author: HaYNKS, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    October Term, 1897.)
    Before King, Haynes and Parker, JJ.
    THE MICHIGAN CENTRAL RAILROAD COMPANY v. MARY SHEA, Adm’x., etc.

      Rules of R. R. Co. —Violation of, as cause of injury to employe—

    The non-observance of one,of the rules of a railroad company will not of itself render the company liable for injury to one of its brakemen unless it is shown that the dispensing with such rule of the company was the proximate cause of the injury.
    (Affirmed by Supreme Court without report, 39 Bulletin, 173: 58 Ohio St., 689.)
   HaYNKS, J.

A petition in error has been filed by the Michigan Central Railroad Co. in this case for the purpose of reversing the judgment of the court of common pleas, rendered in favor of Mary Shea, administratrix of the estate of William Shea, deceased, against the defendant in the court of common pleas. Mary Shea, as administratrix, brought suit in the court of common pleas against the Michigan Central Railway Co. and the Wheeling & Lake Erie Railway Co., for alleged negligence that had caused the death of William Shea, who was a brakeman upon the train of the Wheeling & Lake Erie Railway, upon a line of railroad . within the limits of tbe city, either upon the approaches to or upon the road itself, of a line known as the Belt Railway Co. The issues were joined in the .case, and it proceeded to trial in the court below, and at the conclusion of the testimony the court directed a dismissal of the case as to the Wheeling & Lake Erie Railway Co., and the case then proceeded against the Michigan Central Railway Co. to final judgment, and it is only with the evidence as bearing upon the Michigan Central Railway Co. and the judgment against it that we have to do in this case. A motion for a new trial was filed, and the same was overruled. The principal grounds urged for a new trial were that the verdict was not sustained by sufficient evidence, and was contrary to law. These are the sole questions that are submitted for our consideration by the railway company upon its argument here.

The point where this injury took place is where a spur, or curve rather,- of the railway company connects, as I understand, the main line of the Wheeling & Lake Erie with the Michigan Central Belt Line. Shea was a brakeman upon a train of sixteen cars which was being backed by the Wheeling & Lake Erie Railway Co. from its main'line around onto the Belt. The train was a Wheeling & Lake Erie train, and the men upon it were all employes of the Wheeling & Lake Erie Co, The train was backing at a rate of about — -the witnesses vary — from five or six miles an hour to twenty miles an hour. The grade was slightly an up grade. The train had crossed Mud creek bayou, and was approaching what is known as Manhattan crossing, which is the road leading to the old town of Manhattan, at or near the banks of Ten Mile creek. The Michigan Central Railroad Co, had some men employed in putting in some interlocking switches in the Belt Line road, and in putting in those switches thej had loosened one of the rails of the track, and perhaps they had taken it out, and had replaced it and had partly fastened it. Some cars had passed over it, but it was not fully fastened in place, when the person in charge of it saw this, train coming, some hundreds of feet away, and directed one of his employes, who was some two hundred feet from him, to go down and give notice to the coming cars of the danger. This man started off on a- trot, as he calls it, and proceeded down to a point near the Manhattan crossing, and when he was quite near the train be then gave a signal, which was responded to by Shea, his position as brakeman being upon the rear end of the train — being in advance as the train was backing up. Shea, in the presence of this witness, repeated that signal, and as he repeated it, seized hold of the brake wheel and gave it a turn, or a partial turn, and as he did so went off of the car and underneath it, and was run over by soma of the cars before they were stopped. The allegations in the amended petition in regard to the acts of negligence were, generally, two — une, that the company had not sent back any Sag, or notice, or placed any flag or notice along the side of the track to give notice to those cars coming that there was a rail taken up; secondly, that it was the duty of the engineer on that train, and of the conductor, to stop their train two hundred or eight hundred feet from the railroad crossing; that the conductor and engineer omitted to do that, and that as the result of that the train was stopped suddenly, and the decedent was thrown off. The only allegation we can see against the Michigan. Centra] Railway Co. is that that it did not send back or cause to be placed some sort of a flag a sufficient distance from the point where this rail was taken up, to notify the coming train, so that upon seeing that, they would have plenty of time to stop their train slowly, so as to protect the lives of the persons who were upon the train,

Upon the trial of the case the plaintiff first called as a witness Henry Hackman, of whom I have spoken. Hack-man, as I have said, was in the employ of the Michigan Central Railway Co., and was standing with his foreman a distance as he states of perhaps a couple hundred feet towards the point from which the train was coming. He was directed to proceed down, and he did so, as near as he could make the distance, some three hundred or four hundred feet, making a distance of five hundred or six hundred feet from the point where the rail was taken out, and met the train backing up. He said he stood about a car length from the train and gave a signal which he called a slow signal, by raising his arm up and down, and that was repeated by the brakeman, as I have already said, and the brakeman then took hold of the brake, and upon turning it partially he went off of the train. This man says he perceived no jar, heard no jar — no running together of the cars — ^at that time, but it looked to him as if the brakeman simply lost his hold and fell off. but how, of course, is merely a matter of opinion. The engineer was also put upon the stand, and testified. He testifies that when he first received a signal to slow down the train, he received it from this brakeman Shea, Shea being in a position on the train where the engineer could see him. They were on a slight curve, and the point along which he would look would be on the side of the curve, from which he was enabled to see Shea. The signal that Shea gave him was what he calls a slow signal, and thereupon he commenced to slow the train. Soon thereafter the conductor, who was on top of the train, perhaps two cars away from the locomotive, according to the testimony of the engineer and fireman and of the conductor himself, gave a signal for a sudden stop, and thereupon the engineer put on his brakes and shut off steam, an.d threw sand on the track, and took steps to bring this train to a sudden stop, and it was brought to a stop, The conductor says at the time he gave this signal to stop suddenly that he received a like signal from the brakeman Shea, and that he repeated the signal which t'he brakeman Shea had given to him. That testimony is not varied by the testimony of any witness that I have discovered, who testified. That seems to have been substantially the condition of affairs, that so far as the engineer on that train was concerned he received two signals — one to stop slow, and he commenced to do it, and then another signal to stop suddenly, The one he received from Shea himself, the other he received from the conductor. There is no testimony to show that the person who had been sent back to give the signal — this man Hackman — gave what is denominated a hard signal. It was argued that the signal that he gave must have been the signal that was given by Shea. I am reminded, and perhaps it might as well come in here, that while these two signals, as I have said, were given before Shea fell off, as testified by Hackman, that Hackman testifies that'after Shea fell, finding-he was under the train and it was necessary to protect him — to endeavor to protect him —he started up upon the banks adjoining the cars, and then give a signal to stop, a hard signal.. That signal waB made to the conductor, and was repeated.

A rule of the Michigan Central Railway Co. was offered, which provides that when taking any rail out of the track on the line of the road certain notices shall be given, and if they are taken out of the track in any other portion of the road, a flag shall be sent back a distance of twenty-five telegraph poles, The court very properly charged the jury that the dispensing with this rule of the company, unless it was the proximate cause of the injury, would not of itself make the company liable. It was a matter of fact to be considered by the jury as to whether the railroad company was guilty of negligence or not. It has been argued here that they should have sent back and placed that flag, and because they did not do it they should be held liable; or that the jury were authorized to find that there was a liability on the part of the company, and that it had been guilty of negligence. It seems to us that the situation of affairs, as far as the railroad company is concerned, is this: they were fixing this interlocking switch. It is claimed that the rule didn’t apply to the Belt line, but whether it did or not, they were fixing this interlocking switch, and incidentally took out a rail. They didn’t send any flag back, because.they were to have it out but a short time, and were keeping a lookout for any cars or trains approaching. In that lookout they saw this train approaching at a sufficient distance to give it all the notice that was required, and all the notice that was needed, to enable the train to come to a stop, even assuming that they were not obliged to stop before reaching the crossing. They had all the time that was necessary for the train to come to a halt at a slow rate of speed. And they sent Hackman back who gave a notice to the brakeman, and that notice was a slow stop notice. We think there was no evidence before the jury that there was any negligence on the part of the railroad company directly contributing to the death of this decedent. We are utterly unable to see from a very careful examination of the testimony of these various witnesses, upon what ground the jury could have proceeded to render a verdict against the defendant railway company; and for the reason that the verdict is not sustained by sufficient evidence, the judgment will be reversed, and the case remanded for a new trial.

MR. Scribner:

If I understand from your decision, if we had proved it waa a hard signal, we would have made a case — that is, if there was such proof that would satisfy the jury that the signal was hard, and this train stopped suddenly?

Judge Haynes:

I don’t know that I have discussed that in that form. Of course it might be a stronger case before the jury.

Ms. SCRIBNER:

That would throw the whole burden on the company, giving .the hard signal?

Judge Haynes:

We won’t say that, Mr. Scribner.


source: Caselaw Access Project

author: Haynes, J.

license: Public Domain

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Jan. Term, 1892.)
    Before Bentley, Haynes and Scribner, JJ.
    JENNIE S. PAIGE et al. v. WILLIAM CHERRY.

