author: Bentley, J.

text:
    (Sixth Circuit — Huron Co., O., Circuit Court
    Nov. Term, 1894.)
    Before Haynes, Scribner and Bentley, JJ.
    THE VILLAGE OF MONROEVILLE v. LIBBIE B. WEIHL.

      Defective side-ivalk — Injury— Testimony as to the condition of walk on next day.

    In an action against a village for injury caused by a defective sidewalk, a description of this walk by a witness who examined it the next day after the accident, may be competent where there is no indication of a change in theside-walk since the accident, and the description agrees with other descriptions by witnesses who saw it on the day of the accident.

      Non-professional witness as to state of health.

    Under the rules laid down by our supreme court, it is not incompetent for a non professional witness tp testify as to the general state of health of a party, although it would be incompetent for such witness to go into detail and determine the technical disease with which a party was afflicted.
    ' Evidence — Evidence of statements contradicting ivitness’s testimony —Not admissible unless ivitness has been first examined as to such statements.

    Where in such action the defense is that plaintiff suffered before the accident from the same complaint which she claims was caused by such accident, and the depositions of a physician are produced who claims at that time to have treated her for such complaint, witnesses were introduced to testify that such physician at that time, had stated that plaintiff was suffering of a complaint of a different nature. Held such testimony was not admissible unless the physician was first asked in his examination whether he had made such statements, and the fact that his testimony was introduced in depositions and he was not accessible at the time of trial to be called to the stand, does not alter the rule.

      Physician’s statements — When not part of res gestae

    Held further, that it not appearing that such alleged statements were made by the physician in connection that any particular act while treating-the plaintiff at the time, they did not constitute part of the res gestae.

      General principles given in charge to jury.

    Care must be taken about giving generally correct principles in particular cases. So, in this case the charge was: — “It was the legal duty of the village of Monroeville to keep the side-walks in said village in repair, so as to be in a reasonably safe condition for pedestrians or persons walking upon said side-walks, both by night and by day; and a failure or neglect to perform that duty renders the defendant liable for all damage directly _ resulting from such failure.” The first part of that proposition is correct; while the latter part of it is too general as applied to a particular case.

      Contributory negligence — Question whether plaintiff’s evidence shows on his part, for jury.

    Where the evidence produced by the plaintiff to establish negligence on the part of the defendant by reason of which she was injured shows or suggests contributory negligence of the plaintiff, it becomes incumbent on the plaintiff to prove absence of contributory negligence on his part. But the question whether plaintiff’s evidence shows or suggests contributory negligence, and whether in consequence the burden to disprove the same falls on the plaintiff, must be left to the jury.

      Same — Duty to avoid defective side-walks.

    In such case a instruction that ,if the plaintiff had had equal opportunity with the village authorities to know the condition of the side-walk at the place where she fell, she is held to the same degree of care to avoid injury as the village is bound to exercise, and if by the exercise of ordinary care, plaintiff could have easily avoided danger by passing along the north side of the street, or if by the exercise of ordinary care, she could have passed along the walk where she fell and avoided falling, the verdict should be for the defendant, is erroneous.

      Same — Patent defect in side-walk — Duty of care.

    Where a person of ordinary intelligence would have seen the defect in side-walk, and that it was unsafe to’ go there, and notwithstanding that the plaintiff did attempt to go there, the presumption would arise that the plaintiff was guilty of negligence in attempting to go there; and it would then become incumbent for plaintiff to show an excuse why she did go there.

      Side-walks — Primary duty of village to know their defective condition.

    It is the duty of the village authorities to keep the side-walks in re- - pair and save condition, and a citizen is not under equal obligation to know of the defective condition of the side-walk as the village authorities.
   Bentley, J.

This is an action in error brought to reverse the judgment of the court of common pleas upon a verdict rendered by the jury in this case in favor of Libbie B. Weihl v. The Village of Monroeville, Ohio, for injuries alleged to have been received by the plaintiff below, from falling upon a certain side-walk, upon a public street, within said village, which was at the time out of repair and dangerous, and which had been so out of repair and dangerous for some length of time, and of which condition it is charged the village officers had notice.

-A motion was made for a new trial after the rendering of a verdict by the jury m favor of the plaintiff below, and being submitted to the court, was overruled and a bill of exceptions was thereafter allowed and filed, and duly made a part of the record of the proceedings.

Quite a large number of exceptions were taken to the various rulings of the court during the trial, several of which are now urged upon our attention, and certain of which seem to have been abandoned; that is, certain exceptions that appear noted in the record are not specially called to our attention. So I will simply deal with such as have been noticed by counsel, the first being on page 65, at the bottom, and also on page 66. A witness was testifying in behalf of the plaintiff as to what he had observed cf the side-walk in question, after the injury to the plaintiff below. He had testified in examination in chief, and as would appear from the reading of the record of his testimony, he went along this .«ide-walk in question the same afternoon that the plaintiff below was injured upon it. Upon cross-examination, he indicates that he did not go down there at that time, but that it was sometime during the next day, the day after the injury, and he asserts in his cross-examination that he did not state that he was there the afternoon of the injury, and did not intend to so state, thus indicating that perhaps the testimony he intended to give had been mistaken or misapprehended. At the close of that matter, this occurred: Question put to him: “Now, you say it was the next day after; it wasn’t the same day?” Answer: “No sir, I never said it was the same day.” Defendant’s counsel: “I ask the court to instruct the jury that they are not to consider the testimony of the witness as to the condition of the sidewalk the next day after the injury occurred.” Court: “The testimony is competent.” An exception was noted.

It is true that the condition or situation of an object, soon after it has borne some part in a material controversy, may be given in evidence, — a description of it, as found shortly after the circumstance happened, is competent; however, there comes a time when it would be toe remote to have any proper bearing. There might be an intervening circumstance also, or inter vening circumstances which would indicate that it was incompetent and immaterial. In this case, there was no direct testimony that the walk remained in the same position at the place in question from the time of the injury until the next day when this man passed along. But, taldng into consideration the circumstances, — the description of the walk as it appeared to various witnesses at the time of the accident, and afterwards when this man saw it, we are unable to conclude that this was error prejudicial to the defendant below. It might, or might not have any great bearing, owing to the circumstances, the situation, and the time intervening, etc. There being no indication of a change in the side-walk at that place, the inference might be drawn that nothing ha'd been done there after the accident. We are unable to say that the court of common pleas was in absolute error in ruling that the testimony was competent.

A non-prufessional witness was allowed to testify as to the health of the plaintiff below' at. a certain period, and objection was made to that, but it was overruled and exception was taken. Under the rules of law regarding such matters, as laid down in two cases in this state, we think it is not incompetent for a person to speak of the health of another, —that'is, in that general way. Of course, it might not be competent for a non-expert, or non-professional witness to attempt to go into detail and determine the technical disease with which a person was afflicted; but upon the general matter of his health, as to whether a person appears sick or not, we think the ordinary witness may be allowed to speak. So that exception is not allowed.

At the close of the testimony m behalf of the plaintiff below, a moti.on was made to take the case from the jury, because the testimony showed, as it was claimed by the defendant below', that the plaintiff had as much knowledge of the situation of that walk, — of its being out of repair and in dangerous condition, — had the same means of knowledge that the village had, and that the plaintiff should be held to the same rule, and that therefore, as a matter of law, evidence for her ought not to be held to make a case against the village. It should be a very clear, and a very strong case where a motion of that kind is allowed. We think the testimony in this case does not present such a situation as would have warranted the court or common pleas in allowing that motion, and to refuse it was not error.

