased person. Much argument may be adduced upon both sides of the question,-but we are convinced, in'view of the language of this decision, that the rule in our state is equally applicable whether the action be against an administrator or between members of a family still living. A very interesting discussion of this and some other questions may be found in an exhaustive note contained in Hodge v. Hodge, 11 L. R. A. (N. S.) 873, 913. Speaking of the degree of proof required the annotator upon page 902 states the rule as follows:

“The emphatic language used is probably to be accounted for, in some measure at least, by the fact that, in the great majority of instances, it was used with relation to claims against the estates of decedents. But, as the statements of the court are perfectly general, it can not be assumed that the standard specified was regarded as being appropriate only in cases involving such claims. ’ ’

For the error indicated, prejudicial to the rights of the plaintiff in error, the judgment will be reversed and the cause remanded for further proceedings.

Wildman and Kinkade, JJ., concur.


author: KINKADE, J.

text:
    MUNICIPAL CORPORATIONS.
    [Huron (6th) Court of Appeals,
    February 27, 1915.]
    Kinkade, Richards and Chittenden, JJ.

      Cleveland, S. & C. Ry. v. Norwalk (City) et al.
    1. Formal Publication of Resolution to Submit Issue of Municipal Electric Light Plant Bonds not Required.
    Act 102 O. L. 264, amending Secs. 3942 to 3947 G. C., authorizing the submission of certain municipal bond issues to electors and prescribing the legislation to he enacted, the amount, purpose, maturities of the bonds, place and time of election, contents and publication of election notice appears to make complete provision for the issuing of such bonds; hence, a resolution providing for the submission to electors, of an issue of bonds to erect a municipal electric light plant is not required to be published formally under Sec. 4228 G. C.
    2. Municipal Sinking Fund Trustees, Proper Authorities to Whom Offer of Issue of Electric Light Bonds Rather than to Board of Education, No School Commissioners Being Appointed.
    A board of education, in the absence of appointment of a “board of commissioners of the sinking fund” of the district, as provided by Sec. 7614 G. C., does not itself become the board of sinking fund commissioners to whom tender of an issue of municipal light bonds must be made as provided by Sec. 3922 G. C.; it is sufficient if the tender be made to the trustees of the sinking fund of the municipality of which such school district is a part.
    Appeal.

      L. W. Wickham and Tolies, Eogsett, Ginn & Morley, for plaintiff.

      R. D. Wickham and G. Ray Craig, for defendants.

      Motion to certify record overruled, Cleveland, S. & C. Ry. v. Norwalk, 60 Bull. 144.

   KINKADE, J.

The plaintiff, as a taxpayer of the city of Norwalk, brought an action praying for an injunction to restrain the city of Nor-walk and its officials from issuing and selling any portion of a certain issue, aggregating $120,000, of municipal bonds, which it was alleged the city was about to issue for the purpose of erecting and constructing an electric light plant for the use of the city. The defendants demurred to the petition on the ground that it did not state facts sufficient to constitute a cause of action.. The relief prayed for in the petition and the amendment thereto, is based on two grounds:

(1) That the resolution passed by the council declaring the necessity of issuing these bonds for the purpose mentioned and providing for the submission of the question of their issuance to a vote of the electors, had never been published as required by statute; and
(2) That prior to offering the bonds at public sale, neither said bonds nor any part thereof had been offered “to the board of commissioners of the sinking fund of said Norwalk School District. ’ ’

Attached to the petition and made a part thereof, is a copy of the original resolution passed by the council, and also a copy of the ordinance providing for the sale of the bonds, together ■with a copy of the notice of the sale of the bonds. No contention is made that the ordinance referred to was not published as required by law, or that the notice of the sale of the bonds was not given proper publicity. Beference to the copy of the resolution attached to the petition and made a part thereof, discloses that it made full provision for submitting the question of the issue of these bonds to a special election to be held in the city of Nor-walk.

There is no allegation in the petition that prior to offering these bonds for sale under the ordinance, they were not offered to the board of trustees of the sinking fund of the city of Nor-walk. In the absence of such an allegation, a presumption that the officers of the city were discharging their duty according to law would prevail, and, therefore, that these bonds had been offered to the trustees of the city sinking fund before being offered for sale. Neither is there any allegation in the petition that the bonds were not offered as the law provides they must be to the industrial commission before being offered for sale, and the same presumption would attend in this respect.

