text:
    (Sixth Circuit — Lucas Co., O., Circuit Court,
    January Term, 1896.)
    Before Haynes, Scribner and King, JJ.
    ABRAM K. DETWILER, Administartor with the Will Annexed v. THE CITY OF TOLEDO

      Irespass — Damages—Limitation.
    1. Where a wrongful act, causing immediate damage, is committed, and such act is not a continuing one, the right of action for the damages ensued is barred in four years from the commission of such wrongful act.

      Increase of damages by grantors failure to avoid it.

    2: If the plaintiff, by his negligence or failure to use ordinary care to prevent the consequences of the defendant’s wornfgul act, allowed the damages resulting to be unnecessarily increased, he cannot recover for such increased damage which might have been avoided by his exercise of ordinary care.
   King, J.

This is a petition in error to reverse the judgment of the court of common pleas of this county in a case of the same title in that court. Abram K. Detwiler, administrator with the will annexed, brought an action against the city of Toledo, to recover damages in a large sum, and he sets forth that Isaac B. Detwiler became possessed of certain property, by a lease from the state of Ohio, the history of which I need not stop to consider further than to state that said lease was transferred, by Augustine Pilliod, on February 24, 1880, to one Robert K. Scott, who, in turn, transferred the sum to Isaac K. Detwiler, on the 29th day of March, 1881. Under that lease it is claimed that said Detwiler was entitled to possession of certain lands described therein, and also to the use of 1600 cubic feet of water per minute, from a canal belonging to the state of Ohio; and that he had been in possession of that property and its peaceable enjoyment; that when he took his lease from Pilliod’s grantee it had upon it a mill, which was a valuable structure, which he continued to use thereafter, and says that “on or about the blank day of March, 1884, the city of Toledo, by its board of work-house, under some claim of title or right to certain premises adjoining those covered by the said lease aforesaid, entered thereon and proceeded to and did tap the said lower level of said canal, and took therefrom - said surplus water, and has continued so to do ever since; so that the said Isaac IT. Detwiler was deprived of the 1600 cubic feet of water every minute he was entitled to, under his said contract and lease, and in consequence thereof and for which time his property was rendered practically useless, and but of little, if any, value whatever. That the grant to and the rights and privileges and franchises of said Detwiler under his said lease and assignment, were first, prior and superior to those of said city of Toledo.”

The city of Toledo answered,, and claimed that it was in possession of premises adjoining these of the plaintiff on the west, and that it had acquired its property from the state by lease, and this lease also provided that it should have and enjoy from said canal 1700 cubic feet of water per minute for its use, and that it had taken it, having a right to do so.

The case came on for trial, and the record is here before us, setting forth all of the testimony; and it is claimed that there was error upon the trial in the holdings of the court, upon the admission of testimony, and in its charge to the jury, in these respects:

1. Because the court held that the plaintiff could not recover for any loss or damage to its property occurring more than four years prior to the commencement of this action.

2. That the court erred in holding that the plaintiff could not recover for any loss or damage to its property occurring after the death of Isaac H. Detwiler, which, occurred on the 27th of November, 1889, and the period before the four years statute of limitations took effect, under the ruling of the court, at some day in February, 1888 — this action having been commenced in the court of common pleas in 1893.

3. That the verdict of the jury is not supported by the evidence in the case.

These are the three questions; and under those three heads all the objections and exceptions in the record may be classified.

The first question to which I will refer, is as to the holding of the court, both in the admission of testimony upon the trial and its charge to the jury, as to the period within which the statute of limitations applied.

It is claimed that this was erroneous; that the plaintiff would have a right to await the time when defendant would cease the commission of the injury.

j¡¡!. The 48 Ohio State was cited asan authority upon this subject. The holding of the court in the case referred to is, that a party after causing damage by cutting a new channel which it controlled,. and directing the stream so that it flowed into a new channel, and so flowing there, flowed against and upon the land of another and caused damage to him, is liable for such damage, and if the company so continued to control and direct the stream, and if the stream continued to cause those damages, the company became liable for the additional damages, and would continue so to become liable until it acquired the right by user to cause such damage, and until such right was acquired by the company, the statute of limitations would not be a bar to the proper recovery of damages. But we do not think that case applies to this one. In this case both of these parties were entitled to take this water. No unlawful act was committed by either, as both were entitled to the surplus water above that required for navigation, as provided in their respective leases; each was entitled to that portion of the water. It should be stated at this point, that the plaintiff, Isaac H. Detweiler, brought an action against the city of Toledo to enjoin it from taking its water, and it was finally decided in the case that Isaac H. Detwiler had a right to 1600 cubic feet of water prior to the right of the city to take its 1700 cubic feet of water. Now, it was in evidence in this case that for a period of perhaps six months in the year the city did not use any water, so that the plaintiff could have all the water that there was, if there was a surplus. For the remaining six months of the year, during a portion of the time, there was enough water for the city to use its 1700 cubic feet and the plaintiff its 1600 cubic feet per minute; and for only a portion of the season was it claimed that the abstraction by the city of the water was such as to cause damage and injury to the plaintiff. So, the act of the city not being wrongful in the first instance, it not being a trespasser upon the rights of the plaintiff in the first instance, and the injury not being continuous, we do not think this 43 Ohio State should control as to the statute of limitations, but think an action would lie in favor of the plaintiff as soon as the injury hap-pened.

This was not a case where a wrong was committed and the injury did not result until a long period afterwards' — it resulted immediately, whenever there was not sufficient water, and the city took 1700 cubic feet of water per minute and that was more than the surplus would, allow. That acted at once upon the plaintiff,and the damage was caused immediately, and the plaintiff had a right to and could have and should have brought his action for damages at that time; and we think upon that point the holding of the court of common pleas was proper in the admission of testimony to the jury.

2. In the petition the plaintiff alleged, in very general language, that “On or about the — day of March, 1884, the city of Toledo, by its board of workhouse, under some claim of title or right to certain premises adjoining those covered by the lease aforesaid, entered thereon and proceeded to and did tap the said lower level of said canal, and took therefrom said surplus water,and has continued so to do ever since; so that the said Isaac H. Detwiler was deprived of the 1600 cubic feet of water every minute he was entitled to, under said contract and lease, and in consequence thereof, and for which time his property was rendered practically useless, and but of little, if any, value whatever. ” Now,that was the only allegation of a wrongful act as committed by the city of Toledo, and it would seem to us it could not be construed as having an effect upon anybody except Isaac H. Detwiler. It is a plain statement — that Isaac H. Detwiler had been deprived of this 1600 cubic feet of water per minute from the time of the commission of wrong “ever since;” but that would mean as long as he lived' — he could not have been deprived of it afterwards. Nor could it be broad enough to refer to the acts of the city after his death. We think the court of common pleas was correct in its holding Upon that question.

3. I should have said that the claim is made that the court erred in its ruling upon the admission of testimony upon the matter of damages. I only want to refer to a little of the evidence upon that point. The principal exceptions to the ruling of the court upon that subject are found on pages 4, 5 and 6 of the bill of exceptions, and this question was asked one of the witnesses:

“Q. Assuming that the mill has four run of stone and a pony, and had that number in 1888, and in fair running condition, taking into account its location and its water power, assuming that it had ample water power to operate those stone, what would be the value of the use of the mill?”

That question was objected to “because the witness had not shown himself qualified to answer”; and, second,as immaterial and irrelevant.

And the court said: “I will permit it to be shown as to the value of the use of the mill; .that is, rental value.”

Then the question was repeated, and it was again objected to, and sustained, and plaintiff excepted. Now, I need not say that that question assunies what was not proved in this record — 'that there was ample water-power to operate those stone at all periods of the year; for the record shows that there was not, at some seasons of the year, water power enough to operate the mill, before the city’s lease was made. But it seems to us that the action of the “court was sufficiently favorable to the plaintiff. Witnesses were called to testify in answer to this question, one after another, and testified that the rental value of the mill was all the way from $3600 to $4,500, and perhaps $4,500, per year; and therefore, if the claim of the plaintiff was correct — that this was a continuing injury, and that he had no use of his mill — the damages would have amounted to $20,000 or $25,000; and yet the mill was worth, according to the testimony, from $5,000 to $6,-000, so we cannot say that the court erred in its holding as to the rule of damages to the prejudice of the plaintiff. There might b.e some doubt whether the rental value was that rule, and whether it was not more than the plaintiff was entitled to recover.

4. As to the question upon the .weight of the evidence; this is a long record. A great many witnesses were called. A good deal of testimony was offered by both sides. There are witnesses here who testify that this mill was of no value; that about that time when this water was taken away, or when it is claimed that it was taken áway; the processes of the manufacture of flour has been so changed that a water mill was no longer of valuecoming in competition with mills which were using the roller-process; that therefore they had become in some respects valueless.

There was some testimony also bearing upon the. question of the promptness with which the plaintiff had acted, and the court instructed the jury as to whether the plaintiff by the use of ordinary care could have avoided the consequences of this injury, as follows:

“It was the duty of Isaac H. Detwiler,during this period of which his representative complains, to use reasonable care to avoid the injury or to lessen and reduce the damages. That duty is not arbitrarily imposed, but it is only when, in view of all the circumstances of the case, it was a reasonable duty which ought to have been performed instead of passively allowing a greater damage. Now, if through his negligence or failure to use reasonable care and diligence he allowed the damage to be unnecessarilj1' increased, then there can be no recovery for the increased loss which might have been avoided by the performance of his duty.”

