text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan’y.Term, 1889.)
    Before Smith, Swing and Cox, JJ.
    C. C. & I. R’Y. CO. v. LOUIS C. REISS.
    JR. It. Crossing — Hearing whistle of approaching train — Failure of traveler to stop and wait as negligence.

      ■ A court is not authorized to charge the jury as matter of law that if plaintiff heard the whistle of the train while at a sufficient distance from the crossing to have stopped his horse in time to a\oid the collision with it, and did not stop, he is guilty of contributory negligence. The whistling might have been heard when the train was at such a distance that a prudent man would believe that he could safely cross.

      Warning Post at R. R. crossing — Absence of same as negligence of JR. JR. — Familiarity with crossing.

    The object of a sign board or warning post at a R. R. crossing is to notify travelers of the existence of the railroad crossing in the highway. But the absence of such sign board would not make the R. R. company liable to a party familiar with the crossing and knowing of the existence of the railway at the time of the accident.

      Same — Duty of JR. R. Co. to maintain gate and flagman.

    Railroad companies, as a rule, are not bound to maintain gates and watch-men at crossings in the absence of a statute requiring it, yet there are cases where the obligation is imposed upon them to adopt these or other safe modes to protect travelers, and where failure to do so is negligence on the part of the R. R. Co.
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

Reiss, in his action against the defendant company, sought to recover damages for injuries to his person and property resulting from his having been run down by a train of the company where its railroad crosses Carthage Pike. He alleges that while he was crossing such track, without any fault on his part, he was so injured by the negligence of the company in this: 1st. That it caused the train to approach the crossing and pass rapidly over the track of th9 road, without giving any signal by bell or whistle or otherwise, of its approach. 2nd. In neglecting to erect a sign at the crossing, giving notice of the proximity of the track. 3rd. In constructing its railroad, defendant made an excavation for its track seven feet below the natural surface at said crossing for some distance on either side of it, and in doing so removed the dirt from the Carthage road and dug the road down to a level with the railroad track, causing said highway to descend at a steep grade to said track, leaving high banks on each side of it, which banks were obstructed by bushes and a fence, by reason whereof the crossing is of a dangerous character; and 4th. That the train was an irregular one. The answer admitted that the defendant company was a corporation, existing and operating under the laws of Ohio, and denies each and every other allegation of the petition.

The case was tried to a jury, and a verdict rendered in favor of the plaintiff. A motion for f> new trial was made upon the grounds, that the verdict was against the evidence; that the court erred in the charge to the jury and in refusing to give certain special charges asked by defendant; in refusing to arrest the evidence from the jury, and for error in receiving and rejecting evidence. The motion was overruled by the court,and exceptions taken, and a bill of exceptions allowed, containing all of the evidence,the charge of the court, the special charges asked and refused, and a petition in error has been filed alleging the same error..

In this court reliance is had upon these three grounds, viz: That the verdict is against the evidence, and that the court erred in the charge given and those refused.

As no exception seems to have been taken to the charge as given, at the time, we do not refer to this. One of the charges requested by the defendant and refused by the court was this:

“If you should find that plaintiff heard a whistle at the time he was forty-eight or fifty feet distant from said track, and should find that he could have stopped his horse within that distance in time to have avoided the accident and injury, he was guilty of contributory negligence, and your verdict will be for the defendant.”-

Whether this charge should have been given, and whether it was error to refuse it in the -shape in which it was requested, is open to grave question. It is irue the evidence in the case was such as rendered a proper charge on this point relevant. The plaintiff himself testifies that while he was going from the toll gate to the railroad crossing, a distance of about one hundred feet, with a descent of about four feet, he was driving, at a walk, a gentle horse hitched to a spring wagon, with the brake set. That he heard no whistle and did not stop, and saw nothing or heard nothing of the train until it was upon him. But it is perfectly evident that the whistle was sounded while he was about fifty feet from the track, and was distinctly heard by the toll gate keeper who was only fifty feet distant from him, and who tried to warn the plaintiff of the approaching train. It was proper, then, to ask the court to charge the jury as to what was incumbent on plaintiff under the circumstances if he really heard the whistle. But we incline to the opinion that the court was not authorized to say to the jury, as a matter of law, that if plaintiff heard the whistle while at that distance from the crossing and could have stopped his horse in time to have avoided the injury, that he could not recover, Suppose the whistle had been sounded a mile or .two away, and he had heard it, and acting as a prudent man, had believed the train was at such a distance that he could safely cross the track, could it be said that his failure to stop until the train passed, would be such negligence as would defeat his action? We doubt if there were proper limitations in the charge, as requested

The defendant also asked the court to charge the jury as follows:

“The object of having a sign board or caution post at or near the crossing of a railway and highway is to notify travelers of the existence of the railway crossing. And if the jury should find that the company was negligent in not having a sign board or caution board at the crossing where the accident occurred, that fact could not render the company liable if your should find that the plaintiff was familiar with the crossing and knew of the existence of the railway at the time of the accident.”

This charge was fully warranted by the facts disclosed in the evidence, and it seems to us that it was good law, and ought to have been given to the jury as requested. It was substantially conceded in the argument of the counsel for defendant in error, that if this charge had read, ‘‘that that fact ‘‘alone, would not render the company liable,” etc., that it would be difficult to defend the refusal of the court to give the charge. But we are of the opinion that the addition of the word ‘‘alone” as suggesed would not give to the sentence a different meaning than that which it now has. If, therefore, the court did not in some other part of the charge give this in substance to the jury, we think the plaintiff in error is entitled to have the judgment reversed on this ground.

We are not able to see that this has been done. The court, in the general charge to the jury, and in other instructions given at the request of the company, did state with particularity the law as to the care required to be exercised by both parties where negligence is involved, but we see nothing bearing on this particular point. And it is clearly the rule that a party asking a charge correct as to the law, and pertinent to the case, is entitled to have it given, and that a general statement as to the law and the care to be exercised by the parties will not excuse the failure to give such correct and pertinent charge requested.

On the question whether the verdict was against the weight of the evidence, we have but little to say. Was any negligence in any of the particulars set out in the petition, showed by the plaintiff? He claimed that no whistle was sounded or bell rung as the train approached this crossing. The only evidence in support of this is, his own testimony that he heard nothing. His own witness, Fisher, the toll gate keeper, testifies explicitly that the whistle was sounded while the train was at Ross Lake, a quarter of a mile above the crossing, and that realizing the danger of plaintiff if he attempted to cross the track, that he vigorously tried to stop him. In addition to this is the undisputed evidence of Walter Parks, a passenger on the train,that the whistle was duly sounded, and of the engineer and fireman of the train that the whistle was several times sounded, and the bell continuously rung, within the half mile above the crossing. That such evidence should be set aside on the mere statement of the plaintiff that he heard no signal, is out of the question.

2nd. While there was no sign-post at the crossing, it was perfectly clear from the evidence of the plaintiff himself, that this was not the cause of the accident, as he knew at the time that the railroad was there, and was not lulled into security by the fact that the sign-post was not there.

3rd. There was no evidence whatever that the defendant company had made any cut in the Carthage Pike, or that it had anything to do in producing the bank, or fences or brush thereon, or the erection or maintenance of the buildings, which it is claimed prevented the plaintiff from seeing the track or the approaching train.

4th. The train which did the injury was not an irregular train, but was one of the regular trains, behind time without any negligence or fault of the company. We are of the opinion, then, that as to all the negligence claimed on the part of the company, there was a failure of proof.

There is another matter to which we deem it proper to call attention, although it is not involved in the case at it now stands. It appears from the papers and transcript that the plaintiff, in his original petition, set out another ground of negligence on the part of the defendant, in connection with those already referred to, the substance of which was that the railroad company had caused this crossing to be a dangerous one by reason of the excavations made in the road and track, and the obstructions on the bank which prevented a view of approaching trains, and that the defendant had negligently and carelessly omitted to place and maintain gates or guards there, or have a flagman, at the crossing, to warn travelers of approaching trains. Those allegations as to negligence of the company in failing to have gates or a flagman, there were on motion stricken out by the court against the exception of the plaintiff.

