text:
    LIABILITY OF MUNICIPALITY FOR DAMAGES CAUSED BY ESCAPING SEWAGE.
    Circuit Court of Cuyahoga County.
    Mary Krazeweski v. The Village of Berea.
    Decided, November 12, 1906.

      Res Adjudicata No Bar Unless Issues Ar,e Identical — Nuisance—City Liable for Maintaining Defective Sewer.

    1. In an action for nuisance the issue of res adjudicata is not raised by averments that the property involved and the nuiSances complained of are identical with those involved in a former suit without averment of the identity of issues joined.
    2. A municipality is liable in damages for mantaining a defective sewer in such condition that sewage is allowed to seep or percolate through the subsoil, and into the cellar of an adjoining property owner.

      BlancUn, Bice & Ginn, for plaintiff in error.

      A. W. Lamson, contra.
    Henry, J.; Winch, J., and Marvin, J., concur.
   In this proceeding in error the parties stand as they stood below. The action there (wherein a verdict for the defendant was directed) was for damages for injury to plaintiff’s dwelling and to her enjoyment thereof, because of sewage seeping into her sub-cellar from a faulty sewer of the village of Berea in the street opposite her premises. A second cause of action likewise complains of foul odors from the neighboring open mouth of' said sewer and the deposit therefrom which lodges on a shelf of rock between it and the river below.

The answer denies that the sewer is faulty and denies that plaintiff has suffered injury therefrom. It avers also that plaintiff acquired title to the premises shortly before the eommenoement of her action, having, however, with her husband and children, for many years before, occupied said property, in the same condition as that in which it has since been and now is; that during that period her husband, as head of the family and with her connivance, had commenced two actions for damages for injury to their possession and enjoyment of said premises by the same alleged nuisances as are complained of now, and that both said actions were, to the knowledge of plaintiff when she acquired the said title, “fully decided and determined against the claim and contention” as made by her husband.

The reply alleges that the former litigation related to the family’s possession and enjoyment of the property and not, as here, to the fee; also that plaintiff was then the equitable and beneficial owner of the property, having only recently acquired the legal title, but without being successor in title to her husband.

With respect to the matters last mentioned, it is enough to say, first, that the wife is shown to have been the real owner of the property ever since the alleged nuisance arose, and, secondly, that whatever might be the merits of a proper plea of former adjudication, no such defense is presented on this record. The identity of the nuisances and of the property involved in these three suits is averred, but not the identity of issues joined (Koelisch v. Mixer, 52 O. S., 207, 211). We therefore say nothing about the further questions of identity of parties and of subject-matter.

We see no reason why the court should have excluded evidence or directed a verdict with respect to the second cause of action alleged in the petition below, unless it was on the assumption that there had been a former adjudication of that matter. This reason, as we have indicated, is not well founded and the evidence excluded at pages 15 and 21 of the bill of exceptions should have been admitted.

As to the first cause of action, it is contended by counsel for the village that no defect in the sewer has been proved, and, at all events, that no causal connection is shown between the alleged faults in the sewer and the flooding of plaintiff’s sub-cellar. But evidence was offered of a stream of water entering the cellar through a hole made by thrusting a bar horizontally into the soil towards the sewer when the mouth thereof was choked with ice, and of the instant subsidence of that stream when the ice was removed. This event, it is true, occurred more than four years before the commencement of this action, and henee without the period for which damages for a continuing nuisance may be recovered (Railway Co. v. O’Harra, 50 Ohio State, 667, 679). But it was perfectly competent for the plaintiff to show that the sewer had previously occasioned similar damage, for the purpose of proving that the same cause thereafter might, probably have produced the like effect (Brewing Co. v. Bauer, 50 O. S., 560). It was of course necessary to show further that the condition of the sewer remained unchanged. It follows that the court erred in excluding the evidence tendered at page 35, of the incident just referred to, for its tendency was to show that the sewer was in some way defective so as to permit the escape of sewage through the soil towards plaintiff’s cellar. 5 Thompson’s Commentaries of the Law of Negligence, Section 5894.

But it is said on behalf of the village that the mere percolation or seeping of sewage through the soil to and into another’s premises is not an actionable wrong, for the rule is analogous to that of the interception or diversion of percolating natural waters. This question is, however, expressly reserved in Elster v. Springfield, 49 O. S., 82, 94, and 101, and the clear weight of authority is against the contention made. Mears v. Dole, 135 Mass., 508; Beatrice Gas Co. v. Thomas, 41 Neb. 662; Wheatley v. Baugh, 64 Am. Dec., 729; Kinnaird v. Standard Oil Co., 89 Ky., 468.

It is, however, the settled law that where a municipality brings either sewage or surface water and casts it upon another’s land where it would not of itself naturally flow, it must ordinarily answer in damages therefor. The rule and its limitations are clearly shown in Gilluly v. The City of Madison, 63 Wis., 518; Barry v. The City of Lowell, 90 Mass., 127, and Cincinnati v. Penny, 21 O. S., 500.

For the error in excluding the evidence offered at pages 15, 21 and 35, and in directing a verdict for the defendant the judgment below is reversed and the cause remanded.


source: Caselaw Access Project

license: Public Domain

text:
    PROSECUTIONS UNDER. THE J ONES LAW.
    Circuit Court of Cuyahoga County.
    In Re Hearing on Petition Filed on the 31st Day of October, 1906, Before Hon. Tom L. Johnson, to Prohibit the Sale of Intoxicating Liquors.
    Decided, January 14, 1907.
    . Intoxicating Liquors — “Jones Law” Constitutional — Practice—Bill of Exceptions, How Perfected- in Mayor’s Court.

    1. The “Jones law” providing for local option in residence districts is a valid exercise of legislative power and is constitutional.
    2. In proceedings under the “Jones law,” bills of exceptions in a mayor’s court must be taken pursuant to the provisions of Section 6565, Revised Statutes, and must be presented to the mayor for allowance within ten days.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This proceeding in error is brought to review the decision of the mayor of the city of Cleveland, .wherein he held a petition filed under the Jones law to be sufficient. Among the papers filed here is a document purporting to be a bill of exceptions, presented to and signed by the mayor, on the 30th day of December, 1906. This 'bill, we are not able to entertain or consider for two reasons:

First, because the transcript contains no minute of its presentation to, or allowance by the mayor, and,

Secondly, because the allegation of the bill itself, could we look at it, is that it was presented and allowed December 20, as aforesaid, which is more than ten days after the date of the mayor’s decision on December 5, or the overruling of the motion for a new trial on December 8th.

Without deciding whether or not a motion for a new trial is necessary or permissible in a case of this kind before a mayor of a city or village, it is clear that, in the absence of other provision, the bill of exceptions must be taken, pursuant to the provisions of Section 6565 of the Revised Statutes of Ohio, if at all, notwithstanding that the Jones law provides for proceedings in error to this court, whereas said section seems to contemplate proceedings in error to the common pleas court merely. Said section provides, that not less- than five nor more than ten days after the decision of the mayor, or the overruling of the motion for a new trial, as the ease may be, -shall be allowed for the reduction to writing of the exceptions taken. The bill of exceptions must, therefore, be presented to the mayor for allowance within the period named, and for failure so to do in this case, we hold that there is no bill of exceptions before us whereby we can review the errors alleged, in so far as the same are exhibited only in the bill.

It is suggested by counsel for plaintiff in error, that the provisions of the Jones law give concurrent jurisdiction to the mayor and to any judge of the common pleas court, and requires the circuit court, upon petition in error to review the case upon its merits — implying, when taken together, that the provisions of the code of civil procedure in regard to the perfecting of bills of exceptions, must be applied not only when the decision to be reviewed is made by a judge of the common pleas, but also in cases wherein the decision to be reviewed is that of the mayor. And it is urged, that in the absence of any express provision, allowing the filing of a motion for a new trial, in any case before a mayor, other than jury cases, necessity requires this construction of the law, in order that a review of the weight of the evidence may be made by this court. If the justice code does not provide for a motion for a new trial in such a ease as this, a resort must be had, it is claimed, to the code of civil procedure, in order that such a motion, alleging that the decision of the mayor is against the weight of the evidence and contrary to law, may be filed and overruled, so as to afford a basis for seeking a review of those grounds of error in this court. And, it is- further urged, that if this construction of law is correct the bill of exceptions was taken in proper time.

Inasmuch, however, as the transcript fails to show that any bill of exceptions at all was taken, we do not find it necessary to pass upon the merits of this reasoning farther than to say that Section 6565 seems to us to apply in this case, since by its terms it is made to apply to “all eases” before justices and mayors.

It is further claimed here that the transcript from the mayor’s court filed here is insufficient, in that it is certified merely as being a copy of the “records” in his office in this case, and that it is otherwise fatally informal.

The Supreme Court of this state has held that the proceedings of justice courts and other inferior tribunals of limited jurisdiction, must be viewed with indulgence of mere irregularities, as distinguished from a total want of jurisdiction; and applying that principle to the transcript here in question, we think the certification and contents are sufficient to advise us of the proceedings had and the decision rendered by the mayor. The transcript certified by the city clerk of the city of Cleveland, and filed with other papers in this case is, in our view, of no significance.