The amendment to the petition sets forth that the board of education of the city school district of the city of Norwalk had a bonded indebtedness and “had in its possession a sinking fund for the extinguishment of said bonded indebtedness,” and further on in the amendment occurs the language quoted above, stating that no offer had been made, etc. There is no statement in the petition or the amendment that there had been an appointment made by the court of common pleas of Huron county of a board of commissioners designated as the “Board of Commissioners of the Sinking Fund,” as provided in Sec. 7614 G. C., to take charge of the sinking fund of the board of education. It was contended in argument in behalf of the plaintiff, that the true construction of this section must be that in the event of no board of commissioners being so appointed by the court of common pleas, then the board of education itself becomes the board of commissioners for its own sinking fund. We cannot concur in this construction of Sec. 7614. We think that the section clearly means that where the court of common pleas has appointed no such board, then and in that event the board of trustees of the city or village sinking fund may take charge of and act for the school board in the management of the sinking fund of that board. In such case the same persons would be acting as trustees for the city in the-management of the sinking fund of the city and also in the management of the sinking fund of the board of education. If these bonds were in fact offered to the trustees of the sinking fund of the city, there is nothing in the petition to show whether the offer was to these individuals as trustees of the city sinking fund only, or was an offer in general which the trustees might consider as addressed to them in their dual capacity, if they were acting for both funds. Keeping in mind the presumption that the officials were discharging their duty as required by law, we think the petition is not sufficiently definite to show that there had been a violation of the law with respect to tendering these bonds, before sale, to the sinking fund commissioners of the school district, as required by statute.

The more serious question involved in this case is the one arising by virtue of the omission to publish the initial resolution declaring the necessity for this issue of bonds. It is conceded by counsel for plaintiff that there is no section of the statute that provides in exact terms that a resolution of this character shall be published, but it is said that the word “resolution” and the word “ordinance” are used interchangeably all through the statutes, and that the only fair interpretation of the sections of the statutes requiring the publication of ordinances of municipal councils is that these statutes apply with equal force to resolutions as well, and it is said that this is particularly true with respect to all resolutions that are of a general or permanent character; that it matters not what title may be given to the act, whether ordinance or resolution, but it is the substance that controls, and that two acts of the council that are in substance the same must be treated the same with respect to publieation, regardless of whether they be named ordinances or resolutions. There is much force in the contention of plaintiff in this respect, and if there had been an entire omission to publish this initial resolution as passed, it might be difficult to sustain the validity of these bonds by reason of that.

We call attention to the following sections of the General Code as found in 102 O. L. 264:

“Section 3942. Paragraph 4. In addition to the authority granted in section one (1) (G. C. 3939) of this act and supplementary thereto, the council of a municipal corporation, whenever it deems it necessary, may issue and sell bonds in such amounts, or denomination, and for such period of time and rate of interest not exceeding 6 per cent per annum, as it may determine upon for any of the purposes set forth in said section one (G. C. 3939), upon obtaining the approval of the electors of the corporation at a general or special election in the following manner.”
“Section 3943. Paragraph 5. The council, by resolution passed by an affirmative vote of not less than two-thirds of all the members elected or appointed thereto, shall declare it necessary to issue and sell bonds of the corporation. Such resolution shall state the purpose and amount of said issue, and shall fix a date upon which the question of issuing and selling such bonds shall be submitted to the electors of the corporation. Council shall then cause a copy of such resolution to be > certified to the deputy state supervisors of the county in which the corporation is situated.”
“Section 3944. Paragraph 6. The deputy state supervisors shall prepare the ballots and make the necessary arrangements for the submission of such question to the electors of such municipal corporation at the time fixed in the resolution.”
“Section 3945. Paragraph 7. The election shall be held at the regular place or places of voting in the municipality, and be conducted, canvassed and certified in like manner, except as otherwise provided by law, as regular elections in the municipal corporation for the election of officers thereof. ’ ’
“Section 3946. Paragraph 8. Thirty days’ notice of the election shall be given in one or more newspapers printed in the municipality once a week for four consecutive weeks prior thereto, stating the amount of bonds to be issued, and the purpose for which they are to be issued, and the time and place of holding the election. If no newspaper is printed therein, the notice shall be posted in a conspicuous place and published once a week for four consecutive weeks in a newspaper of general circulation in the township or municipal corporation.”
“Section 3947. Paragraph 9. If two-thirds of the voters voting at such election upon the question of issuing the bonds vote in favor thereof, the bonds shall be issued. Those who vote in favor of the proposition shall have written or printed on their ballots, ‘For the issue of bonds;’ and those who vote against it shall have written or printed on their ballots, ‘Against the issue of bonds.’ ”