Matthews & Greioe, for Plaintiff in error.

L. G. Hummel, for Defendant in Error.

We think this should not have been done; that the plaintiff was entitled to have these allegations remain in the petition, and to establish them if he could do so. While it is true that a railroad company is not, as a rule,in the absence of a statute requiring it, bound to maintain gates or keep a watchman ata crossing, yet there are cases where the obligation is imposed upon them to adopt these, or another safe mode to protect travelers, and if it could be shown that this was such a crossing, and that there had been a failure on the part of the company to make such provision, that it would be negligence, and they might be liable for injuries caused by such failure.

See case of C., C., C. &. I. Railway Co. v. Schneider, 20 W. L. B., 20.

We think, therefore, if the case is to be again tried, the plaintiff, if he desires, should be allowed to amend his petition in this regard, that the case may be fairly and properly re-tried. But, on the other grounds, the court feel constrained to reverse the judgment.

' Judge Cox is of the opinion that the judgment should be affirmed.


source: Caselaw Access Project

author: King, J.

license: Public Domain

text:
    (Sixth Circuit — Lucas Co, Ohio, Circuit Court
    Jan. Term, 1897.)
    Before Haynes, Scribner and King, JJ.
    THE TOLEDO ELECTRIC STREET RAILWAY CO. v. LULU TUCKER.

      Damages for injury caused by negligence — Compensation for medical treatment — Averment in petition.

    Plaintiff may recover what she- has expended, and what she may reasonably expect to expend in order to cure herself of an injury received through the fault or negligence of the defendant, and it is not necessary to allege in the petition with definiteness the amount thereof, An allegation in the petition “that plaintiff has been put to an expense of-- — dollars for medical attendance in attempting tobe cured of her said injuries, to her damage of $5,000, ”is barely sufficient to permit the introduction of evidence as to the expense for medical attendance and the consideration thereof as an item of damages by the jury under instructions by the court on that subject. But an objection to the sufficiency of such allegation should have been made by a motion by defendant to make the petition more definite.

      Contributory negligence — Use of injured limb before complete recovery.

    A party injured can not be held guilty of contributory negligence for having returned to work and used the injured limb before complete recovery, in the absence of bad faith, and from mere ignorance ; nor can defendant claim that no liability should attach to itself, because the amount of compensation which should be awarded against it for its wrong is difficult or impossible of separation from the aggravation thereof in consequence an honest but mistaken treatment.

      JExcessiveness of verdict.

      ' A verdict of 83,000 damages under the circumstances of this case not held excessive.
    Error to the Court of Common Pleas of Lucas county.
   King, J.

Miss Lulu Tucker brought her action in the court of common pleas against The Toledo Electric Street Railway Company to recover damages for an injury sustained by her, from a collision of cars on the street railway of defendant below. She set forth in her petition her claim as to the negligence of the defendant company, also the injury which she received, and made some averments as to expenses on her part. To this there was an answer denying all the allegations of negligence, averring that she was guilty of negligence which contributed to the injury, and averring affirmatively that the agents of the street railway company conducted their cars in a safe and proper manner.

On the trial the negligence of the company was not seriously controverted, and upon the argument here it was conceded that the company were negligent, and were liable. The trial resulted in a verdict in favor of the plaintiff for $3,000. On defendant’s motion for a new trial, the court directed a new trial to be granted unless the plaintiff should remit a thousand dollars of the verdict, which she consented to do, whereupon the court overruled the motion for a new trial, and entered judgment for $2,000.

We are asked to reverse that judgment on account of error in admitting certain testimony, and of error of the court in its charge to the jury, and because the damages are excessive.

The testimony complained of and the charge of the court to the jury relate to the right of the plaintiff to recover expenses incurred by her in employing physicians. Two witnesses were called who testified that they treated her during her illness. The first was Dr. Henzler, who was called at the time of her injury, and treated her more or less from that time on, for a while; and in February, 1895, Dr. Coldham was called, who treated her along until the time of the trial, Dr, Coldham was asked, when be was on the stand, how much his bill was for treating the plaintiff. The court instructed him that he could answer as to the amount of his bill incurred in treating her' for the injury, but must not include with it any part of his bill for the time spent in making an examination of her in order to testify in the case as a witness. He thereupon replied that he did not know exactly what it was; that he could tell by going to his office and looking at his books, but he wound up his testimony by saying that his bill was about $35. Dr. Henzles testified also to visiting the plaintiff, and his treatment of her at various times, in the same manner that Dr. Coldham had testified. When asked about his bill, he didn’t know. After three or four questions put to him, he thought probably he had rendered a bill at one time of $65, and probably there had been incurred since that time about $30 more; and he concludes,after the examination had proceeded at some length, that his bill must be about $95.

The court charged the jury upon that subject that plaintiff “is entitled to recover for-any expense that she may have been to, as shown by the evidence in the case, for medical service or attendance, in endeavoring to cure herself of the injuries which she has sustained.”

It is claimed that the evidence was not competent,because there was no allegation in the petition. The allegation upon that subject in the petition is that she “has been put to an expense of---dollars” (there is a blank preceding the word “dollars”), “for medical attendance in attempting to be cured of her said injuries, to her damage of $5,000.”

We think that the rule is clear, that plaintiff may recover what she has expended, and what she may reasonably expect to expend, in order to cure herself of an injury that has been received through the fault or negligence of the defendant. And I may as well say at this point that we think the allegation in the petition is barely sufficient to admit that kind of evidence. It is an allegation that she has been put to an expense in procuring medical attendance to cure herself; and we are not yet prepared to hold, and will not, until it has been settled to be the law, that it is necessary to allege the amount with definiteness, in thp absence of a motion to make the petition more definite and certain. Of course the defendant, when the petition Was filed, could have come into court and have taken advantage of that allegation as it could have of any other that was indefinite, by a motion to make it more definite and certain. It is quite likely the court would have sustained that kind of a motion, and directed the plaintiff to allege what her actual expenses were up to the time of the filing of the petition; but in the absence of that motion, we think that allegation was sufficient to admit this evidence. This evidence is neither very clear, certain, nor definite, but it is some evidence tending to show that the physicians had rendered services of value, and that they had a value, and that that value, as nearly as the physicians were able to state it, either from their recollection of the amount of the services or from what they remembered as to the amount of the different bills, was in the one case $35 and in the other $95, That was some evidence to go to the jury on that point. The court charged the jury that they might allow for them such an amount as they should find from the evidence in the case had been expended by her, or for which a liability had been incurred by her.

I refer to a case or two on that subject, but in the first place to a book that happens to be here — Jones, on Negligence of Municipal Corporations, pages 499 and 500, where it is stated in the text that:

“All reasonable expenses will be allowed as incidental to the cure of the plaintiff, which were incurred by him for the purpose of regaining his health. The amount paid physicians, and nurses, and the amount which it is reasonable to conclude will have to be paid in the future, if the injury is of a permanent character, may all be proved, and may be recovered from the defendant.”

It will be noticed that this author states that this kind of a recovery is incidental to the action, It is not a main feature of the cause of action. In the second place, that it may be recovered for the future. And it must have occurred to us all that it would be problematic, to a certain degree, as the witness could only give a guess, or form an opinion fromjthe present condition of the plaintiff, as to what would have to be expended in the future. Yet the courts hold that the jury may give damages for medical services still to be rendered; so they may undoubtedly give judgment on account of those which' have already been rendered. This author cites, as authority, 73 Ia., 241; Sedgwick on Damages, 8th ed., section 483; Shearman and Redfield on Negligence, section 759.

So we conclude there was no error on the part of the court, either in the admission of the evidence or its charge on that point.

° Another point is, that the verdict was excessive. We are not able to agree with counsel for plaintiff in error on that point. Personally, I am not able, from reading this bill of exceptions, to understand why the court of common pleas should have seen fit to reduce this yerdict; but the court did, and the plaintiff accepted the reduction, and judgment was rendered for that amount.

