text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Oct. Term, 1897.)
    Before King, Haynes and Parker, JJ.
    THE LAKE SHORE & MICHIGAN SOUTHERN RAILWAY COMPANY v. PETER L. ANDREWS, ADM’R., ETC.

      Damage suit for death wrongfully caused, in other state — Pleading —What'averments sufficient—

    It is sufficient to aver in the petition in an action for damages for death caused by a R. R. Co. in another state, brought in Ohio, that a right of action exists in the other state, either by statute or under the decisions of its courts, by which an action on facts of the character as set out in the petition is provided, and that a right to enforce, in the courts of such other state, the statute of Ohio in actions of a like character is given; but the statute or the decisions of the courts of such other state need not be set out.
    Nor is it necessary to aver who, under the law of such other state, would be the beneficiary or who authorized to bring the action. In the absence of such provisions, the law of Ohio would govern in respect thereto.

      Rules containing words needing construction — Testimony admissible—

    Where the rules of a R. R. Co. use words which require a construction, such as “ inclement weather, ” or “heavy grade,” testimony is admissible to show from the acts and conduct of the company and its agents, in following the rule, what construction has been placed upon such words.

      Duty of R. R. Co. to maintain bridges built on plans safe for employes—
    It is the duty ot a R. R. Co. to use ordinary care to furnish’structures and machinery reasonably safe and proper for the work to be performed upon them. Therefore it is a question for the jury, whether the maintenance of a bridge with casings'at the sides, 10 or 12 feet high, and so near to the track that a person in the discharge of his duty in standing in the cab of the engine leaning out looking for a light on the rear end of the train, was liable to hit his head or body upon the casings, was negligence on the part of the R. R. Co.
    Error to the Court of Common,Pleas of Lucas county.
   King, J.

The defendant in error brought his action in the court of common pleas against the defendant railway company, to recover damages for an injury which occasioned the death of the decedent, Daniel J. Barton, alleging that at the time of the injury — May 2, 1892, — Barton was in the employ of the railway company as a brakeman, running upon a freight train, and at the time in question, the train was running westward over the Lake Shore road, in the state of ÜMichigan, and west of the city of Adrian, a short distance; that near the bottom of a descent or a descending grade of said road, defendant had and maintained a bridge which was negligently constructed and maintained, the sides of the bridge casings extending eight or nine feet above the surface of the bridge, and coming close to the rails of the railroad — so close as to leave but a small space between the sides of the cars as they passed over the - bridge; that the decedent was the forward brakeman on the train in question, and that it was his duty to be upon the front end of the train or upon the cab of the locomotive, and to keep a look-out for the rear end of the train when and while passing over or down such grade; that the night was dark and stormy, and the docedent at the time, was in the tender of the locomotive, and standing in the gangway looking back towards the rear part of the train, as it was his duty to do; that the train was composed of certain freight cars, also some empty passenger coaches, immediately behind which was the caboose of the train, and that the passenger coaches were of greater width than the caboose, and it was necessary, in order to look out from the engine and see the lights upon the caboose, in order to tell whether the caboose or the rear part of the train was properly attached to the train, to lean out of the engine cab; and that while in the performance of that duty, his body was struck against the bridge casing, and he was knocked from the engine and killed, solely because of the narrowness of these bridge casings and their closeness to the side of the train; alleging that the defendant knew of the condition of its bridge and the danger therefrom, or ought to have known it — -knew that it was the duty of the decedent to watch in the manner described, and that that duty was devolved upon him at the time and place, and under the circumstances described. The petition also alleges, that decedent did not know and had no means of knowing, of the dangerous position of the casings; did not know and had no means of knowing, the increased danger from the casings by reason of the presence of the passenger coaches in the train, and had no means of knowing that if he leaned out far enough to see the rear end of the train while passing over the bridge, he was liable to be struck by the bridge casings, which, it is alleged, was known or should have been known to the defendant. The petition further alleges, in addition to these grounds of negligence, that the cause of action arose in the state of Michigan, and that a right of action to recover damages therefor, is given by the statutes of Michigan, and then quotes in the petition, sec. 3391, of’the general statutes of that state. It further avers, that the “state of Michigan., allows the enforcement in its courts of the¿statute of this state which authorizes an action of a like character to the foregoing action.”

All these acts of negligence and the condition of things leading up to this injury, are denied in the answer.

The case went to trial, and resulted in a verdict for the plaintiff. Now, the railway company claims that there were errors committed upon the trial, for which the judgment rendered on that verdict, should be reversed. We will notice such of these objections as we deem most pertinent.

It is claimed, in the first place, that the petition does not state a cause of action, and certain objections were taken to the introduction of testimony under it, and at the conclusion of the introduction of testimony by the plaintiff below, a motion was made that the jury be then instructed to return a verdict for the defendant, which was overruled. It is claimed especially, that the petition is insufficient, in that it does not aver that under the statute pleaded therein, an action such as this is, for negligence such as is charged here, could have been maintained in the state of Michigan if death had not ensued from the injury; and again, that there is no allegation in the petition, other than the pleading of this single section of the statute, showing to whom this right of action in case of death survives — in whose name it should be brought, nor who would be the beneficiary of the amount recovered in the action. This objection,in the form in which I have stated, it may be considered as one objection to the petition. The section of the statute pleaded in the petition, is:

“Whenever the death of a person shall be caused by the wrongful act, neglect, or default of any railroad company or its .agents, and the act, neglect, or default is such as would, if death had not ensued, entitle the party injured, to maintain an action and recover damages in respect thereof; then, and in every such case, the railroad corporation which would have been liable’ if death had not ensued, shall be liable to an action on the case for damages, notwithstanding the death of the person so injured, and although the death shall have been caused under such circumstances as amount in law to felony,”

It was necessary for the plaintiff to plead, that an action might have been brought upon this cause of action in the state of Michigan; in other words, as this is not such an action as at common law, as we understand it, or in the courts of this country, was ever recognized, but is entirely a creature of statute; and that if there was no cause of action in the place where the injury occurred, there could be none in any other form or jurisdiction. So the plaintiff pleaded this statute. Another question then follows, and that is, whether this state — 'Ohio—either by law or under the doctrine of comity, recognizes the statutes of the state of Michigan, creating rights of action, or creating rights to actions, and enforcing those rights and those statutes in Ohio. And so the plaintiff pleaded, after having set forth this statute, the fact that a right of action could be maintained under it in Michigan; that the state of Michigan allowed the enforcement in its courts of the statutes of this state upon that subject, intending to come within sec. 6134a, which provides, that “when death had been caused in any other state for which a right to maintain an action is given by the statutes of that state, such right may be enforced in this state, in all cases where such other state allows the enforcement in its courts of the statute of this state of a like character. ”

The objection, as argued, is substantially this: that the pleader must have set forth, in order to bring himself within the terms of the Michigan statute, such facts as would have shown that, by the law of Michigan, either that as enacted by its legislature, or .as declared by its courts, the facts in this case would have constituted a cause of action in the state of Michigan if death had not occurred. The clause which I read in the petition following the quotation of the statute, which is as follows: ‘‘Said state of Michigan allows the enforcement in its courts of the statute of this state, which authorizes an action of a like character to the foregoing action,” may be said to plead, in a general form, without a statement of the facts, that the courts of Michigan would enforce an action based upon the facts of negligence alleged in this petition, either where death had, or had not ensued. We do not think that the rules of pleading would require that they should set forth in the petition the decisions of the state of Michigan, or make any further or more particular allusion to the law of that state, as to the right to enforce this cause of action in the state of Michigan. The pleading says, that they have a right to enforce in the state of Michigan, the statute of this state in “an action of a like character to the foregoing action.” That means an action based upon facts of the character herein alleged.

On the trial, soon after the opening of the case, it was “admitted by counsel for both parties in this cause, that the courts of Michigan allow the enforcement in said state, of a statute of the state of Ohio, of a like character of the one involved in this controversy.” That admission is not as broad as the allegation in the petition, which is, that they allow the enforcement of a statute of this, state which authorizes an action of a like character to the one alleged. We think the allegation is sufficient upon that point.

Again it is urged, as I have said, that the law of Michigan with reference to who would be the beneficiary of the recovery, should have been pleaded in the petition; but we hardly think that is necessary, in the absence of a motion to make the petition more definite and certain. The petition sets forth a law, under which it alleges, that an action like this might have been maintained in the state of Michigan; and so far as the statute itself is concerned, it seems to be such a law. Whether there are other sections of the statute which modify this, or not,is not alleged; whether there are other sections which would show who had the right of recovery, it is not alleged; but the statute itself, simply provides, that when the death of a person is caused by negligence, that an action may be maintained. If this is all the law there is in Michigan, how would such an action be maintained? It is easy to determine that question. If this section is the entire law — and until something more is shown about it, it will be presumed to be the entire statute upon that subject — then who would be entitled to maintain such an action would be governed entirely by the laws of Ohio, or rather the laws of Ohio would be taken to determine who would be the proper party in this suit, and the law of Michigan would be presumed to be the same as that of Ohio, in that respect. In other words, if Michigan has enacted no statute providing how such an action shall be brought, for what parties such an action lies, then, when that statute is to be enforced in the courts of another forum, it will be enforced in those courts in the same manner that its local laws are enforced, to-wit: the action will be brought by an administrator as the representative of the deceased person. That is the way all actions for the rights of property, acquired by a person who is deceased, are enforced in the courts of'Ohio. Until something appears to show that this is not the law of Michigan, it will be presumed that it is.

