text:
    JUMPING FROM A MOVING TRAIN.
    [Circuit Court of Lucas County.]
    Caroline E. Betten v. The Toledo & Ohio Central Railroad Company.
    Decided, October 6, 1906.

      Negligence — Stepping from a Moving Train is Negligence Per Se, When —Choice Betroeen Perils — Questions for the Jury Developed by the Evidence — Inconsistency Between Plaintiff’s Story and the Argument of Her Counsel — Charge of Court — Challenging Jurors — Reproof of Counsel by the Court.

    1. It is negligence per se for one to jump from a moving train, after having been warned by the conductor not to do so, unless there is some fact made apparent by the evidence which in the opinion of a jury might excuse such conduct.
    2. The ovei-ruling of a challenge of a juror for cause will not be regarded as prejudicial error, where the party claiming such error failed to exercise all the peremptory challenges allowed him by law.
    3. A reviewing court can not say that a trial judge was guilty of misconduct in rebuking counsel or disapproving of some action on his part, where so far as is disclosed by the record the judge may have spoken pleasantly and with no tendency to prejudice counsel or his ease.
    Parker, J.; Haynes, J., and Wildman, J., concur.
    This is a proceeding in error, brought to obtain a reversal of the judgment of (the court of common pleas of this county. In the court below, Caroline E. Betten brought her action against the Toledo & Ohio Central Railroad Company to recover damages on account of personal injuries by her sustained, which, she charged, were due to the negligence of the defendant. On the 14th day of August, 1904, she was a passenger on one of the defendant’s trains, traveling from the city of Toledo to hex-home at Lime City, some ten miles south of Toledo. She had paid her fare and was entitled to all the care and protection due from a common carrier to a passenger. It was an excursion train, consisting of several cars, apparently very fully loaded. She was traveling with some relatives, who were also adults, and one had an infant child in her charge.
    The plaintiff was a woman about forty years of age, apparently in the prime of life, and in good health. She charges in her petition that the train was stopped at' the station of Lime City, for the purpose of allowing passengers fo alight therefrom; that a part of the passengers on said train had alighted after the said train had stopped, and plaintiff was in the act of alighting from said train, when the officers and agents of the defendant, in charge of said train, wrongfully, carelessly and negligently caused said train to be started in such manner that plaintiff was thrown violently upon the stone pavement composing the platform maintained by the defendant at said station. Plaintiff says that the defendant was careless and negligent in that it caused said train to be set in motion when the officers and agents of the defendant having charge of said train, knew, or should have known, that plaintiff was in the act of alighting therefrom. Plaintiff said she did not know, and had no means of knowing, that said train would be set in motion, and was without fault upon her part, contributing to the injuries she received; then follow the averments as to the injuries. And there was evidence tending to support her claim of negligence upon the part of the railroad company, and of an absence of negligence upon her part, and that she received serious injuries.
    The defendant company denied that it had been guilty of any negligence, and averred that the plaintiff was guilty of contributory negligence. The case was tried to a jury, which returned a verdict in favor of the defendant. A motion for a new trial having been overruled, the plaintiff below prosecutes error here.

      That the plaintiff was a passenger, that she was traveling on the train; that the train stopped at Lime City, that she attempted to alight, that in alighting she fell or was thrown down, stands undisputed. It is also undisputed that the train stopped for the purpose of permitting passengers to alight, and that while the plaintiff was attempting to pass from the cars to the platform, the train started again. It seems that the conductor of the train was about this time very busy taking up the tickets of the passengers, and that the duty of the starting of the train was being performed by a brakeman, who was out on the platform, and that he signalled for the train to start before Mrs. Betten had a chance to alight from the train, perhaps supposing that all the passengers had alighted; at all events, there is no evidence that he observed that she had not alighted when the signal was given for the train to start.
    Nevertheless we think that the jury were authorized in finding upon the issue of the alleged negligence of the company that it was guilty of negligence, as charged; that it devolved upon the company, through its servants, to ascertain whether all the passengers who were attempting to alight, had reached the platform in safety, before it permitted the train to be started up again.
    It seems that the train, when it started up, advanced about ten feet and was then stopped again and the stopping again appears to have been because of a signal given by the conductor of the train, he having observed the predicament of the plaintiff as she was about to alight, pulled the bell rope and the train was stopped within a very few feet of where it started.
    The plaintiff contends, and as she relates the facts of this accident it appears, that she was just in the act of stepping from the platform, just swinging herself from the train when the train started and threw her down. On the part of the railroad company it was contended, and there was evidence upon the trial tending to show that when the train was started upon the signal given by the brakeman, Mrs. Betten was upon a platform of one of the cars, rather upon one of the steps leading from the platform of the car; that the conductor observed, or was apprehensive that she was about to attempt to alight, and that he called to her not to jump; that he immediately pulled the bell rope, giving the signal for the train to stop; but that notwithstanding the fact that the train was in motion, and that she had received this warning from the conductor, she jumped from the train and so was injured. And the verdict of the jury indicates that that is -the state of facts they found to be true. It is not comprehensible upon any other theory; they must have found that that was the way the accident occurred.
    With respect to that assumed state of facts, which the testimony tended to establish, a charge was given by the court, of which the plaintiff in error makes serious complaint, to the effect that one alighting from a train under such circumstances would be guilty of negligence per se; in other words, would have no right of recovery. I read that paragraph:
    ‘ ‘ The defendant claims that the plaintiff, when upon the platform of the car, was warned by the conductor that the train was in motion and that she should not leave the car; that by not regarding the warning so given, knowing that the car was in motion, and jumping from -the car or leaving the car while it was in motion, and without regard to the warning that was given, the plaintiff was guilty of a negligent act without the commission of which she would not have been injured; in other words, by leaving the train under the circumstances, that she did, having had warning that she could not leave it, and knowing that it was in motion, she was guilty of contributory negligence. I will say to you that if you find from the evidence in this ease that the plaintiff, knowing that this train was in motion, was warned by the conductor in charge of the train, and told not 'to' leave the train while it was in motion; if a warning was given in that way, and under such circumstances as she understood it, and, notwithstanding such warning and such knowledge on her part, she leaped from the train, she can not recover in this action. Such conduct on her part would constitute contributory negligence, because it was her duty, if she knew this train was in motion and that the conductor of the train forbade her to leave the train at that time, to observe the warning and refrain from leaving the train, and if she did not do so, she in law can not recover in this ease, although you may find from the evidence that the defendant company was negligent in stai'ting the train before she had time to alight.”
    It is insisted by counsel for plaintiff in error that the weight • of authority is to the effect that one alighting from a moving train is not guilty of negligence per se; but that such action creates a presumption of negligence, a prima facie case of negligence, which is rebuttable, and which may be overcome by the circumstances attendant upon the act; that is to say, whether it would be negligence or not would depend upon other circumstances than the mere circumstance of attempting to alight from the moving train; and that this is so, even though the additional circumstance of a warning from the conductor accompanies the incident; and a great many authorities are cited in support of this contention. On the other hand, very respectable authorities are cited in support of the proposition that it is negligence per se to attempt to alight from a moving train.
    We think, however, that the better rule, and the rule supported by the great weight of authorities, is that contended for by plaintiff in error, that the question is to be submitted to the jury, if the circumstances are such as might, in the judgment of reasonable men, excuse the act of attempting to alight from a moving train. In other words, if the judgment of reasonable men would not all agree upon the proposition, it should be submitted to the jury; that there may be circumstances under which one would be entirely justified in attempting to alight from a moving train, rather than remaining upon it. One of the cases cited by counsel for defendant in error, is that of Morrison v. Railway Company; 56 N. Y.", 302, and in the course of the decision, Judge Folger says (page 306) :
    “The learned counsel for the defendant claims that the facts are such as that, as a matter of law, contributory negligence is shown, and that there was not a question of fact for the jury. He insisted that as a matter of law, it is always negligence and want of ordinary care, for a person to attempt to get off a car when it is in motion. Were I disposed to accede to this proposition upon principle, which I am not, I should feel myself precluded by prior decisions of this court, and influenced to a contrary conclusion by those of other courts (Filer v. Railway Co., 49 N. Y., 47, and cases cited; Penn. Ry. Co. v. Kilgore, 32 Penn. St., 292).. The rule established, and as I think, the true one, is, that all the circumstances of each ease must be considered in determining whether in that case, there was contributory negligence, or want of ordinary care, and that it is not sound to select one prominent and important fact, which may occur in many cases, and to say, that'being present, there must, as matter of law, have been contributory negligence. The circumstances vary infinitely and always affect and more or less control each other. Each must be duly weighed and relatively considered, before the weight to be given to it is known. This is not to say, however, that in every case, it is a question for the jury of fact, or of fact and of law to be given to the jury with instructions. Where the facts are undisputed, the question of contributory negligence may become one of law, as the other questions which arise upon a trial, and are submitted to the decisions of the court on a motion for non-suit or otherwise. ’ ’
    Then the learned judge proceeds with a discussion of the facts of the case he was deciding, and concludes that as a matter of law in that case the plaintiff in error was guilty of negligence per se.

