text:
    RIGHTS OF RAILWAY EMPLOYE USING TRACK AS A CONVENIENT PATHWAY.
    Circuit Court of Lucas County.
    Daniel A. Byrket v. Lake Shore & Michigan Southern Railway.

    Decided, October 30, 1906.

      Master and Servant — Negligence■—Railioays—Right of Company to JJse Either Track for the Running of Trains in Either Direction — Duty of Pedestrian and of Engineer as to Keeping a Lookout — Presumption of Negligence on Part . of the Pedestrian — Technical Construction of Rules of Company.

    1. Where an employe of a railway company, while off duty but in compliance with an order to report at a certain place as soon as possible, walks along the tracks of the company as a matter of convenience and for 'the purpose of saving time, he is not within the course of his employment while on said tracks, and the engineer of an approaching train is not bound to keep a lookout for him.
    2. If such employe, while using the tracks of the company as. a convenient pathway, failed to discover an approaching train and was struck by it and injured at a point where by a proper exercise of his faculties he might have had warning of its approach, a presumption arises that he did not exercise due care, and the burden is upon him to remove the presumption; and in the absence of any reasonable inference from the evidence which might relieve him from the presumption, or any claim that the engineer or others controlling the train had actual knowledge of his danger, it becomes the duty of the court to direct a verdict for the defendant company.
    3. A railroad company owes no duty to an employe or other person, who is using its tracks merely as a convenient path of travel, to give notice by bell or whistle of an approaching train, or to run at any particular rate of speed.
    Wildman, J.; Haynes, J., and Parker, J., concur.
    Error to Lucas Common Pleas Court.

       Affirmed by the Supreme Court without report, January 8, 1907 (75 Ohio State).

   In this case, which below was an action brought by Byrket for injuries claimed by him to have been sustained by reason of negligence of the defendant company, the plaintiff in error complains of the action of the court below in several respects. The one especially argued is the court’s charge to the jury, at the close of the evidence in the case, to find in behalf of the defendant. Several of the other alleged errors are so closely connected with this that they may be treated as incidental to it, and our judgment is, that if the court was right in instructing the jury to find for the defendant, the other alleged errors were not prejudicial to the plaintiff even if the court was in any one of its rulings in those respects in error.

The plaintiff, Byrket, had been for several years in the employ of the defendant company, sometimes acting as brakeman, sometimes in the capacity of conductor upon some of its trains, and I think at one time was known as a pony conductor or the conductor of a pony engine. At the time of the unfortunate occurrence which has been made the basis of this action, in which the plaintiff received severe injuries, he had been telegraphed to while at Jonesville, Michigan, to come to Air Line Junction in Ohio, as soon as possible, and it was while proceeding to Air Line Junction that he received the injury for which he seeks damages. He had arrived at the Union Station in Toledo and then proceeded to walk along one of the tracks of the defendant company from the Union Station to Air Line Junction, and it is indicated by the evidence that he designed at some place along this line to take an electric car, but he concluded that he could arrive at Air Line Junction, his destination, more speedily and readily by proceeding along the trade, and his claim is, that in doing this he was complying with the requirements of the defendant company; that he was in the discharge of his duty as an employe and that he had been instructed by the officials of the compány that at all times when in discharge of the duties pertaining to his employment, he must keep upon the right of way. Our judgment is, that any such instruction was not to be construed by him so technically and that the general instruction that he was to proceed to Air Line Junction and arrive there as soon as possible, was to be construed according to its reasonable spirit and that he had a right to proceed'by any ordinary means of safe transportation to the place of destination where he was required to report.

The principal question that is involved here requires some consideration of the nature of his duties while upon the defendant’s right of way and track and of the correlative duties of the defendant company toward him while he was at the same place. Tie insists that his situation was much that of a person who would be at the time doing some work for the company and that it was the duty of the engineer upon an approaching train to keep a lookout for him while he was upon the company’s track; and he attempts to fortify this claim by proof that it was a common custom for the employes of the company to use the traók in that locality as a sort of a passage way from the Union depot to Air Line Junction while going to or from their work.

The plaintiff claims that at the time of this occurrence he was walking upon a track known as the “east-bound track” and that the engine which struck him was coming from the east, moving eastward, and the evidence shows those two facts. The defendant company had a right to move its trains upon whichever of 'these .tracks it saw fit and in whatsoever direction it" saw fit; it had the right, no matter what the tracks were called and no matter for what purpose it ordinarily used either one, to move its trains either east or west upon the so-called “east-bound” or the so-called “west-bound” track, although the circumstance that the engine was moving westwardly and upon what was usually,treated as an “east-bound” track might be one circumstance bearing upon the care due from the plaintiff and also might, under some circumstances, upon the asserted negligence of the defendant.

It is apparent from an examination of the numerous authorities in cases similar to the one at bar, that every case must stand almost upon its own footing, and it is not likely that we shall find eases that are upon all fours with one another, although counsel in argument asserts oftentimes that one case is precisely like another in all its features. Much stress is laid by counsel for plaintiff in error upon the case of L. S. & M. S. Ry. v. Ford, 18 C. C., 239, which, was decided by this court at the January term, 1899. The case has some features similar to those in the case at bar, but it has others dissimilar to the ones under consideration by us here. In the Ford case the conditions were such that the. engineer of a train having knowledge of the fact that persons were accustomed to walk upon the track, was unable to distinguish persons upon the track until almost upon them; whereas in the case at bar there was no difficulty on the part of either the engineer or the man upon the track in discovering objects at remote distances. It is claimed, indeed, on behalf of the plaintiff in error, as one of the grounds upon which this judgment should be reversed, that he could see all the way from the point of injury to Air Line Junction, which was quite a distance away, and that he was thereby apprised that no train was coming from that direction on the “east-bound” track, so that he had a right to conclude that it was safe for him to walk upon that track.

The conclusion must logically be drawn that if it was easy for him to see all the way to Air Line Junction, it was equally easy for him to see in the opposite direction, if he had looked in the opposite direction at the time when the train that struck him was sufficiently near to manifest its approach. In his testimony there is 3n indication that he did look back about once every hundred feet, but in one part of his testimony he says that probably he went one hundred and fifty feet from the time he last looked back before the engine struck him. Of course any statement of this kind is to be received and construed reasonably by the court. A man does not measure^by paces the exact distance that he travels between the several times of using his faculties of observation, and it is probably impossible for the man to say how long a time had elapsed and how much distance he had traveled between one time of looking and another. But, however all this may be, it is manifest that if he had looked a sufficient time before he was struck to see the trains approach, there would have been no difficulty in seeing the danger and escaping the injury. There is nothing to indicate that he could not have leaped from the track if he had seen the train bearing down upon him. While it ■ is claimed bjr the plaintiff that it would have been unsafe for him to walk upon either side of the track, or between the two tracks, by reason of certain circumstances which were given in evidence, there is no claim that in the immediate emergency of the train’s approach, if it had been observed, he could not have escaped to a place of safety by leaping upon the other track or by leaping to one side, even into a ditch if necessary.

The court did not, apparently, arrest the ease from the jury or charge the jury for the defendant upon the ground of any holding by the court that, as a matter of law he was guilty of negligence directly contributing to or causing his own injury. The court puts it upon the other ground: That the defendant company owed no duty to a man situated as he was and acting as he was, of giving him notice by bell or signal of the approach of the train. A large part of the argument of counsel for plaintiff, orally and in his brief, is based upon the theory that it was the duty of the company to keep the bell ringing upon the locomotive at all points in the progress of the engine and trains from the Union Station to Air Line Junction. Is this law? Was it the duty of the company to apprise persons walking upon its tracks of the approach of the train by giving signals by either bell or whistle ?

