author: GIFFEN, J.

text:
    RAILROADS — STREET RAILWAYS — STREETS.
    [Hamilton (1st) Circuit Court,
    December 16, 1903.]
    Giffen, Jelke and Swing, JJ.
    Clara Kopp v. Baltimore & Ohio Southwestern Ry. Co.
    Steam Railroad not Relieved From Operating Gates at Grade Crossings by Sec. 3443-6 Rev. Stat.
    Section 3443-6 Rev. Stat., requiring a street railway company to cause its cars to come to a full stop and have some person in its employ go ahead and ascertain if the way is clear and free from danger before taking a car over a steam railway crossing at grade, was enacted as an additional protection to street car passengers, and does not relieve the steam railway company of the duty of operating its gates at such crossings in such manner as to indicate to persons in charge of an approaching street car whether or not the crossing is clear and free from danger. The duties imposed upon both companies are concurrent in point of time, and a failure of either to perform in this respect will render it liable for the consequences of such negligence.
    Error to court of common pleas of Hamilton county.
    Theodore Horstman, for plaintiff in error:
    Where the concurrent or successive negligence of two persons combined together result in an injury to a third person, he may recover of either or both for the damages resulting therefrom, and neither cán interpose the defense that the prior or concurrent negligence of the other contributed to the injury. 6 Am. & Eng. Enc. Law (2 ed.) 433, 434; Herr v. Lebanon (City), 149 Pa. St. 222 [24 Atl. Rep. 207; 16 L. R. A. 106; 34 Am. St. Rep. 603] ; 21 Am. & Eng. Enc. Law (2 ed.) 495, 496, 497; 1 Thompson, Negligence Secs. 75, 76.
    The fact that the statute in Ohio prescribes that the conduct of the motorman and conductor in a case at bar was negligence, does not alter the principle. It only furnishes evidence that certain acts or omissions shall constitute negligence. 3 Thompson, Negligence Sec. 2779; Transfer Co. v. Kelly, 36 Ohio St. 86; Cleveland, C. C. & I. Ry. Co. v. Schneider, 45 Ohio St. 678 [17 N. E. Rep. 321] ; Cincinnati St. Ry. Co. v. Murray, 53 Ohio St. 570, 573 [42 N. E. Rep. 596; 30 L. R. A. 508] ; Toledo Consol. St. Ry. Co1, v. Fuller, 9 Circ. Dec. 123 (17 R. 562) ; Kin-keath, Instructions & Entries Secs. 396, 397, 400 and notes; West Chicago St. Ry. Co. v. Piper, 165 Ill. 325 [46 N. E. Rep. 186] ; West Chicago' St. Ry. Co-, v. Kennedy-Cahill, 165 Ill. 496 [46 N. E. Rep. 368] ; Taylor v. Railway Co. 137 Mo. 363 [39 S. W. Rep. 88; 1 Am. Neg. Rep. 469] ; Pugh v. Railway Co. 19 Ky. Law 149 [39 S. W. Rep. 695; 2 Am. Neg. Rep. 159]; Barrett v. Railway Co. 45 N. Y. 628; Goorin v. Traction Co. 179 Pa. St. 327 [36 Atl. Rep. 207] ; Chicago, R. I. & P. Ry. Co-, v. Martin, 59 Kan. 437 [53 Pac. Rep. 461; 4 Am. Neg. Rep. 266] ; Tompkins v. Railway Co. 66 Cal. 163 [4 Pac. Rep. 1165] ; Chicago, R. I. & P. Ry. Co. v. Durand, 12 Am. Neg. Rep. 29 (Kan.) ; Springfield Consol. Ry. Co. v. Puntenney, 200 Ill. 9 [65 N. E. Rep. 442; 13 Am. Neg. Rep. 25] ; Matson v. Maupin, 75 Ala. 312 [1 Am. Neg. Cas. 1] ; McDonald v. Railway Co. 47 La. Ann. 1440 [17 So. Rep. 873; 1 Am. Neg. Cas. 627],
    A. W. Goldsmith, for defendant in error.
   GIFFEN, J.

Counsel for defendant in error assumes that Sec. 3443-6 Rev. Stat.', providing that before a street car shall' cross over a railroad track at grade, some employe of the company shall go ahead and ascertain if the way is clear, relieves the steam railroad company of the duty of so operating its gates as to indicate to the person operating the street car whether the track is clear. There is nothing in the statute that warrants such conclusion, and, having been enacted for the protection of the passengers, there can arise no implication that the legislature intended to expose them to danger by releasing the railroad company from the duty of exercising, ordinary care. On the contrary it was evidently intended to furnish an additional safeguard to the passengers who have no control over the management of the street car.

At the very time that it became the duty of the railroad company to lower its gates to indicate the approach of a train, it was also the duty of the street railway company by its employe to go ahead and see if the way was clear. The failure of each of the companies to perform such duty, concurred one with the other in causing the accident. There was no appreciable difference in the time when the failure to perform the duty by the respective companies occurred. The two ran together, and were the direct cause of the collision.

In the case of Cincinnati St. Ry. Co. v. Murray, 53 Ohio St. 570 [42 N. E. Rep. 596; 30 L. R. A. 508], both the street railway company and the steam railroad company were held liable upon a state of facts similar to that in the case before us; except in that case the railroad company was operating its train of cars in a negligent manner.

It may be said of that case that notwithstanding the gates were up, and notwithstanding the employe of the street railway company failed to go ahead to see if the way was clear, still the collision would probably not have occurred had the employes of the railroad company operating the train given some signal of the approaching train, and that the failure to do so was the direct cause of the accident, and therefore the street railway company was not liable. But the court evidently considered the three causes, although distinct and independent, as concurring to cause the collision.

We think, therefore, that the common pleas court erred in arresting the case from the jury, and the judgment will be reversed.


source: Caselaw Access Project

author: HULL, J.

license: Public Domain

text:
    CHAMPERTY AND MAINTENANCE.
    [Lucas (6th) Circuit Court,
    October 3, 1903.]
    Parker, Hull and I-Iaynes, JJ.
    Peter Emslie v. Ford Plate Glass Co.
    Champertous Contract Void.
    A simple contract between attorney and client, whereby the attorney is to receive a share of the recovery as compensation for his services, is binding and legal; but where the attorney undertakes to pay a part of the expenses and in that way acquires a pecuniary interest in a suit, or an agreement is , entered into with the client that no settlement or compromise shall be made without the attorney’s consent, the contract is champertous and void.
    ERROR to the court of common pleas of Lucas count)'.
    Peter Emslie, for plaintiff.
    Baldwin & Harrington, for defendant.
   HULL, J.

A demurrer to the plaintiff’s petition was sustained in the court, of common pleas on the ground that it did not state a cause of action. Judgment was rendered upon the demurrer against the plaintiff and his petition dismissed. Error is prosecuted to this judgment.

Plaintiff, who is an attorney, claims in his petition that his client, William. P. Eggleston, had a suit pending against the defendant, The Edward Ford Plate Glass Company, which he had brought for him as attorney (an action for a personal injury), and he sets up in his petition that as1 a consideration for his services as attorney “the said William P. Eggleston agreed to pay to the said Peter Emslie one-half of all the money obtained by suit or settlement; that no settlement was to be made with said defendant company without the consent and approval of the said William P. Eggleston and his said attorney, Peter Emslie.” And he further alleges that he notified said company of his said contract between himself and his client; that The Ford Plate Glass Company offered to settle the case at one time and the offer was refused; that his client is insolvent and not the owner of any property; that the defendant, with full knowledge of the contract between him and his client, settled the case with his client without Emslie’s knowledge or consent, and procured his client to consent to a dismissal of the case; that the glass company came into court and dismissed the case against Mr. Emslie’s objection and over his protest; and he alleges that this settlement was brought about by the glass company through their .agents by false and malicious representations which they made to his client, that he would be arrested for perjury; that his attorney had “lied to him,” and that said agents had told Eggleston’ that his fraternal organizations would “turn him down” and deprive him of opportunities to get employment, if he did not settle the case; and plaintiff alleges that there was a conspiracy against himself to deprive him of his profits under his contract and that defendant succeeded, as he says, in “alienating” his client from him and depriving him of the profit that he might have reaped under this contract, and he asks judgment against The Ford Plate Glass Company, by reason of this alleged violation of his rights, in the sum of $500.

This petition was found to be demurrable in the court below, and, as is insisted in this court, for the reason that the contract set up by Mr. Emslie is contrary to public policy, illegal and void, and that, therefore, no cause of action’ can be based upon it, as a cause of action cannot rest upon an illegal and void contract.