•Looking then to this transcript. The petition in error alleges no error disclosed therein which we need discuss, excepting the question of the constitutionality of the Jones law, which was formally saved, but was not argued before us. Without the benefit of such argument, we shall not enter into any detailed examination of the question. Suffice it to say, that the Constitution of Ohio having expressly provided that the General Assembly shall have power to pass laws to regulate the traffic in intoxicating liquors, and to provide against the evils resulting tkereform, we think the Legislature is invested with plenary power to deal with the subject at its discretion at least as fully as it is authorized to exercise the police power for the common welfare and public safety. Without the more specific aid of counsel in pointing out alleged defects in the law, we are unable to say that it violates any provisions of the Constitution, or that it is in any degree unenforceable. The judgment below is therefore affirmed.


text:
    JURISDICTION OF THE CLEVELAND COURT OF INSOLVENCY.
    Circuit Court of Cuyahoga County.
    Sigmund Lederer et al v. John P. Brunner.
    Decided, January 14, 1907.

      Insolvency Court of Cuyahoga County — -No Jurisdiction to Entertain Creditors’ Bill, When.

    The Insolvency Court of Cuyahoga County has no jurisdiction under Section 548-35, Revised Statutes, to entertain a creditors’ bill for the purpose of subjecting a distributive share of assets assigned and being administered by the court..
    Henry, J.; Winch, J., and Marvin, J., concur.
   This is an appeal from the Insolvency Court of Cuyahoga County taken to this court pursuant to the provisions of the last clause of the third section of the Revised Statutes, Section (54R-35).

The facts, so far as pertinent, are as follows:

The defendant, Brunner, made an assignment for the benefit of creditors, December 2, 1905. On the last day of May, 1906, the plaintiff filed his petition in the insolvency court where said assignment matter was pending, seeking to invoke the jurisdiction given by the above cited section to said court, “in all actions * # * for £he recovery of assets assigned to an assignee for the benefit of creditors.”

As a matter of fact the claim set forth in the petition amounted merely to a creditor’s bill. It alleged that the plaintiff had an unsatisfied judgment against a certain insolvent bakeshop company, to which the assignor in insolvency owed a sum of money, and it sought to subject to the payment of this judgment, such part of the assets assigned, as might become due on distribution, to the bakeshop. This, we hold, is not within the contemplation of the section above cited. The action here is not “for the recovery of assets assigned,” but rather for the subjection of a distributive share thereof.

We hold that the insolvency court has no jurisdiction to entertain a creditor’s bill of this character, and for that reason the petition here will be dismissed.


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    ASSIGNMENT OF CLAIMS WITH SECURITY THEREFOR.
    Circuit Court of Cuyahoga County.
    The Colonial National Bank v. Henry F. Johnson et al.
    Decided, January 21, 1907.

      Equity — Prior Equity Prevails.

    Where two equities are equally strong that which is prior in point of time will prevail.
    Henry, J. (orally); Winch, J., and Marvin, J., concur.
   This cause comes to this court on appeal. It is a consolidation of two actions brought by different banks to foreclose a single mortgage. That mortgage was given August 26, 1895, by Henry F. Johnson to George IT. Ford, trustee for Boughton-Ford Company, ostensibly to secure notes aggregating eight thousand dollars. In truth, however, Johnson (who was doing individually and in partnership different kinds of business, under different trade names) then owed his bankers, Boughton-Ford & Company, about $6,000, an indebtedness, the amount of which, however, soon afterwards became and has since continued to be many times that amount. The mortgage and notes for $8,000 were intended merely as collateral security to Johnson’s debt given formal expression in a supplemental mortgage executed three months afterward.

In the meantime, however (there is some uncertainty about the date, but we find that it was between the dates of the two mortgages), Boughton-Ford & Company, being largely indebted to the Painesville National Bank, assigned to the latter as collateral security for their debt, the original Johnson mortgage and notes. The Painesville bank did not know the real object of the mortgage, nor did Johnson know the Boughton-Ford & Company were thus parting with it. But in the view we take of the case the question of notice is not material.

A long time after this transaction Boughton-Ford & Company discounted considerable amounts of Johnson paper with Cleveland banks, including the plaintiff in this action. It does not appear that the Cleveland banks then knew of or relied on the security of the Johnson mortgage. Boughton-Ford & Company’s bank soon afterward, in 1904, failed, and their trustees in bankruptcy hold among the bank’s assets a book account and notes against Johnson for sums in excess of the amount of the mortgage. To that extent, at least, the debts so evidenced originated about the time of the execution of the mortgage, and long prior to the acquisition by the Cleveland banks of any interest therein. Johnson is also insolvent, and the Cleveland hanks and the Painesville bank respectively each claim to have a prior right to share in the security of his mortgage, and either claim will exhaust the security. The claim of the trustees in bankruptcy must obviously be postponed to those of the Cleveland and Painesville banks.

Their relative rights are, as we view them, very simple. It is argued in behalf of the Cleveland banks, that a mortgage not being negotiable, is subject even in the hands of a iona fide holder, to all the equities between the original parties; and also that the mortgage notes in this case, inasmuch as they were assigned to the Painesville bank as security for a pre-existing debt, are subject to the same equities. We assent to both these propositions, but we are unable to apply them here. We think, that there was nothing in the transaction between Johnson and Boughton-Ford & Company that forbade an assignment of any or all of the latter’s claims against the former, together with the security therefor. Of course the Painesville bank acquired no higher or better right to enforce the mortgage and mortgage notes than Boughton-Ford & Company would themselves have had, i. e., to enforce them as collateral security merely. And that, in effect, is what it now seeks to do, and what it has all the time been entitled to do, because in acquiring the Johnson mortgage and notes, it acquired and has ever since retained, at least an equitable title in like amount to Boughton-Ford & Company’s claims against Johnson, which the mortgage and notes were given to secure. In applying the proceeds of the mortgage to the Painesville bank’s claim, the claims of BoughtonFord & Company’s trustees in bankruptcy against Johnson will of course be reduced in like amount.

The Cleveland banks’ claims stand on no better footing than that of the Painesville bank save that the Cleveland banks have possession of and undisputed legal title to the Johnson paper on which their claims to participate in the mortgage are founded. The Painesville bank has a pledgee’s right and title to the Johnson mortgage and notes. Its equity is equally strong with the Cleveland banks, and being prior in time is superior in merit.

A decree may be drawn according to the view thus expressed.


text:
    AS TO APPOINTMENT OF GUARDIANS.
    Circuit Court of Cuyahoga County.
    Henry Urban, Guardian, v. John Urban.
    Decided, January 21, 1907.

      Probate Court — Jurisdiction to Appoint Guardians.

    The probate court has no jurisdiction to find one an intemperate and appoint a guardian for'him under favor of Section 6317, Revised Statutes, where the application for the appointment of a guardian alleges imbecility and is made under favor of Section 6302, Revised Statutes.
    Henry, J.; Winch, J., and Marvin, J., concur.
   This proceeding in error is brought to reverse a judgment rendered in the court of common pleas on appeal from the probate court. The proceeding in the probate court was brought to vacate a prior order of that court appointing a guardian for’ one John Urban, and the judgment here sought to be reversed vacates that order of appointment.

The chief ground alleged for such vacation is that the original order was made without jurisdiction. The bill of exceptions here shows that an application was made to the probate court for the appointment of a “ guardian of the person and estate of John Urban, an intemperate, and who resides at number - Rhodes avenue, Cleveland, Cuyahoga county, Ohio.”

The facts on which this application is based, are briefly, as follows:

“Said John Urban is an imbecile, wholly incapable of looking after himself and his property, and unfit to.”

The word “intemperate” near the beginning of the foregoing quotation, is "substituted for the word “imbecile” which' had been first written there and then crossed out. The order of appointment of the guardian was based upon the finding that John Urban was in fact an intemperate.

Upon the application for an appointment of a guardian for an imbecile, as provided by Section 6302 of the Revised Statutes, three days notice is required to be given to the next of kin of the alleged imbecile. The procedure upon an application for the appointment of a guardian for an intemperate is provided for by Section 6317 of the Revised Statutes, which requires five to ten days notice to the intemperate himself.

It is clear that the application and notice were intended to conform with the requirements of the former section and that the requirements of the latter section were not complied with, except that an attempt was made to amend the application by interlineation, as a basis for the court’s finding that the person complained- of was an intemperate instead of a imbecile.

The journal entry in the probate court recites that - John Urban was in court, and hence it is claimed that the five or ten days previous notice to him was waived by hi's appearance. If there be any uncertainty about the equivalence of the words “in court” with the expression “entry of appearance” the plaintiff in error here complains, show that the court erred in excluding the evidence tending to show that the journal entry was intended to convey this idea, and in refusing to entertain plaintiff in error’s application to have the journal amended, nunc pro tunc, to correct this uncertainty, if any.

Upon the other side it is urged that it is quite immaterial whether or not John Urban entered his appearance in this proceeding after the attempt was made to amend it from a proceeding for the appointment of a guardian for an imbecile into a proceeding for the appointment of a guardian for an intemperate, because the facts as alleged in the' above quotation from the original application after its amendment, are such as to preclude the court from finding the application to be sufficient, under Section 6317.

The statute provides for the appointment of a guardian when the person complained of "is incapable of taking proper care of himself or herself,, or his or her property, by reason of intemperance or habitual drunkenness.” The application alleged that the person complained of was "an imbecile, wholly incapable of looking after himself and his property, and unfit to.”

This allegation may be, and no doubt is quite” sufficient as a basis for the appointment of a guardian for an imbecile, but it affords no basis, under the statute, for the appointment of a guardian for an intemperate.

It follows, that unless the court is authorized in the course of the hearing to allow the nature of the proceeding to be changed, and to make an order based not upon the allegations of the application, but on proof of some other and different facts, the appointment of the guardian in this case was without authority at law and void.

