text:
    MASTER AND SERVANT — NEGLIGENCE
    [Cuyahoga (8th) Circuit Court,
    June 10, 1910.]
    Henry, Marvin and Winch, JJ.
    American Hard Rubber Co. v. Lola Pierce.
    1. Causal Sequence of Allegations of Physical Disability in Negligence Case Determinable by Jury.
    In an action for damages resulting from personal injuries received as a result of the defendant’s negligence, whether the causal sequence in fact includes all that the petition claims in the way of physical disability from the injury, is a question for the jury.

      2. Fact of Physical Disabilities Directly Traceable to Injury Gist of Negligence Case, not Causes Antecedently Improbable or Facilitated by Concomitant Circumstances.
    The fact that the results alleged from the cause alleged are unusual and therefore antecedently improbable, is not the true criterion. Neither is it any test that the cause was small and the effect great, nor that the particular result claimed was facilitated by concomitant circumstances. The real question is whether the plaintiff’s disabilities are directly traceable to the injury received, or whether they were brought about by the active intervention of a new and distinct cause such as some injurious act or conduct of the plaintiff.
    3. Instructions that “Injuries that Result from Negligence .of Master are not Assumed” and Rule of Assumed Risk Presupposes Exercise of Due Care by Master, Erroneous.
    Unless the distinction is pointed out between the kindred doctrines of employe’s risk, as applied to the ordinary hazards incident to the employment, on the one hand, and on the other hand to the defects and dangers which are not naturally incident to the employment but of which the employe has notice, it is misleading to charge that “injuries that result from the negligence of the master are not assumed,” or that the rule of assumed risk “presupposes that the master has exercised due care, in providing a reasonably safe and proper place to work, and reasonably safe machinery for the performance of the required services.”
    4. Misconduct of Counsel.
    It is misconduct of counsel, for which a judgment will be reversed, to say to the jury: “And the first thing this defendant did when this suit was brought was to compel this poor girl to give security for costs. This girl worked at this shop at a dollar a day. No wonder men become millionaires when them employ girls at such niggardly wages. You should give something as a wholesome example to this defendant in this case. Let your verdict be so large that it will he a lesson and punishment to this defendant to obey the law.”

      Arthur Van Epp, W. R. Anderson, J. A. Kohler, C. E. Smoyer and Thompson, Glitseh & Ginniger, for plaintiff in error.

      Musser, Kimber <& Huffman, for defendant in error.
   HENRY, J.

This proceeding in error was brought to reverse a judgment recovered by the defendant in error for damages for personal injuries sustained by her September 7, 1906, while in 'the employ of the plaintiff in error, a manufacturer of hard rubber products such as penholders, telephone receivers, etc.

The defendant in error at the time of her injury was a young woman twenty years old. She entered this company’s employ about August 9, 1906, and between that date and the time of her injury she worked in the building room, in all about three weeks. She had previously had some factory experience in two other establishments, bnt not at the same kind of work. Here she was engaged with many other female employees, in polishing the small hard rubber objects which this company manufactured. This was accomplished by pressing the object to be polished against the cloth covering of a rapidly revolving buffing wheel. There- were in the buffing room a number of such wheels, arranged in rows about fourteen or sixteen feet apart, each wheel having an operator. To facilitate the work of polishing each operator was supplied with a lump of polishing compound, known as a grease-ball, which was applied from time to time to the revolving wheel by pressing the same against it.

Lola Pierce was one of these operators. Birdie Springston was another. At the time of the accident they were situated diagonally across the room from one another, and working at their respective wheels in different rows. While Miss Springston was applying her grease ball to her wheel, it slipped from her grasp, and being forcibly thrown by the revolving wheel across the. room, struck Miss Pierce in or over her left eye. The blow was not such as to leave any permanent external marks, but it was followed by a nervous condition which renders her apparently a, physical wreck.

Her petition below alleged that the company was aware that the wheels not infrequently threw objects across the room in this manner, but that she was without means of knowing and did not know that such was the fact. The negligence alleged is that the company failed to provide screens or other means to intercept such flying objects. The company insists, however, that its buffing room was equipped in the customary and most approved manner in every respect, with suction blowers to carry away the dust and without any concealed danger in or about the machines; that Miss Pierce had previously worked at the wheel which threw the grease-ball, and in short that she had full knowledge of the situation and of the conditions attending and surrounding her at the time she was injured.

The errors assigned here are:

First. That the assumption by the plaintiff below of the risk from the negligence alleged by her is manifest both from her petition and from the facts proved; this question being saved by demurrer to the petition, and by motions to direct a verdict, and, after verdict, for a new trial, all of which were overruled and exceptions reserved.

It is true that the absence of any screen which would intercept objects flying across the room was manifest to. the plaintiff below, but it is by no means clear that the danger against which a screen would have protected her was apparent to an employe with such experience and understanding as she had. In Pennsylvania Co. v. McCurdy, 66 Ohio St. 118 [63 N. E. 585] it was held that:

“An employe experienced in the service in which he is engaged is conclusively held to appreciate the dangers which may arise from defects of which he has, or in the exercise of due care, might have knowledge.”

It can hardly be said, however, that the plaintiff below was experienced in this service wherein her entire period of employment was not more than three or four weeks. The cause of her injury was not of the sort that to be appreciated needs but to be seen, but was rather of the nature of a latent danger discoverable only by reason of experience, in addition to mere observation. To the latter class belongs the case of Lake Shore & M. S. Ry. v. Fitzpatrick, 31 Ohio St. 479, wherein:

“The plaintiff was employed by the defendant to operate a turntable by means of a crank that was stationary upon and revolved with the turntable and a track was laid in such proximity to the turntable that while an engine was on the turntable being turned by the plaintiff it was struck by an engine passing upon the track, causing the crank to strike the plaintiff by a reverse motion, inflicting the injury complained of.”

In that case all the facts which contributed to the ultimate result were within the range of Fitzpatrick’s observation but it would have required reflection to bring home to his mind the possibility of his being injured under those circumstances. So here, anyone who once observed an object thrown across the buffing room by any of the wheels at which the operators worked, would of course realize that the occurrence might be repeated, but until it had once occurred in fact, it would be quite unlikely to occur to the mind of an employee having but little experience..

There is some evidence in this ease that the foreman had been present on some former occasion when an object was thrown across the room thus, but whether so or not, notice of the likelihood of such an occurrence may fairly be ascribed to the employer who had installed the machinery and provided the power by which it was operated, and who exercised the duty of oversight of the business. There is no evidence to show that the plaintiff below had any actual knowledge of any prior occurrence of this sort, and as already intimated constructive notice can not, merely as a matter of law, be ascribed to her. The doctrine of' Chicago & Ohio Coal & Car Co. v. Norman, 49 Ohio St. 598 [32 N. E. 857], was properly charged to the jury and this sufficed to cover the subject.

The second assignment of error is that the verdict of twelve thousand dollars is excessive and was apparently given under the influence of passion and prejudice, so as to include compensation for a disability which, so far as it is real and not merely apparent, is neither the direct consequence of the blow received by the plaintiff below, nor was it reasonable to be anticipated as likely to result from the alleged negligence of the defendant below. The cause, extent and reality of plaintiff’s physical disability were, as the bill of exceptions discloses, sharply contested upon the trial. There are indeed disclosures in the record, to some of which we shall again advert, that suggest an overestimate by the jury of the actual damage sustained by the plaintiff below, as a direct consequence of the alleged negligent injury, but we fail to find enough in the record to warrant us in saying, as a matter of law, that the jury were biased, or that the verdict is excessive. On the contrary, it is apparent that if she was not malingering, and if her condition at the time of the trial was not due to some other and different cause than the one she alleges, the amount of the verdict will afford her but imperfect compensation for aggravated and lifelong invalidism.

Whether the causal sequence in fact includes all that the petition claims in the way of physical disability from the blow which the defendant in error received, was, of course, a question for the jury. The fact that such results from such a cause are unusual, and therefore antecedently improbable, is not the true criterion. Neither is it any test that the cause was small and the effect great; nor that this particular result was facilitated by concomitant circumstances. The real question is whether the defendant in error’s disabilities are directly traceable and attributable to the blow, or whether they were brought about by the active intervention of a new and distinct cause, such as some injurious act or conduct of her own.

The third error assigned is upon the admission of evidence as to the existence of screens in other factories at the present time, and as to the former maintenance of such screens in this factory, all of which is claimed to be prejudicial because of the fact that the jury in this case had viewed the premises and seen the buffing room equipped in like manner after the accident. This situation, if we correctly apprehend it, is not fully disclosed by the bill of exceptions, and after examination of the pages referred to in'argument and in the brief of counsel, we find no prejudicial error, although it would apparently have been better under the circumstances if the jury had not been permitted to view the premises at all.

As to the existence of screens in other factories the witness Dangel was asked but replied that he did not know; and as to the present screens in the Akron factory the witness, though asked, did not answer, and the question was not pressed. We find no error in this regard.

The fourth assignment of error is upon the refusal of requests to charge presented by the defendant below, particularly the second request; and the giving of the third and sixth requests presented by the plaintiff below.