The evidence shows that this woman was suffering very badly at the time of the trial at the April Term, 1896, from the injury, which she received in September, 1894, or at any rate in the fall of 1894; that she was unable to work at her employment at that time, scarcely any at all. Some of the physicians testified that it was a permanent injury, others., that she may recover; but none of them could even guess within what length of time she would become a well woman. She was earning $10 a week at the time of her injury; and afterwards she may not have been able to find an employer willing to pay that amount. She had worked at the place where she was working at the time of her injury for many years, and was undoubtedly a trusted employe; and if the business had continued, and she had continued her health, she would, no doubt, have stayed there.

It was argued here that she went to work before she ought to, and thereby contributed to her injury, and considerable stress is put on that point. A charge was submitted by the court to the jury, as drafted by counsel for the defendant, which put the law on that subject as strong as it could be claimed to be by anybody. The question of this plaintiff’s injury and suffering and the amount she was entitled to recover is not to be reduced by a mistake of judgment on her part as to what course of conduct she should pursue. There is no answer in this case averring that the plaintiff was negligent after she received this injury. It is averred that it was caused by her negligence,but that was abandoned on the trial, and the claim set up in the testimony that she was negligent in her conduct after the injury. We think the jury well found that claim against the railroad company. The doctors testified that they told her she might work, and she went to work. After she had stood upon her feet for a while she found that this injury grew worse, until she had to quit work. Her purpose in going to work was the very best; and counsel in the argument conceded that she had good motives in going to work. If she had good motives in going to work, and it was such a thing as a person in her condition and circumstances, exercising ordinary care and prudence, would have done, then she was not negligent in going to work too soon. And the fact that the physicians virtually told her that she might work, would be very strong-evidence, I think, to convince a jury that she had not acted negligently in undertaking to work before she ought. The injury was to her knee, a very tender, and difficult part of the human anatomy to treat; and physicians all say they cannot tell — and that, I think, is the experience of any of us, who know of those injuries — how long an injury of that kind will last, or whether it will ever be cured. The formation of the bones at that point, and their actiou is so peculiar-that when their possessor undertakes to stand or walk upon the foot, that a physician can not tell, unless he knows exactly what the injury was, and without some interior examination, they are not able to determine what the injury consists of. I think the jury might well have determined that she was not guilty of negligence in 'going to work, and might well have concluded that the company was liable for all the consequences of that injury. Upon that question I will cite again from Jones on Negligence of Municipal Corporations, at page 515, a case referred to by the author, which is reported in 60 Hun, 507. That was a case where a woman fell upon a sidewalk and injured her ankle, and it was claimed that she should not have used it. The court said:

“We cannot, therefore, accede to the proposition made by the learned counsel for the defendant, that there rested upon the plaintiff the absolute necessity of not using her ankle until such time as the same should he fully restored, nor that the defendant is in any position to claim that the bare possibility of such improper use of the ankle should rebound to its benefit,
“There is no principle of law which supports such contention, where the good faith of the party is not, but his ignorance alone is impugned. The duty rested upon the plaintiff to take proper care of the injured ankle, and not wantonly, carelessly or needlessly to do any act which would aggravate the injuries to it. Her duty towards the member, however, was not so great and exclusive as to require her, in the absence of competent and positive medical instructions, to ignore and openly disregard the welfare of the rest of her members and of her whole body. So long as she acted in good faith, and according to such lights as she had, the defendant, the party guilty of tbe wrong, cannot be permitted to complain of her mistake of judgment in the treatment of her ankle; nor successfully to claim that no liability should attach to itself, because the amount of compensation which should be awarded against it for its wrong is difficult or impossible of separation from the aggravation thereof accompanying an honest but mistaken treatment.”

Smith & Balcer, for Plaintiff in Error.

A. H. Coldham, and S. Kohn, for Defendant in Error.

That case, I think, states the law as it is now understood. There is another case in which reference is made to the same subject — 69 N. Y., 264. So that we conclude, on this examination — and those are the only questions submitted to us — that there is no error in this judgment, and it will be affirmed.


author: Smith, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court,
    January Term, 1897.)
    Before Swing, Cox and Smith, JJ.
    WILLIAM HAAS v. THE STATE OF OHIO.

      Trial for murder — Trial Judge taking another Judge of same court to sit with him and decide in the trial of a criminal case.

    The fact that on the trial of a criminal case, in the court and room presided over by the judge of the court of common pleas who had been assigned by the judges of the court of common pleas in joint session to hold court in said room, said judge invites another judge of the same court to sit with him in the trial of such case, and they together hear and agree upon the decision which should be rendered, and it is entered in due form upon the journal of the proper court, does not make such action erroneous as to the defendant, and particularly so when no objection whatever was made to this until the tiling of the motion for a new trial.

      Continuance — Discretion of court-

      la a case involving the life or liberty of a person, courts should be vigilant in seeing that he has a fair and impartial trial, and it is better to err in favor of a defendant than against him in this regard. But it is a further duty of courts to see that a speedy trial also be had, in so far as may consist with the rights of the defendant, and a large discretion as to this is necessarily conferred upon the trial court, and its exercise should be upheld and maintaind unless manifestly abused.

      Murder — Deliberation and premeditation — Fear of punishment as disabling from deliberation.

    If a person who has purposely, maliciously and ■ with premeditation committed one great crime against the person of another, and afterwards purposely, maliciously and with premeditation takes the life of the person with the hope thereby of covering up his crime and escaping punishment, he will not be deemed unable to deliberate on his act, for the reason that he is laboring under the excitement naturally brought about by his own unprovoked conduct.

      Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

In this case the counsel for the plaintiff in error claims that in three particulars there is error in the proceedings of the court of common pleas in the. trial of this case, (which resulted in hiB conviction of the crime of murder in the first degree), all of which were to his prejudice, and either of which would require a reversal of the judgment, viz: 1st. That the court which heard . and decided the case was improperly constituted, it being composed of two of the judges of the court of common pleas of this county. 2nd, That the trial court would not allow time to the defendant or his counsel to prepare for the trial; and, 3d, That the finding of the court that the defendant, who had pleaded guilty generally to the indictment which charged him with murder in the first degree, was guilty of that grade of homicide, was against the weight of evidence.

We consider these questions in the order named. It appears, from a certified copy of an entry of the court of common pleas, made in joint session at the October term of said court, 1896, viz: on October 5, 1896, and brought into the record by a bill of exceptions, allowed by the court on the overruling of the motion for a.new trial, that .the judges of said court were assigned to hold court in the different rooms for said October Term, and that Judge Evans was assigned to hold court in Room No'. 6, and Judge Wilson in Room No. 4. And it further appears from the affidavit of Mr. Wright, attorney for the defendant below, which was also filed on the hearing of a motion for a new trial, that Judge Wilson sat-upon the bench with Judg¿ Evans at the hearing of said cause;- that the two judges heard the evidence together, and consulted together as to points of law raised upon said trial; that said judges consulted together in determining the grade of homicide, and each rendered a separáte opinion finding said defendant guilty of murder in the first degree.

It does not appear from, the transcript of the record filed in this case whether the trial occurred in Room 6, to which Judge Evans had been assigned, or in some other room. The heading of this certified transcript is as follows:

“Pleas, at a separate session of the court of common pleas in and for the first judicial district, begun and held at the Court House in the city of Cincinnati, county of Hamilton, state of Ohio, in the term of October, A. D. 1896, before the Hon. Charles Evans, and Moses F. Wilson, two of the judges of said court.”

But we suppose this is the statement of the clerk alone, and if incorrect, can be corrected, and under the circumstances probably should be.- We understand it to be conceded that the trial was held in Room 6, to which Judge Evans had been assigned, he presiding therein, and that all of the proceedings in the case until after the plea of guilty had been entered by the defendant, had been before him, alone. And that after this Judge Wilson sat with Judge Evans as stated in the affidavit of Mr. Wright. Indeed, the motion for a new trial, so far as this point is concerned, is predicated as stated in Room 6, thus:

“That the court erred in requesting and permitting the Hon. Moses F. Wilson to sit upon the bench and assist the court in the trial of said case.”