Objection was made to certain testimony offered by the plaintiff in rebuttal. The defendant below in this case had substantially entered a general denial in °its answer to the claim of the plaintiff below and had put in issue the fact of her being injured, the extent of the injury, the occasion of the injury,and the means by which the supposed injury was inflicted, and the amount of damages suffered etc., and also set up affirmatively that if the plaintiff below was injured, it was owing to her own negligence.

In the course of the trial, the defendant below sought to how, in answer to the plaintiff’s testimony showing that she had been badly injured on this occasion, and had been confined to her lióme a long while by reason of her injuries complained of, and had uterine diffieulites, — I say the defendant below, in answer to such testimony, sought to show two things or matters that might be viewed under two aspects: The defendant below was claiming all the while that she was not injured in the manner that she complains of; the village also sought to show that she had, in fact, had the difficulties that she complained of as resulting from this injury, long before that, and had been treated on account of them and was, in fact, an invalid and unhealthy in this respect, before the happening of this injury at all. The village had called Doctort Callen who had testified to things tending strongly to show, if his testimony was true, that this claim of the village was correct; at least, that there was some basis for it. The witness Callen spoke by deposition which had been taken sometime before the trial. In the course of the deposition, the Doctor testified to being called by her, or for her, in the year 1889, I think, — this injury having occurred in 1892; that he had treated her for uterine difficulties,and that substantially like symptoms then prevailed that she claimed to have prevailed after the infliction of this injury.

Quite a considerable testimony was given by Doctor Callen respecting this matter, — regarding his treatment of her.

On cross-examination it was sought to affect this testimony, and the doctor was inquired of as to whether he had ever treated her prior to this injury more than once, or on more than one occasion, and he said he had not. Then inquiries were made of him as to whether or not the difficuHy that he had treated her for at that time was not a lung difficulty, and not an uterine difficulty at all, and the doctor denied that in general terms. He denied that he had treated her for that, and denied that that was what ailed her at the time, and in general terms said that he had ever said so at any time. But he was not inquired of in cross-examination at that time, or at any time, as to his having made such a statement at any particular time or place, or to any particular person. But the questions were simply general, whether he had ever said so at any time or nlace. Therefore, under the ordinary rule as usually observed, it may be said that the foundation had not been laid to contradict him as to such statements bv proof of statements by him made to individuals, conflicting with the testimony that he was then giving by deposition.

Nevertheless, upon the trial, various witnesses were called, or two or three, at least, were called, to testify as to when Dr. Callen had told the witnesses respectively, or said in their hearing regarding this matter; that is, testimony was given indicating that the doctor had said in the presence of various individuals, that this girl, on the occasion when he was treating her, had lung fever, and that he treated her for lung fever etc., — statements which, if he made them, would tend to show that the testimony he was now giving by deposition was not true, or might not be true; at least, conflicted with it. Objection was made to all of this testimony, and the court overruled each objection, and the testimony was-allowed to go to the jury. It is claimed now by the plaintiff in error, that this was substantially prejudicial error for which the judgment of the court of common pleas ought to be reversed.

On the other hand, the counsel for the defendant in error insist that the testimony, as it was given, was competent, not because it was a mere contradiction of the witness Callen, but because these alleged statements by him were expressions connected with acts of his respecting the girl’s sickness and in treating her, explanatory of those acts, and therefore, under the general rule, became part of what is called the res gestae, and that therefore, they might be given because the acts themselves were proper to be given.

I will state in general, that from the testimony given by these various witnesses, as to what Dr. Callen said, it does not appear that the statements were made in connection with any particular act that the doctor was doing at the time; even if that would render them competent. The statements that Dr. Callen said so, are general, and while it might be gathered that the remarks were ' made during the general time when he was in attendance upon this lady as her physician, yet none of them appear to have been in connection with his dealing out medicine, or giving directions about the dealing out of any medicine for her, or at the very time he was making an examination of her. The simple statement is that on one occasion he said she had lung fever. The claim here is that he said that in her presence, indicating perhaps that it; was when he was there at the house, and possibly, on the occasion when he may have observed her sufficiently to make a certain examination, enough to determine what was probably the trouble with her.' But there is not one of these questions that isparticularly connected with any particular act of. the doctor, aud many of these statements may have been made, not at the house at all, and not in immediate connection with any talk regardng her treatment; in fact, we are impressed, from the appearance of the record, that counsel were not careful in their examination, to show that these statements were made in connection with seme particular act, and that, perhaps, there was not then in the mind of the counsel the particular reasons for urging the testimony that is now urged. Neither would it appear that it must have been from the understanding that these were a part of the res gestae, that the court overruled the objections and allowed - the testimony; but it simply stands in the manner that I have indicated, that the witness whose deposition was taken, without being cross-examined as to the particular facts, as to the particular statements that he may have made inconsistent with his then testimony, was contradicted by evidence showing that he had made statements in conflict with his testimony. This is in conflict with the general rule of law. The question is, whether it should be regarded as sufficiently prejudicial to over-throw this verdict and the judgment founded upon it. While certain rules of evidence are accepted as being in a sort of general way acknowledged,' though perhaps not' very definitely fixed by adjudication in this state, our Supreme Court on quite a number of occasions has dealt specifically with this very question, and I will call attention first to the case of King v. Wicks in the 20, Ohio, p. 87. The syllabus reads:

“Before a witness can be contradicted by proving statements out of court at variance with his testimony, he must be first inquired of, upon cross-examination, as to such statements, and the time, place and person involved in the supposed contradiction.”

.Judge Ranney, delivering the opinion in that case, on page 89, says this:

“The leading case in England was that of the Queen, reported in 2 Broderik & Bingham 814, Lord Abott, C. J., delivered the unanimous opinion of the judges, holding that evidence to contradict or impeach a witness by proving that he had made different statements out of court, could not be received until the witness was first ask«d, upon cross-examination, whether or not he had said or declared that which was intended to be proved. But the counsel for the plaintiff in error is mistaken in supposing that the doctrine rests alone or mainly upon this decision. It has been fol-owed in England by the case of Angus v. Smith (and quite a number of oases oited in the opinion which I will now take time to read.)

Judge Ranney proceeds: “And is the clear and undeniable rule of the English courts at this day.”

Then follows a long citation of authorities. Then Judge Ranney proceeds: “It is believed tobe the rule in every state in the Union where the question has been raised,except Massachusetts and Maine. It is also the doctrine laid down in the most approved elementary books. Mr. Greenleaf, in his work on Evidence, after stating that the credit of a witness may be impeached by proof of statements out of court contrary to what he has testified at the trial, adds: ‘Before th’s can be done, it is generally held necessary, in the case of verbal statements, first to ask him as to the time, place and person involved in the supposed contradiction. It is not enough to ask him the general question, whether he has ever said so and so, nor whether he has always told the same story; because it may frequently happen that, upon the general question, he may not remember whether he has so said; whereas, when his attention is challenged to particular circumstances and occasions, he may recollect and explain what he has formerly said.’”

And so the opinion proceeds in that line. Again, in 15 Ohio St.,p. 1, the second proposition of the syllabus states the rule as it has been laid down, as I have already stated.

