text:
    (Sixth Circuit—Huron Co., Ohio, Circuit Court.
    April Term, 1894.
    Before Bentley, Scribner and Haynes JJ.
    THE B. & O. R. R. CO. v. SUTHERLAND.

      Injury to R, R. employe — Vice principal doctrine in Ohio — Distinction between decisions of Federal and State Courts.

    1. Where a person is employed by a railroad company as a common laborer or helper, and by the company’s orders placed under the immediate personal charge and direction of a locomotive engineer, known as a “hostler,” such engineer is not a fellow servant but a superior, and the company is liable to the employe who may be injured by the negligence of such engineer or hostler.
    2. The relations of superior and subordinate having been established at the time the service was entered into, the fact that the work in which the men were engaged and the manner of doing- it, at the time of the accident, would not alone constitute one superior to the other, will not alter or change the original contract entered into at the time the employment was made.
    3. A master mechanic in the employ of a Railroad Company, having general authority to hire men, stands in the relation of the company to the men, and will be held to have authority to establish the relations between them of superior and subordinate.

      Error to the Court of Common Pleas of Huron County.
   Haynes, J.

The case of the Baltimore & Ohio Railroad Company, plaintiff in error, vs. William Sutherland, defendant in error, comes into this Court upon petition in error brought for the purpose of reversing the judgment of the court of common pleas in the case wherein William Sutherland was plaintiff, and the Baltimore & Ohio Railioad Company was defendant.

The petition in the court of common pleas sets forth that the defendant is a railroad company etc., and that the plaintiff on or about the 31st day of January, 1882, and for some time prior thereto was, and had been in the employ of the defendant as a common laborer at its coal yard in the village of Chicago Junction, Huron County, Ohio, and that he by said defendant’s orders, -was placed under the immediate personal charge and direction of one Edward Lewis, a locomotive engineer of the defendant, and known as the “hostler,” and while in the performance of his duty to said defendant in his said employment, and while strictly obeying the orders and directions of said engineer or “hostler,” said engineer so carelessly, negligently and recklessly ran, moved and managed one of the locomotive engines of said defendant that it was then and there run upon and against this plaintiff, breaking and crushing the bones in his right leg, lacerating and tearing the flesh between the knee and the ankle joints, causing him great pain and suffering, and whereby amputation of plaintiff’s leg became and was necessary etc., setting forth the damages and asking for judgment.

To that, there was an answer filed by the company which, in its first defense, says it is. a corporation, owning and operating a railroad as therein described, but denies all the averments contained in the petition, and setting up certain matters by way of a second defense which it is immaterial perhaps to introduce here. Suit was commenced by the plaintiff soon after the injury, and the case, by a curious conjunction of circumstances, has been delayed until a trial was had in the court of common pleas a short time since, and it is now in this court, some twelve years after the time of the accident.

The case was tried ,to a jury, and was very ably contested, and submitted to the jury upon charges given by the court.

There are, I may say, many exceptions noted in the case, some to the admission of evidence, and some to the rejection of evidence, and some to the refusal of the court to charge, and some to the charge of the court as given.

The case was tried upon rather different theories which were entertained by the respective counsel for plaintiff and defendant. The counsel for the plaintiff pursuing their line, submitted evidence under what they conceived to be the rules of law as laid down by the Supreme Court of th'is state governing this class of cases.

The defendant submitted testimony,and submitted charges to the court and took exceptions to the charge of the court and the refusal of the court to charge, upon the theory as. laid down by the Supreme Court of the United States in the case wherein the Baltimore & Ohio Railroad Company were plaintiffs in error and Baugh was defendant, found in the-139 United States Supreme Court Reports, page 368.

It is claimed by the counsel for the plaintiff in error here-that the decision made by the Supreme Court of the United States does not materialy conflict with the decisions that-have been made by the Supreme Court of Ohio.

It will be impossible, in the time that is allotted me for the delivery of this opinion, to go'through with an examination of all the exceptions that have been made in this case, but a discussion of some of the leading principles-involved in the case and some of the leading facts, will practically decide the case, and will also decide the various exceptions that, have been noted in regard to the testimony and the charge of the court.

. The petition, it will be observed, alleges that Sutherland went into the employ of the railroad company as a common laborer, but directly to act under the personal charge and direction of one Edward Lewis, a locomotive engineer of the defendant, his position being substantially that of helper to the “hostler,” as he is called. The contention of the plaintiff’s attorneys is that, by the terms of the contract which was made by the direction of the party who employed Sutherland, Lewis became his immediate superior, and in that capacity, stood as a representative of the company, and that Sutherland became subordinate to Lewis and was bound to ■obey his directions and orders and to do as he was asked by Lewis.

The theory of the counsel for the railroad company is, that Lewis was in no sense the superior officer of Sutherland; that he did not stand in the position of a representative of the company, but that some other party was the superior officer, to-wit, the master mechanic.

The first question that is presented for our consideration and the first matter -that we ought to examine, is as to which theory is the correct one for the government of this case.

I call attention to the case in the 31st Ohio State, page 292, the case of the Berea Stone Company against Kraft. That is the case where a laborer in the employ of the Berea Stone Company had been injured, as was alleged, by the negligence of the foreman. The injury occurred by reason ■of a certain appliance for lifting stone being too slight and insufficient. This had been attached to a stone by the foreman who, at that moment, took the place of a common laborer who was temporarily absent, and after he had attached the apparatus or appliance, the stone was lifted, and the car or appliance then broke and the stone fell upon the plaintiff.

In that case it was claimed that in as much as the foreman was occupying the position of a common laborer, the company was not liable; that he stood, for the time being at least, in the position of a co-employe of the plaintiff in the case, in the same line of duty, and not in ■a position of control or superiority.

The court say in that case, that “therelation existing be±tween them was such as brings the case clearly within the rule established by repeated adjudications of this court, and now firmly settled in the jurisprudence ■ of the state, that' where one servant is placed by his employer in a position of subordination to, and subject to the orders and control of another, and such inferior servant, without ■ fault,and while-in the discharge of his duties, is injured by the negligence' ■of the superior servant,the master is liable for such injury,” and they held the company liable. I read that as a statement of the law of Ohio as delivered by the Supreme Court.

The Supreme Court has recently had occasion to examine a case arising, in part at least, under a new section of the law passed April 2nd, 1890; it is the case of the Rail Road Company against Margrat, decided March 13th, 1894, and Is to appear in the 51st Ohio State Reports. I read at page 250 from the Law Bulletin of May 7th, 1894. In that case the brakeman of one train, in the line of his duty passing from the locomotive of his train to the rear of his train for ihe purpose of detaching certain cars, passed upon the main track of the railroad company, claiming that he had a right to do so and practically was compelled to do so because of the icy condition of the road-bed between the tracks that his car was upon, and the main track, and was injured by being run upon or over by the locomotive in charge of the •engineer who had the fireman with him,the-fireman who was • his subordinate, as was claimed, although that was denied by Ihe railroad company, and this section of the statute was interposed, or cited as ground for holding the railroad company liable: “Section 3. That in all actions against a railroad company for personal injury to, or death resulting from personal injury, of any person, while in the employ of such company, arising from the negligence of such company, or any of its officers or employes, it shall be held in addition to the liability now existing by law, that every person in the employ of such company, actually having power oi authority to direct or control any other employe of such company,^is not the fellow servant but superior of such other employe; also, that every person in the employ of such company having charge or control of employes in any separate branch or department, shall be held to be the superior and not fellow servant of employes in any other branch or department, who have no power to direct or control in the branch or"department in which they are employed.”

The contention of the railroad company was that the engineer of the locomotive was not the person charged with the control of the employe of another branch or department, such as would make the company responsible for his action, but that it had reference to some person who had charge of that whole department; for instance, charge of the locomotive department, or the transportation department.

The court in discussing this matter,make some statements as to the law of Ohio at the time this act was passed. They say:

“This section explicitly declares an intent to preserve the existing liability of railroad companies for the negligence of its employes towards each other, as well as to add to it. The liability that existed before and at the time this action was enacted into a law is, perhaps, as clearly set forth by the cases of Railroad Company vs. Keary, 3 Ohio State, 201, and Railroad Company vs. Lewis, 33 Ohio State, 196, as in any of the cases bearing upon the subject to be found in our Reports. In the sixth and ninth clauses of the syllabus in the first of the above mentioned, cases, this court declared that:

‘“6. Á principal is not liable to one servant in his employ for injuries resulting from the carelessness of another servant, when both are engaged in a common service, and no power or control is given to the one over the other. They stand as equals to each other, and are alone liable for the injuries they may occasion.

“‘9. The agent or officer entrusted with power and control over the subordinates and the operations of the business, is not engaged in a common service with them, admitting of joint participation; nor is he, in any just sense', their fellow servant; but their employments are separate and distinct, although both are necessary to a successful result in the business. ’

“While in the second and third clauses of the syllabus of the latter of the two cases it states, that:

‘“2. Where, however, a master places one servant in a position of subordination to another servant, and the subordinate servant, without fault, is injured through the negligence of the superior sen ant, while both are acting in the common service, the master is liable therefor.

“‘3. Whether or not one servant is placed’by a common master under the control of another servant, thereby creating the relation of • superior and subordinate between them, must be determined from the evidence in each particular case.’