The question presented, then, if it be conceded that there was no order made by the judges of the court of common pleas in joint session assigning Judge Wilson to sit in Room 6, with Judge Evans, in the trial of this case, (and there is nothing on the record to show that this was not done), is this: Does the fact that on the trial of a criminal case, like this, in the court and room presided over by a judge of the court of common pleas' who had been assigned by the judges of the court of common pleas, in joint session, to hold court in said room, said judge invites another judge of the same court to sit with him upon the bench in the trial of such case, aud he does so,and they together hear and agree upon the decision which should be rendered, and it is entered in due form upon the journal of the proper court, make such action erroneous as to the defendant? For, doubtless, this is exactly what was dons here, for the bill of exceptions is signed by Judge Evans alone, and if the court was really and lawfully held by the two judges, the bill of exceptions, which is absolutely necessary to raise the questions presented in the case, being signed by Judge Evans alone, is not properly signed or authenticated, and cannot be regarded in the case.

Section 464, Revised Statutes, makes this provision as to the powers and duties of the judges of the court of common pleas of this county:

“The judges of the court of that county may sit separately or otherwise as they at any time deem expedient, and may prescribe the mode of keeping and authenticating the minutes of the proceedings had before them, or any of them. And may, at the beginning of each term', and at all times when necessary thereafter, classify and distribute among themselves for trial and determination the business pending in the court as they deem most convenient to the public interests. ”

Under this section it seems that the judges in joint session would have had power to assign Judges Evans and Wilson to hear and determine this case; and, as has been said, it does not appear whether they did, or not do so. But if it was not done, we cannot say that under this law, two of the judges, by agreement between themselves, have not the right to hear and determine one or more causes submitted to them jointly, But in this case' we think that it was not erroneous or prejudicial to the defendant for Judge Evans, the presiding judge, to invite Judge Wilson, one of his colleagues,to sit with and advise with him in the decision of the case, and of the questions arising upon the hearing, and to do as was done here. And particularly so, when no objection whatever was made to this until the filing of the motion for a new trial.

2nd. Did the court err in requesting the defendant to proceed with the hearing of the case on the 5th of November, 1896, against his objection, or that of his counsel?

The indictment was returned at the July term, 1896, on July 9th. On the 15th of July, the defendant, by his attorney, Mr. Roney, filed a motion to quash it. This was overruled, and on July 20th, his attorney filed a demurrer thereto which, on the same day, was overruled also, and the defendant then being arraigned and asked to plead to the indictment, stood mute, and a plea of “not guilty’’ was ordered by the court to be entered for him. At the following October term, to-wit, on October 12th, the court finding that the defendant was in indigent circumstances, assigned Mr. Roney, an attorney at law, to defend him. And on the same day the defendant, in open court, by leave of the court, withdrew his plea of not guilty, and as it appears from the journal entry, being fully advised by his counsel, and being cautioned by the court, pleaded guilty as charged in the indictment.

On the 5th of November, 1896, the question as to degree of homicide came on for hearing on the day assigned by t^e court and counsel, and it appearing that the counsel of the defendant had abandoned the assignment, the court appointed J. Rogers Wright,, an attorney of this bar, to further defend Haas. The bill of exceptions shows, by the statement of Mr. Wright, that he was so appointed at 11:00, A. M. of said day, and the case was called for trial at 2:00 P. M. At that time, as stated in the stenographer’s notes of what took place, Mr. Wright stated to the court that from his conversation with the defendant, he thought the case was not in shape to be tried. That his defense would necessarily be insanity; that no experts bad been summoned, and that there was no one present to testify on this point for the defendant, and that it seemed to'be risky to proceed without more preparation. That the matter was in the hands of the-court, and that he desired it to be fully informed of the-position. In answer to this the court suggested that the defense of insanity went to. the guilt or innocence of the-defendant, and that he had already pleaded guilty. And that if the defense of insanity was to be interposed, the proper way would be to withdraw the plea of guilty and go-to a jury and let them determine the question of sanity. In answer to this Mr. Wright stated to the court that he had only been able to make a short examination of what the-defense should be, or whether it could be made out, and that as defendant, under the advice of counsel, had already pleaded guilty, he was not willing to ask the court for leave-to withdraw that plea.; that he could not probably support it, and that he still thought it risky to proceed. Thereupon the court said: “I think we had belter proceed now,” and counsel for defendant excepted, and the case was commenced.

Thereupon, for two days, the State offered evidence, and then rested, and the court, for the purpose of allowing-evidence to be had for the defendant, adjourned the further-hearing of the case for one week, at the end of which time the hearing was resumed and testimony offered on behalf of" the defendant.

If a formal application for a continuance had been made- and filed and supported by evidence, which was not the case, other than the oral statement of defendant’s counsel to the-court, we are unable to see that the trial court in any way abused the discretion which the law gives. Of course, in a case involving the life or liberty of a person, courts should; be astute and vigilant in seeing that he has a fair and impartial trial. And it is better to err in favor of a defendant’ than against him in this regard. But it is the further duty of courts to see that a speedy trial also be had, in so far as-may consist with the rights of the defendant, and a large-discretion as to this is necessarily conferred upon the trial court, and its exercise should be upheld and maintained unless manifestly abused. We see nothing in this case to show that such was the case here, or that the defendant was prejudiced by the action of the court in requiring the trial to proceed on the day fixed therefor. In effect, an offer was made to counsel to allow the defendant to withdraw his plea of guilty, which would necessarily have given him the delay desired, but this was declined. After the evidence on the part of the State was offered, ample time was given the defendant to procure any testimony he desired to offer.

3rd. The claim is made that the trial court erred in finding that the defendant was guilty of murder in the first degree; that is, that he purposely, and of deliberate and premeditated malice, killed Mrs. Brater.

As we understand it there is no substantial disagreement as to the facts in this case, as disclosed by the evidence in the bill of exceptions, between counsel for defendant and for the State. It is perfectly clear from the testimony given by the defendant himself that in the early morning of the day named, when no one was in or about the house but the defendant and this unfortunate woman, he brutally ravished her; that is, had sexual intercourse with her, forcibly and against her will. That having accomplished his purpose, as she lay helpless before him, she told him that she would inform her husband when he returned of what he had done. That he at once started down stairs, and went and got a razor belonging to the husband, the defendant knowing where he kept it. He testifies that he formed the purpose in his mind to kill the woman while he was going down stairs and that from the time he formed this purpose, and while searching for the weapon, and while he was returning up stairs, after he had got into the room where she was, he still thought of killing her, by cutting her with the razor, and as soon as he found it he went up stairs and struck her with it, thereby killing her. He also testifies to the disposition of the body of the dead woman, and the efforts made to burn the building and thereby destroy the body of the deceased and the evidence of his guilt. This is a brief but substantially correct statement of his evidence as to the manner in which the crime was committed.

In addition to this there was evidence by Mr. Jackson, a detective officer of the Cincinnati police force, as to a confession made by the defendant to him after his arrest, and after he was brought from Hamilton to Cincinnati, as follows:'

“I asked him when he made up his mind to kill Mrs. Brater. He and I had talked about it on the way to the station house, down stairs, and in the wagon, and he said he had made up his mind the night before. He had been reading in the newspapers about the Pearl Bryan case, and he concluded to assault her, rape her and kill her.”

And in the testimony of the defendant given before the coroner, after describing his assault upon her, and her resistance,he said, that after he left her, he went down stairs to get Mr. Brater’s razor, and went back and cut her with it.

On this and the other evidence in the case, not materially detracting from or contradicting the facts I have stated, the claim of the counsel for the plaintiff in error is, that the court was not justified in finding that this killing was of deliberate malice on the part of the defendant. That it is apparent, from the facts shown, that it was not done while the defendant was in cool blood, but, on the contrary, while in the heat of passion, and not able to deliberate — or, at the very least, that it is not shown with that certainty which the law requires in such case, that it was deliberate. And this claim is made while counsel concede that it is shown that the defendant killed Mrs. Brater, purposely and with premeditated malice. But it is urged that it does not appear that he had deliberated upon it coolly, but that the killing was done in the heat of passion, and while he was so excited from what had already taken place'that he was incapable of deliberation.