      State canals — Manhattan branch given to Toledo — Title to lands—

    While the act of the legislature of 1868 gave to the city of Toledo an easement in that part of the Miami canal known as the Manhattan Branch, for street, water and sewerage purposes, it was the act of 1871 which gave to the city the full title,not only in the bed of that part of the canal, but also in all the . land held by the state for canal purposes within the limits of the Manhattan branch of the canal, and the city had thereupon the power to give a full and complete title to part of such lands to a purchaser thereof. And an action in ejectment, brought within twenty-one years from the passage of the act of 1871, by a purchaser from the city of Toledo of part of such land, against one bolding adverse possession thereof, but brought after the lapse of twenty-one years after the passage of the act of 1868, is not barred by the statute of limitations.
    (Affirmed by supreme court, without report, 83 Bulletin, 61.)
    Error to the Court of Common Pleas cf Lucas county.
   Haynes, J.

In this case a petition in error is filed for the purpose of reversing the judgment cf the court of common pleas in a case wherein William Cherry was plaintiff and Jennie S. Paige and others were defendants.

The action below was an action in ejectment. The premises in controversy, are situated in the city of Toledo, within the limits of the lands formerly occupied by the state of Ohio for the Miami and Erie Canal.

The case was tried to the court, by consent of the-.parties, and without the intervention of a jury. A finding waff made and conclusions of law stated, and upon that finding ■> of facte and the conclusions of law a judgment was rendered for the plaintiff in the court below.

The main controversy that has been argued and submitted tc us is,as to the statute of limitations' — whether the case made by the plaintiff is barred by the statute of limitations.

The finding of facts, in brief, states: That the lands were a part of the original tract No. 1, etc., and that the lands described in the plaintiff’s petition embrace the lands-of what is known as the Manhattan branch ot the Miami & Erie canal, the same as formerly occupied by the city of Toledo. That in 1886 the beard of public works, uud-er and by virtue of certain statutes then in force,appropriated this-land for the use of that canal, and that afterwards, to-wit, February 20, 1868, the state of Ohio granted to the city of Toledo authority and permission to enter upon, improve- and occupy as a public highway and for th« use of water pipes and sewerage pipes forever, all that part of the Miami & Erie canal known as the Manhattan branch.

They further find that up to June 29, 1869, the state still continued to use the canal for the purpose- of carrying water through it, and also for the purpose, to some extent, cf allowing boats to pass up and down the line of the canal.

Afterwards, on the second of March, 1871, the state, by a quit-claim deed of said date, executed in due form, granted, quit-claimed and conveyed to the city of Toledo the said land involved in this action, said deed being in terms and executed in conformity to the act of the general assembly passed on January 81, 1871. That afterwards, on January 28, 1888, the city of Toledo, by a deed of said date, made in pursuance of the authority of the common council of said city of Toledo, conveyed a portion of these lands to the plaintiff, being the lauds in controversy; that is to say, to William Cherry. That in the year 1857, Joseph Paige, an ancestor of the defendants, erected on a portion of this property a double dwelling house, and also inclosed by a fence a portion of the land, and a certain other portion he used in connection with the land as a right of way. And the court finds as a matter of fact that from that date forward said Joseph Paige and those claiming under him have been in open,notorious,continued,adverse and exclusive possession of a certain portion of the lands in question — eleven and a half feet cf the premises involved in this action. And the court, from these facts, found as a conclusion of law, that the statute of limitations did not ccmmence to run until the title vested in tbe city by virtue of the act of 1871 and that therefore, this action is not barred by the statute of limitations, and therefore found in favor of the defendant below.

It will be seen that under the act and deed of 1868, more than twenty-one years have elapsed since the date of that deed up to the time of the commencement of this suit, for this suit was commenced on September 15, 1889; that from the date of the deed of the city of Toledo, under the act of 1871, the twenty-one years have not elapsed, and the contention here, on the part of the plaintiff in error is, that the city of Toledo had the right to commence the action, under the deed made to it by the state in 1868' — 'had the right tc commence the action in 1868, and that inasmuch as it failed to commence the action during the time it held the title, and that the plaintiff failed to commence it within the twenty-one years, therefore the action is barred.

The contention on the part of the defendant in error is, that he has a right to claim under the deed of 1871, and that he would not be barred until some time after the commencement of this action.

The acts under which the parties claim are: the acts of March 26, 1864, Session Laws of 1864, page 57, and the act of January 81, 1871, Session Laws of 1871, page 17.

It is admitted by both parties that the statute of limitations would not commence to run against the state of Ohio so long as it possessed the legal title and the right of possession. And it is claimed, first, by the plaintiff in error, that the act of March 26,1864, and the grant from the state of Ohio to the city of Toledo in February, 1868, in pursuance thereof, was in effect a-complete dedication of the land in question for street purposes and forever vested whatever title the state then held in the city.

We are not able to agree with counsel in the conclusion stated in this proposition. We suppose the law to be that, .under the statute of 1864, and the deed made in pursuance of it in 1868, the city was simply vested with what may be termed an easement — the right to use the canal for the purposes of a higwhay and for the purpose of conducting water and gas-pipes through the city, and that all other rights in respect; to the land remained in tne state of Ohio as owner thereof. The law upon that subject is stated by the Supreme Court fully in Platt v. Pennsylvania Co., 43 Ohio St., 228, 244, and is in line with the law as stated by the courts cf other states, as appears by the cases cited cn behalf cf the defendant in error.

' It is claimed also by the plaintiff in error, that the city of Toledo, upon receipt of the deed from the state, had the right to commence an action for the puprose of ejecting these parties; that the right of action in its behalf accrued at that time.

This is denied on the part of the defendant in error. The defendant in error claims,first: that the state remained in possession of the property for some time, using it, as has already been stated in the finding of facts, for the purpose of conveying water to certain mills at the end of the canal, and also for the purpose of permitting parties to pass over it with boats, which was done, to some extent, for the ordinary purposes of navigation. The defendant in error further claims that no action in ejectment will lie for recovery simply upon an easement, the proposition being that the city could not havemaintained an action in ejectment prior to the grant of 1871, because it had only an easement.

We are unable to agree with counsel for defendant-in error upon this point. The case of Lessee of Incorporated Village of Fulton v. Mehrenfeld, 8 Ohio St., 440, we think settles, so far as the state of Ohio is concerned, the law of the case upon that point; and in that case it was practically held that where a village had received by dedication at common law, certain property for street purposes, that the village had a right to maintain an action in ejectment for the purpose of evicting those who were wrongfully upon the land. So that we agree with the plainiffs — that the city had the right to commence an action in 1868 upon the receipt of that deed. But while the city had the right to commence that action, it could only commence it for the right of possession for the purposes of a street. There still remained in the state of Ohio an ownership in the land, the title of the land, for all purposes except for the purpose for which it had granted an easement to the city of Toledo, and we have no doubt that the state of Ohio had the right, after the conveyance of 1868, tc commence an action of ejectment for the purpose of adjudicating the title to the land, or ascertaining its title tc the land, as against the parties defendant who were in possession of this portion of the land, and that conclusion is sustained by a large line of authorities. That right continued in the state of Ohio down to the date of the deed which was made under the act of 1871, and that right was transferred by virtue of the deed cf 1871, to the city of Toledo; from that time forth, the city of Toledo stood in the shoes of the stat,e of Ohio, and was possessed of its rights in regard to the legal title to the land, and would have the same right tc commence a suit to evict these defendants and to settle the question of title to the land that the state before would have had; and the particular trouble in the matter in regard to that point — or the question that has engaged our attention, is, whether or not, if recovered at that time, it would be recovered subject to the right of the city, or of the public— if you please — to have this portion of the canal used for the purposes of a street, and whether if the statute of limitations had run as against the city in regard to the possession of the property, that right which is obtained by virtue of the statute, having ^un for a period cf twenty-one years, would inure to the benefit of these defendants, and whether under that they could commence suit against the city and bar the city as to possession although they might have a finding in favor cf their title; and we are satisfied, upon final and full examination of the case, that, so far as the use. of that property is concerned, for street purposes, that that easement which the city bad acquired by the first deed was merged in the full title which it had acquired by virtue of the second deed, and that when it acquired the second deed it had full and complete-title in fee of the premises, without any obligation imposed upen it so far as the public was concerned, and so far as these parties were concerned, to continue to use that canal for the purposes cf a street or highway.

. We think these questions are settled by Malone v. Toledo, which has been to the Supreme CouH twice, and was decided first in 28 Ohio St., 648, and again in 84 Ohio St., 541. The Malone case involved the right to some property adjoining this property, and this property is situated or abuts upon a part of lot 808 , which is in the Port Lawrence division of the city of Toledo. Malone owned lot 809, and by virtue of his ownership of that lot, claimed to own the canal, and, as may be remembered by many persons, he built upon it a carpenter shop and had possession of it under advice of counsel,and then brought an action in the court of common pleas, to quiet his title. A demurrer being interposed and answer being filed, the case went to the Supreme Court,and the court passed upon if and it came back to the court of common pleas, and there Judge Pugsley was made a party, he having purchased from the city the property in question. The case Went back to the Supreme Court, and the question that was in controversy was: Whether the title of Mr. Malone, on account of his title to lot 807, extended into this canal, the same as if he were a riparian owner of property,cr whether the city had the full and complete title,and had the right to convey that full and complete title to Judge Pugsley; and the decision of the court was thar the city, by virtue of the act3 of 1868 and 1871, had a full and complete title to the land, and the appeal of Malone was dismissed. Sc that they, in fact,decided that the city owned the property by a full and clear title, and had a right to make a conveyance of it to any person or party who ohose to purchase from it. Following that decision, the plaintiff, William Cherry, has made a purchase cf that property, and has received from the city a deed of it. But that settles,we think,this: that there was nc obligation cn the part of the city of Toledo to use this canal for a public highway; that they had a right to sell it for any purpose and for all purposes; that their title was a full and complete title, and that whatever rights — practically—they had received by the deed of 1868, were merged in the more complete title which they received by the deed of 1871.