The ease of Rosebrough v. Ansley et al, 35 Ohio State, 107, seems to us to be in point, paragraph 1 of the syllabus reading as follows:

"A judgment for a sum greater than the amount due upon a cause of action as stated in the record is erroneous; and the previous consent- of the parties that such judgment might be rendered does not cure the error.”

And in Spoors v. Coen, 44 Ohio State, 497, the 4th paragraph of the syllabus is as follows:

"The judgment of a court upon a subject of litigation within its jurisdiction, but not brought before it by any statement or claim of the parties, is null and void, and may be collaterally impeached. ’

The ease at bar is, of course, a direct attack upon the qriginal order of the probate court.

Upon the. facts and authorities above mentioned, we hold that the original order of the probate court was not improperly vacated, and that there is no error in this record, and the judgment of the court of' common pleas is affirmed.


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    EFFECT OF RELEASE OF COUNTER CLAIM.
    Circuit Court of Cuyahoga County.
    Herman C. Schubert v. State Banking & Trust Company.
    Decided, January 28, 1907.

      Actions — Existence of Counter-Claim No Defense to Action on Cognovit Note.

    That' the payee of a cognovit note has released the endorsers of another note held as collateral, by negligently failing to protest it for non-payment, is no defense in an action on the cognovit note.
    Henry, J.; Winch, J., and Marvin, J., concur.
   The plaintiff in error here was plaintiff below. His action there was brought under favor of Section 5354, subdivision 9, Revised Statutes, and he seeks a new trial by petition which alleges that at a previous term judgment was rendered against him upon a cognovit note for more than was due. ITis petition sets forth that he had given said note'to the defendant together with collateral security consisting of another and larger note made by a Pittsburg corporation, and that the defendant, by its negligence in failing to have this collateral note protested, released the endorsers thereon, and that the maker has since become insolvent.

. Plaintiff'further alleges that by virtue of this tranaction his own cognovit note was paid, and that the defendant in taking judgment for the amount thereof, or for any amount thereon, obtained judgment for more than was due it.

We think this petition does not state a cause of action. The facts alleged show that plaintiff may well have had a good counter-claim against the defendant, and may still have an independent cause of action against it,- but they do not show a defense to the cognovit note.

The reasoning and authorities cited by the court below in its opinion, we think, are sound, and the judgment below is therefore affirmed.


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    FAILURE TO FILE MOTION FOR. A NEW TRIAL.
    Circuit Court of Cuyahoga County.
    Anna Deveraux v. E. K. Hutchinson, Administrator.

    Decided, February 25. 1907.

      Judgment Non Obstante Veredicto — Motion for New Trial Necessary to Prosecute Error, When.

    Where a trial court has entered judgment non obstante veredicto upon the ground that a special finding of the jury is inconsistent with its general verdict, a reviewing court can not set aside the judgment on the ground that the special finding was not sustained by sufficient evidence, where no motion for a new trial was filed by the party against whom judgment was entered.
    Henry, J.; Winch, J., and Marvin, J., concur.

       Affirmed without opinion, Devereaux v. Hutchinson, 78 Ohio State, 415.

   This case was disposed of upon the hearing, by affirming the judgment of the court of common pleas. The court of common pleas had rendered a. judgment non obstante veredicto in favor of the defendant in the case on certain special findings of the jury which were returned with their general verdict in favor of the plaintiff, and the motion for rehearing of this matter in this court proceeds upon the ground that we erred in affirming the judgment below, because the evidence as disclosed by the bill of exceptions, if we had considered it, would have shown that the special findings of fact were not sustained by sufficient evidence. That view of the matter was called to our attention upon the hearing at the time we disposed of the case, and we then held that we could not consider the evidence in contradiction of the special findings of fact and upon the judgment of the court below, without a motion for a new trial having been interposed by the plaintiff. His response to that suggestion upon the hearing was, that having obtained at the hands of the jury a general verdict in his favor, he did not- deem it proper or requisite to make a motion for a new trial in the court of common pleas. We are still, however, of the opinion that the judgment of affirmance was sound, having noiv examined the matter upon plaintiff in error’s application for a rehearing.

That judgment by this court proceeded upon the theory that the third finding of fact was utterly inconsistent with the general verdict and we suppose that to have been the reason for the action of the court of common pleas in rendering the judgment which we affirmed: We have, however, carefully considered the brief which has been filed by the plaintiff in error in this ease and have gone to some pains to look up the authorities referred to therein. Some of the authorities referred to therein, not only those cited by counsel, but others that we were able to find upon searching for ourselves, indicate that in determining whether the special findings are inconsistent with the general verdict, so that the latter must be held to be controlled by the former, the court is not permitted to regard the evidence introduced on the trial. C. & N. W., 129 Ill., 132, paragraph 20 of the syllabus.

Tn determining whether the trial court erred in its judgment in a case of this sort, the appellate court can not look into the evidence. Pennsylvania Company v. Smith, 98 Ind., 42; Schuck v. State, ex rel, 136 Ind., 63, and Schults v. The Chicago & Northwestern Railway Company, 114 Iowa, 89.

A motion for a new trial is necessary in order that the evidence may be weighed upon review in a proceeding in error. A motion for a new trial is therefore necessary to review the decision of the court of common pleas with regard to the finding of .facts, as made by the jury, being unsupported by the evidence. Whittaker’s Civil Code, 6th Edition, Section 5305, Subdivision 6, at page 566, and the cases there cited.

There is, of course, some anomaly in the filing of a motion for a new trial on the part of the party in whose favor the jury have rendered a general verdict, but we nevertheless think it is necessary in ’ cases of this character; and we cite Clementson on Special Verdicts, pages 156, 157 and 158, where there is a very exhaustive consideration of the entire subject.

The application for a rehearing will therefore be'denied.


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    WAIVER AS TO PROOF OF LOSS.
    Court of Appeals for Portage County.
    The American National Insurance Company v. Frances A. Euce.
    Decided, October 1, 1913.

      Fire Insurance — Company May Waive Finding of Proof of Loss— Within the Prescribed Time — Waiver May be Shown by Act and Conduct — Whether There Was a Waiver is a Question for the Jury.

    1. Tbe requirement of a clause in a policy of insurance that proofs of loss shall be filed within sixty days after such loss^ occurred “unless such time is extended in writing by the company” may be waived by the company. Dissenting opinion in Billings v. Insurance Co., 6 C.C.(N.S-), 567, approved and followed.
    •2. Such waiver need not be in writing but may arise from such acts and conduct on the part of the company, after the sixty days have passed, as show an intention on the part of the company to relinquish its right to enforce such requirement.
    3. Whether or not such acts amount to a waiver of such condition is a question of fact for the jury.
    TT. J. Mooney, for plaintiff.

      Smart, Marvin •& Ford, contra.
    Metcalfe, J.; Norris, J., concurs; Pollock, J., dissents.
   This action was brought by Frances A. Euce, defendant in error, against the plaintiff in error to recover upon an insurance policy. Mrs. Euce recovered judgment in the common pleas court and the case is here on error. The petition sets out the policy which is in the standard form. The answer states a number of defenses, none of which are necessary to be considered except the one setting out a clause in the policy requiring proofs of loss to be made within sixty days after loss unless the time is extended in writing by the company, and claiming a failure to comply with that clause.

The sole question in this case arises under this defense. It is conceded that the proofs of loss were not filed within the time required by the policy. The defendant claims a waiver of. that condition by the company. We agree with what ivas said in argument by the learned and experienced counsel for plaintiff respecting the right of an agent to waive this condition in the policy. Neither the agent who procured the policy nor the adjuster as such had any right to waive any of the terms of the policy. Such waiver could only be made by the company itself. But whether the company intended to waive any of its rights must be determined by the acts and conduct of the business in hand, and of those who were giving their time to the investigation and adjustment of the loss. The company could act only through its duly authorized agents and servants, and we must look to their acts to determine that intention. The clause in the policy relating to the proofs of loss reads as follows:

“* * * and within sixty days after the fire unless such lime is extended in writing by this company, shall render a statement to this company, signed and sworn to by said insured, stating the knowledge and belief of the insured as to the time and origin of the fire.” * * *

Could there be a waiver of the terms of this policy, unless such waiver is made in writing by the company ? The requirements of the proofs of loss is not for the benefit of'the insured. It is something that must be done after the loss occurs. It is for the benefit of the insurer to enable him to act intelligently in regard to the loss. That is the object of requiring the proofs to be filed within a limited time. This requirement being for the benefit of the company, it seems clear that the company has a right to waive it. A waiver means nothing more than that the company will not insist upon the letter of the contract, and if the insured fails to file the proofs of loss within the required time but the company still continues to act with' relation to the loss as though the proofs had been filed, would not this amount to a waiver of the condition, or at least would it not be evidence the jury would have a right to consider in determining whether there had been a waiver of the condition ?

In the case of The Enterprise Insurance Company of Cincinnati v. Parisot, 35 O. S., 35, we find the following in the first paragraph of the syllabus:

“A policy required immediate notice and proofs of loss within thirty days. The notice was given, and a protest made out on the day the loss occurred, which was afterward handed to the insurance adjuster when he came to investigate the loss, but he went on and made a full investigation, after which he told the insured that he had shown no cause of loss, and that it must have been unseaworthiness of the boat, or negligence; but promised after he made his report he would write and inform him whether the insurer would pay; and he reported all the facts, whereupon the insurer decided that it was1 not liable, and so informed the agents through whom the insurance was affected without stating the ground of the decision, and the adjuster did not write to the insured'as he promised. Held-. That whether there had been a waiver of the proof of loss ivas properly left to the jury, under appropriate instructions.”