“Now, if the express rules of a railway company, or .its recognized custom, gives to an engineer in charge of a locomotive authority to direct or control a fireman in the discharge of his duties on the same locomotive, then the relation of superior and subordinate is created between the two; and it would seem that the principles announced in the foregoing syllabi would render the company liable to the latter for an injury resulting to him through the negligence of the former, while both were acting in the common service. The remedy was so complete, where the relation of superior and subordinate actually existed, that the statute, here, could have little or no operation. Still, it may be said that the statute makes the rule of liability of certain and universal application,denying any exception to its operation, wherever the relation of subordinate and superior exists, and the subordinate is injured by the negligence of the superior, while engaged in the common service.

,, “The relation of superior and subordinate, however, did not •actually exist between Margrat and the engineer by whose negligence he was injured; for, as we have seen, the latter had no authority to command or direct the former in discharging his duties. But the statute, we think, declares that relation to exist, as matter of law, for the purpose of charging the company, if the engineer was the superior of, that is, was authorized to command or direct, any co-employe whatever, and Margrat was without such authority. They ■must have been in separate branches or departments of the company’s service, for the section so declares. The section, however, makes no attempt to define the terms, ‘department’ and ‘branches;’ but these terms should not be limited so as to embrace, merely, those large divisions, created for convenience in administering the affairs of the company.- On the contrary, it is more reasonable to suppose that they relate to those minute ones which concern the daily duties of the employes. Those terms are general and comprehensive; but as the legislature discloses no purpose in this connection, to regulate the internal affairs of a railway company, it should not be presumed to refer to divisions of its business made for its own ends, and if not to such divisions, what divisions could it mean, but those which divide up the employes while in actual service. The section expressly declares a purpose to enlarge the remedy of the employes for accidents occurring in the course of their employment. This declaration emphasizes the presumption that the terms under consideration should be construed as referring to conditions affecting them, rather than to those which are established by the company for its own purposes.”

We think these statements of the law of Ohio cited, are sufficient to say that the rule of law, as laid down by the Supreme Court of Ohio, is such that, if it be true that Lewis was to have the charge and control of Sutherland, and Sutherland was to be subordinate to him and obey' his directions, and take his commands from him, it would create a relation of superior and subordinate between Lewis and Sutherland. That is t© say, as to Sutherland, Lewis would stand in the position of the company, and would be the representative of the company.

It would seem to us, after a careful reading of the case of B. & O. R. R. Co. v. Baugh, 139 U. S. 368, cited by counsel, that there is a distinction,a marked difference between the law of Ohio, as laid down by the Supreme Court of Ohio, and the law as laid down by the Supreme Court of the United States in the case cited. In short, it seems that the contention that is being made by counsel for the railroad company here, is substantially the contention that was being made in the Margrat case for the railroad company under the laws of Ohio, and that is, that the person who is to be deemed his superior is really the head of the department, in this case the master mechanic.

This leaves us to the discussion of the question as to the relation between Sutherland and Lewis as evidenced by the testimony in the case.

I may say here, that the case is not free from doubt, and may be said to be a very close case. Nevertheless, we have to take the testimony as we find it in the record, and endeavor to give it a fair and just interpretation and to ascertain the result that ought to be arrived at in the case.

As to the employment of Sutherland and the duties that were assigned to him, we have in the main, the testimony of Sutherland alone. Sutherland tells us that he was hired by a man by the name of Gunther, who was called the master mechanic of the shops, and who was authorized to employ men. Indeed, it was stated by the counsel for the defendant below, that he admitted that Mr. Gunter was the master mechanic and hired the men, and also stated that he hired them and discharged them; that the superintendent of motive power gave him authority to do so, the superintendent of motive power being Mr. Harrison, I believe.

Sutherland says he was employed in January, 1882; that he went to work on the 16th day of January. He was first asked in regard to his position and who employed him, and he says it was the master mechanic. He then says, “I asked Mr. Gunther for employment; he told me be could give it 'to me at the coal chutes; he told me that Edward Lewis was ‘hostler,’ and that he would instruct me about this work if I would work under his instructions at the chutes.”

Question. ‘‘What, if anything, did he say about obeying him?” Answer. ‘‘He said that I would give the supplies under his orders, obey him.”

Question. ‘‘Obey his orders?” Answer. ‘‘Yes, sir.”

The testimony then changes to a party that was temporarily acting in the place of Mr, Lewis. He says, he was to go there and work under Mr. Brunbaker until Mr. Lewis would come. Now, Mr. Sutherland, as I have already stated , is the only party that testifies as to actual conversation between himself and Mr. Gunther. Mr. Gunther it is said, left the employ of the company, I think the testimony shows that, and is in some other place — where, it is not stated. It is sufficient to say that his testimony has not been taken in any form, so we cannot, or do not have his version of the case.

We think the testimony of Sutherland fairly shows that when he was employed, he was employed to be an assistant to Mr. Lewis, the ‘‘hostler;” he was to take his orders from him, and receive his instructions from him, to do what he was directed by Lewis to do.

Lewis, as is shown in another part of the testimony, was to receive the locomotives when they were brought in and placed upon the. side-track, and was to see that they were supplied with coal and sand and with water, and to clean out the furnaces and put out the fires, and have them in condition and for preparation to go out again when they should be required to go out.

While the testimony is not very clear upon that point, still it shows that, as we understand the record, Mr. Sutherland was to assist Mr. Lewis in relation to these various matters.

.. The injury occurred at the coal chutes while the locomotive was receiving coal, and the testimony is very largely •confined to what transpired at that place, what was done, 'what orders were being given at that time and at that point.

Some testimony has been offered by witnesses on both ■sides in regard to the duties of these helpers, and in regard to the duties of the hostler. The testimony of Mr. Harrison, 'the superintendent of motive power, was taken, and some of his testimony was received in evidence, and some of.it was •excluded. His testimony was taken for the purpose and was offered as tending to show that Lewis was not a super: ior officer of Sutherland; that he really had no control over him; that the two were employed in and about a common service and each was pursuing his own particular duties without any special power of the one over the other, in giving orders or directing his actions or movemepts. Some portions of his testimony were excluded and exceptions were taken; but we might say in passing, that we are unable to see that the court committed any error in doing so. We think there was a marked tendency on the part of Mr, Harrison in giving his testimony, perhaps in some instances, in answer to questions, for him to attempt to testify as a matter •of law, what his position and the position of these parties was toward each other, and to place himself in the position of the jury deciding the questions at issue.

It is said here, in relation to this matter, by counsel for the railroad company that, although the testimony of Sutherland rather tended to show that Lewis was his superior officer, yet that of itself does not conclude the case; that it is to be shown further that, by the orders and directions of 'the company, Lewis was directed to become the superior •officer of Sutherland, to give him orders as to what he -should do.

We are unable to concur in the view that is taken by •counsel in that”respect, and appreciate at least, the full force of the objection. It seems to us that it is sufficient for the-purposes of this case to say that if Sutherland was hired as^ one of the helpers of Lewis, and he was then directed to receive his orders from Lewis, and obey his orders, that would, place him in the relation of a subordinate to Mr. Lewis.. That would fix his position so far as he and the railroad company are concerned.

We may say frankly that, in deciding this case, if we-were to take alone the testimony of the various witnesses for the plaintiff as to what was done by the parties and their-acts in conducting and carrying on the business, we shouldi very seriously doubt whether there was any relation established of superior and subordinate between Lewis and Sutherland.

But the testimony of Sutherland stands here, and stands ■uncontradicted, and evidently has been acted upon by the-jury, and by them taken to be true, and they have returned a verdict which, of course, must find and necessarily does find' that Lewis was the superior officer of Sutherland, and in that capacity really represented the company.

It is claimed and argued by counsel, for the railroad company that, at least in some instances, the testimony shows: that Mr. Lewis was obeying Mr. Sutherland in the matter-of receiving coal at the chutes and in moving the engine.

By looking into that testimony, we find something like-this condition of affairs existing: The chutes by which the-lo;omotives received coal have been described. There were-two helpers assigned to the assistance of Lewis, and their-duties were divided something like this: one would go to» the coal bin and proceed along the top of the bin and ascertain the amount of coal that was in the bins, if he did nok have that information already furnished him, and would'1 give the general direction as to the particular bin out of: which the locomotive should receive its coal. Sutherland' was to assist in letting down aprons and opening coal chutes and causing the discharge of the coal into the tender of the' locomotive. When that was completed, it was customary.for him to, at least, assist in closing up the chutes and putting up the aprons, so that the locomotive might either pass-away entirely from the chutes, or remove to another chute-it it was necessary to be dene.

The testimony shows that when the helper at the top of' these chutes found the proper chute from which the coal waste be taken, he would give notice to the engineer as to the-particular chute to which he was to move his locomotive.

Some evidence was given tending to show that when the' discharge of the coal was completed, Sutherland would put up the apron, and then would give notice to the engineer that the chute was in a condition so that the locomotive could' be moved.

Suffice it to say that,in regard to these matters, it seems to us that they do not throw any material light upon the relation of these parties, or materially change the relation that was entered into between them at the time the contract was made.

It must necessarily follow that the engineer, assuming-that he was the superior officer, must receive from his subordinate notice from time to time, of certain facts, certain-conditions upon which he would act. This did not throw-upon this superior the condition of subordinate by thus directing him what to do. The signals simply operated as-a notice from these parties to him of the matters upon which-he might act, and the conditions under which he might then-proceed to move his engine at his will.

Everything is sustained with the general view that the-engineer was in charge of his engine or locomotive, and was-there receiving coal, and was to give general directions in regard to the receipt of coal by the locomotive, the amount he should take, — the amount he needed, and the general? purposes to be carried out in taking coal from the chutes.

