text:
    PROOF OF INTENT TO KILL.
    [Circuit Court of Lucas County.]
    John Munday v. State of Ohio.

    Decided, December 2, 1904.

      Criminal Law — Trial for Homicide — Proof of Intent to Kill — Necessary to Justify Conviction of Murder in the Second Degree — No Conclusive Presumption from the Striking of the Fatal Blow — Charge of Court — Self-Defense.

      1. In order to justify a conviction of murder in the second degree it must be affirmatively proved that the accused “purposely” killed the 'deceased; to show that he purposely inflicted the wound that caused the death, or that he purposely struck the deceased, from which stroke the deceased died, is not' sufficient. It follows, therefore, that it is error to charge the jury to the effect that, if the proof shows that defendant “purposely” committed the act, the natural and probable consequence of which was to and did cause the death of the deceased, evidence on behalf of th-e defendant tending to show that he did not in fact intend to lull the deceased is immaterial.
    2. The presumption that one intended the natural and probable consequences of his own act can not be extended in its application to justify a charge to the jury, under an indictment for murder in the second degree, that defendant is presumed to have intended to kill the deceased because he purposely inflicted the act which caused the death.
    3. In such a prosecution, where it is claimed that the defendant acted in self-defense and does not admit any intent to kill, a charge that “no other ground of justification or excuse than self-defense is claimed by the defendant, and no other will be considered by you” tends to exclude the right of the defendant to reduce the grade of the offense charged from murder in the second degree to manslaughter, and is prejudicial error.
    Hull, J.; Parker, J., and Haynes, J., concur.
    Error to Lucas County Common Pleas Court.

       Affirmed by the Supreme Court, 2 O. L. R., 509.

   The plaintiff in error was indicted for the crime of murder in the second degree, and was convicted of that offense by the jury. A motion for a new trial being overruled, he was senteneed to imprisonment in the penitentiary for life. A petition in error was filed in this court to reverse that judgment.

John Munday, in the fall of 1889, was married to Lillie Mun-day, the person he was charged with killing. They were married at the city of Detroit. The killing is alleged to have occurred on January 13, 1893, in the city of Toledo.

It is claimed that the court erred in its charge to the- jury; that the verdict was against the weight of the evidence; and that therefore the court erred in overruling the motion for a new trial.

As I have said, Munday was married to Lillie Munday in Detroit in 1889. After their marriage, they moved to Toledo and lived on Wisconsin street, he having two or three children by a former wife and one by Lillie Munday. A day or so after January 15, 1893, now over eleven years ago, it was noticed by the neighbors and the relatives of Mrs. Munday that she had disappeared from their home on Wisconsin street. Her mother and some of the neighbors came to the house and inquired where she was, and Munday told them she had gone away — they had been separated for a short time, prior to this — he told them she had gone away, and he did not know where she was. Soon after that he with his children left the house and moved to Detroit, and went to other places, and finally to St. Louis.

In June, 1895, nearly two years and á half after Mrs. Mun-day had disappeared, her body was found under the house where they had lived on Wisconsin street, in Toledo. It had decomposed so that only a portion of the skin on the face and neck remained; it was identified fully by those who knew her and was examined by physicians. The only mark of violence that could be discovered by the physicians at that time, if this was a mark of violence, was a small hole on one side of her neck through the skin which still remained about the size of an ordinary lead pencil, or a man’s little finger, or a thirty-eight caliber bullet, as one physician testified; but no one could tell how the hole had been made or whether the skin had simply decomposed; the flesh inside was all gone. The body had been put under-the house through the floor, the boards being lifted in a closet.

A warrant was issued for Munday and soon after that he was arrested in St. Louis and brought back to Toledo, in the same month, June, 1895. In the following August, he escaped from the jail of Lucas county and fled, and lived at various places, and married another woman; and, finally in. the year 1903, he was found in the city of St. Louis, working on the exposition buildings, was arrested and brought back to Toledo. He had been indicted for murder in the second degree. The-case was tried in the court of common pleas at the April Term, 1903 — ten years after Mrs. Munday disappeared. At the trial of the case the evidence offered by the state showed the finding of the body under the house, the marks upon it — it had the mark upon it which I have referred to — and there was some testimony as to the statements of Munday, that is, his statement that she had gone away and that he did not know where sh'e was, and the evidence of an officer, by the name of Durian, that Munday had said to him that he had had a quarrel with his wife and a struggle and that in the struggle he had struck her with the handle of a carving knife; and that she had died; that he had tried to resuscitate her, but could not; that he had come near' to the police station two or three times with the intention of giving himself up, but his courage failed and he ran away. That statement, it was claimed, was made at the time he was first arrested, ten years before. This is a brief statement of the state’s case; some elements I have probably left out.

The only witness who claims to have been present at the time of Mrs. Munday’s death was the defendant himself. He went on the witness-stand and his claim was that whatever he did was done for the purpose' of defending himself. He claimed that they had various quarrels; that she was a woman of violent temper; and he was corroborated in this to some extent. On this occasion Munday claimed she was about to leave and take with her their little girl, who was then a small child; that he undertook to prevent her taking the girl; that he began taking a coat off the child; that thereupon she attacked him first with the broom; that he took it away from her and threw it out of the room, and at the same time- put out the two small children who were in the room with them — they were in the dining-room — and closed the door; that thereupon she picked up a carving knife which was on the dining-room table and threatened to kill him, “to fix him,” “to run the knife through him,” and used other language of that kind. Munday claimed that he ran around the dining-room table, she pursuing him; that she finally gained on him, with the carving knife in her hand, which he says was a long knife, a knife with a long blade and a long, pointed handle. When she came near him he claims that he whirled, and, for the purpose of protecting himself, struck her on the breast with his hand or fist and knocked her down. He says she was still raving, as he put in, in a raging, angry, threatening manner, with the knife still in her hand. In order to get the knife away from her, to make her let go of the knife, he said he took hold of her hand; that the knife which she held in her right hand was transferred to the other hand; she was still threatening to kill him; that in the struggle with her he got the knife away from her by rubbing his knuckles against her fingers — the fingers of the hand which held the knife. He said also that in the struggle he took hold of her throat and choked her some.

He says that he finally succeeded in getting the knife away from her. Soon after that, he says, she became unconscious. Why she became unconscious he claims he does not know. He laid her upon the couch in the room; the only blood that he says he saw was at the back of her head. He says he tried to resuscitate her with camphor, and put his hands on the back of her head to staunch the blood; but he was unable to resuscitate her. In the course of an hour he found she was dead, and he says that he took the body and laid it on the bed in the front room of the house; that he went down town intending to report it to the police, but he said his courage failed and he did not.

The door of the front room where the body lay was locked. He told the small children that Mrs. Munday had gone away. The body remained there, according to his statement, until the next night at midnight, when he concluded to flee; and he took up the boards in the floor of a closet and put the body under the house — the house stood on stone piers, and was surrounded with boards; there was no cellar under the house. Soon after that, a day or two after, Munday went to Detroit, and after that came his experiences and wanderings, as I have already stated, until he -was finally arrested and put on trial.

As stated, his claim is that whatever he did was done in self-defense. He does not admit that he intended to kill his wife, and if what he says is true, he probably did not; at least, he does not admit that he did. He denies having used any weapon upon her or any kind of violence except as before stated. He claims that in the struggle she cut him on one of his arms near the wrist.

It is urged that the court erred in its charge to the jury; and especially in the instructions as to what would be sufficient to establish the crime of murder in the second degree. This crime is defined in Section 6810, Revised Statutes, as follows:

“Whoever purposely and maliciously, except as provided in the last two sections, kills another, is guilty of murder in the second degree, and shall be imprisoned in the penitentiary during life.”

It will be observed by reading the statute that to constitute this offense, the killing must have been done purposely and maliciously, and, under the law of this state, the element of purpose and intent must be proven and established by the state beyond a reasonable doubt. It is as much an element of the crime as the killing itself. It is not all unlawful homicides that are murder, either in the first or second degree. Manslaughter is defined in Section 6811, Revised Statutes, as follows:

“Whoever unlawfully kills another, except as provided in the last three sections, is guilty of manslaughter, and shall be imprisoned in the penitentiary not more than twenty years nor less than one year.”

The burden is upon the state to establish every material element of the crime charged. As appears on page 50 of the record the court charged the jury:

“The burden is also upon the state to satisfy you beyond a reasonable doubt that the said Lillie Munday died as the direct and probable result of an act purposely inflicted upon her by the said defendant. The word ‘purposely,’ as used in the statute to characterize the act, has no relation to the motive with which the act is committed. Motive is no element of homicide, and need not be proved. ‘Purposely’ means on purpose, intentionally, and as used in this connection relates to the intent with which the act is done. That is to say, the act which results in the death of another must have been done with the intent to kill. The intent with which an act is done is to be determined from the nature of the act, the circumstances surrounding and attending it, and all the facts of each particular case.”