We are of the opinion that the court of common pleas was correct; that the contract plead in this petition is contrary to public policy and void. Champertous contracts have always been held from time immemorial, both in this country and in England, to be void, and champerty and maintenance, under the common law, in former times, were held to be misdemeanors punishable by fine and imprisonment, and in some cases as contempt of court. Whore a- lawyer or attorney agrees, for a portion of the. amount involved, to carry on a lawsuit and that he will pay the expenses of the suit, or a part of the expenses of the suit, all such contracts are held void as contrary to public policj', encouraging litigation and having a tendency to the harassing of the parties. A contract that a lawyer is to pay the costs, or a part of the costs in a case in which he has no personal interest except his fees, is void; and a contract by the terms of which a plaintiff is not permitted to settle without the consent of his attorney, is also- void — it takes from the client the power to settle his case, a right which he has under the law and cannot legally bargain away; it takes from the defendant also the right to settle and compromise, a right to buy his peace and get out of court if he can make an adjustment with the plaintiff, which is always encouraged by the courts as tending to^ peace and the ending of litigation. This contract provides that Eggleston shall not settle without the consent of Emslie, and for that reason is null and void, and, being so, it did not affect Eggleston’s right to settle with the plate glass company in any respect nor the right of the glass company to settle with Eggleston on terms offered or on any basis satisfactory to him. The petition alleges that Eggleston was at the time in a bad mental condition, by reason of facts that are set forth; that he was harassed and not in a condition to make a contract. This was a matter with which Ernslie had nothing to do. If Eggleston is satisfied with the contract he has made, his attorney cannot complain, and Eggleston does not complain of the settlement which he has made. Such contracts as this have been held void in this state from the first volume of the Supreme Court reports in which a decision is found. The question seems to have come early in the judicial history of the state, when that court did not have so much to do as they have now, and they discussed it at great length, apparently with an intention of settling the question for all time to come. This decision is Key v. Vattier, 1 Ohio 132, 153. The opinion is by Judge Burnet, and is a full discussion of the whole matter, citing all the authorities 'extant at the time. This was an action brought by an attorney to recover one-half of some land over which there had been litigation which the attorney had conducted for his client. The contract between them was that the attorney ^was to have one-half of the land, and the agreement was that the client was not to settle without the attorney’s consent. The Supreme Court say, on page 146:

“Such practices are oppressive on the parties immediately concerned. They have an injurious effect on the community at large; they are against the policy of the law, and ought to be suppressed.”

And on page 147, they say:

“That such contracts have been frequent proves nothing of use to the plaintiff. We cannot resort to the maxim communis error facit jus; it has no application to a case like this. ‘ But we apprehend that such contracts have been less frequent than the gentlemen imagine. By this contract, counsel stipulate, as a compensation for their services, that they shall receive a moiety of all they may recover. They are to indemnify the plaintiff against costs, and he is bound not to settle or compromise without their consent, If such contracts have been common, we have yet to learn the fact. It is' to- be hoped, however, the counsel have been misinformed; but if not, it is certainly time the law-should give a check to such a practice.”

The syllabus of the case covers a few lines only, and says:

. “Contract with an attorney that he shall prosecute suits for the recovery of property, and that no compromise shall be made except he join in it, to receive part of the property recovered as compensation^ illegal and void.”

In Pennsylvania Co. v. Lombardo, 49 Ohio St. 1 [29 N. E. Rep. 573; 14 L. R. A. 789], this question is discussed, and the court there, through Judge Minshall, on page five, say:

“It seems well settled by the previous decisions of this court, that a contract between an attorney and client by which the former is to prosecute the action at his own expense, and receive for his compensation a part' of the recovery, is against public policy, and cannot be enforced; and it seems that this would be the case in a contract by which the attorney is simply to receive a part, coupled with a stipulation that no compromise or settlement is toi be made without his consent.” Citing Key v. Vattier, 1 Ohio 132, and other cases.

The last consideration by the Supreme Court of this question is Brown v. Ginn, 66 Ohio St. 316 [64 N. E. Rep. 123]. They say in the syllabus:

“A contract by which several accounts against the same debtor are assigned by the holders to another termed a trustee for the purpose of having the same prosecuted for collection by suit or otherwise, and the proceeds, after payment of costs and fees of the trustee for prosecuting the action, to be paid to the assignors in proportion as the claim of each may bear to the whole sum recovered, does not constitute such assignee the real party in interest within the purview of Sec. 4993 Rev. Stat., so as to enable him to maintain an action in his own name upon such accounts. Nor is he a trustee of an express trust within the meaning of Sec. 4995 Rev. Stat.
“A contract assigning several .accounts for the purpose of collection which gives to the assignee (an attorney) a contingent fee depending on success, to be deducted from the proceeds of a suit to collect the accounts, which suit is to be prosecuted by him in his own name and at his own risk and cost, and which also deprives the assignors of any right to control or compromise the suit, is against public policy as champertous, and is invalid.”

It seems to be clearly established by the authorities of this state and everywhere, that such a contract as this is illegal and void. It has been held that a simple contract for a share of the recovery, as compensation for the attorney’s services, is a binding and legal contract. In many cases, that is the only way in which a man without money or means can have his case conducted and tried, and in all cases such contracts are sustained by the courts; but, where the attorney undertakes to pay a part of the expenses and thus acquires a pecuniary interest in a suit, or agrees with his client that no settlement or compromise shall be made without the consent of the attorney, such an agreement, by all the authorities, is held to be champertous, contrary to public policy, and void. Such a contract is the one set up in the petition, and the judgment of the common pleas, holding that the breach of it did not constitute a cause of action, was correct, and the judgment will therefore be affirmed.


text:
    MANDAMUS — BILLS OF EXCEPTIONS — AFFIDAVITS.
    [Hamilton (1st) Circuit Court,
    December 16, 1903.]
    Giffen, Jelke and Swing, JJ.
    State, ex rel. Wolf, v. Fred S. Spiegel (Common Pleas Judge).
    1. Affidavits Cannot be Made Part of Bill of Exceptions, When — Judicial Discretion not Controlled by Mandamus.
    Affidavits in support oí a motion for new trial filed by the plaintiff in an action with the clerk of courts, but not presented to the court upon the hearing of the motion, and of which the court has no knowledge, cannot be embodied into or made a part of a bill of exceptions, and if attached thereto or embodied therein the bill of exceptions is not a true bill and may properly be rejected by the court when presented to him for signing and allowance.
    2. Court may Dismiss Petition in Mandamus on Pleadings, When.
    A petition in mandamus to compel a court to sign and allow a bill of exceptions may be dismissed on the pleading's when respondent answers that the bill referred to is not a true bill, that an amended bill of exceptions was filed with the clerk by the defendant, and that respondent judicially determined the latter to be the true bill and signed and allowed the same, where such answer is not denied by reply of the relator.
    Mandamus.
    Galvin & Bauer and Dempsey & Fridman, for relator.
    Charles W. Baker, contra.
   GIFFEN, J.

The relator in her petition avers that she filed a true bill of exceptions with the clerk of the court in the case of Carrie Wolf against Sarah Marmet and others, and that the clerk transmitted the bill to the respondent, the trial judge in the case, who- returned the same to the clerk unsigned, unindorsed and unallowed, and the relator prays that the respondent be compelled by mandamus to allow and sign the relator’s said full, complete and true bill of exceptions in said case against Sarah Man met and others'.

The respondent, by answer, says that the bill of exceptions so filed with the clerk was not a true bill, and that an amended bill of exceptions was filed with the clerk by the defendants in the cause, and the respondent judicially determining' that the latter was a true bill, signed and allowed the same. This is not denied by any reply, and upon the pleadings therefor the respondent would be entitled to have the petition of the relator dismissed. But assuming that the allegation in the answer was denied, the question arises whether affidavits filed with the clerk of the court upon a motion for a new trial and not presented to the court upon the hearing should be embodied in the bill of exceptions. The object of filing the affidavits with ’the clerk before the hearing is to give the adverse party an opportunity to prepare and file before the hearing counter-affidavits, neither of which are a part of the record of the cause. The party so filing the affidavits may elect before the hearing- not to present the affidavits to the court, and if o*ffered as evidence the adverse party may object on the ground that they are not properly executed, or that the statements therein are mere conclusions of law, or that the facts stated are irrelevant to the issue. If the objection is sustained by the court and the affidavits ruled out, the party is not entitled to have them attached even then, to a bill of exceptions, unless he excepts to the ruling of the court in excluding them. The affidavits not being presented to the court, the court having no knowledge that the same were filed with the clerk, and rightly declaring the bill of exceptions containing such affidavits not to be a true bill and the respondent having answered that he signed a true bill of exceptions in the cause, this court cannot interfere with his discretion in the premises. State v. Hawes, 43 Ohio St. 16 [1 N. E. Rep. 1].

