author: POLLOCK, J.

text:
    APPEAL — ELECTIONS.
    [Ashtabula (7th) Court of Appeals,
    September Term, 1914.]
    Spence, Pollock and Metcalfe, JJ.
    H. D. Cook v. I. H. Pardee.
    1. Date of Service of Notice of Appeal in Election Contest and Date of Service of Notice to Take Depositions Excluded.
    In measuring the minimum time in which depositions can be taken under the provisions of Sec. 5149 G-. C., 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. Mistake in Notice of Appeal Naming Date for Depositions not Jurisdictional.
    A mistake in the notice of appeal in the contest- of an election by naming a 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. Dismissal Without Prejudice of Notice of Election Appeal not Bar to Another Appeal Within Prescribed Time.
    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.
    Error.

      H. R. Hill, Frank F. Gentsch and PL. E. Starkey¡, for plaintiff in error.

      B. F. Perry, J. F. Munsell and A. T. TJllman, for defendant in error.
   POLLOCK, J.

The plaintiff, H. D. Cook, and the defendant, I. H. Pardee, were candidates for mayor of the city of Ashtabula at the municipal election held in that city on November 4, 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 December 2 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. H. Pardee, and on the same day caused notice in writing of such notice of appeal to be served on the defendant, I. H. Pardee.

On December 8, 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 G. C. 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 maj! 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 December 2. This notice provided that the depositions should be taken on December 12. 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 case of State v. Roney, 82 Ohio St. 376 [92 N. E. Rep. 486; 19 Ann. Cas. 918], 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 December 2, the day the notice was served. Counting from that date the ten days’ notice required by the code would not have expired until December 13, 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, 85 U. S. 112 [21 L. Ed. 805]; Bemis v. Leonard, 118 Mass. 502 [19 Am. Rep. 470]; Holt v. Richardson, 134 Ga. 287 [67 S. E. Rep. 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 November 2. This was a mere clerical error and could not deceive the defendant. The election which was being contested was not held until after November 2. 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 thé 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 would be sufficient ; it would then be part of the written notice served on defendant. But an examination of Sec. 5149 will 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 writing that a notice of contest has been filed with 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 now to the principal ground claimed for dismissing these proceedings. We have already stated that the notice of appeal was filed on December 2, and provided that depositions should be taken before two justices of the peace on December 12, and that the time fixed by , this notice for taking the depositions was not sufficient under the requirements of the statute, and that it was proper to strike the depositions from the files. The question now 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 worked 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 v. Millen, 57 Ohio St. 289 [48 N. E. Rep. 1097], 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 Sec. 4948 R. S., 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 be 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 ease we are not dispénsing with a requirement prescribed by tlie statute, but we are determining whether a mistake in stating the time fixed by the statute for taking depositions will destroy the jurisdiction of the court over the proceedings.

Again, in the case of Howard v. Shields, 16 Ohio St. 184, Justice Welch, in the opinion on page 189, says:

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

In that case 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 Sec. 5149, including when the depositions should be taken, bút 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 contestee 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 taking 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 Sec. 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 ease. 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 proceedings 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 November 20, 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 November 28, a motion to make this notice of contest more definite and certain was filed and sustained, and that afterwards, on December 2, 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 was an adjudication of the matter, and an affirmance of the acts of the board of deputy state supervisors of elections.

In the ease of Siegfried v. Hallway, 50 Ohio St. 294 [34 N. E. Rep. 331]; 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 Ohio St. 378, say in the second proposition of the syllabus:

“A judgment dismissing an action without prejudice to a future action is an entirety, and, though it may have been so rendered erroneously, it will not constitute a bar to a subsequent action upon the same subject-matter.”

In Black, Judgments Sec. 721, says:

“Where a bill in equity is dismissed ‘without 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 new 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.

Spence and Metcalfe, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CONTEMPT — HABEAS CORPUS.
    [Hamilton (1st) Court of Appeals,
    June 1, 1914.]
    Swing, Jones and Jones, JJ.
    (Swing, J., not sitting.)
    In re Davis Fusfeld. In re David Ostend. In re, Nathan Carl.
    Habeas Corpus Does Not Lie for Release of One Committed for Contempt.
    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.
    Habeas Corpus.

      Louis Katz and Snyder & Dickerson, for petitioners.

      Miller & Foster, contra.

   PER CURIAM.

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 Fullworth 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 off law is clearly stated in Shaw, Ex parte, 7 Ohio St. 81 [70 Am. Dec. 55], as follows •.

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

See also, Swan In re, 150 U. S. 637 [14 Sup. Ct. Rep. 225; 37 L. Ed. 1207]; United States v. Pridgeon, 153 U. S. 48 [14 Sup. Ct. Rep. 746; 38 L. Ed. 631].

The return of the sheriff shows the authority under which the prisoners are being held. It 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 Sec. 12142 G. C., in imposing the sentence, when in fact the penalty for the breach of an order of injunction is fixed by Sec. 11888 G. C.

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 Sec. 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 case relied upon by counsel for petitioners, Grossner v. State, not reported, 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 Sec. 12142. This latter section fixes the penalty for violation of offenses defined in Sec. 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 ease 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 See. 11888 or Sec. 12142 G. C.

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.


author: JONES, E. H., J.

text:
    EQUITY — MORTGAGES.
    [Hamilton (1st) Court of Appeals,
    July, 1914.]
    Swing, Jones and Jones, JJ.
    (Judge O. B. Jones not sitting.)

      Caroline Bauer v. Louis E. Nickol et al.
    Indemnity Mortgage Regarded as Money not Equitably Due and Cannot be Recovered.
    The mortgage which the plaintiff seeks to foreclose in this case can he regarded only in the light of an indemnify, and under the equity rule that “if money is not équitably due, it ought not to he recovered,” the petition is dismissed at plaintiff’s costs.
    Appeal.

      Oscar W. Knhn, for plaintiff.

      Stephen W. Jones and Edward A. Tepe, for defendants.

       Affirmed, no op., Bauer v. Nichol, 60 Bull. 447.

   JONES, E. H., J.

“This is an equitable action, and if the money is not equitably due it ought not to be recovered.”

This is the first sentence in an opinion by Judge Welch in the ease of White v. Turpin, 16 Ohio St. 270.

The above case was tried in this court on appeal from the court of common pleas, and is an action brought by the plaintiff for the foreclosure of a mortgage and marshaling of liens. -The nature of the action can be briefly described by quoting from the defeasance clause of the mortgage which is the basis of the action:

“Provided Nevertheless, That whereas the said Caroline Bauer has advanced as a loan to Louis E. Nickol, the husband of the said Josephine B. Nickol, the sum of $2,500 with which to enable him to build upon the premises of said Caroline Bauer, known as No. 2811 Woodburn avenue, Walnut Hills, Cincinnati, Ohio, certain new bakeovens for the use of Louis E. Nickol in carrying on a bakery in said premises, and to make certain other repairs, alterations and improvements in and upon said premises which the said Lonis E. Niekol has agreed to take under a lease from the said Caroline Bauer for a period of ten years from the 1st day of June, 1909. And whereas the said Caroline Bauer in order to obtain the said $2,500 has been compelled to mortgage her said premises to the East Walnut Hills Building & Loan Company by the terms of which mortgage she is to make certain weekly payments of dues, interest and premiums until said loan is repaid in full. And whereas the said Louis E. Niekol has agreed to repay said loan by assuming and agreeing to pay the loan of Caroline Bauer to the East Walnut Hills Building & Loan Company and an additional weekly payment of $2.50 on the principal; now if the said Louis E. Niekol shall pay said loan in manner and form as agreed to be paid by the said Caroline Bauer, including the additional weekly payment of $2.50 for the purpose of > hastening the payment of sáid loan, then this mortgage shall be void; and in case of default in making any of said weekly payments to the said East Walnut Hills Building & Loan Company on said mortgage, the said Caroline Bauer shall have the immediate right to foreclose this mortgage and recover for the full amount that may be due upon the mortgage given by the said Caroline Bauer to the said East Walnut Hills Building & Loan Company at that time.”