    As I have indicated, we are not prepared to affirm as an abstract proposition that one who jumps from a moving train even after being warned by the conductor to not do so, is guilty of negligence which would preclude a recovery for injuries so received. But what is charged in this case we are not authorized to regard as being charged as an abstract proposition. It is to be read and construed in connection with the facts of the case as developed, by the evidence; it must be applied to the facts of the case and it must be applied here as if the court had added “unless from other circumstances shown by the evidence in the case it appears to you that an ordinarily prudent person under the same circumstances would have jumped from the train, notwithstanding the moving of the train and the warning.” That, of course, would have so modified it as to make it a charge that the jumping from the train made but a prima facie case of negligence.
    But the question of whether the court erred in not adding that qualification must be tested by an examination of the evidence to ascertain whether there were any circumstances shown to which the qualification might have been properly applied by the jury; whether there was anything in the circumstances that would have justified the jury in finding that Mrs. Betten was not guilty of negligence, even though she jumped from the train while it was moving, and after being warned by the conductor not to do so. I repeat, an excuse for doing an act that without excuse therefor would be per se negligence, must be found in the evidence, and not raised by imagination or conjecture of circumstances that might have accompanied the act. In this case Mrs. Betten is a witness in her own behalf, and she tells her story very briefly at page 36 of the record. After some questions leading up to this, she is asked:
    “Q. What occurred when the train reached Lime City? A. My daughter got off ahead of me and I was following, and when he called ‘Lime City,’ I was right back of my daughter, and after she got off I was just stepping off when the train gave a jerk and threw me, and, of course, that is the last I remember.
    “Q. Had the train come to a stop to let passengers off? A. Yes.
    “Q. Did you know the train was about to start up again? A. No; I did not think it would start. •
    “Q. Do you know how you fell? A. I know I struck my head and my back. ’ ’
    Those are answers as to how it came about that she was thrown; according to her own story, she was not aware that the train was moving when she attempted to alight, and she was in the very act of alighting from the car when the movement of the car in starting up threw her so that she fell.
    Counsel for plaintiff in error, in his brief, says:
    “In this case Mrs. Betten was compelled by an act of the defendant to elect between an alternative danger, namely, she was obliged to decide in an instant whether it was safer for her to step from the slowly moving train to the ground below, or to incur the peril of remaining on the platform of the train until, as she believed, the,train had reached the next station, or the peril of returning to the place in the car which she had occupied before the train reached Lime City. The negligent act of the company’s servants in starting the train interfered to some extent with her free agency, and the slowly moving train, negligently started as it was, created a confidence that the attempt could be made with safety; much more safety than would have been in her remaining on the platform of the train, or turning around and climbing the steps in an attempt to return to the position in the car which she had formerly occupied.”
    This is altogether inconsistent with Mrs. Betten’s own story. According to her story, she was not put to any election between perils, and her mind was not agitated by a consideration of the so-called peril of being carried forward by the train, and her free agency was not interfered with in any respect. She was alighting from a train which had stopped and which she did not anticipate would be started, and was thrown by the train suddenly starting up as she was in the act of alighting.
    Again, counsel says: “In the case at bar, Mrs. Betten was, by the wrongful act of the railroad company, placed in a position of peril, and the sudden impulse to step from the train, or jump, notwithstanding the warning of the conductor, was not unnatural to a woman under such circumstances; ’ ’ though Mrs. Betten swears most positively that she heard no warning from the conductor. And counsel says: “In this case we have not a man, but an infirm and nervous country woman, actually on the steps of a train which had just begun to move, while her husband and all her friends were on the ground, and she without protection, reasonably believing that she was about to be carried away, jumps off of the steps. Mrs. Betten had many times more reason to be frightened into jumping off than did the man in the Michigan case.”
    But according to the facts deduced in evidence here on behalf of the plaintiff, she was not then an infirm and nervous woman; but she was a woman in good health, in the prime of life, doing all her own work; indeed, helping about the farm work; though there is evidence tending to show that since then, and because of the injury she received at that time, she has become infirm and nervous. And all that is said here about her apprehensions of being carried forward, and of her acting upon the impulse and choosing between perils, etc., is entirely inconsistent with her claim and her story. It is imaginary if tested by her story. In other words, it is a conjecture of a state of facts that might have existed but not a state of facts which she relates and relies upon.
    At the same time, there is evidence in the case, which the jury must have considered and which the jury must have believed, tending to show that her story in this regard is incorrect, and that the truth lies nearer to the supposed case set forth by counsel in his brief. Upon this question, how far the jury would be required to go to reconcile the two stories, we need not express any opinion. They appear to us to be irreconcilable; but the jury would be authorized to consider other circumstances in evidence, even though they were circumstances not related by the plaintiff, and even though they were circumstances which, in the opinion of the jury, tended to contradict the story of the plaintiff. But the jury would not be authorized to go outside of the evidence for conjectures or imaginary cases or circumstances.
    I have pointed out that counsel for plaintiff in error argued along the line of the plaintiff being compelled to choose between perils, compelled by the wrongful act of the defendant to make such choice.
    We do not regard this as a case of that character. The jury may have been authorized to find that she was called upon to choose between the apparent peril of jumping from the train and the inconvenience of being carried beyond the station; but there was no peril in that; that is to say, it is not apparent from the evidence that there was any peril in that, and it is not properly so denominated, it does not come within that category of cases, it is not apparent, it is not shown that this possible inconvenience preyed on the plaintiff’s mind, so as to impair, its normal functions, or that she was paralyzed by fear, or felt so confused, distressed or excited, that she could not weigh or consider dangers and inconveniences; of that we find no hint appearing in the evidence that would authorize the jury to make such a finding. Had they so found it would be upon pure imagination or conjecture. Taking the most favorable view admissible of the plaintiff’s story, taking it as shown by the evidence, as we are bound to do in considering whether the jury should have been permitted to consider any circumstances that might have excused her action, we can not see that there is anything that would have justified the jury in finding that she was free from contributory negligence. In other words, we are of the opinion that unless there is some fact made apparent by the evidence to excuse such conduct, that it is negligence per se for one to jump from a moving train, after being warned by the copdticfcQj’ of the train net t<? do There may be own eumstances that would excuse such action; but we have no such circumstances related or set forth or made apparent in the record in this case; and therefore, in so far as this charge contained an abstract proposition which was wrong, we can not see that it was in any way prejudicial to the plaintiff in error. We find that there was no error in the charge when applied to the facts of the case, no excuse for such action being shown or claimed even by the plaintiff herself, the jury having found, as they were bound to do under this charge, and as they must have done, that she jumped from the train while it was in motion, while she knew it was in motion, after she had been warned by the conductor not to do so, after she had heard the warning, and without any other excuse than to escape the inconvenience of being carried beyond her station. We think, as applied to that state of facts, there was no error prejudicial to the plaintiff in error; so that the judgment will not be disturbed on that ground.
    The other matters complained of I will pass over by merely mentioning them. It is complained that there was error in the overruling of a challenge of a juror for cause. The juror stated that he was working, or had worked, perhaps was then working for the Lake Shore Railroad Company, which, he understood, had some connection with the Ohio Central Railroad Company, and he preferred not to sit as a juror. He was challenged and the court held that that did not amount to a cause of challenge, and it was overruled; thereupon he was peremptorily challenged by the plaintiff. In view of the state of the record, we are not now considering whether this was a good ground for challenge for cause or not, because the plaintiff still had left unused, and which were not used at all upon the trial, three peremptory challenges; and even if the court was in error upon this matter, there was nothing there prejudicial to the plaintiff in error.
    Counsel for plaintiff in error complain that the court below, or the trial judge, was guilty of misconduct in rebuking counsel, or disapproving of some action on the part of counsel, in such way as to prejudice Mm and his cause before the jury. We have looked into the matter; there seems to be something in it as counsel depicts and emphasizes it; but, of course, we can not find that on the record. For aught that appears, whatever was said was said pleasantly and suavely and had no tendency to prejudice counsel or his cause.
    We can not say that this verdict is against the weight of the evidence; we shall not stop to enter into a discussion of the evidence; it is so evenly balanced that we would not be justified in disturbing the verdict upon that ground.
    The judgment of the court of common pleas will be affirmed.