Defendant’s second request sought to limit its liability to $3,000 pursuant to the provisions of Sec. (4238-ol) It. S. (See. 6243 G. C.), which provides that:

‘ ‘ In any action brought by an employer, or his legal representative, against his employer, to recover for personal injuries, when it shall appear that the injury was caused in whole or in part by the negligent omission of such employer to guard or protect his machinery or appliances, or the premises or place where said employee was employed, in the manner required by any penal statute of the state or United States in force at the date of the passage of the act, the fact that such employee continued in said employment with knowledge of such omission, shall not operate as a defense; and in such action, if the jury find for the plaintiff, it may award such damages not exceeding, for injuries resulting in death, the sum of five thousand dollars and for injuries not so resulting, the sum of three thousand dollars, as it may find proportioned to the pecuniary damages resulting from said injuries. ’ ’

This section is claimed to be applicable because.plaintiff’s cause of action arises under Sec. 4364-86 R. S. (Sec. 1027 G-. C.) which provides:

‘ ‘ That all persons, companies or corporations operating any factory or workshop, where emery wheels or emery belts of any description are used, either solid emery, leather, leather covered, felt, canvas, linen, paper, cotton or wheels or belts rolled or coated with emery or corundum, or cotton wheels used as buffs, shall provide the same with blowers, or similar apparatus, which shall be placed over, beside or under such wheel's or belts, in such a manner as to protect the person or persons using the same from the particles of dust produced and caused thereby, and to carry away the dust arising from or thrown off by such wheels or belts while in operation, directly to the outside of the budding, or to some receptacle place, so as to receive and confine such dust.”

Some confusion appears to have been interjected, intentionally or otherwise, into the trial of this case in regard to the presence and function of blowers. As we view the record, the presence or absence of blowers is utterly immaterial. Their function is to dispose of dust, etc., so that the operator’s health shall not be injured by inhaling the same, etc. It can not be assumed that they have any function whatever in respect to intercepting objects that are thrown by the wheels across the room in which the work is being done. There is, therefore, no ground for invoking these statutes. In the final state of the pleadings these statutory provisions are not invoked by the plaintiff, and the defendant was clearly not entitled to invoke the limitation of liability therein prescribed.

Not less plainly unwarranted are the two requests, Nos. 3 and 6, which were presented by the plaintiff below, given by the court, and excepted to by the defendant. They are both misleading. Without quoting them at length it suffices to say that they confuse the kindred but distinct doctrines of employee’s risk, as applied to the ordinary hazards incident to the employment, on the one hand, and on the other hand, to the defects and dangers which are not naturally incident to the employment but of which the employee has notice. Unless this distinction is observed and allowance therefor properly made, it is misleading to say that “injuries that result from the negligence of the master are not assumed,” or that the rule of assumed risk “presupposes that the master has exercised due care, as above defined, in providing a reasonably safe and proper place to work, and reasonably safe machinery for the performance of the required services.”

The language thus employed, and indeed we believe the entire context of both these requests is taken from opinions of the Supreme Court; but it is to be remembered that since the reporter’s note of August, 1857, prefacing 6 Ohio St. 5, the syllabus and not the opinion of the judge who announced the decision of the court in any case is to be taken as the authoritative expression of the precise point of law therein adjudicated. Moreover, it will not do to take language out of an opinion of a court which is entirely correct so long as it is understood as applying peculiarly to the facts of the ease then in hand and charge the same in another case involving a different state of facts as a correct statement of law applicable thereto.

It follows from what has been said that these requests should not have been given because they were misleading and inaccurate as applied to the facts in this case.

The fifth assignment of error is upon the refusal of the motion for a new trial, because of newly-discovered evidence. We do not think, however, that such diligence was shown in respect to procuring the evidence in question at the time of the trial of the cause as to warrant the granting of a new trial for that reason. Nor is the excuse that counsel for the defendent below expected the plaintiff to produce the witnesses from whom this testimony might have been derived at all adequate. The defendant had opportunity to present evidence afterwards, but faded to take advantage of it. The fact that they had not time to communicate with the witnesses and find out whether their testimony would be favorable or unfavorable, if it be a fact, is of no moment.

The sixth and last assignment of error is upon the refusal to grant a new trial for alleged misconduct of counsel below in argument to the jury. We think there was decided misconduct in the use of the following language in the argument of counsel for plaintiff below to the jury.

‘ ‘ And the first thing this defendant did when this suit was brought was to compel this poor girl to give security for costs. This girl worked at this shop at a dollar a day. No wonder men become millionaires when they employ girls at such niggardly wages. You should give something as a wholesome example to this defendant in this case. Let your verdict be so large that it will be a lesson and punishment to this defendant to obey the law.”

It is true that the court subsequently instructed the jury as follows:

“In your deliberations you should entirely disregard what counsel for plaintiff said about a motion having been filed in this case to compel plaintiff to give security for costs, and not allow the same, even if the same were true, to influence your verdict in any particular. That is a right which resident defendants have to be indemnified against the liability for costs which a non-resident plaintiff would make in the prosecution of an action in court.”

In the Toledo, St. L. & W. Ry. v. Burr & Jeakle, 82 Ohio St. 129 [92 N. E. 27; 137 Am. St. 771], the court says of a statement no more prejudicial than that above quoted from the argument of counsel for plaintiff below:

“That the statements thus made by counsel transcended the bounds of legitimate argument and were grossly improper, is both obvious and conceded, but it is claimed that any prejudicial effect which such statements may have had was removed or cured by the subsequent action of court and counsel. This conclusion we think, by no means follows, nor does it affirmatively appear in this ease that such conclusion is justified by the facts. While it is true that courts of last resort have frequently, though not uniformly, held the rule to be, that the prejudice, if any, resulting from the misconduct of counsel in argument to the jury may be eliminated or cured by the prompt withdrawal of the objectionable statements made by counsel accompanied by an instruction from tbe court to tbe jury to disregard sucb statements, yet this rule, so far as our examination of tbe authorities bas disclosed, is recognized and applied by tbe courts in those eases only, where it is made to appear by the record from a consideration of tbe character of tbe statements made, that their prejudicial effect bas probably been averted by sucb withdrawal and instruction.”

Continuing tbe opinion, tbe learned judge points out, “tbe question of defendant’s negligence and consequent liability was at best a very close question of fact, involved in much uncertainty and doubt.” And that:

“Tbe attempted withdrawal of these statements from tbe jury was wholly impotent to rid them of tbe mischievous inference that they were nevertheless true, and was utterly ineffectual to dislodge or remove from tbe minds of the jurors tbe harmful impression, which sucb statements were calculated, and obviously intended to produce. No other rational conclusion can be reached in tbis case than that plaintiff’s counsel by tbe making of sucb statements intended thereby and in that way to get before tbe jury a fact which be was not entitled to, and one which from considerations of public policy tbe law forbade should be mentioned on tbe trial, and tbis for tbe sole and obvious purpose of inducing in tbe minds of tbe jury tbe impression or belief, that tbe railroad company in making sucb offer bad, indirectly at least, confessed and admitted its liability. Manifestly tbis was tbe purpose of counsel’s statements, and we think it impossible to say in tbis ease that sucb was not their effect. While it should perhaps be said, that after objection made, court and counsel did all in their power to counteract and overcome tbe effect of these improper and prejudicial statements, yet, tbe mischief had been done, tbe poison bad been injected, and that which thereafter occurred was not, in our judgment, a sufficient antidote. It is tbe policy of the law to encourage tbe settlement of legal controversies, and hence it does not permit an offer of compromise to be given in evidence as an acknowledgment or admission of tbe party making it, and tbis salutary rule, which is grounded upon consideration of public policy, just as imperatively forbids that tbe fact that sucb offer was made shall be mentioned or commented upon by counsel in argument to tbe jury, and when it is, unless it shall clearly appear from tbe record in tbe particular case that tbe verdict of tbe jury was not affected thereby, tbe misconduct is sucb as to require in tbe due administration of justice, that a new trial be granted therefor. The view that misconduct of counsel such as is complained of in this case is sufficient to warrant and require the granting of a new trial unless it be made to appear that the verdict of the jury was not in any manner influenced thereby, is fully supported by the several cases cited in the brief of counsel for plaintiff in error, and by many others.”

For the reasons thus expressed, we think the court below erred in the case at bar in refusing to grant a new trial for misconduct of counsel.

For error, therefore, in charging the jury in accordance with requests Nos. 3 and 6 by the plaintiff below, and in refusing a motion for a new trial, because of misconduct of counsel for the prevailing party, the judgment is reversed and the cause remanded for a new trial.

Marvin and Winch, JJ., concur.


source: Caselaw Access Project

author: HENRY, J.

license: Public Domain

text:
    MUNICIPAL CORPORATIONS
    [Lorain (8th) Circuit Court,
    September 28, 1910.]
    Henry, Marvin and Winch, JJ.

      Ely Realty Co. v. Elyria (City).
    Dedication Carries Right for Reasonable Grade.
    When land is dedicated for a street, the dedication carries with it the right to improve to a reasonable grade.

      E. G., II. C. and T. C. Johnson, for plaintiff in error.

      II. A. Pounds, for defendant in error.

       Affirmed no opinion, Ely Realty Co. v. Elyria, 86 Ohio St. 328.

   HENRY, J.

The parties stand here as they stood below. There the action was one to recover damages occasioned by the placing of the abutment of a high level bridge across Black river in the highway in front of plaintiff’s land in the city of Elyria. The highway was originally dedicated to the river’s edge by Herman Ely, the founder of the city, and a predecessor of the plaintiff in the ownership of said land. The petition, though intimating that the dedication was never accepted, nevertheless alleges that the location of the bridge abutment is a public highway. The city, it may be fairly inferred from the petition, had, by proper proceedings taken shortly before constructing the bridge, caused the highway to be extended in contemplation of law across the river to a corresponding highway on the opposite bank. Then it proceeded to effect what amounts to a very considerable change in the actual grade, by building said high level bridge. The abutments constitute a substantial impediment to ingress and egress to and from plaintiff’s land. No previous legal grade had, however, been established, and plaintiff’s land is unimproved.

Under these circumstances we are unable to distinguish the case from the long line of authorities which establish that a reasonable grade when first fixed by the public authorities, however much it may alter the actually existing surface of a highway, affords no ground for the recovery of damages by abutting lot owners. Their plight is expressed in the maxim damnum absque injuria. Where land is dedicated for a street the dedication carries with it the right to improve the street to a reasonable grade.