So far no special complaint is macle of the instruction, and it seems to state the law correctly. The court then continues:

“It constitutes no excuse or defense for one charged with the commission of homicide, to say that he did not intend to kill his victim, for every person is presumed to intend the natural and probable consequences of every act voluntarily and willfully done by him.
“Therefore, if you are satisfied beyond a reasonable doubt that the said defendant purposely inflicted upon said 'Lillie Munday an act, the natural and probable consequences of which was to and which actually did cause her death, it is no justification, excuse or defense for him to say that, in doing such act, he did not intend to kill the one against whom it was exerted. ’ ’

So that the court charged in substance, in the last paragraph which I have read, that if the defendant purposely inflicted upon Lillie Munday an act, the probable consequences of which was to cause her death and which actually did cause her death, it was no justification or excuse or defense for him to say that in the doing of it he did not intend to kill the one against whom it was exerted.

As appears from the statute, and as has been held by the Supreme Court of this state, one of the necessary elements of the crime of murder in the second degree is an intent to kill at the time the fatal blow is struck. There must be an intent and purpose on the part of the defendant to take the life of the person assailed. This is to be shown by the evidence and from all the facts and circumstances of the case. If he uses a deadly weapon, that may be strong evidence of the intent; if he shoots or stabs, that may be strong evidence of an intent and purpose to kill; but one defense which the defendant may make to the charge of murder, either in the first or second degree, is that he did not in fact intend or purpose to kill the person whose death has been caused.

It is the murderous intent that gives to the offense the grade of murder rather than manslaughter; and the defendant may show all the facts and circumstances and leave it to the jury to say whether he intended to kill or not. He may be asked— I do not think that was done in this case — whether he intended to kill or not, and he mayu say, if it be true, that he did not. And the trend of Munday’s testimony in this case was that he did not intend to kill his wife. He had, he claims, in his hand, after he had taken it from his wife, a deadly weapon which lie says he did not use. He denies the use of any weapon upon her, or doing anything except to strike her with his fist, and what he did in the struggle to get the knife away from her; so the question of intent was fairly in the ease, whether he struck or did what he did with intent to kill her. As is said by some authorities, where the killing is wholly unexplained, where there is no evidence except the fact that one has killed another, the presumption is that it was done intentionally and is murder in the second degree. But that rule does not prevail where the facts and circumstances are laid before the jury by one witness or more who claims to have been present at the time of the killing. In Jones v. State, 51 Ohio St., 331, in the fourth paragraph of the syllabus this is said:

“An intention to kill is an essential element of the crime of murder in this state, and must be established beyond a reasonable doubt, to authorize a verdict of murder in the first or second degree. This rule íb not changed by reason of the accused ■contending, and introducing evidence tending to prove, that the homicide was accidental. The legal effect of such evidence being simply to controvert an inference of an intent to kill, which may arise from the evidence introduced by the state.”

On page 341 of the opinion, delivered by Judge Bradbury, this is said:

“The statutes of Ohio make an intent to kill an essential ingredient of the crime of murder, in either degree, except in the ease of death following from maliciously placing obstructions on a railroad track, etc. (Sections 6808, 6809, 6810, Revised Statutes). The intent or purpose, to kill, being an essential constituent of the offense, should be averred and proven (Fouts v. State, 8 Ohio St., 98; Kain v. State, 8 Ohio St., 306; Hagan v. State, 10 Ohio St., 459). This purpose, like every other material averment of the indictment, is put in issue by the plea of not guilty and to authorize a conviction must be proven beyond a reasonable doubt.”

And on page 343:

“We are not called upon at this time to declare what presumptions might arise, and their effect, from the mere fact that one person had killed another, wholly unexplained by any evidence of attending circumstances; for, in the ease before us, the homicide was committed in the presence of a number of persons, each of whom gave to the jury his version of the affair.”

In this case" a father was indicted for murder in the first degree for killing his son, was twice convicted in the common pleas court and the judgment reversed in the circuit court, and this was the third judgment that was then before the Supreme Court. Jones had a gun, which he had taken with him when he left his house to go, as he claimed, to rescue his son from a bawdy house and the society of bad women, and he shot and killed-his son with this deadly weapon. He claimed that he did it accidentally; that he did not intend to shoot his son; and the Supreme Court held that putting in that defense or plea that he did it accidentally was only controverting or meeting the case of the state, upon which was the burden of establishing beyond a reasonable donbt that he intended and purposed to kill his son.

The instruction to the jury in the case at bar that “if they found that the defendant purposely inflicted upon the said Lillie Munday an act, the natural and probable consequences of which was to, and which actually did cause her death, it is no justification, excuse or defense for him to say that in doing such act he did not intend to kill the one against whom it was exerted,” etc., was erroneous. It is not the act that must be purposely done, but there must be the purpose to kill. This question has been passed upon we think.by the Supreme Court in Hagan v. State, 10 Ohio St., 459. The court say:

“An averment that the accused ‘purposely and of deliberate and premeditated malice’ ‘did strike’ the deceased, thereby inflicting a mortal wound of which the deceased afterward died, does not satisfy the requirements of the law; for though the accused may have purposely and maliciously struck the deeease'd, it does not follow that the stroke was given with a design to produce death.”

Two eases in point upon this question are: Fouts v. State, 8 Ohio St., 98, where it is said:

“Intent or purpose to kill, although not essential to constitute murder at common law, is made one of the ingredients of the crime of murder by the statute of Ohio.”

And Kain v. State, 8 Ohio St., 306, 307, where the court say:

“ In an indictment for murder, under the statute of this state, it is necessary to aver the purpose to kill; such purpose being an essential element of the crime, as defined by the statute.
“An averment, merely, that the accused ‘purposely and of deliberate and premeditated malice, did strike, penetrate and wound’ the deceased, ‘giving to him * * * one mortal wound,’ and that the deceased, ‘of the mortal wound aforesaid died,’ is not sufficient; the ‘purpose’ being predicated of the assault and wounding, but not of the killing. ’ ’

As the court say in this case our statute changes the rule of common law. This instruction of the trial court was incorrect.

In Bailus v. State, 16 C. C., 226, which was decided by this court in 1898, this question is discussed. Bailus killed a man in a house of prostitution in this city with a knife. In the struggle he stabbed him, inflicting wounds from which he died. The court charged the jury as follows:

“ ‘When one person assaults another violently with a dangerous weapon, likely to kill, and not in self-defense, or in defense of habitation, property or person, and not in a sudden heat of passion caused by provocation apparently sufficient to make the passion irresistible or involuntary, and the life of the party thus assaulted is destroyed in consequence of such assault, then the legal and natural presumption is that death or great bodily harm was intended, and in such ease the law implied malice, and such killing would be murder.’ '’

The court say, Judge Parker delivering the opinion, page 535:

“We think that this language is subject to the construction that, where the circumstances of death, produced by the use of a deadly weapon, are such as to raise a presumption that either death or great bodily harm was intended, the killing would be murder; and this because a deadly weapon was used; indeed we do not think this is fairly open to any other construction. We are of the opinion that this is erroneous. A jury might find from the circumstances in a given case, where death resulted from the use of a deadly weapon, that the intent of a person using such weapon was to wound and not to kill. Manifestly it is error to charge that in such a ease the killing would be murder.”

This case was a stronger one than the case at bar, for in Bailus v. State, supra, a knife was used by the defendant, with which he stabbed the deceased to the heart.

Another ease decided by this court is the case of Bennett v. State, 10 C. C., 84. The plaintiff in error killed a man in a saloon in Sandusky, also, by stabbing him, as in Balus v. State, supra. He claimed he did it in self-defense. He was found guilty of murder in the second degree. The court say in the syllabus in that case:

“To authorize a verdict of murder in the second degree, it must be affirmatively shown by the slate that there was at the time the blow was given an intent existing in the mind of the accused to kill the person whose life was taken; and that he not only delivered the blow with intent to kill, but did it maliciously. ’ ’

The opinion of the' court was delivered by Judge Haynes, and on page 139, he says:

“The burden of proof is upon the state to show from all the circumstances, clearly and beyond a reasonable doubt, that there was a purpose in the mind of this young man to kill- — a formed purpose as much as thought he said to himself: ‘ I strike you now, and I do it with the intention of killing you.’ ”

Another portion of the charge complained of is found on page 51 of the record, where the court said:

“We now come to the consideration of the words ‘legal justification or excuse,’ as applied to the claim made on behalf of the defendant that, if that which he did resulted in the death of the said Lillie Munday, he was justified therein, and is excused from the consequences thereof, because that which he did do was done in self-defense. No other ground of justification or excuse is claimed by the defendant, and no other will be considered by you.”

