author: HAYNES, J.

text:
    NEGLIGENCE — WAIVER.
    [Lucas (6th) Circuit Court,
    June 20, 1903.]
    Parker, Hull and Haynes, JJ.
    Lake Shore & Michigan Southern Railway Co. v. Frederick Ehlert.
    1. Negligence to put Man in Charge of Locomotive Without Ascertaining that he has Requisite Knowledge.
    Knowledge of the fact that steam remains in the steam chest of a railway locomotive when stopped, with expansive power sufficient to move the locomotive for some time afterwards upon releasing the brakes, unless the stopcocks are opened, is essential to constitute a person competent to be placed in charge of a locomotive, which fact a railway company, in the exercise of due diligence, is bound to ascertain to be within the knowledge of such person before putting him in charge thereof. The fact that a fireman has had a year’s experience operating a locomotive under an engineer, and from time to time exercised the duties of the engineer, without the company having áscertained that he has due knowledge, is not sufficient to release the company from liability for injuries sustained by another employe, caused by placing such fireman in charge of a locomotive to move it to the company’s coal chutes for coaling, which, upon his releasing the brakes and reversing the engine, started suddenly backward without his letting on other steam than that remaining in the steam chest.

      2. Release From Liability for Injuries not Binding, When.
    A railway company, in securing-the release from liability for injuries sustained by an employe in its service, is bound to acquaint the latter with the fact that he thereby waives all damages against the company for such injuries. Calling him into the company’s office, questioning him as to the manner of receiving his injuries, requiring him to sign such statement, and also a release without making the fact known to him by any conversation or negotiation that he is selling his rights, laying a dollar on the table, taking a receipt therefor, and recalling such servant to take the dollar and spend it upon his asking what the money was for, are not facts sufficient to show understanding of his act, the servant not understanding the meaning of the term “release.”
    Error to the court of common pleas.
    E. D. Potter, for plaintiff in error.
    D. H. Commager, Ashton Coldha'm and Harvey Scribner, for defendant in error.
   HAYNES, J.

In this case a petition in error was filed to reverse the judgment of the court of common pleas which the defendant in error, the plaintiff below, recovered against the railway company for alleged injuries sustained by him through the negligence of the servants of the company and of the company. Ehlert had beeii employed by the railway company for several years; he was engaged at a certain coal chute at Air Line Junction. A certain engine had arrived in the yard and been taken to a place near the water tank, and was there left in the possession of a fireman, acting in the capacity of a hostler, by the name of Toner. He ran the engine up to the coal chute to a certain number or tó a platform; the chute was then lowered for the purpose of filling the tender with coal; after he had placed the engine at the platform, notice was given to him to back up the engine, that the chute did not feed; thereupon he reversed his engine, as he says, and loosened the brake, let go the air brake, and immediately the engine started back.

Ehlert, who was on this chute, seeing the engine starting back, suddenly, as he says, thought he would be liable to be hurt or crushed; thereupon he dropped down between the coal chutes and the locomotive, and received injuries, as he claims, by reason of the negligence alleged.

Now two questions are presented, it seems to us, in the case, whether this man Toner, engineer or hostler, was a competent person or not, and if not, whether the company had taken reasonable steps before allowing him to operate this engine, to ascertain whether he was or was not a competent person; and, second, whether or not a certain paper writing, which was signed by Ehlert, purporting to be a release of all claims against the company, was binding upon him, or whether, by reason of the facts which he states in his petition, the paper was not binding.

Now Toner had been in the emploj' of the company as a fireman for some time, and for about a year had been running on an engine with an engineer; and it is claimed that he had, from time to time, exercised the duties of engineer in operating a locomotive and had become 'familiar with the methods of operating locomotives, and that he was, at the time he went upon this engine and took it up to the coal chutes, a competent person for that purpose, and the defendant offered the testimony of some of the persons with whom he has operated as engineer and some persons in charge of the shops, in regard to his qualifications as an engineer or as a hostler for the purpose of managing a locomotive under the circumstances under which it was placed at the time of this accident.

The jury found he was not a competent person, and it is claimed that was against the weight of the evidence. Now we have carefully read the testimony and examined it, and we are of the opinion that the jury was justified in coming to the conclusion that they did. ‘ It appears that this young man, from his own examination, his answers to the question's put to him when he was upon the witness stand, did not have that knowledge of steam and-its effects upon the steam chest that would make him a competent person to run and use an engine Under the circumstances he was using this engine. , It seems that when he reversed the engine and opened the air brake, there was some steam in the steam chest, sufficient to send the locomotive back and move it, according to the testimony of some of the witnesses, quite rapidly. It appears that it is the custom (and it seems to be a proper custom) when an engine is stopped, for the stopcocks to be opened, so that the steam in the steam chest will pass out and pass off; that is, if they are left closed, so much steam as happens to be in the steam chest at the time the locomotive is stopped remains there; and its expansive force remains and may remain for some time, according to circumstances; and it seems to us from the testimony that he was not familiar with this fact; certainly not as familiar with this fact as he ought to have been to be left in charge of a locomotive, placed in the position he was placed, where, upon his handling, would depend the safety of others. Nor do we think that the company had exercised sufficient care in ascertaining as to the qualifications of this man to handle this locomotive before permitting him to do so. It does not seem that any steps had ever been taken directly to ascertain what he did know in regard to the locomotive in order to operate it, or the effects of steam in the steam chest, if left there under the circumstances which he left it at the time. And we think the company was derelict in its duty in allowing this man to take possession and use this engine, without further knowledge of his qualifications.

We therefore say that we are of the opinión that we may not disturb the verdict of the jury in respect to these questions. We are inclined to the opinion that their conclusions are correct.

• Now, after his injury, the party signed a release — no question but that it is a release in form. It appears that he went down there to go to work. He says he went, and the foreman told him that before he went to work, he must go into the office and see the person who had charge there. At any rate, he went down and did go to the office. He found there the claim agent and the foreman, and perhaps another party; and he was asked to give a statement in regard to the manner in which the injury occurred. He was asked certain questions, and he answered them. We think there is no doubt about that, although he, in’ his testimony, is inclined to deny that he did, although the plaintiff admits that the statement was signed by him. It was not offered in evidence; it was not among the papers in the case.

At the'same time, another’paper was shown to him, which is a release, and it was read to him. We think there is no doubt that it was read to him. The testimony of the claim agent, Brown, and of the foreman, also the testimony of another party, Shambo, indicate that it was read to him. Curtis and Brown did not seem to see Shambo there, but he testifies as to what tobk place there. And after it was read it was signed by plaintiff at the request of the claim agent. He also signed a receipt for one dollar, which was laid down on the table, and which, it seems, he took away. At first he said he was going without the dollar, but they told him to take it.

Now he claims he did hot understand the purport of that paper, its nature and its character; and that he did not understand that he was releasing the company of all claims he might have against it, of his right to maintain an action. As to the character of some of the statement, in the nature of admissions, we think he, of course, understood it. He could talk English pretty well, and it was in proof that he was an ordinarily intelligent man, and could understand enough about the facts to understand those matters.

The real point in our minds is whether he understood the nature of the term “release,” and that he was releasing all claim or any rights he might have against the company. And we are inclined to the opinion that the jury were justified in finding that he did not know that. We have read the testimony of Brown and Curtis, the testimony of Shambo, as well as the testimony of Ehlert himself, in regard to whdt took place at that time; what transpired there. While they read the release to him,which he signed, and perhaps the receipt, the nature of that which was transpiring, it seems to us, was not sufficiently explained to him. There seems to be a total want of any conversation, or any agreement between Curtis, Brown and Ehlert, that he was negotiating with them; that they were negotiating with him for a release of all claims he had against the company for the injuries which he had received, or that he knew without any explanation on their part what he was riegotiating for. He says that they sat at a table, took down his statement and had him sign a paper and laid down a dollar. He says he asked them what the dollar was for; they said, for him to take it out and spend it.

