text:
    COLLISION OF TEAM WITH ELECTRIC CAR. AT STREET CROSSING.
    Circuit Court of Cuyahoga County.
    The Cleveland Electric Railway Company v. Edward J. Kenna.

    Decided, November 11, 1905.

      Negligence — Only Reasonable Action Required in Escaping from Situation of Banger.

    After one had been placed in a situation of danger through the negligence of another, he is only required to do that which a reasonably prudent man under like circumstances would do in escaping from the danger, and in doing it he is not guilty of contributory negligence, even'though it may not have been the wisest course to pursue.
    Squire, Sanders & Dempsey, for plaintiff.

      L. A. Bussell, contra.
    Marvin, J. (orally); Winch, J., and Henry, J., concur.

       Affirmed without opinion, Cleveland Electric Railway Co. v. Kenna, 75 Ohio State, 625.

   This is a proceeding in error. The parties here are the reverse of what they were in the court of common pleas, but they are here spoken of as they were in that court.

On the 7th of September, 1903, about 6 o’clock a. m., plaintiff was driving a span of horses harnessed to a wagon loaded with bread, which he was delivering to families who were his customers in the city of Cleveland. When driving to the west on Astor avenue he approached Dunham avenue, which runs north and south at right angles with Astor avenue, his intention being to turn to the south on Dunham.

The defendant owns and operates a street railroad, on Dun-ham, and to drive to the south on Dunham on the right-hand of the tracks of the railroad it was necessary that he cross bver these tracks from the east side where he would reach them as lie came out from Astor, to the west side. In an attempt to do this his wagon was struck by a car of the defendant running to the north, and the plaintiff was thrown from his wagon and injured. He sued the defendant in the court of common pleas to recover damages for such injuries. The result of the trial was a verdict and judgment for the plaintiff in the sum of $3,000. To reverse this judgment the present proceeding is prosecuted. It is claimed that there were numerous errors to the prejudice of the defendant during the progress of the trial which should cause this court to reverse the judgment.

The plaintiff in his petition charged that the defendant was negligent in running its ears at a high rate of speed, to-wit, 25 to 30 miles an hour, and in violation of the ordinances of the city of Cleveland regulating the speed of such cars; that the defendant failed to give any signal of the approach of its car to Astor avenue, as required by the ordinance of the city, and without applying any brake to retard the speed of such ear as it was approaching Astor avenue, all in violation of its duty to exercise ordinary care to avoid accident and injury to persons and property.

The defendant by its answer denied that plaintiff was injured by it, and averred that if he was injured, his own negligence ■contributed to his injury.

A bill of exceptions is filed in this court, containing all the evidence offered on the trial below.

On the trial the plaintiff testified that he was familiar with the place where the accident occurred, had been accustomed to drive there for a long time; that there was a building on the southeast corner of Astor and Dunham coming clear up to the line of each street at the corner; that there were, trees along the east side of Dunham, south of Astor, and that by reason of such building and trees his view along Dunham was so obstructed that he could not see a car approaching from the south until he was within a short distance of the railroad tracks; that he was upon the seat of his wagon, and though it was a covered wagon, there was nothing about the wagon to interfere with his view on either side, but only at his back; that his seat was about fifteen feet back from tbe heads of his horses, and that before he was far enough to the west to see a car coming from the south, his horses’ heads were over the east rail and their front feet either close up to or over the rail; that just before he got to Dunham he checked up his team and listened, but heard no bell or ear; that he drove forward and when he got to where he could see, he saw a ear coming rapidly from the south. His horses were on the track, and he hurried them by slapping the lines upon them, trying to get across before the car should reach them. He also testified that the car was approaching at from 25 to 30 miles an hour; that when he first saw the car the motorman was looking down and not toward the front; that the ear struck the rear part of his wagon; that he was thrown out and injured.

William Kuppy was examined as a witness on the part of the plaintiff. He saw the accident. He was on Dunham avenue and about twenty feet south of Astor. The ear passed him. before the collision. He says no bell was sounded or other signal givén. He says the car was going fast, but will not undertake 'to say how fast. Hh says the car ran one hundred feet after the accident before it stopped.

Remie Rich saw the car just before it struck plaintiff’s wagon. He thinks it was going 25 or 30 miles an hour. No bell or other alarm was sounded.

It was admitted by the defendant that the maximum rate of speed allowed by the ordinance at the time of this accident was twelve miles an hour. The ordinance of the city required a bell or gong to be sounded one hundred feet from street intersections and to be continually sounded while passing the same, and that ordinance inquired the person in charge of each car to keep a vigilant watch for all teams or persons on the track.

At the close of plaintiff’s evidence, defendant moved the court to direct the jury to return a verdict for defendant. This motion was overruled, and it is claimed that there- was error in that ruling. •

It is urged that the plaintiff was clearly negligent In driving on when he saw the car, and that he could have avoided the accident by at once turning his team. It may be true that he could have turned the team, so as avoid the accident. It may be true that he did not pursue the wisest course that could have been .pursued; he was only required to do that thing which a reasonable man under the circumstances would do, and this is not necessarily to do that which on the whole, upon an examination afterward, might have turned out to be the wisest thing to do under the circumstances. lie should do that which one of ordinary prudence would deem under the circumstances to be the wisest thing to do. There was no error in refusing to direct a verdict for the defendant nor any error in refusing to grant a motion for a new trial on the ground that the verdict was against and not supported by the evidence.

If the jury believed the evidence offered by plaintiff, it was justified in finding negligence on the part of the defendant and that plaintiff did not contribute to his injury by his own negligence.

It is urged that the court erred in refusing to charge the jury, as requested by the defendant, the following:

‘ ‘ If the plaintiff voluntarily left the east side of the street and drove onto the track at a rapid trot, when the car was only ninety feet away, there can be no recovery in this ease and you should return a verdict for the defendant.”

If this had been given the jury might have found that the defendant was guilty of all the negligence complained of; that the plaintiff checked up or stopped his team just before he reached Dunham avenue; that he listened for a signal and heard none; that he then drove forward until his horses had actually Reached the track before he could see a car; that, then seeing' the ear approaching rapidly, he, in the exercise of the best judgment he could exercise in that perilous position, urged his horses into a rapid trot across the track, as in his judgment being more likely to save him from accident than to try to back or turn them, and yet that he could not recover. This surely is not the law and ought not to be the law. There was no error in refusing this charge.

It is complained that the court erred'in giving the following charge, to the jury:

‘ ‘ Tbe plaintiff complains that the defendant was guilty of negligence in that it did not give the signals required by the ordinances ; that they violated the speed allowed by the ordinances. The ordinances of the city, it is agreed, require that the speed at that place shall not exceed twelve miles an hour, and the ordinances also require that signals shall be given at all crossings and 100 feet before coming to them. Of course, it is no element in this case whether the ordinances were violated or not, unless that violation contributed to the injury. All must see that that is true. A motorman, for instance, might not have given signals, or might have been running at an unnecessary speed a little this side of where the accident happened, and might have subjected himself to arrest and punishment for violating the ordinances, but that could have no bearing on this ease. So the question whether or not he was running at too high a rate of speed, at a higher rate of speed than twelve miles an hour, whether he gave or did not give signals, is important only if the exceeding rate or not giving the signal contributed in any way to this accident. The plaintiff did have a right to assume that that car would be run according to city rules and laws, if I may use those terms. The plaintiff had a right to assume that the car would not run over twelve miles an hour, and he had a right to assume that the signals required would be given; that is, until his senses discovered that there was a violation and that he would have to act in accordance with the conditions that there existed. For instance, he .says that the car was running at thirty miles an hour. From the moment that he saw that and knew that or ought to have known that it was running at that high rate of speed, he must act. in accordance with that high rate of speed.
“Now, it is upon the plaintiff to establish by a preponderance of the evidence, by the greater weight of evidence, that this accident was caused by the negligence of the defendant, by the failure of the defendant’s agent or agents to exercise ordinary car under those circumstances.”

It is said this language was in effect to say that the violation of the ordinance as to speed and the violation of the ordinance as to giving the alarm each constituted negligence per se. We do not so understand the language, nor do we think the jury were likely to so understand the language used. There was no error in that part of the charge.