Again, as to who shall be the beneficiary of this right of action, is to be governed by the same rule, so far as construing this pleading is concerned. No other law being pleaded, we may presume that they have no other statute upon the subject, and the proceeds fo the recovery will be governed by the law of general administration, unless there is some statute to take it out of the general course of administration. I do not mean to be understood as saying upon that point that the special statute of Ohio in actions of this class will control, but that the ordinary rules for distributing the property of a decedent’s estate will govern. But if that conclusion be not well founded, then — and upon that I might well rest an opinion upon this question — it is not a matter of any consequence to the defendant, or at least, it does not render the petition liable to an objection that it does not state a cause of action because that is not pleaded. If it be a matter that, the defendant wants to know about, he may take advantage of it by a motion; and if it be a material fact, he could certainly take advantage of it by answer. But if the petition fails to show it, it does not therefore render the petition in such a case.invalid, or render it liable to a demurrer.

The other sections of the Ohio statute following the one creating a right of action, provide how the action shall be brought — that is, in whose name: the name of the personal representatives — and fox whose benefit it shall be brought, and it goes on to make provision as to how the money recovered shall be distributed. It also provides, that the amount recovered in the action shall be proportioned to the pecuniary injury resulting from such death to the personal representatives, for whose benefit such action shall be brought. In pleading a cause of action under the Ohio statute, it is customary, and no doubt proper, to allege who the beneficiaries are — who the persons are who will receive the proceeds of this judgment — in order to place before the court and the jury the persons who will be injured, and in order to enable the jury, from the pleadings and the testimony, to determine what will be the pecuniary injury to those persons. But for that clause in that statute, it would be entirely unnecessary in Ohio, to plead who are the beneficiaries of such recovery. It is only for the purpose of enabling the court and the jury to determine how these persons are pecuniarily injured. The clause “pecuniarily injured” . is omitted, so far as the statute pleaded is concerned, and from an examination of the statutes of Michigan, which were offered in evidence — the whole body of them relating to this cause of áction — it appears that it is entirely omitted from their statute; the expression there being, that the recovery shall be what is fair and reasonable, and not proportioned to the pecuniary injury. We think that the objection to the petition upon this ground, is not well founded,

It is again suggested, that the petition does not allege that the decedent not only did not know and had no means of knowing, but that by the exercise of ordinary care, he could not have known of this negligence of the defendant in the maintenance of this bridge. We certainly cannot see why the allegation that the deceased did not know and had no means of knowing, as alleged here in this petition three or four times, does not cover that whole question. If he had no means of knowing the, position of the bridge and of its casings, and the danger to be apprehended from that position, then he was not negligent in not knowing. It is only when he has the means in his power to ascertain, and neglects to use those means, that he becomes negligent.- So that, upon that question, we think the petition filed in this case was sufficient.

It is urged with considerable earnestness and ability, in addition to these objections, that this judgment should be reversed, mainly because it is not supported by evidence or the law; that it does not show negligence of the defendant in maintaining this bridge; that it does show that t'he decedent himself, was negligent at the time he received the injury, which negligence contributed to it, in not being at the place where he was required to be, and in leaning out of the locomotive tender when he had no particular business to lean out, at least far enough to injure him — in blindly or wilfully leaning out to look at the rear end of the train, when he ought to have been aware of the proximity.of the bridge casing. The main point urged, is the contributory negligence of the decedent, in his failure to observe the rules of the company, in not being in his proper position, and in not using due care to avoid injury to himself. It is claimed that there was no urgency in the matter requiring him to look back towards the rear of the train at that time and place; that if he wanted to ride in the engine of the company, he should keep himself in a position of safety there, ■ — -at least, he should not be leaning his body out of the cab; that his experience on that road had been such as to warrant bringing to him, in the proper exercise of care, a knowledge of the existence of this bridge and.its proximity to the engine. In so far as the question is concerned, as claimed here, as to his duty to look back, it appears from the evidence, that it was a general duty devolving upon him to watch the train, to see that it was all together; that that duty was increased by the injunction of the railroad company, as set forth in its rules, by his ordinary experience in the performance of his duties, when they should be approaching or departing from a station, or when they should be descending or ascending heavy grades; that upon a grade somewhat steep, a train was known to be liable to break apart, and therefore there was a duty incumbent upon all the brakemen — both the general duty which the law would impose and that which the company had imposed by its rules — of observing the train, There can hardly be any question that this train was descending a grade. It is claimed here by the defendant, that it was a heavy grade. The proof shows that the descent was perhaps fifty feet to the mile. It was not a long grade, but it was a sharp one, and was approached from the east by an ascending grade. It is said that there was a liability, in passing over the crown of that grade, for a train to break apart, or just after it had passed over and commenced descending, there would have been a movement of the cars in the train that might possibly break it apart. There is an injunction in the rules, which says, that the employes are required to keep a look-out to observe that condition of affairs. The duty of the decedent would have been, had he discovered such a condition, to notify the engineer; the purpose being to enable the engineer to run the engine and the forward part of the train, after it separated, rapidly enough to keep it out of the way* of the following portion, so that he might avoid a disastrous collision. So that I think, so far as the duty of the decedent is concerned, it satisfactorily appears in the case that he had a duty to perform in watching the train, and if he was properly engaged in the performance of that duty, he would not be negligent. He had no duty, either in the practice generally followed upon the railroad, nor by the rules of the company was any required of him, to watch out ahead of the engine for obstructions upon the track. That duty was always performed by the engineer and the'fireman, whose proper and only place was upon the locomotive. The rules of the company which are so much relied upon, are rules 675 and 678. Those are the two principal ones.

Rule 675, provides:

“The proper place for a freight train conductor while his train is in motion, is the cupola of his caboose, if it have one. If the caboose should not be provided with a cupola, he will then maintain such other position, either on the topi or inside, as will give him a full view of his train and enable him to see that his train men properly perform their duties, and to know that his brakemen go out promptly when necessary to flag, He must also keep a sharp look-out, especially when rounding curves. He must require all of his brakemen to be on top of the train at least one mile before arriving at and while passing all stations and stopping places, descending or ascending grades, or at any point or time when extra precaution is necessary to insure safety. He should not ride on the engine except in cases of emergency. ”

That rule in and of itself, imposes no duty on the brakeman, and would be no notice to him, that he had any particular duty to perform except to obey the orders of the con-, ductor; but there are other rules which prescribe to him the duty of being upion the top of the train, and watching the tiain while in motion. Rule 678, is one particularly applicable to that subject: ° *

“In cold or inclement weather, the rear brakeman may ride in the caboose, and the front brakeman on the engine, occasionally, but while the train is descending heavy grades or approaching stations, all the brakemen must be at their respective posts on the top of the train. A brakeman, when riding on the engine, must obey the engineer’s instructions as to the proper time to return to his post.”

The excuse made by the plaintiff, in the trial of this case below, for the decedent being on the engine, was, that it was a stormy night; and the proof seems to justify that claim. It was raining hard, say the witnesses. It was thundering and lightning sharply, and the front brakeman, after the train left the last station, which I think is Adrian, had gone down from the top of the train into the cab of the engine, and remained there until he received this injury. So that the condition of the weather is shown by the evidence to justify the position of the brakeman in the cab of the engine, under this rule, that he might occasionally ride on the engine. So that,unless an exigency arose, which, under the rules or the orders of his superiors upon that train, required him to go out from the engine and get upon the top of the train, he was in his proper place. But the rule provides, that in descending heavy grades and approaching stations, brakemen must be at their respective posts, and that the brakeman, when riding on the engine, must obey the engineman’s instructions as to the proper time to return to his post. Let us see whether the decedent comes within that provision of the rule. It is claimed, that in the construction of that rule — it was claimed on the trial below, and proof was offered to make that claim good, that in such weather as this was, the forward brakeman always rode in the engine. It was also claimed, that in descending or ascending grades like this, or this grade in particular, under such conditions of weather, it was customary for the forward brakeman to ride on the engine. I think that claim is maintained by at least three witnesses called on behalf of the plaintiff. That testimony, it is true, was not offered so much with the idea of aiding in the construction of this rule, as upon the theory that the rule had been continuously and customarily violated by the employes of the railroad company, with the knowledge of the company or its immediate representatives, the conductor and engineer. It really was upon that theory that this case was submitted to the jury. We are not prepared to say that that was an improper theory where the evidence in the case tends to prove, that for a period of at least fourteen years before the happening of this accident, such had been the custom of the employes of this company, continuously followed, with the knowledge of the conductor, or assuming that it was with his knowledge, for it would hardly have been claimed that it would have been done so continuously without his knowledge, because he is directly charged, by the rule of the company itself, with a knowledge of the whereabouts of the employes of the train all of the time. That is one of his duties, and we may presume that he performed that duty always. So customarily and continuously, the forward brakeman had ridden in the engine while passing over grades like this. It was also, and of course could not have been otherwise, to the knowledge of the engineer. And under this very rule offered in evidence, the engineer is made the superior of the brakeman while he is in the cab of the engine, and the brakeman is placed directly under his orders, and commanded to observe the directions of the engineer, not as to what to do, but as to the time when he shall leave the engine and go upon the top of the train. One of the witnesses, who had been a brakeman-and a conductor for many years, testifies that the train men, those who manage and operate the train, did not consider this grade as such a heavy grade as comes within the terms and provisions of this rule. That evidence stands, so far as I am able to find, from a careful reading of this record, uncontradicted. It was objected to, and an exception taken to it. I might as well say here, it seems to us proper that that evidence should be given, not to prove custom, nor upon the theory that the defendant’s rule had been abrogated; for, as we look at this case, it might well have been presented to the jury upon the theory that the rule had been observed, and there are words in the rule which may well require to receive construction from the acts and conduct of the railroad company and its agents, in obeying and following it out. There are several words stated in the rule upon which evidence can be given: “Inclement weather.” What is inclement weather? What wculd be considered inclement weather which would authorize a brakeman to leave his post on the top of a train ? So in descending and ascending heavy grades, what are those grades that require the brakeman to be on the top of the train, regardless of the weather, whether it be rain, or snow, or ice? And what construction has the railroad company itself put upon this rule by its acts? So, when a conductor of some years’ experience, both as a brakeman and conductor, is called to say what was the custom of the railroad company, and what they considered a heavy grade, it seems to us, that that would be proper, notwithstanding that, under some circumstances the grade in question might be called heavy. The grade that these men were descending at the time of this injury was heavy, so far as its descent was concerned, but it was an exceedingly short one. It was three-quarters of a mile long, and the train these men were running, was something more than a fifth of a mile in length, or about that. So that the length of the train was about a third the length of this entire grade, and the train ran down it, as the evidence in this case shows, from thirty to thirty-five miles an hour, when it passed over that bridge. So that the time consumed in passing three-quarters of a mile down that grade, would be a little more than a minute. It might well have been the custom on the part of the employes of the railroad company, in a stormy night, in inclement weather, as the rule says, when once the forward brakeman had located hirüself in the locomotive cab, that he would not climb out over the tender and over the coal, and climb on the top of a slippery car, in order to observe a train passsing down a descending grade, at a rate which would take it less than two minutes to pass down. He would have hardly time to pass to the top of the car before it would enter the bridge, if he had started. So we think the testimony that it was an inclement night, and whether, uuder the circumstances, it was proper for the forward brakeman to be on the engine with the knowledge and consent of the engineer and those in charge of the train, were proper questions of fact, and that it would not necessarily abrogate this rule, although this case was presented to the jury upon the theory that it did. it might well have been claimed that it was to aid in the construction of the rule which the company’s agents had put upon it themselves by their own practice, and that that was with the knowledge and consent of the company and of the men who had charge of the trains, and who were the only representatives of the company who could have known it.

