author: TAGGART, J. DONAHUE, J.,

text:
    CRIMINAL LAW — EVIDENCE—INDICTMENT—RES JUDICATA.
    [Tuscarawas (5th) Circuit Court,
    December 15, 1905.]
    Donahue, McCarty and Taggart, JJ.

      Caroline Studer v. State of Ohio.
    1. Scienter in Indictment eos Decoying Female into House op III Fame.
    Indictment under Rev. Stat. 7023 (Lan. 10736) which makes it a crime to decoy or induce females under eighteen to enter a house of ill fame far the purpose of assignation or prostitution need not charge the accused with knowledge of the age of the female so decoyed.
    [For cases in point, see 5 Cyc. Dig., “Indictments and Informations,” §§ 368-384. — Ed.]
    2. Gravamen or Optense op Decoying a Female under Rev. Stat. 7023 (Lan. 10736).
    In Rev. Stat. 7023 (Lan. 10736) the gravamen of the offense is the decoying, the procuring and the inducing, which being done in one county while the house Of ill fame entered is in another, the venue of the prosecution is properly laid in the county where the decoying, etc., was done.
    3. Acquittal op one Jointly. Indicted as a Depense.
    Two persons being jointly indicted for the same offense, which required the co-operation of the two, the 'acquittal of one is not a defense in the trial of the other.
    4. Admission op Nonprejudicial Evidence.
    Unless the admission of unnecessary and improper evidence in a criminal prosecution is prejudicial to the accused, the judgment will not be reversed.
    [For other cases in point, see 3 Cyc. Dig., “Criminal Law and Practice,” §§ 412-417. — Ed.]
    [Syllabus approved by the court.]
    Error to Tuscarawas common pleas court.
    W. O. Werntz, Atlee Pomerene and Henry Bowers, for plaintiff in error:
    “Is the scienter necessary to be averred in the indictment when the statute does not in express terms make the knowledge of the age of the female persons a constituent part of the crime?” Anderson v. State, 7 Ohio (pt. 2) 250; Birney v. State, 8 Ohio 230; Miller v. State, 3 Ohio St. 475; Ault father v. State, 4 Ohio St. 467; Crabtree v. State, 30 Ohio St. 382; Farrell v. State, 32 Ohio St. 456 [30 Am. Rep. 614] ; State v. Morton, 8 Wis. 167; 21 Am. & Eng. Ene. Law (A ed.) 850, note.
    Venue of the prosecution. 7 Am. & Eng. Ene. Law (1 ed.) 758-762; State v. House, 55 Iowa 466; Connor v. State, 29 Fla. 455 [10 So. Rep. 891; 30 Am. St. Rep. 126],

      It is clearly the rule in Ohio, that evidence of acts and declarations of persons alleged to be coconspirators with the defendant'on trial, cannot properly be received against him until the fact of conspiracy is prima facie proven. Goins v. State, 46 Ohio St. 457 [21 N. E. Rep. 476]; Clawson v. State, 14 Ohio St. 234; Patton v. State, 6 Ohio St. 467; Seville v. State, 49 Ohio St. 117 [30 N. E. Rep. 621; 15 L. R. A. 516].
    J. F. Greene, prosecuting attorney, and J. A. Buchanan, for defendant in error.

       Affirmed, without report, Studer v. State, 74 Ohio St. 519.

   TAGGART, J.

Caroline Studer was indicted at the September term, 1905, of the court of common pleas in this county, charged, under Rev. Stat. 7023 (Lan. 10736), with inducing, decoying ánd procuring female persons under eighteen years of age to enter a house of ill fame for the purpose of prostitution. Thereupon, on the return of this indictment she filed a demurrer on the ground that the indictment did not charge an offense under the laws of Ohio. This demurrer was overruled. She was placed on trial, and she makes the same question at the close of the státe’s testimony, that the testimony does not establish a crime for which she should be held. This was overruled by the court and the case proceeded to a verdict of guilty. Sentence was pronounced by the court and this proceeding in error is prosecuted.

The first question that is made is an objection to the indictment, and addressed also to the contention, that there is no testimony -that establishes a crime against her. The indictment does not contain a scienter that she knowingly performed the acts for which she should be held.

Revised Statute 7023 (Lan. 10736), omitting the words that are unnecessary for a correct understanding of the question, is as follows:

“Whoever induces, decoys or procures any female person under eighteen years of age * * * to enter any house of assignation or any house of ill fame for the purpose of seduction or prostitution, * * *” shall be punished, as provided in the statute.

It is claimed that the indictment should charge, as in cases of selling liquor to minors, the scienter, and our attention is called to a number of eases wherein the statutes while not containing the word, knowingly, the courts have held that the indictment must contain a scienter, and the proof must show knowledge. Birney v. State, 8 Ohio 230; Miller v. State, 3 Ohio St. 475; Aultfather v. State, 4 Ohio St. 467; Farrell v. State, 32 Ohio St. 456 [30 Am. Rep. 614], and others.

An examination of this statute convinces the majority of the court that that contention ought not to obtain in this case. Whatever may have been the former holdings of the Supreme Court, the legislature in enacting this statute, as we think, clearly defined the crime, and the indictment alleges the offense in the language of the statute. The legislature we think did not intend to make scienter an element of this offense. If persons engage in inducing, decoying or procuring female' persons to enter houses of ill fame for the purpose of prostitution, they must, at their peril, ascertain the age or ages of the persons so procured. It is no crime to induce, decoy or -procure female persons over the age of eighteen years to enter a house of assignation, or house of ill fame, ’for the purpose of assignation or prostitution, but it does become a crime to procure female persons under eighteen years of age. And, therefore, persons engaged in this business, we think at their peril, must ascertain and know whom they procure or decoy or induce to so enter into this business. 1 1 ■ >>■

We think the question is fairly settled in State v. Kelly, 54 Ohio St. 166, 170, 171 [43 N. E. Rep. 163]. This was simply a violation of a police regulation under an act of the legislature “to provide against the adulteration of food and drugs. ’ ’ But in that ease the counsel bring to the attention of the court directly the holding of the courts in cases similar to this, and we think in this case an examination of the cases cited in the brief of counsel is instructive, and we want to call attention to them.

“A distinct class of cases have come up, in which the unlawful act is done intentionally, but in ignorance that it is unlawful. This ignorance is of two kinds: First, ignorance of law; and, second, ignorance of fact. That ignorance of law is not a defense is generally' conceded. ■ * * *
“Ignorance of fact, however, presents questions far more intricate, ■ and, as to this defense, we may lay down the following propositions:
“First. When to an offens'e knowledge of certain facts is essential, then ignorance of these facts is a defense.
“Second. When a statute makes an act indictable, irrespective of guilty knowledge, then ignorance of fact is no defense. * * *
“It is easy to see that, to require an affirmative proof on the part of the state that the accused had actual knowledge of the adulteration, would put an end to many meritorious prosecutions. The cases even warrant the holding that the accused must know at his peril, and that such doctrine is necessary to protect the public. * * *
“Analogous cases have arisen under statute making it indictable to abduct, seduce or violate girls under a specified age. Here, also, it is no defense that the defendant mistook the girl’s age. * * *
“In other lines of prosecution, under statutes making acts indictable irrespective of intent, similar conclusions have been reached.”

An examination of the brief of counsel on page 173, et seq., will show that all the authorities hereinbefore cited were called to the attention of the Supreme Court. In construing the statutes then before it, the court, speaking through Judge Shauck, says, page 178:

“The act does not in terms require, to constitute an offense against its provisions, that the adulterated article of food shall be sold to be used by the purchaser as human food. Nor does it in terms require, as an element of the offense, knowledge of the fact that the article is adulterated, or provide that a want of such knowledge, shall constitute a defense. Both conclusions stated in the decision of the court of common pleas, are, therefore, wrong unless they are justifiable inferences from the purpose and indicated policy of the act. ’ ’

Purpose and knowledge except when they are indicated by the character of the forbidden act, are, in most cases, unsusceptible of proof. If this statute had imposed upon the state the burden of proving the purpose of the vendor in selling an article of food, or his knowledge of its adulteration, it would thereby have defeated its declared purpose. Since it is the duty of courts to so construe doubtful statutes as to give effect to the purpose of the legislature, they cannot in case of a statute whose provisions are unambiguous, and whose validity is clear, defeat the purpose by construction. ’ ’

The correct view of statutes of this general nature is stated by the Supreme Court of Massachusetts ■ in Commonwealth v. Murphy, 165 Mass. 66 [42 N. E. Rep. 504; 30 L. R. A. 734; 52 Am. St. Rep. 496] :

“Considering the nature of the offense, the purpose to be accomplished, the practical methods available for the enforcement of the law, and such other matters as throw light upon the meaning of the language, the question ip. interpreting a criminal statute is, whether the intention of the legislature was to make knowledge of the facts an essential element of the offense, or to put upon every one the burden of finding out whether his contemplated act is prohibited, and of refraining from it if it is.”

