text:
    Stout, Appellant, v. Wagner, Appellee.
    (No. 1976
    Decided November 24, 1948.)

      Messrs. Matthews & Altich, for appellant.

      Messrs. Harshman & Young, for appellee.
   Hornbeck, J.

Plaintiff appeals on questions of law from a judgment of the Common Pleas Court dismissing her petition, upon a verdict of a jury for the defendant.

The action was for personal injuries sustained by plaintiff when she was struck by an automobile driven by defendant. The collision occurred on the north crosswalk on South Main street, Dayton, Ohio, at the intersection of South Main and Fourth streets.

Plaintiff--¡was moving/, from the east, side-of: South Main street on the crosswalk, intending to cross, to. thg west side, of ..the street, defendant was moving, southwardly on South Main-street and approaching Fourth street, in the middle' strip' of a three-way lane in the west half of South Main street. The collision occurred after the plaintiff had reached a place on the crosswalk in front, or to the left side, of the left fender of defendant’s automobile.

The principal isstie' between the parties arises upon the respective obligation of each party in the situation presented at the time of impact.

Eight errors, are assigned, all of which except Nos. 7 and 8 may be encompassed under two headings; namely, (1) refusal to give certain special instructions before argument upon request of plaintiff and error in the general charge and (2) the giving.of special instruct tion No, 1 before argument upon request of defendant.

-. The case-made by the-plaintiff upon her testimony is not that which is pleaded in her petition. She stated, 32 times, that prior to.and- at the time she was struck she had the green traffic light in her favor; that she waited on the east side.of South- Main- street until the light changed to green, then stepped off the curb onto the street and.hurriedly.walked on the,crosswalk:across the street anc had almost,,attained, the; west-side ,of* the street when she was struck by defendant’s automobile. Thq re-fis, consistency,in her .statements because- site: had 17%;,seconds from.the, time the signal changed to green until,it. flashed amber, anclif §he had hurried she would; in probability, have reached the place where she. - was struck before the change,in the signal light;-to-amber. Had,she- ;so pleaded, she would have been- entitled, tcj have, her theory of-her case,presented to-the jury, al-t though other testimony from. her own. witness was not in accord with hers. Painesville Utopia Theatre Co. v. Lautermilch; 118 Ohio St., 167, 160 N. E., 683; Pope, Admx., v. Mudge, 108 Ohio St., 192, 140 N. E., 501. Plaintiff, however, pleaded that • at the time she was walking in the crosswalk the traffic light exhibited a green signal for traffic and pedestrians proceeding westwardly; and “that when said traffic light changed to green for southbound traffic on Main street said defendant proceeded forward into said north crosswalk without permitting plaintiff to. proceed the- rest of the way across South Main street and struck her- with his automobile.”- That-is to say,:plaintiff pleaded-that, while she was moving on- the crosswalk and before .-she had completed her crossing to the -west, side of South Main street, the traffic light changed-to'.green for the defendant, and, therefore, because, of: the arrangement of the traffic signals, the light at-that time Was red for her. • .. - - i . .

; T.he first specification of negligence, is.-the; failure of defendant, to. yield- the right- of .-way. to. plaintiff. ■ Com sistent with-.this claim, plaintiff presented four ...special instructions to the court which.she requeste.dfo be.given to.the jirry.before.argument,-alhof -whiehpN’os. 4,. 5, 6and.8, .were refused.. It as; asserted that-No. 8 was requested only, after Nos. 4:and- 5bad been.refused and, as we understand, would, not have been, urged but. for t-herefusal.- • -

The instructions requested are:

“4. If you find by a preponderance of the evidence that Mary Stout was walking across South Main street at Fourth street within the north crosswalk with the green signal of the traffic light, and that the traffic signal changed to green for southbound-traffic on. South Main-street, at. said time,-then, you are instructed that Robert Wagner was required .by. statute to..yield the right of way to her, and was legally-bound,-to permit her to proceed uninterruptedly' in a -lawful manner through the intersection.

• “5. If you find that Mary Stout had the ‘right of way’ while in the crosswalk then, I charge you as a matter of law, that in the absence of knowledge to the contrary, she had a right to expect and assume that Bobert Wagner would obey the law and yield to her such‘right of way.’

“6. If you find that Mary Stout had the ‘right of way’ while in the crosswalk and that defendant, Bobert Wagner, failed to yield it to her and such failure to yield the ‘right of way’ was the sole proximate cause of her injuries, if any, then, I instruct you as a matter of law that said Bobert Wagner was guilty of negligence and your verdict must be for the plaintiff and against the defendant. ’ ’

“8. If you find by a preponderance of the evidence that Mary Stout was walking across South Main street at Fourth street within the north crosswalk with the green signal of the traffic light in her favor, and that the traffic signal changed to green for southbound traffic on South Main street-while she was lawfully crossing said street-within said crosswalk, then you are instructed that Bobert Wagner was required by statute to yield the right of way to her and she had a statutory right to proceed uninterruptedly in a lawful manner in the direction in which she was moving in preference to the southbound automobile of Bobert Wagner and under such circumstances she would have a right to expect, in the absence of knowledge to the contrary, that Bobert Wagner would obey the law and yield the right of way to her. ’ ’

Defendant’s special charge No. 1, given at his request before argument, is:

“The court charges you that if you find that plaintiff, as she was proceeding across South Main street, did not use her senses of sight and hearing, or such care for her own safety as a reasonably prudent person would have done under the same or similar circumstances then plaintiff, Mary Stout, was negligent, and if you then further find that plaintiff’s own negligence directly caused or contributed in the slightest degree to cause the injuries and damages complained of, your verdict must be for the defendant.”

The court in its general charge in various places therein said to the jury, in substance, that at the time of the collision each of the parties had an equal right to the use of the highway and both were bound to exercise ordinary care for their own safety and for the safety of each other.

The court in refusing plaintiff’s requested special charges before argument, and in its general charge, followed the doctrine of the case of Martinovich, a Minor, v. E. R. Jones Co., 135 Ohio St., 137, 19 N. E. (2d), 952, and, if that case is controlling, the action of the court was correct.

It is urged by plaintiff that the rights of the parties here are controlled by Sections 6307-13 and 6307-45, General Code. These provisions of the Code were effective September 6, 1941, while the cited case was decided on March 15, 1939. The first and second paragraphs of the syllabus of that case read:

“1. In the absence of statute or ordinance so prescribing, there is not an absolute duty devolving upon the driver of a motor vehicle .standing at or approaching a street intersection, upon'receiving the green or ‘go’ signal of a traffic light-,do wait until one on the crosswalk is entirely out of the intersection before such driver may move into it. A charge to the jury imposing such absolute duty would be erroneous.

“ 2. A signal by automatic light or traffic policeman to proceed does not absolve, the driver of a motor vehicle from the duty to .exercise- ordinary care for the safety of pedestrians at -.a known street crossing. The eare/and caiition to-beiexereidéd' as to those in the ititeaw section; must be commensdrate with the existing danger-of;collision and consequentdn[jufyd’',

Inasmuch as we now have the statutes defining fights and obligations of those affected by traffic signals and their operation, which statute were notin effect when the cited case was decided, the narrow question is whether the terms of these; statutes change in and particular the rights of the parties as')declared; in! the adjudicationc.'.! The peftihént language' of Section ;@$07d IdyiG'eritefal'CQde^is

“Whenever traffic is controlled by traffic-control signals' .exhibitingthe •• wbf ds f ^p,:’: :i caution, ’ or ‘ stop,!’ i 'or exhibiting, 'different colored lights;-successively one 'alt a> time,'-Wt?'.the following colors only;shall be usedhnd shidderhis and lights! dhalli indícatcañd apply to'opeik ators; of; vehicled,o streetcars; 'anditriáckless'trolleys idinjpedestrians, as follows:

(a): Grfeeh¡al'oine’orilg@í;Vi/

¡ “•li/'-Bedestriana/'facing)!the! sj|giial¡ ¡.may proceed'! aeross the róádw''áy!>wi'thi.n¡'any! marked .or unmarked erbsswalk.-''

r‘f:2. All .other traffio'-fadiiig tMeisign'al except as! pro; vided under Sections;-35; and 56 may ¡proceed straight; through or ¡turn right'O'r left unless:® sign at such place prohibits either such turn; "But such traffic.shall yield the ■' right; of' way • to > .vehicles,’ - ¡streetcars ■ and' traeklesk trolleys' lawfully; within the intersection; and to pedestrians-¡lawfully within'aórpsBWalk.'atdhe time such signal i i s ■ exhibited'■

"* * *

“(d) Red alone'o'i'ibstdjbi'.'Jov/

"* * *

-'.’V2.Í- All other traffic fácingthé; ¡signal shall stop; be-; fore entering the= intersection: and shall remain stahdd ing-i tmtil authorized -to; prpebed-by rs; traffic-contro 1 ' device. ’ ’

bnSection 630'7)49, CteneráH) Cbde\'($rbvidés :u!