That the decedent, in view of this usage and practice, might well have remained in the engine cab. on such a night and at such a place, unless ordered by the engineer to go upon the cars, is, we think, well shown in this case. This rule makes the engineer the superior of the brakeman for that special order, and in the absence of such an order, a brakeman was not negligent in staying upon the .engine under the facts and circumstances that surrounded that man on that night.

Now, then, whether under these circumstances and in view of this proof, he was negligent in being upon the engine, was a question which could only be submitted to the jury, and if they determine that he was not, we are unable to see our way in this case, to say that such a conclusion was wrong. They were also to determine whether he was at that time, in the performance of this general duty, to observe as well as he could, from the position he occupied, the condition of the train behind him. They were also to determine whether he knew,or ought to have known, of the existence or the proximity of the danger to be apprehended from this bridge, These were questions for the jury, and questions which we think the court properly submitted to the jury. We are not disposed, then, to hold that a verdict in favor of the plaintiff below, upon these questions of negligence, so clearly within the province of the jury, is not sustained by the evidence, or to hold that it is contrary to law.

Whether the railway company was negligent or not, was not specially urged to us; but I may say in general terms, that it was the duty of the railway company to use ordinary care to furnish structures and machinery reasonably safe and proper, for the work that was to be performed upon them; and if it was shown in this case that they erected a bridge with casings at the sides, ten or twelve feet high,- and so near to the track that a person in the discharge of his duty, in standing upon the cab of the engine, leaning out, looking for a light on the rear end of the train — an operation safe and proper in other respects — was liable to hit his head or his body upon the casings of the bridge, then it was a question for the jury, under all the facts and circumstances of the case, to determine whether the company was negligent. That, they found in this case against the railway company. We cann'ot say the finding was wrong.

It is said that the jury,by their verdict, answered certain questions, and upon those questions there ought to have been a judgment for the railway company. The questions submitted to the jury were a little peculiar. Hardly any of them could have been decisive of this case, no matter which way they were answered. The first of this is, “Was the situation of the casing on the side of the bridge in question, open to ordinary view or observation?” The answer is “No, not under the circumstances.. ” They might just as well have answered that “yes,” for it would have had just as much effect on the verdict. It is common knowledge to us all, that a railroad casing constructed as this was, ten or twelve feet high, eighty feet long, twelve or fourteen inches thick, would have been open to ordinary observation, at least in daylight; and the evidence in this case, shows trs that it could have been seen, if anybody had been looking for it, or looking at it, 400 or 500 feet away, after night.

“2. Did the decedent know it? A. No.”

If they had answered that “yes,” it wouldn’t have made any difference. Suppose he did know of it — knew that there was a bridge and casing there; that is not the negligence alleged in the petition, that is not what the jury had to find in order to determine that the defendant company were liable. That the bridge was there, was admitted. The decedent might we'l have known it; but the charge of contributory negligence, depended on his knowledge, or means of knowledge, of the danger that there was in the existence and situation of that bridge at that particular-time and place.

“3. JBy the exercise of ordinary care and prudence on his-part in the performance of his service, could he have known-of it? A. No.”

“4. As this train was passing west down the Dover Hill-grade, across the bridge, was the time and place such as-rendered extra precaution necessary on the part of the head brakemanj in order to insure safety? A. Yes.”

I don’t know whether the precautions necessary to insure-the safety,referred to those precautions which would insure the safety of a brakeman or the safety .of his train, — it is not clear. The brakeman was required to perform certain duties for the safety of the train; he was also required to use ordinary care for his own safety. Whether what is meant here was his safety or the safety of the train, is not apparent.

Potter & Emery, for Plaintiff in Error.

Geo. B. Boone, and J. K. Hamilton, for Defendant in Error.

“As the train was passing westerly down the Dover Hill to and upon the bridge, was the train descending a heavy grade? A. Yes.”

It is said, because of that answer, that the judgment ought to be for the Railway Company. We do not think so. As has been said, in the discussion which I have given of that question of heavy grade as bearing upon the decedent’s contributory negligence, it may still be a question. What construction had the company put upon this rule which required the decedent to be on top of the train part of the time, and allowed him to be in the engine the balance of the time, and whether it was considered a heavy grade or not; not whether, as a matter of fact, the grade itself was heavy, but whether the company’s agents and servants considered this grade as coming within the rule of the company requiring him to be-upon the top of the car when descending it. So that, while this might well be a .heavy grade, it could not defeat the decedent’s right of action where the company had considered and construed it to be a different kind of a grade, so far as the actions of the forward brakeman were concerned. ■

We have examined the charge of the court, and all the requests, and we do not find any error in the action of the court as to those. . .

The judgment will be affirmed.


source: Caselaw Access Project

author: Frazier, J.

license: Public Domain

text:
    (Seventh Circuit — Ashtabula Co., O. Cir. Court
    M’ch Term, 1895.)
    Before Woodbury, Laubie and Frazier, JJ.
    THE NEW YORK, CHICAGO & ST. LOUIS RAILWAY v. LOCY SWARTOUT.

      Railroad Crossing — Negligence—
    1. The failure of a railroad company to place a flag-man or erect bars or gates at the crossing of its tracks by a street of a village, does not constitute such negligence, as alone makes it liable to a person injured, by one of its trains at such crossing. The company may, by the location of its tracks, and the speed of its trains, make it necessary in the exercise of ordinary care, to place a flagman or take other equivalent precaution for the protection of persons passing upon the highway.

      Contributory Negligence—

      2. Negligence in a railroad company in not giving signals, or in omitting precautions of any kind, will not excuse a person, about to cross its tracks, in his omission to be diligent in the use of his senses, as a means of avoiding danger, and his omission to do so, is concurring negligence, which should prevent his recovery.

      Charge of the Court—

    3. Where the evidence properly raises the question of such care on the part of the plaintiff, the defendant is entitled to have the jury charged in plain and concise words, to the effect that if the plaintiff, before he attempted to cross the track on which he was injured, could, by looking,have seen and avoided the approaching train, but failed to look, and by reason of such failure was injured, he can not recover.
   Frazier, J.

This is a proceeding in error brought to reverse the judgment of the court of common pleas.

Mr. Swartout brings this action to recover for injuries sustained in crossing the track of the defendant, and in an amended petition he sets out that the plaintiff in error (defendant below) is the owner of a line of railroad, extending through the county of Ashtabula, and into and through the village of Conneaut, in said county, and that the road crosses what is known and called Broad street, in the village, at nearly right angles, and operates its railroad trains and locomotives over the street crossing.

He also charges that the railroad company has permitted certain buildings and structures to be erected so as to cut off the view of the track, or of the approaching trains, and that they permitted box cars to stand upon the side track so as to cut off the view.