A very extended opinion was delivered in that case. On page 10, of the court’s opinion, this is said regarding the Queen’s case arising in England:

“And one of the questions submitted to the twelve judges in the Queen’s case was, whether, when the alleged impeaching matter was discovered after the witness had been examined, it might not be given in evidence without calling back the witness? The answer delivered by Chief Justice Abbott was, that the only effect of a subsequent discovery, would be to allow' the witness to be called back for further cross-examination, if still within reach. And they were all of opinion, that, according to the usage and practice of the courts below, and according to law as administered in those courts, the proposed proof could not be adduced without a previous cross-examination of the witness as.to the matter thereof. ”

The court say further, on page 12 of the opinion:

“The rule has frequently been applied to depositions, also, to the case where it. was proposed to impeach the testimony contained therein by showing that the witness, subsequently to his examination, had made statements inconsistent with his testimony,or said that what he had sworn to was false. ”

The same authorities are cited under that statement, and the court proceeds:

“In Kimball v. Davis, the court say: ‘The declarations of witness! s whose testimony"has been taken under a comission, made subsequent to the taking of the testimony, contradicting or invalidating their testimony as contained in the depositions, is inadmissible in evidencce, if objected to. The only way for a party to avail himself of such declarations, is to sue out a second commission. Such evidence is always inadmissible until the witness, whose testimony is sought to be impeached, has been examined upon the point, and his attention particularly directed to the circumstances so as to furnish him an opportunity for explanation or exculpation. ’

The opinion of the court in this case was delivered by Chief Justice Nelson; the same judge who decided Losee v. Loses, cited by plaintiff in error, and before referred to. The decision was affirmed in the court of errors, Chancellor Walworth delivering the leading opinion.

“We are aware that the application of the rule to depositions has, in some cases, been denied, or applied with various modifications (citing certain authorities.) But a ma- ' jority of the court are of opinion, that the weight of authority, as well as the principle upon which the rule is founded, requires the application of the rule to the present case; and that the district court did not err in overruling the proposed evidence. ”

It will be seen there that in cases of depositions, such declarations might be given in. evidence, if they were made after the deposition of the witness had been taken; and it was strongly urged and it will be seen that that afforded a sort of equitable circumstance that it might be supposed ought to be taken into consideration. The witness’s deposition may have been taken at a distant place, and it might be exceedingly inconvenient to recall him for cross-examination, and yet. even such a case, the court held does not vary the rule.

Now, in this case, even that ground for admitting such testimony does not appear. For all that appears in the record, all of these various statements of admission by Dr. Callen, may have been made, and were made, in fact, long before his deposition was taken, and for anything that appears,the plaintiff and her counsel may have been fully aware of that at the time of the cross-examination of the doctor himself.

Dr. Callen’s testimony was regarded as a very material matter in this case,a matter which we can easily surmise, and from the appearance of the record, was largely commented upon by counsel. It was material in two aspects of the case; one was in determining the amount which the jury ought to award the plaintiff for damages, because, if the whole injury had been inflicted by the accident that was c.omplamed of in her petition, certain damages might have been awarded; but. if they but augmented an old trouble, or brought about a recurrence of an old disease; if she was not entirely cf sound health in these respects before, this would bear upon the question as to the amount of damages, not, of course, to determine that she was not injured by this recurrence, but it was a matter that should be considered in determining the amount. And then again the testimony may have had a bearing upon some of the more general issues of the case; for instance, the plaintiff was claiming and asserting, not only in her petition, but by her testimony before the jury, and by the witnesses called in her behalf, that until this time she was sound and healthy in respect to the ailment that she complamed.of after the injury. She was a witness m the case, and that was her position before the jury, and while what occurred,might or might not have been recognized by the jury as influencing their belief in her testimony, yet, as a matter of law, these contradictory statements of the witness Callen, were not competent for the jury to consider. It might possibly have had in the minds of some cf the jurors quite an effect upon her general position and general statements under oath.

So, if this was erroneous, as we think without question it was, we are unable to see why it should not be' regarded as prejudicial. It might have been prejudicial. The chances are that it had more or less bearing. While we can well see that the testimony of Dr. Callen, if he had made these other statements that are attributed to him, would naturally excite in the counsel appearing for the plaintiff a desire to shake his testimony, and all that, yet there still remains the ordinary and orderly way by which that should be accomplished, and that being departed from in this case, we think there was error, manifest and prejudicial.

In regard to the objection that was made on page 418, that question is of no moment now; but I might say that that was a discretionary matter that we should not regard as error.

We had occasion in a case that came up in our court at Toledo, to look into the question'as to whether a physician’s remarks as to the nature of an injury, are to be considered a part of the res gestae. A woman had been injured there upon the side-walk on cne of the streets. Her knee had been injured,and the dootor was called and examined it. I think the doctor had died before the case was presented to the court; at least, his testimony was not in the record, but witnesses were called and testimony given as to what the doctor had said when he had examined, on the very occasion when he examined the knee. We considered that very carefully because it was one of the principal matters in controversy at the time. I have not before me, neither can I recollect definitely the authorities cited, but we found authorities bearing directly upon it, and I think a very strong and decisive case ,was in Massachusetts, in which it was held that such statements of the physician wer§ incompetent, and the result of our investigation in that case was that it was prejudicial error,and we reversed the judgment, it seems to me, wholly upon that ground.

Where the principal question is about 'the action of the doctor in giving the medicine, etc., what he may say at the time he is giving the medicine, might, in certain inquiries, be of great importance; for instance, some question might come up as to the propriety of his giving the medicine or administering the remedy that he did, or doing the things that he did, or as to the state of mind he was in at the time. It might well be said that there are many occasions, when what the doctor said in reference to the administering of remedies, was of the res gestae. But here, the principal fact to be proven was the actual state of the woman’s health of body in these particulars; that was the main and material fact. That the doctor said anything about it, is of no particular moment. That is not the primary fact. The administering of any particular remedy is not the primary fact. But .the actual situation of the woman is capable of being proven.

If, in such case, the doctor testified that she was in a certain condition, the fact that he gave certain remedies which, ;according to the general learning of the profession, would not at all be applicable to that disease which he claimed she had, or if the doctor had made expressions, stating what his •treatment had been, or stating what the condition of the woman had heen, throwing doubt upon his present testimony, that would all be material, of course, and proper to be given, when the proper foundations are laid for it. And in certain cases, some of these statements might be a part of the res -gestae, but not here.

The next exception that was argued is on page 481, regarding the giving of certain requests prior to the argument to •the jury. This request was preferred by the plaintiff to the ^icourt with the request that it be given prior to the argument to the jury, and reads as follows:

“It was the legal duty of the village of Monroeville to keep the side-walks in said village m repair, so as to be in a reasonably safe condition for pedestrians or persons walking upon said sidewalks, both by night and by day; and a failure or neglect to perforin that duty renders the defendant liable for all damage directly resulting from such failure.”

The first part of that proposition is correct; that is, it is the duty cf the village to keep its sidewalks in repair; but this is added: “The failure or neglect to perform that duty renders the defendant liable for all damages directly resulting from such failure.” That, in a certain sense, is true; but, if given, it is to be applied to this particular case, and care must be taken about giving generally correct principles lu particular cases. This might be supported by argument that a failure or neglect to perform that duty rendered the defendant liable for injuries directly resulting from such failure even in cases where contributory negligence is alleged, because it might be argued that in case it resulted from negligence of the plaintiff,or that the negligence of the plaintiff materially contributed to the injury, it cannot strictly be said to have directly resulted from the fault of the village; that is, to have resulted wholly from that; but, at the same time, each distinct proposition ought to have within it, its own elements of safety. But while other distinct propositions following it, may take out of it any Ruing or improper sentiment that there may be in it, yet it is always better to have each charge full-robed in itself.