. ¡;ffl(a) It shall: fee! fhe-iduit#I of the! (operator of (any: ves hicle->*i.* * to yieldithe ®lgM>io®.tway to. a pédéstriafflaivsH full# pros sing .'the!¡¡rbádwá# (' within¡ any crosswalk;-/o-t'i

mP;('b) Whenéber,'any iveliicle';-*i<'is-stopped) átr-a marked 'crosswalks?.' *ld at;an idtebseetion to pebipit la pedestrian to: cross! ithe: ¡roadway,! -the/ operator' of¡ ah# bther vehicle ? f- 'approaching from, the rear sháll not overtake and pass:such,stopped'vehicle';* iris eiii

The testimony of plaintiff’s witness, Scott,:.was'tb the; effect that, /as: the; plaintiff .proceeded acr'obsith'é,-'intersection, when ¡she¡passed'¡the!. center thereof,his) aiftómobile was -stopped’¡on the.: bed'signal a very (short -distance from the-north: side-of-the crosswalk ¡just' Jó ■■the ¡west of a sáfety ■ zOné I bn., the -first'lane in! ithe;-west, há/lf! of 'Sonth: ¡Maikii strpét; ihnd that whfens plaintiff, ivas btnudo ¡she .had ipafefeedothis.i fiistf aútomobilé ¡áridi iprobí •a-My! hadltakeh cohevstepotb theuwés.tbwdp.eib¡the¡si^nái changed to greé'ñ.ifor¡ liina,5 ándt'kéref ore, gbeén- ifidr¡ ithíé -defendant. . At ¡that momterit defendant,-whose (autdnio^ bilfe the petitiohca-vers Was/then ¡standing iartheosecbnd iaiife for antomobile:',traffic ándi júst(westeofrthe ÍScott ¡áhtóínbbile, imineáiútfel#. kipon\ th.ebcha’ngfi, ofulighb-stb •gréen ¡ for him ¡moved irito; (the) ¡intersection;¡and'sttibek •the) plaintiff; ’ ■- Plaintiff, in'sistedi thát, although (S'tíé/ísáklb t-hb. Scott automobile; shendid.uioti see defendanf’eoc.ár -findldefendant i s’áid ,:thát/. ‘¡álfhbiigh :'he; abberbfe&sVbe Scdtt I car,- he did ihoti see ¡the .'plaintiff! until; she stepped intoihis fender. uThedáiignágeboí' the ¡Codéí ¡nobn prfeiscribes:the resp'ebtivel ri^iitsvanidi (duties', ¡of'the'-pártius MreUánd it: is;; somewhati iat) bariance'-- 'With thátbánwmhcéd in the case; úpou which ! the (trial ¡ jtidge¡ireliedi. •'•il'As the plaintiff hád¡¡thé)green llight-until-about vhhé ■timé!she .reached;thé plaéeswfrete ¡she*¡was 'stMok^éveaii fhobgh .it changed to¡ réd-at ¡that -timep she-, was > lawfully pn¡ the’crosswalkfaud¡ wad Ipebhiitted'-úiíde-r ¡paragraph (a) 1 of Section 6307-13, General Code, to proceed across the intersection. This right accorded to her, the .defendant was required to respect because, as provided in paragraph (a) 2 of Section 6307-13, General Code, there was enjoined upon him the specific obligation to “yield the right of way to * * * pedestrians lawfully within a crosswalk at the time such signal is exhibited.” Like obligation was required of the defendant under paragraph (a) of Section 6307-45, General Code.

We held in State v. Howey, 78 Ohio App., 419, 65 N. E. (2d), 671, that, “where a pedestrian starts .across the street on a crosswalk at a street intersection with the green traffic light in her favor, but before she reaches the opposite sidewalk the traffic light changes and the operator of a vehicle, with the green light then in his favor, attempts to cross the intersection and strikes such pedestrian,” he may be found to have “violated the provisions of Section 6307-45 * * * General Code, prescribing the duty of an operator of a vehicle to yield the right of way to a pedestrian.” We said in the opinion in that ease, as we say here, that Juergens v. Bell Dist., Inc., 135 Ohio St., 335, 21 N. E. (2d), 90, is more applicable to the case at bar than Martinovich v. E. R. Jones Co., supra. For cases outside Ohio see the A. L. R. annotation to Kirk v. Los Angeles Ry. Corp.„ 26 Cal. (2d), 833, 161 P. (2d), 673, 164 A. L. R., 152. All the special instructions requested by the plaintiff, Nos. 4, 5, 6 and 8,- are, in our opinion, sound propositions of law and should have been given.

So far as the general charge is at variance with the meaning of the statutes, as we have construed them, it was erroneous and prejudicial to the plaintiff. The parts of the general charge to which the plaintiff excepts are numerous and we will not restate them here as there should be no difficulty in applying our holding to the incorrect and inapplicable portions of the charge as given.

We find no error in the giving of defendant’s special instruction No. 1 before argument. It is urged that the language, “did not use her senses of sight and hearing,” was too restrictive in that it attempted to define the extent to which the plaintiff was required to use her senses. We do not so read it. It merely requires that she use her senses of sight and hearing and does not undertake to specify when or where she would be required in the exercise of ordinary care to use such senses. The charge does not have the objectionable features found in the cases of Juergens v. Bell Dist., Inc., supra, and C., C., C. & St. L. Ry. Co. v. Kuhl, Admx., 123 Ohio St., 552, 558, 176 N. E., 222.

We do not find assignment of error No. 7 well made. No. 8, that the judgment is contrary to law, is established upon the prejudicial error which we have found respecting the special and general charges.

For the reasons assigned the judgment is reversed and the cause remanded.

Judgment reversed.

Wiseman, P. J., and Miller, J., concur.


source: Caselaw Access Project

author: Wiseman, J.

license: Public Domain

text:
    Stout, Appellee, v. Wagner, Appellant.

      (No. 2092
    Decided April 14, 1950.)
    Messrs. Matthews & Altick, for appellee.

      Messrs. Harshman S Young, for appellant.
   Wiseman, J.

This is an appeal on questions of law from a judgment of the Common Pleas Court of Montgomery County, rendered on a verdict in favor of the plaintiff for $2,000 in an action to recover damages lor personal injuries sustained by the plaintiff, a pedestrian, when struck by an automobile operated by the defendant at Fourth and Main streets in the city of Dayton, Ohio.

The first trial of this action resulted in a verdict and a judgment for the defendant which was reversed on appeal by this court on the ground that the trial court had committed prejudicial error in its general charge and in.refusing to give certain special instructions requested by the plaintiff. The opinion of. this court is reported ante 473, 83 N. E. (2d), 231, 53 Ohio Law Abs., 141, and, on the application for rehearing, in 85 N. E. (2d), 306.

The plaintiff in her petition alleges three specifications of negligence :

First, defendant negligently failed to yield the right, of way.

Second, defendant failed to maintain a proper lookout.

Third, defendant failed to have his automobile un- ' der control.

The defendant denies that he was negligent in any respect.

Contributory negligence on the part of the plaintiff was not pleaded, but became an issue for consideration of the jury upon the presentation of the evidence. The court charged the jury in regard to contributory negligence.

A brief statement of the facts will suffice. There is ample evidence to support factual findings, as follows:

South Main street extends in a northerly and southerly direction, and Fourth street in an easterly and westerly direction and intersects South Main street at right angles. On September 22, 1946, at about 7:30 p. m., the plaintiff, a woman 71 years of age, left the oast curb of Main street when the traffic light was green for traffic on Fourth street and walked in a westerly direction on the crosswalk along the north side of Fourth street, intending to cross to the west curb of Main street, and was more than one-half way across Main street when the accident occurred. The defendant was operating his automobile in a southerly direction on the west side of Main street and had stopped his automobile at Fourth street in the middle lane of three southbound traffic lanes, with the front end of his automobile about three feet north of the north edge" of the crosswalk on which the pedestrian was walking, to wait for the traffic light controlling traffic on Main street to change from red to green. Another automobile had stopped in the southbound traffic lane on the left of defendant, with the front end of the automobile about even with the north edge of the crosswalk. When the plaintiff neared the position of the defendant’s automobile the traffic lights changed, showing green for traffic on Main street and first yellow and then red for traffic on Fourth street. When the traffic light on Main street flashed green the defendant moved his automobile forward into the crosswalk. Plaintiff approached the defendant’s automobile from the left and was struck by the left front fender of defendant’s automobile.

The defendant assigns as error: Refusal of the trial ■court to give before argument special instructions numbered four and five requested by defendant; and that the judgment is contrary to law.

The special instructions requested by the defendant, and refused by the trial court, are predicated on several provisions of the Uniform Traffic Act of the state •of Ohio, which the defendant claims control the care which the plaintiff was required to exercise in proceeding over thé crosswalk after the traffic signal showed •green for traffic on Main street and yellow, then red, for traffic on Fourth street.

In its former opinion in this cause {ante, 473) this •court held that under Sections 6307-13 (a) 2 and 6307-45, General Code, the plaintiff was lawfully within the •crosswalk at the time the traffic light signal changed and she was permitted to proceed across the intersection, and that the defendant was required to yield the right of way to the plaintiff. The applicable portion •of Section 6307-13 (a) 2 provides that when the traffic light"shows green traffic facing the signal may proceed ■straight through, “but such traffic shall yield the right of way to vehicles, streetcars, and trackless trolleys lawfully within the intersection and to pedestrians lawfully within a crosswalk at the time such signal is ■exhibited. ’ ’

The applicable part of Section 6307-45, General Code, provides that “it shall be the duty of the operator of any vehicle, streetcar or trackless trolley to yield the right of way to a pedestrian lawfully crossing the roadway within any crosswalk. ”

We reaffirm onr ruling in our former opinion as the factual development in this second hearing is the same as in the first hearing.