So in the case of Mutual Life Insurance Company v. French, 30 O. S., 240:

“A policy of insurance contained the usual clause of forfeiture for non-payment of premiums. Departing from the strict rules of the company, a duly authorized agent had allowed the cash part of the premium to be paid in one-half cash, the other half by short time note. Upon the 6th of July, 1867, the day the premium was due the agent received the check of the assured for half cash due and a six month’s note, giving the renewal receipt for a year. The note contained the clause “if not paid at maturity said policy shall be null and void.’ Neither the cheek or note was paid. Held-. That the mere fact that the note was not paid at maturity did not of itself avoid the policy. It gave the insurance company the option of declaring a forfeiture, but this option must be asserted by clear and unequivocal acts. The clause of forfeiture being inserted in the note for the benefit of the company, may be waived by failure to act, or other circumstances evincing an intention not to claim the benefit of the stipulation. Whether the company has exercised, or waived their rights, is a question of fact for the jury under all of the circumstances of the case.”

I quote also from May on Insurance, See. 311:

“A clause in the policy of insurance, that nothing but a distinct specific agreement, clearly expressed and indorsed on the policy shall operate as a waiver of any printed or written condition, warranty or restriction thereon, refers to those conditions and provisions of tbe policy which enter into and form a part of the contract of insurance, and are essential to make it a binding contract between the parties, and which are properly designated as conditions, and not to those stipulations which are to be performed after a loss has occurred, such as giving notice and furnishing preliminary proof of loss. ’ ’

In Billings v. Insurance Company, 6 C.C.(N.S.), 567; 27 C. D., 552, a majority of the court held that a failure to file proofs of loss within the time required by the conditions of the policy avoided the policy, and that the conditions requiring proofs to be filed within a definite time could only be waived by the company in the express manner provided for in the policy. We are prepared to assent to the doctrine announced by the majority of the court in that case,.so far as it holds that no agent could waive the condition of the policy as to the filing'of proofs of loss except in the manner therein provided. We think, however, it is a different question whether or not the company itself has waived the condition of the policy by its acts and conduct after the time for filing the proofs of loss had expired.

It is sufficient for us to say further in regard to this case that the majority of this court are in accord with the views expressed by Judge Parker in the dissenting opinion and regard it as the true expression of the law.

From the cases cited it seems to us'reasonably clear that the company may waive a provision in the policy made for its own benefit, and generally whether or. not there had been such waiver will be a question for the jury to decide. So in this case we are of the opinion that whether or not there was a waiver by the company of the conditions', requiring proofs of loss to be filed within sixty days, was a question of fact for the jury, or the jury being waived a question of fact for the trial judge. In this case a jury was waived and the case submitted to the trial judge, but the rule is the same whether the case was tried to a jury or to a judge. This court has no right to disturb the verdict unless it is manifestly against the weight of the evidence.

After the fire Mrs. Euce put her case in the hands of Smart, Marvin & Ford, attorneys in Cleveland. Mr. Marvin, one of her attorneys, called up by telephone Mr. F. C. Carroll, a well-known insurance adjuster at Ms office in Cleveland and inquired if he had anything to do with the case, and Mr. Carroll informed him that he had, and also informed him that there were some suspicious circumstances regarding the fire, and that he was making an investigation. Mr. Carroll also said that the company believed that Euce set fire to the building and that there was other insurance, and he did not believe the company would pay; but he. and another adjuster were looking the matter up and when they got sufficient information they would let him know. Possibly this telephone conversation was incompetent, as Mjr. Marvin was not acquainted with Carroll and did not know his voice. In any event it would only serve as an introduction to what followed. Some time afterward, however, Marvin again called up Mr. Carroll and had another talk with him, and Carroll said they were still making an investigation, the fire marshal had been at Kent, also that there was another adjuster employed by another company looking into the matter, and when he heard from them he would let him know the result. Marvin says this was about the 1st of March and would be more than sixty days after the loss occurred. Two or three telephone conversations followed between Marvin and Carroll relative to the adjustment of the matter without litigation, Mr. Marvin insisting upon a settlement of the loss and Mr. Carroll saying they could not or would not settle while the investigation was on. That condition continued until the following November when Mr. Carroll informed Marvin that the company would not pay the loss and gave as a reason for refusing to do so that the grand jury of Portage county had indicted Mr. Euce for setting fire to the property. In none of these conversations was anything said regarding the failure to file proofs of loss within the sixty days, required by the policy, and when Mr. Carroll finally informed Mr. Marvin that the company would not pay the loss, it was put upon an entirely different ground than that of the failure to. file the required proof.' This was several months after the time for filing the proofs of loss had expired.

What is necessary to constitute a waiver ?

The company had an undoubted right to require that the proofs of loss should be filed within the time and in the manner required by tbe policy. A waiver is an intentional relinquishment of a known right (Benneche v. Insurance Co., 105 U. S., 360 Hoxie v. Insurance Co., 32 Conn., 40; 85 Am. Dec., 240), or such conduct as warrants an inference of the relinquishment of such right. Burham v. Casualty Co., 117 Mich., 142; Insurance Co. v. Thomas, 82 Fed. Rep., 407.

It happens where one in possession of a right, conferred either by law or by contract, does something inconsistent with the existence of the right or his intention to rely upon it. Bishop’s Contracts, Section 792.

At the expiration of sixty days after the loss the company could have planted itself squarely upon the failure of the insured to file such proofs, and no question could have arisen of its relinquishment of such right. The company, however, did not see fit to do that. The matter was left open for a period of several months after the time had expired, and no question was made by the company with regard to the proofs of loss, and finally when the intention of the company not to pay was announced, its decision was put upon an entirely different ground than that of the failure to file the proofs of loss. All of these acts of the company were evidence in determining the question whether or not the company had waived its right to stand upon the failure of the plaintiff to file the proofs in time. We are clear that the finding of the lower eourt can not be reversed upon this question. Let it be understood we do not hold that the acts of the company as shown by the evidence as matter of law constitutes a waiver of the conditions of the policy. We do hold that they are evidence tending to show such waiver, and that the finding of the trial eourt upon that question is conclusive, and not manifestly against the weight of the evidence.

The judgment is affirmed.


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    NEGLIGENCE OF CHAUFFEUR. CAN NOT BE IMPUTED TO PASSENGER.. .
    Court of Appeals for Hamilton County.
    The Cincinnati Traction Co. v. Hargrave.
    Decided, May 31, 1913.

      Injury to a Passenger in an Automobile at a Street Gar Grossing— Negligence of Chauffeur Not Negligence of Passenger — Ordinary Gare at-Street Grossing — Duty to Ring Gong — Gharge to Jury.

    Where a woman, riding as a. guest of the driver, in an automobile over which she has no control, is injured in a collision with a street car, occasioned by the negligence of its motorman, contributory negligence on the part of the automobile driver can not be imputed to her to prevent her recovery of damages from the street railway company.

      Kinkead ¡efe Rogers, for plaintiff in error.

      Moulinier, Bettman ■<& Hunt, contra.
    Jones (Oliver B.), J.; Swing, J., and Jones (E. H.), J., concur.
   A collision between a street car and an automobile at the corner of Chapel street and Alms place, Walnut Hills, resulted in serious injury to plaintiff below, Carrie B. Hargrave, who was' riding in the rear seat of the automobile. She was the guest of her nephew, James C. Hobart, who was driving the machine — ■ his father sitting with him on the front seat, while his mother and plaintiff and her daughter sat on the rear seat. The automobile was being driven eastwardly on Chapel street down grade and the street car was going westwardly on Chapel street to Alms place and then turned a curve from Chapel street southwardly into Alms place. There was a double track east of Alms place in Chapel street and a single track west of Alms place. The street car was a mail car, not then in service but merely being transferred from one ear barn to another. Its motorman was not a regular motorman and had never run a passenger street car, but had taken instructions at the company’s school for motormen and had run cars to and-from the car barn. A ear repairer was with him on the front end of the car.

There is considerable conflict in the testimony as to just how the accident took place and who was to blame. The witnesses on both sides agree that outside of the street car and the automobile the streets were free from traffic. It was a bright Sunday afternoon in August, between two and three o’clock, and the occupants of each vehicle could see the other some distance away. All agree that the car came up slowly and made a stop, or almost a complete stop, before turning the curve. The automobile was running on the south side of Chapel street and the driver sounded his horn twice just as he reached Alms place. Witnesses of plaintiff below say that seeing the car stop or nearly so and not hearing any bell or gong from it, the driver, who had been driving about as fast as a horse would trot, taking it for granted that it was stopping to give him a fight of way, proceeded to cross in front of it, continuing along the same course he was driving, and was almost across the track when the motorman, turning on Ms power suddenly, plunged his ear forward, striking the automobile on its rear left wheel and forcing its front part over the curb on the sidewalk at the corner, throwing plaintiff below out and thus causing the injury.

Witnesses of defendant below on the other hand say that the automobile was running very fast, and that its driver, trying to head off the street ear, ran the front wheel of his automobile over the curb at the corner so that it swung the rear part of the automobile to the northward in such a way as to strike the fender of the car. The motorman says that he barely stopped before reaching the curve, to make what he ealled a safety stop, and getting two bells from the conductor, rang thé gong and turned on his controller to furnish power to send the car around the curve; that he had seen the automobile sixty feet away when he made his stop and then had not seen it until after he had thrown on his power when it was ten feet away. He says that he then reversed power and set the brakes and the car came to an immediate stop, and the automobile just dodged in front of it, the front wheel striking the curb and the rear part being thrown against the street car. He explains that the reason why he proceeded with his car was because he thought the automobile was going to swing over to the north side of Chapel street, where the distance between the street railroad track and the curb is much wider than the distance between the track and the south curb. If it had done so it would have had to change its course, but would have made it entirely unnecessary to cross in front of the ear.