.As I have already stated, what was to be done afterwards •by these helpers, — how far they were to assist him generally in taking water and sand and cleaning out the coal ashes, is -not very-definitely given, but that they were to be his helpers .is clearly shown.

Now, it might be very strongly argued, as it has been urg»ed, that these facts alone would not constitute one a superior to the other; but as I have already stated, we think, when ■taken in connection with the original contract, that that -testimony would not change the contract, and that the relation of these parties was established at the time the service -was entered into, — at the time the employment was made.

It is objected that Gunther was not authorized to establish "these relations, but the testimony shows, we think, taking the testimony of different parties that Mr. Gunther was .there as master mechanic, and general authority was given him to hire men, and to determine the number of men, in a .general way, by the master of transportation,Mr. Harrison; -and in the hiring of the men, in the employment of them-, he really stood in the relation of the company to the men. • He hired them, and he stated to them the terms of the contract.

It does not appear here that Mr. Harrison ever interfered -ns to the relations established between these parties, nor .ever interfered generally in regard to the matter, except it .is said that Mr. Gunther could not finally discharge men -except by Mr. Harrison’s request; nor could he,as a general • rule, hire men; but we think that is to be taken in its general -sense,- — -that Harrison had general control over his department, and had general authority to direct Mr.-Gunther as to .the number of men he was to employ, and that all the details - of the matter were committed to Mr. Gunther, and that in that ■-relation, his act was as completely that of the railroad com■'■pany as if Mr. Harrison himself had been present represent :ing the company,

It was claimed that this injury did not occur to Mr. Sutherland by reason of any act of Lewis while he was in-the line of his duty. There was a great deal of controversy as to the manner in which this accident occurred, and the-circumstances and the surroundings. There were four persons who were present at the time of the injury. There was-Mr. Sutherland, and there was the other helper who was on top of the chutes, but who really heard but very little of the-matter; indeed, the only thing that he seems to have heard’ which was directly connected with, and as the result of the injury, was the outcry that was made by Sutherland at the-time that he was injured when he called to the engineer that he was caught, and that he should move the locomotive-ahead. The other party, of course, was Sutherland, that is, as far as the helpers are concerned; and then the other-parties were the engineer Lewis, the “hostler..” and the-fourth party was a man by tbe name of George, who was-the fireman and who, as the record shows, is dead.

The counsel for the railroad company offered to put witnesses upon the stand, and offered to prove the testimony that" was given by Mr. George upon the trial which was commenced in this case and had in the United States Court at' Toledo.

Objection to that was made by counsel for the plaintiff, and the testimony was ruled out by the court, or rather he-was prevented from giving it, and the objection was sustained to it. No exception was taken to that, and it simply stands-in that manner and form, so that we have not the testimony of Mr. George in relation to the matter.

The testimony shows that these parties had received from" a certain coal chute. — numer 11, I think was the number.— a certain quantity of coal, and the engineer said he needed a-little more coal, or some more; thereupon Mr. Sutherland, as was his proper place, said he could move his locomotive-to coal chute number 8, and that, in the position which the-locomotive occupied at the chute at the time, would necessitate the backing up of the locomotive from number 11, to number 8.

Lewis was in his proper- place in the cab of the engine, -and Sutherland testifies that he, Sutherland, stepped upon the platform, or rather the apron of the coal chute with his left foot, placing it upon some bar that ran across, or some little elevation that would hold him in that position and ne^r to the edge of the apron. The apron had upon its side, a plank about six or eight inches in height, and it had attached to this point near where his foot was on the outside a chain which was attached to a weight in the chute that was used .for drawing up the apron when they got ready to raise the apron up and to hold it up; that he placed his left leg upon the apron, and placed his right leg over the side of the apron, and from that point reached up to a point about the middle of the apron where it was connected with the chute and where some coal had lodged, for the purpose of removing the coal and coal dust so that the apron would go up to its place without any obstruction, and that just as he had leaned over in that position, and while he was in the act of so removing the coal, Lewis suddenly backed th.e locomotive, and his right limb was caught between the top of the cab, or the corner of the cab perhaps, and the side of the apron, and his knee was crushed.

There is conflicting testimony as to how the locomotive came to be started. Mr. Lewis contends in his testimony strongly, that he received notice from Mr. Sutherland that the locomotive should be moved. Sutherland denies that he gave any notice of that kind, but says the movement was voluntary upon the part of Mr. Lewis.

The injury occurred, however, but the position of the parties is used as an argument for the purpose of showing that the plaintiff had-been guilty of some negligence himself in the matter, and in part, for the purpose of showing that Mr. Sutherland is not correct in his statement in regard to the position he occupied; for it is contended upon the part of the railroad company, that Mr. Sutherland was, at the time, seated on the top of the cab with his feet hanging over, as we understood,, and that he had stated to parties that he was in that position, and that in doing so, he had forgotten, — that he had said, that the apron had not been raised; it had passed from his mind momentarily, and that when the locomotive moved back, his limb .was caught. The testimony of the physician who attended him afterwards and y?ho assisted in the amputation of his limb, was given, ■wherein he states that Mr. Sutherland in detail told him that that w'es the position he was occupying at the time.

Some conclusions are endeavored to be drawn from that position, — from the injuries that were received, as they appeared on the limb itself, to show that that was the position "he occupied. That matter has been submitted to a jury, and they have found in favor of the theory of Mr. Sutherland.

There was testimony given contradicting Mr. Sutherland’s testimony, and testimony given to contradict the physician in his statement; indeed, the whole line of testimony ordinarily given in such a case, was resorted to, and the whole matter was submitted to the jury, and with their finding of facts in that regard, we do not feel that there is any ocoasion to interfere.

The position of the party, so far as we can ascertain from ■the evidence and from the photographic maps that wero exhibited to us, is as consistent with the theory of Sutherland as it is with the theory of the other party, and certainly there is no such weight of testimony against the theory of the plaintiff as would call for an interference upon the part of this court to disturb the verdict of the jury.

Upon the conclusion of the testimony, the defendant in error requested certain charges of the court,and these charges are copied into the bill of exceptions for the purpose of presenting the question which is made and presented to the-court — for the purpose of saving the view that the counsel' has of the law of the case, and they are well framed for the-purpose. The court, however, refused the charges requested, and charged the jury upon the theory of the law that is-, laid down by the Supreme Court of this state.

Without going into any of the details in regard to that-matter, we are of the opinion that the charge of the court is substantially correct, and we see no reason for disturbing; the judgment in the case by reason of any e^rorin regard to-rejecting requests, or in regard to those directions upon the-part of the court.

There is one matter here that perhaps should be referred to, and that is in regard to the matter that is set up in the second; defense. It seems that the company had organized a sort of insurance company in which Sutherland had become a< member as is claimed. That was offered in evidence, although not strenuously urged here by counsel, as we understand, for the purpose of showing that plaintiff was not entitled to recover because of the stipulations .or agreements contained1 in this association paper.

The particular clause that is referred to, is this: £'As if? is not contemplated in this scheme to give double benefits id-eases of disability or death resulting from accidents, the-benefits herein promised shall not be payable nor paid when-the contributor or any person entitled to damages because-of the accident to him, whether resulting in death or not, has or makes a claim against said company or any of the-companies operating its branches or divisions, (including the-Chicago Division,) until there be first filed with the committee a release, satisfactory to them, releasing said companies from such damages, signed by all persons entitled to» the same. ”

It is sufficient to say that there is nothing to show that the plaintiff, Sutherland, ever claimed any benefits under this policy or paper; that none was ever made to him, aHLough there is an averment in the answer that the company tendered to him any damages that he might claim under this policy, and that they had also furnished him certain medical attendance.

We think that cuts no figure in the defense of the'case. It is, however, strenuously urged that this paper should have the effect of fixing the status of Sutherland in relation to the company, and to show that, instead of being the subordinate of Lewis, he was, in fact, in another department, and subordinate to other persons. The application for membership is filled out evidently by Sutherland or by some party, and is signed by Mr. Sutherland, as he himself states in his testimony: “The Secretary of the Baltimore & Ohio Railroad Employes’ Relief Association: William Sutherland of Chicago Junction, in the County of Huron, State of Ohio, aged 30, at present employed as a laborer in the machinery department of the Baltimore & Ohio Railroad Company, apply to be admitted a member of the Baltimore & Ohio Railroad Employes’ Relief Association, hereby consenting to be bound by the rules of the association as herein set forth, which I have read, (or have had read to me,) and agreeing that &c. ’’ This is dated the 17th day of January, 1882.

The testimony was rejected by the court, and under the view that we have taken of the effect of the contract that was made between the parties, we are unable to see how this would have any material effect upon the relation of Lewis to Sutherland in this case, or Sutherland to the company.

We do not find that it appears but that, as a matter of fact, he was in the machinery department. He was hired by the master mechanic. That goes about as far as any testimony to show in what department he-was engaged. He was engaged as a common laborer, and was engager! by the master mechanic.

J. H. Collins, for plaintiff.

Charles Pratt and Walker & Severance, for defendant.

We are of the opinion, therefore, that the court did not err in ruling that out, — 'that particular matter of evidence.

As I have already stated, the general items of evidence that have been offered are along the line of the respective theories of the parties, and are to be governed by the views the cuurt took in relation to these theories. We have carefully read this record from end to end, and we have as carefully read the briefs of the respective counsel in the case, and while, as we have said before, the case is not one that is entirely clear and free from doubt, yet in our view of the law of the case, and the facts of the case, our judgment is that the judgment of the court of common pleas should be affirmed, but without any penalty other than costs against the plaintiff in error.

