author: SHIELDS, J.

text:
    NEGLIGENCE — RAILWAYS.
    [Morrow (5th) Circuit Court,
    July 10, 1911.]
    Voorhees, Shields and Crow, JJ.
    (Judge Crow of the 3rd circuit sitting in place of Judge Powell.)
    Cleveland, C. C. & St. L. Ry. v. James Cornwall.
    1. Driver of. Wagon and Horses Passing upon Crossing Obscured by Smoke of Passing Train and Colliding with Another Train Immediately Passing is Negligent.
    A person in a wagon drawn by a team of horses, approaching a railroad crossing on a public highway, having stopped upon hearing the whistle of an approaching train, by immediately driving upon the crossing after that train passes, and without waiting for the smoke therefrom obscuring the adjacent tracks to disappear that he might have an unobstructed view and without taking other precautionary steps in the exercise of ordinary care to avoid danger, is guilty of negligence defeating recovery for injury to his wagon and horses from colliding with another train immediately passing over such crossing.

      2. Danger at Railroad Crossing Increased by Smoke Requires Greater Caution.
    Where the danger at a Tailroad crossing is increased by a volume of smoke upon such crossing, or other conditions obstructing the vision, greater care and caution are imposed upon one about to pass over such crossing.
    3. Refused to Direct Verdict when Proof Raises Clear Presumption of Negligence of Plaintiff and not Rebutted Erroneous.
    It is error upon the part of the trial court to refuse to sustain a motion, .at the conclusion of plaintiff’s evidence, to direct a verdict for the defendant, in a collision case at a railroad crossing on a public highway,' where the testimony of the plaintiff raises a clear presumption of negligence on his part Which directly contributed to the injury of his property, in the absence of any tangible proof given tending to rebut such presumption.
    4. Instruction that Defendant has Burden of Proving Contributory Negligence, when Plaintiff's Evidence Raises Presumption of his Negligence.
    In an action for damages for -alleged negligence, where the defense of contributory negligence is interposed, it is error upon the part of the trial court to instruct the jury that “the burden of proof is upon the plaintiff of proving the negligence of the defendant as charged in the petition, and the burden is upon the defendant to make out the evidence of contributory negligence by the plaintiff’s servant or agent,”' without the further instruction that if plaintiff’s own testimony in support of his cause of action raises a presumption of such contributory negligence, the burden rests upon him to remove that presumption.
    [Syllabus by the court.]
    Error to common pleas court.

      Cummings, McBride & Wolfe, C. H. Wood and Benjamin Olds, for plaintiff in error.

      T. B. Mateer, for defendant in error.
   SHIELDS, J.

This proceeding in error is prosecuted in this court to reverse the judgment of the court of common pleas of Morrow county, Ohio, wherein the plaintiff in error, defendant below, recovered a judgment against the defendant in error, plaintiff below.

The defendant in error brought suit in the court below to. recover damages against the plaintiff in error for its alleged negligence and carelessness in destroying a certain vehicle and harness, and so crippling his team of mules ‘ that it became necessary to kill one of said mules belonging to the defendant in error. The amended petition, in substance, recites that said railway company is an Ohio corporation, that at tlie time hereinafter named it operated a line of railway between Cleveland, Ohio, and Cincinnati, Ohio, running through said Morrow county, Ohio, and that said railway crossed a public road in said Morrow county, in Gilead township, known as the Brocblesby crossing, which was used by the public in traveling on foot and in vehicles.

“That on the 20th day of January, A. D. 1909, between the hours of 9 o’clock and 10 o’clock A. M., one Bay Cornwall was traveling in a westerly direction along said public road in a covered vehicle drawn by a team of mules, and while in the act of crossing the defendant’s railroad tracks the defendant caused one of its locomotives and train of cars to approach said crossing and pass over the tracks of said railroad, and negligently and carelessly omitted while so approaching said crossing to give any signal by bell, whistle, or otherwise, and by reason thereof the said Bay Cornwall was unaware of its approach.

“Plaintiff further says that said locomotive and train, consisting of four cars and one caboose, as run by said defendant,, was not properly equipped with power brakes, used and operated by the engineer of said train, as required by statute, all of' which was unknown to the said Bay Cornwall and this plaintiff.
“Plaintiff further says that by reason of the negligence of the said defendant in not sounding the whistle or ringing the bell in approaching said crossing, and in running said train without properly equipping the same with power brakes and without any fault or negligence of the said Bay Cornwall, the said locomotive struck said vehicle and team of mules and utterly destroyed said vehicle and harness and crippled said mules to such an extent that it was necessary for the humane officer of Morrow county, acting upon the request of the defendant, to kill one of said mules, and all without fault or negligence whatever on the part of the plaintiff, his agent, or servant. That .said vehicle, harness and team were the property of the plaintiff, and said mule which was killed, together with the harness and wagon which were injured, were of the value of $200.
“That the said Ray Cornwall before driving upon said crossing had waited for a freight train to pass said crossing and immediately drove upon said tracks before the smoke of said freight train had cleared away, when the train causing the damage to this plaintiff, consisting of a locomotive, running backward and pulling four cars and a caboose, and known as the ‘water train,’ and in close proximity to said freight train, approached said crossing with great speed, and the said defendant negligently and carelessly neglected to either ring the bell or blow the whistle in order to warn the said Ray Cornwall of the approach of said water train, and that by reason thereof the said Ray Cornwall was unaware of the approach of said train, whereby this plaintiff sustained a loss of his vehicle, harness and one mule, all of the value of $200. ’ ’

Then follows an allegation that the plaintiff lost the use of his mule and vehicle for a period of three months and was out of employment for said period of time and that by reason thereof he sustained the further loss of $120, for which sum, with the injury to the vehicle and harness and the loss of his mule, he asks a judgment for the sum of $320 against said railway company, with interest thereon from the date of said accident.

To this amended petition the defendant railway company answers, admitting its corporate character, that it operated a line of railway from Cleveland, Ohio, through said Morrow county to Cincinnati, Ohio, and that said railway crossed a road in said county, known as the Brocklesby crossing. It further alleges that it is ignorant as to any injury to plaintiff’s vehicle, harness and mule, and denies the same, and denies the loss of employment by reason of said alleged injury, and denies that said property and loss of employment are of the value alleged. It denies that it carelessly and negligently ran and operated its said train as alleged, and it denies that it was guilty of any fault, carelessness and negligence whatever that in any way contributed to any injury to the plaintiff or to his property.

For a further defense the defendant alleges that the injury to the plaintiff or to his property, if there was any, was caused by the fault, carelessness and negligence of the plaintiff himself, his agents or servants. In short, the answer is a general denial of the negligence charged, and charges contributory negligence upon the part of the plaintiff.

To this answer the plaintiff filed a reply denying that the injury complained of was caused by the fault, carelessness and negligence of the plaintiff, his agent or servant. In short, he denies all contributory negligence.

With the issues thus made up between the parties, trial was had, and at the close of the plaintiff’s testimony, the defendant, through his counsel, made a motion that the court instruct the jury to return a verdict for the defendant, which motion was overruled by the court, to which ruling of the court the defendant excepted. Thereupon said cause was further submitted to the jury and a verdict was returned by the jury in favor of the plaintiff. A motion was duly filed for a new trial which was overruled by the court and judgment entered upon said verdict.

Thereupon a bill of exceptions was prepared and signed, and a petition in error filed in this court to reverse the judgment of said court of common pleas. While several grounds of error .are assigned in said petition in error for said reversal, counsel for plaintiff in error in their arugmeut to this court rely mainly on two of said grounds of error, namely, that the court erred in refusing to sustain the motion of the plaintiff in error, defendant below, to direct a verdict in its favor upon the conclusion of the testimony of the defendant in error, plaintiff below, and that the court erred in its instructions to the jury as to the burden of proof in the case.

The testimony in the case tends to show that the plaintiff at the date named in the petition was the owner of the property injured. That between 9 and 10 o’clock A. M., on said date, Kay Cornwall, a son of the plaintiff, then aged fifteen years, was driving a team of mules attached to a wagon, covered with canvas in front, over a milk route for his father, and in making said route drove over the Broeklesby crossing, going eastwardly, just before the accident, to a farmer’s house near to said crossing to get a can of milk, and after getting the milk he started westwardly, driving back on the same road, until he says he heard the whistle of a locomotive attached to a freight train on the defendant’s railway, going southwardly, when he stopped his team and wagon within a hundred feet of the track, and after the freight train went over the crossing it left a volume of smoke the track, at and near the crossing and up as far as the whistling post some eighty rods north of the crossing, which smoke owing to the foggy condition of the weather “held close to the ground near the track.” After the freight train passed over the crossing said witness testifies that he immediately started to go over and was on the crossing with the team and wagon when they were struck by what is known as the “water train,” which backed down from the direction of said whistling post, without giving any signal, resulting in the injury complained of. .

On direct examination (page 4 of the record) he testifies as follows:

“Q. Now tell the jury what happened when you come to the'railway crossing there, what you done as to driving upon the railroad of the Big Four at the Brocklesby crossing ? A. 'When I came to the railroad crossing I saw a freight coming and I stopped and waited until it went across and then I started right up just as soon as it got across, and I could not see the other train for smoke of the first one, and I pulled right on the track and when I got on the track why Mrs. Fields hollered and I raised up and looked and there was the other train right onto me.”

On page 5 of the record:

“Q. State if there was anything obscured your view iron, the north? A. The smoke of the freight train for one thing.
“Q. Anything else? A. There wasn’t much of anything else except the smoke of this first train.
“Q. How long had you been driving on the milk route? A. About a year, put it all together.”