The majority of the court are of the opinion that in the enactment of the statute under consideration it was the evident purpose of the legislature to protect the public against the harmful consequences of decoying, inducing and procuring females under eighteen years of age to enter houses of ill fame for the purpose of prostitution, and there is no difference between this statute and those which make it indictable to abduct, seduce or violate girls under a specified age. It is the same provision. If a person seeks to decoy, induce or procure a female person to enter a bouse of ill fame they must do so at their peril, and it is no defense for a defendant, indicted for this offense, to say that he or she mistook the girl’s age. So we think the indictment is sufficient.

At the close of the state’s testimony a motion was made to direct a verdict on the ground that the record then showed that the house of ill fame that was entered by these two girls was in Stark county and not, in Tuscarawas county, and that, therefore, the crime, if any crime was committed, was committed in Stark county. It is well known that a person shall not be held to answer for a charge except in the county where the crime was committed, and thus venue is important.

It is claimed in this case that the proof shows this crime was committed in Stark county. This woman was charged with inducing, decoying or procuring these girls to enter a house of ill fame for the purpose of prostitution. We think the gravamen of this offense is the decoying, the procuring, the inducing, and when there is the decoying, the procuring and the inducing followed by the entrance to the house of ill fame for this immoral purpose you then have the crime complete, the venue being where the decoy was laid, where the persuasion was exerted or where the inducement was held out. The majority of the court think that it is the right view of the case, and that the court was right in refusing to overrule this motion; that the venue was properly laid and properly sustained by that proof.

Objections are made as to the admission of testimony in this case. In all cases similar to this, of circumstantial evidence there must be some latitude, and we do not think the court in this ease overstepped the boundaries or permitted the introduction of testimony that could be called prejudicial. There was some testimony that was perhaps unnecessary to have been presented or to have gone to the jury. There is difference between hearing a case, with counsel vigorous, able, prompt, watching the rights of the client, as they are entitled to do, and as the record shows was done, and coolly and critically examining every question and answer as it appears in the record. The court might sometimes err in the introduction 'of testimony and permit more than was necessary, and yet the rule is stated that it is better to err on the side of the introduction of testimony than its exclusion, and it is only when it is prejudicial will a court reverse. We do not think this testimony, as shown here, was prejudicial, because if this conviction was right, the introduction of testimony claimed to be improper could have had very little force or effect upon the mind of the jury, and it could not then be said to be prejudicial.

It is claimed that there is no testimony to support this ease and that it ought to be reversed and the motion in arrest of judgment should have been sustained. The majority of the court do not think so. We think this conviction is abundantly established by this record. On the day charged in this indictment the accused was in Canal Dover at the house of Mrs. Alberts when she met Mrs. Whitmire, who is jointly indicted with her. At this meeting the accused informed Mrs. Whitmire “that she was running a hotel in Canton but good help was hard to get and that she wanted some girls to work in the hotel. ”

Mrs. Whitmire informed Mrs. Studer that if she heard of any girls that wanted a place in a hotel she should' tell them where the hotel was. The girls went to a show in the evening of this day and Mrs. Whitmire and her husband awaited their return in an adjoining saloon, and then took them to their home, and informed them that a lady in Canton, who had come to the show wanted a couple of girls at a hotel and gave a description and location of the hotel. The next day after the show the Whitmires directed the girls to Alberts for more specific directions. They were at Alberts when Mr. Whitmire again appeared on the scene and furnished them money, and gave them more specific directions to find Mrs. Studer’s place. These girls had no other information in regard to Mrs. Studer’s “hotel” other than that imparted by the Whit-mires and Alberts. On their arrival at Mrs. Studer’s the girls informed Mrs. Studer that they were informed by Whitmire that she wanted girls to work in her hotel. She replied she had left word at Mrs. Alberts’s and down there at Canal Dover for some girls to work in the hotel but that she did not want them to work in the hotel but that she wanted them for her house of ill fame.

At this time and prior thereto she was the keeper of a house of ill fame under the guise of the Central Hotel. Was there any trouble in the jury’s finding where the decoy was laid, where the persuasion ex-' erted, where the inducement was put forth? All these facts and circumstances were for the jury. Was Mrs. Studer keeping a hotel, and did she want girls to do hotel work? What did she mean by “business is good but good help hard to get?” Was it a mere coincidence that she was in Canal Dover that day and met the Whitmires ? How did the Whitmires understand her remarks — what meaning did it convey to them? It is claimed that if there was any decoy or inducing the Whit-mires must have been a party to it and that this could not be so as the jury which tried Mrs. Whitmire acquitted her. This may be all true, but neither the jury, nor the common pleas court in this cause were concluded by that verdict. Mrs. Whitmire could not be again tried for that offense but the jury in this case were entitled to pass on the evidence-in this case and if it satisfied them that these girls were decoyed into entering this life of shame, they could so find, even if contrary to the finding of a former jury on the trial of one jointly indicted with the accused. What is a decoy? It is the appearance of things as being-natural and true for the purpose of entrapping, when in fact they are unnatural and untrue; anything intended to lead into a snare; an enticement that deceives and misleads into danger by artifice.

The majority of this court think that the jury were fully justified that there was a decoy, an inducement and persuasion held out to the girls by the accused in Tuscarawas county. “I want girls for hotel work.” She had no hotel. “I did leave word down there for girls,” “but not to do hotel work.” “I want you to enter my home for immoral purpose.” The decoy was laid in this county to lead the girls to her house of ill fame in Stark county.

The facts and circumstances in this record were of such force as to bring the conclusion in the minds of the jury that this woman w7as guilty of this crime, and with that conclusion we are in accord; the motion in arrest of judgment was properly overruled.

Finding no error in this record to the prejudice of the plaintiff in error, the judgment of the court of common pleas with be affirmed ánd the cause remanded for execution.

McCarty, J., concurs.

DONAHUE, J.,

dissenting (orally).

It is so very late now that time ought not be taken with a dissenting opinion, but dissenting from an opinion as able as that we have just listened to certainly requires some- reason to be given therefor.

This is the point that appeals to me. in this case. No chain is stronger than its weakest part, and this "whole prosecution gathers around and about a statement made by. Mrs. Studer at the home of Mrs. Alberts over in Canal Dover. There is the starting place of this prosecution. Whatever statements are introduced after that must be supported by that conversation. It will not do to offer what Mrs. Whit-mire -says, or what the girls say Mrs. Whitmire told them. The state is finally relegated to the evidence of what occurred at Alberts’s; and what was that? Mrs. Alberts says, Mrs. Whitmire says and Mrs. Studer says, “I said business was good over there but good help is hard to get.” That is where the state must finally rest its case, because if Mrs. Whit-mire misrepresented that statement to- these girls, without authority, without conspiracy, of course it is not important, it does not bind Mrs. Studer. All the evidence of the state is exhausted when that statement is proven against Mrs. Studer. That is the end of it. It is the nucleus about which all the other evidence centers. That being true, can it be resolved into a statement that ‘ ‘ I want young girls under eighteen years of age for prostitution?” I do not think it can.

Suppose she said, “I want girls for dining room and will pay five dollars a week for them.” Can that be resolved into a statement that, “I want girls under eighteen years of age for prostitution. I want you to go out and get these particular girls under eighteen years of age, or any other girl under eighteen years, for prostitution?” Suppose it be construed that she intended to send this woman out for girls for prostitution, but did she send her out for girls under eighteen years of age?

From that time onward in the trial of this case any and all kind of evidence was admitted.

