author: Kunkle, J.

text:
    PAYMENT OF COSTS AND LANDOWNER’S ATTORNEY’S FEES IN ABANDONED APPROPRIATION PROCEEDINGS.
    Court of Appeals for Franklin County.
    Norfolk & Western Ry. v. Campbell et al.
    Decided, February 19, 1919.

      Appropriation — Failure of Railway Company to Prosecute Proceeding— Payment of Costs and Landowner’s Attorney’s Fees Required— Procedure Where Common Pleas Reverses Probate Court.

    1. When a railroad corporation institutes a proceeding to appropriate real estate and fails to prosecute the same for a number of years, and when the court refuses leave to refile an amended petition which was stricken from the files and to assign the ease for hearing upon the original petition, without objection upon the part of the railroad company, a reasonable construction under such circumstances of Section 11060, General Code, would support an order requiring payment -by the railroad company of the expenses and attorneys’ fees incurred by the property owner.

      2. Where the court of common pleas reverses the judgment of the probate court, which held that a proceeding by a railroad to appropriate land had been abandoned because of failure to prosecute the same, the court of common pleas is 'not authorized to remand the cause to the probate court, but should retain the cause for trial and final determination.
    Error.

      Booth, Keating, Pomerene & Boulger, for plaintiff in error.

      Smith W. Bennett and Barton Griffith, for defendants in error.
   Kunkle, J.

In brief it appears from the record that in March, 1907, the plaintiff in error, who was plaintiff below, filed a petition in the Probate Court of Franklin County for the purpose of condemning for railroad purposes certain land owned by the heirs of Lorenzo D. English. Answer was filed, and in May, 1907, plaintiff was given leave to amend its petition, and Mary English was made a party defendant. February 21, 19.13, leave was granted plaintiff to file an amended petition and the same was accordingly filed. February 26, 1913, leave was granted defendant, Walter English, to file an answer or other pleading, and on February 27, 1913, he filed a motion to set aside the previous order of the; probate court granting the plaintiff leave to file an amended petition. In January, 1915, Walter English and others filed a cross-petition.

February 8, 1917, Judge Black of the probate court sustained the motion of Walter English and others and struck the amended petition from the files. The entry as’ approved by the probate court reads as follows:

“This day this eause came on to be heard upon the motion of the defendants, Walter English, M. K. English, W. H. English and Laura E. Toung, to vacate the order of this court permitting the defendants to file an amended petition under date of February 21st, 1913, to set aside said order and that the same be held for naught; and the same was argued by counsel and considered by the court.
“The court upon consideration thereof and being duly advised in the premises doth find that this cause was begun in this court on the 25th day of March, A. D. 1907, by the filing of a petition therein for the appropriation of certain real estate now owned and held by the defendants as the heirs of Lorenzo D. English, deceased. That an amended petition was filed herein February 21st, 1913, in which amended petition it appears that other and additional real estate than that included in the original petition is set forth therein and a prayer for the appropriation. of such additional real estate for railway purposes is therein contained. That the lands described in said amended petition are different in amount and description from those included in said original petition.
“It is, therefore, by the court ordered and adjudged that the amended petition of said plaintiff filed herein February 21st, 1913, be stricken from the files and that the order authorizing the same to be filed be vacated, set aside and held for naught; to all of which the plaintiff, The Norfolk and Western Railway Company, by its counsel, excepts.”

Plaintiff thereupon requested that it be allowed to refile its amended petition, which request was refused, and the plaintiff then asked that the' case be heard on the original petition. Defendants thereupon filed a motion asking the court to dismiss the original petition, which motion was submitted to Judge B'ostwiek of the probate court in June, 1918, and the petition was dismissed at the costs of plaintiff without prejudice to a new action.

This entry reads as follows:

“This day this cause coming on for hearing upon the motion of the defendants to dismiss this proceeding, the plaintiff asked leave to refile the amended petition heretofore stricken from the files, which leave, upon consideration, the court denies; thereupon the plaintiff asked that this proceeding be set down for hearing upon the petition and it appearing to the court that the plaintiff contends that it requires from the defendants, Walter English, M. J. English, W. H. English and Laura Young, for the purposes of its railroad real estate in addition to that described in the said petition, this proceeding is hereby dismissed without prejudice and without record at the cost of the plaintiff.”

Defendants thereupon filed a motion asking the court for an allowance of attorneys’ fees and expenses, as provided by Section 11060, General Code.

The probate court sustained a motion of the plaintiff and dismissed the motion of defendants asking for an allowance for attorneys’ fees and other expenses incurred.

Error was prosecuted from such judgment of the probate court to the court of common pleas. The common pleas-court reversed the judgment of the probate court and remanded the case to the probate court.

Plaintiff in error now prosecutes error to this court ■ from the judgment of the court of common pleas reversing the judgment of the probate court.

In brief, the questions presented 'for consideration relate to the jurisdiction of the common pleas court to reverse the probate court, in holding that the proceeding in appropriation was not abandoned, and to remand the case to the probate court; and the further question whether a case can be considered as having been abandoned when the proceeding was dismissed on the motion of the defendants.

The motion filed by defendants below to dismiss the action reads in part as follows:

“First: The proceeding is one which creates a lien of record against the real estate of the said defendants and the same is and has been a source of damage to the defendants by reason of the pendency of the action.
“Second: That the said plaintiff has not proceeded with diligence to prosecute the same to final judgment.
“Third: That the plaintiff has not proceeded to have the preliminary questions adjudicated and determined by this court, as required by the Statutes of Ohio, as necessary to be done in such actions and proceedings, and within the period of time as fixed by Section 11046, General Code.
“Fourth: That this court has lost jurisdiction to determine the questions herein involved by reason of the negligence of the plaintiff to prosecute its action with diligence and within the period of time required by the statutes of Ohio.”

We have carefully considered the authorities cited by counsel and will not attempt to discuss or distinguish the same, but will merely announce the conclusion at which we have arrived after an examination of the record and such authorities. We have also read the opinion of Judge Ki’nkead of the common pleas court, which has been tiled with us, and in the main we are in accord with the reasoning contained therein.

Section 11060, G. C., provides that “the corporation may abandon any case or proceeding after paying into court the amount of the defendant’s costs, expenses and attorney fees, as found by the court.”

Tn addition to the reasons stated in the entry sustaining the motion to dismiss the proceedings, the probate court may have been moved to do so because of the failure of the plaintiff to prosecute its action. The failure to prosecute a case may be equivalent to an abandonment of the case. The case had been pending about six years when the plaintiff secured leave to file an amended petition, setting forth the fact that the necessities of the road required real estate in addition to that described in the petition. The case had been pending about eleven years when the probate court ordered the amended petition stricken from the files, and had been pending more than eleven years when the probate court dismissed the proceeding.

It appears from the entry dismissing the proceeding that the plaintiff did not except to the judgment of the probate court, rendered July 12, 1918, refusing leave to refile its amended petition which had previously been stricken from the files and refusing to set the case down for hearing upon the petition.

In the absence of such exception, we think the fair inference would be that plaintiff -was satisfied with the ruling of the court, and that such ruling might be considered as equivalent to a dismissal of the action for want of prosecution, as the court was authorized to do under the provisions of 'Section 11585, General Code.

This section reads as follows:

“The court may dismiss the petition with costs in favor of one or more defendants in case of unreasonable neglect on the part of the plaintiff to serve the summons on other defendants, or to proceed in the cause against the defendants served.”

We are of opinion that under the facts disclosed by the record the fair and reasonable construction of Section 11060 would require the payment by the plaintiff in error of the expenses and attorneys’ fees of defendants in error.

Section 11066 provides:

“Upon the hearing of the cause, if the common pleas court affirms the judgment of the probate court, all the costs in the common pleas court shall be paid by the plaintiff in error. If it reverses such judgment, it shall retain the cause for trial and final judgment., as in other cases.”

Under the provisions of this section we think the court of common pleas should have retained the ease for final determination instead of- remanding the same to the probate court.

The judgment of the court of common pleas will therefore be modified in this respect and as so modified will be affirmed.’

Judgment modified, and affirmed, as modified.

Al cread and Ferneding, JJ., concur.


source: Caselaw Access Project

author: Washburn, J.

license: Public Domain

text:
    EMPLOYEE INJURED ]BY/jTHE ^BURSTING OF AN EMERY WHEEL.
    Court of Appeals for Cuyahoga County.
    Fred Napoli v. The Standards Parts Company.
    Decided, October 17, 1919.