We do not think that is a proper manner in which to settle a case of that kind; a case of that importance in regard to any injury. The parties with whom such dealings are had should be negotiated with the facts explained fully^and perfectly, that they are buying him off; that they are purchasing from him a release from all damages, or'all claims he might have, or be supposed to have against them for the injuries that he has received at the time he was hurt. .

For these reasons we are inclined to the opinion that the verdict of the jury is correct and ought to be sustained. We think that the negligence, if negligence there was, is attributable to the company; so the question of fellow servant does not arise in the case; so we understand the charge of the court to the jury to be. The charge seems to be very full, and stated the law clearly to the jury; so they, seem to have understood the issues very fully. For the reasons stated, the judgment of the court of common pleas will be affirmed without any penalty.


source: Caselaw Access Project

author: PARKER, J.

license: Public Domain

text:
    RAILROADS — NEGLIGENCE.
    [Lucas (6th) Circuit Court,
    June 13, 1903.]
    Lake Shore & Michigan Southern Ry. Co. v. Robert Johnston.
    1. Train Exceeding Speed Ordinance — Negligence, a Question for Jury.
    The fact that a train maintains a speed through a city higher than that allowed by the city ordinance is not proof of negligence, but may be considered by the jury on the question of negligence.
    2. Thirty Miles an Hour Negligent Speed Within City Limits.
    Although a railway company may run its trains at any spce$l it may desire in the open country, yet in a city where its trains are required to pass over street crossings, where there are no gates, and ho watchmen, and where houses and other obstructions prevent those passing along the streets from observing the approach of trains, a railway company is guilty of negligence if it maintains as high a rate of speed as thirty miles an hour.
    3. Vigilance Required at Crossing Where Watchman Maintained — When off Duty.
    A person who approaches a railway along a public and much traveled street in a city after the watchman maintained by the railway company at that point has gone off duty, and, misled by the absence of signals or warning from the watchman, whom he believes to be still stationed at the crossing, omits the exercise of extraordinary vigilance, before attempting to cross, is not for that reason guilty of negligence contributing to his injury by a train running at the rate of thirty miles an hour.
    4. Facts Not Constituting Contributory Negligence.
    A person, driving in a street after dark, who, when very close to the first of two parallel railway tracks sixty feet apart which cross the street diagonally, receives a warning from a pedestrian that a train is coming and, being in doubt upon which track the train is approaching, drives rapidly forward and stops or attempts to stop in the space between the tracks, but in the excitement due to his perilous position permits his horse to move forward and come in contact with the train which is passing upon the second track, is not guilty of contributory negligence which will prevent a recovery for the resulting injuries to his person and property.
    ERROR to common pleás court of Lucas count)'.
    King & Tracy and Frank H. Geer, for plaintiff in error.
    E. D. Potter, for defendant in error.
   PARKER, J.

This proceeding is brought to obtain the reversal of a Judgment of the court of common pleas of this county. The action in the court below tvas by Johnston against the railway company, to recover for personal injuries and loss of property in consequence of an accident — a collision— happening to himself and horse and vehicle by a train on the railway company’s track in passing through this city, which accident he says was due to the negligence of the railway company. The accident happened upon July 31, 1901, at about 8 :15 or 8:20 P. M. standard time, at a crossing of the railroad over Central avenue, which is a street running east and west in 'the westerly part of the city. The Lake Shore & Michigan Southern railroad and the Michigan Central railroad at that place run parallel to one another, in a northeasterly and southwesterly direction, the Lake Shore road at that point having one main track lying to the westerly of the tracks of the Michigan Central. The Michigan Central road at that point has two parallel tracks (main tracks) crossing over the street — the ^westerly of the Michigan Central tracks lying about sixty feet easterly from the Lake Shore track, and the easterly of the Michigan Central tracks lying perhaps seven or eight feet easterly from its westerly track. There is also, lying easterly of these tracks a distance of perhaps seven or eight feet, another track of the Michigan Central railroad extending from the north side of Central avenue and parallel with the other tracks, a distance of perhaps a thousand feet, called a spur track, which does not cross the street.

Johnston, upon the occasion of this accident, was passing westward upon the street, riding in an open vehicle (a light wagon, one witness called it a Democrat wagon) driving one horse, being alone in the wagon and with no load excepting a buggy tongue which was placed in the body of the wagon and projected out behind for some distance. He was a man of about sixty-three years of age. His horse was a steady, tractable animal. It was in the dusk of the evening. There was some controversy as to just how dark it was, but it was dusk.

Before proceeding farther with. a statement of the facts, I should mention that the trial in the court below resulted in a verdict in favor of Mr.' Johnston for $4,000 and a judgment upon this verdict. At the close of the plaintiff’s testimony a motion was made to take the case from the jury. This motion was overruled. This motion was renewed after the testimony was all in on both sides, and was again overruled, and upon each occasion the railroad company excepted. A motion for a new trial, upon various grounds, was made, and it was also overruled. There was also a motion on the part of the railroad company for a verdict on the answers to certain special interrogatories, notwithstanding the general verdict against the company, and this motion was overruled. Error is predicated upon this action of the court, and it is urged that the verdict was against the weight of the evidence. I shall refer to and discuss that proposition later, and it may be unnecessary to consider a variety of other questions presented.

The railroad train which came into collision with Mr. Johnston and 'his rig was proceeding from the northeast to the southwest over the tracks of the Lake Shore road. I do hot state the points of the compass exactly. Perhaps it would be more accurate to say that these various lines of track ran in a direction east of north and west of south, but they cross the street at an angle somewhat acute — not at a right angle.

It is charged in the petition that the railroad company was negligent and its servants were negligent in that the train was running at a higher rate of speed than was consistent with the safety and rights of the public —those having a right to use the street at this point; also, that the defendant was negligent in that there was no headlight upon the locomotive and that no bell was rung or whistle blown, or other signal or warning-given to apprise Mr. Johnston of the approach of this train; and it is averred that the city of Toledo had before this time passed an ordinance requiring that railroad trains passing over streets in the city should not be run at a higher rate than six. miles an hour, nor at a lower rate of speed than three miles an hour. The testimony of witnesses shows that on this occasion this train'was running at a rate of speed in excess of thirty miles per hour and perhaps as high as forty or forty-five miles per hour. It was conceded upon the trial by the railroad company that it was running at a rate of thirty miles an hour.

As to the other negligence alleged (negligence other than the high rate of speed) it is only necessary to say that the answers to the special interrógatories take those questions out of the case, the jury having found specifically that the headlight was burning, that the bell was rung, and that a crossing signal was given. I should mention also that it was charged that the company was negligent in. sounding the whistle,' in a very loud and violent way, just as the locomotive reached the crossing, and it is admitted and established by the evidence that the whistle was sounded at that point, or about that point, as a signal for a station (the wagon works station) about half or three-quarters of a mile farther to the southwest.

The case has been one of considerable doubt and difficulty to this court, and we have not been able to arrive at unanimity. The opinion which I shall announce will be that of a majority of the members of the court, Judge Haynes dissenting from,our conclusions.