It may be true and probably was true that the only complete defense offered by the defendant, or what would be regarded as a full defense was that he did this in self-defense; but yet there was in the ease all the time the question what grade of crime he was guilty of, if any; whether guilty of murder in the second degree, or guilty of manslaughter, if guilty of homicide of any degree, and we are of the opinion that this instruction standing unexplained by itself was misleading and ought not tó have been given to the jury. It would impress them with the idea that the only question in the case that might be considered to reduce the grade of the offense was, whether he did what he did in self-defense. The court said to the jury: “No other ground of justification or excuse is claimed by the defendant, and no other will be considered by you.” While, as I say the only complete and full defense or excuse that the defendant made was that of self-defense, this instruction seems to exclude the right of the defendant, if he could, to reduce the grade of the offense charged against him from murder in the second degree of manslaughter by showing that he did not intend to kill. We are of the opinion that this charge should not have been given to the jury in this form.

The court said to the jury as found on page 52 of the record:

“The defendant is guilty of murder in the second degree, if you are satisfied beyond a reasonable doubt:
“First. That on or about January 5, 1893, in the county of Lucas and state of Ohio, the. defendant inflicted an act upon the said Lillie Munday which resulted as a direct and proximate cause in producing or accelerating her death.
“Second. That said act was intentionally inflicted by the said defendant, and was such that the natural and probable consequence thereof was to and actually did produce or accelerate her death.”

This instruction, in our judgment, was erroneous. -It again omits the essential element of the crime of murder in the second degree, that Munday must have intended or purposed to kill his wife.

The effect of this charge was, that if the jury found that Munday purposely inflicted an act that caused his wife’s death, and the natural’ and probable consequences of the act would cause death, that this is conclusive that he is guilty of murder in the second degree, regardless of what his intent actually was when he committed such act. We do not think any presumption of law of this kind arises. It is true that a man is presumed- to intend as a general rule, the natural and probable consequences of his acts. But the defendant is not conclusively presumed, upon a charge of murder in the second degree, to have intended to kill the deceased, because he purposely inflicted an act which did in fact cause death, and which the jury might say would probably cause death. The jury may have concluded from the evidence that the blow of the fist upon Lillie Munday’s breast was sufficient to cause her death. It was claimed that she was suffering from heart disease and had been for some time; and that that had something to do with her death, and might have caused it.

J. R. W. Cooper and Frank Mulhollancl, for plaintiff in error.

W. C. Ullery, Prosecuting Attorney, and J. S. Martin, Assistant Prosecuting Attorney, for defendant in error.

The jury may have concluded that the blow upon her breast in the condition of her health was sufficient to hill her, and did kill her. Munday did purposely strike her on the breast, but it was for the jury to say whether, when he struck her on the breast with his fist he did that with an intent to kill her; and no presumption of law would arise from those facts, that he had such intent or purpose at the time he struck her.

Some other parts of the charge do not meet with our entire approval, but we find no other reversible error in it; we have considered the question of the weight of the evidence, but as the ease goes back for a retrial we will not discuss that question further than to say that we find no other error in the record.

For the errors in the charge which have been pointed out, the judgment is reversed, the verdict set aside and the case remanded for a new trial.


source: Caselaw Access Project

author: Parker, J. Haynes, J.

license: Public Domain

text:
    INJURY TO RAILWAY ENGINEER FROM CATTLE ON TRACK.
    [Circuit Court of Lucas County.]
    Mary E. Isley v. The Wabash Railroad Company.
    Decided, February 11, 1905.

      negligence — Questions of, where Oattle Strayed upon Railway Track— Resulting in Death of Engineer — Assumption of Risk — Ex Post Facto Sagacity.

    1. As a general rule a railway engineer is not chargeable as a matter of law with knowledge of a break in the fences along the line of the road through which the cattle may stray upon the track, and where after discovering that cattle are upon the track he does all that a man 'of ordinary prudence would do to avoid an accident, it can not be charged that the derailment which followed and resulted in his injury and' death was due to his contributory negligence.
    2. The doctrine of assumed risk does not apply to a servant confronted with an emergency which does not give him an opportunity to elect whether or not he will remain in the employment in which he is then engaged.
    Hatnes, J. (orally); Hull, J., and Parker, J., concur.
    This suit was brought by Mrs. Isley, as administratix, to recover damages for the death of her husband, caused, as was alleged, by the negligence of the railroad company. The husband, Mr. Isley, was an engineer on the road, and the train on a certain day was derailed and he was killed. The case came to trial before the court and jury, and upon the conclusion of the plaintiff’s evidence the court took the case from the jury ■and directed a verdict for the defendant, upon the ground, it is alleged, that the decedent himself was guilty of negligence, At any rate, the court took the case from the jury and the case has been brought here upon a transcript of the evidence, and we are called upon to review the action of the court.
    It appears that in October of a certain year the decedent, in charge of a locomotive of a freight train, was proceeding along the track near a place called Ashwood, in Defiance county, going northward towards Toledto; and discovered some cattle upon the track, and immediately gave the alarm for brakes, etc.; but the locomotive struck one of the animals and was derailed, and the engineer was killed. The fireman, who was not called as a witness, was not killed.
    Now' to come to particulars in regard to the matter. The claim is that the railroad was not properly fenced, or that the fences had become out of repair, and that the railroad company was not keeping the fences in the condition that was required by the statutes of the state of Ohio; and that in consequence of that the cattle of a certain farmer had broken through the fence and had gone upon the railroad track, and one of them at least was run over by the locomotive. It is proper to say here that the son of the owner of the animals says that they were put in a wood field near his father’s house on the morning of this same day, at about six or seven o’clock; that at noon he went out to look for the cattle and found that they had escaped, and, following their tracks, he found they had escaped through this place in the fence and had gone into a ditch that was there, as I understand, on or near the railroad tracks, and had passed down to a wagon road not far away; had turned into that road and had gone a distance — according to the evidence it is a little blind — past the point where it seems they were usually let out of the wood lot, and kept on down the road, and finally passed from the road upon the railroad track, there being no intervening fence or obstruction, and some were on the track at the time the injury occurred. A portion of them, after the injury, returned the way they had come back to the field.
    A farmer was called who testified that he saw the locomotive just before it struck the animals; they were running upon the track; he heard the alarm, and heard the locomotive stop. He was quite a little distance away, so far at least — he says — that the animals in front of the locomotive looked like small calves. It would seem from this that the animals were quite a distance, or some distance, at least, from the point where they had escaped from the wood lot and went on the track.
    The testimony of two brakemen was taken, and was to the effect that they were both of them in the caboose at the time the first signal was given. They stated what the usual signals were when cattle were on the track — short whistles is the signal they all stated — for the brakemen to get to their places to protect the train. The first one testified that he went out to the front of the car, perhaps on the car. Very soon, a moment or two afterwards, he heard the engineer putting on air brakes on the front of the train and the signal sounded for brakes. The other brakeman was in the caboose, he was up at the lookout, heard the sound, opened the window and1 went out on top of the car; he could see an animal running along at the side of the train; and soon after going out there, or very quickly, the whistles were sounded for brakes. The conductor of the train — he does not testify — the conductor was in the car; he started for some brake. Now this last brakeman says he thinks that at the time the whistle sounded that probably the train was half a mile from where the injury occurred, and that consequently the train must have run about a half a mile before it ran' over the animal. He speaks of it as taking a glance.
    Now nobody testifies as to the condition of affairs at the time the engineer saw the cattle, whether they were simply within the lines of the company’s right of way; whether they were near or on the track does not appear. Just how they were situated we do not know. All we do know is that the. engineer whistled, sounded the whistle to frighten the cattle off; that the brakemen were taking their places at the brakes, and that the engineer put on the air brakes. The whole thing happened very quickly; it was a train of fifteen ears.
    Now with this state of facts it is said that the court found that the decedent was guilty of negligence. However it does not state in the record the grounds upon which he put it — simply directed a verdict. It is argued by counsel for the defendant that the plaintiff ought not to recover because the decedent is chargeable with knowledge of this place in the fence, if it was broken; that he assumed all defects that might be in the fence near the track; assumed all liability of cattle getting in upon the track. Well, there are some cases on both sides of the question as to whether he was bound to know this. In Thompson on Negligence, Vol. 4, Section 4791,'is a statement of'the law, in which -the author says:
    “On this subject we find irreconcilable decisions. On the one hand, it the cattle get upon the track through a failure on the part of the railroad company to keep its fences in repair, and if the non-repair of its fences is a permanent condition, and not the result of transient, unforseen and consequently unanticipated negligence of tin company, then the employe is deemed to assume the risk of injury from that source of danger; and this is so, although the failure to fence the track is a violation of the statute law. Directly opposed to this, we learn from another court that a railroad company is liable to a brakeman for its failure to maintain fences as required by statute, in consequence of which an animal gets upon the track, causing a derailment of the train and injury to the brakeman. On clear grounds where a railway trainman is killed or injured from defects in a track or in a roadtoed, existing through the negligence of the company, it will be liable, although the primary cause of the derailment is the running into an animal on the track.”
    We do not think that the engineer was at fault in this matter. The company was bound to keep its fences in repair, was bound to keep animals off: of the right of way. And this statute expressly provides that for any injury that results from cattle straying or getting upon the track that the company shall be liable. We do not think there is any negligence chargeable to this engineer in that respect. Simply it is a case where cattle are found straying upon the right of way, and perhaps upon the track, and are seen by the engineer, and the question is whether the engineer exercised ordinary care and prudence in the management of his train from the time he saw the animals until the time that the injury occurred. Now we must say from all this evidence, we do not see any testimony sufficient to charge this engineer with any negligence. It would seem from the testimony that he acted with reasonable care; he sounded his whistle for the cattle^ immediately, almost immediately thereafter, he was putting on his brake, calling for brakes, calling his men to their stations; he seemed to have done actively and energetically what a prudent man would do under the circumstances.
    Now the Supreme Court of this state has made some declarations in regard to the duty of engineers in cases of that kind, in a case that went up from Sandusky county (N. Y. & St. L. R. R. Co. v. Kistler, 66 Ohio St., 326). I read from page 338:
    “While engineers of locomotives are expected from their training, experience, and the nature of their duties, to be equal to almost any emergency in the management of their trains, yet it must be remembered in their favor that they have mind and nerves the same as other people, and when they are suddenly and unexpectedly confronted with eminent peril or danger to themselves or to the persons and property in their charge, by obstructions on the track or about to go thereon, they can not be held to a strict course of conduct to prevent injury to persons and property not connected with the train, so that the action taken is in good faith, and at the time believed to be the best. When a person or animal is seen approaching the track, and it becomes evident that he or it will not stop, but attempt to cross, it is sometimes safer to slow down or stop the train, and sometimes safer to increase the speed and get the train across first. The course to be pursued must be instantly determined by the engineer at the peril of himself and the persons and property in his charge and the course selected by him and carried out in good faith in the face of such peril, and in view of the surrounding circumstances, can not constitute negligence on his part, even though others might be able to suggest and point out afterwards, that' a different course would have been less liable to result in injury. As to the persons and property in his charge, the engineer must use the greatest care, but as to property and persons not connected with the train, he must use only ordinary care. He must therefore be allowed to determine for himself in good faith, upon the spur of the moment, and in view of the danger before him, the course to be pursued for the safety of the persons and property in his charge, without being called to a very strict account by those to whom he owes only ordinary care.
    “What was said by this court in Express Co. v. Smith, 33 Ohio St., 511, at page 519, is applicable to such eases: ‘There is an ex post facto wisdom, which, after everything has been done without success, can suggest something else that should have been attempted; but this is a sagacity much more astute than ordinary human foresight and can hardly furnish a fair rule by which to determine the propriety of what has been done in good faith, and with judgment exercised under the best light afforded.’ ”