In connection with the holding by this court in 1900, in L. S. & M. S. Ry. v. Ford, supra, my attention has been called by one of my associates to an unreported case of this .court in the year 1903, or abrnrt that year. The case is that of Ham v. Railway, which was decided first in the Court of Common Pleas of Fulton County, and the case there was arrested from the jury and the jury instructed to bring in a verdict for the defendant company. This court reversed the case, which is said by one of the judges —Judge Haynes — to have been very similar in its aspects to the case at bar. The case was carried to the Supreme Court, on error, and the Supreme Court reversed the circuit court and affirmed the ruling of the common pleas in its holding that the defendant company was not liable to such a duty as is sought to be imposed upon it here towards persons in a somewhat similar position to that which the plaintiff in error occupied at the time of his injury. The decision of the Supreme Court, which is also unreported, was rendered in June, 1903. In the following October — what is said to be the January term, 1903, on October 13 — the Supreme Court rendered a decision in the case of Erie Ry. v. McCormick, 69 Ohio St., 45, which case we deem very analogous to the case .at bar'. It was a case of a man employed as a track man, or track walker, for the defendant company, who was injured while engaged in walking upon its tracks; but whether in the direct discharge of his duty or not, does not appear clearly from the statement of facts reported. In the course of his traveling along the track, while in the discharge of his duty or going to or from his work, he had occasion to cross a bridge which was within the lines where he was required to work when he did work, as a track walker, exercising, I suppose, some duty of inspection of the track — that is, to see that everything was in order and free from obstructions or defects. In crossing this bridge on the occasion in question, he was struck by an engine and killed. Now it is not claimed on behalf of the plaintiff in error here, Byrket, that his duty to the defendant company had any relation whatever to its track or required him to be walking upon the track, except in so far as he asserts a claim that he was necessarily upon the company’s track in the carrying out of the injunction to stay upon she company’s track when he was in the company’s employment on duty and also when he was going to a place to which he had been directed to go as soon as possible. As I have already said, we think he had the right to construe that instruction reasonably and go by reasonably safe methods, and that it was not designed in the order that he should travel all the way from Jonesville or from thé Union Station to Air Line Junction on the company’s tracks, even if he could get to that place somewhat more speedily than by traveling some other route or in some other way.

It would seem that the case presented by the representative of McCormick was perhaps a stronger case, so far as this question is concerned, than the case at bar. McCormick’s duties ordinarily related to the track, and if he was upon the company’s track at the time of the colliding of the train with him and his death, in the direct discharge of his duties, then his case was stronger than that of Byrket, who was, at the best, but simply traveling along the track as a pathway to the place of his destination.

It is the judgment of this court, under all the circumstances of this case, that he does not stand in precisely the same position with reference to the transaction that Ford did in L. S. & M. S. Ry. v. Ford, supra. There are some circumstances here which would seem to have made it easier for Byrket to have apprised himself of the danger than in the case just mentioned, and we think that a strong presumption of negligence arose; in other words, that the proper exercise of his faculties of hearing and vision would have notified him before his danger. The presumption arises when he does not discover that danger, that he did not exercise these faculties, and the burden is upon him to remove this presumption when it so arises. It is true that sometimes it is an inference which is to be drawn by the jury that he did discover the fact. But, on the other hand, there are numerous eases that where no reasonable inference can be drawn that would relieve him from the presumption, it becomes the duty of the court-to say so to the jury.

In the McCormick case the court seems to assume, that the plaintiff was in some fault in remaining upon the bridge, and then the court, so holding, goes farther and holds that the company was not negligent — that it was not held to the exercise of that sort of care toward him that it would have been compelled to exercise under other circumstances.

In the third paragraph of the syllabus, on page 45, it is said by the court:

“In an action against a railroad company by one who, by his own fault is upon its track and in a place of danger, to recover for a personal injury caused by the failure of its employes operating one of its trains to exercise due care after knowledge of his peril, it is necessary to show actual knowledge imputable to the company. C., H. & D. Ry. v. Kassen, 49 Ohio St., 230, distinguished. ’ ’

This leads me to call attention to the language of the petition which has been filed in this case, in which it is not clearly asserted that the engineer of the defendant company did in fact discover Byrket upon the track, and thereafter was guilty of negligence in not avoiding an injury to him. In one part of the petition it is said that:

“The action of said conductor and engineer in so operating said train was either willful or so grossly negligent as to be willful in its nature.”

• The pleader is speaking of the speed with which the train was run; that it was ran at a high and excessive rate of speed and in violation of a certain ordinance of the city of Toledo, which provided that within the city limits the speed should not exceed six miles per hour. This question was also raised in the McCormick case: “That the speed of the train exceeded that limited by the ordinance of the city of Akron.” With regard to the claim of excessive speed and also the claim that the speed was unlawful as being prohibited by ordinance, Judge Shauck, speaking for the court, says, page 52:

‘ ‘ The petition and all the evidence having shown that McCormick was an employe of the company, engaged as a track ■fralker, there should have been no allegation in the petition as to the omission of signals for the neighboring road crossing or of the violation of the ordinance regulating the speed of trains, because, by the fact of his relation to the company, it was made to appear that he was not within the classes of persons for whom such signals are required to be given, or for whose protection the speed of trains is regulated. The omission of a duty does not constitute the foundation of an action unless it results in injury to one for whose protection the duty is imposed. This would seem to be elementary, and it is sustained by the decided cases. ’ ’

And he then cites two cases of B. & O. v. Depew, 40 Ohio St., 121, and Cleveland, A. & C. Ry. v. Workman, 66 Ohio St., 509.

Again, in this petition, it is alleged:

1 ‘ That the engineer in charge of the engine drawing said train did carelessly, wrongfully and negligently fail to keep a proper lookout for persons who might be rightfully upon- said track. That plaintiff was in plain view of said engineer for such distance as said engineer did see plaintiff, or, by the exercise of ordinary care, could have seen him.”

In other words, we are presented with an alternative by this pleader; there is no averment that the engineer clicVsee Byrket, and if there had been such an allegation, there was perhaps no evidence that would have justified a finding that he did see him. But it is enough to say that the petition does not charge it. It is alleged:

“That said engineer carelessly, wrongfully and negligently failed to give plaintiff any warning of the approach of said train but ran the same in such a manner as to strike plaintiff and throw him upon said track, and to allow said train to pass over him, inflicting injuries as hereinafter set forth. ’ ’

Now, going back to Erie Ry. v. McCormick, supra, and resuming the consideration of the language of Judge Shauck, we find, on pages 52 and 53, he says:

“Passing to a consideration of the ground upon which counsel for the administratrix now insist that the recovery might have been sustained, the general inquiry is, whether it is in accordance with the law which defines liability for the wanton and willful .infliction of injury. The concrete rule upon the subject is, that if one is upon the track of a railway company by his own fault and in peril of which he is unconscious, or from which he can not escape, and these facts and conditions are actually known by the engineer, it is his duty to exercise all reasonable care to avoid the infliction of injury. It does not • impose the duty to exercise care to discover that one so upon the track is in a place of danger, but it does impose a duty to be exercised upon actual discovery. No matter if the rule did originate in consideration of humanity, it is an established rule of the law which does not unreasonably interfere with the rapid movements of trains nor is it ordinarily difficult of application, if earnest and impartial efforts are made to apply it according to its terms and obvious import. With respect to the ground of liability now considered, the court instructed the jury that the company would be liable if the engineer ought, by the exercise of ordinary care, to have seen the deceased in his perilous position and could, by the exercise of ordinary care, have stopped or checked the speed of the train so as to avoid the collision. Notwithstanding the manifest conflict between the instruction given and the rule, it is said that the instruction is authorized by C., H. & D. Ry. v. Kassen, 49 Ohio St., 230.”

Now in the brief of counsel for plaintiff in error, before me, some consideration is given to C., H. D. Ry. v. Kassen, supra, and emphasis is put upon the language of the court in that ease holding the company to a knowledge which ought to have been had by the persons in control of the train which caused the injury; but a careful consideration of the reasoning of Judge Shauek in the case of Erie Ry. v. McCormick, supra, clearly evidences that a proper construction of C., H. & D. Ry. v. Kassen, supra, will not bear the interpretation which is sought to be put upon it by the counsel for plaintiff in error here. Kassen had fallen from the rear platform of one of defendant’s trains. The company was running two trains, in the same direction, about two hours apart. This injury disabled him from leaving his position of danger upon the track, and while in that dangerous position he was run down and killed by the following train. That Kassen had fallen from the train and was in place of danger, were facts actually known to the employes of the defendant company operating the forward train. There was ample opportunity to rescue him either by stopping the train from which he had fallen or by using the telegraph to communicate information of his situation to those in charge of the following train. The actual knowledge of the employes of the company in charge of the forward train was the company’s knowledge and that knowledge ought to have been communicated to the engineer of the following train, so that it may be said that it was a knowledge which he ought to have had; but that is not saying that it was the negligence of the engineer in charge of the train; it was the negligence of the company itself in not communicating to him the information which he ought to have had so that he might thereby have saved his train from killing or injuring Kassen. Judge Shauek goes further and says:

“The phrase ‘ought to have been aware’ manifestly applies to those in charge of the following train, and Implies the duty of the company to communicate to them its actual knowledge of Kassen’s danger. ' This is entirely clear, not only from the peculiar facts of the case, but from the language of the opinion. ’ ’

I will not stop to read more. It is clear enough from what I have already read that the construction which is placed upon C., H. & D. Ry. v. Kassen, supra, in the brief of plaintiff in error is not the construction which should be properly drawn from it. We think that the circumstances of Erie Ry. v. McCormick, supra, are so similar to those in the case at bar that, if this case had been permitted to go to the jury, no verdict in behalf of the plaintiff in error, or judgment thereon, would have been permitted to stand by the Supreme Court, if the case ever reached that court of last resort, because of the principles which are in Erie Ry. v. McCormick, supra, so clearly enuncir ated. And it is against the previous rulings of this court, which it is not necessary to further consider; it is enough to say that the last enunciation of the Supreme Court to which our attention has been called, or which we have found in our examination of the questions, leads along the line of the holding at which we have arrived in this ease, that the judgment of the court below must be affirmed.