On cross-examination (page 8 of the record) :

“ Q. You passed over that track very frequently ? A. Yes, sir.'.
“Q. Now what do you say the condition of the weather was that morning? A. It was kind of foggy that morning.
1 ‘ Q. And after the train went by did the smoke clear immediately away? A. Well, kind of rolled back of the train.
“ Q. It was a foggy morning you say, and the smoke held close to the ground near the track? A. Yes, sir.
i£Q. And how far back of the train did that condition occur, this smoke ? A. Oh, just quite a ways.
££Q. And was the smoke on the crossing there yet when you drove up on it? Had it cleared away, or was it yet smoky there ? A. A little smoky, but not so much when I drove up on the track, it kept rolling back.
“Q. After you drove on the track it began to get a little smoky and still the smoke came on as you got on the track, is that the way I understand you? A. I seen the smoke when 1 drove on the track, yes. ’ ’

On pages 11 and 12 of the record:

££Q. Now when you come right up close to the track, Eay, how far can you see up the track? A. You can see quite a ways up the track.
££Q. See to St. James? A. Yery nearly, see the smoke of St. James when you get right on the track.
££ Q. Is the track straight or otherwise ? A. It is straight.
££Q. It is a straight track from the crossing up to St. James, isn’t it? A. I think so.
££Q. YThen you get up to the track, you can see just as far as your eye will carry you, isn’t that a fact? A. Yes.
££Q. How soon after this first train had passed did you drive on the track ? A. Just as soon as it had passed I started up and drove right on the track.
££Q. You didn’t think another train, was coming? A. No; I had no idea of another train coming.
££Q. You thought when that train had gone by, that’s all there was of it, you could drive right across, and that’s what you attempted to do ? A. Yes.
££Q. Just as soon as that train went by you just started your mules and went right across the track? A. Yes.
“Q. Without attempting to see if there was another train coming? A. I looked up the track but I didn’t suppose another train was.coming though.
“Q. Why did you look up the track? A. I don’t know what drawed my attention up that way.
“Q. You just happened to look up there? A. Yes.
“Q. You didn’t look up to see if a train was coming? A. Not particular.
“Q. Did you listen to hear if there was another train coming? A. No, sir; just as soon as the other train passed I pulled up.
“Q. You just took it for granted that another train wasn’t coming and drove right up on the railroad? A. Yes-.”

Testimony was given upon the trial below, tending to support the allegations in the amended petition that no statutory signals were given by the locomotive attached to the water train as it approached the crossing, and that it was not properly equipped with power brakes, although it does appear in testimony that two or more “short blasts” were given by said locomotive when said train was within a few feet from said crossing, not at such distance from the crossing, however, as the statute requires, the necessity of which, for the protection of the traveling public, becomes apparent in a case of a backing train upon and over a public crossing, but the omission to give such signals would not relieve the witness from the necessity of exercising ordinary ca,re, for the protection of himself and his property, when about to go over this crossing, nor would the omission of the railway company to properly equip its cars with air-brakes, excuse such care, unless it be made to appear that such omission produced the injury complained .of. But aside from the alleged negligence of the railway company in the respects complained of, does the evidence introduced upon the trial show such contributory negligence upon the part of the witness, Ray Cornwall, who was in charge of the property of the defendant in error at the crossing on the day mentioned, as to have' warranted the court in sustaining the motion of the plaintiff in error, made at the close of the evidence of the defendant in error, to direct a verdict for the plaintiff in error ? It appears by the evidence that said witness was familiar with said crossing, that the track of the said railway was unobstructed and could be seen for a long distance north of said crossing, perhaps 2500 feet, and except for the smoke emitted by the locomotive attached to the passing freight train, the approach of the water train eonld easily have been seen for a long distance north of said crossing. A person approaching a steam railroad crossing, which is a known place of danger, is presumed to exercise his or her faculties of sight and hearing — to look for the purpose and with the intent of seeing, and to listen for the purpose and with the intent of hearing the approach of trains. True, the witness says that he stopped his mules and vehicle on hearing the whistle of the locomotive attached to the freight train until it passed over the crossing, but did the duty of exercising ordinary care then cease? Was he then relieved of further watchfulness? The railway company had the right-of-way over its tracks and had the right to run as many trains as its business called for, hence the duty of stopping, looking and listening was •a continuing duty of the witness, not only until he approached, but until he passed over the crossing, and failing to do this, and the property of the defendant in error having thereby been injured, it was negligence on his part by which his right of recovery would be defeated. Among other things, the witness testified on cross-examination, that after the freight train had passed he didn’t look to see if a train was coming, nor did he listen to hear if there was another train coming, but proceeded to go over the crossing as soon as the freight train passed. Under this testimony, the conclusion is clear that the witness failed in exercising the precaution necessary to authorize a recovery. He testifies that he could not see the water train approach because of the smoke left on the track by the passing freight train. If this is true, it only imposed upon him greater care and caution before attempting to drive upon the crossing. New York, C. & St. L. Ry. v. Kistler, 66 Ohio St. 326, 344 [64 N. E. Rep. 130]; Pennsylvania Co. v. Morel, 40 Ohio St. 338.

Again, in the case of Baltimore & Ohio Ry. v. McClellan, 69 Ohio St. 142 [68 N. E. Rep. 16], it is held by our Supreme Court that:

‘ ‘ 1. The rule that a person in full possession of his senses of sight and hearing should exercise them to protect himself from danger when about to cross á known track of a steam railroad at a street crossing, applies to a condition where the atmosphere is more or less clouded by steam and smoke, and it is negligence on his part which will defeat a recovery for injuries received from a passing train, to undertake' to cross without waiting for the atmosphere to clear so that his vision may be unobstructed, or taking other adequate means to ascertain the presence of danger.
“2. Where the testimony of the plaintiff raises a clear presumption of negligence on his part which directly contributed to his injury, but no testimony is offered by him tending to rebut that presumption, it is the duty of the trial court to sustain a motion by the defendant made at the conclusion of plaintiff’s evidence, to direct a verdict, and a refusal to sustain such motion is error.”

In the case at bar the undisputed facts are that the witness drove upon the crossing without looking or listening for a train, and it is held in the case of Cleveland, C. C. & I. Ry. v. Elliott, 28 Ohio St. 340, that:

”1. The omission to ring the bell or sound the whistle at public crossings is not of itself sufficient ground to authorize a recovery, if the party, notwithstanding such omission, might, by the exercise of ordinary care, have avoided the accident.
“2. What is such contributory negligence as will defeat a recovery is usually a question of mixed law and fact, to be determined by the jury from all the circumstances of the case and under proper instructions from the court, but where the undisputed facts show that by the exercise of ordinary care a party might have avoided injury, he can not recover. ’ ’ '

The evidence submitted upon the part of the defendant in error, plaintiff below, being undisputed and without conflict on the main and vital issues involved, we are of the opinion that the motion to direct a verdict for the plaintiff in error, defendant below, should have been sustained.

Exceptions are taken to the charge of the court to the jury in respect to the burden of proof. On page 65 of the record the court instructed the jury as follows:

‘ ‘ The burden of proof is upon the plaintiff, as I charged you, of proving the negligence of the defendant as charged in the petition, and the burden is upon the defendant to make out the evidence of contributory negligence by the plaintiff’s servant or agent.”

The charge in this respect, in our judgment, was not a full and correct statement of the law in this case. True, the burden of proving the negligence of the defendant was upon the plaintiff, but where the plaintiff’s own testimony raises a presumption of contributory negligence, the burden rests upon him to prove it.. In the case of Baltimore & O. Ry. v. Whitacre, 35 Ohio St. 627, it is held by our Supreme Court that:

“If plaintiff’s own testimony in support of his cause of action raises a presumption of such contributory negligence, the burden rests upon him to remove that presumption. ’ ’

Other authorities might likewise be cited to the same effect, 'so that we think the jury was entitled to the further instruction that if the plaintiff’s own testimony raised a presumption of contributory negligence the burden was on him to remove it, and failing to give such instruction we .think there was prejudicial error to the legal rights of the plaintiff in error.

Further exceptions are taken to the, charge of the court in respect to the burden of proof, as the same appears on page 67 of the record, where the court instructed the jury “that if it appears in your judgment that the probabilities are in favor of the truth of such fact or circumstance, then such fact ór circumstance is said to be proved by a preponderance of the evidence, and you should so find, although you are not satisfied or convinced of the truth of such fact or circumstance.” This instruction we think is open to objection as not containing a correct statement of the law, and we, therefore, hold it to be prejudicial to the rights of the plaintiff in error.

Other questions are made upon the record, but counsel were content to argue and rely upon the foregoing grounds of error, and we, therefore, do not deem it necessary to pass upon them in view of our conclusions reached in respect to the motion to direct a verdict and as to the burden of proof.

The judgment of the court of common pleas will be reversed and said cause remanded to that court for further proceedings according to law. Exceptions noted.

Crow and Voorhees, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    COURTS — DIVORCE AND ALI MON Y — ERROR—EVIDENCE.
    [Richland (5th) Circuit Court,
    September Term, 1913.]
    Voorhees, Shields and Powell, JJ.

      Linton L. Stark v. Elizabeth W. Stark.
    Memorandum in “Court Calendar” by Probate Judge Inadmissible to Establish Decree of Divorce Nunc Pro Tunc.
    A memorandum, made by a probate judge in a “court calendar” kept by him, “divorce granted * * * . Judgment against defendant,” not being made in a public record required by Gen. Code 1594 to be kept in probate court, is not admissible to establish a judicial finding thereof nunc pro tunc by his successor in office.
    [Syllabus approved by the court.]
    Error to common pleas court.