The petition of the relator will be dismissed.


text:
    INTOXICATING LIQUORS — BEAL LAW — ELECTIONS— COURTS.
    [Wood (6th) Circuit Court,
    November 28, 1903.]
    Parker, Hull and Haynes, JJ.
    Frank Fike v. State of Ohio.
    1. Election Laws Construed Liberally to Preserve Choice oe People.
    Election laws are to be construed liberally so as to preserve, if possible, and not defeat, the choice of the people as expressed at an election.
    2. Publication oe Mayor’s Proclamation oe Beal Law Election (Sec. 4364-20a Rev. Stat.) not Jurisdictional.
    Failure to publish for a full period of ten days the mayor’s proclamation of a special election to be held under See. 4364-20a Rev. Stat. et seq. (commonly called the Beal local option election law), is not fatal to the validity of the election, where the election was otherwise regularly held, knowledge of its approach was general throughout the municipality, and a comparatively full vote was cast, and no attempt was made to deceive or'mislead any one, and it does not appear that any elector was either without knowledge thereof, kept from voting, or failed to vote on account of the failure to give'full ten days’ notice. Publication of notice for ten days, under such circumstances, is not jurisdictional, and failure to publish it for the full period is a mere irregularity which does not invalidate the election.
    3. Validity oe Beal Law Election Cannot be Collaterally Impeached — Remedy by Contest Under Sec. 4364-20Í Rev. Stat. Exclusive.
    The validity of a special local election held under Sec. 4364-20a Rev. Stat. et seq., which resulted in the prohibition of the sale of intoxicating liquors within a municipality, cannot be collaterally impeached by a defendant in a criminal prosecution for selling intoxicating liquor in violation thereof, notwithstanding he may have moved into the municipality after the election. The election contest provided by Sec. 4364-20Í Rev. Stat. is exclusive, and the general rule that a defendant in a criminal action may raise the constitutionality of the ■law under which he is prosecuted has no application to such cases.
    4. Mayors Cannot Grant Change of Venue — Section 6529 Rev. Stat. not Applicable.
    Mayors’ courts are without authority to grant a change of venue in misdemeanor prosecutions; final jurisdiction thereof, is given such courts under Secs. 1817 and 6529 Rev. Stat., providing for a change of venue before justices of the peace when the justice is a material witness in the case or is prejudiced, is not applicable to mayors’ courts.
    5. Judgment oe Mayor in Misdemeanor Cases not Reviewable on Weight of' Evidence.
    The judgment of a mayor’s court in misdemeanor prosecutions cannot be reviewed upon the weight of the evidence. Section 6565 Rev. Stat., relating to bills of exceptions before mayors and justices of the peace, only provides for a review on questions of law, not of fact; and Sec. 1752 Rev. Stat. only authorizes such review when the judgment is one of conviction for violating a municipal ordinance.
    ERROR to court of common pleas of Wood county.
    Frank Sala and James Millard & Powell, for plaintiff in error.

      E. G. McClelland, prosecuting attorney, and W. B. Wheeler, for defendant in error:
    Where the offense is.a misdemeanor and the penalty is a money fine only (no part of the penalty being imprisonment), the accused is not entitled to a trial by jury.' Ward v. State, 5 Dee. 230 (5 N. P. 81); Bradner (Vil.) v. Grundetisch, 8 Circ. Dec. 122 (15 R. 32, 35) ; Fletcher v. State, 7 Circ. Dec. 316 (18 R. 674) ; Inwood v. State, 42 Ohio St. 186; Cincinnati v. Steincamp, 54 Ohio St. 284, 290; Board of Health v. Heister, 37 N. Y. 661; State v. Peters, 67 Ohio St. 494 [66 N. E. Rep. 521],
    Jurisdiction of mayor extends throughout the county. Ward v. State, 5 Dec. 230 (5 Ñ. P. 81) ; Fletcher v. State, 7 Circ. Dec. 316 (18 R. 674) ; Peters v. State, 11 Dec. 555 (8 N. P. 595) ; State v. Peters, 67 Ohio St. 494 [66 N. E. Rep. 521].
    Procedure in criminal cases is governed by statute, and if the statutes do not provide for a change of the place of trial in mayors’ courts, the motion cannot be granted. The municipal code which provides the procedure in mayors’ courts in criminal and quasi-criminal cases, has not authorized the transfer of a case brought before a mayor for trial to another officer. Sections 550, 1744 and 6529 Rev. Stat.; Volk v. Westerville, 11 Dec. 144 (8 N. P. 139).
    Defendant cannot attack the legal existence of the village and the right of the officers to try the case. It is a well-settled principle of law that the title of an officer de facto of a municipal corporation de facto cannot be tried collaterally, but only in direct proceedings brought to determine that very question. Mechem, Pub. Off. Secs. 328, 330, 343 and 344,
    The validity of the local option election cannot be attacked collaterally. The Beal local option law, See. 4364-20Í, provides a specific' method for contesting the validity of the election. The validity of the election can only be contested in the manner outlined in the statute. The remedy by contest being specific and adequate, is exclusive. See State v. Stewart, 26 Ohio St. 216; State v. Berry, 14 Ohio St. 315; also Peek v. Weddell, 17 Ohio St. 271, 284; State v. Marlow, 15 Ohio St. 114; State v. Berry, 47 Ohio St. 232 [24 N. E. Rep. 232] ; State v. Goodale, 7 Re. 707 (4 Bull. 1065).
    The ascertainment and declaration of the result of the election was prima facie correct, and it was conclusive until, in a proper action brought for the purpose, the true result otherwise should be ascertained by a judicial determination. The law contemplates and intends, generally, that the result of an election, as determined by the proper election officers, shall stand and be effective until it shall be regularly contested and reversed or adjudged to be void by a tribunal having jurisdiction for that purpose.
    The law does not provide for such continual and repeated contests in every ease that may arise. It intends that one contest, properly instituted for the purpose, shall establish the validity or invalidity of the election questioned.
    The validity of the election cannot be attacked in a collateral action. State v. Cooper, 101 N. C. 684 [8 S. E. Rep. 134] ; see also, State v. Emery, 98 N. C. 768 [3 S. E. Rep. 810] ; Commonwealth v. Lillard, 10 Ky. Law 561 [9 S. W. Rep. 710],
    If it appears that the people generally have actual knowledge of a special election, so that the result would not have been different if proper notice had béen given, failure to give such notice does not vitiate the election. Foster v. Scarff, 15 Ohio St. 532; Fry v. Booth, 19 Ohio St. 25; Howard v. Shields, 16 Ohio St. 184; Harpster ■ v. Brower, 3 Circ. Dec. 194 (5 R. 395) ; 10 Am. & Eng. Enc. Law (2 ed.) 626; State v. Doherty, 16 Wash. 382 [47 Pac. Rep. 958; 58 Am. St. Rep. 39] ; Black, Interpretation . of Laws 353; Dishon v. Smith, 10 Iowa 212; Commissioners v. Reynolds, 8 Pa. Co. Ct. Rep. 568; Wheat v. Smith, 50 Ark. 277 [7 S. W. Rep. 161]; Commonwealth v. Smith, 132 Mass. 289; Adsit v. Osmun, 84 Mich. 420 [48 N. W. Rep. 31] ; State v. Thayer, 31 Neb. 82 [47 N. W. Rep. 704] ; State v. Carroll, 17 R. I. 125 [21 Atl. Rep. 343]. '
    Where exceptions or provisos contained in separate and subsequent clauses of a statute, or, where the offense is clearly outlined in a separate part of the same section and the proviso is entirely separate, though it be in the same section, they need not be noticed in the indictment, but the defendant may show them it is his defense. United States v. Britton, 107 U. S. 655, 670 [2 Sup. Ct. Rep. 512] ; United States v. Cook, 84 U. S. (17 Wall.) 173; State v. McGlynn, 34 N. H. 422; 1 Bishop, Cr. Proced. Secs. 631, 642; Chitty, Cr. Law 283, 284; Wharton, Cr. Plead. Sec. 240; Becker v. State, 8 Ohio St. 391; State v. Shaw, 35 N. H. 217; State v. Tamler, 19 Ore. 528 [25 Pac. Rep. 471; 9 L. R. A. 853],
    In order, however, to limit much argument on this question in the mayor’s court, all of the negative exceptions necessary were placed in' the affidavit. Even if the court should hold that they must all be included in the affidavit, which we do not concede, even with this construction the affidavit will stand. Sections 7134, 7135, 7215 Rev. Stat.
    Rules as to disturbing verdicts. Simon v. Mooney, 12 Circ. Dec. 73 (22 R. 271) ; Price v. Coblitz, 12 Circ. Dee. 34 (21 R. 732) : Lake Shore & M. S. Ry. Co. v. Godwin, 12 Circ. Dec. 537; Gebaur v. Vesper, 10 Circ. Dec. S20 (20 R. 711) ; Andrews v. Watson, 12 Circ. Dee. 692; Breese v. State, 12 Ohio St. 146, 156 [80 Am. Dec. 340] ; Moran v. State, 5 Circ. Dee. 234 (11 R. 464) ; I-Ionck v. Wilson, 1 Dayton 153; Connecticut Fire Ins. Co. v. Carnahan, 10 Circ. Dec. 186 (19 R. 114).
   HULL, J.

There are six of these cases involving the same questions, and the opinion of the court will be delivered in the case of Frank Fike.

These eases are in this court on petition in error to the judgment of'the court of common pleas, that court affirming the judgment of the mayor’s court of the village of Freeport in this county. This court is asked to reverse the judgment of both courts below. The plaintiffs-, in error were prosecuted and convicted before the mayor of the village-of Freeport for the violation of certain provisions of the liquor law of' this state known as the Beal law which provides for the regulation of the liquor traffic.

An election was held under the local option feature of this law in the village of Freeport on July 18, 1902, and at that election a majority of the electors who voted, voted in favor of prohibiting the sale of liquor; 68 votes against such prohibition and 127 in favor; or, to put it in the language of the statute 68 votes for the sale and 127 votes against the sale, making 195 votes in all cast. Under the provisions of this law, after a petition has been duly filed as provided in the statute, an election is to be held after due proclamation has been made, and in case a majority of the electors vote against the sale, such sale from that time becomes unlawful within the limits of the municipal corporation. These plaintiffs in error, defendants below, were .convicted and fined for an alleged vioation of this law. The chief contention, although there are other claims made upon this proceeding in error, is that the election was not a legal election, and that therefore the voters of this municipality have never lawfully chosen by ballot to prohibit the sale of intoxicating liquors within its limits."