      Proximate Couse — May Not be Determined by the Cowrt Without the Facts — Where the Issue is Made by the Pleadings.

    In an action for recovery of damages on account of injury to a workman from the bursting of an emery wheel which he was operating, the question whether an accident of that character can be attributed to the failure of the employer to comply with the statute requiring that such wheels be covered with a sheet or cast iron hood or hopper to prevent dust or refuse from rising therefrom, is one Which should be determined by the jury from the facts and circumstances of the case, rather than from any narrow construction by the court of the purpose of the law, and the plaintiff in such a case should be given an opportunity to prove that the cause of his injury was the absence of such an appliance.

      Gilbert Morgan, Attorney for plaintiff.

      Day, Day & Wilkin, Attorneys for defendant in error.
   Washburn, J.

Heard on error to the Court of Common Pleas.

This was an action in which Fred Napoli sought to recover damages for an injury receiver while in the employ of the Standard Parts Company. The injury was caused by the bursting of an emery wheel, a piece of which struck him in the throat. The Standard Parts Company employed more than five employees and complied with all the requirements of the Workmen’s Compensation act.

Napoli, therefore, could not maintain such suit unless such injury arose from the failure of such employer to comply with a lawful requirement for the protection of the lives and safety of employees. General Code, Section 1465-76. Napoli claimed that sucb was the ease, and that the injury to him was caused by the failure of the Standard Parts Company to comply with the requirements of Section 1027, which required the emery wheel in question to be provided ‘ ‘ with a sheet or cast iron hood or hopper of such form and so applied to it that the dust or refuse therefrom will fall from such wheels or will be thrown into such hood or hopper by centrifugal force and be carried off by the current of air into a suction pipe attached to such hood or hopper.”

The case came on for trial, and the court sustained an objection to any evidence and rendered judgment for the Standard Parts Company on the ground that the lawful requirement referred to was for the purpose of protecting its employees from dust or refuse and not from the bursting of the emery wheel.

It' must be conceded that Section 1027 requires the installation of dust or refuse removing apparatus, but Napoli claimed that if such apparatus had been provided, it would have not only have protected him from dust and refuse from said emery wheel, but would also have protected him from injury from the bursting of the emery wheel — in other words, that the absence of such apparatus was the proximate cause of his injury.

No evidence having been permitted, we have no facts before us by which we can form any opinion as to whether or not such apparatus would have afforded him any protection from injury from the bursting of said emery wheel.

Proximate cause is usually a mixed question of law and fact' for a jury to determine, and in no event can a court determine it without any facts where the issue is made in the pleadings.

So that this case falls within the familiar rule that evidence as to this issue should have been permitted, unless the contention of .the Standard Parts Company is correct, — that the statute being for the purpose of preventing injury from dust or refuse, it can not, ás a matter of law, be considered as a lawful requirement for any other purpose. We can not accede to that proposition. If an apparatus is required which will afford protection against a certain kind of injury, and if it will also protect against another kind of injury, we perceive no good reason why it is not a lawful requirement as to both kinds of injuries.

Whether or not this apparatus would have afforded protection against injury from the -bursting of the emery wheel, and whether or not the injury in this ease was caused by the employer’s failure to provide such apparatus, is the very question at issue which we hold should be determined upon the facts rather than by a narrow construction of the purpose of the law.

We are cited to former decisions of this court holding that a statute requiring certain machinery to be protected by a guard to prevent the operator coming m contact with the machinery did not require guard to prevent parts of the machinery from flying off and injuring the operator. The Marble & Shattuck Chair Company v. Frances Dubroy, Administratrix, 17 C.C.(N.S.), 515. That ease differs from the case at bar in that the facts were before the court, and it further appears that the court found that “it would be impossible to conceive” of the machine being so guarded that the accident ‘ would or might not have happened. ’ ’ It is apparent that the facts in that case disclosed to the court that the guard required could not have prevented the accident, and that, therefore, failure to have the guard could not be the proximate cause of the accident.

We are also cited to another case in which this court determined the same law requiring a. guard to prevent injury to persons coming in contact with machinery does not require such machinery to be so guarded as to prevent injury from material or particles being thrown off from such machinery. Kump v. Kilby Mfg. Co., 18 C. C. (N. S.), 463. But the evidence was also before the court in that case, and moreover, after the first case cited above was decided the Legislature made a significant-change in the statute by requiring that guards and applieances be provided to “prevent injury to persons who use or come in contact with machinery.” That is now the language of the law declaring the purpose of the lawful requirement in the case at bar.

The purpose is to prevent injury to persons who use or come in contact with machinery, not any particular kind of injury but injury generally, any injury which the appliances required would prevent.

Our attention is also called to another case decided by this court holding a violation of a statute prohibiting the employment of a minor to operate an elevator can not be the proximate cause of injury to the minor, — Schauer, etc., vs Hinig, 18 C.D.(N.S.), 414.

That ease px>esents a much different question than is presented by the case at bar, and it is to be noted that in that case also the facts were before the court, and, moreover, it does not appear that in deciding the ease it was necessary to promulgate the above proposition of law; in fact a judgment for plaintiff was affirmed in that case.

We are further cited to a case decided by the circuit court of Hamilton county, — Slaline v. Cincinnati Sand Blast Company, 12 C.C.(N.S.), 208. In that case, as in all of the other cases cases cited, the facts were before the court. Noxxe of them sustain the proposition that where the issue of proximate cause is made by the pleadixxgs, the trial court, without axxy facts, can determine that issue. In the case at bar, the petition liberally construed, alleges that the statute required protecting appliances to be attached to the emery wheel in question for the purpose of preventing injury to plaintiff, and that the absence of such appliances was the cause of plaintiff’s injury. These allegations were denied in the answer. The plaintiff should have been given an opportunity to prove that the absence of the required appliances was the cause of his injury, and for error in sustaining the objection to any evidence and rendering judgment for the defendant, the case is reversed aixd remanded for further proceedings according to law.

Dunlap, P. J., and Vickery, J., concur.


author: Houck, J.

text:
    WARRANTY OF A HORSE.
    Court of Appeals for Muskingum County.
    Harley E. Warne v. Herman T. Bond.

      Hales Act — What Constitutes Express Warranty — Representations by a Seller as to the Soundness of the Horse Sold.

    Assurances given the purchaser by one selling a horse, that the animal was sound in every way and especially was free from any disease of the eyes and that both of the eyes of said horse were sound, are sufficient to constitute an express warranty under the sales act.

      Harry C. Shepherd for plaintiff in error.

      H. W. Hunts contra.
   Houck, J.

This case is here on a petition in error and a bill of exceptions from the common pleas court of Muskingum county. The plaintiff in error here was the defendant below. The issues raised by the pleadings in the trial in the lower court are as follows.

' The petition alleged a warranty of the soundness of a horse sold by Warne to Bond, a breach of said warranty, and as a result- thereof damages to said Bond in the sum of $125.

The answer contained two defenses: first, a general denial; second, that at the time Bond purchased said horse of Warne, he knew the eyes of said horse were defective.

The reply denied the second defense of the answer. Upon these issues the cause was submitted to a jury and a verdict was returned in favor of Bond for the sum of $90. The trial judge overruled a motion for a new trial and entered a judgment on the verdict.

Counsel for plaintiff in error urges that an inspection of the record will disclose the following errors prejudicial to the rights of his client, and seeks a reversal of said judgment so entered:—

(a) That there was no legal proof' establishing the .alleged •warranty.

(b) That the trial court erred in its admission and rejection of testimony.

(c) That the judgment is against the weight of the evidence.

We have read the entire record in this case and, therefore, are familiar with the proven facts as well as the rulings of the trial judge, on his admitting 'and refusal to admit certain testimony offered during the progress of the trial.

As to the first ground of alleged error, will say that the recovery in this case is based upon an express warranty in this, to-wit: that the horse in question was sound in every way and especially was free from any disease of its eyes and that both eyes of said horse were sound. Express warranties are those stipulations and promises, with regard to the condition or general or particular qualities of the article or property sold, which the seller makes to the buyer in express terms, at the time of the sale.

It is claimed that the words and language used by the seller, at the time of the transaction, were not sufficient, in law, to constitute an express warranty. The law does not draw a close line in this respect; no particular words are necessary. Any language, statement, assertion, or act on the part of the seller, in the present case, going to the soundness of the horse in question, if they were intended by Warne, and understood by Bond, as a warranty as to the soundness of said horse, must be considered as such.