      A similar doctrine is found in the case of L. & N. R. R. Co. v. Kelley, 3 Fed., 409. We are unable to see any ground for taking this case from the jury.
    Judge Parker will make a statement upon a point in this case.
   Parker, J.

Counsel for the defendant in error urge upon the hearing that the doctrine of the assumption of risks applied here, even though the engineer had no reason to anticipate these cattle upon the track — that it applied after he discovered the cattle upon the track; that when he then decided to go forward with his locomotive that he assumed the risk of the result that might follow. Now as we understand it, the doctrine of assumption of risks is based upon the opportunity the servant has to exercise his option or election to remain in the employment and proceed with the work of the master; and that it does not apply to eases where the servant is met or confronted by an emergency that does not afford him an opportunity to exercise such election. Manifestly under circumstances of this kind, he could not lay down his work, he could not leave his. locomotive and say “I will no longer remain in the employ of this railroad company, because, if I do, I assume the risk that may result from these cattle being upon the track ahead of me. ’ ’ The doctrine of the assumption of risk is not applicable to such a case at all. If he went forward negligently, it would be the doctrine of contributory negligence. If the doctrine of assumed risk should apply, then it would follow that the master (or the railroad company) would never become liable no matter how negligent it may have been in allowing cattle to come upon the track; that no cause of action ever could accrue to the engineer, because.he assumed that risk; not that his cause of action was defeated by his subsequent contributory negligence; and upon that subject I think this case of The L. & N. R. R. Co. v. Kelley, supra, is in point. Indeed, so far as we can discover, there is no break in the line of authorities as to this principle. I will read from page 409 of this case the following paragraph:

“In the order of presentation in the briefs, the first request was to the effect that if the plaintiff knew that the deadwoods of the cars he was attempting to couple were out of repair, that there were holes and pitfalls in the roadbed, and that the fireman in charge of the engine was incompetent, and remained in the service of the company without making objection, and without receiving any promise that the cause of danger mentioned should be removed, he was not entitled to relief. This was properly refused. If the defendant in error knew that the deadwoods were out of repair, he must, in all probability, have acquired the knowledge on the spot; and, consistently with the terms of instruction, his supposed knowledge of the condition of the track and of the inoompetency of the fireman as engineer may have come to him so recently as to have afforded him no opportunity to make objection or complaint. Besides, even if he had the supposed knowledge, it was a question for the jury whether or not under the circumstances, he ought to have attempted to make the coupling, and in so doing was himself negligent, or to be considered as having voluntarily assumed the risk of his act. The question was essentially one of contributory negligence and the instruction should have been so framed as to leave it to the jury.” (Citing cases.)

Harry Scribner, for plaintiff in error.

A. L. Smith, for defendant in error.

Haynes, J.

It follows that the judgment will be reversed and the cause remanded for a new trial.


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    FAILURE TO PLEAD A PROMISE TO PAY.
    [Circuit Court of Hamilton County.]
    James W. Brown v. B. Merrill Ricketts.
    Decided, February 20, 1905.

      Pleading — Contract—Failure to Aver Agreement to Pay — Implied Agreement — Meeting of Minds — Special Verdict — Judgment Thereon.

    1. A failure to aver in a suit for services upon an implied contract that the defendant agreed to pay what the services were worth, is not ground for a reversal oí a judgment for such services, where ■upon consideration of the whole record it appears that substantial justice has been done. -

      2. If, in such case from the facts found by the jury in a special verdict, the conclusion of an agreement to pay i® so self evident that •no one would doubt it, the court is fully warranted in granting judgment ithereon.
    3. For a jury to set forth in a special verdict the conduct from which a request is implied, would be to- present the evidence in proof of the fact established by the evidence, and in violation of Section 5200, Revised Statutes.
    Giefen, J.; Jelke, J., and Swing, J., concur.
    The plaintiff below, Dr. Ricketts, avers in his petition, in substance, that at the instance and request of defendant, James W. Brown, he rendered professional services to Frank Brown, a son of the defendant, and that the fair value of such services is $780.
   The defendant by answer admits the performance of the services, but denies each and every other allegation of the petition, and further avers that Frank Brown, the son of the defendant, was over twenty-one years of age at the time of the alleged request by the defendant.

The jury returned a special verdict, the substance of which is contained in the first and fifth paragraphs, to-wit:

“That prior to the furnishing by plaintiff of the surgical operation and other services, board, lodging and nursing for the treatment and care of Frank Brown, the defendant requested plaintiff by his conduct to furnish the same; that at the time of said request plaintiff expected defendant to pay him, and defendant expected to pay plaintiff for the same; that the reasonable value thereof at the time they were furnished was $600; that the furnishing of the same was completed on March 31, 1900, and that payment thereof was then demanded by plaintiff from defendant and refused.
“That plaintiff expected to be paid by defendant, and defendant expected and intended to become liable to plaintiff at the time when plaintiff furnished professional services, board and' lodging in the healing and care of defendant’s son; that the reasonable value of the same at the time when the same was so furnished was $600; that the furnishing of the same was completed on March 31, 1900, and payment thereof was then demanded by plaintiff from defendant and refused.”

It is claimed that the court erred in rendering judgment upon the special verdict in favor of the plaintiff, for the reason that the jury did not find all the facts necessary to sustain such judgment. The verdict, however, responds to every material averment in the petition controverted in the answer, and if the special verdict is insufficient to support the judgment the petition itself does not state facts sufficient to constitute a good cause of action, unless they may be supplied by implication.

The principal objection to the special verdict is that the jury failed*to find that the defendant promised to pay the plaintiff for the services requested. We think the better practice is to aver that the defendant agreed to pay the plaintiff as much as said services were worth (Swan’s Pleading and Precedents, 503), although the omission seems not fatal to the cause of action. Bliss on Co-pleading, Section 152; Pomeroy’s Code Remedies, Section 538 and following.

At all events, the defendant made no objection to the petition, but proceeded with the trial as though the petition contained' such averment. If, upon consideration of.the whole record, substantial. justice has been done, the court will not reverse for failure to plead a promise to pay. It is said, however, that the jury should nevertheless have found such fact, and counsel rely upon Railway Company v. Gaffney, 65 O. S., 104, the first proposition of the syllabus being:

“The meeting of the minds of parties upon its terms is necessary to the making of a contract; and this is so whether it be an express contract or an implied one, if, -in the latter case, the contract to be proved is an actual one as distinguished from a constructive contract.”