The ground of complaint is that the proclamation- for the election signed by the mayor was not published for the period of ten days as required by the provisions of this law, See. 4364-24 Rev. Stat., which provides that proclamation shall be made the same as for election of couneilmen, which requires ten days’ publication of notice.

The proclamation of the mayor in this case giving notice of the election was dated by him as of July 8, 1902, and called for an election upon July 18 to be published in the weekly paper, the Prairie Depot Observer, but it was not published until the issue of the paper of that week which was July 11, 1902, notifying the electors that the election would be held on July 18, thereby giving them only seven days’ notice if we exclude one day; eight days at the most, while the law requires ten days’ notice.

It is claimed that this was fatal to the election; that this statute provides how the sale of intoxicating liquors may be prohibited by the people of a municipal corporation; that it is in a way, permitting the people to make a law for themselves by vote, and it is claimed that before any valid election can be held, the requirements of the law must be complied with, and the notice must be given as required by the statute, and if not, that all proceedings are null and void, and cases , are cited which it is claimed, tend to sustain this proposition.

On the other hand it is claimed by the state, the defendant in error, that if the evidence shows that there was no fraud, no intent to prevent the electors from having full notice ,of this election, and if the election was regularly held, and if the evidence shows there was a full and fair vote and general knowledge of the coming election in the community, that this failure on the part of the mayor to give notice the full time required by the statute would not invalidate the election.

The record in this case shows that the petition was filed as required by law (the law requiring the signatures of forty per cent, of the electors), and that the election was held at the proper time after the petition was filed; and it shows that there was general knowledge of the coming election among the people in the community; that it was discussed upon the streets; that public meetings were held to consider and discuss the matter at which- speeches were made, and there was work done pro and con, as the record shows by the voters of the municipality —some working for it as the election approached, and some, working against it. There is no evidence that any person whether elector or not, man, woman or' child in this village, failed to learn, or did not have notice of this election. There is no evidence that any voter was kept from voting, or failed to vote at this election on account of the lack of two or three days’ notice of the time required by law.

The election occurred in July and there were 195 votes cast.- At the municipal election of the preceding spring, there were 175 votes cast; at the presidential election held in 1900 there were more votes cast, but the reason for that was that the entire township 'vote was east then. There were more votes cast at this election under the Be§l law. than were cast at the preceding spring municipal election.

We are of the opinion that under this state of facts, the failure to give, in the respect mentioned, the notice, or rather publish the proclamation of the mayor, was not fatal; that that in itself wás not sufficient to have this election declared invalid.

This question, and others of similar character have been before the courts of this country a great many times, and cases may be found possibly that would go so far as to hold this election invalid, but the great weight of authority is against it. The general doctrine is that mere irregularities, that do not go to the foundation of the election,, will not invalidate the election, although the provisions of the statute have been technically violated, if it appears that there has been a fair election and a comparatively full vote, and no fraud or attempt to deceive or mislead. I. should add further in connection with the facts in this case, that the election was held under the auspices and direction of the regular county election board, and that the regularly appointed judges and clerks had charge of the election with perhaps one exception ; one officer was sworn in that day to take the place of an absentee.

The general rule, as gathered from all the authorities is stated in 10 Am. & Eng. Ene. Law (2 ed.) 626, where the author says:

“In the ease of a special election, however, when the law does not fix the time and place.for holding the same, but they are to be fixed by some authority, failure to give notice or issue a proclamation of the election” (that is, failure to give any notice) “will render it a nullity, unless the people have actual knowledge and attend, so that the result is not affected. If it appears that the people generally had actual knowledge of a special election, so that the result would not have been different if proper notice had been given, failure to give such notice does not vitiate the election.”

The case of Dishon v. Smith, 10 Iowa 212 is in point; this is found in the syllabus:

“Notices of election: -The provisions of Chap. 46, Laws of 1855, ‘An act in relation to county seats,’ prescribing the time and manner of giving notices of the presentation of a petition for holding an election on the removal of the county seat, are directory merely, and the absence of such notice, will not invalidate an election of which the people were duly notified. An election will not be invalidated by the omission of some duty by an officer charged with giving notice thereof, when such election has been duly ordered and held.”

I will read from page 218 of the opinion: “In matters of such a public nature, the observance of each particular is not held a prerequisite to validity. And it is a general rule of law, that statutes directing the mode of proceeding of public officers, relating to time and manner, are directory.”

And further on in the same case-; “But there is a peculiar fitness in the rule when applied to popular elections, in which case we may consider the character of the duties and, of the men necessarily chosen to perlorm them. They are usually men not instructed in their duties nor in nice forms and distinctions. Many of the duties too, are to be performed in haste and amidst confusion and without opportunity for deliberation. ’ ’

And further along:

“And it has been remarked, further, that the people are not to be disfranchised, to be deprived of their voice, by the omission of some duty by an officer, if an election has, in fact been' held at the proper time; and that such penalty ought hot to be visited upon them for the negligence or willfulness of one charged with similar duties. Upon considerations like these the courts have held that the voice of the people is not to be rejected for a defect, or even a want of notice if they have in truth, been called upon and have'spoken. In the present ease whether there were notices or not, there was an election and the people of the county voted, and it is not alleged that any portion of them failed in knowledge of the pendency of the question, or to exercise their franchise. ’ ’

So in the cases under consideration, it is not claimed by the plaintiffs in error that there was not full notice and knowledge of this election that was to be held, and it is not claimed that any voter was kept from voting, and as is said in another part of this opinion, in Dishon v. Smith, supra, this matter of notice is not jurisdictional in the ease of an election, as it is in the case of beginning a suit in court. The court says:

“And it is further averred that there was no such notice in fact. It is an error to regard this as a jurisdictional matter. This idea pertains in eases where the court acts judicially and in matters between party and party, and not to one of the nature of the present one, which is a vote of the people. Nor does the want of such notice invalidate the election.”

In a case in California, the election place was changed a short distance from the regularly appointed place, and the supreme court of California held that that would not vitiate the election.- In Foster v. Scarff, 15 Ohio St. 532, a case is reported where an election was held invalid because there had been no notice of the election and no proclamation that such an officer was to be elected. This was an election to fill a vacancy in the office of pi’obate judge. The court in the syllabus says:

“Where a vacancy is about to occur in the office of probate judge, by reason of the expiration of the term of an incumbent of that office, and the sheriff, in pursuance of the statute; in due time prior to the day for the regular election, publishes his proclamation, giving notice of such election, and enumerating therein all the state and county offices to be filled at such election, except the office of probate judge, in respect to which the proclamation is silent; and, by reason of such misfeasance of the sheriff, the great body of the electors of the county are misled, and have no notice, either official or in fact of an election to fill the office of probate judge; but, nevertheless, a small number of the electors of the county, less than one-fourth of the whole numbér of voters at that election, cast their votes for a single candidate, and no votes are cast for any other — such attempted election is irregular and invalid.”

But no such state of facts exists in this case, where, as I have said, there was a larger vote than at the preceding municipal election and there was a. general knowledge of the election. Judge Brinkerhoff, speaking for the court, says, page 537:

“In deciding this case, however, we do not intend to go beyond the case before us, as presented by its own peculiar facts. We do not intend to hold, nor are we of the opinion, that the notice by proclamation, as prescribed by law, is per se, and in all supposable eases, necessary to the validity of an election. * * * We have no doubt that where an election is held in other respects as prescribed by law, and notice in fact of the election is brought home to the great body of the ¡electors, though derived through means other than the proclamation which the law prescribes, such election would be valid. But where, as in this case, there was no notice, either by official proclamation, or in fact, and it is obvious that the great body of the electors were misled, for want of the official proclamation, its absence becomes such an irregularity as to prevent an actual choice by the electors, prevents an actual election, in the primary sense of the word, and renders invalid any semblance of an election, which may have been attempted by a few, and which must operate, if it be allowed to operate at all, as a surprise and fraud upon the rights of the many.”

As stated by the court in this case, where there is no general knowledge of an election, or such a lack of knowledge that only one man was a candidate for the office, a case like that is not in fact an election; it is merely a few electors getting together and appointing a man to the office. That was not the case here. The general doctrine of the cases and of the authorities is, that election laws are to be construed liberally, so as to preserve, if possible, the choice of the people as expressed at an election, and not to thwart it or defeat it as is said by Judge Cooley in his work on Constitutional Limitations, page 778.

In the case of Harpster v. Brower, 3 Circ. Dec. 194 (5 R. 395) a question similar to the one under consideration here was raised. Thu was a special election upon the question as to whether a town hah should be erected in the township and the statute under which the election was to be held required notice to be given thirty days, and the notice that was given lacked six days of the time, and it was claimed that the election was invalid. The second paragraph of the syllabus is as follows:

“ An election will not be declared void because the notice required by statute was not given for the full length of time specified, when it appears that the great body of electors had actual notice and participated in the election.”

Judge Moore says in the opinion, that in view of the facts in the case it was- not an absolute necessity that they should pass upon'the question, but they did give their views upon it as stated in this paragraph of the syllabus which I have read.

