author: Price, J.;

text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Jan. Term, 1898.)
    Before Price, Norris and Day, JJ.
    THE STATE OF OHIO EX REL. JOHN C. SCHWARTZ, Prosecuting Attorney, v. CHARLES A. TOOKER.

      Sec. 2575-53, R. S., authorizing the mayor of every city of the first grade of the first class to appoint a Building Inspector for such city, is unconstitutional—

    Quo Warranto.
   Price, J.;

Norris and Day, JJ., concur.

The relator, who is the prosecuting attorney of Hamilton county, brings this action in quo warranto, to have the court determine by what right and title, if any, the respondent, Charles A. Tooker, holds and administers the office of inspector of buildings in the city of Cincinati. The petition states that he has intruded himself into said office, and uses and holds the same, and performs a number of acts, set out in detail, under the provisions of an act of the general assembly of the state of Ohio, passed February 28, 1888, entitled, “An act to regulate the construction of buildings within any city of the first class and first grade, and to provide for the appointment of an inspector of buildings, and to repeal an act passed March 21st, 1887.’’

It is claimed for the relator that the statute referred to, providing for the appointment of an inspector of buildings in Cincinnati, is invalid, because in conflict with section 26 of article II. of the constitution of Ohio. The respondent answers that it is by virtue of the provisions of said act that he holds and exercises all the duties of the office, and thal he is performing all the duties enumerated in the act, except enforcing that part of the act which requires certain fire escapes on all buildings of a certain height.

The authority for making the appointment of a building inspector is found in the revision of the statutes- of Bates, in section 2575, subdivision ■ 53, and which reads:

“The mayor of the city shall appoint in every city of the first class of the first grade one person, who shall be an architect or a builder, as inspector of buildings of said city of the first class, who shall hold such office for the term of two years from and sfter the date of his appointment, and until his successor is duly appointed and qualified,” etc.

The section further provides for the appointment of a number of assistants, at certain fixed salaries, to supervise certain classes of work — elevators, plumbing, etc. — in the construction of buildings in the city.

Is the law authorizing the appointment valid, or is it in contravention of section 26, article II., of our state constitution? This constitutional provision is as follows: “All laws of a general nature shall have a uniform operation throughout the state. ”

In the case of the city of Cincinnati v. Steinkamp, 54 Ohio St., page 284, our supreme court has passed on sections 32 and 61 of the above act, and .held them to be invalid, We have carefully read all the provisions of said act, and following the line of reason adopted by our supreme court, we are of opinion that the grounds for holding sections 32 and 61 invalid are equally good against the section authorizing the appointment of an inspector of buildings by a mayor of a city of the first class of the first grade. No city but Cincinnati was intended to be regarded by said act, and its provisions related to a subject of a general nature as to all cities of whatever size within the state.

By section 1692, Revised Statutes, and especially by the amendments, the legislature had clothed all municipalities of the state with ample powers to protect the life, health and comfort of a citizen and the safety of his property, and it would seem that the necessity did not exist for the passage of such legislation, and we believe that the trend of the decisions of our supreme court is against this species of special legislation.

The answer of the respondent, pleading the statute in question as his sole authority to hold said office, does not make a defense to the petition, and we therefore sustain the demurrer to the answer, and enter a judgment of ouster from said office at the costs of the defendant.


source: Caselaw Access Project

author: Scribner, J.

license: Public Domain

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Sept. Term, 1890.)
    Before Haynes, Scribner and King, JJ.
    THE LAKE SHORE & MICHIGAN SOUTHERN RAILWAY COMPANY v. CATHERINE GILDAY, Adm’x.

      Car Inspection — Duty of It. R. Co.—
    (1.) It is the duty of a R. R. Co. to use reasonable care to provide and maintain for the use of its employes reasonably safe and suitable ears and apparatus. It does not guarantee the absolute safety and sufficiency of its cars and appliances, but it is bound only to use reasonable care and caution, which is such a degree of care as is usually exercised under similar circumstances by persons of ordinary prudence, or by corporations engaged in like business and conducting it with ordinary care and prudence.

      Brakeman and Car Inspector fellow servants — Where R. B. Co._ liable for negligence—
    (2.) Braxemen and train-inspectors are fellow servants, and, generally speaking, the R. R. Co. is not liable for injuries caused to one by the negligence of the other. But where the injury to a brakeman is caused by a defective brake-wheel, and it appears that tho defect is of long standing and should have been ascertained by the carinpector but for the insufficient manner in which the cars were by him examined, and it further appears that the superior officers of such car irispector should have known the insufficient manner in which the cars are inspected, then the R. R. Co. is liable for the injury to the brakeman.

      Impracticable contract of employment—
    (3.) A contract which the R, R. Co;, required the brakeman to sign when employing him, making it his duty to inspect the cars and appliances on which he was to be employed, when in fact it would be impracticable for him to make such inspection, will not relieve the R. R. Co.
    Error to the Court of Common Pleas of Lucas county.
   Scribner, J.

This is petition in error to reverse the judgment of the ■court of common pleas. On the 1st of April, 1888, William Gilday, the intestate of plaintiff below was a brakeman upon a freight train, in the employ of the railroad company. He had been in that service for several months prior to that time. On that day he was employed as a forward brakeman upon a train of coal cars made up at Elyria, consisting of about forty-five cars, which train left Elyria, bound westward,somewhere about 2 o’clock in the afternoon of that day. When it reached a station known as Lacarne,in the vicinity of Port Clinton, the freight train was required to ■enter upon a side track in order to permit of the passage of a passenger train upon the main track. It reached Lacarne somewhere from 10 to 12 o’clock in the night time — a wet and slippery night, it would seem from the testimony. It became the duty of the decedent Gilday, as the forward brakeman, and he was required, to set the brakes as the train entered upon the side track, in order to stop the train. It appears from the testimony that he had set the brakes upon the first and second car from the engine. His lamp was placed upon the rear or east end of the second car, while he stepped upon the west end of the third car, and proceeded to set the brake upon that car, upon the west end of the car. While engaged in performing that duty, while winding up the brake, the rachet which held the brake in position by reason of its entering upon the teeth of the brake-wheel, slipped: The brake being wound up to the right, the result was, as the testimony shows, the giving away of the ratchet,and the brake-wheel with the brake staff revolved violently to the left, and the decedent having hold of it,he was thrown under the wheels of the car, and was so injured that he shortly thereafter died. His sister was appointed the administratrix upon his estate by the probate court of Lucas county, and brought this action to' recover damages alleged to have been sustained by herself and her sister by reason of the death of the young man, arising in the manner that I have stated. She alleges in her petition that the decedent furnished the bupport of herself and her sister, and that she has sustained damages by reason of his death in the manner stated, to the extent permitted to be recovered by the statute.

There are several grounds of negligence alleged in the amended petition. One is, that the locomotive engine was equipped with a steam brake, and that the steam brake was out of order at the time of the accident, and that the negligence of the company in failing to keep this steam brake in order contributed to the accident.

On the trial of the cause the court ruled cut all the testimony given upon that subject, properly, we think, because it was apparent that whatever defect may have existed in the steam brake, if any such there were, in no manner contributed to the accident. It was also alleged in the petition that one of the brake chains was so carelessly and negligently connected to the coal cars that it was impossible to set the brake to hold it, and that that contributed also to the accident. But while the testimony shows that one of the brake chains had become disconnected and unhooked from the brake, that defect, if such it was, was upon the fourth car from the engine, and as it is quite clear that the accident occurred while the young man was setting the brake upon the end of the third car, it is apparent that the disconnection of the brake chain from the brake upon the fourth car had nothing to do with the accident.

So we are brought to a consideration of the question'arising upon the facts as shown in the record as regards the condition and situation of the brake upon the west end of the third car, which, as is very correctly stated in the answer, was the occasion of the accident. The wheel connected with the brake staff is attached to and forms a part of the record, and it appears upon an inspection of this, that three of the teeth or cogs of this wheel, the cogs being intended to hold the ratchet upon the setting of the brake and winding up of the chain, are broken; .and there can be no reasonable question but what it was by reason of these defects in. the teeth of this wheel, that the ratchet, upon being set, came in position where these brakes occurred, and slipped, and thereby the wheel and the staff rapidly revolving,the decedent was thrown from the top of the car, and that that was the cause of the accident.