That the railroad company was negligent in maintaining this high rate of speed at this point does not seem to us to be very seriously controverted; to state it fairly, I will say that it does not seem to us that it can be successfully controverted. While it has been held by our Supreme Court in the case of New York, C. & St. L. Ry. Co. v. Kistler, 66 Ohio St. 326 [64 N. E. Rep. 130], that a railroad company may run its trains at any speed it may desire, no matter how high, in order to accomplish the purposes of a railroad, in the open country where there are no circumstances to make it necessary for it to run at a low rate of speed or to slow up, yet it is unquestionably the law, we think, that through cities and villages and the suburbs of cities where it is thickly settled — where there are houses and other obstructions to those passing along the highway, so that they cannot readily observe approaching trains- — places where railroad trains are required to pass over the highway crossings, where there are no gates — as was the. case here — where there are no watchmen stationed to warn travelers upon the highway — as was the case here at this hour of the day — a railroad company may be > deemed and held by the verdict of a jury and by the law to be guilty of negligence if it maintains as high a rate of speed as thirty miles an hour. This subject is discussed in 2 Shearman & Red-field, Negligence Sec. 460, and the following sections, and we think the re-suit of the discussion there and the authorities cited sustain what we have just announced.

In Grand Trunk Ry. Co. v. Ives, 144 U. S. 408 [12 Sup. Ct. Rep. 679], it is said in the syllabus that:

“The running of a railroad train within the limits of a city at a greater rate of speed than is permitted by the city ordinances, is a circumstance from which negligence may be inferred in case an injury is inflicted on a person by the train. Whether ordinary care or reasonable prudence requires a railroad company to keep a flagman stationed at a crossing that is especially dangerous is a question of fact for a jury; although in some cases it has been held to be a question of law for the court.”

In the course of the opinion, by Justice Lamar, this is said:

“It is further urged that the court erred in giving to the jury the following instruction.
“ ‘If you 'find from the evidence in this case that the railroad train which killed Elijah Smith was moving at a rate of speed forbidden by the city ordinances, * * * the law authorizes you to infer negligence on the part of the railroad company as one of the facts established by the proof.’
“It is said that no evidence was introduced with respect to an ordinance of the city regulating the speed of railway trains. Counsel, in this matter, labor under a misapprehension. The bill of exceptions states that ‘the ordinance of the city of Detroit prohibiting the running of railroad trains within the limits of the city, at a greater rate of speed than six miles per hour,’ was admitted in evidence over the defendant’s objections. And as there was a great deal of evidence introduced on behalf of the plaintiff that the train which killed Mr. Smith was running at a much more rapid rate than the ordinance permitted, the instruction quoted was applicable, and, under the authorities, was as favorable to the1 defendant as it had the right to demand. Indeed, it has been held in many cases that the running of railroad trains within the limits of a city at a rate of speed greater than’ is allowed by an ordinance of such city is negligence per se.” (Citing Missouri and Virginia cases.) “But perhaps the better and more generally accepted rule is that such an act on the part of the railroad company is always to be considered by the jury as at least a circumstance from which negligence may be inferred in determining whether the company was or was not guilty of negligence.” (Citing cases from Nebraska, Illinois, Iowa, Georgia and Louisiana.)

And this latter proposition we understand to be the law of Ohio— .that is to say, that the running of a train at a greater rate of spe’ed than is provided for by ordinance is not proof of negligence, but the fact that the train was running at a higher rate of speed than provided by law, may be taken into consideration by the jury on the question of negligence.

In Cleveland, C. & I. Ry. Co. v. Reiss, 7 Circ. Dec. 450, 453 (13 R. 405), decided by the circuit court of Hamilton county, the opinion was rendered by Judge Smith, and I read from this, case because what is said is applicable to certain facts and proceeding in this case, to which I will make further reference:

“There is another matter to which we deem it proper to call attention, although it is not involved in the case as it now stands. It appears from the papers and transcript that the plaintiff, in his original petition, set out another ground of negligence on the part of the defendant, in connection with those already referred to, the substance of which was that the railroad company had caused this crossing to be a dangerous one by reason of the excavations made in the road and track, and the obstructions on the bank which prevented a view of approaching trains, and that the defendant had negligently and carelessly omitted to place and maintain gates or guards there, or have a flagman at the crossing, to warn travelers of approaching trains. Those allegations as to the negligence of the company in failing to have gates or a flagman there were on motion stricken out by the court against the exception of the plaintiff.
■ “We think this should not have been done; that the plaintiff was entitled to have these allegations remain in the petition, and to establish them if he could do so. While it is true that a railroad companjr is not, as a rule, in the absence of a statute requiring it, bound to maintain gates or keep a watchman at a crossing, yet there are cases where the obligation is imposed upon them to adopt these, or another safe mode to protect travelers, and if it could be shown that this was such a crossing, and that there had been a failure on the part of the company to make such provision, that would be negligence, and they might be liable for injuries caused by such failure.”

. In the case at bar, the original petition contained an averment that the city had passed an ordinance requiring a flagman at this point, and perhaps a gate also, and that the action of the railroad company was negligent and in violation of this ordinance in not furnishing a flagman .at this time and place and in not providing gates. That, on motion of counsel for the railroad company, was stricken from the original petition. We are inclined to think that perhaps that action on the part of the court was correct, because of the immateriality, of the averment that the city hacl made that provision; but we think that the substance of the charge— 'i. e., that the railroad company had been negligent in not providing gates, or watchmen, at this point — should have been preserved in the petition, if it could .have been preserved as the petition then stood by striking out a part of the averment, or, if not, that it ought to have been restored in some way to the petition. The case would have been in a more satisfactory shape for the court if this averment had been in the petition. Nevertheless, if there was negligence in either of these particulars, the absence of gates or watchman were incidents concomitant with the negligence charged; and perhaps it is immaterial whether it is charged that the company was negligent in not maintaining a gate or in not providing a watchman, in view of the fact that the train was run at this high rate of speed, and the negligence charged is the running of the train at a high rate of speed over a crossing in a city where there was no watchman and no gate. It appears from the evidence that there was no watchman there and no gate.

In New York, C. & St. L. Ry. Co. v. Swartout, 6 Circ. Dec. 768 (14 R. 582), in the syllabus, it is said that:

“A railroad company may, because of the speed and management of its trains make it necessary or incumbent upon itself to place a flagman or, bars at the crossing of its tracks by a public highway.”

And that is the gist of what is said upon the subject in the remarks of Judge Frazier in the course of his opinion.

In the case of Cleveland, C. C. & St. L. Ry. Co. v. Richerson, 10 Circ. Dec. 326 (19 R. 385), it is said, in the syllabus, that:

“The failure to maintain gates or flagmen at crossings outside a municipality is not, as a matter of law, negligence; but whether the circumstances of a particular case or the situation at a particular crossing, required, in the exercise of ordinary care, gates or flagmen, is a qrrestion for the jury.”

The opinion in that case‘was by Judge JHull of this bench, sitting in the circuit court of Cuyahoga county.