The defendant, Louis E. Niekol, occupied the premises leased to him by plaintiff herein, and conducted a bakery therein, for about fifteen months, when he failed in business and was declared a bankrupt. We find that up to the time of. his said failure, he complied with his agreement and paid to the building association the dues, interest and premium and an additional $2.50 per week upon the principal of said loan. In addition to the $2,500 borrowed by Mrs. Bauer from the building association, Mr. Niekol spent in making the improvements upon her property $800 of his own money. His rent was paid at the rate of $60 per month, according to the terms of the lease. About half the cost of the improvements was paid by him during his brief tenancy. Shortly after he became a bankrupt and was forced to quit business. Mrs. Bauer, his lessor, assumed charge of her property and made a new lease to one Anthony Lass, for a term of five years, at $90 per month.

The defendant, Josephine B. Nickol, is the wife of Louis E. Nickol, and executed the mortgage herein sought to be foreclosed, upon her individual property, as a guaranty to Mrs. Bauer that the terms of the lease would be complied with by her husband. The lease provided that the bakeovens and other improvements, when made, should be a part of the real estate, and beeome the property of the lessor, Mrs. Bauer. No issue is made as to her right and title to said improvements.

Judge Welch, in the opinion in the ease of White v. Turpin, supra, asks the question: “In equity and justice then, ought this money to be paid a second time by the administrator ? ’ ’ The question before us is a similar one, viz: In equity and justice ought Mrs. Nickol be compelled to pay the balance due on the loan from the building association? A strict construction of her contract would possibly require an affirmative answer, but the day is past, if any day there ever was, when one must be awarded the “pound of flesh” for the sole reason that it is “so nominated in the bond.” It has long been a familiar maxim in equity that “he who seeks equity, must do’ equity. ’ ’

The demand of plaintiff in this action is harsh, unreasonable and unjust.

Mrs. Bauer will receive during "the five years’ term for which Mr. Lass has rented her property in additional rent which will accrue to her by reason of the improvements made on her property by Mr. Nickol, sufficient money to pay the balance due to the East Walnut Hills Building & Loan Company on her loan; then she will still have the property and the rental therefrom for many years to come. She has made no offer, whatever, to the defendant, Mrs. Nickol, either of the premises or of the additional rents derived or to be derived from the-improvements made thereon. So far as the proceedings in this court show, there has been no offer or tender of any nature made by the plaintiff, and no disposition manifested by her to work out a just solution of the situation which Mr. Nickol’s unforeseen business reverses and bankruptcy brought about.

We hold that, in view of the unexpected developments of the case and the short duration of Mr. Nickol’s tenancy it can not be successfully contended that Mrs. Nickol could be held under her mortgage, except as an indemnitor against loss on the part of Mrs. Bauer. “In ascertaining the intention of the parties the court must take into consideration not only the language of the contract, but the situation of the parties and the circumstances surrounding them at the time the contract was made” (22 Cyc. 85). Applying this rule, we are of the opinion that the most a court of equity, could say for the mortgage held by Mrs. Bauer is that it can only be regarded in the light of an indemnity, the office of which is to protect Mrs. Bauer from any. actual loss by reason of the transaction. In the trial of the case no effort was made to show that any loss was sustained by Mrs. Bauer. She suffered no loss by the transaction. On the contrary, we think the evidence shows that she gained thereby. The money sought to be recovered by her is, therefore, not equitably due, and as said by Judge Welch, “If the money is not equitably due, it ought not to be recovered. ’ ’

The petition of plaintiff will be dismissed at her costs, and defendants may go hence without day.

Swing, J., concurs.


text:
    STREET RAILWAYS.
    [Richland (5th) Court of Appeals,
    February Term, 1914.]
    Yoorhees, Shields and Powell, JJ.
    Mansfield Ry. L. & P. Co. v. John E. Barr.
    1. Electric Railway Required to Protect Lineman Repairing Wire from Injuries by Passing Cars.
    Where a repairman is sent to adjust a trolley wire, it is the duty of the railway company in the exercise of ordinary care to make proper provision to protect him from injury from cars using the track over which the wire upon which he is at work is strung.
    2. Motorman not Fellow Servant of Lineman.
    A motorman running a car upon such track under the direction of his conductor is not a fellow servant of one engaged in repairing the trolley wires.
    3. Negligence of Lineman Repairing Trolley Wires Jumping from Perch on Approach of Car in Dangerous Proximity Question for Jury.
    Where a repairman so engaged discovered a ear bearing down upon him and in dangerous proximity, it is for the jury to say, under proper instructions from the court, whether or not he was guilty of contributory negligence in jumping from his perch, thereby sustaining the injuries of which he complains.
    4. Verdict for Personal Injuries not Set Aside unless Excess so Great as to Shock Sound Judgment.
    A verdict for personal injuries will not be set aside simply because it is excessive in the mind of the court, but only where the excess is so great as to shock sound judgment and a sense of fairness toward the defendant.
    [Syllabus by the court.]
    Error.

      McBride & Wolfe, for plaintiff: in error.

      W. S. Kerr, for defendant in error.
   PER CURIAM.

A verdict of $8,500 was awarded tbe defendant in error, as damages for personal injuries alleged to have been sustained by him as a result of the alleged negligence of the plaintiff in error, while he was in its employ as a repairman of its electric lines.

To state the cause of action more fully, the plaintiff in his petition filed in the court below alleged:

“That on October 9, 1909, and prior thereto he was employed by the defendant as a. repairman on its lines in Mansfield, Ohio, and to do such other work and service in connection with the maintenance -and repair of its lines as might be assigned him by the defendant. In doing said work for the defendant he was required, when it became necessary, to go up on top of a repair car and from that position repair wires, switches, etc. On said October 9, 1909, there was a break in the wires of said defendant’s lines on Spring Mill street of said city at or near the point where Mulberry street and Spring Mill street branch. In the usual and ordinary course of his duty he went to the break on a repair car, and went on top of said car, which was about twelve feet above the street, to repair said' break and while so engaged and without any fault or negligence on Ms part the repair car, upon which he was standing in doing the work aforesaid, was run into by one of the defendant’s cars from the Shelby line.
‘ That when he saw that the Shelby ear was going to strike his car, he was standing on the top of a platform or box of sufficient elevation above the roof of the car to enable him to reach and do the work he was doing and being afraid that he would be thrown from the box or platform to the street by the collision of the cars he jumped from the platform or box to the roof of the car and by the shock of the collision he was thrown from the roof of the car to the brick street.
“That he struck on his feet on the brick street from a dis tance of about twelve feet and that both ankles were fractured, that the bones of his ankles have grown together where some oí the fractures were, and that he is now unable to walk but with great difficulty and he is permanently disabled from doing manual labor. He suffered great pain and he is unable to walk without great pain and suffering in his ankles. He expended the sum of $100 for medical services in attempting to be cured.
“That the defendant by its servants negligently and recklessly ran the said Shelby car onto and against the repair car on which he was working and thereby caused the injuries of which he complains; that the said Shelby car was under the charge of a conductor who had control of the movements of the same, and that a motorman was employed on said Shelby car who was under the control of the conductor and that said conductor and motorman negligently and recklessly ran said Shelby car onto and against said repair car as alleged; and he avers that the officer or agent of the defendant who has the supervision and control of the movement of the cars on the defendant’s lines, with knowledge that plaintiff was engaged in repairing the lines as alleged and that in doing so it was necessary that said repair car occupy the track, failed and neglected to notify or warn the conductor on Shelby car of this fact, whereby the injury to plaintiff would have been prevented. He says the car on which he was working was in sight of the conductor and motorman of the Shelby car and that he could be seen far enough to stop the Shelby car if they had exercised reasonable care in the premises. The defendant is a corporation organized under the laws of Ohio, and as such operated a city and suburban railway in the city of Mansfield and to Shelby as alleged. Wherefore judgment is prayed for in the sum of $10,000.”