He then avers that at the time of the accident, the defendant, its agents and servants, in the operation of the train and locomotive by which he was injured, failed to sound the whistle of said locomotive, and that no whistle was blown or sounded at said crossing; that the locomotive and train were traveling at unreasonable and dangerous speed through the thickly populated pari; of the village, and defendant, its agents and servants, negligently failed to give plaintiff warning of the approach of the train, either by sounding the whistle, by having gates at said crossing, or by placing watchmen to inform parties and persons going over and upon the same, of the approaching train, and avers that the accident was caused and the injuries inflicted upon him solely on account of the carlessness and negligence of the defendant, its agents and servants, in the operation of the train and in the permission given to construct and have upon its right of way, in close proximity to its tracks, the buildings above mentioned, and in permitting box cars to stand upon the siding.

It is also averred in the petition that the train was a special, and not on the time card.

That at this point locomotive bells and whistles are almost constantly being rung and blown by the yard and other engines; and it is at times impossible to tell the direction of a locomotive or train by the bell or whistle.

The defendant answers, admitting that the train mentioned in the petition was not on the time card of the company, but denies that they were running at a high or unusual rate of speed; denies that its agents or servants had carelessly or negligently left standing upon the side track, box cars or other cars; denies that cars or the buildings and structures mentioned in the petition, so obstructed the view that plaintiff: was unable to see the approaching train; denies that at this point locomotive bells and whistles are almost constantly being rung and blown by the yard and other engines; and that it is at times impossible to tell the direction of a locomotive or train by the bell or whistle; denies that said crossing mentioned in the petition is dangerous, and denies that defendant, its agents and servants, well knowing the premises and having no regard for the rights of the public upon the said street, have failed or neglected to have a watchman stationed there; but admits that no watchman was, or has been stationed there; admits that the plaintiff was struck by the locomotive while crossing the defendant’s track on said street, and received injuries; but denies that said locomotive was running at an undue or improper rate of speed, and denies that plaintiff was injured to the extent claimed; and denies each and every allegation of negligence or want of care, and further avers that the plaintiff, by his own negligence and carelessness contributed directly and proximately to the accident.

The defendant below presents eleven requests to charge, and it is stated that they were not given, except as given in the general charge, and after the charge was given, the defendant made these exceptions to the charge:

“First: — In not limiting the grounds of recovery to what is alleged in the petition as the sole cause of the injury.
“Second: — To the refusal to give in charge, the several written requests submitted by the defendant each proposition being excepted to separately.
“Third: — What the court said in reference to the maintaining of the crossing; for the reason that it is not alleged that the injury was caused by the omission of gates.
“Fourth: —To the charge as misleading and tending to confuse the jury.’-’ . , .

Counsel for defendant in error claims the first and third exception raises the question urged in argument; that while it is stated in the petition that no flagman or gate was placed at the street crossing, it is not alleged as a ground of recovery, but probably as an excuse for the conduct of the plaintiff below; or in other words, to show he was not under the circumstances guilty of contributory negligence in going upon the track of the company, at the time and under the circumstances. We have heretofore held that a recovery cannot be had upon the ground alone, that the company failed to place a flagman or erect gates at a highway crossing,

Under what circumstances a railroad company in the management of its trains may make it necessary, or incumbent on it to place a flagman or gates at the crossing of its tracks, by a street or public highway, is discussed by our supreme court in Railway Company v. Schneider, 45 Ohio St., 678, where it is in effect held that a railroad company may, by the location of its tracks and by reason of the speed of its trains, make it necessary, and incumbent upon it, in the exercise of ordinary care,to place a flagman, or erect gates or bars, or take other equivalent precaution for the protection of persons passing upon the highway.

The question is raised in this case by the pleadings, and motion for a new trial, of the duty of a person, about to cross a known railroad track, to look out for dangers, and protect himself from personal injuries.

It is held in Ernst v. Hudson River Railroad Company, 39 New York, 61: ‘‘A traveler approaching a railroad track is required to use his eyes and his ears so far as there is opportunity, if he would avoid the imputation of negligence, even though the company may neglect the proper signals.” And Woodruff, J., on page 68, says:-“ A traveler approaching a railroad track is bound to use his eyes and ears, so far as there is opportunity, Negligence in the railroad company in the giving of signals or in omitting precautions of any kind, will not excuse bis omission to be diligent in such use of his own means of avoiding danger; and where, by such use of his senses, the traveler might avoid danger, notwithstanding the neglect to give signals or warning, his omission is concurring negligence, and should be so peremptorily declared by the court; and where proof of this is clear, the plaintiff thus negligent should be non-suited. ”

In Pennsylvania Company v. Rathgeb, 32 Ohio St., 66, it is held: “Ordinary prudence requires that a person in the full enjoyment of the faculties of hearing and seeing, before attempting to pass over a known railroad crossing, should use them for the purpose of discovering and avoiding danger from an approaching train; and the omission to do so without a reasonable excuse therefor, is negligence, and will defeat an action by such person for an injury to which such negligence contributed.”

Wright, J., on page 72, says: “We think that the law must be considered as well settled, that the traveler approaching the crossing, must be upon the lookout for danger. Ordinary care requires that he must look and listen to see if a train is in the vicinity, and if he fails in this, it is not merely evidence of negligence to be considered by the jury; it is itself such negligence as will prevent a recovery.”

In Cleveland, Columbus, Cincinnati and Indianapolis Railroad Company v. Elliott, 28 Ohio St., 340, it is held: “The omission to ring the bell or sound the whistle at a public crossing is not of itself sufficient ground to authorize a. recovery, if the party, notwithstanding such omission, might, by the exercise of ordinary care, have avoided the accident. It is the duty of a traveler upon the highway, when approaching a railroad crossing, to make use of his senses to ascertain if there is a train in the vicinity; and if, when in full possession of his faculties, he fails to see or bear anything, when a prudent man, exercising his eyes and ears, with ordinary care, would have discovered a train in close proximity, and he is thereby injured, he is guilty of such negligence as will prevent a recovery.”

On page 353, Wright, J,, says: “It is well said in Wharton on Negligence, section 382: ‘It is the duty of a person who attempts to cross a railroad to listen for signals, to notice all signs that may be put up as warnings, and to look up and down the road. It follows, therefore, that if a traveler by looking along the road could' have seen an approaching train in time to escape, it will be presumed, in case of collision, that he did not look, or looking, did not heed what he saw, and in such case the road under ordinary circumstances is not liable.’

‘‘The same author (p. 38á) says: ‘Where a person knowingly about to cross a railroad track, may have an unobstructed view of the railroad so far as to know of the approach of a train,and a sufficient time to clearly avoid any injury from it, he cannot, as a matter of law, recover, although the railroad company may have been also negligent, or have neglected to perform a statutory requirement.’ ”

In Pennsylvania Company v. Morel, 40 Ohio St., 338, it is held: ‘‘The fact that the view was obstructed did not excuse his neglect to stop and listen, it made his neglect to do so greater.”

There is some conflict in the evidence as to the speed of the train, and whether the whistle was sounded for this street crossing. The accident happened at midday, as plaintiff was going from dinner to his shop. He lived near the tracks of defendant’s railroad; he was familiar with all the surroundings; he passed over the crossing several times each day in goiDg to and returning from his shop to his residence He knew of the existence and effect of the structures complained of, that cars were left standing on the siding; knew there was then ah engine or train in motion upon the defendant’s tracks.

Plaintiff claims that by reason of the surroundings it was difficult to tell by the sound of the whistle or by the noise or rumbling of the engine or train, in which direction it was coming.

His testimony shows that as he came to the track, he looked toward the east and had his face turned in that direction, and that he did not look to the west, but walked upon the tracks, and when he was about midway between the rails of the main track, he was struck by the engine of the special train approaching from the west, and thereby received his injuries.

The record clearly shows that if the plaintiff, after he crossed the siding upon which the cars were standing, and before he attempted to cross over the main track upon which he was injured, had looked to the west, his vision would have been unobstructed, and ha would have seen the approaching train, and might readily have avoided the •danger.

As the language of the court in the decision of a case is to be read in the light of the facts before it for decision, it-■may be well to suggest that in each of the cases cited in -this opinion the person injured was riding in a carriage or other vehicle,and in charge of a team of horses, and it is in view of this fact that the courts speak of discovering the -approaching train in time to avoid the danger.

In the case at bar, the plaintiff was traveling on foot, -with no encumbrance, and all he would have to do to avoid -the danger was to stop when he discovered the train in the ■line of his vision, as he would have done had he looked in ;the direction it was coming,

■ As to the charge of the court in Doll v. The State, 45 Ohio St., 445, Williams, J., says, on page 452, “It is well ■feettled in this state that the omission of the court to charge the jury upon a particular question arising in a case is not erroneous, and cannot be made a ground of error, unless an instruction be requested, Jones v. State, 20 Ohio, 34.”

In Kirchner v. Myers, 35 Ohio St., 85, the action was by Mrs. Myers,under act of 1870 (67 Ohio Laws, 102), to recover for injury to her means of support by reason of the intoxication of her husband caused by liquor sold to him by Kirchner, and the resulting death of her husband. It having been held in Davis v. Justice, 31 Ohio St., 359, that damages on account of death cannot be recovered under the act, on page 92, Okey, J. says: ‘‘True, the request made in this case did not contain a correct statement of the law, and the court properly refused to charge as requested. It is also true that the failure to charge a correct proposition of law, pertinent to the case, will not, ordinarily, afford ground of reversal, if there was no request to charge such proposition. But here the attention of the court was directed by the counsel to the effect of death on the amount of the recovery, and the response was, not merely a refusal to charge as requested, but a statement to the jury that if the plaintiff was entitled to a verdict, ‘the amount must fully compensate her for all she has lost in her means of support, both present and future, ’ and no other allusion was made to the effect of death on the amount of the recovery. The jury were authorized under such a charge to take inti consideration the support.he might have rendered if death had not resulted in the way stated, which we have seen is opposed to Davis v. Justice, and hence the charge was not merely misleading, but under the circumstances, erroneous.”