The facts of Cohen v. Cleveland, 43 Ohio St. 190 [1 N. E. 589] are admittedly such as to distinguish it from the case at bar. It will be remembered that the facts of that case are these (I read from the syllabus) :

“Under the acts of 1872 and 1876 (69 O. L., 138, 73 Ohio Laws, 107), a viaduct sixty-four feet wide, with a level roadway was constructed in Cleveland across the Cuyahoga river. On the south side of Superior street, between Water street and the river, a distance of 768 feet, the city condemned a strip of ground, and the viaduct was constructed over that strip and over part of Superior street, about thirty-seven feet being over the strip opposite Cohen’s premises, and the balance over the street, so that in effect Superior s'treet, which was ninety-three feet wide, is reduced in width between Water street and the river, and opposite Cohen’s premises its present width is sixty7six feet. The elevation of the roadway of the viaduct above Superior street gradually increases from Water street to the river, and opposite the premises of Cohen which are on the north side of Superior street, midway between Water street and the river, the elevation is forty-five feet and it is alleged that the viaduct diverts travel from that part of Superior street, impairs the light and air-to Cohen’s premises, causes noise and the jarring of his house day and night, and has impaired the value of his property and reduced its rental value. Held-.
“1. The viaduct is a lawful structure.
“2. On proof of the alleged injury, Cohen is entitled to damages.
“3. Cohen is not owner of a lot ‘bounding or abutting upon the proposed improvement,’ within the meaning of the municipal code, Sec. 564, and hence it was not necessary for him to file a claim for damages under that section.”

We do not consider that that decision is applicable to the facts of the case before us, and while the facts here undoubtedly present some elements that have not been present in any cases of the sort referred to in the long line of decisions of the Supreme Court of this state, yet we thini that the facts are to be assimilated to the change of grade cases where no grade had previously been established, and the demurrer to the petition below was properly sustained, and the judgment is affirmed.

Marvin and Winch, JJ., concur.


text:
    CONTRACTS
    [Lorain (8th) Circuit Court,
    September 28, 1910.]
    Henry, Marvin and Winch, JJ.
    A. A. Hartzell v. H. A. Oehlke.
    Action on Advertising Contract for Part Performed and on Breach for Balance on Notice to Discontinue.
    In an action on a contract for publication of advertising matter, when it appears that tbe defendant notified the publisher to discontinue the publication, the publisher is entitled to recover for advertising published up to the date of the notice and damages for breach of the balance of the contract; he can not disregard the notice, continue the publication and thereafter recover full compensation as provided in the contract.
    Error.

      Webber <& Metealf, for plaintiff in error.

      G. A. Beseh and Van Deusen & Calhoun, for defendant in error.
   HENRY, J.

The parties to this proceeding in error stand related here as they stood below. The plaintiff .there recovered a judgment (which he deems to be inadequate in amount), in his action for the entire compensation provided for by the terms of a written contract which his petition alleges to have been fully performed on his part. The agreement between the parties is styled “Advertising Contract” and is dated “Lorain, 0., Aug. 26, 1908.” It provides in substance that Hartzell was to publish in the programs of the Majestic Theater in that city at every performance during the season of 1908-9 such advertising copy to occupy two spaces of 2% by 5% inches each at top of page as the defendant Oehlke, a merchant of Lorain, should supply from week to week for that purpose, to be paid for at the price of one dollar for each performance, payable weekly.

Upon the trial it appeared that Oehlke had notified the plaintiff that he would not be bound by the agreement any longer and requested that the publication of his advertisement be discontinued. Hartzell ignored this notice and request, continued the publication throughout the season, and sued for the. whole amount stipulated in the contract, on the theory, apparently, that the agreement remained in full force, unaffected by the renunciation, and that it had been completely executed by him. The answer set up the repudiation of the contract and alleged that it had been procured by fraud and false representations. The verdict eliminated the issue of fraud by affirming the validity of the contract, under proper instructions of the court in that behalf; but, under the charge of the court, the verdict could and did embrace only the amount of the earned installments of compensation which accrued before the contract was repudiated. The court thus instructed the jury:

“Ordinarily, in a proper action for breach of contract the plaintiff would be entitled to recover the damage which the evidence showed he suffered as the natural and necessary consequence of the breach of said contract by the defendant which he admits he committed when he served notice on the plaintiff thirty days after the contract was signed, but if such was this action, even if the contract was valid, the defendant had a right to stop its further performance by the plaintiff, being liable in damages in a proper action for so doing; but after tbe defendant repudiated the contract and ordered the plaintiff to discontinue its performance, the plaintiff could not add to his damages by disregarding the repudiation and continuing performance.
“But this is not such an action. This is an action on the contract, and if the contract was a valid contract the plaintiff can, if he chooses, sue for and recover pay at the contract price for so much as was due under the contract at the time of repudiation, and in this action that is all he can recover. The fact that it cost the plaintiff to continue the publication after repudiation of the contract by the defendant or that defendant might have derived some benefit from the continued publication, has nothing to do with the amount which plaintiff is entitled to recover in this action, and there being no evidence of damage for breach of contract in this case, if you find that the contract is valid, not void for fraud, you will return a verdict for the plaintiff for the amount which was due at the contract price for the publication at the time of the repudiation, together with interest thereon from the time of the repudiation to the first day of this term of court, which was April 4, 1910.”

This charge accords with the doctrine laid down in 3 Page, Contracts, Sec. 1435 et seq. A similar case is Ward v. American Health Food Co. 119 Wis. 12, [96 N. W. 388], the last three paragraphs of the syllabus of which are as follows:

“Defendants contracted with plaintiffs to place their advertising cards in certain railway cars in a manner provided from June 19, 1900, up to and including July 10, 1901. The contract also provided that ‘non-use of space from advertiser’s act or omission was the advertiser’s loss.’ Held: That the contract did not constitute a sublease of space which had been let by the owners of the cars to plaintiffs, but was a contract for plaintiffs’ personal services, and was, therefore, executory until the date provided by the contract for its termination.
“Where defendants contracted with plaintiffs for certain advertising to be placed in railroad cars for a period of twelve months, the contract being executory before termination of the contract period, defendants were entitled to stop further performance on plaintiffs’ part and limit their further liability for remaining period to damages sustained from breach of the contract.
“Defendants contracted with plaintiffs for certain advertising to be placed by plaintiffs in certain railroad cars for a period of twelve months. On the expiration of two months and seventeen days defendants directed plaintiffs to remove the cards, which they failed to do, and after the expiration of the twelve months brought suit to recover the contract price, alleging full performance. Reid ■. That defendant’s notification constituted a breach of the contract, and hence, under the complaint, plaintiffs were only entitled to recover the contract price for the two months and seventeen days during whieh the contract was performed prior to the breach.”

I am not sure that this syllabus is the syllabus prepared by the court for the official reports, but it is sufficiently well prepared to reflect the view which the court takes of the case, the facts of which are strikingly like, those in the case at bar.

An advertising contract of this sort being thus deemed to be a contract for personal services the rule in this jurisdiction may be found in James v. Allen County, 44 Ohio 8t. 226 [6 N. E. 246; 58 Am. Rep. 821], where Spear, J., at page 287 says:

“As a result from the authorities, as well as upon principle, we are satisfied that in such a contract as the one in the case at bar, where the employe is wrongfully dismissed, but all wages actually earned up to that time are paid, the only action the employe has, whether he bring it at once or wait, until the entire period of hire has expired, is one for damages for the breach of the contract, and the measure of'damages will be the loss or injury occasioned by that breach.”

Some of the reasoning of the court in the opinion in the case of James v. Allen County, supra, is not applicable to the facts before us now, and with respect to the line of reasoning here indulged it may be asserted, and it has occurred to our minds, that there is a difficulty arising from the fact that Hartzell in this case continued to perform the contract, or to perform the things contemplated by the contract as originally made, throughout the full contract period and then sued alleging full performance and praying for the contract price or pay for his services so rendered.

The answer to the suggestion of difficulty arising from that plain statement of facts of the case is to be found, we think, in this: that from the moment of the renunciation of the contract, wrongful though it be, the relationship of employer and employe, the status of empoyment, is terminated and thenceforward the things done in attempted fulfillment of the contract are not done in pursuance of the relationship which the contract creates, that relationship having been terminated by the repudiation of the contract. So that no action for wages or compensation, or pay, for the period elapsing after the contract is so repudiated can be maintained, and the only action, as Judge Spear says, that can be maintained under such a state of facts is an action for damages for breach of contract. There is no hint or suggestion in the petition in this case that such was the theory of the pleader when he prepared the petition that was filed in the court below. His theory was simply that the contract remained in full force and effect and that he had fully performed it, and he was entitled to the pay which was provided for.

The trial court, we think, correctly charged the jury and we find no error in the charge nor elsewhere in the record, and the judgment below is affirmed.

Marvin and Winch, JJ., concur.


author: HENRY, 3.

text:
    EMBEZZLEMENT
    [Stark (5th) Circuit Court,
    July 21, 1910.]
    Metcalfe, Henry and Marvin, JJ.
    Judge Metcalfe of Seventh Circuit and Judges Henry and Marvin of Eighth Circuit, sitting in place of Fifth Circuit Judges.
    William L. Davis v. State.
    Officer of State Bank Withdrawing Shares of Stock Hypothecated as Security for His Debt.
    An officer of a state bank, incorporated under the free banking act, who withdraws from its custody certain certificates of partially paid up shares of its capital stock, owned by him and by him hypothecated to it as additional security for an antecedent debt due from him to said bank, can not be convicted under Sec. 3821-85 R. S. (Sec. 12474 G. C.) of abstracting property of said bank.
    Error.
   HENRY, 3.