Following this was the second request, given probably at the same time, closing with these words:

“Your verdict should be for the plaintiff, unless the plaintiff was herself guilty of a want of ordinary care in passing over the said walk in question.”

Now, if these things were presented alone, we would not have consented to reverse the judgment for any error in that first proposition, because we think, so far as it might be said to be at all incomplete or inadequate in expressing the whole law upon the subject, sufficient follows immediately after i't, so that we should not suppose that the jury were misled to the prejudice of the defendant below; and yet, I call attention to it to indicate that the first request might be subject to criticism in not excluding certain things from it.

The defendant also asked the court to say to the jury that “The burden of proof is upon the plaintiff to show, by a preponderance of the evidence, that she was, at the time she fell upon the side-walk, exercising ordinary care.”

This is contrary to the general rule; but it is claimed here that in this particular case, it was correct,' because tne counsel claimed that from the testimony of the plaintiff herself, and of her witnesses, a case has arisen where there is a suggestion or a presumption of her want of care, and that therefore, it was a case where the burden of proof would be shifted upon her to show that she was in the exercise of due care.

But the trouble with this is, that the court was asked, as a matter of law, to assume what the jury should find in this particular, and to say that it was actually, as a matter of law, a case for the application of this rule regarding the shifting of the burden of proof. We think the court would not have been warranted in doing that, and its rejection of that was not error.

The sixth request of the defendant below is:

“That if the jury shall find that the plaintiff had had equal opportunity with the village authorities to know or ascertain the condition of the side-walk at the place where she fell, it will be their duty to hold her to the exercise of the same degree of care to avoid injury as the [defendant is bound to exercise, that is, ordinary care; and if by the exercise of ordinary care, the plaintiff could have easily bypassing along the north side of the street, or if by the exercise of such care, she could have passed along the walk where she fell and avoided falling, the verdict should be for the defendant. ”

That request, if given, would have been an assumption by the court of common pleas that it was her duty to have avoided this walk when she came to it, if she had such knowledge, or was to be charged with such knowledge, .that if she could have avoided it with ordinary care, she should have avoided it; that if she could have avoided it when she came to it, by the exercise of ordinary care, she ought to haev done it.

This instruction was properly refused, we think.

The seventh request following this, reads:

“If the jury shall find that the side-walk at the place where the plaintiff fell was out of repair and unsafe or dangerous, and so appeared to persons of ordinary intelligence, it was tne duty of the plaintiff, when passing along on the occasion when she fell,to exercise ordinary care to avoid injury, and the burden of proof is upon her to show by a preponderance of the evidence, that she exercised such care.”

Contrary to the sixth and the second requests of the defendant below, this did not involve the court of common pleas in the assumption that a case had arisen when the burden of proof had shifted upon the plaintiff below, but it submitted that matter'to the jury, and it rested upon one hypothesis as given in this request, that if the jury should find that, the burden would be shifted upon her.

Now, we think that the idea manifest in that,and what the jury would have understood was, that if any ordinary person walking along there, would have seen that this was unsafe and dangerous to go upon, and if the jury should find that it was open, apparent and patent that that was so, and that notwithstanding that, the plaintiff did go along there and was injured, then the time had come when the burden was shifted upon her to show some excuse for her going there, notwithstanding this apparent danger and difficulty.

We have studied that with care, and it seems to us that that embodies the true rule governing in a case of that kind; that it may be well said as a matter of law, that when those circumstances appear, there does arise a suggestion or presumption, as the Supreme Court puts it in various ways,such as is spoken of in the case m the 28 Ohio St. and 35 Ohio St., the presumption or suggestion of the plaintiff’s negligence, which would devolve upon her the burden of excusing herself. There may be various ways by which she might excuse herself, of course; but if that appear alone, just this circumstance, it would seem manifest that she would be guitlv of contributory negligence, just the same as a person would be who was about to cross a railway track when the train was coming in full sight and it was apparent to anybody and everybody that the train was liable to over-take him at the crossing, and that the person was of ordinary intelligence, with good faculties and eye-sight, etc.

There would arise, under such circumstances, an implication, a presumption, that the plaintiff was guilty of negligence in attempting to cross under circumstances of that kind, and if there was any excuse for him, his attention being attracted, or anything of the kind excusing him, the proof ought to be made manifest by him or her, and we think the rejection of the seventh request was error.

I might say in this connection, that that standing alone, if it were not that testimony which we think erroneous was allov'ed to go to the jury, we probably would not have found that sufficiently prejudicial in this par icular case to have warranted a reversal. Butv'e think it is erroneous.

“If the plaintiff knew' the dangerous character of the side-walk, or if in the exercise of ordinary care1 she might have known it,then she was guilty of contributory negligence and she cannot recover in this action, even though the defendant was in fault and negligent.”

C.P.& L. W. Wickam,and E. J.Huston,for Plaintiff in Error.

Stewart & Rowley, and Andrews Brothers for Defendant in Error.

This was the eleventh request by the defendant below for instruction to the jury, and was rejected. We think this does net, -with sufficient care, state the rule of law as applicable to an occasion of this kind-; but it would seem to embody the idea that the plaintiff was just as much bound to know of the defective condition of the walk as was the village officers, which, we think, is not true. It is not only the duty of the village officers to keep the walks in repair, but to exercise some vigilance in finding out whether they were not out of repair. It was their duty to keep them in repair, and if they were so generally out of repair that- their attention was attracted to it, they owed some duty of inspection and ascertainment which the plaintiff below did not. Then again, there is this form of expression which is generally alopted in the record in this case, and perhaps in mosteases; but it seems to us, at least, that it is improper to use it in such an action. I refer to the word “might, ” — “if, by the exercise of reasonable diligence the party ‘might’have discovered” so and so. That may be used in many.cases, and’ perhaps is; but it seems to us the meaning is not exactly the same as it would be if the expression was, “if, by the exercise of reasonable diligence, he “would” have discovered or “should”have discovered. He“might”have discovered, by the use of reasonable diligence, or “might’’not have discovered by the execrise of the same diligence. The question in such a case is, if he had exercised reasonable diligence, would he have discovered; would it have resulted,as a fact,with sufficient certainty that this condition would have been ascertained or noticed.

At any rate, we think it was proper for the court to reject the eleventh request,as was done.

Several paragraphs or sentences of the charge of tne court were excepted to and appear noted upon the margin; but we think in this case to hold as fatal the errors which are said to exist, or the criticisms that are urged against them; would indicate a too rigid requirement; it would be subjecting the charge to too close a eriti-' cism, hypercriticism almost,- to say that it embodied erroneous propositions such as would probably mislead the jury. We think the court did not err in the respects mentioned. But for the reasons that I have already stated, errors that I have pointed out, the judgment will be reversed, the verdict set aside and the cause remanded to the court of common pleas for a new trial.


source: Caselaw Access Project

author: Frazier, J.

license: Public Domain

text:
    (Seventh Circuit — Ashtabula Co., O.,Circuit Court,
    Jan Term 1895.)
    Before Frazier, Woodbury and Laubie, JJ.
    THE NEW YORK, CHICAGO AND ST. LOUIS RAILROAD COMPANY v. ORMAN F. ELLIS.