In Lytle v. Boyer, 33 Ohio St., 506, on page 511, Ashburn, J., says: ‘‘The instructions asked may not be in the best possible form, yet they pertinently called the attention of the court to a material question in the case, upon which the defendant below had the right to have the jury instructed. As the court refused to give the instructions as requested, which were substantially correct, and failed to instruct the jury on a material question in the case, we think the court erred.”

In the case at bar, the defendant’s request No. 9, is, “If the crossing is a dangerous one, and the plaintiff knew it, that fact made it all the more necessary for the plaintiff to use all bis faculties to avoid danger from an approaching train, aod if he failed so to exercise his faculties he cannot recover;” which the court not only refused to give, but charged that “the plaintiff was bound to use and exercise ordinary care and ordinary prudence. What would be ordinary prudence and ordinary care on the part of the plaintiff when he was about to cross this track, at a place where he could not see far up or down the track, where he was situated as the proof shows in this case, where all the circumstances existed that you find from the evidence existing in this case? What notice or knowledge had he of the aproach of any train? What did he do? How did he act? Did he exercise ordinary care? That is for the jury to say. What would a man of ordinary care, having the knowledge that he had,- having such notice as he had, of an approaching train, have done? What would ordinary care require of him, that he ought to do to protect himself from danger? That is for the jury to say, not for the court. Would ordinary prudence have required of him, if he heard a noise or received notice that a train was approaching somewhere, before he entered upon the track, to have looked and listened to see whether there was a train coming or not? Could he, from the position in which he was placed, before he reached the track where it was dangerous, have looked both ways and seen? Could he have done it? That is for you to say, and if he could, was he guilty of negligence in not doing it? What does the proof show he did do? Did he look both ways? These are all matters for the jury. Take the facts just exactly as they appear to you, from the evidence,and then say, ‘Was he guilty of negligence which contributed to the injury, or did he fail to do what an ordinarily prudent person,situated as he was,with the same knowledge that he had, under the same circumstances would have done?’ It is all in a nut-shell, and you are the ones to determine whether or not he exercised ordinary care. If he did not exercise ordinary care, and such want of ordinary care contributed to the injury, then we say to you, that although the railroad company may have been guilty of negligence in the respects claimed in the petition, there can be no recovery in this case; but if the railroad company was negligent, and the plaintiff used and exercised ordinary care, then he could not be said to be guilty of contributory negligence.”

Theodore Hall, for Plaintiff.

Allen M. Cox, and Edward H. Fitch, for Defendant.

The charge is excepted to as misleading, and under the holding in Kirchner v. Myers, and Lytle v. Boyer, supra, we think not only misleading, but erroneous. The request was sufficient to call the attention of the court to the degree of care required of the plaintiff, and the defendant was entitled to have the jury charged in apt and appropriate words to the effect, that if the plaintiff, before he attempted to cross the track on which he was injured, could, by looking, have seen the approaching train, but failed to look, and by reason of such failure was injured, he cannot recover, which was not given in substance or effect.

We hold that the plaintiff, upon his own testimony and the uncontroverted facts in the case, is guilty of such negligence as will prevent a recovery. For this reason, and for error in the charge of the court, the judgment of the court of common pleas is reversed, and the cause remanded to that court for further proceedings.


author: Adams, J

text:
    (Fifth Circuit — Richland Co., O, Circuit Court
    Sept. Term, 1897.)
    Before Pomerene, Adams and Douglass, JJ.
    D. F. FLATAU v. THE CITY OF MANSFIELD.

      Gonvietion under city ordinance — Reviewable on question of weight of evidence—

    1 A judgment of conviction by a mayor, of an offence made punishable by an ordinance of the municipality, is reviewable upon the weight of the evidence

      Act of March 25, 1890, unconstitutional—

    2 The act of March 25th, 1890, (87 O. L. 100), authorizing the licensing of transient dealers in cities and villages, violates sections one (1) and two (2) of the Bill of Rights, and is therefore invalid.
    , Error to the Court of Common Pleas of Richland county.
   Adams, J

This case is brought in this court "to reverse the judgment of the mayor of the city of Mansfield, and the court of common pleas affirming the same,in a case against D, F. Flatau for violating an ordinance of the city of Mansfield passed in July, 1892. '

The first section of this ordinance provides:

“Before any transient dealer who opens a store or place for the temporary sale of goods, wares or merchandise,shall sell or offer for sale, either in person or by agent or otherwise, within the corporate limits of said city, any goods, wares or merchandise, such dealer or dealers, person or persons, shall procure from the mayor of said city a license so to do, for which he or they shall pay not less than $5.00 nor more than $100.00 for each and every day or part of a day while so selling as aforesaid. Provided, that this ordinance shall not apply to persons selling by sample only, nor to any agricultural products or articles offered or exposed for sale by the producer.’’

The second section provides that for a violation of the provisions of this ordinance a party may be fined in any sum not exceeding $100.00, nor less than $50.00, and that for each and every day thereafter, so selling without • such license, he shall be deemed and held guilty of an additional offense and be subject to the same penalty as herein prescribed.

This ordinance is-passed under favor of an act of the legislature, 87 Ohio Laws, page 100, which act provides: “That the council of a city or village may provide by ordinance for licensing transient dealers or persons who open stores or places for the temporary sale of goods, wares or merchandise, and in granting such .license, may exact and receive such sum of money as it may think . expedient, and may delegate to the mayor of such city or village the authority to grant and issue such license and revoke the same; provided, that this act shall not apply to persons selling by sample only, nor to any agricultural articles or products offered or exposed for sale by the producer.”

Flatau was arrested,convicted and fined for the violation of this ordinance; he prosecuted error to the common pleas court, which court affirmed the judgment of the mayor, and error is prosecuted here on a bill of exceptions,setting forth all the evidence. The errors assigned by the plaintiff in error are, that the judgment is not sustained by sufficient evidence; that the law is unconstitutional, and that the ordinance is invalid because an unreasonable and unlawful exercise of the power conferred by the statute.

We think that all these questions as to the constitutionality of the statute and the legality of the ordinance are sufficiently raised by motions and demurrers made on the trial, and by the general assignment of error that the judgment is contrary to law.

A preliminary question is made that a reviewing court has not the power or jurisdiction to review the judgment of a mayor in a conviction for the violation of an ordinance on the weight of the evidence, and we are cited to the case of the village of Bellefontaine v. Vassaux, reported in 36 Law Bulletin, page 322. An examination of that case as reported in the Bulletin some time last December, will show that the supreme court held that a conviction by a mayor for an offense is reviewable upon questions of law, but not upon the weight of evidence. This is based upon the case of Williams v. The State, 25 Ohio St., page 628, decided in 1874, and the assumption that there had been no changes in the statutes relating to such matters since the decision of the Williams case in 1874. The amendment of sec. 168 of the Municipal Code, a part of which is now sec. 1791, Kev. Stat., 72 O. L., 51, enlarging the powers of police judges; and the amendment of sec. 179, of the Municipal Code, providing for the review on writ of error of a decision of a police judge upon the weight of the evidence, 73 O. L., 226, repealed by paragraph 1102 of sec. 7437, Rev. Stat., which took effect Jan. 1, 1880, followed immediately by section 1752 Revised Statutes, as well as section 7356 of the Revised Statutes, which provides that the conviction of a crime, including conviction for the violation of an ordinance, may be reviewed upon error, satisfied this court in a case which we decided in Perry county last December, on the day following the decision of the Vassaux case and before the decision came to the knowledge of this court, that a judgment of conviction could be reviewed on the weight of the evidence, and our opinion at that time is confirmed and strengthened by subsequent examination of the subject, as well as by the action of the supreme court in the case of the village of Bellefontaine v. Vassaux. When we came to examine the advance sheets of the 55 Ohio St., page 323, we found that the supreme court had revised its decision in the Vassaux case, and omitted that part of the opinion which related tc the review of the mayor on the weight of the evidence.

So, as I say, that action of the supreme court has confirmed this court in its former opinion announced at New Lexington, and we now hold the law to be, that judgments of a mayor of convictions for the violation of an ordinance may be reviewed upon the weight of the evidence.

Outside of the statute it seems to the court that there are the same reasons for reviewing a mayor upon the weight of the evidence that there are for reviewing any other court or magistrate upon the weight of the evidence.

Tn this case, we have examined all the evidence in the bill of exceptions, and find that there was a conflict in the evidence. The character of the fixtures, the admission of the defendant below as to his position as a transient dealer, were met on the other hand by a lease for eight months, a contract for printing for eight months, and the testimony of Flatau himself that he expected to continue in business.

As I said, there was such a conflict of testimony that, taken in connection with the fact that the statute does not define what is meant by a temporary sale — the statute is silent as to how long a man must continue to sell goods or merchandise before he ceases to be a temporary salesman and becomes a permanent dealer in goods — we are unwilling to disturb the judgment of the mayor on the weight of the evidence.