The jury in this ease have found that the defendant requested plaintiff by his conduct to furnish the services; that at the time of said request plaintiff expected defendant to pay him and defendant intended to become liable to plaintiff. This shows a meeting of the minds of the parties upon all the essential terms of the contract unless it be necessary to find that the defendant promised to pay a reasonable value of the services. In the 15 Am. & Eng. Ency. of Law, page 1081, the rule is stated as follows:

“It is well settled that where one performs the services for another at his request, but without any agreement or understanding as to wages or remuneration, the law implies a promise on the part of the party requesting the services to pay a just and reasonable compensation, unless there is a family relation existing between the parties, and this remuneration is recoverable on a quantum meruit.”

W. A. Hides, for plaintiff in error.

George H. Kattenhorn, for defendant in error.

Professor Keener, in his work on Quasi-Contracts, at pages 4 and 5, says:

“Suppose, however, that A should write to a livery-keeper simply requesting him to send a coupe to his house at a certain hour, and the coupe was sent and used by A, there would certainly be no express contract, since A has never in words said that he intended to assume any obligation in favor of B. And yet A’s conduct speaks quite as loudly as words, and leaves no doubt of his intention to enter into a contract with B for the use of the coupe. No one would question that A had communicated such an intention to B, and that he can be fairly said to have promised to pay him for the use of his property.”

If the conclusion is so self-evident that no one would question it, then certainly it is such a conclusion as the court may draw from the facts already found by the jury. It would have added no fact to the special verdict had the jury found that a contract was made by the parties, and that the defendant thereby became indebted to the plaintiff, each of which is a conclusion of law.

Counsel for plaintiff in error also claims that the jury should have set forth in their verdict the particular conduct from which the request is inferred or implied, but this would be presenting the evidence to prove the fact and not the fact as established by the evidence, and therefore in violation of Section 5200, Revised Statutes.

This is the second trial of the case with a like result in each, and, substantial justice being done, the judgment will be affirmed.


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    STREET ASSESSMENTS IN ACCORDANCE WITH BENEFITS.
    [Hamilton County Circuit Court.]
    Eliza R. Nulsen et al v. The City of Cincinnati et al.
    Decided, February 11, 1905.

      Street — Assessment for Improvement of — In Accordance with Benefits —Method of Apportioning.

    1. In levying an assessment for a street improvement according to benefits, regard should* be had for the depth of the lots and the relative value of each after improvement.
    2. Where the board of public service, under the pretense of levying an assessment according to benefits, in fact made no such apportionment, but simply divided the cost of the improvement by the •number of feet abutting thereon, regardless of the relative value of each lot after the improvement was made, it was a plain fraud which oan not be protected by any order that board may have made in its journal.
    Giffen, J.; Swing, J., and Jelke, J., concur.
    The plaintiffs in this action seek to enjoin the collection of certain assessments levied upon the lots bounding and abutting Imperial street, this city. The resolution of the board of public service provided that said assessment is in proportion with the benefits which result to such lots and lands from said improvement and is limited to the special benefit conferred thereby on each lot or parcel of land assessed.
   The petition contained the following averment:

“That in making said assessment said board of public service did not regard or attempt to regard the benefits thereof to the respective lots, but solely to apportion the costs and expense of the improvement upon the lots abutting thereon in proportion to their respective frontages upon said improvements. That said assessment while purporting to be according to benefits, is actually an assessment by the front foot, each front foot being assessed at the same rate although not similarly benefited. ’ ’

These allegations are fully sustained by the evidence. It appears upon the face of the proceedings that each foot of ground abutting on the improvement is assessed for the same amount regardless of the depth of the lot, and the evidence considered in connection with a view of the premises shows that the benefits, if any, conferred were by no means uniform, and that in one case, at least, to-wit, lot No. 44, no benefit whatever was conferred.

~W. H. Whittalcer and Chas. M. Leslie, for plaintiffs.

Chas. J. Hunt, City Solicitor, contra.

It is claimed, however that this court can not inquire into the proceedings of the board for the reason that it kept a journal record of its proceedings which imports absolute verity. But if the board under a pretense of levying an assessment in proportion to the benefits conferred upon the several lots abutting upon the improved street did in fact make no such apportionment, but merely divided the cost of improvement by the number of feet abutting thereon, regardless of the depth of the lots and regardless of the relative value of each after the improvement was made, it would be and was a plain fraud, which could not be protected by any entry which the board may have made in its journal to the contrary. Chamberlain v. Cleveland, 34 O. S., 551.

The testimony shows that lot No. 43 was of the value of $300 after the improvement, and lot No. 218 was of the value of $625. The limit of the assessment being twenty-five (25) per cent, of such value, the collection of all over seventy-five ($75) dollars upon lot No. 43, and all over one hundred and fifty-six and twenty-five one hundredths ($156.25) dollars on lot No. 218 will be enjoined, as well as the entire assessment on lot No. 44.

The other alleged objections against the assessment are not well taken, and a decree may be entered in accordance with the above finding.


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    REMOVAL OF GOODS WITHOUT CONSENT ENDORSED ON POLICY.
    [Circuit Court of Cuyahoga County.]
    T. F. Walsh & Co. v. Queen Insurance Company of America.
    Decided February 20, 1905.

      Fire Insurance — Removal of Goods Without Consent — Renders Policy Void — Promise of Agent to Make the Proper Entries Without Avail.

    Where goods insured “while located and contained as described herein, and not otherwise” under a standard form policy, are removed to another location without the written consent of the company to such removal indorsed upon the policy, there can be no recovery under the policy for loss by fire sustained after such removal, notwithstanding the insured notified the agent of the company of .the proposed removal, and the agent said he would attend to the matter and see that the proper entries were made so that the insurance would be preserved. Ohio Farmers Insurance Go. v. Burget, 17 C.'C., — , distinguished.
    Winch, J.; Marvin, J., and Henry, J., concur.
    Error to the court of common pleas.
   Plaintiff in error brought this action in the common pleas court against defendant in error to recover for a total loss by fire under a policy of insurance issued to him by the defendant company.

The petition sets forth that on March 19, 1901, he was the owner of a certain stock of merchandise located in the building No. 399 Ontario street, Cleveland, Ohio; that on said day in consideration of the premium paid by plaintiff, the defendant company insured plaintiff for one year against loss or damage by fire to the amount of $500 on said property; that on or about August 7, 1901, by permission of defendant and with its full knowledge and consent, plaintiff removed said merchandise so insured from 399 Ontario street to 373 Ontario street; that no change was thereby made increasing said risk without the consent of defendant, nor was there any fraud, intentional or constructive, on the part of the plaintiff in the removal of said goods; that on February 18, 1902, all of said insured property was totally destroyed by fire, of which plaintiff gave defendant notice and filed written proof of loss; that plaintiff complied with all the conditions of said policy, but defendant refuses to pay, etc.

The answer of the company admitting plaintiff’s ownership of the property, the issuing of the policy, payment of premium, removal of the property, its destruction by fire and defendant’s refusal to pay, also contains a denial of all other averments in the petition.

The second defense of the answer is.as follows:

“For a second defense to the petition herein, defendant says that said contract of insurance entered into between defendant and T. F. Walsh & Co., on or about said 19th day of March, 1901, among other things contained the following provisions, to-wit:

“Queen Insurance Company of America, in consideration of six.and 25-100 dollars premium, does insure T. F. Walsh & Co., for the term of one year from the 19th day of March, 1901, at noon, to the 19th day of March, 1902, at noon, to an amount not exceeding five hundred dollars, to the following described property while located and contained as described herein, and not elsewhere, to-wit:

“ ‘T. F. Walsh & Co. $500. On stock of merchandise consisting principally of butter, eggs, cheese and olther dairy products, dishes, china, glassware, store and office furniture and fixtures, including cooler, iron safe, scales, coffee mill, stoves, awning and other goods not more hazardous; all while contained in or attached to the three-story brick, gravel roof building, occupied for store and dwelling purposes, situate No. 399 Ontario street, Cleveland, Ohio.

“ ‘Other insurance permitted without notice until required. Gasoline stove permit attached.’ And the further provision:

“This policy is made and accepted subject to the foregoing stipulations and conditions, together with such other provisions, agreements, or conditions- as may be endorsed hereon or added hereto, and no officer, agent -or other representative of this company shall have power to waive any provision or condition of this policy except such as by the terms of this policy may be the subject of agreement indorsed hereon or added hereto, and as to such provisions and conditions no officer, agent or representative shall have such power or be deemed or held to have waived such provisions or conditions unless such waiver, if any, shall be written upon or attached hereto, nor shall any privilege or permission affecting the insurance under this policy exist or be claimed by the insured unless so written or attached.