By answer the defendant admits that the plaintiff on October 9, 1909, and prior thereto was employed by it as stated in said petition, that in doing said work for the defendant he was required and it became necessary to go up on the top of a repair car and from that position repair wires, switches, etc.; that on said October 9, there was a break in the wares of the defendant’s wires on Spring Mill street; that he went to the break on a repair car, and went on top of said car to repair said break, but it denies all the other allegations in said petition.

For a second defense the defendant says “that the plaintiff’s injuries, if any were received, were caused by his own fault and negligence directly contributing thereto in jumping from said car and in taking no precaution whatever for his own safety.”

The reply is a general denial of the contributory negligence charged.

Upon the issues thus made by the pleadings, the cause was submitted, to .a jury resulting in á verdict for the plaintiff. A motion fG? a new trial was overruled and judgment was entered upon said verdict. A bill of exceptions was taken containing all the evidence offered upon the trial, including the charge of the trial court, and by a petition in error said cause was brought into this court for review.

There is little or no controversy between the parties hereto as to the facts leading up to the injury here complained of. The employment of the defendant in error by the plaintiff in error to repair the wires on its lines, and, if necessary, to make such repairs on the top of its repair cars, that in pursuance of such employment he went on top of such car to repair a break in the wires of the plaintiff in error at the time and place stated, and while he was so at work an interurban car on the Shelby line of the plaintiff in error, operated by a motorman in its employ, collided with said repair car, is admitted; and while it is not contended that the defendant in error was not injured thereby, it is insisted by the plaintiff in error that whatever injuries were sustained by the defendant in error were caused by his own negligence and carelessness, and that therefore said company is not liable in this action.

It is hardly necessary to remark that if the evidence fairly' shows the facts to be as claimed by the plaintiff in error, namely, that the defendant in error’s negligence directly contributed to or was the proximate cause of his injury, or if it should appear by the evidence that the concurrent negligence of both the defendant i,n error and the plaintiff in error contributed to and produced said injury, then the motion submitted for an instructed verdict should have been sustained and not overruled.

’ An examination into the facts of this case as disclosed by the bill of exceptions tends to show that on the morning of the day mentioned the defendant in error, then in the employ of said company as lineman, seeing the break in the wires of said company at the place mentioned, and upon arriving at said company’s office reported the same to the general manager of said company, who personally directed him to repair said break without delay. Acting under such directions he prepared to make such repairs, and soon thereafter took out and employed the use of the repair car of said company used for such purposes, following what was known as the Shelby ear of said company, operated on and over the streets in the city of Mansfield, and between Shelby and said city of Mansfield, to the place where the wires of said company were out of repair, and where said repair ear stopped on said company’s tracks, with its brakes set, to enable the defendant in error, with a helper, to make such repairs. It appears that said repair car was so constructed that it became necessary to use a box on top of the platform of said car to make said repairs, and that such a box was used by the defendant in error for that purpose, and that while on said box at work repairing said wires, with his back to the north, his attention was called by his helper to a Shelby interurban ear approaching, when turning around and finding that said car was about to collide with said repair car, he jumped to get down and failing to get hold of anything he fell on the brick pavement and was injured, or quoting from the language of the witness ‘1 turned right around, saw that it was right on to us, and I made a jump to get down and get hold of something and I went on off;” that said interurban car did there collide with said repair car, knocking the latter forward on the tracks of the company some considerable distance from the point of said collision.

It further appears that said report of the condition of said wires vas so made to the manager of said company about 8:30 on the morning mentioned; that the Shelby car which the defendant in error followed with said repair car to Spring Mill street, where the wires were out of repair, left Mansfield for Shelby at nine o’clock on said morning; that under the schedule time of said company a ear from Shelby bound for Mansfield left Shelby at 9:05 on said morning; that such car would pass the car going from Mansfield to Shelby, if on schedule time, at Spring Mill, where it was the rule or custom to have telephonic communication between the officers or employees of such car and the Mansfield office of said company, and that a like rule or custom obtained with cars leaving Shelby for Mansfield. The foregoing facts as gleaned from the bill of exceptions have been stated with some degree of particularity that they may aid in the consideration of the issues raised by the pleadings therein.

It is fundamental that negligence as a ground of recovery is not to be presumed from the happening of an accident but must be proven. As was announced in the case of Cleveland, T. & V. Ry. v. Marsh, 63 Ohio St. 236 [58 N. E. Rep. 821; 52 L. R. A. 142]:

“Negligence must be proved either by testimony directly establishing the fact, or by the proof.of facts from which such negligence will reasonably follow and be presumed. The jury can not be allowed to guess that there was negligence without some proof thereof, either direct or inferential.”

The correctness' of this proposition as one of law is not to be questioned. In the abstract it is applicable alike to all cases triable by jury, namely, that the material and ultimate fact upon -which a recovery is sought must be proven. The importance of applying this salutary and essential principle of law is emphasized by the verdict in this case. The amount of the verdict, when considered with reference to the issues raised by the pleadings, renders it necessary that the whole record of the case should be thoroughly canvassed with the sole view of ascertaining whether such verdict is authorized by the evidence and the law. To this end we have read the entire bill of exceptions with not a little care with reference to the respective claims of counsel on either side.

It is charged in the petition that the company was negligent in running its Shelby interurban car against and colliding with the repair car on which the defendant in error was at work repairing said wires, which it is alleged was the proximate cause of his injury. The testimony as to whether the manager of the company who is in legal effect the master here, personally directed the defendant in error to repair said wires is somewhat in conflict, but we are inclined to hold that a fair construction of the testimony in this respect shows that such order was given. Having been ordered to go to the scene of the work to repair these wires with said repair car, and having gone and engaged upon said car as ordered, which was known to be peculiarly dangerous, with the knowledge on the part of the company that cars were scheduled soon thereafter to pass at the place where he was so engaged, including the said Shelby interurban car, was it not the duty of the plaintiff in error, in the exercise of ordinary care, to make proper provision for the-safety of the defendant in error as would afford him protection from the dangers incident to the operation and movement of cars between Shelby and Mansfield and in Mansfield, to avoid collision with said repair car while he was engaged in said work of repairs? We think, it was, and we further think that this question, in terms, was properly submitted to the jury by the trial court in its charge. Lake Shore & M. S. Ry. v. Murphy, 50 Ohio St. 135 [33 N. E. Rep. 403]; Lake Shore & M. S. Ry. v. Lavalley, 36 Ohio St. 221; New York C. & St. L. Ry. v. Roe, 25 O. C. C. 628 (4 N. S. 284).