The company says in regard to the alleged negligence on their part, that it had employed competent and experienced inspectors to inspect this and other trains at the yard in Elyria before the train was sent out, and that it was the duty of these inspectors to test these brakes before they were sent out; and that if they failed to apply the proper test in order to determine whether or not they were in a safe and sound condition, it was the negligence of the inspectors, and under the rulings of the supreme court in Webb’s case, 12 Ohio St., and Fitzpatrick’s case, 42 Ohio St., they were fellow servants o£ the decedent, for whose negligence the company is not responsible to the decedent, and the turning point of this controversy appears to hinge upon this position.

It is apparent upon an inspection of these broken teeth that they, at the time of the accident, were of long standing: they are worn and smooth. The testimony of witnesses introduced on behalf of the defendant — expert witnesses — ■ the foreman of the car inspectors in the Toledo yard and the man who removed the wheel from this brakestaff, is, that they are ancient brakes. So it is conclusively shown, both from an inspection and from the testimony, that these defects in this wheel which caused the accident were of long standing, and that the wheel had been dangerous with these defects for a considerable period of time.

One of the inspectors at the yard at Elyria, a man by the name of Howe, is placed upon the stand, and testifies in the case; and it appears from his testimony that there were two inspectors employed by the Lake Shore Co. at the time that this train was sent out — one a day inspector and one a night inspector, to perform this service. One other railroad company, from which perhaps this load of coal had been received — the Lorain, Cleveland & Wheeling — had also two inspectors in the yard. It is admitted in the record of the case, however, that the car was a Lake Shore car — a car belonging to the defendant company in this action. The testimony of the other inspector was not given in this connection' in the case"; It seems somewhat important, therefore, to' look at the testimony of'this inspector, as bearing upon the question, perhaps, as to the character of this inspection, as-to whether it was insufficient.; and is so,‘whether the railroad company had notice of the alleged insufficient manner in which the inspection was made. In his testimony this inquiry is made of him:

“Q, When you start to inspect cars on the inspection track, what implements do you have with you? A. I generally take a hammer and a monkey wrench, when I look a train over.
“Q. And- when you go to a car, you go down "one "side and up the other? A. Yes, sir.
“Q. Go over the top? A. No, sir.
“Q. State what you do. A. I look the train over. If they are all right, that settles it — ■
• The Court: “Q. You are asked to state particularly — ■
A. I examine all there is about the car.
“Q Assume that we don’t any of us know how a car is inspected. A. I look right under, and go under the car, and see if it is all right. I look at the wheels, and see if the drawbars are all right, and trucks are all right, and see if it is fit to run.

Then again—

“Q, In examining the wheels, what do you do? A, I look them all over close. If one is broke, I stop the car and put a pair in.
“Q. How do you determine whether the wheel is broke or not? A. I look at it.
The Court: “Q. What do you call a break? A. A crack, or a piece of a flange gone. Sometimes a piece of a flange is broke out four or five inches; sometimes larger.
Mr. Potter:- “Q. Do you strike the wheels at all with your hammer? A. No, sir: I don’t. Some parties do, but I don’t.
“Q. What do you do in connection with the examination of coupling apparatus? What do you inspect — what do you examine? A, I have nothing to do with that. If there is a broken shackle in the drawbar, I mark a broken shackle on the end, so they can see it, and they will take it out and put one in that end — the men that makes up the train.
“Q. In the inspection of cars, about how ■ long does it take you to make an inspection — the usual and ordinary inspection of a car or cars, about how.long does it occupy— . say a train of forty or forty-five cars? A. It took me generally about 40 minutes,; sometimes 50,.

On cross-examination he.said:

“Q. You inspect forty cars sometimes in 40 minutes? A. I said 40 in 50 minutes. That ain’t no trouble to do.
“Q. You frequently do that? A. Yes, sir: I have done, it hundreds of times.
“Q. Who is your immediate superior? A. Mr. Merritt, of Cleveland, and Mr. W. O. Smith; Mr. Rowe.
“Q. How often would those gentlemen be in your yard? A. Ordinarily would come around once in a while, I couldn’t tell you how often — once a month, sometimes once in two weeks.
“Q. And did they know that you could inspect and did. inspect cars in 50 minutes? A. Yes, sir.
“Q. Or have seen you do it? A. I have been right under along in the yard; we had to do it.
“Q, You examined each wheel? A. Yes, sir: I looked, them over as I went along.
“Q. You examined the chains? A. Yes, sir.
”Q. You examined the brakes? A. Yes, sir: I can -see whether they are brakes fit to go or not by looking at them.
“Q. Get up and give the brake a turn? A. If the chain is too long, I out the chain off and put it on again.
“Q. Did you set the brake by turning it? A. No, sir.
“Q. Hid you test the brake wheel? A. If the brake wheel was broke I could see it.”

This is the only testimony contained in the record as to the manner in which the inspection was made. And it appears from the testimony that the inspector, according to his statement, being pressed for time, passed rapidly along the train, inspecting a train of forty or forty-five cars in from 40 to 50 minutes, looking at them; but in the case of the brakes failing to apply any test whatever — lading to turn the wheel, but simply trusting to such an examination and such knowledge as he might be able to obtain by passing along the train, and looking at the different appliances in use upon it. And it further appears from the testimony of this witness — and there is nothing in the record to contradict it — that the superior officers, standing in the shoes .of and representing the company, were aware of the manner in which this' inspection was made.

In the answer to the amended petition in the case the company by its counsel states the duty of the inspectors, as we understand it to be:

“That in the inspection of said cars it is the duty'bf said inspector to examine and test, among other things, the brake staff, chains, and ratchets upon said cars, and if the same are out of order or broken, to repair them, and if not able to make the repair, to set them out of the train and send them to shop for proper.repairs.
“That said inspection was made of said cars,and the same passed by said inspectors and found by them in proper order and repair.
“That after leaving Elyria and before coming to said LaCarne, said freight train was stopped a great many times by the application of the brakes upon said cars, the said William Gilday being the head brakeman and the brakes; having been set by him upon the first, second, third, fourth and other cars from the engine; and each time that the train was brought to a stop, prior to its stopping at LaCarne, the said brakes worked properly and were set by said1 William Gilday upon both said third and fourth cars from the engine.
“That between the time of the letting off of the brakes on said cars after the stop made prior to that at LaCarne, one end of the brake chain upon the fourth car from said •engine had become unhooked and detached from its fastening, but was not broken, and the same was at the time wholly unknown to said decedent, or to said defendant or any of its employes.
“That after the accident to said Gilday at LaCarne the brake chain upon the fourth car was found unhooked, and hooked up again in its proper place, and thereafter used in setting brakes upon said car,
“That the third car back from the engine was one of defendant’s cars marked “D Eo. 13647.” On the end of the car nearest the said locomotive, on the north side of the car, was the brake apparatus to said third car.
“As said freight train approached LaOarne, the signal was given to stop said train, and thereupon, as was usual and customary in the stopping of said trains, Gilday, as head brakeman, started back from the head of the train and began setting-brakes upon the cars, Said Gilday had set the brakes upon the first and second cars and placed his lantern on the end of the second car', next to the third car and in close proximity to the third car, and thereafter commenced setting up the brake upon said third car, when suddenly the stop and ratchet latch of the brake upon said third car slipped past or broke out a portion of the teeth in the ratchet wheel on the under side, and Gilday slipped, fell, and was thrown down in between the second and third cars on the rail, and his lower limbs were caught and run over by the front or forward wheels of the third car. It had been raining, and the place where Gilday was standing was wet and slippery,
“Said answering defendant denies that said deceased fell from the fourth car, or that the unhooked chain upon the fourth car had anything whatever to do with said accident. Defendant says that the brake apparatus upon said fourth car was 35 or 40 feet back towards the back end of the train, and easterly of where said Gilday slipped and fell, and that he was not upon the fourth car when he slipped and fell.
“Said answering defendant says that after train had come to a stop at LaOarne and the cars carefully examined, it was found that said Gilday bad slipped and fell between the second and third cars while attempting to set the brake upon the third car.
“Defendant says that upon close examination of the rachet wheel upon said car No. 13647, where said Gilday slipped and fell, it was found that on the under side of said ratchet wheel, and not patent to view, some three of the teeth of said wheel had been broken off on the under side, and when the brake was set up the same would let itself off at the broken teeth on a slight jar or touch, Said defendant says that said ratchet wheel if broken when said train left Elyria, the same was unknown to said defendant or any o'f its officers or employes. That the said break or defect in said wheel was not patent to view, either to said Gilday or to said defendant, its officers or employes, and if, at the time of the inspection of said brake, it was then defective, said inspectors carelessly omitted to detect and discover the same and negligently permitted said car to remain in said train, and the said Gilday in consequence thereof was injured, such injury was due to the negligence of said inspectors, his fellow servants and co-employes, and not owing to any negligence or want of proper care on the part of said defendant, its officers, agents, or employes in authority over him.” ■