“Defendant further says that said T. F. Walsh & Co., .on or about the 7th day of August, 1901, removed the merchandise and property covered by said contract of insurance from the premises at No. 399 Ontario street, the location of the property as named in said contract of insurance, to premises No. 373 Ontario street, contrary to the provisions -of said contract, and without the consent or knowledge of this defendant; that no agreement or consent to such change of location of said property was written or endorsed upon or attached to said contract; that by reason thereof said contract of insurance has become and is null; void and of no effect. ’ ’

Other defenses are pleaded in the answer, but it is not necessary to consider them here,

A reply filed by plaintiff admits the terms of the policy pleaded in the answer, and further avers:

“That prior to the removal of the subject of said contract of insurance from 399 Ontario street to 373 Ontario street the plaintiff, for the purpose of complying in all respects with the provisions of said contract of insurance,' started to go to the office of defendant’s agent in the city of Cleveland, Ohio, for the purpose of having the permission of said defendant endorsed and written upon his said policy; that just before reaching the office of said defendant agent and representative in Cleveland, he met said agent upon the street, and in reply to a question from said agent stated to said agent that he was intending to- remove the subject of said contract of insurance from said location No. 399 Ontario street to No. 373 Ontario street and that he wanted his papers put in proper shape to preserve his insurance; that thereupon said agent took a minute of what he had stated and told him that it was unnecessary for him to go to the office; that he would attend to the matter and see that the proper entries were made so that his insurance would be preserved and that plaintiff need not bother himself any further about it; that he would attend to the matter in proper shape; that acting upon said declarations and statements of said agent of defendant, and relying and believing that said agent of defendant would make the proper entries and preserve his insurance the plaintiff took no further steps in the matter, but went on thereafter and removed the subject of said insurance from their first location to said second location. And the plaintiff says that he was misled by the acts and declarations of said defendant's agent in the premises, to his injury; that he acted in good faith and in all things attempted to conform to the requirements of said contract. That by the acts and declarations of said agent he was prevented from taking any further steps in the matter, believing any further action on his part to be unnecessary, and he says that by reason of the said acts and declarations of the defendant’s agent the said defendant is estopped from asserting and claiming that the plaintiff has forfeited his insurance, and he further says thai. by the acts and declarations of its agent aforesaid the defendant waived' -a literal compliance with the requirements pleaded by it in its answer.”

With these pleadings the case was called for trial, whereupon the defendant moved for judgment upon the-pleadings, which motion was granted and judgment entered for it. This action by the trial court is now in this court for review.

It will be noticed that by the terms of the policy the goods were insured “while located and contained as described herein, and not otherwise” and that the policy was of the so-called standard form, providing that no officer or agent shall have power or be deemed to have waived any provisions of the policy, nor shall any privilege or permission affecting the insurance exist or be claimed by the insured unless said waiver, privilege or permission be written upon or attached -to the policy.

It -is conceded that when plaintiff removed his goods to a location not mentioned in the policy they ceased to be covered by the insurance, unless the company granted his permission to change their location, or assented thereto. It is conceded by the pleadings that no such permission or assent was given plaintiff by any officer or agent of the company, in writing, endorsed upon or attached to the policy. If, in law, an agent of the company could not waive this provision, or by his conduct 'estop the company from claiming the benefit of it, then the trial court was right in rendering judgment' upon the pleadings.

The proposition is hardly an open question in this court. The trial court followed the ruling of this court in the case of The Rochester German Insurance Company v. Mary Baldwin, decided at the May Term, 1902, in Lorain county (unreported).

That was a ease in which the insured, after the issuing of the policy, conveyed the insured property to his wife. No endorsement of the transfer of the interest was made upon the policy which was in the standard form, providing ‘ ‘ that if there is any change in the title to the property without the consent thereto by the insurance company endorsed on the policy, the contract shall be void,” and “that no agent has authority to waive the conditions of the policy.” Loss by fire having accurred, the court held that the wife could not recover, líale, J., saying:

“It has been many times held by our Supreme Court that where no restrictions are placed upon the agent, authorized to make contracts and issue policies, he may waive the conditions of the policy requiring written endorsement thereon of the consent of the company to changes made after it is issued. A waiver by such agent has frequently been sustained and policies enforced which would be void but for such waiver. But where there is a general clause in such policy, and it contains» the stipulation ‘That no agent has authority to waive the conditions of the policy,’ the later rulings have been otherwise.”

Dawley & Beecher, for plaintiff in error.

-Kline, Tolies & Goff, for defendant in error.

The later rulings referred to are Union Central Life Insurance Co. v. Hook, 62 O. S., 256, a life insurance case; Eureka Fire & Marine Insurance Co. v. Baldwin, 62 O. S., 368, a fire insurance case; Travelers Insurance Co. v. Myers & Co., 62 O. S., 529, an accident insurance case; Assurance Co. v. Building Association, 183 U. S., 208.

Counsel for plaintiff in error have cited to us the case of Ohio Farmers Insurance Company v. Burget, 17 C. C., 619, affirmed by the Supreme Court without report (46 W. L. B., 225), but an examination of the policy sued on in that case shows that it was an old form policy, and, while it contained the provision that the policy should become void unless consent in writing was endorsed upon it, in certain instances, it did not contain a provision limiting the power of the agent to waive conditions, nor the further limitation that nothing should be construed to be a waiver unless endorsed on the policy. It is unfortunate that the syllabus of that case was not prepared by the court or the - judge delivering the opinion, for it goes farther than the facts in the case warrant and states a proposition of law never enunciated by this court nor involved in the case.

We conceive no greater merit in the defense of estoppel by the acts of the agent than in the defense of waiver of the conditions of the policy by him. Indeed there is less merit to it; the strongest estoppel would be his act of express -waiver. The two defenses are considered as one in 62 O. S., 540.

Judgment affirmed.


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    CONTRIBUTORY NEGLIGENCE AT A GRADE CROSSING.
    [Circuit Court of Portage County.]
    H. L. Hine, Administrator of the Estate of George Wilkie, Deceased, v. The Erie Railroad Company.
    Decided, February, 1905.

      Negligence — Questions as to at a Grossing — Of a Highway and Railway at Grade — Obstruction of View — Failure of Approaching Train to Bloio Whistle or Ring Bell — Distraction from, Headlight and Escaping Steam, of Locomotive Standing on Sidetraelc — Questions for the Jury.

    Whether or not a traveler upon a public highway who is killed at a grade crossing of a steam railroad is guilty of contributory negligence depends upon the circumstances of ithe particular case; and where the railroad company is guiilty of negligence in unnecessarily obstructing' the view of an approaching train which did not blow the whistle or ring the bell, the company at ithe same time permitting a locomotive with a brilliant headlight to stand on a' sidetrack within one hundred and fifty feet of the highway, headed toward it, and blowing off steam; the traveler not being able to see the approaching train by reason of the obstructions until his horses are on ithe sidetrack and are also so frightened by the noise of the escape of steam and. the glare of the headlight from the locomotive on the sidetrack as to require -the attention of the traveler to control them. Held: It can nolt be said as a matter of law that the traveler is guilty of contributory negligence in not seeing, or in going ahead after seeing the approaching train, brit the question of his negligence should be left to the determination of the jury.
    Cook, J.; Burrows, J., and Laubie, J., concur.
    Error to the Court of Common Pleas of Portage County.
   The decedent, George Wilkie, was killed at a grade crossing over tbe tracks of the Erie Railroad Company in the village .of Mantua, this county. The time of the accident was after six o’clock in the evening and quite dark. Main street, on which the accident occurred, runs north and south and1 at right angles with the tracks, and is about fifty feet wide. At the point of the accident the company has two main tracks, one for east bound and tbe other for west bound trains, and also a long switch or siding.

Wilkie was driving south with two horses hitched to a large farm wagon. The highway at this point was down grade southward, and his horses were spirited and afraid, of the cars. Between the side-track, which was the north track, and the first main track there was a space of fifteen feet and between the two main tracks a space of a thirteen feet. As you approach the crossing from the north there is on the west side of the street a large building formerly used as a warehouse by the company, but at the time of the accident and for many years previously it had not been used for any purpose. This building stood on the right of way of the railroad company and within eight feet of the north rail of the side-track. West of this building was a high embankment, so that it was impossible for a traveler on the highway to see westward until within at least eight feet of the north rail of the side-track.

At the time of the accident there- was -a locomotive standing on the side-track on the east side of the highway about one hundred any fifty to two hundred feet from the same. This locomotive was headed towards the highway -and had a brilliant headlight and was blowing off steam. The train that killed the decedent • approached from the west. It was coming into the station, which was immediately east of the highway, and was running from five to ten miles an hour. A number of witnesses testified that they heard no whistle sounded by the locomotive of this train, heard no bell or any other warning of its approach, to the highway or station. The company had an electric bell at this crossing that worked automatically for the- purpose of warning travelers on the highway of the approach of trains. This electric bell did not ring upon the occasion of the accident, and was evidently -out of order. There is no evidence that the decedent knew of this electric bell. The evidence showed that in coming down the street the horses driven by Wilkie were ‘ ‘ on the bit, ” as it was called; that is, he was. holding them with a tight rein standing in the middle of the wagon. Some of the witnesses testified the horses were trotting; one witness said, more prancing than trotting, as they appro-ached the side-track. All the witnesses testified that as Wilkie approached the crossing he kept a strict lookout at the locomotive standing on the siding east of the highway, apparently holding hard on the horses', 'but one witness testifies that as he passed the building on the west he looked westward up the tracks. There was no evidence that he stopped his team. A number of witnesses testified that, seeing the approach of the train from the west, they hallooed to him, hut there is no evidence that he heard them. It was this train that struck the team, killing him and the horses.