The defendant claims that there is evidence in the record to support his contention that the plaintiff did not proceed to use the crosswalk in a lawful manner after the traffic lights changed, showing first yellow and then red for traffic on Fourth street. The defendant’s contention is based on that portion of Section 6307-13. General Code, which reads as follows:

“(b) Yellow alone or ‘caution’ when shown following the green or ‘ go ’ signal.

“All traffic facing the signal shall stop provided that any traffic within the intersection shall be permitted to continue cautiously through the intersection. ’ ’ (Italics ours.)

The defendant contends that there is evidence in the case tending to prove that the plaintiff did not proceed “cautiously” over the crosswalk after the lights changed, but on the contrary that she continued heedlessly, precipitously and incautiously and as a consequence she was not proceeding “in a lawful manner.” Special instructions requested by the defendant numbered four and five and refused to be given are predicated on the defendant’s interpretation of that portion of the Uniform Traffic Act just quoted. Special instruction No. 4 is as follows:

“The court charges you that the word ‘cautiously’ which is used in subsection (b) of Section 6307-13, of the Ohio General Code, means attentive to examine the probable consequences of acts with a view to avoiding danger. Thus one who does a thing cautiously does it warily, prudently, vigilantly, watchfully, and with senses alert to avoid danger.”

Special instruction No. 5 is as follows:

‘ ‘ The court charges you that if you find that the traffic signal which Mary Stout faced as she proceeded across South Main street showed a green light and changed directly from a green light to a yellow light she was required, as she continued through the intersection after such change occurred, to continue cautiously and if you find she did continue through the intersection after such change occurred, but failed to do so cautiously she was not then proceeding lawfully and, while so proceeding, had no right of way over the defendant, Robert Wagner.”

The defendant contends that the section of the Uniform Traffic Act above quoted required. the plaintiff' to continue “cautiously” through the intersection and that a higher degree of care than ordinary care is required. We do not agree with this interpretation of the act. We do not believe that it was the intention of the Legislature to require a degree of care higher than ordinary care to be exercised in a situation covered by this section. Ordinary care to be exercised varies according to the factual situation involved. However, the standard of care m any given factual situation remains the same. The word, “cautiously,” is a word in common use and a definition or explanation was not required. The substance of special instruction No. 5 was given in special instruction No. 1 requested by the defendant. Furthermore, No. 5 as requested fails to state that plaintiff was permitted to proceed through the intersection and fails to state the degree of care required to be exercised by the plaintiff. The refusal to give special instruction No. 5 was not error. The verdict and judgment are not contrary to law.

Judgment affirmed.

Miller, P. J., and Hornbeck, J., concur.


author: Matthews, J.

text:
    Petermann, Appellant, v. Tepe et al., Appellees. Petermann, Appellee, v. Tepe et al., Appellants.
    (Nos. 7148 and 7155
    Decided December 5, 1949.)

      Messrs. Petermann, Calhoun & McPherson, for appellant in cause No. 7148 and appellee in cause No. 7155.

      Mr. Joseph W. Shea, Jr., for appellees in cause No. 7148 and appellants in cause No. 7155.
   Matthews, J.

These two appeals are from a declaratory judgment. The general conclusion of the court was that the defendant city of Norwood was entitled to recover from the plaintiff, and judgment was rendered against him. As a basis for that judgment, the court made certain declarations as to the rights of the parties. Neither party was satisfied with these declarations of rights, and both appealed. The appeals were presented together for consideration by this court.

The facts upon which a declaration of rights was asked are presented in the pleadings and a stipulation of facts. From them we learn that the plaintiff is and was in 1947, when these incidents occurred, a duly admitted and practicing attorney in the state of Ohio, in-eluding the city of Norwood, a municipal corporation in such state. In April 1947, as alleged in the amended petition and admitted in defendant’s answer, “the solicitor and the service director of the city of Norwood, Ohio, acting in their official capacities, retained for the snm of $1,500 this plaintiff to perform certain legal services for the city of Norwood, Ohio, which services were of such a nature as to immediately require the skill, experience and attention of an attorney at law.” The plaintiff fully performed the services for which he was retained, consisting of consultations and negotiations with officials of the city of Cincinnati, appearances before the council of such city, drafting of ordinances granting rights of way, negotiations with and the securing of rights of way for water mains from the board of commissioners of Hamilton county, Ohio, the Pennsylvania and Baltimore & Ohio Railroads, and the examination of title to certain described real estate. He alleged that during the entirety of 1947 he was a member of the civil service commission of the city of Norwood. He alleged also that the auditor of the state of Ohio made an audit of the accounts of the city of Norivood in l948, and in his report found that, because of the plaintiff’s membership in the civil service commission during his employment aforesaid, such employment was in violation of Section 3808, General Code, and that plaintiff should refund the amount which had been paid to him. The plaintiff alleged also his conclusion that Section 3808, General Code, had not been violated, and that with the filing of the petition he was paying to the clerk of courts $1,500, to be held by him pending the decision in this case. This amount was in fact paid to the clerk and is now held by him

The plaintiff prayed for a declaration that he had not unlawfully performed the aforesaid services, that the defendant had not unlawfully paid him therefor, and that the finding of the auditor of the state of Ohio was not well founded in law.

The defendant by answer admitted that plaintiff is and was at the times alleged a duly admitted and practicing attorney at law; that the city of Norwood was a municipal corporation; that the solicitor and auditor of the city of Norwood, “acting in their official capacities, retained the plaintiff for the sum of $1,500 to perform” the services described in the amended petition; that such services were of such a nature as to require at once the skill, experience and attention of an attorney at law; that during all of 1947 the plaintiff was a member of the civil service commission of the city of Norwood; that the auditor of the state of Ohio made the audit and finding as alleged by the plaintiff; and that the plaintiff had deposited $1,500, as alleged by him.

The defendant joined in the prayer for a declaration of rights and prayed for such relief as the facts entitled it to.

The stipulation added very little to the admitted allegations of the pleading. It was stipulated that the plaintiff fully performed his services as civil seryice commissioner during 1947, that his duties as civil service commissioner had no relation to the services performed under his contract of employment, and that there was no incompatibility between the two services.

The stipulation shows also that the question of the legality of the plaintiff’s employment was raised before the expenditure was made, and that, finally, in response to a request of the city auditor, the plaintiff addressed and delivered a letter to him, in which the plaintiff agreed to pay any judgment which might be obtained against the city auditor by reason of his payment of the money, and, thereupon, apparently, the payment was made.

The trial court found as follows:

“1. The money paid the plaintiff for his services as attorney in the amount of $1,500 by the city of Nor-wood was a fixed compensation.

‘‘2. The service director of the city of Norwood did not have the authority to employ the plaintiff and fix the plaintiff’s compensation, therefore, the city of Norwood unlawfully compensated the plaintiff in the sum of $1,500.”

Upon these findings, the court rendered judgment for the defendant and ordered the clerk of courts to pay to it $1,500 which had been deposited with him.

It will be observed that the trial court made no finding as to whether the plaintiff’s employment violated Section 3808, General Code, but did find that the city auditor had no authority to fix compensation and on that finding rendered judgment for the city of Nor-wood for $1,500.

While the plaintiff stands in the position of one in doubt as to his rights and is, for that reason, seeking to have the court declare his rights, his payment of the amount of money involved into court and the prayer of the defendant for relief place the parties and the subject matter within the jurisdiction of the court, so that the court was not limited to a mere declaration, but could and did proceed to grant the final relief, to which the right, as found, entitled the parties.

Furthermore, the stipulated fact that the plaintiff, as a condition to receiving payment, had agreed to indemnify the city auditor requires us to treat the caso as though the payment had not been made and the plaintiff were seeking to enforce his claim for payment against the defendant. It is, therefore, unnecessary to consider the effect of a voluntary, unconditional payment upon the rights of the parties.

We will, therefore, consider whether under the law the plaintiff could have recovered judgment against the defendant and, accordingly, determine whether he has a right to retain the money paid him under the circumstances of this case.

(1) It is contended that this case falls in the category of the same person occupying two public offices without any inconsistent duties, against which, it is contended, there is no legal ban. Assuming the law to be as contended, it can have no application, unless there exists two offices. Such contention, therefore, raises the question whether the plaintiff occupied two public offices. It is clear that the position of civil service commissioner is a public office, but how stands the position of the plaintiff under his asserted employment by the service director? It is alleged that the plaintiff was “retained for the sum of $1,500 — to perform certain legal services for the city of Norwood.” Now does that disclose the existence of an office to which the plaintiff had been appointed? We do not think so. Rather it shows that the service director contracted for the plaintiff’s services, and that the effect, if legal, would have been to create the relation of employer and employee. This temporary employment for a single transaction has none of the attributes of a public office. We have examined the authorities on the distinction between a public officer and a public employee, but are of the opinion that an extended discussion of the distinction is unnecessary. Many of the authorities can be found in the A. L. R. annotation to the case of Martin, Atty. Genl., v. Smith, Treas., 239 Wis., 314, 1 N. W. (2d), 163, 140 A. L. R., 1063. In that case it was held that the president of the University of Wisconsin was an employee and not a public official. Authorities can be found also in the A. L. R. annotation to the case of State, ex rel. Newman, State Librarian, v. Skinner, 128 Ohio St., 325, 191 N. E., 127, 93 A. L. R., 331. See, also, 32 Ohio Jurisprudence, 856, Section 3.