Now this statement of the case we fully concur in: that in consequence of this defect,or of these inspectors’ neglect to apply the proper test in order to ascertain and determine whether this apparatus was in good condition or not, if it was then defective, and ths inspector carelessly failed to detect and discover the same, and negligently permitted the car to go out in that condition, then the negligence was imputable to the inspectors. The testimony of this inspector is that he did permit this car to go out in this condition. It plainly appears that this wheel was defective; that these breaks in these teeth existod for a long period of time; and that these inspectors failed to apply the test which the answer says it was their duty to apply, in order to ascertain and determine whether or not the appliance was in a fit and proper condition to be sent out. And if it did not appear in this case that the superior officers representing the company had knowledge of this careless and inefficient manner of making these inspections, and were unaware of the manner in which these inspections were being made, and took-no steps, as far as it appears in this case, to reform the method of inspection, we should coincide with the argument of counsel for plaintiff in error here,'and hold on the authority of Webb’s case and the Fitzpatrick case, to which I have referred, that the company would not be liable here; but inasmuch as it appears from the testimony of the inspector himself that those superior officers were aware of the hasty and imperfect manner in which these inspections were made, we feel that the company ought not to stand excused - from the responsibility for the negligence of these inspectors in sending out the train in the condition in which it was found.

It is not suggested nor intimated anywhere in this case, that the decedent was negligent in any respect whatever; that he omitted in any regard any duty incumbent upon him; and the allegations of the petition that he was free from fault in this matter are not denied in the answer.

In this connection I desire to call the attention of the bar to the settled and well established rule in a majority of the courts as to the duties imposed upon a railway company in providing and keeping in repair its machinery, as that rule is stated in the Northern Pacific R. R. Co. v. Hilliard, 116 U. S., 642. I read from page 647:

.“The general doctrine as to the exemption of an employer from liability for injuries to a servant, caused by the negligence of a fellow servant in a common employment, is. well settled. When several persons are thus employed, there is necessarily incident to the service of each the risk that the others may fail in that care and vigilance which are essential to his safety. In undertaking the service, he assumes that risk, and, if he should suffer, he cannot recover from his employer. He is supposed to have taken it into consideration when he arranged for his compensation. As we said on a former occasion: ‘He cannot in reason complain if he suffers from a risk which he has voluntarily assumed, and for the assumption of which he has paid.’ Chicago & Milwaukee Railroad Co. v. Ross, 112 U. S., 877, 383.

“It is equally well settled, however, that it is the duty of the employer to select and retain servants whu are fitted and competent for the service, and to furnish sufficient and safe materials, machinery, or other means, by which it is to be performed, and to keep them in repair and order. This duty he cannot delegate to a servant so as to exempt himself from liability for injuries caused to another servant by its omission. Indeed, no duty required of him for the safety and protection of his servants can be transferred, so as to exonerate him from such liability. The servant does not undertake to incur the risks arising from the want of sufficient and skilful co-laborers, or from defective machinery or other instruments with which he is to work. His contract implies that in regard to these matters his employer will make adequate provision that no danger shall ensue to him. This doctrine has been so frequently asserted by couits of the highest character, that it can hardly be considered as any longer open to serious question.”.

. And the learned judge who delivered the opinion in that case proceeds to review a vaBt number of cases sustaining' that position.

Here a fatal defect caused the death of a young man without any fault on his part; and it is a conceded fact that this defect had existed for a long period of time. It was a part of the machinery and one of the appliances which was furnished to this decedent for use while in the service of the company. While it is entirely clear in this state that the employment of competent and careful inspectors by the company will relieve it from responsibility for any negligence on the part of the inspectors in performing their duty, where the company itself is not in fault in that regard, yet if the inspectors negligently perform their duty, imperfectly perform the high trust imposed upon them, and which involves the lives and limbs of employes of the company, and this is known to the company, or to the officer who represents the company, or by reasonable care and diligence might have been known to them, the company would not be absolved from liability or responsibility under the circumstances which the testimony in this record tends to show.

The court in its charge to the jury called its attention to this rule of law:

“In considering the evidence, you will naturally first inquire in^what^manner and under what circumstances did the deceased receive his injury ? Having determined this, you will next inquire whether the injury resulted from any negligence on the part of the defendant. You will look at all the facts and circumstances shown by the evidence. If the injury was caused while the deceased was setting or attempting to set a brake attached to one of the cars, was the brake defective? If so, in what respect was it defective? Did the company know the defect, or was the defect of such a character, and had it existed for such a length of time, that the railroad company ought, in the exercise of reasonable care on its part, to have known it? It was the duty of the company to use reasonable care to provide and maintain for the use of its employes reasonably safe and suitable cars and apparatus. It did not guarantee the absolute safety and sufficiency of its cars and appliances, but it was bound only to use reasonable care- and caution, which is such a degree of care as is usually exercised under similar cricumstances by persons of ordinary prudence, or by corporations engaged in like business, and conducting it with ordinary care and prudence. What would be regarded by the good common sense of mankind as reasonable care, under all the circumstances, that is the measure of defendant’s duty.
“To charge the railroad company with negligence by reason of a defect in the brake or brake-wheel, which it is claimed caused the injury, it must be shown that the company had knowledge or notice of such defect, or that in the exercise of ordinary and reasonable care, as I have defined it, it might have acquired such knowledge or notice. Knowledge of the defect on the part of the company must be proved, or the defect must be of such a nature, and must have existed for such a length of time,that knowledge or notice may be reasonably inferred,”

There is also set out in the answer a contract entered into by the decedent at the time, it is said, he entered the service. The contract was given in evidence, and was attached to and formed a part of the bill of exceptions; and by its terms decedent undertook to perform certain duties in the way of examining the appliances upon the cars upon which he was to be employed. He bound himself to perform and discharge that duty in the manner that is here stated. He acknowledged the receipt of a copy of the printed orders, rules and regulations of the company, also a copy of this agreement; and he thereby agrees with the company, in consideration of the payment of the wages stipulated, “that I will, so long as I remain in its service, faithfully respect and obey all said orders, rules, and regulations, and all others which may be adopted, and of which I may have notice; and J do further agree, that I will for myself, in all cases, before exposing myself in working or in being on the tracks or grounds of the company, or in working with or being in any manner on or with its cars, engines, machinery or tools, examine, for my own safety, the condition of all machinery, tools, tracks, cars, engines, or whatever I may undertake to work upon or with, before I make use of or expose myself on or with the same, so-as to ascertain, so far as I reasonably can, their condition and soundness; and that I will promptly report, either to the superintendent of the company, or its agent, who may be my superior officer, any defect in any track, machinery, tools or property of the company, affecting the safety of any one using or operating upon or with the same.” There is a further stipulation which appears to have been erased, appearing in the agreement, which the supreme court of this state have held to be void and contrary to public policy. There has been no court which has held the objection good to the right to recover, based upon this provision of this contract.

It would scarcely be expected that a brakeman of a train made up in a yard where inspectors are provided should be looked to to make any careful investigation of a train of cars upon which he was about to be sent out; and over and above all that, it is not averred in the answer, nor alluded to anywhere in the testimony, that this brakeman was guilty of any negligence with regard to the provisions of this contract.

Then again it is denied in the answer that the decedent contributed to the support of these two sisters. It was alleged in the petition. The testimony tends to support the allegations-of the petition in that regard. It is also denied that the decedent was a resident of Lucas county at • the time of his death, and that the probate court of Lucas county had any power to grant administration upon his estate; but we can scarcely see how an appointment of that kind can be collaterally questioned in a suit of this character.

The verdict rendered in the case was for $1000 — a very moderate sum — and it does not appear that the jury, so far as this action was concerned, were in any manner influenced improperly, or in the considerations which should have entered into the determination of the case on their part, as to the amount allowed.

As to the only ground alleged in the motion for a new trial, that the verdict is not sustained by the evidence and is contrary to the law, I think I have sufficiently stated the views of the court upon the case to indicate that the judgment should be affirmed. It will be affirmed accordingly; but we think there was sufficient in it to justify the railroad company to appeal to this court, and there will be no penalty.

E. D. Potter, Jr., for Plaintiff in Error.

Scribner & Hurd, for Defendant in Error.


author: Smith, J.

text:
    (First Circuit — Hamilton Co., O. Circuit Court
    Jan. Term, 1898.)
    Before Cox, Smith & Swing, JJ.
    J. & G. ACOMB v. EDWARD CLARK AND THOMAS M. HUSSEY.