The plaintiff in error, an officer and director in the Canton State Bank, incorporated under the free banking act, was convicted of abstracting from it certain certificates of partially paid-up shares of its capital stock, owned by him and by him hypothecated as additional security for an antecedent debt due from him to said bank, the same being in alleged violation of See. 3821-85, E. S. (Sec. 12474 G. C.) which reads as follows: M

‘ Every president,, director, cashier, teller, clerk or agent of any banking company, who shall embezzle, abstract or wilfully misapply any of the moneys, funds, or credits of such company, or shall, without authority from the directors, issue or put forth any certificate of deposit, draw any order or bill of exchange, make any acceptance, assign any notes, bonds, drafts, or bills of exchange, mortgage, judgment or decree, or shall make any false entry in any bank book, report or statement of the company, with intent in either case to injure or defraud the company, or any other company, body politic or corporate, or any individual person, or to deceive any officer of the company, or any agent appointed to inspect the affairs of any banking company in this state, shall be guilty of an offense, and, upon conviction thereof, shall be confined in the penitentiary at hard labor, not less than one year, nor more than ten years.”

Among the errors assigned is the fundamental one that the first count of the indictment, being the one on which the conviction was had, states no offense. This count charges that:

“William L. Davis and Corwin D. Bachtel, late of said county, on or about the 13th day of December, in the year of our Lord one thousand nine hundred and four, at the county of Stark aforesaid, said William L. Davis being then and there an officer, to wit, vice-president and a director of the Canton State Bank, a corporation, incorporated and organized as a banking company under the law of the state of Ohio, known as the free banking act passed 1851, by the Legislature of Ohio, and which banking company, on or about the 25th day of December, 1904, and at the time of the abstraction of the personal property of said banking company, to wit, the certificates of stocks as hereinafter described, was doing a banking business in the city of Canton, Stark county, Ohio, as a free banking company, and said Corwin D. Bachtel being then and there and at the time an officer, to wit, the cashier and director of the Canton State Banking^ Company, certain property, to wit, certain certificates for 350 shares of the capital stock of said banking company, to wit, certificate No. 20 for 100 shares, certificate No. 181 for 100 shares, certificate No. 223 for 100 shares, certificate No. 244 for 40 shares and certificate No. 256 for 10 shares, which said certificates of stock had theretofore been issued by the said Canton from the said, the Canton State Bank, and which said certificates of stock had theretofore been hypothecated by the said William L. Davis with the said Canton State Bank, as security for moneys theretofore received by the said William L. Davis from the said, the Canton State Bank, and which said certificates were of the face value of fifty ($50) dollars per share, and upon which had been paid thereon the sum of thirty ($30) dollars per share, and which said certificates were then and there of the value of one hundred and five thousand ($105,000) . dollars, of the personal property of and belonging to the said the Canton State Bank. They, the said William L. Davis and Cor-win D. Bachtel, officers of the said the Canton State Bank, as aforesaid, did, at the time and date aforesaid and at the county aforesaid, with the intent on their part to injure and defraud the said the Canton State Bank, unlawfully and fraudulently abstract from the possession of the said the Canton State Bank said certificates of stock heretofore described without the authority of any of the other officers and directors of the said the Canton State Bank, and thereby did defraud and injure the said the Canton State Bank.”

The alleged insufficiency of this indictment is predicated upon the provisions of See. 11 and 12 of the Free Banking Act, Secs. 3821-70 and 3821-71 R. S. (Secs. 9683 and 9684 G. C.) as follows:

“Sec. 11. The capital stock of every company shall be divided into shares of fifty dollars each, which shall be deemed personal property, and shall only be assignable on the books of the company, in such a manner as its by-laws shall prescribe; each bank shall have a lien upon all stock owned by its debtors, and no stock shall be transferred without the consent of a majority of the directors, while the holder thereof is indebted to the company.
“See. 12. No company shall take, as security for any loan or discount, a lien upon any part of its capital stock; but the same security, both in kind and amount, shall be required of shareholders as of persons not shareholders; and no banking company shall be the holder or purchaser of any portion of its capital stock, or of the capital stock of any other incorporated company, unless such purchase shall be necessary to prevent loss upon a debt previously' contracted in good faith, on security which, at the time, was deemed adequate to insure the payment of such debt, independent of any lien upon such stock; and stock so purchased shall in no case be held by the company so purchasing, for a longer period of time than six months, if the same can be sold for what the stock cost, at par.”

It will be noticed that these statutes give to a free banking corporation a lien upon all stock owned by its debtors, and provide that “no stock shall be transferred without the consent of a majority of the directors while the holder thereof is indebted to the company.” They- further provide that “no company shall take, as security for any loan or discount, a lien upon any part of its capital stock,” and “that no banking company shall be the holder or purchaser of any portion of its capital stock * # # uniess such purchase shall be necessary to prevent loss upon a debt previously contracted,” etc. The certificates of stock in the case before us were not transferred upon the boobs of the company from the name of the plaintiff in error to that of the defendant in error, so as to make the bank “the holder or purchaser of any portion of its capital stock” represented by such certificates. The only possible property interest, which could have been contemplated by this transaction as passing from Davis to the bank, in and to the certificates in question or the portion of the bank’s capital stock which they represented, was that of a pledge, or the lien created by a deposit of certificates of stock as collateral security for a debt owing by the bailor to the bailee. But the object thus contemplated is specifically prohibited by the statutory provision already quoted, that “no company shall take as security for any loan or discount a lien upon any part of its capital stock. ’ ’ This prohibition is, if possible, made more specific by the circumstance that the statute provides that such “bank shall have a lien upon all stock owned by its debtors, ’ ’ and this without the necessity of any deposit, contract or other transaction whatsoever; and by the further circumstances that the statute expressly allows the outright purchase by the bank of its stock owned by its debtor when “necessary to prevent loss upon a debt previously contracted in good faith, ’ ’ etc. The property rights in its own stock which a free banking corporation may not have, and those also which it may or does have, are alike defined and limited by express provisions of law, and such enumeration is necessarily exclusive.

It follows that the deposit by Davis of his certificates of stock with the bank, and the acceptance of such deposit by the bank, for the purpose of creating a lien thereon or upon the stock represented thereby, was ultra vires and in contravention of an explicit provision of the statute by which the bank was created and under which alone it could lawfully do business. The transaction was vain and nugatory. It could accomplish nothing beneficial to the bank, for the bank had its statutory lien: and if a pledgee’s lien be supposed to be in any respect superior to or different from the statute lien, the bank could derive nothing therefrom, because such superiority, or difference, if any, transcended the express limitations upon the bank’s authority to have or enjoy a lien upon its own stock.

In this posture the transaction between the parties rested at the time the alleged offense was committed.

The bank, having gained no advantage by the transaction could suffer no detriment by its undoing. Davis has lost no rights in the certificates of stock and could work no wrong upon the bank by repossessing himself thereof. It was the continuing duty of the parties to undo the illegal thing which they had done in the making and accepting of such deposit. If Davis had at any time demanded of the directors a return of his certificates, they would have had but one lawful course open to them, to wit, to comply with such demand. Davis, as an officer and director of the bank, having access to the certificates, which were all the time his own property, could, without trespass, taken them into his own possession, either with or without demand made or permission had. His doing so was not an offense. He did not “ embezzle, - abstract or wilfully misapply any of the moneys, funds or credits of such company” by taking his own certificates, which he had the immediate, continuing and absolute right to possess. He could not and did not take the entire property nor indeed any property beyond what he all the while had in the stock represented by those certificates; nor did he deprive the bank of the statutory lien which it had and retained therein.

There may be and doubtless are cases in which certificates of stock, as the evidence of ownership of some portion of the capital stock of a corporation and the muniments of title which pass from hand to hand by way of symbolical delivery of possession of the intangible property which they represent, may be considered as the stock itself. Bnt it must not be forgotten that, as clearly set forth by Crew, J., in Ball & American Exchange Bank v. Towle Mfg. Co., 67 Ohio St. 306, 314 [65 N. E. 1015; 93 Am. St. 682] it is an

“Erroneous assumption and mistaken notion that the stock itself follows the certificate, and that possession of the certificate is possession of the stock. There is a marked and obvious distinction between the stock óf a corporation and the certificate representing such’stock. The certificate of shares of stock in a corporation is not the stock itself, but is a mere evidence of the stockholder’s interest itself, in the corporate property of the corporation which issues said certificate (Cook, Stocks and Stockholders, Sec. 485). In the absence of statutory or charter requirement no certificate of stock is necessary to attest the rights of the shareholder in the corporation, and such certificate when issued to the owner of shares of stock is merely an evidence or acknowledgment of the owner’s interest in the property of the corporation, but is not the property itself. In law a corporation is the trustee of the corporate property and holds the same for the benefit of the stockholders, and so long as such corporation continues to have a legal existence and to carry on the business for which it was created, it alone is the proper custodian, and has possession of the corporate property. In Cook on Stocks and Stockholders, Sec. 480, the author says:
“ ‘It has been held that if a.stockholder whose stock has already been attached or sold on execution sells his certificate of stock after the levy of such attachment or execution, the vendee or transferee buys subject to such levy, even though he had no knowledge of it. The stock in contemplation of law has already been seized by the levy, and the purchaser is bound to take notice of that fact. The only means of avoiding this danger in the_ purchase of stock is by an inquiry at the office of the corporation at the time of making the purchase.’ ”

The circumstances of this case are such as to make this distinction both germane and necessary.

From what has been said it follows that all the proceedings in the trial upon the first count of the indictment were erroneous, and that the judgment of conviction is contrary to law.

Reversed.