The affidavit drawn pursuant to the statute, charges that Flatau, on the 31st of July, 1897, being then and there a transient dealer, did unlawfully open a store to sell boots and shoes in the city of Mansfield. That is the offense with which the defendant below is charged. It is claimed here that the law is unconstitutional, because in violation of sec. 8, art. l,and sec. 2, art. 4, of the Federal constitution. In a case in Licking county, the circuit court, several years ago, made that holding, and that case has been affirmed by the supreme court, 53 Ohio St., 660, on the authority of Sipe v. Murphy, 49 Ohio St., 536.

An examination of the 49 Ohio St.case leads us to the conclusion that the supreme court based their decision upon the unreasonableness of the ordinance in that case, and not upon the ground stated by the circuit court. I am authorized to state upon the recollection of Judge Pomerene, who sat in that case, that, contrary to the record of the case, the judgment of the circuit court in that case was really based upon the unreasonableness of the statute, and not upon its violation of the Federal constitution.

Our attention is also called to sec. 2 of art. 12 of the constitution of Ohio, which section relates to the uniform taxation .of property; but we think it does not aid the plaintiff in error in his contention here.

Under this act, and we must judge this act by its terms as they appear upon the statute book, two dealers in the same line of goods, in the same town and on the same street, may have stores that, in all respects, are identical in the character of their fixtures, the character of their stock of goods that they are selling, and they may be selling in exactly the same manner; both of them may be citizens of the town, one of them a permanent dealer in the business ■who has been carrying on business for many years, and the other, perhaps, a wholesale dealer, who has taken a stock of goods to secure a debt, and is anxious to dispose of the stock and get his money. Under this law, the one man is free from any license, fee or tax, and the other can be required to pay any sum that the council of the city or village may deem expedient.

The statement of that case, to an unprejudiced mind, in a free country, shocks'the sense of justice, but that is not sufficient to make the law unconstitutional. Courts have no authority to declare acts of the General Assembly unconstitutional because they are unjust or unreasonable. Our supreme court, in numerous decisions, has held that the legislature is given full legislative power, except as prohibited and restrained in other parts of the constitution.

Sec. 1, of the Bill of Bights provides: “that all men are, by nature, free and independent, and have certain inalienable rights, among which are those of enjoying and defending life and'liberty, acquiring, possessing and protecting property, and seeking and obtaining happiness and safety.”

Section 2. ‘‘All political power is inherent in the people. Government is instituted for their equal protection and benefit.” That is all that I care toread from that section. ‘‘Government is instituted for their equal protection and benefit.”

It was because the mechanic’s lien law violated these two sections of the bill of rights that our supreme court, in the case of Palmer & Crawford v. Tingle, 36 Law Bulletin, page 315, 55 Ohio St, 423 held that the mechanic’s lien law was unconstitutional, and the reasoning of the learned judge who announced the opinion of the court, applying these two sections of the constitution to the mechanic’s lien law, we think applies with peculiar force to the facts in the case at bar. We think that this section of the statute clearly violates the principle stated in the bill of rights that all laws must be for the equal, protection and benefit of the people. We think that the act is in clear violation of these provisions of the constitution and, if we are wrong in that conclusion, we think that the case in the 49 Ohio St., page 536, and the reason there given for holding that ordinance invalid, apply in this case.

On page 545, the court say that the ordinance in that case was held an ‘‘unreasonable exercise of power, because the effect of the ordinance was largely a prohibiting, under the name of licensing, the sale at auction of goods brought into the corporation for that purpose, which enter into daily use and consumption, and which could not be excluded by any police regulation as being detrimental to the public health, comfort, and convenience. The ordinance is not impartial; it unjustly discriminates, by the imposition of a license tax, between goods, wares, and [merchandise in the ■city, and such as^fmay' [be imported from® other cities or places within the borders of the state, for the purpose of ■sale at auction. The ordinance is “in restraint of trade. ” The judge amplifies that reason, and says further that the “ordinance is opposed to the public policy of the state.”

Louis Bruclcer and D. W. Cummins, for Plaintiff in Error.

J. B. Seward and Samuel Marriott, for the City.

In commenting on the case in the 52 Cal., 646, and quoting from the opinion in that case, the court quotes with approval the saying of that California court, that the ordinance was “flagrantly unjust, oppressive, unequal and partial;” that it discriminates between merchants .who are in identically the same line of business: The only difference in the case at bar being between the man who runs the business for a short time, and the man who runs the business •for a longer time.

It is said, in argument, that these transient dealers escape taxation. If that is so, it is because the assessors do not perform their duties under sec. 2741 of the Revised Statutes.

We hold, therefore, that the judgment of the court of common pleas, and of the mayor, must be reversed, because the act is unconstitutional, and because the ordinance is illegal and void. The judgments of the courts below are reversed and the plaintiff in error discharged from custody.


author: Parker, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Oct. Term, 1897.)
    Before King, Haynes and Parker, JJ.
    JOSEPH T. HARRISON ASSIGNEE, v. ELIZA W. CHATFIELD, et al.

      Assignment for benefit of creditors — Deed of assignment embracing land in other county — Notice—■
    1. A deed of assignment, conveying- lands of the assignor situate in another county of the state than that of his residence, takes effect as to all persons from the time of its delivery to the probate court of the county in which the assignor resided at the time of its execution.
    Same—

      2. It is not necessary that such deed be also filed for record with the recorder of deeds of the county where the land is situate.
    Appeal from the Court of Common Pleas of Lucas county-
   Parker, J.

In this case a petition was tiled in the court of common pleas of this county, on the 23d day of November, 1896, which sets forth that on the 17th day of October, 1892, the defendants, Eliza B. Chatfield and William H. Chatfield, by separate deeds of assignment, severally assigned all their property to the plaintiff, for the benefit of their creditors, which assignments were duly filed as 3:53 o’clock, p. m., on the 19th day of October, 1892, in the probate court of Hamilton county, Ohio, and thereupon the plaintiff duly qualified and entered upon his duties as such assignee. Reading from the petition:

“Said deeds of assignment include‘all and singular the rents,tenements, hereditaments and appurtenances, goods, chattels, stocks, promissory notes, debts, choses in action, evidences of debt, claims, demands, property, and effects, of every description, belonging to them severally, wherever he same may be situated, the same to beheld by said Joseph T. Harrison in trust, to sell and dispose of said real and personal property. First: — -For the payment of lawful costs. Second: — Payment of claims of creditors in full and ratably. Third: — The balance, if any, to be returned to them severally. ’
“Plaintiff says that at the time of the execution of said deeds of assignment, the said Eliza W. Chatfield was the owner, subject to a life or dower interest of Mary O. Wade, of the undivided one-eighth of lot 63, Port Lawrence subdivision of the city of Toledo, Lucas county, Ohio, and which, by the terms of said deeds of assignment, were conveyed to the plaintiff on the date aforesaid. SEN.'
“Plaintiff says that the affairs of said assignment have never been settled, and that he is still duly qualified assignee of the property of said Eliza W. Chatfield and Wil liam H. Chatfield.
“Plaintiff says, that while acting under the deeds of assignment, and before the affairs had been settled, (and which, after the sale of all other estate, real and personal, which came to the knowledge of plaintiff, was insufficient to pay the debts of said Eliza W. and William H. Chatfield), the said Eliza W, and William H. Chatfield, on the 12th day of March, 1894, by a deed recorded March 9th, 1894,' at 10:15 a. m., in the office of the recorder of Lucas county, Ohio, and by a pretended consideration of|3,000, conveyed the said real estate by a deed of general warranty, (subject to the interest of said Mary C. Wade), to a certain Charles B. Eggleston, then, and now, a resident of Chicago, Illinois. That notwithstanding the said conveyance, the said Eliza W. Chatfield and William H. Chatfield, have since continued and still continue, to treat said real estate as their own.
“Plaintiff says, that at the time of said defendants making said deed, they were largely indebted and insolvent; that said conveyance was fraudulently made, and for simulated and pretended considerations, and was made to hinder, delay, and defraud the plaintiff in the execution of his trust, and their creditors of their just and lawful debts.”

. The petition contains a prayer for the setting aside of the deed from Eliza W. Chatfield and William H. Chatfield to Charles B. Eggleston, and for general relief.

To this petition, the defendant, Eliza W. Chatfield, answers, denying that any interest which she then had in lot 63, Port Lawrence division, Toledo, Ohio, was conveyed or was intended to be conveyed by the deed of assignment from her to the said plaintiff referred to in said petition, and denying that the sale and conveyance of March 12, _1894, to the defendant, Charles B. Eggleston, was fraudulently made, or made for a simulated or pretended consideration, or was made to hinder, delay, and defraud the plaintiff in the execution of his trust, or her creditors in the collection of their just and lawful debts.

But she avers, on the contrary, that said sale and conveyance to the defendant, Eggleston, was for a full and valuable consideration paid her therefor, by said Eggleston, And she denies that since said conveyance she has continued to treat said real estate as her own.

The defendant, Eggleston, also answers, denying “that the deed referred to in said petition, from Eliza W. and William H. Chatfield, to him, for the Toledo property, was fraudulently made, or was for simulated or pretended considerations, or was made to hinder, delay and defraud the plaintiff in the execution of his trust, or the creditors of said Chatfields of their just and lawful debts.” Denies that the Chatfields, since the conveyance, treat the property as their own. He avers that he purchased it in good faith, for a valuable consideration, and that at the time of said purchase he had no knowledge that the plaintiff had, or made any claim to said real estate under the assignment to him set out in said petition. And he also avers, “that no assignment from said Eliza W.' Chatfiied, conveying to said plaintiff any interest she had in said lot, had been recorded in Lucas, county prior to the record therein, of the aforesaid deed to him.”