It will be noted that the initial resolution must be passed by a two-thirds vote of the council and the resolution must set forth the necessity, purpose and amount of the contemplated bond issue, and fix the date upon which the election is to be held at which the authority is to be procured for issuing the bonds, and provision is also made for sending to the election officials a certified copy of the resolution so passed by the council, and thereupon it becomes the duty of the election officials to make provision for the holding of the election called for by the resolution, according to law, and ample provision is made for the publication of the notice of the time and place of the holding of this election, and this notice of election, like the resolution, is required to state the amount of the bonds to be issued, the purpose for which they are to be issued, as well as the time and place of holding the election, and the authority to issue the bonds can only come to the council in the event that two thirds of the voters voting at the election vote in favor of the issuing of the bonds. The sections of the General Code quoted appear to make complete provision for the issuing of municipal bonds under circumstances like those attending the case at bar, and it is difficult to see any necessity for a double publication such as would be necessary if the council were required to first publisb the resolution and then the election officers in giving notice of the election were required to publish practically the same thing and for a longer period of time.

Even though it be conceded, as claimed by council for the plaintiff, that this was a resolution of such character as that the law required it to be published, nevertheless, we are unanimously of the opinion that if the provisions of the sections of the General Code quoted above, have been complied with, and the presumption is that they have, and there is no allegation that they have not, then it follows that, although there was not a formal publication of the resolution such as usually appears in the public press, pursuant to the provisions of See. 4228 G. C., such publication was made of this resolution as answered in effect all the requirements of the law with respect to publication.

Our conclusion is that the plaintiff is not entitled to the relief prayed for; that the demurrer should be sustained; the temporary restraining order which was granted dissolved; and the petition dismissed at the costs of the plaintiff. The taking effect of the dissolution of the temporary restraining order will be suspended until March 3, 1915. An entry may be drawn by council in accordance with this opinion.

Richards and Chittenden, JJ., concur.


author: ALLREAD, J.

text:
    MUNICIPAL CORPORATIONS.
    [Champaign (2nd) Court of Appeals,
    November 6, 1914.]
    Allread, Ferneding and Kunkle, JJ.
    Alvin J. Bring and John M. Saylor, as Agents v. John B. Hollis et al.
    Proceedings for Incorporation of Villages Political in Nature and not Subject to Review.
    Proceedings had by county commissioners with respect to the incorporation of a village are political in their nature and not judicial, and are therefore not subject to review on petition in error.

      Error.

      Beaton & Bodey and A. J. Bright, for plaintiff in error.

      Johnson & Miller, for defendants in error.
   ALLREAD, J.

The jurisdiction of county commissioners under Secs. 3517 G. C., et seq., providing for the incorporation of villages is in its nature political and not judicial. Musser v. Adair, 55 Ohio St. 466 [45 N. E. Rep. 903]; State v. Harmon, 31 Ohio St. 250.

An order of a board of commissioners in such proceedings 'dismissing the petition is not, therefore, subject to review upon petition in error.

Judgment affirmed.

Fernedimg and Kunkle, JJ., concur.


author: RICHARDS, J. KINKADE, J., CHITTENDEN, J.,

text:
    CIVIL SERVICE — OFFICERS.
    [Lucas (6th) Court of Appeals,
    January 5, 1915.]
    Kinkade, Richards and Chittenden, JJ.
    Louis H. Paine v. Carl H. Keller, Mayor. William E. Cordill v. Carl H. Keller, Mayor.
    1. Injunction Does not Lie to Prevent Mayor from Removing Civil Service Commissioners.
    Injunction will not lie to prevent the mayor of a city from proceeding under favor of Sec. 19 of act 103 O. L. 709 (See. 486-19 G. C.), relating to municipal civil service, to remove from office the municipal civil service commissioners, even though the petitions allege that the mayor is about to cause such removals without any sufficient charges being filed, or without any charges whatever and without a hearing.
    2. Question of Removal of Officers not Vested in Courts of Equity.
    The jurisdiction to determine the title to a public office is vested exclusively in the courts of law under procedure established by statute, and cannot be interfered with by a proceeding in equity.
    [Syllabus by the court.]
    Appeals from orders dissolving temporary injunctions.

      Kohn, North-up, Ritter & McMahon and Frank G. Crane, for Louis H. Paine.

      Ray & Cordill, for William E. Cordill.

      Webster & Kirtley, for defendant.
   RICHARDS, J.

These two actions are injunction proceedings brought to prevent the mayor of the city of Toledo from removing the plaintiff's as civil service commissioners of that city. They involve the same matters and, having been argued together, may be conveniently disposed of in one opinion.

In each case the plaintiff is one of the civil service commissioners of the city of Toledo. No answer has been filed in either case, but the actions have been submitted to the court upon motions and the sufficiency of the petition in each case is questioned, the defendant claiming that no cause of action is set forth justifying the allowance of a temporary injunction.