Metcalfe and Marvin, JJ., concur.


author: MARVIN, J.

text:
    GUARANTY
    [Cuyahoga (8th) Circuit Court,
    March 20, 1911.]
    Marvin, Winch and Henry, JJ.
    C. F. Gunther v. F. O. Pfaffman.
    1. Formal Acceptance of Guaranty not Necessary to Hold Guarantor.
    No formal acceptance of a guaranty of credit to be extended to a third person is necessary to make it binding upon the guarantor.
    2. Guarantor of Credit cannot Compel Credit of Payments by Debtor on Guaranteed Items.
    In the absence of directions to that effect, one who guarantees any indebtedness incurred by a third party to plaintiff after a certain date, is not entitled to have payments thereafter made by the debtor to the plaintiff credited on the guaranteed items rather than on earlier items not guaranteed.

      M. B. <& II. H. Johnson, for plaintiff.

      B. H. Lee, for defendant.
   MARVIN, J.

The parties here are as they were in the court below. The plaintiff sued the defendant upon an account for goods sold and delivered by plaintiff to W. P. Chase Company, the payment for which goods, the plaintiff says, was guaranteed by the defendant. The case was tried to the court without a jury, by consent of parties. At the close of plaintiff’s evidence the court sustained the motion of the defendant for judgment in his favor; plaintiff duly excepted.

If there is such guarantee it is found in letter of defendant to plaintiff, dated February 19, 1908, which reads:

“C. F. Gunther, Co., Chicago, 111.
“Gentlemen:
“I have just received a letter from W. P. Chase & Co. of Los Angeles, in which they state that you are pressing them a little too hard for money and asking me to explain matters to you.
“I called on this firm during the early part of January and was very favorably impressed by both Mr. Chase and Mr. Crane. We have done business with them for a number of years and they always gave us good results for the same.
‘ ‘ However, I will confess franMy that they impressed me as being honest, able and aggressive, but somewhat short on cash. In other words, they were long on brains but short on cash.
“I quickly realized that they would be able to accomplish wonders with the necessary amount of cash and I volunteered to back them. I will make this prophesy; that they will be the most prominent brokerage house in Southern California within the next year, and will have their choice of accounts from all over the United States, as they are running the brokerage business on correct and up-to-date lines. Any appreciation shown them at present will be amply rewarded in the near future.
“If there is any question in your mind regarding the possibility of losing money on them, I will go on record as guaranteeing you against any loss you may have in giving them credit. Furthermore, I will assure you that within the next 90 days they will be in a position to pay promptly for everything. Should you at any time become alarmed regarding their financial condition or think it good business to break off connections with them and want your money immediately, inform me and after I have them O. K. the amount, I will send you a check by return mail. There is not another concern in the United States whom I would guarantee in this manner. I am not casting any reflections on the honesty of any other concerns, but I wish to impress upon you the fact that when it comes to ability and integrity W. P. Chase & Co. stand out prominently on the Pacific Coast.
“Tours very truly,
“F. 0. Pfaffman.”

At the time the letter was written Chase & Co. were indebted to plaintiff in a considerable amount. After the letter was written the plaintiff sold goods in considerable amount. Payments were made from time to time by Chase & Co. to plaintiff on account, after receipt of this letter. The amount of such payments was in excess of the amount of goods sold, within the same time and was also in excess of the amount owing at the time the letter was written, but was less than the aggregate amount of the debt existing at the date of the letter and the sale made subsequent to such date, so that at the close of the business between the parties, there was remaining due to the plaintiff the sum of $986.64. This amount was admitted by the counsel for the defendant, as appears at page 4 of the bill of exceptions.

The real questions arising in the ease are:

Did the defendant give an absolute guarantee for payment of goods which plaintiff should furnish to Chase, after February 19th?

If not, did he give a conditional guarantee, the conditions of which have been complied with ?

If either of the above is answered in the affirmative the question remains, is the defendant entitled to have payments made by Chase to plaintiff after February 19, 1908, credited upon the account accruing after the same date rather than upon indebtedness existing at that date.

The language of the letter taken as a whole seems clear that the defendant meant to do more than simply to express great confidence in Chase & Co. as urged on part of the plaintiff in error. True, it does this and in strong language, before the fourth paragraph of the letter was reached; this paragraph reads: “If there is any question in your mind regarding the possibility of losing money on them I will go on record as guaranteeing you against any loss you may have in giving them credit. ’ ’ Then follows an assurance that they would be in condition to pay promptly within 90 days for everything. Certainly up to this point of the letter sufficient confidence in Chase & Co. had been expressed to satisfy anyone that defendant had full faith in that firm and desired to impress that faith upon the plaintiff, but defendant was not content with this, he decided to go further and so added, as a new and additional sentence: “Should you at any time become alarmed regarding their financial condition, or think it good business to break off connections with them, and want your money immediately, inform me and after I have them O. K. the amount, I will send you check by return mail. ’ ’ If, after this language is used, there could be any doubt that defendant intended that this should be an absolute guarantee and should be so understood by plaintiff, it would seem to be settled by the next sentence which reads: “There is not another concern in the United States whom I would guarantee in this manner.”

Surely he did not mean that this was not the only concern of which he would speak in high terms of praise, but for this firm he would go further and guarantee the payment for goods which they might purchase from the plaintiff.

That this was understood by the plaintiff to be a guarantee absolute, and that the defendant was so notified by him is evidenced by plaintiff’s letter to defendant of February 24, 1908, which begins with these words:

“We have your letter dated February 19th, guaranteeing Mr. Chase and Chase’s Brokerage account in Los Angeles for which we thank you.”

If there was any necessity for acceptance of the guarantee in order to hold defendant, surely this letter with the continuing to sell goods to Chase & Co. was sufficient. Under the Ohio authorities, no formal acceptance is necessary. Stearns; Suretyship, Sec. 66; Powers & Weightman v. Bumcratz, 12 Ohio St. 273; Birdsall v. Heacock, 32 Ohio St. 177 [30 Am. Rep. 572].

That the defendant understood this to be a guarantee is clearly, evidenced by his letter to plaintiff of September 18th, 1908, in which he says:

‘ ‘ This replies to yours of the 16th inst. requesting me to pay certain bills of the W. P. Chase Co. of which I guaranteed the payment. I am surprised to note that it amounts to such a great amount. I will take the matter up with W. P. Chase Co. immediately, and have the account verified, and then I will take care of you. Kindly note, until further notice, I will not be responsible for any more of W. P. Chase Company’s accounts.”

. Counsel for defendant in error urges very strenuously that contracts of guarantee, like all other contracts, must be construed so as to carry them out in accordance with the understandings of the parties, and cites numerous authorities in support of this proposition. What has already been said seems to establish that both the plaintiff and defendant understood this to be a guarantee, and we hold that it was.

If it be said that there was a condition to this guarantee that it should be operative only when plaintiff should become alarmed, “or think it good business to break off connections with Chase & Co. and want his money immediately,” this condition is surely met by the letter of September 16, 1908, written by plaintiff to defendant in which this is said:

“You stated in your guarantee, that at any time we were dissatisfied with the account, you would send us a check for .same. Now we would appreciate it very much if you would attend to this at once, as we do not care to continue doing business with the W. P. Chase Company the way things have been running of late.”

As already shown, defendant by letter of September 18, 1908, to plaintiff, said he would immediately take the matter up with Chase & Co., and have account “verified” and remit amount to the plaintiff. This suit was not brought until March 20, 1909.

It does not appear that defendant did or did not learn from Chase & Co. whether the account was all right, but he admits at the trial, that it is, and as Chase & Co. notified plaintiff on October 9, 1908, that the account was correct to the amount of $884.59, as shown by letter of that date sent with statement to plaintiff, the defendant is not to be relieved because it is not affirmatively shown that he got direct notice from Chase & Co. before the trial, or before suit was brought that the account was O. K.

As to the application of payments made after the date of the letter of guaranty upon the prior indebtedness, as he did, the guarantor was not entitled to have them applied to the latter account in the absence of and direction to that effect being given to the plaintiff at the time the payments were made. Birdsall v. Seacock, supra, Gaston v. Barney, 11 Ohio St. 506, and Stearns’ on Suretyship, Section 96, and authorities there cited.

We come then to the conclusion that the court erred in dismissing the petition and the judgment is reversed as being contrary to law.

Winch and Henry, JJ., concur.


text:
    MASTER AND SERVANT — NEGLIGENCE
    [Cuyahoga (8th) Circuit Court,
    March 20, 1911.]
    Marvin, Winch and Henry, JJ.

      Interstate Engineering Co. v. Sam Colechia.
    Instructions as to Contributory Negligence Proper when Issue In Pleadings and Evidence._

      In a personal Injury damage case It is not error to charge upon the subject of contributory negligence, when that is made an issue by the pleadings, and there is evidence tending to establish the fact that the injury was received wholly as the result of the plaintiff’s negligence, not partly by reason of his contributory negligence.
    Error.

      Seaton & Paine, for plaintiff in error.

      Harry Payer, for defendant in error.

      Affirmed no opinion, Interstate Engineering Co. v. Colechia, 86 Ohio St. 318.

   MARVIN, J.

The parties here stand in relation inverse to that in which they stood in the court below, but will here be spoken of as in the original case.

The defendant is a manufacturing corporation, with its plant at Bedford in this county. The plaintiff was in its employ, and while in its employ on January 7, 1908, was severely injured by the falling of a heavy pile of angle irons upon him while engaged in his work. He claims that this injury was caused by the negligence of the defendant, and without any negligence on his part. The result was a verdict and judgment in favor of the plaintiff.

It is urged that this judgment should be set aside, first, because it is said that it is against the weight of the evidence. After a careful examination of the evidence, we are not prepared to say that this claim is well taken, and the ease can not be reversed upon that ground.