      Bill of exceptions to ruling on a motion during trial—

    (1.) The rule that a bill of exceptions can only be taken on the overruling of a motion for a new trial does not seem to apply in some cases where,during the progress of the trial, the judge rules on a motion; but while no motion for a new trial is necessary as to that particular ruling, a bill of exceptions taken to such a ruling must show that it contains all the evidence upon which the trial court acted.

      Erroneous dismissal of action for want of jurisdiction — Bill of exceptions not setting out the evidence—
    (2.) Notwithstanding the fact that a reviewing court can not consider a bill of exceptions that does not show it contains all of the evidence, it may reverse the action below in dismissing the suit for want of jurisdiction, if the record shows that the court had jurisdiction of the subject matter" and of the persons of the defendants.
    Error to the Courl of Common Pleas of Hamilton county.
   Smith, J.

The plaintiffs in error seek the reversal of a judgment rendered against them and in favor of the defendants in error on the ground that the court of common pleas erred in dismissing their action brought against Clark & Hussey, and in holding that the court had no jurisdiction of said action.

The original action was brought by the plaintiffs against Clark & Hussey to recover the sum of $816, the amount claimed to be due to them from said defendants on an account for services, held against them by one J. M. Giffen, and which account, for a valuable consideration, had been assigned by Giffen to the plaintiff, as the petition averred. The defendants filed an answer denying each and every alr legation contained in the petition.

On the issues thus raised the case proceeded to trial, and as appears by the transcript of the journal entries:

“At the trial of this case, after the plaintiff had introduced a portion of its evidence and the written assignment of the claim sued on, to it, the defendant moved the court to dismiss the action for want of jurisdiction of the subject matter of the action and of the parties; and on consideration whereof the court grants said motion, to all of which the plaintiff excepts.”

No motion for a new trial appears to have been filed, but in due time a bill of exceptions was presented and allowed, but there was no statement that it contained all the evidence heard in the case, and a petition in error was filed seeking the reversal of the judgment.

It is difficult to see how this court can, under 'these circumstances, consider this bill of exceptions, to see whether the order of the court dismissing the action was against the weight of the evidence, To do this it is necessary to file a motion for a new trial, and if this is overruled, the party aggrieved may have a bill of exceptions certified to contain all of the evidence. Where there has been a verdict of a jury or a finding of the court on the evidence, this evidence can only be brought upon the record by a bill of exceptions, taken on the overruling of a motion for a new trial, and, as has been said, the question whether the verdict or finding was against the weight of the evidence can only be passed upon by the reviewing court when it appsars that all of the evidence submitted below is in the bill of exceptions. It seems, however, to be the rule that in some cases where the court in the progress of a case rules on a motion, that no motion for a new trial as to that particular ruling is necesary, but the evidence may be incorporated in a bill of exceptions then allowed. But in such case, to raise the question properly in the reviewing court, the bill should show that it contained all of the evidence upon which the trial court acted.

In this case,if we were at liberty to consider the evidence in this bill, we would be of the opinion that the action of the trial court in dismissing the action was erroneous. There was evidence tending to show the validity and justness of the claim of Griffin against the defendants, and its assignment to plaintiffs for a valuable consideration, and there was nothing to controvert those facts. It is true that the assignment produced showed that when the claim was collected, plaintiff's were to pay the amount over and above the amount of their claim to other persons named, and if it had appeared that Griffin was insolvent, it might have operated as an assignment of the claim for the benefit of all his creditors, and in an action brought in the proper court and for that purpose.it might have been so declared. But there was no such evidence, and the court was not justified in dismissing the action.

W. A. Hicks, Geo. A. Turrill, and J. J. Acomb, for Plaintiffs in Error.

G. D. Robertson, contra.

If we can not consider the bill, how does the case stand on the record? The court clearly had jurisdiction of the subject matter and of the parties. It was an action to recover money, and the defendants were before the court and had filed an answer and had raised no question as to the jurisdiction of the court on the subject matter or of the persons of the defendants. How, then can the action of the court dismissing the action on the ground.that the court had no jurisdiction of the subject matter and the parties be justified? In our opinion, such action was erroneous, and the judgment of the court dismissing the action will be reversed and the cause remanded for a new trial.


text:
    (Sixth Circuit — Ottawa Co., O., Circuit Court
    Jan. Term, 1895.)
    Before Haynes, Scribner and King, JJ.
    THE LAKE SHORE & MICHIGAN SOUTHERN RAILWAY COMPANY v. FANNIE SHOOK, Adm’x.

      Brakeman knocked from car by overhanging bridge — Duty of It, JR. Oo. as to its bridges — Negligence of brakeman~

    (1) . A brakeman of a railroad company who for some length of time was employed on a certain route between two stations, while standing on a refrigerator ear, which are considerably higher than the common freight cars, was killed by his head coming in contact with an overhanging bridge, built in a street by the city of Toledo. In an action by his administrator for damages, held (1). The R. R. Co. was not liable.
    (2) . It is not the duty of the R. R. Co. to measure the height of its cars and overhanging bridges to ascertain the intervening space and to determine whether the .tallest man in its employ could safely in an erect posture pass under its bridges; nor is it the duty of the R. R. Co. to have its bridges erected at such an elevation that its tallest man can pass under them in an erect posture.
    3). It was negligence on the part of the brakeman to fail to ascertain whether he could pass in an erect posture under a bridge, the -character and height for which was plainly before his eyes.
    Error to the Court of Common Pleas of Lucas county.
   Scribner, J.

This is a petition in error, brought to reverse the judgment of the court of common pleas in a case in which Fanny Shook, administratrix, above named, was plaintiff and the Railroad Company was defendant. The action was brought in the court of common pleas to recover damages under the statute commonly known as Lord Campbell’s act, for negligently causing the death oí decedent, James A. Shook, who was the husband of Fanny Shook, was a brakeman in the employ of the railway company, and had been in their employ for a period of about two years prior to the accident which resulted in his death. He was killed on December 21, 1884, and it is alleged that his death was occasioned by his head coming in contact with a bridge which had been constructed and maintained for a number of years across the tracks of the railway company on the east side of the Maumee river, which is a point within the limits of the city of Toledo. At the time of his death, he was on the top of a freight train of cars and was engaged, as the evidence tends to show, in setting and unsetting or releasing the brakes.

The complaint is, that the company negligently put into its train of cars the car upon which the defendant was standing at the time of the accident resulting in his death, and that that car was of unusual height — a car commonly known as a refrigerator car — and was so high that a brakeman on its top, engaged in the prosecution of the business of the company, could not safely pass under the bridge- — -in other words, that he could not pass under the bridge standing in an erect posture on the top of the car without bringing his head in contact with the bridge. The bridge was constructed, perhaps thirteen years since, by the city of Toledo, and has been maintained by the city ever since. The company had nothing to do with its erection or in maintaining it; it was a structure erected and maintained by the city during all that period of time. The plaintiff below did not complain of the company for erecting or maintaining the bridge, but simply complained of the defendant for putting this car, or cars of the same character, into its trains, requiring the plaintiff’s decedent to prosecute the business of the company as a brakeman upon the top of such cars,and thus exposing him to danger without giving him notice of the danger to which he was exposed.

It appears that Mr. Shook was in the employ of the company as a brakeman for the period of about two years. There had been some intermission in this service, perhaps, but not for any considerable period of time. His “run,” as it is ordinarily called, was between Air Line Junction, lying to the westward of the Maumee river, and Collinwood, lying east of Cleveland.