      Injury to R. R. employe by bridge giving way — What evidence competent to show negligence in construction of bridge — History of repair of bridge before the accident—
    In an action by a railroad employe against the railroad company for damages for injuries sustained by the giving way of a bridge in the road under his train, it being claimed that the accident was due to the negligence of the railroad company in the construction and maintenance of such bridge, evidence showing what had been done by the company in repairing the bridge before the accident, and that the timbers were left on the ground to replace the remaining older parts of the bridge, is competent as part of the history of the repair of the bridge.

      Same — Testimony as to what would ordinarily be proper foundation of bridge—

    Witnesses who state that they are carpenters and bridge-builders and who are called as experts, and are asked “what is the ordinary foundation for a wooden trestle bridge; upon what should such a bridge be erected,” and answer that “it is on stone or piling,” is competent.

      Same — Testimony as to condition of timbers taken out at repair before accident—
    A statement by an expert witness who has examined the parts of the bridge which were taken out in repairing the same before the accident, about their condition, is competent.

      Character of injury — Physician’s opinion as to permanency—
    A question to a physician to state whether in his opinion the injury received by the plaintiff is liable to be permanent and progressive, is competent.

      Testmony as to damages to otherfbridges near by—

    (testimony that a bridge near by on a highway was not damaged by the flood is not competent, as it would bring in a collateral issue.

      Exception — Court reserving decision as to competency — Duty of party to save exception—

    Where evidence is received subject to objection and the further consideration of the court, its attention should, before the case is closed, be called to it by the party objecting, that the court may rule upon it and his exception noted, before the party may avail hipaself of the exception.

      Notice to R. R. Co. by section boss — What not competent—
    Where it is shown that the section foreman notified the road master as to the dangerous condition of a bridge on his section some considerable time before the bridge gave way, but where the record also shows that it was the duty of the officers to whom the report of the section foreman was to be made, or by whom it must be received, before steps could be taken to rebuild the bridge, to make stated examinations of all' the bridges on the line of the road, in the absence of proof to the contrary the presumption is they did their duty; and where the evidence further shows that after that time the bridges were regularly inspected, and were rebuilt, or partiallj rebuilt, under the direction and supervision of the proper officers of the company, evidence of such notice by the section foreman to the road master would not be competent to show notice to the R. R. Co.

      Degree of care required in construction of R. R. Bridges- -
    A charge that in the construction of a railroad bridge, “the company is not bound to provide against unusual floods, such as have been never known to occur, and which could not have reasonably been foreseen by competence and skill, ” is erroneous. The correct rule is that the railroad company, its agents and servants, in the construction, repair and maintenance of the bridge,are bound to use that degree of care which men of ordinary prudence are accustomed to employ in like business.
    Appeal from the Court of Common Pleas of Ashtabula county.
   Frazier, J.

In the case of Orman F. Ellis v. The New York, Chicago & St. Louis Railroad Company, the plaintiff who was a locomotivo engineer, in the employ of the company, and engaged in running trains upon the road of the defendant, in his amended petition charges, that on the 23rd day of May, 1890, while attempting to pass over a bridge of the defendant, over Coon Creek, (which, we learn, is a short distance east of the Ohio and Pennsylvania state line), “.it broke down, and he and his engine and train were precipitated into the creek, and he was thereby injured.”

He charges that the company was negligent in the construction, repair and maintenance of the bridge, and that the defendant company, its agents and servants, knew, or should have known, (so that in law they were charged with knowledge,) that the bridge was insecure and insufficient and not such as the company was in law bound to erect and main-, tain.

Counsel for the plaintiff in-error, upon the hearing in argument, selected a limited number of the numerous exceptions that were taken during the progress of the trial, and submitted his case upon those propositions. While the nature of the questions submitted, required an examination of the whole record, and we have, made such an examination, we have made it solely with a view of ascertaining what portion. of the record has a bearing upon the questions he has-urged to us, and no for the purpose of discovering other errors not urged m argument. I shall refer probably to most of the propositions which he has urged, and any that I may not refer to,will be because in the judgment of the members constituting the court, they are substantially answered by those to which I shall refer, and because we find nothing wrong, so far as those items are concerned.

In referring to the record, I shall refer to the numbers of he paging. It is not to be understood that what I say, and what we have examined, is confined to the page referred to, but in connection therewith to what appears upon the preceding and succeeding pages, so far as it has any bearing or throws light upon what is upon the page to which I refer.

As I shall have to refer to the pages, it will probably be a little tedious, as I have to turn through this voluminous record§

The first claimed error urged is upon the seventh page of the record. Samuel Work, a witness upon the stand, is asked: “From whom he received his instructions, ” (referring to the replacing of the bents in the bridge). He says: “From the assistant supervisor, I believe you would call it, of bridges, Mr. Oppelt. ” Then this question is asked and exception is entered to it.

“Q. At that time, what was done, if anything, toward making preparations for the middle bents?”

After remarks by counsel and replies by the court, the ■c'itness was permitted to state that at the same time the bents upon the two ends of the structure were repaired or replaced, timbers were framed, or partly framed, for the middle bents; and that-those timbers were upon the ground, and that they remained there at the time of the accident. In this we do not perceive any error to the prejudice of t-he plaintiff in error, t-he company. It was a part of the history of the repairing or replacing of the structure.

On page 140 of the record, Adam Young testified he was a carpenter, bridge builder and so forth. He is put upon the stand by the plaintiff. Without referring to what he says,by way of qualification as an expert,this question is asked him:

“What is the ordinary foundation of a wooden trestle bridge; upon what should such a bridge be erected, if you know?”

(Counsel for defendant object; objection overruled and counsel for defendant except-.)

“A. It is on stone or piling.”' out, and the motion overruled. that in the charge of the court,
This was asked to be ruled It may be well to say here, the judge trying the case defined the duty of the company in the erection of the bridge, to be that of ordinary care, and this inquiry is as to the ordinary construction, and the defendant to that objects. We think the objection is not well taken.

Again, on page 148, is a kindred question. Frank Morrell, a witness, gives substantially the same testimony. That is, that bents are generally placed on stone foundations.

The next claimed error is on page 167 of the record. Dr. C. C. Booth, after describing the injuries to the plaintiff, as he found them, and stating the tests w’hich he had made, is asked this question:

“Q. Now,Doctor, what is your opin on, as to whether this injury is permanent or otherwise, that he has received?”

Counsel for defendant object.

The Court: — He may state whether his present condition is liable to be oermanent.

Counsel for defendant except.

“A. To the best of my knowledge and belief the man is permanently injured.
“Q. Are you able to state whether it is liable to be progressive or not? A. I think it is. I think he is likely to develop other symptoms of a nervous nature—
“Counsel for defendant object to the answer.
’‘The Court — I think you may pass that for the present, and the answer may be excluded.”

We see nothing in these rulings to the prejudice of the plaintiff in error.

The next question to which I refer, is on page 266 of the record. George Steenberg, a witness testifying as an expert or skilled man'is inquired of as follows:

“Q. Tell the jury as near as you can, to what extent these old bents that were removed were decayed?
“Counsel for defendant object, for the reason that they have now proved that these bents were taken out two or three months before, and could not have cut any figure in the accident.
“The Court — Do you propose to prove that the timbers that were taken out were partially decayed, at least?
“Mr. Northway — Yes, sir.
“The Court — And from that you want the.jury to infer that those that were left in were like them?
“Mr. North way — The same kind of timber; yes, sir.
“Mr. Sanford — I will confine my question to the timbers that were cut off and removed from those old bents.
“The Court — As tending to show what the condition of the bridge was when it was repaired, you may inquire of the. witness, subject to objection.”