'Whatever any citizen did or said that had any connection at all with the girls, the Whitmires or the Alberts, was admitted in evidence. There is evidence here, that the girls Avere doped. Noav, because Mrs. Studer said good' help Avas hard to get, is that any authority for introducing evidence into this case that these girls Avere .doped by somebody else? Or that they AA’ere drinking AA’ith other men, or that they were prostituting themselves AA'ith other men, or that they AA'ere of good character prior to that time ? Their character is not a feature in this case at all, only to excite and anger the jury against the defendant. Those things .are dangerous things and ought to be guarded against in a trial of this kind. There is not any reason why this Avoman could not be convicted properly on evidence- that is absolutely permissible under the rules of criminal evidence.

Now, we come to the other point. Suppose that these girls were induced to go to Canton by a remark that this ivoman had made. What for? The physical entering of a house of prostitution is not a crime, bttt it is entering for the purpose of prostitution. Her remarks may have sent out the poison, suggested by my associate, that was breathed in the air of TuscaraAi'as county. That poison may have brought the girls into that house, but did they enter for the purpose of prostitution? On the very threshold of that house they are met Avith the statement, “I do not want girls for servants or for house "work; I want girls for prostitution, and I Avant you to stay here for that purpose.” There is where the contract is made. They are not induced nor decoyed to go into that house of prostitution. But they are openly told the moment they enter that house, '“I want you for the purpose of prostitution.” It seems to me, that being true, there is no other rational conclusion than that the venue of that crime is in Stark county. It is perhaps technical. I believe in the guilt of this woman as much as my associates, and I am very glad that they have been able to see their way not to let her escape the lash of justice at this time.

I only make this statement because I believe as a lawyer this is the way the case stands. I would not have taken your time in this explanation except for the purpose of showing the reasons I dissent.


source: Caselaw Access Project

author: SWING, J.

license: Public Domain

text:
    ASSUMPTION OF RISK — MASTER AND SERVANT.
    [Hamilton (1st) Circuit Court,
    December 19, 1906.]
    Jelke, Swing and Giffen, JJ.
    James W. Crockett v. John H. Michael.
    Assumption ojt Risk by Employe.
    Where a servant is injured'while endeavoring to execute an order involving obvious danger to himself, the question whether or not he was justified in obeying the instructions given 'him by the master is one which should be left to the jury.
    [For other- cases in point, see 6 Cyc. Dig., “Master and Servant,” §§ 436-450, 747-753, 798; 6 Cyc.' Dig., “Negligence,” §§ 713-720. — Ed.]
    [Syllabus approved by the court.]
    ERROR to Hamilton' common pleas court.
    The plaintiff while employed in the wagon factory of the defendant was directed by the defendant, in person, to assist in taking the “taps” or burrs from the axles of a wagon and raise it to the second floor on the elevator. The taps were removed1, and the wagon was then run onto the elevator which was raised- by a rope running over pulleys. When five or six feet high one of the wheels, having no tap or burr .to hold it on, came off and fell to the> floor. Plaintiff was struck by it and his leg was broken. His suit was for damages, based on the alleged negligence of the master. The trial judge granted a motion to take the case from the jury.
    David Davis, .for the plaintiff in error.
    Robertson & Buchwalter, for defendant in error.
   SWING, J.

This case should be reversed on the authority of Van Duzen Gas & Gasoline Engine Co. v, Schelies, 61 Ohio St. 298 [55 N. E. Rep. 998]. At page 309, the court says:

“The clear result of the best considered cases is, that when an order is given a servant by his superior to do something within his employment, apparently dangerous, and, in obeying, is injured from, the culpable fault of the master, he may recover, unless obedience to the order-involved such obvious danger that no man of ordinary prudence would have obeyed it; and this is a question of fact for the jury to determine under proper instructions, and not of law for the court.”

It was certainly negligence of the master to order the taps taken off the axles before elevating the wagon as shown by the evidence. Whether the plaintiff was justified in executing the order of Michael, the master, with a knowledge of the obvious danger, was a fact which the court should have left to the jury.

Jelke and Giffen, JJ., concur:


author: PARKER, J.

text:
    ASSESSMENTS — STREETS.
    [Lucas (6th) Circuit Court,
    October 14, 1905.]
    Haynes, Parker and Wildman, JJ.
    Abbie Whipple et al. v. Toledo (City) et al.
    1. Delay or Nine Months between Petition fob Street Improvement, and Action by Council thereon, not Fatal.
    A delay on the part of the council of a municipality of about two years between the original filing -of a petition for a certain street improvement and the council’s resolution for the same will not operate to invalidate the assessment levied to pay therefor, it appearing that such petition was never withdrawn nor abandoned.
    2. Assessment not Invalidated because of Change in Law while Petition • Pending before Council.
    A change in the law regulating the levying of assessments for street improvements, made while the petition for the improvement is pending before council, does not have the effect of invalidating the assessment, where it does not appear that the petitioners abandoned the effort to secure- the improvement, and the validity of the assessment is based upon their agreement to pay it, and not upon any statute.
    S. Assessment for Street Improvement Made under Repealed Statute not Invalid where Statute Adopted by Petition as Plan of Assessment.
    If property owners petition a city for a public improvement and agree to the levy ot a special assessment to pay therefor, the fact that the statute prescribing certain procedure in the levy of this particular class of assessments was declared unconstitutional and repealed before -the levy will not invalidate the assessment, as such agreement will be regarded as adopting- the statutory provision as a' scheme or plan for making the assessments.
    [For other cases in point, see 1 Cyc. Dig., “ Assessments,” §§ 544-599. — Ed.]

      4. Assessment for Street Improvement not Invalid because Petition Signed by Less than Majority oe Property Owners, when.
    Under original Sec. 2267, as amended, 94 O. L. 161 (repealed 96 O. L. 96; see Lan. R. L. 3612; B. 1536-221), an assessment for street improvements was not invalid by reason of the fact that less than a majority of the property owners in the assessment district signed the petition therefor. Hendrick-son v. Toledo, 13-23 0. C. C. 256, distinguished.
    [For other cases in point, see 6 Cyc. Dig., “Municipal Corporations,” §§ 1197-1206. — Ed.]
    '5. Petition undek Original Sec. 2271 Rev; Stat. for Street Improvements Required only in Assessments upon Intersecting Streets, or Assessment Back upon Property Partially Appropriated.
    Under original Sec. 2271 (see Lan. R. L. 3604; B. 1536-213), a petition was required in order to validate proceedings for street improvements only where it was sought to assess the costs thereof back upon-property from which the street or part of the'street was taken, or where it was sought to assess upon property upon intersecting streets.
    6. Determination of Manner of Assessment and Notice of Intention to Levy not Necessary.
    Failure of cpuncil to determine in advance the manner in which an assessment shall be levied, or to give notice to property owners of an intention to levy an assessment, does not render the assessment invalid, where the petition for the improvement did not specify, the manner in which it was desired the assessment should be levied or particularize in other ways as to the plan to be adopted in proceeding- with the improvement.
    [For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 196-222, 491-504; 6 Cyc. Dig., “Municipal Corporations,” §§ 1237-1268.- — Ed.]
    7. Assessment Lien Attaches from Date of Ordinance — Prior Purchasers not Liable.
    The, lien of an assessment attaches from the date of the passage of the assessing ordinance. Purchasers of property prior thereto and without notice are not liable for the assessment.
    [For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 723-735; 6 Cyc. Dig., “Taxation,” §§ 744-747. — Ed.]
    8. Signers of Petition foe Improvement who Agree to Assessment, not Bound to Pay more than their Fair Proportion.
    The signers of a petition for a street improvement, who agree to submit to a special assessment to pay therefor; will be regarded as agreeing to pay merely their fair proportion of the costs thereon, and an assessment levying the entire cost of such improvement on them and exempting other property-owners on the street who are equally benefited thereby is inequitable and invalid.
    [For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 300 et seq. — Ed.)
    Appeal from Lucas common pleas court.
    Alvord & Price,,A. T. Goorley and Templeton & Templeton, for plaintiffs.
    U. G. Denman, city solicitor and C. K. Friedman, assistant city solicitor, for defendants.
   PARKER, J.