(2) Assuming next that the service director could be and had been authorized to employ the plaintiff, could he be authorized to fix his compensation? We believe this question is answered by Section 4214, General Code, which provides:

‘' Except as otherwise provided in this title, council, by ordinance or resolution, shall determine the number of officers, clerks and employees in each department of the city government, and shall fix by ordinance or resolution their respective salaries and compensation, and the amount of bond to be given for each officer, clerk or employee in each department of the government, if any be required. Such bond shall be made by such officer, clerk or employee, with surety subject to the approval of the mayor. ’ ’

It will be observed that the language is that the council shall fix the compensation of each employee in each department of the municipal government. We have been referred to no statute authorizing the service director to fix the compensation of the employees in his department — and have found none.

Nor have we been referred to any authority holding that the municipal council could delegate to the service director the authority to fix the compensation of employees in his department — and we have not found any such authority. Such power cannot be delegated.

We, therefore, find that the trial court did not err in its declaration or finding that the service director had no authority to fix the compensation of the plaintiff for the services rendered.

(3) Did the plaintiff’s occupancy of the office of civil service commissioner disqualify him for such other employment?

The auditor of the state of Ohio based his finding for recovery on the provisions of Section 3808, General Code (96 Ohio Laws, 37). That section was in part as follows:

“No member of the council, board, officer or commissioner of the corporation, shall have any interest in the expenditure of money on the part of the corporation other than his fixed compensatipn. ”

By another provision, the section made the person violating it liable for any money received contrary to its provisions.

It was argued that the “fixed compensation,” mentioned in this section, related to compensation paid in violation of the section. We think it obvious that by the use of this phrase the General Assembly intended to make it clear that Section 3808, General Code, did not prevent the official from drawing his salary. The whole intent was that he should not receive anything beyond that from the corporation in any way. •

We find no prejudicial error in the judgment and the same is, therefore, affirmed.

Judgment affirmed.

Ross, P. J., Hildebrant and Matthews, JJ., concur..


author: McClintock, J.

text:
    Hite, Exr., et al., Appellees, v. Hook, Appellant.
    (No. 1989
    Decided September 12, 1949.)

      Mr. Walter Dumooody, for appellant.

      Messrs. Mitchell do Lindrooth, for appellees.
   McClintock, J.

This action originally was filed in the Court of Common Pleas of Licking County, in which David L. Hite, as executor of the estate of C. B. Hook, requested the court to construe the provisions of the will of C. B. Hook, especially item 9 which reads as follows:

“Item 9: — All the rest and residue of my property, both real and personal, I give, devise and bequeath to Dwight M. Warner, in trust however for the following uses and purposes, to wit:

“My said trustee shall invest such proceeds and shall use the income therefrom and such of the principal as may be necessary to adequately provide for my wife, Hattie Hook, all the care that she may need during her lifetime and at her death to provide her with proper burial and monument. He shall use his own discretion as to the proper requirements of my said wife. At her death the balance of moneys and trust properties in his hands shall be turned over to my foster son, Henry Cullison, in absolute ownership.”

The matter was submitted to the court below on an agreed statement of facts, which is as follows:

“1. It is agreed facts that Hattie Hook, the wife of C. B. Hook, deceased, mentioned in item 9, of his will, predeceased the said C. B. Hook, testator, some three and one-half months.

“2. That the only question involved is the construction of item 9 of the said C. B. Hook’s will.

“3. That the legacy mentioned in item 9 consists of practically $13,000, in the nature of a note and mortgage.

“4. That said property is in the hands of David L. Hite, as executor of the estate of C. B. Hook, deceased.

“5. It is a further agreed fact that George Hook is the sole surviving legal heir of C. B. Hook, deceased.

“6. It is further agreed that said will has been duly probated and that David L. Hite has been duly appointed and qualified as executor of said will.

“7. It is further agreed that Henry Cullison is the foster son of C. B. Hook, the testator.

“8. It is further agreed that C. B. Hook had not spoken to or associated with George Hook for many years prior to his death.”

After due consideration the court, in consideration of item 9 of the will, decreed :

“That the true intention of the testator expressed by C. B. Hook in his last will and testament, controls the construction of said item, and that it was his intention that any property remaining in the residue of his estate after the same was used for the benefit of his wife, Hattie Hook, during her lifetime should belong absolutely to Henry Cullison, foster son of the testator; that the termination of the preceding estate by the death of Hattie Hook did not cause the lapse of the entire interest set forth in item 9, but that the property referred to therein should be delivered absolutly to Henry Cullison. The court further finds that it would be a useless thing to transfer the assets to Dwight M. Warner, as trustee, as he would immediately have to transfer these assets over to Henry Cullison.”

A motion for new trial was overruled. Thereafter George Hook, one of the defendants in the court below, hereinafter called defendant, filed an appeal to this court on questions of law and fact. However, such defendant filed his assignments of error and bill of exceptions, and in fact considered the appeal as one on questions of law only, and this court will so consider it.

For his assignments of error defendant says:

“1. That the judgment of the court is contrary to law.

‘ ‘ 2. That the court erred in finding that the termination of the preceding estate by the death of Hattie Hook, did not cause a lapse of the entire interest set forth in item 9 of C. B. Hook’s will.”

Hattie Hook, who by the will was given-a life estate, having died before the testator, C. B. Hook, it is the claim of defendant that this legacy, as set forth in item 9, lapsed and that the assets in the hands of the executor should pass as intestate property to George Hook, the brother of the testator, as his only heir at law.

It is the accepted rule in Ohio that in cases such as the instant one courts ascertain and enforce the intention of the testator, except where forbidden by positive rules of law. Such intention is to be ascertained from a consideration of the will as a whole and not from its fragments. Courts will attempt to find this intention by construing every part of the will with reference to every other part, so that, if possible, effect may be given to every provision.

What was the intention of the testator in this case, •as we consider item 9 of the will? It expressly provides for the use of the income and the principal by Hattie Hook, his wife, for all the care that she may need during her lifetime, and that at her death the balance of moneys and trust properties shall be turned over, to his foster son, Henry Cullison, “in absolute ownership.”

It is to be considered that the testator had recognized his brother, George • Hook, and directed that he be paid $1,000 which was left to the testator for life by nis father. If it was the intention of the testator that under any circumstances his brother, George Hook, was to receive any further legacy from his estate, he certainly would have said so in his will.

Must this trust fail because the one who was given a life estate died before the testator? It is claimed by defendant that this legacy in item 9 lapsed, inasmuch as the stepson was not a relative of the testator as provided in Section 10504-73, General Code. This section has no application in this case, for the reason that a life estate and a remainder are set forth in the will, and for the further reason that under ordinary circumstances a man makes a will to dispose of his entire estate and, if his will is susceptible of two constructions by one of which the testator disposes of the whole of his estate and by the other he disposes of a part of his estate only and dies intestate as to the remainder, the courts will prefer the construction by which the whole of the testator’s estate is disposed of, as this construction is reasonable and consistent with the general scope and provisions of the will.

We find in 4 Page on Wills, 166, Section 1416, the following :

“If a life estate or some other particular estate is given to A with remainder to B and his heirs, the death of A before the death of the testator does not cause the remainder or other estate, dependent on the particular estate, to fail.

a # # #

“A gift to support A for life, and at his death to divide among designated beneficiaries, does not lapse because of A’s death before testator.”

In support of these propositions, as set forth in 4 Page on Wills, supra, we cite the following authorities:

Elliott v. Brintlinger, 376 Ill., 147, 33 N. E. (2d), 199, in which it is stated:

“2. Same general rule as to when remainder is accelerated. Although the doctrine of acceleration of a remainder applies more commonly Avhere there is a renunciation of the prior estate, it applies where the preceding estate fails for any reason and there is a presumed intention of the testator that the remainder-man should take upon the happening of any event that prevents, destroys or terminates the prior estate.

“3. Same devise does not lapse where there is a devise over trust. A devise or bequest does not lapse if the will provides a gift over to a second devisee or legatee after the death of the first, and it cannot be contended that because the first gift is in trust a lapse occurs on the death of the beneficiary making the whole gift inoperative because of the failure of the trust, where the intention is plain that the second devisee have the trust property remaining after the death of the beneficiary.”

Thompson v. Thornton, 197 Mass., 273, 83 N. E., 880, which holds:

“Where a fund is left by will to trustees to be used and expended for the comfortable support and maintenance of the testator’s son during his life, and after his death to pay the residue, ‘if any thereof shall be left,’ to certain persons, and the testator’s son dies before him, this does not cause the legacy'in remainder to lapse, on the ground that the contingency on which it was to take effect never can happen, but on the contrary it becomes operative at once upon the death of the testator, and the estate which passes is not affected by the fact, that had the son lived the trust by its terms-could have been so administered as to leave no remainder.”

Jackson v. Knapp, 297 Ill., 213, 130 N. E., 524, in which it was held:

“6. Same when a trust estate does not become intestate property. The rule that where the purpose of a trust fails and no other disposition of the fee is made-the trust estate becomes intestate property does not apply where there are two purposes of the trust and.only the first one fails, and in such case the second purpose is accelerated.”

Ohio National Bank of Columbus, Trustee, v. Boone, 139 Ohio St., 361, 40 N. E. (2d), 149, which holds as follows:

“4. Where a testator wills a part of his estate to another, directing that she shall receive therefrom a stipulated sum annually for and during her natural life and further provides that after her death the unconsumed portion shall be paid to ‘my heirs, share and share alike,’ the remainder in such portion of the estate as may be unconsumed by the life beneficiary vests at the testator’s death in such person or persons as then answer the description of testator’s heirs under the statute of descent and distribution in- force at such time, unless a contrary design on the part of the testator is plainly apparent.”