It was contended on behalf of the plaintiff in error that the motorman in charge of the Shelby interurban car and the defendant in error were fellow servants, and that therefore, if the injury to the defendant in error was the result of negligence, it was that of a fellow servant and not that of the plaintiff in error. Plaintiff in error testified that he was acquainted with the rules of the company in the operation of its cars between Shelby and Mansfield, and that before leaving Shelby the officers or employees of the ear would “call in and get orders” from the Mansfield office, and the same practice was observed in passing Spring Mill. If this is true, knowledge of the time the car in question left Shelby was brought direct to the knowledge of the plaintiff in error, and although the motorman of such car may have been negligent in failing to see. said repair car and in colliding with it, if the plaintiff in error then knew that said interurban car was on its way from Shelby to Mansfield, and then knew that the defendant in error was then engaged in the work of repairing said wires and took no steps to protect him from the danger of said car colliding with said repair car, and colliding with said repair car the defendant was thereby injured, then it would be a question for the jury to determine whether or not the plaintiff in error was not guilty of negligence, and if so, whether or not such negligence was the direct and proximate cause of the injury to the defendant in error. On this subject the court below charged the jury as follows:

“If you find that the manager of the company knew that the plaintiff in the discharge of his duties intended to make the alleged repairs on said trolley, and you further find that an ordinarily prudent person, under the circumstances and in the situation of the manager of the defendant company, would have reasonably apprehended from the character of the work and the time and place of its performance that the plaintiff would, in the performance of such work, under the circumstances, be placed in peril and danger by reason of the operation of the city and interurban cars upon the track at such point where plaintiff' was working, then it would be the duty of the defendant to exercise ordinary care to obviate possible injury to plaintiff arising from the perils, if any, that might reasonably be apprehended in the operation of its cars at said place, while plaintiff was in the performance of his duties.
“If the defendant failed or omitted to exercise such care, then such failure or omission would constitute negligence on its part, and, if such negligence was the direct and proximate cause of injury to the plaintiff, or if the motorman of the car that collided with the work ca.r was guilty of negligence as charged in the petition, and such negligence, if any, combined with the negligence of the defendant resulted in injury to the plaintiff, defendant would be liable, unless plaintiff, immediately prior to and at the time of the accident was guilty of negligence directly contributing to his own injury.”

We think that the foregoing contains a fair and correct statement of the law applicable to the facts in this ease.

While the defendant in error on entering the service of the company assumed the ordinary and natural risks incident to his employment, including those of his fellow servants, he did not assume the negligence of the company. The motorman here was engaged in another branch and department of service and in a different service from that of the defendant in error. He was engaged in managing and operating an electric car under the control of a conductor, while the defendant in error was a general repairman with no one in authority over him. Their duties were entirely separate and distinct, and being engaged in different branches and departments of service, we are of the opinion that they were not fellow servants, so that while the motorman in charge of the Shelby interurban car may have been negligent, still under the facts as they appear here, the commingled negligence of the motorman with that of the company would be the negligence of the company and render it liable. Carter v. McDermott, 5 St. Railway Report 72; Pittsburg, C. & St. L. Ry. v. Henderson, 37 Ohio St. 549; New York C. & St. L. Ry. v. Roe, supra.

It is contended by the plaintiff in error that the conduct of the defendant in error in jumping from the repair ear immediately before the collision showed such contributory negligence upon his part as to défeat his right to a recovery herein. This was a question for the jury, and upon this subject we are of the opinion that the court below properly instructed the jury, in the light of the uncontradieted testimony of the defendant in error that he suddenly found himself in a position of imminent danger by the close approach of the Shelby interurban car to the repair car on which he was working, he was not to be held to a strict account as to the course of conduct pursued by him to avoid danger, and possibly save his life. Pennsylvania Ry. v. Snyder, 55 Ohio St. 342 [45 N. E. Rep. 559; 60 Am. St. Rep. 700].

It is also contended by the plaintiff in error that the court below erred in its charge to the jury in not definitely defining the issues between the parties hereto. A reading of said charge shows that the pleadings were not only read to the jury but that the issues of fact as raised therein were later on during said court’s charge to the jury called to the attention of the jury and special instructions pertaining thereto were given by said court, all of which we are of the opinion was entirely consistent with the rule laid down in the case of Baltimore & Ohio Ry. v. Lockwood, 72 Ohio St. 586 [74 N. E. Rep. 1071].

It is further contended by the plaintiff in error that the court below erred in its instructions to the jury respecting the duty of the company in the matter of furnishing the defendant in error a safe place tó work. On this .subject said court charged the jury as follows:

“The relation between plaintiff and defendant was that of master and servant and by virtue of such relation while the plaintiff was in its employ, the defendant would owe to him the duty of exercising ordinary care to provide him a reasonably safe place for the performance of his services. Thus a master would be bound to take all such precautions for the protection of one in his employ as an ordinarily prudent person would take to protect a servant in his employ,from danger, having due regard for the character of the work and the place of its performance. ’ ’

This instruction we think is in harmony with the principle enunciated in the case of Cincinnati, H. & D. Ry. v. Frye, 80 Ohio St. 289 [88 N. E. Rep. 642; 131 Am. St. Rep. 709], and we therefore hold that the contention of the plaintiff in error in this respect is not sustained.

Errors are also claimed in the action of the court below in the admission and exclusion of certain evidence offered upon the trial including the examination of the ankles of the defendant in error by a physician in the presence of the jury, and the advice given by a certain physician to the defendant in error to have his case treated by a certain Chicago specialist and his charges therefor, and alleged conversations with the defendant in error in respect to the cause of the accident, all of which we have looked into and we are of the opinion that while perhaps technical errors did intervene in the admission of testimony offered in the respects mentioned, we do not regard them as prejudicially affecting the interests of the plaintiff in error, and for this reason we hold that they, or either of them, do not constitute ground for reversible error.

The petition in error filed herein sets forth as one of the grounds of error assigned that the court below refused “to give the several charges asked for by the defendant in error.” We have examined said petition in error with reference to this alleged assignment of error and find no such requests made.

It is urged that the verdict and judgment are against the weight of the evidence and contrary to law, and that the damages are so excessive as to appear to have been given under passion or prejudice. As before stated, we have read the entire bill of exceptions and have carefully considered such parts of it as relate to the more important features of this case, and in the light of the direction given to the defendant in error to do this repair work, the circumstances under which it was done, or undertaken to be done, the history of the facts known to or presumed to have been known by the company immediately preceding and at the time of the collision of the ears resulting in injury to tire defendant in error, with the case fairly presented to the jury, under proper instructions, as a reviewing court we do not feel justified in disturbing the verdict of the jury upon the ground that the same is not sustained by the evidence, or that the same was clearly against the weight of the evidence and contrary to law.

As to the damages being excessive as if given under the influence of passion and prejudice, in the absence of a showing made that the jury were so influenced, the presumption would be otherwise. True the verdict given was for a substantial sum, but it was the province of the jury to fix upon the compensation to be awarded the defendant in error, if any, under the facts in the case as shoAvn by the eAÚdence.

In Fisher v. Patterson, 14 Ohio 418, 427, which was a suit for libel, Judge Bead announcing the opinion of the court said:

“In cases where the damages are to be determined by the sound discretion of the jury, in view of all the evidence the court will not interfere to grant a new trial on the ground ai excess, unless the damages are so outrageously gross as to convince the court that the jury must have acted from corruption, or bias, or mistake, or some other improper influence, instead of a sound and enlightened judgment.”

In Lake Shore & M. S. Ry. v. Schultz, 9 Circ. Dec. 816 (9 R. 639); which was a personal injury case, Judge Parker announcing the opinion of the court, quoting with approval Judge Hammond in Smith v. Railway, 12 O. F. D. 188 (90 Fed. Rep. 783), said:

“A verdict should not be set aside simply because it is excessive in the mind of the court, but only, when the 'excess is shocking to a sound judgment and a sense of fairness to the defendant. When there is any margin for a reasonable difference of opinion in the matter, the view of the court should yield to the verdict of the jury rather than the contrary.”

In Walker v. Railway, 63 Barb. 267 (N. Y.) which was a personal injury case, the trial judge said:

“The defendant’s counsel, however,. contends that the recovery in the action was excessive. In this class of cases no precise rule exists, by which the extent of the recovery con be prescribed; for the compensation to be received is, to a great extent, to be awarded for pain and suffering which can not be accurately measured by amounts. * * * The law has, accordingly,- in this class of cases, committed the determination of the amount of damages to be awarded to the experience and good sense of jurors. And where the verdict rendered by them, may reasonably be presumed to have resulted from an honest and intelligent exercise of judgment upon their part, the policy of the courts is and necessarily must be, not to interfere with their conclusion.”