The question is, did the words and language used, at the time of the sale, fairly and reasonably indicate an intention, on the part of Warne, to warrant the horse sound, and did Bond so understand it? This was a question of fact and entirely within the province of the jury and for its determination. This was done, and we think its response is in full accord with the facts and the law.

The testimony of Warne, the defendant below, clearly was such as to satisfy the jury as to the warranty as claimed by Bond.

We hold that, in fact and law, an express warranty was established. The “Sales Act,” Section 8392 General Code, reads:

“An affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon. ’ ’ jr. */r w

This statutory rule of law, when applied to the undisputed facts now before us, is decisive of the real question presented, namely: Was there -an express warranty as to the soundness of the horse? and but one answer can follow, Yes.

How stands the claim as to the second alleged error:

An inspection of the record here presented satisfies us that no prejudicial error exists as to the rulings of the trial court in the admission and rejection of testimony.

As to the third ground of error, is the judgment, as entered here, against the weight of the evidence ? This we answer in the negative. The judgment is amply supported by the facts as well as the law is applicable to them.

The record being free from prejudicial error, the judgment of the common pleas court must be and hereby is affirmed.

Judgment affirmed.

Shields, J., and Patterson, J., concur.


text:
    Knowledge of risk and assumption thereof.
    Court of Appeals for Cuyahoga County.
    New York, C. & St. L. Ry. v. Pugh.
    Decided, February 7, 1919.

      Negligence — Brakeman Injured in Sioitching Yard — By Gar “Kicked” on Parallel Track — Degree of Danger Arising from “Kicking” Gars a Question for the Jury — Burden of Proof as to Assumption of• Bisk on the Employer — Knowledge of Bisk a Prerequisite to its Assumption.

    1. Where in an action by a railway brakeman for injuries caused by ■cars being “kicked” by another crew onto another switch in close proximity to the one on which he was operating, the evidence of ■plaintiff’s knowledge of the custom' of “kicking” cars is in conflict, the question of plaintiff’s assumption of the risk is one for the jury.
    2. The burden of proof as to assumption of risk is on the employer, . and unless the evidence indisputably shows such assumption the question is one for the jury.
    3. An employee is not to be regarded as having assumed a risk until ■’ he becomes aware of it, unless it be so plain that he must be presumed to have had knowledge of it.

      M. B. & II. II. Johnson, for plaintiff in error.

      Payer, Winch, Minshall & Karch, for defendant in error..
   Washburn, J.

This is an action under the Federal Employers’ Liability Act, which, so far as this ease is concerned, did not abolish the defense of assumption of risk.

The defendant in error, Clinton F Pugh, was in the employ of the plaintiff in error, The New York, Chicago & St. Louis Railroad Company, as a brakeman. He suffered certain injuries and brought this action to recover damages therefor. In the court below the trial resulted in a verdict and judgment in favor of defendant in error for twenty-five thousand dollars.

The contention of the plaintiff in error is that the jury was not jr stifled in finding that it was negligent in the particulars which the court below submitted to the jury, and that, if the jury was justified in finding such negligence, the defendant in error, being fully aware of all the circumstances, assumed the risk, and the court erred in submitting the question of assumed risk to the jury and not entering a judgment on that ground in favor of the plaintiff in error. This court is urged to find and declare upon the record that the defendant in error as a matter of Jaw assumed the risks attendant upon the methods of operation employed by the plaintiff in error in the transaction of its business.

The evidence submitted tended to establish that the plaintiff in error in making up its trains in its Buffalo switch yards did so by an operation commonly called short-switching. There was one lead track at either end of the switch yards, and between the lead tracks, and substantially parallel with each other, ran the switch tracks, which at their extremities opened into the lead tracks by means of switches. The practice was that when a train of cars was pushed upon a lead track by an engine, the forward ear or cars which were to be placed upon a certain switch track were kicked in upon the track, and the cars so kicked in were not usually ridden in by a brakeman, but traveled Under the momentum of the kick until they stopped by reason either of loss of momentum or by running against other cars already kicked in on the same switch track.

The evidence tended to establish that this system of operation in said switch yards had continued for more than twenty years, and was substantially a continuous process twenty-four hours a day every day in the year, and that it was not usual to have a man or a light on the cars so kicked in, although under some circumstances there was a man or a light on them.

The defendant in error was not employed in said yards. ITe was a road brakeman, and had been in the employ of the company- cdntinuou-slv from November 3, 1914, to the night of his injuries, December 30, 1916, He operated between the city of Oonneaut in Ashtabula county, Ohio, and the city of Buffalo, and made a round trip between these two points on an average of every two days. He had nothing to do with switching in the yards, his duty ending -when he delivered his train at the yards and beginning again when he took his train out of the yards, but the testimony showed that he must necessarily, and did, spend some time each trip in and about said yards.

On the night of December 30, 1916, at about 9:30 o’clock, he was taking check of a train of ears standing on switch track number 4 in said yards, the same being the train which he ivas about to take out on a trip. It was winter time and there was snow and ice between the tracks. In the regular course of his duties as brakeman he was taking dowm the numbers of the cars in said train, and to do so it became necessary for him to step between two of the cars of said train so as to get the number of one of the ears, and as he stepped out from between the cars he cither stepped upon or dangerously near the adjoining track, number 3, or slipped and fell toward said tracks just at the time when a ear standing on said track was moved forward in said kicking process, and he -was thereby seriously injured. Said ear had been standing there about one hour, and there was a discrepancy in the evidence as to whether said ear was moved forward by being hit by cars kicked in on that track, or whether cars had been coupled to said standing ear and then all of them kicked forward; but it is apparent that in any event, the string of ears which injured defendant in error was not at the time of the injury coupled to or being pushed by an engine.

There were several specifications of negligence in the petition, such as maintaining tracks 3 and 4 in too close proximity, and in not having the yards lighted, and in permitting snow and ice to accumulate between tracks 3 and 4. The court instructed the jury that the defendant in error assumed the, risks in reference to all of these specifications of negligence. There was, however, another specification of negligence, to-wit, that the railroad company was negligent in kicking down along switch track number 3 a cut of caps 'without having a man or a light upon the leading end of the leading car of said cut of cars to give warning of the approach; that is, that in this particular the plaintiff in error, under all the circumstances, was negligent in its mode and manner of transacting its business in said yards. This presented a mixed question of law and fact which was fairly submitted to the jury, and under the familiar law applicable to such a situation we can not say that the jury was manifestly wrong in finding plaintiff in error negligent.

It is insisted, however, that the defendant in error at the time of said accident, and prior thereto, knew the physical conditions then existing, and the methods of operation -which were employed at said place, and that as a matter of law he assumed all the riks attendant upon that mode and manner of conducting the business of plaintiff in error.

The question of assumed risk thus presented was submitted to the jury under a charge concerning which no exception is taken, nor is any criticism made of the charge. The important question, the one dwelt upon in the argument and in the briefs of plaintiff in error, is that the facts established such a situation as to place the assumption of risk upon the defendant in error as a matter of law.

Our attention is called to the fact that the defendant in error was an experienced brakeman, that he was in and about said yards several times each w>cek, both night and day, for a period of over two years, and that during all of said time this method of kicking cars without having a man or a light tíjpon the same was the usual way in which the business was conducted, and it is claimed that, therefore, he must have known that that was the customary and ordinary and usual way in which such operations were conducted.

Our attention is also called to the fact that one of the rules of the company, with which the defendant in error was familiar, provided that when cars were being pushed by an engine a flagman must be stationed in a conspicuous position on the front of the leading car, or a white light must be displayed on the front of the leading car at night, and that this rule contained an exception making it applicable under all situations except in making' np trains in the yard — the inference being that as the rules did not require a brakeman or a light on the front end of the car, except outside of the yards, none was required or could be expected inside of the yards.

The defendant in error testified - that he was not familiar with the operations in said yard, and that while he knew that in some instances ears were kicked into said switches in the daytime, he did not know of and never saw such operation in the night time without a light being displayed on the leading car; that just before the accident he saw the ear standing still on track 3 and had no reason to expect that it would be suddenly moved without warning and without any light being displayed on or about it.

The question of the defendant in error’s knowledge of the situation and assumption of the risk was submitted to the jury under instructions which fairly and fully guarded and protected the rights of the plaintiff in error, and the jury found on this issue in favor of the defendant in error.

• It is easy to state the law upon this subject of assumed risk; the difficulty arises in the application of the law to a particular case.