There is considerable more, but I do not need to read it. Now, one consideration that might have had weight with the jury, although nothing particular was said in the charge of the court, was, that on the 9th of August, 1884, plaintiff filed his petition against the city, alleging that this taking of the water was a wrongful taking; that he was entitled to 1600 cubic feet per minute, and asked that the city be enjoined, first temporarily and then perpetually, from drawing off water from said level. On the same day a temporary injunction was allowed upon the prayer of that petition, and that injunction remained in force, without any attempt to dissolve it, at that time, except to file a motion. An answer was filed on the 80th of August, and a reply on the 5th of September, joining issue. So that within a month the issue was joined by the plaintiff, and the case remained pending in the court of common pleas until the 6th of October, 1887, without any further action, when it was tried and the injunction dissolved upon that day by the final judgment in the case. The plaintiff gave notice of his intention to appeal, and did appeal to this court, which revived the injunction until it should be here tried. Here the case was pending without any further action on the part of any party to the case, so far as appears upon the record, except that on March 20, 1890, it was suggested that Isaac H. Detwiler had died, not being able to outlive his law-suit finally, and the case was tried in the Circuit Court, 1892, and a decree making the injunction perpetual was had. Here was this injunction pending all this time. If the plaintiff claimed anything, why did he not insist upon having his injunction enforced? He had an absolute remedy which the court would have enforced if he had asked it. Yet he paid no attention to that, until the courtfinally decided,over seven years after the case was commenced, that the equities were with the plaintiff; that the plaintiff was entitled to an injunction, and then this action was commenced for damages. That is a matter which might have had weight with the jury; whether the plaintiff had exercised that degree of diligence and care which he ought to have exercised to prevent this injury. It seems to us that it would be^hardly just for the plaintiff j;o let a law-suit stand for seven .years — and so far as it appears, nothing was done to bring it to tri'al, and it was pending in this court four years and over before it was tried — and then come in and ask the court to allow him damages for the use of his property, of three or four thousand dollars a year, because it ivas lying idle during all that time. It was suggested that he had a right to await the determination of his rights by this court. But, if rights are to be determined, the rule is directly the other way; a court of law is the place to determine his rights. Many cases may be cited where injunctions have been refused for the reason that the legal rights of the parties have not been ascertained; and after an action for damages has been tried by the court and a jury, and damages are recovered, then possibly the court will allow' an injunction. And he also might have united in one action the legal and equitable causes of action.

J. H. Tyler, for Defendant in error.

King & Tracy, E. D. Potter,' Jr., and A. F. Hanson, for Plaintiff in error.

We think the charge given, was proper in this case.

It seems to us, from a review of all this testimony, conflicting as it is, that, as,to the issues submitted to the jury; whether the plaintiff was entitled to recover damages for this period of about twenty-one months, (during which time it was held that he might have recovered, if he had sustained damages) that the verdict of the jury ought not to be disturbed, and we therefore affirm the judgment.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    (First Circuit — Hamilton Co.., O., Circuit Court
    Jan. Term, 1896.)
    Before Smith, King and Cox, JJ.
    YANNEY, GUARDIAN, v. HINE.

      Release — Consideration necessary.

    To constitute a good release, a consideration is necessary.
   Smith, J.

We are of the opinion that in the action of the court of common pleas in overruling the demurrer filed by the plaintiff to tbe answer of the defendant, and in dismissing the petition of the plaintiff, there was error for which the judgment should be reversed. It is an elementary principle that to constitute a good release a consideration is necessary, and without this it is a nudum pactum. In the release pleaded in this case by the answer of the defendant, no consideration is stated or shown, and the answer does not allege any. In addition to this, a paper called a release was given to a person, who herself was in no wise under any obligation to make any payment to the releasor, and had no interest whatever in the lands of her children which were charged with the payment.

Stanley Struble, for Plaintiff.

John Davis and S. B. Garter, contra.

The facts alleged in the answer did not, if true, estop the plaintiff from recovering in the action. The fact that the paper in question, after its delivery to the mother of the children, had been shown by her to a person who afterwards bought the land charged with the payment, at a sale thereof in partition, did not have this effect. If the representation had been made to him by the releasor herself, that she had released the persons bound to make payment, and the purchaser had relied upon, and acted upon this representation, the case might have been different. But this does not appear by the answer.

The judgment will, therefore, be reversed, and the case remanded for such further proceedings as may be warranted by law.


author: King, J.

text:
    (Sixth — Circuit—Lucas Co. O., Cicruit Court
    Jan. Term, 1895.)
    Before Haynes, Scribner and King, JJ.
    CLAIRE A. LORENZ et al v. OLLIN A. CLARK, et al.

      Bill of Exceptions — Motion for rehearing not disposed of within fifty days after judgment.

    Where a bill of exceptions is taken at the trial of the case, and after judgment, a motion to re-hear the case is made, and the entry of the judgment also provided that a bill of exceptions should be taken and filed, and the motion for re-hearing is disposed of more than fifty days after the judgment, the bill of exceptions taken at the trial of the case can not be filed any more, and if filed must be stricken from the files.
   King, J.

This is a petition in error to reverse the judgment of the court of common pleas, and there is a motion to strike from the files a bill of exceptions. This motion will be considered in connection with other matters which arise upon the record. In examining the motion it is necessary to examine the record, and that discloses about this state of facts, in relation to the pleadings and other proceedings.

Some time in 1898, the plaintiffs brought an action to restrain the defendants from using a certain name in the manufacture of an article in imitation of an article manufactured by the plaintiffs. On the filing of that petition in the court below, a preliminary injunction was allowed by Judge Lemmon, on the 8th of September, 1898. On the 18th of September, 1898, the matter was heard on a motion to dissolve that temporary injunction, and the temporary injunction was dissolved. On the 28rd of October, there was a demurrer heard to the petition, and thereafter an answer was filed and the issue made up by the pleadings. During that time the plaintiffs also came and filed another motion to re-allow the temporary injunction, and on the 26th of January, 1894, the matter was called up and the court and the parties agreed that it might be tried upon its merits, and thereupon evidence was submitted. The case was tried and the issues were found with the defendants, and the petition of the plaintiffs was dismissed at their costs, to which the plaintiffs excepted. That judgment was of record on the 81st of Januarjr, 1894. On the 80th of March, 1894, — some fifty-nine days afterwards — the plaintiffs, or the parties, had a journal entry filed, overruling the motion to re-allow the injunction. It does not appear that there was any action of the court upon that, and on the same day the plaintiffs filed a motion to open up and re-hear the matter which had been tried and determined. That motion was pending until the 2nd of July, 1894, the following term, when it was heard and overruled, to which the plaintiffs excepted, and m the order plaintiffs were allowed fifty days from that tame to prepare and file a bill of exceptions; and, on the 20th of August, 1894, the plaintiffs filed a bill of exceptions, which this motion seeks to strike off. This bill of exceptions was presented to the ccurt, allowed, signed, filed and ordered made a part of the record. On the same day a petition in error was filed to reverse the judgment.

The petition in error states, that “There is error in said record and proceedings in this, to-wit: said court erred in overruling the motion of plaintiffs in error for a modification of the judgment and decree rendered.” And then it proceeds to state other assignments, that: “The facts set forth in the answer are not sufficient in Jaw to constitute a defense to the action of plaintiffs in error. That said court erred in not sustaining the demurrer of plaintiffs in error to the answer of defendant in error. ’ ’

The bill of exceptions recites: “That on the 26th day of January, A. D. 1894., in the Honorable Court of Common Pleas of Lucas county, State of Ohio, before the Hon. Gilbert Harmon, Judge, said motion coming on to be heard, after presentation of the issues, or matters in dispute between the parties by the respective counsel to the court, the following proceedings were had. It was agreed between counsel for plaintiffs and defendants that in addition to the above motion before the court, the issues between the parties should be submitted to the court for a final hearing of said cause, for a full adjudication and determination thereof. Thereupon,, plaintiffs, to sustain the issues on their part, first offered and read in eyidence the affidavit of Mary C. Lorenz.” Then they called divers witnesses on both sides, and on that evidence the judgment of January 31, was rendered.

•This motion seeks to strike off this bill of exceptions because it was not filed in time. Part of the record shows that this evidence was offered and heard upon the trial of the case on the 26th of January, as appears by the judgment of the 31st of January. The statute in force then, as found in Vol. 91 O. L.. 141, provided:

“When the decision is not entered on the record, or the grounds of the objection do not sufficiently appear in the entry, or the exception is to the decision of the court on a motion to direct a non-suit, or to arrest the testimony from the jury, or for a new trial for mis-direction by the court to the jury, or because the verdict, or if a jury is waived the finding of the court is against the law and the evidence, or on the admission or rejection of evidence, the party excepting must reduce his exceptions to writing and present the same to the trial judge or judges for allowance within fifty days after the overruling of the motion for a new trial or the decision of the court where a motion for a new trial is not necessary, etc.”

Now this case, as appears by the bill of exceptions itself, as well as the balance of the record, was tried on the 26th of January, and the judgment rendered on the 31st of January; and on the 20th of August, of the same year, the bill of exceptions was first presented to the court, and on that day allowed, signed, and ordered made a part of the record. Clearly that bill of exceptions could not stand as any part of the record of a trial that occurred in the court of common pleas in the latter part of January, 1894, for the reason that it was not filed in the court of common pleas within the time provided by law, to-wit: fifty days after the decision of the court of common pleas. It was claimed in argument that the judgment of the court of common pleas, upon the motion to re-hear and re-open the trial of the case, also provided that a bill of exceptions be taken and filed; but no bill of exceptions was taken upon that hearing, so far as appears here. This bill of exceptions shows plainly enough that it was taken at the trial of the case in January, and that none was taken at the re-hearing or the hearing of the motion for a re-hearing, in July, 1894, so that this bill of exceptions does not aid the plaintiffs at all as to the questions that were raised on the hearing of the motion to open up the judgment.