It will therefore be seen that both the motorman and the driver of the automobile were mistaken either as to the speed of the other, the distance in which the crossing could be made or the intention of the other as to who should cross first, and under the law as recently laid down in Steubenville & Wheeling Traction Co. v. Brandon, Admr., 87 Ohio St., 187, “Such a situation presents a ease where different minds might reach opposite conclusions, and thus was a proper case for a jury under proper instructions,” and a court of review, without having opportunity of seeing the witnesses upon the stand and hearing the testimony from their lips, would hesitate to disturb the verdict of a jury and the decision of a trial judge upon the question of the weight of the evidence.

But regardless of the question of contributory negligence on the part of the driver of the automobile, there seems to be no question but that negligence was shown on the part of defendant below by its motorman so far as the plaintiff below in this case is concerned. She had no control whatever of the automobile, and any negligence on the part of its driver can not be imputed to her. The doctrine of imputed negligence does not prevail in Ohio. Davis v. Guarnieri, 45 Ohio St., 470; Saint Clair Street Ry. Co. v. Eadie, 43 Ohio St., 91; Cincinnati Street Ry. Co. v. Wright, Admr., 54 Ohio St., 181; Covington Transfer Co. v. Kelly, 36 Ohio St., 86; C., C., C. & I. Rd. Co. v. Manson, 30 Ohio St., 451; Bellefontaine & Indiana Rd. Co. v. Snyder, 18 Ohio St., 399.

The refusal of the special charge asked by defendant below to be given before argument is urged as a reason for reversal. It was as follows:

“It is the duty of a person operating an automobile as he approaches a street crossing to have his automobile under control, and the fact that he sounds his horn of itself gives him no right of way on the street, but it is his duty to observe care in running the automobile, having due regard to the rights of other persons using the streets including those operating street cars; and a motorman operating a street ear on a public street has a right to presume, until he discovers or ought to discover the contrary, that a person operating an automobile will do so with ordinary care for the safety of others and for his own safety. ’ ’

If this case were one brought by the driver of the automobile for injuries to himself this charge would have been a proper one. But as the action is brought by one who could not be held responsible for any contributory negligence of the driver, it was not error in-the court to refuse it.

The clause of the geneal charge, “The street railroad company must recognize the equal rights of all others and cause its servants who operate the car to exercise the ordinary care which the increased danger arising from the travel at street crossings demands, and this includes the duty of having its cars under control, but not running its cars at an unreasonable rate of speed and ringing the gong at street crossings,”'was excepted to by defendant, who now as plaintiff in error here urges that it, in effect, charges that it was the absolute duty of the motorman to ring his gong as he approached a street crossing. Possibly it may have been so intended, but the language as used does not make it such a charge as the use of the word “but” in the last clause where “and” may have been intended, rather excludes- the ringing of the gong as a positive duty. We do not think the giving of this charge in the words used constitutes prejudicial error. The ringing of the gong is for the purpose of attracting attention to warn persons of the approaching car. In this case there, was some testimony that t’he gong was rung, but at any rate all agreed that the occupants of the automobile distinctly saw the street car and knew of its approach, the only question being as to how fast and when it was going to move, and the gong would not indicate that.

We find no errors in the record prejudicial to plaintiff in error.

Judgment affirmed.


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    ABUSE OF A GIRL UNDER. SIXTEEN YEARS OF AGE.
    Court of Appeals for Knox County.
    Frank Zent v. State of Ohio.
    Decided, October, 1914.

      Criminal Law — Failure to Show Intent Not Material, "When — Guilty Knowledge Not a Necessary Element of the Offense Charged, When —Prosecution under Section lftm.

    1. The intent with which an act is done is immaterial, where it is made an offense expressly prohibited by statute, and in a prosecution of one over eighteen years of age for having carnal knowledge of a girl under sixteen with consent it is not necessary that criminal intent be either averred or proved.
    9. Nor it is necessary in such a case that the defendant be shown to have known or to have had good reason to believe that the the girl was under sixteen years of age.

      Wm. M. Koons, for plaintiff in error.

      L. T. Cromley, contra.
    Shields, J.; Powell, J., concurs; Voorhees, J., not sitting.
   At the February (1914) term of the Court of Common Pleas of Knox County, Ohio, the grand jury of said county returned an indictment against the plaintiff in error charging that “one Frank Zent, on or about the 5th day of December, 1913, at the county of Knox, being then and there a male person, of eighteen years and upwards, did then and there unlawfully and knowingly carnally know and abuse one Mabel Storey, with her consent, she, the said Mabel Story, then and there being a female person under the age of sixteen years, to-wit, of the age of fifteen years,” to which said indictment a plea of not guilty was entered. Trial was had, resulting in a verdict of guilty as charged in said indictment. A motion for a new trial was overruled, and the plaintiff in error was sentenced according to law. A petition in error, with a bill of exceptions containing the evidence taken upon the trial, was filed in this court for a review of the judgment of said common pleas court.

Counsel for plaintiff in error argued that proof of the crime charged was incomplete because it failed to show that it was committed with criminal intent, contending “that no crime can be committed without a criminal intent, and a general deliberate purpose is at the foundation of criminal law, and it has been so announced over and over by our highest courts.”

It is fundamental that in all cases where the statute makes the intent with which an act is done an ingredient of its criminality, such intent must be averred and proven, either by direct or circumstantial evidence, to support a judgment of conviction; but where the act is made an offense by statute without reference to the intent, the intent with which such act is done is immaterial.

In support of this proposition of law it is laid down in 12 Cyc, p. 148, that:

‘ ‘ The Legislature, however, may forbid the doing of an act and make its commission criminal without' regard to the intent of ’the doer, and if such an intention appears the courts may give it effect although the intention may have been innocent,” citing with approval State v. Kelly, 54 O. S., 165.

In Vol. 3, Greenleaf’s Evidence, Sec. 21, it is also laid down that,

“the rule — that igorance of fact will excuse — would seem to hold good in all cases where the act, if done knowingly, would be malum in se. But where the statute ‘Commands that an act be done ,or omitted, which in the absence of such statute might have been done or omitted without culpability, ignorance of the fact or state of things contemplated by the statute, it seems will not excuse its violation.”

In Vol. 1, Wharton’s Criminal Law, Section 108, it is also laid down that,

“when a statute makes an act indictable, irrespective of guilty knowledge, then ignorance of fact, no matter how sincere, is no defense.”

Section 12414. General Code, upon which the indictment here is based, reads as follows:

“Whoever being eighteen years of age, carnally knows and abuses a female person under the age of sixteen years, with her consent, shall be imprisoned, ’ ’ etc.

Here the wording of the statute admits of but one construction. Jt is a plainly expressed declaration, equivalent to a prohibition, against this species of idee, and its manifest purpose is to punish the act therein, committed by persons of the ages named, and when such act is committed the crime denounced therein is complete. The same rule and reasoning also apply to other offenses defined by the statutes of this state, as well as many federal statutes. The question of intent, therefore, is held not to be an essential or material element in the crime here charged.

It was also argued on behalf of the plaintiff in error that in ordér to sustain a conviction under said statute it must appear that the party charged “knew or had reason to believe that the said Mabel Storey was more than sixteen years of age.” This proposition of law was put in the form of a written request on behalf of the plaintiff in error to be submitted by the trial court to'the jury before argument, which request the said court refused, but said court did charge the jury, among other things, “that ■this law was passed for the purpose of protecting girls under the age of sixteen years, and a girl under sixteen years of age, regardless of her character, can not consent to an act of sexual intercourse.” The action of. said court in refusing to charge said request was proper for the reasons stated in said charge.

As was said by Judge Shauck, speaking for the court in the case of State v. Carl, 71 O. S., 265:

“The effect of the statute is to nullify the consent of the female under sixteen years of age.”

Not unlike the question of intent, guilty knowledge is not an essential or material element of the offense here charged. The Legislature by statute prohibits immorality of this character and visits severe punishment upon the offender. The object and purpose of the statute is aptly set forth by Judge Price, speaking for the court, in announcing the opinion in the case of State v. Tuttle, 67 O. S., 440-444, who says:

' ‘ The Legislature concluded to come to the rescue of youthful females from the brutal assaults upon their virtue, and to make it rape for the assailant to have carnal knowledge of one who is either too young to forcibly resist, or whose ignorance of the wiles and blandishments of evil men may make her an easy subject to their corrupt suggestions and persuasions. The provision was enacted for the protection of this class of our people from the lust and beguilement of designing men of maturer years and greater experience.”

Here the act of sexual intercourse was proven and the prosecutrix was shown to be under sixteen years of age, so that whatever the party charged may have been led to believe concerning her age, he knew he was over eighteen years and a married man also, and in addition to committing the crime of adultery, he was presumed to know the provisions of the statute in question, and daring to violate it, he is responsible criminally for the consequences of his act. To hold otherwise would be to put within the power of every man charged with a violation of this statute the means of defeating its object.

In Commonwealth v. Murphy, 165 Mass., 66-70, the judge announcing the opinion in that case says:

“But there is a large number of cases in which, on grounds of public safety, certain acts are made punishable without proof that the defendant understands the facts that give character to his act. In such cases it is deemed best to require everybody at his peril tb ascertain whether his act comes within the legislative prohibition. ’ ’

This case is cited with approval in State v. Murphy, 54 O. S., 166.