This case is here on appeal. It is an action to enjoin certain assessments levied by the city. The assessments are for the costs of the acquiring certain real estate to straighten Twelfth street at a point where it runs into Union street, so as to make it continuous to Union street, without a jog, which requires the taking of lots 92, 93 and part of lot 94, lying upon the west side of Union street and the north side of Jackson street. It appears that the city acquired this property by condemnation proceedings for the purpose of straightening the street, as is stated, and that the costs, the entire costs, included the costs which were' assessed upon certain property upon Union street and upon Twelfth street, which amounted to about $2,650.

The persons whose property was assessed to pay these costs join in this case to enjoin the assessment. Their properties lie along Twelfth street between Adams and Jackson, and on Jackson avenue and Union street between Jackson avenue and Woodruff avenue. They contend that this assessment is invalid on various grounds that I will take up and discuss in their order. But first it may be said that it is conceded on all hands that, in a strictly adversary proceeding, an assessment may not be made upon private property for the costs of an improvement of this character. It has been so held in the case of the Cin. L. & N. Ry. v. Cincinnati, 62 Ohio St. 465 [57 N. E. Rep. 229; 49 L. R. A. 566], and more distinctly in the case of Dayton v. Bauman, 66 Ohio St. 379 [64 N. E. Rep. 433]. It was held in those cases that the law providing for the assessment of the costs of improvements of this character upon benefited property is unconstitutional.

But this is not the only ground upon which plaintiffs undertake to have the assessments enjoined; for it is insisted upon the part of the city that the circumstances of this case are such as that these property owners are required to pay the costs of this improvement under the doctrine of agreement and estoppel laid down and enforced by this court, as we believe in accordance with the decisions of the Supreme Court, in the case of Hendrickson v. Toledo, 13-23 O. C. C. 256. The plaintiffs insist, however, that this case does not apply to the case at bar; that there is nothing in the circumstances of this case that would justify the levying and collecting of this assessment upon the theory that there had been an agreement to pay; or that there was any estoppel. \

The history of this case, briefly, is as follows:

In 1900, in the latter part of the year and the early part of 1901, a petition was circulated among the property owners along this pan of Twelfth street and Union street, which was signed by some of them, including the plaintiffs here, or part of the plaintiffs here, asking the council to straighten Twelfth street by acquiring this property so as to take out the jog where Twelfth street and Union street come together. It appears from the oral testimony that we have heard that this place was very unsightly and the people in the neighborhood were anxious to have this improvement made for that reason; that the lots were low and had been filled in with all sorts of debris and just at this point, jutting out into the street where it was plainly visible from all these properties (which was residence property), there was an old shanty that was an eyesore of the neighborhood. So it appears that this petition was prepared, circulated and signed. The persons who were active in forwarding this enterprise and had this improvement made were Mr. Macomber, Mr. Drago and Mr. Thomas, each of whom owned property in the neighborhood. That petition reads as follows:

“To the Honorable Council of the City of Toledo, Ohio:
“Gentlemen: — We, the undersigned, owners of property fronting upon or abutting upon Twelfth street, between Adams street and Jackson avenue, and on Union street between Jackson avenue and Woodruff avenue, respectfully petition your honorable body to take the necessary steps to condemn and appropriate for public use and highway, lots 92, 93 and so much of lot 94 as is necessary in Central Addition to said city for the purpose of extending Twelfth street a uniform width to Union street and widening said Union street. We believe and acknowledge our respective properties would be benefited by the opening and widening of said street, as stated above. We consent that a special assessment be made to pay the costs and expenses thereof upon the property abutting upon said street as stated above. We consent that our respective properties be so assessed for the purpose named herein as provided by law.”

This petition as first prepared, instead of being addressed as I have read to the “Honorable Council,” was addressed to the “Honorable Common Council.” It seems that during the pendency of these proceedings in the council, the new code was adopted, and that the designation of the council became simply the “Council,” instead of as it had been formerly “the Common Council.” And someone has made it conform to the new name by striking out the word “common;” otherwise the petition itself is unchanged.

Mr. Lowenshal was the agent of the parties circulating this petition, and it appears that he was actively engaged in forwarding this work until some time in June, 1901. He had filed the petition with the proper officers of the city somewhat earlier, but he still manifested interest in the matter, and on June 22, he attached a certain affidavit to the petition, and he says that upon that day he urged the city solicitor to push the matter forward. I am particular about mentioning these dates because it is urged upon the part of these property owners, as one of the grounds of relief, that the council of Toledo was so long in acting upon this petition that they lost jurisdiction of the matter. That, as we understand it, is the substance of that' claim on the subject of delay, and that in the meantime before action was taken by the council there had been a change in the law on the subject.

Now it appears from the testimony of Mr. Northup, who was assistant city solicitor at that time, that he indorsed upon the wrapper then upon the petition, in accordance with the customs of that officer, that the petition was not approved, and I believe he stated in his testimony that he did that upon the ground there was not a sufficient number of signatures to it. It seems that the matter was taken up afterwards and other names were signed to the petition and a new back was put upon it; that the people upon the streets were not content to give up, but still desired to have the straightening of the street accomplished; so it seems to have been circulated again; some six or seven other signatures were obtained and the petition was then refiled on May 15, 1903. In pursuance of this petition, a resolution to condemn was adopted on June 29, 1903, and an ordinance to appropriate was passed on July 28, 1903, and in pursuance of this the property was acquired: and on April 11, 1904, a resolution to assess was adopted, the report of the assessors was received on May 4, 1904, and the assessing ordinance was passed on July 18, 1904; and soon thereafter in pursuance of law the assessments wére certified to the county auditor and entered upon the tax duplicate against these properties.

Now we are of the opinion that this delay alone was not sufficient to invalidate the petition, notwithstanding the fact that some changes in the law were made in the meantime. The parties never withdrew their petition nor took any steps at all towards dropping or abandoning it: and the change that was made in the law appeared to be a very immaterial matter; for, if these assessments are to be sustained at all, they are not to be sustained upon the theory that the law authorizes them, but upon the theory that the parties had agreed to be assessed, had agreed, in other words to pay the costs of acquiring this property for the straightening of this street, and that, therefore, they were bound to pay; because the city had gone forward and acquired the property and incurred the expense in pursuance of their request and their promise. •

Tbe effect of such action, according to the views of this court is very fully discussed in Hendrickson v. Toledo, supra, and it is not worth while to go over that branch of the subject again. I simply add the remark, however, which I think appears in that report as well, that the law is only effective to this extent (the law being invalid or unconstitutional and not enforcible as law), that it is looked to, and regarded as a scheme or plan for the making of the assessments, which is adopted by the parties as a part of their agreement, when they request that an assessment shall be made and agree that they will pay it.

At .the time this petition was filed there was a law upon the statute books which provided for assessing the costs of this sort of an improvement, and it gave in detail the plans for making the assessments. After these decisions by the Supreme Court holding that that law as to this class of cases was unconstitutional, when the legislature came to the adoption of the new code, they did not undertake to provide for the assessment of costs of this character upon the property of a private owner; and that is the change in the law referred to. But the law, after it was repealed, it seems to us, was about as effective in the way of stating a plan of operations as it was before, it being only necessary for that purpose to find that the parties referred to that law for that plan and adopted it as their plan and made it a pari; of their agreement; and we think that this was so in this instance; and we think that if there were nothing else in the way of the enforcement of these assessments, they might be and should be enforced upon the theory and principle laid down in Hendrickson v. Toledo, supra.