C. A. Thatcher, for plaintiff in error.

Potter & Potter, for defendant in error.


source: Caselaw Access Project

license: Public Domain

text:
    MIXED CAUSES OF ACTION.
    Circuit Court of Allen County.
    F. P. Rusher Lumber Co. v. G. W. Troxel et al.

    Decided, November Term, 1905.

      Actions — Nature of, Determined by Pleadings — Mixed Causes of Action Not Appealable — Notwithstanding Only Equitable Issues are Tried.

    Since the nature of an action as to its being legal or equitable is determined by the pleadings, it follows that a petition to foreclose a mechanic’s lien, determine priorities, and for personal judgment, sets forth both a legal and an equitable cause of action, and without change of pleadings is not appealable, notwthstanding the parties reached an agreement as to the facts determinable by a jury, and the equitable issues only were submitted to the court.
    Vollrath, J.; Norris, J., concurs.

       Affirmed by the Supreme Court, without report, June 18, 1907.

   This cause comes into this court on appeal from the Court of Common Pleas of Allen County and is for hearing at this time on a motion to dismiss the appeal.

The plaintiff is a corporation and filed its petition setting forth, as its first cause of action, an account for material and supplies furnished by it to the defendants, G. W. Troxel and Allie L. Troxel, in the sum of $330.58, with interest from November 30, 19.04; a copy of the account.is attached to the petition. As a second cause of action the plaintiff alleges that the items charged in said account were so furnished by the plaintiff to said defendants find at their request, in and about the building and construction of a certain house, etc., and then follow the averments necessary to perfect a lien for the amount of said account upon the building and premises for which the same were furnished. Proper averments were made with reference to the filing and verification of said account and then, after a reference to possible claims upon the same property by some of the defendants named in the petition, the plaintiff prays judgment against said G. W. Troxel and Allie L. Troxel for the sum of $330.58, with interest from November 3, 1904, and that it may be decreed to have a lien in and upon the said house and the building and the real estate described, for the amount of said claim and from a specified date, and that said lien may be foreclosed and said property sold as upon execution; that priorities may be ascertained and the proceeds distributed, etc.

It will be noted that there are two causes of action, one of a legal and the other of an equitable nature. It is claimed by the defendant, the Lima Home & Savings Association, as well as other defendants herein, that under the issues thus presented by the petition of the plaintiff no right of appeal exists and that the petition therefore should be dismissed. All the defendants met the issue tendered by the first cause of action by a general denial.

The plaintiff contends, as against said motion, that all matters of fact were amicably agreed upon between the parties in the court below and that the only thing that was in reality submitted to the judgment of the court was the question of priorities, matters affecting solely the liens and their order of succession, and that because of this fact the ease was tried in the court below entirely within the equitable jurisdiction of the common pleas court, and that it ought therefore to be appealable, and this the more so since no jury was even asked or required.

A correct solution of the question presented will require an examination of the law governing appeals. The right of appeal in actions of this kind is given in Revised Statutes, Section 5226, which provides in part as follows:

“In addition to these eases and matters specially provided for, an appeal may be taken to the circuit court by a party or other person directly affected, from a judgment or final order in a civil action rendered by the common pleas court, and of-which it had original jurisdiction, if the right to demand a jury therein did not exist, ’ ’ etc.

Revised 'Statutes, Section 5130, provides:

“Issues of law must be tried by the court, unless referred as hereinafter provided; and issues of fact arising in actions for the recovery of money only, of specific real or personal property, shall be tried by a jury, unless a jury trial be waived, or a reference be ordered as hereinafter provided.”

It is held in the case of Ladd v. James, 10 Ohio St., 437, that—

“The issues shown by the pleadings in an action will show whether, after a judgment, there be a right to a second trial, under the act passed April 12, 1858 (55 O. L., 81; 4 Curwen, 3087; repealed, Section 7437, Revised Statutes). If there be an issue of fact joined between the parties, which either party has the right to demand shall be tried by a jury, then either party may demand a second trial. If there be a joinder oí several causes of action and an issue of fact as to either of them, which either party has a right to have tried by a jury, a second trial may be demanded, and there can not be an appeal, though one or more of the causes of action would be such as would authorize an appeal.
“Where an action is brought upon-a note and on a mortgage given to secure its payment, and a judgment is asked upon the note and for the sale of the mortgaged property, 'any issue of fact which affects the judgment upon the note is an issue which either party has a right to demand that it shall be tried by a jury; and iff such a case there may be a second trial, but not an appeal. If there be no such issue of fact or the judgment asked is simply for a finding of the amount due upon the note and a sale of the ■property mortgaged, either party would have the right to appeal and not a right to a second trial.”

The same principle is recognized by the circuit court of the first circuit in the case' of The Lockland Lumber Co. v. Marsh, 16 C. C., 432. The latter case involved a petition asking for personal judgment and foreclosure of a mechanic’s lien as in the case at bar. See, also Keller v. Wenzel, 23 Ohio St., 579; Bugh v. Sturgeon, 41 Ohio St., 402; Mitchell v. Drake, 7 C. C., 308.

These authorities seem conclusive of the proposition that where a petition asks for a personal judgment and also for a decree of foreclosure to enforce such judgment, and these issues are met by a general denial, no appeal can be taken by the plaintiff presenting such a petition.

It is claimed, however, in the action at bar, that all issues of fact which might otherwise require the attention of a jury had been amicably disposed of before trial and that the only thing left to be done in the lower court was a finding with reference to priorities. This view seems to be based in part at least upon the case of Grapes v. Barbour, 58 Ohio St., 669, where it is held:

“If in an action for the foreclosure of a mortgage and for a personal judgment for the money claimed to be due upon the demand which it secures, the journal entry in the court of com- ■ mon pleas shows that before the action is tried, the plaintiff, by leave of court, withdraws the prayer for a personal judgment, and the court proceeds to find the amount due and to decree a foreclosure, the mortgagor may appeal to the circuit court.”

In the case just cited, however, there was a substantial amendment of the pleading. The prayer for a personal judgment was withdrawn and this withdrawal was evidenced by a journal entry. This left nothing for the jury to pass upon and nothing remained but a request for a decree of foreclosure, a finding of the amount due, of sale and distribution. These were all matters within the peculiar province of the chancery powers of the court. The issues requiring a jury trial had been eliminated by the withdrawal of the prayer for a personal judgment. This is quite different from a mere oral agreement or understanding of counsel, or like arrangement with the court on the trial dajr with the pleadings still in their original shape. The pleadings determine the nature of the action.' This is held in the case of Raymond v. Railway, 57 Ohio St., 271, where, in the third section of the syllabus, the court say:

“Whether a case is one in equity or of law, does not depend upon the understanding of counsel, or of the trial court, nor upon tlie form of the judgment rendered, but upon the nature of the action as shown by the.pleadings.”

In view of the foregoing authorities and the nature of the pleadings before us we are impelled to the conclusion that since the petition in this case asks for a personal judgment as well as a decree of foreclosure, it presents an issue of fact upon which either party had the right to a trial by jury, and this being the case, the action is not appealable and the motion to dismiss the appeal must be sustained.

It is the judgment of this court, therefore, that the several motions to dismiss the appeal of the plaintiff herein be, and the same are, hereby sustained and the appeal is accordingly dismissed at the costs of the plaintiff. Judgment for costs, execution awarded and cause remanded to the court of common pleas for execution.


text:
    DAMAGES TO FARM LANDS FROM CHANGE OF GRADE OF RAILWAY.
    Circuit Court of Hamilton County..
    The Cleveland, Cincinnati, Chicago & St. Louis Railway Co. v. Delano Cordry et al.
    Decided, June 22, 1907.

      Appropriation — Railways—Change of Oracle of — Impaired Access Over Private Right of Way — Evidence as to Damages — Verdict—Remittitur.

      In an appropriation proceeding, preparatory to a change of grade of a railway through farm lands, the assessment of damages to the residue of the tract must be based on present conditions, and not have reference to conditions existing prior to the original location of the railway many years before.
    Gippen, J.; Swing, P. J., and Smith, J., concur.
   The damage to the residue of 400 acres after the appropriation of the 40-100 acre tract must be based upon the effect such appropriation will have upon present conditions, and not those existing before the railroad was originally located and constructed many years prior. The testimony shows that the several owners would sustain substantial damage by reason of impaired access over the private right of way appurtenant to their lands.