The law, as we understand, in tenderness to human weakness, does, in determining the grade of homicide, take into consideration the condition of the mind of the person charged therewith, shortly before and at the time of the commission of the act which brought about the death. And under the terms of the statute which defines the crime of murder in the first degree to be a killing purposely, and of deliberate and premeditated malice, if it should appear on the trial that the act was committed in the heat of blood, or on a sudden quarrel, or when by reason of intoxication or other like cause, it is shown that the defendant was not in a condition of mind in which he could deliberate or premeditate, in such case the defendant could not properly be convicted of the capital offense. See Pigman v. State, 14 Ohio, 555; Nichols v. State, 8 Ohio St., 435.

In the case of State v. Thompson, Wright’s Rep., 623, Judge Wright, in his charge to the jury said:

“If the prisoner meditated upon the purpose to kill, deliberated upon it, and coolly, or when only heated by voluntary intoxication, formed the design to kill, at any time before he struck the blow, the law holds the act deliberate and premeditated. It so holds, also, where there has been provocation and consequent heated blood, if from lapse of time or other cause, passion has subsided and reason resumed her empire before the offense was perpetrated. These matters should be judged of reasonably, according to the lights of experience. If the provocation were slight and the retort greatly beyond,it weighs but little in conducing to the belief that the ordinarily deliberate operations of the mind were interrupted by that cause, tío, if considerable time elapses between the provocation and the revenge sought, as it is not usual for the passions to continue excited or the blood heated so long, it is unreasonable to suppose the excitement and hot blood, the cause of the subsequent act, without the deliberate aid of the will.’’

And it is clear, from the decisions in our state, that if the deliberation and premeditation are present at all, it is not a question of moment how shortly before the killing they were present.

If, therefore, this case stood solely on the evidence given by the defendant himself in court, and before the coroner, we would be unable to say that the finding of the trial court that the killing by the defendant was with deliberate malice, was contrary to the weight of the evidence. In this case there was no sudden quarrel between|tbese parties. The defendant clearly made a malicious assault upon an innocent' and unsuspecting woman. There was no provocation whatever on her part. It is true that he met with resistance in his unprovoked assault, and doubtless he was excited by what had taken place and the knowledge that he had committed a great crime, and would be exposed to punishment, and was not, in all probability, in his ordinary cool state of mind. But that he was so excited or unbalanced that he was not able to premeditate the crime^of murder, and deliberate upon it,does not appear, and his own evidence does not show it. In our judgment it would be dangerous to hold and so administer the law, that a person who is'shown to have purposely, maliciously and with premeditation committed one great crime against the person of another, and afterwards purposely, maliciously and with premeditation takes the life of the person with the hope thereby of covering up his crime and escaping punishment, should, for the reason that he is laboring under the excitement naturally brought about by his own unprovoked conduct on thisjaccount be deemed unable to deliberate on his act.

But in this case the court was not confined to the evidence of the defendant alone. There was other testimony, which, if believed by the court to be true, and we see no reason to disbelieve it, clearly showed a previousjdeliberation and premeditation, both of the rape and]the’jmurderJon|the part of the defendant. Jackson had testified, as before stated, that the defendant had confessed to him, that the night before he committed the acts, he had concluded to assault her, rape her and kill her. If this be so, what other finding could properly have been made on the evidence?

J. Rogers Wright, for Plaintiff in Error.

Prosecuting Attorney, Contra.

The judgment of the court of common pleas will be affirmed.


author: By The Court.

text:
    Sixth Circuit, — Huron Co., Ohio, Cicruit Court
    Nov. Term, 1896.)
    Before Haynes, Scribner and King, JJ.
    LEWIS S. GIBSON, et al. v. THE CITY OF NORWALK.

      City water-worlcs — Appropriation of land by city — Value of land— Adaptability of land for reservoir purposes.

    In ascertaining the market value of land sought to be appropriated by a city for water works purposes, the fact that said lands are specially adapted for reservoir purposes is not admissible in evidence and can not be considered by the jury determining its market value.

      Same.

    In determining the market value of the various tracts of lands sought to be appropriated, the jury is precluded from considering their enhanced value, if any they may have, on account of the contemplated improvement in the water-works by the city.

      Same — Necessity of city as item enhancing compensation—
    The jury can not be left to speculate upon how much the city could afford to pay for the land, having in view, not the market value of the land, but the necessity of the city to acquire it for this particular purpose. It would be different if it had been shown that there was any general demand for the land for the purpose for which it was sought to be appropriated by the city.

      Instructions — ‘‘Fair’’ preponderance of the evidence.

      A charge by the court that the burden of proof was upon the property owners to establish the value of the land by a “fair” preponderance of the evidence, was not improper in such a proceeding.
    Error to the Court of Common Pleas of Huron county.
   By The Court.

This is a petition in error to reverse the judgment of the court of common pleas in a proceeding brought under chapter 3 of the Revised Statutes, for the purpose of appropriating certain lands for water works purposes.

The city of Norwalk filed its application in the court of common pleas to appropriate lands therein described for water works purposes, the particular object being to secure lands of the plaintiffs in error, in connection with other lands, included in the same proceedings, and the lands which it had acquired by purchase, to constitute a reservoir to' be used in connection with its system of water works. The case was tried in the court of common pleas, and certain errors are alleged that occurred on the trial, in the refusal of the court to permit certain evidence to be given, and in the charge of the court.

The errors complained of in the rulings of the court on the testimony and also in the charge, relate to the measure of damages, or to the .elements- of value, which witnesses might consider in giving an opinion as to the value of the property appropriated. There is a second question made in the charge of the court that the court charged the jury that the burden of proof was on the property owners to establish the value of the property “by a fair preponderance of the evidence.”

The question as to the valuation, the method of arriving at it, is set forth in the bill of exceptions in the testimony of W. H. Price, a witness called by the city, and who was, on cross-examination, asked by the attorney for plaintiffs in error, the following questions:

“Q. Is it not true that in estimating the market value of the various tracts, you do not consider the natural basin, and its adaptability for water works purposes? A. I do not think I did consider the water works matter at all. I simply took the value of the property. I did not, otherwise than that.
“Q. Is it not true that these lands form a natural basin, and that to make the necessary reservoir, comparatively little outlay of labor and money will be required?”

This latter question was not objected to, but the court interrupted the witness, holding that the question was improper, and to the ruling of the court, counsel for plaintiffs in error excepted, and then asked this question:

“Q. Considering the natural adaptability of these lands for water works purposes, if they have a special adaptability for that purpose, what do you say the value of these lands is?”

This was objected to and the objection sustained, and it was stated by counsel that he expected to prove that the conformation of the lands in controversy was such as to make them plainly adapted for the reservoir.

There was some other testimony offered, going to show that the lands in question formed a part of the natural basin or valley, surrounded on both sides by a high embankment, and from the appearance of the ground it could be readliy said by a witness, or by any observation, that with no more expense than was necessary to erect a dam at some point, connecting these two banks, the lands in question could be formed into a reservoir.

Upon this subject the land owners requested the court to charge certain propositions, to-wit:

(2.) “In ascertaining the market value of the lands belonging to the defendants, and described in the application filed in this case, you will consider the fact, if you find from the evidence that it is a fact, that said lands are adapted to reservoir purposes. ’ ’
(3.) “The adaptibility of the lands in controversy as a source of water supply, or for reservoir or water works purposes, if you find from the evidence that it is so adapted, is a circumstance to be considered in ascertaining its market value.”
(6.) “In determining the market value of the various tracts of lands appropriated,you are not precluded from considering their enhanced value, if any they may have at that time, on account of the contemplated improvement in the water works by the city.”