It appears from the petitions that the civil service commission of the state of Ohio has made and submitted a written report to the mayor of the city of Toledo of' a certain investigation relative to certain claimed violations of the civil service law by the civil service eomlmission of the city of Toledo. The petitions further allege that the defendant has served on each of the plaintiffs a copy of this written report, and they aver substantially that the defendant has announced that, because of such report, he will remove the respective plaintiffs from their offices as members of the civil service commission of the city of Toledo. In the case brought by Mr. Paine he avers that neither the report of the investigators nor the report of the state civil service commission makes any charge against him of inefficiency, neglect of duty or malfeasance in office on his part, and that no copy of any such charges has been filed with the defendant, nor served upon him, and that the defendant has not made any such charges against him. His petition in short denies the making of any charges against him within the purview of the statute providing for the establishment of a civil service commission and the removal of any of its members, and he avers in the petition that the only charge made against the civil service commission of the city of Toledo as a commission and contained in the report of the special investigators, is as follows:

“That the spirit of the civil service law has been violated in the failure of the municipal civil service commission to investigate the violations of the civil service law in said city. We believe that the spirit of the civil service law is violated in holding oral examinations of the character held in Toledo, and that positions of such importance ought not to be filled from1 those who pass examinations exclusively oral because there is no method of preserving the record of the actual examination, which leads to distrust on the part of the people upon the fairness of such examinations.”

In the petition filed on behalf of Mr. Cordill it is admitted that certain charges have been filed against the civil service commission of the city of Toledo, but averred that none have been filed against the plaintiff himself, and it is averred that these pretended charges are as follows:

“First. Appointments have been made to numerous important positions, without any examinations.
“Second. That persons separated from the service, due to the fact of the positions having been abolished, or unnecessary. have not been placed at the head of appropriate eligible list.
“Third. That the spirit of the civil service law, has been violated in the failure of the municipal civil service commission, to investigate the violations of the civil service law in said city. ’ ’

The petition further avers that none of these charges are sufficient in law to constitute a cause of action for the placing of plaintiff on trial before said defendant or for the removal of plaintiff from his office. The petition further avers that the defendant has openly and publicly stated: ‘ ‘ That there is no question in my mind what I will do. There is but one.thing for me to do. I will dismiss Cordill (plaintiff herein) Paine and McMahon.” The plaintiff alleges that the defendant is prejudiced against the plaintiff and has pre-judged his case and threatens to remove him on said pretended charges without a hearing.

In the action brought by Mr. Paine he prays that the defendant may be restrained from removing him from his office as a member of the civil service commission; and in the action brought by Mr. Cordill he prays that the defendant may be restrained from proceeding with a hearing on the pretended charges and from removing him from his office of civil service commissioner of Toledo.

It will be observed from this summary statement of the averments of the petitions that in the action brought by Mr. Paine he, in effect, avers that the mayor is about to proceed and remove him from his office without any charges being made against Mm, and that in the action brought by Mr. Cordill the contention is made that the only charges which have been filed are against the civil service commission of the city of Toledo as such, and not against Cordill individually, and that these charges are insufficient in law upon which to base an order of removal. The Paine case, conceding the allegations of the petition to be true, is one in which it appears that the mayor is about to act under such circumstances as would involve an entire want of power on his part to proceed; while in the other case, conceding the allegations of the petition to be true, the mayor is about to act on charges not against an incumbent of the office, but against the commission itself, and on charges which are insufficient in law.

The statute wMeh clothes the mayor with authority to act on these matters is the act to regulate the civil service of the State of Ohio and the particular part to which reference is made is found in Sec. 19 of act 103 O. L. 709 (Sec. 486-19 G. C.) as the municipal civil service. The pertinent portion of that section is as follows:

“The chief executive authority of such city may at any time remove any municipal civil service commissioner for inefficiency, neglect of duty or malfeasance in office, having first given to such commissioner a copy of the charges against Mm and an opportunity to be publicly heard in person or by counsel in his own defense, and any such act of removal shall be final.” •

It is contended on behalf of counsel for the defendant that injunction will not lie to prevent the threatened action of the mayor, and that is really the only question which we have for decision. We have given the matter very careful consideration and have arrived at a solution which we believe is in ac-. ' cordanee, not only with principle, but with an almost universal current of authority. The statutes of Ohio creating the civil service commission provide the means and method for removing any commissioner who shall have been found guilty of inefficiency, neglect of duty or malfeasance in office, but, under the language of the statute, such remioval can only be made after the commissioner shall have been given a copy of the charges filed against him and an opportunity to be publicly heard in his own defense. The duty of passing upon the charges which may be made must be vested by the general assembly in some person or body, and by the act from which the quotation has just been made, the general assembly has seen fit to vest that power in the mayor. Under the fundamental principles of law, if the mayor should attempt to proceed without any charges being filed, or upon charges that are insufficient in law, his action could not be restrained by a court of equity if the law provides any other adequate remedy.