Harmon, Colston, Goldsmith & Hoadley and Stanley Shaffer, for plaintiff in error.

Alfred B. Benedict and Stanley SlmMe, contra.

The exception to the failure of the court to charge the jury that a roadway to defendant’s premises twelve feet wide is substantially as good for the purposes for which it was created as the present road, without regard to the change of grade or other -obstruction, is not well taken, and besides the record does not disclose that the court was requested to so charge.

We think the damages awarded are excessive. One of the defendants, Walter P. Pitch, himself testified that the land would be worth ten dollars an acre less by reason of the improvement, which would amount to $4,000, although the jury allowed $4,750.

The testimony as to the costs of reconstructing the private right of way ranged from thirty-five cents to one dollar per yard for 4,200 cubic yards.

Whether our conclusions be .drawn from the evidence of the value of the land before and after the change of grade of the railroad, or from the evidence of the cost of conforming the private right of way to such change of grade, the result is the same, and we think that $3,200 would be a fair and reasonable compensation for injury to the residue of 400 acres.

Unless a remittitur of $1,550 is consented to by the defendants - in error the judgment will be reversed.


author: Per Curiam.

text:
    CONSENTS FOR. THE CONSTRUCTION OF A STREET . RAILWAY.
    Circuit Court of Cuyahoga County.
    Edward S. Isom v. The Low Fare Railway Company.
    Decided, July 12, 1907.

      Municipal Corporations — Consents of Abutting Owners — To the Construction of a Street Railway — Requirement. as to, does not Create a Favored Class — Construction of the Exception in Section 1536-189 — Life of Consents Inure to Whom — -Duplication of Grant over Same Street — Consents of Original Company — Good Faith of Property Owner Seeking an Injunction — Constitutionality of Sections 1586-188-9.

      1. Sections 1536-188 and 1536-189, requiring the written consents of the owners of more than ' one-half of the frontage of lots and lands abutting on a street along which it is proposed to construct a street railway, do not create a favored class upon whom a privilege is bestowed to the. exclusion of others having equal rights, and is not an arbitrary classification of individuals, but is a valid and constitutional exercise of legislative power.
    2. Where street railway tracks occupy a street unlawfully by reason of the fact that the term for which the grant was made has expired, the exception found in Section 1536-189, making in unnecessary to procure consents from abutting owners under certain conditions, is not operative, and consents are required before new tracks can be laid in place of the old.
    3. Consents to the building of an extension of a street railway inure to the company obtaining them and its assigns only, and can not be used by a third party who is a stranger to the franchise.
    4. Where consents have been once acted on by a city council in the granting of a valid street railway franchise, their vitality is expended and they can not be again used as the basis of a second grant to another company.
    5. A grant to construct tracks in a street can not be duplicated over the same right of way, even with the consent of the company to which the right was first given, unless the consent is that of the stockholders given in the way provided by statute.
    6. The failure to carry into the syllabus of Traction Co. v. Parrish the declaration of Judge Burket that the good faith of one who brings an action to protect a legal right is of no importance, does not make it an obiter, inasmuch as that was one of the questions made in the case, and what was said in the body of the opinion became the established law of the state.
   Per Curiam.

Wilson, J. (of the Second Circuit) ; Donahue, J. (of the Fifth Circuit) and Wildman, J. (of the Sixth Circuit).

This cause comes into this court upon appeal and is submitted to the court on a motion of the plaintiff, and a counter-motion of the defendant, for judgment on the pleadings and admitted facts.

lit is unnecessary to state in detail the averments of the pleadings. This shit is brought by an .abutting property owner to enjoin the construction and operation by the defendant of a double-track electric street railway on Central avenue, and the sole and only reason now urged by this plaintiff why such injunction should be allowed is, that there was not produced by the council before the passage of the ordinance granting to defendant a right to construct, maintain and operate such railroad on Central avenue, the written consent of the owners of more than one-half of the feet front of the lots and lands abutting on that portion of said street along which it is proposed to construct such railway, as required by Sections 153G-188, 1536-189 and Section 3439 of the Revised Statutes of Ohio.

The defendant, for answer to this claim of plaintqff, says:

First. That these statutes in so far as they require the consent of owners of abutting property to the construction of a street railroad are unconstitutional and void.

It is urged in support of this contention that the occupation of the street by a street railway is a proper and legitimate use thereof and one of the uses and purposes comprehended in the original grant or dedication of the same, and not different from the use by other vehicles for transportation of passengers or by pedestrians.

We think there is some difference, and that difference is very plainly stated in the case of Street Railway v. Cumminsville, 14 Ohio State, 523, at page 545, in this language:

“So far as the carrying of passengers by this mode is concerned, it differs in nothing from the exercise of the common right of carrying them by coaches or omnibuses; and everything needing a grant, or the further authority of law, is the right to place and maintain in the highway, the necessary conveniences for this new description of carriages.”

It is further held in the same case that if the easement of the abutting property owner of ingress and egress should be materially injured by the building and operation of the street railroad, then he must be fully compensated for such injury.

Again, it is held by the Supreme Court in the case of Traction Company v. Parrish, 67 Ohio State, 181, 191, that:

“So long as his easement of ingress and egress is not materially injured, he is without remedy, * * * that the city authorities have the power, under the Constitution, to construct and operate a street railroad on and along the street without his consent and against his will, unless restrained by a statute, provided they caused no material interference with Ms easement of ingress and egress.”

This would seem to be the only difference between this use of the street and any other, and because the Supreme Court has-thus limited the property rights of abutting lot and land owners in the streets, and having further declared in the case of Traction Company v. Parrish, above cited, that the consents provided for in the sections under consideration are not property rights, adhering to the lot, but a mere personal right in the owner of the lot, subject to bargain and sale, the defendant insists that the statute, conferring such a right, creates a favored class upon whom a privilege is bestowed, to the exclusion of others having equal rights and that the same is a violation of the trust reposed in the Legislature of the state, in respect to public ways.

It must be conceded at the threshold of this investigation that every classification of the individuals must be based upon some substantial, fundamental reason therefor. It is not required that every act of the Legislature should operate at one and the same time on every member of society, but it is required that it must affect all who are within the reason for its enactment. The contention of the defendant herein is that the Supreme Court having decided that the abutting lot owner has no special rights or interest in the street on which his property abuts in excess of the rights of the general public, other than the right of ingress and egress, for which he must be compensated if the same is materially interfered with, the creation of such class and conferring upon it such a privilege as is conferred by these statutes were and are a mere arbitrary classification, and grants special privileges upon such favored class without any fundamental reason therefor.

This would seem to be a strong position, were it not that upon investigation of the reported cases in Ohio it appeai-s that the constitutionality of this legislation is no longer an open question in this state.

In the case of Roberts v. Easton et al, 19 Ohio State, 78, it was held that such consent is a prerequisite to the power of the council to grant such permission.

In the case of Railway Company v. Neare, 54 Ohio State, 153, it was held that under the provisions of Sections 3437 to 3443, Revised Statutes, inclusive, the consents of the owners of more than one-half of the feet front of the lots and lands abutting on each street to be occupied by such extension are requisite.

In the case of Traction Company v. Parrish, supra, the nature of the consents and the purposes of this legislation are fully discussed. In that case the Supreme Court says:

‘ ‘ Such personal rights were bestowed by the General Assembly on owners of abutting lots, as a check upon the power of municipal authorities to authorize street railroads to be constructed and operated against the wishes of the owners of lots on such street. ’ ’

In .the opinion of Traction Company v. Parrish, on page 194, we find the following quotation from Probasco v. Raine, 50 Ohio State, 378:

“If a statute is constitutional,'it is valid and can not be set aside by a court as being against public policy or natural right. There can be no public policy or right in conflict with a constitutional statute.”

In that case it was sought to have the consents that had been procured by purchase held invalid, as against public policy, and the circuit court so held, but the Supreme Court reversed that holding, and in effect held that this legislation was neither unconstitutional nor against public policy. To the same effect is the doctrine announced by Judge Day in the ease of Roberts v. Easton, supra.

■ There are other cases in which the Supreme Court considered this legislation, but the cases above cited are sufficient to show that the Supreme Court is committed to the doctrine of the constitutionality thereof, and it will not do to say that the Supreme Court has so fully considered the provisions of these sections and required the performance of the same, and expended so much time in ascertaining the purposes of this legislation and defining the rights therein granted, without-regard to the constitutionality of the law. In view of the many declarations of that court, sustaining these statutes and requiring full compliance therewith, the rule of judicial subordination would require a court of inferior jurisdiction to hold the same constitutional, and thus pass the question on to the Supreme Court as the only tribunal that has a right to review and reverse its declarations of the law; and therefore on this contention the defendant must fail.