The city also called a witness, William Perrin, who testified, on cross-examination, and without objection, that these lands were more valuable for pasture lands than anything else, unless for water works; that it was a very good place for water works; that he knew of no other place as near the city as these lands as available for water works purposes; that this was the most available site; that it was in the shape of a natural basin; that less work would be required here than on any other site that had been examined; that it would require no expenditure for embankments except for a dam; that he considered these lands appropriated valuable for water works purposes; that it was elevated above the city, and otherwise desirable.

It is clear, from the questions asked which were objected to, and from the request to charge the jury, that counsel for the land owners sought to have introduced in evidence before the jury, and considered by them as an element in fixing the value of the property taken, the fact that these lands, by their natural formation were specialty adapted for the use which the city desired to make of them; that they were so located as to be the most, if not the only available site for such purposes, and that the city was in a position where it was obliged to take this particular property; and that the necessity of the city to acquire it, and the fact that the plaintiffs in error were the owners of it, should be considered by the jury to enhance its value for the particular purpose for Which the city proposed to use it. And the question is raised whether that was a proper element to be considered, either by the witnesses in giving their evidence, or by the jury in rendering its verdict;

We think the law applicable in cases of appropriation is reasonably well settled, and can be found from an examination of the cases, some of which we will cite. One of the first of these is found in 4 Ohio St., 308, and in that part of the opinion on pages 328 and 332. In the course of the opinion, on page 331, Judge Ranney uses this language, referring to section 5, article 13, of the constitution, as compared with section 19 of the bill of rights; he says:

“The rule of compensation prescribed in this section (section 19) for the government of a jury, has been rightly apprehended in the argument; but how a different rule is elicited from the language of the other section is not easily perceived. By the one, the compensation is to be assessed ‘without deduction for benefits,’ and by the other ‘irrespective of benefits;’ and by each, a full compensation is required. Now, when is a man fully compensated for his property? Most clearly, and unquestionably, when he is paid its full value, and never before. The word‘irrespective’ relates to the full compensation, and binds the jury to assess the amount, without looking at or regarding any benefits contemplated by the construction of the improvement. When this is done, and this consideration wholly excluded, the jury has nothing to do but ascertain the fair market value of the property taken; which is but saying that nothing shall be deducted from that value on account of such benefits.’’

Again, he says, on page 332:

“That whether property is appropriated directly by the public, or through the intervention of a corporation, the owner is entitled to receive its fair market value at the time it is taken — as much as he might fairly expect to be able to sell it to others for, if it was not taken — and this amount is not to be increased from the necessity of the public, or the corporation, to have it, on the one hand; nor diminished from any necessity of the owner to dispose of it, on the other. It is to be valued precisely as it would be appraised for sale upon execution, or by an executor or guardian; and without any regard to the external causes that may have contributed to make up its present value. The jury are not required to consider how much, nor permitted to make any use of the fact that it may have increased in value by the proposal or construction of the work for which it is taken.”

In Railway Company v. Longworth, 30 Ohio St., 108, the court says, on page 112:

“Keeping in mind the general rule applicable to all actions for compensation or damage that it is the actual as distinguished from any speculative loss that must guide the jury; we think that any facts calculated to fairly enhance the value of the property taken, or increase the damage to the residue of the tract, may be shown by the owner; and that on the other hand, it is clearly competent for the railway-company to show the converse for the purpose of reducing the recovery. ”

In that case it was a question whether the owner might introduce a plat which he had made of the property in question, upon which it appeared he had divided the property into town lots, for the ostensible purpose of selling the same, the plat never having been acknowledged or recorded, so as to make it a legal dedication; and it was held that the plat was admissible for the reason that it was one of the facts in existence at the time of the appropriation proceedings, and might be considered in -connection with all the other evidence, to ascertain what the value of the land was. If it had been shown that there was no market value for town lots at the place in question, the fact that the owner had platted them would have, of course, no weight with the jury. While,on the other hand, if there was a market,the platting of the land made it valuable for such market, so that it could be sold in small lots rather than in large tracts.

We are referred to the case of Goodin v. Cincinnati and White Water Canal Company, as authority in favor of the admissibility of this evidence, and of the claim which counsel made with reference to the rule of value. This was an action brought by certain stockholders of the Cincinnati and White Water Canal Company, who set forth that the canal company had been the owners of the canal, and who claimed that the property of the canal, the canal lands, had been disposed of, by some illegal agreement between its officers and the officers of a railroad company, who were,part of them, officers in both companies, by which the canal lands had been sold, or an agreement entered into as to its value, and a pretended proceeding for condemnation had been instituted, in which the court had entered up a judgment by consent, and without the intervention of a jury, for the amount agreed upon, and which, they claimed, was grossly inadequate, and asked to have the sale set aside. The first prin ciple which the court applied was that any such sale of trust property by the trustee to himself would be regarded as fraudulent per se, if there was any under-valuation of the property, and the court found that all of the proceedings and acts of .the officers who had done anything with reference to this transfer,were actually fraudulent, and that from the evidence it appeared that the lands were of greater value than the amount that was paid, or agreed to be paid for them; that advantage had been taken of the fact that the canal company was, at the time, insolvent, was earning nothing,' and for that reason its lands had been undervalued, and transferred to the railroad company, who were proposing to construct a railroad upon them; and they held, that while the court below was right in refusing to set the sale aside, that it had erred in ruling out testimony, which had been offered as to the value of the lands taken, and granted a new trial,

Another case which seems to state the rule pretty clearly is in 115 Pa. St., 331, in which the court say, as to the market value of the land, and the value to apply in appropriation proceedings, that:

•“The market value of land is not necessarily, as it would sometimes seem to be supposed, the price which it would command in a forced sale, or public auction. It is estimated by a fair consideration of the location of the land, the extent and condition of its improvements, its quantity and productive qualities, and the uses to which it may reasonably be applied, taken with the general selling price of lands in the neighborhood at the time, the price which, upon full consideration of 'matters stated, the judgment of well informed and reasonable men will approve, may be regarded as the market value. ”

Another case directly in point, is the case of Moulton v. Newbury Port Water Company, 137 Mass., 163, in which case the land owners sought to show that the lands taken by the water company were admirable to form, at slight expense, a natural basin for water, and offered to prove what was their fair market value for such purposes to the water company. This was excluded, and the court says:

“Damages must be measured by the market value of the land at the time it was taken,-not its value to the petitioners, nor to the respondent; not the value which it might have under different circumstances from those then existing The petitioners were not entitled to swell the damages beyond the fair, actual market value of the land at the time by any consideration of the chances or probability that in the future authority might be acquired by' legislation to carry the water in pipes to neighboring towns; such chance or probability must needs enter to some extent into the market value itself, and so far as the market value might be enhanced thereby, the petitioners were entitled to the full benefit of it. If there were different customers who were ready to give more-for the land on account of this chance, or there were any other circumstances affecting the price which it would bring upon a fair sale in the market, these elements would necessarily be considered by' the jury, or by witnesses in forming an opinion of the market value. Nevertheless the value for these special or possible purposes is not the test; but the fair market value of the land, in view of all the purposes to which it was naturally adapted,”

In the case at bar the landowners were seeking to show substantially the same thing as is stated in the Massachusetts case. They were trying to have the jury consider an enhanced value to this property, from the fact that it was adapted to a reservoir, which was the very purpose for which the city was appropriating it. This necessarily was an enhancement of the value, based upon the necessity of the city to have it, and not from any demand in the market for it. There was no proof that there was any general demand for this property for such purposes, and we may take notice that there is no other town or city, within any reasonable distance of this place, whose probable demand for water, or1 for a reservoir, would be likely to, in any wise, affect the value of the lands, and there never had been any demand on the part of the city of Norwalk for this property, before the commencement of these proceedings. If this evidence had been admitted, or if this charge that was requested had been given, the jury would have been left to speculate upon how much the city of Norwalk could afford to pay for this property, having in view, not the market value of the lands, but the necessity of the city to acquire it for this particular purpose. In our judgment the ruling of the court was correct upon the questions proposed, and upon that part of the charge. If there are any cases which seem to hold a different doctrine, we are satisfied that the rule in Ohio, as stated in the case cited, and that the law, as stated in all the authorities, is opposed to the claim made here by the land owners.