Error is also claimed in the giving of the following to the jury:

“If it be true that the plaintiff without his fault was in a place of danger, then he should only be required to exercise ordinary carefulness to get out of that danger, then, though his acts as determined by subsequent consideration were not of the wisest at that time and place, that would not determine his rights. For instance, it has'often happened that in a railroad collision or in some other position of danger, people have jumped out of vehicles or something of that kind and have been injured, whereas, if they had remained in the vehicle they would not have been hurt, as shown by that fact; but the law only requires that there, as everywhere, that one come up to the ordinary standard of human prudence. You can see that must be a reasonable test, and that all that is required of the plaintiff if in a position of danger he is only required to exercise ordinary prudence under those circumstances.”

It is complained that this is misleading; that to illustrate by the case of a railroad passenger, to whom the highest degree of care is due, is calculated to impress the jury with the idea that the same degree of care was due to the plaintiff in this case. The criticism is not sound. The court was using the illustration to show that one finding himself suddenly in a place of danger by an unforeseen emergency, for which he was not in fault, was not required to do more than one of ordinary prudence and care, under the same circumstances, would do. The illustration was apt and was not misleading.

Other complaints as to the charge are made, but we find none .of them well founded.

'Complaint is made that the verdict was for too much. We have examined the record and we find that the plaintiff was a young man in the best of physical health, and seemed to be a man of extraordinarily fine physical manhood — that as the result of this accident, apparently, certainly immediately following this accident, he suffered greatly. His right shoulder is considerably shrunken. It is true that one of the medical men testified after the accident, that he found that his left shoulder was injured. The evidence is such that we are not prepared to say that the .jury must have been influenced by passion -or prejudice to have brought in the verdict that they did. That being true, we find no error in this record that would justify a reversal, and the judgment of the court of common pleas is affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    SWITCHING CHARGES WITHIN MUNICIPAL LIMITS.
    Court of Appeals for Hamilton County.
    The Cincinnati, New Orleans & Texas Pacific Railway Co. v. The J. B. Doppes’ Sons Lumber Company. The Richter Grain Company v. The Cincinnati, Hamilton & Dayton Railway Company, and The Cleveland Cincinnati, Chicago & St. Louis Railway Companies.

    Decided, July 16, 1914.

      Railways — Switching Charges Within Municipal Terminal Limits — Application of Section 9000, General Code.

    The word “switching” as used in Section 9000, General Code, applies only to the movements within the terminal limits of a municipality of freight cars when incidental to the shi pment as a whole or to the main journey, and has no- application to shipments from one railway to another within the terminal limits of a municipality.

      Dolle, Taylor $ O’Donnell, for the Doppes’ Sons Co.

      Charles A. Groom, for the Richter Grain Co.

      Waite & Schindel, for the C., H. & D. Railway Co. ' Harmon, Colston, Goldsmith c§ Hoadly, for C., N. O. & T. P. Railway Co.

      Maxwell <& Ramsey, for C., L. & N. Railroad Co., interested in other cases involving same question.
    Jones, E. H., J.; Jones, O. B., J., concurs; Swing, J., not sitting.

      Reversing Doppes’ Sons Lumber Co. v. C., C., C. & St. L. Railway Co., 14 N.P.(N.S.), 392.

      Affirming Richter Grain Co. v. C., H. D. Railway Co., 16 N.P.(N. S.), 81.

   These three cases involve one question, and were presented at one time.

The plaintiffs below, viz., the J. B. Doppes’ Sons Lumber Company and the Richter Grain Company, in their petitions seek to recover on each of their several causes of action the penalty of $150 prescribed by Section 9002 of the General Code, for a violation of the provisions of Section 9000, General Code.

The latter section reads as follows:

“See. 9000. A company owning a track or tracks lying contiguous to coal mines, stone quarries, manufacturing establishments, elevators, warehouses, navigable waters or sidetracks, and within the proper terminal limits of or about a city or village, shall be entitled to receive from the company whose cars are so switched, loaded and unloaded at such mines, quarries, manufacturing establishments, .elevators, warehouses, navigable waters or sidetracks, no more than one dollar per car for'switching one-half mile or less on such tracks; for distances over one-half mile and not exceeding two and one-half miles, not to exceed one dollar and fifty cents per ear; for all distances over two and one-half miles and not exceeding jive miles, not more than two dollars per ear; and for all distances of more than five miles, not more' than three dollars per car. When such service is on the roads of two or more companies, then such charges shall be divided between the companies in proportion to the distances of each road. But each company shall be entitled to at least one dollar for such service, regardless of distance, but there shall be no charge for returning empty cars from such mines, quarries, manufacturing, establishments, elevators, warehouses, navigable waters or sidetracks. Such company may perform the service or do the switching work herein provided for, in the daytime. Whatever private sidetracks are or may be constructed, the company must switch cars thereon at the rates herein specified. ”

Plaintiffs allege in their petitions that they were required to pay an excessive rate for shipments in carload lots of lumber and grain between points within the terminal limits of the city of Cincinnati. For instance, in the first case the petition alleges :

“That the plaintiff shipped a ear of lumber from Fernbank on the tracks of the Big Four to its private switch on the tracks of the Cincinnati, New Orleans & Texas Pacific' Railway Company; that all the places concerned, including Fernbank, are in the switching limits of Cincinnati; and that the Cleveland, Cincinnati, Chicago & tít. Louis Railway Company and the Cincinnati, New Orleans & Texas Pacific Railway Company demanded and received from plaintiff for switching from the tracks of the said Cleveland, Cincinnati, Chicago & St. Louis Railway Company onto and over the tracks of the other defendant company to the plaintiff’s siding, the sum of six dollars, in addition to charging live dollars for transporting said car from Fernbank over the Cleveland, Cincinnati, Chicago & St. Louis Railway Company to Cincinnati.”

The several complaints' against the railroad companies are the same in nature, although the charges and points between which shipments were made differ.

It is claimed in making the charges for these intracity shipments no heed was given by the carriers to the provisions of Section 9000, General Code, that the transporting of the car over one of the roads is a “switching” within the meaning of that section; and that the charge therefor must be governed accordingly.

The sole question in this case, therefore, is whether or not the rates prescribed in Section 9000 must be observed by the railroad companies in collecting for shipments such as those described in the petitions herein.

After reading the briefs of counsel and examining the authorities cited therein, we have reached the conclusion that Section 9000 has no application to shipments such as those under consideration within the terminal limits of a city. "We are of the opinion that the word “switching” as used in said section applies only to movements of freight cars within such city that are incidental only to the shipment as a whole; or, as one of counsel puts it “to the main journey.” While the railroads arc required by Sections 8998 and 8999, under the penalty prescribed in Section 9002, to make transfers of freight cars to avoid the necessity of reloading same, they are entitled to be paid for shipments from one local station within the city to another local station therein at the regular tariff rates in effect between said stations. Such an interpretation of the statute is not only warranted by its language and that of preceding sections, but to our minds is required by a sense of justice and fairness to all parties concerned. It is also well supported by decisions of higher courts, which we follow in deciding this case. See Grand Trunk R. R. Co. v. Mich. R. R. Com., 231 U. S., 457 (198 Fed., 1009); Dixon v. R. R. Co., 110 Ga., 173.

The distinction between a switching and a transportation movement is well expressed in 8th "Words & Phrases, Section 7070.

The judgment in case No. 95 will be reversed, and the judgments in cases Nos. 318 and 319 affirmed.


text:
    PROCEEDINGS FOR. INCORPORATION OF VILLAGES.
    Court of Appeals for Champaign County.
    Alvin J. Bring and John M. Saylor, as Agents for the Petitioners, v. John B. Hollis et al.
    Decided, November 6, 1914.

      County Commissioners — Jurisdiction of, in the Incorporation of 'Villages — Political in its Nature and Not Subject to Review — Sections 3517 et seq.

    Proceedings had by county commissioners with respect to the incorporation of a village are political in their nature and not judicial, and are therefore not subject to review on petition in error.

      Deaton & Bodey and A. J. Bright, for plaintiff in error.

      Johnson & Miller, contra.
    Allread, J.; Ferneding, J., and Kunkle, J., concur.
   The jurisdiction of county commissioners under Sections 3517, General Code, et seq., providing for the incorporation of villages is in its nature political and not judicial. Musser, Auditor, v. Adair, 55 O. S., 466; State v. Harmon, 31 O. S., 250.

An order of a board of commissioners in such proceedings dismissing the petition is not, therefore, subject to review upon petition in error.