In the ease before us the evidence showed the defendant in error to be 37 years of age, in good health and receiving fair wages when injured. Upon the whole case we can not say that the compensation awarded by the jury is unreasonable or excessive and we therefore do not feel justified in disturbing said verdict. We are therefore of the opinion that the court of common pleas did not err in overruling the motion for a newr trial, and the judgment of said court will therefore be affirmed with costs, but without penalty. Exception may be noted.


author: HOUCK, J.

text:
    BRIDGES — COUNTIES—PLEADINGS.
    [Tuscarawas (5th) Court of Appeals,
    June 11, 1915.]
    Shields, Powell and Houck, JJ.
    S. A. Swanson et al. v. Tuscarawas Co. (Comr.) et al.
    1. Approval in Writing by Prosecutor of Form and Correctness of Contract for Building County Bridge Sufficient Compliance with Emergency Statute.
    In an action involving the contract for the building of a countv bridge under the emergency statute, an allegation that the prosecuting attorney approved in writing the form and correctness of the contract as entered into by the county commissioners, is a sufficient compliance with the requirement of Sec. 2356 G. C., having reference to contracts exceeding $1,000.
    2. Statutory Provisions for Notice of Improvement not Applicable In Case of Casualty Requiring Prompt Action.
    The provisions for notice of an intended purchase or improvement, found in Sec. 2444 G. C., do not apply to the construction of a new bridge in case of a casualty requiring prompt action.
    3. Motion, not. Demurrer, Lies to Petition Involving Replacing of County Bridge, Indefinite as Location of Site of Bridge.
    A petition drawn under favor of Sec. 5638 G. C., involving the replacing of a county bridge at a cost exceeding $18,000 without a vote of the electors, is not open to demurrer for indefiniteness of statement as to whether the new bridge is to occupy the site of the old one. An objection of that character can only be reached by motion.
    [Syllabus by the court.]
    Error.

      Lynch & Day, D. A. Hollingsworth and J, F. Greene, for plaintiffs in error.

      W. V. Wright and E. E. Lindsay, for defendants in error.
   HOUCK, J.

The court below sustained a general demurrer to the petition of plaintiffs in error, the plaintiffs below, and judgment was rendered against plaintiffs in error for the costs, and error is now prosecuted to this court to reverse the judlgment of the common pleas court in sustaining said demurrer.

The right is claimed, by plaintiffs to maintain their action and their petition is drawn under favor of See. 5638 G. C., et seq., which provides for the construction of a bridge in a case of casualty, at a cost exceeding $18,000, without a vote of the electors, when ‘ ‘ an important bridge belonging to or maintained by any county becomes dangerous to public travel, by decay or otherwise and is .condemned for public travel by the commissioners of said county and the repairs thereof, or the building of a new bridge in place thereof, is deemed by them necessary for the public accommodation, the commissioners, without first submitting the question to the voters of the county. ” *

Counsel for defendants, rely upon three grounds in support of the demurrer, to-wit:

1. That the contract, between plaintiffs and defendants was not approved by the prosecuting attorney, as required by law,

2. Failure to publish notice of intention to erect bridge.

3. That the averment in the petition “that the contract provided for the construction of a new bridge to be built at or not far distant from the point where the old bridge stood” is not sufficient, and does not comply with the sections of the General Code hereinbefore referred to.'

We have given each and all of the grounds of the demurrer careful consideration, and as to the first, we are of the opinion that the allegation in the petition “that the prosecuting attorney of the county also in writing approved the form and correctness of the contract” is a compliance with the requirements of Sec. 2356 G. C., which provides:

“Before work is done or material furnished, all contracts that exceed one thousand dollars in amount shall be submitted by the commissioners to the prosecuting attorney of the county. If found by bim to be in accordance with the provisions of this chapter, and his certificate to that effect is indorsed thereon, such contracts shall have full force and effect, otherwise they shall be null and void.”

The second ground of the demurrer attacks the validity of the petition, for the reason, that See. 2444 G. C. was not complied with. This section of the code provides:

“Before the county commissioners purchase lands, or erect a building or bridge, the expense of which exceeds one thousand dollars, they shall publish and circulate handbills, and publish in one or more newspapers of the county, notice of their intention to make such purchase, erect such building or bridge, and the location thereof, for at least four consecutive weeks prior to the time that such purchase, building, or location is made. They shall hear all petitions for, and remonstrances against, such proposed purchase, location, or improvement.”

Statutes are construed according to their intent and meaning. The petition, in this case, was drawn under favor of Sec. 5638 G. C., et seq., which provides for the construction of new bridges in case of casualty. It is a special statute and to be used on special occasions and was enacted by the legislature to cover particular cases as they might occur and which needed prompt action on the part of the county commissioners, and for which other statutes did not provide.

Giving to Sec. 5638, et seq., that fair and liberal interpretation that the legislature certainly intended they should have and for the purposes for which they were enacted, we are unable to see where Sec. 2444 G. C. has any application to the case at bar, and therefore are of the opinion that this branch of the demurrer is not well taken.

Coming now to the third brauch of the demurrer, which is the real problem to be solved, will say that it is a question of importance and has caused us much study of the numerous authorities cited by counsel, as well as an exhaustive research on the part of the court of other authorities.

Counsel for the demurrer, in their brief, contend that the commissioners have no right to contract for a bridge to be constructed at a point “not far from the old bridge,” but they do not say anything concerning the word “at” which precedes the above language and is followed by the word “or.” The language in the petition is “at or not far from the point where the old bridge stood.”

Would it not be just as reasonable to say that the bridge was to be built at the place where the old bridge stood? ITow can a court relying wholly and entirely upon the language used infer that the bridge is or will be constructed not far from the point where the old bridge stood? Has not the court the same right to rely upon the word at and say that the bridge will be built at the point where the old bridge stood ?

The court in passing upon the demurrer has no right to go outside of the petition for information, but must rely wholly and entirely upon the language used in the petition.

The demurrer challenges the language of the petition as not being sufficient in law, but must and does admit all the allegations to be true.

Can it be properly claimed from the language used that the contract does not provide that the new bridge can be built at a point where the old bridge stood? We think not. And if this be true then the petition is good as against a general demurrer.

If the defendants did not know, or could not ascertain from the language used in the petition, whether the new bridge was to be built at a point where the old bridge stood, or not far from the point where the old bridge stood then it was their privilege to file a motion, asking that the petition be made definite and certain in this particular.

The most that can be claimed for the language used, is that it is indefinite; if so, then the objection should have been raised by motion and not demurrer.

The sufficiency of pleadings under the code as to certainty, precision, definiteness and consistency of allegation, and indeed in respect of every other variety of defect of • allegations which does not amount to such an absolute omission of fact as to constitute no ground of action or defense must be taken advantage of or objected to by motion under the provision of the code, and can afford no ground for demurrer.

The demurrer admits all that is expressly alleged and properly set forth in the petition, and also whatever can, by a fair and reasonable intendment be implied from the allegations of fact contained therein.

Taking this view of it, and upon the whole case, a majority of the court is of the opinion that the common pleas court erred in sustaining the demurrer, and the judgment below is reversed, and the cause remanded to the court of common pleas ■with direction to overrule the demurrer to the petition, and for further proceedings according to law.

Powell, J., concurs.