It is argued that the judgment of the court of common .pleas rendered in January was within the control of the court at that term, and that the filing of the motion during the term to re-hear it was a preliminary motion, and gave the court jurisdiction to hear it. It is unnecessary to examine that question, because, as I have said, this bill of exceptions does not relate to that hearing.

And that brings me to a second question which appears upon the record, which we have considered, and that is, whether the petition in error was filed in time, or whether it states any error at all committed by the court. The petition in error was filed on the 20th of August, 1894, and the statute provided at that time that it should be filed within six months from the rendition of the judgment or order excepted to or of which error was alleged. The judgment which disposed of this case was rendered on the 81st of January, and this petition in error was filed m this court on the 20th of August; that was more than six months, and hence as to all the errors which it is claimed that the court committed upon the trial of the case, the statute interposed its bar to the filing of the petition in error at the time this was filed. The petition in error, however, alleges that the court erred in overruling the motion for a re-hearing; but, as no bill of exceptions is submitted as to what the court acted upon, and there is nothing in the record to show what was before the court when that motion was heard, clearly this record does not disclose any error that the court committed in the overruling of that motion. The court may have been fully justified in overruling it upon the evidence heard and the facts submitted to it. So that ground of error is not sustained.

As to all other assignments of error in the petition, the statute has interposed this bar; the petition was not filed in time to take advantage of any of these questions, therefore the motion to strike the bill of exceptions from the files will be allowed, and the judgment of the court upon the motion to re-hear the case, will be affirmed, and as to the assignment of error in the petition as to the original judgment, the petition will be dismissed at the cost of the plaintiffs in error.


author: Haynes, J.

text:
    (Sixth Cicruit — Lucas Couty, Ohio, Circuit Court
    Jan. Term, 1896.)
    Before Haynes, Scrinber and King, JJ.
    THE ADELBERT COLLEGE OF WESTERN RESERVE UNIVERSITY v. THE TOLEDO, WABASH & WESTERN RAILWAY CO. et al.

      Statute of limitations — Cause of action arising by statute as well as by agreement of parties.

    Where a liability arises by statute as well as by special agreement of the parties, on either of which action might be brought,the limitation — which in one case would be ten years and in the other fifteen — should be uniform, and should be based upon the longest term given by the statute of limitations to bring the suit.
    (See the decision of Judge Pugsley in this case, in the Common Pleas, 4 Nisi Pr. Rep. 73.) out of repair and dangerous, the R. R. Co. has the same right as the city to close the bridge although it constitutes part of the public street.
   Haynes, J.

We have heard the argument of counsel, and have endeavored to give this case a thorough examination — sufficient, at least, to satisfy ourselves fully how we ought to decide it; but we do not deem it necessary to go into the delivery of a lengthy opinion in the case. Judge Pugsley, in delivering the opinion of the court of common pleas, took very great pains, and at great length, stated his views of the case, and did very fully, and, of course, very ably; and with that opinion we are fully satisfied, with a single exception, and I will permit his statement of his views to stand as our statement of our views cf the case. The exception is with regard to the statute of limitations. He says, very properly, that the question of the statute of limitations is one of great doubt, but he arrives at the conclusion that the statute of ten years covers the casé. We say with him that the question is not a clear onp, by any means, but we think the better opinion is that the statute of fifteen years should govern. An examination of the Compton case, which we are bound to follow, and which we do follow, will show, we think, that that case is based upon two propositions, or two causes of action, if you please to call them so; one is, that the corporation will not be permitted to transfer all its property under the terms of the statute without really creating a lien in favor of these creditors. And it was upon that proposition that one of the judges of the supreme court dissented, following as he stated the decision of the supreme court of the United States in the case of Hamm v. The Wabash Ry. Co. The other proposition seems to be upon the ground of the agreement that was entered into by the companies at the time of consolidation, and makes that the basis of the action. One of those, in our judgment, would be founded on contract, and would be governed by the fifteen years’ statute of limitation, and the other would be founded upon a statute,or liability, perhaps, the equity arising out of the general law of the subject, anu be governed by the ten years’ clause. The best light that we can obtain from the authorities is, that the-statute of limitations in a case of tjiat kind, ought to be uniform; and further, that the statute of limitations should be based upon the longest term given to.bring the suit. For these reasons we have come to the conclusion that he fifteen years’ clause should govern.

Mr. Smith: Judge Pugsley did find it necessary to examine the question of abatement. We understand your honors do note express any opinion on that feature of it?

Haynes, J: No.

Mr. Smith: The decree in this case will include the coupons for the four years between 1875 and 1879 that were excluded — which includes them all?

Haynes, J: Yes; that may be done.


text:
    (Sixth Circuit — Lucas County, O., Circuit Court,
    Jan. Term, 1895.)
    Before Haynes, Scribner and King, J J.
    TOLEDO STREET RAILWAY COMPANY v. MAMMET, ADM’R.

      Control of streets — JR R. Co. may close bridge which it has to maintain—
    Where it is the duty of a R. R. Co. to erect and maintain a bridge in a street under which its road is passing, and such bridge becomes [copyright, 1897, by carl g. jahn. ]

      Contributory negligence — Dangerous appliance — Notice to employer — Pleading.
    Where a bridge crossed by a street railroad became dangerous, and the employes of the Street R. R. Co., informed the officers of the company of the fact, and were assured by these officers after having made an examination of the bridge, that it was all right and safe and that they should continue to pass it, such employes had a right to rely on such assurance by the officers of the company; and the rule, that the petition for damages should state that the officers promised to repair the defect and that the employe relying on such promise continued his work, does not apply to such a case where the officers claim that no defect exists.

      Insufficient instructions as ground of error.

    Where a party considers the instructions of the court on a certain question insufficient, he should call the court’s attention to the fact and ask for further instructions. But having failed to do so, he can not afterwards claim error on account of the insufficiency of such instructions.

      Action for causing death — Measure of damages

    Under the provision of the statute that the jury shall give such damages for causing death as are proportioned to the pecuniary injury of the next of kin, the jury need not base their verdict on fixed mathematical tables, and the court has no right, in deciding a motion to set aside the verdict as excessive, and to apply to the verdict rules from any table of probability of life etc.
   King, J.

This is the ease of The Toledo Consolidated Street Railway Co., plaintiff in error, against Fred Mammet, administrator of the estate of Frank Mammet, deceased, and also The Lake Shore & Michigan Southern Railway Co. and the City of Toledo, defendants in error, who also file cross-petitions in error.

It appears from the record in this case that the plaintiff below, Fred Mammet, the representative of the estate of Frank Mammet, claimed that his intestate was killed by the falling of a bridge on St. Clair street, in the city of Toledo, where it crosses the Lake Shore & Michigan Southern Railway Co’s. tracks overhead; that the bridge was originally erected by, or that the duty to maintain it was upon, the Lake Shore & Michigan Southern Railway Co. by a statute, and also upon the city by a statute, which places upon the city the duty and obligation of keeping its streets open and in repair, and free from nuisance; also that the intestate at the time he was killed was in the employ of the Toledo Consolidated Street Railway Co., and that his employer,together er with the other two defendants whose duty it was to maintain this structure, knew, or ought to have known of its dangerous condition, and that his intestate did net know of that condition.

All of the defendants answered to the petition below, denying all the allegations of negligence charged against each of them, and the Consolidated Street Railway Co. and the City of Toledo averred that the intestate’s injury which caused his death was occasioned by bis own negligence, or that his negligence' contributed to his injury; the Lake Shore & Michigan Southern Railway Co. not putting that into its answer.

The case was tried, and is before us upon a record which is somewhat voluminous, and contains many objections and exceptions, and I shall content myself with noticing only those which I deem of the most importance. Some of .the questions which arise the court.is relieved now of examining originally, because they have been determined by this court and the decision of this court affirmed by the supreme court, in the case of The Toledo Consolidated Street Railway Co., plaintiff in error, v. Thomas Sweeney, defendant in error, who brought an action for injuries which he received in the same accident and at the same time that the plaintiff’s intestate w.as killed. The verdict in this case was in favor of the plaintiff below in the sum of $5,000.

The principal errors claimed before us are, that the verdict is not sustained by evidence as to the Lake Shore & Michigan Southern Railway Co., (I think that claim is made by that company, and not urged especial^ by the others, although it is alleged in the petitions in error); that, taken in connection with the evidence offered, there was error in the charge of the court, as bearing upon the contributory negligence alleged by the defendant below, and also error in the charge upon the elements which the jury might consider in estimating damages; and that the amount allowed is excessive.'