In the case of Kerr v. Hinkle, 12 Dec. 365, Judge Bigger of the court of common pleas had under consideration matters very similar to those involved in the present action and he reached a conclusion, supported by an array of authorities and unanswerable reasons, that an action of injunction could not be maintained.

It appeared in Sawyer, In re, 124 U. S. 200 [8 Sup. Ct. Rep. 482; 31 L. Ed. 402], that the mayor of the city of Lincoln was about to remove the police judge, and the Supreme Court of the United States, after • an extended examination of the authorities, announced the doctrine that a court of equity had no jurisdiction of a bill to restrain the removal of a public officers. See also White v. Berry, 171 U. S. 366.

It is stated in 22 Cyc. 886, that the general rule is that equity will not enjoin the removal of public officers where the power of removal is vested in executive or administrative boards or officers or is entrusted to a judicial tribunal, and that it is immaterial that the appointee is within the protection of the civil service rules. That general rule has been followed in this state ever since the establishment of the courts. To hold otherwise would be for the courts to usurp the functions which have been vested by statute, under the civil service law, in the mayor. The principle is not violated by cases which hold that in proceedings in quo warranto a temporary injunction may be granted as an incident to the main action to try the title to the office, and for the purpose only of holding matters in statu quo until the ease shall have been determined by the court. In the cases at bar, if the mayor should undertake, to remove the plaintiffs without any charges being filed against them, or assuming to act on charges which are insufficient in law, an adequate remedy would exist at law for their relief. By the terms of the statute the mayor is without power to act until charges sufficient in law have been made against the commissioners, and if he should act without such charges, an order of removal so made would be a nullity. In case of such attempted removal and the appointment of successors who should thereupon undertake to exercise the functions of civil service commissioners, the title to the office could be determined in a proceeding commonly resorted to for such purpose and known as one in quo warranto.

I call attention to the case of State v. Hoglan, 64 Ohio St. 532 [60 N. E. Rep. 627], which was a proceeding in quo warranto to determine the title of certain civil service commissioners in the city of Columbus, it being claimed that the commissioners had been removed without notice or opportunity to be heard, and upon insufficient charges. In the course of the opinion in that case the Supreme Court use the following language:

“Power is conferred on the mayor to remove any commissioner for incompetence, neglect of duty, malfeasance in office, habitual drunkenness, or gross immorality; and any manifest failure on the part of any commissioner to enforce the provisions of the act. The power is one that cannot be arbitrarily exercised. It requires charges to be made, supported by such a statement of facts as in judgment of law constitute the charge made; and an opportunity to the party to be heard. Whilst the court cannot pass on the truth of the facts alleged, or interfere with the discretion of the mayor in this regard, it may and will, when appealed to, pass on the sufficiency of the facts on which the charges are made.”

It will be noticed that the statute governing the disposition of any charges which may be made against the plaintiffs, provides that the mayor .may order the removal of a commissioner for any one of three causes, namely, inefficiency, neglect of duty or malfeasance in office, and that this order may only be made after such commissioner has been given, a copy of the charges made against him and an opportunity to be publicly heard in his own defense. The statute then concludes with the following words, “and any such act of removal shall be final.” We think the general assembly by the use of this language last quoted contemplated that an order of removal in order to be final, must be in accordance with the provisions of the statute by which the mayor is clothed with authority to remove. An arbitrary order of removal not based on charges sufficient in law and without any opportunity of being heard, would not be such a removal as is contemplated by the statute.

Under a similar statute the Supreme Court held in State v. Egry, 79 Ohio St. 400 [87 N. E. Rep. 272], in language found on page 406, as follows:

“There were similar provisions in the former municipal code and there are such statutory provisions respecting other officers and boards, and the court has, in numerous cases respecting them, held, in effect, notwithstanding the- statute assumes to confer exclusive power or to m)ake the determination final, that the courts, although they may not judge on the merits, have authority to keep such tribunal, board or officers, within the.limits of their jurisdiction, and to compel them to exercise it with regularity.”

We are unanimously of the opinion that under the facts set forth in these petitions, injunction will not lie to prevent the removal of the plaintiffs nor to prevent a hearing by the mayor of any such charges as may be made against them or either of them. Of course, we are not now passing upon the sufficiency of any charges which may have been made. Those charges, if any such exist, are not now before us and we express no opinion as to their sufficiency. They are not set forth in the petition in either case and even if they were included in the petition, their sufficiency could not be determined in an action for injunction.