The case cited in the 98th U. S., 403, does not militate against our holding. The circumstances there were altogether different than here. That was a proceeding to appropriate certain islands in the Mississippi river by a boom company, authorized by statute to appropriate lands for such purposes, and it was permitted to be shown that the islands were so situated as to be available for booming purposes. Clearly, if they were situated where they could be used for booming logs, they were in open market, liable to be purchased by any individual or company engaged in booming logs, and to be used for the same purpose as that for which the company in question was appiopriating them, and therefore, their value for that purpose was the principal element to be considered by the witnesses and by the jury in estimating the value of the lands. They were shown to be some thirty acres, in three irregular shaped islands, of probably no value for any other purpose except to which a boom to hold logs might be moored and fastened, and in such a situation that the logs would be protected and not impede navigation. Any person, who had logs, had a right to float them down the Mississippi river, and had a right to acquire a place where they could be boomed, by purchase or condemnation under the statute.

But the record here discloses that evidence was admitted showing the formation of the lands; the facts were given in evidence to the jury, all of the .facts, and from those facts it is easy to conclude that there was no market for this property, or any part of it, for the purpose that the city wanted it. We think this' sufficiently disposes of those objections to this judgment.

We think on the whole the case was fairly submitted to the jury by the court. There was some exception taken to requests offered by the land owners on the ground that the requests were in writing, presented to the court, and asked to be given to the jury before the argument of the case, and some of those, it is conceded, are embraced in the charge of the court as finally given. We do not think that the court was required to give those requests in writing after the evidence was closed and before the argument. This proceeding is governed by the statutes relating to the appropriation of property by municipal corporations alone, unless in that statute there is found an exception; and section 2245 does not refer to any exception, but states the course of proceeding upon the trial, and as to the charge of the court provides:

“The injury and assessments shall, in other respects, be made by the jury, under-such rules and regulations as shall be given by the court.”

The second objection which we deemed worth noticing is in relation to the statement by the court that the burden of proof was upon the property owners to establish the \alue of the property by a fair preponderance of the evidence. There is some criticism upon the use of the word “fair, ”and it is claimed that it requires a greater degree or weight of evidence than the use of the words “preponderance of the evidence” without the qualifying adjective. We are disposed to think that the word “fair,” in that connection, was proper, and that to say to the jury they shall find an issue or a fact from a fair preponderance of the evidence is the same as to require that they shall, after a fair consideration of all the evidence, find the preponderance of the evidence in favor of, or against the fact in question. And we are pointed to no case where any different rule has been held. In the circuit court it was held that to charge in a criminal case that a defense set up by a defendant must be established to the satisfaction of the jury, or that the jury must be satisfied by a fair preponderance of the evidence, was imposing a higher degree of proof than the law required, and the Supreme Court held the same, substantially, in the case of Kelch v. The State, 36 W. L. B. 267, 55 Ohio St., — , where the court below charged in a case where insanity was set up, as a defense, that “the proof must be such as to overcome the legal presumption of sanity; it must satisfy you that he is insane.”

If any just criticism could he indulged in of the use of that phrase “fair preponderance.” we do not think it was prejudicial to the land owners of this case. The question submitted to the jury was not as to the truth or falsity or any fact or issue, but only to the value of the lands appropriated, or the injury to the balance of the land owner’s tract, by reason of the severance of that appropriated. It was conceded that the land was valuable, and the only question for the jury to determine was the amount that should be assessed, which the city ought to pay for the appropriation.

We think the judgment should be affirmed, without penalty.


text:
    (First Circuit — Hamilton Co., O., Circuit Court,
    January Term, 1897.)
    Before Smith, Swing and Cox, JJ.
    DAVID W. MILLER ET AL. v. HOWARD DOUGLASS, EXECUTOR OF WILLIAM YOUNG.

      Motion for new trial — When not necessary — Exception to conclusions of law of court only—
    Where there has been a finding of facts separately from the conclusions of law under the provisions of section 5205, Revised Statutes, a motion for a new trial is not necessary in order to entitle the reviewing court to determine whether the conclusions of law on the facts found are correct. 34 Ohio St., 1-. All that is necessary in such cases is to except to such judgment.
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

The defendant in error has filed his motion to strike the petition in error from the files on the ground'that the court has no jurisdiction of the subject matter or of the parties, and that no motion for a new trial was made and no bill of exceptions was allowed.

The case in the court of common pleas was one involving the right of the parties to the distribution of a fund of which the court clearly had jurisdiction, and all of the parties were before the court. By the final decree the court found the facts in the case and its conclusions of law on such facts, and decreed the fund to some of the parties to the exclusion of the others. The losing parties excepted to the conclusions of law and the judgment rendered; but, being satisfied with the findings of fact, made no motion for a new trial, but filed their petition in error, alleging that the court erred in its conclusions of law on the facts found.

jReuben Tyler, Willis M. Kemper, Frank H. Kemper, David Davis and Bur eh & Johnson, for Plaintiffs in Error.

Howard Douglass and George W. Harding, contra,

There is no reason whatever for striking the petition in error from the files. The plaintiffs in error were authorized to file it, alleging error in the record as it stands, and it was filed in due time. When there has been a finding of facts separately from the conclusions of law under the provisions of section 5205, Revised Statutes, a motion for a new trial is not necessary in order to entitle the reviewing court to determine whether the conclusions of law on the facts found are correct. 34 Ohio St., 1. All that is necessary in such cases is to except to such judgment. But if it is desired to have the reviewing court decide whether the facts so found by the court are supported by the evidence, it is essential to properly present this question that a motion for a new trial on this ground be filed and overruled, and a bill of exceptions containing all of the evidence containing all of the evidence be allowed.

In this case the judgment does not show that the court, at the request of either of the parties, stated in writing the conclusions of fact found separately from the conclusions of law. But the entry shows that the findings of fact and conclusions of law were therein stated separately. But it is held in 35 Ohio St., 113, that a judgment rendered on a special finding of facts made by the court may be reviewed on error, although such finding was not made at the request of either party.

The motion will be overruled.


text:
    (Sixth Circuit — Lucas Co., Ohio, Circuit-Court
    Jan. Term, 1897.)
    Before Haynes, Scribner and King, JJ.
    THE LAKE & SHORE MICHIGAN SOUTHERN RAILWAY CO. v. REBECCA R. HUNTER, ADM’X. OF THE ESTATE OF WM. R. HUNTER, DECEASED.

      Conductor represents R. R. Co.

    The conductor of a railroad train, by the law of Ohio, is the representative of the company in the management and control of the train.

      Same — Liable for conductor's negligence.

    The R. R. Co. is guilty of negligence where it appears that the conductor in charge of the train failed to acquaint the engineer of the train with certain facts that would have enabled him, and would have then put upon him the duty to exercise a different kind of care than that which he did exercise or feel called, upon to exercise in the light of the facts as he possessed them, i ---
    Error to the Court of Common Pleas of Lucas county.
   King, J.

This case was submitted to us ear-ly in the term, and we have examined it with considerable care.

The plaintiff, as administratrix of the estate of William R. Hunter, deceased, brought her action against the Lake Shore and Michigan Southern Railway Co. to recover for his death, resulting, as alleged in the petition, from the negligence of the railway company.

William R.. Hunter was the®conductor of a passenger train running on the Flirt & Pere Marquette Railroad, which, on the 28th day of November, 1891, collided with a train on the Lake Shore road, in this city, by running into the rear end of it. That accident resulted in a considerable loss of life and injury to persons who were passengers on the Lake Shore train, was jostled about and thrown over on his side in the mail car, and received some injuries which, it is alleged, caused his death on the 13th of May, 1893, nearly eighteen months thereafter.