The next contention of the defendant is, that in this 'particular case no consents are required for the extension of its lines, even though the statute be constitutional, because ever since the year 1868 this portion of the street has been devoted to street railway purposes; that the Cleveland Electric Railway Company owned and operated a line of street railway over and along this street, the franchise therefor having expired in 1905, but notwithstanding the expiration of such franchise said railway company did continue to maintain and operate its line of railway over and upon this street until the 23d day of April, 1907, at which time, in obedience to the judgment of the Supreme Court of the United States, declaring that the term of its franchise had expired at the time first mentioned, it discontinued the operation of such railway, and within a few days thereafter removed its tracks and fixtures, but not until after the passage of the ordinance herein authorizing defendant to construct and operate its line; that in 1904, in anticipation of the expiration of the term of the grant to the Cleveland Electric Railway Company, the said council attempted, by ordinance, to grant a renewal of that franchise to the Forest City Company, which ordinance was declared' invalid by the Supreme Court of Ohio; that in September, 1906, the city council of the city of Cleveland authorized the Forest City Railway Company, by ordinance, to' extend its line by constructing, maintaining and operating a double-track electric railway over and along the portion of this street now sought to be occupied by this, defendant; and that at that time there were procured and produced to the city council the requisite consents of more than one-half of the lot and land owners abutting, on said portion of said street; that by reason of these facts, all of which are admitted, this street has. become and was a street devoted to street railway purposes, and in the nature of things no further consents would be required.

Section 1536-189 provides, among other things, that:

‘ ‘ No change or extension of any existing route shall be granted over any street or streets now unoccupied by street railway tracks, unless the consent of a majority of the owners of property abutting on such street or streets shall have been first obtained as now required by law.”

The ordinance under which this defendant claims the right to construct, maintain and operate this street railway, provides that:

“If at the time the grantee herein shall attempt to execute the rights conferred by this ordinance in said Central and Quincy avenues S. E., there shall have been constructed any street railway tracks, the grant for which has not expired, the right hereby is limited to a right to use jointly with the owner thereof such tracks,” etc.

The agreed statement of facts shows that said Central avenue was not then occupied by any such tracks, but that as a matter of fact the grant to the Cleveland Electric Company had then expired, and the tracks were then wrongfully and unlawfully in said streets, and were removed within a few days thereafter. Even if these tracks of the Cleveland Electric Railway Company can. be considered as tracks occupying said street, which, by the terms of Section 1536-189, Revised Statutes, would make unnecessary the procuring of consents, yet by another paragraph of the same section it is provided that: .

“Nothing herein contained shall authorize the extension of existing street railway routes or any portion thereof over and along existing tracks or portions thereof for a longer period than the terms for which the original franchises for such roads or routes existing at the time of the passage of this act were granted. ”

So that the term of the franchise of the Cleveland Electric Railway Company having expired, the rights of this defendant company to operate jointly with it over its tracks must necessarily expire with that company’s grant. If that were not true, then the city council could in this manner renew a franchise over a street occupied by a street railway company to a company other than the one in the original grant, or its assigns. The Supreme Court of this state has recently held in reference to this particular street that this can not be done. It is sufficient to say that if it can not be done directly, it can not be done indirectly. It is therefore clear from the agreed statement of facts that this street was not then occupied with tracks of any railway company then having the right to operate it for any term whatever, and this grant does not come within the exceptions contained in said section.

It is insisted, however, that the character of this - street as a street devoted to street railway purposes has been established, and having once been established and the consents having been procured and produced authorizing the same, that there is no longer any purpose in again requiring such consents to be procured and produced.

The Supreme Court in the case of Railway Company v. Neare et al, 54 Ohio State, 153, declares it to be the law that:

‘ ‘ In the extension of a street railway over' streets unoccupied by any road under the provisions of Sections 3437 to 3443, R. S., inclusive, the consents of the owners of more than one-half of the feet front of the lots or lands abutting on each street to be occupied by such extensions are requisite.”

The. admitted facts in the case at bar do not distinguish it from the above ease, and therefore the consents were necessary to a valid grant.

It is also insisted that there was filed in September, 1906, with the clerk, and produced to the council of said city, the requisite number of consents, and that said council thereupon granted a valid franchise to the Forest City Street Railway Company to construct, maintain and operate a double-track electric street railway over and upon this portion of Central avenue; that said Forest City Street Railway Company has the right under said ordinance to construct and maintain the same, and that this company is only proceeding to do that which another company has the absolute fight to do, and for that reason construction by this defendant can not injure or affect the plaintiff in any particular, and that a court of equity ought not - to interfere for any whimsical reason the plaintiff may have, that would induce him to prefer that these tracks should be constructed by the Forest City Railway Company instead of this defendant.

It is further claimed that by the limitations of Section 4 of the ordinance under which this defendant claims the right to construct these tracks, that no more than two tracks shall be constructed, and that the Forest City Street Railway Company knew of the limitation in Section 4 of this ordinance, and assented and consented to the same, and that by no possibility can this street be burdened by four tracks, instead of two, even though this defendant should construct the tracks, instead of waiting until the Forest City Street Railway Company should do so.

It is denied by the plaintiff that the Forest City Street Railway Company assented or consented to the limitation in Section 4 of this ordinance under consideration, but for the purpose of plaintiff’s motion, if that averment of the answer would amount to a defense, the motion should be overruled.

Notwithstanding it is conceded that the Forest City Street Railway Company has the right to construct these tracks, it does not necessarily follow that it will do so. It may ¿forfeit such right, or abandon the same. If that company never asserts its right against the plaintiff and other non-consenting abutters, that failure must operate for their benefit, and not for the benefit of a stranger to its franchise. True, that company may assign its franchise and the assignee thereof may assert the right to construct such road, but it is not permissible for a third party to claim the rights of the Forest City Street Railway Company against non-consenting abutters. No matter, how remote the chance may be that the Forest City Street Railway Company, or its assigns, will not assert its right in this street, yet this plaintiff is entitled to that chance.

If it be conceded for the purpose of this motion that the Forest City Street Railway Company in some way has assented or consented to the limitations in Section 4 of this ordinance, and by reason thereof it would be forever estopped from constructing any line of railway over and along this street other than that proposed to be constructed by this defendant, it would still lie immaterial, as that company or its assignee would be the only one that can make any claim under its franchise. If this road were constructed, we think the limitation of Section 4 of this ordinance is such as would prevent the ordinance from being declared invalid for want of consents, because no consents are required to authorize the city council to grant the right to a street railway company to extend its lines over and upon the tracks of another, for and during the term for which such company has a right to maintain and operate its road, but, in so far as it authorizes the extension in streets unoccupied by a street railroad, consents would be required without which that portion at least of the ordinance authorizing the construction of new tracks would be invalid. Therefore, upon this contention, the defendant must fail.

It is insisted, however, bjr the defendant herein, that the necessary consents were in fact produced to the council before the passage of this ordinance under which it claims the right to construct, maintain and operate its road over and upon this portion of this street.

It does not appear from the admitted facts in this case that enough consents were produced to the council, if all were available. These consents were of various kinds; some of them were general in their nature, some of them specified particularly the Forest City Street Railway Company, some specified the Forest City Railway Company and the Cleveland Electric Company and some specified the Cleveland Electric Company only. It is admitted that the rejection' of any one class of these limited consents would reduce the entire amount below the requisite majority.

It is also admitted that all of the consents procured and produced to the council by the Forest City Railway Company at the time of the passage of the ordinance granting it a franchise to construct, maintain and operate a double track electric railway over and upon its street, were part of the consents produced to this council at the time the ordinance under which the defendant claims was passed, and it is admitted that if these consents could not be considered by the council, there were not sufficient others to confer jurisdiction.

It is claimed, first, that consents can not be limited to any company, but that they operate in favor of the company to which the grant is made.

The Supreme Court of Ohio, in the case of State, ex rel, v. Bell, 34 Ohio State, 194, held that these consents, by whomsoever obtained, inure to the benefit of the lowest bidder.

In the opinion, at page 197, the reasoning of the court is as follows:

“Equally certain it is that the consents mentioned in Section 412.need not, in terms, be given to the person who 'is the lowest bidder; for the contract can be awarded to him alone, and the consents, it matters not by whom obtained or to whom given, are in substance assent to the construction and operation of the railway in the designated streets, and hence must inure to the benefit of the lowest bidder.”