If we are correct in that conclusion, it follows, we think, without any question, that when plaintiff brings an action of ejectment under the act of 1871, he brings it for a full and complete title and without any bar that might have accrued to these parties prior to the commencement of this suit by virtue of the right to commence a suit against the defendant under the deed of 1868 making a title which would prevail against the title made by virtue of the act of 1871,and that, when a judgment is rendered under the act cf 1871. conferring title as held by virtue of the act of 1871, that it is a full title, and will prevail as against the rights of these defendants.

We think, therefore, .that the court did not err in holding that the statute of limitations would not avail as against the title of the plaintiffs in this case on the finding of facts.

The plaintiff also raises another question, and that is: In regard to the quantity of land that was taken by the city under the last conveyance. The last statute, authorizing the state to convey, says “whatever interest remains to the state in the bed cf the canal, is hereby relinquished and transferred to the city of Toledo.” Now, under the first act —briefly, without stating the language verbatim — the state conveyed so much of the Miami and Brie canal as is known as the Manhattan branch, being that portion of land lying between the Swan creek and the outlet or mouth of the canal where it joins the Maumee river. There is no question but what that is a full and complete grant to use all of the land held by the state for canal purposes in the canal limits, for the purposes of a highwajT; and the act of 1871, reciting the practical abandonment of the canal, undertakes to convey to the city of Toledo whatever remains in the “state”,in the bed of the canal, to the city; and by the term bed, it is claimed that they only received so much as lies between highwater mark occupied by the water of the canal between the banks of the canal. This property, it may be remarked, is situated practioally on the old berm bank of the canal. But that question, we think,is concluded by the decision of the Supreme Court in the case to which I have referred, because the question is made there by the pleadings — whether it was argued or not,I do not know. But the law in that case bounds the law in this case, and the property in that case abutted and bounded upon the property in this case, and has the same situation, and the decision of the court in that case is, that the city takes the whole title to the whole can* al, from Swan creek to the river, and makes no suggestion of any limitation. And it would seem also, from a fair construction of the two statutes together, that it must be so; that when' the statute speaks of the bed of the canal, it speaks of that part of the lands of the state which were occupied for canal purposes — for upholding and maintaining the canal —the banks as well as the bottom of the,canal; that the term as used denominating the “bed of the canal”, means the lands used for the support and maintenance of the canal, the towpath, berm bank, and waters of the canal.

The case is an interesting one, and has occupied our attention for a considerable time; but after a full and careful survey of the authorities cited in the case and the situation of the parties under the decision of the Supreme Court, we • are satisfied that the court below did not err in the holding which it made upon the case, and the judgment of tbe court of common pleas will therefore be affirmed.


author: HayNEs, J.

text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    Jan. Term, 1892.)
    Before Haynes, Bentley and Scribner, JJ.
    THE CITY OF TOLEDO v. WILHELMINA CLOPECK.

      Injury from defect in sidewalk — What charges not improper—
    (1.) Plaintiff being permanently injured by a fall caused by a defect in a sidewalk, the court charged the jury that “These injuries^ alone of health, things of that kind, can not be compensated in money fully, but that is the only compensation the law can give to a person if injured by the fault of another.” And again : “Money can not compensate for the loss of health; perhaps can not compensate for pain and things of that kind, but as far as is reasonable and proper the jury may go in compensating for those things as far as money will,” etc., as more fully stated in the opinion. Held, Not error.

      Verdict for $1000 not excessive—

    (2.) A verdict against the city for $1000 under the facts of the case not held excessive.
    . Error to the Court of Common Pleas of Lucas county.
   HayNEs, J.

This case is briefly this: The plaintiff below, Wilhelmina Clopeck, was passing along on Locust street, near the corner of Everett, in the city of Toledo, in company with two other persons, and while so passing along, having an infant in her arms, and being immediately behind the other persons, one of them stepped upon a plank in the .sidewalk which was louse, throwing up the plank, and it caught her and threw her to the ground, and she was very seriously injured.

There is not much question made before us but what the verdict was properly found in favor of the plaintiff. The great objection is, that the damages are excessive. There is also some slight objection to the charge of the court.’

The truth with regard to the sidewalk was that according to the evidence it had for a considerable distance been in a very unsafe condition; the stringers had become very much decayed, and what little nailing there was in the sidewalk had come out, and it was in a very loose and rickety condition. The court was asked to charge certain matters with regard to that, and the court did charge concerning it, and the charge in that regard, it seems to us, was very favorable to the citv.

The contentiou with regard to the injury is that the woman received injuries, either by the effects of the plank that struck her when she fell, wrenching her shoulder, and she is suffering from a torn ligament in the region of the womb — perhaps in the womb itself. She certainly shows by the testimony of other witnesses than herself that she has suffered from the effects of the fall, and that she is permanently and seriously injured. The jury returned a verdict of $1,000. This is said to be very high,' and very unjust, and one of the largest returned against the city — the largest one being to a bey who lost both legs. After reading the testimony we are very well satisfied to permit the verdict to remain as it is, and not disturb it. We are inclined to think, if there is any fault at all, it is too small rather' than too large, taking the condition of the woman as it appears from ■the record here.

The complaint with regard to the charge is that it does not properly state the rule of damages, and that it leaves the matter too loose and indefinite for the jury to pass upon ; that the oourt refused to give certain charges that were requested. The charges that were requested are not in the record; probably some oversight about the matter. We hive examined the record and the charge, and we find no request to charge except those that are incorporated in the charge itself, which were given by the court at the defendant’s request. The part objected to more particularly is this:

“If you find that the plaintiff has a right tc recover cn the ground I have already laid out to you, if you find that the plaintiff has a right to a verdict against the city for this injury, then consider the amount. She has a right to recover; of course, you understand these injuries alone of health, things of that kind, cannot be compensated in money fully, but that is the only compensation the law can give for a person if injured by the fault of another.”

They objeot to the court stating that the injuries cannot be compensated by money fully. The oourt then proceeded to state—

“The injured person has a right to require the person causing the injury wrongfully to make compensation for the injury, and this compensation, as I have already said .to you, in law can only be a money compensation. As has been said, it cannot compensate for the loss of health, perhaps cannot compensate for pain and things of that kind, but as far as is reasonable and proper the jury may go in compensating for those things a* far as money will. It would not be proper for you to say and consider and go upon this principle that no money can compensate, and therefore we are safe in giving everything that is asked. Look at it fairly and reasonably, and say what in good conscience, justice and right ought to be given under all the circumstances. She can recover for the hurt, for the paan she has suffered, the loss of her health since the injury up to this time, and recover compensation such as you,think proper for a weakness, sickness, bodily infirmity and loss of health, that she is suffering from now or may hereafter suffer from or still suffers from on account of this injury.”

Quite a number of authorities have been cited. We have examined them with regard to the statements made by courts with reference to verdicts that have been supposed to have been too laige, and have been found to have been too large. 'It seems to us that this charge is not open to the objection suggested by counsel for the city. He states what is well known, that money can not compensate for a loss of health. That is a general preposition,of course,that can not be overlooked; but he has charged them to pursue a conservative ■course — to deal justly and rightly between the parties.

O. F. Watts, City Solicitor, and W. H. A. Read, for the city.

Andrew Farquharson, for Mrs. Olopeck.

He has charged them that that statement does not allow them to give whatever is asked, or whatever is claimed. He confines it, we think, within proper limits. The charge, of •course, might'have been mere full, and might have stated it in different form, but the substance of the charge was fair ■enough tc the city. We think the jury were not misled by ■any charge cf the court into any extreme measures with regard tc the amount they should give the plaintiff, and the finding, as we have already stated, is moderate enough.

We shall therefore affirm the verdict and judgment of the court, but without penalty.

.The judgment in this case was affirmed by the supreme court, without report, 52 Ohio St., o42. Minshall and Burket, JJ., dissented.)


text:
    (Sixth Circuit—Lucas Co., O., Circuit Court
    1895.)
    Before Bentley, Haynes and Scribner, JJ.
    THE CITY OF TOLEDO v. LEGRENA LEWIS.

      Property damaged by water set bads by city’s action — Recovery—
    •(1). Where the property of plaintiff was injured by the city filling up street and raising catch basins of sewers already paid for by the property owners, whereby the drainage of her lot was destroyed, and the water sot back on her lot, making the same unwholesome and untenantable, she is entitled to damages.

      Same — Measure of damages — Injury to health—

    (2). The measure of damages to which she is entitled in such case, would be the difference in the value in the use of the property before and after the acts of the city, during the four years prior to the commencement of the action, as also damages for the injury to plaintiff’s health during these four years.