We hold, therefore, that the plaintiffs are not entitled to the remedy of in junction, and the temporary restraining order will be dissolved.

KINKADE, J.,

concurring.

I concur in the conclusion reached and also in all that has been stated in the opinion of Judge Richards. It is fundamental, as has been stated, that the extraordinary writ of injunction will not be issued where there exists an adequate remedy at law, and it is equally fundamental that it will not be issued where the party seeking the injunction has no need of any remedy either in equity or at law. With commendable frankness counsel for the petitioners in these cases plant their case on the proposition that the mayor was wholly without power to take the action which he threatened to take. If that be true, then, as stated in the opinion of Judge Richards, the action, if taken, would be an utter nullity, void from every view point, and it is somewhat difficult to see how an act of this character, utterly void, could in any wise violate or interfere with the rights of the petitioners. Void action is no action and it may be entirely disregarded by the persons against whom it is sought to be directed in its effect; and this is sufficient reason alone, it seems to me, to deny the prayer of these petitions for an injunction.

CHITTENDEN, J.,

concurring.

I concur in the conclusion reached and in what has been said by both of my associates.


author: JONES, E. H., J. Jones, O. B., J.,

text:
    MUNICIPAL CORPORATIONS.
    [Hamilton (1st) Court of Appeals,
    February 14, 1914.]
    Swing, Jones and Jones, JJ.
    Cincinnati (City) v. Charles Filser.
    Municipality Liable for Damages from Landslide Caused by Street Improvement notwithstanding Negligence of Independent Contractor.
    Where a municipality removes eartb from a hillside in improving a street, the soil of which hill is known to be slip soil, without shoring up the bank the support of which is thus removed, and a slide upon the lot of an abutting owner results after a hard rain, liability' for the damage thus suffered can not be escaped on the ground' that the work was being done by an independent contractor, or that the city was the owner of the dominant tenement, or that the slipping of the hillside following a heavy storm and downpour was an act of God.
    [Syllabus by the court.]
    Error.

      Coleman Avery, for plaintiff in error.

      Geoffrey Goldsmith and Guido Gores, for defendant in error.
   JONES, E. H., J.

The plaintiff in error seeks to reverse the judgment of the court below, assigning many reasons why this should be done.

The case presents numerous interesting questions and has been the source of much discussion among the members of this court, and has received prolonged and careful consideration at our hands. The majority of the court are of opinion that there was no prejudicial error in the trial below and that the judgment of the court of common pleas should be affirmed.

The negligence alleged in the petition, is that the city failed to bolster up or shore up the soil of the hillside while they were engaged in removing dirt from the street opposite the plaintiff’s residence and that the city's negligence in this respect caused the damage to plaintiff’s property. This statement is sufficient to explain the nature of the complaint although it may not be complete. The evidence offered at the trial fully supports this charge of negligence in the petition. It is shown by the evidence that the city through its civil engineer and other officers and employees had actual notice of the danger to adjoining property which attended the work upon which they were about to enter. The evidence further shows that at the time the slide occurred precautions, which, in the opinion of expert witnesses produced at the trial, were necessary owing to the known nature of the soil, had not been taken.

There is no claim in the answer, nor is there any attempt to show by evidence, that it would have been impossible upon the part of the city in the exercise of reasonable care to have prevented the damage which we think the evidence shows followed as a natural consequence of the character of the work being done. The duty resting upon the city as well as upon an individual to so carry on its work, even upon its own premises, as not to interfere with or cause damage to its neighbors, we feel that the evidence was sufficient to warrant the jury in finding actionable negligence on the part of the city.

It is claimed that the work was being done by an independent contractor. This claim we think is fully and ably answered in the brief of counsel for defendant in error. The work was shown to be dangerous to adjoining property owners unless carried on carefully. Such being the ease, the city could not absolve itself from liability by employing another to do the work.

It is further claimed that the city was the owner of the dominant tenement and had a right to the lateral support of its street by the ground of defendant in error. This is all true, but the trouble is that it had no application to the facts in this case. The jury must have found in this case that the work being done by the city had a direct connection with the slipping of the hill. The damage was not caused by the weight of the street toppling over the wall that had been built by the defendant in error; it was caused by the dirt from the hill slipping down upon and underneath the street, and the very doctrine urged here by the plaintiff in error made it the duty of the city to provide a lateral support along the line of its street, and if by failing to do so it caused the injury to another’s property, particularly while it was engaged in digging and removing the soil of the hill, we think its failure so to do makes it liable for any damage resulting therefrom.