      Jesse E. LaDow, for plaintiff in error :
    Final or interlocutory order. Armstrong v. Breiuing Co. 53 Ohio St. 467 [42 N. E. Rep. 425] ; Botkin v. Pickaway Co. (Comrs..) 1 Ohio 375 [13 Am. Dec. 630] ; Kelley v. Stansberry, 13 Ohio'408; Hey v. Schooley, 7 Ohio (pt. 2) 48; Baker v. Lehman, Wri. 522; Clark v. Bentel, 6 Dec. Re. 1205 (12 Am. Law Rec. 534) ; Teaf v. Hewitt, 1 Ohio St. '520 [59 Am. Dec. 634] ; Evans v. Dunn, 26 Ohio St. 439; Cameron v. Workman, 30 Ohio St. 58; Waters v. Lemmon, 4 Ohio 229; Moore v. Chittenden, 39 Ohio St. 563; Hinde v. Whilney, 31 Ohio St. 53; Turner, In re, 5 Ohio 542; State v. Smith, 69 Ohio St. 196 [68 N. E. Rep. 1044] ; State v. Jones, 17 Ohio St. 148; State v. Burgoyne, 7 Ohio St. 153; State v. Lewis, 25 O. C. C. 227 (1 N. S. 56); State v. Eager, 2 Circ. Dee. 335 (3 R. 581) ; State v. Shaw, 43 Ohio St. 324 [1 N. E. Rep. 753] ; 13 Am. & Eng. Enc. Law (2 ed.) 28; Shepherd v. Bice, 38 Mich. 556.
    Prevailing party, no right to review. Holton v. Buggies, 1 Root (Conn.) 318; Baymond v. Barker, 2 Root (Conn.) 370; Watkins v. Martin, 24 Nrk. 14 [81 Am. Dee. 59] ; Hayden v. Stone, 112 Mass. 346; Binggold v. Barley, 5 Md. 186 [59 Am. Dec. 107] ; Shirley v. Lunenburg, 11 Mass. 379; Kinealy v. Macklin, 67 Mo. 95; Grawshay v. Souter, 73 U. S. 739 [18 L. Ed. 845].
    Controversy essential to jurisdiction: 2 Cyc. 533, 628, 630; Pelham v. Bose, 76 U. S. (9 Wall.) 103 [19 L. Ed. 602] ; Carter v. Graves, 12 N. C. 74; Stauffer v. Mining <& Gas Co. 147 Ind. 71 [46 N. E. Rep. 342] ; Black v. Kirgan, 15 N. J. Law 45 [28 Am.. Dec. 394] ; Pierse v. West, 29 Ind. 266; Hedges v. Mace, 72 111. 472; Munger v. Jeffries, 10 Dec. 12 (7 N. P. 55) ; Wilson v.. Bussell, 40 la. 697.
    The merits of the record. State v. Meacham, 3 Circ. Dee. 335 (6 R. 31); Bauman v. Bauman, 26 O. C. C. 37 (4 N. S. 298) ;, Sapp v. Sapp, 34 O. C. C. 652 (14 N. S. 269) ; Parish v. Parish, 9' Ohio St. 534 [75 Am. Dec. 482] ; Cook, Estate of, 77 Cal. 220 [IT Pac. Rep. 923; 1 L. R. A. 567; 11 Am. St. Rep. 267] ; Zahorka v. Geith, 129 Wis. 498 [109 N. W. Rep. 552] ; Webber v. Webber, 83 N. C. 280; Wagner v. Wagner, 36 Minn. 239; Petit v. Petit, 45 Misc. 155 [91 N. Y. Supp. 979] ; Mickle v. State, 21 So. Rep. 66' (Ala.) ; Greene v. Greene, 68 Mass. (2 Gray) 361 [61 Am. Dec. 454],
    The defense. Bempe v. Bavens, 68 Ohio St. 113 [67 N. E. Rep. 282] ; Lore v. Truman, 10 Ohio St. 45; Porter v. Wagner, 36 Ohio St. 471; Mill Creek Valley St. Car Co. v. Carthage, 9 Circ. Dec. 833 (18 R. 216) ; Phillips, Evidence 125; Weidman v. Weidman, 57 Ohio St. 104 [48 N. E. Rep. 506].
    Reply brief. Cincinnati v. Steadman, 53 Ohio St. 312 [45' N. E. Rep. 5] ; State v. Deputy Supvrs. 70 Ohio St. 341 [71 N.. E. Rep. 717]; Fisher v. Quillen, 76 Ohio St. 196 [81 N. E. Rep., 182] ; DeWitt v. DeWitt, 67 Ohio St. 340 [66 N. E. Rep. 136] ; O’Brien v. O’Brien, 124 Cal. 422 [57 N. E. Rep. 225] ; Kamp v. Kamp, 59 N. Y. 212; First Bat. Bank v. Dusy, 110 Cal. 69 [42 Pac. Rep. 476] ; Byrne v. Hoag, 116 Cal. 1 [47 Pac. Rep. 775] ; Adams v. Adams, 77 N. J. Eq. 123 [79 Atl. Rep. 683].

      Douglass & Hutchison, for defendant in error:

      Nunc pro tunc entry was a'final order. Carpenter v. Carnal Co. 35 Ohio St. 307; Braden v. Hoffman, 46 Ohio St. 639 [22 N. E. Rep. 930] ; Hettrick.v. Wilson, 12 Ohio St. 136 [80 Ant. Dec. 337].
    Court calendar inadmissible to establish judicial finding. Lucas Co. (Comrs.) v. Millard, 4 Dec. 419 (4 N. P. 53), affirmed; Millard v. Lucas Co. (Comrs.) 7 Circ. Dec. 115 (13 R. 518); Watts v. Shewell, 31 Ohio St. 331; Moore v. Brown, 10 Ohio 197; Bank of Circleville v. Bowsher, 8 Circ. Dee. 514 (15 R. 114); Jacks v. Adamson, 56 Ohio St. 397 [47 N. E. Rep. 48; 60 Am. St. Rep. 749] ; State v. Daily, 14 Ohio 91, 99.
    Merits of the ease. Columbus Cent. By. v. Wilkin, 10 Dec. 467 (8 N. P. 35) ; State v. Seward, 9 Circ. Dec. 168 (16 R. 443) ; Weidman v. Weidman, 57 Ohio St. 101 [48 N. E. Rep. 506]; Gilbert v. Gilbert, 83 Ohio St. 265 [94 N. E. Rep. 421] ; MiU Creek Valley St. By. v. Carthage, 9 Circ. Dec. 833 (18 R. 216); Bempe v. Bavens, 68 Ohio St. 113 [67 N. E. Rep. 282] ; Lore v. Truman, 10 Ohio St. 45; Porter v. Wagner, 36 Ohio St. 471; Topliff v. Topliff, 4 Circ. Dec. 312 (8 R. 55) ; New York, L. E. & W. By. v. Siegfried, 3 Circ. Dec. 649 (7 R. 33) ; Siegfried v. Bailway, 50 Ohio St. 294 [34 N. E. Rep. 331]; Archer v. Bail-way, 65 Iowa 611 [22 N. W. Rep. 894] ; Charles v. Pawley, 71 Ohio St. 50 [72 N. E. Rep. 294] ; Jarreit, In re, 42 Ohio St. 199; State v. Einkade, 25 O. C. C. 657 (1 N. S. 607).

      Affirmed, no op., Stark v. Stark, 88 O. S. 586.

   SHIELDS, J.

This cause is submitted on the petition in error seeking te reverse a judgment of the court of common pleas of this county. The case presented had its origin in an action for divorce and alimony commenced by the defendant in error against the plaintiff in error in the probate court of this county. The transcript and journal entries of said probate court show the following state of facts: That on January 26, 1907, the defendant in error filed her petition against the plaintiff in error in said probate court for divorce and alimony and the latter was personally served with summons in said proceeding; that he filed no answer or other pleading in said proceeding and that « August 10, 1909, said probate court on motion of the defendant in error dismissed said proceeding. That on October 27, 1910, the plaintiff in error filed an application in said probate court for a nunc pro tunc -entry to be entered in said probate court, granting a decree of divorce to said defendant in error as of November 9, 1907, supported by the affidavits of S. S. Bricker, probate judge of said county at the time said petition was filed in said court, and for some months thereafter, including the month of November, 1907; of John A. Dalton who was the deputy clerk of said probate court during the month of November, 1907, and R. B. Hutchison attorney, including a certain memorandum alleged to have been made by the said probate judge on November 9, 1907, which said affidavits and memorandum will be more fully referred to hereafter.

That on December 1, 1910, said defendant in error filed an answer in said proceeding denying the right of said probate court to cause said nunc pro tunc entry to be entered of record in said probate court; that on December 7, 1910, after a hearing upon said application and said answer, said probate court granted said application, to which ruling and action of said court the defendant in error excepted.

That the defendant in error thereupon filed a motion for a new trial which motion was by said probate court overruled. That the defendant in error thereupon tendered and perfected a bill of exceptions embodying all the evidence offered and heard upon said application, and prosecuted error to the common pleas court of said county, which court reversed the action and judgment of said probate court, and error is now prosecuted to this court to reverse the judgment of the common pleas court.

The following errors are principally relied upon for such reversal. First. That the holding and ruling of said court in reversing the probate court was contrary to law. Second. That the ruling, judgment and orders of said court should have been affirmed in the common pleas court and not reversed.

An examination of the record shows that the application of the plaintiff in error for an order that said nunc pro tunc entry be entered of record in said probate court, was based principally upon a memorandum claimed to have been made by Probate Judge Bricker, November 9, 1907, in a certain memorandum book belonging to him, wherein the following memorandum appears: “Stark v. Stark; divorce granted, gross neglect of duty; for alimony see entry; judgment vs. defendant for costs.”

Judge Bricker in his affidavit says that he was probate judge of Richland county, Ohio, during the year 1907, that on or about November 9, 1907, he heard the case of Elizabeth W. Stark vs. Linton L. Stark, wherein the plaintiff asked divorce and alimony from the defendant, that at the time of said hearing it was stated to him that the defendant had agreed to pay the plaintiff the sum of $1200 alimony, in the event she secured a divorce; that after said hearing was completed affiant as probate judge, granted a divorce upon condition that said $1200 alimony was paid by the defendant to plaintiff. The affidavit of John A. Dalton is to the eff ect that he is acquainted with the handwriting of Judge Bricker and knows that the memorandum referred to was made by Judge Bricker. The affidavit of R. E. Hutchison is to the effect that he made an examination of certain records in the case of Elizabeth W. Stark v. Linton L. Stark.

It appears by the affidavit of Judge Bricker that a decree for divorce was granted to the defendant in error, upon condition that the plaintiff in error pay to her the sum of $1200 as alimony which according to the uneon'tradieted statements of counsel in open court has not been paid to her. This alleged decree for divorce was a conditional one, and, under the law, was invalid.

The memorandum in question, we think, was improperly admitted in evidence upon the hearing of the application as to what, if any, judicial action was had thereon. True, the memorandum was undoubtedly made in' the handwriting of Judge Bricker, but it was not made in any public record, or in any record authorized by law to be kept in his office. Hence it appears to have been made as a private memorandum and for his convenience only, for in this state a court calendar is not required to be kept in probate court. Lucas Co. (Comrs.) v. Millard, 4 Dec. 419 (4 N. P. 53); affirmed, Millard v. Lucas Co. (Comrs.), 7 Circ. Dec. 115 (13 R. 518). The memorandum thus made was incomplete at most. If such memorandum was not a matter of public record, then can it be claimed that it has any more weight than any other private memorandum which may be' used to refresh the recollection of a witness? As a matter of' evidence tending to show that any official action was taken in said action in said court on said day, we think it could add ho weight to the testimony of Judge Bricker, and that its admission was improper to establish any judicial finding. Watts v. Shewell, 31 Ohio St. 331.

Taking the view that the question at issue resolved itself into one of fact, we think that the evidence in support of said application is not supported by sufficient evidence, and that the-action of the probate court in this behalf was unwarranted,, especially when we consider that a nunc pro tunc entry only performs the office of supplying what actually took place in a. judicial proceeding fully and finally determined. Jones, Evidence Sec. 620, and cases cited.

We have examined the several alleged grounds of error urged on behalf of the plaintiff in error and find each one of' them untenable. For the reasons stated the judgment of the court of common pleas will be affirmed at the costs of plaintiff in error. Exceptions will be noted.