      Charles A. Thatcher, for plaintiff in error.

      Doyle, Lewis & Schaufelderger, for defendant in error.


source: Caselaw Access Project

license: Public Domain

text:
    STREET ASSESSMENTS AGAINST PROPERTY APPROPRIATED FOR PARK PURPOSES.
    [Circuit Court of Hamilton County.]
    William Scully v. City of Cincinnati et al.
    Decided, December 29, 1906.

      Municipal Corporations — Property Appropriated for Parlo Purposes— Lien of City for Street Assessments- — Claim for, Adverse to Lot Owners — Section 1536-111.
    The lien of a street assessment against property appropriated by the city for park purposes is merged in the higher title of the fee thereby acquired, and the city is entitled to retain the present value of assessments remaining unpaid from the amount assessed as compensation to the land owners.
    Nine annual installments of a lien for a street assessment remained unpaid at the time of the appropriation by the city for park purposes of the property so assessed. In making its order of distribution of the amount assessed by the jury as compensation to the land owners, the court below -retained a sufficient sum to satisfy the claim of the city for the unpaid assessments, Eium this older an appeal was tateu,

      Giffen, J.; Jelke, P. J., and Swing, J., concur.
    "While it does not appear from the cross-petition of the city auditor when, the work of improving the street was commenced nor when the assessing ordinances were passed, enough appears in the record, as against a demurrer, to show that the assessments were made and were liens upon the real estate in question at the time the same was appropriated for a public park. Maleley v. Whitmore et al, 61 O. S., 587-592.
    Section 1536-110, Revised Statutes, provides that, “The jury shall be sworn to make the whole inquiry and assessment,” and the record shows that they assessed the compensation to be paid for the several lots to the owner or owners of each particular lot.
    Whether or not the city was an owner by reason of its lien upon the real estate for unpaid assessments is immaterial, as its claims were adverse to the lot owners, and the adjustment of such claims is provided for by Section 1536-111, Revised Statutes.
    If no such adjustment were had in this proceeding, the lien would be merged in the higher title of the fee thereby acquired. The city was entitled to only the present value of the annual assessments; but the lot owners having declined to plead further, after demurrer overruled, will be deemed 'to have waived such defense.
    Judgment affirmed. Same entry in the case of Scully, Administrator, v. The City of Cincinnati el al and Burnet v. The City of Cincinnati et al (4289 and 4290).

      John C. Healy, for plaintiffs in error.

      John B. Schindel, for defendants in error.


text:
    LIMITATION ON RIGHT TO DISMISS WITHOUT PREJUDICE.
    [Circuit Court of Cuyahoga County.]
    Charles A. Turner v. The Pope Motor Car Company et al.
    Decided, December 21, 1906.

      Dismissal — Provision of Section 5314 — Giving Bight to Plaintiff to Dismiss without Prejudice — Svirit of the Statute — What Constitutes Pinal Submission — Directed Verdict for Defendant — Procedure — Trial.
    1. Where a bill of exceptions does not purport to contain all of the evidence offered by the plaintiff before resting, a reviewing court can not determine, even under the scintilla rule, that there was an issue of fact proper to be submitted to the jury.
    2. A motion'by defendant for a directed verdict in his favor, submitted after plaintiff has rested, is in the nature of a demurrer to the evidence, and calls for a decision vital to the controversy; and an effort by plaintiff to dismiss without prejudice comes too late, if delayed until after defendant’s motion for a verdict has been granted.
    Widdman, J. (sitting in place of Winch, J.); Marvin, J., and Henry, J., concur.
    Error to the Court of Common Pleas.
    The plaintiff in error was plaintiff in the court of common pleas of this county, suing the Pope Motor Car Company and the Baker Motor Vehicle Company. He asserts in substance that on or about September 5, 1903, said defendants entered into a contest of speed of automobiles on grounds leased by the Cleveland Automobile Club, and while engaged in said contest they so negligently operated their respective automobiles and . drove them at so high a rate of speed that they lost control of them, with the result that they collided, whereupon the car owned by the Baker Motor Vehicle Company was hurled with frightful force and velocity across the track, which it left and crashed through a fence bounding said track and into a crowd of spectators. The plaintiff was one of them, and while in a proper place afid one which under ordinary eircumstances was safe, he was struck by the car so leaving the track and received severe injuries. lie alleges damages and asks judgment for the same against both defendants.
    Issue was taken on these claims and the case proceeded to trial. After the introduction of evidence by the plaintiff he rested his case, whereupon both defendants moved for a verdict. These motions were considered by the court and passed upon, as disclosed by the bill of exceptions, as follows (I quote the language of the trial judge) :
    “This motion is sustained as to the Pope Motor Car Company for default of proof of its having entered a car. That must be sustained.. There is nothing to show that this car was operated by anybody in the employ of the Pope Motor Car Company, and that it owned the car. I find there is no negligence shown against either of these companies, and the motion as to both will be sustained.”
    Thereupon counsel for plaintiff, after some indulgence for consultation, said to the court:
    “I am perfectly satisfied from this deposition and from the claim made here that the Pope Motor Car Company did not enter this car and did not control it. I think there is no doubt about that, but it now develops that a local company, unknown to us, until we appeared in this trial, did enter it and control it.
    “I have no objection to the granting of this motion as to the Pope Motor Car Company, because they did not enter and did not control it, but I do not want that motion granted as to the Baker Company, because this plaintiff has a right to bring his action against the party that did enter and control jointly with the Baker. I am asking that as to the Baker Company this action may be dismissed without prejudice.”
    After some discussion the court took the matter under advisement until the following morning. At that time, on the convening of the court counsel for the plaintiff said:
    ‘ ‘ The plaintiff now, before any other order is made or found, dismisses this case as to the defendants, without prejudice.”
    And the jury having been called by' the court, counsel for plaintiff renewed his attempt to dismiss in the following words:

      “If the court pleases, before any direction to the jury is given in this case, the plaintiff dismisses the same as to both the defendants, without prejudice.”
    The court thereupon refused to enter the dismissal and directed a verdict for the defendants, which was at once returned by the jury.
    To the refusal of the court to enter the dismissal of the case without prejudice, and to the direction given to the jury, plaintiff excepted, and filed his motion for a new trial, asserting as ground therefor not only the refusal to enter the dismissal of the action, but also the instruction to the jury to find for the defendants.
    AVhile, as appears from the foregoing statement, the plaintiff expressly conceded the correctness of the court’s ruling on the motion to instruct the jury to find for the Pope Motor Car Company, his attempt to dismiss his action without prejudice to another was made to apply to both defendants. I will not spend time in discussion whether any distinction is now to be drawn between their relative rights as to such dismissal. It is very clear, however, that the court’s action in charging the jury to find for the Pope Company can not now be relied on as ground for new trial, if the case was still in court for any charge at all.
    And as to both defendants we need not tarry long to consider the court’s action in sustaining their motions, so far as it is affected by the sufficiency or insufficiency of the evidence. The bill of exceptions, as we read it, does not purport to contain all the evidence which had been offered by the plaintiff before resting; and, as I am informed by my present associates, this court has repeatedly held that it will not presume error of the court below under such circumstances; in other words, that even under the scintilla rule the reviewing court can not determine that there was an issue of fact proper to be submitted to the jury, Avhere such court has not before it the evidence and all of it bearing on such issue.
    The remaining question, and that on AA'hieh most emphasis has been placed in argument, is that raised by plaintiff’s effort to dismiss his action against the defendants Avithout prejudice.

      Referring to Section 5314 of the Revised Statutes, we find the provision relied on by the plaintiff as sustaining his contention of error, as follows:
    “An action may be dismissed without prejudice to a future action. 1. By the plaintiff, before the final submission of the case .to the jury, or to the court, when the trial is by the court. ’ ’
    It is urged that the trial here was to the jury and that there was no “final submission of the ease” until the jury had been charged by the court. On the other hand, it is contended that when the plaintiff had rested his ease, and a motion was addressed to the court by the defendants, raising an issue vital to the determination of the action, the ease was thereby submitted to the court, and that an effort by the plaintiff to dismiss after the court had announced its opinion and had sustained the motions, was too late.
    It can not be denied that the plaintiff’s contention has the support of respectable authority outside of the state: but it should not be adopted unless it is in harmony with the spirit as well as the letter of our statute. An aid to the proper construction of the law may be found in the evident purpose of its’ enactment and its limitations. That justice should not fail because of technical defects in the preparation and presentation of an action, the right is given to the plaintiff to dismiss and begin anew; but the exercise of this right is limited to a period prior to the final submission of the ease. Why this limitation? If the plaintiff- has failed in his action by reason of lack of evidence on its first trial, why may he not have repeated retrials at his discretion until he obtains his due? Manifestly because the rights of defendants are involved. They can not justly be subjected to unnecessary loss of time and expense of litigation, to enable the plaintiff to readjudicate his claims after a competent tribunal has once decided them. The motion in this case, presented by the defendants, called for a decision of the court which was vital to the controversy. It was in the nature of a demurrer to the evidence, and we see no reason, when we look to the spirit and purpose of this statute, why it should not be treated much as a demurrer to a petition-would be; a submission to the court of the question whether the case presented by the plaintiff in evidence as in the other case by petition, would warrant a judgment.
    Reference in this connection should be made to the case of Beaumont, Jr., et al -v. Herrick, 24 O. S., 446, furnishing a consideration of the question in a but slightly different aspect. I quote from the syllabus:
    “Where a ease is submitted to the court on a demurrer to the answer, the ground of the demurrer being that the answer does not contain a defense, and the demurrer is overruled, the plaintiff can not, without the leave of the court, dismiss his action without prejudice. The submission of the case on the demurrer is a final submission of the ease within the meaning of Section 372 of the code (now R. S. 5314), unless leave is obtained to reply or amend.”
    It may be noted in passing that no appeal was made to the court in the case at bar to withdraw a juror and permit the plaintiff on a retrial to fortify his case by additional evidence. Such a procedure would seem somewhat analogous to the amending of a pleading, after demurrer, for insufficiency; a procedure altogether discretionary with the court to grant or refuse.
    On page 457 of the opinion in Beaumont v. Fletcher, supra, it is said as a ground for the holding which I have quoted :
    “The legal consequence of the overruling of the demurrer was a judgment of dismissal.”
    So, in this case, the legal consequence of the court’s ruling on defendant’s motion was a judgment of dismissal; but, as in the case cited, without preservation of a right to prosecute another suit.
    The case of Crowley v. Chamberlain <& Co., 6 0. D., Reprints, 377, decided by the Hamilton District Court in 1880 and undisturbed and unquestioned so far as we are informed by any subsequent Ohio decisions, is more directly in [joint. The facts were substantially as in' the case at bar, arid the court, sustaining the Superior Court of Cincinnati, held that there was no error in refusing permission to the plaintiff to dismiss his action without prejudice.

      The case of Hunit v. McNmnee, 141 Fed. Reporter, 293, decided by the United States Circuit Court of Appeals, Fourth Circuit, is to similar effect.
    Without further discussion, it is sufficient to say that our view sustains the opinion and judgment of the trial court and the judgment will be affirmed.

      Walter C. Ong, Hurlbut & Hurlbui, for plaintiff in error.

      Goulder, Holding & Hasten, for Pope Motor Car Company.

      Hoyt, Dustin c§ Kelley, for Baker Vehicle Company.


text:
    ACTION BY EXECUTRIX ON NOTES.
    [Circuit Court of Cuyahoga County.]
    Eldoras S. Tucker v. Alma S. Sherman.
    Decided, December 21, 1906.

      Pleading — Amendment—Substitution of Plaintiff as Executrix for Plaintiff as an Individual — Promissory Notes — Action on — Ownership of — Defenses—Charge of Court — Written Charges which Need not be Sent to-the Jury Doom — Section 5190.
    1. The requirement of the code that amendments shall be allowed at all stages of a case when in furtherance of justice, is sufficient authority for permitting a plaintiff who has sued in her individual capacity to substitute herself as executrix.
    2. Where an executrix, suing on notes, alleges that they were the property of her testator long before they became due, and were his property at the time of his death, and the defendant denies ownership, the production of the notes at the trial is not prejudicial ,to the defendant, nor is it error to admit them in evidence.
    3. The placing of an endorsement upon a note by the payee after the death of the owner in no way affects the question of ownership; and a charge of court to the effect that the possession of the notes, either actual or constructive, by the testator affords a presumption of ownership, is not prejudicial where there is no denial of ownership by the testator at the time of his death, and is not erroneous, although not justified by anything in the evidence.
    4. It is not error for a court to refuse to send instructions to the jury which were not requested until after argument.
    . Marvin, J.; Wildman, J., and Henry, J., concur.
    Error to the court of common pleas.