The case of State v. Doherty, 16 Wash. 382 [47 Pac. Rep. 958; 58 Am. St. Rep. 39], is in point. The Supreme Court of that state say: “Formalities in giving notice prescribed by statute are regarded as directory merely, unless there is a declaration that a failure to observe a particular formality shall render the election void. An election will therefore not be declared invalid for the omission of some formality in the notice, if it appears that the time and place of holding the election and the questions to be submitted had. become matters of general notoriety, and that the great body of electors participated in the election.”

The provision in the Beal law requiring notice, is found in Sec. 4364-24 Rev. Stat., “and notice shall be given and the election conducted in all respects as provided.by law” for the election of members of the council of the corporation, so far as said law may be applicable. And there is no provision that unless this requirement as to notice is complied with strictly, the election shall be void. We hold that notwithstanding this irregularity in the matter of notice, the election was valid and binding upon all the people of the municipality of Freeport.

It is urged further by counsel for the state that this question cannot be raised in this proceeding; that upon a plea of not guilty under a prosecution for á7 violation of the law, the defendant cannot be heard upon the question of the validity of the election for the reason that the statute itself provides a method for contesting the validity of the election, and it is urged that that method must be followed. This pro- . vision is found in Sec. 4364-20Í Rev. Stat. which provides:

“Any person being a qualified elector of any municipal corporation wherein an election shall have been held as provided for in this act may contest the validity of such election by filing a petition duly verified with probate court of the county in which such municipal corporation is situated, witbin ten days after the election, setting forth the grounds for contest.”

And then follows the procedure: The jury shall be summoned etc.; and the method of procedure of the contest before the probate judge. It is urged by the plaintiff in error that a defendant in a criminal case has the right 'to raise the question of the validity of the law at any time.. This is undoubtedly true, generally, but the question here is rather whether he can question the validity of an election of an official befbre whom he is being tried or the validity of an election held under such a statute as this, or whether such question must not be determined in an election contest as provided by law, and we are of the opinion that this question cannot be raised as has beer sought to raise it here; that the validity of this election cannot be attacked collaterally. It has been held that the constitutionality of an act may be raised in this way, but the general rule, and, so far as we can discover, the universal rule, is that an election contest cannot be injected into a criminal prosecution by attacking the validity of such an election as this, and we think that has been settled by the Supreme Court of this state, by a case that went from this county. It is the case of Peck v. Weddell, 17 Ohio St. 271. This was a county seat contest; a contest between Bowling Green and Perrysburg where an election had been held; and it was claimed that various frauds had been committed for the purpose of showing, or attempting to show that a majority of the people of the county desired to have Perrysburg for the county seat. The court say in the second paragraph of the syllabus:

“That allegations of fraud and illegality in conducting the election, constitute no sufficient ground for such injunction. Wrongs of such a nature can be inquired into and redressed only by means of a contest of the election, pursuant to the provisions of the act of April 18, 1857. ’ ’

Here was a claim of fraud and illegality in conducting an election. The claim in the case before us is that there was a fatal defect in the matter of notice. The court in ease of Peck v. Weddell, supra, held that such a question must be determined in a contest, and on page 284, Judge Scott, delivering the opinion of the court says:

“It is evident that this mode of inquiring into alleged frauds in elections, and of ascertaining the will of the majority of the electors, as expressed by the legal ballots, would be very illy adapted to accomplish the end proposed, and would be as likely to facilitate the perpetration, as the correction, of frauds against the public. But the remedy by contest under the statute is speedy, appropriate, and1 adequate; it affords an opportunity of being fully heard, to everyone interested; and the decision of such contest, is by a judgment which binds all the world. This specific remedy having been given by statute, and being the sole remedy adapted to the ends of speedy justice, there is no reason why a court of equity should intervene, by injunction, until the facts alleged in the petition have been found, upon such contest.
‘ ‘ It was held by this court in State v. Berry, 14 Ohio St. 315, that a contest is the specific and sole remedy provided by statute for the correction of all frauds, errors, and mistakes which may occur in the process of ascertaining and declaring the public will, as expressed through the ballot boxes.”

As 'stated by Judge Scott, the question was first decided in the case of State v. Berry, 14 Ohio St. 315, to which reference is made. The constitution itself requires the legislature to make provision for the contest of all elections. Section 21, Art. 2 is in this language:

“The general assembly shall determine, by law, before what authority, and in what manner, the trial of contested elections shall be conducted;” and the general assembly in this case determined and declared, in the statute which I have read, how and befsre what tribunal a contest growing out of such an election as this, should be determined.

The case of State v. Marlow, 15 Ohio St. 114, is to the same effect, the syllabus reading:

“A specific mqde of contesting elections in this state, having been provided by statute, according to the requirements of the constitution, that mode alone can be resorted to, in exclusion of the common law mode of inquiry by proceeding in quo warranto. The statute which gives this special remedy, and prescribes the mode of its exercise, binds the state as well as individuals.”

The question in this case was whether the state would be bound the same as an individual would be by such a contest, and the Supreme Court held that the state would be bound as well as the electors of the community. The court say on page 135 of the opinion: “We think that it was clearly intended that the state should be bound. In our system of popular government, as between candidates who are legally eligible, an absolute right of choice belongs to the electors, to be exercised according to their sole discretion, and when their votes have been canvassed, and the result publicly declared, if all the electors of the proper district, whose will is entitled to absolute control, are satisfied with the fact thus declaimed, we perceive no good reason for allowing that fact to be questioned in any other quarter.”

In the case at bar the election having been held, the result having been declared, and the people having expressed their choice, the law has become fixed and whoever comes into the municipality thereafter is bound by it. It is urged in this case 'that if there was a defect in the notice of the election, the election ought not to be held valid against one who moved into the municipality afterwards and had no opportunity to contest. We think this objection is not well taken. He must submit to the will of the people 'expressed before he came into the community. State v. Stewart, 26 Ohio St. 216, is also in point, especially on page 221, and an earlier case, Edwards v. Knight, 8 Ohio 375. We cite also State v. Cooper, 101 N. C. 684 [8 S. E. Rep. 134], The Supreme Court of North Carolina say:

“The ascertainment and declaration of the result of the election was prima facie correct, and it was conclusive until, in a proper action brought for the purpose, the true result otherwise should be ascertained by a judicial determination. The law contemplates and intends, generally, that the result of an election, as determined by the proper election officers, shall stand and be effective until it shall be regularly contested and reversed, or adjudged to be void by a tribunal having jurisdiction for the purpose. * * * The law does not provide for such continual and repeated contests in every case that may arise. It intends that one contest, properly instituted for the purpose, shall establish the validity or invalidity of the election questioned.”

We hold that a defendant being prosecuted under this statute, cannot defend upon the ground that is urged in this case; that can only be taken advantage of by a contest of the election according to the provisions of this statute.

There are two other objections made which 1 will refer to briefly. Th'e eases were tried before the-mayor without a jury. A change of venue was asked for on the ground that the mayor was biased and was a material witness. We find no provision in the statute permitting a change of venue on this ground in a prosecution before the mayor. Section 1744 Rev. Stat. provides that the mayor within the limits of the corporation shall have all the jurisdiction and powers of a justice of the peace, etc. Section 6529 Rev. Stat. provides for a change of venue before a justice of the peace. Section 1817 Rev. Stat. provides for the final jurisdiction of the mayor in cases of misdemeanor:

“He shall have final jurisdiction to hear and determine any prosecution for a misdemeanor, unless the accused is, by the constitution, entitled to a trial by jury; and his jurisdiction in such cases shall be coextensive with the county.”

There is no provision in the statute for a change of venue from the mayor’s court where a man is being tried for a misdemeanor. '

It is urged further that the conviction of the defendant by the judgment of the mayor was against the weight of the evidence. With-Cut discussing the question at any great length I will say that we hold that under the statutes in this state, a judgment of the mayor in eases of prosecution for a misdemeanor cannot be reviewed upon the weight of the evidence. There is no provision in the statute for such review. Section 6565 Rev. Stat. relates to bills of exceptions before a justice of the peace, mayor and police judge, but that section only provides for a review on questions of law and not on questions of fact; and it has been held in Leonard v. Cincinnati, 26 Ohio St. 447 and Baer v. Otto, 34 Ohio St. 11, that the judgment of a justice of the peace cannot be reviewed on the weight of the evidence under this section. Also in Willenger v. Bramsche, 3 Circ. Dec. 731 (7 R. 208).

Section 1752 Rev. Stat. is sufficient to permit the review, on the weight of the evidence, of a judgment of a mayor on a conviction for the violation of an ordinance, but is silent as to misdemeanors. So that we find that there is no provision for the review of a conviction before the mayor of a misdemeanor on the ground that the judgment is against the weight of the evidence; we therefore decline to consider these cases and have not considered them upon that question.