Judgment affirmed.


text:
    EMPLOYEE INJURED BY THE BREAKING OF A ROPE AT A POINT WHERE IT HAD BEEN “MARRIED.”
    Circuit Court of Cuyahoga County.
    The Guy & Ralph Gray Co. v. Alec Larson.
    Decided, June 21, 1907.

      Use of Rope Improperly Repaired May he Negligence.

    Where the owners of a vessel use a rope which has been repaired by “marrying” the broken ends together, instead of splicing them, and in raising a sail the ends part and allow a pulley to fall upon an employee, they are guilty of negligence.
    Marvin, J.; Winch, J., and Henry, J., conciir.
   On the 25th day of July, 1904, the plaintiff was injured by the falling of a pulley block upon his head, on the lake vessel “Plymouth.” By this accident the plaintiff was greatly injured. He brought suit to recover damages for this injury. The result was a verdict and judgment in his favor.

The parties here stand in the reverse order of their standing' in the court of common pleas. In this opinion, the word “plaintiff” and the word “defendant” will be used as the parties stood in the court of common pleas. The claim of the plaintiff was that at the time of the injury he was an employee of the defendant, who owned the “Plymouth”; that he was on the vessel as such employee when the mate, who was in charge of the vessel at the time, was using a 1 y2 inch rope through three heavy sheaved wooden blocks. That for this work a rope was used passing over the pulleys in three pulley blocks; that the rope in use on these pulleys had become rotten and unfit for use, so that it became necessary to repair it; that in making the repairs the rope was cut, a part of it taken out, and then the two ends left by the removal of this part so taken out, were fastened' together by a process called “marrying,” which consists in sewing together the two ends of the rope by means of cord; that this marrying having been done, the rope was used to raise or swing out the gaff on one of the sails of the vessel. To perform this work two of the pulley blocks were fastened above, or “aloft” as it is expressed in the petition, and the other pulley was down toward the deck; that in attempting to draw the rope thus married over one of the pulleys, the parts which had been married,, separated, allowing the lower pulley, which should have been, as alleged in the petition, near the deck, to fall or swing against the plaintiff, and cause the injury complained of.

The negligence charged in the petition is that the defendant was negligent and careless in not having fastened said lower block to the deck or to some portion of the vessel below, and that it was negligent and careless in not splicing said rope, as said mate knew or ought to have known by the exercise of ordinary care that sewing together the two ends of the ropes would not be sufficient to bear the weight that would be put upon it.

It is not denied that plaintiff was severely injured, but it is claimed that under the facts the jury should not have found that he was an employee of the defendant.

The evidence shows that the vessel came "into the port of Cleveland on Friday, the 22d of July; that on the trip which was then ended, the plaintiff was a sailor' on this vessel; that on that Friday morning the crew was paid off, including the plaintiff. The plaintiff was then asked if he would go on the next trip, and he answered that he would. He was told that he might be absent from the vessel a part of Saturday. He did leave the vessel and was absent till the evening of that day. When he returned to the place where the vessel was at the time he left it, which was at the lumber dock, she was pulling out, and he called to some one on board to know where she was going, and was told that she was going round to- the Ells-worth coal dock. Thereupon he went to that dock, and he says that when the vessel drew up to the dock, a line was thrown out which he caught, and he helped the crew to make the boat fast. He says that he went on deck that night; that he then left the boat, and was gone until Monday; that on Monday he returned to the boat, about half past seven o’clock in the morning; that during all of that time he left his clothing on board, that he had no intention of abandoning his employment; that he went on board for the purpose of carrying out his contract of employment, which it is admitted was made on the morning that he was paid off; that he started to get his overalls to wear.during the performance of his work on the boat, stopping to talk with a fellow sailor, when the accident occurred.

On the other hand it is testified that on Sunday he went upon the boat to pack his clothing, as'though to take it from the boat, although it is not claimed that he actually took his clothing away. This he denies.

The jury found that at the time of this accident he was an employee of the company.

As has already been stated, it is admitted that what took place on Friday morning about his returning to the , boat, constituted a contract of employment. This contract continued to run until he was either discharged by his employer, or he abandoned his employment. If the jury believed him, they might well have found that he did not abandon his employment, and it is not claimed that he was ever notified by the defendant that he was no longer in its employ; the mate who had charge of the vessel saw him when he was there on Monday, and if the plaintiff is to be believed, must have seen that he was there apparently to go to work on the boat, yet he said nothing to him intimating that his services would not be required.

We think that the jury might well have found that he was, at the time of this accident, an employee of the defendant.

This brings us to a consideration of the question of whether there was negligence on the part of the defendant causing the injury complained of. The evidence shows that the injury naturally followed from the breaking of this rope, or rather the separation of the parts which had been “married” together.

Was that separation such as should reasonably have been anticipated ?

As a part of the bill of exceptions in the ease we find a rope with two ends fastened together by the captain of the vessel, upon the trial, for the purpose of showing how parts of rope are married together.

Surely the jury were warranted in finding that this marrying was done as well as marrying would usually be done when it was desired to fasten together parts of rope. Indeed, it was done in the presence of the jury to show what the situation of the rope was after the marrying had taken place. The rope separated at the point where it was married, and allowed the lower block to drop or swing away in such a way as to injure the plaintiff. This separation occurred, so far as can be learned from the evidence, at the time when the married part of the rope was sought to be drawn through the block. For some reason the rope failed to pass over the pulley freely; thereupon the men doing the pulling, under the direction of the mate of the vessel, applied greater power to pulling the rope over this pulley. We think the jury was justified in finding that the separation might have been anticipated. It is said that this marrying was for a temporary purpose only, and that it.was customary to so fasten ends of rope to each other for temporary purposes. On the point last named, there is a conflict in the evidence. The fact that the ends were fastened together so that the rope might be used for a temporary purpose did not in any wise relieve the employer from anticipating danger during such use, except as to time. That is to say if this manner of putting the ends of the rope together was unsafe and dangerous, and one which was likely to result in the separation of the two ends of the rope by drawing it over a pulley, then it was dangerous to use it for temporary purposes.

The case was properly given to the jury by the trial judge in his charge. The principles of law by which the verdict should be rendered were clearly announced, and the result was not such as to justify the court in sustaining a motion for a new trial, and the judgment is therefore affirmed.


text:
    ACTION AGAINST AN INSANE WOMAN FOR NEGLIGENCE OF HER EMPLOYEES.
    Court of Appeals for Hamilton County.
    John F. Nolan v. Sophia Haberer et al.
    Decided, February 28, 1914.

      Evidence — Competence of Plaintiff’s Testimony Against a Guardian for the Defendant Appointed After the Happening of the Injury Complained of — Error in Taking Case from the jury. '
    1. One who is injured, through the negligence of employees of the insane owner of the business which the said employees were engaged in carrying on is not competent, in an action for damages on account of such injuries, to testify against the guardian, where the insanity of the defendant was not officially declared until after the suffering of the injury complained of, notwithstanding the insanity of the defendant existed theretofore and the facts of the case were not within her personal knowledge.
    2. Employees of one who has caused lumber to be piled in a dedicated though unimproved street are bound to exercise a high degree of care to avoid injury to' persons who may desire to use the street, and where the evidence is conflicting as to whether the injury to plaintiff by a falling board was due to the negligence of said employees or to his own contributory negligence, the case should be submitted to the jury.

      G. G. Wilson and J. E. Fitzpatrick, for plaintiff in error.

      Pogue, Hoffheimer $ Pogue, contra.
    Jones, E. IT., J.; Swing, J,. and Jones, O. B., J., concur.
   This action was brought in the court below by John F. Nolan against Sophia Haberer, doing business as Haberer & Company, and Jacob F. Haberer, guardian of Sophia Haberer, a lunatic, to recover damages for an injury which he sustained in June, 1908, by being struck on the head by a board while passing along Berlin street in the city of Cincinnati, which board was being removed from a pile of lumber in Berlin street owned by the defendant Haberer & Company. Two employees of Haberer & Company were taking lumber from this pile, one being upon the lumber pile and the other standing on the street. The lumber was being placed on a wheeled truck, which was on the street, for the purpose of wheeling it into the factory. The end of a stick of lumber struck plaintiff on the head causing severe injuries to him.

Berlin street is a public street of the city of Cincinnati, but has never been improved. It is partly filled and is open for wagon and pedestrian travel. There is.a short sidewalk from Gest street south, but it does not extend as far south as the place of the accident, and people drive over the street principally for service to the factories that are built along it, and pedestrians use it between Gest and South street.