In the case of the construction of a new road the franchise must be granted to the lowest bidder. The city council has no discretion in that respect and the eonsentors when they sign the consents must be held to know that under the'law, neither they nor the city council can designate to whom the franchise shall be granted. The statutes of our state require that it be granted to that person or corporation that offers to carry passengers for the lowest rate of fare. So that any attempt to limit such consents or to designate the beneficiary of the same, must prove abortive. That reasoning does not apply with equal force to the extension of an established route. The proposition in the latter case is as to whether or not a known company having either an established line or a right to construct such line shall have the further right to extend its road.' No one is called upon to bid. No one can bid for this franchise,' because one of the terms of its grant is that no additional fares whatever shall be charged for carrying passengers over this proposed extension. The only possible profit would be from the accumulation of business. It is an entirely different question whether an abutter can in this ease limit his consent to a specific company or individual, from the question presented, when the construction of a new road is contemplated. Aside from this, it is admitted that the same consents that were produced to the council at the' time it passed the ordinance granting to the Forest City Railway Company its franchise, in September, 1906, were produced when this ordinance was passed, and that if these consents which clothed the city council of Cleveland with jurisdiction to pass the ordinance granting the franchise to the Forest City Railway Company can not be counted, then this ordinance was passed without a sufficient number of' consents being presented.

We are clearly of the opinion that these consents had expended all their vitality in clothing the city council with jurisT diction to pass the ordinance granting the franchise to the Forest City Railway Company. They had served their purpose, fulfilled their mission, and could be of no further use or effect. True, if the ordinance passed by reason of these consents were an invalid ordinance^ they still could be used for the purpose of granting a valid ordinance; but it is conceded here, for the purposes of this case, that the franchise of the Forest City Railway Company is a valid franchise, and, therefore, the purpose of these consents had been accomplished, except, however, that the consentors must be held to abide the effect of that grant for the term thereof, provided such term did not exceed the statutory limitation. This would include the right of renewal with the same company or its assigns, and the right to grant the joint use of this company’s tracks to other companies for the purpose of the extension of their lines. Aside from this, they could serve no other purpose, and the council had no right to consider the same or to count the same in ascertaining .whether or not a majority of consents had been produced.

The holding of the Supreme Court, in the case of Roberts v. Easton, supra, is clearly to this effect. On page 88, the court say: “The original assent [consent] therefore merged in the completed action of the city authorities.”

Having arrived at this conclusion, it is idle further to discuss the limited consents. If these consents of the Forest City Railway Company are to be excluded this franchise was granted without the requisite number of consents and did not confer on the defendant any right or authority to construct tracks along and over this street.

Upon another proposition not made in the pleadings or argued by counsel, we are of the opinion that it might be urged with much force that the municipality was without authority of law to grant the franchise of the defendant company in its present’ form, cither with or without the statutory consents.' It undertakes to grant to the Low Fare Company, not alone the right to use the tracks of the Forest City Company, but to pre-empt the right of way, and construct its own tracks to the exclusion 'of the tracks of the Forest City Company.

When the Forest City Company obtained its grant, it secured the right to construct its own tracks in the street, and, having done so, the right to make traffic contracts with other street railway and interurban companies for the use of its tracks.

In the case of Ingersoll v. Nassau Electric R. R. Co., 157 N. Y., 453, Chief Justice Parker quotes approvingly from Roddy v. Brooklyn City & Newton R. R. Co., 32 App. Div., 311, and following :

‘ ‘ The right or privilege to contrast for its use with other railroads and thereby derive a profit was as much a part of its franchise as was the right to lay its tracks or operate its cars. This was a source of use which made its property and franchise valuable, and the corporation could no more be deprived of this right than the right of operating in any other respect as authorized by law.”

Judge Parker also says, in the opinion in that case:

“Salability is an essential element of property, and the destruction or diminution thereof is a taking of property that can not be done except through the exercise of the right of eminent domain or of the police power. ’ ’

It is a right, therefore, secured to the Forest City Company, both by statute and by contract, which -neither the city nor the abutting lot owners can take away or impair. Yet counsel for the defendant concede that this is the effect of the grant to the Low Fare Company when they argue that new consents are not necessary, because no additional burden is placed upon the street. The tracks of the Forest City Company are legislated out of the street.

A grant to construct tracks in a street can not be duplicated over the same right of way without impairing vested rights.

An ordinance which assumes to make such a grant would seem to that extent to be void, as violating the obligation of contracts.

It is said that the Forest City Company is consenting to this usurpation. Unless the answer means that the stockholders are consenting in the statutory way, it is no defense. The company can not consent against their interests.

It can not, under the statutes, sell or lease its franchise without the consent of two-thirds of its stockholders, and even then it must make terms Avith the dissenting stockholders. Much less can it stand by and see another company appropriate one of its most valuable rights without compensation; claiming, at the same time, the privilege of using the consents which support its franchise, to legalize the appropriation.

A street railway franchise, carved out of the sovereignty of the state, is not a thing to be played with, in the courts or out of them. Under the* statute law, the municipality can not release the company by consent from any of its obligations or liabilities imposed, by the term of its grant, during the life of its franchise. A fortiori, it can not be released from any of the obligations and liabilities imposed upon the city by the contract.

It is said that the city reserved the right to revoke the franchise of the Forest City Company. Upon what terms, and for what reason, revocation may be had, is not stated; but in any event, it must be exercised with respect to the inviolability of private property.

The next contention of the defendant is that this plaintiff does not bring this action in good faith, but sues for the benefit of another.

It will be noted that this action is brought by the plaintiff in his own behalf only, and not in behalf of all others similarly situated. It is, in fact, identical with the case of Traction Co. v. Parrish. The answer in that case contained practically the same defense, word for word, with this one, and the Supreme Court held that it did not amount to a defense. The opening paragraph of the opinion, delivered by Judge Bucket, page 189, is as follows:

“The contention in the pleadings and finding of facts as to whether Mr. Parrish brought and prosecuted the action in good faith, is of no importance, because if he had a legal right which he sought to protect by an action in a court of justice, the motive which induced him to bring the action can not be inquired into.”

It is true that this announcement of the law does not find its way into the syllabus of that case, yet it is not obiter, as that was one of the questions made in the case and necessary to be disposed of to reach a decision thereof. That case being identical with the one at bar, it is unnecessary for this court further to discuss this defense. ■

It is/ urged that -it will result in great hardship to the public to permit one individual to obstruct the construction and operation of this street railway, but that can not be true, for if a majority consent, the minority must submit. That principle obtains everywhere in our fonn of government. If a hardship result to the public, the, fault is with the legislation controlling this subject. A court is not permitted to legislate, but only to declare and enforce the law as it finds it, and any departure from this rule would be fraught with far more serious danger to the welfare of the people than mere temporary annoyance. If this be the law the e§r of the court can not be open to arguments of expediency. These must be directed to the law-making power of the state.

Squire, Sanders & Dempsey, John G. While and T. U. Ilogselt, for plaintiff.

Garfield, Uoive c& Weslenhaver and W. H. Boyd, for defendant.

Newton D. Baker, City Solicitor, for City of Cleveland.

Upon the pleadings and the admitted facts the motion of the plaintiff for judgment will be sustained, and the defendant will be enjoined from constructing tracks in and upon that part of Central avenue described in the petition. The defendant will not be enjoined from jointly operating any tracks that may be constructed therein by the Forest City Railway. Company, or its assigns, and the decree may be drawn accordingly.

Motion for new trial will be overruled; exceptions noted.


text:
    IMPROVING PARTS OF STREETS WITH SEWERS.
    [Circuit Court of Hamilton County.]
    Byron Erkenbrecher v. City of Cincinnati.
    Decided, June 15, 1907.

      Municipal Corporations — Assessments for Sewers — Improvement of Separate Portions of Streets — Sections 2378 and 2379.
    It is competent for a municipality to improve with, a sewer the unsewered portion of a street, or some part of the unsewered portion of a street, and assess the cost thereof upon the property abutting on the part of the street so improved.
    Smiti-i, J.; Swing, J., and Giffen, J., concur.
   This action is brought to enjoin the collection of an assessment for the construction of a sewer in the unsewered portion of St. James avenue, between Curtis street and Windsor street, the cost of the same having been assessed upon the property abutting upon the improvement by the front foot.

William A. Geoghegan, for City of Cincinnati.

L. F. Hanger, for the property owners.

It is claimed that the cost of sjaid improvement should have been assessed upon all the property abutting upon St. James avenue, and not upon the property abutting upon the improvement, because portions of said street had been sewered prior hereto.

Section 2378, Revised Statutes, provides for the construction of sewers in a part or parts of a street; and Section 2379 provides for assessing the cost and expense of the same upon the lands abutting upon the improvement by the feet front.

The improvement of separated portions of a street is fully recognized in the statute, and such improvement if made in sections and assessed per front foot upon said sections is upheld in Wilder v. Cincinnati, 26 O. S., 284.