Powell and Voorhees, JfJ., concur.


text:
    CONSTITUTIONAL LAW — CRIMINAL LAW.
    [Morrow (5th) Court of Appeals,
    June, 1913.]
    Voorhees, Shields and Pollock, JJ.
    (Judge Pollock of the 7th court of appeals sitting in place of Judge Powell.)
    John C. Morrow v. State of Ohio.
    1. Prosecution of Person Accused of Crime Arrested in November, 1912, and Indicted in February, 1913, Dates from Arrest and is Pending January 1, 1913.
    The prosecution of a person accused of a crime, committed November 27, 1912, arrested therefor December 12, 1912, indicted February 14, 1913, and convicted of a lessor crime April 10, 1913, dates from the arrest of accused and not from his indictment; hence, the prosecution was commenced and was pending January 1, 1913, and comes within the exception of the amended schedule to the constitution taking effect January 1, 19i3, making operative the procedure in vogue prior to and at the time of the amendment’s becoming effective.
    2. Right of Prosecutor and Court Under Constitutional Amendment to Comment on Accused’s Failure to Testify not Effective in Prosecution Commenced by Arrest Before January 1, 1913.
    The amendment to Art. 1, Sec. 10, of the constitution, .making the failure of accused to testify a matter of consideration by court and jury and subject of comment by counsel, is not effective against a person accused of crime for which he was arrested and committed prior to and tried for and convicted after January 1, 1913, but accused is entitled to a trial according to the procedure prescribed by Gen. Code 13661, that no reference to or comment on neglect or refusal of accused to testify be made.
    [Syllabus approved by the court.]
    Error to common pleas court.

      J. W. Barry & T. B. Mateer, for plaintiff in error.

      Benj. Olds & J. G. Williamson, for defendant in error.
   SHIELDS, J.

At the February (1913) term of the court of common pleas of Morrow county, Ohio, an indictment was returned by the grand jury of said county against the plaintiff in error for the crime of murder in the first degree. A motion to quash said indictment, and a demurrer thereto, were overruled, to which exceptions were taken. Thereupon the plaintiff in error entered a plea of not guilty to said indictment, and at said term of court he was put upon trial on said indictment and was convicted of the crime of murder in the second degree. A motion for a new trial was overruled, to which exceptions were taken, and the plaintiff in error was thereupon sentenced by said court to imprisonment in the Ohio Penitentiary for life. A bill of exceptions was taken containing the evidence upon said trial, including the charge of said court, and a petition in error is filed in this court for the review and reversal of said judgment of-conviction and sentence of the said court of common pleas, and the grounds of error alleged therein are as follows:

1. “The court erred in overruling the motion of plaintiff in error for a new trial.”

2. “The court erred in overruling the motion of the defendant at the close of the testimony of the state, to direct the jury to return a verdict for the defendant, which motion was renewed by defendant after the close of the testimony on the part of the defense.”

3. “For misconduct of counsel on the part of the state in his closing argument, in this, to wit: In commenting on the failure of the defendant for not going upon the witness stand in his own behalf.”

4. “The court erred in charging the jury that the failure' of the defendant to testify in his own behalf was a circumstance that the jury might consider in arriving at a verdict.”

5. “The court erred in refusing to charge the jury in writing before argument as requested by defendant.”

6. ‘ ‘ The court erred in his charge to the jury. ’ ’

7. “The court erred in the admission of testimony offered by state and at the time objected to by defendant.”

8. “The court erred in rejecting the testimony offered by the defendant and at the time excepted to by the defendant. ’r

9. “Because the state failed to show by testimony that any crime had been committed.”

10. “The verdict of the jury is not supported by the evidence. ’ ’

11. “The verdict of the jury is contrary to law.”'

12. “The verdict of the jury is contrary to law and the evidence.”

13. “The verdict of the jury seems to have been procured through prejudice and partiality.”

14. “The verdict of the jury is not supported by any evidence. ’ ’

15. “The verdict of the jury should have been for the defendant. ’ ’

16. “Other errors occurring at the trial appearing upon the record.”

"We will consider the assignment of the alleged errors in the order in which they were presentéd to this court. The first is that the court below erred in admitting any testimony under said indictment for the reason that said indictment does not specifically allege intent. An examination of said indictment shows that it expressly charges intent, thus meeting the requirement of a valid indictment in this respect. Hence the demurrer filed challenging the sufficiency of said indictment was properly overruled, and the action of the court below in overruling the same affords no ground of error.

At the close of the evidence offered upon the part of the state, a motion was submitted by the defendant below, which said motion was renewed at the close of the evidence offered upon the part of the defense, that the court instruct the jury to return a verdict for the said defendant, which was over-. ruled. Suffice it to say that the action of the court in overruling said motion was well justified in the face of the record in this case.

Objection was made to the admission and rejection of certain testimony offered upon said trial. Among others, one Harry Brookens testified as a witness for the state. The record shows that a conversation was had between said witness and the accused soon after the alleged crime, and before the arrest of the accused, in which the accused made certain inquiries of the witness. In a talk concerning the death of the decedent, the witness testified on page 139 of the record that the accused made the following inquiries:

“Q. Did he ask you anything relative to the sentiment in the community?”
‘ ‘ Ob j eetion. Overruled. Exceptions. ’ ’
“A. Yes, he asked me how the people felt about it.”

A motion was made by the plaintiff in error that the latter answer be withdrawn from the jury, which was overrruled, to which the plaintiff in error excepted, and which action of the court below is assigned as error:- The plaintiff in error having made such inquiries upon his own volition, related as they were to the charge afterwards made against him, the state was clearly entitled to make proof of such conversation, and the action of the court in admitting it was proper.

Objection was also made by the plaintiff in error to the introduction of the testimony of Marian E. Piatt, a witness for the state as the same appears on page 286 of the record, in relation to the pillow-slip alleged to have been found in the bed upon which the decedent was lying with its head imbedded therein, which objection was overruled by the court and to which the plaintiff in error excepted. The overruling of such objection is claimed to be error upon the part of the court. Without setting out such testimony, we are of the opinion that it was only a narrative of facts forming a part of the discovery and location of the body of the decedent, and therefore such testimony was competent.

It is contended by the plaintiff in error that the court below erred in the admission of certain conversations alleged to have been had between the said witness, Marian E. Piatt, and one C. B. Chilcote with the accused after his arrest and after he was placed in the jail of said ’county. The record shows that the said Marian E. Piatt is the mother of the decedent and the said C. B. Chilcote was at the time the sheriff of said Morrow county. The record also shows that the testimony of the latter witness offered by the state as to the first conversation alleged to have been had between said witness and the accused was excluded from the jury, but it is insisted that the subsequent conversation alleged to have occurred between the witness Marian E. Piatt and the accused, at said jail, when it appears that the witness C. B. Chilcote so concealed his presence that the accused did not know that he was within hearing distance but who overheard said conversation, was inadmissible, because of inducements alleged to have been offered to the accused by said witness in said conversation to make certain statements in the nature of a confession of having committed said alleged crime. It appears that the witness Marian E, Piatt was well known to the accused, he having lived in her family for a considerable time prior to his incarceration in said jail, and expressed a desire to see and talk with him, and it appears that the sheriff permitted her to, enter said jail for that purpose, but upon the express condition that he, (the sheriff) hear any conversation had between them, and with the caution given to the witness by the sheriff that she should act discreetly and avoid holding out any promises of favor or otherwise to induce the accused to make any disclosures concerning bis relation to the alleged crime. It appears that the witness Marian E. Piatt entered the jail and had a conversation with the accused, (the sheriff being stationed on the bath room steps, without the knowledge of the accused, so that he could and did hear said conversation) during which conversation the accused is alleged to have made certain inculpatory statements of the ■suffocation of the decedent by him. Objection was made by the plaintiff in error to the introduction of this testimony, which it is claimed was in the nature of a confession, and that the statements alleged to have been made by the accused in said conversation were not voluntarily made,- which objection was overruled by the court below and to which exception was taken. In this state, at least, it is the recognized rule that before any confession can be received in evidence in a criminal case, it must appear that it'was voluntarily made, and that a confession induced by hope or fear, excited in the mind by the representations or threats of any one, is not to be considered voluntary. Quoting from the opinion in the case of Rufer v. State, 25 Ohio St. 464, 470, the learned judge announcing the opinion in that ease says:

“Whilst voluntary confessions are always admissible against a prisoner on trial, it is well settled that confessions of guilt made through the influence of hopes or fears, induced by promises or threats of temporal benefit or disadvantage, are wholly inadmissible. There is no presumption of law, however, that such confessions are induced by improper representations made to the prisoner, but, on the contrary, like every other act of the human hand or head, they áre presumed to be voluntary until the contrary is shown. Hence the burden of showing that such confessions were involuntary, rests upon the accused. ’ ’ See also Spears v. State, 2 Ohio St. 583.

Tested by this rule what is the status of the case at bar? Looking to the record, can it be said that the witness failed to observe the caution given by the sheriff by making any representations to the accused that inspired him with the hope of favor to induce him to make the declarations attributed to him? Were such representations the means of producing such ■alleged declarations? If they were, it could not be claimed-that they were voluntarily made, although made to one not having any authority or control over the prosecution of the accused, or of his custody, for the presence of the sheriff in the jail was not then known to the accused. Under the preliminary examination made of the witness to determine the admissibility of this conversation by the court, showing as it does the circumstances under which it was given, we are of the opinion that such conversation, and the statements made by the accused at that time, were not made under the provocation of any threats, or through the influence of any hopes or fears, induced by any representations of the witness, and that the court below therefore did not err in admitting said conversation.

Referring to the expert testimony offered upon the part of the plaintiff in error, objection was made and exception taken to the action of the court below in sustaining the motion to strike out a portion of the testimony of one Doctor Spear, a witness for the plaintiff in error, as the same appears on page 505 of the record. Said witness testified as follows:

“Q. I will ask you, Doctor, whether or not you have ever had any experience in cases of suffocation?”
“A. Yes, sir, I recall one ease.”
“Q. Where was that, Doctor?”
“A. That was at Edison, while I was coroner. The woman had an epileptic seizure with her face buried in the pillow. ’ ’
(Prosecuting Attorney)
“I ask that that be ruled out.”
“By Court:
“He said at Edison, Ohio. That’s an answer to the question, the other will be ruled out.” To which ruling the defendant excepted at the time.