In conclusion, it is the opinion of this court that it was the intention of the testator, C. B. Hook, as expressed in his will, that the property remaining in his estate, less the debts properly charged against it and trust property after the death of the testator and his wife, should be turned over to his foster son, Henry Cullison, in absolute Ownership, and that the death of the wife of the testator prior to his death did not cause a lapse of such remainder and therefore does not descend as intestate property to his brother, George Hook.

For the reasons herein stated, the judgment of the Court of Common Pleas is affirmed.

Judgment affirmed.

Montgomery, P. J., and Putnam, J., concur.


author: By the Court.

text:
    The State, ex rel. Morningstar, v. Gibbs et al., Commrs. of City of Middletown.
    (No. 965
    Decided December 3, 1949.)

      Mr. Ben Worcester, for relator.

      Mr. Fred J. Schatsmann, for respondents.
   By the Court.

This is an action in mandamus and a case coming within the original jurisdiction of this court, and is so filed. The purpose of the action is to compel the respondents to reinstate the relator in his position as chief engineer of the Water Works Department of the city of Middletown, Butler county, Ohio, from which position he was discharged April 20, 1949, by the respondents constituting the commissioners of the city of Middletown.

The relator is within the classified service of the city.

Due notice was given relator of his discharge and ho filed with respondents an “explanation” requesting a hearing. No hearing was given relator by respondents after such explanation was filed with them, nor does the statute require that such a hearing be given. Section 486-17a, General Code. Rule XVII, Section 1 of the Rules of the Civil Service Commission of the city of Middletown conforms to the terms of the statute.

The relator, within time, duly filed an appeal with the civil service commission of the city. The respondents failed to send the written explanation filed by relator with respondents to the civil service commission, as is required by both the statute and the rules of the commission.

A full hearing was conducted by the civil service commission, in which relator appeared and testified fully as to the charges of dereliction of duty made against him. Evidence was presented tending to sustain such charges, although such evidence lacked a desirable definiteness specifically applicable to the charges preferred by the respondents.

The transcript of the evidence and conclusions of the civil service commission are before the court as a part of the record presented to it on oral hearing.

It is the claim of the relator that the civil service commission in its finding and entry did not sustain the charges filed, but placed its decision sustaining the discharge of relator upon the ground that he did not appear before the commission of the city of Middle-town for explanation of his conduct.

In such decision and entry of the civil service commission appears the following statement:

“There was no showing of evidence that the dismissal from service created an intolerable hardship for Mr. Morningstar. This is also supported by his neglect to appear before the city commission for explanation of his conduct which had extended to him a period of seven days for such explanation.”

Other statements in the record appear to justify the conclusion that the commission was satisfied that the dismissal of the relator was justified by his conduct.

It is stated in the finding and entry of the civil service commission:

“After due consideration of evidence presented at the hearing of C. T. Morningstar, appellant, for reinstatement in the position of chief engineer of, water works department, it is the nnanimons judgment of this commission that the action of dismissal from service by the city commission was justifiable and is hereby affirmed.”

A fair interpretation of this language is that the charges preferred were sustained. Although, again, the language used lacks a desirable definite application to the specific charges. However, it does appear that a basis for the affirmance of the action of the commission of the city was the fact that the relator had neglected to appear before it. The relator requested this privilege. It was never granted him and he was not required to wait until the last minute to file his appeal before the civil service commission. He did wait a reasonable time. In addition, it is to be again noted that the commission is not required to gire the employee such hearing.

It is true that the relator was given a full opportunity to present his case before the civil service commission and made no issue of the failure of respondents to file his explanation with the civil service commission. The explanation made by the relator at the hearing before the civil service commission might well be considered ample defense to the charges made against him. This court cannot, however, weigh the evidence so presented.

On the other hand, the written explanation of the relator was not sent to the civil service commission by the respondents, and it is evident that the absence of this explanation must have had a bearing upon the consideration of the appeal, since the neglect of the respondents is erroneously charged by the civil service commission against the relator.

It might be under some circumstances that a mere failure to file the explanation with the civil service commission would not be so prejudicial as to require reinstatement of the employee.

In addition to the foregoing, Rule XVII, Section 1 of the Rules of the Civil Service Commission provides:

“Notice of Dismissal. The discharge of a permanent employee other than at the end of a probationary period shall not become effective until the appointing authority shall have first served upon such employee a written notice of discharge which shall contain one or more reasons or grounds for discharge together with such specifications of facts as will enable said employee to make an explanation and place him fairly upon his defense, and shall have filed with the commission a copy of such notice of discharge together with the explanation, if any, made by the employee.! ’

It is stated at the beginning of the rules that the word, “commission,” when used in the rules refers to the civil service commission unless otherwise specified.

Obviously, this Rule XVII, Section 1, was ignored, both by the appointing authority and the civil service commission. By such rule it is apparent in the instant case that the discharge was not effective for any purpose.

In the instant case, taking into consideration the failure of the civil service commission to definitely pass upon the specific charges filed with them by re-respondents, the failure of such respondents to comply with the mandate of the statute and the rule of the civil service commission, and the erroneous predicate included in the reasons for affirmance by the civil service commission; placing the neglect of the respondents upon the shoulders of the relator, it must be concluded that the failure of the respondents to comply with the law was not only a mere dereliction of duty, required by the statute and rule, but vitally prejudicial to this relator.

This court has frequently requested the respondents to present a brief, but none has at this writing been filed, although ample time has elapsed in which to prepare and present same.

For the reasons given, the finding, judgment, and entry of the civil service commission is set aside, and the prayer of the relator for reinstatement and certification is granted.

Writ allowed.

Ross, P. J., Hildebrant and Matthews, JJ., concur m the opinion and judgment.


author: Fess, J.

text:
    The Continental Baking Co., Appellee, v. The Pennsylvania Rd. Co., Appellant.
    (No. 4419
    Decided February 6, 1950.)

      Messrs. Marshall, Melhorn, Wall £ Bloch, for appellee.

      Messrs. Shumaker, Loop, Kendrick £ Winn, for appellant.
   Fess, J.

This is an appeal on questions of law from a judgment in the sum of $811.34 for property damage entered on a finding on behalf of the plaintiff by the court without the intervention of a jury.

At about 5:30 a. m. on the cold, snowy morning of November 23, 1945, and while it was still dark, plaintiff’s truck loaded with baked goods was being operated by one of plaintiff’s employees, in the course of its business, in a southerly direction on the County Line road. For a number of years the driver had driven over this route six days a week. He had good eyesight and hearing. The truck was painted white, operated quietly and was equipped with good brakes, tires and lights. It had only one door which was a collapsible folding door on the right hand side opposite the driver’s seat. Only a glass window was on the left side of the driver — no door. For half a mile north of the crossing, between the highway and the crossing, there was an open field which was completely free from any obstruction to the view of the tracks by a person approaching the crossing.

The driver testified that, . as he approached the tracks, he stopped the truck about 30 feet north of the tracks, opened the door and looked for approaching trains. The tracks crossed the highway at an angle of some 45 degrees. Because of the angle and the location of the door toward the front of the truck, the driver could not see more than 160 or 165 feet up the track to his right, although, to obtain a better view, he had turned his truck slightly to his right and had leaned forward over the wheel to look. The driver said also that, as he started up to cross, he left the door open and proceeded to cross in slow gear at 10 to 15 miles per hour, when his truck was hit by the engine of the defendant. At the rate he was traveling he could have stopped within 12 or 13 feet. The distance from the north rail of the northbound track and the north rail of the southbound track was 12 feet 8% inches.

We quote from the driver’s statement as follows:

“Q. Then when yon started up and crossed the tracks, did you leave the door open or did you close it? A. I left it open.

“Q. You left it open. All right, now, what happened after you started up to go across the tracks? A. Well, that would he kind of hard to explain, but I almost got across, and that is the last I remember of.”

In answer to further questions, he said he looked at the time he opened the door and continued to watch after he started to cross. He said he saw no headlight and did not see the train at any time before it struck the truck. It may be observed that the driver’s range of vision was limited to 165 feet by the obstruction to his view imposed by the narrow outlook of his truck to his right which would necessarily be reduced more and more as he approached the tracks. He was not asked whether he listened and did not testify directly that he did listen, but said he had opened the door and heard no bell or whistle. Two members of the crew testified that after the collision they went back to the crossing and the driver, who was then somewhat dazed, told them he heard the whistle but could not stop. Upon rebuttal, the driver said he did not remember making the remark.

Defendant’s train consisted of a locomotive, tender and caboose. The engineer, fireman and brakeman who were riding in the cab of the engine each testified positively that the headlight was burning brightly, the automatic bell was ringing and the whistle was blown for the crossing. Each of them testified the train was traveling at 40 to 45 miles per hour. Although the emergency brakes were applied and the engine thrown into reverse, it was not stopped until a half or three quarters of a mile down the track. The engineer testified that if he had been pulling a train of cars he could have stopped within half the distance because of the additional braking power, and that the rails were wet at the time of the collision. None of the three members of the crew who claimed to have been watching down the track observed the truck until the collision.