The Supreme Court of the United States, in a very recent ease, Boldt v. Pennsylvania Ry., 245 U. S., 441, construing the Federal Employers’ Liability Act, under favor of which this action was brought, states the law thus:

“Except in the cases specified in Section 4, the employee assumes extraordinary risks incident to his employment, and risks due to negligence of employer and fellow employees, when obvious or fully known and appreciated by him.’’

The jury having found that the injury in the case at bar was due to the negligence of the employer, the concrete question is: Were the risks due to such negligence “obvious or fully known and appreciated’’ by the defendant in error?

As the injury did not arise in connection with a stationary condition, but grew out of an operation, the risk assigned depends upon the knowledge, either actual or presumed, of the defendant in error. As has been said, that question was determined by the jury in favor of the defendant in error. That finding of the jury and the approval thereof by the trial court can not be disturbed by us unless the evidence indisputably shows that the jury was wrong in its finding. While a servant will be deemed to have assumed all risks naturally and reasonably incident to his employment, and to be acquainted with all risks which to a person of his experience and understanding are or ought to be open and obvious, yet where there is any doubt whether the servant was so acquainted, or ought so to have been, the determination of the question is necessarily for the jury.

“1. Where, in an action by a railroad switchman for injuries caused by cars being 'kicked’ by another crew into those which he was attempting to couple, the evidence as to plaintiff’s knowledge of this custom of kicking the cars on the track in question was conflicting, it was error to refuse to submit to the jury the question as to plaintiff’s assumption of the risk.” Hartley v. Chicago & A. Ry., 197 Ill., 440.
“The burden of proof of assumption of risk is on the employer, and unless the evidence indusputably shows such assumption, the trial court does not err in refusing to take that question from the jury.” Kanawha & Mich. Ry. v. Kerse, 239 U. S., 576.
“An employee is not to be regarded as having assumed a risk attributable to the employer’s negligence until he becomes aware of it, unless it is so plainly observable that he must be presumed to have knowledge of it.” Chesapeake & O. Ry. v. Proffitt, 241 U. S., 462.

This presumption of knowledge does not arise unless the defective condition and the risk were so obvious, and the employe’s relation thereto so close and intimate, that he could not help but have known of them. If he denies knowledge, his relationship to the defect and risk must be so close and intimate as to make his denial of knowledge in effect a denial of a physical fact, before the presumption can prevail. Cincinnati, N. O. & T. P. Ry. v. Thompson, 236 Fed., 1. See also Arenschield v. Chicago, R. I. & P. Ry., 128 Ia., 677.

The duty of the reviewing court in reference to the finding of a jury on the question of assumption of risk is similar to the duty of a reviewing court as to the finding of a jury on the subject of contributory negligence. In Cincinnati Street Ry. v. Snell, 54 Ohio St., 197, the law as to the latter question has been stated by the Supreme Court as follows:

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

See also Jones v. East Tenn., V. & G. Ry., 128 U. S., 443.

While it is perfectly apparent to this court that the defendant in error had an opportunity to know the method of operation in said yards, still there Avas evidence in the record to show that sometimes there was a man on the cut of cars and sometimes there was a light, and there was some evidence indicating that this standing car was forced forward with unusual rapidity and force, although these facts Avere disputed, and Ave feel under the denial of knowledge on the part of defendant in error that the question of his knowledge and consequent assumption of risk was one for the jury to determine, unless such knoAvledge must be conclusively presumed as a matter of law from defendant in error’s knowledge of the rules of the company, which will be hereinafter considered.

It is apparent that a finding to the effect that the defendant in error assumed the risk of an accident such as happened must of necessity be conditioned upon these conclusions to be drawn from the evidence: first, that his association with the tracks and their surroundings was such that in the exercise of ordinary care he should haA^e known of the method of switching cars in said yard at night; and, second, that ordinary observation of the conditions by which he was surrounded Avould have disclosed to him the danger to be apprehended from such switching operations. After a careful consideration of the evidence, we feel that with respect to these questions reasonable minds might reach different conclusions, and that therefore they were for the jury to determine.

We can not say that his relationship to the transactions in that yard were so close and intimate as to make a denial of knowledge on his part in effect a denial of' a physical fact, which would warrant this court in substituting its judgment for the judgment of the jury.

But it is urged that notwithstanding his denial of knowledge, still his knowledge should be conclusively presumed as a matter of law because of the general rule of the company, which was known-to him, and which required a man or a light on ears being pushed by an engine, but especially excepted from the rule ears being so moved in yards, the claim being that this exception was in effect a notice to him that a man or a light on such ears in yards was not only not required, but should not be expected.

Notwithstanding the case of Swartwood v. Lehigh Valley Ry., 155 N. Y. Supp., 778, cited by plaintiff in error, which case sustains the claim above made, we can not subscribe to the proposition that as a matter of law, because said rules prescribed certain precautions to be taken in certain instances, they gave notice (by said exception) that the same precautions would not be taken in other instances.

Furthermore, we feel that there is good reason for saying that a rule that provides what shall be done “when cars are being pushed by' an engine” does not necessarily apply to a situation where detached cars are moved under the momentum of a kick from an engine. There is a manifest difference between a detached ear moving by the momentum of a kick and a moving car attached to an engine, for, in the latter instance, there is a means provided for stopping the car, while in the ease of the detached ear, unless there is a brakeman on the same, there is no means of stopping in ease of probable or possible injury, and for this reason we might well expect that it would not be intended that a rule applicable to one situation would necessarily apply to the other.- It seems to us that it could hardly be expected that a rule requiring attached cars being-pushed to be guarded, but excepting cars being so moved in yards, would necessarily and as a matter of law be notice that kicked ears in yards would not be so guarded.

On this subject the court charged the jury as follows:

“The plaintiff must be charged with a knowledge of said rules, and so I say to you that, as a matter of law, the plaintiff, when he went into the Buffalo Junction yards of the defendant on the night of December 30th, 1916, assumed the risks growing out of the application of said rules, with their exceptions.”

Under this charge the jury must have found that said rules not being applicable to the situation at the time of the injury, the implication of notice claimed for them was not justified.

Under the circumstances, and for the reasons indicated, we decline to overrule that finding of the jury.

We are the more readily led to this conclusion by a consideration of the development of the law as to assumed risk. When the principle of assumed risk was first promulgated, a single master, as a general rule, had but few servants, and they worked practically under the eye of the master or his agent, under such conditions and with such authority that to all intents and purposes the agent was the master.

When that principle came to be applied to industrial conditions, where servants in large numbers served one master, and worked some of them widely separated from each other, and under the direction of agents of varying authority, and far removed from the master, the wisdom of the rule began to be doubted. Then the unequal distribution of the burden of industry brought about by the application of the rule to modem conditions created further doubts as to the wisdom of the rule. In time these consideration led to the adoption by legislatures of the policy of modification, and, in many states, to the abolishment of the doctrine of assumed risk and to the enforcement of the policy in reviewing courts of non-interference with the findings of juries on questions of fact upon which depend the application of that doctrine, where the facts or the inference to be drawn therefrom are in dispute and have been fairly submitted to the jury.

This policy, whether wise or otherwise, has the sanction of the highest conrts of the land. McGovern v. Philadelphia & R. Ry., 235 U. S., 389 (59 L. Ed., 283; 35 Sup. Ct., 127) ; Great Northern Ry. v. Mustell, 222 Fed., 879; Roach v. Great Northern Ry., 133 Minn., 257 (158 N. W., 232); Lamb v. Pennsylvania Ry. 259 Pa. St., 536 (103 Atl., 296); Norton v. Maine Cent. Ry., 116 Me., 147 (100 Atl., 598) ; Falyk v. Pennsylvania Ry., 256 Pa. St., 397 (100 Atl., 961); and Indiana, I. & I. Ry. v. Bundy, 152 Ind., 590 (53 N. E., 175).

Judgment affirmed.

Grant and Dunlap, JJ., concur.

      Motion to require the Court of Appeals to certify the record in this case overruled by the Supreme Court, 'June 10, 1919.


author: Shields, J.

text:
    ACTION AGAINST A DEFAULTING GUARDIAN.
    Court of Appeals for Tuscarawas County.
    The State of Ohio, on Application of George W. Clark and Bertha Clark, vs. James M. McClelland, Guardian of George W. Clark et al.

    Decided, February 12, 1919.