Shields, J., dissents.


text:
    INJUNCTION — RAILROADS.
    [Stark (5th) Court of Appeals,
    April 22, 1915.]
    Shields, Powell and Houck, JJ.
    John Sommer v. Pennsylvania Co.
    Injunction Against Placing Railway Track In Street until Abutting Owner Compensated.
    It is the duty of a court to protect the rights of an abutting owner in the street, and where it is proposed to place a railway track across the street with crossing gates, and the obstruction will be near enough to the property of an abutting owner to materially affect it or depreciate its value, injunction will lie until the property owner has been properly compensated.
    [Syllabus by the court.]
    Appeal.

      Pontius & McDowell, for plaintiff.

      Cary & Armstrong, for defendant.
   HOUCK, J.

The plaintiff commenced suit against the defendant to enjoin it from constructing its railroad track along the corner of. and within a distance of about nine feet of the lot owned by plaintiff, on which is located a business property; also to enjoin it from construing crossing gates, across the street, directly in front of the business property of said plaintiff.

The plaintiff in his petition, in part, says:

“That he is the owner of the following described real estate in the city of Canton, county of Stark and state of Ohio, being described as follows: Parts of lots known as lots No. 796 and 495 in said city of Canton, Ohio, and beginning at the north-east corner of said lot No. 796; thence westwardly along the north line of lot No. 796 and No. 495 a distance of 85 feet; thence southwardly and parallel with the east line of lot. No. 796 a distance of 72 feet; thence eastwardly parallel with the north line of said lot No. 796 a distance of 85 feet; thence northwardly along the eastwardly line of said lot No. 796, 72 feet to the place of beginning.
"That said lot has a frontage of 72 feet on what is known as • Market Avenue South in said city of Canton, Ohio, on the west side of said avenue. That said street has been duly dedicated to the use of the public as a street, the fee thereof being vested in said city in trust for said public use; that said street along said premises is 60 feet wide; and has been open for travel and public use for more than fifty years; that his said premises and the building thereon are of great value, and which improvements thereon were made with reference to the present location of the tracks of the defendant.
"The said defendant is operating its railroad through said city and that four of its tracks cross said Market Avenue South, and that said tracks are laid side by side and have been in their present location for many years past. That said defendant company is now building a depot or station on the east side of Market Avenue South and northwardly from its present tracks about 125 feet, and that it is about to and will unless restrained by this court, build one or more tracks for its use, as a main line across said Market Avenue South, and northwardly from where its said tracks are now located, and if permitted to do so that the north line of said tracks will intersect the east line of said Market Avenue South directly opposite on said Market Avenue South, and so that the said tracks will intersect the west line of Market Avenue South at a point about five feet southwardly from the southeastwardly corner of said premises of the plaintiff; and it proposes to build said tracks across said street at grade, and will place crossing gates in said Market Avenue South), northwardly of said tracks, and plaintiff says that such construction of said tracks and crossing gates will be an obstruction of the said street along and in front of his entire premises: and that the defendant has no right or authority at law to do same, and has no right to use said street by crossing it with tracks in any other manner or place than it now uses the same; that said proposed construction will constitute a ekange or alteration of the location of its railroad across said street at grade; that said contemplated change will render the plaintiff’s property worthless and will deprive him of his property right in said street and the private rights and easements which he now has by'reason of being the owner of the premises herein before described; and that the contemplated use of said street will be a diversion" of it to other purposes from which it was dedicated. Plaintiff says that he will be irreparably damaged, for which he has no adequate remedy at law, and prays for an injunction against the defendant and other equitable relief.”

The defendant, by its answer, denies all of the material allegations in the petition of the plaintiff and further says that at the time the plaintiff purchased the real estate described in his petition, and made the improvements thereon, that he had full knowledge of the nature and extent of all of the contemplated improvements that were -about to be made by the defendants ; that said improvements, gates and changes of tracks contemplated by defendant will in no way interfere with or damage the plaintiff; and that he will not suffer irreparable damage, and that he has an adequate remedy at law, and prays that plaintiff’s petition be dismissed.

The plaintiff filed a reply to the answer of the defendant, which is, in substance, a general denial of all of the material allegations in the answer of the defendant.

Upon the issue joined, the cause was tried in the common pleas court, and a decree was entered in favor of plaintiff, granting him all of the relief prayed for in his petition, and making the temporary restraining order and injunction heretofore allowed perpetual.

The cause was appealed to this court. The defendant filed a motion, in this court, to suspend or dissolve said injunction for the following reasons, to-wit:

‘ ‘ First, for the reason set forth in the answer herein filed in this case.
“Second, the ultimate relief, if plaintiff is entitled to any, is compensation and damages, and plaintiff’s rights in the premises can be fully secured and enforced without the delay and inconvenience incident to injunction.”

The motion was submitted in this court, on the testimony as appears in the record below.

The material facts are not in dispute, and the court is called upon to determine the question of law, which is conceded by counsel upon both sides to be but one, and that is, has the plaintiff pursued the proper remedy?

The plaintiff contends that his remedy is injunction, and the defendant maintains that the plaintiff has an adequate remedy at law, and if he has been damaged he should resort to a court of law and seek a recovery in damages, and not to a court of equity for injunction.

The question herein submitted is one of importance and! vital interest to the parties to this suit.

Unon the one hand we have a private individual who is the owner oí a business property, whp maintains if the defendant is permitted to lay said tracks and erect said gates in and on said street as set forth in plaintiff’s petition, it will result in great damage to him and his property.

Upon the other hand, we have a railway company with large money and property investments seeking to extend its interests by the laying of tracks, which must be conceded will not only be of value to the defendant company, but of great value to the general public.

The defendant company by its counsel, argues with much force and contends that under Sec. 8765 G. C., of Ohio, that the plaintiff’s remedy is one at law.

Counsel insist if a strong judicial interpretation is given this section in question, that the remedy that plaintiff should pursue is an action for damages and not for injunction.

The section referred to provides:

“Every company which lays a track upon or over any such street, alley, road or ground, or part thereof shall be responsible for injuries done thereby to private or public property lying upon or near to such ground, which may be recovered by civil; action brought by the owner before the proper court, at any time within two years from the completion of the track.”

We have examined this statute with some care with a view of ascertaining its true intent and meaning, as applied to the case at bar. and in our opinion we can not find anything that would or could be interpreted to mean or to convey the interpretation claimed by it for counsel for the defendant.

This statute limits the time in which a suit may be brought for damages by persons who are injured by the laying of tracks but it does not in any way provide or determine the remedy that may be pursued if damages are not sought for injury resulting, or that may result from the laying of railroad tracks upon or near the ground or property of the owner thereof.

We do not understand how it could be properly claimed that under this statute that a person owning property abutting on a street, and who claimed to be injured by the laying of railroad tracks and placing crossing gates on said street and in front of the business property thereon, could not invoke the remedy offered by injunction.

It is contended by counsel for defendant, that an abutting property owner on a street has not such property right and interest in and to the street as would entitle him to relief by injunction, in a suit like the one at bar: but we do not think this claim is well founded.

At this time we do not deem it necessary to discuss at great length, the character, nature, right and extent of the owner in and to lands abutting on a street, and his interest by reason of such ownership in and to the street upon which said lands abut.

It is certainly a right which attaches to the abutting owner’s land, and he certainly has a property right therein, and it matters not whether the fee to the street be in the municipality in trust for public uses, or whether the fee be in the abutting property owner he nevertheless has a property right, and if he has a property right in and to said street, then under the constitution of our state, such property right can not be taken, by the defendant, unless the plaintiff is first compensated for same.

As we view it, it is the duty of a court of equity, in cases like the one at bar, to protect the property and rights of the owner in and to the street on which said property abuts, and to see to it that the private property owned by such person is not taken unless he is first compensated for same.