In Schweinfurth v. Railway Co., 60 Ohio St. 215 [54 N. E. Rep. 89], the fourth clause of the syllabus reads:

“In an action against a railroad company for wrongfully causing the death of a person by the running of a train of its cars at an unusual and dangerous rate of speed, without proper signals, at a crossing over a public and much traveled street in a city, an instruction that if the deceased was misled by the absence of signals or warning, and led to believe, as a reasonable person, that he could cross the tracks in safety, and while attempting to do so, without fault or negligence on his part, he was struck and killed by the running train, solely on account of th.e negligence of the servants in charge, his administrator would be entitled to recover, is not error.”-

And, reading from the opinion, commencing at the bottom of page 225:

“The following is one of the instructions, the giving of which was made a ground for reyersing the judgment of the trial court:-
“‘If the jury.find from the evidence, that the defendant’s servants in charge of the train that killed said Robert J. Blum gave signals by 'whistling once, and no more, at such distance, if it exceeded 100 rods from Greenwood street, that said Robert J. Blum would naturally think that he could safely cross before the train arrived at Greenwood street if he heard such whistle, and that he did hear it, and should further find that no bell was rung, and that said train was going at a greater rate of speed than men of ordinary care and prudence in like employment would have run it under like circumstances and conditions, and that said Robert J. Blum, as a reasonable man, was thereby deceived and led to believe that he could cross the tracks of said defendant’s railroad in safety, and that if attempting under these circumstances to cross said tracks, without fault or negligence on his part, he was, on account of carelessness upon the part of the servants of said defendant in operating said train at an unusual and dangerous rate of speed, struck and killed,'then plaintiff would be entitled to recover if such carelessness was the sole cause of his injuries.’
“The objection urged to the charge is, that it makes the defendant liable for the mistake or miscalculation of the person injured. But that, we think, is not its effect. It does no more than hold the defendant responsible for the proximate consequences resulting from the position in which the deceased was induced to place himself by its negligent omission to give the required signals of the approaching train where they might be reasonably "expected by persons about to use the crossing, and upon the absence of which they might reasonably rely as an assurance that it was safe to cross over; and, from the running of the train without such signals at an unusual and forbidden rate of speed, whereby persons who otherwise might cross in safety would be placed in a position of extraordinary peril. To give the instruction applicable to the case, it was necessary for the jury to find, and they were so told, the existence of the facts thus calculated to mislead the deceased, and further, that he exercised the care of a person of ordinary prudence in forming his- conclusion that he could safely cross under the circumstances, and that the injury he received was caused wholly by the negligent acts and omissions of the de-> fendant. If the facts stated were established to the satisfaction of the jury, the deceased was not guilty of contributory negligence which precluded a recovery by his administrator.”

Here it is claimed by Mr. Johnston that he was in a measure misled or deceived, or given a feeling of confidence or security, by reliance upon some safeguard in the way of a watchman or- otherwise at the crossing, and therefore what I have read on the subject of reliance by one upon proper care being observed by another as an excuse for not exercising extraordinary vigilance is not inapplicable to this case.’

Now, to proceed further with a statement of the facts. According to the evidence, Mr. Johnston was driving west along Central avenue and came to, or at least his horse was upon the easterly track of the Michigan Central railroad before he became apprised of the approach of the train. He was then warned by several persons of the approach of the train. Exactly what the warning was, what was said and done by way of warning, it is somewhat difficult to determine. One witness, Mr. Gettings, stood about twenty feet easterly from the eastmost track of the Michigan Central on the south side of Central avenue. He says that he called out to Mr. Johnston to look out, that the train was coming,, or in substance something like that; and that two other men who stood, it appears, somewhat northwesterly from him (T should think from a consideration of all their statements perhaps upon the tracks of the Michigan Central) gave warning to him about the same time, but the only warning Mr. Gettings heard from them was by the way of a whistle. It appears from the testimony of one of these, Mr. Kessler, that he also called out something about the approaching train. The plaintiff admits that he received warning of the approaching train at about that point, but he says that with the warning came the injunction or cry to hurry up, and that he was influenced somewhat by that as well as by his situation.

Now the first question presented is, whether plaintiff was negligent in getting himself into that position. It would seem that by proceeding to that point he had placed himself in a position that was somewhat perilous; that it was a situation that was likely to cause him trouble and fright when apprised of the proximity of a train, and perhaps prevent him from exercising calm judgment and deliberation as to what he should do. The testimony shows that there were buildings upon both sides of these tracks — both to the east and to the west, as well as to the north and the south of Central avenue; that in the direction from which this train was approaching the view was obstructed by buildings and by a coal chute which came up very close to this spur track (and perhaps by some cars standing upon the storage track, but about that we are not very certain), so that a person could not see down the tracks and observe the approach of trains to the northeast until he had come very close to the tracks. We gather this from the evidence in the record. We also find from the record that the jury viewed the premises, and we deemed ourselves at liberty to do the same, and we discovered that condition by viewing the premises as well'as from the testimony of the witnesses. In that respect, the crossing is somewhat difficult and dangerous.

The testimony of witnesses shows that Mr. Johnston was proceeding slowly and his vehicle was not making a great deal of noise, and he says that he was looking and listening for trains. It is not very plain how much looking and listening he may have done before he received this warning. The testimony is somewhat cloudy upon that point. He testifies that he was looking and listening and could see nothing and heard nothing. That he did look and listen after he received the warning, his testimony is quice clear. He says that he knew that the railroad company had a watchman at that crossing daytimes. He was not aware of the fact that the watchman (as the evidence shows) went on at six o’clock in the morning and went off at six o’clock in the evening. He supposed that he was there at this time in the evening, and seems to have placed some reliance upon that and upon the fact that the watchman did not appear upon the tracks to warn him or signal him that there was a train approaching; and he proceeded perhaps with more confidence and perhaps was not so prudent in looking and listening as he would have been had he not supposed there would be a watchman to give him such warning; and we cannot sa}' that, under the circumstances, Mr. Johnston was negligent in thus proceeding, in view of what we deem to have been the duty of the railroad company at that place and at that time, and what a traveler upon the highwa)'- might rely upon their doing as an act of prudence and care towards the traveling public. Now he approached to' that point and then received warning of the on-coming train. The substance of his testimony is that he then took instant thought as to his position and as to where the train might be, and concluded that if it was upon the Michigan Central tracks he could get across those tracks, and that that was the best way to proceed — to hurry his horse across — as his horse was already very near the track; and that if the train was upon the Lake Shore track, he would reach this spot bf sixty .feet between the tracks of the Michigan Central and the tracks of the Lake Shore and pause there — he does not say until the train should pass, but that is apparently what he means — that he would reach that point and stop there as a place of safety; and acting upon this impulse of the moment — this understanding of the probable situation — this instant thought and calculation, he hurried his horse forward; and he says that immediately upon getting across the Michigan Central tracks he stopped his horse. The fact is that that train came along upon the Lake Shore track — a locomotive and a baggage car, and perhaps an express car, passed by him without touching his horse or coming in contact with him (the train consisting of some five or six passenger cars besides) and one of the other cars seems to have come in contact with his horse, and horse, vehicle and rider were all drawn to the south across the street and thrown upon the ground with violence, and the vehicle was demolished, and the horse was injured so that it had to be shot afterwards and Mr. Johnston received personal injury.

He says that in crossing over the Michigan Central track he stopped in that space of sixty feet between the tracks of the two railroads, and thinks he stopped about the center of it. It is clear that he is mistaken about that; his horse proceeded further towards the west than he supposed or intended. That he did stop his horse and that he did not attempt to cross the L,ake Shore track ahead of the train, is found by the jury,, and we think that finding is sustained by the evidence. Mr. Johnston testifies that he stopped. Mr. Kessler testifies that he stopped, and Mr. Getting testifies that he stopped, and nobody testifies that he did not stop. The fireman upon the locomotive testifies that just as the locomotive was crossing over Central avenue he saw this rig approaching; it was then within twenty or thirty feet of the track, and appeared to be moving towards the track, but it is quite evident that the point at which Mr. Johnston stopped his horse was nearer to the track than twenty or thirty feet.

Now, as I have said, the locomotive at that point gave a loud and somewhat prolonged whistle for the station stop at Wagon Works. This is a circumstance in the case. We are not prepared to say that it was negligence on the part of the railroad company to do it, but it was one of the concomitant facts and circumstances, and it’probably had some influence on the movements of the horse. Mr. Johnston testifies that after he stopped the horse, he thinks it moved forward. On page fifty-nine of the record he testifies that the horse moved after he stopped him between the tracks, but this'movement does not seem to have been designed by Mr. Johnston — it was not consciously intended or voluntarily caused, but it was something which occurred in spite of him in the excitement of the moment and was consequent upon the peril of the situation, and, therefore, we think it cannot be said that he negligently caused it, or that he was negligent because of a miscalculation as to the point at which he should and did stop (if the accident was due to such miscalculation) or that he was careless or negligent because of his failure to control the movement of his horse when it got into that small space between the tracks, which lack of control probably caused the calamity.