It was said in Hendrickson v. Toledo, supra, that the only objection urged on the part of the property owners to the assessments there was, that the law was unconstitutional; but here, as I have indicated, there are other objections made to them, and one of them, which the plaintiffs seem to regard as very material, is, that of the owners of property between the points where the assessments are levied, between Adams street and "Wood-ruff avenue, that there was not a majority of the owners signed the petition, not a majority of the owners of the feet front, and they call attention to original Sec. 2267 (see Lan. R. L. 3612; B. 1536-221), which, they contend, requires such majority; and it is said in argument that we seemed to have regarded that as important in Hendrickson v. Toledo, supra. We referred to it there, and a majority had signed the petition in that case, but, upon an examination of the statute, we find that the law has been changed in that respect since the transactions involved in Hendrickson v. Toledo, supra; that at that time such a majority of signers was required, and therefore we hold that it must have been contemplated by.the petitioners, when they signed this petition, even regarding it as a proposal or basis of an agreement; it must have been contemplated that a majority would sign, and that the agreement or proposal would not be binding until a majority had signed. And so counsel urge here that the council of the city was not authorized to act upon this as a proposal and make of it an agreement until it had been signed by a majority; but as I say the statute in that respect has been materially changed. Original Sec. 2267, as it then read will be found in 92 O. L. 340, 341. As it read at the time of the transactions at bar it will be found in 94 O. L. 161; and with respect to making assessments upon petitioners in cities of this grade and class contains in parenthesis this exception:

“Except sidewalks, sewers and the appropriation or otherwise acquiring lots or lands for the purpose of laying off, opening, extending, straightening or widening streets, alleys or other public highways, for the power to make which improvement no petition shall be necessary.”

That is, for improvements of that character, no petition was required. The statute that I have been referring to is original See. 2267 (see Lan. R. L. 3612; B. 1536-221). Turning now original See. 2271 (see Lan. R. L. 3604; B. 1536-213), which is also invoked, we do not find that it requires a petition at all in a case of this character. Our construction of that section is, that a petition is only required, or was only required as the law stood at the time of'these transactions, in order to authorize an assessment upon property for an improvement of this character, where it was sought to assess back upon property from which the street or part of the street was .taken, or where it was sought to assess upon property upon intersecting streets, generally a petition was not required at all, and a petition would not be required of persons standing in the relation to the" improvement that the. plaintiffs here stand to this improvement.

It was also urged that original Sec. 2264a (see Lan. R. L. 3600, 3602, 3604; B. 1536-210; 1536-211; 1536-213) provided certain prerequisites to the making of an assessment, which must be observed; otherwise the assessment would not be valid. That section as it then read was as follows:

“In cases provided for in See. 2263 and in eases where an improvement of any kind is made, within cities of the second grade of the first class, and in corporations in counties containing a city of the second grade of the first class, of an existing street, alley, avenue, navigable watercourse or other public highway, and whenever any street, alley, avenue, navigable watercourse or other public highway is opened, extended, straightened, widened or improved, the council of such cities or corporations may decline to assess the cost and expenses mentioned in Sec. 2263, or any part thereof, or the cost or expenses of any part thereof of such improvement, except as hereinafter mentioned, on the general tax list, -in which event such costs and expenses, or any part thereof, which may not be so assessed on the general tax list, shall be assessed by the council of such cities on the abutting and such adjacent and contiguous or other benefited lots and lands in the corporation, either in proportion to the benefit which may result from the improvement, or according to the value of the property assessed, or by the foot front of the property bounding or abutting upon the improvement, as the council by ordinance, designating the territority to be assessed may determine before the improvement is made, and in the manner and subject to the restrictions herein contained.”

Then there is a further provision as to how the assessment shall be paid. It does not appear that the determination, of the property to be assessed, or how the property should be assessed, was made by the council before they acquired this property.

We are cited to some decisions to the effect that this is a necessary prerequisite to the validity of the assessment. But as I have remarked before, this was not a strictly adversary proceeding; it was not adversary at all. If it is to be sustained at all, it is to be sustained upon the theory of agreement; and we do not understand that in a ease of this character where an assessment is to be sustained upon the theory of agreement or estoppel, or both, that the council is required to observe all these provisions as to the mode of proceeding." They must be substantially what is requested, what is agreed upon. They must acquire the property, levy and assess the cost thereof upon petitioner’s property according to the plans provided for by the statute. The petitioners for the improvement, are so to speak, “in court.” They have gone before the council. They are subject to its jurisdiction; it is not necessary to serve them with notice of what is going on at every step. They have come in and asked^this to be done; they must take notice of what is being done, so long as there is no attempt at concealment or fraud or undue advantage. They have petitioned for this improvement and they ask that it be assessed upon eertair property; therefore, it is not important to them if the council before it proceeds, should determine upon what property the assessment is to to be laid, for if the agreement to assess has been agreed upon, it' is not important to them if the council should determine before it acquires the property, upon what plan the assessment shall be made; for they have agreed as we construe this proposal that it shall be assessed according to any lawful plan provided in the statute in such eases; and' there seemed to have been several plans provided in the statute in such cases; and the plan adopted here was to assess according to the benefits’ according to the report of the assessor and certainly that would not be an inequitable or unfair plan. That was one of the plans in the statutory scheme of assessments.

Now upon this subject or as being related to it, I call attention to the decision in the case of Murdock v. Cincinnati, 6 O. F. D. 694 [44 Fed. Rep. 726], by Judge Jackson of the circuit court of the United States for the southern district of Ohio. The decision was made January 7, 1891. I read from the syllabus:

“A property owner who petitions for a street improvement, expressly requests that an assessment be made to pay it, and agrees to answer for a deficiency in the collectibility of the assessments against other property owners, thereby waives to insist upon notice or an opportunity to be heard before the assessments are levied.”
“The proceedings of city authorities in levying an assessmenl for a street improvement, in the exercise of the power conferred on-them by statute, and in compliance with a petition therefor, cannot afterwards be impeached by an abutting owner, as being without due process of law, for the lack of notice or opportunity to be heard.”

There is more to the same effect in the opinion, but what I have read from the syllabus indicates what will be found in the opinion. The whole opinion upon the subject is worthy of perusal by parties interested; and we think the principle there laid down and discussed is applicable to what I have,been discussing, with reference to these preliminary prerequisites in the council. And it is applicable also to the next proposition urged by counsel, that no notice was given to them' of the proceedings or of the purpose to assess, etc., and I shall not discuss that further. The ordinary statutory notice was given, or the one provided by law; that is to say, the published notice in the newspaper that an assessment had been made and was on file, giving, the parties an opporunity to come in and object. And it appears that nobody came in, no objection was made; thereupon the assessment wa-> confirmed. The statute further provides that, upon objection, proceedings shall be taken to correct the assessment or make it just and right. .

It is also urged on behalf of these plaintiffs that the counsel ha% not given them what they asked for; that instead of giving them a street, instead of straightening Twelfth street, widening Union street, they have acquired the property and turned it over to somebody else as a dooryard or private park, or something of that sort. It does appear that immediately contiguous to this piece that was acquired by the appropriation proceedings, Mr. Macomber has .built a flat building and that he has filled up this low ground in front and sodded it and put in some trees. This appears to have been done upon the permission of the board of public improvements, and seems to have been a sort of improvement for the neighborhood, because it made the place more sightly. But that it belongs to the city there can be no question, and it is a part of this street, and it will be observed that the petitioners here have not asked for .anything more than that it shall be acquired as part of the street. They have not asked that it be improved by paving or otherwise, and it is not to be supposed that upon the proper application the city would not take possession of it by paving it. In removing the old structure that stood there and making the place sightly, it seems that the real object desired by the petitioners has been substantially accomplished. But-we hold that it is a part of the street; what the petitioners have asked for has been done.

Certain of these plaintiffs have acquired the lots assessed since these proceedings were instituted; I mean after the petition was filed in the council. Now an assessment becomes a lien upon property under Sec. 2255 Rev. Stat. (repealed 96 O. L. 96) from the time it is mad£, which we understand tó be from the time an ordinance was passed levying it; and those who have purchased lots upon the street without notice, prior to the passage of the ordinance, are not bound by the assessments upon their lots. It is said by the city solicitor that all ought to be bound who purchased since the passage of the ordinance providing for the appropriation. But we think not; there is no reference in that to any assessment, nothing said about making' any assessment in that, because the first time the council takes action looking to an assessment to bind the property is when it passes the assessing ordinance. Of course, preliminary to that, it had sent out the assessors.

Now this whole cost, as I have said, has been assessed upon the property of the petitioners. They are less than a majority of the owners of property within the limits described in the petition. They own less than a majority of the foot front of property. Other property situated just as their property is situated, benefited in the same way, to the same degree, has escaped the assessment altogether. Of that perhaps they would have no right to complain, were it not for the fact that the assessments which would naturally have gone upon that property, if all the property had been assessed, has gone upon their property; it has increased their burden. It is urged by the city solicitor that those who signed the petition agreed that they would bear the whole burden. It would follow that the council might have taken action upon one person signing the petition and assessed the whole cost against him upon his property; or that they might have proceeded with a petition signed by two or three. Undoubtedly, the parties might agree to such a thing and be bound by their agreement. But we think that it should appear very clearly they had agreed to that before the court would undertake to enforce a thing which would seem to be so unreasononable and inequitable.