Briefly stated, the evidence in this case shows that this bridge was constructed in 1887, of wood, principally, and was a truss bridge; and that when it came to fall, its fall was due to the rotting of timbers which were partially or perhaps entirely covered by an iron strap and by. timber placed over it so that it was not observable from the outside; and it had rotted away so that the foot of one of the braces of the truss shoved out, and kept shoving out further and further, until the bridge fell down of its own weight, pretty nearly. It appears form the record that a day or two before this accident, the employes of the Consolidated Railway Co. had noticed that the bridge had sagged, and that it had been talked over among them; blit it is not entirely clear by the record whether it was communicated to the superior officers before the day preceding the accident. At any rate, on the day preceding the accident, it did come to the knowledge of the general manager and the general superintendent that there was some trouble with the bridge, and accordingly, at 9 or 10 o’clock in the night time, they went out and looked it over with a lantern; and, according to the testimony of one of the witnesses who was called, Mr. Stahl, who came along as a motorman running a car, Mr. Denman, the general superintendent, said to him that the bridge was-all right: “it was good for a thousand.” He went on with his business, and the officers went home. They were called in the course of the trial, and testified that they were there and examined the bridge with a lantern, and found it all right, but did not communicate that to Mr. Stahl or anybody else. The next morning the matter was further discussed m the car barn in the presence of twelve or fifteen men in the employ of the road, and a witness who was called, who was a transfer agent at the Cherry street barn, testified that he called up Mr. Denman by telephone, and asked him about that bridge, and he said that he had inspected it the .night before and it was all right, and he need not worry; and the witness communicated that to all the men who were present. Among them was a man of the name of Sweeney, who recovered the other judgment. Sweeney was a conductor. Whether Mammet,the de'cceaed, was in the barn or not none of the witnesses are able to say. At any rate, Sweeney went out on his trip on the car of which he was conductor, and continued all day in the neighborhood of the bridge. In the afternoon his car became disabled,and Mammet came along with his car and pushed the one that -Sweeney was in ahead of it, intending to take it into the car barn. During the forenoon of this day of the accident, its condition came to the knowledge of the city civil engineer. First, his assistant went and examined it, and telephoned to the office of the city civil engineer, stating that the bridge was in a dangerous condition. The city civil engineer was not in at the moment, but the knowledge came to him, and he telephoned to the local engineer of he Lake Shore & Michigan Southern Railway Co. at 11 o’clock in the morning that the bridge was in a dangerotis condition, and he should fix it immediately,and he replied that he would attend to it. Thereupon this city civil engineer who made this examination and communicated the result of it to his chief, and the general superintendent and the general manager of the Consolidated Street Railway,and the city civil engineer, and the engineer of the Lake Shore & Michigan Southern Railway Co. proceeded to do nothing more about it. It remained there until about 6 p. m., when it fell down with -the weight of two empty cars propelled over it, loaded with the conductor of one and the conductor and motorman of the other and two passengers, and in that fall Mr. Sweeney was very seriously injured, and Mr. Mammet was killed.

Now, as to the question whether the verdict against the Lake Shore is sustained, I only need to say a word. It is clear, the enigneer of that company himself testifies, that he received a communication about the condition of the bridge at 11 o’clock in the forenoon. What he did about it was to telegraph to the superintendent of bridges at Cleveland, or somewhere, that this bridge needed attending to. He left the bridge in the same condition, and without any further warning and without any further care on the part of the Lake Shore Co. It was suggested by this court in the Sweeney case, that perhaps the Lake Shore Co. would not have the-right to go upon this bridge and close it up, although they would have a right, and certainly it would be their duty, to take some measure of precaution, to warn people to keep off of it. Further consideration leads us to say, that if the duty of keeping that bridge in repair was imposed upon the Lake Shore, and counsel for the Lake Shore admit that the duty was imposed upon it to build and maintain this bridge, and keep it in repair, then we think the duty was imposed upon it, and it had the same right as the city to close it, in case there was any such a defect as to make it dangerous for people to pass over it. It had the same right, and it was its duty to close it up and repair it as had the city. I can’t see any distinction between these two defendants, the municipal corporation and the railway company. Therefore, the verdict is not against the weight of evidence as to the railway company.

The evidence that was submitted in this case, bearing upon the question of the knowledge which Mammet had acquired of this defect, and which his administrator claimed should operate in his favor, was all, or nearly all of it, objected and excepted to by the Consolidated Railway Co. It in substance amounted to this, as I have stated, that the information was communicated in the car barn in a general way; that Mr. Lang, the general manager, and Mr. Denman, the general superintendent, had inspected this bridge, and they found it all right; and the evidence in the case shows that it was communicated to Mr. Sweeney by a man named Mr. Felton at the barn, and that Mr. Sweeney on this trip when he broke down, when he came across Mr. Mammet, told him what Mr. Denman had said as reported in the barn, that it was all right, and not to worry. This is objected to, by the Consolidated Railway Co., on the ground that it makes a different case than that set forth in the petition; and there was considerable argument devoted to the idea that the case they undertook to make in the evidence was the case decided by the supreme court in 49 Ohio St., entitled Coal Co. v. Norman, in which it was held that it would be necessary, in case it was claimed that the employe, after having been informed of the danger, continued to work in a dangerous place, for him to aver in his petition and preve on the trial that when he went to work it was under a promise and belief that the defect shiuld be remedied. But in our judgment that is not the case made here in the petition, nor is if the case made on the trial. There was no promise made to remedy this defect. On the contrary, the Toledo Consolidated Co., by its officers and agents, if they said anything about it at all, said to their employes that the bridge was all right; that it was not unsafe,but that it was safe. And so, of course, no promise to repair was made. These officers testify that they went there and made this examination,and they found it all right, but they communicated that fact to nobody. I doubt tnat a little. In view of the fact that these employes were inquiring about that bridge — and it appears all through the record that they had known it for two or three days, and it was a matter of general conversation among them — it would be a little strange that these officers should say nothing about it, and that their employes should all continue to ride over the bridge as they had been doing. If the testimony is to be relied upon that Mr. Denman said, when1 telephoned to, that the bridge was all right, and not to worry, and this was communicated to Mr. Sweeney, and by him to Mr. Mammet as coming from the responsible officers of this corporation — those who had charge of the wires, tracks, cars and apparatus of this railway, certainly he would have the right to rely upon it, and would have a right to believe it, and to assum« that they knew about and would guard against the danger; not necessarily the defect that was in the bridge, but the danger from the defect. He knew there was a defect to this extent; he knew that the bridge sagged. Whether that was dangerous or not might be a question requiring some investigation by some skilled man. When the general superintendent of the road, whose duty it was to inspect all these appliances, t-old him he had inspected the bridge, or communicated to the employes that he had inspected the bridge,and that it was all right,he would have- the right to rely upon it. In the Norman case the court said they were to pass upon the question whether the petition stated a cause of action ; and it was objected that while the petition stated that the falling of the roof and the injury to the decedent occurred without fault on his part, it did not aver that he was without knowledge of the unsafe condition of the roof at and prior to the accident, or that having such knowledge he informed the company, and continued in its employment on its promise to remove the danger. Now, there is no element in this case requiring proof tnat Mammet continued to work relying on the promise of this company to repair this bridge, because the proof is upon the part of the consolidated Company, and not upon the part of the plaintiff, as that there was no danger, and there was no defect that would occasion danger. So the evidence objected to was certainly competent, under the petition.

Bearing now upon the question whether Mammet, when he went upon the bridge was in the exercise of ordinary care, in that connection it is objected that the court erred in its charge, especially as it gave this request, among other things (and the court in its general charge said substantially the same thing embodied in its request). It is the first request of the Consolidated Railway Company:

“In an action by a servant against his master, such as this is, the plaintiff must prove by a preponderance of evidence want of knowledge on his part of the defect causing the injury. ”

And the court added: “and of the dangerous condition resulting therefrom, or that, having such knowledge, he informed the master and continued in his employment upon a promise, express or implied, to remedy the defects; otherwise he cannot recover from the master.”

Now, the Consolidated Railway Company having objected to the admission of this testimony on the ground that the petition did not authorize its admission, because there was no allegation that the master had promised to remedy the defects, upon which the servant relied, it is a little strange that it would ask the court to charge the jury precisely that proposition, and upon its request the court gave the proposition. In my judgment,, it had nothing to do with the case. It was nGt applicable, and it cannot complain about it, for it asked the court to give it, and the court gave it, as he gave most all of the requests. It will be noticed there were three defendants, each of whom submitted a string of requests to give to the jury as its view of the law. The court was between those three fires as between all of the defendants, and the plaintiff. The Consolidated Railway Company can not complain of the court having given that, although it was not applicable to the case. The point in issue was all the time, the question of notice and knowledge of the danger which he was assuming when he went upon this bridge, and whether, going upon, it as he did, he was in the. exercise of ordinary care. That was the only question there was in the case, bearing upon his negligence, and the court submitted it to the jury — not whether he had been promised that this defect should be repaired, because that did not appear in the case from one end to the other.

It is claimed that the court erred in its charge to the jury upon the question of the amont of damages. The charge in that respect majr not be all that could be desired. Bub again, these defendants seem to have been a little to blame, if they desired to object to that charge. The court charged the jury in the commencement of its charge by reading the statute upon that subject. That was proper, since it is the law of this state; and in reading it to the jury the court gave them from the first source just exactly what the legislature had said upon that subject. The court read that section which provides that “every such action shall be for the benefit of the wife or husband and parents and children, of if there be neither of them, then of the next of kin, of the person whose death shall be so caused, and it shall be brought by and in the name of the personal representative of the person deceased; and in ever such action the jury may give such damages not exceeding in any case $110,000, as they may think proportioned to the pecuniary injury resulting from such death, to the persons, respectively, for whose benefit such action shall be brought.” The court gave that to the jury as the law of this case. To that extent the court was certainly entirely correct. If the court gave nothing further on that subject, the charge co.uld not be excepted to on that ground,and the court said nothing further to the jury on that subject, except in this way: when these parties submitted their requests, among others, the plaintiff submitted a,request, and the court gave that which to acertain extent was a modification or an extension of the definitions which governed the elements of damage which the jury might consider :

“If you find in favor of the plaintiff and against all the defendants, or two of them, or any one of them, you will render a verdict for such damages as will compensate the parents and next of kin of decedent for the lóss they have sustained by reason of his death, taking into consideration his age at the time of his death,his health, the wages he was earning, his prospects in life, and his expectation of life.”