At the close of the evidence for plaintiff showing this state of facts the trial judge withdrew the evidence from the jury and dismissed the petition of plaintiff, and the error and the only error assigned is that the trial judged erred in so doing.

That the railroad 'company was guilty of negligence' and gross negligence must be conceded. It permitted an old unoccupied building to remain on its premises, with no apparent use, for years, entirely obstructing the view to the westward until the traveler’s horses were on the side-track. It permitted a locomotive to stand very close to the 'highway on the east side with a glaring headlight and blowing off steam that necessarily would frighten the horses of The traveler. It permitted its train to approach the highway and station without blowing the whistle or sounding the bell, as it under the law was required to do. Recognizing the dangerousness of this crossing it put up an electric bell to warn travelers of tbe approach of trains and yet-permitted the bell to become out of order, thereby making it a snare rather than a warning.

But it is said, 'admitting all this, yet the decedent was guilty of such negligence that absolutely precluded him from recovering.

It must be admitted that, under ordinary circumstances, the traveler is guilty of negligence when he is caught at a crossing, and this court has been assiduous in upholding this theory, but there are cases in which it is not so and the court is not justified in saying as a matter of law that the traveler is guilty of contributory negligence. "Where the crossing is of such character and the circumstances surrounding the traveler at tbe time of the accident of such a nature as to put him in a perilous situation and to divert his attention, then a different rule applies.

In the case of Pennsylvania Railroad Company v. Snyder, 55 O. S., 197, it was held:

“When a person without his fault is placed in a situation of danger, he is not to be held to the exercise of the same care and circumspection that prudent persons would exercise where no danger is present; nor can it be said that, as matter of law, he is guilty of contributory negligence because he fails to make the most judicious choice between hazards presented, or would have escaped injury if he had chosen differently. The question in such case is not what a careful person would do under ordinary circumstances, but what would he be likely to do, or might reasonably be expected to do in the presence of such existing peril, and is one of fact for the jury.”

In the opinion Chief Justice Williams says:

“Another ground urged for the reversal of the judgment is, that the evidence, without conflict, establishes negligence on the part of the defendant in error which contributed to the injury he sustained. Without entering into a general review of the evidence relating to the manner in which the injury was caused, or the conduct of the defendant in error, it is sufficient to say that, without his fault, and while in the performance of his duties in handling the ear in question, he found himself in a situation of danger, on account of a defective ladder attached to the car which, at the' time, he was attempting to ascend in order to manage the brakes as his duties required. The ladder had one broken round and was loose and shaky; but that was not discovered by him until after he had got upon it and was in the effort to rea^h the top of the. car. While engaged in that effort, and in a very brief time after he stepped on the ladder, he was thrown to the ground and injured. It is claimed that when he discovered the danger he was in, he should have stepped to the ground, and that 1® could have done so with safety. By his failure to do that, it is contended, he brought about- the injury, or at least contributed to produce it. When confronted with his peril, two ways of escape would naturally be suggested: one to. leap from the car to the ground, and the other to do as he did, strive to reach the top of the car. It is not certain that adoption of the former course presented by the alternative would have proven better than the latter; it might seem so from a deliberate survey of the situation after the disaster had occurred; but when it is considered that it occurred in the darkness of the night, while the ear was in motion, without opportunity of accurate observation of the condition of the ground, it is little more than conjecture that the defendant in error could, or would, by leaping to the ground, have escaped injury. And, in the exigencies of the situation in which he was placed, it could neither be expected nor required that he should exercise the same deliberate judgment that prudent persons would exercise where no danger is present, nor make the most judicious choice between, hazards. The question in such case is not what a careful person would do under ordinary circumstances, but what would he be likely to do, or might reasonably be expected to do in the presence of the existing peril; and is one of fact for the jury. Measuring the conduct of the defendant in error by this rule, the jury have found he was not guilty of contributory negligence, and our duty does not lead us into an inquiry to ascertain on which side the preponderance of the evidence may be found. ” ...

In the case of The B. & O. R. R. Co. v. McClellan, Admx., 69 O. S., 142, it is held:

“Where the testimony of the plaintiff raises a clear presumption of negligence on his part’which directly contributed to his injury, and no testimony is tffered by him tending to rebut that presumption, it is the duty of the trial court to sustain a motion by the defendant made at the'conclusion of plaintiff’s evidence, to direct, a verdict, and a refusal to sustain such, motion is error.”

Judge Spear in the opinion says, referring to the case in hand:

“The ease is wholly dissimilar from the reported cases where a close question of fact appears and the judgment’ cf a jury is required to determine it. As in Hart v. Devereaux, 41 Ohio St., 565, where the deceased was driving a pair of spirited horres over a crossing at the side of which stood a locomotive blowing off steam which frightened the horses, and so engaged the driver’s attention that he did not observe the approach of an express train coming rapidly and without warning from the opposite direction, the view down the track being obscured by buildings, and was killed by the express. As, also in Railway Co. v. Snell, 54 Ohio St., 197, where there was a conflict in the evidence as to whether the injured party was exercising his faculties of seeing and hearing, and it was held a proper question to be submitted to the jury.”

In the case of Cincinnati Street Ry. Co. v. Snell, 54 O. S., 197, it is held:

“3. A person about to cross the track of a street railway at a street crossing is bound to exercise care proportioned to the danger to be avoided and the consequences which might result from the want of it, conforming in amount and degree to the particular circumstances surrounding him; but it is only ordinary care which is required, that which might reasonably be expected of persons of ordinary prudence. Ordinary care does not require 'him to anticipate negligence on the part of those operating the railway. And while he should use his faculties for his own protection, it is not negligence per se for him to omit to look in both directions for the approach of a car. Whether it is or not negligence depends upon the circumstances.

“4. Where the evidence of the plaintiff shows actionable negligence on the part of the company, and the questun of contributory negligence of the plaintiff depends upon a variety of circumstances from which different minds may reasonably arrive at different conclusions as to whether there was contributory negligence or not, the question should be submitted to the jury under proper instructions; and it is error in such case for the court to direct a verdict for the defendant.

“5. And where in such case the question as to whether or not the plaintiff exercised his faculties of seeing and hearing before attempting to cross is in issue, and the oral evidence tends to show that he did, while circumstantial evidence tends to disprove that claim, a condition is presented involving such variety of circumstances as makes it proper to submit the question to the jury.”

In the opinion Judge Spear says:

“The ground upon which the common pleas directed a verdict was that the plaintiff’s evidence disclosed contributory negligence of such a character as to preclude a recovery. In other words, the holdiffg was that, as matter of law, the plaintiff was guilty of contributory negligence. If the plaintiff’s conduct, as shown by the undisputed facts, left no rational inference but that of negligence, then the ruling was right; but if the question of contributory negligence depended upon a variety of circumstances from which different minds might arrive at different conclusions as to whether there was negligence or not, then the ruling was wrong. This follows from the rule given in Ellis & Morton v. Ins. & Trust Co., 4 Ohio St., 627. Applying the doctrine of that case, the motion involved an admission of all the facts which the evidence in any degree tended to prove, and presented only a question of law, whether each fact indispensable to the right of action, and put in issue by the pleadings, had been supported by some evidence. If it had been, no matter how slight the evidence, the motion should have been denied, because it was the right of the plaintiff to have the weight and sufficiency of his evidence passed upon by the jury. But if he had failed to give evidence tending to establish any fact without which the law would not permit a recovery, he had nothing to submit to the jury, and a question of law only remained. We are aware that this rule is much criticised, and plausible arguments against its reasonableness have been adduced, but it has been followed uniformly and should be applied until definitely overruled, or changed by legislation.

“The plaintiff was himself bound to use ordinary care, such degree of care as a man of ordinary prudence commonly uses under like circumstances; care proportioned to the danger to be avoided, and the consequences which might result from the want of it, conforming in amount and degree to the particular circumstances under which it was to be exercised. If all people exercised the greatest possible caution in approaching and crossing railroad tracks, accidents would be much less frequent than they are; but the law does not require extreme care. Such care, and such only, as ordinarily prudent persons could reasonably be expected to exercise under the circumstances is the full measure. In order, therefore, to judge whether or not a fair question was presented regarding plaintiff’s contributory negligence, we must inquire into the circumstances as disclosed by the evidence he introduced.”