The improvement was not of the whole of St. James avenue but only of parts of it; and if some time prior certain portions of the street had been improved with sewers, whether by the city or private individuals, surely the city would have the right to afterwards improve the separated portions and assess the abutting property for the cost of the same as though they were -contiguous.

The assessment is therefore valid and the petition will be dismissed.


text:
    IRREGULARITIES AS TO BILLS OF EXCEPTIONS.
    Circuit Court of Lucas County.
    The Pullman Company v. William Washington.
    Decided, March 22, 1907.

      Bills of Exceptions — Legislation with Reference to — Premature Delivery of, to Trial Judge — Does not Deprive the Reviewing Court of Jurisdiction, When — Exhibits—Failure to Properly Mark for Identification — Interrogatories Ansxoered by the Words “Don’t Knoio” — Verdict Based on Speculative Evidence — Negligence— Defective Apparatus.

    1. While counsel should be granted the full ten days allowed by statute for examination of a bill of exceptions and the making of objections thereto, a miscalculation by the clerk of court as to the time to which counsel were entitled for examination of the bill, and the premature delivery of it by the clerk to the trial judge for his signature, is not such an irregularity as will deprive a reviewing court of jurisdiction, where it appears that the bill was filed in time by the plaintiff in error and no substantial injury will result from disregarding the irregularity.
    2. Failure properly to mark for identification certain depositions which were used at the trial below, or t'o attach them to the bill of exceptions, does not prevent their being treated as a part of the bill of exceptions, when it is reasonably certain that they are the same depositions ‘which were used in the court below, and that it was intended they should be made a part of the bill of exceptions but, owing to an inadvertence, were not attached but filed with the original papers in the appellate court.
    3. Where interrogatories are submitted to a jury relating to matters of an evidential nature rather than to ultimate facts, no prejudicial error can be based on the receiving of a verdict in which some of the answers to the interrogatories áre neither affirmative nor negative, but simply the words “Don’t know.”
    4. A verdict for damages in a substantial amount for an injury alleged to be due to defective apparatus can not be based on evidence that is vague,- speculative and theoretical; and where a verdict is based solely on such evidence, the judgment thereon should be reversed and a new trial granted.
    Wildman, J.; Haynes, J., and Parker, J., concur.
   This is a. proceeding in error to reverse the judgment rendered in the court below in favor of the plaintiff below, William Washington, for the sum of five thousand dollars. The petition is based upon a claim for personal injuries sustained by Washington in the burning of a-Pullman car of which he was porter. The petition charges various matters of claimed negligence; but upon the final trial of the case they were, in the judgment of the trial court, reduced to but one claim, of defect in the heating apparatus of the car.

The questions which meet us at the outset of our inquiry are, as to the validity of the bill of exceptions, and as to whether or not certain depositions offered upon the trial below are to be treated as a part of the bill. A motion was made to strike the bill of exceptions from the files, upon the ground that after its .filing in the court of common pleas within the time required by statute it was prematurely delivered by the clerk to the trial judge for his examination and signature. The clerk in this case, and in another which we have had occasion to examine, seems to have miscalculated the time allowed by law for the filing of objections to the bill of exceptions by adverse counsel, and upon the tenth day of such period, a day which belongs to the adverse counsel for the purpose of examination and filing such objections, the' bills were handed to the trial judge.

Our judgment, from an examination of the various statutes, without referring to them more specifically, is that counsel should have the full ten days for examination of the bill and making objections to it, aiid until the expiration of that period the' bill should not be handed to the trial judge. It does not follow, however, that this irregularity of the clerk is such an irregularity in a jurisdictional matter as will destroy the bill of exceptions. In the legislation in the state with reference to bills of exceptions, and the adjudications of courts thereon, ■ much difficulty, oftentimes of a seemingly technical character, has been placed in the way of perfecting proceedings in error, by which the review of decisions of lower courts has been sought to be obtained in the court of last resort, or in the intermediate appellaté courts. At almost every session of the Legislature some changes have been made as to the time of filing bills of exceptions, or various steps of procedure to get them upon the record or to bring them to the consideration of the appellate court; but we are glad to discover in a very recent case decided by the Supreme Court, the case of Davies v. The New Castle & Lowell Railway Co., 71 O. S., 325, that some of these matters which have heretofore been deemed jurisdictional are not now so considered by the Supreme Court, and that greater liberality is obtaining in the methods of perfecting bills of exceptions. I read from the syllabus on page 325:

“1. Under the provisions of Section 5301, Revised Statutes, as passed October 22, 1902, it is incumbent upon the party taking a bill of exceptions to file the same in the cause with the clerk of the court within forty days after the overruling of the motion for a new trial, or the decision of the court excepted to, where a motion for a new trial is not filed, and having done this he has performed all the duties imposed upon him by the statute.”

I will not stop to read the second paragraph or the third, which bear more closely upon other claimed irregularities in the ease which were considered by the Supreme Court. I read from page 332 of the opinion of Judge Price:

“What could have been shown to defeat the bill? It is not contended that the document, filed with the clerk as a bill of exceptions on the fifteenth of August, lost its identity in any way, or that it was tampered with by anyone during the interim of seven days.” [It appears that the time of receipt of the bill by the judge was some seven days after the time when it was said to have been delivered to him by the clerk.]
“The temporary absence of the trial judge might account for the bill coming into his hands on the seventeenth of September. Whatever it was that caused this lapse of time, it was not the fault of the party filing the bill. He has done his part toward its perfection, and the remaining steps are to be taken by the clerk and trial judge or judge's. While the statute commands the clerk to transmit the bill to the trial judge within a certain number of days, and as to the officer the duty is mandatory, yet his neglect to do so within the period prescribed would not lose the bill, provided it reached the trial judge in time to enable him to allow, sign and return it within the time prescribed for that duty, and it is so allowed, signed and returned. What would be the result if the trial judge should neglect to sign and return the bill within the time fixed by statute, is another and different question not raised in this record and we express no opinion concerning it. ”

The important point to this reasoning and language of the judge is that he is treating the filing of the bill with the clerk as the only duty imposed upon the party, the remaining duties being those of the clerk in transmitting the bill to the judge and of the judge in considering and signing and returning it; and Judge Price seems to indicate by the language of the opinion that the bill would not be rendered invalid by the failure of the clerk to perform a ministerial duty, and that it possibly can not be defeated even by the neglect of the judge to sign it within the statutory time, although this is left as an undisposed of question. On page 334 of the opinion Judge Price says:

“All the objections made to the bill in the circuit court, as well as those presented to us by counsel for plaintiff in error, are purely technical, and under our present law are not valid. Under our former statutes, several things were required of the excepting party in order to obtain a review of his ease. Some of these were held in former decisions to be mandatory and jurisdictional, and if not complied with the bill could not be considered. .
“We hope that the day is now passed. The former practice furnished a yawning sepulcher wherein were swallowed up the honest efforts of litigants to have their controversies reviewed by a higher court. These lost rights made earnest protest to the General Assembly, until it finally acted, and has adopted a more simple method of relief, and has attempted to utterly cast out some of the difficulties which formerly hedged the way to a reviewing court. The legislative intent is plain in the present statutes, and we are not now required to follow as precedents all decisions of the court made under the former legislation.”

We think that the spirit of this reasoning justifies the holding of the bill good so far as this one question is concerned, although the clerk did hand or send the bill to the trial judge a day prior to the time when it should have been so transmitted. If probable prejudice to the defendant in error, had been shown as a result of the clerk’s irregularity, it might be such a matter as would justify a rejection of the bill. But nothing of that kind is indicated in this case. Indeed, it clearly appears that even after the bill passed into the hands of the trial judge, counsel for defendant in error had ample opportunity to examine it, and unquestionably, if the attention of the trial judge had been called to the fact that it was in his hands prematurely, or without that, if his attention had been called to matters which demanded correction in the bill, he would have given his attention to them, and would not have signed the bill without proper correction. But nothing of this kind is claimed. It is not intimated to us in arguments of counsel or otherwise that there was any objection to the bill as such, that is to say, that it demanded correction in any way, unless perhaps in one instance, in the omission to attach certain depositions, to which I will refer later, and as to those counsel for defendant in error is now insisting that they should not be attached rather than that the bill should be corrected by attaching them.

Should these depositions be treated as a part of the bill? This is another important and possibly vital question involved in the present case. I should say that the depositions had been placed on file at some time prior to the trial of the case, and remained on file so far as appears on the twenty-sixth day of January, 1907, when the petition in error was filed in this court. The clerk then, seemingly taking it for granted that depositions were to be treated as original papers in the case, so indicated'by lettering them and filed them with the original papers and pleadings. On the fifth day of February the bill of exceptions was filed in the court of common pleas. The depositions should properly have been still on file in that court, but in this instance as in the other it was the inadvertence of an officer of the court rather than of a party that caused the depositions to be filed in the circuit court. I do not mean that it was the inadvertence of the clerk that the depositions were not attached to the bill of exceptions, because it was no part of the duty of the clerk to attack the depositions to the bill. That was the duty of counsel preparing the bill of exceptions, or such agent as counsel might instruct to prepare the bill.