That was all proper. Defendants complain that this does not take into consideration other elements which the jury might consider, to-wit: the age of his parents and min- or children, their capacities to earn money, and how long they probably would live, and finally wind up- by their expectation, or their reasonable expectation, of what they would have received from this man if he had lived. As I say, those three defendants submitted each of them a string of propositions to the court to charge, which the court eventually gave as nearly as it could, nearly all of them. If the rule laid down by the statute, taken in connection with the request of the plaintiff upon those elements which the plaintiff desired to have submitted to the jury, did not charge the law as the,defendants believed it ought to be, or give them all the law which might be given upon that subject, they were at perfect liberty, either of them, to have asked the court to charge further upon that subject; which they did nob do, but sat by, and availed themselves simply of their right to except. Now, the supreme court have several times passed upon that question, and upon this same question in the case of Railway Co. v. Murphy, 50 Ohio St. 185, wherein the court gave this charge:

“If the jury should find from the evidence that the defendant is guilty of ordinary negligence, and that the same resulted in the death of Anthony Murphy, and also that the deceased was without fault in the premises, then the plaintiff is entitled to such damages as the jury may deem, from the evidence and proofs, a fair and just compensation therefor, having reference only to the pecuniary injuries resulting from such death, to the widow and next of kin, not exceeding the amount claimed in the petition.”
That is all the court said: that is all they were asked to say. The Supreme Court say, on page 145:
“Objection is also taken to the charge as to the rule of damages. To the extent which the charge goes it is in accord with the statute, and is correct. Had more specific instructions been thought necessary they should have been requested.1 ’

That doctrine is applicable to the case at bar; and if they desired more^specific instructions upon this question as to the elements which enter into damages in a case like this, then it was the duty of conusel to request the court to give such further instructions on that subject.

It has been argued at considerable length that this verdict is excessive. This was a young man, 28 years of age. He was employed on a salary of $1.80 a day; cf good health; living at home with his father and mother; he was unmarried,boarding there. He paid for his board — not exactly for his board, but contributed to the support of the family, to the extent of $10 every two weeks in one season of the year, and more in other seasons. There were three minor children, two brothers and a sister of the deceased. The jury had all that before them. The argument was in this same case to which I have referred, that there was not any evidence in the record to show affirmatively that the next of kin had sustained any pecuniary loss. Although it was a husband who was killed, there wasn’t a word of testimony that he supported his wife. And the couft say:

“1. As to the request to charge. It' is urged that the instruction asked should have been given, because:
“First — It does not appear affirmatively that the next of kin sustained any pecuniary loss. The tendency of the evidence is stated in the syllabus, and need not be repeated. From the facts thus shown, we are asked to presume that the deceased did not contribute anything to the support of his wife or children, and hence that his life was of no value to them. We think the presumption does not follow. It was his legal, as well as moral, duty, to contribute of his wages to the support of the wife and minor child, at least, and the i iference, in the absence of a showing to the contrary, is that he did his duty. But aside from this: a right of action is given by the statutes, secs. 6184, 6185. It is for the benefit of the widow and children. The petition states a case under the statute. The proof tended to sustain the petition. To hold as requested, on the ground urged by counsel, would be to ignore the statute.”

The statute has been many times quoted, and is cited by the court here in the charge to the jury, its language is peculiar:

“Every such action shall be for the benefit of the wife or husband and parents and children, or if there be neither of them, then of the next of kin, of the person whose death shall be so caused, and it shall be brought by and in the name of the personal representatives of the person deceased; and in every such action the jury may give such damages not exceeding in any case $10,000, as they may think proportioned to the pecuniary injury resulting from such death, to the persons, respectively, for -whose benefit such action shall be brought.”

FrankH. Kurd,, Attorney for Mammet.

Smith & Baker, Attorneys for Consolidated Street Ry. Company.

E. D. Potter, Jr., Attorney for L. S. & M. S. R. R. Co. . O. W. Watts, City Solicitor, for City..

The jury may give such damages as they may think proportioned to the pecuniary injury. Not saying now that the court will not review the action of the jury on that subject in a case where the damages are in excess of what the proof shows could be possibly the pecuniary injury to the next of kin — we think that in this case a verdict of $5,000 ought not to be disturbed by the court on that ground. That is one of the questions so peculiarly placed by the statute in the control and charge of the jury, that it certainly must appear that their verdict is grossly excessive and out of proportion to what the evidence shows could possibly be the pecuniary loss to these next of kin. It would seem from the statute that the question is very largely left to the jury to determine, and intentionally left to them, by the legislature. And the limit which they may give is placed, too, in the statutes itself,at $10,000. It is quite likely a case might arise in which the court would control the discretion of the jury; but in view of the relationship of this young man to such a large family, it can not be said that the jury were excessive m allowing $5,000. It certainly is true, in my judgment, that the court has no right, in passing upon a verdict under this statute, to apply to it any rule from any table of probability; the jury does not necessarily base their verdict upon fixed mathematical tables,and it is not the object and intention of the statute that they should; but they shall give such sum as they deem reasonable, in proportion tc the pecuniary injury. And we cannot say that they have exceeded that.limitation in this case.

Without passing upon any of the errors — we have looked over the record very carefully — it is sufficient to say that we do not find in them or in those which I have mentioned, any error to the prejudice of’ any of these defendants. Therefere, this judgment will be affirmed, without the penalty.


author: Shearer, J.

text:
    (Second Circuit — Franklin Co., O., Circuit Court,
    June Term, 1896.)
    Before Shearer, Summers and Wilson, JJ.
    THE AETNA IRON AND STEEL CO. v. SAMUEL M. TAYLOR, SECRETARY OF STATE.

      Hard Law constitutional — Proper fee accordtng to the amount of property of the corporation owned and used in Ohio.

   Shearer, J.

Judgment affirmed for the reasons stated in the opinion of Pugh, Judge, (3 Nisi Prius Rep. 152), and the further reason that, in the opinion of this court, the Hard law requires the charge under it to be based upon the proportion cf the authorized capital stock represented by property owned and used in Ohio. All the property of this company being within Ohio, and its authorized capital stock being $5,000,000, the secretary of state was right in fixing the fee at $5,000.


text:
    (First Circuit, Hamilton Co., O., Circuit Court,
    Jan. Term, 1893.)
    Before Smith, Swing and Cox, JJ.
    RUEHL v. SPERRY AND MASSET.

      Measurement of excavation. — The curb of the street can not be taken as the point from which the measurement of excavation for a cellar should be made where the contract does not provide for it and the relative position of the line of the curb and the surface line of the ground does not appear in the evidence.
   Smith, J.

The only question in this case is, whether the court of common pleas erred in refusing to grant a new trial based on the ground that thb verdict was not supported by the evidence.

The controversy in the case was as to the amount of excavation done by the plaintiff below for the defendant in making additional excavation in a cellar, and building a wall therefor. Reuhl had contracted with Weiber & Lie-man to build a house for him, the cellar of which was to be seven feet deep, and to be walled in a certain way by the contractors. Reuhl, however, was to have the option of having the cellar go deeper if necessary, in which event he was to pay a certain sum per yard for the additional excavation, and a certain sum per perch for the additional wall. It was found necessary to go deeper than seven feet, and this required additional wall, and the claim is that Reuhl agreed directly with Sperry & Masset to dc this at the agreed price, and they did so. They differed as to the quantity of this additional excavation and stone work, and Reuhl, having paid what he admitted to be due therefor, Sperry & Masset sued for the additional sum they claimed to be due.

J. H. Ohas. Smith, for Plaintiff in Error.

Gray & Tischbein, contra.

To maintain their case, the plaintiffs offered evidence tending to show that after the completion of the work, that by a measurement made by them from the curb on the street m front of the lot on which the house was built, the depth of the excavation below that point was a given distance, and that on this basis the excavation was so much below the depth of seven feet, originally provided for, and consequently that so much additional wall was built. The measurements made by the defendant from the surface of the ground to what was claimed to be the bottom of the wall, should make less excavation and wall. The jury adopted the measurement of the plaintiffs, and returned a verdict accordingly.

As suggested by us at the argument of the case, we have not, though aided by counsel, been able to find anything in the bill of exceptions (which contains all of the evidence,) which tends to show the relative position of the. curb with the surface of the ground on which the excavation was made, • or anything whatever to show that it should be taken as a point from which the measurement should be made to ascertain the amount of the extra excavation or wall, or that it had anything to do with it. For all that appears, the surface of the lot there may have been several feet below this curb. There was then no evidence to support the verdict so far as the amount of it was concerned, and the motion for a new trial should have been granted. For the error in refusing it the judgment must be reversed.


text:
    (First Circuit — Hamilton Co., O., Circuit Court,
    Jan’y Term, 1895.)
    Before Smith, Swing and Cox, JJ.
    STATE EX REL. BLACK v. THE BOARD OF EDUCATION.

      Public contract — Right to reject bids — Where advertisement for bids for public work is required, the board of education has power by the statute to refect bids.

      G. W. Baler and Bromwell & Bruce, for relator.

      O. B. Matthews, contra.
   Smith, J.

We held that an alternative writ of mandamus should not be allowed in this case, for the reason that, by the advertisement made for bids, the right was reserved to the board “to reject any and all bids, ” and that in fact it did reject the bid of the relator, and he has no right to the contract. If an advertisement was necessary, the statute, section 3988, gives the board such right to reject. If it is not required, it had the right to make such stipulations as it chose. In this the case differs from those decided in 19 Ohio St., 97, and 81 Ohio St., 415, in which the statutes under which the proceedings were had required the contract to be made with the lowest bidder. Writ refused.


text:
    (First Circuit — Hamilton Co., O., Circuit Court,
    Jan. Term, 1897.)
    Before Smith, Swing and Cox, JJ. ,
    WILLIAM MARTIN v. THE STATE OF OHIO.