(Affirmed by Supreme Court without report, April 16, 1895.)


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    (First Circuit—Butler County, O., Circuit Court,
    April Term, 1896.)
    Before Smith, Swing and Cox, JJ.
    JOHN v. JOHN.

      Decree for alimony in gross lien on husband’s land from first day of term — Priority as to mortgage—
    1, A judgment in a suit for alimony, settingup the equitable rights in the wife in specific lands of the husband, asking for an injunction and that the judgment be made a lien on such lands, although in form Uly drawn in failing to state that the defendant shall pay the sum decreed to be paid, is a valid judgment against the husband where the obvious meaning is that the husband shall pay the money decreed to be paid.

      Informal Judgment— Valídity—
    2, A decree for alimony in gross operates perse as a lien oil the lands of the husband in the court where rendered from the first day of the term at which it was rendered, and will be a prior lien to a mortgage by the husband on his land, executed In fact before such first day of the term, but not recorded until a later day than the first day of the term of court.
    Appeal from the Court of Common Pleas of Butler County.
   Smith, J.

The facts in this case, briefly stated, are these: On February 3, 1890, Mary M. John filed in the court of common pleas of Butler county, a petition against her husband, George W. John, praying for a decree for alimony, on the grounds therein stated, among others, that he had deserted her and their children in 1881; that the children were then all minors, and that she has since had to provide for them; that she paid for medical services for them’ $70, and has paid for taxes and repairs on the property in which they lived $425. That during the preceding nine years he contributed nothing to the support of his wife and children, and that he had no excuse for such conduct or abandonment. That he and she owned, as tenants in common, 58-|- acres of land, she owning 9-37 thereof, and he the balance, and she gives a specific description of the land. And that the defendant also owns the one undivided half of another tract of land containing fifty-nine and seventy-two hundredths which also is specifically described. That the defendant was then trying and attempting to convey away his said real estate, and has executed a mortgage on the first tract, and is attempting to mortgage the other land. Wherefore she prayed for alimony and an injunction to restrain him from selling of incumbering the land, and that she should also as additional alimony have an amount to repay her for advances made by her as aforesaid, and (hat the amount allowed as alimony be made a charge upon the laud and adjudged the first and best lien upon the land. On the filing of the petition, an injunction was allowed as prayed for.

The May term of the Common Pleas Court, for 1896, commenced May 5, and continued until about October 1, 1890. An answer was filed by the defendant in the alimony case February 11, 1890, having been drawn February 10, 1890, no summons having been served upon him. On August 4-, 1890, at the May term, the court rendered its decree finding the[allegations of the petition to be true, and:1 all the allegations of thejjanswer to^be untrue. It - further' found that the wife had paid for the benefit of the plaintiff-1495.00, as alleged in her petition, and which is to be considered a part of the alimony allowed plaintiff. The court-also allows to plaintiff the further sum of $300.00.

“The court does'^therefore order and decree the reasonable-alimony in money, thejjsum"ofa$795.00, and the court does further order and decree that said sum is hereby made a lien upon all theAeal estate^offthe defendant, which is described as follows:’’ — going on tNdescribe the real estate as in the-petition.

After this is the^followingjstatement in the decree: “The-last mentioned tract being owned jointly by the plaintiff and' the defendant which [isAmdivided, and in proportions as-follows:’’ * * * “and in default of payment of said sum. of $795.00 alimony allowed1 for the period of ten days, execution is allowed to issue';therefor’’ and the costs were adjudged against the defendant.

On the 17th of October., 1894, the action now before this-court was commenced. ’ It was in the nature of a creditor’s • bill, setting up her[decree'-for alimony, the issuance of an ■ execution thereon, and a levy oh the property in controversy, and alleging® thatji Jacob Spear, who is made a defendant, pretends to have a mortgage thereon as assignee of James - B. Smith, and calling upon^him to set up his claim, and asking that the rights of^the’Jparties be fixed, and the real-estate sold, and*the*proceeds^"applied to the payment of her claim.

Spear filed an answer setting'up his mortgage, and claiming the first and best lien on the property, and on the issue-thus raised the case was heard in this court on appeal.

The facts as disclosed in evidence, are substantially these:-.

The alimony case was commenced on February 3, 1890, . and an injunction as prayed for’allowed on February 10,.. 1890. On the morning of that day, John, the defendant, executed to Smith, for money then loaned and for money due Smith, a mortgage on this real estate described in the alimony petition, and on the same day he filed his answer in the alimony case. There is no evidence to show that Smith knew of the alimony proceeding when he took his mortgage, nor that the defendant knew it, but it is most probable that he did, and executed the mortgage to raise money for himself. Smith assigned the mortgage and notes to Spear, a purchaser in good faith before the maturity of the notes. The mortgage was not recorded until July 15, 1890, and on this state of fact, the question is, whether the lien of the plaintiff on her judgment and the execution and levy made thereon, is superior to the lien of the mortgage executed to Smith.

It is objected by counsel for the mortgagee, that the decree entered in the alimony case on August 4, 1890, is not •such a judgment as will operate a lien on any land in Butler county, then owned by John, the defendant, That it is so informal as not to amount to a judgment at all; that it is not set out therein in the ordinary language,“that it is therefore considered by the court that the plaintiff recover of the defendant” a certain amount, and that it is not thereby even ordered by the court that the- defendant pay to the plaintiff the sum awarded to her as alimony. It is true that the decree is very inartifieially drawn, and not at all in accordance with good precedents. But the proceeding in this case was ■something more than an ordinary proceeding for alimony. It set up some equitable rights in the wife, and sought an injunction against the husband to prevent him from disposing of or encumbering the specific real property described therein, and prayed for a decree that any judgment for alimony she might obtain be made a specific lien thereon. The court allowed her alimony in a definite amount, which was payable at once, and by the decree expressly made it a lien on the lands of the defendant described, and in default of the payment of the amount allowed, within ten days, awarded execution therefor. We think it was evidently the purpose and meaning of this decree that the payment was to be made by the defendant to the plaintiff,and that it was a good judgment against him.

But as of what date did this judgment as against the defendant become a lien on these lands? If it is such a judgment as is contemplated by Section 5375 Revised Statutes, it bound the land from May 5, 1890. By Section 5310, it is provided that “a judgment is the final determination of the rights of the parties in action,” Such was the case in this action, and unless there is some decisions of our SupremeOourt to the contrary, we would hold that the provisions of Section 5375 apply to this judgment and decree. It is claimed by counsel for Spear that there are such decisions.

It is true that there was some question as to this matter' under the early decisions in this state, but it seems to us that it is clearly settled by the decision in Conrad v. Emrich, 50 Ohio St. 176, where it is expressly held that a decree for alimony in gross will operate per se as a lien upon the lands of the husband in the county where it is rendered; and Judge Dickman in delivering the opinion of the court reviews those-cases, and holds that under our present system of procedure, judgments of this character, are precisely like other general-judgments, and have the same effect. It must therefore be-a lien on such lands from the first day of the term, and as-the mortgage of Spear was not filed until July 15, and before-that time as to other persons than the parties to it had no legal effect, the lien of the judgment was superior to that of the mortgage.

We further are of the opinion that the suit for alimony,where the land was described and equitable relief sought, and asking that the alimony decreed to her should be made a lien on the land, made it a lis pendens, and that parties-. pending the same, could hot acquire an interest in the land against the claim of the wife — the court having apparently acted favorably on such equities. 30 Ohio St., 579.

Stephen Crane, Attorney for Plaintiff.

A. F. Hume, Attorney for Defendant.

Decree for plaintiff.


author: Day, J.

text:
    (Third Circuit-Seneca Co., O., Circuit Court.
    December Term, 1895)
    Before Seney, Day and Price, JJ.
    ANNIE R. HUBER, et al. v. FREDERICK FREE, et al.

      Construction of Wills — Rules—
    1. In construing a will the entire instrument must be read and considered together, each part with every other part, in order to gather from a consideration of the whole,, the intention of the maker. And in ascertaining such intention, in connection with the writing, the court will look at the circumstances under which the will was made, as relating to the subjects of the estate of the testator’s property, the condition of his family, and the like.

      Same — What loiTl amount to a trust for wife and children — Power given to bequeath estate left, limited to children and heirs at law.

    2. P., by items 1 and 5 of his will, devised all bis property, real and personal, to his wife, to manage and control during her life, with power to lease the real estate and sell personal property as she should deem best, and appropriate the proceeds to the best advantage,on condition that she should be the guardian of his children, and should raise, educate and'provide for them, and support them out of the proceeds of said property. And by item 6 of the will it is provided : “And I do further will that my wife shall dispose of all the aforesaid property, including anything owned by me, at her death, and do empower her to devise and bequeath the same as she deems proper and right — reposing confidence in her fidelity and affection towards my children, and trusting to her judgment to provide for them to the best advantage. ” Applying the settled rules of construction and considering all the provisions of the will together: Held: 1. Items 1 and 5, vested in the wife an estate for life, in trust, for the use of herself and the children of F. 2. The power of disposition by devise and bequest, conferred by item 6, was not general and absolute, but special and limited to the children and heirs at law of F.
    On appeal from the Court of Common Pleas of Seneca County.
   Day, J.