Eliminating the question of force involved in the commission of rape, but as illustrating the immateriality of the assailant’s belief in the age of the party assailed, the following authorities hold in substance that:

“One who has unlawful intercourse with a female under the age of consent is not protected by his belief as to the age of such female at the time, and he must know at his peril whether her age is such as to make such act of intercourse rape.” Zachary v. State, 57 Tex. Cr. Rep., 179, People v. Marks, App. Div., 130 N. Y. Supp., 524; State v. Newton, 44 Ia., 45; People v. Ratz, 115 Cal., 132.

Without commenting on this shocking crime, we adopt the well chosen and appropriate language of the judge announcing the opinion in People v. Ratz, supra, wherein he says:

“The object and purpose of the law are too plain to need comment, the crime too infamous to bear discussion. The protection of society, of the family, and of the infant, demand that one who has carnal intercourse under such circumstances, shall do so in peril of the fact, and he will not be heard against the evidence to urge his belief that the victim of his outrage had passed the period which would make his act a crime.”

The judgment of the court of common pleas is affirmed, and the case is remanded to said court for execution.


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    DRIVER. INJURED BY BEING THROWN FROM HIS WAGON.
    Court of Appeals for Hamilton County.
    City of Cincinnati v. William Lawrence Sturr.

    Decided, February, 1913.

      Negligence — Injury to Driver Alleged to Nave Been Due to Hole in Street — Care Required in Driving a Blind Horse — Liability of the Municipality.

    The driver of a blind horse who was thrown from his wagon and injured by the jolt caused by a hole in the street which was plainly visible, is without recourse against the municipality.

      Coleman Avery, for the city.

      Scott Bonham, contra.
    The plaintiff below recovered a judgment against the city for $1,600, on account of permanent injuries from being thrown from his wagon on Spring Grove avenue, near Terrace Place. It was alleged that the accident was due to a hole in the street, which he did not see although he was driving carefully.
    Smith, P. J.; Swing, J., and Jones, J., concur.

      Reversed by the Supreme Court and the judgment of the court of common pleas affirmed; opinion of common pleas court reported in 9 O. L. R., p. 6, where it is held that—
      “Whether a hole in the street into which the plaintiff drove his wagon and was injured, was visible and should have been seen by him is a question for the jury, and their finding will not be set aside unless manifestly against the weight of the evidence.”

   It is manifest from the record that defendant in error was guilty of contributory negligence. He was driving a blind horse at the time of the accident, and the hole in the street was plainly Ausible. Under the circumstances he did not exercise all the care that was necessary.

The court, therefore, erred in overruling the motions of the plaintiff in error for an instructed verdict, at the close of plaintiff’s evidence, and also at the close of all the evidence. Tn this view of the case it is unnecessary to consider other errors assigned.

The judgment below is reversed, and judgment for plaintiff in error will be entered in this court.


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    ASSUMPTION OF RISK DOES NOT INCLUDE THE RISK OF NEGLIGENCE.
    Court of Appeals for Mahoning County.
    Pennsylvania Company v. Mattie A. Wasson, Administratrix.
    Decided, November Term, 1914.

      Locomotive Engineer Violates Rule of the Company as to Speed — Runs into an Open Switch and is Killed — Nature of the Risk He Assumed —Liability of the Company — Refusal of Jury to Reduce Verdict on Account of Defendant’s Own Negligence — Not Cured by a Remittitur.

    1. In an action for the death of the engineer of an interstate passenger train, by coming into collision with another train, which collision was caused by the negligence of the railroad company in failing to set a switch for the proper track, and by the negligence of the deceased in operating his train over the switch at a greater rate of speed than that allowed by the rules of the company, of which he had knowledge; Held'. That the deceased, in operating the train in violation of the rules, did not assume the extraordinary risk of the negligence of the company of which he had no knowledge, and that the company can not avail itself of the defense of assumption of risk.
    2. When a recovery under the federal employer’s liability act of 1908 is asked against a railroad company operating an interstate railroad, for the death of an employee, which was caused by the combined negligence of the employee and the company, and it appears, from the answers to interrogatories submitted to the jury and returned with the general verdict, that the jury, in disregard of the instructions of the trial court, did not diminish the amount of recovery in proportion to the negligence attributable to such employee, but returned a verdict for full damages; Held: Reversible error, and a judgment should not be entered thereon against the objection of -the defendant, notwithstanding the plaintiff entered a remittitur of a part of the verdict.

      Arrcl, Wilson, Harrington & DeFord, for plaintiff in error.

      William J. Kenealy, contra.
    Pollock, J.; Metcalfe, J., and Spence, J., concur.
   The defendant in error brought an action in the court of common pleas of this county against the plaintiff in error to recover damages for the death of her intestate, James W. Wasson, which she claims was caused by negligence of the plaintiff in error.

The defendant below pleaded both assumption of risk and contributory negligence on the part of the intestate of plaintiff below, and in addition by cross-petition damages for the property destroyed in the collision.

On May 27, 1913, the Pennsylvania Company was operating an interstate railroad from Newcastle, Pennsylvania, westerly through Niles, Ohio, to Alliance. What was known as the Boanna tower was located about two miles west of Niles. At this tower the double tracks of the Pennsylvania Company are connected with the double tracks of the Baltimore & Ohio Railroad by two long connecting tracks about 6,000 feet in length. At this tower there was located an interlocking plant, and the single track of the Pennsylvania Company, known as the Alliance Branch, is connected with the two main tracks above referred to by a switch. The Alliance Branch tracks extend from a switch point in front of the tower westerly alongside the eastbound connecting track for a distance of about 1,000 feet. The switch point connecting with the eastbound track is about in/ front of the tower. Four hundred feet east of the tower on the night in question was a green dwarf signal light, and the same distance west of the tower was located another signal light.

On the night of M!ay 27, 1913, the towerman had left the sMÚtch connecting the eastbound track with the eastbound main track open and the switch connecting the Alliance Branch with the east bound main track closed.

Tt is admitted by the company that the towerman was negligent -in leaving the switches in this condition; that the switch connecting the Alliance Branch with the eastbound main track should have been open and the switch connecting the eastbound connecting track with the west bound main track closed.

The rules of the railroad company provided that trains should not be operated through this interlocking plant at a speed exceeding ten miles per hour.

On the night of May 27,1913, Wasson was in the employ of the Pennsylvania Company as a locomotive engineer, running one of its interstate passenger trains west from Newcastle to Alliance, Ohio, over its tracks connecting with this interlocking plant. AArasson, on this night, in violation of the rules of the company, operated his train through this interlocking plant at a speed exceeding twenty miles an'hour. Just after passing-over the point of the switch he discovered that he was not on the Alliance track but was on the eastbound connecting track, and attempted to stop his train, but on account of the excessive speed at which he-was operating his train it could not be stopped before coming into collision with a train standing upon the eastbound connecting track. In this collision a large amount of the property of the Pennsylvania Company was destroyed, and Wasson was killed.

This collision was caused by the negligence of the towerman in permitting the switch to be open from the eastbound connecting track to the eastbound main track, when this switch should have been dosed, and the switch connecting the Alliance Branch with the eastbound main track open; and also by the engineer AVasson in operating his train past this point, in violation of the rules of 'the company, at such a high rate of speed that it could not be stopped in time to avoid the collision-.

In the application made by "Wasson for employment with the defendant company, he agreed to observe all the rules and regulations of the defendant below. The rules prohibiting him from operating the train past the interlocking plant at a greater rate than ten miles an hour were found in his pocket after his death.

The 1 rial.court refused to submit to the jury the question of ássumption of risk and the question of the defendant’s damages claimed in the cross-petition, but submitted to them the question of "Wasson’s contributory negligence. The court charged the jury that the defendant company was- guilty of negligence in failing to set the switch, for the right track, and that Wasson was guilty of contributory negligence in failing to obey the rules of the company by passing over the interlocking switch at' a higher rate of speed than was permitted by the rules of the defendant company, and charged comparative negligence under the federal employer’s liability act of 1908, and that the damages should be diminished by the jury in proportion to the amount of negligence attributable to Wasson.

The jury returned a general verdict for plaintiff below in the amount of $10,000, together with answers to interrogatories finding that "Wasson was not negligent and that the jury did not reduce the amount of damages on account of the negligence of deceased. The court on motion for a new trial, refused to set aside the verdict of the jury on the ground that they had disobeyed the instruction of the court that Wasson was guilty of contributory negligence and directing that the jury should diminish the amount of recovery in proportion to the negligence attributable io Wasson and return a verdict for that amount, but the court allowed the plaintiff below to enter a remittitur of $4,000 and then overruled the motion for a new trial and entered judgment for $6,000.-

The first error complained of is in the court’s refusal to submit to the jury the question of assumption of risk. It is admitted that the failure of the tower man to properly operate the switch was not a violation of any statute, and that the common law rule of assumption of risk controls on interstate railroads, unless the accident is caused by the violation of a statutory law.

This brings us to a consideration of the question whether Was-son, when he violated the rules of the company in the operation of his train, assumed the extraordinary risk arising from a negligent act of his employer of -which he had no knowledge, or was guilty of contributory negligence.

Assumption of risk, unless it is an express provision, rests upon the implied or inherent conditions- of the contract of employment, and no right of action exists to the employee for injuries caused by risks ordinarily incident to the employment or by extraordinary risks comprehended by the employee. Narramore v. Cleveland, C., C. & St. L. Ry., 96 Federal 298; Atchison, T. & S. F. Ry. v. Bannard, 66 Kansas, 81 (71 Pac., 253) ; Chicago, B. & Q. R. Co. v. Shalstrom, 195 Federal, 725.