The testimony shows that at the time Mr. Shook entered into the service of the company, the company had been in the habit of putting cars of the kind complained of — refrigerator cars — which ranged from one to two feet or more higher than the cars which were in ordinary use — -into its trains, loaded, as the testimony tends to show, at the packing houses, and were sent through to the eastward, and, when unloaded, were returned with the trains, mixed and intermingled with other freight cars as it happened. It seems that on Sunday morning, December 21, 1884, somewhere from eight to ten o’clock in the morning — as the train approached Toledo from the east, a signal was given to put on the brakes just before reaching this bridge at which the accident occurred. This was required because, about two hundred feet to the westerly of the bridge, was a railroad crossing of the Cincinnati, Hamilton and Dayton tracK which crosses the railroad of the Lake Shore Company at that point. The decedent was the rear brakeman. When the signal was given to put on the brakes, he had gone forward from the rear part of the train setting the brakes and he proceeded forward toward the middle part of the train — ■ which consisted of some forty or forty-five cars apparently —and when the signal was given to release the brakes again he had turned and was passing backwards towards the rear part of the train,letting off the brakes in order that the train might pass on over the river until it should approach the Wabash crossing just on the west side of the river. There is testimony showing that he was on the top of the car, letting off brakes, and there was the testimony of the witness Callahan, who says that he saw him in the act of stepping over towards the brake when he was struck by the side of the bridge and knocked from the end of the car down between the cars. The testimony shows that his body struck the ground — which was covered with snow — about fifty feet to, the westward of the bridge, indicating that he had fallen between the cars, and had either caught or been caught by some of the machinery or apparatus of the train, and been carried in that position until the train had j assed under the bridge and had reached a point about fifty feet beyond, when his body appears to have come in contact with the ground and was dragged fifty feet further, where blood was found upon the ground. He was found upon the front end of the car upon the north side of the train — a car known as a Red Line car, immediately in rear of the refrigerator car, which the testimony of Callahan shows he was standing upon immediately before. He was found under the end of the. car close in the vicinity of the forward wheel and caught by the brake, his head to the westward, in the direction in which the car was going, badly mangled, badly injured, and his legs crushed. He was taken out, taken to a hospital, but died almost immediately after he was taken from under the cars. His hat was found between the draw bars of the refrigerator car and the Red Line car immediately in the rear of it, and was “pinched,” as the witness states it, between the draw bars.

It is disputed on the part of the plaintiff in error that the defendant was knocked from the car by a bridge; it is insisted that he slipped and fell from the car, and that the testimony of Mr. Oallahan in that particular is not worthy of credence, from the fact that it is said he made no report of the transaction; that he didn’t go to the spot where the man had fallen and paid no attention to it; that he was at the spring getting water, and went home, and it is farther insisted that there were no marks upon his head to indicate that his head had come in contact with the bridge.

Without going very carefully into that branch of the case, it is sufficient to say that we do not feel warranted in finding that the verdict of the jury in this particular, was contrary to the weight of the evidence; it was for them to give such credence to the testimony of Mr. Callahan, who testified directly upon this point, as they felt it their duty to do in the light of other testimony attending the transaction, and we assume, for the purpose of the view we take of the case, that Mr. Shook was knocked from the top of the car by his head coming in contact with the bridge, as is claimed on the part of the plaintiff below.

But the principal question is — the great question in the case, is, as to whether or not the jury were warranted in finding, from all of the testimony in the case, that the company was guilty of negligence in putting the refrigerator car into this train, as it had been accustomed to do during all of the period that Mr. Shook was in the employ of the company upon this road, and whether or not Mr. Shook was not chargeable with knowledge of the danger to which he was exposed in passing under this bridge at the time this accident occurred, so as in a measure to have waived any objection on his part against the action of the company in placing such cars in its trains, and whether he was not guilty of contributory negligence in not taking care of himself in passing under the bridge and in his collision with the bridge.

The testimony shows that a man of Mr. Shook’s height —about five feet eight inches, in the neighborhood of six feet — standing upon the top of one of these refrigerator-cars, could not pass under it in an erect position without his head coming in contact with the bridge. By stooping somewhat, he could have passed in safety under the bridge. It seems that upon a great many of the cars that the company was accustomed to carry in its trains which passed under this bridge, there was no difficulty for a man of his height standing upright in passing under it without exposing himself to actual contact with the bridge; but upon cars of this height, a man could not pass under the bridge without coming in contact with it unless he stooped somewhat in order to avoid danger.

As I have said, testimony shows very clearly — -and it is uncontradicted — that the company had been accustomed to place cars of this structure and of this height in its trains, and intermixed them promiscuously with its other cars. Mr. Shook had been accustomed to pass under this bridge nearly every day for a period of nearly two years. It was essential, was usual and was required that in approaching this bridge the brakeman should set the brakes before passing under the bridge, by reason of the crossing which I have spoken of — the Dayton and Michigan cossing — which was only about two hundred feet to the westward of the bridge, so that upon every occasion when Mr. Shook approached this bridge from the east, his duty required him to be upon the top of the train to set the brakes before approaching the bridge, which was plainly visible to him, and then to loosen the brakes after the stop had been made, to proceed across the bridge and then set the brakes for the Wabash crossing on the western side. He was accustomed to pass under the bridge upon every trip he made, either from Air Line Junction to Oollinwood or from Gollinwood to Air Line Junction. The nature, the character of the bridge was visible for some several hundred feet in either direction, and it seems to us that it was absolutely impossible for a man so employed and passing daily under the structure — -required to stop his train in the vicinity of the structure, passing sometimes upon cars of one height and sometimes upon cars of another height, it seems almost an impossibility that a man so employed should not be able to see and appreciate the danger to which he was exposed by reason of tihs structure.

A great many cases have been cited on the part of'counsel for plaintiff in error in this case, to show that under such circumstances the railway company cannot be held responsible; and, indeed, the court in its charge to the jury, said to the jury in this case that if the plaintiff’s decedent knew, or by the exercise of reasonable care should have known the danger to which he was exposed, that there was no liability upon the part of the company. But the jury, notwithstanding this instruction on the part of the court, and notwithstanding the fact that Mr, Shook was thus daily engaged in passing — approaching and passing this bridge upon trains of cars made up in part of the identical car upon which he was standing at the time this accident occurred, must have disregarded this instruction of the court to the jury.

Among the numerous cases which were cited, was Wells v. Railway Co., 56 Iowa, 520, which decides that:

“Where it was shown that a brakeman, who was knocked from the top of a car by a bridge, had been employed on the same portion of the road for several years, and knew the height of the bridges, but remained in the service without protest, it was held that he thereby waived the negligence of the company in that regard.”

And a very interesting and instructive case is found in 92 Penn. St., 279, which was decided by Chief Justice Sharswood,and Justices Mercur,G-ord.on, Paxson and Turnkey. This was the same kind of a case- — -where a man was killed by coming in contact with a bridge. In the opinion, the court use this language:

“The bridge by which young Sentmeyer was killed was fifteen feet and six inches in height from the top of the railroad rails, whilst the height to the cars varied from nine to ten and one-half feet; thus, for the lower cars, the bridge was sufficiently high, but for the higher ones, several inches too low.”

This is precisely the case here.

“Sentmeyer had been for several months previous to the accident, employed as flagman on one of the trains of this road, and therefore had, or ought to have had, knowledge of the height of the cars used upon it,and also of the height of this bridge. These were matters which addressed themselves to his own observation, and, as we have already said, for the prudent exercise of that observation he was responsible. But did he give such attention to the dangers to which he was exposed as an ordinarily prudent man should have given to them? Certainly not, or the accident would not have occurred. He had almost every day for a month passed and repassed under that bridge.”

In our case, it had been almost every day for two years. J‘He knew just where to look for it, and if he paid, any attention to it whatever, he must have known that when standing at full length upon a car of medium height, say nine feet six inches, that there was but an inch or two between the bridge and the top of his head. What shall we say, then, of that man’s prudence who would thus risk his life on the difference of two or three inches in the height of a car? But the court below held the company rigidly to what it regarded as its duty in regard to the bridge, without any reference to the duty resting upon the deceased to give heed to a known and obvious danger, and prudently care for himself. ” * * “‘If the jury believe from the evidence that it was required of the employes of the company,of the same class as Sentmeyer, and was usual and customary for them to be on the top of freight and stock cars whilst in motion, and the defendant permitted a bridge to be erected and maintained over its track of a height insufficient to allow the safe passage of persons while on the top of such freight or stock cars, and that while on the top of such cars Sentmeyer was knocked off and killed while in the service of the company; they may find that the death of Sentmeyer was caused by such negligence of the company, as would make it liable to the plaintiffs in damages therefor. ’ This point was affirmed without qualification, and it amounts to an instruction that the defendant was bound to have all the bridges, crossing its road, of such a height that whether its employes were careful or negligent no damage could result to them therefrom.”