Plaintiffs’ action is for partition of lands, particularly described in the petition, being 155 acres of land in Seneca County. The plaintiffs Annie R. Huber, Orilla Six and Emma Hamaker, are children of Elizabeth Six, deceased, having one Levi Six for their father; while the defendants, Frederick Free, John Free and others, are children and grandchildren of the said Elizabeth Six by a former marriage, and having one Frederick Free, deceased, for their father and grand father. The real estate in controversy was owned by Frederick Free, deceased, in his life time, he having title thereto in fee. He died in 1842, leaving Elizabeth, his widow, eight children, all minors, and a last will and testament, by Which he devised and disposed of all his property, including the real estate in question. The widow, Elizabeth Free, subsequently married Levi Six, and bore six children by him, three of whom are the plaintiffs in this case. In 1892 the said Elizabeth Six died, leaving a last will and testament, in which she devised the said lands to the plaintiffs and defendants, and by virtue of this said last will, plaintiffs claim to be tenants in common with defendants, and demand partition of the 155 acres. The provisions of the will of both Frederick Free and Elizabeth Six, are copied in the petition, and stated as a basis of the claim of plaintiffs.

The answer of defendants concedes the material facts stated in the petition, that Frederick Free, deceased, was the owner in-fee of the real estate sought to be partitioned, was the husband of Elizabeth, the father and grandfather of the defendants; the making of the will by Frederick Free, disposing of his property, his death in 1842; the subsequent marriage of his widow to Levi Six; that plaintiffs are the lawful issue of such marriage; the last will of Elizabeth devising the land to plaintiffs and defendants; her death in 1892, and denies that plaintiffs are seized of an estate or ¡have any right or title in or to the land in any proportion whatever; denies that Mrs. Six had any interest or right in the land or right or power to devise any interest or title therein to the plaintiffs. Defendants claim title and possession of the land in themselves, and pray that partition be ■denied and that title be quieted in them.

A reply disputes the claim of defendants, and prays as in the petition.

The facts in the case are undisputed. Plaintiffs and defendants are in agreement as to the facts, so that the questions arising are of law purely, as applied to the conceded facts; and a proper disposition of them involves a consideration and construction of the provisions of the last wills of Frederick Free and Elizabeth Six, requiring us to ascertain •and declare the rights, powers and intention of the two testators, and give force and effect to such intention when ascertained.

Mrs, Six, by her last will, devised some portion of this land to the plaintiffs, and if she had right and power to make such deivse, plaintiffs are entitled to partition as a matter of right. If, however, she had no such right or power, plaintiffs must fail, and defendants are entitled to the relief demanded by them, that of having their title quieted as against the plaintiffs. Whatever interest, title or power of disposition by devisee was possessed by Mrs. Six, came "to and vested in her by virtue of the provisions of the will ■of Frederick Free, deceased. That was her only source of title and power of disposition, and none other is claimed; and, as no question is made as to the entire clearness of the provisions of her last will, the whole controversy turns upon •and is settled by a reasonable and proper interpretation of The provisions of the will of Frederick Free, deceased.

The portions of that will necessary to be considered in -determining the question before us, are as follows:

“First — 'I give and bequeth to my beloved wife,Elizabeth Free, all of the real and personal property and all of my rights and credits of every description, and all the property owned by me either in possession or expectancy, to manage and control the same during her life at her discretion, with the power to sell and dispose of such personal property as she shall deem best and to receive and appropriate the proceeds to the best advantage. And I do also authorize her to rent or lease the real estate owned by me and apply the proceeds in like manner as her judgment shall deem proper, with the condition that she shall conform to the direction of this my will in regard to the buildings and improvements on the farm on which I now live, and in regard to the raising and supporting my children as hereinafter directed.

“Fifth — It is my will, also, that my wife shall raise and educate and provide for my children and support them out of the proceeds of the property aforesaid, and do therefore appoint and nominate her as their guardian, and do enjoin upon her to raise them in habits of industry and economy and inculcate upon them as far as may be the duties of Christianity.

“Sixth — And I do also further will that my wife shall dispose of all the aforesaid property including anything owned by me at her death, and do empower her to devise and bequeath the same as she deems proper and right, reposing confidence in her fidelity and affections toward my cihldren, and trusting to her judgment to provide for them to the best advantage.”

The claim is made on behalf of plaintiffs, that, by the provisions of the sixth item of the will, title absolute, in all the testator’s property, remaining undisposed of at fhe death of his then wife,' vested in her, with full and expressed authority and power to devise and bequeath the same to whomsoever she would, whether of kin to the decedent or not; that such was the clearly expressed intention of the testator and the legal effect of the language employed in formulating the item. On the other hand it is insisted, for defendants, that the intention of the testator and legal effect of the will was to vest in Elizabeth a trust estate only, for the use of herself and children of herself and Frederick Free, then in existence; and while she was empowered by Item 6 to dispose of the property remaining at her death, by devise or bequest, yet the plain provisions of the will, properly and reasonably interpreted, under the well defined and well known rules of construction, limited her power of disposition to the children and heirs at law of Frederick Free, deceased.

We think the latter claim the correct one.

All the title or interest possessed by the widow, Elizabeth Free, came to her by virtue of the provisions of the first and fifth Items of the will, and was, substantially, an estate in trust, for the use of herself and her three children, with power to manage and control the entire estate during her life, and to dispose of the personal property and appropriate the proceeds of the best advantage, as directed by the will. This was not such an estate or interest as could be disposed of by devise or bequest, by her; and the only authority she possessed to so dispose of it, was conferred by Item-6. No additional or further title or interest is vested in her by the provisions of Item 6. That Item only confers on her the power of disposition of all property remaining at her death, and does not purport to confer any additional estate. A reasonable and proper construction of the provisions of Item 6, therefore, settles and determines the conflicting claims of plaintiffs and defendants. It is true the provisions of the first clause of this Item are broad and general, and if considered and interpreted alone and without reference to the last clause of the Item, or to the context, would seem to give absolute and unlimited power of disposition by devise or bequest; but we may not thus consider and interpret it. It must be considered in connection with all the other portions and provisions of the will. The entire instrument must be read and construed together, each part with every other part, in order to gather, from the reading of the whole, the intention of the maker.

The rule of construction is plainly laid down in the 32 Ohio St. 1, where it is held: “In the construction of a will, it is well settled as a paramount rule, in this state, that the intention of the testator, as gathered from the whole will, must control where such intention is not in conflict with -the law, or against public policy; and words in a will are to be -understood according to their ordinary, natural and legal significance unless it is manifest from the context or from other provisions of the will that the testator had used them in a different sense and unless the sense in which they were used is clearly apparent.” It is also laid down by the Supreme Court, in a number of cases, that in construing a will for the purpose of discovering the intention of the testator, the court will look at the circumstances under which the will was made and the subject to which it relates, as, the state of his property, his family and the like. Following this rule of construction, the problem we have seems quite easy of solution, and when we consider the situation and surroundings, and duties of the testator, and the words ■employed by him in formulating his will, disposing of his affairs, we regard it as exceedingly plain what his purpose ■•and intention was.

The situation and conditions' confronting Frederick Free, were, that he was about to leave his wife a widow, and bereft of a father’s care, a family of eight children, all infants ■of tender years, who were to be reared, supported, educated and made into good citizens. He was leaving only a modérate estate which was applicable for that purpose and for the support of the mother of his children, and was not more ■than sufficient. His wife was stouthearted, a good manager, thrifty, and well equipped for the trust he was compelled ■and was about to confide in a trustee. In carrying this purpose into effect, it was necessary to clothe the trustee selected with power to manage and control his property, and with ■authority to educate, train to business habits, and mould "the character of his children. In accomplishing this the trustee would necessarily be at unequal expenditure for their proper education and establishment in a life business. It might, reasonably, be necessary to extend aid to some and not to others, or, in unequal sums; and in such case, fairness would require an equalization in the final disposition of the estate. In view of these conditions, his duty would seem clear, and with this situation before him, to influence his action, the testator executed the instrument of writing in •question, making final disposition of his property and affairs; ■and to what purpose? Applying the rule of construction just quoted, considering the provisions of the entire will all together, giving the words their natural legal significance and regarding them in the apparent sense in which they were employed, in connection with the light thrown by recalling the surrounding circumstances relating to the state of his property and his family, we reach the conclusion it was the clear intention of the testator by the provisions of Items 1 and 5 of the will to place his property of all kind, under the management and control of his wife, during her life, in trust for the use of herself and their children, with power to sell the chattel property, if necessary, for use in the interim, and eventually, by the power of disposition by devise or bequest, as provided in Item 6, to equalize them fairly ■and justly as heirs of his estate, in a final adjustment and distribution. The intention to provide and care for the beneficial interest of his own children is apparent in every paragraph and sentence of the will, and an absence of purpose to make provision for children other than his own, is also ■apparent. The power of disposition by devise or bequest, ■conferred on the wife by Item 6, we hold, is not absolute, but is modified and limited, not only by the various provisions of the will preceding Item 6, but by the peculiar wording of Item 6 itself. After conferring power of disposition, by devise, on the wife, the testator makes’use of the words: “reposing confidence in her fidelity and affection towards my children, and trusting to her good judgment to provide for them to the best advantage. ’ ’ These words in the connection they appear, properly regarded and given their legal and natural significance, are almost, if not altogether, an absolute and positive direction by the testator requiring his wife to provide for his children by devising all his property remaining at her death, to them, in proportions suggested by her good judgment. The two clauses constituting Item 6 might, without the least infringing on any recognized rule-of construction, be transposed so that the item,in substance, would read: “I have confidence in my wife’s fidelity and affection for my children, and I trust to her good judgment to provide for them to the best advantage, therefore I empower her to dispose of all of my property remaining at her death, by devise or bequest, as she may deem right.” If such were the form of this item of the will, it may well be-doubted if any claim would be interposed, of power or right on the part of Mrs. Six to divert any part of the estate from' its legal and rightful line of descent; yet we think this-transposition and statement of the substance of the item may be made with entire propriety, and is authorized by the settled rules of construction. If this is correct, it settles the proper interpretation of the provisions of Item 6, without referring to any other provision of the will; but when< we consider the item in connection with all other terms, it becomes entirely clear that the power of disposition was limited and confined to the testator’s own children. When Mrs. Six undertook to divert some part of the estate to her children by Mr. Six, she was without power or right, and her efforts'was futile; the devise was invalid, and conferred no right on the devisees, the plaintiffs. There will be judgment accordingly, dismissing the petition and quieting title as prayed in the answer and cross-petition.