We find then, that the election was valid, and that if it was not, on account of the objection made to the notice, that that question cannot be raised by the defendants in this manner but must be raised if at all by an election contest as provided in the statute. We find no errors in the records to the prejudice of the plaintiffs in error, and the judgments in the several cases will be affirmed.


author: HAYNES, J.

text:
    RAILROADS — NEGLIGENCE.
    [Lucas (6th) Circuit Court,
    March 10, 1904.]
    Parker, Hull and Haynes, JJ.
    Wheeling & L. E. Ry. Co. v. Hattie I. Fisher, Admx.
    1. Telegraphic Order to Engineer, Notice of Danger, When.
    A telegraphic order to a locomotive engineer to “reduce speed to five miles an hour through the cut east of Valley Junction, and look out for rocks falling in cuts east and west of Rockford,” is notice to him that rocks are likely to fall upon the track at such points; that he is to look out and avoid them; and that he must keep his train under such control that it can be stopped within his range of vision if necessary.
    2. Engineer Running Train Contrary to Orders, Contributory Negligence.
    A locomotive engineer of a heavy freight train properly equipped with air brakes and other appliances, having control of the rate' of speed at which it should be run between stations, is guilty of contributory negligence in allowing his train to run down a steep grade through a curved “cut” at a speed of twenty miles an hour in disregard of telegraphic orders from the company to “reduce speed to five miles an hour” and “look out for rocks falling,” etc. Hence, where such engineer is killed by reason of his engine and train being wrecked by a large rock on the track in the “cut” referred to in the order, which could have been avoided had the order been obeyed, his negligence in disregarding the order will preclude a recovery by his administratrix, notwithstanding the negligence of the company in failing to maintain a watchman at such “cut” to signal approaching trains of danger.
    Error to Lucas common pleas court.
    C. A. Seiders, for plaintiff in error.
    Kohn & Northup, for defendant in error.
   HAYNES, J.

(Orally.)

A petition in error was filed in tbis court to reverse tbe judgment of tbe court of common pleas. The action was brought by Hattie I. Fisher, administratrix, against the railroad company for the purpose of recovering damages from the railroad company occasioned by the death of her husband, which, it is averred, was caused by the negligence of the defendant company. Such proceedings were had in that ease as that a verdict was rendered by the jury for the plaintiff in the sum of $7,500 and a judgment was entered upon that verdict. And this petition in error is prosecuted for the purpose of reversing that judgment and to set aside that verdict.

The accident occurred at a place called Rock Point; in the southeastern part of the state and about three or four hours run this side of Wheeling. An outline of the facts is: In that part of the state the country is broken and rolling and at various places there are cuts through which the railroad passes, the last one in that section being this Rock Point, as it is called. In the immediate neighborhood of this point the last station is a place called Rockford, which was about four miles from the Rock Point and the road from there runs along to a point about a mile and three-quarters east of Rock Point where you arrive at a place called the Summit Point, making it up grade the most of the time to that point, and from there it was for some distance down grade, the next station being two or three miles beyond Rock Point'. From this summit down to Rock Point there is a drop of seventy feet in the grade.

The decedent had left Wheeling with a freight train on April 4, 1901, at 5:35 in the evening, or afternoon. He arrived at Rock Point at about 9:35 in the evening. He had stopped at Rockford about a half an hour, waiting for a passenger train to pass to the eastward, and after it had passed this train started for the next station. When he reached the summit and as he come over the summit and the train was partly across the summit, he shut off the steam and from that point the train run by its own weight. "When he.arrivefl at this point the train struck a falling rock about six feet long by three feet wide and three feet thick. The locomotive passed over the rock and passed on 150 or 200 feet along the ties, being thrown off of the rails, where it turned over and the engineer, H. H. Fisher, was killed. The fireman, who was in the cab with him, had' the good fortune to escape with scarcely an injury, although he went over in the locomotive with the engineer.

This Rock Point is the point of a hill, and this cut that I speak of is a cut through that point. The point itself, when you come to the center of the point, is said to be from 35 to 50 feet high and 150 to 200 feet wide, that is, the point itself; the cut however is from 600 to 900 feet long and is on a curve; the road curves around this point. The point is cut away, not perpendicular perhaps; it is cut off at the base and comes near the railroad track; at the top it extends back; it is formed of gravel and rock, some loose earth, rock, sand and stone under, and during the wet season or during the time the frost is coming out of the ground in the spring, pieces of rock and gravel work loose, become detached and fall upon the track, and this is known to occur from time to time. The railroad company at times had employed a watchman, or rather the foreman of the section gang had been in the habit from time to time of sending a man out as a watchman at this point, when he thought there was serious danger of rock falling. This, however, was not a fixed habit, but'was done from time to time according to the judgment evidently of the section foreman. On this particular night in question there was no watchman sent out.

It is contended in the petition that the railroad company was guilty of neglig'ence contributing to the death of the engineer, in that it had failed to send out a watchman to wratch along the track at this time, knowing, or having reason to know that there was danger of rock falling at that point..

Conceding now that the jury would be fully warranted in finding that the railroad company was guilty of negligence in not sending out a watchman at that'time, having no watchman there, the controversy in the case has turned upon the fact as to whether or not the engineer himself was not guilty of contributory negligence in causing this disaster ; whether he was not, in. fact, the real cause, the real active person in the matter of negligence in respect to the accident.

The railroad company, while this foreman did sometimes send a man out there, did not rely upon the fact that a watchman might be sent out, perhaps did not place a great deal of reliance upon it; but whether they did or not, they did from time to time send out telegrams and dispatches to their' conductors and engineers in regard to their duty in the matter; and on the morning of this day they had sent from the office of the assistant superintendent at Toledo, an order directed to the engineers and conductors on the road, which had been delivered to the engineer and conductor of this train, a telegram which read as follows:

“Reduce speed to five miles an hour through the cut east of Valley Junction. ’ ’

Now Valley Junction was thirty-six miles west of this point. The company had been carrying forward some works there either of repair or improvement of the road and the tracks were said to be in a very unsafe condition; and that part of the telegram related to the passage of trains on that side of Valley Junction. It then‘continues, ‘‘and look out for rocks falling in cuts east and west of Rockford.” Now Rockford is the station I have spoken of about four miles from this point, and there were cuts, as I have said, east of that point and also this cut west of it.

Now this engineer had this order in his pocket. Tie had his train composed of forty-five cars; they were all loaded; some with steel bars; some with coal; some with merchandise and perhaps some other things, but they were loaded to their full capacity; and weighed perhaps, if I remember right, an aggregate of 1,530 tons. The train had in it thirty of those cars, equipped in the most perfect manner with air brakes. And it is said by experts that fifteen air brakes would have been sufficient to handle that train. With thirty of those he had full and complete power to control his train; he had a good engine; it was a well equipped train; it had some fancy name which I have forgotten.

Some question is raised here in regard to the construction of this telegram, this order, what the engineer should understand by it, what should be its meaning, and considerable testimony has been taken by the parties, of experts, engineers and others, in- regard to the meaning of a telegram of this kind, what the engineer should understand it to mean. The testimony on behalf of the railroad company and perhaps some of the testimony on behalf of the plaintiff is that it means that he is to keep a lookout for rocks and keep control of his train, so that he can stop it upon seeing a rock within the line of his vision.

Well, to an ordinary person, there should be no question as to the fair construction of that telegram; he shall look out for falling rock; he must look to see if any have fallen, keep watch in front of him; it is notice to him that these rocks are likely to fall upon the line of his tracks; that he is to look out for them and avoid them. In order to do that he must keep his train under such control that he can stop the train within his range of vision if necessary.

Now that was a step that had been taken by the company for the protection of its train and engineer. The engineer at all times between stations had control of the engine and the running of the train; it was he who said how fast it should run or how slow it should run. It was ■ his duty to control the running of the train between stations.

As I have said, in passing over the summit a mile and three-quarters away, he started down, as it came over him the train was not going very fast; it was going up grade. It started on down the grade to this point, and, as I have said, there was in that mile and three-quarters a drop of seventy feet; this was a heavy train, the fireman says that the train had a speed of at least twenty miles an hour, and in that he is supported by the others of the crew — the conductor and brakeman. The fireman says the engineer took his position in the cab on the seat, with a window back of him closed; it was a little cold. As they came over the summit he had the window shut that was at his right hand side. There was a window in front, of him, of course. lie sat there with his arms folded until after he was at the point of the rock in this cut; they had passed nearly through it, got nearly past this point, perhaps nearly at this main point (Rock Point) when the fireman looked out of his window on his side (being on the left hand side, the inside of the curve, passing around the curve) and discovered this rock lying across the track at a distance perhaps of 100 feet ahead of him, as he judged, and he shouted to the engineer that there was a rock on the track. The engineer then jumped and pulled at. the throttle, set his air brake, and about that time they were on the rock. The engine, as I have said, was overturned, and the cars, some fifteen or sixteen of them, were piled up to a height of a great many feet, one on top of the other; and a great deal of damage was done to the train.