It appears also that defendant had been in the habit of storing lumber upon this street and that the east part of it was occupied by lumber piles where the surface of the street permitted ; that there was a lumber pile against the building of ITaberer & Company on the west side of the street where the accident occurred, and the traveled roadway was between this lumber pile, which extended six or seven feet into the street, and the lumber pile from which the board that caused the injury was taken. The truck upon which the lumber was loaded was about three feet wide and was placed about five to seven feet west of the lumber pile from which the lumber was being taken and about four feet east of the lumber pile which was at the west edge of the street.' Plaintiff was walking southwardly from Gest street.

■ The petition alleges that the injury occurred June 8, 1908, through the neglect of the defendant and without fault on the part of the plaintiff.

The defendant Jacob Haberer filed an answer admitting that he was the guardian of Sophia Haberer, a lunatic, and was appointed as such subsequent to the time of the accident, and admitting the ownership of the plant of Plaberer & Company by said lunatic, and that it was operating a manufacturing establishment fronting on Evans and Summer street and extending through to Berlin street, and denied the other allegations of plaintiff’s petition; and for a second defense pleaded that plaintiff was guilty of contributory negligence in that he “deliberately put himself in a place of danger and negligently and carelessly persisted in continuing to walk along said unimproved Berlin street, on which there were lumber piles where passage was so difficult, and easily visible to the plaintiff, and when by passing only a short distance around the corner in another direction he could have avoided any danger, and notwithstanding that knowledge the said plaintiff took no measures of any kind to avoid being struck or injured by the board referred to in the petition of the plaintiff herein.”

And for a third defense defendant says that if plaintiff was in any manner injured by any act of defendant or her agents, servants or employees, that said injury was caused wholly by his own negligence and carelessness and without fault, neglect or carelessness of her servants, agents or employees.

Plaintiff was .offered as a witness in his own behalf, and objection was made to his competency as a witness under Section 11495, General Code. The court sustained the objection and refused to permit him to testify as to the circumstances of the accident. Exception was taken to this exclusion as a witness, and this is urged as one of the errors relied upon by plaintiff in error in this proceeding.

This ruling of the trial court excluding plaintiff’s testimony as to facts occurring prior to the appointment of a guardian must be sustained. The circuit court of this circuit has ruled upon this question in a ease involving the same defendant, Ransom v. Haberer, 13 C.C.(N.S.), 511. This case was affirmed by the Supreme Court without report, and while it is argued that the circumstances of that case differed from those of the instant case because the evidence shows that the insanity of Sophia Iiaberer existed long before the accident, still the Legislature have seen fit to allow only facts which occurred after the appointment to be testified to by the party opposed to such guardian, and the date of the appointment must therefore control.

If this were a new question the court might be disposed to. hold that the qualifying words found in this section, “when a ease is plainly within the reason and spirit of the next three preceding sections, though, not within the strict letter, their principles shall be applied, ’ ’ might permit plaintiff to testify in a case of this character where the facts are wholly outside of the personal knowledge of the insane person — the business having been carried on entirely by others long before her incapacity had been officially declared by any court and a guardian appointed for her. For a discussion of this question, see the case of Cochran v. Almack, 39 O. S., 314, and the dissenting opinion of Okey, J., on page 318.

At the close of plaintiff’s evidence the court granted defendant’s motion for an instructed verdict.. Upon this verdict judgment was entered for defendant, and this is the principal error remaining upon which plaintiff in error relies for a reversal of the judgment below.

The petition contains but one charge of negligence against the defendant, viz., that her employees carelessly dropped a board from said lumber pile which struck the plaintiff upon his head while he was lawfully wralking along and upon said street. It seems to us that there can be no doubt that this states a good cause of action. It follows that if there is any evidence ending to support the allegation, the question of the negligence of the defendant and the contributory negligence of the plaintiff, which is raised by defendant’s answer, were questions which should have been submitted to the jury for its determination. No question is raised by the record as to the plaintiff having been lawfully upon the street at the time. It was a dedicated street, and the fact that it had never been regularly improved did not change the rule as to the right of any pedestrian who saw fit to pass along -that street. There is nothing in the record to show that the defendant had any authority to store her lumber upon the public highway, and while it may not have been necessary to show authority for such use of a public street by defendant, defendant is not in any way relieved from her obligation to so use the public highway in handling her lumber as not to interfere with or injure any pedestrian or other person who might lawfully be upon the street.

The testimony of the principal witness, the man upon the lumber pile, who undertook to detail the manner of the accident, is in itself somewhat conflicting. The trial judge in his charge to the jury undertook to give his conclusion as to just how the accident occurred, and accepted certain parts of the testimony of this witness and rejected other parts. In so doing, he clearly usurped the province of the jury.

In discussing this evidence, the trial judge concluded that plaintiff was guilty of contributory negligence, from the fact, as he found it, that he had stooped at the moment the board struck him on the head. As it is natural for- anyone to duck the head or move the body, upon seeing the approach of an object like the end of a board waving in the air this conclusion is hardly justified, and seems to be drawn from the statement of the witness that he expected the plaintiff to pass close to the pile of lumber under the board instead of undertaking to go around the board on one side or the other of the truck upon which the boards were being loaded.

As was stated in the opinion of the court in Steubenville Traction Co. v. Brandon, 87 O. S., 187, at page 196:

‘ ‘ Such a situation presents a case where different minds might • reach opposite- conclusions, and thus was a proper case for a jury under proper instructions.”

The trial court assumed that the warning word used by the defendant’s employee, who Avas on the ground engaged in the handling of the lumber, Avas addressed to plaintiff. The evidence did not justify this assumption. It AA'as argued by counsel for plaintiff that this so-called warning might have been considered as addressed by him to his companion on the top of the lumber pile for his guidance in the handling of the lumber, rather than to the plaintiff.

This position- taken by the trial court is manifestly based upon the theory that the man handling the lumber had a prior and better right to the use of the street than had the plaintiff, and that upon warning being given, it became the duty of the plaintiff to turn back or to Avait until defendant’s employees saAV fit to allow him to pass. This surely can not be the law, and rather are we inclined to the view that it was the duty of the defendant to exercise a high degree of care in preventing injury to anyone in the lawful and customary use of the street.

This, therefore, is not a case where the evidence of the plaintiff raised a clear presumption of negligence upon his part without any evidence tending to rebut it, which theory is the only one upon which the action cf the court below could be sustained.

As touching, facts and the law in this case, we think the following citations are worthy of notice: Ham v. Ry. Co., 23 C. C., 496; Penn. Co. v. Rathgeb, 32 O. S., 66; M. & C. R. R. v. Picksley, 24 O. S., 654; C., C. & C. R. R. v. Crawford, 24 O. S., 631; Cin. St. Ry. Co. v. Snell, 54 O. S., 197, and the most recent case of Gibbs v. Village of Girard, 88 O. S., 34.

. For the reasons above stated, the judgment is~ reversed, and the case remanded to the court of common pleas for further proceedings.


author: By the Court

text:
    IMPRISONMENT FOR CONTEMPT..
    Court of Appeals for Hamilton County.
    In re David Fusfeld; In re David Ostend; and In re Nathan Carl.
    Decided, June 1, 1914.

      Contempt — Habeas Corpus Does Hot Lie for Release of One Committed for Unless.

    Habeas corpus does not lie for the release of a prisoner who has been committed for contempt of court, where the court has jurisdiction ' and punishment by commitment is authorized.

      Louis Katz and Snyder c6 Didierson, for petitioners.

      Miller (& Foster, contra.
   By the Court

(Jones, E. II., J., and Jones, 0. B.. J., concur; Swing, J., not sitting).

The three parties named in the caption above have severally-applied to this court for a writ of habeas corpus asking that the same issue against Charles C. Cooper, sheriff of Hamilton county, commanding him to discharge them from custody. They are each under sentence by the superior court for violation of an order of that court enjoining them from interfering in various and specific ways with the business of the Fulworth Garment Company by which they had been employed.

A writ of habeas corpus can not be used to perform the office of a writ of error. This well known principle of law is clearly stated in Ex parte Shaw, 7 O. S., 81, as follows:

“A habeas corpus can not be used as a summary process to review or revise errors "or irregularities in the sentence of a court of competent jurisdiction. Imprisonment under a sentence can not be unlawful, unless the sentence is an absolute nullity. If clearly unauthorized and void, relief from imprisonment may be obtained by habeas corpus: if avoidable, a writ of error is the appropriate remedy.”