Stransefslcy; Noble & Kepple; Brewer & Breioer, for plaintiffs.

Seney & Sayler, for defendants.


text:
    (First Circuit—Hamilton Co., O., Circuit Court,
    Jan’y Term, 1896.)
    Before Smith, Swing and Cox, JJ.
    P., C., C. &. ST. L. RY. CO. v. KELLY.

      Railroad — -Crew on train having notice in time and not stopping train — wilfullness—
    Where the crew on a railroad train going through the streets of Cincinnati at a higher speed than allowed by ordinance, see and hear a man running towards the train calling on .them to stop on account of some. teams being on the track which cannot bé removed in time to prevent a collision with the train, and they make no effort to stop the train, although they might easily have done so, they are guilty of gross negligence on their part amounting to wilfullness.

      Same — Liability for wilful injury notwithstanding plaintiff’s contributory negligence—
    Where the act of negligence on the part of the defendant is so gross as to amount to wilfullness, and the injury might have been avoided by defendant notwithstanding the negligence of plaintiff, the defendant is liable.

      Injury to team of horses — Measure of damages — •
    Where teams of horses are injured by the negligence of a railroad company, the proper measure of damages is the expense of restoration to health and soundness, compensation for the loss of use during the period of disability, and the amount of difference between the value before the injury and after the cure or repair.
    Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

The action below was one brought by Kelly against the Railroad Company to recover damages which the plaintiff claimed he had suffered by reason of the negligent, careless, improper and unlawful conduct of the defendant, in running a train of cars over and against two wagons of the plaintiff, each drawn by two of his mules, which, without fault on his part, were standing, (the wagons were being unloaded), on Front street in this city. The answer denies all these averments.

On the facts as disclosed in the bill of exceptions; we are of the opinion:

First. That there was gross negligence in the management of the train of the defendant Company by its agents, before and at the time that the teams and wagons-of the plaintiff were struck by it. It was quite a dark night, about 6 p. m. on February 27, 1890, though the street was well lighted, and on which street the servants of the Company might reasonably have expected to find many people- and vehicles, even at that hour- — and yet a freight train of' from eight to twelve cars was backed along such street at a rapid rate. One of the witnesses, and perhaps the only one-who attempted to fix the rate of speed, estimated it at twelve-miles per hour, but this we think was an overestimate, and1 that the rate of speed was from six to eight miles per hour, which was faster than the ordinance of the city allowed them-to go. Several of the employes, of the company stood on the first car which was being backed up from the east to the-west — one of whom carried a light in a lantern, presumably to signal the enigneer on the locomotive, which was at the-east end of the train, but no signals appear to have been given to him. But in addition to this rapid speed, under these-dangerous circumstances, it clearly appears that the driver of one of the plaintiff’s teams, who was unloading tobacco-from the wagon, backed up to the curb-stone, seeing the-train approaching about a square and a half east of where-he was, made an instant effort to get his team off the track;, but seeing that he could not do so, owing to obstructions in. the street, ran at full speed to meet the approaching train,, calling to the men on the first car tc stop the train. They saw him and heard his cries at such a distance from the team* as would probably have enabled them to stop before reaching it, but they made no effort to do so, but called to the-driver to get off the track, and did not use any means to-stop the train until they came so near, as one of them says,. that he could see the team on the track, and then tried to stop the train, but it was too late. This was not only negligence on their part, but it strongly tended to show such gross negligence as amounted to willfulness.

Second. Whether there was contributory negligence on the part of the servants of the plaintiff, which, if the injury had been caused by mere negligence on the part of the defendant, should have prevented a recovery by the plaintiff, was a question which fairly arose in the case, and there was evidence which looked both ways. But if the act of the defendant was so grossly negligent as to amount to willfulness, as the evidence tended' strongly to prove, and the injury might have been avoided by the defendant notwithstanding the negligence of plaintiff’s servants, the defendant would still be liable. The servants of the defendant, after receiving notice of the danger, and having the ability to avoid the injury, must do so. We would not therefore hold that the action of the court in- refusing to direct a verdict for the defendant, or to grant the motion for a new trial on the ground that the verdict was contrary to the evidence, was erroneous.

Third. Counsel for plaintiff in error take exception to some of the statements of the court in the charge given to the jury, and to the failure to state some propositions of law,which it is claimed he should have called their attention to. As to the last point, the rule is clear that if anything was omitted by the trial judge in his charge, which in the opinion of counsel should have been said, the attention of the court should have been called to it, and a charge requested on such' points. We think, too, that the charge as given to the jury was substantially correct. It is urged that it was wrong in its statement as to the measure of damages, the contention of counsel for plaintiff in error being that if the plaintiff below was entitled to a verdict, he could only recover the difference1 between the market value of the property injured immediately before, and immediately after the injury.

The court, in effect, charged that if the mules of the plaintiff were injured by the collision, that the plaintiff was authorized to use reasonable means to restore them, and if he did, that he could recover the difference between their value just before they were hurt, and their value when so restored, together yyith the amount fairly expended in healing them,, and the value of their use to him during the time they were being cured, if he was thereby deprived of such use.

The question thus presented is an interesting one, and as to which there seems to be a conflict in the authorities. We think it clear though that the rule as claimed by counsel for plaintiff in error is not the correct one. There is some question whether the correct rule is not as stated in Hughes v. Quinlin, 3 Carrington & Payne, 703: “the proper measure of damages is the keep of the horse at the farmer’s, the farmer’s bill, and the difference between the value of the horse at the time of the accident, and at the end of the six weeks. ”

It will be seen that this rule differs from that given by the trial court in this case, in this, that it allows as an element of damage, the keep of the animal, and denied the amount of the hire of another horse during the six weeks,. while the court of common pleas said that the loss of the use might be considered, but said nothing as to the keep of the mules during this time.

The rule as stated in Sedgwick on Damages in such cases, where the injury is less than destruction, is this:— “Section 435. So where the plaintiff’s property was injured, he may recover the expense of restoration of the property to health or soundness, compensation for the loss of use of it during the period of disability, and the amount of the difference, if any,between its value before the injury, and after the cure or repair.” This seems to us a reasonable and just rule, and is precisely the one stated by the trial judge in this case.

Fourth. The court was asked to give to the jury the special charges numbers 1, 2, 5 and 6, and declined to do so. Number 1, requested the court to charge that the jury should return a verdict for the defendant. This we have held was properly refused. Numbers 2 and 6 we think stated the general principles of law correctly, and should have been given,except for the statement at the close of each that if the jury so found, the verdict must be for the defendant. That' is, in effect, the court was asked to say, that if the servants ®f the plaintiff were negligent, and thus contributed to the injury, there could be no recover}7 in any event — thus ignoring the evidence in the case which tended, at least, to show willfulness on the part of the servants of the defendant, and the rule of law which then arises, of which we have before spoken. For this reason we think the court did not err in refusing to give these charges.

Number 6, as asked for, was as follows: “There is testimony which tends to show that the trains were in -the habit of running upon that track, at the point of the alleged injury before 7 o’clock in the evening, to the knowledge of these' drivers. If so, Isay to you that they had no right to assume-that no train would run before 7 o’clock in the evening, and' their duty was to keep constantly on the look-out for trains. ’’

There may or may not have been such evidence as the' court was asked to say there was. If there was not, the’ court properly refused to say there was. The ordinance prohibited such running before 7 o’clock, and it is questionable1 whether the evidence tended to show that it was violated before to the knowledge of both of the drivers. But if it did tend to show this, it does not follow that the court should assume it to be true, instead of leaving it to the jury to find' whether such whs the case, or to instruct them, as matter of law, that it was then incumbent on them to keep a constant look-out for trains. This would be stating ■ the law too strongly ¡against the plaintiff.

Ramsey, Maxwell & Ramsey, Attorneys for Plaintiff.

Mallon) Coffey & Mallon, Attorneys for Defendant.

Fifth. The court did not err in refusing to direct the jury to return answers to certain interrogations, desired by defendant. This was a matter in the discretion of the court, and was not abused.

The judgment will be affirmed, with costs.

(Judgment affirmed by Supreme Court without report, November 12, 1895. 34 Law Bulletin, 262.)


text:
    (Third Circuit—Defiance Co., O., Circuit Court
    March Term, 1896.)
    Before Seney, Day & Price JJ.
    THE CITY OF DEFIANCE v. ADAM WILHELM.