Mr. Sanford, resuming: “Q. Mr. Steenberg, you may state, if you know, what condition the timbers that were taken from the old bents were in, at or about the time they were taken from the bridge?

“Counsel for defendant object; objection overruled and counsel for defendant except.
“A. Those that I saw were partially decayed.
“Counsel for defendant object to the answer, and ask to have it excluded; overruled, and counsel for defendant except.
■ “Q. To what extent, as near as you can state?
“Counsel for defendant object to the answer and ask to have it excluded; motion overruled, and counsel for defendant except.
“A. So that the corners cf the timber were gone; they were not square; not all of the timbers.
“Counsel for defendant object to the answer and ask to have it excluded; motion overruled, and counsel for defendant except.
“Q. Can you state how far in this rot was? A. No, sir; I cannot. ”

In this we find no prejudicial error.

The next question is found on page 600 of the record. The witness is George Eday, being examined by Mr. Northway, and this commences a class of exceptions which requires a reference to other portions of the record.

It is shown in the testimony that there was a highway bridge, near this railroad bridge, and the testimony shows that the track of the railroad upon the bridge was substantially ten feet higher than the track of the highway upon the highway bridge. The question objected to is:

“Q. What portion of the highway bridge was carried off, if any?
“Counsel for defendant object to it as immaterial.
“Mr. Northway — We want to show that it was not carried off. We have measurements from the engineer that it was of a certain height.
“The Court — I think he may answer.
“Counsel for defendant except.
“A. There was no portion of it.
“Counsel for defendant object to the answer and ask to have it excluded; motion overruled, and counsel for defendant except. ”

On page 607 of the record H. H. Mallory is asked:

Q. What, if any, portion of the bridge was disturbed by the wirtr r? (Referring to the highway bridge.)
“Counsel for defendant object; objection overruled, and counsel for defendant except.
“A. None that I know of.
“Counsel for defendant object to the aLswer and ask to have it excluded; objection overruled.and counsel for defendant except. ”

While here,I will proceed with another question, which is somewhat kindred. Henry Oppelt, whose position in the employ of the company is shown to be assistant supervisor of bridges, was called as a witness, and on page 285 of the record he testified, in substance, that at the time of the rainfall he was at Dunkirk, which is sixty or seventy-five miles from Coon Creek. He, as a witness for the defendant company, is permitted to state in chief what he saw as to the effects of the flood, starting from Dunkirk and coming to Coon Creek. The point to which I desire tc call special attention is to the question: “What wash-out do you know of in that stream the night and morning preceding this accident, nearer to Coon Creek than North East?

“Counsel for defendant object; objection overruled and counsel for defendant except.
“A. At Springfield, about- three miles east of Coon Creek, where our bridge crosses a gulley, there is a dam immediately above us, and that was washed out, and there was more or less washing done in under this bridge.
“Q. That was about three miles east? A. Thatwas about three miles east.
“Q. What-other wash-outs do yon know of in that stream, in the vicinity of Coon Creek? A. There was a great deal of washing and high water at Girard and Elk Creek.”
On page 578, when the defendant rested, the plaintiff recalled Mr Oppelt for further cross-examination, and he was asked
“Q. Are you the witness who spoke of a dam going out east of the Niclde Plate bridge two or three miles, on this night- of the 23rd of May? A Yes, sir.
“Q. Where was it? A. At Springfield.
“Q Whose dam was it?”

He is farther i .quired of, in order to locate the dam and make its location definite.

Beginning on page 634 Jospeh Ellis is called, and he testifies that he lives at Springfield, Erie county, Pa-., and is .inquired of as to what official position, if any, be has held recently. He testifies that he held the office of Road Commissioner.

“Q. How long, and when? A. From 1889 to 1892.
“Q. How Tong have you been acquainted with Coon Creek? A. Ever since I have been acquainted in that locality.
“Q. How many highway bridges, if any', are there within the vicinity of Coon Creek railroad bridge?
“Counsel for defendant object; objection overruled and counsel for defendant except.
“A. There were five on the stream.
“Q. How near to the railroad bridge is the first one south? A. I should judge from fifteen to eighteen rods. •
“Q. Are there any others in that direction, above the railroad? A. Yes, sir; there are two.
“Q. How far is the furthest one you speak of, from the railroad bridge? A. I should think it was over a mile; possibly a mile and a half.
“Counsel for defendant object to all of this.
“The Court — I think you ought to confine your inquiry to the bridge in controversy that they have given testimony upon; anything outside of that may be excluded.”

He is inquired of as bearing upon this question, as follows:

“Q. Were you at the wreck? A. I was there along towards noon of the day of the wreck.
“Q. WTiat damage, if any, was done to the bridge just south of the railroad bridge, by the storm of May 23, 1890?
“Counsel for defendant object; objection overruled and counsel for defendant except.
“A. There was not any.
“Counsel for defendant object to the answer and ask to have it excluded; motion overruled, and counsel for defendant except.
“Q. Are you able to state how high the water came up? A. No, sir: I could not say.
“Q. You say you live in an easterly direction frcm the railroad bridge? A. Yes, I live about two miles and a half or three miles east.
“Q. Who, if any one, owns a mill or mill-dam there in that vicinity? A. J. M. Strong.
“Q. What, if any, effect did this storm you speak of have upon that mill dam on this occasion?
“Counsel for defendant object; objection overruled, and counsel for defendant except.
'“A. It did not have any.
“Counsel for defendant object to the answer and ask to have it excluded; motion overruled, and counsel for defendant except.
“Q. Are there any other mill dams in that vicinity? A. No, sir.
“The Court — I would say that this testimony is incompetent unless the jury find that this was the identical one referred to by Mr. Oppelt, and then it is only competent as bearing upon his testimony. ”

With this explanation as to the mill dam, it being in rebuttal and limited as the court has limited it, we see no error in its admission.

Turning back to page 360 of the record, William Hoffman, who was a locomotive engineer, and in the employ of’the defendant company, called as a witness on behalf of defendant, testified that he had been engaged in that service nearly twelve years, and the testimony shows he was the last engineer who run a train over this bridge, before it went down. He testified in chief as follows:

“Q. I wish to call your attention to the day that Coon Creek bridge went down. You remember that time, do you, now? A. Yes, sir.
“Q. You remember the fact, although you may not remember the precise day? A. Yes, I remember. I was the last man that crossed it, safely.
“Q. At what time did you pass over that bridge on the morning of the 23rd day of May, 1890 A. I should judge it was about 4 o’clock, or maybe a little after; I cannot exactly mind the time, now. It was just the break of day.”

He described his load, and then was asked:

“Q. On the morning of the 23rd, as you passed over that bridge, did you notice the water in the stream somewhat? A. Yes, I did.
“Q. How was it, as io whether the water filled the valley from bank to bank, or not?
“Mr. Northway — Let him describe it.
“Witness — Well, of course I could not tell the depth of it. T should judge it was about six feet.
“Q. How far did it spread out, with reference to the bank of the valley? A. Oh, probably a little over one hundred feet.
“Q. What did you notice, as you went over, as to whether the water was passing over the highway next south of the bridge? A. Well, it was just about going over that little bridge — there at one end of it. At one end I could see the water just dripping over a little.”