It does not seem, however, to have been deemed absolutely essential, even before the somewhat wide departure from former practice indicated by Judge Price in the case which I have cited, that the exhibits should be in all cases attached to the bill of exceptions. In a case tried by this court before I was a member of it, Huron Dock Co. v. Swart, Admx., in the Erie Circuit Court, some exhibits were treated as a part of a bill when sufficiently identified by it, although they were not attached to it. The case was carried to the Supreme Court, and the court went a little beyond.the decision of the court of common pleas and held as a part of the bill still another exhibit which had not been attached to the bill in the court below. The citation is Swart, Admx., v. The Huron Dock Co. et al, 69 O. S., 574. The court decides as follows:

“Judgment affirmed on authority of Busby v. Finn, 1 Ohio St., 409, the map and blue print being filed with the bill of exceptions and so described as to leave no doubt of their identity, and the same are therefore held to be a part of the bill of exceptions. ’ ’

To our minds there is not a particle of question from the intrinsic evidence of the depositions themselves and also the way in which they were mentioned in the bill and referred to as a part of it, that they were intended to be a part of the bill, that they were introduced in evidence and used upon the trial, and that it is a mere inadvertence that they have not be.come attached to the bill. It is urged that they are neither attached nor marked as the bill says they are marked, but’ it is so common a practice to refer to exhibits during the progress of a trial as marked by letter or number, when they have not already been so marked before the statements are made, that we conclude that the marks which were mentioned during the trial had not been placed upon the depositions, but that those marks were intended to be placed there before the making of a record.

■As'I have said, the intrinsic evidence afforded by an examination of the depositions themselves in connection with the statements in the bill of exceptions as to what occurred upon the trial, and what was shown, is sufficient to justify the conclusion that they were the same depositions that were used upon the trial, if indeed anything to the contrary were claimed by counsel. It is not asserted to us that they are not the same depositions. It is claimed by counsel for plaintiff in error that they are the depositions that were offered, and while we can not amend a bill of exceptions, or take oral testimony to supplement one or supply an omission in it, still we think we are justified under all the circumstances in concluding that these are the depositions that were intended by the bill of exceptions and that they are as clearly identified as were the exhibits in the Swart case. I am speaking now from information received from my associates who were members of the court at that time, and I am not depending upon any recollection or knowledge of my own, although the facts in the Sv'art case finally decided in 69 O. S., page 574, are fully set forth in the reported opinion of the circuit court (2 C. C. — N. S., 457).

This brings us to a consideration of the record, as disclosed by the bill of exceptions. There are two or three claimed errors. So far as the charge is concerned and the special instructions given by the trial judge to the jury, we find no exceptions in the bill. Some earnest protest is made against the receiving of the verdict', or rather the answers of the jury to some interrogatories by the statement that they did not know. The words “Don’t know” are given as an answer to some óí the interrogatories, and it is claimed that it was error to receive these findings — that the jury should have been required to answer either in the affirmative or negative, or other definite and positive form, the interrogatories put. We think, however, that the matters to which these questions were addressed were of an evidential nature rather than involving ultimate facts, and that it was proper enough for the jury to answer as they did. At any rate, no claim of prejudicial error can be based upon answers of this kind, where the interrogatories are not such as are contemplated by the statute as tC) ultimate facts necessarily involved in the conclusions to be embodied in the general verdict. The important matter presented by this entire record and one which has demanded and has received at our hands several days of earnest consideration and discussion, is the question whether the verdict for five thousand dollars obtained by the plaintiff in the court below is justified by the evidence. It would not be profitable to attempt any extended review of the evidence disclosed in this bulky package before me. The trial probably took a considerable time and the testimony and other evidence made, a very voluminous record; but our judgment, from an examination of it all from cover to cover, is that the verdict is not justified by the evidence. There is a conflict of evidence, to be sure, and one which clearly entitled the plaintiff below to have the case go to the jury for its determination; but the matter is still left in the hands of a reviewing court to determine whether the verdict is or is not manifestly against the weight of the evidence. The claims of the plaintiff, as I have said, were finally reduced by the consideration of the trial judge substantially to one, that there was a defect in a so-called drip valve, which was a pai-t of the apparatus for the heating of the car, and that by reason of that defect there had been an escape of water unnoticed, but nevertheless a substantial and considerable escape of water, from the coils which were found within the heater; that upon a fire being kindled in the heater, the result of the coils being empty of water, was such that more heat was disseminated through the iron of the heater and communicated to the combustible materials in the car; that a conflagration was thereby uaused, and that the injuries received by Mr. Washington, the plaintiff, in his escaping from the car or being burned while in the car- were the proximate result of this first defect to which I have referred.

The evidence offered in support of the theory that the heater was defective in some way is perhaps cogent. There is the evidence in the depositions to which I have referred,s and the testimony of the witness Demay, that there was a defective condition in this heating apjmratus which had existed for ^some time prior to the injury. It does not seem to have been indicated to anyone’s mind at that time that the defect was of a character that would cause anything but discomfort to passeiigers. It was not such a defect perhaps as would lead to the idea that there would be danger to the car itself by its destruction from fire, but merely one which lessened the heating capacity of the apparatus.

We are not prepared to say, however, that a defect of this character was not such as to justify a claim that the attention of the company should have been called to it so as to endeavor to remedy the defect, to save the comfort of passeiigers, and that in so doing they might have discovered the specific defect, the cause of the failure to heat the car sufficiently, and might thereby have been led to a reasonable apprehension that there might be danger to the ear itself. But this view is somewhat vague and uncertain. The whole evidence of the plaintiff, when we get beyond the mere fact that there was some defect in the heating apparatus itself at some time prior to the burning of the car, is equally vague, speculative and theoretical. There is more or less theorizing on the other side, but our view is that there is some testimony, which, unless it be capriciously and arbitrarily rejected, is of sufficient significance to justify the finding that immediately after the conflagration and immediately before there was such quantity of water in what is known as the expansion drum attached to this heater as to prove conclusively that the coils themselves must also have contained water. It is very forcibly argued by counsel for defendant in error that the defect to which Mr. Demay had called attention, if it be a defect, which is denied by some of the experts called on the other side, consisted of a three-sixteenth inch aperture in the drip valve instead of one-eighth of an inch, or two-sixteenths, which would result in a loss of water through-this drip valve to a considerably larger extent than would be indicated at first blush to a non-technical mind; in other words, that the proportion of loss is as nine to four, the area of the circle increasing with the square of the diameter. And it might be added to reinforce this suggestion, a matter which has occurred to me, and which I think is susceptible of scientific demonstration, that the smaller the aperture the greater the friction, so that with a larger diameter not only would there be a larger capacity for escape but also a chance for a more rapid flow. But however this may be, we are not inclined to think that the. other evidence, somewhat connected with this, as to the amount of water that was drawn from the heating pipes of the car immediately after the fire, is at all satisfactory or conclusive in the way suggested by counsel for defendant in error. It seems that two plugs were opened, or two holes were opened to enable the draining of those, pipes after the fire, and the amount of water that was so drawn off is to be determined only from the estimates or guesses of the witnesses as to the time which it took for the water to escape, something that is as unreliable almost as any kind of evidence, unless it be the evidence of witnesses as to conversations.

Potler c& Poller, for plaintiff in error.

C. A. Thatcher, for defendant in error.

Immediately after the fire, and immediately before, according to the testimony of witnesses, an examination was made of the expansion drum attached to the heater, and it is said to have been found about half full of water. I have already stated that if that be true, it is inconsistent with the theory of the defendant in error that the coils were empty at the time of the fire. There is other evidence, practically undisputed, that the zinc bounding or defining the enclosure in which the-furnace part of the heater was placed was either burned or melted away in patches at some places, and there is some evidence, theoretical to be sure, that before this could be accomplished, the coils themselves, if they were empty of water, would have been melted. We do not deem this evidence very conclusive one way or the other, but we do feel that there should not be an arbitrary and capricious rejection of the testimony of witnesses which stands unimpeached and consistent with itself, that there was water in the expansion drum in such quantity as to evidence that the coils themselves were supplied with it. We think this evidence should have been considered by the jury, and taking the evidence in its entirety, and without further comment upon it — and very much more might be said — we think that the verdict is not justified by the evidence. For this reason and for no other the judgment of the court below will be reversed and the case remanded for a new trial.