See also, In re Swain, 150 U. S., 637; U. S. v. Pudgeon, 153 U. S., 48.

The return of the sheriff shows the authority- under which the prisoners are being held. Tt is contended by counsel for petitioners that the return is insufficient; for, while the jurisdiction of the court which imposed the sentence is conceded, it is argued that it exceeded its authority with respect to the extent of the punishment fixed. In support of this contention it is claimed that the court acted under authority of Section 12142, General Code, in imposing the sentence, when in fact the penalty for the breach of an order of injunction is fixed by Section 11888, General Code.

There is nothing in the return or in the record of proceedings in the superior court as shown by the affidavits and papers filed herein to indicate the particular section of the code upon which the court imposing the sentence relied. It is true that Section 11888 does provide especially for the. punishment of a violation of an order of injunction, and it is also true that the preceding section states that such violation may be punished as a contempt of court. We do not think that the ease relied upon by counsel for petitioners, Grossner v. State of Ohio, reported in 17 C.C. (N.S.), 72, goes to the extent of holding that a violation of an order of injunction, which the statute declares to be a contempt of court, can not be punished under the general provision of Section 12142. This latter section fixes the penalty for violation of offenses defined in Section 12137, which provides:

“A person guilty of any of the following acts may be punished as for a contempt: .1. Disobedience of or resistance to a lawful writ, process, order, rule, judgment-or command of a court or an officer.”

There can be’ little or no doubt, it seems to us, that this language must be held to include a violation of an order of injunction such as the record shows was issued by the court below in the case out of which these proceedings arose. If this view is correct we are inclined to the opinion that; the court had the right to proceed under either Section 11888 or Section 12142, General Code.

But outside of the question of which section should have controlled the action of the court, we hold that the relief prayed for must be denied, for the reason that proper relief would be afforded by proceedings in error; and that sufficient ground has not been shown to entitle the parties to discharge under a writ of habeas corpus.


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    DANGER. AS APPARENT TO EMPLOYEE AS TO EMPLOYER.
    Circuit Court of Lucas County.
    Albert Nusbaum v. Lake Shore & Michigan Southern Railway.
    Decided, November 21, 1908.

      Negligence — Gar Repairer Injured by Flying Piece of Steel — Danger Obvious and Employer Relieved from Liability.

    The danger of a piece of steel flying from a screw or from the hammer with which it was being driven home by a car repairer was as obvious to him as to his employer, and in an action by him against his employer for damages on account of the loss of an eye from such flying particle, he will be presumed to have appreciated the danger notwithstanding an allegation to the contrary.
    Wildman, J.; Parkek, J., and Kinkade, J., concur.
    Error to common pleas court.
   This ease is one in which Nusbaum brought suit against the railway company for an injury caused, as he claimed, by the negligence of the defendant. Nusbaum was employed as a car repairer. It is said that he notified the company at the time of his employment that he was unskilled in that work. He was employed to drive a screw with a hammer in some work, the nature of which I think it is not worth while to detail — when a portion of the screw flew off and put out one of his eyes.

Our judgment is that, whatever damages arose from the act of using the hammer in driving of the screw, would be just as apparent to a person who had occasion to drive anything made of steel with a hammer as it,would be apparent to a person engaged in the repairing of cars. It is not an experience that is peculiar to a particular trade or profession. It is something that belongs to the common usage of people. There is doubt as to whether a danger of that kind — that is, the flying off of a bit of a screw — would so naturally and logically result in the putting out of an eye of a person using the hammer, as to enable us to say that he ought naturally to have apprehended it, but if it would not so naturally flow from the act as to induce him to apprehend such a result, we can not see any reason why it would be apprehended by any one else. In this connection we may cite McGill v. Traction Co., 79 Ohio St., 203, and especially the language of Judge Grew, that if there,was danger it must have been as apparent to the employee as to the employer. The employer had no better facilities for ascer taining or appreciating the danger of this character than had the employee. The case which I am considering differs from the Schultz case, recently considered by us, in particulars and circumstances, although not especially in principle. The Schultz case went to trial in the court below. The Nusbaum case comes up by way of demurrer to the petition, the court holding that the petition was insufficient, sustaining the demurrer, and rendering judgment thereon in favor of the defendant company. But if, as stated by the Supreme Court in the case of Cincinnati Gas & Elec. Co. v. Johnston, 76 Ohio St., 119, 137, it would be .the duty of the court to arrest the ease from the jury and instruct the jury to return a verdict for the defendant upon the basis of the facts therein disclosed, it must be just as much the duty of the court upon the basis of the facts disclosed in the petition, to hold those facts insufficient to justify a verdict in favor of the party pleading. It is true that in the Nusbaum ease the plaintiff substantially alleges that he was ignorant of the dangers and that his master was not so ignorant; but one can not, by this form of pleading, escape the conclusive results of the principles which have already been' enunciated in this case and in the Schultz case; in other words, if it appears by the petition that the danger was so obvious that the employee must be conclusively presruned to appreciate the danger if he knew the circumstances, then, there being no averment that he did not know those circumstances, that conclusive presump-^ tion does arise and his averment that he did not appreciate the danger will not avail, because that would be a matter of law rather than a question of fact.

Our-judgment is that the court did not err in sustaining the demurrer to this petition, and the judgment of the court therefore will be affirmed.

It is suggested by my associate, Judge Parker, that in saying that it was the claim of the plaintiff that a piece broke off from the screw and flew to his eye and put it out, I have not stated the precise claim of the plaintiff in his petition, which is, rather, that it was a piece which flew from either the screw-head or the hammer, and he is unable to state which. I do not deem this difference as of the slightest consequence; he has claimed in either case that as the result of his hammering, something fell off and hit him in the eye and that he did not understand that that sort of thing would happen; that he did not appreciate the danger; and, as I have already stated, the presumption of law in the use of a simple tool like that is against him and he can not avoid the presumption of law by a contrary rule.


text:
    THE WORD “ DISTRIBUTION ” HELD TO REFER TO THE TIME THE ASSETS WERE AVAILABLE.
    Circuit Court of Cuyahoga County.
    Elizabeth A. Campbell v. Jane C. McCue et al.

    Decided, January 28, 1907.

      Estates — Interpretation of Wills.

    A testator directed his executors, after the termination of a life estate, to sell certain real estate and divide the proceeds, one-fourth each to four devisees, subject to the conditions and restrictions thereafter mentioned in the will; another clause in the will provided that if any of the heirs and legatees mentioned in the will should die before distribution of his estate and without leaving children, their shares should revert back to the estate and be equally divided amongst the remaining legatees; another clause provided that the share of certain legatees should be held in trust by his executors with power to invest the same in real estate, of which the legatees were to have the use during their natural lives and at their deaths to pass to their children in such manner as they, by will, or as tlie law might direct. .The executors having sold the real estate at the termination oí the life estate, divided the proceeds, and invested the share of two of the devisees jointly in other reál estate, and one of the devisees on whose behalf said last named real estate was purchased having died without children but leaving a will by which she attempted to dispose of her interest in said property; Held:

    1. The word distribution as used in testator’s will did not mean the final settlement of the estate, but referred to the time when the assets became available through being divided at the termination of the life estate, and the devisees acquired title at that time.
    2. Under the third item of 'the will an absolute estate was granted to each of the devisees named therein subject to be divested as to each by their death leaving children; therefore one of them dying without children had a right to dispose of her interest by will.
    Marvin, J.; Wincii, J., and Hrnry, J., concur.

      Affirmed without opinion, Campbell v. McCue et al, 78 Ohio State, 427; former judgment adhered to without opinion, 79 Ohio State, 445.

   The plaintiff! represents that she is the owner of an undivided one-sixth part of certain real estate, described in the petition, and that the several defendants are owners of the remaining five-sixths parts of the same. The defendant, Charles Thomas Manahan, by liis cross-petition claims to be the owner of one-sixth of the same premises, and both of these parties pray for a partition of the premises.

The fact is, that the rights of all the parties dépend upon the true construction of the will of Charles M. Campbell, deceased. He died testate in 1872, leaving his widow, Ann Campbell, and three children, to-wit, Henry M: Campbell, Elizabeth Campbell and Jane Cecelia McGue, and a grandson, the defendant, Charles Thomas Manahan, who was the only child of a deceased daughter of the testator. The son of the testator, Henry M. Campbell, is not now living, and the plaintiff is his only-heir at law, and is entitled, if entitled to anything, to whatever rights her father would be entitled to, were he now living. The said Charles M. Campbell by his will disposed of a considerable estate, including real estate in the city of New York. By the second item of his will he provided among other things the following :'

“My beloved wife Ann shall have all my New York real estate for her own use and benefit so long as her natural life shall last.”