He is then inquired of as to the location of the bridge and its distance from the railroad bridge, and op page 366 of the record, on cross-examination, this witness says:

“Q. And the water, you say, was about crossing the bridge on the highway, south of this trestle bridge? A. Yes, there is a little culvert there — what we call the bridge on the highway.
“Q. You noticed the water at that culvert? A. I noticed it running over one end a little.
“Q. Which end of the bridge was it? A. I think it was the west.
“Q. You think it was the-west end of the bridge? A. The west end of the bridge.
“Q. How near to the plank on the bridge was the water? A. Well, I could not tell you — you see I passed there kind c’ quick — I just noticed it, and that was about all. I could nut teH.”

He is then asked if he has noticed the bridge since, and he testified there was a rise in the highway in going from the west onto the bridge. The evidence shows that at the time of the trial here, there had been grav.l placed at the west end of the bridge, or its approaoh, so there was not so much, depression in the highway below the bridge, at the time of the trial, as there was at the time of the accident. This we find to be, substantially, all of the testimony given tending to justify the court below in admitting in rebuttal the testimony that the highway bridge was not washed out. It is unnecessary for me to say what the evidence is,as to the construction af,the highway bridge, its materials and the manner in which it Ss imbedded. It is sufficient to say that,to allow it to be shown that accidents or casualties had or had not occurred to other bridges or structures, would raise the question of care or the want of ordinary care in the erection of such other structures,and thus raise collateral issues tending to mislead the jury. We find in this record no evidence offered upon the part of the defendant company, showing that this bridge was disturbed, and the only use that the testimony that the highway bridge was not washed out could be used for, would be to allow the jury to infer, or counsel to argue, that because the highway bridge was not washed out, the defendant company was negligent in the construction and maintenance of the railroad bridge. In this we think the court below erred.

Turning to the testimony of Frank Moore, on page 56, after being inquired of by plaintiff’s counsel as to his knowledge and observation of the railread bridge, what he had seen and noticed as to the foundation of the center or creek bents, which remained in the structure until the time of the accident, he is asked in chief:

“Q. Can you express that in any other way? A. Yes,'I could. I was putting a piece of tile in for Mr. Mallory at the time, and I had -to get my dinner close by there, and had to go up that embankment where that trestle is, and one day as I went for my dinner a train came along, and I waited until she passed over the bridge, and then I went up and walked on the track home.
“Q. You was standing, then, on the embankment? A. Yes, almost right under it, and I saw the trestle weave. The section foreman was there at work, and I met him, and I says, Mr. Clark—
(Counsel for defendant object.)
“Q. Who was the section foreman? A. His name was Clark.
“Q. Is he there yet, or where is he? A. He is there yet; yes, sir.
“Q. Do yon know whether he had been there some time before the time you speak of, or not? A. Oh, yes; he had been there seven or eight years, I think.
“Q. When was it that you spoke to him, with reference to the time when you went up the bank? ■ A. That very day, sir. I am pretty well acquainted with him.
“Q. What did you say to him about the bridge?
(Counsel for defendant object. )
“The Court — What is your objection?
“Mr. Hall — I claim, your Honor, that it is not at all competent.
“The Court — As tending to show notice to the company?
“Mr. Hall — As tending to show anything.
“The Court — Why not?
“Mr. Hall — For the reason that you might just as well go to Cleveland and tell the gate keeper; just exactly.
“The Court — Who should a party give notice to?
“Mr.Hall — They should give notice to the proper department, to some employe in the proper department. That man had nothing to do with bridges. You might just as well give notice to me, because I work for them.
“The Court — That must depend upon whether or not this foreman had anything to do with the bridges.
“Mr. Northway — We expect to show that this section foreman did have something to do with the bridge. If we do not show that, this may be ruled out.
“The Court — We can only say that unless that does appear, it would be incompetent.
“Judge Sherman — This was a year before any disaster, and we object to it on that ground. We object to it also because of the lapse of time.
“The Court' — Subject to objection and exception he may answer.
“Counsel for defendant except.”

It is probably not improper for me to say here, that in the examination of this record, it is somewhat difficult to tell whether the record means that the evidence may be received and you may take your exception, or whether it is received subject to objection, and to be thereafter considered by the court, in which case it would be the duty of counsel objecting and desiring an exception, to call the attention of the court to the matter, after the evidence is in, in order that the court may make the ruling and the party have his exception noted; but in this instance we do not regard it as important which view is taken of the record — whether the court means the evidence may be admitted and you may have your exception, or whether it is admitted subject to further or future consideration and exception if admitted.

“A. I told him it was a pretty bad bridge. That is what I told him, and it was going to give out some time, and somebody was going down there with a locomotive or passenger cars; that is what I told him.
“(Counsel for defendant object to the answer and ask to have it ruled out; motion overruled,and counsel for defendant except.)
“Q. What did he say in reply, if anything?
“Counsel for defendant object; objection overruled, and counsel for defendant except.
“A. He said he had reported that bridge twice.
“Counsel for defendant object to the answer, and ask to have it excluded.
“The Court — That may be excluded for the present; but it may remain so far as the evidence has been given tending to show that he gave notice to the section boss.
“Mr. Hall — We except to that.”

On page 211 the plaintiff calls Thomas Clark, the section foreman. He is examined by Mr. North way. When Frank Moore was on the stand, counsel for plaintiff said if they did not show the section foreman had something to do with bridges, Moore’s testimony might be ruled out. After showing that he is the section foreman of the Nickel Plate Railroad, and that he will have been thus acting six years on the 18th of next July next after the trial, he is inquired of as follows:

“Q. And what part of the road is embraced in your section?

A. It is located within about a mile of the east line of my section.

“Q. You mean Coon Creek bridge is? A. Yes, sir.
“Q. It is included in your section? A. Yes, it is in my section.
“Q. Prior to the accident, how often did you go ever the road? A. I went over the road sometimes twice a day, and once every day.
“Q. How did you travel over the road? A. I traveled with a hand car, and sometimes I would go on foot.
“Q. How often did you cross Coon Creek bridge, where the accident occurred? A. I could not tell.
“Q. How many times a day, or week, did you cross that bridge, before it went down? 4. I crossed it every day.
“Q- What were your duties, as section boss? A. My duty was to take care of that section, and have everything complete, and see if everything was all right.
“Q. Your duty was then, to see that the trains run safely over the road?- A. Yes, that is my duty.
“Q. If the track got out of surface, what was your duty in regard to that? A. My duty is to put it back where it belonged; where it was right.
“Q. Your duty was to observe the track and keep it in line and safe and sound for trains to run over? A. Yes, sir.
“Q. Suppose defects should occur in the track that you could not repair yourself, what was it your duty to do in regard to that? A. I would go to the'supervisor and report it.
“Q. Who was he? A. Mr. J. Rich was the supervisor.
“Q. What is his title — you are named as section boss; now, what is he named as? A. As Road Supervisor or Road Master — he is over us.
“Q. He is the Read Master? A. Yes, sir.”

Then he is inquired of as to who was the Chief Engineer, and who were the other officers over him, but there is nothing more upon this subject.

On page 271 of the record, Carl Neif was re-called on the part of the plaintiff and examined by Mr. North way. I will begin to read on page 270, although my-reference is to page 271.