The defendant, William H. Chatfield, files no answer; but it appears that the property in Lucas county, with reference to which this controversy arises, was owned by Mrs. Chatfield, and that the only interest Mr. Chatfield had in it, was a contingent right of dower; so the fact that he is in default for answer, is of no consequence.

It will be observed that the pleadings admit that the deeds of assignment were executed on October 17th, 1892, and filed with the probate judge of Hamilton county on the 19th day of October, 1892; and that of Mrs. Chatfield, was not filed or recorded in the office of the recorder of Lucas county, Ohio; also that the deed of Eliza W. Chatfield was executed on March 14th, 1894, and recorded in Lucas county, Ohio, on March 19th, 1894; and that the trustee has not administered the interest of Eliza W. Chatfield in the Lucas county property. The fact that' the deed of assignment was not recorded in Lucas county, was admitted by the pleadings or established by uncontroverted evidence upon the trial.

The denial by Mrs. Chatfield that this property was conveyed, is met and overcome by the production of the deed of assignment. That deed, in which her husband joins, releasing his contingent right of dower or curtesy, reads in part as follows:

“Have granted, bargained, sold, assigned, transferred, and set over, and by these presents do grant, bargain, sell, assign, and set over, etc., all and singular the lands, tenements, hereditaments, appurtenances, goods, cLattels, stocks, promissory notes, debts and choses in action of every description, belonging to her, wherever the same may be situate, except such property as is by law exempt from execution.”

Her averment to the effect that she did not intend to convey this property to the assignee, must be disregarded. There is no averment of, or effort to establish, by proof, such fact as would authorize a reformation of the deed of assignment so as to make it conform to her alleged intent.

The conveyance to Eggleston was constructively fraudulent as to her, and there is some testimony tending to show that she had knowledge of the fact that she had no right to convey this property. Her attorney cautioned her to make no mention of her assignment to any prospective purchaser, for fear, as he says, that such person might think that their Lucas county property was conveyed or affected by the deed of assignment. He further testifies, that he was subsequently applied to by Eggleston for information about the interest of Mrs. Chatfield in this property. That he stated to Eggleston that he had no information he could give him about the property, and he referred Eggleston to the records in Lucas county. According to his testimony, which is corroborated in that particular by that of Mrs. Chatfield, the fact of the assignment was carefully concealed from Mr. Eggleston. There is sufficient in this, to show that Mrs. Chatfield appreciated the fact that her right to convey the Toledo property was at least doubtful, and consequently, to justify a conclusion that the act upon her part was not free from the taint of intentional fraud. There is much shown as to the acquaintance, relationship, and association of Mrs. Chatfield and Mr. Eggleston and their families. Taken in connection with the apparent keenness and capability of Eggleston as a man of affairs, and his knowledge of the financial circumstances and property holdings of Mrs. Chatfield, in and about Cincinnati, it makes it difficult for us to believe that he had at this time no knowledge of her failure and assignment for the benefit of creditors. He admits that he knew that she was very much in need of funds, and that the proposed disposition of the Toledo property, was for the purpose of enabling her to raise funds. It is passing strange that in their conferences on this subject, no questions were asked, or suggestions made by him as to availing herself of the property, at and about Cincinnati. He admits, too, that he knew of the assignment made by Mr. Chatfield, a fact that need not have been, and probably was not disclosed in the course of these negotiations. This assignment was made at the same time and in conjunction with that made by Mrs. Chatfield. If he did not know of her assignment, it would seem that there must have been not only the practice of deceit upon her part, but such a closing of the eyes and abstaining from investigation on his part, as to make him a very easy, if not a willing victim of her deceit. His answer that at the time he received this conveyance “he had no knowledge that said plaintiff had made any claim to said real estate under the assignment,” is not a denial of knowledge of the assignment. But now he comes and testifies that he had no knowledge of the fact that Mrs. Chat-field had made an assignment, and that he relied upon the information that the recorder of Lucas county gave him; and that Mrs. Chatfield and others told him of the condition and value of the property, (he did not come here, to seejt), and upon that he gave full value for the property That this property was taken at a valuation of $3,000, and certain Boody House stock was taken at a valuation of $750, and he conveyed to Mrs. Chatfield,in exchange therefor, certain real estate in the city of Chicago, of the value of $3750, We do not feel authorized, however, to disregard this positive testimony, and give effect to our surmises and suspicions as to this transaction, and therefore we find on this issue in favor of the defendant, Eggleston, to-wit: — ‘that he is a bona fide purchaser for value, and without knowledge or actual notice of the assignment.

This brings us to a consideration of the other question, arising on the fact that the deed of assignment was duly filed in the probate court of Hamilton county, the county of the assignor’s residence at the time of the assignment, but was not recorded in Lucas county at the time of the conveyance of this property from Mrs. Chatfield to Eggleston. Upon the part of the plaintiff, it is contended that the deed became effective and was constructive notice of wbat it Contained as to all the world, upon its beipg so filed in said probate court, so that Eggleston cannot avail himself of the plea that he is an innocent purchaser for value, etc. That sec. 6335, takes such deed out of the purview of sec. 4134, Rev. Stats. Sec. 6335, being the first section of the chapter upon the subject of voluntary assignments, provides as follows:

“When any person, partnership, association, or corporation, shall make an assignment to a trustee of any property, money, rights, or credits, in trust for the benefit of creditors, it shall be -the duty of said assignee, within ten days after the delivery of the assignment to him, and before disposing of any property so assigned, to appear before the probate judge of the county in which the assignor resided at the time of executing the said assignment, produce the original assignment, or a copy thereof, cause the same to be filed in the probate court, and enter into a bond, payable to the state, in such sum and with such sureties as shall be approved by the court, conditioned for the faithful performance, by said assignee, of his duties according to law; and the court may require the assignee, or any trustee subsequently appointed, to execute an additional undertaking whenever the interests of the creditors of the assignor demand the same; any such assignment shall take effect only from the time of its delivery to the probate judge, and the exact time of such delivery shall be endorsed thereon by the probate judge, who shall immediately note the filing on the journal of the court. ”

Sec. 4134, is upon the subject of the recording of deeds, and reads as follows:

“All other deeds (the preceding section referring to mortgages), and instruments of writing for the conveyance or incumbrance of any lands, tenements, or hereditaments, executed agreeably to the provisions of this chapter, shall be recorded in the office of the recorder of the county in which the premises are situated, and until so recorded or filed for record, the same shall be deemed fraudulent, so far as relates to a subsequent bona fide purchaser, having, at the time of purchase, no knowledge of the existence of such former deed or instrument.”

Counsel for Eggleston contend upon the contrary, that to be effective as to bona fide purchasers for value, without notice, of real estate situate in another county of the state than that of the assignor’s residence, and of its filing with the probate court, the deed of assignment must be recorded in the office of the recorder of the county where such real estate is situated. That sec. 6335 makes such filing with the probate court essential to the taking effect of the deed as against creditors only, while as to all others, and especially an innocent purchaser for value, sec. 4134, controls.

Counsel for the defendant refer us to a case in 15 Pa. St., 399, which they urge throws some light upon this proposition, it being assumed that the statutes of the state of Pennsylvania, upon the subject of the recording of deeds of assignment and other deeds, are similar to the statutes of the state of Ohio. The syllabus of that case reads as follows:

“A voluntary assignment of real estate for the benefit of creditors, not recorded in the county in which the land was situate, is not valid as against a subsequent purchaser from the assignor, without notice of the assignment, even though it was recorded in the county in which the assignor resided, within thirty days, in pursuance of the fifth section of the act of March 24th, 1818. ’ ’

At page 402:

‘‘Per Curiam. — The act of 1818,was made for the protection of creditors: the act of 1775, was made for the protection of purchasers. They are consistent in their provisions; and there was no design to impair the latter. There was no evidence of actual to supply the place of constructive notice; and if there had been, the fact was left to the jury.”

It will be observed that our statute upon the subject of filing and recording deeds, is of earlier date than that upon the subject of executing and filing deeds of assignment; and so it was urged here, that our act on the subject of deeds of assignment, providing for their being filed with the probate judge of the county of the residence of the assignor, was, in the language of this court, made for the protection of creditors; whereas, the earlier act upon the subject of other deeds, was made for the protection of purchasers; that the two are consistent, and may stand together; that the earlier is not impaired or affected by the latter. But when we come to examine the statutes of Pennsylvania upon this subject, we find them to be, as we view them, quite different from ours. All I need read is sec. 13 of the act, upon the subject o'f assignments, appearing at p. 121-, of vol. 1 of Brightly’s Pruden’s Digest:

“All assignments so as aforesaid, to be made and executed, which shall not be recorded in the office for recording of deeds in the county in which such assignor resides, within thirty days after the execution thereof, shall be considered null and void as against any of the creditors of the said assignor. ”

We are also cited to a casein 58 Ind., 56 — Switzer et ux. v. Miller et al., — in which there is a similar holding. I need not stop to read the case, but it holds in effect upon the Indiana statute as does the Pennslyvania case upon the Pennslyvania statute. But upon examining the Indiana statute upon the subject of assignments and the filing and recording of deeds of assignment, we observe there, that also the filing provided for in the act is limited in its effects to the creditors. So that the court might have well held, as it did, that as to all others the general statute upon the subject of filing and recording deeds, was in full force, and applied to deeds of assignment as well as to other deeds.