      Same — Continuing nuisance — Limitation of action—

    <3). In such case the injury to plaintiff’s property is a continuing nuisance upon which suit may be brought from time to time, and in which the plaintiff can recover damages for the injury suffered up to the time of commencement of the action, and in which the defendant might plead the statute of limitations as to injuries suffered more than four years prior to the commencement of the suit.

      Same — Duty to do all to lessen damages—
    (4). An owner of property is entitled to damages for injuries re- • suiting to the use of her property by reason of the turning of water upon the property by embankments erected by the city, which otherwise would flow off, and from which injuries accrue to her in the use of the property, and if she suffered in . her health from the accumulations of foul water upon her lands caused by these ácts of the city, she would be entitled to recover therefor; also,while plaintiff would have a cause of action for the water thus turned in upon her, still the well established rule of law is that she should use reasonable care to protect herself, to lessen if possible the damages which sue was liable to suffer by the continuation of these causes of action, and it is a question to be submitted to the jury, whether there was any known or reasonable way under her power and control whereby plaintiff could have lessened that injury.
    Error to the Court of Common Pleas of Lucas county.
   Haynes, J.

This is a matter that has occupied a good deal of our attention, for the reason that it raises, some questions that are new even in this court, under municipal law, some that are important and have required considerable attention.

This action is brought to reverse the judgment of the court of common pleas in a case brought by Mrs. Lewis against the City of Toledo for alleged injuries received by her in person and property, that is to say — her health and th« use of her property — by reason of the filling of Huron street at the junction of Oak street and Superior street, and the petition is based upon the claim that by the filling of those streets and the raising cf the catch basins at the corner, that the water which would otherwise have flown off through the catch basins already furnished at that time, and for which she and other citizens in common had paid, was, by this filling, set back upon the lot of the plaintiff and caused the property to become damp, wet and unwholesome and therefore she lost the us^ of her property, and thereby was injured also in her bodily health, and she claimed damages and recovered a verdict for two thousand dollars in the court below.

There was testimony to show that Oak street between Huron street and Superior'street had been filled in, to some extent, by unauthorized persons, and that the effect of that fillling had been also to throw the water upon her lot; hut that fact was not set up in the petition as a cause of injury to her .lot, but that testimony also was allowed by the court to play some part as a cause of damage upen the trial of the case.

The first question that was raised before us' on examination of the case is as to the character of that injury, what it is, and whether it is a continuing nuisance or whether it is of that class of injuries for which suit can be hrought and a single judgment rendered, and which judgment, when rendered, would be conclusive of the whole question of damages as between the parties to the suit; and, after a very full consideration of the cases that bear upon this question — and a good many authorities have been examined — we are of the opinion that the injury complained of, is a continuing nuisance; that is, one upon which suit may be brought from time to time,and one in which the party who brings the suit recovers up to the time of the commencement of the action. It is one also in which the party might plead the statute of limitations as to injuries which occurred prior to a certain time before the commencement of the suit. Tn this case, the statute of limitations is discussed a good deal and is adverted to by the court, and the action is limited not very strongly, but rather indirectly, in the charge of the court to injuries arising within four years prior to the commencement of the suit.

Counsel for the city contend very strenuously that there is no rightful cause of aotion here; that whatever injuries plaintiff did receive, it is in legal parlance damnum absque injuria, and we have examined authorities upon that question quite extensively, and we are of opinion that the law of the land is, and ought to be, that fer injuries resulting to the use of the property by reason of the turning of the water upon the property by these embankments, which otherwise would flow off, and from which injuries accrue to her in the use of the property, she is entitled to recover; and, further, that if she suffered in her health from the accumulations of foul water upon her lands caused by these aots of the defendant below, that for that she would be entitled to recover.

The oauses of action are not stated separately in the petition, the injuries to her health and the injuries of the property are intermingled in ene cause cf action, but no objection is taken to that. Counsel assume that if there is an injury to her health, that it goes without discussion that she is not entitled to recover, and counsel for defendant prayed the court to charge the jury that “Plaintiff is not entitled to recover anything on account of the injury to her health.” The case of Story v. Hammond, 4 Ohio, 376, clearly establishes the right of the plaintiff to recover for injuries to her health.

Coming now to the charge of the court, further on, the court was prayed to charge on behalf of the defendant below:

“1. Plaintiff is not entitled to recover anythiug on account ot injury to her health.
l-2. Plaintiff is not entitled to recover anything on account of any damage arising from the change of grade or improvement of Huron street.
‘‘3. Plaintiff is not entitled to recover anything cn account of damage arising from the change of grade or improvement •of Superior street.
“4. Plaintiff is not entitled to recover anything on account of any damage arising from the failure of the defendant to supply drainage for the surface water falling or accumulating cn Oak street.
“5. Plaintiff is not entitled to recover anything on account of any damage arising from the filling of Oak street between Huron and Superior streets since the improvement of said Oak street prior to the year 1874.
”6. Plaintiff is not entitled to recover aything on ac•count of any damage arising from surface water flowing or running over to her premises from Oak street or adjacent ■premises.
“7. Plaintiff is not entitled to recover anything cn account of any damage accruing since the commencement of this action.
”8. Plaintiff is bound to use all reasonable care to avoid damage.”

In regard to the grading and filling of these two streets, the court charged the jury, as we think, correctly, charged very fully1 — in regard to the right of the city to fill the street and change the grade. The court also charged that the plaintiff was entitled to recover for injury to -her health, within four years, and for injuries resulting to. the use of her property; but the court, in our judgment, went, further than it ought to have gone, and submitted to the jury questions of damage and oauses of damage that the court ought ■not to have done.

Now, going back to the testimony, witnesses were allowed to testify — I take from page 44, from the testimony of Mr. 'Losec, and he is allowed to testify what it would .cost to ■raise the house, and then the question was put to him:

“The Court: Q. Take that house and that lot,affected as it is by the drainage in its present condition? A. That reduces it the same ratio that the rental value is reduoed; that is my opinion. Sold for some other purpose, it might be a different thing.
“Mr. Morris: Q. Can you tell us about hew much that would be, in your opinion? A. That, I don’t know as I could say. Probably that rental value doesn’t represent a proper interest on the value of the property any way, as it now stands. The only way I could answer that question would be a depreciated per cent., which would be fifty per cent. I don’t know what value to put on it. I will answer that question in this way; that the depreciation in money value would be $250 to $800 a year — in the rental value.”

Now that, in our judgment, was competent.

“Q. On the selling value of the property, what would be the depreciation? Assuming that there is no drainage on Oak street; that there is no sewer in the rear and there is no way of reaohing it except to go through other people’s property, what is its diminution in value in dollars and cents, in your opinion? A. Well,my judgment would be'from $1,000 to $1,500 — what it would cost to put it in tangible shape, and to bring a fair rental.”

Well, now, following up that question and some of that class, the court,when it comes to charge the jury, after having charged the jury very fairly and very coirectly as we think in regard to the matter, is led to submit to the jury some matters which we think the court ought not to have submitted to the jury, and I will commence to read on page 67:

“If she had an abundance of drainage, if she had a way of letting the water flow away from her lot and from the lot of her neighbors, and the neighbors’ property wouldn’t shed water on her lot, or any accumulation by unauthorized persons of stuff in Oak street wouldn’t add to her burden, she had a right to enjoy her property just as it then was, and the city wcqld be liable for any injury that is the natural consequence flowing from that act. You will remember distinctly what I said. It is not a question,nor would she be entitled to claim damages for the improvement of Superior or Huron streets; but for whatever injury was caused to her by the depriving her of the drainage that she had, of the comfort she enjoyed because the lot was dry and healthy, because of the access, so far as the access was concerned, and because it was a desirable place to live. ”

Now the question cf access to the property was in no manner made before the jury, or if it was made in any way, it was not a cause of action, because of the very fact that they had a right to fill these streets at these crossings, and any injury to the access of the property thereby would be a matter for which she could net recover. That is also stated, and that, as a general rule, would be so; but in submitting the question of damages, it is submitted to the jury in such form that they would have a right to take that into consideration and pass upon it, and settle the whole question so far as his suit is concerned as to any loss she may sustain to the lot by the grade being higher; in short, he submits the same questions to *them in this case that he would submit to them if the suit was brought for the filling of Oak street and changing its grade and filling it between Huron and Superior —questions that will be settled when that question is brought up. Then he proeseds to say:

“Now you would have the right to give her such compensation as will leave her property in just as good condition as it was before; whether she made the improvements necessary, or you by your verdict compel the city to do it. She could not insist that this street was now so changed that she must be enabled to put a brick block on it; to use the language of plaintiff, who testifies “there will always be dampness down here, and my house will be a less desirable place than it was; you must give me the value of a brick building.”

. That is what the plaintiff below had testified to on the trial.

“Perhaps not just that; but she must be made whole and be left in just as good condition as before the city undertook tc do even a lawful act in an improper manner. Because the city blight have provided drainage for Oak street even while it was improving Huron and Superior. If it didn’t, and that causes the injury, that is the damage for which' she has a right to claim compensation.”