We do not put that construction upon this petition. When the petitioners have asked that the cost and expense be assessed upon the property abutting upon said streets, as set forth above, we think that they meant, and that it is very clear that they meant the property bounding or abutting on Twelfth street, between Adams and Jackson, and on Union street between Jackson and Woodruff and that they agreed to pay only their fair proportion of the costs, taking into account all this property between Adams street and Woodruff avenue. For the reason that this assessment has not been made according to that plan. We feel compelled to set it aside and we do set it aside. But we believe a valid assessment may be made in pursuance of that petition. If the council will taka into account all of the property between those streets in such manner as only to assess upon these properties, the properties of these plaintiffs, their fair and equitable proportion; and' therefore we set this assessment aside, without prejudice to the rights of the council to proceed in pursuance of law and make a reassessment.

The costs in this case will be adjudged against the city.

Haynes and Wildman, JJ., concur.


text:
    JURY — NEGLIGENCE—CHARGE TO JURY.
    [Lucas (6th) Circuit Court,
    October 6, 1906.]
    Haynes, Parker and Wildman, JJ.
    Caroline E. Betten v. Toledo & O. C. Ry.
    1. CHARGE THAT TO JUMP FROM MOVING TRAIN AFTER BEING WARNED IS NEGLIGENCE PER SE, WITHOUT CONSIDERING OTHER CIRCUMSTANCES, NOT PREJUDICIAL Error ip no Excuse for Jumping Actually Appears from the Evidence.
    A charge to the jury, in an action for damages for personal injury, brought by a woman who had. been hurt in falling from a moving train which had been prematurely started, that if plaintiff jumped from the train at a time when it was moving and after being warned by the conductor that the train was moving and that she should not jump, she was guilty of contributory negligence and could not recover although defendant may have been negligent in starting the train, is not error prejudicial to plaintiff where there is nothing in the evidence as to surrounding circumstances wherefrom any excuse for plaintiff’s conduct,may be found.
    [For other cases in point, see 2 Cyc. Dig., “Carriers,” §§ 537 et se<].; 6 Cyc. Dig., “Negligence,” ,§§ 339-348, 762-781. — Ed.]
    2. Overruling Challenge for Cause not Prejudicial Error where Peremptory Challenges not All Used.
    Where a juror states that he is a railroad man employed on a railroad which he says he understands has some connection with the defendant railroad company and is therefore challenged by plaintiff for cause, It is not reversible error for the court to overrule such challenge where the plaintiff still has peremptory challenges left and does not use .them all, even after exercising one in the case of this juror.
    [For other cases in point, see 5 Cyc. Dig., “Jury,” §§ 372-374. — Ed.]
    [Syllabus approved by the court.]
    ERROR to Lucas common pleas court.
    C. A. Thatcher, for plaintiff in error.
    Doyle, Lewis & Schauffelberger, for defendant in error.
   PARKER, J.

In the court below Caroline E. Betten brought her action against the Toledo and Ohio Central Railroad Company to recover damages on account of personal injuries by her sustained, which she charged were due to the negligence of the defendant. On August 14, 1904, she was a passenger on one of the defendant’s trains, traveling from the city of Toledo to her home at Lime City, some ten miles south of Toledo. She had paid her fare and was entitled to all the care and protection due from a common carrier to a passenger. It was an excursion train, consisting of several cars apparently very fully loaded. She was traveling with some relatives, who were also adults, and one had an infant child,in her. charge. The plaintiff was a woman about forty years of age, apparently in the prime of life and in good health. She charges in her petition that the train was stopped at the station of Lime City for the purpose of allowing passengers to alight therefrom; that a part of the passengers on said train had alighted after the said train had stopped, and plaintiff was in the act of alighting from said train, when the officers and agents of the defendant in charge of said train, wrongfully, carelessly and negligently caused said train to be started in such manner that plaintiff was thrown violently upon the stone pavement composing the platform maintained by the defendant at said station.

Plaintiff says that the defendant was careless and negligent in that it caused said train to be set in motion when the officers and agents of the defendant having charge of said train knew, or should have known, that the plaintiff was in the act of alighting therefrom. Plaintiff says she did not know and had no means of knowing that said train would be set in motion and was without fault upon her part, contributing to the injuries she received — then follow the averments as to the injuries. ' And there was evidence tending to support her claim of negligence upon the part of the railroad company and of an absence of negligence upon her part, and that she received serious injuries.

The defendant company, denied that it had been guilty of any negligence, and averred that the plaintiff was guilty of contributory negligence.

The case was tried to -a jury which returned a verdict in favor of the defendant. A motion for a new trial having been overruled, the plaintiff below prosecutes error here.

That the plaintiff was a passenger; that she was traveling on the train; that the train stopped at Lime city; that she attempted to alight; that in alighting she fell or was thrown down, stand undisputed. It is also undisputed that the train stopped for the purpose of permitting passengers to alight; that while the plaintiff was attempting to pass from the cars to the platform the train started again. It seems that the conductor of the train was about this time very busy taking up the tickets of the passengers, and that the duty of starting the train was being performed by a brakeman, who was out upon the platform, and that he signaled for the train to start before Mrs. Betten had a chance to alight from the train, perhaps supposing that all the passengers had alighted; at all events there is no evidence that he observed that she had not alighted when the signal was given for the train to start.

Nevertheless, we think that the jury were authorized in finding upon the issue of the alleged negligence of the company that it was guilty of negligence as charged; that it devolved upon the company through its servants to ascertain whether all the passengers who were attempting to alight had reached the platform in safety before it permitted the train to be started up again. It seems that the train when it started up advanced about ten feet and was then stopped again, and the stopping again appears to have been because of a signal given by the conductor of the train. He having observed the predicament of the plaintiff — that as she was about to alight — pulled the bell rope and the train was stopped within a very few feet of where it started.

The plaintiff contends, and as she relates the facts of this accident, it appears, that she was just in the act of stepping from the platform, just swinging herself from 'the train when the train started and threw her down. On the part of the railroad company it was contended, and there was evidence upon the trial tending to show, that when the train was started upon the signal given by the brakeman Mrs. Betten was upon the platform of one of the cars, rather upon one of the steps leading from the platform of the car; that the conductor observed or was apprehensive that she was about to attempt to alight and that he called to her not to jump; that he immediately pulled the bell rope, giving the signal for the train to stop; but that notwithstanding the fact that the train was in motion and that she had received this warning from the conductor she jumped from the train and so was injured. And the verdict of the jury indicates that that is the state of facts they found to be true. It is not comprehensible upon any other theory; they must have found that that was the way the accident occurred..

With respect to that assumed state of facts, which the testimony tended to establish, a charge was given by the court, of which the plaintiff in error makes serious complaint, to the effect that one alighting from a train under such circumstances would be guilty of negligence per se; in other words, would have no right of recovery. ' I read that paragraph:

“The defendant claims that the plaintiff, when upon the platform of the car, was warned by the conductor that the train was in motion and that she should not leave the ear; that by not regarding the warning so given, knowing that the car was in motion, and jumping from the car or leaving the car while it was in motion and without regard, to the warning that was given, the plaintiff was guilty of a -negligent act, without the commission' of which she would not have been injured. In other words, by leaving the train under the circumstances that she did, having had warning that she .could not leave it and knowing that it was in motion, she was guilty of contributory negligence. I will say to you that if you find from the evidence in this case that the plaintiff, knowing that this train was in motion, was warned by the conductor in charge of the train and told not to leave the train while it was in motion; if a warning was given in that way and under such circumstances as she understood it, and, notwithstanding such warning and .such knowledge on her part, she leaped from the train, she cannot recover in this action — such conduct on her part would constitute contributory negligence — because it was her duty, if she knew this train was in motion and the conductor of the train forbade her to leave the train at that time, to observe the warning and refrain from leaving the train and if she did not do so, she in law cannot recover in this case although you may find from the evidence that the defendant company was negligent in starting the train before she had time to alight.” '

It is insisted by counsel for plaintiff: in error that the weight of authority is to the effect that one alighting from a moving train is not guilty of negligence per se; but that such action creates a presumption of negligence, a prima facie case of negligence, which is rebutable, and which may be overcome by the circumstances attendant upon the act; that is to say, whether it would be negligence or not would depend upon other circumstances than the mere circumstance of attempting to alight from the moving train; and that this is so even though the additional circumstance of a warning from the conductor accompanies the incident; and a great many authorities are cited in support of this contention. On the other hand, very respectable authorities are cited in support of the proposition that it is negligence per se to attempt to alight from a moving train.