      The defendant in error brought suit against the plaintiff in error upon two promissory notes, setting out each one as a cause of action against the defendant below. This suit ivas brought by her in her individual personal capacity. The notes sued upon are alike, except that one is payable two years after its date and the other three years after its date. The first note reads:
    “1,500.00 “ Painesville, Ohio, March 18, 1896.
    “Two years after date I promise to pay, to the nrder of IT. C. AValton, Fifteen Hundred Dollars, at Boughton, Ford & Co., Burton, Ohio, with interest at 6 per cent, annually, value received.
    “Secured by mortgage. E. S. Tucker.”
    The following is written on the back of said note:
    “Pay to Alma S. Sherman or order.
    “U. C. Welton.”
    There are no credits endorsed on said note.
    The other note, as has already been said, is the same, except that the time of payment is three years from date instead of two years from date.
    This suit was begun on the 10th day of June, 1902. On the 31st day of December, 1904, on motion of the plaintiff, she was permitted by the court to amend her petition, substituting herself as executrix of the will of Roger Sherman, deceased, for herself in her personal capacity, and alleging that by reason of the facts set out in said amended petition she was the owner of said notes as such executrix. This amendment was made over the objection of the defendant, but an exception was taken to the order allowing the amendment. The plaintiff was also allowed to amend by making a new party defendant in the case, but nothing that was done by the court in reference to such new party in any wise affects any of the parties now before this court, and nothing need be said as to that amendment. As to the amendment substituting herself as executrix, an exception was taken.
    We think that the action of the court in that regard was fully justified by the ease of Bochar v. Walworth, 45 O. S., 169. On pages 174 and 175 where this language is used: (It should be said, however, before reading this, that a suit was brought against a person as in his personal capacity and that thereafter application was made for leave to amend, letting the suit stand as against the defendant as executor.)
    “The iiJing of the first petition in the case is claimed to contain an election. In the caption to that pleading the defendant was described as ‘Michael Becker, executor of the estate of Abram Rafenstein, deceased,’ and in the body the allegations purported to charge him as executor. Before answer, on leave, the petition was amended so as to charge him personally. This leave was granted without prejudice to defendant’s right to insist that plaintiff had elected to make her claim against him as executor, and not personally.
    “Our practice encourages great liberality in pleading, and the code enjoins the duty of allowing amendments at all stages of a case in furtherance of justice. The commencement of the action by the filing of an original -petition against defendant as executor worked no prejudice to him, and it is not easy to see why such commencement of the action should preclude amendment on the part of the plaintiff in order to charge him personally. It was no more than the discontinuing of one action and the commencement of another, and this may have been induced by the discovery that the one would prove wholly fruitless. ’ ’
    That reasoning, applied to this case would justify the court in permitting the amendment to be made, and there was no error in that regard.
    It is further claimed that the court erred in admitting the notes in evidence. I read certain allegations in the amended petition and certain parts of the answer. The first cause of action is upon the note due in two years, and the second upon the note due in three years. In each ease this language is used:
    “There are- no credits endorsed on said note; said note was duly indorsed in blank by said U. C. Welton, and sold and delivered to said Roger Sherman by him long before its maturity, and said Roger Sherman was the owner and holder of said note at the time of his death.’’
    In answer to this the defendant sets out that there was a fraud perpetrated upon him in the procuring of these notes; that he was induced by certain fraudulent representations and conduct on the part of the payee of the notes to give the notes in part payment of the purchase price of certain lots near the city of Chicago; that the lots were not the ones shown to the cléfendant at the time he made the purchase; that they were not such lots at all as they were represented to be, and that Sherman (the deceased) was a party to that fraud; but the only denial contained in this answer is in these words:
    “This defendant denies that said notes are owned by the plaintiff, and he says that if and so far as said plaintiff may on the trial hereof produce evidence of her ownership, she took whatever title she has or shall show with notice of this defendant’s said claim and defenses to said notes, and after the same each became due by the terms thereof, and her said testator at the time he received said notes and at the time of the giving of the same was interested with said Welton in said transaction and in said lots, and in said transaction the said Welton acted in whole or in part as agent for said Roger Sherman, deceased, who was then in full life.”
    The plaintiff said she owned the notes as executrix. The defendant denied it. Plaintiff said she owned the notes, because they were duly endorsed ’in blank by IT. C. Welton and delivered by said Roger Sherman long before maturity, and said Roger Sherman -was the owner and holder of said notes at the time of his death. That is not denied. It is urged that it i.s a sufficient denial of all the facts -to deny the ownership in .that way, and in a brief submitted to-day attention is called to 66 O. S., 121, and especially to page 135; 15 O. S., 225, and the language of the court on page 250; 58 Fed. Rep., 681; 13 O. S., 228. In each of these eases it is held that it is a denial of the right of the plaintiff to recover when one denies the ownership of a note sued upon, lie need not set'up the facts upon which he relies as showing that the plaintiff is not the owner. But here the plaintiff has set out the facts upon which she relies to show that she is the owner, to-wit, that the notes were notes of her testator long before they were due, and that they were endorsed in blank and delivered to him and that they were his property at the time of his death. So that under the pleadings it was not necessary for the plaintiff to show thát the notes were sold to the testator and delivered to him in his lifetime and that they belonged to him at the time of his death, but she offered the notes in evidence, and it is said that there was error in admitting them in evidence. She had testified that the notes were in her possession. She testified where she found them — one in the safe with her husband’s papers, and the other in a bank at Titusville, Pa. There is nothing to indicate how it came to be there. The allegation of the petition is that it belonged to her husband when he died. Now, when she produced the' notes in evidence it is- a sufficient showing, at least it tended to show that she as executrix was the owner of the notes. Indeed, I think it was enough that they were the property of the testator when he died, and that she had them as the executrix of his will, and there need be no other showing about it. It certainly could not prejudice the defendant below that she produced the notes as tending to show her ownership of them as executrix.
    In the brief of counsel for plaintiff in error it is urged that there was no evidence that the name of the payee on the back of the note was his genuine signature. It was not necessary to show that that was a genuine endorsement, because it was not denied. The plaintiff testified to the fact that the endorsement as it now appears upon the notes was not upon the note at the time of the death of her husband, but that the only endorsement upon the note at that time was simply the name of the payee, and that the- words appearing above that name now on the notes, “Pay to Alma S. Sherman or order” were-written after the death of Roger Sherman. ‘ ‘ I hereby waive demand of notice and protest. U. C. Welton:” It appears that these endorsements were made after the death of Roger Sherman. Remembering that the notes belonged to Roger Sherman when he died, no action of the payee could take away the ownership of these notes in the representative of Roger Sherman. For as they did not belong to Welton, he could not make any endorsement after the death of Sherman which could change the ownership.
    It is said, however, that there was error in the charge of the court in these words:
    “It is the claim of the plaintiff that after the death of Roger Sherman tírese notes were found among his papers, or were found under such circumstances or in such place as indicated that they were under his control at the time of his death, and in his possession, actual or constructive, and it is also claimed by plaintiff that at that time the only endorsement, on the back of the note was the name U. 0. Welton. Now, if that be true, if these notes were found in his possession, actual or constructive, and by constructive I mean that they were found where he had placed them for some purpose without intending to part with the ownership of them, the presumption, I say, would be that they belonged to him at the time of his death.”
    There was nothing in the evidence that could justify this language. But there being no denial of his ownership at the time of his death, there was no prejudice in that. The same may be said as to other language of the court in regard to establishing the ownership of the notes. It was admitted that they belonged to Sherman when he died.
    Again, complaint is made of the action of the court in refusing to send certain written instructions to the jury. The facts, as shown by the bill, are that after argument the court said that plaintiff had submitted twenty-one requests; that the court declined to give these requests except as given in the general charge, and then the court said, as appears on page 27 of the bill:
    ‘ ‘ The requests of the defendant to charge, the court will give, all except the 8th; but I have great doubt, Judge Bentley, whether I ought to give the eighth one — the last one; I don’t know whether it would be fair to the other party to give that request in this case.
    “Mr. Bentley: I think fairness to the defendant, Tucker, requires something in the nature of that request, or that something of an equivalent nature should be given.
    “Ti-ie Court: I will give it.”
    Then follow two requests. The language is:
    “1. The defendant, Tucker, moves the court to dismiss this action upon the pleadings herein.
    “This request is refused.
    “2. In case said first request is refused, said defendant, Tucker, requests the court to direct the jury to return a verdict for the defendant, Tucker.
    “This request is also refused.
    “Then comes the charge proper to the jury.”
    This is followed by numbered paragraphs, beginning with No. 3 and ending with No. 8, and then follows 'what is further said* to the jury.