Finally he says:

“Of course, there has been conflicting testimony on some-points. That you will have to reconcile. That is entirely left with you. You are the judges of the testimony. From' all the testimony, not from what you may guess, from what you think possibly somebody might have done; but you are simply from the testimony of the witnesses before you to declare what is the injury, to her by reason of being derrived of her lot, of the necessary drainage, and the accumulation of stagnant water, if any, on her lot. We think we have-very nearly said all that is necessary. ”

Now, the question submitted there is too broad. We think’ the true rule of evidence to be offered' is the difference in the value of the use of her property for the period cf four years prior to the commencement of this action. Testimony was ■given here tending to show that the rental value of the house had depreciated in a certain amount of money. That was proper evidence to gc to the jury, and it was a proper rule for them to take in arriving at the estimate cf damages. The injury to her health was confined to a period of four years pricr to the commencement of the' suit. That was proper.

Now here is another question, and there was an eighth ■charge prayed:

“8. Plaintiff was hound to use all reasonable care to-avoid damage. ”

We think the court should have submitted to .the jury ■some charge upon that question. We understand he declined to charge upon that point of law.' It seems to us that while ■she would have a cause of action for the water that is turned in upon her, but still, the well established rule cf law is that she should use reasonable care to protect herself, to lessen if she could do so, and there was a way to do so, the damages which she was liable to suffer by the continuation ■of these causes of action. The question to he submitted to the jury, of course, is: Whether there was any known or reasonable way whereby she could have lessened that injury under her power and control. The testimony shows that the ■catch basins had been raised at the corners, and that there was a sewer in the street,and it might be a question whether, she would have any right to tap that sewer or connect into it, and these wqre matters which should have been submitted to the jury, and which were open for evidence upon the trial'of the case. We do not intend to assume that there were any steps that she could have taken tc lessen the damages or reduce the injury which she received; but, whether there was or not, it should have been submitted to the jury >under proper care and limitations.

We think this.woman has suffered great injury at the hands of the city. We regret being compelled to reverse this judgment; but we think, there has occurred in the. charge of tho court error which has operated to the material and manifest injury of the plaintiff in error, and that for that reason the judgment should be reversed and the verdict •set aside and the case remanded for a new trial.

There is another matter in regard to the eighth request to the jury, and that is whether she should have remained tfhere if her health was being sc seriously impaired or injured, or whether she should have left, and that matters should be submitted to the jury under proper instructions, and testimony submitted to say whether or not she should have left, and might have left; all those are matters which should have gone properly to the jury.

C. F. Watts, City Solicitor, and W. H, A. Read, for City.

L. - W. Morris, for Mrs. Lewis.

This matter of Oak street — it wouid seem that Oak street had been made a dumping ground by somebody, and that earth has been put in there, and it is objected to, and the court are asked to charge that as to the water that is turned in from that street, as to the most of it upon the lot, there can be no recovery. Now the court has practically said that the council might have taken steps for the proper drainage between these two points. The testimony shows that there was drainage before this filling was done, and the city is bound to keep m repair these streets, and we arecf the opinion that if any unauthorized persons fiUed the street the city would be liable. That thing of itself was not made a ground ■of action bther than as to the surface water as it tlieu stood, and it would perhaps be sufficient to try the case as upota the condition of affairs at the time the petition was filed — at the corner of Huron and Oak street.

Great care should he taken in trying this case to distinguish between those injuries which were permanent and those which were or might be sued upou-and recovered from the filling of Oak street. '

We have spent a good deal of time over this case, and we uan very well see that the ocurt might have dropped into the use of this language inadvertently, not having sufficient time to examine the authorities prior to charging the jury. We think the law is clear as to what, her rights are, but another thing is tojieep strictly within the limits of them.


author: Jennee,, J.

text:
    (Fifth Circuit—Stark Co., O., Circuit Court
    1895.)
    Before Jenner, Pomerene and Adams, JJ.
    THE CITY OF ALLIANCE v. GERTRUDE CAMPBELL.

      Injury from defeat in sidewalk — Notiae to city — Defect In original construction—
    (1). In an action for damages for injury suffered from a defect in the sidewalk, the ci.ty is not entitled to notice of such defect where the same was one in the original construction of the walk; but if it was not a defect in the original construction, then the city is entitled to actual notice, unless by reason of the publicity and the long continuance of this defect in the walk, and this is a question to be submitted to the jury.

      Same — When notice to city required to entitle recovery of damages.

    (2). Where the defect is of a natu e that it would not be apparent to a passer-by unless he happened to step on it, and it is not ■ a defect in the original construction, the city would not be bound to take notice of it, unless an accident of a character to bring knowledge home to the municipality, occurred before the accident, in question in the case at bar, or so many accidents of some-character had occurred there as to bring home notice to the municipality.

      Same — Occupation of plaintiff as element to measure dan ages—
    (3). In an action for damages for an injury suffered by the fault of another, it is proper to show who the plaintiff is and what his busines is, as an element to determine the measure of damages suffered.

      Plank sidewalk — Duty to frequently inspect—
    (4). A plank sidewalk will only last for a few years, and it is the-duty of the municipal officers to exercise proper supervision and make proper examination of the same by going over it and testing it to discover defects.

      Sidewalk laid by abutting owner — Liability of city—

    (5). The city is responsible for the defective condition of a sidewalk constructed by the owner of abutting property — in this case-the board of education — by order of the city.
    (Affirmed by Supreme Court, without report, 53 Ohio St.,. 650; 33Bull., 343.)
   Jennee,, J.

The case of the City of Alliance v. Gertrude F. Campbell, is an action brought in the court of common pleas by the defendant in error against the city of Alliance to recover for an alleged negligence of the city in the original construction, or in the negligent maintenance of a board walk or pavement on a certain street in that city, called Broadway.

The amended petition avers that this injury occurred ciu the 26th day of June, 1886, and it is charged that the defective sidewalk is upon the south side of this street, called-Broadway, and in front of what is known as the Broadway street school house, near the corner of said Broadway andi Park streets.

It is further averred that the defendant carelessly and1 negligently and improperly constructed said sidewalk, in-this that the boards thereon were toe short to reach onto the-stringers to be properly nailed and securely fastened on said stringers; and by reason of said sidewalk being so carelessly,, negligentlyand improperly constructed, the boards thereon-had become loose, and were not resting upon or fastened to-said stringers, and said sidewalk had become or was at said time, unsafe and dangerous. Said defendant had knowingly and carelessly and negligently allowed said sidewalk so to remain for a long time prior to June 26, 1886.

I read this for the reason that at a former term we reviewed this case on substantially the same facts; but the original petition omitted this averment that I have read. The negligence charged merely was in permitting this board walk to be cut of repair and in a dangerous condition, and with the knowledge of the city, and the plaintiff while exercising ordinary care in passing along that walk, received this injury.»

As I have suggested, we had the'case at & former term for review, and we find here now an answer to the original petition, but we do not find the answer to the amended petition, but will assume from looking inte the record, that the answer was substantially the same as the one to the original petition, putting in issue all of the averments of this amended petition, all of the substantia] averments.

The facts, very briefly stated, were, that this woman of middle age, or past, living in the city of Alliance, and in the evening of the day while passing along this sidewalk in company with her two daughters and others, at this point stepped upon one of the planks, and it went down, as she avers, four or five inches, by reason of which she was thrown upon her back, and received th 3 injuries complained of.

It further is shown by her testimony, and the testimony of her two daughters, that they went back, noticed the plank, pushed it down to see the cause of the fall, and they say it was too short; they vary somewhat as to their statement— some of them say two or three inches — didn’t reach the other plank within two or three inches; but they all say they stepped upon it, it would pass the stringer and go down four or five inches, and that it was nailed, but the nails were not able to be fastened by driving them straight down, but were driven obliquely, some of the witnesses say they were “toed in,” so as to catch the stringer. And it is ■claimed that that was a defect in the original construction of this walk, by reason of which this injury resulted. It is further claimed that this condition was allowed to remain for so long a time from the original construction of the walk, extending over a period of perhaps nine ypars, that whether the defect was one of original construction or not, having continued so long, and with the knowledge of certain people (and one woman having said that she was injured stepping into this; her heel was turned,, and her ankle •sprained, probably), that at all events the character of the defect, and its long continuance brought home knowlege on ■the part of the municipality. That is the claim.

Now, the testimony on behalf of the city is quite uniform, ■that they had passed over this walk; I ought to say first that it is claimed, and not denied, not seriously denied, and might be accepted as a fact, that this board walk was put down by the board of education in front of their property, school property, and that is urged here in argument,- and an authority cited bearing upon the question that this construction, this laying of this plank walk at that place by the hoard of education, that a defect in the original construction could net be held to apply to the city of Alliance, and therefore that they were entitled to notioe. And it is just as woll settled now in the authorities, and I might say, that even if I do not refer to all these that I haove piled up here, it is just'as well settled, at least in our state, and many states, while there is some conflict in others, it is just as well settled that a defect in the original construction of a roadway or a pavement or a board walk, if constructed by a municipality, such-substantial defect as to oause an injury to any person who has the right to use it, that they cannot insist upon notioe. They are presumed to know what they do themselves. That is the reason for it. It would be absurd to say that if a man builds a thing, constructs a walk himself, to say to him “well, I notify you now that that is built so and so. ” He is supposed to know, and supposed also, where it is to be used by the public, to build it so it can be used with reasonable safety; a walk that is suitable for the purpose for which it was to be used, for passengers, persons passing over it using ordinary care, that they would not receive any injury by reason of its condition. That is the law, as we understand it. While counsel have been very industrious, in citing numerous authorities, it is a subject upon which the books can be piled up, in which thó text books cite authorities by the page, and in which some states held one way as to what constitutes liability, and some another. So if a case is to be understood to be authority in Ohio, it is very important to know just what their statute is in the state where the supreme court has announced an opinion, and what rule they held to with reference to -the duty of a municipality. It is not for this oourt to do more than ascertain what tire decisions of our own supreme court are, if they have passed upon these questions.