The third item of his will reads:

“It is my will that my executors, hereinafter named, at the death of my said wife, Ann, sell all my New York real estate * * # and divide the proceeds of the sale in the manner following viz: one-fourth part to my son Plenry M. Campbell and one-fourth part to my daughter Elizabeth Campbell and one-fourth part to my daughter Jane Cecelia MeCue and one-fourth part to my grandson Charles Thomas Mianahan, with the restrictions and conditions hereinafter mentioned.”

The testator’s widow died in 1881 and the son, Henry M., died in 1888. The daughter, Elizabeth, died testate and without issue in 1903. After the death of Ann, the executors sold the New York real estate and delivered to Henry M. his one-fourth part of the avails of such sale, and invested for Charles Thomas MSanahan in some property (not that described in the petition), one-fourth part of the estate which was to be held for him, and the remaining one-half of the avails of such sale was invested in the real estate described in the petition, for the defendant, Jane Cecelia MeCue, and her sister, now deceased, Elizabeth Campbell, to the extent that each had an interest in the avails of this sale. The deed to this property was made to John D. Thompson, trustee, he being the only executor who qualified.

In 1895, Thompson resigned as such executor and the defendant, Thomas W. McOue, was appointed to succeed to the trust, and Thompson, as trustee, conveyed to the said Thomas W. Me-Cue, as trustee, the real estate in question. By the terms of the will of the said Elizabeth Campbell, her interest in this real estate was devised to the defendant, Jane Cecilia MeCue, for life and at her death to her children. The real question in issue here is whether Elizabeth Campbell had any such interest in this real estate as that she could dispose of it by will, and as has already been said, this depends upon the construction of the will of Chas. M. Campbell.

As bearing upon the question here under consideration attention is called to the fifth item of said last named will which reads:

“It is my will that if any of my heirs and legatees herein mentioned should die before distribution of my estate and without children, their shares revert back to my estate and be divided equally amongst the remaining legatees.”

Contention is made here that the word “distribution” as used in this item, refers to the time when the estate shall be finally settled, and each legatee and devisee shall receive his or her share of the estate. We do not understand the word to be used in this sense, but rather in the sense of referring to the time when the avails of the sale of the New York real estate should be divided, as provided in the sixth item of the will. This item reads in part, as follows:

“It is my will that my executors herein named hold in trust or invest the bequests herein made to my two daughters Elizabeth and Jane Cecelia and my grandson Charles Thomas Manahan, as follows: They may invest each of said legatees’ share of my estate in any real estate .that they may think advantageous and prudent for the use and benefit of each one respectively of said legatees to have and to use the same during their natural life and at their death said real estate to pass to their children in such a manner as my said legatees may will or as the law may direct as the case may be. ’ ’

It will be noticed that it was not contemplated by the testator that joint investment for these three parties was necessarily intended, but they were authorized to invest the share of each in such wise as they should think most advantageous and prudent for the use of each. As a matter of fact they did not invest for the three jointly, but invested in the real estate here in dispute for the benefit of Jane Cecelia and Elizabeth only. If this' construction of the word “distribution” as used in this item is correct, nothing more need be said as to this item, and we come then to consider the rights of the legatees and devisees under the third and sixth items. But for the concluding clause in the third clause there can be no doubt that each of the parties named in that item would have an absolute estate in the property therein named, but this concluding clause “with restrictions and conditions, hereinafter mentioned,” draws our attention to the sixth item to ascertain what those restrictions and conditions are, and we find that the property in which the investment was to be made, they were to have and nse during their natural life and at their death said real estate was to pass to their children in such manner as the law may direct, as the case may be.

Had Elizabeth Campbell died intestate, leaving one or more children, or had she died testate, leaving one or more children, to any one or more of whom she had devised her interest in this property, there would be no difficulty in this case, but, as ■has already been stated, she died without children and she devised this estate to another. Had she any estate to devise? If not, it is clear that the heirs at law of Charles M. Campbell became at the death of Elizabeth, the owners of one-half of this real estate, that is to say of the one-half which during the lifetime of Elizabeth was to be used for her sole use and benefit, and in that event, the plaintiff would be entitled to the partition which she asks, as would also the defendant, Charles T. Manahan. The contention on the part of the plaintiff and Manahan, is that as to this fractional part, what remains after the death of Elizabeth, is not disposed of by the will of Charles M. Campbell. It is said that it is clear that Elizabeth had only a life estate in the property in any event. The property itself-was never owned by Charles M. Campbell, but it was purchased with the avails of the sale of property which he owned, and which he by will had directed to be so invested, and which so far as the rights of the parties here are concerned, must be treated as property of which he was the owner at .the time of his death, and the question still remains whether Elizabeth had anything but a life estate in the property.

Section 5970, Revised Statutes of Ohio, reads:

“Every devise of lands, tenements, or hereditaments in any will hereafter made, shall be construed to convey all the estate of the devisor therein which he could lawfully devise, unless it shall clearly appear by the will that the devisor intended to convey a less estate.”

It is a well settled rule that the presumption is that where one undertakes to dispose of his estate by will he did not intend to die intestate as to any of his property, unless it is clear by the terms of the will that such was his intention. Can it be doubted here that the testator intended by this will tp dispose of his entire estate? So far as his New York property is concerned, and it is that with which we have to deal, he has provided that it shall be sold, that the avails shall be disposed of in the manner pointed out in the will, and as to the parties who are to be benefited by the avails of such sale, it is provided, that aside from the share of Henry, it may be invested. As to Elizabeth’s portion, it was invested in the undivided one-half of the real-estate in .question. By the terms of the sixth item of the will, she was in any event to have a life estate. She would have! had an absolute estate but for the last clause of the third item, and but for the provision made, as to what should be done with her property in case she died leaving children. No provision is made as to what shall be done with her part in,case she died without children as she did, and we think that so dying the estate was a fee simple in her. We think so because the testator seems clearly to have undertaken to dispose of his entire estate, and unless she had an estate in fee simple, he did not dispose of his entire estate. We think so because the entire scheme of the will seems to be to provide for his several children and their descendants, providing they shall leave children, and he does not seem to have concerned himself as to what should become of the share of any one of them who died without children.

In the case of Davis v. Corwine, 25th O. S., p. 669, as to certain personal property which was bequeathed to a widow, in these words, 111 give, devise and bequeath unto my beloved wife, Caziah Davis, all my personal property and real estate, wheresoever situated of which I shall be seized and possessed, or to which I shall be entitled at the time of my decease, to have and to hold the same unto her the said Caziah Davis, and to her use for and during her natural life,” the court held that this gave to Caziah Davis not only the absolute ownership of the real estate but also of the personal property. On page 675, in the opinion the court’ uses this language:

‘1 He makes a disposition of enough of his estate to pay debts, funeral expenses, and costs of administration, and then declares that he gives, devises and disposes of the ‘residue of his estate and property as follows. ’ * * * Unless the wife took an absolute property in the personal estate, the testator utterly failed to do what he professed and intended to do. And this could hardly have happened from mere forgetfulness or inadvertance; for, in the subsequent parts of the will, he makes particular and detailed dispositions of the remainders in the real estate, but makes no mention of any remainder, or other interest in expectancy, in the personal property.”

•So here, this testator made no disposition of any remainder of the avails of the sale of the New York property, except where the first taker died, leaving children. And surely it can not be said that this was because of forgetfulness, for he remembered all about the property, and he know and directed just what should be done with it, not only during the lifetime of any one of the parties named, but also upon the death of such one as should die leaving children.

It seems to us that by fair construction of the whole terms of this will it must be held that under the third item of the will an absolute estate was granted to each of the parties named therein, subject to be divested as to each of the three, Manahan, Mrs. McCue and Elizabeth Campbell, upon, the death of either, leaving children. Miss Campbell having died without issue, her estate was never divested. She was, therefore, the absolute owner of it at the time of her death, and could dispose of it by will. It follows that the petition of the plaintiff, and the cross-petition of Charles T. Manahan must be dismissed.


text:
    NOTICE OF APPEAL IN A CONTESTED ELECTION.
    Court of Appeals for Ashtabula County.
    H. D. Cook v. I. H. Pardee.
    Decided, September Term, 1914.