Without entering into details as to the facts, it is clear that if the plaintiff was entitled to recover, it was because of the negligence of one Joe Kelley, another employe of the defendant.

On the part of the plaintiff it is claimed that this man Kelley was his superior; that he had a right to direct him what to do; that he did direct and control him, and that therefore the negligence of Kelley was the negligence of the company.

On the part of the defendant it is claimed that Kelley had no authority over the plaintiff, but was his fellow servant on an equal footing with him; the defendant, by its answer, says that the accident was due entirely to the negligence of the plaintiff, but that if that be not true, the negligence of the plaintiff contributed to the injury.

The language of the answer in that regard is in these words :

“Second defense. Further answering and for a second defense defendant says that any injuries complained of (sustained by plaintiff) were due to the plaintiff’s own negligence in the premises; and further answering, defendant says that if it was negligent (which it denies) plaintiff’s own negligence contributed directly and proximately to the injuries which he sustained and about which he complains.”

The evidence of the plaintiff, if it be true, and certainly that evidence in connection with the evidence of Rigrio Riomundo, might well cause one to believe that Kelley was the superior of the plaintiff, but all the evidence taken together leaves the question in grave doubt; it is by no means clear however that the jury went wrong in finding that Kelley was the superior of the plaintiff. The injury was caused by the falling of these angle irons, already mentioned, upon the plaintiff’s legs, but the cause of such falling is in dispute. On the part of the plaintiff, evidence is given tending to show that it was because of the negligence of Kelley. On the part of the defendant the evidence tends to show that the accident was caused by the negligence of the plaintiff. The jury reached the conclusion that the injury was caused by the negligence of Kelley. Without reciting the evidence, though we have examined it with care, we are not prepared to say that the jury were wrong in reaching the conclusion that Kelley’s negligence was the cause of the injury.

It is claimed on the part of the defendant that there was no evidence tending to show that the plaintiff contributed by his negligence to his injury, but that under the circumstances and the evidence the injury was wholly caused by the plaintiff’s negligence, or wholly caused by the negligence of Kelley; that there was no contribution on the part of one to the other. The negligence of one or the other, the defendant says, was the sole cause of the injury. We are not prepared to say that the defendant might not, under this evidence, have made the claim that even though Kelley were negligent, the plaintiff’s negligence did not contribute to the injury. What has already been said sufficiently indicates that the case will not be reversed as being against the weight of the evidence.

Complaint is further made, however, that the court erred in its charge to the jury, in that the court instructed the jury upon the issue of contributory negligence, when it is claimed, as already stated, by the defendant, that no such issue was made by the evidence. Whether this claim can be maintained or not, we think there was no error in the charge of the court on the subject of contributory negligence, for the reason that this defense was set up in the answer, and thereby an issue was raised as to whether plaintiff contributed to the injury. Certainly, unless it was beyond the possibility of question that no reasonable claim could be made from the evidence that the plaintiff contributed in any degree by his negligence to his injury, it was proper for the court to charge upon the issue of contributory negligence as made in the pleadings, and we think it was proper, in any event, to charge upon it.

One of the paragraphs complained of in the charge is in these words:

‘ ‘ If these three charges, that is to say, first, that Kelley, was plaintiff’s superior, second, that he ordered plaintiff to assist as aforesaid, and third, that Kelley was negligent as aforesaid, if those three claims are proved by a preponderance of the evidence then your verdict should be for the plaintiff, unless it has also been proved by a preponderance of the evidence that plaintiff was himself negligent, his negligence contributing to his injury, in which state of the proof your verdict should be for the, defendant. ’v
“As to this claim that the plaintiff was negligent the burden of proof is upon the defendant. And the evidence bearing upon that question must preponderate in favor of the defendant’s claim of contributory negligence in order that you may find it proved. If it does not so preponderate then it is not proved and does not stand in the way of recovery, if a right of recovery is shown by the evidence relating to those other issues that I have stated.”

Another paragraph of the charge is in these words:

‘ ‘ I have said to you as to the claim made by the defendant that the plaintiff was negligent, that is negligence contributing to his injury, I have stated to you that upon that claim the burden is upon the defendant. There is an exception to that rule as to where the burden lies. If from the plaintiff’s own evidence, evidence produced by the plaintiff, there is a fair inference from the evidence that the plaintiff was negligent, his negligence contributing to his injury, then the burden would be upon the plaintiff to remove that inference. That circumstance, this inference fairly arising from plaintiff’s own evidence, places the burden upon him to clear himself of that inference. If such inference has arisen from the plaintiff’s own evidence then the burden as I have said would be upon him. If there is no such inference, then the general rules I have stated would apply and the burden would be upon the defendant. ’ ’

The fault that is found with this is that it places the burden of establishing the negligence of the plaintiff, upon the defendant. Whereas, it is said, that if the court had charged only upon the question of negligence on the part of the plaintiff as being the sole cause of the injury, this burden would not have been upon the defendant.

It will be noticed, however, by the language quoted in the charge, that it was only contributory negligence, the burden of proving which was placed upon the defendant. Indeed, no complaint could properly be made of the language used by the court, if the question of contributory negligence was in the case. We think it was in the case, because so made by the pleadings, and that the charge was not erroneous in the matter of placing the burden, and so we find no error in the record of this case, and the judgment is affirmed.

Winch and Henry, JJ., concur.


text:
    INJUNCTION — PARTY WALLS
    [Cuyahoga (8th) Circuit Court,
    March 20, 1911.]
    Marvin, Winch and Henry, JJ.
    Theresa Quigley et al. v. Fireproof Storage Co. et. al.
    Painting Sign on Side Wail of Building Extending over Adjoining Line Enjoined.
    One whose side wall has been erected over a few inches on the land of another without seasonable objection by the other, will yet be enjoined from thereafter painting a sign upon said side wall, upon complaint of such other.
    Error.

      Gyrus Looker, for plaintiffs in error.

      Henderson, Quail & Siddall, for defendant in error.
   MARVIN, J.

The plaintiff, Quigley, owns a parcel of land situated on the north side of Euclid avenue in the city of Cleveland. The defendants own a parcel of land immediately east of the above named plaintiff’s parcel, also abutting on Euclid avenue. On the parcel of land of the plaintiff Quigley, is a dwelling-house, occupied by the plaintiff Blau as a residence, under lease from the plaintiff Quigley. On the lot of the defendant is a large brick business block which extends southerly to the north line of the avenue; that is, it comes put clear to the front of the lot; whereas the dwelling occupied by the plaintiff Blau, stands back from the avenue about 50 feet. There is a dispute between the parties as to where the true boundary line between their properties is, but from the evidence we find that the true boundary line is as claimed by the plaintiffs; that is, some six inches further east than the claim of the defendant would make it.

It is admitted that if this be the true line between the lots, as we find that it is, the building of the defendant extends a few inches over upon the line upon the land of the plaintiff Quigley. It is not sought in this action to restrain the defendant from using its building to the full extent for which it was intended, or for which it can be used. It is probable that the plaintiff, Quigley, by failure to notify the defendant while the building was being constructed that her land was being encroached upon, could not now maintain an action in - ejectment or to enjoin the use of the building. In any event, that is not what she seeks here, but the defendant, at .the time this suit was begun, was proceeding to paint upon the west wall of its building a large sign, announcing its business as that of storing and moving furniture and other chattels. This sign, if completed, will contain a large picture of a moving van with a team attached to it, and upon the van the name of the company in large letters. This wall is of red brick, and the ground work upon which the sign is to be painted is already painted upon the wall in white, and a part of that which is to be painted on the white is already on. This painting will be so far to the front of the west wall of the building and so high from the ground as to be in plain sight of whoever sits at the windows of the residence of the plaintiff Quigley’s property.

In doing the work which has been done upon this sign the defendant has placed large coils of rope and other tackle on the front lawn of the said plaintiff’s property, near to the wall it is true, but still in such wise as to be a trespass upon this lawn. Both plaintiffs pray that the defendant be enjoined from completing this sign; from placing any material upon the plaintiff’s land, and that it be required to remove so much of the sign as has already been painted, or in some other wise restore the west wall of its building to the condition it was in before anything was done toward the painting of this sign.

It is urged on the part of the defendant that this relief ought not be granted, because, it is said, it would impose an expense upon the defendant and would be of no value to the plaintiff to have it done; that is, that the plaintiff suffers no damage by having this sign completed, even if technically the defendant is without right to put up the sign.

That the plaintiffs are entitled to have an injunction to prevent the defendant from placing any of its material upon the plaintiff’s property goes without saying; and we are of the opinion that the plaintiff Quigley is entitled to a further order of the court. The plaintiff Quigley has permitted the defendant to construct its building, as it has, over upon her land, and thereby it may be conceded, so far as this ease is concerned, that her only redress for such construction of the building will be in damages; but we think that beyond that she is not estopped, after ascertaining her rights, from attempting to prevent anything to be done to such part of the building that is upon her land as will in any wise interfere with the full enjoyment of her property. And if she is entitled to any relief, it would certainly seem to be by injunction. This great sign, staring out as it will upon this residence, may well be an annoyance to those who occupy this residence, and yet it is that kind of annoyance for which damages in a suit at law could not well be measured, and that being so, injunction seems to be her only relief. In the case of Pollock v. Cleveland Ship Bldg. Co., 56 Ohio St. 655 [47 N. E. 582], in the opinion at page 674 thereof it is said:

“It is by no means clear, that they would not, if pursued long enough, grow into a prescriptive right. It isn’t necessary to ascertain this with positiveness. It is enough that if there be any doubt, the risk should not be imposed upon the plaintiff. And it is no hardship upon defendant to say that if it needs to use plaintiff’s land it can do as other people do in like circumstances — obtain a right to such use by negotiation. The very fact that the trespasses are in themselves trifling, and the damage, if any, so small that suits at law to recover would be impracticable, affords an additional reason for granting an injunction.”