It is apparent that if Mr. Johnston had stopped where he was when warned of the approach of the train the accident would not have happened. It is apparent that if he had' turned back it would not have happened. But, as I sajq he acted upon the impulse of the moment, and made a miscalculation and wrong decision in going forward instead of turning back. It seems to us that he cannot be held to have been careless in that he did not instantly see the approaching train and observe that it was upon the Lake Shore track, and thereupon haul up his horse and prevent it from going near to that track. He says he looked, and looked intently and looked carefully, and that he did not see it. I have already given the direction of these tracks and these streets where they cross one another. If Mr. Johnston simply looked to the right and to the left (as he probably did) upon the theory or supposition that these were right-angled crossings, he would not have seen this train. In order to see the approaching train it would have been necessary for him to turn his head somewhat and look backward toward the northeast. [The testimony of Mr. Johnston shows that he was not very familiar with this crossing ; he had crossed there only occasionally. He lived upon the west side of these railroads and somewhat to the south of where this accident occurred. He was in the habit of going occasionally to West Toledo, which required him to pass to the north of this point, and in crossing over the railroad tracks he usually crossed, as he says, at Monroe street. We find, upon consulting the map, that at Monroe street the wagon road crosses the railroad at right angles, so ,that one to observe tire- approach of a train would naturally turn to look to the right and to the left, and would have the whole view of the tracks, whereas, at this point where the accident took place, one would be required, approaching as he was, to see the train approach as this train was approaching, to look somewhat to his rear, a fact of which Mr. Johnston seems to have been unaware.] That it was dusk and that the approach of the train was not readily observable is apparent from the testimony of Mr. Kessler and Mr. Gettings. At the time they gave this warning they did not see the train approaching, but they heard it. For some reason the approach of the train was not apparent to them, and they were not made aware of it except by its noise, and they believe they were not warned of its approach by the sound of any whistle, or otherwise than by the roaring of the train; so that it cannot be said that the case is like that of one approaching a track in broad daylight without hindrance to his seeing a train approaching, and who will not be heard, to gay that he did not see it, when, by the opening of his eyes and looking in the ordinary way, it would be evident to him. It seems to. us, however, after looking over the situation, that if Mr. Johnston had turned and seen the approaching headlight, unless he had made a swift and accurate calculation as to the angle of these roads, he could not have determined which one of the tracks the train was approaching on, and he might have made a miscalculation there just as he did make a miscalculation in driving forward. It must be borne in mind that Mr. Johnston was required, not knowing from which direction the train was coming, to look both to the southwest and to the northeast and to observe six tracks, that is to say, three in each direction. He ■was upon the tracks of the Michigan Central .when he received this warning, and in that situation of apparent peril, calling for instant action, he hurried forward; and the principle laid down in Pennsylvania Ry. Co. v. Snyder, 55 Ohio St. 342 [45 N. E. Rep. 559], is, we think, applicable to a situation like this. There it is said that:

“When a person without his fault is placed in a situation of danger, he is not to be held to the exercise of the same care and circumspection that prudent persons would exercise where no danger is present; nor can it be said that, as matter of law, he is guilty of contributory negligence because he fails to make the most judicious choice between hazards presented, or would have escaped injury if he had chosen differently. The question in such case is not what a careful person would do under ordinary circumstances, but what would he be likely to do, or might reasonably be expected to do in the presence of such existing peril, and is one of fact for the jury.

And, in illustration of that principle, in the opinion, a great many cases are cited. We are all familiar with the common case of a passenger, when a collision is imminent, jumping from a train and injuring himself, which will not be regarded as a negligent act under such circumstances, although he might have remained upon the train and escaped injury.

The conclusion of a majority of the court is, therefore, upon this record, that the verdict as to the.negligence of the railroad company and as to the alleged contributory negligence of the plaintiff below is not against the manifest weight of the evidence, and/ that unless the answers to the special interrogatories are so contradictory to or irreconcilable with the general verdict that it cannot stand, this judgment should be affirmed.

I will spend but a moment upon that. Special interrogatories were submitted by both the railroad company and the plaintiff below. The first interrogatory submitted by the railroad company is:

“As and when the plaintiff, Johnston, came upon or near to the east and west track of the Michigan Central railroad was he warned and notified of the approaching passenger train in time so that if he had heeded it he could have stopped his horse and avoided coming in contact with it?”

And the jury answered that “No.” Now that answer is hard to reconcile with the facts in the case, though, if it had been answered “Yes” it would not have been conclusive of the rights of the parties here. It seems to us that the answer is clearly wrong under the evidence, unless the jury meant that the plaintiff could not heed the warning and at the same time “hurry up” — considering that as a part of the warning — that is to say, that the warning was that the train was approaching and that it would be necessary for him to hurry up — that he could not do that and also stop in time to avoid the collision. The jury seem to have concluded that he tried to accomplish all three of these things and failed upon the last. That they did not mean to say that he could not have stopped in time had he omitted to hurry up, is evident from the answers to the third and fourth interrogatories, the third being:

“As and when the plaintiff came up to the main or west track of the Michigan Central railroad could he then by looking to the north have seen the approaching train in time to have stopped and avoided coming in contact with it?”

And the answer is “Yes.”

The fourth interrogatory is this:

“As and when the plaintiff came up to the main or west track of the Michigan Central track and after he had been notified and warned of the approaching train, could he then have stopped liis horse and avoided coming in contact with the approaching train?”

And the answer is “Yes.” It is evident that he could have done so, but that does not answer the question submitted to and passed upon by the jury, whether, in the exercise of reasonable care, he was bound to take such action, or whether in omitting to do so, he exercised reasonable care under all the circumstances, considering his situation, the peril, etc. As I have already said, the other answers to the special interrogatories eliminate from the case all charges of negligence except that of the high rate of speed and. perhaps that of the-blowing of the whistle immediately at the crossing. The answers to the interrogatories submitted by the plaintiff are all clear and consistent with the general verdict and require no special comment.

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


text:
    STREET RAILWAYS — NEGLIGENCE.
    [Lucas (6th) Circuit Court,
    July 3, 1903.]
    Lake Shore Electric Ry. Co. v. Mary Majewski.
    1. Correlative Rights of Vehicles and Street Railways in Streets.
    Persons driving vehicles in a city street have a right- to use the tracks of a street railway company laid therein as well as other parts of the street, exercising ordinary care to avoid collision with the cars of the company, and the company will be required to operate its cars at a reasonable rate of speed and under full control, so that the safety of such persons may be properly preserved.
    2. Facts Not Constituting Contributory Negligence.
    A woman driving in a crowded city street, who suddenly finds herself in a perilous position between a rapidly moving street car and other vehicles standing in the street, is not guilty of contributory negligence for the reason that, . in the _ excitement incident to her situation, she causes or permits her horse to deviate from a safe course parallel to the street car tracks, causing a collision between the car and her wagon in which she is injured.
    Chas. K. Friedman and Marshall & Fraser, -for plaintiff in error.
    Kinney, O’Farrell & Remelspach and Smith & Baker, for defendant in error.
   PARKER, J.