      Sureties May be Sailed into Court by Wards — Without Determination Being First had of Amount of Guardian’s Default, When — Application of the Ten Years Statute of Limitations.

    1. Where a guardian has failed for a long period to file an account showing the condition of his trust, and his' wards are without knowledge as to the amount of money which has passed through his hands, and a summons issued for him at their instance on a citation to file an account is returned “not found,” application lies by the wards to the probate court for a citation against the sureties on the bond of the guardian as a preliminary step to enforce an accounting as to the amount of his default.

      2. The ten years statute of limitations on the bringing of suits on the bonds of guardians does not begin to run until the right of action accrues — that is from the filing of the final account, or an ascertainment as to the amount unaccounted for by the guardian.
    S'. 1. N. Stafford and Welty & Burt, for plaintiff in error.

      W. V. Wright, contra.

       Affirmed by the Supreme Court, McClelland, Guardian, v. State ex rel, January 27, 1920.

   Shields, J.

It appears by tbe record herein that on March 16, 1893, the defendant in error, James McClelland, was duly appointed guardian of the persons and estates of the relators, George W. Clark and Bertha Clark, minors, 'by the probate court of Tuscarawas county, Ohio; that a bond in the sum of $150 was then given by the said McClelland as such guardian with the defendants in error. David "Whitmire and Henry Centavin as sureties thereon, and that an additional bond in the sum of $500 was given by him as such guardian in the year 1895, by order of said probate court, with the defendants in error, Herbert A. Wright and Lyman Hardman as sureties thereon; that at the time of said appointment the said George W. Clark was ten years of age, October 3, 1893, and the said Bertha Clark was seven years of age, May 5, 1893, both of whom were then entitled to receive a pension from the United States Government, and which fact was entered of record in said probate court at the time of said appointment; that no account has been filed by the said McClelland as such guardian from the time of his said appointment; that on January 2, 1918, a citation was issued by said probate court to the said McClelland as such guardian to file an account of his guardianship in said court upon a date therein named, and a summons was thereupon issued upon said citation for him directed to the sheriff of Cuyahoga county, Ohio, which was returned indorsed “not found”; that afterward and on February 8, 1918, an application for a writ of citation to issue against the said Herbert A. Wright and Lyman Hardman, sureties as aforesaid, was filed in said probate court to file an account in the matter of said guardianship, when the said Hardman filed an answer to said application setting up, among other things, the following:

“This defendant further says that the older of said wards, Bertha Clark, became of full age on the 5th day of May, 1899, and that the younger of said wards, George W. Clark, became of full age on the 3rd day of October, 1904, and that as the time for filing the said application for a writ of citation did not accrue within ten years next preceding the date, of filing the same, the said application is therefore barred by the lapse of time and the statute of limitations in such case made and provided.”

And that upon a hearing had upon said application to issue said writ of citation said probate court held:

That the said application and motion on the part of relators to procure an accounting at this late date is barred by lapse of time and the statute of limitations in such ease made and provided, and it is further ordered and decreed that the several applications and motions heretofore filed in this court by the said relators requiring and demanding an accounting of said guardianship be and the same are hereby dismissed at the cost of said relators.”

Error was prosecuted to the common pleas court of said county from said judgment, which said court affirmed said judgment of the probate court, not, however, upon the ground that said relators were barred by the statute of limitations, but because said application was open to the objections that it did not definitely state the amount then due and owing to said relators by said guardian so that said probate court, if it found it necessary to render a judgment, might do so for the amount appearing due in the application made. A petition in error was thereupon filed in this court to reverse said judgment.

The facts in the ease are not disputed. If the action here was an action to compel the sureties on a guardian’s bond to account for a default made in the payment of trust funds by a guardian, the law is well settled that before such action could be maintained there must be a finding and adjudication by the probate court of the amount due on final account to be filed by the guardian. Newton v. Hammond, 38 O. S., 430.

But the view we take of the question made by the record before us does not involve the preliminary steps necessary to be talien for suit against the sureties on this bond, but relates solely to the legal right of the relators to file an application for a writ of citation to issue against the sureties on said bond to account for the default of said guardian. Failing to get service of process on the guardian, resort was had to proceedings instituted against the sureties, and it was upon the commencement of such proceedings, namely, the application filed for a citation to issue against the sureties that the right of the relators is challenged — challenged by an answer filed by one of the bondsmen wherein he pleads the statute of limitations as a bar against the right of the relators to have such writ issued.

As already indicated, the probate and common pleas courts appear to have entertained widely divergent views of this case, the former holding that the statute of limitations operates as a bar, the latter holding that it does hot,.but rests its affirmance of the judgment by the former on other grounds. Under the general powers incident to the jurisdiction conferred on probate courts in the matter of guardian accounts and the duty enjoined upon such courts by law to guard and protect the interests of minors, we do not incline to the opinion that a case where such interests are endangered by a long continued violation of duty on the part of the guardian that such courts are not authorized to act upon an application filed for a writ of citation to issue for such guardian to account, unless said application shows the amount appearing to be'due from said guardian under said trust. We think that the application is but a preliminary step to enforce such accounting and that a statement of the fact that the guardian is or has been delinquent of duty is sufficient. As was said by Judge Mcllvaine in announcing the opinion of the court in the case already cited when discussing the powers of probate courts and the duties of guardians,

“all these considerations show the wisdom and propriety of the rule which requires the settlement of guardians’ aecotmts by the probate court, which, for that purpose, possesses all the powers of a court of equity, instead of a jury, which does not possess such facilities.”

Here it appears that the guardian never filed any account since his appointment and it was not known to the relators, nor had they any means of knowing at the time said application was filed of the amount of pension money collected by him for his said wards. In the application made for the appointment as such guardian by said McClelland, who made oath to the same, the statement therein shows that the property of said wards “consisted of an interest in a pension claim, the value of which is indeterminate.” Hence in view of what the record shows they were not then advised of the status of said guardian of said trust in respect to the amount of pension moneys collected by him and with which he was chargeable as such guardian.

We think that said probate court was also in error in dismissing said application. Section 11226, G-. C., provides that,

“An action on an official bond, or undertaking of an officer, assignee, trustee, executor, administrator, or guardian, or on a bond or undertaking given in pursuance of statute, shall be brought within ten years after the cause thereof accrued.”

In the case of Newton v. Hammond, already cited, it was held that,

“A right of action on a guardian’s bond to recover from the sureties the amount remaining in the hands of the guardian, first accrues to the ward when such amount is ascertained by the probate court on the settlement of the guardian’s final account.”

And in the opinion of the court in said ease it was said “that an accounting must precede judgment is clear from the fact that the amount of the judgment can not otherwise be ascertained.” The reason for this statement requires no elucidation for it is evident that until a finding is made by the court of the amount due under his final account filed, there can be no way of ascertaining the liability of Ms sureties. It is then that the right of action first accrues. But the sureties make reply and say that the statute provides that unless suit is brought within ten years, etc., they are discharged from liability. But the same statute likewise adds “after the cause thereof accrued.” It is not difficult to understand that there may be cases where the neglect of duty by a guardian may entail- liability upon sureties, but it must be remembered that such risk is incurred by the relation they voluntarily see fit to assume. And in this case it may be said that if these sureties had cause to apprehend loss through the neglect or failure of a guardian to perform duty, the law afforded them an opportunity to protect themselves. They are not permitted to sign a bond and thereby say to the court and those interested in an estate that they will be answerable for the conduct of a guardian who later on may be found to -be derelict of duty, and then escape liability on their bond, unless it is made to appear that they are clearly entitled to the benefit of the statute referred to. Probate courts were established to protect the estates of orphans. It is in a certain sense a trustee designated by the law to look after and protect the interests of the living and dead, and in a rigid and faithful execution of the duties of said office by the incumbent thereof is the only hope of a trusting public. Under the law the probate judge is the person who appoints the person or persons to administer estates;' he is the person who fixes the amount and passes upon the sufficiency of bonds to be given for the faithful performance of the trust; and he is the person whom the law designates as the person to see to it that all duties devolving upon guardians under the law are-faithfully carried out, either with or without complaint first made. Section 10939 provides,

‘ ‘ The court by which a guardian is appointed, shall' enforce the return, at the prescribed times of all inventories and accounts required to be filed therein by him, and enforce the performance of all other duties devolving upon guardians appointed by it, either with or without complaint first made; and thereupon make and enter such judgments and orders as are requisite in any case to promote the faithful and correct discharge of such duties, or to preserve the estates of minors for whom guardians were appointed.”