High, Injunctions, Sec. 696 (4th ed.), uses these words:

‘ ‘ So equity may properly interfere to restrain repeated and continuous trespasses where it would be difficult or impossible to ascertain the damages resulting from each act complained of. So also relief may be granted where from the nature of the case, it will be impossible , to estimate the actual damage, which the plaintiff will suffer, and the injury resulting from a trespass in order to be a continuing one justifying relief by injunction must be of such a character that its recurrence is not dependent upon any act to be done by any person, but results from a continuing state or condition of things caused by the act of trespass itself.”

In Wilson v. Mineral Point, 39 Wis. 160, it is held that injunction is the proper remedy against cutting down shrubbery and shade trees, on the ground that injury is such that damages are indeterminable.

In Joyce, Doctrine and Principles of Injunction, Sec. 218, it is said that injunction is proper, where the injuries can not be measured by any pecuniary standard or where it is impossible or hardly possible to so measure them.

To leave the wall as it now is would leave it, perhaps, in as objectionable a state as it would be in if the sign were completed. It will not be any considerable expense to the defendant, by the use of paint or some other material, to so obliterate this white paint which has been placed upon the wall and so much of the sign as is on said white paint, as to practically restore the wall to the appearance which it had before this painting was begun, and the order of the court will be that the defendant is enjoined from placing any materials upon the lawn of the plaintiff Quigley; from proceeding with the work of painting this sign, and that it obliterate what has been done to the extent that it can reasonably be done by the use of red paint, or otherwise, as shall best accomplish the result.

Winch and Henry, JJ., concur.


text:
    DEATH — INFANTS
    [Cuyahoga (8th) Circuit Court,
    March 20, 1911.]
    Marvin, Winch and Henry, JJ.
    Alexander Campbell v. Buela Tarr, Admx.
    Verdict of $1,800 for Death of Child Five Years Old not Set Aside.
    In an action for the wrongful death of a child five years old, a judgment for $1,800 will not be set aside, though there is some evidence that the mother, one of the beneficiaries, was negligent, and that the father had deserted the mother and child.
    Error.
   MARVIN, J.

The relation of the parties here is the reverse of that which they sustained to one another in the court of common pleas, but they will be spoken of here as they stood in the court below.

Plaintiff recovered judgment, under the statute authorizing such actions, for wrongfully causing the death of plaintiff’s decedent.

On January 25, 1908, decedent, who was then five years old, was killed in an elevator operated in a large building owned by the defendant.

This building was several stories high and was occupied in the stories above the ground floor, by a considerable number of tenants, for living rooms. Plaintiff, who was the mother of the deceased, lived in one of the upper suites, together with plaintiff’s mother.

The elevator was in common use by the tenants of the upper floors, for going up and down.

Without question, the evidence shows that the defendant allowed this elevator to be and remain for a long time so out of repair as to render it unsafe. The door could be so far opened by any one as to permit entry to the elevator.

The decedent, while at play in the lower hall of the building, got into this elevator, which he could not have done but for the negligent manner in which it was maintained by the defendant, of which negligence the defendant was surely chargeable with knowledge. The elevator was moved upward and the child crushed.

Owing to the age of the child no want of care on his part could affect the question of recovery in the action.

Since, however, this action can be maintained only for the benefit of the next of kin of the deceased, as provided in Sec. 6135 R. S. (Secs. 10772, 10773 G. C.), and since any such next of kin whose negligence contributed to the death is not entitled to any compensation on account of such death, as held in Wolf v. Lake Erie & W. Ry., 55 Ohio St. 517 [45 N. E. 708; 36 L. R. A. 812], the question of the negligence of this plaintiff, mother of deceased, becomes a subject of inquiry.

The mother was employed in a store on the east side of the river. The defendant’s building in which she, her mother and her child lived, is on the west- side of the river, a considerable distance from her place of employment. On the day of the accident she came to her home for her noon meal. Having eaten, she went down to the ground floor, accompanied by her little son, bade him good-bye at the door, and left for her work.

Without going into details, we think the jury might well have reached the conclusion, as they probably did, that she exercised ordinary care for the protection of her child, We have said the jury probably found, and might well have found, that the mother was not negligent. However, if they found otherwise as to her, it would not necessarily have barred a recovery, because the father of the child was living, and, under the statute, is one of those for whose benefit the action may be maintained. Under the facts, however, as disclosed in this case, the jury would not be likely to do much for the father. And as the verdict was for $2,500 it can not be doubted that the jury found, as to the charge of negligence against the mother, in her favor.

Section 6135 R. S. (Sec. 10773 G. C.), provides that the amount recovered shall be apportioned among the beneficiaries by the court by whom the administrator is appointed; so with such distribution this court has nothing to do, nor has the court of common pleas anything to do with it. The amount returned by the jury was the gross sum of $2,500. This is in accordance with the statute, and with the holding of the court in Wolf v. Lake Erie & W. Ry., supra. In this case it is said in the opinion at page 536:

“As-to the beneficiaries found guilty of contributory negligence, no damages should be awarded on their account, and the jury should find in its verdict, which, if any, of the beneficiaries were guilty of such contributory negligence. ’ ’

The verdict in the present case makes no finding that any beneficiary was chargeable with negligence, and therefore the presumption is they found, as hereinbefore suggested, that the mother was not negligent.

No negligence could be charged to the father in the case.

On motion for new trial, the court, as condition for not granting a new trial required a remittitur of $700 from the amount found by the jury. This remittitur was made and judgment entered for $1,800.

As we find no error on the record, the judgment is affirmed.

Winch and Henry, JJ., concur.


author: MAEVIN, J.

text:
    APPEAL — JUDGMENTS
    [Cuyahoga (8th) Circuit Court,
    March 24, 1911.]
    Marvin, Winch and Henry, JJ.
    Joseph Artino v. Santo Laparo.
    Judgment of Dismissal on Appeal no Bar to Another Action.
    Upon judgment in favor of plaintiff by a justice of the peace, defendant appealed the case to the common pleas court and there obtained a dismissal of the case for failure of plaintiff to file a petition. Thereupon the plaintiff brought another action on the same claim before a justice of the peace. Meld: The ' judgment of dismissal of the former action was no bar to the maintenance of the latter action.
    Error.

      Samuel Doerfler, for plaintiff in error.

      William E. Chapman, for defendant in error.
   MAEVIN, J.

The plaintiff below was Laparo. He brought suit against Artino, before a justice of the peace, and recovered judgment.

The defendant appealed the case to the common pleas giving his bond therefor and filing transcript from the-docket of the justice of the peace, with the clerk.

The plaintiff failed to file petition within the statutory period, and on motion of the defendant, the case was dismissed in the common pleas court.

Plaintiff sued again before a justice of peace, on the same claim. Defendant produced the record of the proceedings in the former case, claiming the same as a bar. The result was a judgment again in favor of the plaintiff. The defendant prosecuted error to the common pleas on this last judgment and, on hearing the judgment of the justice of the peace was affirmed.

The present proceeding is brought to reverse this judgment of affirmance and the judgment of the justice of the peace. The question therefore presented is whether the proceedings in the former case constituted a bar to the latter suit on the original claim. On the part of the plaintiff in error it us urged that to permit that to be done which was done in this case, would enable a plaintiff to harass a defendant beyond all reason, and therefore it should not be permitted.

This would be equally true if plaintiff, after bringing his suit before the justice of the peace had dismissed it before its being brought to trial, and yet, without question he could have done this, and again bring suit on the same claim.

As said in the brief of plaintiff in error, the giving of the appeal bond and the filing of the transcript suspended the judgment which had been taken, and if the plaintiff had filed his petition in the proper time the case would then have been in the common pleas, to have been proceeded with as though originally brought in that court. Suppose this had all been done, and the case had thereafter been dismissed for some reason other than upon the merits, the plaintiff would not have been barred from suing again, and there seems no good reason why the dismissal of the case for failure to file a petition should work any more severely upon the plaintiff than a dismissal after the filing of the petition, for want of prosecution or for any cause other than upon the merits.

The case cited by counsel for plaintiff in error, Baltimore & Ohio Ry. v. Washington, 1 O. S. U. 377 (34 Bull. 266), materially differs from the case at bar.

In that case judgment was rendered in favor of the defendant in the lower court. The plaintiff appealed, and then asked leave to dismiss the case without prejudice. This, if granted, would have left the party who had obtained a judgment below deprived of the benefit of that judgment by the simple act of the losing party, without any further hearing on the merits.

In the case at bar, the plaintiff, by failure to file his petition in time, lost the benefit of his judgment obtained before the justice of the peace, but he deprived the other party of nothing.

Section 5314 It. S. (Sec. 11586 G. C.), providing for dismissal of a case without prejudice to a new action, after enumerating the causes, says:

“In all other cases the decision must be upon the merits upon the trial of the action.”

In Loudenback v. Collins, 4 Ohio St. 251, it is said in the head-note, and borne out by the opinion, that to render the dismissal of an action a !»ar to a new action on the same cause, it must be established that the dismissal was upon the merits.

Here it is shown affirmatively that the dismissal was not upon the merits. The result is that such dismissal is not a bar to a new action and the judgment is affirmed.

Winch and Henry, JJ., concur.


text:
    RECEIVERS
    [Cuyahoga (8th) Circuit Court,
    March 24, 1911.]
    Marvin, Winch and Henry, JJ.
    Edward L. Brown v. Brown Automatic Hose Coupling Co.
    Receiver Appointed Ancillary to Other Relief Only.
    A receiver will not be appointed for a corporation except as ancillary to the working out of other relief to which the plaintiff is entitled.
    Appeal.

      li. E. McKisson, for plaintiff.