“But what is the logical result of a doctrine such as this? Is it not, that the company must not only guard its servants from probable, but also from possible dangers, and that it must place no dependence on their care and skill even in the matter of their own preservation and personal safety ? That it must provide against their very negligence and become an insurer of their limbs and lives? We need not say this will not do; that neither natural nor artificial persons can bear such a burden as this, neither ought they so to do. When men are hired, something must be predicated of their judgment and prudence, and, hence, when the employer furnishes them with tools and appliances, which, though not the best possible, may, by ordinary care, be used without danger, he has discharged his duty,and is not responsible for accidents. ’ ’

And among the cases cited, is also B. & O. R. R. Co. v. Stricker, 51 Md., 47, which, in many particulars, resembles this case. The Chief Justice, in delivering the opinion, says:

‘‘This suit was brought by the appellee to recover for injuries received by being carried against a bridge, spanning the appellant’s road, while he was on top of a ‘house car,’ in the discharge of his duty as conductor of a freight train.
‘‘It appears from the evidence, that the appellee entered the service of the company in 1867, as brakeman on freight trains between Martinsburg and Baltimore. In July, 1869, he was promoted to be conductor of freight trains on the-same section of the road, and continued in that employment till the time of the accident. In that capacity it was his duty to assist at the brakes.
“When the appellee first went upon the road, the house cars of the company were from nine to ten feet high; about the year 1869, connection with western roads began to be formed, and higher cars were introduced from the west. The company also began to construct new cars, which were ten feet ten inches to eleven feet high, and the western cars, sometimes used, were eleven and a half feet high. The plaintiff testifies that some of the new cara were on the road whilst he was brakeman; the number of these was increased, and they were m general use after 1872 or 1873. They were constructed with the brakes on top, and to manage the brakes it was necessary to be on top of the car. In 1872, the old bridge was removed, and a new bridge built, which was of different construction, and of about the same height as the old one, that is to say, seventeen feet four inches high, measuring from the railway to the struts or lowermost timbers of the bridge.

It was at that bridge that the plaintiff in that action was injured.

“The accident happened in this way: The appellee was assisted by one brakeman, who remained behind to lock the switch; the appellee being specially charged to see that this important duty was performed, held the train waiting till it was done. He was standing on the sixth or seventh car from the rear of the train, looking back to see the brakeman lock the switch, and for his signal; when he saw this, he immediately signalled the engineer to go on, and began to let off Ihe brakes as far back as the house car, which was the last car except the caboose. He had got on top of it about the center, and was walking towards the brake, for the purpose of letting it off and then going into the caboose, when he was struck by the strut of the bridge, his back being then turned towards it.
“The appellee testified that he had never heard of any one having been struck by this bridge, before he was struck; that no one on the part of the company had ever told or notified him that this bridge was too low; that he did not know its exact height, but supposed that the struts were high enough to clear a man standing on top of such a car as he had. Had never before had occasion to be adjusting the brakes, to be walking on top of a car as he was passing under that bridge. Had been on the siding often before, but had never started from it on his trips; had always started from the station, and that gave him ample time to have the brakes adjusted before he got to the bridge. * * * There were no signal ropes to warn persons approaching the bridge,. such as were used at some of the other bridges.
“On the other hand a number of witnesses, examined by the defendant, conductors, brakemen and engineers, employed on the same section of the road, testified that this bridge was too low to allow a tall man to pass under it, standing upon a house ear.”

It may be seen that this bridge was so low that the plaintiff, being nearly six feet high, could not pass under it, yet that other men of less height, could pass under it — though it might be pretty low, without their stooping some.

“That this fact was plainly visible and obvious to any one passing under it, and that it was the habit of brakemen and conductors, when on top of a house car, to stoop or remain seated while passing under the bridge. Two of them, Bierman,the engineer, and Dixon,the brakeman, who were on the same train with the appellee when he was struck, both testify that they had often seen him stoop down when passing under the same bridge. And the appellee himself stated in his testimony that he was down on the gondola car and never thought of the bridge; if he had known how near he was to it, he would not have gone on top of the house car, and if he had seen the bridge,he would have sat down, ” etc.

The court, after making this statement of the facts of the case, say this:

“As to alleged negligence on the part of the company. In what did this consist? It was said it was negligent in constructing the bridge,” (it will be observed that all these bridges were maintained by the company), “so low that a conductor or brakeman could not pass under it in safety on the top of a house car, where his duty required him sometimes to be.
“But there is no evidence to support this position; on the contrary,all the proof shows that the employes of the company, and the appellee among them, every day passed under the bridge safely by observing the simple and easy precaution of stooping or sitting down while.passing under the bridge.”

In this case it does not appear that any person had ever been injured on this bridge on any occasion.

“No negligence can be imputed to the company because the struts of the bridge were not high enough to allow a person to pass under them standing upright on the top of the cars.
“It was not required of the appellee to stand on his feet while passing the bridge; he was in that position, according to his own statement, because his back was turned towards the bridge.” He did not think of it, and did not know he was near it; “but he knew it was there; it was in full view only a few moments before, when he started his train from a point only 200 or 300 yards distant. * * * ”
“Some stress has been laid by the appellee’s counsel on the fact that when the appellee entered the service of the company, in 1867, and for some years afterwards, the cars in use were of such size and structure, that no danger whatever was incurred by standing on the top of them in passing under the bridge, and that afterwards higher cars were introduced, upon which a person could not with safety stand erect while passing under the bridge, and this change is relied on, as an unwarrantable increase of risk and danger to the appellee, after he had entered the service of the company.
“Many cases have occurred, in which it has been held to be the duty of the employer to give notice or warning to the employe of increased risk or danger to which he may be exposed where a change has been made in the nature of •his duties, and a failure to give such notice or warning has 'been held to render the employer liable for the consequences; but this principle has no application to the present •case. It is applicable where the increased risk or danger to the employe arises from causes hidden and secret, and •such as would reasonably escape his observation. * * *”
“We think the evidence tended strongly to prove that the accident was caused by a want of reasonable care on the part of the appellee; but we do not rest our decision on this .ground. In the midst of his preoccupation with his duties, he might be excusable for losing sight of the danger menacing him at the moment. But this peril was one incident to the employment, in contemplation at the time of the contract, and arising from causes open and obvious, the dangerous character of which he had an opportunity to ascertain, and the risk of which he assumed.”

Here it is very probable that this man, who was in a position to know as well as any person possibly could know without having made an actual measurement of the difference in the height of the cars and the height of one bridge —he was in a position to know better than any person could know except where such measurement had been made— what precisely the danger was to which he was exposed in passing under the bridge on the top of that car, and it may be that for a moment, engaged in letting off these brakes, his mind was so preoccupied that he forgot the danger; but, notwithstanding, it was one open and apparent to him, and the risk was one which, with the knowledge he must have had, he assumed to himself.

The only other case to which I will refer is Owen v. Railroad Co., 1 Lansing, 108, affirmed subsequently in the court of appeals. I will read only one paragraph from the opinion of the court:

“The risk of injury, by means of the passage of the train of cars under the bridge in question, must be held to have been assumed by the plaintiff when he entered the defendant’s service as a brakeman on the train. He had been in the defendant’s employ in the same capacity, and upon the same train, before the present employment for a year or more, at which time he had passed daily under this same bridge, which has been at its present height ever since the road was constructed. The danger was open and obvious, and within the plaintiff’s personal knowledge when he entered defendant’s service the last time. It was a danger clearly incident to the service he undertook to perform. He knew, as well as his employer, the perils of the business, at least as respects the bridge in question, and the law will imply that he assumed the risk of personal injury.’’

As I have stated, there are many more cases which tend stmngly to support th doctrine.

Upon the part of the defense, a case in 104 Indiana is cited, and which we have examined.to some extent, contravening the doctrine of the current of authority. But that case was decided upon a demurrer to the petition in which the averments upon which the plaintiff there relied for recovery, made a strong case against the railroad company, and on the demurrer admitting the facts so alleged, it was held by the court that a case was made which would entitle the plaintiff to recover if the facts stated were proved. The court in that case held and considered that they would depart somewhat from the general doctrine as laid down by the authorities, and used somewhat strong language in regard to what they call “man traps.” The bridge there, however, had been constructed and maintained by the company itself.

A case is cited from Kansas, found in the Pacific Reporter, where a conductor was injured by coming in contact with a bridge while on top of a train. It appeared in that case that a man might safely pass in an erect position under the bridge while standing on the flat portion of th train, but was exposed to danger of contact while upon tb e other portion of the train. Cider, the conductor, testified that he had no knowledge that there was any danger, and that he had only been passing along that part of the road for ten months,and that only once upon the top of the cars in passing under the bridge.