      Rape — Consent of female.

    In a prosecution for an attempt to ravish, it must appear from the evidence that the assault was made without her consent.
    Error to the Court of Common Pleas of Hamilton County.
   Smith, J.

We are of the opinion, under all the circumstances of the case, that the judgment of the court of common pleas should be reversed and a new trial awarded. One of the members of the court thinks that the guilt of the defendant was not shown upon the trial with the certainty that the law requires in criminal cases. That while there was no question but that the defendant was guilty of the most indecent and dastardly conduct towards the young girl, the prosecuting witness, and richly deserves severe punishment, yet, under the rigid rule laid down by the Supreme Court in the case of Smith v. The State, 12 Ohio St., 466, the evidence .adduced did not show any assault upon her, or that what was done was done against her will so as to make him guilty of the offense of which he was charged: viz: an assault with intent to ravish her. The other members of the court incline to the opinion that it is very questionable whether the verdict was so manifestly against the evidence as to justify the court in reversing the judgment on his ground, but it is clear that the evidence brought into the■ bill of exceptions is exceedingly meager and unsatisfactory in its character, and on a new trial the real facts can be shown with much more certainty. We therefore deem it safe and better to reverse the judgment. We do this the more readily as it seems to us in view of the doubtful character of the -evidence that the sentence imposed was excessive.

Thos. F. Shay, for Plaintiff in Error.

II. M. Ballard and Edward Sclmoerer, for the State.


text:
    (Sixth Circuit — Lucas Co., O., Circuit Court,
    January Term, 1895.)
    Before Haynes, Scribner and King, JJ.
    THE LAKE SHORE & MICHIGAN SOUTHERN RAILWAY CO. v. DORSEY L. BEALL, ADMINISTRATOR OF CHAS. HOAK.

      R. R. Grossing — Returning to crossing in face of approaching train to save property, not negligence.

    It is not negligence on the part of one driving sheep across a railroad crossing, to go back on the track in the face of an approaching train to save some of the sheep that had become frightened and had run back onto the crossing, and such act will not be considered contributory negligence, where in doing so his foot was caught in a defective plank in such crossing and he is killed by the approaching train.

      Same — Defect in crossing — Former accidents admissible.

    Evidence showing that others had their foot or their horses feet caught in the defective place in such crossing before this-accident is admissible to show the defective condition of the crossing, and the remoteness of such occurrences would not make it incompetent, but would go to the weight of such evidence.
    Error to the Court of Common Plesa of Luoas county.
   King, J.

This is a petition in error to reverse a judgment of the court of common pleas rendered at the April Term, 1894, in a case in which Dorsey L. Beall was the plaintiff, and the Lake Shore and Michigan Southern Railway Company was defendant.

A number of errors are assigned.

The petition in the court of common pleas sets forth that, “on the 27th day of July, 1892, the said Charles Hoak was engaged in driving some sheep along a highway about two and one-half or three miles west of Martin, and between said Martin and the city of Toledo. Said highway crossed said railroad at grade. Said Hoak drove said sheep across said crossing shortly in advance of an approaching train on said railroad. After said sheep were across said crossing, a portion of said sheep became frightened and ran back ever said crossing, and said Hoak undertook to follow them. When said Hoak came upon said- crossing in pursuit of said sheep, his foot in some way became fastened in said crossing, and he was held fast and was unable to free himself and was struck by the locomotive of said approaching train, and was thereby severely injured, and bruised, from the effects of which he died within a few hours. Said crossing upon which said Hoak was caught was old and out of repair, and dangerous. The planks used in said crossing were old and worn, and there were large spaces between said planks and the rails of the track of said railroad, and said crossing was otherwise dangerous and out of repair, and the people passing over said crossing were liable to have their feet caught and made fast, by reason of said dangerous spaces and said defective condition of said crossing.”

There was an answer filed, denying all these allegations-of negligence, and alleging that the deceased contributed to the injury which he received and from which he died, and that his own negligence was the cause of the injury.

The allegations of the petition in relation to the negligence of the company are quite general in their character and do not point out the specific defect which was upon the trial relied upon. It seems to have summed itself up in the course of the testimony, in this, that the plaintiff claimed that decedent caught his foot between the flange of the south rail of the north track of the main line of the railroad at a point at the east end of the plank where there was a piece from twelve to eighteen or twenty inches in length split off from the edge of the plank, being an inch to an inch and a half or two inches in width, leaving a space three or four inches wide, perhaps, at the outer end,and narrowing as it went up the plank eighteen or twenty inches, in which he caught his foot. This is the claim which they undertook to make out on the trial.

In the course of the trial, Charles F. Bush was called as a witness, in behalf of the plaintiff, and he was asked if he had noticed the condition of this crossing before that day,- and he said that he had. This witness was asked how he came to notice it — 'and perhaps he was asked whether he had ever been caught there himself — at any rate, he testified that three or four months before this — perhaps six months before, some time in the winter before that summer — he was attempting to haul a load ever this crossing, and the crossing was bare of snow, and he carried some snow and placed it on the track, and while doing this he got his foot caught between the plank and the south rail of the north track. That six years before that, while driving across that road crossing, his horse caught its foot in the same place, as I understand it. All this evidence was objected to, and motions made to rule out, and exceptions taken to the ruling of the court in allowing it to go to the jury.

Upon this I can only say, briefly, that we do not see that the court erred to the prejudice of the plaintiff in error.

The rule seems to be established in this state in the case of Brewing Co. v. Bauer, 50 Ohio St. that evidence of that character will be admitted for the purpose, as the court said, in that case, of tending to prove, as in that case, which was a machine called a lift, that the lift was a device making it dangerous to operate, and that the company had knowledge of this from its previous behavior. This is held substantially, in the case of District of Columbia v. Ames, 107 U. S., 524, which was a sidewalk case, in which it was admitted to show notice to the municipal authorities who had charge of keeping in repair the sidewalks. The authorities, it is true, are not uniform upon that subject, but we think the weight of authority, as it is said in the decision of the learned judge in 50 Ohio St., is in favor of admitting that class of evidence It is true, however, that the occurrence called from Mr. Brush, that his horse got caught, was exceedingly remote; but, undoubtedly, that would go to the weight of the testimony before the jury. We cannot say that it was so remote that for that assignment this judgment ought to be reversed.

Some exceptions are taken to the charge. We do not find that there is any error in the charge. The remarks of the court in reference to the giving of the second request asked by the attorney for defendant below, ■ are excepted to. We do not think those in any way modified the request; and, for myself, I am not certain that the request was applicable. The request was the application of the well known rule, that a person about to cross a railroad should use his senses and look out for approaching danger. That does not seem to me to be applicable to the case, for, upon the whole record, it appears that the decedent knew that the train was approaching. That was the reason he went there; he went there to get his stock off from the track, and not blindly; he knew the train was coming, but whether he appreciated the speed at which it was coming, is, perhaps, another question. But his object in going upon the track was to get the sheep off-from the track.

An exception is noted to a part of the charge where the court said that counsel for plaintiff below, Mr. Hurd, has stated certain things as the law, and it was said by the court:

“This latter proposition we understand to be conceded by counsel for the defendant.”

We do not exactly see how that exception would be of much force, in view of the fact that the court charges, without exception to that part of the charge, that the proposition,as a whole, was conceded by the attorney for the defendant below.

The real questions in this case arise upon the weight of the testimony as bearing upon two questions: Whether the Railroad was negligent in the management of that crossing; and, whether the plaintiff’s intestate was negligent, and, by that negligence,contributed to his injury in going upon that crossing; and therefore I will review the testimony in those respects.

As I have said, the claim of the plaintiff below was that this plank was out of repair; and, in a general way, the plaintiff claimed that the crossing was old, and in some respects, perhaps, rotten; and one or more witnesses said the planks were warped and generally out of repair. But the condition of things had nothing to do wdth the specific defects which, it is claimed, caused the decedent to be caught. That defect was a piece split off from the side of the plank. There cannot be any doubt but that was the claim of the plaintiff below, and upon that his right to recover was based by the administrator. Upon that question this court is not prepared to say that the verdict was against the weight of the evidence. There was, as in most cases of this kind, direct conflict in the testimony of witnesses bearing upon this point. But in the testimony of Eddie Long, Eimer Herkle, Charles Bush, Kittie Hoak, (who saw the crossing for the first time after the injury), and of John Hammond, there is evidence to show that this plank was out of repair at that point; that this piece was split off from the side of the plank — of the south plank, next to the south rail of the north track. The testimony of the witness Eddie Long, while he was a boy of tender years, twelve years of age,has some incidents which give to it considerable weight, as I should think. In the first place, he is the only witness who was in a position to see, or at least his position to see ivas better than any of the other witnesses. He ivas, at the outside, not more than tiventy or thirty feet away from where the accident happened, and he stood, as he testified, looking at Mr. Hoak until just the instant before he was struck by tne engine, and he was on the side of the railway opxiosite to where Mr. Hoak was struck. If his testimony is to be believed, where he had a plain, fair view of all the transactions; and he swears positively that Mr. Hoak got his foot caught between the plank and the rail of the track; that he noticed that place m the plank was there that day: and that about two weeks before that — two or three weeks — he was passing over the crossing, riding a pony, and his pony became frightened at apiece of paper which lay on the track, and he got off the pony and picked up the paper, which lay at the end of the plank, and when he picked up the paper he noticed that the plank was split. He testifies that he remembers that distinct!}'. Two of the men who worked on the section that summer were called by the plaintiff, one in chief, and one in rebuttal, and they both testify to the splitting off of the piece from that plank. I ought to say that there was an exception to the testimony of the witness called in rebuttal, but, as his testimony was given first to rebut the testimony offered by the plaintiff, that these planks were sound when they had been taken up by the section men and placed back again at the time the track was raised, in the fore part of July, it would be testimony in rebuttal to that extent. As to what he said about the remarks of the foreman, that testimony cculd have been made competent. It would have been entirely competent to have asked the foreman if he had made any such speech as was testified to, and to have contradicted him upon that point, and it is entirely probable that that part would be competent in chief in making out the case of plaintiff below, and it would be within the discretion of the court to permit the witness to testify to it in rebuttal. The defendant below did not suffer any injury from that, for it recalled the foreman,-and he contradicted the witness by saying that he had never made any such remark to him at any time, so the testimony is all upon the record upon both sides of that proposition.