      Marry F. Payer and J. A. Natty, for defendant.
   MARVIN, J.

The petition here sets ont that the defendant is a corporation; that it is indebted to the plaintiff in the sum of $1,400 upon an account; that he is a stockholder, general manager and vice-president of the defendant, and that by reason of certain action on the part of other-stockholders and officers of the company, the plaintiff is being prejudiced in his rights. But, on examining the claims which he makes and the prayer of the petition, we are unable to find that he is entitled to or claims any final judgment in this action. His suit is sought, to be maintained in equity and the prayer of the plaintiff is that the “defendant be temporarily restrained from removing any of its assets and property from the jurisdiction of this court or the county of Cuyahoga until further order of this court; that said defendant company be required to set up why a receiver should not be appointed or a permanent restraining order be not made; that said defendant company be restrained and enjoined from selling or disposing of any of its property at any time or place until further order of this court; except that it may carry on its commercial business in the usual way; that it be ordered that its business and affairs be conducted in Cuyahoga county; and further, and until the further order of this court, that a receiver may be appointed to conduct or liquidate all of the affairs and assets of the defendant company, and that the receiver may be ordered to carry on the affairs and business of the defendant company subject to the orders of this court from time to time; that at the final hearing of this cause a permanent injunction shall issue until the affairs of this company may be worked out by the receiver for the interests of all stockholders and creditors, and for such other and further relief as equity and good conscience shall require.

A receiver was appointed in the court of common pleas and he took charge of the business of the company, and upon final hearing the court found that the plaintiff was not entitled to an injunction and discharged the receiver. The case being appealed to this court the order discharging the receiver was vacated, but as has already been said, the only purpose, so far as appears, for the continuance of a receiver is, that instead of having the business managed by its officers, it shall be managed entirely by a receiver, the language of the prayer being until such time as “the affairs of this company may be worked out by a receiver for the interests of all stockholders and creditors.”

It would be an anomalous thing to appoint a receiver to take charge of a business in a case in which no ultimate judgment or order can be made. The appointment of a receiver is simply ancillary to the bringing about of some final result. We see no final result here that it is expected any receiver will work out.

It is said in the argument, that probably if the business is left long enough in the hands of a receiver, the parties interested will settle their differences. This suit is brought against no party other than the corporation itself and the facts do not justify the continuance of a receiver for the purpose of inducing the various stockholders and officers of this corporation to come to an adjustment of any difficulties they may have among themselves. Certainly not under the allegations of the petition in this case.

The order of this court will be that the petition be dismissed, the receiver be dismissed,- that he make a report to this court of his doings, as such receiver, and this court will make such an allowance to him for his services as a receiver as it shall find to be just and proper, and this amount he will be permitted to retain out of the moneys in his hands which have come to him as such receiver. The balance of such property he will restore to the corporation, and a judgment will be entered against the plaintiff for all the costs in the action, including the amount which the receiver is permitted to take from the moneys in his hands, as his compensation.

Winch and Henry, JJ., concur.


text:
    ELEVATORS
    [Cuyahoga (8th) Circuit Court,
    March 24, 1911.]
    Marvin, Winch and Henry, JJ.
    Charles F. Schaber, Exr. v. Benjamin F. Young.
    1. Same Degree of Care Required by Owner of Elevator as of Common Carrier.
    In an- action for damages for injuries received by a passenger through the alleged negligence of an owner and operator of an elevator, it is not error to charge that the same degree of care is required of such owner and operator as of a common carrier of passengers, it being explained that the care so required is of the highest degree.
    2. Rule of Highest Degree of Care Applicable to Elevators.
    The owner and operator of an elevator, like the common carrier of passengers, is not bound to use the highest degree of care for all who come to its stations, yet, when it holds out the invitation to “step aboard,” its duty to afford the highest degree of care to him who accepts the invitation, and undertakes to step aboard, has begun.
    Error.

      Howland, Moffett & Niman, for plaintiff in error.

      E. J, Pinney and Herman J. Nord, for defendant in error.
   MARVIN, J.

Benjamin F. Young brought suit against John Schaber.

Before the case was tried John Schaber died, and by order of the court the action was revived in the name of the present plaintiff in error, as defendant.

Trial was had to a jury, and plaintiff recovered.

The jiause stated in the petition is that defendant owned an apartment house in the city of Cleveland the rooms and suites of which were rented out to various tenants. Plaintiff was a tenant of defendant in said building, occupying rooms on the fourth floor. Said apartment house was provided with a passenger elevator, operated by defendant and his' servants, to convey tenants and those having business with them, up and down between the several floors of the building.

On September 21, 1905, late in the afternoon, the plaintiff stepped through the doorway of said elevator into the elevator shaft, on the ground floor, and the elevator not being there, the doorway being unobstructed by any door guard or warning, and fell a considerable distance, and was severely injured.

He says in his petition that he was without fault, and that his injuries were caused wholly by the negligence of the defendant in not properly performing his duties in respect to such elevator, specifying the items of negligence.

The defendant denies, in his answer, that plaintiff was injured, but says if he was, his own negligence contributed to his injury.

The result of the trial was a verdict and judgment for plaintiff below in the sum of $4,500.

By this proceeding in error, it is sought to reverse said judgment.

That the jury might well have found that the original defendant was negligent and that the plaintiff was not negligent we think is shown by the evidence. We do not mean that there may not be some doubt about one or both of these propositions; but that the jury might so find as to both, without finding against the manifest weight of the evidence.

The first claim urged by plaintiff in error in his brief is that excessive damages were allowed. We are not prepared to say that the amount of the verdict is such as to show passion or prejudice on the part of the jury. Within reasonable limits, the jury may fix such damages as to them seem the proper compensation for the injuries received.

Plaintiff was 64 years of age; was a shoemaker by trade and could earn $650 to $700 per year. There is evidence tending to show that his injuries are permanent and have practically destroyed his earning capacity. There was no evidence offered as to his expectancy of life or of continuance of earning capacity. He suffered much pain, and was put to expense for treatment on account of his injuries. No one can say in such a case just what is reasonable compensation, and though all reasonable men might say that a named amount is unreasonably high, or another named amount is unreasonably low, yet it can not be doubted that reasonable men might vary considerably in the amount which ought to be allowed in a case like the present.

We do not feel justified in reversing the judgment for excessive damages.

Complaint is made that the court erred in its charge to the jury by the use of these words:

“It has been decided by our courts that an elevator owner and operator of an elevator stands in the same relation as a common carrier of passengers.”

This fairly construed with the facts in the case and the charge generally, meant, and must have been understood by the jury to mean, that the elevator owner, or manager, owed the same duty to elevator passengers that is owed generally by common carriers of passengers to those whom they undertake to carry.

The court follows the words above quoted with a correct statement of what duty common carriers of passengers owe to such passengers.

The language used was in accordance with the holding of this court in the case of Cobb-Bradley Realty Co. v. Hare, 39 O. C. C. 566 (24 N. S. 135), in an opinion announced by Judge Hale in February, 1903, and is in accordance with a large number of cases, cited by and quoted from in the brief of defendant in error.

In Mitchell v. Marker, 62 Fed. 139 [25 L. R. A. 33, 35], Judge Lurton said:

“We see no distinction in principle between the degree of care required from a carrier of passengers horizontally, by means of railway ears or stage coaches, and one who carries them vertically by means of a passenger elevator. The degree of care required from carriers by railway or stage coach is the highest degree.
“Neither is an insurer, but in regard to each, care short of the highest degree, becomes, not ordinary care, but absolute negligence. ’ ’

To the same effect are the following: Shellenberger v. Fisher, 143 Fed. 937 [5 L. R. A. (N. S.) 250]; Fox v. Philadelphia, 208 Pa. St. 127 [57 Atl. 356; 65 L. R. A. 214]; Goodsell v. Taylor, 41 Minn. 207 [42 N. W. 873; 4 L. R. A. 673; 16 Am. St. 700].

There was no error in this part of the charge.

Counsel for plaintiff in error uses this language in his brief:

“We contend that it was erroneous for the trial court to state as a fact, that our courts have already decided a certain proposition of law, when the question has not been passed upon by our courts here, so far as the reported cases disclose.”

In using this language counsel overlook the fact that the jury were bound to take the law from the court as he gave it, and that they would be no more, and no less, bound so to take it, whether the court was, or was not supported by authority of any other court or of any text book.

It is urged, however, that the rule as to care due to passengers, whatever that care is, does not begin until one actually becomes a passenger by getting into the car or other vehicle in which he is to be carried, and that therefore this duty never arose in favor of the plaintiff below, because he never got into the elevator.

We think the position is not sound when applied to the facts of this case.

The only reason the plaintiff was not a passenger in the car, was, that when he stepped there, if the elevator platform was where the open door indicated that it was, he would have been in the elevator. The platform not being there was what caused him to fall. And though the carrier is not bound to use the highest degree of care for all who come to its stations, yet when it holds out the invitation to “step aboard” its duty to afford the highest degree of care to him who accepts the invitation, and undertakes to step aboard, has begun. If one were to take hold of the handle or rail provided to be taken hold of by him who is to take passage in a car, and that handle was so defective that it gave way without any unusual strain upon it, by reason of its rottenness or broken condition, the party seeking to board the train would have all the rights of the passenger.

Complaint is made of the court’s definition of proximate cause. What the court said was, “By the proximate cause of the injury I mean that cause, which caused the injury, but for which the injury would not have occurred. ’ ’

This language, taken in connection with what was said on the effect of contributory negligence, was neither erroneous nor misleading.

There is no error in the charge, nor in any part of the proceedings which would justify a reversal and the judgment is affirmed.

Winch and Henry, JJ., concur.