It is also claimed by plaintiff in error that the damage was due to “an act of God.” In this connection it was claimed that just before the slide occurred which caused the damage, there was an extraordinary rainfall. There is nothing in the evidence to show that this rain was an unprecedented one, nor does the evidence clearly establish that it was unusual for the season of the year is this latitude. We hold that such rains as this must reasonably be anticipated and that the city can not be excused from the consequences of its negligence by not contemplating the probability of heavy rain.

We find no error in the charge of the court, nor any prejudicial error in its refusal to give certain special charges requested.

There being in the opinion of the majority of the court no errors apparent on the record, the judgment of the court below will be affirmed.

Jones, O. B., J.,

dissenting.

I am not able to agree with the majority of the court in the decision of this case.

In the first place, the amended petition under which the trial was had fails to allege that any claim for damages had been filed with the clerk of the city, and that sixty days had elapsed thereafter before the filing of the suit. Such an allegation was contained in the original petition but it was superseded at the time of the trial by the amended petition and of course is not to be considered. The record of the evidence also fails to show proof that any such claim was filed. This being an action for damages occasioned, as claimed by plaintiff, by a street improvement, Sec. 3830 G. C. makes the filing of such a claim a prerequisite.

There are two of these claim sections in the statutes relating to street improvements: Section 3823 applying to claims of abutting property owners where the damages are obvious; and See. 3830, in its terms applying to “damages arising from any cause.” The difference between these two sections is discussed by the Supreme Court in the case of Cohen v. Cleveland, 43 Ohio St. 190 [1 N. E. Rep. 589], in the opinion of the court at page 195. While the language of Sec. 3830 is general it has been limited by the case of Warren v. Davis, 43 Ohio St. 447 [3 N. E. Rep. 301], to damages arising from street improvements. The failure to file such a claim is a bar to the action, Ernst v. Kunkle, 5 Ohio St. 521; Cohen v. Cleveland, supra. These sections are also discussed in the opinion,of the court in the case of Ironton v. Wiehle 73 Ohio St. 41 [84 N. E. Rep. 425].

Outside, however, of this failure to show the filing of a claim, in my opinion, the judgment is not sustained by the evidence. The record of the evidence is very unsatisfactory in clearly determining just how the improvement of Glenway avenue was made by the city, and just when and how the damage resulted to the plaintiff below. It does, however, show that Glcnway avenue extends up a hill with a steep hill extending upward on the west side and downward on the east side; that the1 house of the plaintiff was built up to the street line on the east or lower side of the avenue and that opposite it the surface of the hill has slid down covering a part of the west side of the street; that the improvement made by the city consisted simply in repaving a macadamized street with granite pavement and the building of a concrete retaining wall along the west side to prevent future slides. It appears that the land lying west of Glenway avenue up as far as Wilder avenue was owned by a private party, the traction company, who had thrown upon it masses of dirt taken off of Wilder and Warsaw avenues. All of the witnesses agree that this hillside was composed of what they call “slip soil” that had been sliding more or less for years, ever since they can remember. It also appears that plaintiff had suffered damages to his house by previous slides, and that his sidewalk and water pipes had been broken from time to time by the bulging up of the street; that his foundation had been thrown down and was rebuilt because of a slide about three years before the one complained of in this ease. It is hard to determine from the evidence just what the facts are as to the particular slide or slides which caused the damage. The only testimony given is by plaintiff himself and another property ■owner, Mr. Ahern, and Mr. Kuhlman, who was at one time building inspector, and Mr. Rees McDuffie, who operated the incline railway south of this property and who was an old resident of that locality. None of these witnesses give a detailed account of the method of the improvement or the nature of the slide which caused the damage. The two latter witnesses named above advised the city engineer and his assistant that certain precautions should be taken to avoid a hill slide, the latter suggesting that the soil which had been placed at the top of the hill on the property of the traction company should be first removed by the city, and Mr. Kuhlman advising that the engineer should drive piles to prevent sliding. He afterwards admitted that the piles were driven by the engineer in the trenches which were made for the foundations of the concrete wall and were driven just as he thought they should be. It appears that these trenches were dug in sections not more than fifty feet long and piles were driven in the bottom and the concrete laid upon them, and that these trenches were not dug until after the damage to plaintiff’s house. Plaintiff himself gives the best story of this damage, and his testimony would indicate that there was but one slide which caused the damage and which occurred on June 27 or 28 and was contemporaneous with a severe and unusual rainstorm, which was described by the United States Observer as being very heavy, and which defendant claims caused the slide.