■ There are many questions raised by this record — objections to testimony, the charge of ■ the court, the giving of requests and failure to give requests, and that the verdict is against the evidence and the law. We do not find any substantial error in any of these that is worthy of discussion, except one ; and that is, whether this judgment is sustained by the evidence and the law. That arises upon two grounds of objection to this judgment. One is, that the evidence does not show that Mr. Hunter died in consequence of the injuries which he received; and second, that the evidence does show that Mr. Hunter was himself negligent to an extent that contributed to the injury which he received. We think, from this record, it is an exceedingly close question whether there is evidence here to show that Mr. Hunter died as the result of the injuries he received, but wé are not disposed to disturb this judgment upon that ground. That he received some injury is certain, but just what the effect of it was is quite uncertain. However, that question was fairly submitted to the jury, and they presumably found that he died as the result of the injuries which he received, and we are not prepared to disturb the verdict on that ground.

The second claim is still more serious. Mr. Hunter was the conductor of the Flint & Pere Marquette train. He was, by the rules of his own company, of the Lake Shore company, and by the law of the land, in Ohio at least, in charge of that train; and the duty devolved upon him to attend to its running; to give orders not only to the brakemen and trainmen under his supervision, but also to the engineer. The facts show that Mr. Hunter’s train came on the Flint & Pere Marquette road into Toledo, and was nine minutes late when it reached Air Line Junction, which is the point where the roads which branch out and come in from the north meet with the Air Line road coming from the west. There were a number of trains that came into the city at or about that hour on the different branches^of the Lake Shore, aside from the one of which he had charge, which came upon the Lake Shore tracks at Monroe. When he arrived at Air Line Junction his train was nine minutes late. He knew there were three trains on the Lake Shore road arriving very near that point of time, and he knew that one of them, known as No. 6, an express, coming from the west, was due there one minute after his train was due, but his train was nine minutes-late. By the time-tables he would know that that train, if it were on time, had passed Air Line Junction about eight minutes ahead of him. He had passengers on his train to take this No. 6 train at Toledo. He also had an engineer that had never run into . Toledo on any passenger train, or, at least, had not been running under him at all. 'Sometime before he reached Toledo, probably at Monroe, Hunter informed the engineer that he had passengers for No. .6, and it was necessary for him to catch that train; and the engineer, it seems, undertook to run the train so that'it might overtake No. 6, if possible. When he arrived at Air Line Junction, as I say, he knew that his own train was late, and he found out, as he himself testified before the coroner, at the inquest — I think the only time when he gave evidence in the case — that No, 6 was also late, but it had gone in ahead of him two minutes, as he says in one place, and in another a few minutes, but he evidently regarded it as two or three minutes. The engineer, it will be assumed, knew the, time-tables of the company, and he knew, if he relied on the time-tables of the company, that No. 6 would be about eight minutes ahead of him. The conductor then found that No. 6 was only two minutes ahead of him. That additional information, which he obtained at Air Line Junction before the starting of his train, he did not communicate to the engineer. The engineer proceeded on the assumption that No. 6 was on time, and he ran the train at the rate of twenty-five to thirty miles an hour between Air Line|Junction andjjthe tunnel under what is called the canal bed, a mile and a half from^Air Line Junction. The conductor testifies that the speed was twenty-five miles an hour, and probably thirty,, and the engineer himself puts the rate of speed at twenty-five] miles] an hour at the highest. So he was running at a very rapid rate of speed, believing that No. 6 was eight minutes ahead of him, and knowing that two other trains, if they were on time, were also ahead of him. The congested condition of the tracks, as a matter of fact, caused No. 6 to stop just east of what is known as the tunnel; that is, between the tunnel and the depot. The evidence is, that in daylight the engineer might have seen from Air Line Junction to the depot, if the tunnel was not in any way obstructed, by looking through the tunnel, through which ran double tracks; but the testimony all is, that sometimes they would be obstructed. This was after dark, so that if'there was any other train or smoke in the tunnel, he could not see through to the depot by means of the lights beyond. He ran down very nearly to this tunnel before he shut off his steam and slackened his speed, and ran in and through the tunnel, and into the hind end of the other train, which was three hundred or four hundred feet beyond the tunnel, without observing that there was anything ahead of him.

There is no doubt but that this record discloses that the Lake Shore Railroad Company were negligent, and would have been held liable as they were held, in actions brought against them by their own passengers. We think, also, that there is no doubt that if the passengers on the F. & P. M. train had brought actions against the F. & P. M. railroad company for injuries caused by that accident, they would have been entitled to recover against that road, regardless of the question whether passengers upon the Lake Shore would have been entitled to recover against that company also. It seems that in the trial of the cases' that were brought against both roads, that the verdict of the jury resulted in a judgment against the Lake Shore, and not against the F. & P. M. But that is not conclusive upon the question of negligehce. If, as I say, passengers of the F. & P. M. had brought such an action, we cannot see why they would not have been entitled to recover against the railroad with whom they had contracted for passage, for the negligence of the conductor of the F. & P. M. train in running it. By the rules of that company the conductor and engineer were made jointly responsible for the safety of the train, and for running it with care. It is also true, as a matter of law, that the conductor is the only representative of the company who is in charge of the whole train, as has been held in this state as far back as 3 Ohio St., in the case of R. R. Co. v. Keary, 202, and in other cases. The court said, on page 211 of the opinion cited:

“For this purpose the conductor is employed, and in this, he directly represents the company. They contract for and engage his care and skill. They commission him to exercise that domain over the operations of the train, which essentially pertains to the prerogatives of the owner; and in its exercise he stands in the place of the owner, and is in the discharge of a duty which the owner, as a man and a party to the contract of service, owes to those placed under him, and whose lives may depend on his fidelity. His will alone, controls everything, and it is the will of the owner that his intelligence alone should be trusted for that purpose. This service is not common to him and the hands placed under him. They have nothing.to do with it.”

The conductor, then, by the law of Ohio, is made the representative of the company in the management and control of the train.

If the Flint & Pere Marquette Railroad Company had suffered loss and damage through that collision, and had brought an action against the Lake Shore company for their damages in consequence of it, we have no doubt that it might have been shown that their representative in charge of this train of theirs had himself been negligent in failing to acquaint the engineer who controlled the driving apparatus of the train with certain facts that would have enabled him, and would have then put upon him the duty, to exercise a different kind of care than that which he did exercise or feel called upon to exercise, in the light of the facts as he possessed them. If the engineer had known that No. 6, instead of passing eight minutes ahead of him, had passed but two minutes before, it then would have been his duty to obey a rule of the company which he said he knew, and which the conductor said he then knew, requiring all conductors and engineers running trains within the yard limits of Toledo upon the roads of the Lake Shore company, to have their trains under their control; and that, they testified, was such control as would enable them to stop within the limits of their vision. And the limits of the vision of the engineer on this night in question, as he swears, and as all the evidence shows us, was that tunnel; that he did not see beyond it, because there was smoke in it. So, then, as I say, had he known that another train had passed ahead of him upon the same track within two minutes, it would have been his duty to have exercised a greater amount of care in running his train than if he had rightfully supposed that the train had passed eight minutes ahead of him. We think the information received by the conductor was a necessary fact which the conductor should have given the engineer, for the conductor had instructed the engineer to use a greater degree of speed in order to catch No. 6 before it left, at 5:00 o’clock. He should have communicated the additional fact that he then learned at Air Line Junction, that the train was several minutes late, or was only two minutes ahead of him on the track. We think that would have been sufficient negligence on the part of the F. & P. M. company to have prevented its right of recovery against the Lake Shore. Can the conductor, the representative of the company, maintain an action for damages caused by the negligence of. the Lake Shore company ? It seems to us not. It seems to ns that his negligence was a contributing factor in that collision, whereby his company would have been, liable in an action by its passengers, and which would have defeated his company in an action against the Lake Shore, company, if they had brought one; and that it will defeat him^or his representative in an action brought against the Lake Shore company. And it is upon that ground that we hold that this judgment and verdict is not sustained by the law, and is contrary to the evidence in the case.

Potter & Emery, for Plaintiff in Error.

Hurd, Brumback &yThatcher, for Defendant in Error.

The judgment will, therefore, be .reversed, and the cause remanded to the court of common pleas for a new trial.