Now the question that is argued here, as I have said, is whether this engineer was guilty of negligence, such negligence as precludes a recovery. It is claimed .upon the part of the defendant in error that he had a right to rely upon the fact that there should be a watchman there. It must be noted that while he was running on this line back and forth, that these watchmen are only there from time to time, not a steady fixed practice; and that he, when he eame over that point, would not know whether there was in fact a watchman there or not. We do not consider that as very material. This engineer was placed in a position of responsibility; he was placed in charge of the engine upon this train, and placed1 in control of the train itself and the rate of speed at which it should run, at least between stations. Plis duty to his company was to obey its orders; and if the company, in the performance of this duty for the operation of its property, said to him by an order that lie should look out for falling rocks, it was an order to bim to so run his train and take such care that he would not injure, by any act of his, at least, the train that was in his charge. He had but one thing to do, and that was to obey that order; and he could only obey it by operating his train at such a rate of speed as that he could stop it within a very short distance. It is said by some, it should be down to between five and six miles an hour. He had the power to do this; the power in his hands to stop that train at any point he chose between stations. .But from all the evidence it seems that instead of taking such steps he sat down and allowed his train to proceed in the ordinary-manner at such a rate of speed as it would obtain by its own weight, in going down a grade with this fall in it; and in doing that we think he was guilty of negligence, disobedience of orders; and that it was due to that disobedience of orders, apparently, that this accident occurred. Upon the facts of this case, if he had been running his train as he should háve run it, he would have been able to stop the train before it reached the rock; and would have preserved his own life and the property of the railway company. It is a case, if you please, where there was negligence of both parties, negligence may be assumed of the railway company, and negligence of the engineer. He had been cautioned by his conductor before that time that he had been running down that cut too fast, but did not seem to have noticed that.

We think upon the clear rules of law, where the facts are as we have stated them, the plaintiff here is precluded from recovering for the death of her husband; it is a case where death is caused by his own negligence, and he could not recover if he were only injured and sued the company; so she cannot recover. '

With this view of the case, the judgment of the court of common pleas is reversed, the verdict set aside and the case remanded for a new trial.


author: SWING, J.

text:
    HOMICIDE — CONFESSION—CHARGE TO JURY.
    [Butler (1st) Circuit Court,
    January 5, 1904.]
    Giffen, Jelke and Swing, JJ.
    Alfred A. Knapp v. State of Ohio
    1. Extrajudicial Confessions Must be Corroborated by Proof Aliunde the Corpus, Delicti to Sustain Conviction.
    Extrajudicial confessions of a person charged, with murder will not sustain a conviction unless corroborated by proof aliunde the corpus delicti. Hence, where the indictment charges that the crime was committed by choking and strangling to d^ath the deceased, the corpus delicti in such case consists of the death of the victim together with facts which show that she met her death by being choked and strangled, and it is incumbent on the state, in order to warrant a conviction, to prove, other than by the extrajudicial confessions of the abcused, the death of the victim and that the crime was committed by the accused substantially in the manner charged in the indictment.
    2. Confessions of Other Crimes Incompetent — Their Admission not Cured by Charge of Court.
    The voluntary written confession of a person charged with murder confessing to the commission of four separate and distinct murders, together with the crime for which he is on trial, is, as an entirety, incompetent and inadmissible in evidence against him at his trial for the latter crime; only so much thereof as relates to the particular crime for which he is on trial is competent. The admission of such written confession in evidence as an entirety, and permitting it to be taken by the jury on their retirement to consider their verdict, is not cured by the court charging the jury that it was only offered for the purpose of proving the particular crime for which the accused was on trial, that all portions thereof not relating to such crime should be disregarded, and that they should not permit the confessions of other crimes to prejudice them against the accused.
    3. Persons Charged With Crime Presumed Innocent.
    Every person charged with crime is presumed to be innocent, and unless the jury find the accused to be guilty beyond a reasonable doubt, he is entitled to an acquittal. A charge by the court that “in all doubtful cases this presumption is sufficient to turn the scale in favor of the defendant,” is an incorrect statement of the law relating to the presumption of innocence in such cases.
    4. Exclusive Province of Jury to Determine the Experience of Men in Certain Matters.
    It is within the exclusive province of the jury to determine what'the experience of men is in certain matters, and it is their experience of the conduct and actions of men that is to be applied to the testimony in a case before them, and not the experience of the court. Hence, a statement by the court, in its charge to the jury that “sane men who are innocent, as a rule, do not make ■ confessions of crime.” being an expression of what the court’s experience of the actions of men has been, and which statement is also capable of misconstruction, is a usurpation of the power of the jury.
    ERROR to the court of common pleas of Butler county.
    Thomas H. Darby, for plaintiff in error:
    The indictment must allege the manner, means and cause of death. Michael v. State, 40 Fla. 265 [23 So. Rep. 944] ; Duran v. State, 14 Tex. App. 195; Edwards v. State, 27 Ark. 493; Commonwealth v. Martin, 125 Mass. 394; 2 Bishop, Cr. Proced. Sec. 514.
    It is necessary to prove the manner and means of death, substantially as alleged. Rex v. Martin, 5 Car. & P. 128; Guedel v. People, 43 Ill. 226; Helmerking v. Commonwealth, 100 Ky. 74 [37 S. W. Rep. 264] ; Barber v. State, 39 Ohio St. 660; Riflemaker v. State, 25 Ohio St. 395.
    Accused cannot be convicted upon a confession without other proof of the corpus delicti. Blackburn v. State. 23 Ohio St. 146; McGuire v. State, 2 Circ. Dec. 318 (3 R. 551) ; State v. Leuth, 3 Circ. Dec. 48 (5 R. 94) ; see also, Williams v. People, 101 Ill. 382, 386; State v. Scott, 39 Mo. 424; Pitts v. State, 43 Miss. 472 ; State v. Laliyer, 4 Minn. 368; Flanagan’s case, 26 W. Va. 116; Dreessen v. State, 38 Neb. 376 [56 N. W. Rep. 1024].
    The court erred in admitting a paper purporting to be a confession of several crimes including the one charged in the indictment. Evidence of other crimes is generally and in this class of cases inadmissible.-Stockwell v. State, 27 Ohio St. 563; Farrer v. State, 2 Ohio St. 54; Barton v. State, 18 Ohio 221; Coble v. State, 31 Ohio St. 100; Snurr v. State, 2 Circ. Dec. 614 (4 R. 393); Cheny v. State, 7 Ohio (pt. 1) 222; Rose v. State, 7 Circ. Dec. 226 (13 R. 342) ; Knight v. State, 54 Ohio St. 365 [43 N. E. Rep. 9.95],
    Evidence of confessions of other crimes is inadmissible. Commonwealth v. Campbell, 155 Mass. 537 [30 N. ]J. Rep. 72] ; Rex v. Butler, 2 Car. & Kir. 221; Gabriel v. State, 40 Ala. 357.
    Though the statement is partially relevant, the irrelevant matter must be eliminated. State v. Moody, 18 Wash'. 165 [51 Pac. Rep. 356] ; State v. Wood, 53 Vt. 560; State v. Perigo, 80 Iowa 37 [45 N. W. Rep. 399] ; Jones v. State, 71 Ind. 66, 67; People v. Fong Ah Sing, 64 Cai. 253 [28 Pac. Rep. 233],
    Court erred in allowing jury to take written confession to'jury room. Dunn v. People, 172 Ill. 582, 590 [50 N. E. Rep. 137] ; Stiles v. Mc-Kibben, 2 Ohio St 588, 592.
    No warning to the jury to disregard irrelevant parts of confession, would cure the error in this class of cases. McGuire v. State, 2 Circ. Dec. 318 (3 R. 551, 556); Marshall v. State, 5 Tex. App. 273, 291; Rochester v. Shaw, 100 Ind. 268; State v. Noland, 85 N. C. 576.
    Court erred in charging that presumption of innocence is sufficient in doubtful cases to turn the scale in favor of the defendant. Donaldson v. State, 5 Circ. Dec. 9S (10 R. 613) ; Harrington v. State, 19.Ohio St. 264, 269.
    The court erred in charging the jury that “sane men who are innocent, as a rule, do not make confession of crime.”
    The court erred in preventing defendant’s counsel from reading to the jury as a part and in illustration of his argument certain pertinent extracts from proven standard medical works. Legg v. Drake, 1 Ohio St. 286.
    Warren Gard, prosecuting attorney, for defendant in error.
   SWING, J.

The plaintiff in error prosecutes this action in this court to reverse the. judgment of the court of common pleas of Butler county, wherein he was found guilty of murder in the first degree for the killing of his wife, Hannah G. Knapp, on December 22, 1902.

The indictment charged said Knapp in the following language:

“Then and there unlawfully, purposely and of deliberate and premeditated malice, with his two hands did seize, grasp and press the neck and throat of her the said Hannah G. Knapp then and there, with his two hands aforesaid unlawfully, purposely and of deliberate and premeditated malice did choke and strangle with the intent her, the said Hannah G. Knapp unlawfully, purposely and of deliberate and premeditated malice to kill and murder of which said choking and strangling she the said Hannah G. Knapp then and there instantly died.”

In order to convict Knapp under this indictment, it devolved upon the state to prove that said Hannah G. Knapp came to her death in the manner set forth in the indictment.

The state produced evidence showing that the body of Hannah G. Knapp was found in the Ohio river, near New Albany, Indiana, about February 1, 1903; that she was last seen alive in company with Alfred A. Knapp, her husband, on the evening of December 21, 1902; that said Alfred A. Knapp was seen on the morning of December 22, 1902, with a box, near the Miami river a short distance below the city of Hamilton; that he left Hamilton on that day and went to Cincinnati, Ohio; that he told conflicting stories about the absence of his wife; that he sold their household furniture and gave away her clothing!; that shortly after-wards he went to Indianapolis, Indiana, and shortly after that married another woman; and the state introduced considerable other evidence tending to show that said Knapp knew that his wife would never return, and all of which evidence tended to^ show that said Knapp knew that his wife was dead and that he was in some way connected with her death.