This is a proceeding brought to obtain the reversal of a judgment of the court of common pleas. Mary Majewski, in an action against the railway company, in which she charged negligence resulting in a personal injury to herself, recovered a judgment for $3,000. The railway company prosecutes error to that judgment, and insists that the verdict is against the weight of the evidence; that there was error in the charge of the court, and that the verdict is excessive in amount. It is -questionable whether we would be required to review this record upon the weight of the evidence; indeed we are inclined to the view that we are not, and the fact that we do, we do not wish to have regarded as a precedent in like cases. A couple of exhibits introduced in evidence do not appear as a part of the record. We are persuaded that we have in the record about all the merits of the controversy notwithstanding the absence of these exhibits ; nevertheless, we would probably not be authorized to consider the case, or at least not to reverse it, upon the weight of the evidence; but, in looking through it for other purposes we have necessarily considered that question — and we have gone through the record very carefully. '

The claim of the plaintiff below was, that she was driving along Superior street, between Adams and Madison streets, upon the west side, driving towards Madison street. After she had traversed perhaps two-thirds of the distance between those two streets, a collision occurred between one of the cars of. the railway company, and her vehicle — a little truck-wagon in which she was riding; that she was thrown to the pavement; that the wheels of the vehicle passed over her body and that she suffered serious injuries, to wit, two ruptures, one on each side of her abdomen, and other serious and permanent injuries. She says that this collision was due to the negligence of the persons operating the car. The car, I should say, was going in the same direction in which she was traveling; and she says that the operators were negligent, in that one of them saw her — or by the exercise of reasonable care, might have seen her — in a position of peril, and might have stopped the car, but did not do so, but ran into her; that they did not give such signals or warnings of their approach as were-due to her, so that she might have observed them and thrned aside; that they were running the car at an excessive rate of speed under the conditions there prevailing, in the center of the city, where the street was crowded — i. e. at a speed of sixteen to eighteen miles an hour.

It is charged in the answer that she was guilty of contributory negligence; that she, in the exertise of ordinal care, could have seen this car approach and could have avoided the collision — that she must have seen it. But she, on the other hand, says that she looked and did not see it. It is in evidence that the street is straight for a long distance towards the north, from which direction the car was approaching, and it is claimed that if she had looked carefully she must have observed the approaching car. But the question still remains, whether she exercised such care under the circumstances as would exonerate her from the charge of contributory negligence?

It appears from her testimony and that of some of her witnesses, that there were wagons — an oil wagon and some other wagons — upon the westerly side of the street, and that parts of these wagons came out so close to the track of the railroad upon which this car was approaching that it would have been exceedingly dangerous and difficult for her to attempt to pass between these wagons and the track with the car approaching; that as she undertook to make that movement and drive in there, the car came upon her and struck her vehicle and' broke it, in a degree. I believe it did not tip the wagon entirely over, but it turned it completely around so that after the accident was over, the horse’s head was towards Adams street instead of towards Madison street, -and the buggv was towards Madison; but it threw her out and also threw out her little girl.

Now on the part of the railway company, the motorman testified that he saw this woman approaching and came near to her at a time when she was in a position which he thought would be dangerous to her, and he brought his' car to a stop; but it appears from the testimony that when •he brought his car to a stop it, had passed by her for some distance; and in order to find out whether he had struck her, or whether she had got out of the way, it was necessary for him to open the door to his vestibule. He said he looked out and saw that she had cleared the car, and then he started up again, and the theory of the defense is that she must have backed her vehicle into the car, or something must have occurred that was due to carelessness on her part — for the motorman says that immedi-, ately thereafter he heard a crash and he came to a stop again, and then the collision had occurred and the damage was done. But we do not think -that the preponderance of the evidence supports this theory. We think it tends to support the theory that the car stopped for the first time after the crash and after the accident.

It is insisted, however, by counsel that it fairly appears from all of the evidence that the very front of the car did not strike the vehicle— and that the rear part of the car not being any wider than the front, and that having passed her with the front of the car they were justified in thinking they could go on and disregard her presence, and that if she afterwards came in contact with the car it. must necessarily have been because of her own negligence or a mere accident which could not be the fault of the railway company. The testimony of the motorman was that he observed her in a position which he regarded as dangerous to her — very close to the track, where he was fearful there would be a collision. We do not think that if the very front end of the car passed the vehicle without touching it, it would necessarily follow that the railway company could not be held responsible for any accident or collision thereafter occurring. It is evident that this woman was in a position of peril as she was discovered there by the motorman, and we think that if he had been moving his car along the street in such a way as to have had it under full control, he might have contrived to stop before he came to her. or came upon her, and before he had passed so far to the south that it became necessary for him, according to his own admission, to open the side door to find out what had happened. We think that, with the other testimony in the case, tends to show very clearly that the car was being run'at a rate of speed that was, under the circumstances, excessive; that it was not held under full control, so that the safety of others having a right to use the street might be properly preserved.

Upon that subject, the railway company asked the court to charge as follows:

“If the jury find from the evidence that the collision between the defendant’s car and the plaintiff’s wagon did not occur until after the forward end of the car had passed plaintiff’s wagon and horse, the jury-are instructed to return a verdict for the defendant.”

This was not given, and the railway company complain. As I have said, it appears to us that the fact that the railway company had gotten the front end of the car past the wagon of the plaintiff was not enough to necessarily exonerate it, and, therefore, we think the court did not err in refusing to give this request. There is another ground upon which it is urged that the court might have refused to give this, and that is, that the front of the car was the fender of the car and that is not as wide as the body of the car, and the fender of the car might have passed the vehicle and cleared it, and the front of the body of the car might have struck it, and yet under this charge the railway company would have been exonerated, which would have been clearly wrong; but, assuming .that it meant the front of the body of the car, we think it should not have been given. This woman finding herself in a position of peril was not required under the law to do that which we, looking upon the event after it happened, may see would have been the safest possible thing for her to do under the circumstances. Perhaps if the car had passed the four wheels of her vehicle and her horse, and she had kept on without an inch of deviation to the right or to the left — towards Madison street — the whole car would have passed the vehicle and horse safely; but under the situation, in the predicament that she found herself, and the consequent excitement of both horse and driver, due to such a situation, we do not think it was required of her that she should keep on in this undeviating course. It seems to us that the accident probably happened in this way: When the car came upon her and almost touched the wheels of the vehicle, the horse, either of its own motion, or by her involuntary attempt to get it into a position of safety, turned towards the curb, and it is evident that such a movement would bring the front wheels of the vehicle closer to the body of the car than if they were going straight on the street. The part of the front wheels resting upon the pavement would act as a pivot, and the moment her horse turned towards the curb to the right the difference between one-half of. the diameter of the wheel would be brought over towards the car; that is to say, the vehicle would be brought that much nearer to the car than it was when the wheels stood in a position directed towards the south, and when this turn was made, the car then caught the front wheel — and it apptears that the front wheels were broken loose from the buggy — and the vehicle was brought up against the car and turned, and the plaintiff was thrown out. Therefore, we cannot say and we do not think that this deviation from her course was an act of negligence upon her part. There is no evidence in the record tending to show that she deliberately, or otherwise, backed her vehicle into the car. We think that at the time the car struck the vehicle she was trying to get out of the way and the horse was trying to get out of the way, and so the accident occurred; and on account of the negligence of the company in running the car at that high rate of speed — for the preponderance of the evidence is that it was running at a rate of speed of perhaps twelve or fifteen miles an hour — so that the car could not be stopped before it reached the vehicle, we think the company should be held liable.