Counsel for tbe defendants concede that, under the authorities in Ohio, it is not necessary to record a deed of assignment in the county of the assignor’s residence to have it take effect as to bona fide and innocent purchasers for value, and that the filing in the probate court has that effect in that county, as to real estate in that county. This concession, it seems to us, is inconsistent with the claim that the filing with the probate court makes the deed effective as to creditors only. There is no ground, that we can discover, for the distinction that such filing is effective in such county, not only as to creditors, but as to innocent and bona fide purchasers for value, while in other counties it is effective only as to creditors. We can see no reason why sec. 4134, must not apply to all counties, if to any. The fact that the doctrine of lis pendens may so apply as to afford a reason for not complying with sec. 4134, in such county, does not affect the question of its operation there. But we think it clear that it has been settled by our own supreme court that sec. 4134, does not govern or apply, and that the filing with the probate judge is effective not only as between the parties and as to creditors, but that it amounts to constructive notice to all the world as to land situated in any county of the state. I read from the syllabus of the case of Betz v. Snyder, p. 492, 48 Ohio St. Reports:

“1. A mortgage of real property, which has not been deposited for record with the recorder of the proper county, before an assignment of the property by tbe mortgagor for tbe benefit of his creditors takes effect, is not a valid lien upon the property, as against the assignee, or the creditors; nor does it become so by being subsequently recorded.
“2. Such an assignment takes effect, as to all persons, from, the time of the delivery to the probate court of the county in which the assignor resided at the time of its execution. It is not necessary that it be also filed for record with the recorder of deeds.”

A distinction between this case and that is pointed out. In that case, the land in respect to which the question arose, was situated in the county of the assignor’s residence, and the county therefore, where the deed of assignment was filed with the probate judge; but it will be observed that the syllabus, which states the law of the case, makes the rule apply as well to other counties as to that county. Tüere is no stress laid by the court upon the fact that it was real estate in the county of the assignor’s residence, or where his deed of assignment was filed; but the reasoning of the court is to the effect that the law laid down by the court applied to all counties of the state, as well to those in which the assignor did not reside, and where the deed of assignment was not therefore filed,as to the county of his residence and the county of the filing of the deed of assignment. I read from the opinion, at page 503:

“But, is it essential to the validity of an assignment of real property, as to third persons, that the deed should be recorded in the office of the county recorder? As a deed conveying real property, it falls within the class of instruments whose record is provided for by sec. 4134, of the Rev. Stats., and is subject to its provisions, unless controlled by other statutory regulations made especially applicable to such assignments. The whole subject of assignments by insolvent debtors for the benefit of their creditors, is specifically provided for, and regulated, in detail, by chap. 4, of tit. 2, of the Revised Statutes. By the first section of that chapter, (sec, 6335), it is made the duty of every assignee, within ten days after the delivery of the assignment to him, to cause it to be filed in the probate court of the county in which the assignor resided at the time of its execution; and it enacts, that every ‘such assignment shall take effect only from the time of its delivery to the probate judge, and the exact time of such delivery shall be endorsed thereon by .the probate judge, who shall immediately note the filing on the journal of the court, and it may be delivered by the assignor to the probate judge, either before or after its delivery to the assignee. ’ Upon the filing of the assignment, the assignee is required to enter into a bond for the faithful performance of his duties; and from that time, the administration of the assignment becomes a pending proceeding in the probate court, and so continues, until the trust is fully executed. Notice that the assignee has qualified, is required to be given by publication, and notice must also be given by publication or otherwise, of various steps in the proceedings The probate court is invested with complete jurisdiction of the whole subject-matter of the assignment, and of its administration to final completion. Its records, equally with those of the courts of common pleas, and of the records of deeds and mortgages, are constructive notice of wh.at they are required to contain. It is a rule of construction, that special statutory provisions for particular cases, operate as exceptions to general provisions which might include the particular cases. The object of those provisions of sec. 6335, to which we have referred, was not, we think, simply to provide when, and how, assignments should become operative as between the parties to the instrument. They were not necessary for that purpose. As between them, the conveyance is complete without a compliance with those provisions. Their design evidently was, to fix definitely a time from which such instruments should take effect as to all persons. And, it having been so specially enacted, that assignments for the benefit of creditors shall take effect from the time of their delivery to the probate judge, the courts are not at liberty to annex, as a further condition to their taking effect, that they shall also be deposited with the recorder of deeds. This conclusion is sustained by the decision of the supreme court of Massachusetts, in Guildford v. Childs, 22 Pick., 434, which involved the interpretation of statutes very similar to ours.”

This decision of the supreme court is approved and fortified, as we think, by a decision appearing in 49 Ohio St., 392 — the case of Webster v. Clear. I will read from the opinion, delivered by Minshall, J., beginning at p. 397, and which opinion states the facts of that ease sufficiently, so that it may be understood:

“Both parties in this ease claim title to the land in question from the state to whom they belonged in 1853, as a part of its canal lands. In that year, Charles Elliott purchased the lands for a valuable consideration, and in 1854, received a deed therefor, executed by the governor in due form, which, as required by law, was duly recorded in the record of deeds of canal lands, kept in the office of the auditor of state. It was not, however, recorded in the recorder’s office of the county of Paulding, where the land is situate, until 1875. The plaintiff derives his title from Elliott, by a deed duly executed. In 1871, Webster and Wise, without actual notice of the deed to Elliott, for a valuable consideration, purchased the same lands from the state, and received a deed thereof, in due form of law. Their purchase was made under the provisions-of an act passed April 15, 1866, providing ‘for the sale of the remaining canal lands belonging to the state.’ 63 Ohio Laws, 140.
“The principal question in the case is, as to the effect of the omission of Elliott, or his grantee, to cause the deed executed to him for the land in 1854, to be recorded in the office of the recorder of Paulding county, until after the purchase had been made by Webster and Wise. The defendant claims, that under the provisions of our recording act, the deed to Elliott is of no avail against him, as he and Wise are bona fide purchasers, having at the time they made their purchase, no knowledge of the existence of the former deed.
“We do not adopt this view. Whether the provisions of the act providing for the recording of deeds and the effect of an omission to do so, in terms applies to a deed made by the act of April 15, 1857, (54 Ohio Laws, 160), for the recording of all deeds made by the state, in the auditor’s office, and though this act was passed a few years subsequent to the sale to Elliott, it is made applicable by its terms to any lands that ‘have heretofore been sold or may hereafter be sold;’ and this deed was recorded in the auditor’s office, in the record of canal lands, as found by the court. This special provision for the recording of deeds made by the state, must, agreeably to the decision in Betz v. Snyder, 48 Ohio St., 492, be regarded as superseding the general provision on the subject. It was there held, that the deed of an insolvent assignor for the benefit of creditors, takes effect and is notice to all persons from the time it is filed in the office of the probate judge, without having been recorded in the office of the recorder of the county, on the ground ‘that special statutory provisions for particular cases, operate as exceptions to general provisions which might include the particular case. ’ Hence, a deed from the state, executed and recorded as prescribed by this statute, necessarily becomes notice to all persons, that the land described in it has been sold and conveyed to a purchaser; and no one, unless by his negligence, can be a subsequent purchaser without notice.”

Avion E, Wilson, and Harrison & Aston, for Plaintiff.

Waite & Snyder, for Defendants.

As I have said, we regard these decisions as settling the controversy beyond question, and that there is nothing left for this court to do, but to observe and follow these decisions of the supreme court upon the subject.

There will be a decree for the plaintiff, as prayed for in the petition.


author: Smith, J.

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1897.)
    Before Smith, Cox, and Swing JJ.
    THE TENNESSEE LUMBER CO. AND THE CINCINNATI PANEL CO. v. JAMES W. MARCY.

      In error proceedings all the several parties interested in the judgment below, must be made parties — Six months’ limitation—
    A proceeding in error can not be instituted by one of several parties to the suit who are alike interested in the judgment below, without making- them parties to the error proceeding, and where a petition in error has been dismissed for _failure to make the parties below interested in the judgment __ below, parties to the error proceeding, and more than six months after judgment below have elapsed, new error proceedings are^barred by the statute.1! ~
    Error to the Court of Common Pleas of Hamilton county.
   Smith, J.

In this case it clearly appears that quite a number of persons who were parties to the controversy in the probate court, and in the court of' common pleas, to which it was taken by appeal, are not parties to this proceeding in error in any way. They were all directly interested and affected by the decree which was rendered in the court of common pleas, ordering the distribution of the estate of Marcy who had made an assignment of his property to Crane, for the benefit of his creditors. Marcy alone, was made a defendant to the error proceeding. There were several other persons who held mortgages on the property, executed by Marcy before the assignment, and who were parties in the proceeding in the probate court and in the common pleas. Any change or modification of the decree of the common pleas, would affect their interests. As has been said, neither they or Crane, the assignee, (whc, possibly, if he had been made a defendant, might have represented their interests), were made parties to this proceeding to réversse that decree. They were proper and necessary parties to this proceeding. The decree in the common pleas having been rendered in July, 1894, and proper parties not having been made, and it being now too late to do so, this court has no jurisdiction to reverse or modify said decree, and the case must be stricken from the docket. See Smetters v. Rainey, 14 Ohio St., 287; Jones v. March, 30 Ohio St., 20; Burke v. Taylor, 45 Ohio St., 444; Page v. McConville, 10 O. C. C., 316.

Thomas MoDougall, for Plaintiff inJError

Marsh & Ritchie, contra.