In his conclusions of fact (denominated as findings of fact) the court found, in part, as follows:

■1. As plaintiff’s driver approached the tracks of defendant he stopped the truck, opened the truck door and looked and listened for approaching trains. There being no trains within sight or hearing, plaintiff’s driver assumed he could safely cross the tracks and, continuing to look and listen, cautiously moved forward upon the tracks.

2. When he had almost completely crossed the tracks the truck was struck by a train, consisting only of a locomotive and tender, operated by defendant in a southeasterly direction on its tracks, and approaching plaintiff’s driver from the right rear at an excessive rate of speed. Although the train crew testified that the speed of the train was only 45 miles per hour, the weather was extremely cold, the cab of the locomotive was cold, the crew was on its way home, the locomotive was not within seeing or hearing distance when plaintiff’s driver stopped the truck, the locomotive proceeded approximately three-fourths of a mile after the collision before it could be stopped, and the court finds that the speed of the train was greatly in excess of 45 miles per hour.

3. At the time of the collision, although visibility was limited by darkness and snow and a strong wind blowing from the east toward the west carried the sound of the train away from the highway and defendant’s tracks cross the highway at an acute angle, thus further limiting the view of the tracks by travelers on the highway, the defendant, with knowledge of these facts, operated its locomotive at an unreasonable, highly dangerous and excessive rate of speed, without keeping a proper lookout and without proper lighting and without warning plaintiff’s driver or other travelers upon the highway of the approach of the locomotive, by bell, whistle, watchman, gates, automatic flasher signals or other signal which could be seen or heard by them and although defendant was not then transporting any passengers or property and had no schedule to maintain.

4. Defendant failed to stop or slacken the speed of its train even though plaintiff’s truck was in plain sight upon the tracks. If the crew of defendant’s locomotive had kept a proper lookout it would have seen plaintiff’s truck in time to have given ample warning or to have slackened the speed sufficiently to avoid the collision.

5. On the other hand, neither plaintiff nor plaintiff’s driver was negligent. The driver did everything reasonably possible to protect himself and plaintiff’s property from injury. The sole proximate cause of the collision and resultant damage was defendant’s negligence.

As indicated above, there is no evidence to support the finding that plaintiff’s driver continued to listen as he moved upon the tracks, except the negative testimony of the driver that he heard no bell or whistle. Since the crossing was in open country, there is likewise no evidence to indicate that the train was being operated at an unlawfully excessive rate of speed. The finding, which imports that the crossing was peculiarly hazardous, requiring precautions by the defendant at the crossing in addition to those prescribed by law, is not supported by any evidence and is contrary to law. The finding that the defendant failed to stop or slacken the speed of its train even though plaintiff’s truck was in plain sight upon the tracks is immaterial since the doctrine of last clear chance is not an issue in the case.

The driver testified that he looked but did not see the headlight or the train and that he did not hear the whistle or bell. His testimony was positively contradicted by the three members of the crew. This conflict with respect to looking presented a fact question for the trier of the facts and a reviewing court is bound by the finding unless it be found to be manifestly against the weight of the evidence. The criterion in this respect is the credibility of the testimony and not the number of witnesses. As to the looking, the driver’s testimony was positive but as to his listening it was negative and the finding of the trial court importing that the driver listened at a time and place and in such manner as to be effective is not supported by any credible evidence. See Toledo & Indiana Rd. Co. v. Yhalkee, 51 Ohio App., 378, 1 N. E. (2d), 163.

Since the finding that the headlight was not burning stands, the defendant was guilty of negligence. But the serious question which then arises is whether (as found by the court) the driver did everything reasonably proper to protect himself and plaintiff’s property from injury and the sole proximate cause of the collision and resultant damage was defendant’s negligence. Had the collision occurred during daylight, there would be no doubt that the driver would be found guilty of negligence as a matter of law, barring recovery. Had not the driver so fortuitously escaped death and thereby been unable to be present as a witness and contradict the testimony of the members of the crew, the plaintiff would also have been barred of recovery.

In Woodworth v. New York Central Rd. Co., 149 Ohio St., 543, 80 N. E. (2d), 142, the court applied the look and listen rule to a collision at night. In that case, which was a death case, the testimony that the headlight was burning and the signals given and the train was roaring down the tracks was uncontradicted. In the instant case, the evidence relating to headlight and signals is in dispute and there is an absence of any testimony regarding any noise made by the train. However, in the Woodworth case, plaintiff’s decedent was clothed with the presumption of exercise of due care which furnished a substitute for actual evidence that the decedent exercised his sense of sight and looked for approaching trains. This presumption was overcome by the positive testimony to the contrary.

Should a driver approaching a railroad crossing at night, when he can not effectively see an approaching train having no lights, who looks and does not see the train, be relieved from the duty of listening at a time and place and in such manner as shall be effective to avoid a collision? If the answer is in the negative, can it be held that as a matter of law his failure to so listen is the proximate cause of his injury or is it a question for the jury?

Where the danger at a crossing is increased by conditions obstructing the vision, greater than ordinary care or caution are imposed upon the driver about to pass over such crossing. Baltimore & Ohio Rd. Co. v. McClellan, Admx., 69 Ohio St., 142, 157, 159, 68 N. E., 816; Toledo Terminal Rd. Co. v. Hughes, 115 Ohio St., 562, 154 N. E., 916; Pennsylvania Rd. Co. v. Rusynik, 117 Ohio St., 530, 536, 159 N. E., 826; Woodworth, Admx., v. New York Central Rd. Co., supra.

In cases where a party testifies that he looked and listened but did not see or hear an approaching train, the doctrine of incontrovertible facts is applied in determining that the looking and listening were not at a time and place and in such manner as to be effective. Toledo & Indiana Rd. Co. v. Yhalkee, supra; Detroit. Toledo & Ironton Rd. Co. v. Rohrs, 114 Ohio St., 493, 151 N. E., 714.

Plaintiff’s driver was bound to listen as well as look as lie was about to cross the tracks. He looked but could not see the train because the night was dark and the train was dark. Under the circumstances, it was his duty to listen in such manner as his listening would be effective to warn him of the approach of the train. The duty of constantly and carefully listening is as imperative as that of constantly and carefully looking. Paul v. Philadelphia & Reading Ry. Co., 231 Pa., 338, 342, 80 A., 365; Rhodes v. Penna. Rd. Co., 298 Pa., 101, 147 A., 854; Kolich v. Monongahela Ry. Co., 303 Pa., 463, 154 A., 705; Valera v. Reading Co., 349 Pa., 123, 36 A. (2d), 644.

When an inference of contributory negligence arises, it is incumbent upon the party against whom the inference arises to meet the inference by evidence of equal weight. In order to avoid the application of the' look and listen rule, it is necessary for the plaintiff to produce credible evidence excusing the failure to look and listen. A common example is where there is an implied invitation to cross by reason of a watchman or crossing signals. No such evidence was introduced in the instant case. Certainly the fact that it was dark, that the wind was blowing from east to west, that it was snowing and that the track was at an angle of 45 degrees did not excuse plaintiff’s driver from his duty to look and listen in such a manner as to be effective. It is the contention of the plaintiff, supported by the findings, that the train was proceeding at an unlawful rate of speed and that the crossing was peculiarly hazardous, but as previously indicated the evidence does not support such contention.

There is no direct testimony that the train made any noise as it approached the crossing, but it is common knowledge that even a light train does make some noise. Cf. Patton, Admx., v. Penna. Rd. Co., 136 Ohio St., 159, 163, 24 N. E. (2d), 597. The fact that the wind from the east might divert the sound of the train or make hearing more difficult merely added to the duty of the driver to exercise more vigilantly his sense of hearing as well as his sense of sight. It is most difficult to conceive a situation where a train, even on a special run, would have no lights whatever either in the cab or caboose. "With a train approaching at an angle of 45 degrees, a traveler on the highway could have readily observed such lights. Under the record in this case, where plaintiff’s driver testifies that he looked but did not see and fails to testify positively that he listened, but does testify that he did not hear the approaching train, under the doctrine of incontrotrovertible facts, such driver did not listen at a time and place and in such manner as to be effective to avoid the collision and was guilty of negligence as a matter of law proximately contributing to the damage suffered by the plaintiff.

Judgment reversed and final judgment for defendant.

Conn and Carpenter, JJ., concur.


text:
    The State, ex rel. Litterst, et al., Appellants, v. Smith, Commr., et al., Appellees.

      (No. 160
    Decided May 12, 1950.)

      Mr. W. T. Reed, for appellants.

      Mr. Wray Bevens, prosecuting attorney, Mr. George D. Bye and Mr. Wm. E. Knepper, for appellees.
   By the Court.

This is an appeal on questions of law and fact from a judgment in an action by relators as taxpayers to enjoin the county commissioners, the county auditor, and the county engineer from participating in the expenditure of any funds of Pike county for the maintenance, repair, or upkeep of two roads identified by name as “Stone Quarry” and “Lazar-Bricker” roads.

The respondents in the beginning contested the right of the relators as taxpayers to maintain this action on the ground that the prosecuting attorney had not refused to institute the action, but later the respondents withdrew the objection and waived any defense they might otherwise have had because of any defect in the request to the prosecuting attorney or of lack of proof of failure on his part to proceed. Later still, the respondents by cross-petition prayed the court for a judgment declaring that such roads were duly dedicated and established public roads upon which public funds could be expended for their maintenance and for other relief. In view of this cross-petition and the waiver, there is no longer any issue in this case as to the capacity of the relators to maintain this action.