Now, to come back to the facts — the facts shown here by Mr. Johnson, and a number of other parties it is not necessary to name, that this walk had been used right along; they had gone over it, and gone over it with reference to making an examination, and they testify pretty uniformly, and perhaps all of them, that the walk was in good condition. And I suppose, looking to this record, I might say it was, except the defect here m question, and there is no doubt of that defect. We must some back to that, and admit that proposition. And if they passed over it a hundred times, that defect was there at the time of the accidentT and prior to that; jjnd it was a defect of a character that by passing over it, it would not be apparent to a passer-by unless they happened to step on it. That is true, as a faot.

Now, that being so, the mere fact of it being in that condition,if it was]not a defect in the original construction, unless an accident of a character to bring knowlege home to the'municipality, occurred before this alleged accident, or so many accidents of some character had occurred there as to bring home notice to the municipality, they would not be' bound to take notice of it.

That is, in other words, the municipality is bound to know (whether they did or not),they are bound to know what the citizens generally knew about the walk; they are not bound to know' what oue or two or three may have known.

There is a good deal of testimony on the question, a good deal as to the character of the injury, and we may say we can see how sensitive counsel naturally got; it is a class of cases that if there is an attempt to deceive it can be pretty easily-done; and yet it dees not do to assume that; it does net dolor a trial court, nor for the reviewing court to assume that anybody is attempting to deceive a court and jury. The-presumption is, and ought to be, that every witness under oath is honest. They most all are — -it is the exception where.a witness is not. Therefore, the presumption as tc the-honesty of all these witnesses ought to obtain.

I want briefly to refer to a few of the authorities; as I have said, there have been a great many cited by counsel— we have looked into a number of them, not all. “Each case depends upon the particular facts of that case, and if it is a proper case to go to a jury, then the ■ jury must determine-the question.”

Take this Illinois case, among those cited by counsel, 84th Illinois, the case of the City of Chicago v. Margaret Murphy; the syllabus is brief, I will read it: ‘Liability for injjiry from defects in a sidewalk, where the evidence fails to show the city authorities had notice that a plank in the sidewalk was loose, which caused a personal injury, or such circum-tances as that they, in the exercise of reasonable diligence-should have known it was loose, the city will not be liable to the person injured. ” That is the rule. It is the rule-stated in a dozen cases, and more. If it is loose, if it becomes broken on a given day and remains so for a length of time, then the authorities must have either actual notice, or it must be cf a character or continued for a length of time that the law will presume that they did have notice.

Now, the case of Blapsberg v. The City of Des Moines, 63d Iowa, page 523: “Where the evidence showed that persons passing along the street failed to observe that the street was in bad condition, it cannot b$ assumed that the city ■ officials, by the exercise of ordinary diligence, would have noticed what no other person did.” That particularly applies to this case; here hundreds of people pass along this street, and as the record would seem to show, it was a public thoroughfare, and while two or three, or four or five observed this defect, observed it by reason of stepping upon it, • or being with the parties who did step upon it; others, hundreds passed along it and did not see it. Now, if it was a defect simply that oocurred after this was constructed, or if the city council could not be charged with notice as to the original construction, that case is applicable; as also the case in"2d Denio, page 488..

This is the case of The City of New York v. Bailey et al.:

“A municipal corporation is responsible for the negligence and unskillfulness of its agents and servants when employed in the construction of a work for the benefit of the city or town, subject to the government of such corporation. The owner of real estate is responsible for the negligent acts of persons employed in making erections upon it for his benefit, though the relation of master and servant does not exist between such owner and the person so employed.”.

The case in 4th Grey, touches upon another feature of the case that is urged by counsel; that is this — and while I am upon this subject, as I can do it quicker, and do not want to take up too much time — it is claimed here that evidence was offered in the record of this character — the woman was inquired of as to her occupation; she said she had been a school teacher, and then further as to what compensation she received, she said thirty-five dollars a month; and it is said that that was erroneous, for the reason that there was no averment in the petition as to special damages, and this was evidence tending to show special damages. That is the ground upon which this is urged, and 'this case -sustains that view, this 4th Grey, 338, case of Baldwin v. The Railroad Company. “In an action brought by a traveler on a highway against a railroad corporation to recover damages for a personal injury occasioned by their locomotive ■engine, the plaintiff’s occupation and means of earning support are not admissible in evidence to increase the damages, iif not especially averred in the declaration.” ; _‘-j ..“.1

If that is the law in Ohio, then there never is a case brought when the rule is not violated. If you cannot inquire of a man, when you put him on the stand, “what is your business?” — if you cannot do that, and he cannot say “I am a merchant” or “I am a farmer,” in a damage suit, then I say, every time a case is tried, it is violated. And it is very important for a court and jury to know who a man is; and a statement of the proposition would show that this cannot bo the law in the broad terms in which it is put here; no doubt whatever that a man laboring on the street and earning a dollar a day, who receives a permanent injury, is not entitled to the same compensation us a man who is engaged in some large business, or a farmer owning a large farm, or a lawyer engaged in a large practice, who receives a permanent injury. The statement of the proposition and the fact shows that cannot he sd, and we do not think this authority means that. “The plaintiff’s occupation was not stated in the writ, the only averment in the declaration was that the defendants owned the railroad between Worcester and Springfield; the plaintiff was traveling on the highway 'which crosses said railroad, and was using due care; the defendants ran their engine against his wagon,” etc. Now, they hold and assume that under their statute, and the fact that it was not stated in the writ — the occupation was not stated in the writ; they seem to be required to do that under the statute there; then they say the rule is as stated here. But Sedgwiok, also cited by counsel, does not mean that. The first volume of Sedgwiok on Damages, page 768: “Under a general allegation of damages, the plaintiff may prove and recover those damages which naturally and necessarily result from the act complained of, or those damages which the law implies will proceed from it.” But how can you tell what damages the man suffers, without knowing who the man is? What is his business? Is he totally disabled from carrying on his business? — if he is, then the damages may be large. The injury may be justas great to a man engaged in a certain occupation cr a certain kind of business, he may be still able to carry that on, and the damages would not be so great.

Now, there is one other authority I will read aline or two from; it is in the Atlantic Reporter, October 4, 1893, page 193, case of Lohr and Wife v. The Burrough of Pittsburgh; it is a Pennsylvania case, and a late case: “Notice of the defect cannot be brought home to the defendant by evidence that theparson who was a Burgess at the time of the accident, had, before he was elected Burgess, called the .attention of the ohief of police to the defect.” A sidewalk such as that in question here, would last only a few years, and it Was the duty of the borrough officers to exercise proper ’supervision aud make proper examination of this pavement by going upon it and testing it, to discover by the eye.

I will also refer to the case reported in the advanoe sheets 'of the New York Supplement for ’89, on page 484, Stebbins v. The Village of Oneida: “The fact that a sidewalk was inspected by a village official a few weeks before plaintiff teceived an injury thereon is no defense to an action for 3uch injury, and it is proper to submit to the jury the question whether the trustee was reasonably diligent in'discovering whether the walk was o,ut of repair or net. The evidence bf the condition of the sidewalk where plaintiff was injured, •'and of similar accidents occurring there, is admissible to show notice on the part of the defendant.” Judge Dillon lays down the rule as we have stated it; that is tlm — 'that if it is a defect in the original construction,they are entitled to no notice; if it is a defect that occurred after it was constructed they are entitled to notice, or it must be of a character or continued for such length of time that notioe is presumed.

Is the city in this instance chargeable with the original ■construction of this walk? That is a matter involved in ■some doubt. It is involved in some doubt for this reason — ■ that the walk was put down by the board of education. But suppose it was a property owner who put down this walk. Can the property owner put down any kind of a walk he ■chooses? Must not the city be responsible that that walk is constructed there properly, safely? Can a city throw off the responsibility by saying “we didn’t put it down. John Doe put it down — the board of education put it down.” Must not they superintend it? Must not the civil engineer, or some proper person, have the supervision? If that is conceded, is not the construction, although the aotual work is performed by the property owner — is not the ’construction the work cf the city?

We think it must be so held. It seems so to us. It does not seem to us that the responsibility is shifted, because the city supervised this work, or should have supervised it, and should therefore be responsible for its character.

Now, on the former hearing, this case was reversed for the reason, substantially, that the court charged that if they found this was a defect in the original construction that the city was not entitled to notioe. That is a correct rule of law if the issue had authorized it. The issue did not; there was no averment in the petition charging that is was a defect in the original construction. Under that issue we held that the charge was erroneous, and we held further that the evidence under that issue (and of course we did not mean to make it broader than the issue), that the evidence under that issue did not sustain chat verdict, under the charge of the court. That was as far as the court could fairly have gone; they cannot go outside of the issue.