If the placing of a railroad track across the street in question, and the placing of crossing gates on said street and in front of the property of plaintiff, is near enough to the property to materially affect it, or depreciate its value, then, in our opinion, the plaintiff has a right to be compensated before the street is so obstructed, and he may properly invoke the remedy offered by injunction.

It has been established by a long line of authorities not only in this but in other states, that if the owner’s right in and to the street be property (referring to abutting property owner), that the same can not be taken from such property owner, except in time of war or other public exigency, unless compensation therefor shall be first made in money or first secured by a deposit of money; and if it were not so, then a person’s property would not be safe* at any time, and it inevitably follows that the attempt to take the property of the plaintiff in question is an invasion of the constitutional rights of the plaintiff, that private property shall not be taken without compensation be first made therefor.

It is an invasion of the rights of plaintiff to place in a street in front of his lot and business property a railroad track .and crossing gates, which will impair the owner’s access to hit property, and otherwise interfere with him in his full enjoyment of his property for all purposes to which it is adapted, and of the street itself, and such is an invasion and an attempted taking; it is a diversion of the use of the street from the purposes originally designed' for it, and if it can be taken at al] against the will of the owner, it must be upon the terms prescribed by the constitution.

We feel that the law in this case is well established and that the theory of this court of the law as indicated herein is fully determined and well established in a long line of cases, and especially by our Supreme Court in this state, and we need but cite the ease of Scioto Val. Ry. v. Lawrence, 38 Ohio St. 41 (43 Am. Eep. 419), the syllabus being as follows:

“1. Where the construction of a railroad in a street of a city will work material injury to the abutting property owners, such construction may be enjoined, at the suit of the owners, until the. right to construct such road in the street shall be first acquired, under proceedings instituted against such owners as required by law for the appropriation of private property.
“2. In such case it is immaterial whether the fee is vested in the city or in the abutting owners, so long as it is held upon the same defined uses.”

Quoting from the above case as appears in the opinion of Judge White on page 45, the learned judge says:

“It seems to us it can make no material difference where the fee is vested, so long as it is held to the same defined uses.
The established doctrine in this state, is, that the abutting lot owners ‘have a peculiar interest in the street, which neither the local nor the general public can pretend to claim; a private right of the nature of an incorporal hereditament, legally attached to their contiguous grounds, and the erections thereon; an incidental title to certain facilities and franchises, assured to them by contracts and by law, and without which their property would be of little value. This easement, appendant to the lots, unlike any right of one lot owner in the lot of another, is as much property as the lot itself. ’ ’ ’

We find the same doctrine in the case of Kinnear Mfg. Co. v. Beatty, 65 Ohio St. 264, 282 (62 N. E. Rep. 341; 87 Am. St. Rep. 600), Judge Minshall says:

“The decisions in this state have clearly established that an abutting lot owner has such an interest in the portion of the street on which he abuts, that the closing of it up, or the impairment of its use as a means of access, or the addition of a new burden, is a taking of private property for a public use, and cannot be done without compensation. ’ ’

The evidence offered in the case at bar, and which is undisputed, is clear and conclusive and of such a nature and character that we have no doubt that the proposed track and crossing gates, if permitted to be placed on the street in question and in front of the lot and business property of the plaintiff, would materially damage his property and impair his right to the use of said street.

In vieiv of these facts and applying the well established principles of law to them as herein before stated and set forth, a majority of this court is of the opinion that the plaintiff is entitled to the relief prayed for in his petition and therefore the motion filed by the defendant herein to dissolve the permanent injunction allowed by the common pleas court in this case, is not well taken, and said motion to dissolve said injunction is hereby overruled.

Shields, J., concurs.

Powell, J., dissents.


text:
    DAMAGES — EVIDENCE—PURE FOOD LAWS.
    [Morgan (5th) Court of Appeals,
    May 14, 1915.]
    Shields, Powell and Houck, JJ.
    Boyd Kean v. Delbert Bachelor.
    1. Pure Food Criminal Statute does not Change Rules of Evidence in Action for Damages on Account of Sale of Food Unfit for Use.
    The criminal statute relating to the sale of unwholesome provisions in no way changes the established rules of evidence or the proof required in cases where damages' are sought on account of the sale and delivery of food products in a condition unfit for use.
    2. implied Warranty of Seiler of Eggs not Available to Purchaser Receiving without Inspection though Found Four Days Later Unfit for Use.
    The implied warranty of the seller, in the case of the sale of eggs, is not available as the basis of an action by the purchaser who received and shipped the eggs without inspection and which were found upon inspection four days later to be unfit for use.
    [Syllabus by the court.]

      Error.

      M. E. Ecmford, for plaintiff in error.

      C. C. Middleswart, for defendant in error.
   HOUCK, J.

This cause was originally commenced in the court of a justice of the peace in and for Windsor township, Morgan county, Ohio, tried and judgment rendered and appealed to the common pleas court of this county.

The cause was submitted to a jury in the common pleas court and a verdict rendered and judgment thereon in the sum of $90.34, in favor of the defendant in error, the plaintiff below, and to reverse this judgment the plaintiff in error prosecutes error to this court.

The plaintiff below, Delbert Bachelor, in his amended petition says, that on August 13, 1913, he sold and delivered to the defendant below, the plaintiff in error, and at his special instance and request, chickens and butter for the agreed price of $84.52, and which sum the said Kean agreed to pay to him for same, but that he has neglected, failed and refused so to do. Plaintiff prays for a judgment against defendant for said sum of $84.52 with interest at 6 per cent from August 13, 1913.

The defendant filed an amended answer, being in substance as follows:

That on and long prior to June 3, 1913, he was engaged in the produce business, buying and shipping eggs to Pittsburg; that on said day the plaintiff sold and delivered to him, as and for good and wholesome eggs, and for the agreed price then paid for same, a large lot of eggs packed by plaintiff in cases, for shipment by defendant to Pittsburg, and with the knowledge on the part of plaintiff that they would be so shipped, without inspection or examination by defendant, and they were shipped by him without inspection; that 401 1-2 dozens of said lot of eggs were unhealthy, decayed and spoiled; but said condition of said eggs was not made known at said time to defendant by plaintiff, nor did defendant know of their condition; that by reason of the premises defendant has been damaged in the sum of $74.28, for which amount he prays judgment against the plaintiff.

The plaintiff’s reply admits that he sold and delivered the eggs to defendant at an agreed price which was paid; that they were packed in eases but denies each, all and every other statement and allegation in the amended answer of defendant.

The plaintiff in error seeks to reverse the judgment below for two reasons:

1. He relies upon the provisions of Sec. 12760 G. C.

2. That the court erred in its charge to the jury.

Section 12760 G. C. is as follows:

“Whoever sells, offers for sale or has in possession with intent to sell, diseased, corrupted, adulterated or unwholesome provisions without making the condition thereof known to the buyer, shall be fined not more than fifty dollars or imprisoned twenty days, or both.”

Counsel foi* plaintiff in error contends, that by the provisions of the above penal statute, decayed and unwholesome eggs must not be placed upon the market; that they are not the legitimate subject of sale and traffic, unless their condition is made known to the buyer; that no express warranty is necessary, nor is any false representation or deceit requisite, nor is knowledge upon the part of the seller necessary to be alleged or proved by the defendant below.

The action at bar is a civil one and not of a criminal nature, and we think it is a well established principle in law that one who pursues a civil remedy can not claim favor under the provisions of a criminal or penal statute to make out his case. The criminal statute in question does not change in any way the well established rules of evidence, or the proof required in cases growing out of the sale and delivery of merchandise where damages are sought, nor does it change the rule of law governing express or implied warranties, as relates to the seller and buyer of merchandise.

Then we are led to inquire, what is the law governing the case at bar?

In the absence of any express affirmation or statement to such, effect, certain warranties are always implied in every contract, relating to the sale and purchase of merchandise.