      Contest of Election of Mayor — Notice of Appeal — Measurement of Time for Talcing of Depositions — Requirement as to Time Jurisdictional —Wrong Date of Notice of Appeal — Effect of Dismissal of Notice of Appeal Without Prejudice.

    1. In measuring the minimum time in which depositions can be taken under the provisions of the General Code, Section 5149, the day of service of notice of the notice of appeal must be excluded and ten ' days must intervene, excluding the day of service before the deposition can be taken; and if the notice of appeal states a shorter time, the depositions taken by contestant, without the appearance of contestee, should be stricken from the files on motion of contestee.
    2. A mistake in the notice of appeal in the contest of an' election by naming & date for taking depositions less than ten days after the day of service of notice of the contest does not deprive the court of common pleas of jurisdiction of such proceedings.
    3. Where notice of appeal in the contest of an election is dismissed without prejudice to a new action on motion of contestant a second appeal may be taken by the same contestant within the time fixed by statute.

      H. B. Eill, Frank F. Gentseh and E. E. SlaA'key, for plaintiff in error.

      B. F. Perry, J. F. Munsell and A. T. Tillman, contra.
    Pollock, J.; Metcalfe, J., and Spence, J., concur.
   The plaintiff, IT. D.*Cook, and tbe defendant, I. H. Pardee, were candidates for mayor of the city of Ashtabula at the municipal election held in that city on the 4th day of November, 1913.

Upon the canvass of the votes cast at that election, the deputy state supervisors of elections for Ashtabula county delivered to the defendant, Pardee, a certificate of election as mayor of said city.

On the 2d day of December of the same year the plaintiff, H. D. Cook, filed with the clerk of the court of common pleas a notice of appeal to contest the election of I. II. Pardee, and on the same day caused notice in writing of such notice of appeal to be served on the defendant, I. IP. Pardee.

On December 8th, Pardee, appearing for the purpose of the motion only, moved the court to set aside the pretended service for the reason that the pretended service showed upon its face that no notice was served upon said contestee. This motion was overruled, and then the contestee filed a further motion on the ground that prior to the filing of this notice the contestant had filed a notice of contest of the same election, and afterwards dismissed it without prejudice to a new action. This motion was also overruled by the court.

Thereupon the contestee filed a further motion asking that the depositions taken in obedience to the notice of contest be stricken from the files. Upon a hearing this motion was sustained, and the depositions were stricken from the files.

Thereupon the contestee filed a motion to set aside the pretended service of notice on contestee of notice of contest, and to quash said appeal, which was sustained by the court and the proceedings dismissed. The judgments of the court striking the depositions from the files, and setting aside the service of notice and quashing the appeal, are assigned as errors by the plaintiff in error in this action.

Section 5169 of the General Code provides that the election of city officers may be contested in the manner provided for the contest of the election of county officers.

Section 5148 provides that the election of county officers may be contested by any elector of the county by appeal to the court of common pleas of the county.

Section 5149 provides for notice of the appeal as follows

‘‘ The contestor shall file a notice of such appeal with the clerk of such court and give notice thereof in writing to the contestee, or leave such notice at the house where he last resided, on or before the thirtieth day after the day of election. The notice shall state the grounds of contest and the names of two justices of the peace before whom depositions will be taken, and the place, and a time not less than ten days nor more than twenty days from the day of service thereof, where and when such justices .will attend and take the depositions.”

Referring now to the error complained of in striking the depositions from the files, the contestee claims that the date named in the notice of contest was less than ten days, as required by the provision of the above section. Notice of the contest was filed with the clerk of court, and service thereof was made on the 2d day of December. This notice provided that the depositions should be taken on the 12th day of December. It is urged that this was less than the ten days time provided by statute. • It will be observed that the statute provides that the depositions shall be taken not less than ten days from the day of service thereof.

The Supreme Court of this state in the ease of State, ex rel Harnes, v. Roney, 82 O. S., 376, say:

“A statute, declared to take effect from and after a date named, takes effect on the day after the day of the date named. ’ ’

And in the same case Justice Summers in the opinion says that the word “from” is a word of exclusion. Following the holding in this case the word “from” would exclude the 2d day of December, the day the notice was served. Counting from that date the ten days notice required by the code would not have expired until December 13th, and that day would have been the first day that the depositions could have been taken.

This rule will be further illustrated by reference to the ease of Best v. Doe, 21 Lawyers Edition, U. S., 805; Bemis v. Leonard, 18 Mass., 502 (19 American Rep., 70); Holt v. Richardson, 134 Ga., 297 (67 S. E., 798).

There was no error in the action of the court below in striking the. depositions from the files.

The next error complained of was in the court sustaining the motion to set aside the service of notice and dismissing the appeal. Some little complaint is made on the part of the contestee of the notice served upon him — that it recited that the notice of appeal was filed on the 2d of November. This was a mere clerical error and could not deceive the defendant. The election which Avas being contested AAms not held until after the 2d of November. In addition to that the statute does not provide for notice of the date of filing. It says that the contestor shall file a notice of such appeal with the clerk, and give notice thereof in writing to the contestee. The mistake in date of filing notice of contest did not deprive the court of jurisdiction.

Some objection is made that the notice served on the contestee did not contain a copy of the notice of appeal filed with the clerk, but simply stated that a copy of such appeal is hereto attached. If it is necessary that the notice served on the contestee should contain a copy of the notice of appeal filed with the clerk, the attaching- of it to the notice Avould be sufficient; it would then be part of the Avritten notice served on defendant. But an examination of Section 5149 avíII show that it was not necessary that the copy of the notice of appeal filed with the clerk should be served upon the contestee. The section only provides that the contestee shall have notice in AAU’iting that a notice of contest has been filed Avith the clerk. This would not require that a copy of the notice of appeal accompany the notice to the contestee, or be served on the contestee.

We come uoav to the principal ground claimed for dismissing these proceedings. We have already stated that the notice of appeal was filed on the 2d day of December, and provided that depositions should be taken before two justices of the.peace on the 12th day of December, and that the time fixed by this notice .for taking the depositions Avas not sufficient under the requirements of the statute, and that it Avas proper to strike the depositions from the files. The question uoav to be determined is, is the requirement in the' statute of the time depositions shall be taken jurisdictional, and if an error has been made in stating the time for taking the depositions does it deprive the court of common pleas of jurisdiction to hear and determine the contest?

Not much assistance in determining this question can be received from the adjudicated cases. It must largely be Avorked out from the statutory provisions providing for the contest of elections, but it may not be amiss to refer to the holding of our Supreme Court in construing statutes under somewhat similar conditions.

In the case of Collins, Executor, v. Millen et al, 57 O. S., 289, Bradbury, Justice, on page 291, in speaking of the right of appeal, says:

“The right, doubtless, is remedial in its nature; it is a proceeding in a civil action, given by our code of civil procedure, and falls within the letter and spirit of Section 4948, Revised Statutes, which commands a liberal construction of the provisions of our civil code.
“This court has heretofore recognized these liberal principles in a number of cases respecting steps necessary to perfect an appeal, and has been especially liberal in sanctioning amendments made to cure defects in the methods that parties have pursued in exercising this right of appeal.”

The court at that time had before them an appeal in a civil action. We are considering not an appeal in a civil action, but in a special proceeding from a board, but we think the same liberal construction should he placed upon the statutes in this proceeding.

And further, on page 292 of the same case, the justice says:

“We recognize, however, that the courts can dispense with no condition prescribed by.statute, as necessary to perfect an appeal, and that the only field open to the display of liberality in this connection is in the construction of the statutes that prescribe these conditions.”

And in this case we are not dispensing with a requirement prescribed by the statute, but we are determining whether a mistake in stating the time fixed by the statute for taking deposi-^ tions will destroy the jurisdiction of the court over the proceedings.

Again, in the ease of Howard v. Shields, 16 O. S., Justice Welch, in the opinionon page 189, says:

“We think the notice was sufficient. It contains all that the statute requires — notice that the election will be conteste,d, and a specification of the ‘points’ relied upon. There is no analogy between-such a notice and a declaration at law.”

In that ease they were considering whether or not the grounds of the contest had been set out with sufficient particularity, and they construed that provision of the statute liberally. .