It appears that at the time of this rainstorm the only work that had been done in the matter of the improvement was the removal of the slope of earth that had encroached upon the west side of the street in the cleaning off of the street preparatory to repaving, and that the trench to which plaintiff attributed the slide had not at that time been dug.

The allegations of negligence in the amended petition were that the defendant and its agents knew or should in the exercise of reasonable care have known that to improve Glenway avenue, without bolstering or shoring up the street or the land above by wall or shoring so as to prevent a slide or slip of the said street against and into said lot and against the fall of soil and. dirt against said lot, would as a direct consequence cause a slip of the said street and of said lot, and would cause the fall of' soil from said street .onto said lot and would thereby cause-damage to said lot and to the improvements thereon; and that.

“The defendant city, despite its knowledge or despite the-knowledge which in the exercise of ordinary care it should have-had, or the nature of the soil and of the locality and of the consequences of its own acts, negligently failed in the exercise of' ordinary care to shore up said street or the land above it as a. protection to plaintiff’s aforesaid lot against damage.”

The plaintiff can only recover by proving the acts of negligence alleged in the petition and that such negligence caused the-damage. New York, C. & St. L. Ry. v. Kistler, 66 Ohio St. 326, 333 [64 N. E. Rep. 130] ; Baltimore & O. Ry. v. Lockwood, 72 Ohio St. 586, 590 [74 N. E. Rep. 1071] ; Elster v. Springfield,. 49 Ohio St. 82, 101 [30 N. E. Rep. 274].

In my opinion the negligence complained of was not proven but is merely a matter of inference, as there was no attempt to-show in any way how the city could have shored up or bolstered, up either the street or land to the west of the street without first: digging foundations for. the necessary retaining walls, as was-really done in this ease.-

‘ ‘ To establish negligence, there must be direct proof of facts-constituting such negligence, or proof of facts from which, negligence may be reasonably presumed. There should be no-guessing either by court or jury.” Cleveland, T. & V. Ry. v. Marsh, 63 Ohio St. 236 [58 N. E. Rep. 821; 52 L. R. A. 142].

The rights of plaintiff and the city as owners of adjoining-premises come under the law relating to lateral support. The city as the owner of the street, the dominant tenement, owed no legal duty to hold up plaintiff’s house as the servient tenement. On the contrary it was the duty of the. plaintiff or his predecessor in title, when his cellar wall was excavated and the house was built, to so construct his cellar wall as to sustain and support the street as fully as the hill in its natural state would have done. The same rule might be invoked to require the city to hold the hill west of the street from sliding while in its natural condition, but could not be extended to require it to support same where it was caused to slide by the fact that large quantities of excess dirt had been piled thereon by its owners. United States v. Peachy, 6 O. F. D. 185 [36 Fed. Rep. 161] ; Haverstraw v. Eckerson, 192 N. Y. 54, 59 [84 N. E. Rep. 578; 20 L. R. A. (N. S.) 287] ; Milburn v. Fowler, 27 Hun. (N. Y.) 568; 1 Cyc. 775, 777.

I think the court erred in refusing to give the following special charges which were asked by the defendant and which I believe should have been given:

“4Z). The petition avers that in the exercise of ordinary care the street, Glenway avenue, and the land above, while the ■work in Glenway avenue was in progress should be bolstered and shored up and retained by walls and shoring to prevent a slide or slip of said street against and on to plaintiff’s lot, and that the city negligently failed in the exercise of ordinary care to shore up said street or the land above. This being the only negligence alleged is the only negligence you can consider. Plaintiff must prove by a preponderance of the evidence ■ that in the exercise of ordinary care the city should have done things he mentions and that the city negligently failed to do those things. Unless plaintiff has proved all this by a preponderance of the evidence as aforesaid, your verdict should be for the defendant.
“6. The jury are charged if they find that the slide of which plaintiff complains was caused by extraordinary rain, or would not have occurred excepting for an extraordinary rain, the verdict should be for the defendant. By extraordinary is meant not necessarily a rainfall of a volume or intensity which never had before occurred in this vicinity, but one which is so heavy as to be unusual, and not to be reasonably anticipated and guarded against by persons using ordinary care and .prudence in the progress of work of the kind which the evidence shows was cabed for in the improvement of Glenway avenue.
“7. The jury are charged that if persons other than the-city of Cincinnati piled earth or other materials on the space between Wilder and Glen way avenues west of plaintiff’s premises which caused the slip of which plaintiff complains, the verdict should be for the defendant.”

Defendant urns entitled to have these charges, which are correct in form, given before the argument to the jury.

Swing, J., concurs.