We think the only criticism this charge is subject to, is that it is too favorable to the city.

Counsel did not call our attention tc auy part of it; but the court fails to charge and refuse to charge although counsel suggested to the court, “We want you to charge, if this injury resulted to this plaintiff by reason of the defect in the original construction, tha* the city was not entitled to notice,” and the court says no,he had charged all he wished to"charge on that subject; and he charged that they are still entitled to notice, under the facts as shown in the case.

We think it was only fair to have put that question to the jury; it was for the jury to say “how they found the facts.” Was this defect, or was it not, in tpe original construction? If it was a defect in the original construction, and you so find, then no notice was required. But if you find that it was not a defect in the original construction, then they are entitled to actual uotice, unless by reason of the publicity and the Jong continuance of this defect in the walk. That is what he should have done. He does not do that. He says “they are entitled to notice.”

Under the issue and under the charge to the jury, if the jury found from the facts that this was a defect in the original construction they could still fairly say they were not entitled to notice. It is a question for the jury. So we do not find any error in that charge; and we find that the evidence here - furnished, under this issue, does sustain the verdict.

Was there error m admitting the testimony of "Or. Phillips? That was one of the groundsurpon whioh we reversed the case before. W9 held it was clearly wrong. We would have reversed that case on the testimonv of Dr. Phillips alone, if there hgd been no error in the charge; because Dr. Phillips was permitted on the former trial to detail to the jury his conversation with the woman, and it went in corroborating the testimony of the'woman. That was prejudicial. We thought so then. We think so now.

We have read that testimony carefully, and we do not think there is anything prejudicial in it; indeed we think it was properly admitted, except one doubtful question there —but I will not refer to that further.

We are cited here to Rogers on Expert Testimony, to show that the testimony of Dr. Phillips again is incompetent and prejudicial; he is called again' — he examined the woman, and testifies as to how he found her — 'testifies among other things that he knows of no reason why it should be understood to be a permanent injury, but he details that he talked with her, he wouldn’t go there and not talk to the woman; he talked to her, he ascertained what her claim was about it. That he had a right to do.

Now, he testifies and gives his opinion from the examination that he made; does this authority exclude it and hold it to be incompetent? Let us see: “The rule is that an expert cannot be allowed to give his opinion based upon statements made to him by parties out of court, and not under oath His opinion, to be admissible, must be founded either on his own personal knowledge of the facts, or else upon a hypothetical question; hence the opinion of a physician called in consultation with the attending physician cannot be received, if based upon declarations made to him by such physician, or by the wife .or nurse of the patient, as to his symptoms, ” etc.

But cannot he talk to the party he is examining? The wife cannot state it; the nurse cannot state it; another physician cannot state it — about the symptoms' — but cannot he talk to the party, and then making his examination and judging from the examination as to how he finds it, cannot he detail that to the jury? If not, then the testimony of almost every physician would be incompetent, except you put a hypothetical question to him. The hypothetical questions are put generally when the witness has not seen the patient at all, has not made any examination as a physician. Assuming the facts to be so and so, what do you say? But if a surgeon has examined, then a different rule obtains.- Of course, you must carefully exclude all declarations from the jury.

Now, this is a large verdict, and it seems tc be a hardhip on the city; and counsel state well what the rule is in a second trial. When a case has been tried a second time, to a jury, a fair jury, and the verdict is returned substantially the same as on the first trial, it ought to carry more weight to a reviewing court than if it was tried but cnce. That ought to be the rule; that is the rule, as we understand it, with all courts.

Fording & Harris, for Plaintiff in Error,

Baldwin & Shields, for Defendant in Error.

Looking at this whule record we do not find any error that would justify us in again reversing this case. So we affirm it, without penalty.

£( Affirmed by supreme court, without report, 58 Ohio St., 650; 83 Bulletin, 343.)


author: Jenner, J. PoMERENE, J.

text:
    (Fifth Circuit—Stark Co., O., Circuit Court
    1895.)
    Before Jenner, Pomerene and Adams, JJ.
    METZGER & COMPANY v. HOLWICK.

      Bight of way — Apiiurtenant and in gross—

    (1). Where one granted an estate, and in his deed reserved a right of way across it to a certain point, but made no mention of or reference to any estate to which it was to be appurtenant, or with which to be used, it is a way in gross,and is a personal right which is not the subject of a grant to others,or to inheritance.

      What will constitute right of xoay in gross—

    (2). Ways are said to be appendant or appurtenant when they are incident to an estate, one terminus being on the land of the party claiming it. The owner of a lot separated by four lots from -aright of way, cannot claim the same as appurtenant to his lot; but a covenant in his deed by which the grantor agrees “to leave an open driveway from the south end of said (another) alley along said railway and switch’-1, gives a right of way in gross, and is personal and can not be granted away to others.
    (Affirmed by Supreme Court, 58 Ohio St., 710; 38 Bull., 269.)
    Appeal from the Court of Common Pleas of Stark county.
   Jenner, J.

The case of William H. Metzger and Victoria C. Udick v. Daniel S. Holwick, is here on appeal, but the facts are substantially agreed upon.

The plaintiffs aver they are the owners of the real estate described in this petition, parts of two lots in the city of Canton; and they aver they have the free use and enjoyment, in common with others, of a fifteen-foot alley and ■right of way running through and over said lets, from Cedar street to the railway; further they aver that they are the •owners of a right of way — a fifteen-foot alley — running west-wardly from the ahove described alley along the line of the McLain M ichine company’s railroad switch to Cleveland avenue; and they further aver that the defendant, Holwick, is about to interfere with their use of it by erecting a permanent building across this way.

The answer admits that he is about to erect this building across this claimed right of way, but it avers that it is his; and that he has a right tc erect it there, and that the plaintiffs have no interest whatever in it. That presents the question, substantially.

It is claimed that the plaintiffs had this right of way because it was appurtenant to their real estate. The other side denies that it was an appurtenant; but admits that it was a way in gross attached to certain of this real estate.

Now the facts are these, in brief: — that on the21st day of December, 1888, the McLain Machine Company was the owner of a tract of land in this city, on a part of which they had erected their shops. They had a switch extending from the Pennsylvania railroad main track to their plant; on the day named they sold and conveyed to Holwick by deed a portion of these grounds; they describe it by metes and' bounds, and then set forth that they will construct an alley, fifteen feet wide, from Cedar street clear down to the railroad; and in the deed now to Holwick' — and it all turns upon this and what was subsequently done — they provide that Holwick shall have the joint use of this private switch; that h9 shall pay half the expense of keeping it in good order, and then comes this language: “Said second party agrees to leave an open driveway from the south end of said alley along said railway and switch to Poplar street.” That appears in the deed. I ought io say that the same reservation, we assume from what counsel have said, appears in the two prior conveyances until they come to these plaintiffs, and in the plaintiffs’ deeds it appears in the language of this deed.

Plaintiffs’ property is separated from the defendant’s by this fifteen-foot alley, and it fronts on South Market street, and it lies lengthwise on Cedar street; there are four other lots between their property and this switch.

It must be borne in mind that after this conveyance to Holwick, which was December 1, 1888, there were certain conveyances and then the machine company conveys to Heirscheimer January 28, 1892, this lot that the plaintiffs now own. November 10, 1892, Heirscheimer conveys to these plaintiffs whatever rights Heirscheimer had, and it is claimed these plaintiffs had to use this as a way appurtenant to his property.

We think this presents a question of some difficulty, and we find that we are not able to agree among ourselves as to this question; and I want to state the conclusions of a majority of the court.

It is quite important,we think, to understand these facts:that these plaintiffs’ property is separated by a fifteen foot alley, and lies away up on Cedar street, fronting on South Market, with four lots between it and this right of way; and' that at the time the sale was made to Holwick, the machine company owned the land immediately south of Holwick — > the switch divided it in two; they also owned the land west on which their shop was situated; now, subsequently, they divided up the land lying west of the fifteen-foot alley which they agreed to open up and did open up — they divided it into lots, and sold them.

It is important to get at a clear definition, we think, of some of these terms, and I want (for fear I may overlook it) to call attention to this 110 Illinois, the case of Keckin v. Votz. Commencing on page 264, it is said the court below determined the case substantially, on this authority, and the facts are these in this case — I can state it so as to make myself understood clearly, I think. A man by the name of Chanler owned a piece of land in Chicago, and it was substantially ninety feet square, eighty-nine feet one way and ninety the other; it fronted on Wells street, and it lay sidewise or. Chicago avenue. Now he sold off, I will say (by treating the top here as though it were north I can make myself understood, and there is a diagraai of the Jots here in this book), he sold off two pieces at the south end of the property, twenty-nine feet to Volz, and another twenty feet to Volz which was aftervards conveyed to other parties by mean conveyances. Now in the deed he reserves ten feet for an alley along and across these lots, across the end of the lots, and it is said that if they can look beyond the deeds (and some authorities differ as to whether they can look beyond the deeds to determine whether or not a way is appurtenant or not) — it ought to be determined by the reading of the deed itself; hut still the authorities, or some of them, seem to hold that you may look beyond and find out just how the parties are situated. That is what he had done; he subsequently sold and conveyed the northern lots to other parties, the persons on the south reconveyed, and then they closed up that alley, and the question was made as to whether or not that was appurtenant. It is said here in the opinion of the court that it was necessary, to get to Chioago ■avenue, to pass over this ten feet. Now, here is what the court said in the opinion — this is the language of the reservation ‘excepting and reserving therefrom’ — that is the language — ‘ten feet across the west end of said premises for an alley — ■ (it was reserving that, it was not conveyed); the deeds conveying to each of these parties contain the same exception and reservation contained in the deed to O’Neil.’ Quoting from another case the court on page 269 say: “In construing deeds or other writings, courts must seek to ascertain and give effect to the intention of the parties. For that purpose, they may and will take notice of attendant Circumstances, and by them determine the intention of the parties, the situation and location of the property, the manner in which it was used in connection with the reservation; the exception contained in all the deeds from Chanler clearly indicates an intention to create the alley for a right of way in the nature of an easement.”