The rule as to speed laid down by the Supreme Court in the case of New York, C. & St. L. Ry. Co. v. Kistler, 66 Ohio St. 326, is cited by the railway company, but this is clearly not applicable to a street railway, running through a city; it is applicable to a steam railroad, operated in the open country. The rules upon the subject are stated in a great many authorities, and are widefy different from the rule laid down in the Kistler case. What we have said in the case of Toledo Elec. St. Ry. Co. v. Westenhuber, 12 Circ. Dec. 22, 24 (22 R. 67), we think is applicable to this case. That was a case of a collision between a car and a vehicle crossing a track at the intersection of two streets. This is not a,case quite like that, it is true; this is a case where one drove parallel and near to the track when a car was approaching. In that case we said:

‘‘‘To attempt to drive across a track ahead of a street car when the car is so far away that, by the exercise of reasonable care on the part of the operators, it might be stopped before reaching the place of crossing, is not negligence, in our opinion. The rights of the street car company and of the driver of the team being equal at the crossing, he had a right to go over the crossing ahead of the car, notwithstanding the fact that his doing so would require that the speed of the car must be retarded to prevent a collision. The one first at the crossing had the right to precede tire other in going over the same. It is plain, the driver of the team must take into consideration the fact that the street car cannot turn out; it must remain upon the rails, and he must take into consideration the fact that it cannot stop instantly; that if it is going at a high rate of -speed it may require considerable distance for it to stop; but taking all these things into consideration, if he enters upon the track when the car is so far away as that it may, by the exercise of reasonable diligence on the part of the operator, be stopped, he is not, in our opinion, guilty of negligence in thus entering upon the track.”

Now that is the rule as to the right of persons to cross sfreet car tracks at.the intersection of streets. When they come upon the track of the company between streets, in other words, people driving vehicles along a street are not bound to keep away from the tracks of the street car company, as they are to keep away.from the tracks of a steam railroad in the open country. They have a right to use the street, as well the part of the street where the tracks are as other parts of the street, and to attempt to drive around vehicles as this woman did, although it would bring her close to the track or upon the track, and to drive there ahead of the .street car when the car was so far away that by the exercise of reasonable care she might suppose she had time to pass by such vehicles would not, in our opinion, be negligence. The street car company cannot insist that the speed of its cars shall not be retarded by people driving in ahead of the cars upon the street. When, in the use of the street, the exigencies require them to drive upon the tracks they may drive there, and the street car company must retard the speed of the car to allow them to use that part of the street as well as the parts where the tracks are not laid.

It is said that if this woman had looked she would have seen the car approaching, and it is argued that, therefore, she was bound to avoid coming near the track. If she had looked and seen the car approaching at such speed and at such a distance as that it could be stopped by reasonable effort without running into her vehicle, it would not have been negligence upon her part to enter upon the track.

Now what looking was she required to do, and what lack of it would be negligence upon her part, under the circumstances? One about to drive upon a track should look up the track to see if a car is coming. It seems to me that one is not required to anticipate that a car will come along a busy and crowded street at the rate of fifteen' miles an hour, and, therefore, to look up the track for a quarter of a mile to see whether a car is approaching. Nor need one anticipate, if a car is approaching, that the motorman will not attempt to retard the speed of the car to prevent a collision. One may look up the track and see a street car approaching and yet not be negligent in driving upon the track ahead of it. If one should look up the track and see a car approaching a reasonable distance away, such a distance as the car might not reasonably be supposed to traverse before the person could go upon and over the trade, and he discovers no car within that distance, we think that would be a reasonable observation of the track before entering upon it. Applying that rule in this case, we cannot say this woman was negligent in failing to observe the approach of this car. So far as it appears, the car was a long distance away from her when she turned in towards the track, and the reason it came upon her before she had time to get around these wagons was that it was coming down the street at a high rate of speed, and its speed was not retarded until the collision occurred.

Complaint is made of an expression by the trial judge in the course of his charge, in describing the claims of the parties, where he says it is undisputed that the car which was operated by the defendant struck the wagon in which plaintiff was riding. It is insisted that that should have been submitted to the jury; that it was a vital question whether the car struck the wagon or the wagon struck the car. The railway company claim that the wagon did the striking and that it was backed up against the car; but we think, considering this expression with others running through the charge, that what the court meant and what the jury must have understood the court to sajr was, that there was a collision between the car and the wagon, and the jury could not have understood that the court was trying to withdraw from their consideration or influence their decision upon this disputed question of fact in the case.

It is also complained that this verdict is excessive. It is for $3,000. The ground of complaint was, that she suffered two ruptures. These we know are serious disabilities, and if it were made to appear upon this record clearly and satisfactorily that she had suffered these ruptures through this accident, entirely; that these ruptures were initiated or begun by reason of the fall that she received upon that occasion, we would not feel inclined to disturb the verdict. But we are not satisfied upon that point. It appears that this Polish woman was a hard-working woman and a field laborer at home. She had been the mother of six children. That, as the doctor says — the carrying and the birth of so many children — necessarily weakens the abdominal walls and causes them to become flabby and more liable to injuries of this character; and it appears to us that the hard work which she did during the weeks after she had given birth to the last of these six children might very naturally have brought this disability upon her. The doctor who attended her at the birth of her last child said he examined her carefully upon that occasion and she had no such rupture. But the time intervening between the birth of that child and the time she received this injury was an interval of six months, during which she had been' actively engaged in hard work upon the farm. She and her husband and her daughter, testify upon that. I should say that the doctor saw her on the day following that of the accident and discovered this rupture for the first time. The plaintiff, her husband and daughter testified to the disability, and the testimony of none of them is ven- clear as to the point whether she was ruptured before the time of this accident. The most that the plaintiff herself says, when asked the question, is that she did not suffer pain before this accident; she does not say that she was not ruptured before the accident. The daughter simply testifies that after the accident her mother did not work as she worked before; that she was'obliged to be in and about the house and could not work in the fiel4 as she did before; and the testimony of the husband is substantially to the same effect. It appears that when she was thrown out of the buggy it ran over her, but she was not so much disabled at the time but that she was able to be upon her feet, and it does not appear that she complained of any especial injury. She had bruises upon her person and her clothes were mussed, but most of the doctors who testified in the case say that if she had received such injuries as these, they must have resulted in excruciating pain at the time, and they cannot see how she could have conducted herself and done and attempted what she did after the accident. She was placed in the same vehicle and taken down to Market Space, and then a carriage was sent for and she was placed in the carriage and taken home, a distance of some eighteen miles. It does not appear that she had any medical treatment that day. This physician was called in the next day. The hack-driver testifies that she said to him, when he asked her if she was the woman who was hurt, that she was the woman but that she was not much hurt. Thereupon she gathered up a lot of bundles and took them over to the hack and then climbed in herself; and it does not appear that she made any complaint about any pain in that long drive home. However, we think it is fairly apparent from the record that the rupture, if it had theretofore existed, was aggravated by this accident; but, we think, in view of the circumstances, that the werdict is too high, and we are unanimously of opinion that it should be reduced to $2,000. We will allow the judgment to stand for $2,000, with interest from the date it originally bore interest, if counsel for plaintiff will allow a remittitur to be entered, otherwise, it must be reversed on the ground that the judgment js excessive, i. e., against the weight of the evidence as to the amount.


text:
    BOARDS OF EQUALIZATION.
    [Lucas (6th) Circuit Court,
    June 13, 1903.]
    State ex rel. Just et al. v. William M. Godfrey (Auditor).
    Powers of City Boards of Equalization Repealed.
    Section 2805 Rev. Stat. was repealed by the act of May 10, 1902, 95 O. L. 481. Lienee, all the powers of city boards of equalization appointed under such section prior to May 10, 1902, were thereby repealed and their right to perform any of the duties of the office has been terminated.
    Appeal from common pleas of Lucas county,
    jjames, Millard & Powell, for plaintiff.

      Brown & Geddes, for defendant.
   HAYNES, J.

In this case an application was made for a writ of mandamus to the court of common pleas. A demurrer was filed to the petition and the case was heard upon the demurrer, and the parties not desiring to plead farther, a judgment was entered in favor of the defendant and thereupon the case was appealed to this court. The case is now being heard upon the appeal and upon the demurrer.