      Sidewalk — Duty of abutting lot owner to keep public way in safe condition.—
    1. It is not the duty of a private person, who owns a lot abutting on a public way in a municipal corporation, to keep such public way in repair and in safe condition for public use.

      Same. —
    2. By a mere passive omission to keep the public way in safe condition for public travel, such owner does not thereby become liable, in damages, to a person injured by reason of a defective and dangerous place in said way.

      Same — Acts of abutting owner putting sidewalk in unsafe condition— Primary Liability of city — Liability over to city.—
    S. It would be otherwise, if the defective and unsafe condition, and consequent injury, was occasioned by affirmative negligence and active wrongful acts and conduct of such owner. In such case, the individual owner would be liable, directly, to the person injured, and if the municipal corporation, by reason of the provisions of law, has been required to respond in damages to the injured party, it is entitled to a judgment over against such individual owner.
    Error to the Court of Common Pleas of Defiance County.
   Day, J.

It appeals from the record of the case that the plaintiff filed an amended petition setting forth facts upon which it based a right of recovery, over, against the defendant. A general demurrer was interposed, and sustained by the court, and the plaintiff not desiring to amend the petition, or further plead, the court dismissed the case and entered judgment for costs against the plaintiff. This action of the court is complained of and is sought to be reversed by a proceeding in error in this court. The single question presented is: Did the court of common pleas err in sustaining the demurrer to the amended petition? The facts stated in the amended petition are, in substance, as follows: One Martha L. Sammis was injured on a sidewalk of a street of the city upon which defendant’s lots abut, by reason of a defective and dangerous place in said walk; that she brought suit against the city on account of such injury, and recovered a judgment of some $1,500 as damages therefor, which judgment and the costs accruing, the city has discharged and paid; that defendant, as owner of the said abutting lot, assumed and was charged with the duty of constructing a safe and proper walk along said abutting lot, and did construct a walk there, but did is unskillfully and carelessly, wrongfully using unfit and defective material, so that, in fact, he created a defective and dangerous place in the public way, and negligently and wrongfully omitted and failed io guard or give notice of said dangerous place, by light or other signal of danger, or otherwise, by reason of which wrong and negligent acts and conduct of defendant, the injury to Mrs. Sammis, for which the city was required to respond, was occasioned. The prayer was for a judgment over against the defendant.

The law touching the liability of municipal corporations, and of individuals, for injuries resulting from a failure to discharge a duty, is well settled by the repeated adjudications, and there can be and is very little, if any, difference ■of opinion among lawyers as to what the law is. Counsel for defendant in his statement of his view of the law on this subject, is, in the main, if not entirely, accurate. A municipal corporation is, by statute, Section 2640, Revised Statutes, required to keep streets and public ways in a safe condition, free from obstructions and nuisance; and if it neglect that duty, and a citizen is injured without fault on-his part,the corporation is liable. This rule does not obtain as to owners of lots abutting on a public way. Such owner is not charged, by the law, with a duty of keeping the public”way in a safe condition, and is not liable in damages for a mere omission on his part to repair and keep the streets or walks in safe condition for public travel. The abutting lot may be, and is, liable to a certain extent, for the cost and expense of improving and repairing the public way, but there is no duty resting on, or liability against, the owner, other than such cost and expense, merely • because he is the owner of an abutting lot. It is believed, on reason and authority,that for a passive omission to repair the public way and keep it in a safe condition for public use-, a private person cannot be held to respond in damages for am injury resulting from an obstructed and unsafe condition of the way, either in the first instance to the party injured, or, in the second place, to the municipal corporation which has been required to compensate 'the injury. This is the pur-port and extent of the holding of this Court in the case of Sammis v. Wilhelm, reported in 6 C. C. Rep., 565, and referred to by counsel for defendant as settling the case. We have no occasion to quarrel with the holding in that case. Judge Seney is still found dissenting to the doctrine promulgated there, but the majority of the court now, as then, approves the decision. But we think that case, and the one now under consideration, is easily distinguishable. The facts of the two cases are not similar. In that case the •defendant was only charged with passive conduct. It was ■said he omitted to keep the sidewalk in repair and safe, and Mrs. Sammis was injured by reason of it. It was also said that, “then and there and for a long time prior thereto, it had been the duty of defendant to keep said sidewalk in ■safe condition.” This last statement was regarded as a conclusion of law, and not the statement of a fact, and the court very properly, upon the facts stated, held defendant was not liable, and sustained a demurrer to the petition. The allegations of’ fact in the case under consideration are •entirely different. It is charged the defendant was active •in the matter; that he assumed the duty of repairing the ■walk and engaged in the work of repair; that he negligently and wrongfully used defective material, and unskillfully performed the work of repair, and by his pernicious activity, affirmatively succeeded in creating and erecting an unsafe .and dangerous place, and carelessly left it unguarded, by reason of which active wrong Mrs. Sammis was injured, Under that state of fact, clearly established, defendant would be liable to the injured party, without regard to the fact of ownership or non-ownership of abutting property, and whether the duty requiring him to exercise and use ordinary care was cast upon him by express provisions of the statute or otherwise. He would stand upon the plane of every other active wrong-doer — every other careless and negligent person — and be made to respond in damages for injuries •resulting from his wrongful acts and conduct. In such case, we think, he would be liable directly to the injured person, •and if the municipality by reason of the duty imposed by ■statute is first called upon to make compensation to the injured person, it would be entitled to a judgment over against ■the person who was the prime cause of the injury.

The sustaining of the demurrer to the amended petition was error for which the judgment of the common pleas is reversed, with costs. This court overrules the demurrer, and remands the case to the common pleas for further proceeding according to law.

Price J., concurs.

Seney, J., dissents.

JS. Laity, City Solicitor, for Plaintiff in error.

H. Newbegin, for Defendant.


text:
    (First Circuit—Hamilton Co., O., Circuit Court,
    Jan’y Term, 1896.)
    Before Smith, Swing and Cox, JJ.
    CINCINNATI & HARRISON TURNPIKE COMPANY, v. M. HESTER.

      Incompetent evidence — Error in admitting same cured by court instructing jury to disregard it—
    Mode of examination of witness as to his means of knowledge, as to-' a fact inquired of — Improper evidence having been admitted by the court, and the jury afterwards having been instructed to wholly disregard it, and nothing else appearing to show prejudice on this account, the original error is cured.

      Insufficient instruction — Failure to ash additional proper instructions waives objection — •
    If a charge given to the jury on a certain point is sound, but does not state the law with clearness or certainty, the party complaining has the right to ask additional proper instructions, and if’ not done he waives his objection. In this case such additional proper instruction was asked and given.

      Exception to whole instruction, only part of which is erroneous, too-general.

    A special charge, correct in form and substance, and applicable to the case, was asked and refused. But it was asked as part of one charge, or' as one of a series of charges-part of which was not good law, and was properly refused, and the exception was taken to (he refusal of the court to give the-whole. This was not a good exception to the refusal to give the correct charge, and the verdict being substantially right, and supported by the evidence, a reviewing court should not reverse the judgment on this ground alone.
    Error to Court of Common Pleas of Hamilton County.
   Smith, J.

It is claimed that the court of common pleas erred in its rulings as to the admission of evidence; in the charge given to the jury; in refusing to charge as requested by plaintiff in error, and in overruling a motion made for a non-suit and for a new trial. We notice, briefly, in this order,such matters as were insisted upon and called to our attention at the argument of the case.

First. It is said that the court erred in allowing the counsel for the plaintiff below, to ask his client, while she was being examined as a witness, the amount that her husband was making a year, at the time of his death, and in answer to which she said, “about $1500.00.”

The question called for the personal knowledge of the witness on the subject. She might have been able to answer fully and completely. If it had been objected by the attorney of the defendant at the time, that it did not appear how the witness could know this, the court would doubtless have permitted him to make a preliminary examination of the witness, as to her knowledge and ability to answer the question, and if her answer was founded on hearsay, or was mere guessing, she would have not been qualified to speak. This course was not adopted by the defendant’s counsel, but he proceeded to cross-examine the witness on the point, and made no further exception to her evidence. We see no error in the action of the court in this behalf.

Second. It is further claimed that the court in the charge to the jury, in effect, withdrew from its consideration a large amount of evidence, offered by both parties, and which was entirely competent.

Testimony had, in fact, been so received as to the experience of persons traveling this turnpike road, with teams and vehicles, while passing the place where the deceased met his death, while it was in substantially the same condition as at the time of the accident, and showing how the attention of such parties had been called to the obstruction in question; and this was admitted without objection. The plaintiff, in addition to this, however, sought to show by the testimony of Mr. Reemelin and a Mr. Johnson, what happened to them .severally when each was driving along the turnpike at this point. To this the attorney for the defendant objected, and the court having allowed the evidence to be given, exception was duly taken. Just after the noon recess of that day, however, the judge instructed the jury that he had been wrong in his prior ruling; that the evidence so objected to was incompetent, and must be disregarded by them, and further stated that if counsel would call his attention to it, he would in his charge to the jury specially instruct them to disregard it.

This he did. But it is urged that the language then used, was so broad and indefinite in its character, that the jury might well have supposed that thereby the court excluded all the evidence as to the experience of other parties at that point, though received without objection. But we are of the opinion that the fair interpretation of the language is that it referred only to the evidence which had once been received and then ruled out in accordance with the announcement previously made by the court.

Third. The charge of the court on the question of the intoxication of the deceased, shortly before, and at the time of his death, and his thereby contributing to the injury which caused his death, is complained of.