We think, however, that the better rule and the rule supported by the great weight of authorities is that contended for by plaintiff in error, that the question is to be submitted to the jury, if the circumstances are such as might, in the judgment of reasonable men, excuse the act of attempting to alight from a moving train. In other words, if the judgment of reasonable men would not all agree upon the proposition, it should be submitted to the jury; that there may be circumstances under which one would be entirely justified in attempting to alight from a moving train, rather than in remaining upon it. One of the cases cited by counsel for defendant in error is that of Morrison v. Railway, 56 N. Y. 302, and in the course of the decision Judge Folger says, page 306:

“The learned counsel for the defendant claims Jhat the facts are such, as that as a matter of law, contributory negligence is shown, and that there' was not a question of fact for the jury. He insisted that as a matter of law, it is always negligence and want of ordinary care, for a person to attempt to get from off a car when it is in motion. Were I disposed to accede to this proposition npon principle, which I am not, I should feel myself precluded by prior decisions of this court, and influenced to a contrary conclusion by those of other courts. (Filer v. Railway, 49 N. Y. 47, and cases cited; Pennsylvania Ry. v. Kilgore, 32 Pa. St. 292.) The rule established, and as I think the true, one is, that all the circumstances of each case must be considered, in determining whether in that case there was contributory negligence or want of ordinary care, and that it is not sound to select one prominent and important fact, which may occur in many cases, and to say, that being present, there must as matter of law have befen contributory negligence. The circumstances vary infinitely, and always affect and more or less control each other. Each must be duly weighed, and relatively considered, before the weight to be given to' it is known. This is not to say, however, that in every case, it is a question for the jury of fact, or of fact and of law to be given to the jury with instructions. Where the facts are undisputed, the question of contributory negligencé may become one of law, as the other questions which arise upon a trial, and are submitted to the decisions of the court on a motion for a nonsuit or otherwise. ’ ’

Then the learned judge proceeds with a, discussion of the facts of the ease he was deciding and concludes that as a matter of law in that case the plaintiff in error was guilty of negligence per se.

As I have indicated, we are not prepared to affirm as an abstract proposition that one who jumps from a moving train, even after being warned by the conductor not to do so, is guilty of negligence which would preclude a recovery for injuries so' received. But what is charged in this case we are not authorized to regard as being charged as an abstract proposition, it is to be read and construed in connection with the facts of the case as developed by the evidence; it must be applied to the facts of the case and it must be applied here as if the court' had added, “Unless from other circumstances shown by the evidence in the ease, it appears to you that an ordinarily prudent person under the same circumstances would have jumped from the train notwithstanding the moving of the train and the warning,” That of course would have so modified it as to make it a charge that the jumping from the train made but a prima facie case of negligence. But the question of whether the court erred in not adding that qualification must be tested by an examination of. the evidence to ascertain whether there were any circumstances shown, to which the qualification might have been properly applied by the jury; whether there was anything in the circumstances that would have justified the jury in finding that Mrs. Betten was not guilty of negligence, even though she jumped from the train while it was moving, and after being warned by the conductor not to do so. I repeat, an excuse for doing an act that without excuse therefor would be per se negligence, must be found in the evidence and not raised by imagination or conjecture of circumstances that might have accompanied the act.

In this case Mrs. Betten is a witness in her own behalf, and she tells her story very briefly at page 36 of the record. After some questions leading up to this, she is asked,

“Q. What occurred when the train reached Lime City? A. My daughter got off ahead of me and I was following, and when he called Lime City I was right back of my daughter, and after she got off I was just stepping off when the train gave a jerk and threw me, and, of course, that is the last I remember. Q. Had the train come to a stop to let passengers oíf? A. Yes. Q. Did you know the train was about to start up again? A. No, I did not think it would start. Q. Do you know how you fell ? A. I know I struck my head and my back. ’ ’

Those are answers as to how it came about that she was thrown; according to her own story she was not aware that the train was moving when she attempted to alight, and she was in the very act of alighting from the car when the movement of the car in starting up threw her so that she fell.

Counsel for plaintiff in error in his brief says:

“In this case Mrs. Betten was compelled by an act of the defendant to elect between an alternative danger, namely, she was obliged to decide in an instant whether' it was safer for her to step from the slowly moving train to the ground below or to incur the peril of remaining on the platform of the train until, as she believed, the train had reached the next station, or the peril of returning to the place in the car which she had occupied before the train reached Lime City. The negligent act of the company’s servants in starting the train, interfered to some extent with her free agency, and the slowly moving train negligently started as it was, created a confidence that the attempt could be made with safety, much more safety than would have been in her remaining on the platform of the train, or turning around and climbing the steps in 'an attempt to return to the position in the car which she had formerly occupied.”

This is altogether inconsistent with Mrs. Betten’s own story. According to her story, she was not put to any election between perils, and her mind was not agitated by a consideration of the .so-called peril of being carried forward by the train, and her free agency was not interfered with in any respect. She was alighting from a train which had stopped and which she did not anticipate would be started, and was thrown by the train’s suddenly starting up, as she was in the act of alighting. Again counsel says, “In the case at bar, Mrs. Betten was, by the wrongful act of the railroad company, placed in a position of peril and the sudden impulse to step from the train, or jump, notwithstanding the warning of the conductor, was not unnatural to a woman under such circumstances,” though Mrs. Betten swears most positively that she heard no warning from the conductor. And counsel says, ‘! In this ease we have not a man, but an infirm and nervous country' woman, actually on the steps of a train which had just begun to move, while her husband and all her other friends were on the ground; and she without protection, reasonably believing that she was about to be carried away, jumps off of the steps. Mrs. Betten had many times more reason to be frightened into jumping off than did the man in the Michigan case.” But according to the facts deduced in evidence here on behalf of the plaintiff, she was not then an infirm and nervous woman; but she was a woman in good health, in the prime of life, doing all her own work; indeed helping about the farm work; though there is evidence tending to show that since then and because of the injury she received at that time she has become infirm and nervous. And all that is said here about her apprehensions of being carried forward and of her acting upon the impulse and choosing between perils, etc., is entirely inconsistent with her claim and her story. It is imaginary if tested by her story. In other words, it is a conjecture of a state of facts that might have existed, but not of a state of facts which she relates and relies upon.

At the same time, there is evidence in the case, which the jury must have considered and which the jury must have believed, tending to show that her story in this regard is incorrect, and that the truth lies nearer to the supposed ease set forth by counsel in his brief. Upon the question, how far the jury would be required to go to reconcile the two stories, we need not express any' opinion. They appear to us to be irreconcilable ; but the jury would be authorized to consider other circumstances in evidence, even though they were circumstances not related by the plaintiff, and even though they were circumstances which in the opinion of the jury tended to contradict the story of the plaintiff. But the jury would not be authorized to go outside of the evidence for conjectures or imaginary cases or circumstances.

I have pointed out that counsel for the plaintiff in error argued along the line of the plaintiff having been compelled to choose between perils, compelled by the wrongful act of the defendant to make such choice.

We do not regard this as a ease of that character. The jury, may have been authorized to find that she was called upon to choose between the apparent peril of jumping from the train and the inconvenience of being carried beyond the station; but there was no peril in that; that is to say, it is not apparent from the evidence that there was any peril in that, and it is not properly so denominated; it does not come within that category of eases; it is not apparent, it is not shown, that this possible inconvenience preyed on the plaintiff’s mind, so as to impair its normal functions, or that she was paralyzed by fear, or felt so confused, distressed or excited that she could not weigh or consider dangers and inconveniences ; of that we find no hint appearing in the evidence that would authorize the jury to make such a finding. Had they so found it would be upon pure imagination or conjecture.