Under these rules' which are the settled ones in this state, we think the question of the contributory negligence of the deceased in this case should have been left to the jury. He had a right to rely on the fact that the company in the management of its trains would not be guilty of such gross negligence as to not sound the whistle or ring the bell in approaching the crossing; that it would see to it that its electric bell would be- in order and give warning to the traveler on the approach of trains and particularly so when the crossing was in the condition it was that night. Furthermore, his horses must have been upon the side-track before he could have seen the approaching train, and, under the circumstances, very probably could not have heard it at all. When his horses’ feet were upon the sidetrack his attention necessarily — with a spirited team, frightened by the glare of the headlight and the noise of escaping steam— would be directed to the locomotive on the side-track, not knowing whether it was about to move or not. When he looked to the west, if he did so, he might have seen the approaching train and, if he had then stopped, probably he might have saved his life — possibly he might not.

Ingell & Webb, for plaintiff in error.

-Sicldall, for defendant in error.

Was the going ahead under such circumstances such evidence “as left no rational inference but that of negligence?” “Might different minds reasonably arrive at different conclusions as to whether there was contributory negligence or not?”

' lie may have misjudged the distance of the approaching train in the glare of the headlight and the confusion surrounding him. If he stopped, the locomotive on the side-track might move down upon him. His team, already restless and frightened, might become unmanageable. Who can judge with cer-, tainty what a person unaccustomed to such situation should or would or ought to do under such circumstances?

“It can not be said as a matter of law that he is guilty of contributory negligence because he failed to make the most judicious choice between hazards presented, or would have escaped injury if he had chosen differently. The question in such case is not what a careful person would do under ordinary circumstances, but what would he be likely to do, or might reasonably be expected to do in the presence of such existing peril, and is 'one of fact for the jury.”

Judgment reversed and cause remanded for a new trial.


text:
    TESTIMONY OF ATTORNEY AS TO COMMUNICATION BY CLIENT.
    [Circuit Court of Cuyahoga County.]
    Samuel H. Smart v. The Masters and Wardens of Nova Caesarea Lodge No. 2.
    Decided, December 12, 1904.

      Attorney and Client — When Communication by Client to Attorney— Is Admissible as Evidence — Election as to Liability for Debt — Ms-Between Principal and Agent — Charge of Court — Repetition of Special Charge in General Charge.

    1. The provision of Section 5241 that an attorney shall not testify in certain respects “concerning a communication made to him by his client in that relation, or his advice to .his client,” is applicable only where the communication is of such a character that it would not have been made except for that relation.
    2. The appropriation-, otherwise than by attachment or execution, of furniture or other property found in demised premises, in part satisfaction of a claim for unpaid rent, does not amount to añ election to hold the tenant rather than his principal for the balance of the claim, nor does the rendering of the account to the agent, or the charging of. him with it upon the hooks, of the landlord amount to such an election.
    3. The repetition in the general charge to the jury of a special charge properly given either before or after argument, is not necessarily erroneous. Rupp v. Schaffer, 21 C. C., 643, disti-n- ■ guished.
    Marvin, J.; Hale, J., and Winch, J., concur.
    Error to tbe court of common pleas.
   Suit was brought by the lodge against Smart for rent of offices in the Masonic Temple in Cincinnati.

The defense was a general denial.

The plaintiff’s claim was that the office in question was rented by the defendant through his agent, Newcomer. As matter of fact the offices were occupied by Newcomer. To establish plaintiff’s claim he introduced as a witness, John E. Bruce, -an attorney at law, of .Cincinnati. His testimony was taken by deposition, and he testified, among other things, as follows;

“Q. 3. Have you had any business relations with Mr. Smart during the last five years; and if so, what were they?

“A. I was his attorney from the latter part of 1898 until, the spring of 1900 in connection with certain street railroad franchises which he was seeking to obtain in this section of the state, and also in the matter of the examination of the title to some real estate, for the purchase of which he was negotiating as a site for an acetylene gas machine plant.

“Q. 4. What, if any, conversation did you ever have with Mr. S. IT. Smart relative to the rental of offices in the Masonic Temple in Cincinnati?

“A. I had a talk personally with Mr. Smart in this city relative to both an acetylene gas plant, and a street railroad and at that time he stated that Mr. I. W. Newcomer would represent him in both matters; that he thought it would be better for Mr. Newcomer to have an office as near mine as possible, as there would be necessity for certain conferences, and that in all of the work here, especially in the matter of the street railway franchises, he desired his' name to be kept entirely confidential and not given to any one. I told him there were some vacant offices opposite mine in the Masonic Temple which he could secure at a very reasonable rate, but that the management of the property required a guarantee from new tenants of whom they knew nothing that the rent would be paid, and that from my personal knowledge Newcomer was wholly unable to pay anything, but that if he did not want his name known, I would give the management the necessary assurance that the rent would be paid. Mr. Smart said that that would be all right and that the rent would be paid promptly by him. The manner of the payment of the rent was not spoken of as I now remember. As soon as the necessity for offices arose, Mr. Newcomer came to me and I took him to see Mr. P. R. Fortney, the superintendent of the building; the offices were secured and I became security for the payment of the rent.”

Upon the trial objection was made to this question, which, being overruled, a motion was made to take from the jury all of the answer down to and including the words “The manner of payment was not spoken of as I now remember.” This motion was overruled and the action of the court in regard to both the overruling of this motion and the overruling of the objection to the question is complained of as error.

Section 5241, Revised Statutes, provides as follows:

“The following persons shall not testify in certain respects: First, an attorney concerning a communication made to him by his client in that relation, or his advice to his client.” * * *

The offices were rented between the dates mentioned by Mr. Bruce, as the time during which he acted as attorney for Mr. Smart in certain matters named. We do not understand that under this section of the statute Mr. Bruce would be an incompetent witness on every subject conversed about between him and Mr. Smart. It is only those things which come to an attorney by reason of and in connection with the matter for which the one is acting as attorney for the other and must be in the nature of communications which would not naturally have been made but for that relation. In short, there must be something confidential in the nature of the communication in order to make the attorney incompetent as a witness. Not only so, but it is settled that to render the attorney incompetent the communication must have been made in the ease in the relation of attorney and client, and it must be strictly in that relation that the communication was made in order to render it incompetent.

There is nothing in the nature of this communication which in our judgment renders it obnoxious to the statute', and there was no error in admitting this evidence.

A letter written by Mr. Smart to Mr. Bruce was admitted in evidence, and there is nothing in the letter which makes its admission obnoxious to the statute, and there was no error in admitting this letter.

It is further urged as error that the court permitted the jury to consider the case as against Smart notwithstanding the fact that the account made out for the rent was made out against Newcomer, and that it appears from the evidence that certain furniture left by Newcomer in the office when he quitted the rooms was appropriated by the plaintiff in part payment of the rent. It is said that each of these acts, and especially the latter, was an election on the part of the plaintiff to hold Newcomer, Clearly, the fact that the charge was made on the books of the plaintiff against Newcomer would not necessarily constitute an election. Doubtless if tbe plaintiff had brought a suit against Newcomer and levied either by attachment or execution upon Newcomer’s furniture, this would constitute an election and be a bar to the prosecution of the suit against Smart, but it nowhere appears from the evidence how the property was taken. The natural inference is that when Newcomer left the office he left certain furniture there and that the plaintiff appropriated that furniture to the partial payment of the indebtedness for rent. This clearly would not constitute an election, for it may well be that this was done- upon the theory that the property left in the office by the agent was the property of the principal.

Complaint is further made that the court erred in giving to the jury in charge certain requests made- by the plaintiff. The particular requests' asked and given were the third, seventh and eighth, which read:

“3. If you are satisfied that the defendant had agreed with plaintiff to pay the rent, at the time Newcomer took possession of the offices, then I say to you that the fact that the rent was charged on the books of the plaintiff to Newcomer, or that the furniture of Newcomer was taken to pay part of the rent, would constitute no defense for Smart.

“7. If you find that Newcomer rented these offices for Smart and with his knowledge and consent, the fact, if it be a fact, that the contract was made in the name of Newcomer alone would be no defense for Smart.

“8. If these rooms were rented by Newcomer for Smart, with Smart’s consent, then the fact, if it bé a fact, that the claim for rent was presented first to Newcomer, would constitute no defense for Smart.”

These requests were properly given for the reasons already mentioned in this opinion in reference to the matter of election.

It is further claimed as error that the court repeated the third request of plaintiff in its general charge. An examination of the bill shows that this was done without any comment whatever on the part of the court, and we do not understand that the simple repetition of a proposition of law properly given at any time in the charge, either before or after argument, is necessarily erroneous. The case referred to by counsel, Rupp v. Schafer, 21 C. C., 643, holds that to repeat and comment and enlarge upon such request in the general charge would be erroneous.

McMillin (& Ingersoll, for plaintiff in error.

Hamilton, Hamilton & Smith, for defendant in error.

It is further urged that the verdict in this case was not sus^ tained by the evidence. That the question of whether Smart, was the principal of Newcomer in the renting of his office is close, can not be denied, but the testimony of Bruce 'and the letter written by Smart to Bruce being properly received in evidence, we think leaves the evidence such that we can not say that the verdict was clearly against the weight of the evidence, and the judgment is affirmed.