      It is nowhere said that the numbered paragraphs were in writing, and only by implication is it said that they were instructions requested by any one. We think it fair to treat them as being in writing and as requested by the defendant. At the close of the charge the bill shows the following:
    “Counsel for defendant, Tucker, asks that the requests to charge that were given go with the jury on their retirement. Said request was refused.”
    As already said, the implication is that these were in writing, and we treat them as though they were. It can not be assumed that these requests were made before the argument. We must treat them as being made at the conclusion of the argument.
    This brings us to the construction of Section 5190, Revised Statutes, the 5th and 7th subdivisions of which read:
    “5. When the evidence is concluded, either party may present written instructions to the court on matters of law, and request the same to be given to the jury, which instructions shall be given or refused by the court before the argument to the jury is commenced.
    “7. The court, after the argument is concluded, shall, before proceeding with other business, charge the jury; any charge shall be reduced to writing by the court, if either party, before the argument to the jury is commenced, request it; a charge or instruction, when so written or given, shall not be orally qualified or modified in any manner to the jury by the court; and all written charges and instructions shall be taken by the jurors in their retirement, and returned with their verdict into court, and shall remain on file with the papers of the case.”
    These subdivisions read substantially as the 5th and 7th subdivisions of old Section 33 of the criminal code, found in 74 Ohio Laws, page 349. There is no difference in the reading in so far as the written instructions to the jury are concerned.
    In the caise of Griffin, v. The State, 34 O. S., 299, the second clause of the syllabus reads:
    “Under Section 33, Title 2, Chapter 6 of the penal code (74 Ohio L., 349), special instructions given to the jury in writing, after argument, are not required to be taken by the jury, in their retirement, where the principal charge is not required to bo in writing.”

      The opinion of the court bears that out. On page 303 the court say: .
    ‘ ‘ The only charges that the court is required to reduce to writing', under either clause of the section, are such charges or instructions as it is requested to reduce to writing before the argument is commenced; and it is top late to make the request after the argument is commenced.”
    To the same effect are the cases in 10 C. C., 153-4; 9 C. C., 691. In each case the opinion was delivered by Judge King, and it is said that the requests which must go to the jury are those mentioned in subdivision 5, to-wit, requests to charge before argument. Entirely consistent with these authorities are the cases in 68 O. S., 543, and 40 O. S., 430.
    Following the construction given to these several statutes, we find no error in the action of the court in this regard, and no error in the record of the case.

      Judgment affirmed.

      C-. S. Bentley, for plaintiff in error.

      N. H. Boslwich, for defendant in error.


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    LIABILITY FOR. INJURY TO MOTORMAN IN A COLLISION.
    [Circuit Court of Hamilton County.]
    The Interurban Railway & Terminal Company v. Frederick J. Treuheit.
    Decided, December 29, 1906.

      Electric Railways — Motorman Injured in Collision — Negligence of Company — Contributory Negligence of Motorman — Rule of Prudence as Applied to One Placed in Peril — Operating Rules of Company Construed — “Bell” Signals to Start — Control of Car by Conductor “Between Terminal Stations” — Charge of Court.

    1. Tbe motorman of an electric car is guilty of contributory negligence if, by the exercise of ordinary care and prudence, he ought to have discovered the presence of another car on the same track in time to have avoided the collision in which he was injured.
    2. The rule of law that one who is placed in a situation of danger without his fault is not to be held to the exercise of the same care and circumspection that prudent persons would exercise when no danger is present, does not apply to a motorman injured in a collision, who testified that “the instant I saw the other car approaching I threw the current off and applied my brakes — the only thing I could have done.” •
    3. Whether a car barn situated midway on an electric railway, where conductors are required to stop for orders from a train dispatcher, is a terminal station within the meaning of a rule of the company which gives a conductor control of the car in regard to starting, stopping and general management of the car “between terminal stations,” is a question for the jury under proper instructions from the court.
    4. A rule of the company which requires a conductor, upon receiving orders from the train dispatcher to “verbally communicate them to the motorman before proceeding,” will not be construed against a motorman who started his car upon receiving a “bell” signal from the conductor to start, inasmuch as he could have placed no more reliance upon a “verbal” order to proceed than upon a bell signal, if they both came from the same person.
    The plaintiff .below sued for damages on account of injuries sustained while employed by the railway company as a motorman. He alleged that he started his car eastward from the Coney Island barn toward Bethel, upon signal so to do given him by the conductor of the ear; that he was running on or about schedule time; that it was a single track road, and when about eight minutes out, and on a sharp curve, he saw a car approaching from the opposite direction about one hundred feet distant; that he remained at his post to reverse the current and apply the brakes, and in so doing was caught in the crash, and lost one foot thereby and sustained other injuries; that the car which he met was an extra car, and that the defendant company wantonly, negligently, willfully and unlawfully failed to give him any warning of the approach of said car. The jury found in his favor, and assessed his damages at $2,000.
    Giffen, J.; Jerke, P. J., and Swing, J., concur.
    The defendant below requested the court to give to the jury before 'argument the following special instructions, which is a correct proposition of law applicable to the evidence in the case, and its refusal was error:
    ‘ ‘ If you should find from the evidence that the plaintiff, when going up the track along three mile road, by exercising ordinary care and prudence ought to have discovered the presence of the other car in time to have stopped his own ear without a collision, then I charge you that his failure to do so would be contributory negligence on his part, and he could not recover a verdict in this case against the defendant. ’ ’
    The general charge contained this proposition:
    “The law further says that when a person without his fault is placed in a situation of danger, he is not to be held to the exercise of the same .care and circumspection that prudent persons would exercise where no danger is present; the question in such case is not what a person of ordinary care and prudence would do under ordinary circumstances, but what would he do or ought reasonably be expected to do in the presence of such existing danger.”
    The evidence does not present a situation where the plaintiff was required to choose suddenly between different courses of action. The plaintiff himself testifies that “the instant I saw the other car approaching, why 1 threw the current off and applied my brakes; the only thing I could have done,” and pleads substantially the same facts in his petition. The charge was, therefore, misleading and erroneous.
    The court gave to the jury the following special instruction:
    ‘ ‘ If you find from the evidence that the defendants, the Interurban Railway & Terminal Company, placed the plaintiff as motorman under their employ, under the control of the conductor of the car, in regard to the starting, stopping and general management of the car between terminal stations, the defendant is liable to the motorman for an injury received without plaintiff’s fault, occasioned by the negligence of the conductor, while they are both engaged in their respective employment. ’ ’
    The liability is here made broader than the finding would warrant. It should be limited to the negligence of the conductor while both are engaged in their respective employment between terminal stations.

    Whether the car barn was a terminal station, within the meaning of the company’s rule, to which the instruction applied was a question for the jury under proper instructions from the court.

      There was testimony tending to prove a custom or rule of the company, that, on the arrival -of a car at the car barn the conductor was required to obtain orders from the train dispatcher, and verbally communicate them to the motorman before proceeding. If there was such a rule or custom, and was understood by the plaintiff motorman, it was his duty to wait for such orders, and not to proceed upon a mere bell signal from the conductor. It is, however, very improbable that the rule was so strict as to require a transmission of the oilers -verbally by the conductor to the motorman, as the latter would have no more assurance that the orders came from the train dispatcher than he would if transmitted by bell signal, unless he verified them by going himself to the train dispatcher; but there is no pretense that the rule required him to do so.
    - We are of opinion that the instruction was erroneous. There was no error in refusing to give special instruction No. 8 requested by defendant, as it merely states a self-evident truth.
    We are of opinion, further, that the verdict is not sustained by sufficient evidence; but in view of the conflict in the testimony, we are not prepared to say that the defendant was manifestly free from negligence, nor that the plaintiff was manifestly guilty of contributory negligence.
    The judgment will be reversed for error in the instructions above specified and the cause remanded for a new trial.

      Frank F. Dinsmore and Chas. M. Leslie, for plaintiff in error.

      G. 8. Schneider, L. H. Zeier and Jas. E. Robinson, contra.


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    REMOVAL OF SIDE-TRACKS FROM LEASED LAND.
    [Circuit Court of Columbiana County.]
    Byron S. Ambler v. Erie Railroad Company.
    Decided, October Term, 1906.