It run right across the end; they had noway out to Chicago avenue except by that way which had been reserved; they say that being so, it. was a way appurtenant. This judge quotes from 11th Grey, page 270: “When it appears by a fair interpretation of the words of a grant that it was 1 he intention of the parties to create or reserve a right in the nature of a servitude or easement in the property granted, for the benefit of other land owned by the grantor, and the original forming with the land conveyed, one parcel, such right will be deemed appurtenant to the land of the grantor, and binding on that conveyed to the grantee.”

That is all I need to say as to that authority. I want to get clearly the definition, and I turn to this recognized authority, Washburne on Easements and Servitudes, and on page 11, first: “A man may have a way in gross over another’s land,but it must, from its nature, be a personal right, not assignable or inheritable, nor can it be made so by any terms in the grant any more than a collateral and independent covenant can be made to run with land.

“Where one granted an estate, and in his deed, reserved aright of way across it to a certain point,but made no mention of or reference to any estate to which it was tc be appurtenant, or with which used, it was held to be a way in gross, and not the subject of a grant.’’

That is the condition in this deed; there is nothing said about'the machine company having any other land; it does not refer to it, nor describe it; but just says in so many words, that he agrees to keep a way open fifteen feet wide, and does not say where, does, not say for whose benefit. “A right; in gross is net assignable. If one has a right of way appendant or appurtenant to an estate, he cannot grant it separate and distinct from the land to which it belongs. When, therefore, the grantee conveyed the dominant estate with all is ways, etc., it did not convey any right of way as being appurtenant under that, grant except such as was con-mected with the use and enjoyment of the land to which it was annexed. ”

It must be remembered that the switch was a private switch, and so called in this deed. Hclwick agrees to pay one-half of the expense of keeping it in order. And after that,this other lot, away off, four lots at least distant, is sold to the plaintiff's.

I want to turn over a few pages and see what this authority says as to when a way is appurtenant, and I will read a line: “Ways are said to be appendant or appurtenant when they are incident to an estate, one terminus being on the land of the party claiming it.” Now, if that is a correct definition, there is no claim that there is one terminus of this way on this land; it terminates in an alley near the railroad, and this Jot is at the upper end of the alley, fronting on Market Rtreet and Cedar street; so it is not in any way connected with it. It does’not terminate there any more than any other street that might be followed up with alleys and streets, would.terminabe there. “Ways are said to be appendant or appurtenant when they are incident to an estate, one termiuus being on the land of the party claiming it.” They must inhere in the land, concern the premises, and be essentially necessary to their enjoyment. They are of the nature of covenants running with the land, and like them must respect the thing granted or demised, and must ■concern the land or estate conveyed. A way appendant cannot be turned into one in gross, because it is inseparably united to the land on which it is ineideut. So a way in •gross cannot be granted over to another, because of its being attached to the person; nor can one have a private way ■over and along a public highway.

Now, I desire to,call attention to 23d Ohio State, the case of Boatman and WTife against Lasley, page 614; the syllabus is very brief: “A right of way in gross is a right personal to the grantee, and cannot be made assignable or inheritable 'bj1 any words in the deed by which it was granted.”

Here are some of the facts: A right of way had been granted by deed, on the 7th day of .Tune, 1869, by the warrantor to Logue, his heirs and assigns, and the tenants and occu■piers for the time being of the lands then owned and occupied ;bv the said Alexander Logue, in section 15, town 5, of range 14, in the Ohio company’s purchase etc. It is not alleged, however, that Logue at the time the right of way over the warranted premises was granted to him by the plaintiff, was the owner cr occupier of any land in said section 15, or elsewhere; nor is it alleged that the right of way complained of became appendant or appurtenant to any land whatever, orthat said Roush had any interest in said right of way.

The evidence being closed, the court charged the jury as-follows, on the questions raised on the issue: “If the jury-shall find from the evidence that at the date of the deed made by Lasley to Legue, marked “A,” the said AlexanderLogue, grantee therein, was not the owner in fee or otherwise cf some real estate adjoining the farm through which-said right of way is granted, or situate in the neighborhood-sc'that said right of wav may become appurtenant to the-same, then the said deed conveys a right of way personal to-himself-alone, and one which cannot descend to his heirs,, one which he cannot assign or release to another person except such other parson be the owner of the farm "through which said way was granted.”

Now, if this reservation to the McLain Machine Company-was persona] to the McLain Machine Company, they could¡ not by conveying a lot away off distant from that, net-touching it. not coming near to it, make it appurtenant.. That seems tc be the point of that charge.

Judge Mcllvaine, announcing the opinion, among etherthings, says this: “The terms cf the deed from Lasley to-Logue plainly import an intention to make the right of way therein granted appendant and appurtenant to other lands,but the record does not disclose either the facts or the law-given to the jury whereby it oould determine whether cr notthat intention was accomplished.

“Where the way is appendant or appurtenant to other lands, very different considerations arise. There the right attaches to the lands to which the way is appurtenant, because it is granted for the convenience of their occupation.without respect to the ownership or numiier of occupants.. In such case the right of way passes with th® dominant estate as an incident thereto. A right of wav appendant oan-not be converted into a way in gross, nor can a way in gross-be turned into a way appendant.”

This case in the 100 Pennsylvania State is also cited, page 42. I may refer to it briefly, and I will simply read a line-from the opinion of the court on page 46: “The extent of' the right, and everything pertaining to it, is to be gathered.! from the terms of the grant in Hunter’s deed.” New,if thatis the law that you have to lock to the deed for the exentof it, referring tc it we find, the grant was the free use and' privilege of an open road, forever. If there was any doubt as to the nature or extent of the grant, the well settled rule would require tp be taken most stropgl.v against the grantor; but there is no ambiguity about it. On the contrary, it is-clear and explicit, and instead of restricting or in any way limiting the use, it is declared to be free and an open read forever. It needs no citation of authorities to show that such a right ot way may be used and enjoyed by those who own or lawfully occupy any part of the dominant tenement for any purpose to which it may from time to time be legitimately applied. Only those who may be properly regarded as trespassers on the dominant tenement can be exoluded.

I cite that to show that there they hold you cannot look-beyond a deed for the purpose of determining the question.

And in the Massachusetts report, 107, case of Dennis v. Wilson, page 591: “The owner of a lot cf land adjoining' the highway sold and conveyed part of it, excepting and reserving a right of way extending from the highway along' the line of division between the part sold and the rest of the-land for a distance less than the whole depth of the lot.

“Held: That the right was appurtenant to the rest of the' land, whether or not it was limited to the grautor’s life.”' This is what the court say among other things: “When there is in the deed no declaration of the intention of the' parties in regard to the nature of the way, it will Le determined by its relation to other estates of the grantor, or its-want of such relations. The right of way excepted and reserved extended from the highway in front and along the line of the division for a specified distance, less than the-whole depth of the lots, etc.” — without reading more there. “Its character must be determined by the purposes for which the way was intended to be used. Whether a way is-appurtenant to land depends upon its relation to the land in respect of use, and not upon any currespondence with the-title of the owner in respect to duration.”

Now, how is this in fact. This party could not: use that switch; the switch-is on the private land of Holwick, and the private land o.f the "machine company. Here is a way all around it. Here are two streets; this lot is on two streets;it abuts on this alley. It does not terminate at this lot, nor in this lot. And taking the facts o, this case, with these authorities, the definition they give as to what would make it appurtenant, the majority of the court think that this way was merely a way in gross, reserved by the McLain Machine Company for their benefit, and when they conveyed other real estate they had, different from that, not ccnheoted with it, why, they could not convey that reservation. So we-will have to dismiss this petition, at the costs of the plaintiff.

N. 0. McLean, and Q. T. Meyer, for Plaintiff in Error.

Wann & Bow, for Defendant in Error.

PoMERENE, J.

I am wholly unable to agree with my brothers on the subject on this point; I think it is connected with the part of the land retained.

Now, this machine company owned a certain tract of land; part of it lies between Poplar street and South Market street, and part of it still west of Poplar street. In selling portions •of that off the west part, that which lies between Poplar street aid South Market street — r part of that consideration on the part of the machine company was that they agreed to leave an alley open on the west part of that land which they retained; Holwick agrees to pay so much money, and •agrees to leave a driveway open to that alley, to connect that part of the land, aud it seems to me it is part of it. That ■is the point in which I disagree with my brothers.