_ The contradiction of the witness for the plaintiff, as to the condition of those planks, is based largely upon collateral questions It was claimed by witnesses for the defendant below that the old planks were taken up and new ones put in about April of that year, and that soon thereafter, say in May, the company proceeded to raise both of these tracks, raising the grade from four to six or eight inches along the length of that section between Mil bury and Martin, and they started in and worked at that work all summer long, and that when they came to this crossing it was early in July, and they then, in order to raise the tracks, took up the planks and put them back again, but when they made that change in July,the planks were new. But there were two men working upon that section, engaged in the work of raising the track and taking up the planks and putting them back again, and they say that the planks, when they were put back,were in a rotten and decayed condition,and were not new planks. And there was Mr. Bush, as I said before, who testified that he saw these planks on two occasions, and that they were in the condition described. We think that it was evidence to be submitted to the jury, as to the weight of it,and that the jury were competent to pass upon the testimony of each of these witnesses, and upon that proposition we think that the verdict of the jury ought not to be disturbed.

Upon the other question, as to whether the decedent was negligent in going upon the track, there is also some conflict of testimony as to the actual circumstances under which he went upon the track as to whether, when upon the track, his foot was caught upon the track, or not. I ought not to say that there was very much conflict as to whether his foot was caught; for, as a matter of fact, nobody testified that his foot was not caught; nobody was near enough to testify and say that it was not; it is rather an inference to be drawn from the testimony of witnesses who saw him. One of the witnesses called by the plaintiff was one hundred feet to the northward, and he does not say that his foot was caught in the plank on that track; he says that while ' running across he appeared to stop. Another witness called for the plaintiff, and another, called for the defendant, were sixty rods to the southward. The testimony of those two witnesses, fairly considered, shows that when he reached the south rail of the track, running across it, he stopped, or hesitated, or, as one witness called for the defendant put it, he “stood still” at the instant of time, as near as he can describe it, when the train struck him.

There is some other testimony as to the circumstances, such as the appearance of the shoe. Three or four witnesses testify that the shoe on his left foot was torn. He was taken right from the place of the accident and brought to his house, remained there a few minutes and was removed from there to the hospital, and his wife, and cousin Kitty Hoak, and two men who were there at the house, Haynes and Bates, testified as to the condition of his shoe and as to the condition of his foot. There was some further controversy as to whether he had a wound on his left heel, or whether it was further up his leg, near the calf or the middle of the tendon, as Dr. Hollister put it. But all of that was submitted to the jury. Then the physician who was called upon to testify, and did testify that the wound was five or six inches up on the leg, was shown a statement which he had made after the accident to the company, describing this injury, in which he had stated that it was just on the heel at the attachment of the main tendon to the heel on the left foot, and when this was shown to him upon the cross-examination, he manifested some little surprise that the statement was as it appeared. But, all of that went to the jury, to bear upon the question as to whether he did catch his foot, and we think, upon that single proposition that the verdict of the jury, ought not to be disturbed as being against the weight of the evidence.

And, as a matter of law, then, was he negligent if he went upon the track to drive off his sheep in the face of an approaching train, if there was time enough ordinarily for him to get off the track, unless his foot was caught, and being upon the track, his foot was caught and held until he was struck?

Upon that we think the authorities are: That a man may take some chances to save his property, even though a railroad train is coming. As decided in 80 N. Y., (I read from page 218), in a similar case, or one something like this, in which the court say:

“The horse and wagon had some value,and we may assume, from the humble occupation in which the intestate was engaged, that they were of great value to him. He had the right, and was under some sort of duty to rescue them from danger if he could. He therefore had business in that place where he was wh9n he was killed. It cannot be said that he went there for no purpose, and that he unnecessarily placed himself in danger. The whole transaction took but a moment. He saw the train coming; the impulse to save his property was a natural one. He had no time for reflection. He saw how distant the train was,and,supposing that he could rescue his horse, started. He got across the track, and would have been safe but for the sliding of the wagon wheel, in consequence of the elevated rail. ”

E. J). Potter, Jr., for Plaintiff in Error.

Frank H. IJurd, and George B. Boone., for Defendant in Error.

And so the jury might have said, from the testimony in this case, that Mr. Hoak could have got across the track but for the defect in the plank which caught his foot and detained him for that instant of time which enabled the engine to strike him and kill him.

We think, from reading this testimony, as carefully as we can, that we are not justified in disturbing this verdict, and, therefore, it will be affirmed, but with no penalty.


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    (Sixth Circuit — Lucas Co., Ohio, Circuit Court —
    Jan’y. Term, 1895.)
    Before Haynes, Scribner and King, JJ.
    KAMINER, PRINZ & CO. v. FERDINAND WOLF, ASSIGNEE FOR THE BENEFIT OF THE CREDITORS OF THEODORE HOLLANDER, AND BERTHA HOLLANDER.

      Fraudulent purchase — Insolvency of buyer.

    While a purchase of goods by an insolvent vendee who conceals his insolvency, with the intent to injure the vendor, is fraudulent, and voidable, yet a purchase under like circumstances,but where such intent is absent, is not, in law, fraudulent. The simple failure by the vendee to disclose his insolvency, is not equivalent to its concealment.
   King, J.

This is a petition in error to reverse the judgment of the court of common pleas. The original action was in replevin, commenced before a Justice of the Peace, to recover goods of the value of $295.30, which were taken in replevin and turned over to the plaintiff. A trial was had in that court, and a verdict rendered for the defendant, finding the value of the goods. The case was appealed to the common pleas, the pleadings filed and a trial had, which resulted in a verdict for defendants, for the same amount, with interest.

It is claimed that the verdict was not supported by the evidence, and that claim is based ’ substantially on these facts: The defendant, Theodore Hollander, was a merchant here in Toledo, and some time in November, perhaps as early as October, ordered a bill of goods of the plaintiffs in error, who were merchants in St. Louis, through a member of the firm who was a traveling agent also, and who appeared here in Toledo and sold .the goods, the goods taken being perhaps eight or ten dollars less than the amount of goods originally sold. It is claimed by plaintiffs in error that, at the time of the pucrhase of these goods, Theodore Hollander stated, in answer to questions by the plaintiffs’ agent, that business was first-class with him; that he asked him how his trade was, and he replied that it was first-class; that he asked him whether he owed anything for that season’s bills, and he replied that the season was all light; that he would discount every bill he bought, and' didn’t owe anything. Hollander denied all of that conversation, and said that the goods were bought in t'he ordinary way; that no such questions were asked or answered by either of them; that'the goods were to be shipped pretty quick, and he was expecting them along about the middle of November, and they didn’t come, and along about the 23rd of November,he sent a postal card to the plaintiffs and asked what had become of the goods. The goods did arrive here about the 28th or 29th of November, and on the 30th of November, he executed amortgage, covering these goods and all the rest that he had, to his wife, to secure an indebtedness of $7895.03, and delivered possession of the mortgage and of the goods to her; and a day or two after, I think about the 4th of December, he made a general assignment of his goods for the benefit of his creditors. The record is very scant in stating as to the amount of his indebtedness. In a general way, it is stated that it was $7,000, in addition to this indebtedness to his wife, making, in round numbers, an indebtedness of about $15,000. It was stated in argument that his goods inventoried $7,000 or $8,000, and that the goods sold for $3,000 or $4,000, but there is nothing of that kind in the record. What the goods were worth, or what they sold for, we do not know. There was testimony that he- was selling goods at that time to the amount, on the average, of about $900 per month, and had been doing 30 for six months previous. He swears that about fifty per cent, of that would be profit, and about half of that expensse. I think it appears from the record that he did not have any net profit at all, but was running behind hand. So far as the wife is concerned, I don’t know that her claim under the chattel mortgage is at all material, only as a circumstance indicating what the defendant was doing or intending, with this property. It was conceded that the debt to his wife was valid and bona fide; that he had received from her from timó to time, for a period of ten years, money in different sums which he had borrowed, until it amounted to over $7,000, and he had given her notes when he had received these sums, and that they had been merged into to notes; that in the fore part of January of each year, the interest was computed and a new note given. These two notes are exhibited. There is no question, then, about the indebtedness to his wife,and there is no question but that he owed other bills of a certain kind, but just what they are, when incurred, or whether they were past due, or whether any of them are due, the record is entirely silent, and the question is whether the verdict is against the weight of the evidence in that state of the testimony. The court charged the jury in this language:

“Now, the inquiry in this case in this connection is, whether it was Hollander’s intent at the timé he bought the goods not to pay for them. The intent of a person, the intent with which an act is done, is an operation of the mind, and can only be determined from the act itself, and from the surrounding circumstances, and from the acts and declarations of the parties in connection therewith. It is a question of fact which you must decide from a consideration of all the facts and circumstances. The fact, if it be a fact, that at the time of the purchasing of these goods Hollander was insolvent — that is, that his debts exceeded his property— that fact is not of itself sufficient to show that his intention was not to pay for the goods; because an insolvent person in purchasing goods may intend to pay for them, and may expect that he will be able to pay for them. So also, if Hollander as insolvent, and his insolvency was known to him and was not known to the plaintiffs,that of itself is not sufficient to show that his intention was not to pay for the goods. But if Hollander knew that he was insolvent, and in view of all the circumstances of which he had knowledge he had no reasonable expectation that he would be able to pay for the goods, then, in law, that is equivalent to an intention not to pay for them. Under such circumstances it would be fraud to buy the goods and agree to pay for them, if he had no reasonable expectation that he would be able to pay for tbem.”