      Trade Fixtures — Removal of — Where the Fixture is a Railway SideTrack on Leased Land — Reservations in Lease — Abandonment of Premises.

    Where a railroad company puts down side-tracks, at the request of a coal company upon its leasehold estate, for the purpose of removing the coal, the lease providing that, upon an abandonment of the premises upon the part of such coal company, it shall have the right to remove the mining'appliances, such railroad company has a" right to remove such side-tracks, upon the abandonment of the premises by the coal company, over the objection of the lessor, provided it does so without doing substantial injury to the freehold, and before such abandonment takes place.
    Cook, J.; Burrows, J., and Laubie, J., concur.
    John McCIymonds was the owner of a farm in this county. Many years ago the predecessors of -the Erie Railroad Company, to whose rights the Erie Railroad Company succeeds, secured a right of way for railroad purposes for a double track railroad sixty feet wide. , If there was any deficiency in the railroad company’s rights in its incipiency, it has been cured by occupation under the statute of limitations and such right had been conclusively settled.
    McCIymonds’ heirs made a lease to Byron S. Ambler and William Dunn for the coal underlying the farm. This lease was duly assigned and transferred by Byron S. Ambler and William Dunn to Frank M. Osborne, who now holds the same in his own right for the Lisbon Coal Company.
    Afterwards Byron S. Ambler purchased this farm from the McCIymonds heirs, subject to the rights of the Erie Railroad Company, and also subject to the rights of Frank M. Osborne and his assignees under his lease.
    The lease provided that the lessees should have the right to use so much of the surface as was necessary for buildings, tramways, tipples, tracks, and other appliances necessary to mine and market the coal. The lease further provided that whenever the lessees or their assigns should find it unprofitable to mine for coal on the premises, they might abandon the same, by giving thirty days’ notice to the lessor or their assigns, and after such abandonment, they might remove all appliances put there for mining and removing the coal from premises, if done within ninety days from the date of abandonment. Afterwards, by an agreement in setttlement of a law suit between the plaintiff and the Lisbon Coal Company, the lessees through Osborne, this time was extended, and notice, given to the railroad company by the Lisbon Coal Company of such extension.
    The railroad company had, at the request of the Lisbon Coal Company, put down four side-tracks to be used in the transportation of the coal of the coal company by the Erie Railroad Company. One of the tracks was upon the right of way of the railroad company which was the one nearest the main track, and the other three were upon the surface of the lands of the lessors.
    Previous to the expiration of the time for removing the appliances by the agreement -of the Lisbon Coal Company and plaintiff in the settlement of the law suit, the railroad company had removed the three side-tracks, situated upon the land then owned by plaintiff, as grantee of the McClymonds heirs, and after the expiration of such time was proceeding to. remove the side-track from its right of way, when this action was instituted by .the plaintiff to enjoin the railroad company from removing the last track, and also from carrying away the rails taken up from the other three tracks which were still upon his premises.
    Two reasons are assigned by plaintiff why the railroad company has no right to- take the last track up and remove the rails taken up from the other three tracks.
    First, that under the lease the lessor’s right to take them up iras within thirty days from the abandonment of the premises, and that the extension granted by the plaintiff under the settlement -of the litigation between him and the -Lisbon Coal Company did not enure to the benefit of the railroad company; and, second, that their tracks were such a permanent attachment to the surface that, upon the abandonment, they became absolutely the property of plaintiff.
    As to the first question: These trades were put down by the railroad company at the special request of the coal company. Three of them were upon the lands of the McClymonds heirs, but they were placed there under the provisions of the lease to the plaintiff as he well knew, he being the original lessee.
    . We see no reason why these side-tracks should not be governed by the same principles as the tipples, tracks and other appliances used by the coal company and placed there by it directly, and that, when the plaintiff extended the time of removal, such extension extended to the tracks of the railroad company, as well to the appliances constructed directly by the coal company.
    As to the second question, it is contended that in the reservation in the lease it was never intended that it should apply to such a permanent construction as the railroad tracks placed there for the purpose of transporting the coal. As to. this question we are of the opinion that if there had been no provision in the lease that tracks could be removed, yet, there being a provision that the premises might be abandoned, that the railroad company would have the right to remove its tracks when the abandonment took place.
    The abandonment was a termination of the lease, and would give to the lessee and those claiming under him the right to remove any appliance used as a trade fixture.
    What is a trade fixture depends very much upon the intention of the parties. Teaff v. Hewiit, 1 O. S., 511.
    An entirely different rule applies as to tenants, and persons having a permanent interest in the premises. The tenant owns the property but for a limited time; his tenure usually is short; hence the law is very lenient to him and usually permits him to remove any improvement except those the removal of which would be attended by a substantial injury to the freehold estate. •
    In this case it was anticipated, as shown by the lease, that the lesfeee might abandon the premises and thereby terminate the lease.

      The case of Wiggins Ferry Co. v. O. & M. Railway, 142 U. S., 396, is directly in point, indeed stronger than the case at bar, as it was an action at law for compensation. The railroad company laid its tracks upon the premises of the ferry company with the ferry company’s consent and afterwards abandoned the same. In that case it was said:
    “We agree' with the court below that the petitioner is not entitled to recover the value of the rails removed by the receiver from the premises upon Bloody Island. They were laid there under a mere easement granted by the petitioner, and obviously,with no intention that they should become part of the realty. As between landlord and tenant, or one in temporary possession of lands upon any agreement whatever for the use of the same, the law is extremely indulgent to the latter with respect to the fixtures annexed for a purpose connected with such temporary possession. It is incredible that it could have been the intention of the parties that the rails and switches laid upon this ground by the railroad eómpany should become the property of the landlord, when, by the terms of the contract, the ferry company had the right to put an end to it at any time upon six months’ notice. In Raoi. Ness v. Pacard, 2 Pet., 137, it was held that a house built by a: tenant upon land, primarily for the purpose of a dairy, and incidentally for a dwelling-house for the family, did not pass- with the land. The earlier authorities are reviewed in that case by Mr. Justice Story, and the conclusion reached, that whatever is affixed to the land by the lessee for the purpose of trade, whether it be made of brick or wood, is removable at the end of the term. Indeed, it is difficult • to conceive that any - fixture, however .solid, permanent and closely attached to the realty, placed 'there for the mere purposes of trade, may not be removed at the end of the term. In the case of Wagner v.-Cleveland do Toledo Railroad, 22 O. S., 563, it- was held that stone piers built by a railroad company as part of its road on lands over which it had acquired the right of way, did not, though .firmly imbedded in the earth, become the property of the owner of the land, as part of the realty; and that, upon the abandonment of the road, the company might remove such structures as personal property. ■So in Northern Central Railroad v.' Canto'n Go., 30 Maryland, 347, it was held that the rails fastened to the roadbed of a railroad, as well as the depots and other buildings, might, under certain circumstances, be treated as trade fixtures, and removable by. the company, if the surrounding circumstances showed, that at the time rails were laid upon the laud it was not intended that they should be merged in the freehold. In that case the road was built upon land under a license and permission of the owner. It is entirely clear that the rails in the case under consideration did not become part of the realty, and that the receiver was not guilty of waste in removing them from the land. ’ ’
    The petition of plaintiff will be dismissed at his costs.

      Carey <& Mullins, for plaintiff.

      Billingsley, Clarh & DeFord, for defendant.


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    REASONABLE BUILDING REGULATIONS.
    [Circuit Court of Cuyahoga County.]
    The Tenbusch Realty Company v. Myron B. Vorce, Inspector of Buildings for the City of Cleveland.
    Decided, December 21, 1906.