The case is submitted to this court upon the pleadings, the exhibits and a transcript of the evidence introduced or offered 'in the trial court, supplemented by the testimony of one of the trustees of Pee Pee township that the trustees had done nothing and did not contemplate doing anything in the nature of exercising jurisdiction over either of the roads.

(1) A review of this record convinces us beyond doubt that Pike county has title to an easement for highway purposes on and over a strip of land 40 feet wide, and that the roads which have been marked out and established are within the limits of that 40-foot strip.

Long before Pike county had acquired any easement or any right in the public had arisen, the public, by suffierance of the private owner of the land, had when occasion arose used a path or trail following in a general way the same course as these 40-foot strips. The right of the public did not accrue, however, until the month of June 1941, as to the Stone Quarry road, and June 1945, as to the Lazar-Bricker road. At those times, the owners of the fee simple title to the land executed and delivered general warranty deeds to tiie county of Pike, conveying to it perpetual easements and rights of way for public highway and road purposes on and over these strips 40 feet wide. The county commissioners accepted the Stone Quarry road deed and it was duly recorded in the deed records of the county. The Lazar-Bricker road deed was manifestly used in preparing the minutes of the county commissioners, but was not recorded in the recorder’? office. It was apparently lost, and, because of that, another deed was executed and delivered at a later date.

Shortly prior to those dates, the county commissioners had, by resolutions duly passed, found that it was for the public convenience and benefit to take over, construct and improve certain roads identified by description corresponding to that contained in the aforesaid deed and appropriated money for that purpose. These roads were opened for public travel and money has been expended by the county commissioners in their construction and maintenance. These roads have been and are being used by the public, though not extensively, for pleasure, including a panorama of Lake White and surrounding territory spread out at a lower level.

The respondent commissioners did not invoke the provisions of Section 6860 et seq., General Code, relating to the location, establishment or alteration of a public road, and that is the chief objection raised by the relators to the expenditure of public money in the maintenance of these roads. Nor have the commissioners complied with certain statutory provisions for integrating these roads into either the state highway or the county system; nor have the township trustees assumed any jurisdiction over them. It is argued from this premise that they cannot be public roads and, that being true, public funds cannot be used in their maintenance.

On the other hand, the respondents contend that regardless of compliance with statutory requirements the facts and circumstances show that these strips were dedicated to the county for highway purposes, and that the commissioners and the public have accepted that dedication and, therefore, these roads became established as public roads.

Many collateral issues arose in this litigation, most of which were, in our judgment, entirely irrelevant. The end of the trial finds but one substantial issue dividing the parties, and that is whether these roads have become public roads as a result of the grants of the easements by the property owners, the acceptance by the county commissioners, their opening of them for public travel and their use by the public.

The relators in the first place make the broad assertion that since the enactment of the so-called “Green Highway Act” (Section 6965 et seq., General Code) there can be no snch thing as the creation of a public highway in any way other than that prescribed by that act. They also contend that in view of those statutes the cases on the subject of common-law dedication decided prior to their enactment are no longer controlling. The substance of those prior decisions is epitomized in 13 Ohio Jurisprudence, 738, Section 17, as follows :

“In order to constitute or effect a dedication of property to a public use at common law, except in those cases where the dedication is based upon a technical estoppel, three things are necessary, namely: The existence of an intention on the part of the owner to make such dedication; an actual offer on the part of the owner, evidenced by some unequivocal act, to make such dedication; and the acceptance of such offer by or on behalf of the public.

“A dedication, at common law, may be either express or implied. It is express when the animus dedicandi is expressly declared; it is implied when it arises by operation of law from the acts of the owner. No particular words or ceremonies, or form of conveyances, are necessary. Anything which fully demonstrates the intention of the donor, or the acceptance by the public, is effectual.”

That the authority of those cases has not been weakened by any legislative enactment is manifest from the Supreme Court’s recourse to them in the recent case of Village of Hicksville v. Lantz, 153 Ohio St., 421, in determining whether a public highway had been created in the absence of a statutory dedication. The court took occasion to set forth in the syllabus, as follows, the requirements of a common-law dedication:

“One of the essential'elements of a common-law dedication of property to a public use is the intention of the owner of the property to so dedicate it.

“That intention may be expressed or implied from circumstances.

“A common-law dedication of an owner’s property to a public use has the same effect as an express grant of such property to such a use; and the law requires that there be clear evidence of the owner’s intention to dedicate such property to such a use. ’ ’

So we conclude that the existence of the title to this land in the county for.public highway purposes is sustainable, even in the absence of formal deeds of dedication. But in this case the evidence shows that there were formal deeds of dedication delivered to and accepted by the county commissioners.

In Carder v. Commrs. of Fayette County, 16 Ohio St., 353, it was held that a. county could take title to property by devise, and the court said:

“The county commissioners are, by various statutes, authorized to ‘purchase’ real estate for the use of the county. S. & C. 1229, sec. 2, 249, sec. 1. Every lawyer knows, that title by purchase is title by any means except descent, and, of course, includes title by devise. That the word purchase will have this original and technical meaning, when used in a statute, and not controlled by other statutes, or the general policy of the law, was expressly decided by this court in American Bible Society v. Marshal, 15 Ohio St., 538. There is the total absence of any such policy, or counter legislation, and our laws, so far as they have gone, are in the contrary direction. The act of 1831 not only authorized donations of land to counties, but it contains, as do other statutes on the same subject, stringent provisions, in cases where the land is not donated, for insuring its purchase at the lowest price. If the commissioners can acquire land at the ‘lowest bid '* — which may be one cent — why may they not acquire it as a gift?”

From all this we reach the conclusion that Pike county has a valid easement for highway purposes over and upon the strips of land designated as Stone Quarry road and Lazar-Bricker road, that the commissioners have designated and opened them as public highways, and that the public has used and is using them for such purpose.

It is said in 20 Ohio Jurisprudence, 640, Section 15, that ‘ ‘ a conveyance of land to the county commissioners for a county road, the acceptance of the grant by the commissioners, the opening of the road by their order and its subsequent use as such by the public, and by the proper authorities, constitute a legal public highway, notwithstanding the want of statutory proceedings for its establishment.”

In 25 American Jurisprudence, 341, it is said: “A way is none the less a public highway because it is used for purposes of pleasure and recreation only. ’ ’

(2) The question remains as to the authority to expend public money in repairing and maintaining these roads. It should be said at once that as the commissioners have opened these roads for public travel, the duty devolved upon them to use reasonable care to keep them reasonably safe for travel in the ordinary mode. And the statutes confer ample authority upon the commissioners not only to improve established roads by entirely reconstructing them, but also to repair roads already improved, and this they may do either through independent contractors or by force account by complying with the relevant statutes in awarding the contract or in making use of force account.

Of course, in spending public funds for road purposes, as for all other purposes, the county cornmissiouers must comply with the relevant statutes prescribing the mode and manner thereof. This action does not require any more specific prescription. The occasion for greater particularity might arise wihen á specific action on the part of the county commissioners should be initiated or contemplated.

For these reasons, the court finds on the issues joined in favor of the respondents on the relators’ amended petition and on the respondents’ cross-petition.

Judgment accordingly.

Ross, P. J., Hildebrant and Matthews, JJ., concur.

Ross, P. J., Hildebrant and Matthews, JJ., of the First Appellate District, sitting by designation in the Fourth Appellate District.


text:
    The State, ex rel. Toht, Appellant, v. McClure, Dir. of Safety, et al., Appellees.

      (No. 2094
    Decided May 5, 1950.)

      Mr. Strother B. Jackson and Mr. Frank W. Krehbiel, for appellant.

      Mr. Mathias H. Heck, prosecuting attorney, and Mr. William H. Wolff, for appellees.
   Wiseman, J.

This is an appeal on questions of law from the judgment of the Common Pleas Court of Montgomery County, denying to the relator, Peter Michael Toht, a release in a proceeding in habeas corpus.

The record shows that Honorable Fuller Warren. Governor of the state of Florida, dispatched a requisition to the Honorable Frank J. Lausche, Governor of the state of Ohio, for the extradition of the relator as an alleged fugitive from justice from the state of Florida, where he had been indicted for the crime of highway robbery and afterwards convicted, sentenced and committed. The relator is being held by the police authorities of the city of Dayton on an executive writ issued by the governor of Ohio.

The hearings on the extradition and on the petition for the writ of habeas corpus were combined.

The relator assigns as error:

First, that the judgment is against the manifest weight of the evidence and is contrary to law.

Second, that the judgment should have been in favor of the relator.

Third, that the court erred in overruling the motion for new trial.

Fourth, for all other errors of law apparent upon the face of the record.

The record shows that the relator was convicted of robbery in the state of Florida in 1930. He escaped from the Florida state prison on March 20, 1931. At the hearing in the Common Pleas Court the relator proffered evidence to the effect that while in the Florida prison he was subjected to cruel and unusual punishment; that he was put in leg irons which were never removed while in the prison; that he was forced to work on the roads with chains and irons on his legs; that when he became weak and ill he was placed in what is called “the sweat box,” a space about four feet square and eight feet high, with no toilet facilities, where he was confined for a period of 10 days and given daily only a small piece of cornbread and a bucket of water. It must be observed that the acts took place approximately 20 years ago. However, relator offered to produce evidence to the effect that such treatment of the prisoners in the state of Florida has continued to the present time. The rejection of this evidence by the trial court is the principal error assigned.