The remark made by the court in passing upon this question is so self-explanatory as not to require further comment. The motion was properly Sustained. On page 418 of the record it appears that Professor Howard was called as a witness for the state, and on cross-examination, at page 420, he testified as follows:

“Q. Doctor, from your experience and observation would you be qualified to tell tbe jury how long that food had been in the stomach before death ensued?”
“A. I don’t think I would be able to give any valuable-testimony as compared with the physicians. ’ ’
“Q. Give it to us, Doctor, from your observation and experience as near as you can?”
“Objected to.”
“By Court:
“You have no experience as a doctor?”
“A. No, sir.”
“Attorney Barry:
“He has had experience in examining stomachs, that he would know whether death occurred about the time. ’ ’
“By Court:
“ Obj ection sustained. Exception. ’ ’

Evidently the question was a proper one put to the witness, in view of the subject under consideration, namely, the condition of the stomach of the decedent, but had not the witness practically answered this inquiry in a prior question asked? We think so. Again, if he had not so answered, had the witness properly qualified to make such answer to such question? We think not. True the question was one involving a scientific opinion, but was the witness shown to possess the peeuliár knowledge called for by the question asked? The preliminary questions asked of the witness seem to furnish the answer. Hartford Protection Ins. Co. v. Harmer, 2 Ohio St. 452 [59 Am. Dec. 684].

Said exception is therefore held not to have been well taken.

Exceptions were also taken to the exclusion of certain other expert téstimony offered upon said trial, but we do not regard the action of the court in excluding such testimony as ground of reversible error.

Before the court below charged the jury in said case, certain written requests were submitted to said court upon the part of the plaintiff in error to be given to the jury before argument, some of which were given and others were refused. To such as. were not so given the plaintiff in error excepted. An examination of the charge of the court shows that all the requests not so given to the jury before argument, the same in substance were given to the jury in said court’s general charge. While the practice with courts in giving to the jury written requests, in criminal cases, before argument, has not been entirely uniform in the former circuit courts in this state, the practice in this «district is now and has been to follow the rule laid down in the case of Umbenhauer v. State, 2 Circ. Dec. 606 (4 R. 378), wherein it is held that: .

“Upon the trial of a criminal case it is. not error for the court to refuse to instruct the jury, at the request of the defendant, upon matters of law before the argument begins.”

This case was carried to the Supreme Court and affirmed, and has not been overruled. In refusing to give said reque'sts to the jury before argument, we hold that the court below did not err.

Error is also assigned because the prosecuting attorney in Ms argument to the jury referred to the fact that the plaintiff in error did not take the witness stand and testify in his own behalf, and that the court below in its charge to the jury referred to such fact. In other words, the plaintiff in error ■charges misconduct on the part of the prosecuting attorney in his argument to the jury and error in said court’s charge to the jury. Ordinarily it is in the discretion of the trial court to control the argument of counsel in all matters relating to the conduct of trials, and it is only in cases where the court refuses to exercise its powers, or where its discretion is manifestly abused by permitting prejudicial matters to be discussed in argument before the jury, that appellate courts will interfere, but where the constitutional rights of a party defendant on trial are invaded and assailed in argument, it is contended that it is the imperative duty of such courts to intervene, especially in eases where the liberty of a person is involved. Without stopping to theorize on the universality of the law which contemplates giving to every person charged with the commission «of crime a fair and impartial trial, let us proceed direct to the «consideration of the error here assigned, and in the consideration of such alleged error we will treat the alleged misconduct of the prosecuting attorney and the alleged error of said court together, because they both involve the investigation and determination of the same question.

In his argument to the jury the record shows that the' prosecuting attorney in addressing the jury referred to and. commented on the fact that the plaintiff in error did not take the witness stand in his own defense and in submitting the case to the jury, the court below charged the jury as follows:

"The failure of the defendant to take the stand in his own behalf is a circumstance which you may take into consideration in connection with all the evidence and circumstances of the case to determine whether he is guilty of the crime charged.. But if upon a consideration of all the evidence and circumstances of the case, including that of his failure to testify, yon entertain a reasonable doubt of defendant’s guilt, then the' mere fact that he failed to testify should not operate to the: prejudice of defendant.”

Authority to refer to and comment on the failure of the accused to take the witness stand in his own behalf is claimed to have been conferred by the late constitutional amendment, Art. 1, Sec. 10, which became effective January 1, 1913. The view we take of this question renders it unnecessary to determine whether or not said amendment acts automatically, or that said amendment must be supplemented by legislative action to give it effect.

Before the adoption and taking effect of said constitutional amendment the statute in force régulating the procedure of' criminal trials for crimes and offenses committed before that time, except as hereinafter stated, in respect to ■ the right of' the accused to take the witness stand in hi^ own behalf, was-Gen. Code 13661, passed in conformity with the provisions of Art. 1, Sec. 10, of the bill of rights, provided that:

"On the trial of indictments, complaints, and other proceedings against a person charged with an offense, such person at his own request shall be a competent witness. The neglect: or refusal of such person to testify shall not create a presump.tion against him, nor shall reference be made to, nor comment made upon such neglect or refusal. ’ ’

Under this section the accused was a competent witness in his own behalf, if he elected to testify, but if not, such fact was not allowed to be made the subject of comment, and all reference thereto was forbidden, and a violation of this statute has frequently been held by the courts as affording ground for a new trial.

It is claimed that the foregoing statute has been superseded by such constitutional amendment, Art. 1, See. 10, and which in part is as follows:

“No person shall be compelled, in any criminal case, to be .a witness against himself; but his failure to testify may be ■considered by the court and jury and may be made the subject ■of comment by counsel.”

It is by virtue of this amendment that the state claimed authority to comment on the failure of the accused to take the witness stand in his own behalf, and the court to call attention to it as appears in said charge, while the plaintiff in error denied ¡such right or authority and contended that the provision of ¡said Gen. Code 13661, governed the procedure of said trial.

It appears that the death of Marian Estella Piatt occurred November 27, 1912; that the accused was arrested and charged with said crime December 12, 1912, before one B. M. Griffis, a justice of peace in said Morrow county; that on December 14, 1912, the accused waived examination and was committed to jail on said charge; that on February 14, 1913, the accused was indicted by the grand jury of said Morrow county for said «rime, and on April 10, 1913, he was found not guilty of murder in the first degree but guilty of murder in the second degree.

In the schedule to the several amendments to the constitution which became effective January 1, 1913, it is provided that:

“The several amendments passed and submitted by this ■convention when adopted at the election shall take effect on the first day of January, 1913, except as otherwise specifically provided by the schedule attached to any of said amendments. All laws then in force, not inconsistent therewith, shall continue in force until amended or repealed; provided that all cases spending in the courts on the first day of January, 1913, shall be heard and tried in the same manner and by the same procedure as is now authorized by law. ’ ’

That said Gen. Code 13661 is inconsistent with the provisions of said constitutional amendment, Art. 1, Sec. 10, is apparent, and the question then arises, under the facts stated in relation to the time of the arrest and commitment of the accused on said charge, whether or not the ease at bar was pending January 1,1913, and is included in the exceptions to said amendment as contained in said schedule. If the case falls within such exceptions, then the contention made by the plaintiff in error is well taken, otherwise it is not. The inquiry is, then, what is meant by "cases pending in the courts?” When can it be said that a case is pending ? A criminal case ready for trial, for instance, not only consists of an indictment, but the indictment may be only one of many stages of proceedings had before the case is ready for trial. This is especially true where the accused is arrested and a preliminary examination is had before the indictment is returned by a grand jury. Consulting the text writers upon this subject, we find that in Wharton, Crim. Pl. & Pr. (9 ed.) Sec. 1, it is laid down that:

The usual commencement of a criminal procedure is a preliminary oath before a magistrate, upon which, if it appear on the face of such oath that a criminal offense has been committed by the defendant within the magistrate’s .jurisdiction, a warrant may issue. ’ ’

In Bishop, Crim. Pro. Secs. 28 and 29, it is also laid down:

"That the successive steps in a criminal cause are: 1. The steps which precede the indictment or information. 2. What follows down to the finding upon the facts. 3. From the finding of guilty to the complete execution of the sentence. ’ ’

In the case of Hartnett v. State, 42 Ohio St. 568, it is laid down that:

‘! The first step, the arrest, the examination and commitment, the presentment by the grand jury of the written accusation of the crime, which becomes the indictment, the arraignment, plea, trial, verdict, sentence, and execution, are regarded as successive steps in a criminal cause or prosecution.”

And in the same case it is likewise held that:

“When a person is arrested and duly committed for a crime, for which he is thereafter indicted, the prosecution for that crime is pending, within the meaning of Rev. Stat. Sec. 79, as soon as he is arrested and committed.”

Hence, we think it follows that the arrest and commitment of the accused before the said justice of the peace in December, 1912, and the further fact that the transcript of the proceedings had against the accused before said justice of the peace was duly certified to the clerk of courts of said Morrow county and filed in his office December 17, 1912, must be deemed to be a commencement of the case, and was then a pending case, in contemplation of law. If we are correct in this view, if the case was one that was pending before January 1, 1913, then does it not fall within the express words of the saving clause contained in said schedule ? Respecting repeals and amendments of statutes, Gen. Code 26, provides that:

“Whenever a statute is repealed or amended, such repeal or amendment shall in no manner affect pending actions, prosecutions, or proceedings, civil or criminal, and when the repeal or amendment relates to the remedy, it shall not affect pending actions, prosecutions, or proceedings, unless so expressed, nor shall any repeal or amendment affect causes of such action, prosecution, or proceeding, existing at the time of such amendment or repeal, unless otherwise expressly provided in the amending or repealing act.”

That said constitutional amendment would be paramount to and work a repeal of said Gen. Code 13661, in the absence of the saving clause referred ito, is not open to question, and said Gen. Code 26 provides: “that such repeal * * * shall in no wise affect pending prosecutions, unless otherwise expressly provided in the repealing act.” In said schedule it is expressly provided: “that all cases pending in the courts January 1, 1913, shall be heard and tried in the same manner and by the same procedure as is now authorized by law.” Here is an express provision saving “all cases pending” at the time mentioned. Palmer v. State, 42 Ohio St. 596; Bergin v. State, 31 Ohio St. 111; State v. Lawrence, 74 Ohio St. 38 [77 N. E. Rep. 266; 6 Ann. Cas. 888]; Bevitt v. Diehl, 12 Dec. 315.

As before indicated, we are of the opinion that the case at bar falls within the saving clause of the schedule to said amendment, that the mode of procedure governing the trial of this case was according to the law in force prior to the adoption and taking effect of the said constitutional amendment, and that the* conduct of the prosecuting attorney in his argument to the jury in referring to the accused as not having taken the witness stand in his own defense, as well as the court in its charge to the jury in making reference to the same, was error for which this case should be reversed.