“With or without complaint first made.” Charged by the law with the supervision of estates as he is, and “to preserve the estates of minors for whom guardians were appointed,” it would seem that a duty rests upon the probate judge in cases like the one under consideration, and if such view is correct, ought minors of tender years pay the penalty of such failure of duty in later years? The above statute is cited simply to illustrate the solicitude shown by the law and the care required by it in the administration of estates of minors. The statute is both a humane and just one, and when such estates are taken over and given into the charge and control of others, the latter should be held to a strict account in performing a ‘ ‘ faithful and correct” discharge of duty, and the sureties of such person or persons pledging, as they do, their property for such discharge of duty, should be held to the letter of their suretyship contract.

Counsel for defendants in error argued and cited in his brief cases wherein it is held that the limitation of suit on an administrator ’s bond is fixed at ten years from the time action accrues, which under the application of the rule laid down by the Supreme Court in this state, as we interpret it, is ten years after a final account is filed when the statute of limitations begins to run, and not till then. While it is unnecessary to here state that the statutes in all jurisdictions pertaining to the administration of estates, including the limitation of time in which suits may be had on bonds of administrators and guardians are not the same, and while the statutes of this state have undergone change in this respect by amendment from time to time and the powers of .probate courts enlarged, we are of the. opinion that the proceeding instituted in the probate court to compel an accounting by these sureties was a proper exercise of the powers incident to the jurisdiction conferred by law on probate courts, and that said court erred in dismissing said proceeding for the reasons hereinbefore stated.

The judgment of the court of common pleas in affirming the judgment of the probate court will be reversed and said cause will be remanded to said probate court for further proceedings.

Houck and Patterson, JJ., concur.


text:
    VALIDITY OF AN EXCESSIVE VERDICT PURGED BY REMITTITUR.
    Court of Appeals for Cuyahoga County.
    Cleveland Ry. v. Burianek.
    Decided, July 7, 1919.

      VeriMct — Adverse Party Can Not Complain — Because of Elimination of Excess dy Remittitur, When — Presumption as to Regularity of the Action of the Trial Court.

    1. Where a verdict is not a matter of computation but of opinion, if such verdict is excessive and appears to have been given under the influence of passion or prejudice, a new trial should be granted; but where such verdict, though excessive, is not a result of pas-sion or prejudice, the party against whom the verdict is rendered can not be heard to complain if the trial court, with the consent of the party in whose favor the verdict is rendered, reduces the amount of the verdict and renders judgment for a less amount.
    2. Where the plaintiff’s right to recover is fully and clearly established and the trial court expressly finds that an excessive verdict was not the result of passion or prejudice, and it appears that such verdict was purged of its excessive character by a remittitur in the trial court, and there is no evidence from which such unworthy influence might he reasonably inferred, except the amount of the verdict, a reviewing court will indulge every presumption in favor of the finding of the trial court and will not reverse such finding, unless the verdict was so large and disproportionate to the injuries as to shock all sense of proportion.
    Error.

      Squire, Sanders <& Dempsey, for plaintiff in error.

      Payer, Wirich, Minshall & Karsh, for defendant in error.
   Washburn, J.

Defendant in error, Charles Burianek. sued the plaintiff in error, The Cleveland Railway Company, for injuries suffered by him while a passenger upon one of the cars of the company, which was derailed and came into collision with another car under circumstances which fully warranted the jury in finding that the company was liable for whatever injuries were received by said Burianek in said derailment and collision.

The verdict was for $27,000.

The trial court found the verdict to be excessive, but expressly found that the jury was not influenced by passion or prejudice, and, upon a remittitur being entered by Burianek in the sum of $12,000, tire motion for new trial filed by the com pany was overruled and a judgment rendered for the sum of $15,000.

It is urged that the trial court should have granted a new trial, and committed error in not doing so. This is the chief error relied upon, and we do not deem it necessary to say anything in reference to the other alleged errors complained of, except that we find that the case was fairly submitted to the jury, that the charge considered as a whole w'as free from error, and that the facts fully justified a finding of liability'' on the part of the company.

In eases of this kind where the verdict is not a matter of computation, but of opinion, we take it to be settled in this state that if the verdict was materially excessive, and appeared to have been given under the influence of passion or prejudice, the trial court was without power to substitute its opinion for that of the jury, and enter judgment thereon, and in that event it should have granted the motion of the company for a new trial.

Under our statute the presence and influence of passion or prejudice, in producing an excessive verdict, vitiates the verdict as a whole, and the court can not validate or save any part of it against the objection of either party.

If, however, the verdict, though excessive, was not the result of passion or prejudice, the party against whom the verdict was rendered can not complain if the trial court, with the' consent of the party in whose ‘favor the verdict was) renderecl, reduces the amount of the verdict and renders a judgment for a less amount.

Indeed, in such a ease, where no passion or prejudice appears, but where in the opinion of the trial court the verdict is materially excessive, the court, in the exercise of a sound discretion, may make a remittitur of the excess a condition for refusing a new trial. Pendleton Street Ry. v. Rahmann, 22 Ohio St., 446. See also Brenzinger v. American Ex. Bank, 19 C. C., 536, 540, and Carl v. Pierce, 20 C. C., 68.

This right of the trial court to make a remittitur a condition for refusing a new trial, which is established by Street Ry. v. Rahmann, supra, was recently approved by the supreme court in Ohio Traction Co. v. Shearer, 97 Ohio St., 332 (120 N. E., 878), the record and briefs of which we have examined, in which ease the court exercised such discretion, and the supreme court affirmed the judgment on authority of Street Ry. v. Rahmann, supra.

This rule which we regard as established by authority is supported by principle; the trial judge is not a mere umpire; he is charged with the duty of seeing that justice is administered, and he should not be required to render judgment for an amount which is plainly and materially excessive merely because he does not find that the verdict was inspired by the unworthy motives of passion or prejudice. Tie is called upon to exercise a sound discretion, but his granting a new trial is not a' final determination of the rights of the parties; he renders no judgment, but finding that the trial has plainly resulted in a palpable miscarriage- of justice, he orders that another trial be had. There was a time when the defeated party was given a second trial as a matter of right, but now, except for those causes for which the trial court is required by statute to grant a new trial the matter is governed by the sound discretion of the trial judge, and his action in granting a new trial is not reviewable by the higher courts. Conord v. Runnels, 23 Ohio St., 601, and Smith v. Bucyrus (Bd. of Ed.), 27 Ohio St., 44. See also Brenzinger v. American Ex. Bank, 66 Ohio St., 242 (64 N. E., 118).

The statutes set forth certain causes for which the trial judge must grant a new trial, and if a statutory ground for a new trial exists and the trial judge fails to grant a new trial his action may be reviewed and his error corrected by the higher courts: if an excessive verdict is caused by passion or prejudice, he must grant a new trial; but if no passion or prejudice exists, but the verdict is plainly, unmistakably and materially excessive, he may grant a new trial if the prevailing party refuses to make a proper remittitur. This does not mean that a trial judge should act arbitrarily: he should recognize, of course, that individual opinions are eccentric and uncertain ; that the money value of personal wrongs can have no exact standard of measurement; and that when measured by the opinion of a jury public policy demands that such verdict be not disturbed unless it is plainly and unmistakably excessive or some statutory ground for a new trial exists.

This discretionary power vested in the trial judge, not to substitute his opinion for that of a jury and render final judgment, but merely preserving all of the rights of the parties to require them to l’etrace their steps in the same court, is recognized as an inherent power vested in him because of his knowledge, experience, and training, and his intimate familiarity with every phase of the trial, he having the opportunity of seeing the injured party and the witnesses and hearing them testify and being in the best possible position to form an opinion in the light of his experience and knowledge, which includes a knowledge of the opinions of other jurors in similar cases.