If it be conceded that the general charge of the court does not with sufficient clearness state the law on this point, it is difficult to see how the plaintiff in error can take advantage of it. We see no statement in this part of the charge which we deem erroneous. The defendant had the right to ask of the court further and additional instructions on this subject, and did so, asking an instruction clear and definite in its character, which with certain slight modificalions, proper enough, was given by the court to the jury, and we see no error in this particular.

Fourth. It is also claimed that the court erroneouly •charged the jury that the deceased might have relied on the instinct of his horses on the night he was killed. We do not :SO undertand the charge. The court, while instructing the jury on the subject of contributory negligence on the part of the deceased,and that his administratrix could not recover in this action if he did so contribute to his own injury, told them that in determining whether he did so or not, they «hould consider all of the circumstances in the case disclosed in the evidence, tending to throw light on this question— -among others, the familiarity of Hester with the road at this point' — -the darkness and the time of the night — the state of the weather and of the road itself, and how far the latter was then discernible — his condition as to sobriety or drunkenness — and whether as an ordinarily careful man and with his knowledge of them he had the right to rely on his animals, proof having been offored as to their character and habits in some particulars. This mode of presenting the matter to the jury we do not consider objectionable. All •of these matters were entirely proper to be considered by the jury in the decision of the question whether Hester was, ■at the time of the accident, in the use of ordinary care.

There is more difficulty in upholding the succeeding paragraph of the charge. By it the jury was instructed to take into consideration, “whether, as an ordinarily careful man, knowing the habits of his horses, and knowing that the road was all one color, so that special objects could not be discerned, and knowing, or having good reason to know, that his horses could not distinguish objects, (if you find these facts from the evidence,) whether it did behoove him in the exercise of due care and skill, to be watchful and on the look-out, or whether he was as a prudent man justified in relying upon his horses.”

We are of the opinion that if there was evidence showing-such a state of fact as was assumed by the court in this paragraph to be true, that the court might well have said to the-jury, as.a matter of law, that it was the duty of the deceased, under such circumstances to be wakeful and on the look-out, and not to go to sleep and rely on his horses, when he knew, or had good reason to know, that they could not distinguish' objects. And it may be said that it was error to submit such a question to the jury. There seems, however, to have been no such exception taken to this part of the charge as would sufficiently advise the court of the objection of the defendant below thereto, — the only exception which could possibly refer thereto, being to “the part of the charge on ordinary-care, “which we think too indefinite.

Another answer to this is, that we think the assumption of the court, qualified as it is by the parenthetical remark, “if you find these facts from the evidence, ” were all in favor of the defendant, and not of the plaintiff. It seems to assume that the defendant knew “the habits of his animals” —“that the road was all one color, so that special objects-could not be discerned” — “that he knew or bad good reason to know that his horses could not distinguish objects,” and that he did in fact rely on them. There was evidence tending to prove that Hester had driven these horses frequently over this road for months previously, and that owing to the snow-fall the road on that night appeared of one color; but there was not a scintilla of evidence to show that the team on that night could not distinguish objects, or that Hester relied upon them and was not wakeful and on the look-out.■■ It is true that there was evidence tending to show that he was intoxicated when last seen alive, probably between nine and ten p. m., several hours before he was found dead, several miles from where he was last seen; but as to his condition after that time there was no evidence. The part of the charge alluded to would seem therefore to be predicated -on no evidence, and related to an abstract question, and it is doubtful, even if it was erroneous, whether error would lie at the instance of the defendant.

Fifth. It is also objected that the court in his charge to the jury, spoke of this obstruction in the road as a “pile of rocks,” or stone pile, when the character of the obstruction was a fact in controversy in the case. As we understand the evidence, there was no substantial dispute as to the obstruction being a pile of broken stone, lying on the road-way — nor is there much controversy as to the size of it —the dispute being as to what it was there for, whether to fill up a hole or depression in the roadway, or whether it was stone originally hauled there and broken up,and left on the road for use at other points. We can not see that there was anything improper in the use of these terms by the court.

Sixth. Did the court err in refusing to give any of the special instructions asked by defendant’s counsel? Many of them were in fact given with slight modifications which did not, we think, materially alter their nature, or prejudice the defendant. Some of them were entirely refused, as shown on page 18 and 19 of the charge.

The following charge or charges were so refused: “The facts of the finding of the body of the deceased dead on the turnpike at the place it was found, and the finding of the wagon upset in the condition it was found, are not to be taken by the jury as conclusive proof,-in the absence of other testimony, that the injury resulted from the alleged stone pile, or that the death was caused by the upsetting of the wagon.”

We think this charge, as requested, was clearly right, and ought to have been given to the jury, and if not elsewhere substantially stated in the charge, (and we think it was not,) and if it had stood alone; and if special exception had been taken to the refusal of the court to give it, we would feel compelled to reverse the judgment for such error. But this was either a part only of one charge, or was one of a series-of charges asked to be given as a whole, and the exception was to the refusal of the series, if in fact there was more than one charge asked, which is very questionable. In the-succeeding part of this charge or series, is one asked to be-given, “that the burden of proof was on the plaintiff, to-prove by a fair preponderance of the evidence, affirmatively that the deceased did not contribute to his death in the manner in which he loaded, managed or drove his team,” and that he exercised the care that an ordinarily prudent man would have exercised.

To place this burden on the plaintiff would manifestly have-been erroneous. The Ohio decisions are clearly against it —35 Ohio St. 627 and 40 Ohio St., 376. It is also clearly the rule in this state, that a general exception to the refusal of the court to give to the jury the whole of a series of propositions, will not avail, where one of the propositions is unsound. 30 Ohio St. 104—32 Ib. 88.

Seventh. The last question is, did the court err in refusing to sustain the motion for a non-suit, or in overruling the motion for a new trial. On this last point, as on some of the others, we have had difficulty in coming to a conclusion entirely satisfactory to our own minds.

But as to one of the questions involved in the case, we-may say that we have no trouble whatever; and that is, that negligence on the part of the defendant company is very clearly shown. It allowed this obstruction to remain for months, on a narrow road,in the vicinity of a populous city, and where persons were passing at all hours of the day and night. It was a pile of stone twelve to fifteen inches high, above the general surface of the road-way. The macadamized portion of the road was but sixteen feet wide- — -this pile-of broken stone was seven and a half feet wide and over fifty feet in length. The road there ran east and west, and the north line or edge of this pile at the point where Hester was killed, extended three feet north, and four and a half feet south of the centre of the traveled and macadamized portion of the road-way, and its sides being almost perpendicular, it certainly presented a dangerous obstacle to travel on the highway.

Did it cause the upsetting of the wagon, and thus bring-about the death of Hester? No one but he was present at the time. His spring wagon was found overturned, at the-north side of this pile of stones — the tracks in the snow showed that the wheels on the south or left hand side,as he-was driving west, bad run upon the pile, while those on the-other side had run on the track north of it; the body of the deceased was found under the feet of the horses, with his-head away from, and his feet near the front part of the wagon as if he had been thrown forward from it when it was upset. Though the evidence is not as satisfactory as could be desired to hold a defendant liable for damages for having thus-produced the death of a person by negligence, yet we can not say that a reviewing court should hold that a finding of' a jury that it did, after a fair trial, is so much against the-evidence as to warrant its reversal on that ground. On the-contrary, the presumption is very strong that the stone pile-was the cause of the upsetting of the wagon, and that Hester came to his death by reason thereof.

Is it shown that Hester contributed to the injury? We cannot say that such is the fact. The evidence tends strongly to show that he was intoxicated during the evening before-he was killed, his dead body having been found about two o’clock a. m., and yet there is evidence which tends to show that he was not. What time it was when the accident occurred is not shown- — -the point at which it occurred is several miles from that at which the evidence shows he was last seen alive. If it be true that he was then under the influence of liquor, he may have recovered from it before he was hurt. The fact that he had just reached the foot of a long hill,. and that the brake of his wagon, which was operated by a handle from the inside, was found set and pressing against the wheels, gives color and support to the idea, that he was at the time in the possession of his faculties and on the lookout. But on this point it is sufficient to say, that in the absence of proof to the contrary, the presumption of the law is, that Hester was then exercising . ordinary and reasonable care, and on the state of the evidence, we would not feel at liberty to interfere with the judgment in the case on the ground that the finding of the jury as to this was against the weight of the evidence.

Thomas McDougall, Attorney for Plaintiff in Error.

Healy & Brannan and Jordan & Jordan, Attorneys for Defendant in Error.

I have said enough to show that in our judgment, we would be justified by the strict rules of law in affirming this judgment. But we are also of the opinion that we might reverse it, without doing violence to well settled legal principles. For instance, having all of the evidence and the whole charge of the court before us,we would be at liberty, in furtherance of justice, if we thought that substantial error had been done, by any action of the court, in the charges given or refused, operating to the prejudice of the defendant, to reverse the judgment, though no exception had been taken to such ruling at the time. Without definitely announcing our conclusion therefore, we suggest to counsel that a settlement of the case be made on this basis — -that the plaintiff remit $1,000.00 of this judgment as of the day of its rendition,and that by consent of parties the judgment be affirmed for the residue. This to be a final settlement of the controversy. If either of the parties refuses to consent to this, we are prepared to announce what the judgment of the court will be in the case.

(The defendant in error declined toacceedto the suggestion of the court, and the judgment was affirmed and the case, taken to the Supreme Court on error, and on May 16, 1893, the judgment of the Circuit Court was affirmed, without report. 29 Law Bulletin, 344.)