At the expense of no little time and care we have examined, the voluminous record herein with especial reference to the contention of counsel for the plaintiff in error that the verdict, of the jury is against the manifest weight of the evidence, and. is not supported by any evidence, and we are unable to agree* with counsel in such contention. We have also examined the-other assignments of error in the petition in error of the plaintiff in error, not herein specifically referred to, and we find no-substantial or prejudicial error in said record for which this, case should be reversed, except the sole error hereinbeforereferred to.

A cross petition in error is filed herein by the prosecuting-attorney wherein this court is requested to pass upon certain, questions involving the admissibility of evidence sought to be introduced by the state on 'the trial of the case below, to-the introduction of which evidence the defendant objected and the state excepted. Gen. Code 13681 provides:

“That the prosecuting attorney or the attorney general may except to a decision of the court and may present a bill of exceptions thereto, which the court shall sign, and it shall be made a part of the record.”

We apprehend this section relates to error proceedings, prosecuted in the Supreme Court. However that may be, we are of the opinion that until the pending case is terminated and a final judgment rendered therein, the interests of the- state-will not suffer. The application made will be denied on the-authority of State v. Dickerson, 73 Ohio St. 193.

For the reasons hereinbefore stated, the judgment of tlm court of common pleas will be reversed and said cause is remanded to said court for further proceedings according to law. Exceptions noted.

Voorhees and Pollock, JJ., concur.


author: NORRIS, P. J.

text:
    ACTIONS — LIMITATION OF ACTIONS.
    [Ashtabula (7th) Court of Appeals,
    January Term, 1913.]
    Norris, Pollock and Metcalfe, JJ.

      Florence V. Bush v. Ray E. Cole et al.
    Action Brought again after Dismissal for Nonprosecution after Original Limitation Expired, then again Dismissed after Year's Limitation Expired, is Barred.
    A plaintiff who brings an action within the statutory period of limitation, and the same is dismissed for want of prosecution after the limitation has expired, may bring a new action within one year after such dismissal by virtue of R. S. 4991 (Gen. Code 11233), but where the second action is dismissed more than one year after the first dismissal, that section does not authorize the bringing of another new action.
    [Syllabus by the court.]
    Error to common pleas court.

      W. C. Ong and Charles Lawyer, for plaintiff in error.

      Munsell & Hall and H. E. Starkey, for defendants in error.

       Affirmed, no op., Bush v. Cole, 90 O. S. 000; 59 Bull. 394.

   NORRIS, P. J.

Plaintiff in error was plaintiff below and brought suit in the court of common pleas to set aside two deeds'. Plaintiff became of age July 24, 1902. Her first suit was brought March 18, 1905, and was dismissed for want of prosecution December 17, 1906. A second action was brought for the same purpose February 16, 1907. This was also dismissed for want of prosecution March 5, 1908, and on May 28, 1908, a third suit was brought to set aside the deeds in question. The statute of limitations was pleaded by the defendants and judgment thereon was rendered against the plaintiff in error.

It is conceded that the last action was barred by the statute of limitations unless it comes within the saving clause of R. S. 4991 (Gen. Code 11233) then in force. This section so far as the question in this case arises reads as follows: .

‘ ‘ If, in an action commenced, or attempted to be commenced, in due time a judgment for the plaintiff be reversed, or if the plaintiff fail otherwise than upon the merits, and the time limited for the commencement of such action has at the date of such reversal or failure, expired, the plaintiff, or, if he die and the cause of action survive, his representatives may commence a new action within one year after such date, and this provision shall apply to any claim asserted in any pleading by a defendant.

The limitation as to this class of actions was four years. Stivens v. Summers, 68 Ohio St. 421 [67 N. E. Rep. 884].

Was the second action, which was commenced February 16, 1907, which was commenced more than four years after the plaintiff became of age, but within one year of the dismissal of the first action, an action brought in ‘ ‘ due time, ’ ’ as provided in R. S. 4991 ? Or, in other words, does that section authorize repeated new actions within one year after the discontinuance of the preceding action, or may a cause of action be kept alive and litigation prolonged indefinitely by plaintiff under that provision of the statute? We do not think so. We think within “due time” means an action brought within the original limitation of the statute of limitations, that if the second action was not brought within that original limitation it is not brought within “due time” as embodied in that saving statute.

This question was squarely before the supreme court of Kansas under a statute like our own in the case of Denton v. Atchison, 76 Kan. 89 [90 Pac. Rep. 764]. The court in the opinion says:

“The general periods of limitation are not changed by this provision, but it is intended to give a party who brought an action in time, which was disposed of otherwise than upon the merits after the statute of limitations had run, a year of grace in which to reinstate his case and obtain a determination upon the merits. It is a substitute for the common law rule of “journeys account,” in which the plaintiff, whose writ was abated for some matter of form which did not go to the merits, might have a new writ within a reasonable time computed by the number of days which the plaintiff must spend in journeying to reach the court. Under the rule of our statute if the dismissal occurs after the time limit has expired, the plaintiff has one-year from that dismissal, to bring a new action. To get the-benefit of this extension two things were essential: first, the-action must have been commenced within due time; and, second, there must have been a failure otherwise than upon the merits, after the general limitation of time had expired. Only one year after such failure is given to bring a new action. The new action, begun more than one year after such failure, whether it was the second or third action, would be an enlargement of the-time fixed by statute, and would result in permitting the plaintiff' to dismiss and reinstate at will and indefinitely. The statute is remedial, and should be liberally construed, with a view of' carrying into effect the purpose of the legislature; but a liberal construction does not warrant an addition to the period fixed by statute. ’ ’

The court cites many authorities in support of its opinion. We know of no authorities to the contrary. It seems to us no-other interpretation can be given to this statute. We think it is supported by our own Supreme Court in the cases of Siegfried v. Railway, 50 Ohio St. 294 [34 N. E. Rep. 331]; and Pittsburg, C. C. & St. L. Ry. v. Bemis, 64 Ohio St. 26 [59 N. E. Rep. 745].

It should be noticed that the codifiers have changed the punctuation of this statute. Our Supreme Court have given it undoubtedly the correct punctuation. It might be further noticed that in the new code the learned gentlemen in Gen. Code 11233 have transposed the words and left the words in “due time” somewhat indefinite, at least as to their application. We think there is no error in the record and the judgment will be affirmed.

Pollock and Metcalfe, JJ., concur.


author: POLLOCK, J.

text:
    NEGLIGENCE — RAILWAYS.
    [Mahoning (7th) Circuit Court,
    March Term, 1912.]
    Norris, Pollock and Metcalfe, JJ.

      Pennsylvania Co. v. Elizabeth Stahl.
    1. Duty of Person Riding in Vehicle Driven by Another Over Railway Crossing.
    A person riding in a vehicle, driven by another, is required to use ordinary care for his own safety when passing over a railway crossing; if he fails to do so and is injured thereby he cannot recover therefor notwithstanding the railway company’s negligence.
    2. Duty of Daughter in Buggy Driven by Parent to Look and Listen at Railway Crossing.
    Ordinary care demands that one riding in a buggy driven by another over a railway crossing should look and listen for approaching trains; hence, if a daughter riding in a buggy with her parents, having full possession of her faculties and knowing of the time and operation of trains over a highway crossing near her home, is guilty of negligence in failing to observe an approaching passenger train such as will defeat her recovery for injuries sustained thereby, unless some other fact appear to excuse her from such duty.
    [Syllabus approved by the court.]
    Error.

      Arrel, Wilson & Harrington, for plaintiff in error.

      Anderson, Gooh & Mathews, for defendant in error.

      Settled, 59 Bull. 157.

   POLLOCK, J.

Elizabeth Stahl, by her next friend, brought suit in the court below against the Pennsylvania Company to recover damages for personal injuries which she received in consequence of an accident while crossing the railroad tracks of the company. She says that her injuries were due to the negligence of the defendant company.

On June 11, 1910, the defendant was operating a railroad through the county of Trumbull, which crossed a public highway at what is known as Dunlap’s crossing. The plaintiff on this morning received the injuries of which she complains by the buggy in which she was riding coming in collision at that crossing with a fast passenger train. The railroad tracks run substantially north and south, and cross the public highway at grade and at right angles. South of this crossing the tracks of the railroad run straight for about three-quarters of a mile. Beginning near the crossing, and extending south for a distance of three or four hundred feet, is an embankment on the west side of the railroad tracks some four or five feet in height. The view of the tracks from the public road, as this crossing is approached from the west, is not otherwise obstructed.

The record discloses that the parties caused measurements to be taken, and observations to be made, to determine at several points on the highway the distance south on the tracks a train could be seen, by a person riding in a buggy.

It is not material which of the measuréments and observations are accepted as correctly giving the distance from the crossing that the train might have been seen by the occupants of the buggy, as it is beyond dispute that a person riding in a buggy could not look as they approached the railroad tracks from the-west, and before passing upon them, without discovering a train approaching from the south if it were so close to the crossing that it would be dangerous to attempt to cross in advance of' the train.

There is no testimony tending to prove that this train was running at over fifty miles an hour.

On the morning of the accident plaintiff below, with her-father and mother, were going from home east on this public road to church. They were riding in a one-horse buggy, with the top up. The father and mother were sitting on the seat, and the plaintiff was sitting on a stool in front and facing her parents; the father was driving the horse. The home of plaintiff was a. short distance west of this crossing. She knew of the railroad crossing and all the surroundings, and of the operation of trains, over these tracks. She knew that a passenger train was due about the time the^ were approaching the track. At the time of the accident the plaintiff below was between sixteen and seventeen years of age. The father’s hearing was slightly impaired, which fact was known to the plaintiff below. The father and mother were killed by the accident, and the plaintiff below is the only witness as to what transpired in the buggy as they approached and passed on to the tracks.

The plaintiff below says that she first looked to her right; that she then looked to her left, and just at that time she was struck by the train; that she had not looked before that time; that she did not notice anything the other occupants of the buggy were doing, except that her father was driving the horse. There is a conflict in the testimony as to whether or not the signal required by statute was given by defendant as the train approached the crossing.

The acts of negligence averred by plaintiff below in her petition are that the defendant failed and neglected to give any notice or warning of the rapid approach of the train to the crossing, and in causing and permitting said train to be run at a high and dangerous rate of speed; that the negligence of defendant, as alleged, was the cause of her injuries.

The defendant, by answer, denied these acts of negligence, and alleged contributory negligence on the part of plaintiff below; that she went upon the tracks of defendant below without taking any precaution, or using any care for her safety.