After the trial judge has exercised this discretion and refused a new trial and entered judgment, the power of the reviewing court over that judgment, cases of this character, is controlled by the Constitution. The reviewing court not having the opportunity of seeing the parties and witnesses and hearing them testify, and of knowing all the incidents of the trial known to the trial judge, but which can not be .spread upon the r-ecord and exhibited to the reviewing court, in order to reverse the trial court on the ground that the verdict was excessive must find that the verdict was not only excessive but that it appears to have been given under the influence of passion or prejudice.. We can not reverse merely because the verdict is, or before remittitur was, excessive, nor does the excessiveness of the verdict, in this class of cases, authorize this court to modify the judgment or make a remittitur a condition of an affirmance of the judgment. In a recent case, Toledo Rys. & Light Co. v. Paulin, 93 Ohio St., 396 (113 N. E., 269), our supreme court, having in mind that this is a reviewing court, which acts upon a printed record without the opportunity of the trial court and jury to see the witnesses and hear them testify, and not in a position to judge of their credibility, held that we could not substitute our judgment for that of the jury. The law on the subject is stated in that case, at page 400, as follows:

“If the court of appeals from an examination of the printed record may weig'h the evidence, which involves also the determination of the credibility of the various witnesses, and therefrom reach a conclusion as to the nature and extent of the injuries suffered by plaintiff and fix the amount of money which, in its opinion, will reasonably compensate him for his loss, the court will have usurped the functions of the jury. Time and money will have been uselessly expended in trying the case to the jury if these controlling questions of fact are not to be there settled but are to be considered and determined by the reviewing court.
“Under the provisions of the constitution cited in the entry of the court of appeals a judgment can not be reversed upon the weight of the evidence except by the concurrence of all the judges, and in that event the case must be remanded for a new trial. Though all the judges concur in a finding that a verdict is against the weight of the evidence, the reviewing court is not authorized to render final judgment, nor is it authorized, from a consideration of the weight of the evidence, to enter a judgment different in amount from the judgment reviewed.
“If the verdict is found to be excessive, appearing to have-been induced by passion or prejudice, it is the duty of the reviewing court to reverse and remand for a new trial. The province of the jury is invaded if, instead of so doing, the judges of the reviewing. court substitute their own verdict for the verdict of the jury. ’Surely there is manifested in the eonstitutional provision above cited no purpose to confer any power upon the reviewing court that would lead to such a result. ’ ’

It does not necessarily follow, however, where a remittitur is voluntarily entered in this court, that we may not modify the judgment accordingly', and affirm the judgment as so modified, in case we do not find that the verdict was the result of passion or prejudice.

In the case at bar the trial court expressly found that the verdict was not influenced by passion or prejudice, and therefore the sole question for us to determine is whether or not the court erred in so finding. If the court did err in so finding, then the case must be reversed. The record does not disclose anything occurring at the trial which indicated or was calculated to excite passion or prejudice, but the claim is made that passion or prejudice is inferable from the magnitude of the verdict alone, because upon a consideration of all the facts and circumstances the verdict of $27,000 can be accounted for rationally only as having been returned under the obnoxious motives mentioned.

That the plaintiff below was seriously injured was not controverted by the evidence. Although he was examined by physicians for the company, said company offered no testimony whatever on the subject of injuries or damages, and this, together with the fact that the record discloses that there was an unfriendly feeling between some of the physicians who testified for the plaintiff, justifies the inference that the plaintiff probably did not exaggerate his injuries or consequent damages.

Where the plaintiff’s right to recover is fully and clearly established and the trial court expressly finds that an excessive verdict was not the result of passion or prejudice, and it appears that such verdict was purged of its excessive character by a remittitur in the trial court, and there is no evidence from which such unworthy influence might be reasonably inferred, except the amount of the verdict, a reviewing court will indulge every reasonable presumption in favor of the finding of the trial court and will not reverse such finding unless the verdict was so large and disproportionate to the injuries as to shock all sense of proportion and necessarily show the existence of such invalidating influence. Pittsburg, C. C. & St. L. Ry. v. Sheets, 34 O. C. C., 642 (15 N. S., 305), and Spear & Co. v. Fulton, 3 Ohio App., 40; 40 O. C. C., 635 (21 N. S., 557). See also Douglas v. Day, 28 Ohio St., 175.

From ^ consideration of the whole record, we find that while* the verdict was large it was not so disproportionate to the injuries as to necessarily imply that it was the result of passion or prejudice, and we therefore find that it was not error for the trial judge to overrule the motion for a new trial, and that there was no abuse of discretion in the exercise of the power of the trial court which resulted in a reduction of the amount of the verdict.

Judgment affirmed.

Dunlap and Vickery, JJ., concur.

      Motion to require the Court of Appeals to ceritfy its record in this case overruled by the Supreme Court, November 27, 1919.


author: Jones, P. J.

text:
    NECESSARY DECLARATION BY COUNCIL IN ORDERING A PUBLIC IMPROVEMENT.
    Court of Appeals for Warren County.
    Robert A. McCutcheon vs. The Village of Franklin, Ohio, et al.
    Decided, May 25, 1917.

      Construction of Section 3812 as Amended — Approval of Specifications, Plans and Estimates — Discretion in Letting Contracts — Alternative Bids on Different Materials — Authority of Council, in Eixing Amount of Bonds to he Issued for an Improvement, to Limit Other Expenditures.

    The requirement found in amended Section 3812 that, in authorizing an improvement, council shall find and declare not only the necessity therefor hut also that it will conduce to the public health, convenience, or welfare, has reference to the improvement of ditches, etc., as specified in the amendment, and not to the numerous street, alley, sidewalk, curb and other improvements provided for in the section as it stood in its original form,

      Gaynor é Harding, for plaintiff.

      Arthur Bryant and Ben Harwitz, contra.
   Jones, P. J.

Plaintiff seeks an injunction, as a taxpayer; against the village of Franklin and its mayor and clerk from entering into a contract for the improvement of certain parts of Park avenue, Center, Front and Second streets in said vlilage, from proceeding with said improvements, or issuing bonds to pay for any part of the cost thereof.

The case was heard on appeal in this court. A number of reasons are urged why the proceedings of the village and the letting of the contract for said improvements are irregular and contrary to law:

1. It is first contended that Section 3812, G. C., as amended April, 1910 (101 O. L., 134), requires a finding and declaration by council not only of the necessity of such improvement, which is required under Section 3814, G. C., but also that such improvements are conducive to the public health, convenience or welfare; otherwise, that no assessment can be levied for the cost of said improvement.

The language that was inserted in Section 3812 by the amend-' ment of April 10, 1910, above referred to is relied upon for this contention. The new language inserted by that amendment in Section 3812 is as follows:

“and any part of the cost and expense connected with or made for changing the channel of, or narrowing, widening, dredging, deepening or improving any stream or watercourse, and for constructing or improving any levee or levees, or boulevards thereon, or along or about the same, together with any retaining wall or riprap protection, bulkheads, culverts, approaches, flood gates or waterways or drains incidental thereto, which the council may declare conducive to the public health, convenience or welfare” * * *.

It will be observed by an examination of Section 6443, G. C., relating to county ditches, and Section 6612, G. C., relating to township ditches, that the purpose of this amendment was to permit the improvement of water courses, ditches and drains and the appurtenances thereto in a manner similar to county and township ditch improvements, and that the declaration that such improvements were conducive to public health, convenience or welfare has always been embraced as an essential in the ditch law; and in the opinion of the court the intention of the Legislature in this amendment to Section 3812, G. C., was to require the declaration that such improvement would be conducive to the public health, convenience or welfare, to apply only to such improvements as are included in the new language imported into the section by this amendment, and not in any way to apply to the numerous improvements provided for in that part of the section as it existed before the amendment.

2. It is contended- that no plans, specifications, estimates and profiles for the proposed improvement were prepared or approved by council at the time of the passage of the resolution declaring it necessary to improve said streets. The recital embraced in section 3 of the improvement resolution, a copy of which was offered in evidence, is in itself sufficient to refute this claim. Said resolution to improve was passed April 17, 1916, and bears the signature of both the mayor and the clerk. Section 3 thereof is as follows:

“That the plans, specifications, estimates and profiles of the proposed improvements heretofore prepared by the engineer of said village and now on file in the office of the clerk thereof, be, and the same are, hereby approved.”

There was, however, considerable testimony offered on the subject of the approval of the specifications. The. original specifications as prepared by the engineer are in evidence. The mayor testified that he saw no copy of the specifications as approved until bids were submitted by the bidder. The clerk testified that plans and specifications for these improvements were not on file on April 17; but he admitted in his testimony that he never marked specifications with the date of filing or approval as his duties as village clerk would require; and he further admitted that he gave to the village attorney the original specifications two or three days after the council meeting, for the purpose of permitting exact copies to be made by the attorney and the engineer for the use of bidders; and he fails to explain where he got these original specifications unless they were left with him at the council meeting. On the other hand, the engineer testified that the original specifications, plans, profiles and estimates were prepared by him and were brought to the council meeting and submitted to council — being laid upon the table in front of the clerk on the evening of April 17, prior to the reading and passage of the resolution declaring the necessity of said improvements. His testimony is supported by that of four members of council and also by that of the village attorney. The further fact appeared from the testimony of one member of council as well as that of the attorney, that the resolution declaring the necessity of the improvement had been prepared by the attorney and was ready for introduction at a previous meeting of council, about two weeks before that of April 17, and that it was not then introduced for the reason that the attorney advised council that the law required that the specifications should be prepared and approved before the passage of the resolution.. This requirement is found in Section 3815, G-. C. The resolution declaring the necessity of the improvement as provided by Section 3814, G. C., has been held to be a condition precedent to the levy of a valid assessment for a street improvement. Wilkin v. Porter, 18 O. S., 85; Stephan v. Daniel, 27 O. S., 527, 531.