After the discovery of the body of his wife Knapp was arrested in Indianapolis, Indiana, and brought to the city of Hamilton, where shortly afterwards he made a confession to Mayor Charles S. Bosch and the chief of police of said city, in whose custody he was at the time.

In this confession said Knapp confessed to having killed his wife in the manner set forth in the indictment, and that he had placed her body in a box and placed it in the Miami .river below the city of Hamilton on the morning of December 22, shortly after he had killed her.

Does the confession of Knapp taken in connection with the other evidence sustain the conviction?

■ It is a well settled rule of law in this country that a conviction cannot be had on the extrajudicial confession of the defendant unless corroborated by proof aliunde of the corptis delicti. 6 Am. & Eng. Enc. Law (2 ed.) 582, and numerous authorities there cited, including Blackburn v. State, 23 Ohio St. 146.

The third proposition of the syllabus in this case is as follows:

“Although extrajudicial confessions alone are not sufficient to prove the body of the crime in cases of homicide, they may be taken and used for that purpose in connection with other evidence.”

The corpus delicti is thus defined:

“Corpus delicti is a term in criminal law, and means literally the body of the offense or crime charged.” 7 Am. & Eng. Enc. Law (2 ed.) 861, and authorities there cited. Among which is People v. Simonsen, 107 Cal. 345 [40 Pac. Rep. 440], wherein the court says:

“The term ‘corpus delicti’ means exactly what it says. It involves the element of crime. Upon a charge of homicide, producing the body does not establish the corpus delicti. It would simply establish the corpus.”

In Pitts v. State, 43 Miss. 472, it is said:

“In felonious homicide it consists of two substantial fundamental facts, first, the fact of the death of the deceased, and, second, the fact of the existence of criminal agency as the .cause of the death.”

In People v. Palmer, 109 N. Y. 110, 113 [16 N. E. Rep. 529, 530,; 4 Am. St. Rep. 423], the court says:

“A dead body is found with the skull mashed in upon the brain, under circumstances which exclude any inference of accident or suicide. There we have direct evidence of the death, and cogent and irresistible proof of the violence; the latter the cause and the former the effect; both obvious and certain, and establishing the existence of a criminal fact demanding an investigation. These facts proved, the corpus delicti is established.”

In 3 Greenleaf, Evidence (16 ed.) Sec. 30, p. 36, this is said:

“The proof of the charge in criminal causes involves the proof of two distinct propositions: First, that the act itself was done; and, secondly, that it was done by the person charged, and by none other.”"

A great number of authorities might be cited to the same effect.

Under the law as thus stated, the corpus delicti in this case would be the production of the dead body of said Hannah G. Knapp, together with facts which showed that she met her death by being choked or strangled to death.

The state has alleged that she came to her death in that way, and in order to sustain a conviction under the indictment these facts must be proved, and outside of Knapp’s confession there must at least be fact's which tend directly to prove them.

We have each of us gone over the evidence in this case very carefully, and we fail to find the least evidence outside of Knapp’s confession that Hannah G. Knapp came to her death by being choked or strangled.

A dead body is found floating in the river. This simply proves the corpus; if there is any crime connected with the death, something else must be shown. How did the person die — by disease, accident, suicide, or yiolence; if by violence, what kind of violence — was she drowned ; was she poisoned; was she shot; was she stabbed; was she beaten, 01 was she choked to death? As far as this body is concerned, this record fails to disclose a single item of evidence that this woman met her death by violence, in any manner whatever. No bullet hole, no cut, or stab, no fracture of bone or bruise on the body, and no poison in the stomach. As to how this person came to- her death absolutely all is conjecture o~ surmise unless we look to Knapp’s confession, and it is there alone that we find any evidence as to how this woman met her death. In other words, the crime of killing this woman by choking and strangling is shown only by Knapp’s confession, and under all the .authorities this is not enough; there must be some other evidence of the killing in the manner set out in the indictment with which the confession must be considered before conviction can be had.

It was not necessary for the state to allege -the manner and mean-i >f the death of Hannah G. Knapp. An indictment could have been found against Knapp charging that said Hannah G. Knapp met her death at the hands of said Alfred A. Knapp, by manner and means un- ! r.own to the state. But having set out the manner and means of death, it was incumbent on the state to prove substantially the death as alleged.

It is claimed by plaintiff in error that the court erred in admitting in evidence a certain paper written by said Knapp. This paper is as follows :

“Confession of Alfred A. Knapp.
“On June 21, 1894, I killed Emma Littleman in a lumber yard m Gest street, Cincinnati. And on August 1, 1894, I killed Mary Eckert in Walnut street opposite the Y. M. C. A. building in Cincinnati. And August 7, 1894, I killed my wife Jennie Knapp under the canal bridge at Liberty street and threw her in the canal in Cincinnati. And in July, T.895, I killed Ada Gebhart in Indianapolis, Ind. And on December 22, 1902, I killed my wife Hannah Knapp at" 339 South Fourth street m Hamilton, Ohio, and threw her in the river out by Lindenwald. This is true.
“ Alfred A. Khapp.
“Hamilton, Ohio, Feb. 2G, 1903.
“I make this statement by my own free will and not. by the request of any officer or any one else.
“Alfred A. Knapp."

This was signed by witnesses and sworn to before C. S. Bosch, mayor.

So much of said confession as relates to the killing of Hannah G. Knapp is admittedly competent, and all the rest of the so-called confession is admittedly incompetent.

The court also permitted the prosecuting attorney to read the whole of the confession to the jury, and also permitted the jury to- take the same on retirement to consider of their verdict.

On the receipt of the evidence and the reading of the same by the prosecutor, and allowing it to be taken by the jury, the court said to the jury that it was only offered for the purpose of proving the killing of Hannah G. Knapp, and on two of the occasions said to the jury that they were to disregard all portions of it which did not relate to the killing of Hannah G. Knapp; and when the prosecutor read the paper to the jury the judge said to the jury that they should not permit the statements in said confession to prejudice them as they were only trying the defendant for the killing of Hannah G. Knapp.

In permitting this paper to go to the jury, and permitting the prosecutor to' read it to the jury, and permitting the jury to take tlie same with them on retirement to consider of their verdict, we think the court erred.

It' is a horrible, cold-blooded recitation of crime, having few equals in criminal history, and can scarcely be read by any one without producing the feeling that the man is insane or a fiend incarnate. Flow is it possible for any one having heard such a'recitaron of crime as this to disregard or not to be prejudiced by it?

The state has already proven two confessions by Knapp, as to the killing is separate and distinct from the other, and any statement oher than this, but it is not shown that so* much of this confession as relates to the killing of Hannah G. Knapp might not have been admitted without putting in the statements as to the other killings; the statement as to each killing of Hannah G. Knapp, both of which were more explicit than that relating to the killing of Hannah G. Knapp could very easily have been obliterated or cut out, and left intact that portion of the statement 'which was clearly competent.

There are also two errors assigned in the charge of the court that we desire briefly to refer to.

The court in its general charge made use of the following language:

"In all doubtful cases- this presumption is.sufficient to turn the scale in favor of the defendant.”

Clearly this is not a correct statement of the law.

Every person charged with crime is presumed to be innocent, and unless the jury beyond a reasonable doubt find him guilty the defendant is entitled to be acquitted.

The court also charged the jury as follows:

“Sane men whp are innocent, as a rule, do not make confession of crime.”

It seems to us that this was erroneous in the court. The language itself, possibly, is capable of two or three different meanings. The judge, in overruling the motion for a new trial, and commenting upon this portion of the charge says that irnmediately after he delivered the charge some bystanders spoke to him and 'put a meaning on it different from.that which he intended. The defendant had already .made confessions in this case, so that probably the meaning was that this man was either insane or guilty, from the fact alone that he had made the confessions, without taking into consideration any other question in regard to the corpus delicti, or anything that the evidence showed in that respect, which the jury is bound to consider. But, aside from the fact of making a statement which was inaccurate, and subject to- be misconstrued, we have this objection to this portion of the charge, “sane men. who are innocent, as a rule, do not make confession of crime we do not understand this to be a rule of law that a judge may charge the jury; but we take it, rather, that the judge is telling the jury what his experience of the actions of men is, and in that respect he usurped the power of the jury. It is not for the court to say to the jury what his experience of men in certain', matters is; this is the exclusive province of the jury; it is their experience of the conduct and actions of men that is to be applied to the testimony in the case, and not that of the court. State v. Tuttle, 67 Ohio St. 440 [66 N. E. Rep. 524; 93 Am. St. Rep. 689].

It seems to us, therefore, that the court erred in this particular portion of the charge.

There are a great many other grounds of error alleged in this case; we have considered them all, but we do not think that the points are well taken. Therefore, we find no other errors in the record other than those pointed out.

No doubt this fearful recitation of crime made by this man aroused a very strong feeling in this community against him; naturally it would; we cannot help but feel that such is the case, and that this man is a criminal almost without parallel in the history of the law, certainly without any parallel in the history of this court; but this court cannot change the law; we have to administer the law as we find it; we cannot set ourselves up as to making one law for this man, and another law for another; we must administer the law as we find it and understand its meaning.

For these reasons we think that a new trial must be granted to. the defendant in this case.