The plaintiff below, by reply, denies the contributory negligence alleged by the defendant below.

The case went to trial to a jury. At the close of plaintiff’s evidence the defendant asked the court to direct a verdict in its favor, and renewed the motion at the close of all the evidence.

It is urged that the trial court in overruling these motions, asking that a verdict for defendant be directed, erred, for the reason that plaintiff was guilty of contributory negligence in not taking ordinary care for her own safety; and this proceeding in error is prosecuted to obtain a reversal of the judgment of the court of common pleas for this and other errors.

"Where a traveler on the public highway is approaching a railroad crossing, it is his duty to use ordinary care for his own. safety, and if he fails in this, and is injured thereby, he can not recover, although the railroad company may have been guilty of negligence in failing to sound a whistle, or ring a bell, or give any other warning of the approach of the train to the crossing.

In this state the care required of a person traveling on a public highway, when about to cross the tracks of a railroad, is no longer a question of fact, but has become a rule of law, the failure to observe which is negligence.

A traveler on the public highway in the full enjoyment of his senses of sight and hearing, before going upon a railroad crossing, should look and listen for the approach of a train, and if he fails to discover the approach of the train in time to avoid danger, when a pimdent person by looking and listening would have discovered it and avoided the danger, he is guilty of such negligence as will defeat a recovery, unless some further facts appear which will relieve him. Cleveland, C. & C. Ry. v. Crawford, 24 Ohio St. 631 [15 Am. Rep. 633]; Cleveland, C. C. & J. Ry. v. Elliott, 28 Ohio St. 340; Pennsylvania Co. v. Rathgeb, 32 Ohio St. 66; Baltimore & Ohio Ry. v. McClelland, 69 Ohio St. 142, 157 [68 N. E. Rep. 816].

“Where a person, familiar with a dangerous railroad crossing, in passing over the same, neglects the exercise of any care to ascertain if a passing train is near, and in consequence of such neglect is injured by a collision with the train, he is guilty of negligence, and the mere fact that he had forgotten that he was in the vicinity of the crossing will not excuse such neglect.’’ Baltimore & Ohio Ry. v. Whitacre, 35 Ohio St. 627.
‘ ‘ The looking required before going upon a crossing, should usually be just before going upon the track, or so near thereto as to enable the person to get across before a train within the range of his view of the track, going at the usual rate of speed of fast trains, would reach such crossing.” New York, C. & St. L. Ry. v. Kistler, 66 Ohio St. 326 [64 N. E. Rep. 130].

The father and mother were both killed in the collision, and the plaintiff is the only witness who testified in regard to what she did as they approached and passed upon the crossing, just before the accident.

She says she was riding in the manner already stated; that she first looked to her right, which would be north, that she then looked to her left, which would be in the direction of the train, and just at that time they were struck. She testifies that she did not look before that time; that she did not notice anything the other occupants of the buggy were doing, except that her father was driving the horse. This is all the testimony in regard to what any of the occupants of the buggy were doing just before the accident.

Plaintiff was possessed of all her faculties. She resided near the railroad crossing; she knew of the crossing and the operation of trains over the railroad. It was daylight, and plaintiff as she approached and just before she passed upon this track, by looking could have seen the approach of this train in time to have avoided injury. But she says that she did not look until just before she was struck by the train. She must be held to be guilty of such negligence as will, defeat a recovery, “unless some further fact appears which relieves” her from looking and listening.

It is urged that because she was only riding in the buggy, while her father was driving, she was excused from using the care ordinarily required of persons approaching a railroad crossing, and had a right to rely upon her father exercising such care; and if he failed in this, and plaintiff was injured through the negligence of the driver, her father, and the railroad company, she could not recover against the defendant.

“The doctrine of imputed negligence does not prevail in this state.” New York, C. & St. L. Ry. v. Kistler, supra; St. Clair St. Ry. v. Eadie, 43 Ohio St. 91 [1 N. E. Rep. 519; 54 Am. Rep. 802].

Under the facts in this ease the negligence of the father could not be imputed to the daughter, but it is not sought to charge plaintiff with the father’s negligence, but with her own.

This brings us to the determination of the question of the care required of a person riding in a buggy, when approaching a railroad crossing, but who is not engaged in driving the horse.

Counsel have not called our attention to, and we have been unable to find, any case where this question has been determined by the Supreme Court of this state.

In. the case of Toledo & O. C. Ry. v. Eatherton, 11 Circ. Dec. 253 (20 R. 297), the circuit court held that:

“It is the duty of the occupants as well as the driver of a wagon, in approaching a known railroad crossing to look and listen for approaching trains; and where the evidence shows that the occupants, as well as the driver, failed to do so, the occupants are guilty of negligence which will defeat their recovery. ’ ’

The court of appeals of Indiana has held that while “the negligence of a driver will not deprive the occupant of the vehicle of his right to recover from one whose neglect has caused the injury, but even if the negligence of the driver can not be imputed to the occupant, yet the occupant must still' show that he was free from negligence contributing to his own injury.” Lake Shore & M. S. Ry. v. Boyts, 16 Ind. App. 640 [45 N. E. Rep. 812].

The same court in New York, C. & St. L. Ry. v. Robbins, 38 Ind. App. 172 [76 N. E. Rep. 804], says:

“The fact that decedent was riding with her husband, who had entire control of the team, did not relieve her of the duty of exercising care for her own safety. * * * Liability was denied not on the ground that the negligence of the driver was imputed to the injured person, but that the injured person herself failed to exercise the care required of a person approaching a crossing.
“Each person approaching a railroad crossing must use ordinary care for their own safety, and can not rely upon the driver being,bpth eyes and ears for them.”
“It is the duty of the passenger, when he has the opportunity; to do so, as well as of the driver, to learn of danger and avoid it if practicable.” Whitman v. Fisher, 98 Me. 575 [57 Atl. Rep. 895]; Brickell v. Railway, 120 N. Y. 290 [24 N. E. Rep. 449; 17 Am. St. Rep. 648].

The supreme court of Kansas says:

“A special finding in an action for injuries in a collision with a train at a crossing, that plaintiff had no, control over the vehicle in which she was riding, did not acquit her of contributory negligence in failing to' see the approaching train, when she could have seen it, had she looked, in time to have avoided the accident.” Missouri, K. & T. Ry. v. Bussey, 66 Kan. 735 [71 Pac. Rep. 261].

The plaintiff below was bound to use the care for her,own safety ordinarily required of travelers on the public highway*, when approaching a known railroad crossing. The fact that she was only an occupant of the buggy, while her father was driving* will not relieve her from that duty.

She was seated in the buggy in such a position that she could have looked for the approach of the train, and had she looked, would have seen the train. It was equally her duty, as-well as that of her father, to look and listen and learn if a train, was approaching in dangerous proximity to the crossing, and, if it was, to call the driver’s attention to the danger. A failure to do so will constitute such contributory negligence as will prevent a recovery, although the railroad company did not give the-warning required of it, and even though she did not have-authority to control the acts of her father.

This conclusion is sustained by numerous decisions by the eourts of other states, a few of which are cited: Aurelius v. Railway, 19 Ind. App. 584 [49 N. E. Rep. 857]; Dryden v. Railway, 211 Pa. St. 620 [61 Atl. Rep. 249]; Pennsylvania Co. v. Henderson, 179 Fed. Rep. 580 [103 C. C. A. 135]; Vincennes v. Thuis, 28 Ind. App. 523 [63 N. E. Rep. 315]; Colorado & S. Ry. v. Thomas, 33 Colo. 517 [81 Pac. Rep. 801; 70 L. R. A. 681, 3 Ann. Cas. 700]; Bush v. Railway, 62 Kan. 709 [64 Pac. Rep. 624]; Atlantic & D. Ry. v. Ironmonger, 95 Va. 625 [29 S. E. Rep. 319]; Holden v. Railway, 177 Mo. 456 [76 S. W. Rep. 973]; Flynn v. Railway, 250 Ill. 460 [95 N. E. Rep. 499].

It would not be strictly correct to say-that the authorities, uniformly hold the above conclusion. Probably cases can be found which hold that the occupant of a vehicle, when approaching a railroad crossing, has a right to rely upon the driver using-ordinary care to avoid danger. But we think an examination of the eases, which seem to hold this rule, will mostly show some-fact which relieved the occupant from this duty; that they were riding in such a position that they either could not look, or, if they did look, it would interfere with the driver, or that they saw the driver looking and listening and relied upon him, or that they were a passenger for hire in a public conveyance.

We think, where there is no excuse given for not doing so, that the great weight of authorities hold that an occupant of a. private conveyance, which another is driving, is required to use the same care for their own safety, when approaching a known railroad crossing, that they would be required to exercise If passing alone over the railroad.

Now, in this ease there was nothing to interfere "with the plaintiff below seeing. She was sitting in a position to see if she had looked. Had she looked she would have seen the train. She says she did not see her father looking. She knew that he was slightly deaf. She says that she did not look until just before the train struck the buggy; they were then upon the track and her looking was too late.

The court of common pleas erred in refusing to direct a verdict for defendant below. The judgment of the court below is reversed and judgment entered for the plaintiff in error.

Norris and Metcalfe, JJ., concur.


author: METCALFE, J.

text:
    COUNTIES — HIGHWAYS—JURY—TRIAL.
    [Guernsey (7th) Circuit Court,
    November 13, 1911.]
    Metcalfe, Pollock and Norris, JJ.