The original specifications are prepared upon printed blank forms, with some pen and ink changes and some typewritten changes, sections written out and pasted over printed sections, and some blanks are filled in with lead pencil. Their condition is far from complimentary to the engineer who prepared them. The copies which were prepared for the use of bidders are not in all respects the exact copies of the original; but under the terms of the bid, the original specifications would bind where any discrepancies appear. The only important discrepancy noticed, between the form used by the successful bidder and the original adopted by council, is in relation to the proportion of gravel required in the concrete. This in the original is six parts, while in the copy bid upon it is seven parts. However, as before stated, in case of any discrepancy the original specifications control.

The village has no municipal office open other than at council meetings, and has limited facilities for carrying on the necessary clerical work connected with its matters, but the proceedings in regard to this letting seem to have been had with a carelessness considering the cost of the improvements and the importance of the work, that subjects the public officials to merited criticism. However, the court finds, upon a consideration of the evidence, that the specifications, plans, profile and estimates were duly approved by council as part of and concurrent with the adoption of the resolution declaring the necessity to improve these streets.

3. It is further contended that the specifications and advertisement did not specify any particular kind of brick to be used in the pavement of these streets, but that bids were taken upon several kinds, and the particular brick to be used was selected at the time of the award of the contract.

We find no inhibition in the law against this mode of procedure. On the contrary, it has been upheld in the cases of Scott v. Hamilton, 7 C. C. (N. S.), 496, and Tucker v. Newark, 19 C. C. 1; and our own court has sustained alternative bids on different materials and methods of construction in the awarding of the contract for the building of the Hamilton county court house, in State, ex rel, v. Green, 22 C. C. (N. S.), 1.

4. Another objection is that the contract was not let to the lowest bidder.

The statute under which the letting was made, Sections 3833 and 4.328, authorizes the letting “to the lowest and best bidder.” The evidence shows that Bigler Bros., to whom the award was made, were not the lowest bidders. But it has frequently been held that in the absence of allegations of fraud and collusion —which are not charged in plaintiff’s petition — courts will not interfere with the exercise of discretion by public officers in determining who is the lowest and best bidder. This rule is so well settled in Ohio that it is hardly necessary to cite cases. State, ex rel, v. Bd. Pub. Service, 81 O. S., 218, 225; State, ex rel, v. Commissioners, 63 O. S., 440; Scott v. Hamilton, 7 C. C. (N. S.), 493; Yaryan v. Toledo, 8 C. C. (N. S.), 1; Coppin v. Herman, 6 N. P., 452 (Aff’d 63 O. S., 572).

5. Another objection, and the last which is necessary to notice, is that the making of these improvements would require bond issues by the village of Franklin in excess of the amount authorized by law.

A careful consideration of the evidence shows that there is no question but that authority lies in the council, if it so desires, to issue the necessary bonds without exceeding the limitation fixed by law, even though it may become necessary to reduce some other expenses, although that necessity is not apparent from the evidence before us.

The finding of the court is therefore in favor of the defendant, and plaintiff’s petition is dismissed at his costs.

Gorman and Hamilton, JJ., concur.


author: Richards, J.

text:
    EFFECT OF FAILURE TO FILE MOTION FOR A NEW TRIAL IN TIME IN PERSONAL INJURY CASE.
    Court of Appeals for Cuyahoga County.
    Kinkade, Richards and Chittenden, JJ., of the 'Sixth District, sitting by designation.
    Chapek v. City of Lakewood.
    Decided, April 19, 1919.

      Motion for a New Trial — Where Not Filed Within Statutory Time— Court of Appeals Without Jurisdiction to Consider Weight of the Evidence in Personal Injury Case.

    The court of appeals has no power in an error proceeding to consider the weight of the evidence on a judgment rendered on a directed verdict for the defendant in a personal injury case, where no motion for a new trial was filed within the statutory time, even though the defendant offered no evidence and the only evidence showing the circumstances of the plaintiff’s injury was his own testimony.
    P. J. Mulligan and J. P. Kalmctj for plaintiff in error.

      B. G. Curren, contra.
   Richards, J.

Heard on error.

This action was commenced for the purpose of recovering damages for personal injuries, the plaintiff claiming that the city negligently left across a street an open trench into which he drove with a horse and delivery wagon. At the close of the plaintiff’s evidence the trial court directed the jury to return a verdict for the defendant on the ground that the evidence showed that the plaintiff was guilty of negligence directly contributing to his own injury. This verdict was returned on Friday, January 19, 1919. A motion for a new trial was filed, but not until the following Tuesday, which would not be within the time required by statute.

It is, however, insisted by counsel for plaintiff that no motion for a new trial was necessary. This argument is based on the contention that no evidence was offered on behalf of the plaintiff showing the circumstances of his injury, except his own testimony, and, the defendant not having offered any evidence, that which was offered by the plaintiff amounted to the conceded facts of the case and it only remained for the trial court to apply the law to those facts.

It was said in the case of Weaver v. Columbus, S. & H. V. Ry., 55 Ohio St., 491, 494, that the statutes do not expressly prescribe the conditions under which a motion for new trial is neeessary and that the question depends upon a judicial interpretation and construction of various statutory provisions. These provisions are contained in Secs. 11564, 11576, 11578 and 11579, G. C.

In a case entitled “In the Matter of the Estate of Hinton, Deceased,” 64 Ohio St., 485, there was an agreed statement of facts, and the court say that all that was necessary was for the court to apply the law to the conceded facts, and that as there was no evidence to be weighed or considered, the only question being whether the court rendered the right judgment upon the agreed facts, a motion for a new trial was not necessary. Other similar illustrations may be found in the reports. We can not, however, apply the rule thus announced to the situation disclosed in the present case. An agreed statement of facts contains or should contain the facts rather than the evidence, while in the case at bar we do not have the agreed facts, but merely the testimony of the plaintiff, which must be weighed and considered in order to determine what the ultimate facts are, and in such a case a motion for new trial is necessary.

The injury to the plaintiff occurred in the daytime, and his testimony tends to show that he had full knowledge of the existence of the trench, partly filled with earth, and that there was some snow and slush in the trench, but that he did not know that the earth under the slush was soft. His horse stepped into this opening, and, sinking down, became frightened, thus causing the injury. The court would be required to determine from the plaintiff’s testimony whether under the circumstances disclosed he would or would not have an equal opportunity with the city to know the precise condition of the trench at the time of the injury and whether he was guilty of contributory negligence. This all involves a weighing and consideration of the testimony, which is entirely different from applying the law to conceded or agreed facts.

It is said in 1 Jones’ Commentaries on Evidence (1913 ed.), Section 10a, that it is a strange thing that “fact” and “evidence” have sometimes been used synonymously; and in the same section we find the following language clearly showing the difference between “fact” and “evidence”:

“We ascertain the existence of a fact by means of evidence. The evidence, and each item thereof, are, in a certain sense, facts. But the different items of the evidence are not necessarily such facts as call in operation the law. It is the proof— the facts resulting from the evidence — that invoke the law. It is the chief purpose of a judicial inquiry to ascertain the probative or ultimate facts. The application of the law to them follows as a necessary incident.”

The issues in this case involve negligence and contributory negligence and evidence was introduced by the plaintiff which bears on both issues, but he contends it did not justify the court in directing a verdict.

The question as to when a motion for a new trial is necessary is quite -fully discussed in Kinkead’s Ohio Civil Procedure, Secs. 848, 849 and 850.

We are of opinion that a motion for a new trial was necessary in this case, and none having been filed within the statutory limit we are unable to consider the evidence set forth in the bill of exceptions.

Judgment affirmed.

Kinkade, J., I concur only in the judgment of affirmance.

Chittenden, J., concurs.