It is argued here with a good deal of force that it was the duty of the railroad company to ascertain and to report to its employes — to ascertain whether there was any danger in passing trains of cars with a brakeman upon the top, discharging his duties, under this bridge, or similar structures, if they were found to be dangerous, and give actual notice to its employes of the danger to which they were exposed; but, unless the company should make an actual measurement and ascertain with precision and-exactness the height between the top of the rail and the structure above — between the top of the rail and the height of the cars — and ascertain precisely what space there was; unless they made an actual measurement, unless they were required to do that, and did do that, the officers of the company were not in a position to know what that distance was, nor could they be as well informed upon that subject as a man who was in the habit, upon the top of a train of cars, of passing under the bridge. A man in that position, looking as the train approached the bridge, is in a far better position to know what th« danger is than any of the officers or agents of the company could possibly know, except they took pains to make an actual measurement of the intervening space, and a man upon the top of a train of cars approaching and passing this bridge, stopping his train, setting his brakes and letting them off again, in passing under it, was in a position where it would seem he must have known, and could not have avoided knowing, unless he shuts his eyes, precisely the danger to which he was exposed; and if he passed under this bridge standing erect upon a train of cars which were two feet or eighteen inches lower than the refrigerator car upon which he was hurt, he could not fail to see how near his head would come to the bridge under which he was passing; and he could not fail to see when these trains were made up of these different cars, of different heights, the difference between the height of ordinary cars and the tops of these refrigerator cars.

So it seems to us that, upon the testimony in this case, it appears beyond all reasonable doubt or question, that the defendant must have known the danger to which he was exposed in passing under the bridge.

We have looked through the charges of the court,and we see no reason to complain of the instructions which were given except in one particular. We think that the exceptions which were taken to various portions of the charge were not well taken.

There were some requests made by the defendant below which we think were substantially correct,and which should perhaps have been given; but they were, in substance, given in other requests; so we think the defendant below — -the railway companj — -has no reason to complain except of the action of the court in giving the fourth request of the plaintiff below, which is in these words:

“The defendant, the railroad company, was in duty bound to ascertain whether the cars in its trains would admit of a safe passage by the brakemen under the bridge before running its trains with brakemen under the same while such brakemen were in the discharge of their duties as such.”

That is to say, the jury were instructed by the court that it was the duty of the company to ascertain whether a brakeman standing erect upon the top of any one of its cars passing under any one of the bridges which spanned its track, under this bridge more particularly as is mentioned in the request, whether he could pass safely in an erect posture under the bridge. It imposes upon the railroad company a duty of making an actual measurement to ascertain the intervening space, and to determine whether or not the tallest man in the employ of the company could pass in an erect posture in safety under that bridge. Now. we do not think that any such duty as that devolved upon the railroad company. We do not think that it was bound to go about measuring its cars — the height of them — and measuring the space between the top of the rails and the lower portions of any bridge overhanging its track to ascertain exactly whether such brakeman could pass in an erect posture, in safety, under the bridge. We do not understand that it is the legal duty of the railroad company to have its bridges —even where it constructs its own bridges — erected at such an elevation that the tallest man may pass safely under them without stooping. We think that the question should have been left for the jury to determine whether or not the railroad company was guilty of any negligence in this particular — that is to say, that the jury should have been instructed to determine whether or not the railroad company, in the exercise of ordinary care in reference to these circumstances, had discharged its duty in this particular. But here is the doctrine stated that it was the absolute duty of the defendant to ascertain whether the cars in its trains would admit of the safe passage by the trains under its bridge before running its trains with brakemen upon them under the same while such brakemen were in the discharge of their duties as such.

Now, was it not the duty of this brakeman to know whether or not he could pass in safety under this bridge when he was in the habit of passing under there every day ? If it was not negligence of the brakeman not to ascertain whether or not he could pass under a structure plainly visible before his eyes, how could it be asid that the company was negligent in not ascertaining that fact? We think that while the brakeman was so employed as that it was plain before his eyes what the character of the structure was, and what its height was, if it was not negligence upon his part to observe that danger, there would be no negligence on the part of the railorad company in failing to observe the danger, because we do not think it was incumbent upon the company to make actual measurements in such a case as that.

There is one exception taken by the plaintiff in regard to the ruling of the court in rejecting the testimony of the coroner, Dr. Hollister, upon a certain point. The doctor was asked to give his opinion as to the manner in which the deceased met his death — In other words, whether he was knocked off the train, or whether he slipped off the train. We do not think that was a question for a medical expert to decide upon; therefore it was properly excluded. But for error in giving the fourth request by the plaintiff, and because we think the verdict not sustained by sufficient evidence, and contrary to law, the judgment will be reversed and set aside, and the case remanded for a new trial.

Counsel: I would like to know if the court passes substantially upon the motion made by counsel to take the case from the jury. ■

HJThe Court: Yes; we affirm the action of the court in refusing to take the case from the jury under the testimony. The only error we find is the charge of the court in the particular excepted to and in the refusal to grant a new trial upon the ground that the verdict was contrary to the evidence and to the law.


author: SOEIBNEE, J.

text:
    (Sixth Circuit — Lucas Co., O., Circuit Court
    Jan. Term, 1895.)
    Before Haynes, Scribner and King, JJ.
    STATE EX REL. WILLIAM V. McMAKEN, Treasurer of Lucas County, Ohio, v. CHARLES E. TUAL, Sheriff of Lucas County, Ohio.

      Mandamus in circuit court to control action of sheriff under writ issued by common pleas, not entertained—

    (1) . The circuit court of Ohio has original jurisdiction in mandamus proceedings. But where a writ is issued in a case pending in the court of common pleas, and under its authority, over which that court has full control, the circuit court will not entertain a proceeding in mandamus to direct the sheriff how to proceed under such writ and thus interfere with the authority of the lower court.

      Mandamus aslced, in effect an injunction, not entertained in circuit court—

    (2) . A proceeding instituted in the circuit court as a mandamus proceeding, the r3al purpose of which is to restrain the defendant from doing a specific thing, and which therefore is in effect a proceeding for an injunction, will not he entertained, as the circuit court has no original jurisdiction in injunction proceedings

      Mandamus.
   SOEIBNEE, J.

This was a proceeding in mandamus against Charles E. Tual, as the sheriff of Lucas county, Ohio.

The relator sets forth in his petition that he is now and has been since the third day of September, 1894, the duly elected, qualified and acting treasurer of Lucas county, Ohio, and as such treasurer is the successor of Samuel A. Hunter, late treasurer of Lucas county, Ohio.

That the defendant is now and has been since the fisrt day of January, 1894, the duly elected, qualified and acting sheriff of Lucas county, Ohio.

Relator further says that by the consideration of the common pleas court of Lucas county, Ohio, in cause No. 33481, wherein Samuel A. Hunter, treasurer, was plaintiff, and John R. Osborn et al. were defendants, the said Samuel A. Hunter, treasurer,recovered judgment against asid John R. Osborn et al., defendants, and a decree ordering the sale of lot No. one (1) Boody’s addition to the city of Toledo and said Lucas county, Ohio.

That thereafter, and after the said Samuel A. Hunter, treasurer,had been succeeded in office by the relator herein, Jason A. Barber, attorney for the relator, filed a precipe for an order of sale in said cause No. 33481, and thereupon the clerk of said common pleas court caused to be issued to the sheriff, defendant herein, an order of sale, directing faim to appraise and sell said lot No. 1, Boody's addition to the city of Toledo aforesaid, a copy of which order of sale is hereto attached,marked “A”.

Relator further says that thereafter, and on, to-wit, the first day of February, 1895, the said sheriff, defendant herein, caused said appraisal and notice of sheriff’s sale of said lot No, 1 aforesaid, to be published in the “Toledo Legal News, ’’

The relator says that the said Toledo Legal News is not a newspaper printed and of general circulation in the county of Lucas, but is a technical publication solely for the use of the courts and lawyers of the bar of said county, and devoted specially to the interests of the legal profession; that said the Toledo Legal News contains no matters of general interest, but is simply a record of the proceedings of the-several courts of said county, and of advertisements, including some of the decisions of the several courts of the state of Ohio, and occasionally other states, a court directory, cards of attorneys and counsellors at law, a list of transfers of real estate in Lucas county, Ohio, the chattel mortgages filed in the city of Toledo in said county, and some miscellaneous advertisements and hotel arrivals, and except as above it does not publish or assume to publish the current news or news of the day.

Relator further says that there are newspapers printed and of general circulation within said county, in which said notice could have been published as required by law, but that the said Charles E. Tual, sheriff, defendant herein, refuses, though requested so to do, to publish said notice in any other publication than the said Toledo Legal News, and the relator says that such publication of said notice of sale is not and will not be a legal publication of said notice, and a purchaser under such sale will not acquire good title to said lot.

A copy of the said Toledo Legal News of the date the first of February, 1895, is hereto attached and marked “S.”

Next'follows the prayer of this petition:

“Wherefore the relator prays that a writ of mandamus may issue, commanding the defendant, as sheriff of Lucas county, that he proceed according to law to publish said notice of the sale of said lot in a newspaper printed and of general circulation within said county of Lucas, in accordance with the statute in such case made and provided.”