JSlo complaint is made of the charge, and the charge states the law. As the Supreme Court say in 31 Ohio St., Talcott v. Henderson:

“While therefore a purchase of goods by an insolvent vendee, who conceals his insolvency, with intent to injure the vendor, is fraudulent and voidable, yet a purchase under like circumstances, save only that such intent is absent, is not, in law, fraudulent.
“If the rule of law be not as stated, and the intent to injure be not of the essence of the fraud in such case, then it would be wholly immaterial whether the insolvency of the purchaser was known to himself; and the rule would be that all sales to an insolvent purchaser, where the insolvency is unknown to the vendor, are fraudulent and voidable. For such a rule no one would contend. All would admit that knowledge by the purchaser of his own insolvency is necessary to establish the fraud. But such knowledge, of itself,is entirely innocent. It is only where connected with the concealment of the fact, that fraud is shown. The simple failure to disclose a fact, however, is not equivalent to its concealment. The latter implies a purpose, a design; the former does not. If then, such knowledge on the part of the purchaser be necessary to make out a fraud, it is because it becomes the predicate of an intent — an intent to injure.”

There is no evidence in the record, tüat we can find, tending to show with any certainty whatever, that this defendant, Hollander, knew anything about his condition or his circumstances, when he ordered this bill of goods. He knew that he ran along and was doing a business of about seven, eight or nine hundred dollars a month, and that a part of it was profit, and, for anything that appears in the record,his ordering of this bill of goods which was not extravagant, — $300—was done with a perfect intention on his part to pay for them when the bill became due, if he continued in business. There is. nothing to show that he did not think of continuing in business at the time that he gave the order. There is nothing in the circumstances of the order tending to show that, except the declaration of the plaintiffs’ agent that he did make an expression of his 'ability to¡pay*and|of his condition, which, if he did make it, would be an evidence of an intent to commit fraud; but that he denies. That question of facts was submitted to the jury.

M. G. Bloch Attorney for Plaintiff in Error.

E. D. Potter, Jr., Attorney for Defendant in Error,

We are unable to find anything in this record that would warrant us in setting the verdict aside. The question of fact has been passed upon by the jury, and without some indication from the record itself that the jury were not warranted in their finding upon the state of facts here disclosed, the judgment of the common pleas must be affirmed, and we so find.


text:
    (First Circuit — Warren Co., O., Circuit Court
    October Term, 1895.)
    Before Swing, Cox and Smith, JJ.
    MAXWELL v. GRIFTNER.

      Lessor and lessee — Lessee can not dispute lessor’s title.

    A tenant is not permitted to dispute tbe title of the lessor under which he is in possession. If the tenant acquires a good title from a third party, he can not set his title up against that of his lessor.

      Same — Title acquired by delinquent ta<p sale.

    But where the lessor has failed to pay the taxes on the land, and the land is sold for delinquent taxes, and the tenant acquires title to the land under such sale, he may set up such title against his lessor. The lessor may however controvert the vality of such tax title.
   Smith, J.

On the principle of law, so clearly stated in Judge Swan’s Treatise, pages 547 and 548, we think the defendant below, Mr. Maxwell, was absolutejly precluded from showing as a defense to the action, that when his lessor leased to him his premises in controversy, he had no title to the same, and that he, the defendant, afterwards acquired from the state of Ohio, the right to use so much of the premises as was included within the limits of the basin, it being also shown that the state had at the time defendant leased it from the plaintiff, the same title that it afterwards asserted. The general rule, as stated in Swan, is, “that if the plaintiff proves that the defendant went into possession of the premises as his tenant, it will be no defense, nor ought the defendant be permitted to prove,that the plaintiff had no title. If the tenant has procured a good title from a stranger, he cannot set it up as against his landlord. A tenant is not permitted to dispute the title under which he himself is in possession. He may however show that he did not enter under, or that in fact he is not the tenant of the plaintiff, or that his landlord’s title expired after the making of the lease, or had been transferred by sale on execution, or by operation of law. ” We think it clear on the evidence submitted, that the defendant showed no defense to the claim of the plaintiff, so far as the basin tract is concerned.

Lot No. 1 stands on different grounds. This also was leased by plaintiff or his grantor to Maxwell, and rent therefor paid by him to Griftner. But the allegations of the answer as to this tract are, that on the 20th of January, 1891, (which was after he leased the property), the whole of this lot was legally sold by the cotmty treasurer for delinquent taxes thereon, and was bought by one Van Horne, who assigned all his rights to the defendant, and on March 17, 1894, the premises not having been redeemed, the auditor of Warren county, Ohio, duly and legally made a deed to him therefor, by virtue of which defendant is the owner of said lot in fee simple, and is entitled to, and is in full possession thereof, and that plaintiff has no title to the lot or to the possession thereof.

Such a defense, if maintained, is a good' one, as is clearly stated in the authority before cited. In this case the allegations of this answer were not controverted by a reply, and were therefore admitted, and on the pleadings the defendant would have been entitled to a judgment in his favor as to this lot.

At the trial the defendant offered no evidence as to this defense in chief, though in plaintiff’s evidence in chief he had called defendant as his witness, and had him testify as to his tax deed for this lot. In his rebutting evidence, 'over the objection and exception of defendant, evidence was offer'ed as to this tax sale, with the view of showing that it was invalid. We think on the state of the pleadings, no issue having been raised as to'this, this evidence was incompetent, and should not have been admitted. If the defendant had opened the door by offering evidence on this point, this would have been a waiver, and the court might properly have heard evidence by the plaintiff on the same subject, but he did not do so.

There was a verdict foi $16 in favor of plaintiff, for the mesne profits of the two tracts of land sued for; there was no division of this suita, so much for one and so much for the other. If there had been, we would have affirmed the judgment as to the basin lot, and will do so now, if plaintiff will remit this amount. As to the other lot, for the reason assigned,we feel constrained to reverse the judgment,though we are of the opinion that if the evidence in the record as to the taxtitle were legally there, and was the only evidence on the subjective would affirm the judgment of the common pleas as to this part of the property also,for the description of the land sold, on the duplicate, was not sufficient, and the evidence does not show such compliance with the provisions of the law, as would make the tax deed by the auditor a good one.

J. D. Hiller and J. A. Runyau, Attorneys for Plaintiff in 'Error.

Patrich Gaynor, Attorney for Defendant in Error.

We submit these views for the consideration of counsel, and think it probable that they can agree as to what disposition should be made of the case. If they cannot, we will direct as to this. The judgment should reserve the right o± Maxwell after the surrender of the possession of the basin property, to assert his title claimed under the state, and the right (if the tax deed is held invalid), to assert his claim for the amount paid for taxes, penalty, etc.


text:
    (First Circuit — Hamilton Co., O., Circuit Court
    Nov. Term, 1895.)
    Before Smith, Swing and Cox, JJ.
    HACKMAN v. CEDAR.

      Admission of testimony out of order — Discretion of Court.

    It rests in the sound discretion of the trial court to allow the plaintiff to introduce further testimony after he has rested and the defendant has moved to arrest the evidence and for judgment in his favor.

      Servant hired by husband, but wife expressly agreeing to pay wages —Liability on separate estate.

    Where the husband employed a servant he was primarily liable for her wages, but his wife afterwards expressly promising her to pay her wages, the wife will be liable for the same on her separate estate.
   Smith, J.

In this case we are of the opinion:

First — That the action of the trial court complained of, in allowing the defendant in error, the plaintiff below,after she had offered her evidence in chief, and had rested, and the defendant below had moved for the court to arrest the evidence from the jury, and ronder a judgment for the defendant, to offer additional evidence, was not erroneous. It rested in the sound discretion of the court to do this, and we think it was properly exercised.

Greed & Qreed, for plaintiff in error.

Carr & Speiser, for defendant in error.

Second — Was the verdict rendered for the plaintiff below, clearly and manifestly against the weight of the evidence?

We think the plaintiff did fail to establish the fact that she was employed as a household servant by Mrs. Hackman. On the contrary we think it was shown that her husband employed her, and was originally and primarily liable for her wages,the balance due her being understood and agreed upon. But if the evidence of the plaintiff and her witness is to be credited, Mrs. Hackman had the money for her, according to her statement, and expressly promised to pay her, but did not do so. Though she was then a married woman, by the law of 1884, if she had a separate estate, she would bind herself as-a feme sole, and according to the evidence of the plaintiff she had such separate estate. It is true the defendant denied the promise and the ownership of a separate estate, but it was for the jury to weigh the different statements, and give such credit to them as they thought them entitled to. Having found for the plaintiff, and the trial judge having refused to disturb their finding, we cannot say that it was manifestly against the weight of the evidence, and the judgment will be affirmed, with costs, but without penalty.