There is an implied warranty that the seller is the owner of the goods which he offers for sale, and that he has the right to sell the same; that at the time and place of delivery the buyer shall have and enjoy quiet possession of the goods and that the same will be free from any charge or claim- of any third person.

And we are of the opinion that from the usages of trade that where eggs were sold, as in this ease, to a shipper when the opportunity for inspection is slight, if at all, that there is an implied -warranty from the seller to the buyer, that the eggs are fit for the purpose for which they are sold, i. e., shipping purposes, and that they are merchantable and not spoiled or decayed at the time of their delivery to the purchaser.

We are now- led to inquire — what was the condition of the eggs, involved in this case, at the time of their delivery to the' plaintiff in error?

The record discloses that the eggs were purchased by Bachelor of farmers in his community, during the week prior to June 3, 1913, and they were packed in egg cases and delivered on that day to Kean, the purchaser; that the fillers were dry, but the cases a little wet; that Kean saw the damp cases but did not open any of them or inspect any of the eggs but accepted them and shipped them the same day to Pittsburg; that four days later he was informed, by consignee in Pitts-burg, that a large part of the eggs he purchased of Bachelor were spoiled and decayed.

Can it be inferred from these facts ' that the eggs were spoiled, decayed and unmerchantable, on June 3, when Bachelor delivered them to Kean, because four days later they were in that condition in Pittsburg?

The purchaser had an opportunity to examine the eggs when they were delivered to him, but he did not elect so to do; he saw that the cases were damp, but made no complaint to the seller; if the dampness of the cases would have a tendency to cause the eggs to decay or spoil more rapidly, by reason of that fact, the purchaser was placed upon inquiry and should have applied the test, or made an inspection of the eggs, and if he had done so and found them decayed or spoiled he would have been under no legal obligation to have accepted them.

Speaking from the record, the evidence does not show that at the time of the delivery of the eggs, on June 3, 1913, that they were spoiled, decayed or unmerchantable and we can not assume from the facts and circumstances, as disclosed by the evidence, that they were spoiled or decayed at said time.

All the law required of the seller in this case was that the eggs should be merchantable and not in an unwholesome condition, at the time of the delivery, and that there could be no implied warranty that they would be merchantable, or free from decay four days later and after the purchaser had shipped them to Pittsburg.

The question to be determined here is not the condition of the eggs at Pittsburg, but what was the condition of the eggs on June 3, 1913, when Kean accepted them from Bachelor?

Answering this inquiry from the evidence as disclosed by the record, they were merchantable and not decayed or spoiled and that is all that the law requires of the defendant in error in the premises.

We have examined the charge of the court and we are of the opinion that it is a clear and concise statement of the law ■governing the facts in this case, and therefore we find no error in the charge of the court.

As we view this ease, we find no error in the record, which is prejudicial to the rights of the plaintiff in error, and, therefore, we are of the opinion that the judgment below is right and should be affirmed. The judgment of the common pleas court is affirmed at the costs of the plaintiff in error.

Shields and Powell, JJ., concur.


author: WINCH, J.

text:
    MASTER AND SERVANT.
    [Cuyahoga (8th) Circuit Court,
    February 21, 1905.]
    Marvin, Winch and Henry, JJ.

      Jennie Hawkins, Admr. v. Lake Shore & M. S. Ry.
    Failure to Instruct Employe Engaged in Dangerous Work not Actionable Unless Failure Caused Accident.
    Evidence that an employer failed to ■ instruct an employe as to hazard of employment, and that the latter was killed by an accident in the discharge of his duty, is not sufficient to go to a jury where there is no evidence that the failure to warn caused the accident.
    Error.

      C. W. Dille, E. J. Finney and C. W. Noble, for plaintiff in error.

      Breiver, Cook & McGowan, for defendant in error.

       Affirmed, no op., Hawkins v. Railway, 74 O. S. 424.

   WINCH, J.

Plaintiff in error was plaintiff below and brought her action against defendant to recover damages for the death of her son, which she alleges was caused by the negligence of defendant. The case has been twice tried by jury. The first trial resulted in a verdict for the plaintiff, which this court set aside on the ground that the verdict was not sustained by sufficient evidence and remanded the cause for a new trial. The opinion of the court at that time sufficiently set forth the facts of the case and the conclusions of the court, rendering extended comment upon the case at this time unnecessary.

Attention, however, is called to what was then said that:

“The testimony fails utterly to show the manner of his (Hawkins’) death. * * * The testimony fails to show that the accident was caused by peril of which it was the duty of the company to instruct the decedent, or that a failure to give such instructions was the proximate cause of his death.”

The case was tried a second time in the common pleas court and-at the close of plaintiff’s testimony the trial judge directed a verdict for the defendant, to review which ruling the cause is here a second time.

While some additional evidence was introduced at the second trial, it is all along the line of establishing a basis for the presumption that the deceased was upon the top of the car just before the accident occurred which caused his death. With all this additional evidence, after able and exhaustive arguments by skillful counsel and a careful consideration of the evidence, we are unable to come to any other conclusion than that quoted from the former opinion of this court.

The only facts established at the last hearing were: that George Hawkins was a brakeman of little experience; an accident happened; Hawkins was killed. There was also evidence tending to show that defendant failed to fully instruct decedent as to the perils of his occupation, but as to the cause of Hawkins’ death and that it ivas due to failure of the company to instruct him of the peril which came upon him and killed him, there was no proof. The negligence complained of was this failure to properly instruct.

The trial court evidently followed the last ruling of this court and was justified in so doing. The mere fact of the accident did not raise a presumption of negligence on the part of the defendant. Huff v. Austin, 46 Ohio St. 386 [21 N. E. Rep. 864; 15 Am. St. Rep. 613].

There is no presumption that neglect to instruct as to hazards of the employment was the cause of the injury in the absence of proof as to the physical cause of the accident. The theory upon which the case was presented is that a car upon the top of which Hawkins was standing became uncoupled by reason of a defective coupler, collided with another car backed into it by the engineer and precipitated Hawkins between the two ears, because he was uninstructed as to what to do under the circumstances and for that reason did not know how to save himself.

Circumstances were shown in evidence from which it might be deduced that Hawkins was on top of the car just as the accident occurred, but they are not conclusive of that fact. A noise was heard “as of cars coining together,” from which it might be inferred that the two ears came together violently; one of them was knocked off the center of its rear tracks — but that they had been uncoupled without Hawkins’ knowledge or active participation therein, there was no proof. They were properly coupled before and after the accident. There was no defect in the couplers shown. That Hawkins was precipitated between the two cars may be presumed from circumstantial evidence in the case, but other circumstances shown, particularly the position of the body when found, would lead to an equally natural inference that he was on the ground, stepped between the two cars, to climb to the top of one of them, and slipped or stumbled and fell under the wheels. Nor is it to be inferred from the evidence, seeing that the evidence as to the physical cause of the accident is largely inferential, that the company could have given Hawkins any amount of instruction as to the peril he actually encountered, which would have saved his life.

Such being the character of the evidence at the last trial, it would have been error for the trial judge to submit the case to the jury for its speculation as to the cause of the accident and the negligence of the defendant. Lake Shore & M. S. Ry. v. Andrews, 58 Ohio St. 426 [51 N. E. Rep. 26]; Cleveland Term. & V. Ry. v. Marsh, 63 Ohio St. 236 [58 N. E. Rep. 821; 52 L. R. A. 142]; United States v. Ross, 92 U. S. 281 [23 L. Ed. 707]; Gerwe v. Fireworks Co. 5 Circ. Dec. 616 (12 R. 420); Connell v. Manufacturing Co. 10 Dec. Re. 129 (19 Bull. 22).

Judgment affirmed.

Marvin, and Henry, JJ., concur,