The petition is duly verified,and a copy is attached of the paper mentioned in the petition, and a copy of the execution issued showing that a judgment was recovered in the-court of common pleas; and that the execution was issued by the clerk of that court to the sheriff of Lucas county, the-defendant in this proceeding, as alleged in the petition.

And then follows the answer of the defendant, the sheriff of Lucas county, which is quite voluminous in its nature, and in which it is admitted, among other things, that the plaintiff is the treasurer of said county; that the defendant is the sheriff of said county; that a decree was recovered in the court of common pleas as alleged in the petition; thaf; an order of sale was issued to him as stated,and that he hag caused the notice of sale to be published in the Toledo Legal News, as in the petition alleged; and various other matters are admitted in the anwser, and some allegations of new matter are set forth in the answer.

The case was argued before us quite fully upon the testimony which was submitted and upon the legal propositions which were involved in the case, and we have given to the examination of the case much consideration. We have examined very carefully and fully all the authorities which have been referred to, but, at the very outset of the investigation, we have come to a question which seems to us to be of paramount control and importance in the case, and that is, as to whether or not the court has jurisdiction to grant the prayer of this petition ?

The statute provides, section 6742: “The writ of mandamus may be issued by the supreme court, the circuit court, or the common pleas court; and although it may require an inferior tribunal to exercise its judgment, or proceed to the discharge of any of its functions, it cannot control judicial discretion. ”

There is no question but what the circuit court has jurisdiction in mandamus proceedings under that statute, and that is conferred by the constitution as well as by the statute upon the circuit court; but, an important question arises in this matter; it seems that according to the undisputed allegations of the petition, the treasurer of the county recovered a judgment against the defendant named; and, upon that judgment execution was issued upon the order of the plaintiff by the clerk of the court of common pleas in which the judgment was recovered, to the sheriff of the county,commanding him to proceed in the manner pointed out by the statute to enforce the decree — make the- judgment.

Now the circuit court is asked, by virtue of the power committed to it, or conferred upon it, both by the constitution and the law in regard to proceedings in mandamus,to require the sheriff in executing his process, not to advertise (because that is what it amounts to) the sale which would be required under the execution, in a particular paper, The petitioner in the mandamus proceeding insists that the sheriff is about to advertise in a publication known as The Toledo Legal News. The statute requires, as stated in the petition, that notice of a sale under process issued upon a judgment shall be given by advertisement in a newspaper printed and of general circulation in the county. The averment of the petition is, that the sheriff has advertised, but not in a newspaper of general circulation in the county, and this court is asked to do, what? To require the sheriff to proceed, in the language of the prayer of the petition, “To proceed according to law to publish said notice of the sale of said lot in a newspaper printed and of'general circulation within said county of Lucas.”

The averment in the petition is that the paper in which the sheriff is proceeding to advertise is not a newspaper printed and of general circulation within the county of Lucas, and this court is asked to compel him — -require him— to proceed to advertise it, not in any particular newspaper, but in a newspaper of general circulation in the county, it being averred that the paper in whieh the sheriff is proceeding to advertise his notice of sale, is not a newspaper printed and of general circulation in the county.

Now, in the first place, the writ which the sheriff is proceeding to execute is a writ issued to him by the court of common pleas. It does not issue from this court; it is a process over which the court from which it is issued has full control and in regard to which the court may order and direct the sheriff as to it shall seem right and proper in obedience to the requirements of the law, and it would seem therefore, possibly, proper that that court whose process is 'handed to the sheriff for execution, — if he is directed by any ■authority- — -that he should be directed by the court of common pleas.

Suppose, for example, the sale should be made by the •sheriff upon’"the writ in his hands. The court of common ■pleas is called upon to approve and confirm that sale; the ■sale is not complete until it has- been confirmed or approved ’by the court of common pleas. Could this court, by any proceeding known to the law, interfere with the action of the court of common pleas in that case, for a sale made or 4¡h-e return of a sale made, by the sheriff of the county? It would seem to us very difficult to sustain a proposition of that kind.

In a case referred to, in an early volume of the Ohio Reports, cited in argument, a sale was set aside by the court acting upon the return of the sheriff.

In the cases cited during the argument, all of which we have examined, we find, in some instances, that a reviewing court has acted upon the return of the officer and reversed the judgment, or affirmed it, as circumstances, might seem to require; or there has been a direct application in the court itself where the process was issued and returned and which afterwards came up under review by the appellate court; but we find no case in which the courl has-undertaken, by a writ of mandamus, to order the sheriff to, advertise in any particular publication and sell property under a writ issued to him from another court.

The cases bearing upon this subject may be found collected in Merrill on Mandamus, in section 84, and cases to some considerable extent are there cited.

But, again — as already stated- — -this court, if it made an order under this petition, would have to make it in conformity to the prayer of the petition,. And that is what? The court would have to require the sheriff to proceed to advertise in a newspaper printed and of general circulation within said county fo Lucas. This court would not undertake to point out a paper in which the sheriff should advertise, But, practically, upon the statements contained in the petition and the grounds assigned for the interposition of the court, a mandate to advertise in some other paper than the Toledo Legal News, would be in effect equivalent to an injunction forbidding the sheriff to advertise in the Toledo Legal ISlews, for the reason, as is alleged, that it is not a newspaper printed and of general circulation in the county. The court cannot, under any view of the law that it can regard, require the sheriff to advertise in any particular paper, but it ia asked to command the sheriff, not to advertise in this particular paper.

Now, this court has no original jurisdiction in injunction proceedings- — -that is to say, an action cannot be brought in this court for an injunction originally, nor can an action be brought in the court of common pleas and an application be made to this court to grant an injunction; it has not the power to do it. As suggested in a case reported in the 50 Ohio St. — State ex rel.v. Hahn, 714, which was a proceeding brought to require the authorities to accept a certain sum as the amount of taxes due instead of an amount which was claimed on the part of the superintendent of insurance. This rule is laid down in the syllabus of the case:

“Under section 2745,Revised Statutes,as amended April 19, 1893, a regular mutual life insurance company, incorporated under the laws of another state, and doing business in this state, and having filed its sworn statement in the office of the superintendent of insurance within sixty days after January 1st, 1893, as required by sections 3606 and 8608, is required to pay to the superintendent of insurance in the month of December, 1893, such sum, as added to the amounts paid to the different county treasurers, will produce an amount equal to two and one-half per cent, of the gross premiums and assessment receipts of such company for the year 1892, as shown by such statement filed in the department' of insurance.! ’

And now here is the proposition:

“Mandamus is not the proper remedy to test the question of the amount of taxes to be paid to the superintendent of insurance under section 2745,Revised Statutes, and to prevent the superintendent of insurance from revoking the license of an insurance company to do business in this state. Injunction is the proper remedy in such case.”

In that case, after setting out the facts upon which the relator relies as entitling him to a reduction of the amount of the taxes claimed, he prays in his petition: “That the superintendent be commanded to receive and permit the filing of said supplemental statement, and to accept said sum of $1,957 as payment in full of all demands on the relator. ” The court in its opinion goes into the construction of the statute and the rights of the parties under it, and overrules the demurrer which the relator filed to the answer of defendant. Practically the result was a decision of the case, so far as the principle involved was concerned, in favor of the defendant, the superintendent of insurance. But Min-shall, Judge, when he comes to give his views upon the matter, says:

“This court has original jurisdiction in quo warranto, mandamus,habeas corpus, and procedendo,and none other. It has no original jurisdiction in matters of injunction, and none, can be conferred by the legislature. To assume it in any case, is simply judicial usurpation. This is a suit for an injunction in the form of a proceeding in mandamus. The form, however, is nothing; it is the substance which gives real character to the proceeding. Hence this court has no, jurisdiction of the subject matter of the suit, and it should be dismissed for want of jurisdiction. I should not, probably, differ from the construction placed on the statute by the majority, if the case were before us in a proceeding in error; but it is not, and the construction given can only be regarded as an extra judicial opinion. ’’

This is precisely the view that we take of this case. We are-constrained to take that view of it, It is, although, in form, a proceeding in mandamus — a proceeding to require the sheriff to perform the duty imposed upon him by law in the way of advertising — it is practically a proceeding to enjoin him,or to forbid him, from advertising in the Toledo Legal News; which, in our judgment, is simply, in substance, though not in name, a proceeding for an injunction against the sheriff, in which we have no original jurisdiction.

Now, while we regret that the rule of law leads inevitably to this conclusion, we cannot avoid the duty of declaring what in our judgment the law is.

Under this view of the case — and which we have considered with very much care and after a thorough examination of the authorities — our judgment is that the petition must be dismissed for want of jurisdiction.