The claim of the relator was that the members of the board of equalization had been appointed, and that under the statutes as they now exist the members are entitled to hold until their successors are appointed and qualified. Some grounds of the argument arise from certain sections of the new municipal code, and there certainly was room for considerable argument in the case, and the points which had been made originally in the case were outlined to this court by counsel for relator. The board had been.appointed under Sec. 2805 Rev. Stat., and prior to May 10, 1902, and were holding their office at that time, but have not been reappointed since.

Since the decision of the court of common pleas a decision, has been rendered by the Supreme Court of this state, which, in our judgment, ends this case. The Supreme Court hold in the case of State v. Clarke, 68 Ohio St. 463, that:

“Section 2805 Rev. Stat., providing for annual city boards of equalization conflicts with and is inconsistent with the act of May 10, 1902, 95 O. L. 481, entitled, ‘An act to provide for the appointment of a board of review for the equalization of real and personal property/ and is therefore expressly repealed by Sec. 5.of said act.”

This mandamus was applied for in the Supreme Court for the purpose of compelling the appointment of certain members of the board to succeed certain members whose terms of office had expired. The Supreme Court held and declared that Sec. 2805, under which this board was appointed, was repealed, and it follows that the powers and rights to .exercise the office of those who hold under it fall with the statute. The statute repeals all powers which they had before that time and repeals all acts under which they were appointed and it terminates their right to perform any duties of the office, and. that being the case, the application for a mandamus in this case should be refused, and it is so ordered.


author: HAYNES, j.

text:
    STREETS — BRIDGES.
    [Lucas (6th) Circuit Court,
    June 13, 1903.]
    Ricard Boiler & Engine Co. v. Toledo.
    Land Under City Bridge not a Street, When.
    Land under a city bridge, owned by the city, and used by it as a support for the abutments of such bridge, which the city has never invited the public to use as a highway and which, from its situation, is not adapted to that purpose, is in no sense a public street, and the city may lease it for any purpose not inconsistent with its use as a support for the bridge.
    C. F. Watts and Southard & Southard, for plaintiff.
    M. R. Zraiicy and Chas. K. Friedman, for defendant.
   HAYNES, j.

An action was brought in the court of common pleas of Lucas county, for the purpose of enjoining the city of Toledo from signing a certain lease or causing to be executed certain leases to certain parties of certain real estate upon Water street, it being that portion of the real estate used, in part at least, for the abutments of a bridge extending across the river at Cherry street. A motion yvas interposed to dissolve a temporary injunction-which had been granted, and, upon hearing, the court directed a dissolution of the injunction. Thereupon the parties arranged that the court pass upon the entire question and take an appeal, which was done, and no actual trial having taken place, the case was submitted to the court upon affidavits. The case has been heard here upon this appeal.

The bridge across the river at Cherry street rests at the westerly end of it upon parts of two lots, which lots extended from Water street •to the river, and being about 100 feet in width, the bridge being at that point about twenty feet above Water street. In order to support the bridge two abutments have been erected, one situated near the line of Water street on the southerly side, arid the other within the water line of the river or a little within the river, extending nearly across the lot, and there is at either end a small space of ground, of perhaps five or six feet, which the abutments do not cover. Cherry street, which originally came down by an incline to AVater street, was filled in by the city to the same height as the bridge (about twenty feet) and an abutment, built on the northerly side of AVater street and within Cherry Street, was built in to the proper height and full width. The.approach was built over this piece of ground; completely covers it and covers to a large extent this property. The city, conceiving that some revenue might be derived from a lease of this property, had advertised to lease this portion of the lot (it really being a portion of the bridge) and bids were made. After the first bid was made and after the time had elapsed it is claimed that the Ricard Boiler & Engine Company offered another bid. Thereupon.the city rejected all bids and advertised again, and other parties bid, and after the time had elapsed for the filing of bids, and perhaps after some bids had been opéned, the Ricard Boiler & Engine Company made another bid, but the city refused to accept or recognize their bid, and awarded the lease to another party, and it is the execution of this lease that the plaintiff seeks to enjoin. '

It seems, in the history of this bridge, that, some time in 1870, or perhaps a little earlier, a private company had built this bridge across the Maumee river and had purchased the land in question for the approach to the bridge and sustaining the northerly end of it. That bridge was a toll bridge and was run by a private company who owned it. Subsequently, it is said an act was passed by the legislature authorizing the city to buy this bridge, and it was in fact purchased by the city of the company and it was, by proper.deeds, duly executed by the corporation, deeded to the citjr to be an open, public bridge. It was opened and used in that way for some little time — perhaps three or four years, if not more — when, in the year 1882 or 1883, the bridge was carried away and swept out by the flood, and thereupon the present structure was erected in the manner and form in which I have stated.

Now it is claimed that this piece of land is to be considered a street; that persons have been in the habit of going from Water street across the lot adjoining to the Ricard property, or, beginning at. the other end, if you choose, to the docks and boat landings, or to the boats that might be moored at the foot of the street. It will be observed that there is no dock there of the city, because the abutment fills up a large amount of the space, and there is no dock at either end of it; any docks which are there are private docks upon land next to this property. The testimony shows that the Ricard company had driven in there under the bridge with coal and had erected coal bins there and were in the habit of taking in perhaps a carload of coal- and storing it there for the use of the manufacturing establishment of the plaintiff, that.. being built upon the property adjoining the property in controversy, the southerly side of their buildings being upon the line, or nearly upon the line of the two properties. The plaintiff company has a door upon the southerly side, which opens out upon this lot under the bridge, and they have been in the habit of storing boilers and other things there (their business being boiler making), and it is said that they have in some instances repaired boilers, and there are water-closets there used by the employes of that company, which are situated on these lots and upon the water’s edge. It is sáid that they have been putting in from time to time earth and filled in there and the lot has been filled in so that they can -use it, and plaintiffs claim that they have expended perhaps several hundred dollars upon that.

Another claim of the plaintiff is, that by reason of this use of this part of this lot and by reason of the situation of the adjoining property this is in fact a public street and that they have a right to use it as a public street. My colleagues visited the property and viewed it and evidence has been taken here as to the situation of the property, and it seems to us very clear -that in no sense can this be said to be a public street. The simple use of this property and the only use of it, so far as the property is concerned, is that it is us-ed for the purpose of sustaining and supporting the abutments of the bridge and supporting the bridg'e itself; all the public highway there is is along the bridge over the property, and the city has never in any manner invited the public to use this property as a public highway and there is nothing that could be reached by the public in passing from Water street down to the water except as they passed along the side and stepped out onto the adjoining property. We do not think the city has assumed any responsibility in regard to the duty of keeping it open or in repair underneath this bridge so that people could pass along there, aird we do not think the city would be liable if a person should be injured under this bridge or stumble upon these various articles that have been stored there by the Ricard company. The city has never recognized it as a street, and, in our judgment, the very use to which it is put forbids the assumption that it is a street, or the finding or holding that it is a public street. We think very clearly that the city has a right, if it chooses, to lease this property for purposes not inconsistent with the use of the property for the support, upholding and maintaining of the bridge, and we presume that in any lease that is made upon it and executed, that any rights would be reserved to the city to enter upon the property for the purpose of maintaining, repairing or extending the bridge, and even if provision of that kind is not made, it would be very clear to us that no rights would be conveyed to the lessee against the city itself which would prevent it from using the property for the purposes for which it was purchased and the lease must be made to the lessee subject to the rights of the city, but they could use it for storage purposes or purposes of that nature, if the city sees fit to' do so, and we see no reason why it should not do so. Indeed, the statute seems to give to the city the right to lease real estate and it seems to us that this kind of real estate may be properly leased for this purpose.

With this view of the case, the plaintiff's petition will be dismissed and the injunction will be refused.