Counsel for the relator set forth in their brief certain facts which do not appear in the record and which we are not permitted to consider.

The proffered testimony in this case is sufficient to arouse the sympathy of the court. However, we are required to apply and follow fundamental principles of law.

The question presented for determination is whether the courts of this state, in a habeas corpus proceeding, have the power to consider whether the constitutional rights of the relator are likely to be violated by a sister state. In determining this question we must assume that the treatment accorded the relator 20 years ago is still the practice in the state of Florida. We also assume, without definitely deciding, that such treatment constitutes cruel and unusual punishment in viplation of the provisions of the Constitution and statutes of the state of Florida, and the Eighth and Fourteenth Amendments to the United States Constitution. It may be conceded that the Eighth Amendment to the United States Constitution is not a limitation upon the states, except as implemented by the due-process clause of the Fourteenth Amendment to the United States Constitution.

This same question was presented to the Court of Appeals for Cuyahoga county in Ex parte Quilliam, 55 Ohio Law Abs., 336, 89 N. E. (2d), 493. The syllabus, as reported in 55 Ohio Law Abs., is as follows:

“1. The courts of Ohio upon habeas corpus proceedings have no power to consider whether the constitutional rights of the relators are being violated by a sister state.

“2. A writ of habeas corpus will not be granted to relieve a person convicted of a crime in a sister state from extradition to that state.”

The court, on page 337, stated:

“It is the view of this court that the question here presented is one which seeks to invoke the jurisdiction of this court to pass upon a question which it is beyond the power of this court to consider, that is, whether or not a sister state is violating the constitutional rights of one charged and convicted of crime by its courts.

“If the constitutional rights of a prisoner are being violated in the sister state, such question should be presented by proper proceedings to the courts of that state for remedy. The only remedy that would be available by granting the writs here requested would be to release the prisoners in the state of Ohio, thus in effect commuting their sentences for serious crimes of which they have been found guilty.

“Section 2, Article 4 of the Constitution of the United States provides:

“ ‘A person charged in any state with treason, felony or other crime, who shall flee from justice and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime.’

“The purpose of this provision of the Constitution is to prevent a state from becoming an asylum for persons charged with crime or for convicts from another state. ’ ’

In the foregoing opinion by the Court of Appeals there is no statement to the effect that the case involved the question of the infliction of cruel and unusual punishment. However, that case was taken to the Supreme Court of Ohio, where the appeal was dismissed on the ground that no debatable constitutional question was involved. That case is reported under the caption Ex parte Quillian v. Sweeney, Sheriff, 152 Ohio St., 368, 89 N. E. (2d), 494. A part of the headnote is as follows:

“Rejection of fugitive’s evidence of cruel and unusual punishment in demanding state — Cruel and unusual punishment — Due process — Section 15, Article I, Alabama Constitution — Section 9, Article I, Constitution — -Articles VIII and XIV, Amendments, ü. S. Constitution. ’ ’

Thus it appears that the identical question presented here was involved in that case.

A contrary view of the power of the court in a similar situation was taken by Judge Charles S. Bell (formerly a judge of the Supreme Court of Ohio) in an unreported opinion in a case arising in the Common Pleas Court of Hamilton County, Ohio, Ex parte Willie Ross. In an unreported opinion in Commonwealth of Pennsylvania, ex rel. Moreland, v. Dye, Warden, the Common Pleas Court of Allegheny County, in a case decided at the January term 1948, granted a petition for a writ of habeas corpus under facts similar to those presented in the instant ease. In Johnson v. Dye, Warden, the United States Court of Appeals for the Third Circuit, 175 F. (2d), 250 (judgment reversed, 338 U. S., 864, 94 L. Ed., 67, 70 S. Ct., 146), on May 17, 1949, reversed the judgment of the trial court and remanded the cause “with the direction to issue the writ and discharge the petitioner, ’ ’ a fugitive from justice from the state of Georgia. In that case the relator claimed he not only had been subjected to cruel and unusual punishment during his confinement in prison in the state of Georgia, but that if he were returned to the state of Georgia to complete the sentence his life would be endangered and he feared that he would meet death by mob violence. See, also, In re Hampton, 1 N. P., 181, 2 O. D. (N. P.), 579.

It must be noted that in the instant case there was no evidence proffered showing what punishment will be inflicted on the relator when and if he is returned to the state of Florida. The most that can be claimed is-that cruel and unusual punishment is likely to be inflicted. We are not confronted with a situation where the constitutional rights of the relator are now being violated, but where it is claimed that his constitutional rights are likely to be violated. There is no factual basis for concluding that the constitutional rights of all prisoners in the state of Florida are violated. Furthermore, we may properly indulge the presumption that the prison authorities of the state of Florida will' obey the laws and will not violate the constitutional rights of the relator. In effect, this court is requested to release relator on a writ of habeas corpus, which is an extraordinary remedy and granted only where there is a clear showing, on a mere expectancy of a violation of a constitutional right. In Johnson v. Dye, supra, the court invoked the judicial power to eliminate a threatened invasion of a basic constitutional right. However, we feel constrained to follow the judgment of the Supreme Court of Ohio in Ex parte Quillian supra.

If the constitutional rights of the relator are violated after he is returned to prison in the state of Florida ho must assert his rights in the courts of that state. The state of Florida and not Ohio is the proper forum in which to test this question.

Release denied.

Miller, P. J., and Hornbeck, J., concur.


text:
    The State of Ohio, Appellee, v. Yontz, Appellant.
    (No. 329
    Decided April 12, 1950.)

      Mr. Harry G. Johnson, prosecuting attorney, for appellee.

      Mr. James A. Weyer. for appellant.
   McClintock, J.

This is an attempted appeal from a judgment of the Court of Common Pleas of Guernsey County, in which the defendant (appellant) was charged in an information of exhibiting gaming devices for gain. The transcript of the proceedings, in part, is as follows:

“At January Term (March 15) 1949, Jour. 58, Page 597, defendant appeared in open court by counsel, waived the reading of the information and entered his plea of not guilty thereto. Bond fixed in the amount of $500. At January Term (March 17) and Dec. 16, 1949, Jour. 59, Page 45, and 229, defendant failing to show good and sufficient cause why the sentence of this court should not now be pronounced, it is the sentence of the court that defendant pay a fine of $200 under Ms conviction of guilty on the information and stand incarcerated in the Guernsey county jail for 90 days on each of the seven counts of said information. The court hereby directs that said sentence on said eounts shall be served concurrently and that 80 days of each 90 days is hereby suspended. Defendant to pay costs of prosecution for which execution is awarded.

“1949, March 21 — ‘Motion for new Trial,’ filed. At Jan. Term (April 25) 1949, Jour. 59, Page 18, motion for new trial overruled.

“1949, Dec. 20 — ‘Motion for New Trial and Notice,’ filed. At Jan. Term. (Jan. 24) 1950, Jour. 59, Page —„ motion for new trial overruled.

“1950, Feb. 15 — ‘Notice of Appeal,’ filed.

“1950, Feb. 15 — ‘Precipe,’filed.

“1950, Feb. 15 — ‘Bill of Exceptions,’filed.”

The transcript further shows that on the 16th day of December, 1949, the same proceedings as were had' in the journal entry of March 15 and March 17, 1949,. except the sentence of the court in the proceedings in the journal entry of December 16,1949, provided a fine of $200, and that defendant be imprisoned! in jail in Guernsey county, for a period of 90 days. Eighty days of such jail sentence was thereby suspended.

It is apparent that the attempted appeal was made by reason of the judgment and entry of December 16, 1949.

Section 13459-4, General Code, reads as follows :

“Such appeal, unless otherwise provided, may be filed as a matter of right within thirty days after sentence and judgment. After thirty days from such sentence and judgment such appeal may be filed only by leave of the court or two of the judges thereof. ’ ’

It is apparent that the first judgment and sentence as of March 17, 1949, were journalized and never vacated and that the second judgment and sentence were made after the January Term of 1949.

No explanation is given for filing two entries or for the second sentence and judgment. The first journal entry still stands as the sentence and the judgment of the trial court. Until that order is vacated or set aside, the court was without authority to again pronounce sentence and judgment. The court had exceeded its jurisdiction and the second order was a nullity.

For authority we cite State v. Trimmer, 80 Ohio App., 545, 76 N. E. (2d), 896, the first paragraph of the syllabus of which reads:

“1. Where the defendant was tried, found guilty and sentenced on a charge of contributing toward the delinquency of a minor, and the judgment and sentence were properly journalized, the court was without authority two days later to again pronounce judgment and sentence, unless the first order was vacated; the second judgment and sentence were null and void. ’ ’

We cite, also, the case of Lee v. State, 32 Ohio St., 113, the first paragraph of the syllabus of which reads:

“1. Where a court, in passing sentence for a misdemeanor, has acted under a misapprehension of the facts necessary and proper to be known in fixing the amount of the penalty, it may, in the exercise of judicial discretion and in furtherance of justice, at the same term, and before the original sentence has gone into operation or any action has been had upon it, revise and increase or diminish such sentence within the limits authorized by law. ’ ’

It is, therefore, the opinion of this court that no appeal was duly perfected from the first judgment and sentence in time in accordance with the law relating thereto and, for the reasons herein stated, the court on its own motion dismisses the appeal.

Appeal dismissed.

Montgomery, P. J., and Putnam, J., concur.