The employee is ordinarily presumed to have had knowledge of and agreed to assume all the ordinary and usual risks of his employment, and also to have assumed all the extraordinary risks arising from the negligence of the employer which are known to and appreciated by him, if after comprehending the dangers incident to such negligent acts of his employer he continues in his service.

The Court of Appeals of Indiana, in Columbus Cresoting Co. v. Baird, 44 Indiana App., 810 (89 N. E., 321), say:

“Assumption or risk involves no act of negligence whatever on the part of the injured party, but arises out of the contractual relations of the parties, and involves an injury arising from some danger incident to his employment, or of which he had knowledge, actual or constructive, when he entered upon the performance of the things he was doing when the injury occurred, the risk of which the injured party is presumed to have agreed to assume.”

It thus appears that the defense of assumption of risk is based upon the actual or presumed knowledge that the employee had of the conditions which resulted in his injury, and his assuming these conditions by his contract.

Contributory negligence, on the other hand, involves an act, cr the omission to act, on the part of the employee. It is negligence on the part of the employee in doing the work required of him which, in connection- with the negligence of the employer, caused his injury. It involves the doing or the failure to do some act in the employment of the master which, in the exercise of ordinary care and prudence, the employee should not do or should do for his own safety.

Taft, Justice, in Narramore v. Cleveland, C., C. & St. L. Ry. Co., supra, distinguishes assumption of risk and contributory negligence as follows:

“Assumption of risk is in such cases the acquiesence of an ordinarily prudent man in a known danger, the risk of which he assumes by contract. Contributory negligence in such eases is that action or non-action in disregard of personal safety by one who, treating the known danger as a condition, acts with respect to it without due care of its consequences.”

Again, Labatt’s Master and Servant, Section 1219, says:

“Since tlie conception underlying the servant’s assumption of a known risk is essentially that of an implied agreement to accept the responsibility for any bodily hurt which may result from his exposure to that risk, and the theory upon which contributory negligence is held to preclude him from recovery is that he was guilty of imprudence in the premises, and that this imprudence was partially or entirely the cause of his injury, the differentiation of the two defenses in practice would seem to present no great difficulties.”

Other citations might be referred to which define and explain assumption of risk and contributory negligence, but we think the above will suffice to explain the legal principles involved in the two defenses.

Now, applying the facts in the present case to these principles we find that Wasson had no knowledge of the negligence of the company in operating the switch, and for that reason the company can not avail itself of the defense of assumption of risk. When he violated the rules of his employer in the operation of his train he assumed all the ordinary risks arising from his negligent operation of his train, but he did not assume the extraordinary risks caused by the active negligence of his employer of which he had no knowledge.

The Supreme Court of Colorado, in passing upon the liability cf an employer for injuries arising from the violation of the rules of the employer, held that:

“'The decedent assumed the risks of dangers incident to his violation of the rules which he knew or could have known of by the exercise of ordinary care.” Elkton et al, Co. v. Sullivan, 92 Pac., 679.

-Wasson was guilty of negligence in operating his train and the company was guilty of negligence in not properly setting the switch, and the two acts of negligence combined caused the injury.

“The accepted doctrine is that if the evidence clearly shows that the injury complained of was caused by the servant’s violation of a rule promulgated for the protection of the class of employees to which he belonged, under such circumstances as those attending the accident, a court is justified in declaring him to have been, as a matter of law, guilty of contributorymegligence, provided that the rule in question was valid and reasonable.” Labatt’s Master and Servant, Section 1281.

Tn an action where the plaintiff, a brakeman on a freight train, had gone between the cars for the purpose of coupling them, in violation of tbe rules of tbe company, tbe federal court of appeals, in Gleason v. Railroad Co., 73 Federal, 647, held that:

“The plaintiff was guilty of such contributory negligence as to bar any recovery from the railroad company for his injuries, even if the presence of the grade stake constituted negligence.”

Wasson, in violating the rules of his company by operating his train at a greater speed than that allowed by the rules, was guilty of negligence and assumed all the dangers ordinarily incident to the dangerous mode in which he was operating his train, but he did not assume the extraordinary dangers caused by the negligence of the defendant which were unknown to him. We think there was no error in the court’s refusing to submit to the jury the question of assumption of risk.

It is further urged that the court below erred in not setting aside the verdict because of the jury’s refusal to obey the instruction of the court to diminish the recovery in proportion to the amount of negligence attributable to Wasson, and in entering judgment on the verdict after the plaintiff below had entered a remittitur.

The federal statute already referred’ to reads as follows:

“That in all actions hereafter brought * * # the fact that the employee may have been guilty of contributory negligence shall not bar a recovery, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee.”

-The jury was instructed by the court that the defendant below was guilty of negligence and that Wasson was guilty of contributory negligence, and that they should determine the amount of damages under this_ statute. This the jury refused to do, but returned a verdict for "the full amount of damages, and in answer to an interrogatory they said they did not reduce the damages by reason of the negligence of Wasson. This was in direct violation of the charge of the court.

“Where, from the special findings and the general verdict, it appears that the jury disregarded an instruction given by the trial court concerning a material matter in issue; Held-. That the judgment based on such verdict must be reversed.” Frank houser v. Neally, 57 Pacific, 980. To the same effect is Westinghouse Electric Co. v. Tilton, 76 N. W., 416; Limburg v. Insurance Co., 23 L. R. A., 99.

The record in this case clearly establishes the negligence of the company in failing to properly set its switch, and the contributory negligence of Wasson in disobeying the rules by operating his train at such a high rate of speed through the interlocking switch. The instruction of the court to the jury was correct. This is not challenged by the defendant in error, and even if it was not correct the verdict of the jury should be set aside for a violation of the instructions of the court, unless these instructions are challenged and disputed. Drew v. Insurance Co., 61 N. W., 34; McAllister v. Coal Co., 78 Pacific, 595.

The question presented by this verdict is not one of excessive damages which the court may modify by a remittitur, but it 'presents a question of the jury’s failure to return a verdict under the statute in this ease. The statute requires that, where the employee is guilty of contributory negligence, the jury shall diminish the damages in proportion, to the negligence of the employee. This it failed to do. By entering judgment after a remittitur had been made, the court was not reducing an excessive verdict, but was determining a question of fact which the law required the jury to determine. This we think the court could not do.

.The judgment of the court below is reversed for failure of the jury to obey the instructions of the court in determining the amount of damages.


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    INJURY TO WOMAN FROM PREMATURE STARTING OF CAR..
    Court of Appeals for Hamilton County.
    The Cincinnati Traction Company v. Minnie A. Pierce.

    Decided, July 23, 1913.

      Charge of Court — Explanation to Jury of Special Charge — Omission of Qualification as to Presumption of Contributory Negligence — Accident to Woman Alighting from Street Car.

    1. An explanation made by a trial judge'to the jury with reference to a special charge, which at the request of one of the parties he was about to give before argument, does not constitute prejudicial error requiring a reversal of the judgment, unless the language so used in some wa!y modified or tended to explain or qualify the language used in the special charge.
    2. In a charge to a jury in a negligence case, it is not error to omit the qualification that if the evidence of the plaintiff raises a presumption of contributory negligence recovery is defeated unless the presumption is rebutted, where the answer contains no allegation of contributory negligence and there is no evidence tending to establish it.

      Kinkead &'Rogers, lor plaintiff in error.

      Snyder <& Dickerson and Thos. L. MicMe, contra.
    Jones (E. H.), J.; Swing, J., and Jones (Oliver B.), J., concur.

       Affirmed without opinion, Cincinnati Traction Co. v. Pierce, 90 Ohio State.

   The defendant in error was plaintiff below, and in her petition prayed for damages against the Cincinnati Traction Company for injuries received by her while alighting from one of its cars, by the sudden starting of said car, which resulted in her being thrown violently to the street.

The errors-complained of in the brief of counsel for the traction company are two in number, and relate to the charge of the court.

The first error assigned is that the trial court erred in commenting upon a special charge which he gave to the jury at the request of defendant below. This assignment of error is based upon the statutory provision that when a special charge is given it shall not be modified, explained or qualified in any way by the trial court. The language which the court used and which is complained of here is as follows:

“1. I have been requested to give you special charges and the law requires me to give these special charges before the arguments in order that counsel may refer to them in their arguments. These special charges do not constitute the entire law of the ease. They are to be used in connection with the general charge. And the special charges will be taken by you to the jury room, and you may see them. The general charge you have to remember as well as you can. But the special charges which I will give you, and the general charge together, will constitute the law of this case to govern you in your deliberations and in the application of the facts as you have heard them in this case.”

It may not have been necessary for the trial court to have ■ made this explanation to the jury, but that it was not necessary does not make it error. In order to constitute prejudicial error compelling a reversal of the ease, it must appear that the language above quoted in some way modified or tended to explain or qualify the language used in the special charge. We do not believe this was its purpose or that it had this effect.

The cases relied upon by counsel for plaintiff in error furnish striking instances of language used by the court, the obvious intent and effect of which was to explain the special charges. In the case of Rupp v. Shaefer, 21 C. C., 643, the court at the close of its general charge read two special charges which he had given to the jury, and then commented at length upon them in an attempt to explain them and to express to the jury in different language their contents. It was this which the circuit court held to be prejudicial error.

The other cases relied upon in support of the exception to the action of the trial court in this respect differ in the same way from the casé now under consideration, and show an obvious intent on the part of the trial judge in the language used to explain the law as expressed in the special charges.