      Building Laws — Reasonableness of — Requirement as to Dead Walls— Change of Plans after Permit is Granted — Revocation of Permit— Wire Glass Windows — Injunction.
    1. A building restriction which requires that all walls built adjoining interior property lines shall be “dead,” or solid fire walls, with certain exceptions, is a reasonable regulation; and where it is discovered by the building inspector that the plans exhibited at the time be granted the permit have been changed in such a manner as to- disregard this requirement, he is clothed with authority to revoke the permit and forbid the occupancy of the building.
    2. Small iron frame wire glass windows placed in the upper stories of an interior wall of a building are in conflict with such a regulation, and injunction will not lie to restrain the building inspector from insisting upon obliteration of such windows.
    Marvin, J. (orally); Wildman, J., and Henry, J., concur.
    This case is here on appeal. The plaintiff, which is a corporation, is erecting a five-story brick building at northwest corner of Prospect avenue, S. E., and East Fourth street, S. E., in the city of Cleveland, and permission was obtained from the defendant, who is inspector of buildings, before the building was begun. A) large amount has been expended in the erection of the building, and it is now nearing completion. Unless restrained by the order of the court the defendant will revoke the permit and will prevent the completion .under the present plans' of the building, and the plaintiff prays that the defendant may be enjoined from revoking said permit and from interfering with the completion and occupancy of said building.
    The defendant justifies his proposed revocation of .'permit and his interference with the completion of the building on the ground, that the plans of -the building submitted to him at the time the permit was granted are not in accordance with the plans upon which the building is'being constructed; that under the plans submitted, the building could have been erected without any violation of the building code, so-called, provided by the ordinances of the city. That such code will be violated if the building is completed upon the plans which will be followed by the plaintiff, unless it is prevented.
    The right of the defendant to revoke the permit is found in Section 2, Title 3, Part 5 of the code. It is said in the brief, and I find what is quoted in the brief as being' the section, although I do not quite understand how it is made Section 2. It reads Section 2, but Section 2 under Title 3; and this one marked Section 2 immediately follows Section 29. However, there is authority in the section under certain conditions for an inspector to revoke. The section reads:
    “When the work for which any building permit was issued is not being performed in conformity to the detailed statement, plans or specifications upon which such permit was issued, it shall be the duty of the inspector of buildings to notify the owner or owners, or his or their agent, in writing, that the work is being constructed in violation of the permit,” etc.
    And then it proceeds to say that if they do not change the plans so as to make them conform to the plans of the building as shown at' the time the permit was granted, the inspector may revoke the permit.
    The section of the code which it is said, and which it is con- ■ ceded, will be violated by the completion of the building now proposed by plaintiff, is Section 27 of Title 29, which reads:

      “No buildings now or hereafter erected shall be altered or enlarged to encroach upon the minimum required space reserved for light and ventilation or for fire protection purposes, either on the same or on adjoining premises. All walls built adjoining interior property lines shall be ‘dead,’ or solid fire walls, except when built in conformity with Section 6, and any such wall having window or other openings in conflict with the aforesaid Section 6 or Section 8, shall, under the provisions of this code, be deemed an encroachment upon the aforesaid minimum required reserved space, but nothing in this section shall be so construed as to prevent an owner from enclosing any interior or outer line court by ‘dead’ walls along the lot lines, provided the measurements for such courts is taken from the inner face of such enclosing wall.”
    The Sections 6 and 8 referred to do not apply in any wise to such a building as is being erected here. One of the walls of this building adjoins an interior lot of land. The plans shown the defendant at the time this permit was granted showed this to be a ‘dead’ brick wall; that is, a brick wall without any openings. The plaintiff proposes to place windows in the upper stories of this building, these windows being small, the frame being of iron, the glass used being what' is known as wire glass, being a mesh of wire upon which molten glass or molten material for the making of glass has been turned so as to make the glass throughout with the wire meshes. They are to be placed upon pivots and may be turned in and out. The contention of the plaintiff is not that such windows will be as effective to check fire .as a dead wall would be, but that' they are practically as effective for that purpose.
    It is urged by the plaintiff in a brief filed today that it would be impossible to make any walls that would be so absolutely fireproof as that no danger could exist from conflagration. And the result, as shown by the fires in San Francisco recently and in Baltimore a few years ago, undoubtedly show 'this to be true. The evidence shows that the best windows that can be devised for protection against fire are the windows which the plaintiff here proposes to use, notwithstanding that to put in these -windows is to violate this section of the code.
    Plaintiff says that the ordinance is unreasonable and that the court may, therefore, hold it a nullity; that such regulations may be prescribed by the council as would justify such holding by the court is abundantly established by the authorities. Some of these are cited and quoted from in plaintiff’s brief. French on Police Power, Section 142 (63) ; Bushtrat v. People. 185 111., 133; Cohn v. Piske, 153 N. Y., 188; 98 Cal., 173, I will not stop to read.
    In Doming v. City, 22 C. C., 1, this court held that a regulation purporting to be a police regulation passed by the city was so unreasonable as to be a nullity.
    The question then to be considered is, whether this ordinance was so unreasonable as that it may be treated as a nullity and void. It ought not to be so held unless it is clear that it is a power in excess of the police power granted to a municipality.
    Attention is called by counsel for defendant to the case of Bosiock v. Sams, 93 American State Reports, 394, and especially to the notes in that ease. The notes are very full and very instructive. Note 2, page 406, is as follows:
    "Of course, the authority to enact and enforce building regulations can be sustained only on the ground that it is a part of the police power. This power may be exercised directly by the state, or its exercise may, in proper cases, be delegated to cities and other municipal corporations, and in every case where the statute relied upon purports to authorize the imposition of the regulation, the question is, whether it is a legitimate exercise of the police power. While the decisions upon the subject are too infrequent to be relied upon with confidence, we apprehend that here, as elsewhere, certain limitations upon the exercise of the police power exist arid must be respected, among which are that the regulation in question must not be arbitrary in its character, must be one which the courts will not judicially notice to be unnecessary, and must have a tendency to promote the public welfare or safety. The principal case presents, it is true, only the question of whether the ordinance was one the power to enact which had been conferred upon the municipality assuming to enact it, but we think the reasoning of the court to be equally applicable to general statutes upon the subject, and hence that it may be safely affirmed that a building regulation, however enacted, must not unnecessarily interfere with rights of property, and' if it assumes in any manner to regulate the location, dimensions, appliances, or material of buildings on the property of private proprietors, it must be declared unconstitutional, unless its enactment can be defended on the ground that it is necessary for the protection or preservation of the public health or safety. ’ ’
    Note 6, page 409, reads:
    “Regulations intended to promote the public health, safety, or morals, and reasonably adapted to those purposes, are within the police power and may be enforced when enacted by the state legislature or by municipal corporations whose charters or other grants of authority give them power to enact local regulations upon these subjects.” Citing a great number of authorities.
    As already said, the question in this case is, Was this regulation a reasonable one? It seems to us to be a reasonable regulation: a regulation well calculated to protect against danger from fire, and that any violation will be to increase the dangers from fire. It is urged that certain other provisions of this code are inconsistent with this. That one may construct buildings which would be equally dangerous by having them built about a court. It would hardly do to say that this is unreasonable because there is some other section of this code that is rinreasonable. We think this is reasonable, and it applies to all parts of the city. But it is said that that is one of the facts that make it unreasonable. It seems to us to be reasonable. If these windows are placed in the building, the building on the adjoining property is but two stories high, while this is five stories high, it would be much more likely to communicate in case of fire to the adjoining building than if this were a dead wall. One of the objects of windows is to have ventilation; that they shall be so hung as to be capable of being opened; if opened and a great conflagration comes on, it would be much more likely to communicate to the adjoining building through the windows than if it were a dead wall.
    We have, therefore, reached the conclusion that the petition must be dismissed.

      White, Johnson, McCaslin & Cannon, for plaintiff.

      Baker, Wilcox, Payer & Carey, for defendant.