Now, then, applying these rules to the present case we find that the notice of appeal filed with the clerk set out with special particularity all of the requirements of Section 5149, including when the depositions should be taken, but upon an examination of the time fixed for taking the depositions that the time allowed the defendant was not sufficient. The object of giving the contostee notice is that he may be apprised of the fact that there is a contest, and also of the grounds of that contest, in order that he may have a proper .opportunity to meet the claims of the contestant.

The provision for tailing the depositions is a mere procedure for getting the evidence before the court, and if there was no other provision for bringing the evidence before the court the mistake as to time might be fatal to contestant’s proceedings, but the statute is now amended so that under the provision of Section 5152 a trial can proceed by taking oral testimony or depositions, as in civil actions. The striking from the files of these depositions would not deprive the contestant of an opportunity of introducing evidence in the case. He could produce his evidence under the provision of the latter section.

We think that it is placing too technical a construction upon a statute which should be liberally construed in order that the will of the people as expressed at the polls might be carried out, to hold that a mere mistake in the time provided for taking the depositions was jurisdictional, and deprived the court of common pleas of the right to hear and determine the case. We think that it was error in the court to sustain the motion to set aside the service and dismiss the appeal.

The defendant in error further urges that even if the court was in error in this, that the court erred in overruling the motion to dismiss the poceedings on the ground that there had been a prior notice filed of a contest of this election by the same contestant, and therefore there was no prejudicial error in the dismissal of this case.

The record shows that on the 20th day of November, 1913, ' the contestant filed a notice of appeal with the clerk of the court of common pleas of this county contesting the same election of the contestee; that on-the 28th of November a motion to make this notice of contest more definite and certain was filed and sustained, and that afterwards, on the 2d day of December, the contestant caused an entry to be made as follows:

“This day came the plaintiff, by his attorney, and dismissed this action at his costs without prejudice to a new action. No record to be made.”

The contestee claims that this proceeding Avas an adjudication of the matter, and an affirmance of the acts of the board of deputy state supervisors of elections.

In the case of Siegfried v. Railroad Co., 50 O. S., 294, the Supreme Court, in the opinion on page 296, distinguish between the dismissal of an action by the court and the voluntary dismissal of an action by the plaintiff himself without prejudice, and in the last sentence of the opinion the court say:

“A dismissal by the plaintiff involves no action of the court; it is a voluntary withdrawal of his case, and is not a failure in the action.”

Again the Supreme Court in the case of Wanzer v. Self, 30 O. S., 378, say in the second proposition of the syllabus:

“A judgment dismissing an action Avith prejudice to a future action is an entirety, and, though it may have been so rendered erroneously, it Avill not- constitute a bar to a subsequent action upon the same subject-matter.”

Black, in his Avork on Judgments, Section 721, says:

“Where a bill in equity is dismissed ‘Avithout prejudice,’ the effect of the reservation is to prevent the decree from constituting a bar to-another suit brought upon the same subject-matter.
‘ ‘ If the decree is absolutely void for want of authority to make such a reservation, there is no valid adjudication to stand in the way of a neAv suit. And if it is merely irregular or erroneous, it' must be corrected on appeal, and until that is done, it must stand as rendered and can not be impeached collaterally.”

The first’appeal was dismissed by the voluntary action of the contestant without prejudice and is not a bar to a second appeal, by the same contestant, if perfected within the time fixed by the code.

We think there was no error in the court’s action in overruling the motion to dismiss the action on this ground. The judgment of the court below is reversed and the cause remanded.


text:
    ACTION TO ENJOIN COLLECTION OF A STREET ASSESSMENT.
    Court of Appeals for Hamilton County.
    John H. Dickerson v. City of Cincinnati et al.

    Decided, March 26, 1914.

      Limitation of Actions — Application of the Four Years Statute to Collection of Street Assessments — Injunction—Section 11224.
    An action to enjoin the collection of a street assessment payable in annual installments is not barred by the statute of limitations where brought within four years from the time any particular installment of said assessment which is being contested became due.

      11. E. Engelhardt, for plaintiff in error.

      E. K. Bowman, Assistant Solicitor, contra.
    Jones, O. B., J.; Swing, J., and Jones, E. H., J., concur.

       Affirmed without opinion, Cincinnati v, Dickerson, 90 Ohio State,

   In the case below a petition was filed on December 17, 1912, in the Court of Insolvency of Hamilton County, against the city of Cincinnati and its auditor and treasurer, and the auditor and treasurer of Hamilton county., in which it was sought to enjoin the certification and collection of assessments made for the improvement of Grandin road, payable in ten annual installments. The ordinance under which said assessment was levied was passed January 27, 1908, and provided that the entire amount levied might be paid in cash within thirty days from the taking effect of said ordinance, and if not so paid should be collected in ten annual installments payable on the same date on the ten consecutive years commencing in 1909, one-tenth of said assessment, with interest on the bonds, being collected in each of said years.

A general demurrer was filed to said petition and was sustained by the court on the ground that the action was barred under the four years limitation provided by Section 11224, General Code.

We do not think that this action is barred. The injury complained of against which the injunction is sought is the collection of the assessment. The plaintiff evidently did not exercise his option under the ordinance to pay the assessment in cash, and the first installment thereof did not therefore become due until some date after January 27, 1909, depending on the date that the ordinance went into effect after its publication, which is not shown in the record. The four years limitation as to the first installment, therefore, would not be reached until March, 1913.

■ A similar holding is found in Gault v. City of Columbus, 10 C.C.(N.S.), 263.

The demurrer should have been overruled.

Judgment reversed and cause remanded for further proceeding.


text:
    STOCKHOLDER’S LIABILITY UNDER. THE CONSTITUTION PRIOR. TO AMENDMENT.
    Circuit Court of Cuyahoga County.
    O. T. Emerich v. The People’s Coal Company (Three Cases)
    Decided, February 4, 1907.

      Corporations — Constitutional Provision Concerning Stockholder’s Liability Self-Executing.

    The provision of the Ohio Constitution as to the liability of stockholders in corporations is self-executing and the liability of the stockholder is fixed by it.
    Marvin, J.; Winch, J., and IIenry, J., concur.
   We reach the conclusion, after a careful consideration of these cases, that was reached by the referee, that the pi'ovision of the Constitution in reference to the liability of stockholders in corporations, as it existed prior to the recent amendment, is self-executing. Whether that be so or not, we reach the conclusion that the legislation of 1903, whereby it ivas sought to relieve a stockholder from liability, is in contravention to the provisions of the Constitution, that the act is therefore invalid, including the repealing clause, so that the liability of the stockholder is governed by the statutes as they were prior to that amendment. An opinion has not been prepared on all of the propositions, although every one of them that are involved in this case have been carefully considered.

On this matter of the constitutionality of the law, attention is called in our own state to the case of State of Ohio v. Sherman, 22 Ohio State, 411, from which I will not stop to read, and outside of Ohio, to the ease of Willis v. St. Paul Sanitation Company, 16 Lawyers Reports Annotated, 281, where it is held that Article X, paragraph 3, of the Constitution of Minnesota providing that each stockholder in any corporation (excepting those organized for the purpose of carrying on any kind of manufacturing or mechanical business), shall be liable to the amount of stock held or owned by him, is self-executing.

. In Woodworth v. Bowles, 61 Kansas, 569, it is held that tbe provision of tbe Constitution of tbe state of Kansas, Article XII, Section 2 thereof which provides that dues from corporations shali be secured by individual liability of the stockholders to an additional amount equal to the stock owned by each stockholder, and such other means as shall be provided by law, is not self-executing.

But in Whitman v. Oxford National Bank, 176 U. S., 559, in the opinion delivered by Justice Brewer of Kansas in considering this same provision of the Constitution of the state of Kansas, he says that the words in this constitutional provision “shall be secured” are not merely directory to the Legislature to make provision for such liability, but themselves declare it. Toi this ektent the Constitution is self-executing.

In Farmers Loan & Trust Company, 49 Neb., 353, it is held that Section 7, Article XI of the Constitution of Nebraska, which provides that every "stockholder in a banking corporation or institution shall be individually responsible and liable to its creditors over and above the amount of stock by him held to an amount equal to his respective stock or shares so held, for all liabilities accruing while he remains such stockholder, etc., is self-executing.

We reach the conclusion, therefore, .that the liability of the stockholders to the creditors is exactly as it was prior to the statute of 1902. The subscription made by all those persons who subscribed to the blanks made them stockholders.

We reach the conclusion that was reached by the referee.as to each of the parties in the case, and a decree will be drawn accordingly and exceptions noted.