“Q. Did you ever have any conversation with Mr. Clark, the section boss, prior to the injury? A. No, sir.-
“Q. Did you ever hear anybody have any with him about it? A. Yes, sir.
“Q. Who was the party? A. Mr. Moore.
“Q. When was it? A. I do not know when it was.
‘‘Q. Was it before the accident? A. Yes, sir.
“Q. What, if anything, did .Mr. Moore say to Mr. Clark about that bridge?
“Counsel for defendant object
■ “The Court — We think the evidence tends to show it was his business and part of his duty to keep watch of it, and report it, if there was anything weak about it — to this other department. That he had nothing tojdo with the fixing of the bridge, but the bridge department went on.and did the repairing. If we are correct in that, we think the evidence is competent.
“Counsel for the defendant except.
“A. I was not with Mr. Moore when he had this conversation.
“Q. You did not hear it? A. No, sir; I did not hear it.”

I refer to this more especially to show what the court said in the hearing of the jury, as to the authority which the section foreman had, and as to his duty under his employment. If the court below meant, as I .have indicated, that his ruling upon the question was final, and that his attention should not again be called to the matter before the party was entitled to his exception, then the defendant below had the question properly saved at that point in the record. Or if it was received subject to the objection • and the further consideration of the court, its attention sh mid, before the cas9 is closed, be called to it by the party objecting, that the court may rule upon it and his exception noted, before the party may avail himself of the exception.

The attention of the court should thus again be called to the question at the close of the plaintiff’s testimony, and a ruling made by the court and an exception then noted. Taking the testimony, as it appears in the record, as to-the duties and qualification of the section foreman, it does not require an educated or skilled engineer. The duties which he has to perform are those which can be performed by any laborer of common or ordinary intelligence. He is not supposed to have the education or judgment to pass upon the construction or sufficiency of a bridge; but assuming as we do, in disposing of this question (without so deciding), that notice to the section foreman was notice to the company, and that it .was his duty to communicate it, what communication would he make to his superior officer? What would he tell him? Frank Moore testified: “I told him it was a pretty bad bridge; that is what I told him, and it was going to give out some time, and somebody was going down therewith a locomotive or passenger cars; that is what I told him.”

The record shows it was the duty of the officers to whom the report of the section foreman would be made, or by whom it must be received, before steps could be taken to rebuild, to make stated examinations of all the bridges on the line of the read, and in the absence of proof the presumption is, they did their duty; but we are not left to the presumption alone, for the evidence shows that after that time the bridges were regularly inspected,and were rebuilt, or partially rebuilt, under the direction and supervision of the proper officers of the company. We think, in the admission, of this evidence, and in the refusal of the court to rule it out, there was error to the prejudice of the defendant below.

Coming to the charge of the court, and remembering that the charge of negligence in the petition is that the defendant knew, or might, with reasonable diligence, have known that the bridge was deficient in its structure and maintenance, and was unsafe, what was the duty of the company in regard to its construction and maintenance? The court charged that the care required of the defendant company was that of ordinary care, which, we hold, is the true rule; and I may say, taking the charge as a whole, it exhibits, as a rule, extraordinary carefulness, and shows that the court has carefully considered and guarded most of the propositions. We find no fault with the charge, and have no criticism to make, except in one particular; and first, what is the law, and against what character and kind of flood must the company guard?

The case of the Pittsburgh, Fort Wayne and Chicago Railway Company and The Pennsylvania Railroad Company v. Loomis Brigham, 29 Ohio St.,374, was a case involving the liability of the railway company to a person whe bad gone to the station for the purpose of becoming a passenger, for an injury arising from what was claimed to be a defect in the construction of the railroad station into which.passengers were invited to come and wait until they should go on board the train. The syllabus reads:

“A railroad company is not liable for injuries occasioned by its buildings or structures being blown down by storms, where it has used that care and skill in their structure and maintenance which men of ordinary prudence and skill usually empley; and it is error in such cases to charge the jury that the company is bound to guard against all storms which can reasonably be anticipated.”

The opinion is short, and I may be pardoned for reading it in this connection:

Welch, C. J: “In the first paragraph of the court’s instruction we think the law of .the case is correctly stated. If the defendants, in the construction and maintenance of the building, used that degree of care which men of ordinary-prudence are accustomed to employ in like business, they are not liable. Had the court stopped with this proposition, there clearly would have been no error in the charge; but the court went further, and told the jury that the defendants were bound to provide against all storms which could reasonably have been anticipated, and by plain implication told them that the defendants were bound to provide against all storms that were not unprecedented, or that were of a kind that had ever happened within the range of human experience. Taken by itself, this latter part of the charge is clearly erroneous and in conflict with the rule as first, and, as we think, correctly laid down by the court. The whole charge, taken together, to say the least, was calculated to mislead the jury. Two rules, apparently in conflict with each other, were laid down for their guidance, and it is impossible to know which they followed. The general custom of prudent persons in such cases, and not the absolute requirements of the occasion, is the true standard by which the defendants should be tried. They were only bound to come up to the fair average of careful and prudent men.”

On page twenty-one of the charge, page 664 of the record, after stating that the defendant’s claim, is that the accident was not occasioned by the negligence of the defendant, its servants or agents, the court charges as follows:

“But the defendant claims that the real cause of the wreck and the injury 'tc the plaintiff, was by a sudden and extraordinary rise of water, of which the defendant, its servants and agents had no notice and which they could not have reasonably anticipated. That the bridge was constructed and maintained in such a way and in such a manner, that the wreck would not have occurred, and that the plaintiff would not have been injured, had it not been for such an extraordinary flood and rise of the water in Coon Creek that the defendant, in the exercise of ordinary care and caution, could not and did not anticipate that it would ever occur.
“As a matter of law, we say to you, that, a railroad company is bound to bring to the construction of its ways and works, the knowledge and skill of engineering generally known and applied in such business, and to provide against such casualties as a cautious, prudent man possessing the same knowledge and skill, would or should foresee or anticipate, and in the location and erection of its bridges and trestles regard should be had to the size and nature of the stream; the character and features of the adjacent country; the relative position and formation of the abutting land: its liability to overflow, with the probable extent and effect thereof. They should be so constructed as not to be subject to the risks and perils arising from rainfall, known by experience to be incident to that section of country, though rarely occurring, or which competent,skilled engineers should reasonably anticipate.

L. S. Sherman and Theodore Hall, for Plaintiff in Error.

Northioay & Williams, for Defendant in Error.

“But the company is not bound to provide against unusual floods, such as have been never known to occur, and which could not have reasonably been foreseen by competence and skill.”

We think the correct rule is that if the defendant, its agents and servants, in the construction, repair and maintenance of the bridge used that degree of care which men of ordinary prudence are accustomed to employ in like business, the company is not liable.

And in saying to the jury: “ The company is not bound to provide against unusual or extraordinary floods such as have never been known to occur, and which cannot have reasonably been foreseen by competence and skill,” the learned judge below placed the degree of care required of the company too high.

The jury would understand, the only sort of flood or rise of water the company was not bound to provide against is an unprecedented one, “such as have never been known to occur, ” and that against all others the company is bound to provide: That if such a storm was ever known, however rarely occurring, the company would be liable.

Therefore, for permitting the plaintiff to prove, and refusing to rule out the statement made by Frank Moore to Thomas Clark, the section foreman, and in allowing the plaintiff below to prove, and in the refusal to rule out the evidence that the bridge over the highway was not washed out, or disturbed by the flood, and in what the court said in regard to the kind of a flood the companv was not bound to anticipate or guard against, this case is reversed and remanded to the court of common pleas for a new trial.