The second alleged error is thus stated by counsel in their brief: i

“In his general charge to the jury the trial judge erred in stating absolutely that the defendant would be liable if the plaintiff was injured by the negligent starting of the ear while she was in the act of alighting therefrom, without the qualification that if her own evidence raised a presumption of contributory negligence it would defeat her recovery unless the presumption were rebutted.”

We think under the rule laid down in the case of Traction Co. v. Forest, 73 O. S., 1, it would have been error for the court to have made any reference to contributory negligence in the charge to the jury. We fail to see that the evidence in any way tends to prove contributory negligence on the part of the plaintiff. In order to recover, she was required to prove that the accident, occurred in the manner alleged in her petition. The answer was a general denial, and charged no negligence on her part, either contributory or otherwise. Tn this respect it differs from the ease of Behm v. Traction Co., 86 O. S., 209, which ease, at the close of the opinion, is distinguished from the Forest case by such allegation in the answer and by the fact that there was evidence tending to prove it.

Under the state of the pleadings in this case we think the rule laid down in the Forest case should apply, and that it would have been error for the court to have made any reference in its charge to the doctrine of contributory negligence.

Judgment affirmed.


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    MEANING OF THE WORDS “ LINEAL HEIRS.”
    Court of Appeals for Guernsey County.
    Edmund Burnett v. The National Coal Company.
    Decided, November 16, 1914.

      Right'of Action for Injury in a Mine — “Lineal Heirs" Who May Recover — Include Both Ancestors and Descendants — Section 972.
    The term “lineal heirs” as used in Section 972, General Code, before the amendment thereof (103 O. L., 76), is not confined to children of a decedent, but includes the parents as well.

      J. H. Macltey, for plaintiff.

      Scott •(& McCullough, for defendant.
    Metcalfe, J.; Pollock, J., and Spence, J., concur.
   David Burnett was an employee of the defendant company, which is a corporation engaged in the business of mining coal. While at work in one of the mines of the company he received injuries resulting in his death. It is claimed that such accident was caused by the negligent acts of the defendant company. He left no widow or children, nor descendants of children, nor brother nor descendant of a brother, but did leave his father and one sister surviving him. The father brings this action to recover under said Section 972, General Code.

His right to recover in this ease depends upon the construction to be given to the term ‘ ‘ lineal heirs ’1 as used in said section. Said Section 972 so far as necessary to be considered in this case reads, as follows:

‘ ‘ In case of an injury to persons or property, occasioned by a violation of any of the provisions of this act, or any wilfull failure to comply with any provision of this act by any owner, lessee or agent -of a mine, a right of action shall accrue to the person injured, or any direct damage he may have sustained thereby. In case of loss of life, by reason of such willful neglect or failure, a right of action shall accrue to the widow and lineal heirs of the person whose life has beén lost, for like recovery of damages for the injury they shall have sustained.”

That the right to recover provided for by this section is limited to widow and lineal heirs is plain enough, but the contention is, who are the “lineal heirs”? It is claimed on the one hand that it refers only to children and their descendants, and on the other hand that it includes the parents and all those who are in a direct line-of relationship whether upward or downward.

Authority on this question is somewhat meager. Webster defines lineal ‘ ‘ descending in a direct line from an ancestor; hereditary; derived from ancestors; — opposed to collateral; as, a lineal descent, or a lineal descendant.”

Lineal consanguinity means relationship in a direct line up or down (2 Repalje & Lawrence L. D., 763). A child is lineally related to its father and mother, and the father and mother are lineally related to the child. A man’s ancestors are just as much lineally related to him as his children and their descendants. One is above and the other is below, but the relationship is direct. It is urged that this is not a question of consanguinity. The statuté uses the term “lineal heirs” but has a person any “lineal heirs” who is not related to him? Under Sections 8573-8574 the father is heir to his son in default of certain other heirs. That is to say he inherits directly the property of his son if there are none of the persons living upon whom the statute casts a prior right of inheritance. The statute does not use the term ‘ ‘ lineal descendants. ’ ’ The father is an heir and is lineally related to the son, whjr then does he not come within the terms of this statute? Can any good reason be given why the statute should be restricted to descendants alone, when there are others .who are lineally related to the decedent and are heirs? Such a construction seems to us narrow in the extreme. It is true that 1his statute is in derogation of the common law and must receive a strict construction. That is, its terms must not be extended beyond the plain import of the words used, but we are clearly of the opinion that the words “lineal heirs” include within their plain meaning both ancestors and descendants.

The only case which we have been referred to and which we have been able to find bearing directly upon this question is Willis Coal & Mining Company v. Grizzell, 65 N. E. R., 74. In this ease the court had before it for construction a statute of Illinois very similar in terms to Section 972, General Code, and the question to be determined was whether or not the father, as in this case was or was not a ‘ ‘ lineal heir. ’ ’ In the syllabus the court- say:

“Under Section 33 Act of April 18, 1899, in relation to minors R. S. 1899, page 1175 providing that “ in case of death by willful violation of the act a right of action shall accrue to the widow of the deceased, his lineal heirs or adopted children, or any other person who is dependent for support upon him. The right of action is in the widow if there is one; if not, then in the lineal heirs, which include parents or adopted children.”

And in the opinion, page 76:

“Lineal consanguinity is that relation which exists among persons where one is descended from the other, as between son and father or grandfather, and so upward in the ascending line, and between father and the son, his grandson, and so downward in the direct descending line.”

The judgment in this case is reversed and remanded to the common pleas court with instructions to overrule the demurrer to the petition.


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    A QUESTION INVOLVING ALLEGED NEGLIGENCE SHOULD BE LEFT TO THE JURY.
    Court of Appeals for Hamilton County.
    Harry Weingartner, by His Mother and Next Friend, v. The Ohio Electric Railway Company.

    Decided, December 5, 1913.

      Negligence — Collision Between Electric Car and Automobile at an Interurban Crossing — ■Responsibility for the Accident a Question for the Jury.

    When the circumstances are such that reasonable minds might differ, it is primarily the duty of the jury, rather than of the judge, to determine whether the conduct of a person at a particular time, under all the circumstances of the case, was that of a reasonably prudent man.

      Kelley & Hauck, for plaintiff in error.

      W. C. Shepherd, George H. Warrington and Robert S. Marx, contra.
    Jones (O. B.), J.; Jones (E. H.), J., concurs; Swing, P. J., dissents.

      Motion to require Court of Appeals to certify its record overruled hy the Supreme Court March 23, 1915.

   The action beloAv AA'as brought by the plaintiff to recover damages for injuries suffered by him resulting from an automobile which he was driving being struck by an interurban car of the defendant company, at the intersection of Yan Zandt road and Hamilton pike in this county.

Plaintiff claimed that the defendant company was negligent in running its car at a high rate of speed and in fáiling to give proper signals of its approach on the highway.

At the close of plaintiff’s testimony a motion was made by defendant for an instructed verdict in its favor. This motion was granted by the trial court and a judgment was entered for defendant. The question to be determined here is Avhether or not the court erred in this ruling.

The Supreme Court, in the able opinion by Wanamaker, J., in the recent case of Gibbs v. Village of Girard, 88 O. S., 34, has discussed at length the question of the right of a trial judge to direct a verdict. The language in this opinion at page 42, quoted from,the opinion of Judge Spear in Cincinnati Street Railway v. Snell, 54 O. S., 197, is in part as follows:

“The motion involved an admission of all the facts which the evidence in any degree tended to prove, and presented only a question of law, whether each fact indispensable to the right of action, and put in issue by the pleadings, had been supported by some evidence. If it had been, no matter hoAv slight the evidence, the motion should have been denied, because it was the right of the plaintiff to have the weight and sufficiency of his evidence passed upon by the jury.”

An examination of the record in this east1 shows that evidence was offered by plaintiff tending to prove the facts necessary to support plaintiff’s right of action. The trial judge below, however, found that plaintiff’s evidence showed that he was himself guilty of contributory negligence in the manner in which he approached and proceeded on his way over the crossing. The evidence showed that he and the other occupant of the automobile had a view of the track for some distance at a point in the roadway about one hundred and fifty feet distant from the track and that near the track the view of the part of it on which the car came was obstructed by a high bank and cemetery; that he stopped the car at a point between twelve and twenty feet from the rails and looked and listened for a car, but that he did not stop the engine of the automobile which made a slight noise; that he then moved forward at a low speed, looking and listening, but did not see the approaching car until he was on the track. The trial court found as a matter of law, that plaintiff’s conduct in driving the automobile across this track was not that of a reasonably prudent person, and that he was therefore guilty of contributory negligence and could not recover (15 N. P.[N.S.], 31). This case had been tried before, and a similar motion was granted by thetrial judge at that time, but after the decision announced in the case of Steubenville & Wheeling Traction Co. v. Brandon, 87 O. S., 187, the verdict was set aside and a new trial granted. 13 N.P.(N.S.), 659,

In the opinion of this court, when the circumstances are such that reasonable minds might differ, it is primarily the duty of the jury, rather than that of the judge, to determine whether the conduct of a person at a particular time, under all the circumstances of the case, was that of a reasonably prudent man. It is not the province of the court as a matter of law to say that a man driving an automobile about to cross a railroad track, must stop the machine at any particular point, or whether or not he must stop the engine of his machine, or whether or not, where the view is obstructed, he would be required to get out and walk forward on to the track. These are matters to be submitted to the jury under proper instructions, and the question of negligence must be determined primarily by it.

The judgment below is reversed and the cause remanded.