Taking the most favorable view admissible of the plaintiff’s story, taking it as shown by the evidence, as we are bound to do in considering whether the jury should have been permitted to consider any circumstances that might have excused her action, we cannot see that there is anything that would have justified the jury in finding that she was free from contributory negligence. In other words, we are of the opinion that unless there is some fact made apparent by the evidence to excuse such conduct, it is negligence per se for one to jump from a moving train after being warned by the conductor of the train to not do so. There may be circumstances that would excuse such action; but we have no such circumstances related or set forth or made apparent in the record in this case; and, therefore, insofar as this charge contained an abstract proposition which was wrong, we cannot see that it was in any way prejudicial to the plaintiff in error.

We find that there was no error in the charge when applied to the facts of the case, no excuse for such action being shown or claimed even by the plaintiff herself, the jury having found as they were bound to do under this charge, and as they must have done, that she jumped from the train while it was in motion, while she knew it was in motion; after she had been warned by the conductor not to do so, after she had heard the warning, and without any other excuse than to escape the inconvenience of being carried beyond her station. We think as applied to that state of facts, there was no error prejudicial to the plaintiff in error; so that the judgment will not be disturbed on that ground.

The other matters complained of I will pass over by merely mentioning them. It is complained that there was error in the overruling of a challenge of a juror for cause. The juror stated that he was working or had worked, perhaps was then working for the Lake Shore Railroad Company, which he understood had some connection with the Ohio Central Railroad Company and he preferred not to sit as a juror. He was challenged and the court held that that did not amount to a cause of challenge and it was overruled; thereupon he was peremptorily challenged by the plaintiff. In view of the state of the record, we are not now considering whether this was a good ground for challenge for cause or not, because the plaintiff still had left unused, which were not used at all upon the trial, three peremptory challenges; and even if the court was in error upon this matter, there was nothing therein prejudicial to the plaintiff in error.

Counsel for plaintiff in error complain that the court below or the trial judge was guilty of misconduct 'in rebuking counsel, or disapproving of some action upon the part of counsel, in such way as to prejudice him and his cause before the jury. We have looked into the matter; there seems to be something in it as counsel depicts and emphasizes it; but of course we cannot find that on the record. For aught that appears, whatever was said, was said pleasantly and suavely and had no tendency to prejudice counsel or his cause.

We cannot say that this verdict is against the weight of the evidence; we shall not stop to enter into a discussion of the evidence; it is so evenly balanced that we would not be justified in disturbing the verdict upon that ground.

The judgment of the court of common pleas will be affirmed.

Plaintiff in error excepted.

Haynes and Wildmah, JJ.


author: WILSON, J.

text:
    CONSTITUTIONAL LAW — SCHOOLS—STATUTES.
    [Preble (2nd) Circuit Court,
    April, 1905.]
    Wilson, Dustin and Sullivan, JJ.'
    State ex rel. Eaton Bd. of Ed. v. Geo. W. Rehfuss, Treas.
    The Provision of Rev. Stat. 3968 (Lan. 6440) for Bonds by some Approved Surety Company is . Directory, and therefore not Unconstitutional.
    Tbe primary purpose of Rev. Stat. 3968 (Lan. 6440) providing for tbe deposit upon competitive bidding of moneys coming into tbe bands of a board of education was to derive a revenue from tbe surplus school funds, and the provision that tbe designated depository should give a bond “of some approved surety company” was enacted for tbe purpose of requiring a good lawful bond and was merely incidental to th# ■ primary object; it is, therefore, merely directory in its nature, and will not operate to nullify tbe other provisions of tbe act.
    [For other cases in point, see 6 Cyc. Dig., “Constitutional Law,” § 1766; 7 Cyc. Dig., “Statutes,” §§. 250-256. — Ed.]
    Mandamus.
    M. Cahill, prosecuting attorney, E. P. Vaughan and J. F. 'Gilmore, for relator.
    Risinger & Risinger, for defendant.
   WILSON, J.

This is a suit in mandamus to compel the defendant, who is the treasurer of the Eaton school district, to deposit the school funds in the bank named by the board as the official depository.

The defendant answers that the depository was designated under the provisions of Rev. Stat. 3968 (Lan. 6440), and that the law is unconstitutional. A demurrer is interposed to the answer raising the question. The ground upon which it is claimed the law is unconstitutional is that it requires the bank named as the depository to “give a good and sufficient bond of some approved security company.”

The decision of the court in State v. Robins, 71 Ohio St. 273, holding Rev. Stat. 3446c (Lan. 5851), as amended April 20th, 1904 (97 O. L. 182) known as the Craft’s Law, to be'unconstitutional, is relied upon. The purposes of the law, as it is said by Davis, J., m the opinion of the court, was to make security by security companies exclusive and compulsory for the benefit of the security companies, and not to subserve the public welfare. Such a purpose, the Supreme Court holds, is viola-tive of the constitution, because it unnecessarily interferes with the right of contract.

That cannot be said of the law which is challenged here. • Its purpose is to establish a depository; for school funds, under certain named restrictions, for the benefit of the public

The boards of education are authorized to designate as the depository the bank offering at a competitive bidding the highest rate of interest, in no case less than two per cent; the deposit shall not exceed the paid-up capital stock of the bank, and shall not exceed three hundred thousand dollars; the bank shall give a good and sufficient bond of some approved guaranty company in a sum at least equal to the amount deposited.

It is obvious that the primary purpose of the law is to obtain a revenue from the idle moneys of the school boards. The provisions for security are incidental merely.

Two days before the passage of the school code, of which this section is a part, the legislature had enacted what is known as the Craft’s Law, now held to be unconstitutional. If that law had been valid, as the legislature must have assumed that it was, no other kind of security would have been lawful. Revised Statutes 3968 (Lan. 6440) simply followed its provisions, the purpose being to require a good and sufficient lawful bond.

It is the duty of the court to uphold the law establishing a depository for the benefit of the public if it can be done. In order that it may be done and that the deposit may be secured by a lawful bond, the court is authorized, we think, to regard the words designating the character of the security as directory merely and not vital to the purposes of the statute.

It cannot be said, if the legislature had known it could not so direct as to the character of the security, it would not have passed the act. The demurrer to the answer will be sustained, and a peremptory writ may issue forthwith at the costs of the defendant.

Dustin and Sullivan, JJ., concur.


author: JELKE. J.

text:
    ASSESSMENTS — SEWERS.
    [Hamilton (1st) Circuit Court,
    June 2, 1906.]
    Jelke, Swing and Giffen, JJ.
    John P. Langmead et al. v. Cincinnati (City) et al. Alida G. Maue v. Cincinnati (City) et al.
    Where New Sewep. not in Use Assessment not Enforcible.
    Where property is supplied with sufficient local drainage, an assessment for a new and better sewer system which is not yet fully available for use and has not been tapped by the complaining property owners will not be ' enforcible until such time as the new sewer is tapped.
    [For other cases in point, see 1 Cyc. Dig., “Assessments,” §§ 600-631, 707-714 — Ed.]
    O. W. Kuhn, for plaintiff.
    C. J. Hunt, city solicitor, for defendant.
   JELKE. J.

We are of opinion that the premises described in the petitions herein have adequate drainage for the present without using the sewer which has been built in the street, and for which the city seeks to assess this property.

The system of drainage now in use was built to the approval of the city authorities, and was the best that could be devised at the time it was built. Today on acount of the necessary restrictions upon the use of the new sewer in the street made necessary by its outlet, the system heretofore built and now in use by the property owners is more ample than that for which the property is assessed. It is true that after the new waterworks is finished this new sewer will become sufficient; also that the system now in use is subject to interruption contingent upon possible disagreement of the neighboring property owners among themselves. Speaking for the present, the said property has adequate drainage and cannot be assessed for this new sewer which it is not using, and as yet does not need. When the time comes that any of these abutting property owners tap the new sewer and make use of the same, their property should be subject to the assessment. In the meantime, and until then, the assessment will be enjoined.

Giffen, J., concurs.

Swing, J., dissents.