      Guernsey Co. (Comrs.) v. Samuel Black.
    1. Act Permitting Empaneling Jury from Adjoining County in Action Against Commissioners Applies to Action Accrued at Time of Enactment.
    Act 102 O. L. 41, amending Gen. Code 11418-1, relating to tbe drawing of jurors from an adjoining county in an action under Gen. Code 2408 against a board of county commissioners, is constitutional and applies to a cause of action accruing before tbe enactment of tbe statute, no substantial, or vested rights of tbe parties are affected as the method of empaneling a jury relates only to tbe remedy.
    2. Actual Notice of Defects in Highway not Required to Render Board of County Commissioners Liable for Injury Resulting Therefrom.
    Actual notice of a defect in a highway is not necessary to charge a board of county commissioners with liability for injuries re-suiting therefrom; it is. sufficient that the faets and circumstances he such that they are constructively required to take notice thereof.
    3. Absence of Funds to Repair Defect in Highway Held a Matter of Defense to Action for Personal Injuries Resulting From Such Defect.
    Absence of funds in board of county commissioners’ bands with, which to make repairs upon a highway is a defense to a cause of action for injuries resulting from failure to repair the defect and must be pleaded by answer of such board and proved.
    4. Person Driving off Edge of Macadamized Drive in Highway Not Negligent.
    A person driving upon a public highway, part of which is macadamized, is not compelled to keep on such part; hence such person is not guilty of contributory negligence in driving a foot or so outside of the path made by continuous travel.
    [Syllabus approved by the court.]
    Error to common pleas court.
    The action in the court of common pleas was commenced on March 7, 1908, and on May 11, 1908, a motion was filed to strike out some parts of the petition, and to make other parts more definite and certain.
    On August 4, 1908, this motion to the petition was overruled, and the defendant given leave to answer on or before August 29, 1908, but no answer was filed at that time.
    On September 28, 1908, on leave then given, the petition was demurred to for the following reasons:
    1. There is a defect of parties defendant, to-wit: The Board of County Commissioners of Guernsey County, Ohio, should be a party defendant.
    2. The petition does not state facts sufficient to constitute a cause of action.
    In the original petition the defendant was designated as “The Commissioners of Guernsey County, Ohio.”
    The case was submitted to the court of common pleas on this demurrer to the petition on October 24, 1908, and on September 10, 1909, said court sustained said demurrer and gave leave to amend the petition, and the caption thereof by inserting the words “Board of” after the word “The” and before the word “Commissioners” on or before September 25, 1909.

      To this amended petition a general demurrer was filed on November 11, 1909, and on January 17, 1910, this demurrer was sustained and the petition and amended petition dismissed .and judgment entered against the plaintiff.
    On April 20, 1910, the circuit court of Guernsey county, Blach v.. Guernsey Co. (Comrs.) 31 O. C. C. 659 (13 N. S. 252), found that the court of common pleas had erred in sustaining the demurrer to the amended petition and remanded the case to said court for further proceedings, and to this finding of the circuit court no exception was taken by the board of commissioners of Guernsey county, Ohio.
    On November 4, 1910, this cause was tried to a Guernsey county jury which disagreed.
    On May 3, 1911, a jury was drawn from Muskingum county on the motion of this defendant, and on May 10 and 11, • 1911, this cause was tried to this jury and it returned a verdict for $2000.
    A motion for a new trial was filed and on June 30, 1911, this was overruled and a judgment entered on the verdict.
    On August 29, 1911, a petition in error was filed in the ■circuit court of Guernsey county, Ohio.

      C. F. Sheppard, for plaintiff in error.

      J. S. Blach, for defendant in error:
    Liability of county for defect in county road. Yunher v. Sandusky Co. (Comrs.) 31 O. C. C. 552 (11 N. S. 527) ; Morgan Co. (Comrs.) v. Storage Co. 75 Ohio St. 244 [79 N. E. Rep. 237] ; JEbert v. Pickaway Co. (Comrs.) 75 Ohio St. 474 [80 N. E. Rep. ■5] ; Salt Creek Val. Tpk. Co. v. Parks, 50 Ohio St. 569 [35 N. IE. Rep. 304; 28 L. R. A. 769] ; State v. Wood Co. (Treas.) 17 Ohio 184; Grove v.' Franklin Co. (Comrs.) 4 Circ. Dec. 382 (8 R. 166); 11 Enc. Law (2 ed.) 353, 354, 355, 356; Faucher ' y. Tutewiller, 76 111. 195; Palatka I. By. v. State, 23 Fla. 546 [3 -So. Rep. 158; 11 Am. St. Rep. 395] ; People v. Mahaney, 13 Mich. ■481; 1 Story, Construction (3 ed.) Sec. 454; Cherokee Nation v. ¡Georgia, 30 U. S. (5 Pet.) 1 [8 L. Ed. 25] ; 16 Cyc. 561; Hardin Co. (Comrs.) v. Coffman, 60 Ohio St. 527 [54 N. E. Rep. 1054; 48 L. R. A. 458] ; Hardin Co. (Comrs.) v. Coffman, 10 Circ. Dec. 91 (18 R. 254) ; Alexander v. Brady, 61 Ohio St. 174 [55 N. E. Rep. 173] ; Low v. Leichty, 25 O. C. C. 240 (1 N. S. 431) ; Mahoning Co. (Comrs.) v. Railway, 45 Ohio St. 401 [15 N. E. Rep. 468] ; Burnell v. Traction Co. 19 Dec. 112 (7 N. S. 136) ; Black v. Guernsey Co. (Comrs.) 31 O. C. C. 659 (13 N. S. 252) ; Shartle v. Minneapolis, 17 Minn. 308; Smith v. Wright, 27 Barb. (N. Y.) 621; Bartlett v. Crozier, 17 Johns. (N. Y.) 439; Oakley v. Mamaroneck, 39 Hun. (N. Y.) 448.
    Constitutionality of act 102 O. L.' 41, Snell v. Railway, 60 Ohio St. 256 [54 N. E. Rep. 270] ; Lawrence v. Mahoning Co. (Comrs.) 35 Ohio St. 1; Templeton v. Kramer, 24 Ohio St. 554; Rairden v. Holden, 15 Ohio St. 207.

       Affirmed, no op., Guernsey Co. (Comrs.) v. Black, 88 O. S. 587.

   METCALFE, J.

This action was brought to recover damages claimed to have been suffered by the defendant in error — plaintiff below — • by reason of a defect in the highway known as the National Road. Mr. Black recovered a judgment in the common pleas court, and error is here prosecuted. Several grounds of error are alleged :

First, it is claimed that there is no liability on the part of the commissioners, as shown by the petition; the verdict is against the weight of the evidence; that the law under which the jury was drawn, and the case tried, is unconstitutional, and that there is error in the charge of the court.

In the limited time that I have I cannot discuss these questions to any great extent, but will only call the attention of counsel to the points that we think are decisive. Whether or not there was any liability on the part of the commissioners as shown by the facts stated in the petition, is a question that this court has passed upon once, and we do not feel at this time that we are called upon to reverse the decision that was made at that time, and that is all that we care to say upon that question. See Black v. Guernsey Co. (Comrs.) 31 O. C. C. 659 (13 N. S. 252).

Is the law (Gen. Code 11418-1, amended 102 O. L. 41) under which the jury was drawn in this ease unconstitutional? The law provides that where the county commissioners and some other officers which are named are parties to an action, a jury may be drawn from another county, and that was done in this case, the jury having been drawn from Muskingum county. We think, without entering upon a discussion of that question, that the Supreme Court has settled it in Snell v. Railway, 60 Ohio St. 256 [54 N. E. Rep. 270], in which the law authorizing a change of venue in eases where a corporation having more than fifty stockholders resident of the county is a party, settles that question. We think that case is decisive of the constitutionality of this law, and it is not necessary to discuss it more.

Counsel still say, however, that in the event the law is constitutional, it should not apply here because it was passed after this case was commenced; that they have a vested right in the remedy which was in force at the time — that is, which was provided for by the statute at the time the action was commenced. Impaneling a jury is part of the procedure by which the machinery of justice moves. It relates only to the method by which the remedy is administered. By changing it the right of a party to sue or defend is not affected. His substantial rights are not changed. We think a party cannot acquire a vested right in a remedy, or any part of it. Lawrence Ry. v. Mahoning Co. (Comrs.) 35 Ohio St. 1; Templeton v. Kraner, 24 Ohio St. 554, 563; Bairden v. Holden, 15 Ohio St. 207, 211.

It is claimed also that the court erred in its refusal to charge a request which was preferred on the part of the defendant, in which — without stopping to read it all — the court is asked to charge the jury that if they found that there was a defect in the highway, and that that was the proximate cause of the accident, still they would not be liable unless the jury also found that the commissioners had actual notice of the defect. We do not think that states the law. An actual notice was not absolutely necessary. The facts and circumstances might be of such a character that the commissioners might be required to take notice, although they did not have actual notice. I notice, however, in going through the charge that this request is substantially given in the charge, so that there would be no error in failing to give it, anyway.

Again, it is urged that there must have been an allegation in the petition in this ease that the commissioners had funds in the treasury, and at their disposal, with which to make repairs upon, this road. We do not have any doubt, after having consulted the authorities upon that question, that the fact that the commissioners had no funds with which to make repairs upon the road, or had no means of procuring funds, is a defense to a cause of action arising out of an accident for failure to repair a country road. But when the plaintiff: states his cause of action must he allege that the commissioners, or the proper officers, have provided and have under their control sufficient funds to meet the necessary repairs, or is it a defense? In our judgment it is a defense, and must be plead and proved by the commissioners. And upon this question we call the attention of counsel, as sustaining that proposition, to Hover v. Barkhoof, 44 N. Y. 113, 118, in an action similar to this. The same doctrine is also held in Hines v. Lockport, 50 N. Y. 236, and counsel will find a collection of the authorities in 15 Am. & Eng. Enc. Law (2 ed.) 412, upon that question.

The question in this case which bothers us the most, and which we had given the most consideration, is whether or not upon the evidence in this case the plaintiff: is entitled to recover. It appears that Mr. Black was driving upon the highway, and driving a horse that was somewhat restive, and he met an automobile. He raised his hand to the driver of the automobile to stop, and he did stop upon the north side of the highway. Something like 200 feet beyond where the automobile stopped, and in the direction which Mr. Black was going, there was this defect in the highway; and it is shown that there was a substantial defect there; where the culvert had crossed the highway, and outside of the traveled part of the highway, but in the graded part, it had fallen down, and there was a hole. He drove on; and when he passed the automobile he passed upon the south side of the road, but afterwards drove upon the north side. And he says his horse was under control at the time. He passed along upon the north side of the road, either his horse very close to the side of the macadam — perhaps in the wheel track, or his right wheel in the wheel track — at any rate, very close to it, and the left wheel of the buggy went into this culvert, and he was pitched out and received some injuries.

Now, in a case of this kind it is urged that the rule that where a party departs from the' known safe path, and takes another path, and is injured, that he must stand the consequences of his injuries. But where you are upon a traveled road what is the safe path? Is it simply a path — a roadway eight or ten or fifteen feet wide, as the case may be, upon which are the wagon tracks, or wheel tracks, that are made by continuous travel; and if you get a foot or a foot and a half outside of that are you guilty of contributory negligence? And that is the question here.

Now, this man, Mr. Black, was very -close, evidently — very close to the traveled part of the highway, and the wheels uponone side of his buggy were only off from it when he went into this hole. Now, under such circumstances we do not feel we can say he was guilty of contributory negligence; and under the evidence and the law of the case we are inclined to think that the judgment should be affirmed, and that is the judgment of this court.”

Pollock and Norris, JJ.,’concur.